Appendix — National Labor Relations Board v. Robbins Tire & Rubber Co.

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Supreme Uourt, U. S.

FILED

MAR 15 1978 |

APPENDIX

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-911

NATIONAL LABOR RELATIONS BOARD,

P Petitioner,

—Y,——

ROBBINS TIRE AND RUBBER COMPANY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI FILED DECEMBER 23, 1977

CERTIORARI GRANTED FEBRUARY 21, 1978

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-911

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

—

ROBBINS TIRE AND RUBBER COMPANY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

INDEX

CHRONOLOGICAL LIST OF RELEVANT DOCKET EN-

Me EIIE bideicibiahslabicinsinaitetinihtatiptaatistaistisnaba-achiniiianenssntcinectingahientenstiegen

COMPLAINT, dated April RE SEE PC nara!

Sy en a siuussbibbeiiaadidocouache

REPORT ON CHALLENGED BALLOTS AND OBJEC-

TIONS, Gated Februaty 11, 1076..............................................

DECISION AND DIRECTION, dated April 6, 1976 _...........

CHARGE AGAINST EMPLOYER, filed February 4, 1976...

AMENDED CHARGE AGAINST EMPLOYER, filed March

eh IE sitiehsinscvncinreiicteecieiacsipiatedllagddinccpsasieneeebitinaeleemieashasnienansennigrecncat

COMPLAINT AND NOTICE OF HEARING, dated March

26, 1976 . ;

ANSWER, dated March 31, 1976 siecsditaipripiiiitinpaiininuliicinentainageibiie

REQUEST FOR RECORDS UNDER THE PROVISIONS

OF THE FREEDOM OF INFORMATION ACT, dated

NE MS GRIT er licetiietusivenesiennintesisctlcihinedenadictiiipnctiiccschinsiancnbteciaccenes

DENIAL OF REQUEST FOR RECORDS, dated April 2,

UU |. Deicshyriniepcintcein Nicaea pica irene lnbiatetniainleningittainncecieatasatiintstiiet

APPEAL FROM REQUEST FOR RECORDS UNDER

THE PROVISIONS OF THE FREEDOM OF INFOR-

MATION ACT, dated April 8, 1976 2020.2... eee

ii INDEX

APPLICATION FOR TEMPORARY RESTRAINING OR-

Sy SIE CRIED UI IIIS cssssschcnsipsetiensenenensenetnenecninicincsenininenens

BP ere Ce CI Gy TI rests cttsccsnvsse qectnsnnsnesssenngioses

MOTION TO DISMISS COMPLAINT AND REQUEST FOR

INJUNCTIVE RELIEF, OR, IN THE ALTERNATIVE,

FOR SUMMARY JUDGMENT, filed April 15, 1976 ...........

OPPOSITION TO COMPLAINT AND REQUEST FOR IN-

JUNCTIVE RELIEF, filed April 15, 1976.00.00...

JUDGMENT, dated April 15, 1976.22.00... ee

MEMORANDUM OF DECISION, filed April 16, 1976 ..........

Rn a I I ances sensiiadiiecmesmnepgeensnntinatenscutepenniiess

NOTICE OF APPEAL, filed April 22, 1976.00... ;

TRANSCRIPT OF PROCEEDINGS, dated May 14, 1976...

EMERGENCY MOTION FOR STAY PENDING APPEAL,

I I ny

PLAINTIFF-APPELLEE’S RESPONSE TO EMERGENCY

MOTION FOR STAY PENDING APPEAL, dated April

SEE: MEDPUNT Setcscladnchinpetieilosdensatyiitinpiinatiniianitinnaciinatinappiapedieiinnntoniticipsicin

UTD coccintickitviiatii deteaeonrshe tpl sadiiadbineetbdiatinatniatintitiiildeitediblinnMaanintniegha

DECISION OF THE COURT OF APPEALS, dated Novem-

as TIE iceiasrteastsit tesascendibidpsneniipaielaiiuilddliindisndanttebacsdiniceregerensia

JUDGMENT OF THE COURT OF APPEALS, dated Novem-

See UI winbhinhinsceeecietichascihadebadiheccasetd alice adlonatibinreaciatesdesiabadentnten

ORDER OF THE SUPREME COURT GRANTING CERTI-

ORARI, dated February 21, 1978 .......... 0 Eo, Sak

CHRONOLOGICAL LIST OF RELEVANT

DOCKET ENTRIES

DATE

1976

4.15.76 Complaint filed with acceptance of service for

deft by Mr. William E. Caldwell

4.15.76 Application of plff for temporary restraining

order filed

4.15.76 Affidavit of William M. Ernest filed

4.15.76 Certificate of service filed

4.15.76 Motion of deft to dismiss complaint and request

for injunctive relief, or in the alternative for sum-

mary judgment filed—served in open court by coun-

sel

4.15.76 Opposition of deft to complaint and request

for injunctive relief filed—served in open. court by

counsel

4.15.76 On hearing on application for temporary re-

straining order before the Hon. James H. Hancock at

Birmingham, AL (JOHN WEAVER, reporting) —

court’s preliminary statements—attorney’s state

ments to the Court—no testimony heard—the Court

orders that the hearing on the merits is hereby

advanced and consolidated with application for in-

junctive relief, and taken under advisement

4.15.76 Clerk’s Court Minutes entering judgment on

decision by the court that his matter is taken under

advisement—filed and entered

4.16.76 Memorandum of decision, filed and entered.

JHH. cm

(1)

4.16.76 Order adjudging, decreeing and declaring that

the information sought by plaintiff constitutes pub-

lic information within the meaning of the Freedom

of Information Act, with respect to which plaintiff

is entitled to inspection and copying, and ordering

that the Board shall turn over to the plaintiff copies

of said material on or before Apr 22, 1976, or, at

the election of the Board, on or before a date which

is at least 5 days prior to any hearing, etc., and

taxing costs to the defendants, filed and entered,

JHH cm

4.22.76 Notice of appeal of deft from judgment entered

Apr 16, 1976 filed—ces (certified copies mailed to

USCA and attys)

4.27.76 Certified record on appeal mailed to USCA

(certified copies of docket entries mailed to attys

with letter)

4.20.76 Emergency Motion for stay pending appeal,

filed

4.22.76 Response to Emergency motion for stay of ap-

peal, filed

4.26.76 Order denying Emergency Motion, dated

11.21.77 Decision of the Court of Appeals, dated

11.21.77 Judgment of the Court of Appeals, dated

2.21.78 Order of the Supreme Court granting certio-

rari

[April 13, 1976]

[3]

COMPLAINT

Plaintiff, ROBBINS TIRE AND RUBBER COMPANY,

for its Complaint against the Defendant, NATIONAL

LABOR RELATIONS BOARD (hereinafter also “the

Board” ), respectfully alleges as follows:

I. NATURE OF THE ACTION

1. This is an action under the Freedom of Information

Act to require public disclosure of statements and affi-

davits obtained by agents of the National Labor Relations

Board during the Board’s investigation of an unfair labor

practice charge against the Plaintiff resulting in the issu-

ance of.a Board complaint and during the Board’s investi-

gation of objections to a representation election. Plaintiff

seeks herein injunctive relief against Board proceedings

pending such disclosure.

Il, JURISDICTION

2. This Court has jurisdiction of this action pursuant

to the Freedom of Information Act, as amended, 5 U.S.C.

§ 552(a)(4)(B), the Administrative Procedure Act, 5

U.S.C. §§ 701, et seg., and the All Writs Statute, 28

U.S.C. § 1651.

[4]

Ill. THE PARTIES

3. Plaintiff, ROBBINS TIRE AND RUBBER COM-

PANY, is, and has been at all times material herein, a

corporation duly organized under, and existing by virtue

of the laws of, the State of Alabama, with its principal

offices and place of business located at Sixth Street, in the

County of Colbert and State of Alabama.

4. Plaintiff is, and has been at all times material here-

in, engaged in the manufacture and sale of rubber prod-

ucts in the State of Alabama.

5. Plaintiff, ROBBINS TIRE AND RUBBER COM-

PANY, is a member of the public within the meaning of

the Freedom of Information Act, as ainended, 5 U.S.C.

$ 552(a), and a person within the meaning of that stat-

ute, 5 U.S.C. § 552(a) (3), as well as of the Administra-

tive Procedure Act, 5 U.S.C. § 551(2).

6. Defendant, NATIONAL LABOR RELATIONS

BOARD, is an administrative agency of the United States

Government, created pursuant to the National Labor Rela-

tions Act, as amended, 29 U.S.C. §§ 151, et seq., with its

principal offices located at 1717 Pennsylvania Avenue,

N.W., in the City of Washington, District of Columbia.

7. Defendant Board and its agents constitute an

“agency” with the meaning of the Freedom of Informa-

tion Act, as amended, 5 U.S.C. § 552(e).

IV. FACTUAL ALLEGATIONS

8. On August 7, 1975, the Aluminum Workers Inter-

national Union, AFL-CIO (hereinafter “Aluminum Work-

ers”, a labor organization, filed in Case No. 10-RC-10410

a Petition for an election (EXHIBIT A hereto). Pursu-

ant to a Stipulation for Certification Upon Consent Elec-

tion, approved by the Beard’s

[5]

Acting Regional Director on August 29, 1975, a secret

ballot election was conducted on October 9, 1975 among

employees in the appropriate voting unit.

9. On October 16, 1975, the Aluminum Workers filed

objections to the election and an investigation of these

objections was subsequently made by agents of the Board.

During this investigation, agents of the Board secured

affidavits and/or written statements of various individu-

als. After completing the investigation, the Board’s Re-

gional Director on February 11, 1976, issued his Report

on Challenged Ballots and Objections (EXHIBIT B here-

to).

ees Se ee eee ewe

10. On April 6, 1976, the Board adopted (EXHIBIT

C hereto) the Regional Director’s Report on Challenged

Ballots and Objections, which directed that a hearing be

held if the Aluminum Workers, after challenged ballots

were opened, did not receive a majority of the valid votes

cast. The Aluminum Workers did not receive such a ma-

jority and a hearing has been set for April 27, 1976,

concerning issues raised by the election objections.

11. On February 4, 1976, Gene E. Newton, an indi-

vidual, filed in Case No. 10-CA-11762 an unfair labor

practice charge, alleging that Plaintiff had violated § 8(a)

(1) and (3) of the National Labor Relations Act, as

amended, 29 U.S.C. § 158(a)(1) and (3) (EXHIBIT D

hereto).

12. On March 3, 1976, after investigation by agents of

the Board during which affidavits and/or written state-

ments were taken of certain individuals, the unfair labor

practice charge was amended, deleting the § (a) (3) alle-

gation (EY 4IBIT E hereto). |

13. On March 26, 1976, the Board’s Acting Regional

Director issued a Complaint and Notice of Hearing (EX-

HIBIT F

[6]

hereto) against Plaintiff herein, alleging some forty (40)

instances of alleged violations. The hearing on these alle-

gations has been set for April 27, 1976.

14. On March 31, 1976, Plaintiff herein duly interposed

its Answer to the Complaint, denying the material allega-

tions of the Board Complaint. A copy of Plaintiff’s An-

swer to the Complaint is attached hereto as EXHIBIT G.

15. Pursuant to the Freedom of Information Act, as

amended, 5 U.S.C. § 552(a), and the Board’s Rules and

' Regulations, Series 8, as amended, 29 C.F.R. § 102.117

letter requested of the Board’s Acting Regional Director

Cohen that copies of all written statements, signed or un-

signed, contained in the Board’s case files with respect to

those witnesses which the Board will call to testify at the

April 27, 1976 hearing in Cases Nos. 10-CA-11762 and

10-RC-10410 be made available for inspection and copying

by Plaintiff at least seven (7) days prior to the start of

the hearing. Plaintiff agreed to assume full financial lia-

bility for all charges incurred in responding to the request.

A copy of Plaintiff’s request is attached hereto as EX-

HIBIT H.

16. By letter dated April 2, 1976, Acting Regional

Director Cohen denied Plaintiff’s request, asserting that

the statements which were requested “are privileged from

disclosure by Exemptions 5 and 7(A), (C) and (D) of

Section 552(b) of the Freedom of Information Act (here-

inafter “FOIA”), 5 U.S.C. Section 552(b) (5), 7(A),

7(C) and 7(D).” Acting Regional Director Cohen ad-

vised, however, that review of his determination might

be had pursuant to 29 C.F.R. § 102.117(c) (2) (ii) by

appealing to the Board’s General Counsel. Acting Re-

gional Director Cohen’s letter is attached hereto as EX-

HIBIT I. -

]

17. On April 8, 1976, by air mail, special delivery

letter, Plaintiff duly appealed the determination of Acting

Regional Director Cohen to the Board’s General Counsel,

John S. Irving. A copy of this appeal is attached hereto

as EXHIBIT J.

