NLRB v. Hardeman Garment Corp., C-75-148.

• Decision Date: 15 January 1976
• Docket Number: No. C-75-148.,C-75-148.
• Citation: 406 F. Supp. 510
• Parties: NATIONAL LABOR RELATIONS BOARD, Applicant, v. HARDEMAN GARMENT CORPORATION and Lauderdale Garment Corporation, Respondents.
• Court: U.S. District Court — Western District of Tennessee

406 F. Supp. 510

NATIONAL LABOR RELATIONS BOARD, Applicant, v. HARDEMAN GARMENT CORPORATION and Lauderdale Garment Corporation, Respondents.

No. C-75-148.

United States District Court, W. D. Tennessee, W. D.

November 25, 1975.

On Motion for Reconsideration January 6, 1976.

Order January 15, 1976.

John F. Harrington, Regional Atty., Region 26 and Timothy J. O'Leary, Atty., Region 26, Memphis, Tenn., and Abigail Cooley, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., for applicant.

Yelverton Cowherd, Jr., and W. Kerby Bowling, Memphis, Tenn., for respondents.

WELLFORD, District Judge.

ORDER

The Court has heretofore granted the initial relief sought in this case by applicant NLRB seeking to subpoena records and information from respondent companies in respect to pending unfair labor practice charges.¹ Respondents, however, filed a counterclaim for an order requiring production by the NLRB under the Freedom of Information Act (FOIA, 5 U.S.C. § 552), as amended in 1974. At issue with respect to production are affidavits of witnesses the General Counsel for the NLRB would call to testify in support of the NLRB complaint against those respondents, who assert they have moved for this information at an earlier administrative proceeding and that it was summarily denied. Successive appeals to the Office of General Counsel of the NLRB were likewise denied. In effect, since this Court has granted the NLRB relief by way of compelled discovery, it has also granted NLRB's motion to sever the consideration of the relief sought (and granted) in the complaint and in the counterclaim by respondents.

Representatives of the NLRB have completed an investigation of unfair labor practice charges against these respondents. This has now blossomed into the full flower of formal complaints on the basis of union charges. Substantial rights and interests of the respondents are at issue, and they are subject to serious economic sanctions and burdens as a result. Respondents are formally charged with violations of labor laws, and they must prepare to respond at their peril to charges instituted by a powerful government agency. Unless exempt by reason of confidentiality or other reasons set forth by law, defendants in a civil proceeding would expect to be able to discover information relative to a complaint made against them.

The NLRB has moved, however, to dismiss the counterclaim, or in the alternative, for summary judgment on the issues, and a hearing has been held on this motion. The NLRB's first argument is that the General Counsel, rather than the NLRB, is the proper party. This argument, however, seems to avoid the issue, and other courts have considered the NLRB to be a proper party in such a controversy, NLRB v. Schill, 408 F.2d 803 (5th Cir. 1969); Phillips v. Retail Clerks, 86 LRRM 2358 (# 74-208, M.D.Tenn.1974); Cessna Aircraft v. NLRB, 405 F.Supp. 1042 (Kan.1975). Administratively, respondents have exhausted their opportunity or remedy for this discovery before the NLRB. The NLRB seeks to avoid discovery of the affidavits under exemption (7) relating to "investigatory files compiled for law enforcement purposes." (5 U.S.C. § 552(b)(7)). Such records are exempt from disclosure if their production would, inter alia:

"(A) interfere with enforcement proceedings . . .

(C) constitute an unwarranted invasion of personal privacy, (or)

(D) (or) disclose the identity of a confidential source . . .."

(88 Stat. 1563, 1974 Amendment to FOIA)

The purpose of this exemption is to prevent premature disclosure of information that would hamper enforcement efforts. Here the NLRB has already elected to proceed formally and has discovered from respondents all pertinent material. Raser Tanning Co. v. NLRB, 276 F.2d 80 (6th Cir. 1960), cert. den. 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d 1524, cited by the NLRB, was decided before the Freedom of Information Act, and was based upon a party's waiver before the Board of an asserted right to examine witnesses during a proceeding. Similarly, NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402 (7th Cir. 1961), involved pre-FOIA procedures and demands for statements made "prior to the issuance of the unfair labor practice complaint," and also involved "failure of respondent to exhaust its administrative remedies." 287 F.2d 405 (emphasis ours). Neither case is controlling here. NLRB v. Automotive Textile Products, 422 F.2d 1255 (6th Cir. 1970), involved no issue raised under FOIA, but rather approved NLRB procedures for producing witness affidavits at the time of hearing, if requested. This Court agrees with Judge Gagliardi in Title Guarantee Co. v. NLRB, 407 F.Supp. 498, 504, 90 LRRM 2849, 2852-53 (S.D., N.Y., 1975) that

