Appendix — National Labor Relations Board v. Sears, Roebuck & Co.

Supreme Court brief1975

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Supreme Court, U. 8.

FiLED

MN. CLERK

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1233

NATIONAL LABOR RELATIONS BOARD and

Peter G. NASH, GENERAL COUNSEL,

Petitioners

—

SEARS, ROEBUCK AND COMPANY,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR CERTIORARI FILED FEBRUARY 11. 1974

CERTIORARI GRANTED MAY 28, 1974

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1233

NATIONAL LABOR RELATIONS BOARD and

PETER G. NASH, GENERAL COUNSEL,

Petitioners

—

SEARS, ROEBUCK AND COMPANY,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX

Page

Relevant docket entries 1

Amended Complaint ) 4

Exhibits to Amended Complaint 12

Defendants’ Answer to Amended Complaint 38

Exhibit to Defendants’ Answer 42

Plaintiff's Statement of Material Facts 45

Exhibits to Plaintiff's Statement of Material Facts 54

Plaintiff's Motion for Preliminary Injunction . 10%

Affidavit of Gerard C. Smetana * 105

ii INDEX

Page

Exhibits to Affidavit of Gerard C. Smetana 1

Affidavit of Jeffrey S. Goldman n 137

Defendants’ Statement of Genuine Issues 140

Plaintiff's Motion for Summary Judgment 142

Defendants’ Cross-Motion for Summary Judgment 143

Portion of Points and Authorities in — of Defendants’

Cross-Motion for Summary Judgment als 144

— to Defendants’ Cross-Motion for — *

ment . M ˙— Ee ˙ OO EN ET 148

ition a of Plaintiff's 5 Opposition to Defendants’ Cross-

11 150

Notice of Appeal from Distriet Court Order 1

Order of the Supreme Court granting petition for Certiorari 214

(The Memorandum and Order of the District Court, the Judgment

of the Court of Appeals affirming the District Court, and the Order

of the Court of Appeals denying Appellants’ petition for rehearing

were printed in the appendix to the petition for certiorari; and the

1961 Statement on “Operations of the Office of NLRB General Coun-

sel” is printed in the appendix to the brief in opposition to the

petition. These documents are ot reprinted in this appendix.)

8. 4.71

10.14.71

2. 4.72

2.11.72

2.18.72

3.17.72

3.27.72

3.30.72

4. 6.72

4.23.72

6.21.72

6.26.72

7.17.72

7.28.72

8.10.72

8.16.72

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

Case No. 1571-71

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Complaint filed

Amended complaint filed

Defendants’ answer to amended complaint filed

Plaintiff's motion for preliminary injunction filed

Defendants’ opposition to motion for preliminary

injunction filed

Motion for preliminary injunction argued and

granted

Findings ef fact and conclusions of law and Order

granting preliminary injunction entered

Defendants’ request for stay of injunction pending

appeal filed

Notice of appeal from Order of 3-27-72 filed

Plaintiff's opposition to defendants’ request for

stay filed

Plaintiff’s motion for summary judgment filed

Defendants’ opposition and cross-motion for sum-

mary judgment filed

Plaintiff’s opposition to cross-motion filed

Order denying stay of injunction entered

Motion and cross-motion for summary judgment

argued

Memorandum and order granting plaintiff's motion

for summary judgment and denying defendants’

cross-motion entered

Notice of appeal from Order of 8-10-72 filed

Case No. 72-1870

IN THE UNITED STATES DISTRICT COURT

9.18.72

5.29.73

6.18.73

7.27.73

8.10.73

8.14.73

8.24.73

9.13.73

9.20.73

10.16.73

11.13.73

11.20.73

FOR THE DISTRICT OF COLUMBIA

Certified original record filed

Per curiam Order by the Cierk for the Court, sua

sponte placing case cn summary calendar

Argument held before Wilbur K. Miller, Sr. Circuit

Judge, Wright and Robb, Circuit Judges

Judgment issued affirming judgment of the District

Court on the basis of the opinion of District Judge

Corcoran; stay ordered by District Court dissolved

Petition for rehearing and suggestion for rehearing

en bane filed

Appellants’ motion for stay of Order of July 27,

1973, filed

Per Curiam Order issued granting appellants’ mo-

tion for stay of Order of July 27, 1973

Per Curiam Order issued denying petition for

rehearing

Court’s letter to parties advising that no judge

requested a vote on suggestion for rehearing en

banc and that no action was taken on said petition

Appellants’ motion for stay of judgment pending

filing of petition for certiorari filed

Per Curiam Order issued granting motion for stay

of judgment

Per Curiam Order issued granting General Coun-

sel’s motion to substitute Peter G. Nash as a de-

fendant-appellant for Eugene G. Goslee

Appellants’ motion to extend stay of judgment filed

1. 4.74 Per Curiam Order staying effectiveness of judg-

ment, issued

2 * 0 „

2.11.74 Petition for writ of certiorari filed in the Supreme

Court

5.28.74 Order of the Supreme Court granting petition for

certiorari issued

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1571-71

SEARS, ROEBUCK AND Co., on its own behalf and on be-

half of other charging parties under the National

Labor Relations Act,

925 South Homan Avenue

Chicago, Illinois 60607

312-265-5352

PLAINTIFF

THE NATIONAL LABOR RELATIONS BOARD and EUGENE G.

GOSLEE, Acting General Counsel, on his own behalf

and as agent for the NATIONAL LABOR RELATIONS

BOARD,

1717 Pennsylvania Avenue, N.W.

Washington, D. C.

393-3111

DEFENDANTS

AMENDED COMPLAINT FOR DECLARATORY

JUDGMENT AND INJUNCTION

SEARS, ROEBUCK AND CO., plaintiff, by its attor-

neys, Alan Raywid, Lawrence M. Cohen and Gerard C.

Smetana, for its complaint against the NATIONAL LA-

BOR RELATIONS BOARD and EUGENE G. GOSLEE,

Acting General Counsel, on his own behalf and as agent

for the NATIONAL LABOR RELATIONS BOARD, de-

fendants, alleges as follows:

1. This action arises under the Freedom of Informa-

tion Act, 5 U.S.C. 552, as here after more fully appears.

2. This Court has original jurisdiction of this action

under 5 U.S.C. 552 (a) (3); 28 U.S.C. 1337; the All

Writs Act, 28 U.S.C. 1651; 5 U.S.C. 708; and the Fed-

eral Declaratory Judgment Act, as amended, 28 U.S.C.

2201-02.

3. Plaintiff brings this action on its own behalf and

on behalf of other persons similarly situated pursuant

to Rule 23 (b (2) of the Federal Rules of Civil Proce-

dure. The class which plaintiff represents is so numerous

that joinder of all members is impracticable. It is com-

posed of all persons, such as plaintiff, who have been

denied and continue to be denied by defendants access

to the records of the National Labor Relations Board,

hereafter described, notwithstanding that such records

constitute precisely the kinds of “final opinions, state-

ments of policy and interpretations” and “instructions

to staff that affect a member of the public” which the

Freedom of Information Act (5 U.S.C. Sec. 552(a) (2)

(A)(B) and (C)) requires defendants to index and

make available to the public. In view of defendants’

uniform and consistent refusal to make said records

available to both plaintiff and the public, a common ques-

tion of law and fact is raised in this proceeding affecting

the rights of all members of the class who are, and con-

tinue to be, adversely affected by the practice complained

of herein. Further, defendants’ actions with respect to

plaintiff, as hereafter described, were predicated on

grounds generally applied to all members of the class,

thereby making appropriate finai injunctive relief with

respect to the class as a whole. As a member of said

class, plaintiff will fairly and adequately protect the in-

terests of the class in this proceeding.

4. Plaintiff is a domestic corporation organized and

existing under and by virtue of the laws of the State

of New York.

5. Defendant National Labor Relations Board (here-

after “Board”) is an independent Federal agency created

and existing under the Nationa] Labor Relations Act, as

amended, 29 U.S.C. 141, et seg. (hereafter “Labor Act’’),

with its priseipal offices in Washington, D.C.

6. Defendant Eugene G. Goslee (hereafter Goslee“

was at all times material herein, specifically during the

period from June 25, 1971 to and including August 24,

1971, the Acting General Counsel of the National Labor

Relations Board, an office created by and existing under

Section 3(d) of the Labor Act, with principal offices in

Washington, D.C., and as such was empowered, on the

Board’s behalf, to issue or refrain from issuing unfair

labor practice complaints under Section 10 of the Labor

Act (a power which has been delegated to the Board’s

Regional Directors, see Section 102.15 of the Board’s

Rules and Regulations, Series 8, as amended, 29 C.F.R.

102.15) and, pursuant to Section 102.117(c) of the

Board’s Rules and Regulations, series 8, as amended, 29

C.F.R. 102.117(c), to receive and answer requests for

agency records.

7. Arnold Ordman (hereafter Ordman“ was from

1963 to and including June 25, 1971 and Peter C. Nash

(hereafter Nash“) is and has been subsequent to and

including August 24, 1971 the General Counsel of the

Board with the same powers and duties as described in

paragraph 6 above. The past practice of Ordman and

the present practice of Nash, with respect to the disclo-

sure of the agency records here involved, has been and

is the same as that of Goslee as hereafter described.

8. The Regional Advice Branch of the Office of the

General Counsel of the Board (hereafter “Advice

Branch”) is located in Washington, D.C. It has respon-

sibility, under the supervision of the Board’s General

Counsel, to review requests by the Board’s Regional Di-

rectors for advice and to formulate policy on novel or

unsettled procedural and substantive matters arising in

unfair labor practice cases. Section 201.1.1 of the

Board’s Statements of Procedure, series 8, as amended,

32 C.F.R. 9588. In this capacity, the Advice Branch is-

sues mandatory instructions to said Regional Directors

with respect to the disposition of unfair labor practice

charges and the issuance of unfair labor practice com-

plaints. Said mandatory instruction, along with the prece-

dence, theories and analyses in support thereof and occa-

sional references to relevant prior Advice determination,

are communicated to the Regional Directors by means

of a memorandum (hereafter Advice Memorandum“)

9. The Office of Appeals of the Office of the General

Counsel of the Board (hereafter “Office of Appeals”) is

located in Washington, D.C. It has responsibility to re-

view appeals from the refusal of a Regional Director to

issue an unfair labor practice complaint and, under the

supervision of the Board’s Genera! Counsel, to sustain

or reverse said refusal. Section 202.1.2 of the Board’s

Statements of Procedure, series 8, as amended, 32 C.F.R.

9588; Section 102.19 of the Board’s Rules and Regula-

tions, series 8, as amended, 29 C.F.R. 102.19. Said de-

termination of the Office of Appeals, along with the

precedence, theories and analyses in support thereof and

occasional references to releavnt prior Appeals determi-

nation, are communicated to the Regional Directors by

means of a memorandum (hereafter “Appeals Memo-

randum”).

10. It has been the uniform and consistent practice of

the defendants, as well as Ordman and Nash, to refuse

to make available to the public Advice and Appeals

Memoranda, and indices thereof, on the ground that such

records are not subject to disclosure under the Freedom

of Information Act. Report of Committee on Practice

and Procedure under the National Labor Relations Act,

American Bar Association Section of Labor Relations

Law, Vol. II, 1971 (hereafter “1971 Report“), pp. 233-

237, 242-246; Report of Committee on Practice and

Procedure Under the National Labor Relations Aet,

American Bar Association Section of Labor Relations

Law, Vol. II, 1970 (hereafter “1970 Report”), pp. 5-10.

This position has been maintained despite the contrary

position adopted by the American Bar Association Sec-

tion of Labor Relations Law. 1971 Report, pp. 233-237,

242-6; 1970 Report, pp. 5-10. The events described in

paragraph 11-14 infra, involving plaintiff, are illustra-

tive and typical of said practice of refusing to make

available Advice and Appeals Memorandum and indices

thereof. A similar result would have occurred if any

other member of the class which plaintiff here repre-

sents had made requests of defendant such as those of

plaintiff described in paragraphs 11 and 13 infra. Said

requests would also have been denied, as were plaintiff’s

as described in paragraphs 12 and 14 infra.

11. On or about June 10, 1971, pursuant to manda-

tory instructions received from the Advice Branch in an

Advice Memoranda, the Regional Director for the Nine-

teenth Region of the Board informed plaintiff that he

was refusing to issue a complaint with respect to the

unfair labor practice charges filed by plaintiff in Board

Case No. 19-CB-1673. A copy of said letter is attached

hereto and made a part hereof as Exhibit “A”. On or

about July 14, 1971, plaintiff, in order to perfect its

right to appeal said determination to the Office of Ap-

peals and acting under the Freedom of Information Act

and in compliance with the applicable Board rules, filed

a Request for Information (hereafter “Request”) with

defendant Board through defendant Goslee. In said Re-

quest, plaintiff requested that the Board, in accord with

the Freedom of Information Act, make available for

public inspection and/or copying the Advice Memoran-

dum in Case No. 19-CB-1673, other relevant Advice and

Appeals memoranda, and the indices thereof, all as more

fully described in the Request which is attached hereto

and made a part hereof as Exhibit B“.

12. On or about July 22, 1971, Goslee, on behalf of

the Board and pursuant to the practice described in para-

graph 10 above, by teletype to plaintiff as confirmed by

a letter of explanation dated the next day, refused to

make available to plaintiff any of the information sought

in its Request. A copy of said teletype and letter are

attached hereto apd made a part hereof as Exhibits C“

and “D”, respectively.

13. On pine july 28, 1971, plaintiff was informed

in greater detail by the Regional Director for the Nine-

teenth Region of his reasons for refusing to issue com-

plaint but said letter also failed to make aavilable to

plaintiff the information sought in its Request. A copy

of said letter is attached hereto and made a part hereto

as Exhibit E“. On or about July 29, 1971, plaintiff,

again in order to perfect its right to appeal said deter-

mination to the Office of Appeals and acting under the

Freedom of Information Act and in compliance with the

applicable Board rules, filed a Renewed Request for In-

formation (hereafter “Renewed Request”) with defend-

ant Board through defendant Goslee. In said Renewed

Request, plaintiff repeated its Request to the Board in

accord with the Freedom of Information Act, clarified

where necessary its Request, and answered each of the

reasons Goslee had proferred for denying the Request,

all as more fully described in the Renewed Request at-

tached hereto and made a part hereof as Exhibit F“.

14. On or about August 4, 1971, Goslee, on behalf of

the Board and pursuant to the practice described in

paragraph 10 above, by letter to plaintiff, refused to

make available to plaintiff any of the information sought

in the Renewed Request. A copy of said letter is attached

hereto and made a part hereof as Exhibit G“, In order

to comply with the applicable time requirements and ex-

pressly reserving its rights involved herein, plaintiff

under protest then timely filed its appeal in Case No.

19-CB-1673 with the Office of Appeals. Although plain-

tiff's appeal was thereafter sustained and complaint in

Case No. 19-CB-1673 issued, neither said determination

of the Office of Appeals nor said complaint, which are

attached hereto and made à part hereof as Exhibits “H”

and “I”, respectively, made available to plaintiff the in-

formation sought in its Request and Renewed Request

and nor, to date, has such information been made avail-

able to plaintiff in any other manner by Goslee, Nash or

any other agent of the Board.

15. The practice of the defendants as described in

paragraph 10 above, as applied to plaintiff by denying

its Request and Renewed Request as desvribed in para-

graphs 12 and 14 above, has deprived and continues to

deprive plaintiff and the class it represents of necessary

and valuable rights in violation of the Freedom of Infor-

mation Act. They have been and are being denied their

right to Advice and Appeals Memoranda and indices

thereof and by such denial are being preluded, inter alia,

from ascertaining the policies and law that are being

adhered to by the General Counsel of the Board.

16. There is no remedy other than by this action by

which plaintiff and the class it represents can receive

just and equitable relief and prevent defendants from

continuing to deprive them of information to which they

are entitled under the Freedom of Information Act. The

foregoing allegations thus set forth an actual controversy

and are matters of public interest, which a declaratory

judgment construing the applicability of the Freedom of

Information Act in the circumstances here involved will

settle and terminate.

WHEREFORE, plaintiff prays this Court to enter a

decree which:

(a) Declares that the failure of defendants to provide

plaintiff and the class it represents with Advice and Ap-

peals Memoranda and indices thereof, such as requested

in plaintiff’s Request and Renewed Request, deprives

plaintiff and the class it represents of necessary and

valuable statutory rights in violation of the Freedom of

Information Act.

(b) Grants plaintiff and the class it represents a per-

manent injunction enjoining the defendants, their em-

ployees, agents, servants, officers, and attorneys from

continuing to abridge their rights by refusing to supply

plaintiff and the class it represents with Advice and

Appeals Memoranda and indices thereof such as requested

in plaintiff’s Request and Renewed Request.

e Grants plaintiff and the class it represents such

other and further relief as is deemed to be just and

equitable in the premises.