18. Even though the Board’s General Counsel has not

yet rffled on this Plaintiff’s appeal, Plaintiff has filed this

action now because the hearing in Cases Nos. 10-CA-11762

and 10-RC-10410 is scheduled for April 27, 1976 and the

Board’s firm policy has been to refuse to produce the type

of information sought herein. The Board’s later denial

of Plaintiff’s appeal would prohibit Plaintiff from obtain-

ing prior to the April 27, 1976 hearing the requested in-

formation under the Freedom of Information Act.

V. FURTHER ALLEGATIONS

19. Upon information and belief, all of the information

sought by Plaintiff is within the provisions of the Freedom

of Information Act, as amended, 5 U.S.C. § 552(a) (3),

and is required to be disclosed by the Defendant.

20. Defendant’s failure and refusal to furnish the re-

quested information is arbitrary and capricious, and de-

prives Plaintiff of public information to which it is en-

titled to access.

21. If Plaintiff does not receive the requested informa-

tion a reasonable time prior to the hearing scheduled for

April 27, 1976 in Board Cases Nos. 10-CA-11762 and

10-RC-10410, Plaintiff will be wrongfully precluded from

properly preparing its defense to the allegations contained

in the Board’s Complaint and those set forth in the Re-

port on Challenged Ballots and Objections. Plaintiff will

thereby suffer ”

[

irreparable injury for which no adequate remedy at law

exists.

VI. RELIEF REQUESTED

WHEREFORE, for all of the foregoing reasons, Plain-

tiff prays that this Court order, adjudge and decree that:

1. The information sought by Plaintiff, ie. written

statements now or hereafter contained in the Board’s

case files with respect to those witnesses which the

Board will call to testify at the April 27, 1976 hear-

ing in Cases Nos. 10-CA-11762 and 10-RC-10410

constitutes public information within the meaning

of the Freedom of Information Act, as amended, 5

U.S.C. § 552(a), with respect to which Plaintiff is

entitled to inspection and copying.

2. Defendant be enjoined from withholding such agency

records from Plaintiff.

3. At least seven (7) days prior to the start of the

hearing Defendant be required to produce for in-

os and copying by Plaintiff such agency rec-

ords.

4. Defendant Board and its agents be preliminarily

enjoined from conducting its administrative hearing

in Cases Nos. 10-CA-11762 and 10-RC-10410 now

scheduled for April 27, 1976, until the final resolu-

tion of the allegations contained herein.

5. Defendant Board and its agents be permanently en-

joined from conducting its administrative hearing

in Cases Nos. 10-CA-11762 and 10-RC-10410 until

at least seven (7) days after Defendant provides the

requested statements and/or affidavits to Plaintiff.

6. Plaintiff be awarded reasonable attorneys’ fees and

other litigation costs reasonably incurred in this

action ;

and such other and further relief as to the Court may

seem reasonable and proper in the circumstances.

And Plaintiff further prays that, in accordance with

the Freedom of Information Act, as amended, 5 U.S.C.

$ 552(a) (4) (D), except as to cases the Court considers

of greater importance, proceedings herein take precedence

on the docket over all

(9)

cases and be assigned for hearing or trial or for argu-

ment at the earliest practicable date and expedited in

every way.

Respectfully submitted,

POELLNITZ, Cox, ROBISON,

McBuRNEY & JONES

By: /s/ C. A. Poellnitz

ELARBEE, CLARK & PAUL

By: /s/ William M. Earnest

Attorneys for Plaintiff

ELARBEE, CLARK & PAUL

750 Coastal States Building

Atlanta, Georgia 30303

(404) 688-8000

POELLNITZ, Cox, ROBINSON, MCBURNEY & JONES

P. O. Box 876

Florence, Alabama 35630

(205) 764-0821

STATE OF ALABAMA )

)

COUNTY OF LAUDERDALE )

Comes Wilmer E. Maddox, Personnel Manager for

Robbins Tire and Rubber Company, Inc., the plaintiff

herein, who is known to me and who, being first duly

sworn, states that the allegations of fact in the foregoing

complaint are true and correct, to the best of his knowl-

edge, information and belief.

This the 13th day of April, 1976.

/s/ Wilmer E. Maddox

WILMER E. Mappox

Sworn to and subscribed before me

on this the 13th day of April, 1976.

/s/ {mogene Ward

Notary Public

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(11)

{February 11, 1976]

& * e e e

REPORT ON CHALLENGED BALLOTS

AND OBJECTIONS

The petition in the above-entitled proceeding was filed

on August 7, 1975. Pursuant to a Stipulation for Certifi-

cation Upon Consent Election approved August 29, 1975,

an election by secret ballot was conducted on October 9,

1975, among the employees in the appropriate unit to

determine the question concerning representation.’ Upon

conclusion of the balloting the parties were furnished a

tally of ballots which showed that of approximately 537

eligible voters, 244 cast valid votes for and 248 cast valid

votes against the Petitioner. There were 2 void ballots

and 10 challenged ballots. The challenged ballots are suffi-

cient in number to affect the results of the election. On

October 16, 1975, the Petitioner filed timely objections to

the election and a copy thereof was timely served on the

Employer.

Pursuant to Section 102.69 of the Board’s Rules and

Regulations, an investigation of the issues raised by the

challenged ballots and objections has been conducted and

the undersigned, having considered the results thereof,

makes the following findings and recommendations to the

Board:

1 The appropriate unit is: “All production and maintenance em-

ployees, including truck drivers and shipping, receiving and inven-

tory clerks and all other plant clerical employees, employed by the

Employer at its Plant Numbers 1 and 2 located, respectively, in

Muscle Shoals City, Alabama and Tuscumbia, Alabama, but exclud-

ing all office clerical employees, professional employees, guards and

supervisors as defined in the Act.”

(12]

THE CHALLENGED BALLOTS

Thelma M. Borden, Martin G. McKay, Robert W. Mc-

Corkle, D. H. Kimbrough, and James Trousdale were

challenged by the Petitioner on the ground that they are

supervisors. No evidence ‘vas presented by the Petitioner

to show that any of these above-named employees possess

any of the indicia of supervisory authority as defined in

Section 2(11) of the Act and the Employer denied that

they are supervisors. Therefore, the undersigned finds

them to be eligihle voters.

J. D. Colburn was challenged by the Board agent be-

cause his name did not appear on the eligibility list for

the payroll period ending August 24, 1975. according to

the Employer’s personnel records, Colburn was terminated

on September 8, 1975. Inasmuch as Colburn was not em-

ployed on the date of the election, the undersigned finds

that he is not an eligible voter.

Larry W. Kirby was challenged by the Board agent be-

cause his name was not on the eligibility list. Personnel

records on Kirby show that he was hired on August 28,

1975. The eligibility date for the election was August 24,

1975, and, inasmuch as Kirby was not employed on that

date, he is not an eligible voter.

James M. Johnson was challenged by the Board agent

because his name did not appear on the voting list at the

polling place at which he appeared to vote (there were

two polling places). However, his name does appear on

the voting list at the other location and was not stricken

from that list, indicating he did not vote there. The pay-

roll records indicate that Johnson was hired on June 4,

1974, and was working on the day of the election as a

driver. Therefore, the undersigned finds that Johnson is

an eligible voter.

Ronald Vernon was challenged by the Board agent be-

cause his name was not on the eligibility list. According

to Vernon, and corroborated by Employer records, he was

hired May 24, 1973, and worked continuously

ween

[13]

until he went on military leave in May 1975. Inasmuch

as Vernon was continuously employed by the Employer,

being on a military leave of absence, and had returned

to work and was working on the day of the election, the

undersigned finds him to be an eligible voter.

The Petitioner objected to the Board agent’s ruling on

a ballot during the count of the ballots on the ground

that the identity of the voter is revealed by certain finger-

prints or thumbprints that appear as smudges on the

ballot. In the opinion of the undersigned, such inadvertent

marks left by a workers’ soiled hands do not reveal the

voter’s identity. Therefore, since the secrecy of the ballet

is not disturbed and the voter’s intent is clearly shown,

the undersigned finds this to be a valid ballot.

OBJECTIONS

By letter dated November 11, 1975, the Petitioner re-

quested withdrawal of its Objections number 2, 3, 4, 5

and 6. Such request is hereby granted.

OBJECTION 1:

The Employer, through its representatives, made

threats . take away their Bonus and other Benefits

if the Employees voted for the Union.

The Petitioner presented two employees as witnesses

with respect to this objection. One witness stated that on

or about October 8, 1975, the supervisor in the cove base

department, James Cooley, toid this employee that the

Eniployer would take away tne employees Christmas

bonus if the Union came in. According to this witness,

no one else was present when this conversation took place.

Cooley denied that he told any employee that he thought

the Employer would take away the Christmas bonus if

the Union came in. Since there were, admittedly, no wit-

nesses to this alleged conversation, a credibility issue

exists.

[14]

Another employee witness testified that on or about

October 7, 1975, Personnel Manager Billy Irons, during

a conversation which took place in the cove base depart-

ment, stated the Company would never de anything else

for that employee if he voted against the Company. This

statement is completely denied by Irons. Thus, both of

the above incidents present credibility issues which may

best be resolved by record testimony in a hearing.

Several employee witnesses stated that during two meet-

ings held prior to the election, one about a month prior

to and the other within a week of the election, the Em-

ployer’s Executive Vice-President Poncet Davis, Jr., spoke

to them and told the employees that any negotiations with

the Union on wages could begin with the-minimum wage

and that the employees could lose their Christmas bonus

through negotiations. Davis also allegedly told the em-

ployees, in reference to a strike at the Employer’s plants

which occurred in the early 1960’s, that, if the Union

came in it would happen again and it was possible the

plant would not reopen this time. All of the witnesses

were in agreement that Davis read his speeches from pre-

pared texts.

While complete copies of Davis’ two speeches were not

presented by the Employer, the portions of those speeches

applicable to the above allegations were presented through

the sworn statement of Personnel Manager Wilmer E.

Maddox who was present when both speeches were given

and who had copies of both speeches with him and fol-

lowed along as Davis spoke.

According to Maddox, there was nothing said during

the first speech, which was given during meetings on

September 10, 1975, with reference to wage negotiations

beginning with the minimum wage. Davis did refer to

a strike at Robbins in the early 1960’s which involved

this same Union and made the following statements:

[15]

There was a 714 week strike mainly because the

Company would not grant a check-off. Consider

. nil

ne ra

what can to a company’s business when there

is a pote a at Union Aluminum (UALCO) in

Sheffield. After a devastating strike it never re-

opened. All of its business had gone to competitors,

and there was no business to go home to. If we have

a strike which shuts down the plant for any period

of time, our customers may go elsewhere to get

tubes and cove. Then if we come back after a strike

and say to our customers, “We are back, give us an

order.” Most of them may say, “We are happy you

are back, but we have a new supplier. If you want

our business again, give us a price discount, to get

back in.” Then we give a price discount, and say

we start up again. What does that do to company

profits and wage increases. The company profit is

crippled, and where does the money come for wage

increases?

Go down to Sheffield at Raleigh & 3rd Street, and

drive around the empty Union Aluminum plant

which once worked many hundreds of people. This

same Aluminum Workers Union got in there and

said they would help. Did the union help? Every

employee lost his job. What happened—a 19-month

strike. The company went out of business. Who got

hurt? Who got hurt—the employees and their fam-

ilies, that’s who got hurt. All lost their jobs. I

hope that doesn’t happen here at Robbins.

The only statement made by Davis about losing _the

Christman bonus was “All employees lost in negotiations

their Christmas bonus for that year and never got it

back.”

Davis’ second speech was given on October 7, 1975.

Davis said the following with respect to negotiations

beginning with the minimum wage:

The Company and the Union don’t have to start

negotiations from where you are now. You should

know before you vote, negotiations can start from

the minimum wage and no benefits. Even from where

our wages and benefits are now, negotiations can go

up or go down.

With respect to the subject of the Christmas bonus

Davis said:

You know the Union in negotiations lost the em-

ployees their Christmas bonus that year. The Com-

pany will not take away the Christmas bonus be

cause the Union might be voted in. However, if this

Union is voted in here, your Christmas bonus is

going to be up for negotiation. When this same

Union got in here before, the Christmas bonus was

up for negotiation. Your Christmas bonus was not

paid after negotiations with this same Union.

[16]

I’d ask the Union what happened last time they got

in and promised a lot and actually lost the em-

ployees’ paychecks for 714 weeks and their Christ-

ras bonus in negotiations.

