Title Guarantee Co. v. NLRB, 75 Civ. 3828.

• Decision Date: 28 November 1975
• Docket Number: No. 75 Civ. 3828.,75 Civ. 3828.
• Citation: 407 F. Supp. 498
• Parties: The TITLE GUARANTEE COMPANY, a Subsidiary of Pioneer National Title Insurance Company, a Subsidiary of Title Insurance and Trust Company, a Subsidiary of the TI Corporation (of California), Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, Defendant.
• Court: U.S. District Court — Southern District of New York

407 F. Supp. 498

The TITLE GUARANTEE COMPANY, a Subsidiary of Pioneer National Title Insurance Company, a Subsidiary of Title Insurance and Trust Company, a Subsidiary of the TI Corporation (of California), Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, Defendant.

No. 75 Civ. 3828.

United States District Court, S. D. New York.

October 10, 1975.

On Motion for Stay November 28, 1975.

COPYRIGHT MATERIAL OMITTED

Jackson, Lewis, Schnitzler & Krupman, New York City, for plaintiff; Robert Lewis, Roger S. Kaplan, New York City, of counsel.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Abigail Cooley, Asst. Gen. Counsel for Special Litigation, Washington, D. C., co-counsel, Joseph P. Norelli, Washington, D. C. and Winifred D. Morio, Regional Atty., Region 2, N.L. R.B., New York City, of counsel., for defendant.

OPINION

GAGLIARDI, District Judge.

I

By this action, the Title Guarantee Company ("Title Guarantee") seeks to compel the National Labor Relations Board (the "Board" or "N.L.R.B.") to produce for inspection and copying, pursuant to the Freedom of Information Act, as amended (the "Act"), 5 U.S.C. § 552, certain materials relating to an unfair labor practice charge against Title Guarantee. Plaintiff also seeks preliminary relief restraining the Board from conducting its administrative hearings until the issues herein have been resolved and, should disclosure be ordered, a stay of the administrative proceedings until a reasonable time after such disclosure.

The defendant has moved to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R. Civ.P. 12(b)(6), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56(c). According to the Board, the district court is without jurisdiction to enjoin the administrative proceedings and the material is exempt from disclosure under the Act. Title Guarantee has cross-moved for summary judgment.

Counsel for both sides have agreed that there is no material issue of fact in this case. Briefly stated, the factual background is as follows: On May 28, 1975, District 65, Wholesale, Retail, Office and Processing Union, Distributive Workers of America (the "Union"), filed an unfair labor practice charge with the Regional Office of the N.L.R.B. in New York alleging that Title Guarantee had refused to bargain with the Union. National Labor Relations Act §§ 8(a)(1), (3), 29 U.S.C. §§ 158(a)(1), (3). Amended charges were filed alleging, in addition, refusal to bargain in violation of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). On June 30, 1975, after investigation by the Regional Office, the Regional Director issued a complaint charging violations as alleged by the Union. Hearings were ultimately set for October 14, 1975.

In July, 1975, Title Guarantee requested that "copies of all written statements, signed or unsigned, contained in the Board's case file . . . be made available for inspection and copying" and that "any such statements taken subsequently also be made available." Primarily, Title Guarantee is interested in receiving written reports or signed affidavits which resulted from Board interviews of witnesses offered by the charging party. See N.L.R.B. Field Manual §§ 10056.2, 10056.5; 29 C.F.R. § 101.4. The Regional Director denied the request citing Exemptions 5 and 7(A), 7(C), and 7(D) of the Act, 5 U.S.C. § 552(b)(5), 7(A), 7(C), 7(D). On August 1, 1975 the General Counsel of the Board denied Title Guarantee's appeal for substantially the same reasons cited by the Regional Director. The instant action was then instituted and in camera inspection of the material in question was conducted by the court. 5 U.S.C. § 552(a)(4)(B).

II

At the outset, it is important to determine the jurisdictional aspects of this matter. As noted, plaintiff seeks both an order compelling disclosure and an injunction barring any administrative hearings until disclosure is made. With respect to the request to compel disclosure, it is unassailable that this court has jurisdiction at this time to order the production of documents under the Freedom of Information Act. 5 U.S.C. § 552(a)(4) provides that:

on complaint, the district court . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.

