Pacific Molasses Co. v. N.L.R.B. Regional Office No.15

Decision Date08 August 1978
Docket NumberNo. 77-1886,77-1886
Citation577 F.2d 1172
Parties99 L.R.R.M. (BNA) 2048, 84 Lab.Cas. P 10,757 PACIFIC MOLASSES COMPANY, Plaintiff-Appellee, Cross-Appellant, v. NATIONAL LABOR RELATIONS BOARD REGIONAL OFFICE # 15 and Charles M. Paschal, Jr., Regional Director, National Labor Relations Board Region # 15 and John S. Irving, General Counsel, National Labor Relations Board, Defendants- Appellants, Cross-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

John S. Irving, Gen. Counsel, Aileen Armstrong, Asst. Gen. Counsel, John E. Higgins Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Elliott Moore, Deputy Assoc. Gen. Counsel, Washington, D.C., Susan T. Papadopoulos, Atty., N.L.R.B., Washington D.C., Carol A. De Deo, Atty., N.L.R.B., Washington, D.C., for defendants-appellants, cross-appellees.

Allan M. Dabrow, Stephen J. Cabot, Philadelphia, Pa., Robert McComiskey, New Orleans, La., Kenneth M. Jarin, Philadelphia, Pa., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before SKELTON *, Senior Judge, and FAY and RUBIN, Circuit Judges.

FAY, Circuit Judge:

This appeal presents issues of first impression for this Court. We are asked initially to decide whether an employer can use the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain copies of the individual union authorization cards that were submitted to the National Labor Relations Board (N.L.R.B.) in support of a petition by the union for a representation election. We are also asked to determine whether a report (N.L.R.B. Form 4069) made by a Board agent is likewise subject to disclosure under the Freedom of Information Act. The district court ruled that the FOIA compelled disclosure of the union authorization cards, but that the Form 4069 was exempted from disclosure. For the reasons stated infra, we vacate the order of the district court, and order that the union authorization cards be withheld from disclosure, but that the Form 4069 be made available to the plaintiff.


The plaintiff in this case, the Pacific Molasses Company, operates a bulk liquid storage and distribution business in Westwego, Louisiana. On February 11, 1977, the Oil, Chemical and Atomic Workers International Union filed with the N.L.R.B.'s Fifteenth Regional Office a petition requesting that the Board conduct an election in a unit consisting of the company's production and maintenance employees to determine whether the employees desired to be represented by the union for collective bargaining purposes. The petition was filed pursuant to Section 9 of the National Labor Relations Act, 29 U.S.C. § 159(c), and it alleged that the bargaining unit in question consisted of twenty-seven employees and that the petition was supported by 30% or more of such employees. The N.L.R.B.'s Statement of Procedures, 29 C.F.R. § 109.18(a), provides that the petitioning union must be the authorized agent of at least 30% of the employees in the proposed unit in order to establish a showing of interest of a "substantial number of employees" as required in 29 U.S.C. § 159(c)(1)(A). In order to demonstrate an adequate "showing of interest", the union submitted to the Board authorization cards signed by employees designating the union as their collective bargaining representative. 1 On the same date that the union's petition was filed, the Board sent a copy of the petition to the plaintiff and requested an alphabetized list of all employees in the group described in the petition. The purpose of such a list was to aid the Board in determining whether there has been an adequate showing of interest. The plaintiff failed to furnish the requested list, and a Board agent was subsequently assigned to investigate the petition. After examining the authorization cards, the agent submitted a report (N.L.R.B. Form 4069) to the Board's regional director. The Form 4069 is a statistical report which discloses the number of employees in the prospective unit, the number of signed authorization cards, and the percentage of employees in the unit who support the union.

By letter dated March 11, 1977, the plaintiff made a formal request to the regional director of the Board to disclose the union authorization cards and the Form 4069. According to the plaintiff, the purpose behind the request was "to attack the validity of the signatures, the manner in which the cards were solicited and the accuracy of the dates of the cards." App. 114a-115a. This request was denied by the regional director on March 16, 1977, and the regional director's decision was affirmed by the General Counsel of the N.L.R.B. on April 7, 1977.