Davis made the following statements with respect to

strikes:

I have asked our auditors to give me a report on

how a strike could affect the company. They tell me

a long strike would mean limited production by

supervisors and others that would work. We would

have two choices. The company might be able to

continue limited production, and try to get other com-

panies to stamp the Robbins or Western or Flexco

brand on our products for us, and ship direct to our

customers for us. Or we might have to liquidate, and

the family put what’s left into other investments,

since to start up again, giving price discounts which

I told you about would be terrible. The UALCO

plant in Sheffield had to liquidate, and never started

up again because of the Aluminum Workers’ strike.

Finally, I’d ask the union pushers two last questions.

How much money they will give you to live on dur-

ing a long strike, and for how long. Secondly, ask

if this very same union has actually broken other

companies Robbins’ size, like UALCO. Then I’d ask

one of the union guys to actually drive me around

the dead UALCO plant at Raleigh and 2nd in Shef-

field, and explain “WHAT HAPPENED.” What

happened here, to all the fancy union promises, of

how the union could make the company do anything.

There have been no allegations made nor evidence pre-

sented by the Petitioner that the factual situations re-

ferred to in Davis’ speeches, such as to the strikes at

Robbins and at UALCO during the early 1960’s are mis-

representations. In the opinion of the undersigned, the

statements made by Davis do not constitute threats of

job loss or benefit loss, but are subject to voter evalua-

tion and within the realm of permissible campaign propa-

ganda, and, thus not objectionable.

OBJECTION 7:

Removing Union Buttons from employees’ clothing.

One employee alleged that about two weeks prior to

the election, packing department Supervisor Donald Pen-

nington grabbed a union button off this employee’s shirt

pocket and put it in his own pocket. Three or four other

employees, whose identity this witness could not recall,

were standing in close vicinity when this incident took

lace.

2 [17]

According to the Employer, Pennington is no longer

employed by the Employer and, thus, was not available

for a response.

Another employee alleged that about three to four

weeks prior to the election, lap splicing department Super-

visor Tom Ellett removed a union button from that em-

ployee’s shirt while two other employees were present.

Ellett admitted that, perhaps three weeks prior to the

election, he had a conversation with an employee in the

lap splicing department about the Union and that this

was only one of many such voluntary discussions be-

tween Ellett and that employee concerning the subject.

At one point during the conversation the employee pointed

to a union button he had on his shirt pocket and said

that he was not going to vote for the Union but was

merely wearing the button to keep the other employees

from bothering him. The employee pointed to the button

again and said that Ellett could have it if he wanted it.

Thus, Ellett reached over, unclasped the button (perhaps

with the assistance of the employee), and removed the

button. Ellett stated that this was the only time he took a

button from any employee and that he had not asked for

the button in this instance. Ellett couldn’t recall if

anyone else was around when this took place.

An employee on the 7 a.m. to 3 p.m. shift alleged that a

few days prior to the election, as he was leaving the plant

at the end of his shift, he was stopped by evening shift

Supervisor William Daniel. Daniel pointed te a pen

clasp that the employee had on his shirt pocket which

had a Union insignia upon it and asked why the em-

ployee was advertising the Union. The employee re-

plied that it was a good pen holder. Daniel then pulled

the holder out of the employee’s shirt pocket, turned it

around so the insignia wouldn’t show, and replaced it,

saying as he did so that he would get the employee a

better one. Danied admitted that one day prior to the

[18]

election as he was coming in at the start of his shift,

he passed a friend of his. According to Daniel, the em-

ployee pulled his jacket open to reveal his shirt pocket

and told Daniel to see what a good pencil holder he had.

Daniel looked at the pen holder with the Union insignia

on it and replied that it was a good one but he, Daniel,

could get him a better one. Daniel stated that this was

all that was said and denied that he touched the pen

holder at all.

In the opinion of the undersigned, the above incidents

described by the employee witnesses, and the denials

thereof by the supervisors, raise credibility issues which

may be best resolved by record testimony at a hearing.

OBJECTION 8:

Making threats to discharge employees for engaging

in Union activities.

One employee wiiness alleged that on or about October

8, 1975, Personnel Manager Billy Irons asked him, while

out in the plant, how he was going to vote. When the

employee replied that he hadn’t decided, Irons allegedly

replied that he was disappointed in this employee and

thought that perhaps he (Irons) had made a mistake in

hiring him. Irons denied that he asked any employee

how he was going to vote or that he told any employee,

in connection with a discussion of the Union, that he,

Irons, felt he had made a mistake in hiring him.

Another witness, who does not work for Robbins but

who is the brother of an employee, stated that about a

month prior to the election, Supervisor Buck Collins

stopped by this witness’ home and asked if there were

any job openings where this individual worked. When

this witness asked who needed a job, Collins allegedly

replied that this witness’ brother (the Robbins em-

ployee) might. When asked if that was because of the

Union, Collins allegedly replied that it was. Collins, on

the other hand, stated that he stopped at a local gas

station one day prior to the election and saw an em-

ployee’s

[19]

brother there who asked Collins if he had any jumper

cables. Col:'"s replied that he did not, but the station

owner overheard and replied that he had some. The

three of them then walked over to this person’s car and

attempted to get it started. At some point, Collins was

asked how the Union was coming along at Robbins to

which Collins replied that it looked good. According to

Collins, that was all that was said about the Union

and he denied asking about any job openings or inferring

that the Robbins’ employee might need a job because of

the Union.

Another employee alleged that Supervisor Collins

warned him about a week prior to the election that he

would be “run off” if he didn’t quit pushing the Union.

The employee’s wife and grandmother also alleged that

Collins called them at their home orior to the election,

warning them that this employee would lose his job

if he didn’t leave the Union alone. Collins denied that

any such incidents took piace.

Such credibility issues as raised by the above objec-

tion may best be resolved by record testimony at a

hearing.

OBJECTION 9:

A representative of management engaged in elec-

tioneering within a plain sight of the entrance way

to the voting area, while the employees were going

to vote.

Several employees alleged that they viewed certain man-

agement officials, namely Wilmer Maddox and Billy Irons,

standing inside an entrance way some 15 to 20 feet from

the entrance to the cafeteria at Plant No. 1 where the

polling place was located. However, none of these wit-

nesses recalled anything being said to them by either

Maddox or Irons other than a casual greeting. Both

Maddox and Irons admit that they were in the plant area

in question during the time the polls were open but that

they were only there to insure that certain equipment

in that building which needed close attention was

(20]

not left unattended and to be sure that all employees

were given an opportunity to go vote. Both deny that

they said anything to any rank-and-file employees while

the polls were open. Absent any evidence of interference

on the part of these Employer officials, the undersigned

finds Objection 9 to be without merit.

OBJECTION 10:

Promising to give certain employees an extra bonus

if they voted against Union representation.

Four employees presented by the Petitioner alleged that

various supervisors, including cove base department Su-

pervisor Leonard McCormick, tread rubber department

Supervisor Sam Styles, and lap splicing department Su-

a ee ee ey ee ae et

ee ee

pervisor James Borden, told them the Employer in-

tended to give the employees a three-week Christmas

bonus instead of the usual two-week bonus if the Union

didn’t come in. All three supervisors denied that they

told any employees they would receive an extra Christ-

mas bonus if the Union was not voted in. Another em-

ployee witness stated that on two separate occasions

within a week and a half of the election he asked pro-

duction belt Supervisor Roger Crittenden if the em-

ployees would receive an extra Christmas bonus and

Crittenden allegedly said thet they might possibly get

an extra bonus but he couldn’t say for sure, that the last

time the Union came in the employees did not get any

bonus. While Crittenden admitted that several employees

asked him, prior to the election, about the possibility

of an extra Christmas bonus, he denied that he said

they might possibly get an extra bonus. According to

Crittenden, he told any employee who asked that he knew

nothing about an extra Christmas bonus. The foregoing

allegations and denials thereof raise credibility issues

which may best be resolved by record testimony in a

hearing.

OBJECTION 11:

Other conduct not specifically alleged but adduced

by the investigation.

[21]

One employee alleged that on the evening of October

8-9. prior to the opening of the polls, Vice-President of

Production Deek Wann came over to him and asked him

why he was for the Union and what had the Union ever

done for him. (According to this witness, another em-

ployee had stuck a union sticker on his back.) Wann

allegedly stated that the Employer had done a lot for the

employee by hiring him and training him and that he

should be a good employee and vote against the Union.

This employee replied that he would make up his mind

when he went to vote. Wann admitted that he talked to

numerous employees on the evening prior to the opening

of the polls, but could not recall seeing any employee

with a union sticker on his back and denied making any

statements as alleged.

Another employee alleged that he and a relative of his

who is also employed at Robbins approached mill room

Supervisor Tommy Dickens about two weeks prior to the

election and asked Dickens to serve as a reference for a

relative of theirs who was seeking employment at Rob-

bins. According to both witnesses, Dickens asked them

if the prospective employee was a union man or not.

Dickens admitted that he is frequently asked by Robbins’

employees to serve as a reference for a friend or relative

who is seeking employment there. However, Dickens

could not recall anyone asking him during the month

prior to the election and pointed out that Robbins was

not even hiring at that time. Dickens also denied that he

ever asked any employee whether a prospective employee

was pro-union or not.

One of the above employee witnesses also alleged that

on the same day as above he went to see Superintendent

Harry Meadows and also asked Meadows to serve as a

reference for his relative who was applying for a job.

According to this witness, Meadows asked if the appli-

cant was a union man and stated that the Employer

didn’t need any more troublemakers in the plant. Mead-

dows could not recall any

[22]

employee asking him to serve as a reference during the

time immediately preceding the election and also pointed

out that the Employer was not hiring at that time. He

specifically denied that he ever asked any employee is

a job applicant was for the Union or that he stated,

in reference to the Union, that the Employer didn’t need

any more troublemakers.

These above alleged incidents raise credibility issues

ee may best be resolved by record testimony at a

earing.

;

FINDINGS AND RECOMMENDATIONS

For the reesons stated above, the undersigned finds

J. D. Colburn and Larry W. Kirby to be ineligible voters

and recommends to the Board that the challenges to their

ballots be sustained and that Thelma M. Borden, Martin

G. McKay, Robert W. McCorkle, D. H. Kimbrough,

James Trousdale, James M. Johnson and Ronald Vernon

are eligible voters and the ballot challenged by the Peti-

tioner as revealing the identity of the voter is a valid

ballot and recommends to the Board that those chal-

lenges be overruled, the ballots be opened and counted

and, upon the basis of which, a Revised Tally of Ballots

issue. If said Revised Tally of Ballots shows the Peti-

tioner to have received a majority of the valid votes

counted, it is recommended that a Certification of Repre-

sentative issue. Should the revised tally show the Peti-

tioner not having received a majority of the valid votes

counted, it is recommended that Petitioner’s Objection 9

be overruled and that a hearing be ordered to resolve

the issues raised by the Petitioner’s Objections 1, 7, 8,

10, and 11.”

Dated at Atlanta, Georgia, this 11th day of Febru-

ary 1976.

/s/ Walter C. Phillips

Walter C. Phillips,

Regional Director.

National Labor Relations Board

730 Peachtree Street, N.E.,

Room 701

Atlanta, Georgia 30308

2 Under the provisions of Section 102.69 of the Board’s Rules and

Regulations, exceptions to this report may be filed with the Board in

Washington, D.C. Exceptions must be received by the Board in

Washington by February 24, 1976.

EXHIBIT C

[23]

[April 6, 1976]

DECISION AND DIRECTION

Pursuant to authority granted it under Section (b) of

the National Labor Relations Act, as amended, a three-

member panel has considered determinative challenges

and objections in an election held October 9, 1975,’ and

the Regional Director’s Report recommending disposition

of same. The Board has reviewed the record in light

of the exceptions and briefs, and hereby adopts the

Regional Director’s findings and recommendations.

DIRECTION

IT IS HEREBY DIRECTED that the Regional Di-

rector for Region 10 shall, pursuant to the Rules and

Regulations of the Board, within 10 days from the date

of this Direction, open and count the smudged ballot and

the ballots of Thelma M. Borden, Martin G. McKay, Rob-

ert W. McCorkle, D. H. Kimbrough, James Trousdale,

James M. Johnson and Ronald Vernon and, thereafter,

prepare and cause to be served upon the parties a re-

vised tally of ballots, including therein the count of said

ballots. In the event that the revised tally of ballots

shows that the Petitioner has received a majority of the

valid ballots cast, the Petitioner’s objections will be moot,

and the Regional Director shall issue the appropriate

certification of representative.

