Robbins Tire & Rubber Co. v. N.L.R.B.

• Decision Date: 21 November 1977
• Docket Number: No. 76-2099,76-2099
• Parties: 96 L.R.R.M. (BNA) 3128, 82 Lab.Cas. P 10,207, 3 Media L. Rep. 1561 ROBBINS TIRE AND RUBBER COMPANY, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 724

563 F.2d 724

96 L.R.R.M. (BNA) 3128, 82 Lab.Cas. P 10,207,

3 Media L. Rep. 1561

ROBBINS TIRE AND RUBBER COMPANY, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.

No. 76-2099.

United States Court of Appeals, Fifth Circuit.

Nov. 21, 1977.

William Wachter, Act. Asst. Gen. Counsel for Sp. Litigation, Aileen Armstrong, Atty., N.L.R.B., Washington, D.C., Gilbert Cohen, Regional Atty., Region 10, N.L.R.B., Atlanta, Ga., for defendant-appellant.

William M. Earnest, Robert L. Thompson, David M. Vaughan, Atlanta, Ga., Charles A. Poellnitz, Florence, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and MEHRTENS, District Judge. ^*

GODBOLD, Circuit Judge:

This is a Freedom of Information Act (FOIA) ¹ case, although it takes on the troubling coloration of a dispute about the discovery rights of respondents in National Labor Relations Board proceedings. The district court ² ordered the NLRB to turn over to Robbins Tire copies of all written statements of those who will be called to testify ³ in a consolidated representation and unfair labor practice proceeding involving that company. The order required that these documents be transmitted "on or before April 22, 1976, or, at the election of the Board, on or before a date which is at least five days prior to any hearing where the person making the statement or affidavit will be called as a witness." ⁴ A panel of this court has denied the Board's motion for a stay pending appeal, and the NLRB hearing has been held in abeyance for over a year pending the outcome of this appeal. We affirm.

First, there is a jurisdictional problem. The Board argues that the effect of the order to disclose statements of witnesses was to enjoin its proceeding against the company. It casts its argument as an exhaustion requirement, citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), and asserting that Robbins Tire would suffer no irreparable injury if forced to challenge the Board's action afterwards on appeal, 29 U.S.C. §§ 160(e)-(f). See also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); 51 St. John's L.Rev. 251, 254 n. 17 (1977). We need not decide whether or when a district court adjudicating a FOIA claim may enjoin ongoing or prospective NLRB proceedings in an effort to compel the disclosure required by the Act. In this case, the district court did not enjoin the hearing. The Board argues that this was the effect of its order. But whether or not an order constitutes an injunction is a question that does not turn on the subjective importance attached to it by the defendant and his resulting action in the circumstances. Like similar orders in the more conventional discovery context, this one gave the NLRB a choice. It could produce the statements, it could proceed without resort to the testimony of these particular affiants or it could forego the hearing. While the unpalatability of this choice might well form part of the rationale for finding a substantive exemption under FOIA, ⁵ it cannot be transformed into a jurisdictional question by the Board's decision to hold its hearing in abeyance.

Exemption 7(A)

The Board asserts that the statements of prospective witnesses fall within exemption 7(A), which protects against disclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, . . . ." 5 U.S.C. § 552(b)(7)(A). The issue here is whether pre-hearing disclosure of the contents of statements made by those prepared to testify in support of the Board's case would actually "interfere" with the Board's case. In Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (CA1) (per curiam), cert. denied, 429 U.S. 895, 97 S.Ct. 257, 50 L.Ed.2d 178 (1976), the First Circuit has held that it would.

We think our answer can be found by ascertaining what Congress meant by "interfere," bearing in mind the dictum that FOIA was a comprehensive effort to publicize all agency action and that its exemptions are to be narrowly construed. Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11, 21 (1976). As Judge Oakes explained in the leading case of Title Guarantee Co. v. NLRB, 534 F.2d 484 (CA2), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), ⁶ this language was the result of a change offered by Senator Hart to the 1974 amendments to the FOIA after the bill had been reported out of committee. The purpose of Senator Hart's proposal was to restore the original intent of FOIA to require the agency to make a particularized showing that an investigatory file's disclosure would harm its case in court. "(I)t is only relevant to make (the exemption 7(A)) determination," Senator Hart emphasized, "in the context of the particular enforcement proceeding." ⁷ By making this change, Congress sought to eliminate unfounded judicial notions that a document's mere status as investigatory and enforcement-related would be sufficient to justify nondisclosure. Thus, the legislative history of exemption 7(A) reveals a sort of procedural emphasis. ⁸ Such an emphasis is strongly supplemented by the tenor of the 1974 amendments even before Senator Hart's change. As Senator Kennedy, the principal author and floor leader of the amendments, remarked, "With the new provisions it should be clear that there can be no blanket claim of confidentiality under any of the exemptions." Source Book 293.