ALAN RAYWID

COLE, ZYLSTRA & RAYWID

2011 Eye Street, N.W.

Washington, D. C. 20006

Telephone 202/659-9750

GERARD C. SMETANA

925 So. Homan Avenue

Chicago, Illinois 60607

Telephone 312/265-5352

LAWRENCE M. COHEN

LEDERER, Fox & GROVE

111 West Washington Street

Chicago, Illinois 60602

Telephone 312/641-0200

Of Counsel:

CoLe, ZYLSTRA & RAYWID

2011 Eye Street, N.W.

Washington, D. C. 20006

Telephone 202/659-9750

LEDERER, Fox & GROVE

111 West Washington Street

Chicago, Illinois 60602

Telephone 312/641-0200

EXHIBIT “A”

NATIONAL LABOR RELATIONS BOARD

REGION 19

Logo]

1000 Republie Building, 1511 Third Avenue

Seattle, Washington 98101

June 10, 1971 Telephone (206) 442-4532

Philip C. Lederer, Attorney at Law

111 W. Washington Street

Chicago, Illinois 60602

Re: Retail Clerks Union Local No. 4

Case No. 19-CB-1673

Dear Mr. Lederer:

The above-captioned case charging a violation under Sec-

tion 8 of the National Labor Relations Act, as amended,

has been carefully investigated and considered.

The investigation discloses that the Employer’s attempted

withdrawal from the Silver Bow Employers Association

was untimely, in that the investigation disclosed nego-

tiations were already in progress at the time of the at-

tempted withdrawal. Accordingly, further proceedings

are not warranted and I am, therefore, refusing to issue

complaint in this matter.

Pursuant to the National Labor Relations Board Rules

and Regulations, you may obtain a review of this action

by filing an appeal with the General Counsel of the Na-

tional Labor Relations Board, Washington, D. C. 20570

and a copy with me. This appeal must contain a com-

plete statement setting forth the facts and reasons upon

which it is based. The appeal must be received by the

General Counsel in Washington, D. C., by the close of

business on June 23, 1971. Upon good cause shown, how-

ever, the General Counsel may grant special permission

for a longer period within which to file. A copy of any

such request for extension of time should be submitted

to me.

If you file an appeal, please complete the notice forms I

have enclosed with this letter and send one copy of the

form to each of the other parties. Their names and ad-

dresses are listed below. The notice forms should be

mailed at the same time you file the appeal, but mailing

the notice forms does not relieve you of the necessity for

filing the appeal itself with the General Counsel and a

copy of the appeal with the Regional Director within

the time stated above.

Very truly yours,

/s/ Charles M. Henderson

CHARLES M. HENDERSON

Regional Director

Encls.

CERTIFIED MAIL No. 909905

RETURN RECEIPT REQUESTED

ec: General Counsel, Nationa] Labor Relations Board,

Washington, D.C. 20570

Retail Clerks Union Local No. 4, 125 W. Granite,

Butte, MT 59701

Sears, Roebuck and Co., 32 E. Granite Street,

Butte, MT 59701

Retail Clerks International Association,

2819 First Ave., Seattle, WA 98121

EXHIBIT “B”

July 14, 1971

Mr. Eugene G. Goslee

Acting General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D. C. 20570

Re: Retail Clerks Union, Local No. 4,

Retail Clerks International Association,

AFL-CIO, (Sears, Roebuck and Co.),

Case No. 19-CB-1673

Dear Mr. Goslee:

By letter dated June 10, 1971, a copy of which was

sent to you, the Nineteenth Region of the Board refused

to issue a complaint in the above-captioned case. Ac-

cordingly, the charge filed by our client, Sears, Roebuck

and Co., was dismissed. The only basis for this decision

disclosed in said letter, or at any time, was that “the

Employer’s attempted withdrawal from the Silver Bow

Employers Association was untimely, in that. . . nego-

tiations were already in progress at the time of the at-

tempted withdrawal.” Sears, as the charging party, has

never been informed of either the factual or legal basis

for this conclusion of the Nineteenth Region. We have

been advised, however, that the decision of the Region

was predicated on mandatory instructions contained in

a memorandum received from the Advice Branch of the

Board.

Pursuant to Section 102.19 of the Board’s Rules and

Regulations, we intend to seek review of the refusal to

issue complaint in this matter by filing an appeal with

the Board’s Office of Appeals. An extension of time has

been granted until the close of business on July 23, 1971

to file such an appeal. As you know, the appeal, under

Section 102.19, must “contain a complete statement set-

ting forth the facts and reasons upon which it is based.”

In our opinion, it is impossible to comply with the re-

quirements of Section 102.19 and prepare a comprehen-

sive and persuasive appeal without a fuller explanation

as to the basis for the Region’s refusal to issue complaint.

Accordingly, pursuant to the Freedom of Information Act

(5 U.S.C. Section 552) and Section 102.117 of the

Board’s Rules and Regulations, we request that you

promptly make available for public inspection and/or

copying the identifiable records described below:

1. We request the specific memorandum submit-

ted by the Advice Branch to the Nineteenth Region

which resulted in the Region’s refusal to issue a

complaint in the instant matter. This action by the

Advice Branch, which the Region was required to

and did follow, constitutes final agency action of

precedential import. II 1970 Report of the Labor

Relations Law Section, American Bar Association,

pp. 6-10. s such, th) memorandum constitutes a

public document under the Freedom of Information

Act. See, e.g., American Mail Line Ltd. v. Gullick,

411 F. 2d 696 (D.C. Cir. 1969) and Benson v. GSA,

289 F.Supp. 590, 591 (N.D. Wash. 1968), aff'd, 415

F. 2d 878, 881 (9th Cir. 1969). It should be noted

that analogous memoranda of the Security and Ex-

change Commission, pursuant to the recommendation

of the Administrative Law Conference of the United

States (38 LW 2657, 2658), are now made available

for public inspection and copying. 17 C.F.R. 200.81.

We believe that the public generally and a charging

party, in particular, has a right to know the opera-

tive facts and underlying relationale which consti-

tute the basis for the General Counsel’s determina-

tion not to proceed to complaint. In the present case,

such information is only available in the memoranda

of the Advice Branch to the Nineteenth Region.

2. During the oral argument of the present case

before the Advice Branch, counsel for Sears was in-

formed by Advice Branch representatives of alleged-

ly similar cases in which the Advice Branch had also

instructed Regional offices to dismiss charges. Since

these memoranda are not published, it is necessary,

in order to prepare a meaningful appeal and under-

stand the rationale of the Advice Branc’ here, that

we have access to all Advice and Office of Appeals

memoranda issued within the past five years which

involve issues similar to those in the instant case.

In the absence of reported Board decisions present-

ing the same question as raised in this case, such

memoranda constitute, in effect, the Board’s deci-

sional law on the issue here involved For purposes

of identification, we would define those categories

of memoranda requested to include at least those

cases involving either the propriety of withdrawals

by employers or unions from multi-employer bar-

gaining, disputes as to commencement date of nego-

tiations, or conflicting interpretations in any other

context of the Board’s Retail Associates (120 NLRB

388) rule.

3. For similar reasons, we request the index or

digest of all determinations rendered by the Advice

Branch and Office of Appeals in either their exist-

ing form or any alternative form which realistically

permits identification of relevant records. As noted

in Professor Davis’ book (p. 206):

„ . . opinions of [the Office of Appeals] are the

only available precedents on some questions.

They are indexed and freely used within the

office, along with similar opinions given by the

Advice Branch... in response to requests from

Regional Officers for guidance on questions of

law and policy. From the Advice and Appeals

opinions, the General Counsel’s office compiled

a ‘Book of Digests’ for the guidance of the staff

on issues about which the General Counsel’s

decisions constitute the only relevant law

This “Book of Digests,” or other orderly filing and

indexing system, manifestly constitutes “precedents”

and the kind of “final opinions, statements of policy

and interpretations”, and “instructions to staff that

affect a member of the public”, which the Freedom

of Information Act contemplates should be indexed

and made available to the public. Again, note that

the SEC, under Section 201.81(b) of its Rules as

— —

adopted on January 25, 1971, provides the public

with essentially the same indices which we here re-

quest from the Board.

Please advise the undersigned of the time and place

the information described above will be made available

for inspection and/or copying and inform us of the rea-

sonable fees, if any, required to reimburse the Board

for the costs incurred in connection with this request.

Should you determine that any portion of this request

will not be granted, we would request that, pursuant to

Section 102.117(c) of the Board’s Rules, we be sent

prompt notice of such a determination accompanied by

a written statement of the reasons therefor.

Since the information sought to be elicited herei: js

essential to the preparation of the appeal in the instant

case, we have concurrently herewith requested the Office

of Appeals to toll the time for filing said appeal pending

your ruling on the requests herein made.

Very truly yours,

LEDERER, Fox AND GROVE

LAWRENCE M. CoHEN

Attorneys for Sears,

Pony and Co.

ing P

LMC :hy —

ec Mr. Irving M. Herman

Director, Office of Appeals

National Labor Relations Board

Office of the General Counsel

Washington, D. C. 20570

Mr. Charles M. Henderson

Regional Director, Region 19

National Labor Relations Board

1000 Republic BIdg., 1511 Third Ave.

Seattle, Washington 98101

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Exaisit C“

27132 CHLAC

RAAUIJAZ RUEVDEL0009 2032025-UUUU—

RUCHLAC.

NLRB

FM EUGENE G GOSLEE ACTING GENERAL COUN-

SEL NLRB WASH DC

TO LAWRENCE M COHEN ESQ LEDERER FOX &

GROVE CHICAGO TITLE & TRUST BLDG 111

WEST WASHINGTON ST CHICAGO ILL 60602

RE RETAIL CLERKS UNION, LOCAL NO. 4, RE

TAIL CLERKS INT’L ASSN, AFL-CIO (SEARS,

ROEBUCK & CO), CASE NO. 19-CB-1673.

RE YOUR LETTER OF JULY 14, 1971, REGIONAL

DIRECTOR WILL SEND YOU LETTER SHORTLY

SETTING FORTH WITH GREATER PARTICULAR-

ITY REASONS FOR HIS REFUSAL TO ISSUE

COMPLAINT IN SUBJECT CASE. OFFICE OF AP-

PEALS WILL NOTIFY YOU REGARDING TIME TO

FILE ANY APPEAL YOU MAY WISH TO FILE

AFTER RECEIPT OF ABOVE LETTER. WITH

RESPECT TO YOUR REQUESTS FOR (1) ADVICE

BRANCH MEMORANDUM IN SUBJECT CASE; (2)

ACCESS TO ANY ADVICE BRANCH AND OFFICE

OF APPEALS MEMORANDA IN CASES SIMILAR

TO INSTANT ONE; AND (3) “THE INDEX OR

DIGEST OF ALL DETERMINATIONS RENDERED

BY THE ADVICE BRANCH AND OFFICE OF AP-

PEALS . . , SUCH REQUESTS ARE RESPECT-

FULLY DENIED. REASONS FOR SUCH DENIAL

WILL BE SET FORTH IN LETTER TO FOLLOW.

NNNN

27131 CHLAC

{Confirmation Copy: This is a confirmation of a message

telephoned to FW on 7/22 at 3:25 P.M., General Serv-

ices Administration, Transportation & Communications

Service, Teletype 353-5520. Message telephoned by TC)

ExuHisit D“

east NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

Washington, D.C. 20570 Jul. 23, 1971

Lawrence M. Cohen, Esquire

Lederer, Fox and Grove

Chicago Title and Trust Building

Chicago, Illinois 60602

Re: Retail Clerks Union, Local No. 4,

Retail Clerks International

Association, AFL-CIO

(Sears, Roebuck and Co.)

Case No. 19-CB-1673

Dear Mr. Cohen:

This letter is written in response to your letter of

July 14, 1971, and pursuant to my teletype to you of

July 22, 1971.

_ With respect to the denial of your request for the

Regional Advice memorandum in the subject case, dis-

ciosure of Regional Advice Branch memoranda is not

required under the Freedom of Information Act (5 U.S.C.

Sec. 552) since such memoranda do not constitute a final

disposition of a case but are rather guides for a Regional

Director as to how a specific case is to be handled. Such

memoranda are also privileged against disclosure under

5 U.S.C. See. 552(b) (5) since they are intra-agency

memoranda which reflect the thought processes and legal

analyses of the General Counsel's staff. See International

Paper Co. v. Federal Power Commission, 438 F. 2d 1349,

1358, 1359. In addition, Advice Branch memoranda con-

stitute an integral part of the investigative process and

become part of the investigative file. See 5 U.S.C. Sec.

552 (b (7). The foregoing are the reasons for denying

your request for the Advice Branch memorandum in the

subject case.

For the same reasons I also denied your request for

access to all Advice Branch memoranda in cases similar

to the instant one.

With respect to the denial of your request for the in-

dex or digest of all determinations rendered by the Ad-

vice Branch”, there is no digest system for Advice

Branch memoranda. Although the memoranda are col-

lected and filed according to the issues raised in each

case for use by the Advice Branch staff as a research

tool, these memoranda, individually or collected, will not

be disclosed for the reasons already set forth above.

With respect to your request for decisions of the Office

of Appeals in cases similar to the instant one, you are

aware, of course, that the disposition of an appeal is

explained in a letter sent to all interested parties. No

subject index, compilation, or book of digests of these

letters is maintained. Accordingly there can be no re-

trieval of Office of Appeals decisions in cases similar to

the instant one and thus I am unable to comply with

your request in this regard. For the same reason, I am

unable to comply with your request for “the index or

digest of all determinations rendered by . . . the Office of

Appeals”.

Should you have any questions with respect to this

letter or the previous teletype, please do not hesitate to

call on me.

Very truly yours,

/s/ Eugene G. Goslee

EUGENE G. GOSLEE

Acting General Counsel

ExuHisiTt E“

NATIONAL LABOR RELATIONS BOARD

REGION 19

[Logo]

1000 Republie Building, 1511 Third Avenue

Seattle, Washington 98101

July 26, 1971 Telephone (206) 442-4532

442-7542

Mr. Lawrence M. Cohen

Lederer, Fox and Grove

Attorneys at Law

Chicago Title and Trust Bldg.

111 W. Washington Street

Chicago, IIIinois 60602

Re: Retail Clerks Int'! Assn #4

Case 19-CB-1673

Deur Mr. Cohen:

This letter sets forth with greater particularity my rea-

sons for refusing to issue complaint in the above-cap-

tioned case and is sent pursuant to the teletype of July

22, 1971 from Acting General Counsel Goslee to you.

As a result of the investigation, I have concluded that

further proceedings on the charge are unwarranted in-

asmuch as the employer’s attempted withdrawal from

the multi-employer unit occurred after the commence-

ment of actual bargaining or negotiations in that unit

and was thus untimely under the test enunciated in

Retail Associates, 120 NLRB 388.' The evidence dis-

closed that the employer’s attempted withdrawal took

place after the parties to the multi-employer bargaining

relationship (Silverbow Employers Association and the

union) had exchanged proposals for a new contract,

which exchange was, in the particular circumstances

See also Sheridan Creations, 148 NLRB 1503; Seattle Automo-

tive Wholesalers Asan, 140 NLRB 1393. Cf. Eberlee Builders, 186

NLRB No. 8.

of the instant case, viewed as the commencement of

actual bargaining. In this letter it was noted that the

exchange of proposals occurred pursuant to the frovi-

sions of Article XVIII of the expired contract waich

required such exchange and which provided that the ex-

changed proposals are to frame the issues for negotia-

tions to the exclusion of all others and it appears that

any matters not raised in the exchange of proposals

are to be included without change in the subsequent

contract. Thus, upon receipt of the Association’s counter-

proposals, the parties were considered to have “agreed”

to the substantial number of matters not raised in either

the union’s proposal or the Association’s proposal. At

the time of such “agreement,” actual bargaining nego-

tiations were considered to have commenced and the em-

ployer’s subsequent multi-employer unit was considered

to be untimely. In view of this conclusion, the union’s

request to vargain on an individual basis was deemed

net violative of Section 8(b) (3) of the Act. J am there-

fore refusing to issue a complaint in this matter.

Pursuant to the National Labor Relations Board Rules

and Regulations, you may obtain a review of this action

by filing an appeal with the General Counsel of the Na-

tional Labor Relations Board, Washington, D.C. 20570,

and a copy with me. This appeal must contain a com-

plete statement setting forth the facts and reasons upon

which it is based. The appeal must be received by the

General Counsel in Washington, D.C. by the close of

business cn August 9, 1971. Upon good cause shown,

however, the General Counsel may grant special permis-

sion for a longer period within which to file. A copy

of any such request for extension of time should be

submitted to me.

If you file an appeal, please complete the notice forms

I have enclosed with this letter and sent one copy of

the form to each of the other parties. Their names and

addresses are listed below. The notice forms should be

mailed at the same time you file the appeal, but mailing

the notice forms does not relieve you of the necessity

for filing the appeal itself with the General Counsel

SS oe

—

and a copy of the appeal with the Regional Director

within the time stated above.

Very truly yours,

s Charles M. Henderson

CHARLES M. HENDERSON

Regional Director

ec: General Counsel, Nationa] Labor Relations Board,

Washington, D.C. 20570; Sears, Roebuck and Co.,

32 E. Granite Street, Butte, Montana 59701; Re-

tail Clerks Local No. 4, 125 W. Granite, Butte,

Montana 59701; Retail Clerks Int] Assn, 2819 First

Ave.—Vanderveer Bldg., Seattle, WA 98121

CERTIFIED MAIL No. 909993. Return receipt requested.