IT IS FURTHER DIRECTED that in the event the re-

vised tally of ballots shows that the Petitioner has not

received a majority of the ballots cast, a hearing be held

before a Hearing Officer, to be designated by the Regional

Director for

* The election was conducted pursuant to a Stipulation for Certifi-

cation Upon Consent Election. The tally was 244 for, and 248

against, the Petitioner; there were 10 challenged ballots.

ae ne

[24]

The purposes of taking evidence with respect to the issues

raised by Objections 1, 7, 8, 10 and 11.

IT IS FURTHER DIRECTED that the Hearing Of-

ficer designated for the purpose of conducting such a

hearing shall prepare and cause to be served on the

parties a report containing resolutions of credibility. of

witnesses, findings of fact, and recommendations to the

Board as to the disposition of said issues. Within 10

days from the issuance of such report either party may

file with the Board in Washington, D.C., an original and

7 copies of the exceptance thereto. Immediately upon the

filing of such exceptions the parties filing the same shall

serve a cop; on the other party and file a copy with the

Regional Director. If no exceptions are filed thereto, the

Board will adopt the recommendations of the Hearing

Officer.

IT IS FURTHER DIRECTED that the above entitled

matter be, and it hereby is, referred to the said Regional

Director for the aforementioned purpose, including the

purpose of conducting a hearing if necessary, and the

Regional Director be, and hereby is, authorized to issue

Notice thereof.

Dated, Washington, D.C. April 6, 1976.

John H. Fanning, Member

John A. Penello, Member

Peter D. Walther, Member

National Labor Relations Board

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EXHIBIT F

[27]

{dated March 26, 1976]

COMPLAINT AND NOTICE OF HEARING

It having been cha by Gene E, Newton, an individ-

ual, that Robbins Tire and Rubber Company, herein

called Respondent, has engaged in, and is engaging in,

unfair labor practices affecting commerce as set forth

and defined in the National Labor Relations Act, as

amended, 29 U.S.C, See, 151, et seq., herein called the

Act, the General Counsel of the National Labor Rela-

tions Board, herein called the Board, on behalf of the

Board, by the undersigned Acting Regional Director, is-

sues this Complaint and Notice of Hearing pursuant to

Section 10(b) of the Act and Section 102.15 of the

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

Copies of the charge and amended charge, filed on

February 4, 1976, and March 8, 1976, respectively, were

served upon Respondent by registered mail on February

4, 1976, and March 8, 1976, respectively,

Respondent is, and has been at all times material here-

in, an Alabama corporation with an office and places of

business located at Muscle Shoals City, Alabama, and

Tuscumbia, Alabama, where it is engaged in the manu-

facture of rubber products,

Respondent, during the past calendar year, which pe-

riod is representative of all times material herein, sold

and shipped finished products valued in excess of $50,000

acl ——~

;

directly to customers located outside the State of Ala-

bama, res)

Respondent is, and has been at all times material

herein, engaged in commerce within the meaning of Sec-

tion 2(6) and (7) of the Act,

Aluminum Workers International Union, AFL-CIO

(herein called the Union), is, and has been at all times

material herein, a labor organization within the mean-

ing of Section 2(5) of the Act,

The following-named individuals, occupying the .

tions set opposite their respective names, are, and have

been at all times material herein, agents of Respondent

oy | rea within the meaning of Section 2(11) of

e Act:

James J, Borden ~~ Firat Shift Foreman in

Plant #1

James J, Cooley ~~ Third Shift Cove Base Dept.

Supervisor

Hollis Collins ~~ Firat Shift Curing Tube

Dept, Supervisor

Robert Edward Crittenden ~~ Third Shift Production Belt

Supervisor

William G. Daniel ~~ Second Shift Supervisor in

Plant #1

Tommy Dickens ~~ Second Shift Mill Room

Supervisor

Thomas Ellett ~- Second Shift Lap Splicing

Dept, Supervisor

Billy Ray Irons ~— Asalstant Personnel

Manager

Leonard MeCormick —— Second Shift Cove Base

Dept, Supervisor

Harry Meadows — Superintendent of the Mill

Room, Cove Base Dept, and

Receiving Dept,

Michael Palmer — Lap Splice Department

Supervisor

Donald Pennington ~— Packing Department Super:

visor

Sam Styles —— Firat Shift Cold Tread Rub-

ber Department Supervisor

Donald Tyne — Supervisor

Deek Wann — Vice President of Produc.

tion

[29)

Respondent, by its following-named supervisors and

agents, on or about the dates set opposite their respective

names, in and about the vicinity of its Plant #1, inter-

ated its employees concerning their union member-

ship, activities and desires, and the union membership,

activities and desires of other employees:

Lap Splice Dept, Supervisor

Michael Palmer ~~ Auguat 19, 1976, and

September 18, 1976

Supervisor Donald Tyne ~~ August 20, 1975

Curing Tube Dept, Super-

visor Hollis Collins ~ September 2, 1975

Packing Department Super-

visor Donald Pennington -— September 16, 1975

Lap Splice Dept, Supervisor

Thomas Ellet ~~ October 2, 1975

Second Shift Supervisor in

Plant #1 iNiam §=6G,

Daniel ~- October 7, 1976

Respondent, by its following-named supervisors and

agenta, on or about the dates set opposite their respective

names, in and about the vicinity of its Plant #2, in-

terrogated its employees concerning their union member-

ship, activities and desires and union membership,

activities and desires of other employees.

Cove Base Dept, Supervisor

James J, Cooley —— September 22, 1976

September 20, 1976

Superintendent Harry

Meadows —-— September 26, 1075

October 2, 10975

Mill Room Supervisor

Tommy Dickens —- September 26, 19765

Vice President Deek Wann — October 8, 1975

Assistant Personnel Man-

ager Billy Ray Irons ~~ October 8, 19756

(80)

Respondent, by its following-named supervisors and

agents, on or about the dates set opposite their respective

names, in and about the vicini ites Plant #1, prom-

ised its employees an incre Christmas bonus if the

employees rejected the Union as their collective bargain-

ing agent:

Plant #1 Foreman

James J, Borden ~~ September 26, 1076

Cold Tread Rubber Depwrt-

ment Supervisor Sam

September 29, 1976

10,

Respondent, by its supervisor and agent, Cove Base

Department Supervisor Leonard McCormick, on or about

October 2, 1975, in and about the vicinity of ita Plant

#2, promised its employees a larger Christmas bonus if

the employees rejected the Union as their collective bar-

gaining agent,

11,

Respondent, by its following-named supervisors and

agents, on or about the dates set opposite their respective

names, in and about the vicinity of its Plant #2, threat-

ened its employees that the plant would close if the Union

were successful in its organizational campaign:

Lap Splice Dept, Supervisor

Thomas Ellett ~~ September 26, 1976

Vice President Deek Wann ~~ October 4, 1076

12,

Respondent, by its supervisor and agent, Assistant

Personnel Manager Billy Ray Lrons, on or about Oc-

tober 7, 1975, in and about the vicinity of its Plant #2,

threatened its employees with reprisal by a ite em-

ployees if they voted for the Union, the Employer

would never do anything else for them,

13,

Respondent, by ite supervisor and agent, Curing Tube

Department Supervisor Hollis Collins, on or about Sep-

tember 2, 1975, in and about the

(1)

vicinity of ite Plant 1; on or about September 9, 1975,

in and about the vicinity of an employee's home in Rus

seliville, Alabama; and on or about October 2, 1975, in

and about the vicinity of its Plant #1 and in telephone

conversations, threatened its employees with discharge

if they engaged in activities on behalf of the Union.

14,

Respondent, by its supervisor and agent, Vice President

Deek Wann, on or about September 25, 1975, in and

about the vicinity of its Plant #1, threatened its em-

ployees that it would be futile for the employees to en-

gage in activities on behalf of the Union by stating that

the Union could not make Respondent do an it

did not want to do. —

she KOT ABATE

15.

Respondent, by its supervisor and agent, Lap Splice

Department Supervisor Thomas Ellett, on or about Oc-

tober 2, 1975, and October 6, 1975, in and about the

vicinity of its Plant #1, threatened its employees that it

would be futile for the Union to represent the employees

since the Respondent would not negotiate with the Union

nor give the Union what it wanted.

16.

Respondent, by its supervisor and agent, Superinten-

dent Harry Meadows, on or about September 25, 1975,

in and about the vicinity of its Plant #2, threatened its

employees that it would not hire individuals who sup-

ported the Union. i

Respondent, by its supervisor and agent, Vice President

Deek Wann, on or about October 3, 1975, in and about the

vicinity of its Plant #1, threatened its employees that

it would not employ individuals who supported the Union.

[32]

Respondent, by its following-named supervisors and

agents, on or about the dates set opposite their respec-

tive names, in and about the vicinity of its Plant #1,

threatened its employees with the loss of their Christmas

bonus if the Union were selected as their collective bar-

gaining agent:

Lap Splice Department Su-

pervisor Michael Palmer — August 19, 1975

Supervisor Donald Tyne — August 20, 1975

Cold Tread Rubber Depart-

ment Supervisor Sam

Styles — September 25, 1975

Lap Splice Department Su-

pervisor Thomas Ellett — September 29, 1975

Production Belt Supervisor

Roger Crittenden —- September 30, 1975

Vice President Deek Wann — October 3, 1975

19.

Respondent, by its supervisor and agent, Cove Base De-

partment Supervisor James J. Cooley, on or about Oc-

tober 8, 1975, in and about the vicinity of its Plant #2,

threatened its employees with the loss of bonuses if the

Union were selected as their collective bargaining agent.

20.

Respondent, by its following-named supervisors and

agents, on or about the dates set opposite their respective

names, in and about the vicinity of its Plant #1, physi-

cally removed union insignia being worn by its employees:

Lap Splice Department Su-

pervisor Michael Palmer — September 18, 1975

Lap Splice Department Su-

pervisor Thomas Ellett — September 18, 1975

Packing Department Super-

visor Donald Pennington — September 25, 1975

21.

Respondent, by its supervisor and agent, Lap Splice

Department Supervisor Michael Palmer, on or about Octo-

ber 10, 1975, in and about

[33]

the vicinity of its Plant #1, prohibited its employees from

talking about the Union at any time.

22.

The acts of Respondent alleged in paragraphs 7, 8, 9,

10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 above

constitute unfair labor practices affecting commerce with-

in the meaning of Section 8(a) (1) and Section 2(6) and

(7) of the Act.

PLEASE TAKE NOTICE that on the 27th day of

April, 1976, at 10:00 a.m., Central Daylight Time, and

consecutive days thereafter until concluded, in the Colbert

County Courthouse, Tuscumbia, Alabama, a hearing will

be conducted before a duly designated Administrative Law

Judge of the National Labor Relations Board on the alle-

gations 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 in Unfair

Labor Practice Cases, is attached.

YOU ARE FURTHER NOTIFIED that, pursuant to

Sections 102.20 and 102.21 of the Board’s Rules and Regu-

lations, the Respondent shall file with the undersigned

Acting Regional Director, acting in this matter as agent

of the National Labor Relations Board, an original and

4 copies of an answer to said complaint within 10 days

from the service thereof and that unless it does so all of

the allegations in the complaint shall be deemed to be

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

Immediately upon the filing of its answer, Respondent

shall serve a copy thereof on each of the other parties.

a at Atlanta, Georgia, this 26th day of March,

Gilbert Cohen, Acting Regional Director

National Labor Relations Board

730 Peachtree Street, N.E., Room 701

Atlanta, Georgia 30308

EXHIBIT G

[34]

ANSWER

COMES NOW Robbins Tire and Rubber Company, Re-

spondent here, and files pursuant to Sections 102.20 and

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

as amended, this its Answer to the March 26, 1976 Com-

plaint of the Acting Regional Director. In support hereof,

Respondent answers as follows:

Paragraphs 1, 2, 3, 4, 5, 6, of the Complaint are ad-

mitted.

Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,

19, 20, 21, 22 of the Complaint are denied.

WHEREFORE having fully answered this 31st day of

March, 1976, Respondent respectfully moves the Com-

plaint be dismissed in its entirety.