As the Court held in a similar situation in Cessna Aircraft Co. v. N.L.R.B., 405 F.Supp. 1042, 1046 (D.Kan.1975):

this is not an action to review decisions of the Board regarding discovery matters which may or may not arise during the hearing in controversy now before that Board. This is a separate and distinct action to enforce provisions of the Freedom of Information Act, whose benefits are available "to any person". The Board cannot seriously contend that it is somehow exempt from provisions of the Act, or that its internal rules and regulations regarding discovery may apply to nullify provisions of that Act, or that plaintiff here, simply because it is engaged in litigation before the Board, is relegated to lesser status than general members of the public who may seek information pursuant to provisions of the Act.

This court concludes, therefore, that it has jurisdiction to entertain plaintiff's action to order the agency to produce the material in question.

With regard to the court's injunctive powers, the N.L.R.B., cites Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), and Sears, Roebuck & Co. v. N.L. R.B., 153 U.S.App.D.C. 380, 473 F.2d 91 (1972), cert. denied, 415 U.S. 950, 94 S.Ct. 1474, 39 L.Ed.2d 566 (1974) for the proposition that the "Freedom of Information Act does not empower this court to enjoin Board proceedings." This reliance is misplaced. In Bannercraft, the Supreme Court wrote that

with the express vesting of equitable jurisdiction in the district court by § 552(a), there is little to suggest, despite the Act's primary purpose, that Congress sought to limit the inherent powers of an equity court.

415 U.S. at 20, 94 S.Ct. at 1038. What Bannercraft held was that, although the Court believed that the district court had jurisdiction to enjoin an administrative proceeding, in "a renegotiation case," the "nature of the . . . process" was such that plaintiff would not suffer irreparable harm if negotiations continued pending resolution of the Freedom of Information claim. 415 U.S. at 20, 94 S.Ct. at 1028 (emphasis original).

Similarly, in Sears, contrary to defendant's interpretation, the District of Columbia Circuit noted that

the District Court was correct in its premise that there is jurisdiction to enjoin agency proceedings pending resolution of a Freedom of Information Act claim.

473 F.2d at 93. The Court held only that under the peculiar circumstances of that case, the Board having issued a complaint at Sears' own request, Sears had made no showing of irreparable harm.

In the instant case, "with the express vesting of equitable jurisdiction in the district court" by the Act, Bannercraft, supra, this court holds that it has jurisdiction to enjoin the Board's proceedings.

III

Turning to the merits, Exemption 5, which is relied upon by the defendant, covers "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). According to the Board, the scope of this exemption is parallel to that of the privilege doctrine in the civil discovery context. Thus, it claims, the material in question here is not subject to disclosure as it falls within the purview of the "government's executive privilege," see E.P.A. v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and the "attorney work-product privilege," Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

Defendant's contentions are supported by broad language in the recent decision of N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). There, the Court was concerned with certain memoranda prepared by the Office of the General Counsel of the N.L.R.B. explaining decisions of that agency to file or not to file a complaint after unfair labor practice charges had been lodged with the Board by a union or employer. The Court held that decisions not to file a complaint were "final opinions" and therefore not exempt under Exemption 5 of the Act. On the other hand, decisions to file a complaint only commenced the litigation process and were exempt.

In the course of its decision, the Court took the opportunity to review much of the background and policy of Exemption 5. The Court noted that:

Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency. EPA v. Mink, 410 U.S. at 85-86 93 S.Ct. 827 at 835-836. Since virtually any document not privileged may be discovered by the appropriate litigant, if it is relevant to his litigation; and since the Act clearly intended to give any member of the public as much right to disclosure as one with a special interest therein, . . . it is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context.

421 U.S. at 148-49, 95 S.Ct. at 1515 (citations omitted). More specifically, the Court wrote that "it is clear" "that Congress had the Government's executive privilege specifically in mind in adopting Exemption 5," Id. at 150, 95 S.Ct. at 1516, and "that it is equally clear that Congress had the attorney work product privilege specifically in mind when it adopted (this) Exemption . . .," Id. at 154, 95 S.Ct. at 1518.

This court does not believe that N.L. R.B. v. Sears is dispositive of the issue at hand. In Sears, as noted, the subject matter in question included memoranda designed to circulate among the various departments of the National Labor Relations...