EXHIBIT “F”

LEDERER, Fox AND GROVE

ATTORNEYS AT LAW

Chicago Title and Trust Building

111 West Washington Street

Chicago, Illinois 60602

Philip C. Lederer

Shayle P. Fox

Kalvin M. Grove

Lawrence M. Cohen

S. Richard Pincus

Herbert M. Berman

Russell M. Kofoed

K. Bruce Stickler

David L. Evans

Area Code 312

Telephone 641-0200

July 29, 1971

Mr. Eugene G. Goslee

Acting General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue, N. W.

Washington, D. C. 20570

Re: Retail Clerks Union, Local No. 4,

Retail Clerks International Association,

AFL-CIO, (Sears, Roebuck & Co.,

Case No. 19-CB-1673

Dear Mr. Goslee:

On July 14, 1971 we wrote to you on behalf of our

client, Sears, Roebuck and Co., the charging party in

the above captioned case, requesting, pursuant to the

Freedom of Information Act (5 U.S.C. § 552) and § 102

.117 of the Board’s Rules and Regulations, that you

promptly make available for public inspection and/or

copying various records described in detail in our letter.

The basis for our request was, inter alia, that without

such records it was impossible to comply with the re-

quirements of § 102.19 of the Board’s Rules and Regula-

tions and prepare a comprehensive and complete ap-

peal of the refusal by the Regional Director for the

Nineteenth Region to issue a complaint in the instant

case.

By teletype dated July 22 you advised us that our

requests were denied but that we would receive a further

letter from the Regional Director “setting forth with

greater particularity reasons for his refusal to issue

complaint in subject case”. We were further advised

that the reasons for the denial of our requests would

be described in a letter to follow. We have now re-

ceived your letter of July 23 stating the reasons for

your action and the Regional Director’s letter of July

28, a copy of which was sent to you, indicating “in

greater particularity” the reasons for his refusal to

issue complaint in the instant case. The time for filing

an appeal has been extended until August 9, 1971.

After a careful consideration and analysis of both your

letter of July 23 and the Regional Director’s letter of

July 28, we have again concluded that a comprehensive

and meaningful appeal cannot be filed in the present

case without the information requested in our letter

of July 14. Accordingly, for this reason and because we

believe that we are entitled to such information under

the Freedom of Information Act as described below, we

hereby renew the requests set forth in our letter of

July 14. We do not believe that the reasons set forth

in your letter of July 23 permit a refusal to disclose

the information we have requested:

1. As set forth in paragraph 1 on page 2 of our

July 14 letter, we believe that the American Bar As-

sociation, Labor Relations Law Section was correct when

it stated in its 1970 Report (Vol. II, p. 7) that Advice

and Appeals opinions “constitute precisely the kinds of

‘final opinions, statements of policy, and interpretations,’

and ‘instructions to staff that affect a member of the

public,’ which the Freedom of Information Act contem-

plates should be indexed and made available to the pub-

lic, 5 U.S.C. § 552 (a) (2) (A), (B), and (C).“ We note

in this regard that, under the Board’s view as well as

that of prevailing authority, a determination by the

General Counsel not to litigate is not reviewable in ei-

ther state or federal courts. See Mr. Justice Douglas’

dissent in Amalgamated Association v. Lockridge, ——

U.S. ——, 77 LRRM 2501 (June 14, 1971). In addition,

we also note that your response of July 23 does not deny

that a regional office is required to follow a determina-

tion by the Advice Branch as to the disposition of a par-

ticualr matter and incorporate the rationale of such a

determination in the formal notification sent to the par-

ties. Indeed, the history of this particular case amply

demonstrates that the foregoing is the practice and policy

of the Board.

2. Contrary to your response of July 23, we do not

believe that Advice or Appeals memoranda are privi-

leged against disclosure under 5 U.S.C. § 552(b) (5). In

contrast to International Paper Co. v. Federal Power

Commission, 438 F.2d 1439 (2d Cir. 1971), such Advice

and Appeals memoranda are clearly “legally germane”,

determinative rather than “only advisory in character,”

and are not merely “preliminary” in nature. We reiter-

ate that we are not seeking either the Region’s request

for advice or any of the interna] deliberations of the

Advice Branch or the Region; we are seeking only the

final determination of the Advice Branch which made

mandatory the dismissal of the instant charge. Accord-

ingly, what we request would not inhibit candid inter-

agency discussions or delve in any manner into the mental

processes of Board agents. Finally, it is our opinion

that the information we have requested could be discov-

ered under Rule 26(b) of the Federal Rules of Civil

Procedure in a eivil suit against the Board and would,

therefore, “constitute memorandums or letters which

would . . . be available by law to a party other than an

agency in litigation with the agency”, 5 U.S.C. § 552

(b) (5).

3. Similarly, we do not believe that Advice or Ap-

peals memoranda are privileged against disclosure under

5 U.S.C. § 552(b) (7). Initially, the information we have

requested is not “compiled for law enforcement pur-

poses” since, by reason of the dismissal letter, no such

enforcement is contemplated. Moreover, we again note

that we are not requesting any of the investigatory files

of the Board or its internal deliberations. We are only

seeking the legal conclusion of the Advice Branch which

— a

resulted in the Region’s dismissal of this case. Accord-

ingly, what we have requested cannot in any manner

harm any court case the Board may hereafter file. In the

absence of such “imminent” harm, exemption 7 does not

permit a refusal to disclose information. See S.Rep. No.

813 on S. 1160 and Bristol-Myers v. F.T.C. 424 F. 2d

935 (1970).

4. While you make no assertion that the information

we have requested is not identifiable, nor would any

such assertion lie (see Wellford v. Hardin, 315 F.Supp.

175 (D.Md., 1970)), you do claim that some of the in-

formation requested is not maintained in the particular

form sought. As to Advice memoranda and the digest

or index of such determinations as requested in para-

graphs 2 and 3, pp. 2 and 3 of our letter of July 14,

your response indicates that such memoranda are “col-

lected and filed according to the issues raised in each

case. Therefore, since we believe for the reasons

already stated that such memoranda are required to be

disclosed under the Freedom of Information Act, our

previous request is clarified to encompass, in addition to

all Advice memoranda issued within the past five years

involving issues similar to those in the instant case as

described in our previous request, a listing of those issue

for which separate files of memoranda are maintained

by the Advice Branch. Your response states that “no

subject indek, compilation, or book of digests” is main-

tained for the appeal disposition letters sent to parties

by the Office of Appeals. Since such determinations are,

however, identifiable we believe that the fact “that to

find the material would be a difficult or time-consuming

task is of no importance” (Wellford v. Hardin, supra),

particularly as we have offered to pay any costs involved.

Alternatively, as to Appeals memoranda and the index

or digest of such determinations as requested in para-

graphs 2 and 3, at pages 2 and 3 of our July 14 letter,

we offer to make available a representative of this office

for the purpose of examining such memoranda in order

to compile the information previously requested. Such

representative, we request, should be provided access to

all Appeals determinations within the past five years so

that he may ascertain those cases involving issues simi-

lar to those in the instant case.

Please advise the undersigned of the time and place

the information described above will be made available

for inspection and/or copying and inform us of the

reasonable fees, if any, required to reimburse the Board

for the costs incurred in connection with this request.

Should you determine that any portion of this request

will not be granted, we would request that, pursuant to

Section 102.117(c) of the Board’s Rules, we be sent

prompt notice of such a determination accompanied by

a written statement of the reasons therefor.

Since the information sought to be elicited herein is

essential to the preparation of the appeal in the instant

case, we have concurrently herewith requested the Office

of Appeals to toll the time for filing said appeal pending

your ruling on the requests herein made.

Very truly yours,

LEDERER, Fox AND GROVE

By /s/ Lawrence M. Cohen

LAWRENCE M. COHEN

Attorneys for Sears,

Roebuck and Co.

Charging Party

LMC :hy

ce Mr. Irving M. Herman

Director, Office of Appeals

Mr. Charles M. Henderson

Regional Director, Region 19

—

ExHI RTT G“

[Logo]

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

Washington, D.C. 20570 Aug. 4, 1971

Lawrence M. Cohen, Esquire

Lederer, Fox and Grove

Chicago Title and Trust Building

Chicago, Illinois 60602

Re: Retail Clerks Union, Local No. 4,

Retail Clerks International

Association, AFL-CIO

(Sears, Roebuck and Co.)

Case No. 19-CB-1673

Dear Mr. Cohen:

This letter is in response to your letters of July 28

and 29, 1971, to Mr. Herman and myself, respectively,

and also confirms the August 2, 1971, telephone conversa-

tion between Mr. Miller of the Office of Appeals and you.

With regard to your letter of July 29, in which you

renewed your requests for the material sought in your

original letter of July 14, I must deny your requests,

since your new letter does not present any substantial

reasons for changing the views previously communicated

in my earlier letter.

However, since there may be some misunderstanding

on your part with respect to the issues you have raised,

some additional comments are in order. Thus, I note

that you characterize an Advice Branch memorandum

zs a “final determination” or a “legal conclusion”. In

this regard, I can only repeat what I said in my previous

letter, i.e., that Advice Branch memoranda are merely

guides for a Regional Director as to how a specific

case is to be handled and such memoranda reflect the

thought processes and legal analyses of the General Coun-

sel’s staff. Similarly, I note that you appear to be

under the impression that a Regional Office is required

“to incorporate the rationale of [an Advice Branch memo-

randum] in the formal notification sent to the parties.”

In fact, a Regional Director prepares his own letter to

the parties in virtually all cases in which he refuses

to issue complaint, including cases previously sent to the

Advice Branch. If there is an Advice Branch memo-

randum in a particular case, he uses that memorandum

only as a guide in preparing his letter.

Your letter of July 29 also makes certain requests

not previously made by you. With respect to your re-

quest for “a listing of those issues for which separate

files of memoranda are maintained by the Advice

Branch”, such request is denied. In my previous letter,

I explained to you my reasons for concluding that dis-

closure of Advice Branch memoranda is not required

under the Freedom of Information Act (5 U.S.C. Sec.

552). Based on that conclusion, I informed you that

such memoranda would not be disclosed to you, either

individually or in the collected form in which they are

used by the Advice Branch staff as a research tool.

For these same reasons, I am denying the aforementioned

new request.

I am also denying your request for access to all

Appeals determinations within the past five years. In-

sofar as your request includes cases in which an appeal

was sustained, such determinations are not “final opin-

ions” and there is therefore no requirement that they be

disclosed. With respect to cases in which an appeal was

denied, the requested materials would include several

thousand Appeals determinations. It is our view that

since this material does not have “precedential signifi-

cance”, the disclosure of such material is governed by

Subsection (3) of the Freedom of Information Act rather

than Subsection (2). Subsection (3) requires that one

requesting disclosure of agency records governed by that

section must provide a reasonably specific description

of the particular record sought. Since you have not

specified or identified these determinations in any way,

I believe there is no obligation on our part to honor

such a blanket request. I may add that we do not main-

tain a separate collection of Appeals determinations in

which an appeal is denied. Rather, all Appeals deter-

—

minations are collected chronologically, without regard

to whether an appeal was sustained or denied. Ac-

cordingly, in order to meet a request for final opinions“.

i. e., those in which an appeal was denied, it would be

necessary to separate such cases from those in which the

appeal was sustained in whole or in part. We could

not permit your representative to separate these two

types of cases since this would necessarily involve access

to nondisclosable materials, i.e., Appeals determinations

in which the appeal was sustained in the whole or in

part. Nor do I consider it warranted in the circumstances

to expend Agency time and effort for the performance

of this task, even if the Agency were subsequently reim-

bursed for the expenses involved.

With respect to your letter of July 28 to Mr. Herman,

I am denying your request for an extension of the time

within which your appeal must be filed in the above-

captioned case. Accordingly, such appea must be re-

ceived by the close of business, August 9, 1971.

Should you have any questions with respect to this

letter, please do not hesitate to call upon me.

Very truly yours,

/s/ Eugene G. Goslee

EUGENE G. GOSLEE

Acting General Counsel

EXHIBIT H“

| Logo |

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

Washington, D.C. 20570 August 20, 1971

Re: Retail Clerks Union, Local No. 4,

Retail Clerks International

Association, AFL-CIO

(Sears, Roebuck and Company)

Case No. 19-CB-1673

Lawrence M. Cohen, Esq.

Lederer, Fox & Grove

Chicago Title and Trust Building

Chicago, Illinois 60602

Dear Mr. Cohen:

Your appeal in the above matter has been duly con-

sidered.

The appeal is sustained. The Union’s refusal to bargain

with the Company following the latter’s withdrawal from

a multiemployer association raised issues warranting

Board determination. The investigation disclosed that

Sears had withdrawn from the Employers Association

prior to the first meeting between the Union and the

Association. Although Article XVIII of the existing agree-

ment between the Union and the Association contem-

plated a preliminary exchange of written proposals prior

to the initial meeting of the parties, and the evidence

showed that such proposals had been exchanged, Section

E of that Article, which stated that n jegotiation, con-

ciliation, arbitration or hearing on the issues . . . must

be commenced following] receipt of counternotice,” em-

phasis supplied], indicated that the parties had not in-

tended to consider such preliminary exchange of pro-

posals as constituting “actual bargaining negotiations”

within the meaning of Retail Associates, Inc., 120 NLRB

388, 395. See Seattle Automotive Wholesalers Associa-

tion, 140 NLRB 1393. Sears’ unequivocal withdrawal

from the Association prior to the first meeting was

therefore deemed timely.

Accordingly, the case is remanded to the Regional Di-

rector with instructions to issue an appropriate 8(b) (3)

complaint, absent settlement. All further inquiries should

be addressed to the Regional Director.

Very truly yours,

EUGENE G. GOSLEE

Acting General Counsel

By /s/ Irving M. Herman

IRVING M. HERMAN

Director, Office of Appeals

ec: (See next page.)

CERTIFIED MAIL

Re: Case No. 19-CB-1673

ec: Director, Region 19

Retail Clerks Union Local No. 4, 125 W. Granite,

Butte, Montana 59701

Sears, Roebuck & Co., 32 E. Granite St., Butte,

Montana 59701

Retail Clerks Intl. Assn., 2819 First Ave., Seattle,

Wash. 98121

— C. Raywid, Esq., 2011 I St., N.W., Wash.,

Exuisit “TI”

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

REGION 19

Case No. 19-CB-1673

RETAIL CLERKS UNION, LOCAL No. 4, RETAIL CLERKS

INTERNATIONAL ASSOCIATION, AFL-CIO

and

SEARS, ROEBUCK AND Co.

COMPLAINT AND NOTICE OF HEARING

It having been charged by Sears, Roebuck and Co.

(herein called Sears) that Retail Clerks Union, Local

No. 4, Retail Clerks International Association, AFL-

CIO (herein called Respondent) has engaged in, and is

engaging in, certain unfair labor practices affecting

commerce as set forth and defined in the National Labor

Relations Act as amended, 29 U.S.C. Sec. 151 et seq.,

herein called the Act, the General Counsel of the Na-

tional Labor Relations Board, on behalf of said Board,

by the undersigned Regional Director for Region 19,

acting pursuant to Section 10(b) of the Act and Sec-

tion 102.15 of the Board’s Rules and Regulations, Series

8, as amended, hereby issues this Complaint and Notice

of Hearing and alleges as follows:

1. The charge herein was filed on April 9, 1971, and

a copy thereof was served upon Respondent by regis-

tered mail on or about that same date.

2. a. Sears is a New York corporation engaged in

the operation of retail] department stores throughout the

United States, including the state of Montana.

b. Sears’ Butte, Montana Department Store is the

only store involved in this proceeding.

c. During the past year, in the operation of its Butte,

Montana store, Sears’ gross volume of business exceeded

000

$500, and it purchased directly from outside the

ontana products valued in excess of $100,000.

Sears is, and has been at all times material herein,

Employer within the meaning of Section 2(2) of the

Act, engaged in commerce within the meaning of Section

2(6) and (7) of the Act.

4. Respondent is, and has been at all times material

herein, a labor organization within the meaning of Sec-

tion 2(5) of the Act.

5. a. Silver Bow Employer’s Association (herein called

the Association) is, and has been at all times material

herein, an association of employers in and around Butte,

Montana, established and existing for the purpose of,

inter alia, representing employers in negotiations with

labor organizations.

b. On August 15, 1968, the Association and Respondent

executed a collective bargaining agreement covering cer-

tain employees of the members of the Association, then

including Sears, Butte store. Said agreement had an

effective date of May 1, 1968 and expired April 30,

1971.

6. a. On March 23, 1971, Sears, by telegram, notified

Respondent arid the Association that it was resigning

from, and withdrawing as an employer member of, the

Association.

b. Sears notification of withdrawal from the Associa-

tion was communicated to both the Association and

Respondent prior to the commencement of negotiations

for a new collective bargaining agreement between Re-

spondent and the Association.

7, The following employees of Sears’ Butte store con-

stitute a unit appropriate for purposes of collective bar-

gaining within the meaning of Section 9(b) of the Act:

Department heads, salespeople, window trimmers,

mail order department employees, floor walkers, mil-

liners, cashiers, bundle wrappers, collectors, advertis-

ing writers, alteration department employees, ship-

ping and receiving clerks, stock clerks, checkers,

and all persons who are actively engaged in handling

or selling merchandise, including both journeymen

and apprentice grades, exclusive, however of: per-

sons regularly employed eight (8) hours or less per

week, errand boys, office employees, janitors, sales-

men who spend more than sixty (60%) per cent of

the time outside of the city, and outside salesmen

soliciting on a commission basis, and further, exclu-

sive of supervisory employees within the meaning of

the National Labor Relations Act, as amended.