Respectfully submitted,

Robbins Tire and Rubber Company

By:

WILLIAM M. EARNEST,

Of Counsel

ELARBEE, CLARK & PAUL

750 Coastal States Building

Atlanta, Georgia 30303

(404) 688-8000

tlle er elt el a dla acd

EXHIBIT H

(35)

CERTIFICATE OF SERVICE

[36]

LETTERHEAD

[March 31, 1976]

HAND DELIVERED

Mr. Gilbert Cohen,

Acting Regional Director

National Labor Relations Board

Region 10

730 Peachtree Street, N.E.

Suite 701

Atlanta, Georgia 30308

Re: Robbins Tire and Rubber Company

Cases Nos. 10-CA-11762 and 10-RC-10410

sees eeeereeeeeeeeeseeaeaeaeseeseeoeeseeeadce €C eee e¢ 8 @

Request for Records Under The Provisions

Of The Freedom Of Information Act

Dear Mr. Cohen:

The Answer to the March 26, 1976 Complaint and No-

tice of Hearing has been filed this date with your office.

We are also in receipt of your office’s February 11, 1976

Report on Challenged Ballots and Objections which recom-

mends that a hearing be conducted to resolve credibility

issues. The alleged incidents set forth in the Report on

Challenged Ballots and Objections are co-extensive with

portions of the allegations of the Complaint.

Pursuant to the requirements of the Freedom of Infcr-

mation Act, as amended, 5 U.S.C. § 552(a), and the Rules

and Regulations of the National Labor Relations Board,

as amended, 29 C.F.R. § 102.117(c) (1), it is hereby re-

quested that copies of ail written statements, signed or

unsigned, contained in the Board’s case files with respect,

to those witnesses which on

[37

the Board will call to testify at the hearing(s) in the

above-referenced cases be made available for inspection

and copying by the undersigned at least seven (7) days

prior to the start of said hearing(s). The hearing in Case

No. 10-CA-11762 is scheduled to begin on April 27, 1976.

Please be advised, pursuant to 29 C.F.R. § 102.117(c)

(2) (iv) (b), that the undersigned agrees to assume full

financial liability for all charges which may be incurred

in responding te this request.

As this request has been hand delivered this date and

the hearing date is only a matter of weeks away, we ask

that you respond as soon as possible, in accordance with

the requirements of the Freedom of Information Act, 5

U.S.C. § 552(a) (6) (A) (i), and the Board’s Rules and

Regulations, 29 C.F.R. § 102.117(c) (2) (i).

Very truly yours,

WILLIAM M. EARNEST

Of Counsel to

Robbins Tire and Rubber Company

WME:mp

Atlanta, Georgia 30303

EXHIBIT I

[38]

LETTERHEAD

[April 2, 1976]

William M. Earnest, Attorney

Elarbee, Clark & Paul

750 Coastal States Building

Dear Mr. Earnest:

Your letter dated March 31, 1976, requesting certain in-

formation under the Freedom of Information Act, 5

U.S.C. Sec. 552, et seg., was received by this office on

March 31, 1976.

Your request for “all written statements, signed or un-

signed, centained in the Board’s case files with respect to

those witnesses which the Board will call to testify at the

hearing(s) in the above-referenced cases .. .” must be

denied. Such records are privileged from disclosure by

Exemptions 5 and 7(A), (C) and (D) of Section 552(b)

of the Freedom of Information Act (hereinafter “FOIA”’),

5 U.S.C. Section 552(b)5, 7(A), 7(C) and 7(D). Ex-

emption 5 of the FOIA exempts disclosure of the infor-

mation you seek. That exemption incorporates the privi-

leges which the Government enjoys under the relevant

statutory and case law in the discovery context. Renego-

tiation Board v. Gruman Aircraft Corp., 421 U.S. 168,

184 (1975). Those privileges include the “executive privi-

lege” for predecisional memoranda which reflect the

Agency’s deliberative process, and the “attorney work

product privilege.” See N.L.R.B. v. Sears, Roebuck and

Co., 421 U.S. 182, 150-154 (1975). When an investigator

takes an affidavit or statement in an unfair labor practice

investigation, it is done in anticipation of trial and must

be viewed as attorney work product, which is not nor-

mally discoverable. Hickman v. Taylor, 329 U.S. 495, 512-

513 (1947). Moreover, even if the results of the investi-

gation do not warrant a finding that an unfair labor

practice has been committed, the affidavits would still be

used by the Regional Director in the administrative de-

liberations leading to the determination of whether or not

issuance of a complaint is warranted, See Brockway V.

Department of the Air Force, 518 F.2d 1184 (C.A, 8,

1975).

(39)

Exemption 7(A) exempts from disclosure investigatory

records where disclosure would interfere with enforcement

vroceedings. In the investigation of charges, much in-

ormation, including statements and affidavits, is obtained

from individuals who would be reluctant or would refuse

to supply such information if it were routinely disclosable

pursuant to a request under the FOIA, In the adminis

tration of the Act, the agency must be able to obtain in

ita investigations all potentially relevant information, The

protection of the identity of individuals and the substance

of the information they submit in the agency's investiga-

tion is an important means of assuring the agency's con-

tinuing ability to obtain such relevant information, Indi-

viduals giving statements in the investigation are given

express assurance that their statements will not be dis-

closed unless and until the individual is called as a wit-

ness in a formal poseenng as provided for in Section

102,118(b) of the Board's Rules and Regulations, If the

agency were forced to disclose statements submitted or

obtained during the investigation of the case, in cireum-

stances other than those provided by Section 102.118 (b)

of the Board’s Rulea and Regulations, it would substan-

tially deter voluntary cooperation of individuals, hinder

obtaining information from all potential sources and, con-

sequently, substantially interfere with enforcement pro-

ceedings, Cf, N.L.R.B, v. Serivener, 405 U.S, 117,

The requested statements are also within Exemption 7(D)

because their disclosure would reveal the identity of a

confidential source, i.e, an individual who provides infor-

mation under an express assurance of confidentiality or in

circumstances from which such assurances can reasonably

be inferred, As noted above, individuals giving statements

to the agency during the investigation are advised and

assured that their statements will remain confidential, ex-

cept as provided by Section 102,118 of the Board's Rules

and Regulations, This policy of protecting confidential

sources of information has been consistently followed in

the administration of the Act and is well known to those

raons dealing with this agency. Accordingly, since the

ndividuals furnishing statements in the instant cases are

confidential sources, Exemption 7(D) authorizes our re-

fusal to identify the individuals,

Also, since these statements contain matter rsonal to

the individuals who supplied them and to individuals re-

ferred to in the statements,

(40)

they are exempt from disclosure under Exemption T(C),

This exemption protects the personal privacy of individu.

als submitting statements and individuals named therein,

and requires the balancing of their interest of privacy

againat the interest of a requesting party in disclosure.

ou have submitted no consideration which would, I find,

overcome the privacy rights of individuals and therefore,

their right of privacy must prevail.

For the reasons set forth above, your request for the

statements must be denied, See Barceloneta Shoe Corp.

v. Compton, 271 F, Supp. 591, (D.C.P.R.); Clement

Brothers Company Vv. N.L.R.B,, 282 F. Supp, 540, (D.C,

Ga.) ; affmd, N.L.R.B. Vv. Clement Brothers Co,, 407 F.2d

1027 (CA, 5), See alao, Wellman Industries, Inc. Vv. ,

N.L.R.B,, 490 F.2d 427 (C.A, 4), cert, den,, 95 5, Ct. o1,

(Oct, 15, 1974),

Further, deletion of names from these records would not

preserve the interest recognized by Exemptions 7(A), (C)

and (D) since disclosure of the material contained there-

in would, itself, constitute invasion of personal privacy,

reveal confidential sources, and consequently, interfere

with enforcement proceedings under the considerations set

forth above, Deletion of portions sufficient to prevent an

unwarranted invasion of personal privacy or prevent dis-

closure of a confidential source would result in a record

ao fragmented as to be incoherent and not responsive to

your request,

The undersigned is responsible for the determination that

the records you have requested are privil from dis-

closure under the Freedom of Information Act. You may

obtain a review of that determination under the provi-

sions of Section 102,117(c) (2) (ii) of the Board's Rules

and Regulations by filing an appeal with the General

Counsel, National Labor Relations Board, Washington,

D.C, 20670, within 20 days (excluding Saturdays, Sun-

days and legal holidays) from the receipt of this letter,

Any appeal should contain a complete statement of the

reasons upon which it is based,

Sincerely yours,

GILBERT COHEN

Acting Regional Director

EXHIBIT J

(41)

April 8, 1976

CERTIFIED MAIL NO, 945987

AIR MAIL/SPECIAL DELIVERY

The Honorable John 8, Irving

General Counsel

National Labor Relation Board

L717 Pennsylvania Avenue, N.W,

Washington, D.C, 20570

Re: Robbins Tire and Rubber Company

Case Noa, 10-CA-11762 and 10-RC-10410

speaseeeoeeseeeeepeseeeoseeeeeese esses

Appeal from Denial of Request For

Records Under The Provisions of The

Freedom of Information Act

Dear Sir:

Pursuant to 29 C.F.R, §107,117(¢) (2) (ii) of the

Roard’s Rules and Regulations, as amended, the under-

signed hereby appeals from the denial by the Acting Re-

gional Director for Region 10, dated April 2, 1976, of the

undersigned’s request for inspection and copying of docu-

— Copies of the request and denial are annexed

ereto,

The basis for this appeal is that the Acting Regional

Director has erroneously relied on the permissive exemp-

tions of 5 U.S.C, §652(b) (5) and (7)(A)(C) and (D)

to deny disclosure of the items specified in our request.

None of the materials sought falls within those narrow

statutory exemptions, Furthermore, the Acting Regional

Director has failed to specifically identify the documents

in question, describe their contents, and demonstrate why,

as to each item denied, a

(42)

specific exemption _— It is the Government's burden

to prove that a specific document falls within one or more

exemption, This burden has not been met, It is not met

by a broad assertion that a general type of document auto-

matically qualifies for exemptions under one or more of

the provisions of § 652(b).

e Acting Regional Director has failed to show why

sanitized copies or portions of documents cannot be made

available so as to comply with the Freedom of Information

Act disclosure requirements, while protecting any asserted

interest in confidentiality, He merely asserta that provid-

ing a portion of the statements requested “would result

in a record so fragmented as to be incoherent and not

responsive to your request.” It is not for the Acting Re-

gional Director to determine that portions of records

which he admits are disclosable should not be made avail-

able because they would be, in his opinion, fragmented or

incoherent, It is his burden to provide these portions,

In addition the request for inspection and copying of

documenta related only to written statements of those

witnesses which the Board will call to —_— at the April

27 hearing and were requested to be produced at least

seven (7) days before the hearing. There is no breach of

confidentiality as the witness will testify at the hearing

and the written atatementa must also be produced then

upon proper request, There is no interference with the

Board's yey | processes as complaint has already

issued and the investigation has been concluded,

To the extent that you may believe that any of these

documents are within the exemptions of 5 U.S.C, § 552

(b), we request that you nevertheless waive the exemp-

tions pursuant to 29 U.S.C, § 102,118, to assure that our

client, Robbins Tire and Rubber Company, is not deprived

of ita righta before the Agency in LRB Caves Nos, 10-

CA-11762 and 10-RC-10410,

Please be advised that we continue to agree to assume

full financial liability for the direct cost of document

search and duplication in compliance with the Freedom

of Information Act, and as required by 29 C.F.R, § 102.

177(¢) (2) (iv) (B), 181

Thank you for your prompt attention to this matter,

Very truly yours,

WILLIAM M, EARNEST

Of Counsel to

Robbins Tire and Rubber Company

WME :mp

Enclosures

cc: Mr, Gilbert Cohen

Acting Regional Director

National Labor Relations Board

Region 10

Suite 701, 780 Peachtree Street, N.E.

Atlanta, Georgia 80308

bee: Mr. Poncet Davia, Jr.

Mr. Wilmer B, Maddox

(44)

(filed April 15, 1976)

APPLICATION FOR TEMPORARY

RESTRAINING ORDER

COMES NOW the Plaintiff, ROBBINS TIRE AND

RUBBER COMPANY, acting by and through its at-

torneys, and, pursuant to Rule 65 of the Federal Rules

of Civil Procedure applies to this Court for a temporary

restraining order —— the Defendant herein from

holding any hearing in connection with NLRB Case Nos.

10-RC-10410 and 10-CA-11762 except in accordance with

the Order of this Court. In support hereof, Plaintiff

reapectfully shows:

1. Plaintiff has requested under the provisions of the

Freedom of Information Act, as amended, 5 U.S.C, § 552

(a), and under the Rules and Regulations of the National

Labor Relations Board, as amended, 29 C.F.R, § 102,117

signed, contained in the Board's case files with respect to

those witnesses which the Board will call to testify at the

hearing (#) in the above-referenced cases be made avail-

able for inspection and copying by the undersigned at

~ seven (7) days prior to the start of said hear-

ng(a),”

2, The Defendant has improperly rejected Plaintiff's

request,

(45)

8. Plaintiff is entitled to the requested information,

See —oe Memorandum Brief.

