New England Medical Center Hosp. v. N.L.R.B., No. 76-1288

• Citation: 548 F.2d 377
• Decision Date: 28 December 1976
• Docket Number: No. 76-1288
• Parties: 94 L.R.R.M. (BNA) 2322, 94 L.R.R.M. (BNA) 2974, 80 Lab.Cas. P 11,946 NEW ENGLAND MEDICAL CENTER HOSPITAL, Plaintiff, Appellant, v. NATIONAL LABOR RELATIONS BOARD et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 377

548 F.2d 377

94 L.R.R.M. (BNA) 2322, 94 L.R.R.M. (BNA) 2974,

80 Lab.Cas. P 11,946

NEW ENGLAND MEDICAL CENTER HOSPITAL, Plaintiff, Appellant, v. NATIONAL LABOR RELATIONS BOARD et al., Defendants, Appellees.

No. 76-1288.

United States Court of Appeals First Circuit.

Dec. 28, 1976.

Rehearing Denied Jan. 19, 1977.

Richard P. Ward, Boston, Mass., with whom John H. Mason and Ropes & Gray, Boston, Mass., were on brief, for appellant.

John G. Elligers, Atty., Washington, D. C., with whom John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and William Wachter, Asst. Gen. Counsel for Sp. Litigation, Washington, D. C., were on brief, for appellees.

Before COFFIN, Chief Judge, CLARK, Associate Justice, ^* CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

New England Medical Center Hospital (the "Hospital") is an employer against whom there is currently pending an unfair labor practice complaint issued by the National Labor Relations Board at the instance of Rita Yard, a former Hospital employee. A hearing on the complaint has been noticed but not yet held. The district court action from which this appeal is taken was commenced by the Hospital to force the Board, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, ¹ to grant access to documents in (1) the Board's "open" file in the pending unfair labor practice proceeding; and (2) two "closed" Board investigatory files relating to unfair labor practice charges made against the Hospital at about the same time by two other persons, the charges having since been dismissed by the Board. The Hospital asserts that it needs these to prepare an adequate defense.

The district court refused to inquire into the records contained in the three files, denied the Hospital's production request in toto, and entered summary judgment against the Hospital, relying upon Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (1st Cir. 1976), cert. denied, --- U.S. ----, 97 S.Ct. 257, 50 L.Ed.2d 158 (1976). We affirm.

I

The Hospital discharged Rita Yard in 1975. On November 24, 1975, she filed with the Board a charge that her discharge was in violation of section 8(a)(1) and (3) of the National Labor Relations Act being discriminatory and otherwise violative of her rights. The Board investigated, and on February 10, 1976, issued a complaint against the Hospital. A week later the Hospital addressed three identical letters to the Board's Regional Director, seeking, pursuant to FOIA, records in the Rita Yard case file and in two closed files pertaining to charges brought by other Hospital employees. In each instance the Board was asked to make available for inspection and copying,

"copies of written reports and signed affidavits and all other written statements, signed or unsigned, which resulted from Board interviews with witnesses or which were submitted to the Board and are contained in the case file in the above case."

The Hospital indicated in later correspondence that it sought "factual information" only, and that if any portion of any document contained matters exempt from disclosure by the Act, "the reasonably segregable portion of that record after deletion of those portions that are exempt" should be furnished. See 5 U.S.C. § 552(b). The Hospital offered to pay the direct costs of document search and duplication.

The Board's Regional Director turned down the Hospital's request citing exemptions 7(A), (C) and (D). ² He claimed that "much information, including statements, is obtained from individuals who would be reluctant or would refuse to supply such information if it were routinely disclosable pursuant to a request under the Freedom of Information Act. . . . The protection of the identity of individuals and the substance of the information they submit in the Agency's investigation is an important means of assuring the Agency's continuing ability to obtain such relevant information. Individuals giving statements in the investigation are given express assurances that sworn statements will not be disclosed unless and until the individual is called as a witness in a formal proceeding, as provided for in (29 C.F.R.) Section 102.118(b) of the Board's Rules and Regulations. If the Agency were forced to disclose statements submitted or obtained during the investigation of the case, in circumstances other than those provided by Section 102.118(b) of the Board's Rules and Regulations, it would substantially deter voluntary cooperation of witnesses, hinder obtaining sworn information from all potential sources and, consequently, substantially interfere with present and future enforcement proceedings."