8. Respondent is the only recognized exclusive collec-

tive bargaining representative of the employees in the

Sears’ Butte store unit described above in paragraph 7,

within the meaning of Section 9(a) of the Act.

9. Since on or about March 23, 1971, Respondent

has refused to bargain separately with Sears in the

bargaining unit described above in paragraph 7 with

respect to terms and conditions of employment, and

has insisted that Sears is bound by any agreement

reached by and between Respondent and the Association,

notwithstanding the fact that Sears effectuated a timely

withdrawal from the Association as set forth in para-

graph 6 above.

10. By its acts and conduct described above in para-

graph 9 and by each of said acts, Respondent did re-

fuse, and is refusing, to bargain collectively with Sears

and thereby did engage in, and is engaging in, unfair

labor practices affecting commerce within the meaning

of Section 8(b) (3) of the Act.

11. The acts of Respondent described in paragraph 9

above, occurring in connection with the operations of

Sears as described above in paragraph 2, have a close,

intimate, and substantial relation to trade, traffic and

commerce among the several states of the United States,

and have led and tend to lead to labor disputes burdening

and obstructing commerce and the free flow of com-

merce, and constitute unfair labor practices affecting

commerce within the meaning of Section 8(b)(3) and

Section 2(6) and (7) of the Act.

PLEASE TAKE NOTICE that on the 9th day of No-

vember 1971, at 10:00 a.m. in the Grand Jury Room,

—— —— —- — —

314, Federal Building, Butte, Montana, a hearing will

be conducted before a duly designated Trial Examiner

of the National Labor Relations Board on the allegations

set forth in the above Complaint, at which time and

place you will have the right to appear in person, or

otherwise, and give testimony. Form NLRB-4668, Sum-

mary of Standard Procedures in Formal Hearings Held

Before the National Labor Relations Board, is attached.

YOU ARE FURTHER NOTIFIED that pursuant to

Sections 102.20 and 102.21 of the Board’s Rules and

Regulations, Respondent shall file with the Regional Di-

rector for Region 19 an original and four copies of an

answer to said Complaint within ten (10) days from the

service thereof and that should Respondent fail to so do,

all of the allegations in the Complaint shall be deemed

to be admitted to be true and may be so found by the

Board.

Pursuant to Section 102.22 of the Board’s Rules and

Regulations, upon my own motion, I am extending the

time in which to file answer to October 1, 1971.

Dated this Ist day of September 1971, at Seattle,

Washington.

CHARLES M. HENDERSON

Charles M. Henderson, Regional Director

National Labor Relations Board, Region 19

1511 Third Avenue, 1000 Republic Building

Seattle, Washington 98101

[Caption omitted in Printing]

DEFENDANTS’ ANSWER TO AMENDED

COMPLAINT FOR DECLARATORY

JUDGMENT AND INJUNCTION

The General Counsel of the National Labor Relations

Board hereby answers the amended complaint as follows:

(1) Admits that this action arises under 5 U.S.C. Sec.

552;

(2) Admits that this Court has jurisdiction over this

action under 5 U.S.C. Sec. 552;

(3) Avers that this action is not appropriately a class

action under Rule 23 (b) (2) since the questions of law

and fact are not common to the class sought to be rep-

resented :

(4) Admits the allegations of paragraph 4;

(5) Admits the factual allegations of paragraph 5,

but denies that the National Labor Relations Board is

appropriately a defendant in this suit;

(6) Admits the allegations of paragraph 6;

(7) Admits the factual allegations of paragraph 7,

namely, that Arnold Ordman was General Counsel of the

National Labor Relations Board from 1963 to and in-

cluding June 25, 1971, and that Peter G. Nash is and has

been General Counsel at all times since August 24, 1971,

but denies that the practice of Nash with respect to the

disclosure of any agency records which may be in-

volved in the instant complaint is the same as that of

Goslee ; .

(8) Admits the factual allegations of paragraph 8

with respect to the function of the Regional Advice Branch

as set forth in 32 F.R. 9588, Section 202.1.1 and admits

that the Regional Advice Branch issues memoranda to

the Regional Directors, but denies that it issues manda-

tory instructions with respect to the final disposition of

charges filed with the General Counsel or the issuance

of unfair labor practice complaints;

(9) Admits the allegations of paragraph 9 with respect

to the duties of the Office of Appeals as set forth in

Section 102.19 of the Board’s Rules and Regulations

~~ mers ees

and Section 202.1.2 of 32 F.R. 9588, but denies that the

Office of Appeals determinations are always communi-

cated to the Regional Director by means of a memorai-

dum;

10) Admits the allegations of paragraph 10 to the

effect that it has been the past practice of the Office of

General Counse! to refuse to make the requested informa-

tion available on the grounds that it is privileged from

disclosure under the Freedom of Information Act, but

denies all other allegations of paragraph 10;

(11) Admits the factual allegations of paragraph 11,

but denies that the Regional Director for the Nineteenth

Region acted pursuant to mandatory instructions from the

Advice Branch in dismissing the complaint;

(12) Admits the allegations of paragraph 12;

(13) Admits the allegations of paragraph 13;

(14) Admits the allegations of paragraph 14;

(15) Denies that the General Counsel is depriving

plaintiff, or the class it seeks to represent, of informa-

tion to which there is a right of access under the Freedom

of Information Act;

(16) Admits that this Court has jurisdiction to de-

termine whether the plaintiffs have a right to the re-

quested information under the Freedom of Information

Act, but denies that a class action appropriately lies

and denies that a claim has been made out on which

a declaratory judgment can appropriately be entered by

this Court;

(17) Denies all other allegations of the complaint not

herein specifically admitted.

Further answering, the General Counsel states the

following:

(1) The amended complaint should be dismissed as to

the defendant, National Labor Relations Board, since

it is not appropriately a party defendant. Section 3(d)

of the National Labor Relations Act delegates to the

General Counsel final, unreviewable authority over the

investigation of charges and the issuance of complaints

and all the requested information relates solely to the

performance of that duty by the General Counsel;

(2) The amended complaint should also be dismissed

as to defendant Goslee. The amended complaint was

filed on October 14, 1971, Goslee was not the Acting

General Counsel at that time, and has not been since

August 24, 1971;

(3) Peter G. Nash was at the time of the filing of the

amended complaint and still is, the General Counsel of

the National Labor Relations Board. Since the action

is against Goslee in his capacity as General Counsel,

Peter G. Nash should be substituted for Goslee as de-

fendant;

(4) The General Counsel has stated to counsel for

plaintiff Sears by letter of this date that he will make

available the Advice memoranda for the past 5 years

in cases similar to those involved in plaintiff Sears’

case (Board Case No. 19-CB-1973), as defined with more

particularity in Sears’ request for information (Ex. B to

the Amended Complaint). Deleted from the memoranda

will be all identification of witnesses, confidential sources

of information and other matters of “security sensitive”

nature. Memoranda in current cases will be made avail-

able when litigation of the case at the agency level has

been completed (See, Exhibit 1, attached hereto) ;

(5) The General Counsel has concluded that the letters

sent to parties by the Office of Appeals are public in-

formation which will be made available for inspection

and copying. He has offered to make available to plain-

tiff all such letters for the past 5 years in cases involving

similar issues as described in paragraph (4) above. In

addition, the General Counsel has offered to make avail-

able memoranda which the Office of Appeals prepares in

some of these cases and sends to the regional directors,

again subject to completion of litigation of these cases

before the agency (See, Exhibit 1, attached hereto) ;

(6) The General Counsel has also offered to make

available to plaintiff the index of Advice memoranda

maintained for internal use. (See, Exhibit 1, attached

hereto) ;

(7) The Office of Appeals has not heretofore main-

tained a subject index which would allow quick retrieval

of information, in the form presently described by plain-

2 8

tiff. Nevertheless, the General Counsel has offered to

search the chronological files and make the requested

Appeals’ materials available. However, since it is es-

timated that the cost of such a search will be sub-

stantial, the General Counsel has offered to meet with

plaintiff Sears to discuss whether the information re-

quested may be furnished at a lesser cost in time and

money than that presently anticipated by the Office of

Appeals;

(8) No injunction should be entered since the Gen-

eral Counsel is withholding no information from plaintiff

— * is not privileged from disclosure by 5 U.S.C. Sec.

WHEREFORE, defendants demand judgment that the

complaint herein be dismissed.

my at Washington, D.C. this 3rd day of February

MARCEL MALLET-PREVOST

Assistant General Counsel

National Labor Relations Board

By /s/ Glen M. Bendixsen

GLEN M. BENDIXSEN

CHIEF OF SPECIAL LITIGATION

Washington, D.C. 20570

Telephone: (202) 382-5401

Co-counsel: CHARLES N. STEELE

(Ext. 6164)

JANET Morris

(Ext. 4087)

Attorneys for Defendant

EXHIBii 1

| Logo}

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

Washington, D.C. 20570 February 3. 1972

Lederer, Fox and Grove

Att’n: Lawrence M. Cohen

Chicago Title and Trust Building

111 West Washington Street

Chicago, IIinois 60602

Re: Sears, Roebuck and Co. v. National Labor

Relations Board

Civil Action No. 1571-71 (D.C.D.C.)

Board Case No. 19-CB-1673

Dear Mr. Cohen:

I have decided to make available for inspection and

copying all memoranda from the Regional Advice Branch

to the Regional Directors for the past five (5) years in

cases which, like Board Case No. 19-CB-1673, involve the

issue of the timeliness of a withdrawal from multi-em-

ployer bargaining. We will delete from these memoranda

all identification of witnesses, confidential sources of

information and matters of “security sensitive nature.”

Moreover, I will not make these memoranda available

until litigation of the case before the agency has been

completed. Thus, in cases where the Regional Office

dismisses the complaint, the Advice memoranda will

not be made available unti] the time for an appeal to

the Office of Appeals has run or an appeal has been

denied pursuant to Sec. 102.19 of the Board’s Rules and

Regulations, 29 C.F.R. 102.19. In cases where a e m-

plaint issues (including complaint after sustaining an

appeal) the Advice memoranda will not be made available

until after the Board’s Decision and Order has issued,

which shall include the normal time for filing a motion

for reconsideration pursuant to Section 102.48 (d) of the

Board’s Rules and Regulations, 29 C.F.R. Sec. 102.48(d).

In cases which are settled at any stage of the proceeding

(including formal and informal settlements, as well as

out-of-Board adjustments), the Advice memoranda will

be made available only after the parties have complied

with the terms of the settlement agreement.

I am also making available the Advice Branch index

in its present form. However, we wish to caution you

that the index was prepared and has been maintained

solely for the guidance of agency personnel in their re-

search of cases submitted, and may incompletely identify

cases on the subject matter in question. The memoranda

and index will be made available to you for inspection

and copying at a date mutually convenient to you and

Mr. Gerald Brissman, Assistant General Counsel in

charge of the Advice Branch. Or, if you prefer, we

will send you xerox copies of the relevant memoranda

and index and charge you for the cost of copying.

Letters sent to the parties by the Office of Appeals

are public information, and will, accordingly, be made

available for your inspection and copying. I will also

make available the memoranda sent by the Office of

Appeals to the regional directors analyzing appeals cases.

Such memoranda are not, however, prepared in all cases.

Here again, as with Advice memoranda, release will be

authorized only after litigation of the case before the

agency is complete. That is, memoranda sent to Re-

gional Directors authorizing dismissal of a complaint

will be immediately available; those authorizing issuance

of a complaint will become available after compliance

with a settlement agreement or after the Board’s De-

cision and Order has issued and the time for filing a

motion for reconsideration has run.

The Office of Appeals, however, has never maintained

a subject matter index of either the letters or the memo

randa, indexing them instead by their Board Case num-

ber and in a chronological file. Accordingly, retrieving

these materials will require considerable time and effort,

since it will require that agency personnel go through

the chronological files, read the memoranda to identify

those pertaining to your request and delete any matters

which identify witnesses, or reveal confidential sources

of information on matters of a “security sensitive na-

ture.” Thus, though these materials can be located,

Irving Herman, Director of the Office of Appeals, es-

timates that, once agency personnel can be assigned

to the task, it will take roughly three man weeks to

separate them out from the approximately 7000 to 8000

cases involved, at a cost that may run as high as $3000.

In view of the high costs involved, I or one of my

representatives would be glad to meet with you to ex-

plore whether your request could be satisfied with less

expenditure of time and money.

Finally, I would like to call your attention to the fact

that, while I am agreeing to make the above documents

available I do not consider that this agency is bound

in all instances to do so and, further, I consider them

neither binding authority nor even authoritative prece-

dent for decisions made in either current or future

cases.

Very truly yours,

/s/ Peter G. Nash

PETER G. NASH

General Counsel

[Caption omitted in Printing

STATEMENT OF MATERIAL FACTS AS T0

WHICH THERE IS NO GENUINE ISSUE

1. This Court has jurisdiction over this action under

5 U.S.C. § 552.

2. Sears, Roebuck and Co. (hereafter Sears“) is a

domestic corporation organized and existing under and

by virtue of the laws of the State of New York.

8. Defendant National Labor Relations Board is an

independent Federal Agency created and existing under

the Labor Act, 29 U.S.C. 141, et seg., with its principal

offices in Washington, D.C.

4. Defendant Eugene G. Goslee (hereafter “Goslee”)

was, during the period from June 25, 1971 to and in-

cluding August 24, 1971, the Acting General Counsel,

and Arnold Ordman and Peter G. Nash (hereafter

“Ordman” and Nash“) were during the periods from

1963 to and including June 25, 1971, and from Au-

gust 24, 1971 to date, respectively, the General Coun-

sel of the National Labor Relations Board, an office

created by and existing under Section 3(d) of the Na-

tional Labor Relations Act (hereafter the Act“), with

principal offices in Washington, D.C., and as such were

empowered, on the Board’s behalf, to issue or refrain from

issuing unfair labor practice complaints under Section

10 of the Act (a power which has been delegated to the

Board’s Regional Directors, see Section 102.15 of the

Board’s Rules and Regulations, Series 8, as amended,

29 C.F.R. 102.15) and, pursuant to Section 102.117(c)

of the Board’s Rules and Regulations, Series 8, as

amended, 29 C.F.R. 102.117(c), to receive and answer

requests for certain agency records.

5. On or about April 9, 1971, Sears filed an unfair

labor practice charge with the Regional Director of

the Nineteenth Region of the National Labor Relations

Board (hereafter the “Regional Director”) against Re-

tail Clerks Union No. 4, Retails Clerks International

Association, AFL-CIO (hereafter the Union“), entitled

Case No. 19-CB-1673, alleging that by various acts and

conduct the Union had violated and is violating Section

8 (b) (3) of the Act, and seeking issuance of a complaint

by the Regional Director, acting for and on behalf of the

Board’s General Counsel, against the Union.

6. On or about April 27, 1971, the Regional Director

referred said charge to the Advice Branch of the Office

of the General Counsel in Washington, D.C. The Advice

Branch has responsibility, under the supervision of the

Board’s General Counsel, to review requests by the

Board’s Regional Directors for advice and to formulate

policy on novel or unsettled procedural and substantive

matters arising in unfair labor practice cases. Section

201.11 of the Board’s Statements of Procedure, Series 8,

as amended, 32 C.F.R. 9588. In this capacity, the Ad-

vice Branch issues instructions to said Regional Directors

with respect to final disposition of unfair labor practice

charges and the issuance of unfair labor practice com-

plaints. Said instructions, along with the precedents,

theories and analyses in support thereof and occasional

references to relevant prior Advice determinations, are

communicated to the Regional Directors by means of a

memorandum (hereafter “Advice Memorandum”). Ex-

hibits 10, 11 and 12 attached to and made a part hereof,

as described hereafter, are representative examples of

said Advice Memorandum.

7. On or about June 10, 1971, after receipt of an

Advice Memorandum from the Advice Branch, the Re-

gional Director informed Sears that he was refusing to

issue a complaint with respect to the charges filed by

Sears in Case No. 19-CB-1673. He further notified Sears

that said determination would be finai unless timely re-

view thereof was sought before the Office of Appeals of

the Office of the General Counsel in Washington, D.C.

pursuant to the applicable rules and regulations of the

Board. A true and correct copy of said letter is at-

tached to and made a part of the Amended Complaint

as Exhibit “A”.

8. The Office of Appeals has responsibility to review

appeals from the refusal of a regional director to issue

an unfair labor practice complaint and, under the super-

vision of the Board’s General Counsel, to sustain or

reverse said refusal. Section 202.1.2 of the Board’s State-

ments of Procedure, Series 8, as amended, 32 C.F.R.

9588; Section 102.19 of the Board’s Rules and Regula-

tions, Series 8, as amended, 29 C.F.R. 102.19. Said

determination of the Office of Appeals, along with the

precedents, theories and analyses in support thereof

and occasional references to relevant prior Appeals de-

terminations, are ordinarily communicated to the Re-

gional Directors by means of a memorandum (hereafter

“Appeals Memorandum”). Exhibits 3, 4, 5, 6, 7, 8 and

9 attached to and made a part hereof, as described here-

after, are representative examples of said Appeals Memo-

randum.