4. The hearing for which the above information is

sought is presently scheduled for April 27, 1976, If the

Defendant does not produce the requested information a

reasonable time prior to the April 27, 1976 hearing then

Plaintiff will be wrongfully precluded from preparing its

defense in the hearing and irreparably injured, Plain-

tiff’s action will be moot if Defendant is allowed to pro-

ceed with the hearing without producing the requested

information.

5. The prejudice which would result to Plaintiff if

the hearing proceeded without the production of the re-

quested information far outweighs any effect on Defend-

ant caused by a rescheduling of the hearing until such

time as this Court rules on the merits of this action.

WHEREFORE, Plaintiff requests this Court to issue a

Temporary Restraining Order and in due course a Pre-

liminary Injunction pending the determination of this

action.

Respectfully submitted,

POELLNITZ, Cox, ROBISON, -

McBuURNEY & JONES

By: /s/ Poellnitz

ELARBEE, CLARK & PAUL

By: /s/ William M. Earnest

Attorneys for Plaintiff

ELARBEE, CLARK & PAUL

750 Coastal States Building

Atlanta, Georgia 30303

(404) 688-8000

POELLNITZ, Cox, ROBISON,

MCBURNEY & JONES

P.O. Box 876

Florence, Alabama 35630

(202) 764-0821

[46]

(filed April 15, 1976] :

AFFIDAVIT

I, William M. Earnest, being counsel of record for

Plaintiff in the action of ROBBINS TIRE AND RUB-

BER COMPANY against the NATIONAL LABOR RE-

LATIONS BOARD states as follows:

On Friday, April 9, 1976, at 5:20 p.m. EST, I tele-

phoned Ms. Abigail Cooley, Defendant NLRB’s Assistant

General Counsel for Special Litigation and advised her I

represented Robbins Tire and Rubber Company. I further

advised her we had in connection with the forthcoming

hearing on April 27, 1976 requested copies of statements

of those persons who were to be witnesses at the hearing

and that such statements be produced at least seven (7)

days prior to the start of the hearing. I informed Ms.

Cooley our request had been denied by the Region and

that we had appealed to NLRB General Counsel Irving

but had no response yet. I told her it was our intention

to file a Complaint in the District Court to obtain such

information and wondered, because of the closeness of

the hearing, if it would be necessary to seek a restraining

order with regard to the hearing or if the NLRB

would reschedule the hearing until a determination of

the merits could be made by the Court. She said the

NLRB would not agree to a rescheduled hearing. I told

her that I would then consult with my client but that

we would be filing a Complaint next week. I told her I

would notify both her office and the local NLRB Re-

gional Office of the filing of the Complaint. She said she

would not be coming down to handle the matter but

would get someone out of the local (Atlanta, Georgia)

Regional Office.

At 3:01 P.M. EST, Monday, April 12, 1976, I tele-

phoned Acting Regional Director Gilbert Cohen and ad-

vised him that we were going to file a Complaint in the

United States District Court for the Northern District of

Alabama seeking the statements requested in my letter

to him. He acknowledged his receipt and familiarity

with my letter. I told him because of the closeness of the

April 27, 1976 hearing we would be seeking a restraining

order as to the holding of the hearing. I told him of

the above call to Ms. Cooley and that I would call NLRB

General Counsel Jrving. I advised him of the 10:30 A.M.

hearing on April 15, 1976 in this Court.

I then called at 3:24 P.M. EST NLRB General Counse!

John Irving’s office and was referred to attorney Bill

Wachter who said he would be filling Ms. Cooley’s posi-

tion effective Monday, April 19, 1976. I told Mr. Wach-

ter of my appeal to General Counsel Irving and read to

him the request. I asked him if it still was the General

Counsel’s policy to deny such requests and he said that it

was. I then told him that a Complaint on behalf of

Robbins Tire and Rubber Company would be filed in the

United States District Court seeking this information and

that because of the nearness of the April 27, 1976 hear-

ing we would also be seeking a restraining order.

[47]

I told him a hearing would be held at 10:30 A.M. CST

in the District Court in Birmingham regarding the above.

I have read the above affidavit and swear it is true

to the best of my knowledge and belief.

/s/ William M. Earnest

WILLIAM M. EARNEST

Of Counsel to Plaintiff,

Robbins Tire and

Rubber Company

Subscribed and sworn to before me

this 12th day of April, 1976

/s/ Jimmie S. Love

Notary Public

[48}

(filed April 15, 1976)

MOTION TO DISMISS COMPLAINT AND REQUEST

FOR INJUNCTIVE RELIEF, OR, IN THE

ALTERNATIVE, FOR SUMMARY JUDGMENT

The National Labor Relations Board, defendant herein,

moves to dismiss the complaint and request for injunctive

relief in the above-captioned case under Rule 12(b), Fed-

eral Rules of Civil Procedure, on the following grounds:

1. This Court lacks jurisdiction over the subject mat-

ter of the action;

2. The complaint and request for injunctive relief fail

to state a claim upon which relief can be granted.

Alternatively, defendant moves that summary judg-

ment be granted under Rules 12(c) and 56, Federal

Rules of Civil Procedure, on the basis of the complaint

and exhibits attached thereto.

WHEREFORE, defendant prays that the complaint and

request for injunctive relief be dismissed, or, in the al-

ternative, that summary judgment be entered in their

favor.

Respectfully submitted,

By /s/ William E. Caldwell

WILLIAM E. CALDWELL

Acting Regional Attorney

National Labor Relatiors Board

Region 10

730 Peachtree Street, N.E.,

Room 701

Atlanta, Georgia 30308

Telephone: (404) 526-5361

Dated at Atlanta, Georgia

this 15th day of April, 1976.

[49]

[filed April 15, 1976]

OPPOSITION TO COMPLAINT AND

REQUEST FOR INJUNCTIVE RELIEF

In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 51

(1938), the Supreme Court determined that district

courts have no authority to interfere with the Board or

its agents during the course of an unfair labor practice

proceedings. See also, Newport News Shipbuilding & Dry

Dock Co. v. Schauffler, et al., 308 U.S. 54 (1938). A

major premise of this holding rested on the doctrine re-

quiring the exhaustion of administrative remedies. Those

remedies include utilization of the statutory review pro-

cedures available upon entry of the agency’s final deci-

sion and order as the exclusive forum for challenging

interlocutory rulings on both substantive and procedural

matters. See, N.L.R.B. v. Jones & Laughlin Steel Corp.,

301 US. 1, 46-47 (1936). It is now well established that

the statutory review procedures set forth in Section 10(e)

and (f) of the National Labor Relations Act are the ex-

clusive procedures for assertions, such as those made

here, of deprivation of constitutional and statutory rights.

See, e.g., Sears, Roebuck & Co. v. N.L.R.B., 433 F.2d 210,

211 (C.A. 6, 1970) ; McClains Industries, Inc. v. N.L.R.B.,

521 F.2d 596 (C.A. 6, 1974); Bokat v. Tidewater Equip-

ment Co., 363 F.2d 677 (C.A. 5, 1966) ; United Aircraft

Corp. v. McCulloch, 365 F.2d 960, 961 (C.A.D.C., 1960),

cert. denied, 380 U.S. 910. This review is

[50]

also the exclusive procedure for assertions of prejudice

in preparing a defense because of refusal of the Board to

permit discovery, including assertions that such refusal

constitutes an improper withholding of records under the

Administrative Procedure Act. See, e.g., Vapor Blast

Mfg. Co. v. Madden, 280 F.2d 205, 209 (C.A. 7, 1960),

cert. denied, 364 U.S. 910; Sears, Roebuck & Co. Vv.

N.L.R.B., supra; McClain Industries, Inc. v. N.L.R.B.,

supra; Polymers, Inc. V. N.L.R.B., 414 F.2d 999, 1005-

1006 (C.A. 2, 1969), cert. denied, 396 U.S. 1010; Inter

type Co. v. Penello, 269 F. Supp. 573, 576 (D.C.N.D. Va.

1967). For instance, in Vapor Blast Mfg. Co. V. Madden,

supra, a case very similar to the instant one, the em-

ployer subject to unfair labor practice proceedings before

the Board requested the district court to issue an order

enjoining Board hearings and a declaratory judgment de-

claring the Company’s right to inspect employee affidavits

obtained by Board agents during the course of their in-

vestigation. The Court refused to grant the relief re-

quested stating, inter alia (280 F.2d at 208, 209):

The review provisions of the Act, 29 U.S.C.A. Sec.

160(e) and (f), provide adequate and full oppor-

tunity for the Company to raise the contentions it

tendered in its complaint in the district court. Under

the provisions of Section 10(e) of the Act, in an

enforcement proceeding the Company may put in

issue the question of whether it was deprived of its

rights to procedural process by the Board’s action to

suppressing the documents in question.

... [Merely raising a constitutional issue in its

complaint for declaratory judgment, when full appel-

late review of the administrative proceedings is avail-

able and in the absence of any extenuating circum-

stances, is insufficient to give the district court juris-

diction over the subject matter in the fact of the

well-established doctrine of exhaustion of adminis-

trative remedies...

Accordingly, it is clear that this court has no authority

to enjoin the Board’s proceedings herein, or to review the

actions of the General Counsel or his agents during the

cours® of those proceedings.

(51)

The Freedom of Information Act (5 U.S.C. Sec. 552,

et seqg., as amended, 88 Stat. 1563 (1974) does not alter

this long settled rule. Plaintiff has not exhausted its

administrative remedies before the Board. By letter dated

April 8, 1976, Plaintiff appealed to the General Counsel

the Acting Regional Director’s refusal to furnish the

documents requested. The Act provides that the General

Counsel make a determination with respect to any appeal

within twenty working days after the receipt of such

appeal. The General Counsel has not yet ruled on Plain-

tiff’s appeal. Thus, Plaintiff’s complaint herein is pre-

mature and fails to state a claim upon which relief can

be granted under the judicial review provisions of the

Freedom of Information Act. See Satra Belarus, Inc. V.

N.L.R.B., —— F. Supp. ——, 91 LRRM 2555 (D.C.E.D.

Wise. 2/18/76).’

Whether the General Counsel will grant or deny Plain-

_tiff’s appeal is unknown and Counsel herein does not

intend to imply what that decision will be. However, in

Title Guarantee Co. v. N.L.R.B., —— F.2d —— (C.A. 2,

4/12/76) the Court, holding that statements of witnesses

were exempt from disclosure under Exemption 7(A) of

the Freedom of Information Act, stated:

... We cannot envisage that Congress intended to

overrule the line of cases dealing with labor board

discovery in pending enforcement proceedings by vir-

tue of a backdoor amendment to the FOIA when it

could very easily have done so by direct amendment

to Section 10(b) of the National Labor Relations

Act, 29 U.S.C. Sec. 160(b) of the National Labor

Relations Act, 29 U.S.C. Sec. 160(b), or by a blanket

enactment pertaining to discovery in pending ad-

ministrative enforcement proceedings. 14] It is sig-

nificant that it is never suggested in the legislative

history of the 1974 amendment to the FOIA that

any such modification of agency discovery rules was

intended .. .

. In light of the delicate relationship which

exists between employer and employee, we think that

1 This Court on October 17, 1975 dismsised a complaint in Federal

Mogul, Civil No. CA75H1945J, filed by a respondent in a Board pro-

ceeding under identical circumstances.

Congress would be very reluctant to change the

rather carefully arrived at limitations and pro

cedures for re8)

discovery in unfair labor practice proceedings by way

of an act which, while dealing with disclosure gen-

erally, does not purport to affect such discovery,

In short, while we have been impressed with the ap-

pellee’s grasp of the FOIA amendment and almost

persuaded by its argumentation and that of the dis-

trict court, we are forced to conclude that statements

of employees, and their representatives, obtained in

connection with unfair labor practice enforcement

proceedings are not subject to disclosure as a re-

sult of Exemption 7(A) ...