We move next to the more substantive inquiry of what kind of interference Congress was concerned about avoiding in each particular case. Our only real clue lies in the remarks of Senator Hart:

(Exemption 7(A)) would apply whenever the Government's case in court . . . would be harmed by the premature release of evidence or information not in the possession of known or potential defendants. This would apply also where the agency could show that the disclosure of the information would substantially harm such proceedings by impeding any necessary investigation before the proceeding.

Source Book 333. ⁹

The first sentence here suggests that the concern was with interference in the rather broad sense of premature revelation. Support for this idea can be found in Senator Hart's earlier statement that he wanted to return to the purpose revealed in the legislative history of the 1966 Act. This purpose was "to prevent harm to the Government's case in court by not allowing an opposing litigant earlier or greater access to investigatory files than he would otherwise have." Source Book 332, quoting from H.R.Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in (1966) U.S. Code Cong. & Admin.News pp. 2418, 2428. If this is what interference means, then we would be obliged to give an FOIA plaintiff-as-public-citizen no more information than he would obtain as a private litigant engaging in discovery before the agency. In Title Guarantee, for example, Judge Oakes began his analysis by observing that disclosure "would be tantamount to the issuance of new, broader discovery rules for NLRB proceedings," given Second Circuit limitations on the duty of the Board to grant pretrial discovery. 534 F.2d at 487. However, we think that comparative discovery is not the key to the meaning of exemption 7(A).

First, it is questionable whether FOIA disclosure would result in an increase in discovery rights in this court. ¹⁰ Although the Second Circuit has held that the National Labor Relations Act does not specifically authorize or require the Board to adopt discovery procedures, ¹¹ this court, emphasizing the authority of 29 U.S.C. § 160(b), ¹² has held that "when good cause is shown to the Board it should permit discovery in order that the rights of all parties may be properly protected." NLRB v. Rex Disposables,494 F.2d 588, 592 (CA5, 1974), citing NLRB v. Safway Steel Scaffolds Co.,383 F.2d 273 (CA5, 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968); NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (CA5, 1968); cf. NLRB v. W. R. Bean & Son, Inc., 450 F.2d 93, 96 (CA5, 1971), cert. denied, 409 U.S. 849, 93 S.Ct. 57, 34 L.Ed.2d 91 (1972) (Safway Steel and Miami Coca-Cola place question within discretion of administrative law judge). ¹³ We have also held more specifically that statements of Board witnesses are discoverable in civil contempt proceedings that the Board brings to challenge noncompliance with appellate court decrees. NLRB v. Schill Steel Products, Inc., 408 F.2d 803 (CA5, 1969). ¹⁴ We conclude from these authorities that, with respect to the statements of prospective witnesses, some right to discovery exists under the National Labor Relations Act. ¹⁵ Thus, we cannot agree with the Board's assertion that disclosure of witnesses' statements would inevitably interfere with enforcement proceedings even in the sense that it would always allow litigants greater discovery than they otherwise would obtain.

Second, focusing on comparative discovery rights, even if it gave us a clearer answer, would violate the spirit of the procedural reform sought by the Hart amendment. The change, as we have noted above, sought to require a showing that some "specific harm might result to (the government's) case from disclosure," Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1135 (CA4, 1977). If the mere fact that one could not have obtained the document in private discovery were enough, the Board would have made naught of the requirement that nondisclosure be permitted "only to the extent that . . . production . . . would . . . interfere" in some way. We must interpret the exemption to give meaning to this requirement.

Finally, tying FOIA rights to the discovery rights of the particular plaintiff presents us with a legal conundrum that...