9. On or about July 14, 1971, Sears, acting under

the Freedom of Information Act and in compliance with

the applicable Board rules, filed a request for informa-

tion (hereinafter request“) with the Board through

Goslee. In this request, Sears requested that Goslee, in

accordance with the Freedom of Information Act, make

available for public inspection and/or copying, the Ad-

vice Memoranda in Case No. 19-CB-1673 as well as other

relevant Advice and Appeals memoranda, and the indices

thereof, as more fully described in the request, a true

and correct copy of which is attached and made a part

of the Amended Complaint as Exhibit B“.

10. As of July 14, 1971, and continuing to February

3, 1972 as hereafter described, it was the practice of

the Office of the General Counsel to refuse to make

available to the Public Advice and Appeals Memoranda,

and indices thereof, on the grounds that such informa-

tion is privileged from disclosure under the Freedom of

Information Act.

11. On or about July 22, 1971, Goslee, pursuant to

the practice described in paragraph (10), by teletype to

Sears, and confirmed by a letter of explanation dated

the next day, refused to make available to Sears any of

the information sought in its request of July 14, 1971

and advised Sears that the Regional Director would

inform Sears shortly. . . [and] with greater par-

ticularity” the reasons for his refusal to issue complaint.

True and correct copies of the teletype and letter are

attached to and made a part of the Amended Complaint

as Exhibits “C” and “D”, respectively.

12. On or about July 28, 1971, acknowledging that

he was acting pursuant to the direction of Goslee as set

forth in Goslee’s teletype of July 22, 1971, the Regional!

Director, again acting in accord with the aforesaid in-

structions of the Advice Branch, informed Sears “with

greater particularity” the reasons for refusing to issue

complaint and set forth additional reasons for that de-

cision. A true and correct copy of said letter is attached

to and made a part of the Amended Complaint as Ex-

hibit E“.

13. Ox or about July 29, 1971, Sears filed a renewed

request for information (hereinafter “renewed request“

with Goslee in which Sears repeated its request for such

information under the Freedom of Information Act, as

more fully described in the true and correct copy of the

renewed request attached to and made a part of the

Amended Complaint as Exhibit F“.

14. On or about August 4, 1971, Goslee, pursuant to

the practice described in paragraph 10 above, by letter

to Sears, refused to make available to Sears any of the

information sought in the renewed request. A true and

correct copy of said letter is attached to and made a

part of the Amended Complaint as Exhibit “G”. In order

to comply with the applicable time requirements and

expressly reserving its rights involved herein, Sears

under protest then timely filed its appeal in Case No.

19-CB-1673 with the Office of Appeals.

15. On or about August 20, 1971, the Office of Ap-

peals advised Sears that its appeal had been sustained,

and that the matter had been remanded to the Regional

Director with instructions to issue an appropriate com-

plaint on its behalf. A true and correct copy of said

letter is attached to and made a part of the Amended

Complaint as Exhibit “H”. Pursuant to said instruc-

tions, the Regional Director did thereafter issue for and

on behalf of the General Counsel a complaint, a true

and correct copy of which is attached to and made

a part of the Amended Complaint as Exhibit - x

er, 22 22 „ „

—

—— Stree

ion

not been made available to Sears

8 ! that it has been provided as de-

scribed in a letter from Nash to Sears dated February

3. 1972. In said letter, a true and correct copy of which

8 a part of the Answer as Exhibit

also agrees to make available to Sears Advice

and Appeals Memoranda, and the index of Advice Memo-

“security sensitive” nature as defined by the General

Counsel; and memoranda in current cases, including that

in Case No. 19-CB-1673, are to be made available to

Sears only when litigation of the case before the Board

has been completed. Nash further advises Sears that

ever, will be made available to Sears to retrieve the

information requested, as hereafter described.

17. The Committee on Practice and Procedure of the

American Bar Association’s Section of Labor Relations

Law (hereafter the “ABA”), has repeatedly requested

that the General Counsel of the Board make available

to the public, under the Freedom of Information Act,

Advice and Appeals Memoranda and indices thereof. See

the 1970 Report of the Committee, pp. 5-10, and 1971

Report of the Committee, pp. 233-7 and 242-6, true and

correct copies of which are attached to and made a

part hereof as Exhibits 1 and 2.

18. At a meeting of the Committee on January 27,

1972, representatives of the General Counsel disclosed

that Nash, pursuant to a renewal of the requests set

forth in the preceding subparagraph, had decided to

make available t the public Advice and Appeals Memo-

randa, subject to certain limitations to be discussed with

the Committee, and would prepare an index thereof.

Following the disclosure of this policy change, on or

about February 3, 1972, Sears wrote to Nash. A true

and correct copy of said letter is attached to and made a

part of the Smetana affidavit as Exhibit “M” thereto.

This letter was supplemented, following meetings be-

tween Sears’ representatives and Nash and other rep-

resentatives of the General Counsel at which the Sears’

representatives again stressed such relevancy by letters

from Sears to Board Associate General Counsel Irving

and Nash dated February 4 and 8, 1972, respectively.

True and correct copies of these letters are attached

to and made a part of the Smetana affidavit as Exhibit

“QO” and P“ thereto.

19. By letter of February 8, 1972, Nash submitted

to Sears certain Advice Memoranda, an index to Advice

Memoranda, advised that other Advice Memoranda would

be supplied “as soon as possible”, and further advised

that, as there was no index of Appeals Memoranda,

procedures for their inspection would have to be “worked

out”. A true and correct copy of this letter is attached

to and made a part of the Smetana affidavit as Exhibit

“Q” thereto.

20. By letter dated February 9, 1972, Sears advised

Nash that Sears would make its own personne! available

to assist in retrieving the approximately 7,000 to 8,000

Appeals Memoranda which Nash had indicated would

be available to Sears. In said letter, Sears also objected

that it had not received identical copies of the Advice

Memoranda requested but, instead, a sanitized version

thereof which, in its opinion, was contrary to the re-

quirements of the Freedom of Information Act. A true

and correct copy of said letter is attached to and made

a part of the Smetana affidavit as Exhibit R“ thereto.

21. Commencing on February 16, 1972, and virtually

continuously thereafter to date, representatives of Sears

have worked at the offices of the Board in Washington,

D.C. to review the Appeals and Advice Memoranda that

have been made available. The representatives of Sears

have worked in accord with the instructions of the rep-

227 CIPO ES ET AF

resentatives of the General Counsel, to wit: (1) the

decisions have been examined without disturbing their

original order; (2) no written notes have been made

on any substantive matters; (3) unessential conversa-

tions with Board personnel have been avoided. In the

course of the investigation, for the first time, Sears

representatives observed that a significant number of

the Appeals Memoranda inspected and deemed pertinent

to the issues presented in 19-CB-1673 were incomplete

in that they relied upon the “circumstances of the case”

without delineating those circumstances. Exhibits 3, 4

and 5 attached to and made a part hereof are true and

correct copies of Appeals Memoranda that were made

available to Sears and are representative of such cases.

In addition, other Appeals memoranda inspected were

incomplete in that they incorporated by reference and

relied upon provisions in various extraneous documents

without describing or attaching to the memoranda such

other documents. Exhibits 6, 7 and 8 attached to and

made a part hereof are true and correct copies of Appeals

Memoranda that were made available to Sears and are

representative of such cases. Exhibit 9 attached to and

made a part hereof is a true and correct copy of an

Appeals Memoranda that was made available to Sears

and is the sole example, in all the Appeals Memoranda

investigated, of any contrary practice. Exhibits 10, 11

and 12 attached to and made a part hereof are true

and correct copies of Advice Memoranda that have been

made available to Sears.

22. As a result of observations described in the pre-

ceding paragraph, by letter dated March 1, 1972, Sears

requested Nash make available to Sears, under the

Freedom of Information Act, the “underlying data and/

or documentation” necessary to intelligently assess those

memoranda which it had been discovered were pertinent

to Case No. 19-CB-1673 and which referred to such

data and documentation. The nature of such data and

documentation, e.g., collective bargaining agreements or

similar documents upon which the pertinent memoranda

relied and copies of the underlying regional directors’

decisions from which the appeals had been taken, was

also set forth in said letter. A true and correct copy

of said letter to Nash is attached te and made a part

hereof as Exhibit 13. By letters dated March 14 and

April 11, 1972, true and correct copies of which are

attached hereto and made a part hereof as Exhibits

14 and 15, Sears clarified its request that various Advice

memoranda and Appeals letters and memoranda be made

available.

23. By letter dated March 7, 1972, Nash advised

Sears that he was denying Sears’ request for the addi-

tional information sought in its letter of March 1, 1972.

Nash further noted that various matters had been de-

leted from the Appeals memoranda which had been made

available. A true and correct copy of this letter is

attached hereto and made a part hereof as Exhibit 16.

24. The hearing in Case No. 19-CB-1673 has been

continued to date and, following issuance of this Court’s

preliminary injunction enjoining the Board from proceed-

ing in Case No. 19-CB-1673 until Sears has had a

reasonable time to (i) inspect and analyze that in-

formation which has been made available; (ii) resolve the

still unresolved dispute as to the remainder of the in-

formation sought; and (iii) inspect and analyze such

additional information if it is made available, the Re-

gional Director postponed indefinitely the hearing in Case

No. 19-CB-1673.

25. By letter dated May 17, 1972, Sears advised Nash

of the current status of its investigation and analysis

of the Advice and Appeals memoranda received. In said

letter, Sears again objected that it had not received

the underlying documentation requested and to the de-

letion of various information from said memoranda. Ad-

ditionally, Sears specified the reasons relied upon to sup-

port such objections. A true and correct copy of said

letter is attached to and made a part hereof as Exhibit

17.

—— Ter —

Dated at Washington, D.C. this 22nd day of May 1972.

GERARD C. SMETANA

925 South Homan Avenue

Chicago, IIlinois 60607

ALAN RAYWID

COLE, ZYLSTRA & RAYWID

2011 Eye Street, N.W.

Washington, D.C.

LAWRENCE M. COHEN

LEDERER, Fox & GROVE

111 West Washington Street

Chicago, Illinois 60602

Attorneys for Plaintiff

Of Counsel:

CoLE, ZYLSTRA & RAYWID

2011 Eye Street, N.W.

Washington, D.C.

LERDERER, Fox & GROVE

111 West Washington Street

Chicago, Illinois 60602

EXHIBIT 1

PROCEDURE UNDER THE NATIONAL LABOR

RELATIONS ACT (1970)

4. BOARD DECISIONS

At the present time the Board is two years behind in

publishing its decisions in bound volumes. The Board’s

Liaison Committee expressed deep concern over the prob-

lem of delay and observed that the inconvenience experi-

enced by the Labor Bar was shared by the Board person-

nel as well. The Liaison Committee indicated that a

basis for long-term improvement, however, has been

developed. The Government Printing Office has begun

the publication of Board decisions by an electronic photo-

composition method which should reduce the publication

time to approximately three to five months following is-

suance of the Board’s slip decisions.

Implicit, however, in coping with the problem of de-

lay has been the fact that the costs of printing and pub-

lication must be borne by the Board out of its general

budget. In view of the fact that a ceiling has been

placed on the number of employees which the Agency

may retain, and with an increase in case-load and a de-

crease in the budget, the first employees to be released

are the non-case handling personnel. Thus, the allevia-

tion of this aspect of the problem of delay is directly

tied to budgetary considerations and the availability of

funds to arrange for employment and allocation of nec-

essary personnel to engage in editing, proofreading, copy

work, etc. The Board indicated that even with the nec-

essary funds, it would take about two years to eliminate

the publication backlog. In the interim there is hope

that some measurable and steady reduction of delays in

publication can be made notwithstanding increasing costs

and budgetary limitations.

5. WEEKLY SUMMARY (Rules and Regulations)

The Board’s Division of Information prepares a Week-

ly Summary of cases which is available to anyone upon

request. At your Committee’s suggestion, the Board’s

Liaison Committee agreed to give serious consideration

to publication of changes of Rules and Regulations in

the Weekly Summary, thereby giving practitioners the

text of such changes earlier than they would otherwise

be made available through the services of the Govern-

ment Printing Office.

The foregoing discussion dealt with areas and ma-

terials which the Board has prepared, updated and made

available to the public in keeping with the spirit of the

Freedom of Information Act. The following discussion

deals with areas where to date the Board has not made

available information required by the Act.

A. Index of Unpublished Material—Your Committee

has repeatedly sought to persuade the Board to make

available an index of unpublished material. The Board

has steadfastly asserted that it is not feasible to pre-

pare a “meaningful” index, either because the material

would be so general as to be of minimal value or, if

made specific, would thereby disclose the substance of

the material which, in the Board’s view, would violate

its obligation of non-disclosure. The Board also feared

that publication of such an index would encourage litiga-

tion and would place the Board in the forefront of an

area where, in the Board’s view, other agencies of gov-

ernment have been disinclined to enter. The Board also

noted that any work which would be involved in the

consideration or preparation of an index or other materi-

als sought under the Freedom of Information Act would

have to be evaluated in the light of the reduction in the

Board’s 1971 budget which would necessarily reflect itself

in the reductions of staff personnel. The Board stressed

that with a projected 5% increase in case load, coupled

with the lower budget, in the absence of some specific

appropriation or special earmarking of funds to deal

with Freedom of Information Act responsibilities, it

would continue to place primary emphasis in staff as-

signments to personnel engaged in the processing and

handling of cases.

Your Committee continues to adhere to its previous

position that the Freedom of Information Act imposes

an affirmative obligation for disclosure and that even in

the absence of any such obligation, the Board should pro-

vide for public access to all materials which would not

interfere with, or otherwise prejudice the operations of

the agency. While your Committee appreciates and rec-

ognizes the practical problems which budgetary limita-

tions have posed for the Board, the Freedom of Infor-

mation Act, like the NLRA itself, is federal law and Con-

has directed the Board to comply with its provi-

sions.’ While the Board may be required to make some

accommodations and adjustments in order to discharge

its varied responsibilities, pending Congressional relief

through further appropriations, your Committee believes

the Board should immediately undertake the preparation

of an index of unpublished material.

B. Advice and Appeals—Your Committee also request-

ed the Board to prepare an index of all determinations

rendered by the General Counsel on cases submitted to

the Advice Branch and the Office of Appeals, and that

the Board make available, upon request, copies of Advice

and Appeal Memoranda. Since the Committee’s request

for an Advice and Appeals Index and copies of such

agency determinations was raised for the first time this

past year, a more detailed discussion would appear war-

ranted.

First, it should be clearly recognized that what your

Committee is seeking are copies of all Memoranda or oth-

er documents reflecting decisions, recommendations, in-

terpretations or policies formulated by the Advice Branch

and by the Office of Appeals. Where the Advice Branch

The NLRB has been admonished not “to effectuate the policies

of the Labor Relations Act so single-mindedly that it may wholly

ignore other and equally important Congressional objectives. Fre-

quently the entire scope of Congressional purpose calls for careful

accommodation of one statutory scheme to another, and it is not

too much to demand of an administrative body that it undertake

this accommodation without excessive emphasis upon its immediate

task.” Southern Steamship Co. v. N.L.R.B., 336 U.S. 31, 47.

- a = — — —

2 +

rr a rr

directs the Regional Director to issue a complaint, or

where a Regional Director’s dismissal is reversed on ap-

peal and a complaint is subsequently issued, the subject

matter, theory, and interpretation will ultimately be

ventilated through the course of hearing, Trial Examiner

and Board decisions, and perhaps review and adjudica-

tion in the courts. It is in all the remaining cases,

however, where the General Counsel either through the

Advice Branch or through the Office of Appeals deter-

mines that issuance of complaint is not warranted, and

that such determination constitutes final agency action

of precedential import. As Professor Davis stated in his

book, Discretionary Justice (p. 206):

. .. Since many problems get no further in the

Board’s machinery than the Office of Appeals, opin-

ions of that Office are the only available precedents

on some questions. They are indexed and freely

used within the office, along with similar opinions

given by the Advice Branch of the General Counsel’s

Office in response to requests from Regional Officers

for guidance on questions of law and policy. From

the Advice and Appeals Opinions, the General Coun-

sel’s Office compiled a ‘Book of Digests’ for the

guidance of the staff on issues about which the

General Counsel’s decisions constitute the only rele-

vant law... .”

Your Committee believes that these “precedents” consti-

tute precisely the kinds of “final opinions, statements of

policy and interpretations,” and “instructions to staff

that affect a member of the public,” which the Freedom

of Information Act contemplates should be indexed and

made available to the public, 5 U.S.C. § 552(a) (2) (A),

(B), and (C).?

Cf. Internal memoranda prepared by the General Services Ad-

ministration which, on their face, are similar to memorandum pre-

pared by the Office of Appeals and which the 9th Circuit deter-

mined to be within the disclosure requirements of § 552(a)(2)(B),

Benson v. GSA, 289 F.Supp. 590, 591 (N.D. Wash. 1968), 415 F.2d

878, 881 (9th Cir. 1969). Compare also the “no action” letters pre-

pared by staff personnel of the Security and Exchange Commission

which, as is true of the Advice and Appeals memoranda, indicate

There should not be any need to extensively elaborate

on the point that a determination by the Genera] Counsel

not to litigate not only constitutes the kind of “final

agency action” which affects members of the public, but

that members of the public have an abiding need to re-

view such determinations to ascertain what “policies”

and “law” the Office of the General Counsel is pursuing.’