As Senator Hart, the sponsor of the recent amendments

to the Information Act, pointed out, Exemption 7 of

that Act, as originally enacted and as amended, was

intended “to prevent harm to the government’s case in

court by not allowing an opposing litigant earlier or

greater access to investigative files than he would other-

wise have.” 120 Cong: Ree, 89829 (daily ed, May 30,

1974). In Sears, Roebuck & Co, Vv. N.L.R.B., 473 F.2d 91

(C.A.D.C., 1972), cert. denied, 415 U.S, 950, the Court

of Appeals for the District of Columbia summarily re-

versed an order of the district court, Corcoran, J.) en-

joining the Board from processing an unfair labor prac-

tice proceeding pending compliance with the Information

Act. In so doing, the Court stated, in language clearly

applicable here (473 F.2d at 98):

_, « While Myers v. Bethlehem Shipbuilding Corp.,

308 U.S, 41, 1A LRRM 575 (1988), cannot be taken

as mandating that such intervention is never war-

ranted, it still has vitality as indicating that it is

only in extraordinary circumstances that a court

may, in the sound exercise of discretion, intervene to

interrupt agency Nemes to dispose of a single,

inwemediate or collateral issue, A cogent showing

of irreparable harm is an indispensable condition of

such intervention,

Irreparable harm cannot be established by a mere

reliance on the burden of submitting to agency hear-

ings. This is a risk of litigation that is inherent in

society, and not the type of injury to justify ju-

dicial intervention, E.g., Myers, supra, at 51-52.

In the case at bar we do not have a nt show-

ing, indeed we do not see a substantial showing, of

how Sears will be ay mony harmed in its partici-

pation in the unfair labor practice charge without

the Advice and Appeals memoranda whose disclosure

is still under judicial consideration .. .

[53]

It may be that Sears will be held entitled to the

documents under the Information Act, and it may be

that is possession of .those documents will be a con-

venience, indeed a significant help, in its litigating

stance, But those considerations are of a different

order from the kind of irreparable injury required to

interrupt an administrative proceeding, Should

Sears’ claim to the memoranda be upheld on appeal

and should it appear that there was significant ad-

verse impact on Sears in the unfair labor practice

charge proceedings because it was denied timely dis-

closure, an oy sy ye remedy can be fashioned by

the Board, or by the court of appeals with jurisdic-

tion of the petition for review or enforcement in the

event the Board issues an order,

After the Supreme Court denied the Company’s petition

for writ of certiorari in this case, it had occasion to con-

sider the merits of Sears’ claims under the Freedom of

Information Act, and observed:

.. » Sears appeal—without benefit of the documents

ee ultimately successful, a complaint was

filed with the Board, and hearings were scheduled to

commence on the complaint on November 9, 1971.

Proceedings before the Board were delayed for a

time by a stay issued by the. District Court, later

reversed by the Court of Appeals, Sears, Roebuck

& Co. Vv, N.L.R.B., 1568 U.S. App. D.C, 880, 478 F.2d

91 (1978), cert. denied, 415 U.S, 960 (1974)...

Sears’ rights under the Act are neither increased

nor decreased by reason of the fact that it claims an

interest in the Advice and Appeals Memoranda

greater than that shared by the average’ member of

the public, The Act is fundamentally designed to in-

form the public about agency action and not to bene-

fit private litigants, B.P.A, V. Mink, 410 U.S, 78,

79, 92 (1973); Renegotiation Board vy. Bannercraft

Clothing Co,, 415 U.S, 1, 24 (1974),

N.L.R.B. Vv. Sears, Roebuck & Co,, 421 U.S, 182, 148 n,

10 (1975),

Thereafter, in a case virtually identical to the instant

one, the United States District Court for the District of

Columbia denied plaintiff éompany’s request for a manda-

tory injunction compelling the production of statements

in sufficient time prior to hearing to permit their use by

the company defendant in an unfair labor practice pro-

ceeding, observing that plaintiff had “failed to establish

that it [would] suffer irreparable injury absent the is-

suance of such an injunction,

(54)

as required by N.L.R.B, Vv. Sears, Roebuck & Co, . . as

General Cigar Co., Ine, v. Nash, —— F. Supp. ———, 89

LRRM 2868 (D.C.D.C,, 1975),

And finally, the Supreme Court held in Renegotiation

Board v, Bannereraft Clothing Co., Ine., et al, 415 US,

1 (1974) that the court below erred in enjoining proceed-

ings before the Renegotiation Board pending resolution of

laintiff’s request for production of documents under the

reedom of Information Act. The reasons for so holding

were as follows: (1) prior to the enactment of the Infor-

mation Act, the Supreme Court had consistently held that

such proceedings were not to be enjoined prior to the

exhaustion of the administrative process (415 U.S, at 20-

22); (2) “(s)eeking injunctive relief during the pendency

of such proceedings encourages delay through resort to

preliminary litigation over an FOIA claim” (415 U.S, at

28); (8) the decision of the administrative agency does

not impose any obligation on the parties until termina-

tion of further court proceedi and thus the injury

suffered, absent an injunction, is simply that of being

unsuccessful in the initial administrative stages and the

litigation expense, which does not constitute irreparable

injury (415 U.S, at 28-24);* and (4) “Interference with

the agency proceeding opens the way to the use of the

FOIA as a tool of discovery, see Sears, Roebuck & Co, V.

N.L.R.B., 488 F.2d 210, 211 (C.A, 6, 1970), over and

beyond that provided by the regulations issued by the

Renegotiation Board for its proceedings . . . Discovery

for litigation purposes is not an expressly indicated pur-

pose of the Act.” (415 U.S, at 24), We submit that all

of the above criteria are equally

(55)

applicable in Labor Board proceedings. Thus, as shown

above, the courts, including the Supreme Court, have al-

ways held that Board unfair labor practice proceedings

should not be enjoined prior to the exhaustion of the ad-

ministrative process, king injunctive relief durin

Labor Board proceedings rr. delay just as muc

as it does in Renegotiation Board proceedings, Plaintiff

has an adequate judicial remedy under the Act, and will

at most suffer litigation expense in pursuing it, which

"As the Court atated (ibid) :

“Mere litigation expense, even substantial and unrecoupable

coat, does not constitute irreparable injury. Myers v, Bethlehem

Shipbuilding Corp., 803 U.S, 41, 61-62; Jaffe, Judicial Control

of Administrative Action, 429 (1965), Without a clear showing

of irreparable injury, see Virginia Petroleum Jobbers Aas'n V.

FPC, 104 US, App. D.C, 106, 111, 259 F.2d 921, 926 (1958),

failure to exhaust administrative remedies serves as a bar to

judicial intervention into the agency process, Myers, supra,

Sears, Roebuck & Co, Vv. N.L.R.B,, —— U.S, App. D.C, —,

-——-», 478 F.2d 91, 98 (1978) (cert. denied, 415 U.S, 9560).”

expense does not warrant injunctive relie’, And finally,

intefference with the Board’s proceedings would permit

plaintiff to use the Information Act as a tool of discovery

over and beyond that provided in the Board’s court sanc-

tioned rules, Tus, it is evident that Bannercra/ft is con-

trolling here, and that plaintiff is not entitled to ——

tive relief pending litigation of its Information Act c aim,

See, Title Gurantee Co,, supra; Sears, Roebuck & Co, V.

N.L.R.B., supra; General Cigar Co,, Ine, Vv. Nash, supra,

CONCLUSION

For all the foregoing reasons, the Board respectfully

submits that its motion to dismiss complaint and request

for injunctive relief, or, in the alternative, for summary

judgment, should be granted,

Respectfully submitted,

Joun S. Irvine, General Counsel,

ELLIoT?T Moore, Deputy Associate

General Counsel,

ABIGAIL CooLey, Assistant General

Counsel for Special Litigation

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C, 20570

Telephone; (202) 254-9221

By /s/ William BE, Caldwell

WILLIAM E, CALDWELL, Acting

Regional Attorney, Region 10

National Labor Relations Board

730 Peachtree Street, N.E, Room 701

Atlanta, Georgia 30308

Telephone: (404) 526-5361

Dated at Atlanta, Georgia

this 15th day of April, 1976,

(56)

| Thursday April 15th 1976

JUDGMENT ON DECISION BY THE COURT CIV 82 (7-63)

UNITED STATES DISTRICT COURT

FOR THE NORTHWESTERN DIVISION

OF THE NORTHERN DISTRICT OF ALABAMA

Civil Aetion File No, CA-76-H-528-NW

RosBiIns TIRE AND RUBBER COMPANY

va,

NATIONAL LABOR RELATIONS BOARD

JUDGMENT

This action came on for (hearing) on April 15, 1976,

before the Court, Honorable James H, Hancock, United

States Dist: ct Judge, presiding, and the issues having

been duly (heard)

It is Ordered and Adjudged that this matter is taken

under advisement,

‘ JaMES EB. VANDHORIFT, Clerk

By: /s/ Lester H, Jones

Deputy Clerk

FILED;

April 15, 1976

James E. Vandegrift, Clerk

By: /s Lester H, Jones

Deputy Clerk

Birmingham, Alabama

John Weaver, reporting

Time: 10:80-11:45

(67)

[filed April 16, 1976)

2 . oe . o

MEMORANDUM OF DECISION

This cause came on for hearing on April 15, 1976, on

the request by plaintiff for a preliminary injunction and

on the motion by defendant to dismiss, or, in the alterna-

tive, for summary judgment, Since all parties agreed that

the issues presented ure legal, not factual, the court en-

tered an oral order under Rule 66 of the Federal Rules

of Civil Procedure directing that the trial of this action

on the merits be advanced and consolidated with the hear-

ing on April 15, 1976, on the application for a prelimi-

nary injunction,

The following is a brief summary of the facts which

are not in dispute, In connection with its investigation of

a contested election and its investigation of an unfair

labor practice charge, defendant secured certain affidavits

and/or written statements of various individuals, On

March 26, 1976, the Board set down for hearing on April

27, 1976, the complaint predicated upon the unfair labor

practice charge. April 27, 1976 is also the date of the

hearing concerning issues raised by the election contest.

Pursuant to the Freedom of Information Act, 5 U.S.C,

£552(a), and defendant's rules and regulations, 29 C.F.R.

£102.117(c) (1), plaintiff on March 31, 1976, in writing

requested of the Board’s Acting Regional Director:

: (58)

“that copies of all written statements, signed or un-

signed, contained in the Board’s case files with re-

epect to those witnesses which the Board will call to

teatify at the hearing(s) in the above-referenced

cases be made available for inspection and copying

by the undersigned at least seven (7) days hee to

the start of said hearing(s).” (Emphasis added)

Plaintiff agreed to assume full financial liability for all

charges incurred in responding to the request.

By letter dated April 2, 1976, the Acting Regional Di-

rector of the Board denied plaintiff's request, asserting

that the statements which were requested were privileged

from disclosure by exemptions 5 and 7(A), (C) and (D)

of §$552(b) of Title 5 of the United States Code. On

April 8, 1976, plaintiff appealed the determination to the

Board’s General Counsel who has not ruled on such ap-

peal and who is not required so to do prior to the sched-

uled hearing on April 27, 1976. Thereafter the complaint

was filed herein which invoked this court’s jurisdiction

under 5 U.S.C. § 552(a) (4) (B).

Normally a court will require the exhaustion of admin-

istrative remedies prior to entertaining jurisdiction of an

action complaining of agency action. But this exhaustion

principle is not without its exceptions and exhaustion rests

within the sound discretion of the court. See Ecology

Center of Louisiana, Inc. v. Coleman, 515 F.2d 860 (5th

Cir. 1975). Here plaintiff has promptly taken all steps

available to it to pursue its administrative review, and

the court finds that the factors normally to be considered

in an exception to the exhaustion principle are in plain-

tiff’s favor here. See McKart v. United States, 395 US.

185 (1969). Thus, for the reasons stated by the court

into the record during the oral hearing on April 15, 1976,

this court is of the opinion that jurisdiction has been

properly invoked under the Freedom of Information Act

without plaintiff beirig required further to exhaust its

administrative review. The

[59]

facts in this case are different than those in Federal-

Mogul Corporation v. National Labor Relations Board,

CA75-H-1945-J, decided by this court on October 17, 1975.

In Federal-Mogul plaintiff sought to invoke this court’s

jurisdiction under somewhat similar circumstances, but

plaintiff there had not appealed the decision of the Board’s

Regional Director to the Board’s General Counsel either

prior to initiating the action or prior to the hearing on

the requested preliminary injunctive relief. Here plaintiff

has promptly done all within its power to secure final

agency action.

In its complaint plaintiff essentially seeks two types of

relief. First, plaintiff seeks the information it requested

of. defendant on March 31, 1976, and secondly, plaintiff

seeks an injunction against the scheduled April 27, 1976

hearing. With regard to this second request, the court is

aware of the reluctance of district courts to enjoin pro-

ceedings before the National Labor Relations Board ex-

cept in those rare and well defined instances where the

Board may be engaged in acts which are either contrary

to specific prohibitions of the National Labor Relations

Act or which are in excess of its delegated powers. Nei-

ther situation is presented by the instant case, and while

a violation of the Freedom of Information Act may be

another exception to the general rule, enjoining proceed-

ings before the Board is not appropriate where other,

more normal relief will be sufficient. The court is of the

opinion that plaintiff may be adequately protected by re-

quired production of information to which it may be en-

titled under the Freedom of Information Act without the

assistance of an injunction directed at the April 27, 1976

hearing, and thus plaintiff will suffer no irreparable in-

jury by the hearing.