production would "interfere with enforcement proceedings", under 7(A), because in the investigation of unfair labor practice cases,

The Hospital promptly appealed to the Board's General Counsel, disputing the Board's "boiler plate" approach. The Hospital argued that FOIA requires examination by an agency of "the particular document and the need to withhold it", together with consideration of all surrounding circumstances and possible protective measures such as deletion of names, addresses, and other identifying information which may be taken in a particular case to preserve privacy. ³

After its administrative appeal was denied, the Hospital brought the present district court action, requesting, pending disposition, either a speedy hearing or else an injunction staying the Board's scheduled hearing on the unfair labor practice complaint.

Along with its district court complaint, the Hospital filed a lengthy affidavit by Paul A. Smith, Jr., its personnel director. Rita Yard was discharged, according to Mr. Smith, for theft of Hospital property. Mr. Smith said that he was present when a Board agent interviewed nine supervisory employees with respect to her charge. He gathered from the agent that numerous Hospital employees and others had been interviewed outside his presence. The interviewing agent took copious notes, and in Mr. Smith's presence gave no assurances of confidentiality. ⁴

Mr. Smith complained that the Hospital, with its over 4,000 employees, was faced with preparing a defense without means of rebutting "whatever false claims have been made", and that since the investigation he had information that Rita Yard and Richard Monks (see n.4) and others unknown had been engaged in a conspiracy to steal Hospital property.

In its answer to the Hospital's complaint, the Board indicated that it might reopen the closed Monks file in light of an ongoing investigation involving substantially identical violations. The Board asserted that its field attorney, Rosemary Pye, after examining "the requested record(s)" had reported that they were within FOIA's exemptions and that there were no reasonably segregable portions. The Board conceded that many of the factual statements it declined to disclose were those of persons the Board intended to call to testify at the hearing, but noted that pursuant to a Board rule, 29 C.F.R. § 102.118 (1976), the statements would be produced upon request for cross-examination. Finally, the Board denied that non-disclosure would cause the Hospital irreparable injury, but rather stated that disclosure of "such trial preparation information might assist plaintiff in preparing or constructing its defenses" in the ongoing case. ⁵

At a district court hearing held on June 2, 1976, the Hospital presented its argument that FOIA entitled it to the requested material in both the open and closed files. Since our decision in Goodfriend Western Corp. v. Fuchs, supra, which relied on the second circuit's similar decision several months earlier in Title Guarantee Co. v. NLRB, 534 F.2d 484 (2d Cir.), cert. denied, --- U.S. ----, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), had just come down, the Hospital was faced with distinguishing those cases. It did so on two grounds: the cases, the Hospital argued, dealt only with affidavits taken from employees and did not preclude disclosure under FOIA of statements in open files made by supervisory employees and non-employees; secondly, the decisions dealt with discovery of open, not closed file materials. The Hospital beseeched the court to "order the documents be brought into court (and) make findings of fact on whether or not in these closed files there is any possibility of harm (to the pending enforcement proceeding) ". The court, emphasizing our language in Goodfriend Western Corp. v. Fuchs, supra, 535 F.2d at 147, that Congress did not intend the FOIA to transfer "from the Board to the courts the case-by-case adjudication of discovery disputes in unfair labor practice proceedings", denied all relief to the Hospital.

II

On the application of Exemption 7 to Labor Board records during an ongoing unfair labor practice proceeding, the lower federal courts are as yet without Supreme Court guidance. The Court declined to consider Exemption 7, as revised by Congress in 1974, in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162-65, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). ⁶ We know the FOIA was meant to establish " 'a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language' ". EPA v. Mink, 410 U.S. 73, 80 n.6, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1972), quoting S.Rep. No. 813. On the Four circuits, including ourselves, have held that employee statements and affidavits obtained by the Board in connection with an ongoing unfair labor practices case are exempt under 7(A) as their enforced production would, in the language of the exemption, "interfere with enforcement proceedings". See Climax Molybdenm Co. v. NLRB, 539 F.2d 63 (10th Cir. 1976); Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80 (3d Cir. 1976); Goodfriend Western Corp. v. Fuchs, supra; Title Guarantee Co. v. NLRB, supra. See also Judge Orrick's admirably lucid opinion in Capital Cities...