Moreover, since the policy of the Information Act is to

provide ready access for members of the public to the

law and policy of agencies that affect them, the public is

entitled to know whether the Advice Branch or Office of

Appeals has ever decided that certain issues are not

deemed actionable by references to the underlying facts

and the rationale which supports the conclusion reached.

Presently, the public has full access to the published

Board and Trial Examiners’ Decisions from which in-

sight as to the applicable law and developing policy may

be gleaned from the reported facts, conclusions and de-

terminations. And with respect to reported decisions,

the Board (and other publication services) provides an

index (and digest) so that the public may seek out those

issues and precedents which affect them. In the same

vein the public requires, and is entitled to receive, more

that on the basis of submitted facts and applicable law and ration-

ale, no [legal] action” will be taken. The Administrative Law Con-

ference of the United States, during June 1970, “overwhelmingly

approved a recommendation that the [SEC] publish ‘no action’

letters issued by the SEC or its staff.” 38 L.W. 2657, 2658.

It should be noted that the materials which your Committee

seeks are predicated upon the general rights extended “any person”

under §552(a)(3) of the Freedom of Information Act and, as

has been judicially determined, any member of the public seeking

such information need not demonstrate any particularized “need”

or that such person is involved in a proceeding before the agency.

See Tuchinsky v. Selective Service System, 294 F.Supp. 803 (N.D.

Ill. 1969), aff'd 418 F.2d 155 (7th Cir. 1969); Bristol Myers v. FTC,

(D. D.C. 1968), reversed on appeal ——— F.2d ———,, (D.C. Cir. 22,277,

March 26, 1970), slp. op.; Davis 765. Further, as the D.C. Court

of Appeals recently stated in Ackerly v. Ley, — F.2d ——— (D.C.

Cir. 22,665, Dec. 19, 1969) Slip op.: ... And the fact that appel-

lant might, presumably by a combination of intuition and diligent

research, ferret out some of the materials relied upon is surely no

reason to suppose that Congress made revelation under the Freedom

of Information Act contingent upon a showing of exhaustion of

one’s own ingenuity.” Jd. at 10.

than a copy of the Advice Branch or Office of Appeals’

sterile form letter which, in conclusionary terms, merely

states that litigation is not deemed warranted. What the

public requires is access to any document embodying the

operative facts and underlying rationale which constitutes

the basis for the General Counsel’s final determination

not to proceed. Your Committee believes a digest of such

opinions should be published in order for the public to

be in a position to make a “request for identifiable [Ad-

vice and Appeals] records,” (§ 552 (a (3) and that the

Board must develop an index which will realistically per-

mit the public to meaningfully formulate its requests

and identify the materials sought.“

Your Committee believes its position is strengthened

by the recent decisions of courts of appeals in dealing

with questions arising under the Freedom of Information

Act. A review of the litigation generally discloses that

while the District Courts have been inclined to accept

government arguments against disclosure, the courts of

appeals have, contrary thereto, given broad reading to

the affirmative provisions of the Act, counseling for dis-

closure and requiring the agency asserting a privilege to

convincingly demonstrate that a particular document falls

within one of the statutory exemptions.’ Thus, your

Committee does not believe that the Board is on solid

ground when it asserts, without explication, that Ad-

vice and Appeals Memoranda are privileged under the

“intra-agency” memorandum exemption appearing in

§ 552(b) (5) of the Freedom of Information Act. For

example, in American Mail Line Ltd. v. Gulick, 411 F.2d

696 (D.C. Cir. 1969), the Maritime Subsidy Board an-

On January 31, 1970, the Department of Labor amended its reg-

ulations dealing with its responsibilities under the Freedom of

Information Act, inter alia, by providing for the particularized

delegation of authority to agency personnel to prepare and promul-

gate indices. LRX 3003, pt. 70, and Section 70.5 in particular.

5 Bristol Myers Co. v. F.T.C., —— F.2d —— (D.C. Cir. 22,277,

March 26, 1970) slip. op.: Ackerly v. Ley, ——— F.2d (D.C, Cir.

22,665, December 19, 1969) slip. op.; General Services Administra-

tion v. Benson, 415 F.2d 878 (9th Cir. 1969); Grumman Aircraft

Engineering Corp. v. The Renegotiation Board, —— F.2d ——

(D.C. Cir. 22,277, March 26, 1970) slip. op.; Conswmers Union v.

Veterans Administration, 301 F.Supp. 796 (S.D. N.Y. 1969).

nounced that it was ordering three million dollars worth

of subsidy refunds on the basis of an agency memoran-

dum supporting a finding that the ships were carrying

unnecessaily large crews. When the order was issued, the

Board attached the last five pages of the Memorandum

but refused to comply with the plaintiff’s request for

the production of the balance of the Memorandum on the

ground that, under the “intra-agency memorandum” ex-

emptions expressed in § 552 (b) (5) of the Act, the with-

held portions were privileged. The Court of Appeals, in

rejecting the government’s contention, noted that the

Memorandum served as the basis for the Board’s final

determination and order, and therefore held that the

entire Memorandum was a public record and that the

Freedom of Informacion Act required the Subsidy Board

to disclose the full and rationalized basis for that Agen-

cy’s action in its entirety. Your Committee believes that

a parity of reasoning would require no less from the

NLRB in dealing with the instant subject.

Your Committee recognizes that compliance with its

request will necessarily occasion additional “administra-

tive“ work for the NLRB. Approximately 1,400 appeals

are handled by the General Counsel’s Office of Appeals

each year; the workload of the Advice Branch is similar-

ly voluminous. For the NLRB to comply with the re-

quirements of the Freedum of Information Act and the

requests of your Committee made pursuant thereto com-

petent personnel and additional funds would have to be

earmarked for this endeavor. However, your Commit-

tee believes the Board’s obligations under the Freedom

of Information Act cannot be indefinitely delayed and

that, in accordance with Congressional will expressed in

the Act, the Board should immediately undertake the

preparation of an index and other suitable procedures for

public access to the Advice and Appeals Memoranda.*

*Setting aside semantic discussion over whether the Board

presently has a “Book of Digests” as described by Professor Davis,

or some other orderly filing and indexing system whereby personnel

on the Appeals and Advice staffs may gain access to accumulated

decisions, recommendations, policy statements, etc., it is clear that

the preparation of an index would assist (in addition to the public),

those agency personnel who should be considering what past actions

have been taken by the Office of the General Counsel.

7. CONCLUSION

Your Committee is of the view that the continuing

dialogue between it and the NLRB’s Liaison Committee

has produced significant results. As noted, the expansion

of the Field Manual, the availability to the public of

both the Litigation and Trial Examiner's Manuals, and

the joint efforts to arrive at common understanding re-

garding disclosure of other materials demonstrates that,

over a period of time, progress does flow from the rea-

soned exchange of ideas and opinions.

There is, nevertheless, a need for further expansion

of “Government policy and attitude toward disclosure

of information.“ Your Committee believes that the

Board should reconsider its previous decision which re-

sults in the restricted use of the Litigation Manual to Re-

gional Office libraries. The Trial Examiner's Manual

should also be made available to all members of the

public on an equal basis. We further helieve that, not-

withstanding recognized limitations on staff and budget,

the Board should immediately undertake the preparation

of an index of previously unpublished material, com-

mence to publish digests of appeals and advice cases,

as well as an index and availability file of Advice

Branch and Office of Appeals Memoranda. To these ends

your Committee believes that full cooperation and assist-

ance through Committee personnel should be offered to

the Board for whatever advisory or other purpose its

members might perform.

A reading of the [Freedom of Information] act and its legis-

lative history indicates that it was Congress’ overriding concern

that disclosure be the general rule, not the exception; that all in-

dividuals have equal rights of access; that the burden be on the

agency to justify the withholding of a document, and not the person

who requests it; that individuals improperly denied access to the

documents have a right to seek injunctive relief in the courts’ and

that there be a change in Government policy and attitude toward

disclosure of information.” Staff of Subcomm. on Admin. Practice

and Procedure of the Senate Comm. on the Judiciary, 90th Cong.,

2d Sess., “The Freedom of Information Act” (Ten Months Re-

view) 3 (Comm. Print 1968).

EXHIBIT 2

PROCEDURE UNDER THE NATIONAL LABOR

RELATIONS ACT 233 (1971)

5. ADVICE AND APPEALS MEMORANDA AND

INDICES THEREOF

Last year your Committee requested that all decisions

of the General Counsel resulting in his refusal to issue

a complaint be made public, and that an index of all

such decisions and advice or appeals memoranda sup-

porting such decision, also be made available to the pub-

lic. To establish the statutory and legal basis for your

Committee’s request, the 1970 Committee Report, Vol. 2,

pp. 6-9, detailed the applicable provisions of the Free-

dom of Information Act, 5 U.S.C. § 552(a) (2) (A), (B)

and (C), as well as analogous judicial authority.

This year, your Committee continued to press for an

orderly and meaningful index for advice and appeal mem-

oranda reflecting final agency action in cases where com-

plaint is not issued. The representatives of the General

Counsel took issue with the statement of Professor Davis

in his book, Discretionary Justice (p. 206), disclaiming

the existence of a “book of digests” which Professor

Davis described as an index of decisions from the Ad-

vice Branch and Office of Appeals. The General Coun-

sel’s representatives asserted that the Advice Branch and

Office of Appeals do not prepare memoranda of the char-

acter held to be subject to disclosure under the Act,’ or

an index thereof.

With regard to advice functions, it is noted that when

a case is referred by the Regional Office to Washington

for advice, a separate file for that case is opened by

the Advice Branch. This advice file includes the Region’s

request for advice, the memorandum prepared by the

This position was also asserted formally in an agency letter of

February 27, 1970, to Professor Davis of the University of Chicago.

But note, the letter to Professor Davis further asserted: “. . . how-

ever, a set of [memoranda] is retained by the Advice Branch, classi-

fied and filed according to the issues raised in each case... .”

Advice attorney for consideration at the “agenda,” the

memorandum prepared at the conclusion of the “agenda,”

together with the memorandum returning the case to the

Region. The advice file will also contain memoranda

reflecting post-complaint matters or other subsequent ad-

viee rendered in the case, if any. With regard to ap-

peals cases submitted to Washington upon a Regional

Direeter's refusal to issue complaint, he previously de-

seribed procedures and functions are essentially the same.

Thus, notwithstanding the fact that pertinent and is-

sue-controlling memoranda do exist and either are in-

dexed or “classified,” or can be indexed and digested

in an orderly manner, the General Counsel has taken

the position that the only document disclosable under

the Freedom of Information Act is the letter from the

Regional Director or the Office of Appeals advising the

charging party (or appellant) that the issuance of

complaint does not appear warranted. And even as to

these letters, the General Counsel asserted that the

Freedom of Information Act does not require either the

indexing of dismissal] letters or its making public of the

“classification,” supra. In support of this assertion, the

Liaison Committee took the position that the only ma-

terial ired to be indexed was that which was relied

upon and cited as a precedent. Since refusals to issue

complaint are not so cited, and, according to the Liaison

Committee, are not even made available to regions other

than in the region in which the case originates, it rejected

the notion that a statutory obligation for indexing existed.

Finally, while acknowledging that an index would serve

a useful purpose within the agency itself, the Liaison

Committee indicated that under present restrictions on

its budget and with limited manpower, the NLRB could

not, even as a matter of accommodation, comply with

your Committee’s request for the preparation of a mean-

ingful index.

In the 1970 Report of the Section of Labor Relations

Law, Vol. II, p. 7, n.2, your Committee drew an analogy

between the function of the advice and appeals memo-

randa and the “no-action” letters prepared by staff per-

sonnel of the Securities and Exchange Commission, not-

ing that the SEC’s “no-action” letters and memoranda

indicate that on the basis of submitted facts and appli-

cable law and rationale, “no [legal] action” will be taken.

As your Committee there reported, “the Administrative

Law Conference of the United States during June 1970,

‘overwhelmingly approved a recommendation that the

[SEC] publish “no-action” letters issued by the SEC or

its staff.’ 38 L.W. 2657, 2658.”

Since last year’s report, the SEC has taken affirma-

tive action te comply with the Conference’s recommenda-

tion. Thus, on July 14, 1970, the SEC issued a Notice

of Proposal to change Section 200.81 (17 C.F.R. 200.81)

concerning public availability of requests for no-action

and interpretative letters and the responses thereto by

the Commission’s staff. Thereafter, on October 29, 1970,

the Commission issued a release indicating its adoption

of changes which were based upon comments received

from members of the Bar and the public. The new sec-

tion and procedures, which became effective on December

1, 1970, provide, in part, that “no-action and interpre-

tative letters and the responses thereto will be available

for inspection or copying thirty days after the staff has

given or sent the responses to the person requesting it.”

Under this procedure, all such letters and interpretations

will be deemed available to members of the public, and

exceptions will be allowed for a delay “not exceeding

ninety days after the expiration of such thirty days”

where sufficient considerations can be presented to justify

agency discretion in according confidential treatment to

the specific material. In such cases, the burden shall be

upon the individual requesting confidential treatment to

“clearly show” the basis therefor, and where confiden-

tial treatment is accorded it will be “limited to the mini-

mum period necessary under the circumstances,” but in

no event beyond the 90-day period.

Further, the SEC contemplates that “from time to

time where the subject matter of a no-action or interpre-

tative letter is of particular interest or importance, such

letter and response thereto will be published in summar-

ized form in the Commission’s daily News Digest. This

will call atten ion to the position taken in the staff’s

— —— — — ee eee 3

response and interested persons can, if they so desire,

inspect the full text of the letter and response thereto in

the public file.” As the foregoing provision makes clear,

the SEC has already adopted and incorporated in its

rules a position which your Committee has repeatedly

urged upon the General Counsel. Thus, your Committee

has urged that all advice and appeals memoranda and

decisions be made available to the public and that sig-

nificant decisions or rulings which warrant special cir-

culation and broad coverage be circulated by the Genera!

Counsel either in the weekly summary of developments

or in the quarterly report of the General Counsel on case

handling. This would then alert the public as to the more

significant developments, thereby providing the Labor Re-

lations Law Bar with better insight and guidance re-

garding matters falling under the jurisdiction of the

General Counsel’s office.

Finally, the SEC adopted what is tantamount to an

“index” system to facilitate access by members of the

Bar and the public to the particular statutory ruling or

provision involved. The “indexing” provisions appear as

a Note“ to Section 201.81 “(b) of the Rules and the SEC,

on January 25, 1971, adopted specific procedures appli-

cable to requests for no-action or interpretative letters.

The specific provision of the “Note” in Section 201.8(b)

requires that all requests for interpretative advice or no-

action positions shall indicate prominently, in a separate

caption at the beginning of the request, each section of

the Act and each rule to which the request relates.” In

commenting on this provision, the SEC has stated that

comments from the Bar and the public with regard to

the proposed rule “indicated concern that the requests

and responses thereto should be available in a form which

will facilitate reference to those relating to a particular

section or rule. Cooperation of the Bar and other persons

in complying with the note to paragraph (b) will aid

in accomplishing this result.” (Emphasis added). Here

again, your Committee would urge the NLRB to devise

a comparable, meaningful “index” or other retrieval sys-

tem whereby members of the Bar would be in a position

to have advice and appeal mem~randa and decisions

“available in a form which will facilitate reference to

those relating to a particular section or rule” or other

topical basis.

Your Committee fully comprehends the Board’s budge-

tary and manpower limitations. But, as previously noted,

notwithstanding similar limitations on manpower and

budget, the Securities and Exchange Commission has re-

sponded to a similar and long-pressed need of its practi-

tioners (and the public at large) by taking the initiative

in making its corpus of Agency no-action developments

available to the public, and developing meaningful “in-

dexing” procedures so access will be enhanced. Surely

the NLRB is at least as flexible and resourceful as other

governmental agencies in devising ways to give substance

to its obligations under the Freedom of Information Act,

notwithstanding ever present limitations on time, money

and manpower.

As will appear, infra, the Board has been engaged in

litigation under the Freedom of Information Act and,

understandably, it may be reluctant to make concessions

which might adversely affect its legal posture in pending

cases. However, your Committee has not been apprised

of any pending or contemplated cases which involve, or

would be affected by, the Board’s compliance with your

Committee’s request for advice and appeal memoranda

and indices. Whether viewed as a research tool, or as

the only source of relevant law on a particular adminis-

trative issue, the fact remains that the General Counsel’s

decisions not to issue a complaint do, in fact, constitute

final agency action and, as aptly phrased by Professor

Davis, in many areas [such] General Counsel’s decisions

constitute the only relevant law. Accordingly, your

Committee shall continue to vigorously urge the Board

to recede from its position and undertake the publication

of whatever index or “classification” which may exist, as

well as the preparation of an index, and to make avail-

able to the public copies of advice and appeal memo-

randa and decisions in cases where the General Counsel

declines to issue a complaint.

ana

6. NLRB—FIA LITIGATION

The NLRB has been directly involved in litigation

arising under the Freedom of Information Act in the

following 7 cases:

1. Pavone v. Kennedy (C.D. Cal., Case No. 67-1181-

WPG, 1968) (unreported).