[60] ©

It is important to note that the Board does not claim

that there is something unusual about the affidavits or

statements or that their is something within them that

would cause them to be anything other than an average

statement obtained during a routine investigation. The

Board’s attorney stated during the oral hearing on April

15, 1976, that, for the purposes of deciding this case, the

court could assume that the Board’s position is predicated

simply upon the fact that the statements were obtained

in connection with a pending matter. Thus, an in camera

inspection of the statements will not be necessary.

There is no dispute that plaintiff is entitled to the in-

formation it has requested unless defendant can discharge

the burden it has of establishing that the information

adie

daseneisitals dnlles sills alienated

falls within one of the specific exemptions contained in

the Act. Even prior to the 1974 Amendment to the Free-

dom of Information Act, the Fifth Circuit Court of Ap-

peals had established that the disclosure of material in

government files was the rule, not the exception, and that

the Act was intended to increase public access to records

except under specific, narrowly constructed exemptions.

Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1978). Cer-

tainly no less can be said for the Freedom of Information

Act following the 1974 Amendment.

The first exemption defendant seeks to assert is the one

established by 5 U.S.C. § 552(b) (5) for inter-agency or

intra-agency memorandums or letters. The Board does

not argue that the statements and affidavits are in the

form of “memorandums” or “letters.” See Bellingham

Frozen Foods v. Henderson, 91 LRRM 2761 (W.D. Wash.

1976). Neither aoes the Board urge that the statements

and affidavits possess a deliberative, as opposed to factual

quality. See Title Guraantee -

[61]

Company v. N.L.R.B., 90 LRRM 2849 (S.D.N.Y. 1975)

[rev’d on other grounds, —— F.2d —— (2nd Cir. 1976) ].

And this court is of the opinion that normal, routine affi-

davits and statements taken from persons not employed

by the Board during a typical investigation by the Board

are not embraced in the § 552(b)(5) exemption. See

Stokes v. Brennan, supra.

As noted earlier, counsel for the Board acknowledged

during the April 15, 1976 hearing that there is nothing

unusual about or contained in the affidavits and state-

ments which it declines to supply. Thus in urging an

exemption under § 552(b)(7)(C) or § 552(b)(7)(D),

the Board must be able to support a position that any

statement or affidavit which it holds in connection with

an open file is embraced within one of such exemptions.

This it cannot do. The Board does not discharge the

burden cast upon it in claiming one of such two exemp-

tions simply by showing that the writing sought is in

affidavit or statement form taken from a person who wilil

testify at a forthcoming hearing. See Bellingham Frozen

Foods v. Henderson, supra. This is particularly true

where, as here, the only statements or affidavits sought

are from persons who will be called to testify at the April

27, 1976 hearing and under the Board’s own rules, affi-

davits and statements of any witness must be supplied

immediately after the witness has testified. 29 C.F.R.

$ 102.117(b) (1).

The final matter to be considered is the one exemption

the Board asserts most strongly and the one, if any, to

which it may be entitled. 5 U.S.C. § 552(b) (7) (A). De-

fendant relies primarily upon the recent decision of the

Second Circuit Court of Appeals in Title Guarantee Com-

pany V. N.L.R.B., —— F.2d —— (2nd Cir. 1976). There,

Title Guarantee Company had requested copies of all

[62]

written statements contained in the Board’s file and any

such statements subsequeritly available to the Board. Sat-

isfying the burden of demonstrating that this broad re-

quest interferes with the Board’s enforcement proceedings

(where none of the persons who gave the statements

might be called as witnesses and thus where none of the

statements might ultimately be supplied to the Company

under the Board’s own rules) is substantially easier than

satisfying the burden the Board bears in the instant case

where the fact of disclosure of the statements is not the

issue but simply the time at which the disclosure will be

made. The request here is limited only to those state-

ments of persons who will testify and thus the Board will

be required by its own rules immediately after the testi-

mony is given to deliver the statements here in issue to

plaintiff. 29 C.F.R. § 102.118(b) (1). And the Board has

not demonstrated how the delivery to plaintiff several days

prior to the scheduled hearing of routine statements or

affidavits will interfere with enforcement proceedings of

the Board where, in connection with those proceedings,

the Board by its own rules will be required to give the

statements and affidavits to plaintiff. The court is there-

fore of the opinion that the defendant should be required

to supply the information requested in writing by the

March 31, 1976 letter. An appropriate order will be

entered.

DONE this 16th day of April, 1976

#/ James H. Hancock

United States District Judge

(63]

[filed April 16, 1976]

ORDER

In accordance with the Memorandum of Decision this

day entered, it is hereby ORDERED, ADJUDGED, DE-

CREED and DECLARED that the information sought by

plaintiff, ie., written statements now or hereafter con-

tained in the Board’s case filed with respect to those wit-

nesses which the Board will call to testify at any hearing

in Cases Nos. 10-CA-11762 and 10-RC-10410, constitutes

public information within the meaning of the Freedom

of Information Act, as amended, 5 U.S.C. § 552(a), with

respect to which plaintiff is entitled to inspection and

copying.

It is further ORDERED that the Board shall turn over

to the plaintiff copies of the material sought by plaintiff

in its letter of March 31, 1976, for inspection and copying

on or before April 22, 1976, or, at the election of the

Board, on or before a date which is at least five days

prior to any hearing where thé person making the state-

ment or affidavit will be called as a witness.

It is further ORDERED that costs are taxed against

defendants.

DONE this 16th day of April, 1976.

/s/ James H. Hancock

United States District Judge

66 | | 67

| (64) Dated at Washington, D.C.

(filed April 22, 1976] this 20th day of April, 1976

Moron mi PS ‘ Co-Counsel: Aileen A. Armstrong

NOTICE OF APPEAL (Ext. 9001)

—and—

GILBERT COHEN, Regional Attorney

Region 10, N.L.R.B.

Peachtree Building, Suite 701

730 Peachtree Street, N.E.

TO: William M. Earnest

Ellerby, Clark, and Paul

750 Coastal States Building

Atlanta, Georgia 30303

ieee

Defendants appeal to the United States Court of Ap- Atlanta, Georgia

peals for the Fifth Circuit from the judgment entered on

April 16, 1976 in the above-captioned case, directing the (Certificate of Service] [66]

defendant to turn over to plaintiff, pursuant to the Free-

dom of Information Act, 5 U.S.C. § 552, as amended 88

Stat. 1563, et seqg., witness statements secured in the in-

vestigation of Board Case No. 10-CA-11762, 10-RC-10410,

‘a consolidated unfair labor practice and representation

proceedings.

Respectfully submitted,

Elliott Moore

Deputy Associate General Counsel

National Labor Relations Board |

[65]

By /s/ William Wachter

WILLIAM WACHTER, Acting Assistant

General Counsel for Special Litigation

1717 Pennsylvania Ave., N.W.

Washington, D.C. 20570

Telephone: (202) 254-9221

[Tr. 1]

TRANSCRIPT OF PROCEEDINGS

COURT OF APPEALS

* e * 7.

Northern District of Alabama

May 14, 1976

* + * 7.

(Tr. 2]

APPEARANCES

FOR THE PLAINTIFF:

Mr. C. A. Poellnitz

Poellnitz, Cox, Robison, McBurney

& Jones

P. O. Box 876

Florence, Alabama 35630

Mr. William M. Earnest

Elarbee, Clark & Paul

750 Coastal States Building

Atlanta, Georgia 30303

FOR THE DEFENDANT:

Mr. William E. Caldwell,

Acting Regional Attorney

National Labor Relations Board

Region 10

730 Peachtree Street, N.E.

Room 701

Atlanta, Georgia 30308

[Tr. 3]

PROCEEDINGS

April 15, 1976 10:30 A.M.

THE COURT: The matter we shall take up at this

time is the case of Robbins Tire and Rubber Company

versus National Labor Relations Board, CA 76-H-528-NW.

Sometime early this week, I believe it was on Monday,

April the 12th, Mr. Charles Poellnitz, attorney in Flor-

ence, telephoned my office and indicated that he had a

complaint that he wanted to file-that he felt entitled him

to some immediate relief and that he wanted a setting

time to consider the matter, although the complaint had

not actually been filed at that point in time, and I told

him that we would be in a position to take it up Thurs-

day, April the 16th, at 10:30, and he should, of course,

so advise the NLRB counsel.

This morning there was filed in the court in addition

to the complaint an affidavit reflecting that notification,

the affidavit being of Mr. William N. Earnest, attorney

in Atlanta. I assume, Mr. Poellnitz, that a copy has been

served on the NLRB.

MR. POELLNITZ: Yes, sir.

THE COURT: I think for the record it may be good

first if you would introduce Mr. Earnest.

MR. POELLNITZ: I will, Your Honor.

(Tr. 4]

THE COURT: And then if the NLRB would intro-

duce himself for the record so that we can have ‘those

names on the record.

MR. POELLNITZ: Your Honor, this is William Earn-

est who is a member of the District Court Bar of the

Northern District of Georgia and a member of the firm

of Elarbee, Clark & Paul of Atlanta, and is actually a

specialist in labor matters and is telling me what to say

in this case.

THE COURT: Fine. Glad to have you here.

MR. CALDWELL: If Your Honor please, appearing

for the Government, William E. Caldwell, Acting Re-

gional Attorney in Atlanta. I’m admitted for the Eastern

District Court in Tennessee, and if Your Honor please,

I did receive the copy of the complaint and application

from counsel about ten minutes ago.

* THE COURT: I received it an hour ago, so we’re

nearly even.

MR. CALDWELL: If Your Honor please, I also filed

about five minutes ago a motion to dismiss or in the

alternative for summary judgment and the supporting

memorandum. I trust it’s in reasonable response since I

did not know the contents fully of the application.

[Tr. 5]

THE COURT: The complaint or the copy of it that

I have received does not show that it has been verified.

MR. POELLNITZ: Your Honor, the reason for this

is I had the original in Florence and got here about

10:00 this morning and brought the verification with

me.

THE COURT: All right. There’s a verification, then,

that has been filed verifying the facts.

MR. POELLNITZ: Yes, sir.

THE COURT: I see.

MR. POELLNITZ: I had that done in Florence and

had the paper with me and didn’t feel like entrusting

them to the mails. ;

THE COURT: Mr. Caldwell, while I review the mo-

tion to dismiss and the accompanying brief that you filed,

I’m going to ask you, if you would, to review carefully

the complaint since you have not had a long time to look

at it either and to point out to me what factual allega-

tions in there that you think might be in dispute. Most

of them appear to be more or less routine-type factual-

type allegations, but if you would, be prepared to indicate

what factual allegations in there might be in dispute.

MR. CALDWELL: Yes, Your Honor.

(Tr. 6]

THE COURT: Thank you, Your Honor.

(Short pause)

THE COURT: Did you find any difficult factual dis-

putes with the basic facts set forth in there?

MR. CALDWELL: No, Your Honor. There is one

very minor item on page 3, item 10. It refers to a hear-

ing being set on the objections. That document has not

in fact actually issued yet. It’s my understanding that

it is being issued and consolidated, so I have no objec-

tion.

THE COURT: For all practical purposes, on April

27, 1976, then, there’s going to be a hearing both with

regard to the charges that were filed and also with

regard to the election itself.

MR. CALDWELL: Yes, Your Honor, that is correct.

THE COURT: Let me ask you a question with re-

gard to one of the cases that you’ve cited in here, and

I’ve not read the Renegotiation Board, First Banacraft

case. Was that decided before the ’74 amendment to the

Freedom of Information Act? Was it dealing with the

old Act or the new Act?

MR. CALDWELL: I believe, Your Honor, it was the

old Act. It was decided February 19, 1974.

THE COURT: It has to be the old Act, then.

[Tr. 7]

MR. CALDWELL: And that was the old Act.

THE COURT: The new Act didn’t come in until No |

vember of ’74.

MR. CALDWELL: That’s right, the latter part of ’74.

THE COURT: And the Sears, Roebuck case neces-

sarily was.

MR. CALDWELL: Yes, Your Honor, it was, too.

THE COURT: Mr. Poellnitz, do you or Mr. Earnest

have anything by way of evidence you want to offer?

MR. POELLNITZ: No, Your Honor. The facts as I

understand it are really not disputed.

THE COURT: Mr. Caldwell, does the Board have

anything by way of evidence that they desire to offer?

MR. CALDWELL: No, