# Appendix — National Labor Relations Board v. Sears, Roebuck & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0060%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 420 U.S. 920 ## Text 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 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 1 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 2 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 9.13.73 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 3 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 4 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 U. 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. 5 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 6 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- 7 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 10 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. 11 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 12 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. 13 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 14 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 15 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 16 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 — — 17 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 By 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 18 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 BT 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. BT 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) 19 ExuHisit D“ east NATIONAL LABOR RELATIONS BOARD 0 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 21 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. 22 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 — 23 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. 24 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 25 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’ 26 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 27 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 28 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 — 29 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- — 31 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., 34 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. 35 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, —— —— —- — — 87 314, 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 38 [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 39 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; 40 (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 41 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 42 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). 43 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 44 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 R 45 [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 46 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- 47 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 48 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 . 51 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 52 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 — 53 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 54 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. 55 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- 56 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 + r rr a rr 57 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 58 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. 59 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). 60 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. 61 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). 62 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- 64 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 if : ta fi 65 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 67 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. 68 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0060%3A02. Public record. Not legal advice.