This case involved an effort by plaintiff to obtain from

the NLRB the names and addresses of employers against

whom charges or election petitions were filed in order to

use the information as a business solicitation source.

The suit was dismissed by the court upon a docket entry

with no formal order appearing. We are informed that

the Board now makes available such information in its

Regional Offices.

2. Local Union No. 560, IBTCHWA v. N.L.R.B. (D.

N.J., Case No. 46-68, 1968) (unreported).

Plaintiff union had been charged with violating 88 (b

(3) of the Act and a companion suit had been instituted

under § 301, charging the union with violation of a no-

strike clause. In this litigation, the union brought suit

to compel the Board to turn over an affidavit obtained

by a Board agent during the investigation of the 8(b)

(3) charge. The court accepted the Board’s argument

that the affidavit was privileged under exemption (7)

of the Freedom of Information Act, as it was part of

an “investigatory file compiled for law enforcement pur-

poses.” The suit was dismissed upon a docket entry,

with no formal order appearing.

3. Government Employees’ Insurance Co. v. McLeod,

96 LRRM 2186 (S.D.N.Y., 1968).

In this proceeding the employer sought a preliminary

injunction restraining the NLRB from conducting a rep-

resentation hearing.

III

PROCEDURES OF THE GENERAL COUNSEL’S

OFFICE OF APPEALS AND THE

REGIONAL ADVICE BRANCH

This year your Committee continued its conference

with the Liaison Committee regarding the operations and

procedures of the Office of Appeals and the Regional Ad-

vice Branch. The following constitutes the report of

your Committee’s study and conference.

1. THE REGIONAL ADVICE BRANCH

It is the responsibility of the Advice Branch to analyze

and interpret Board and Court decisions to determine

areas of the law which are unclear or in a state of flux

and to assist the General Counsel in considering and

selecting cases which may give direction to the law in

those, as well as new or novel areas.“

In discharging its responsibility, Regional Directors are

advised with respect to the issuance of complaints in

particular types of cases. Advice also “follows-up” on

cases submitted to it. It reviews complaints, analyzes

Trial Examiners’ decisions dealing with the issues on

which advice was given, assists in preparing briefs to

the Trial Examiner, and provides exceptions, briefs and

oral argument to the Board.“

A. Operations of Advice Branch

Matters come to the attention of Advice essentially in

2 ways: (1) standing instructions are issued to the

Regions to automatically submit certain types of cases

»The General Counsel holds the view that the Office of Advice

serves a purely internal agency function of assisting in policy de-

cisions and maintaining uniformity of administration in the field.

However, in cases involving §10(1) relief, Regional Directors

seek “advice” from the District Court Section of the Division of

Law, and “advice” in cases involving §10(j); and §10(c) relief

is sought from the Enforcement Section.

—— — eres ee —

—— —

— —

OT ———— —E rea

or certain issues; (2) Regional Directors may, at their

discretion, solicit advice on any case or issue.

Those matters which must be submitted for Advice are

set forth in the “non-public” Field Manual maintained

at the Regional Offices and supplemented from time to

time by the General Counsel’s Office in Washington. The

General Counsel disclosed the specific areas currently

requiring mandatory submission to Advice, and agreed

to update this information in subsequent issues of the

Quarterly Report on Case Developments.“

In any case in which advice is sought, the Regional

Office submits its file together with a summary of the

evidence, a listing of the issues, and the Region’s recom-

mendation for disposition of the case. (Any difference

of opinion within the Region may be noted). In Advice,

the case is assigned to an attorney and his supervisor

for review, research and analysis. Parties to a case

have the opportunity, upon request, to orally present their

position to the Office of Advice. There are few such

oral presentations, but where granted, other parties

The General Counsel advised your Committee that the areas

where submissions for Advice are currently required were those

set forth in his Quarterly Report on Case Developments released

January 26, 1968, which listed as areas of then current advice inter-

est: lockouts; the impact of Wiley v. Livingston; a union’s duty

of fair representation under Vaca v. Sipes and Miranda; union

fines; the effect of National Woodworkers on Section 8(e) issues;

and the implications of Pennington and Jewel Tea.

In the General Counsel’s most recent Quarterly Report on Case

Developments (covering the period ending March 31, 1971) the

following items appear to be of current “advice” interest: whether

a union violates Section 8(b)(3) by insisting upon arbitration of

a grievance relating to the scope of the unit despite a Board unit

determination to the contrary; whether a union violates Section

8(b)(1)(A) by fining a member for instituting a civil action under

Section 301 without exhausting internal union procedures; whether

an employer violates Section 8(a)(5) by proposing a contract pro-

vision which would permit the employer to withdraw recognition

from the incumbent union in the event it fails to achieve certifica-

tion in the then-pending representation proceding: and whether

an employer violates Section 8(a)(1), (3) and (5) by refusing to

modify a practice, supported by provisions of the collective bar-

gaining agreement, which permits discrimination in employment

based upon sex.

having interest are notified and afforded an equal op-

portunity. Thereafter, analysis and recommendations

are presented by written memoranda and, on occasion,

orally to what is termed the “Agenda.” The “Agenda

consists of the members of Advice who prepared the

case, the Branch Chief, the General Counsel’s Special

Assistant, and such other members of the General Coun-

sel’s staff as the case may warrant. In more important

cases, a “General Counsel’s Agenda“ is held, i.e., one in

which the General Counsel personally participates.

At the Agenda, a final decision is usually reached.

The theory on which the determination is based could

be the theory or theories advanced by the Region, the

minority in the Region, one of the parties in interest,

or a theory developed independently by Advice. An Ad-

vice memorandum setting forth the precedents, theories

and analyses supporting the determination is prepared.

The General Counsel indicated that, on occasion, the

Advice memorandum will specifically refer to a prior

Advice memorandum on the same subject. The General

Counsel : ‘leged that such reference was not construed

to give any precedential effect to the prior Advice memo-

randum; rather, he alleged it was a time-saving device

whereby, when the Office of Advice will have submitted

an exceptionally detailed and thorough analysis of a

particular case, it facilitates matters to simply refer to

that prior memorandum.‘

B. Notice to Parties of Referral to the Advice Branch

The General Counsel stated that it was not the policy

of his office for either Advice or the Regional Office to

*The example given was the Pittsburgh Plate Glass Co. case,

involving retired employees and their status vis-d-vis collective

bargaining obligations of an employer. In handling questions in-

volving retirees, the Advice Branch would have responded to a

Regional Director by referring to its prior analysis (in the Pitts-

burgh Plate Glass Co. case) and enclosing a copy thereof if the

Regional Director had not already obtained such prior Advice

memorandum. The General Counsel did indicate that Advice deter-

minations in specific cases of general importance are at times dis-

tributed to all Regional Offices.

notify the parties in interest that a case has been sub-

mitted to Advice. He contended that such a policy would

present too great an administrative burden. However,

he emphasized that the Regional Director would, upon

request, advise a party that a case had been submitted

to Advice, but would not indicate the nature of the

issue on which advice was sought.

Your Committee recommended that the General Coun-

sel should adopt and promulgate a uniform rule that

Regional Offices notify all parties when a case has been

submitted to the Advice Branch. The General Counsel

has formally rejected the request of your Committee as

being neither desirable nor operationally feasible. Your

Committee adheres to its view.

C. Regional Action Based Upon the Advice Response

The response to the Region from the Office of Advice

sets forth a course of action to be followed by the Re-

gion: either issuance of a complaint absent settlement,

dismissal of charges absent withdrawal, or further in-

vestigation. The Regions must follow the course outlined

in this Advice response. The response to the Region will

sometimes include specifics with respect to the kind of

settlement or other action, and will set forth the theories

upon which such course of action is based. The parties

generally do not learn of the theories set forth in the

advice response where the result is a withdrawal or

settlement. Where the result is dismissal, the Region’s

letter may or may not restate the Advice response. How-

ever, in no instance will the reasoning or conclusion be

identified as that of Advice. Where a complaint is issued

based upon advice having been sought, the parties will

discover the theories of the General Counsel in the course

of the unfair labor practice hearing.

Your Committee recommended that the General Coun-

sel should adopt a rule of uniform policy that any Advice

memoranda of general application distributed to the

various Regional Offices should be made available to the

public. Your Committee’s request was refused on the

ground that these were privileged intra-agency memo-

randa and that, moreover, significant decisions of the

Advice Branch are set forth in the Quarterly Report.

Your Committee adheres to its view.

2. THE OFFICE OF APPEALS

The Office of Appeals, within the last year, changed its

policy concerning oral presentations by parties.

In the past, oral argument had been granted upon fe-

quest. It is now limited “to cases where it will tend ma-

terially to advance resolution of the issues.” Criteria

for determining under what circumstances oral argument

will be granted are currently being formulated. Oral

argument is currently being granted where the case pre-

sents novel or important issues of law or the facts are

unusually complex. Since adoption of the policy, oral

argument has been granted in 12 cases. No parties be-

yond those immediately involved in the case are advised

of the cases or issues to be argued orally; however, the

General Counsel anticipates that “most” cases which are

argued orally will be the subject of discussion in one

of his Quarterly Reports on Case Developments.

This year, your Committee discussed with the General

Counsel specific practices involving appeals from formal

settlement agreements. A formal settlement agreement

is one usually entered into after issuance of a complaint

and provides for the entry of a Board Order and consent

that such Order may be enforced in the Court of Appeals.

In cases involving unilateral formal settlements after

the charging party has stated his objections, the matter

is forwarded to the office of the General Counsel for re-

view before submission to the Board for approval. The

Rules do not provide for an “appeal” to the General

Counsel. The appeal is to the Board prior to its approval

of the proposed settlement. However, it is possible for

a party to secure from the General Counsel an “opera-

tional review” of the proposed settlement. This “opera-

tional review” is similar in many respects to an appeal

in that the party may, in addition to submitting written

arguments, appear personally and argue orally before

the General Counsel prior to his approval or disapproval

recommending such formal settlement to the Board.

The General Counsel, in discussing the operations of

the Office of Appeals and the Advice Branch, noted that

he viewed the 2 operations quite different conceptually.

The General Counsel views the appeals, which exist by

virtue of the Board’s Rules, as part of a party’s pro-

cedural process and, to that extent, the operations of

the Office of Appeals are viewed as “public.” The Ad-

vice Branch, on the other hand, is viewed by the General

Counsel as serving a purely internal agency function de-

signed to assist in making policy decisions and maintain-

ing uniformity of administration in the field.

EXHIBIT 3

GENERAL COUNSEL’S MINUTE

Emhart Corporation

Case No. 1-CA-5727

Appeal from the Regional Director’s refusal to issue

an 8(a)(1) and (5) complaint based on a charge filed

November 22, 1966, by UAW Local 326, alleging that

the Company refused to supplement an existing collec-

tive-bargaining agreement in compliance with its obliga-

tion under a letter of agreement between the parties.

ACTION

Appeal denied.

REASONS FOR ACTION

Under all the circumstances, it could not be established

that the refusal to grant the Union’s request was for

any reason other than the Company’s good-faith inter-

pretation of the terms of the supplemental agreement.

/s/ A. O.

Arnold Ordman

General Counsel

Dated: 1/24/67

— — et

EXHIBIT 4

GENERAL COUNSEL’S MINUTE

Diaz Drayage Company

Case No. 15-CA-2909

Appeal from the Regional Director’s refusal to issue

an 8(a)(1) and (5) complaint based on a charge filed

September 6, 1966, by Local 270, IBT, alleging that

since June 27, the Company refused to bargain with the

Union.

ACTION

Appeal denied.

REASONS FOR ACTION

Under all the circumstances, including the ambiguous

and self-contradictory language contained in the adden-

da, all of which related to contract duration, insufficient

basis existed for a finding that the Company had acted

in derogation of its statutory bargaining obligation in

refusing to sign the contract proffered by the Union.

/s/ A. O.

Arnold Ordman

General Counsel

Dated: 4/26/67

EXHIBIT 5

GENERAL COUNSEL’S MINUTE

Technical Papers Division, Morart

Plaut, The Mead Corporation

(Dayton Local 60-P, Lithographers

and Photoengravers Int'l. Union)

Case No. 9-CA-4362

Appeal from the Regional Director’s refusal to issue an

8(a)(1) and (5) complaint based on a charge filed July

24, 1967, by Lithographers and Photoengravers Inter-

national Union, alleging that the Company had refused

to approve a collective bargaining agreement fully nego-

tiated and agreed upon orally on June 9, 1967 between

the Company and Union.

ACTION

Appeal denied.

REASONS FOR ACTION

The evidence established that the parties had agreed

in principle to the terms of an agreement but there had

been no meeting of the minds as to the language to be

used when reducing the agreement to writing. Under

the circumstances, insufficient basis existed for finding

an unfair labor practice based upon the Company’s

refusal to execute the written contract submitted by

the Union.

/s/ A. O.

Arnold Ordman

Genera! Counsel

Dated: 11-1-67

EXHIBIT 6

GENERAL COUNSEL’S MINUTE

IVE Local 963

(Phelps Dodge Magnet Wire Corp.)

Case No. 25-CB-646

Appeal from the refusal to issue a complaint based on

an 8(b)(1)(B) and (3) charge filed November 15, 1968

by Phelps Dodge Magnet Wire Corporation, alleging in

substance that since about September 30, the Union has

refused to bargain in good faith.’

ACTION

Appeal denied.

REASONS FOR ACTION

It was concluded, for substantially the reasons set

forth in the summary report accompanying the Regional

Director’s dismissal letter of May 29, 1969, that further

proceedings herein were unwarranted.

/s/ A. O.

Arnold Ordman

Genera! Counsel

Dated: 8/20/69

EXHIBIT 7

GENERAL COUNSEL’S MINUTE

McIntosh Motors, Inc.

Case No. 17-CA-3183

Appeal from the Regional Director’s refusal to issue

complaint based upon an 8(a)(1) and (5) charge filed

March 23, 1967, by IAM District 71, alleging that since

December 22, 1966, the Company has refused to give

effect to the provisions of a contract entered into with

the Union July 29, 1966, and has otherwise refused to

bargain in good faith with the Union.

ACTION

Appeal denied.

REASONS FOR ACTION

Under all the circumstances, including the evidence

that the Company withdrew all authority from the As-

sociation to bargain for it both in 1963 and 1966, that

the parties conducted separate negotiations for the 1963

contract, that the July 1966 letter of intent appeared to

contemplate separate negotiations following conclusion of

the Union’s negotiations with the Association, and since

the March 31 agreement on its face reflected that the

parties had agreed to modifications of the '!nion-Associ-

ation agreement, insufficient basis existed for a finding

that the Company was bound by Association bargaining

or the contract resulting therefrom. In these circum-

stances, the Company’s failure to prepare a draft of

the agreed-upon contract for the Union’s signature was

deemed insufficient to warrant further proceedings.

/s/ A. O.

Arnold Ordman

General Counsel

Dated: 7-21-67

— — — —ũ——— ? — 2

—

EXHIBIT 8

GENERAL COUNSEL’S MINUTE

lowa Conference of Teamsters and

Local No. 90 et al.

(Heavy-Highway Labor Relations

Council of Iowa)

Cases Nos. 18-CC-251

18-CB-314

Appeal from the refisal to issue an 8 0b (3), and

8(b) (4) (ii) (A) and (B) complaint based on charges

filed June 24, 1968, by the Heavy-Highway Labor Re-

lations Council of Iowa, alleging respectively that the

Iowa Conference of Teamsters and its local affiliates

have refused to execute the Heavy and Highway Con-

struction Agreement for the State of Iowa; attempted

to withdraw from multi-union and employer association

negotiations in order to obtain terms contrary to the

negotiated agreement; insisted on negotiation of matters

not proper subjects for bargaining; withdrew proposals

made by them and accepted by the association; and

coerced the Council to cease doing business with other

persons and enter into an agreement prohibited by Sec-

tion 8(e) of the Act.’

ACTION

Appeal denied.

REASONS FOR ACTION

Under all the circumstances, including the provisions

on page 10 of the draft agreement for the parties’ indi-

vidual acceptance thereof, it could not be established that

there was a multi-employer bargaining unit or that the

spokesmen for the Heavy Highway Labor Relations Coun-

cil and the Union at the negotiations had the authority

to bind any of the individual Companies or Unions to

any agreement reached by Hoffman and Rowley in their

negotiations. Therefore, the burden could not be met of

owing that Teamsters’ refusal to execute the written

— incorporating the agreement allegedly reached

between Hoffman and Rowley, and its submission of pro-

posals which would detract from provisions already —

upon, violated the Act. Nor did the evidence 2

that the Union negotiators had insisted to impasse tha

any particular nonmandatory bargaining ee 8

cepted by the Couneil. With regard to the alleg J

(4) (ii) (A) and (B) conduct, there was no evidence 0

threats, coercion or restraint on the part of the Team-

sters. Accordingly, further proceedings were deemed un-

warranted.

/s/ A. O.

Arnold Ordman

General Counsel

EXHIBIT 9

GENERAL COUNSEL’S MINUTE

Detroit Newspaper Publishers Assn.