"Under the original version of Exemption 7, virtually any material compiled in the course of an investigation would be withheld from disclosure. H.R.Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966); S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965). Thus, in Wellman Industries Inc. v. N. L. R. B., 490 F.2d 427 (4th Cir. 1974), the Court held that affidavits obtained by an N. L. R. B. investigator during his inquiry into Union objections to a representation election were not discoverable under the Act as the Exemption was designed to `prevent premature disclosure of an investigation so that the Board can present its strongest case . . .' Id. at 431 citing Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971)."

This was the state of law when NLRB v. Automotive Textile Products, supra, and Wellman v. NLRB, 490 F.2d 427 (4th Cir. 1974) were decided. The 1974 Amendment, however, changed this situation, as stated in Title Guarantee Co., 407 F.Supp. 504, 90 LRRM 2853:

"In 1974, however, the Act was amended substantially changing the provisions of Exemption 7. Defendant, itself, concedes that the purpose of the amendments, as evidenced by the legislative history, was to limit the exemption to instances where disclosure would interfere with one of a specific set of interests. The amendment requires that the government `specify some harm in order to claim the exemption' and does not `afford . . all law enforcement matters a blanket exemption.' 120 Cong.Rec. H10868 (Remarks of Congressman Reed of New York) (daily ed. Nov. 20, 1974). In enacting the amended exception, the Congress was concerned with the sweeping exemptions afforded by some court decisions, see e. g., Center for National Policy Review v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974), and saw the amended exemption as narrowing the body of material which would be withheld. 120 Cong.Rec. § 9331 (Remarks of Senator Kennedy) (daily ed. May 30, 1974). See also 120 Cong.Rec. § 9330 (Remarks of Senator Hart) (daily ed. May 30, 1974).

"In light of this history, and from the language of the amendment as well, it is clear that the courts must examine each situation individually and determine if any of the specific harms enumerated by the statute would result from disclosure. If the government does not satisfy its statutory burden of proof, 5 U.S.C. § 552(a)(4)(B), that some such particular harm exists, the `general philosophy of full agency disclosure,' N. L. R. B. v. Sears, Roebuck & Co. 421 U.S. 132, at 136, 95 S.Ct. 1504, at 1509, 44 L.Ed.2d 29, must prevail and the material be disclosed."

The NLRB has not shown that it would be harmed by the disclosure of the affidavits. In any event, they will be presented to the Court, in camera, with an opportunity for NLRB, within thirty (30) days, to set forth the specific harm asserted in event of disclosure. See also NLRB v. Schill Steel Products, supra. "The statutory language `clearly unwarranted' instructs the court to tilt the balance in favor of disclosure." Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 674 (1971). Even though the word, "clearly", has now been eliminated, the Courts recognize Congress' concern with the right of the public—and private parties—to be informed about federal administrative procedures, practices and evidence gathering.

Likewise, for the reasons stated, we agree with the conclusions in Title Guarantee Co., 407 F.Supp. at 504, 90 LRRM at 2853-2854, that disclosure here would not necessarily constitute an unwarranted invasion of personal privacy. Examination of the affidavits by the court would be made again with NLRB opportunity within thirty (30) days to set forth further specifics with respect to their contention.

Again, the NLRB has not demonstrated, in fact, that statements or affidavits were taken under and after express assurances of confidentiality, and the burden is upon NLRB to show this. Even if this were the case, the Court might eliminate a name or address or identifiable reference to protect the identity of a witness and, if necessary, or if he were entitled to an "informer status", this could still give respondents the benefit of the nature of evidence relied upon by the NLRB generally. This is not a criminal case and the NLRB does not enjoy the protection sought by its analogy to criminal law proceedings.

For the reasons indicated, the NLRB's motion to dismiss the counterclaim and for summary judgment is denied. The NLRB will make legible copies of the contested affidavits available to the Court promptly for further consideration in light of respondents' request for disclosure.

ON MOTION FOR RECONSIDERATION

On November 25, 1975, this Court entered an Order denying NLRB's motion to dismiss and/or for summary judgment with respect to whether that agency might have to reveal, under the FOIA, certain affidavits or documents relating to pending unfair...