Earlier, on March 15, 1977, a representation hearing was held by the Board to determine the appropriateness of the unit. Specifically, the purpose of the hearing was to ascertain whether all of the employees whom the union sought to represent shared a community of interest which would justify their collective representation by the union. As a result of this representation hearing, the regional director issued on March 31, 1977, a Decision and Direction of Election, and ordered that the election be held on April 29, 1977.

The plaintiff filed the complaint in this cause of action in the District Court for the Eastern District of Louisiana on April 19, 1977. The complaint sought an order requiring the Board to produce the union authorization cards and the Form 4069, and an order restraining the Board from proceeding in this representation case until the requested information was produced. The district court held a hearing to consider the merits of the plaintiff's complaint, and on April 27, 1977, the district court entered the order which is the subject of this appeal. This order instructed the Board to produce for the plaintiff the union authorization cards based on the fact that these cards did not fall under Exemptions 6, 7(A), 7(C) or 7(D) of the FOIA. The district court, however, did deny the plaintiff's requests for injunctive relief and the Form 4069 (relying on Exemption 5 of the FOIA).

Immediately after the district court entered its order, counsel for plaintiff requested that the Board turn over the union cards. The Board denied this request, and this denial prompted the plaintiff to file a motion asking the district court to cite the Board for contempt. On April 28, 1977, the district court ordered the Board to permit the company to view and copy the authorization cards within three hours or be held in contempt of court. Later, on the same day, pursuant to a motion by the Board, this Court issued a stay of the district court's order to disclose the authorization cards pending the resolution of the Board's appeal. On April 28, 1977, the Board filed its notice of appeal with this Court. On May 20, 1977, the company filed a notice of cross-appeal from that part of the district court's judgment concerning the Form 4069.

On April 29, 1977, the representative election was conducted at the plaintiff's facility. The employees rejected the petitioning union by a vote of 13 to 9.


Union authorization cards are cards signed by employees authorizing a certain union to represent them for all purposes of collective bargaining in respect to wages, hours and other conditions of employment. See 29 U.S.C. § 159(a). During an organizational campaign, employees are asked to sign a card. The union collects these cards, and, when 30% of the employees' signatures have been collected, the union sends the cards along with a petition for a representation election to the regional director of the N.L.R.B. See 29 U.S.C. § 159(c). The director will then review the petition, and, if satisfied by the showing of support, will order a hearing. At the hearing, the employer can challenge such items as the appropriateness of the bargaining unit. The employer cannot, however, challenge the N.L.R.B.'s determination that there exists a sufficient showing of interest among the employees for the union to warrant the holding of an election. That is an issue to be determined by the N.L.R.B. alone. Linden Lumber v. N.L.R.B., 419 U.S. 301, 309, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). That does not mean, however, that if a party suspects fraud in the process used by the union to obtain the cards that it cannot obtain a check on the validity of the cards. The Board's manual provides that:

If it appears that signatures are in the same handwriting, or if a party alleges and furnishes evidence that there are forgeries, such investigation should be made as is necessary and suitable action taken, including possible referral to other law enforcement agencies.

The investigation should include, but not be limited to, attempts to obtain affidavits from the person or persons responsible for procuring and submitting the cards. A signature comparison should be made preferably against the employer's records. Persons purporting to have been signators should be questioned.

N.L.R.B. Case Handling Manual § 10128.1, cited in Brief of Appellant at S.A.6.

If the N.L.R.B. should order an election to be held, the employees then vote for or against the union by secret ballot. 29 U.S.C. § 159(c)(1). Thus, the employer is generally prevented from finding out at any time which employees have supported the union. The principal exception to this is in a situation wherein the union collects authorization cards from over 50% of the employees in the unit. In such a situation, the union might present these cards to the company with the expectation of obtaining voluntary recognition of the union from the employer. The frequency of this practice of going to the employer with authorization cards is, however, on the decline as a result of the relatively recent Supreme Court decision holding that a company does not commit an unfair labor practice by demanding a representation election even though the union has presented to it the signed...

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