The Detroit News, Detroit Free

Press; Detroit Mailers Union No. 40, ITU

Case Nos. 7-CA-6916-1-3

7-CB-1818-1-3

Appeal from the refusal to issue 8 (a) (1) (A) and (3)

and 8(b)(1)(A) and (2) complaints based on charges

filed August 19, 1968, by Joe Wellman, John Rahie (in-

dividuals) and Detroit Mailers Union No. 4, IMU, al-

leging in substance that the Newspaper Assn. (acting on

behalf of its members) and the ITU have agreed to a

pension plan in which participation is dependent on mem-

bership in the ITU, thereby discriminating against non-

members and interfering in the employees’ exercise of

their Section 7 rights.

ACTION

Appeal denied.

REASONS FOR ACTION

In view of the attached amendment to the ITU Negoti-

ated Pension Pian, further proceedings herein would not

effectuate the policies of the Act.

/s/ A. O.

Arnold Ordman

General Counsel

Date: 11/14/69

AMENDMENT OF PAST SERVICE CREDIT

PROVISIONS OF ITU NEGOTIATED

PENSION PLAN

RESOLVED, that Section 4.01 of Article IV of the

ITU Negotiated Pension Plan be and the same hereby

is amended, effective as of July 1, 1969, as follows:

The entire last paragraph of the section shall be de-

leted and, in place thereof, a new paragraph shall be

substituted so that Section 4.01 in its entirety shall read

as follows:

“Section 4.01 Past Service Credit

Past Service Credit shall be given to a Partici-

pant for each month of his continuous full time

employment as a journeyman during the period im-

mediately prior to his Applicable Effective Date,

computed to the nearest whole month, provided such

period of continuous full time employment began

prior to January 1, 1967. The total of the months

so credited shall be divided by twelve to obtain

years of past service. No Participant shall be eligi-

ble for Past Service Credit who, prior to becoming

a Participant, received any pension payment pursu-

ant to Article XX, ITU By-laws.

If, in the opinion of the Trustees, the granting

of Past Service Credit in a given situation would

adversely affect the actuarial reserves of the Plan,

they shall, by rules uniformly applicable to all per-

sons similarly situated, reduce the amount of Past

Service Credit granted.”

EXHIBIT 10

This Section 8(a)(5) case was submitted for advice

because it involved a novel question of law concerning

a union's withdrawal from multi-union, multi-employer

bargaining.

It was concluded that further proceedings on the charge

filed by the Union are unwarranted, since the Employer

was in the circumstances considered to be privileged in

refusing to bargain separately with the Union and in

reaching an agreement with the multi-union group, which

agreement covered, inter alia, the Union, over the Union’s

protests that it had withdrawn from the multi-union

bargaining.

The bargaining history and language of the two previous

contracts were viewed as establishing a multi-union,

multi-employer bargaining relationship, in which the in-

dividual locals of the Union’s International Union as

well as the International Union and the Negotiating

Committee, constituted a joint representative of the em-

ployees in a merged unit. In this regard, it was noted

that in 1965 a multi-union multi-employer Western States

contract was negotiated by a committee consisting of

representatives from several locals and from the Inter-

national Union. The contract was approved by a majority

of votes of all covered employees in the overall multi-

union multi-employer unit. Although the Union did not

directly participate in these joint negotiations and refused

to execute the Western States agreement because of dis-

satisfaction with the agreement among its members, the

contract was executed for and in behalf of the Union

by an International Union representative and was put

into effect in the territorial jurisdiction of the Union

without objection from the Union. In 1968, at the re-

quest of the Union, a business representative of the Union

was appointed to the multi-union negotiating committee,

participated in the negotiations and signed the contract

as a member of the union negotiating committee. And

despite the apparent dissatisfaction with the agreement

and the local supplement among members of the Union,

representatives of the Union signed the local supplement

as well, because a majority of employees in the overall

multi-union multi-employer unit had approved the sup-

plements. Finally, the agreements state that the “Union”

consists of the Union International and its affiliated locals

party to the agreement, and are signed by the Union

International and by the Negotiating Committee of the

Union International, for and on behalf of numerous local

and districts, including the Union.

Based on the foregoing, it was concluded that a multi-

union multi-employer bargaining relationship existed and

that the individual locals of the Union’s International,

including the Union, constituted the joint representative

of the employees in a multi-employer unit at the time the

Union attempted to withdraw from multi-union bargain-

ing. In such circumstances of multi-union bargaining

and joint representation, the Retail Associates principle

involving withdrawal from multi-employer bargaining

by timely notice was considered inapplicable. Rather,

where units represented by various labor organizations

have been merged by consent and the unions represent the

employees and bargain jointly for the overall unit, the

filing of a timely petition was considered to be the ap-

propriate course for a constituent union seeking with-

drawal from the multi-union group.

Thus, with respect to withdrawal from multi-union bar-

gaining, the Board stated in Evening News Association,

154 NLRB 1494, 1498:

.. in multiunion bargaining, once a broad unit has

been established by consent, one of the constituent

unions could not generally change the unit by uni-

lateral action; but neither would the employer be

“ This is generally but not always true. One of the consti-

tuent unions could sever a segment of the broader unit, if it

filed a petition with the Board at an appropriate time, and if

the smaller unit were otherwise appropriate. (Emphasis sup-

plied. )

1 Retail Associates, Inc., 120 NLRB 388.

—— the. —

—— 2 —

permitted to do so. A similar situation exists with

respect to single- employer, multiplant units. In these

types of cases, employer and union are treated alike.

Neither can break up the unit.

And the decisions in American Pipe and Construction

Co., 169 NLRB 1024 and United Metal Trades Associa-

tion, 172 NLRB No. 52, support the view taken here that

in multi-union bargaining mere timely notice of a desire

to withdraw will not suffice to sever the union from

the multi-union group.’

In view of the above, the Union’s attempt to withdraw

from multi-union bargaining by giving timely notice to

all parties, but without filing a petition, was considered

ineffective. And where, as here, the unions involved

have followed the historical method of contract negotia-

tion and ratification and the Employer has been notified

by the unions that such ratification has taken place, the

Employer was considered privileged in relying on the

ratification® and in executing the current agreement

covering the Union with the multi-union group.

a tae the charge should be dismissed, absent with-

rawal.

G.B.

ROF-1

In the cited cases, the Board indicated that a union did not

have an automatic right to withdraw from multi-union bargain-

ing on the same terms as an employer may withdraw from multi-

employer bargaining, but rather that any right of a union to with-

draw from multi-union bargaining would be contingent, at least, on

the appropriateness of the separate unit sought by the union.

*Cf. M M Oldsmobile, Inc., 156 NLRB 903, at pp. 905-906.

EXHIBIT 11

This confirms telephonic authorization of January 7,

1971 to issue 8(b)(3) complaint to place issue before

Board and to dismiss 8(a) (5) charge.

With respect te 8 (b) (3) charge, concluded in agree-

ment with Region that prior to 1970 parties had ne-

gotiated in multiemployer unit consisting of all linen

suppliers in city except for companies A and B. Also

noted that this multiemployer group negotiated 1967

agreement and none of employers in group withdrew

from bargaining on multiemployer basis. Further con-

cluded that Union failed to unequivocally withdraw from

multiemployer unit prior to actual beginning of negotia-

tions on November 12, 1970. In this regard, Union state-

ments of November 12, 1970 considered equivocal since

Union never clearly stated it was withdrawing from

bargaining on group basis but demanded that bargaining

be conducted in same way as it had been in past, which,

as concluded above, was on a multiemployer basis. Also

noted that in past Union considered bargaining to be on

multiemployer basis. Union’s reservation of position on

November 12, 1970 not considered to make Union with-

drawal of December 7, 1970 timely because Union only

reserved right to bargain as in past, viz., without associa-

tion participation, Union did not reserve right to bargain

individually.

In circumstances Union considered as refusing to bar-

gain with employer group through association. And this

refusal not viewed as privileged since it was not un-

equivocal withdrawal from bargaining on established

multiemployer union basis and formation of association

had not changed unit.

Fact that association letter of November 6, 1970 re-

ferred to only nine employers not considered to warrant

contrary result. Affidavits show that as of beginning

of actual negotiations on November 12, association had

been designated in some form as representative for bar-

gaining by all employers in historical multiemployer unit.

Union never claimed to be confused by letter of November

6, 1970 as to number of employers in bargaining group

and did not raise that as reason for refusal to bargain

on multiemployer basis. And, by meeting of November

24, 1970, any arguable defect in employer’s request for

bargaining considered cured since association at that

time indicated to Union that it represented all employees

in historical multiemployer unit.

In addition, strike considered 8(b)(3) violation to ex-

tent that it was in support of Union’s unprivileged

position.

In light of above, employer’s responsive lockout would

be privileged and association’s demand for bargaining

only on group basis also considered privileged. Accord-

ingly, further proceedings on Section 80a 3) and 8(a

(5) charge, deemed unwarranted. With respect to 8(a)

(3) allegation in charges filed December 30, 1970, Region

may proceed at its discretion.

Two ROFs are being returned under separate cover.

Gerald Brissman

Assistant General Counsel

1/8/71—11:10 am

5750

EXHIBIT 12

Consideration was given to the contract provisions in the

Master Agreement submitted by the Region with its

memorandum of February 23, 1968. It was concluded

that the Region should proceed in accordance with the

initial Advice authorization dated February 16, 1968.

G. B.

ROF-1

In all the circumstances, it was concluded, in accordance

with the Region’s recommendation, that the 8(a) (5)

charge should be dismissed, absent withdrawal. In agree-

ment with the Region, the Employer’s withdrawal from

the multi-employer association of May 8, 1967, was con-

sidered timely, even though it occurred after the Union’s

March 15, 1967, notice to open the contract, since it

was made substantially before a date was set to begin

negotiations for a new contract.’

G. B.

ROF-1

See Evening News Association, Inc., 154 NLRB 1494, at 1495;

Retail Associates, Inc., 120 NLRB 388, at 395. It was also noted

that the Union considered the withdrawal on April 16, 1967 by

another member of the association to be timely despite the fact

that this withdrawal also occurred after the Union's notice to open

the contract.

EXHIBIT 13

CoLe, ZyLtstra & RayYwip

Attorneys at Law

2011 Eye Street, N.W.

Washington, D.C. 20006

Area Code 202

659-9750

March 1, 1972

Cable Address

“Czar”

Peter Nash, Esquire

General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue

Washington, D.C.

Re: Sears, Roebuck and Co. v. National

Labor Relations Board, United States

District Court for the District of

Columbia, Civil Action No. 1571-71

and Retail Clerks Union, Local 4,

Retail Clerks International Associa-

tion, AFL-CIO and Sears, Roebuck

and Co. Case No. 19-CB-1673

Dear Mr. Nash:

As you know, the undersigned has been continuously

engaged for the past two weeks in reviewing Appeals

Memoranda or decisions deemed essential to charging

party’s preparation in Board Case No. 19-CB-1673, now

scheduled for hearing on April 6, 1972. Because an ap-

peals index is not yet available, it has been necessary to

review each of these memoranda to identify those which,

like Case No. 19-CB-1673, involve issues relevant to

time limits of withdrawals multi-employer bargaining

to us. At this rate, it is estimated that it will be im-

complete this review before the letter part of

June. For that reason, and in

of the hearing to a date no earlier than June 5, 1972.

A copy of the letter to the Regional Director requesting

such postponement is attached hereto.

Such extension is also made necessary by the fact that

a substantial percentage of the memoranda supplied to

us are essentially unintelligible in their present form

because of the lack of any description of the factual

predicate constituting the basis for the decisions. Indeed,

in the course of our review we have noted that most of

the Appeals Memoranda merely indicate that the decision

is based on the “circumstances of the case” without in-

dicating what those facts or “circumstances” are. As a

result, unless we are supplied with additional informa-

tion disclosing the factual indicia for such determinations,

such memoranda may be of little or no practical utility

to our client or to the public generally.

For that reason, we recently requested that your rep-

resentative make such underlying data and or documenta-

tion forming the basis of such decisions available for

public inspection and/or copying. This request was made

with respect to those cases which, as a result of our re-

view, appear to have particular pertinence to the issues

involved in 19-CB-1673. This data will consist, for

example, of collective bargaining agreements or similar

documents upon which the memoranda relied in disposing

of the case. In some instances we have noted that the

memoranda rely upon the language of agreements without

identifying the content of such language. Since none of

this information can be considered of a confidential

or privileged nature, we believe that we are entitled to

such information or documentation pursuant to the Free-

dom of Information Act and Section 102.117 of the

Board’s Rules and Regulations. We therefore renew

our request for such materials which your representative

orally denied to us several days ago.

Because of the stricture imposed against us prohibiting

any note taking during the course of our review, we

cannot at this time supply you with a list of the par-

ticular cases for which such information and documenta-

tion is requested or the specific information required

for each case. The particular cases involved, however,

have already been flagged to your attention for reproduc-

tion and we assume that no such listing will be necessary.

Furthermore, as soon as we have been supplied with

copies of such memoranda, we will promptly identify the

precise documentation or information needed.

In addition to the above described factual documenta-

tion, we also request copies of the underlying Regional

Director’s decision from which appeals have been taken,

as well as the parties’ briefs or arguments submitted

in support of there position. We believe that the memo-

randa decisions can only be intelligently assessed in light

of this supplemental data since, in some instances, the

Appeals Memoranda simply constitute a summary affirm-

ance of the Regional Director or make particular refer-

ence to the Director’s ruling in supplying part of the

basis for the appeals decision. Since Regional Directors’

rulings have historically been submitted to both parties

and have, therefore, been subject to public disclosure in

the past, we can see no reason for withholding such

rulings from us. With respect to the briefs or arguments,

we believe that they could be of significant importance

in shedding light on the ultimate decision reached, and

therefore, such documents are also included within our

request. Like the underlying Regional Directors’ decisions,

we can see no harm in disclosing the statements of posi-

tion or arguments at this time since under the limita-

tions imposed upon our review, the information requests

are limited only to those cases where the litigation has

been concluded or, if no complaint issued, to cases where

no further action is contemplated.

To minimize the necessity of further delays beyond

the requested June 5th date, we urge that the additional!

documentation and information as detailed above be sup-

plied as promptly as possible.

If there are any logistical problems in obtaining these

materials, we invite any suggestions which will help

alleviate any further burden to your staff.

Very truly yours,

/s/ Jeffrey Goldman

Jeffrey Goldman

for Lederer, Fox and Grove

Enclosure

EXHIBIT 14

LEDERER, FOX AND GROVE

Attorneys at Law

Chicago Title and Trust Building

111 West Washington Street

Chicago, Illinois 60602

March 14, 1972

Philip C. Lederer

Shayle P. Fox

Kalvin M. Grove

Lawrence M. Cohen

— Area Code 312

S. Richard Pincus Telephone 641-0200

Herbert M. Berman

Russell M. Kofoed

K. Bruce Stickler

David L. Evans

Peter G. Nash, Esquire

General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C.

Re: Sears v. NLRB,

Board Case No. 19-CB-1673

Dear Mr. Nash:

After reviewing the index of Advice Memoranda, which

I received today, I request copies of, or access to, the

materials classified under the following rubrics:

44-33 66-54

66-50 66-56

66-51 68-53

66-53

If there is any duplication with the Advice materials that

we received earlier, I apologize; however, since I could

not find classification numbers on these Advice Memo-

randa, it was impossible for me to determine what had,

or had not, been already made available.

My client is prepared to assist you in resolving any

logistical problem encountered in obtaining any of the

material we have requested to date.

Again, I thank you for your assistance I am

Respectfully yours,

/s/ Jeffrey S. Goldman

Jeffrey S. Goldman

EXHIBIT 15

LEDERER, FOX AND GROVE

Attorneys at Law

Chicago Title and Trust Building

111 West Washington Street

Chicago, [Illinois 60602

April 11, 1972

Philip C. Lederer

Shayle P. Fox

Kalvin M. Grove

M. Cohen

— Area Code 312

S. Richard Pincus Telephone 641-0200

Herbert M. Berman

Russell M. Kofoed

K. Bruce Stickler

David L. Evans

Jeffrey S. Goldman

Peter G. Nash, Esquire

General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C.

Re: Sears, Roebuck and Co. v. National

Labor Relations Board, United States

District Court for the District of

Columbia, Civil Action No. 1571-71;

and Retail Clerks Union, Local 4,

Retail Clerks International Assn.,

AFL-CIO and Sears, Roebuck and

Co., Case No. 19-CB- 1673

Dear Mr. Nash:

Confirming my telephone conversation of today with

Mr. Higgins, Associate General Counsel, it is my under-

standing that until March or April 1971, the Appeals

Branch of the Board prepared and sent Memoranda

(General Counsel Minutes) analyzing appeals cases to

regional directors. In addition, a letter was sent to the

respective parties notifying them of action taken by the

Appeals Branch.

Sometime during March or April 1971, the Appeals

Branch eliminated the practice of sending the regional

director a separate Memoranda; instead, the region was

sent a copy of the letter sent to the parties explaining

the Appeals Branch action. However, a separate Memo-

randa was still prepared and sent to the regional director

in those instances where an appeal from a regional di-

rector’s refusal to issue complaint was sustained.

In a conference on April 7, 1972, attended by Messrs.

Cohen and Smetana, counsel for Sears, Roebuck and

Co.; and Messrs. Bendixsen, Steele and Ms. Morris, at-

torneys for the Board, among other matters, there was

a discussion and understanding as to the availability to

Sears for inspection and copying of certain Office of

Appeals documents, namely:

Letters of the Appeals Branch sent to parties, and

Memora

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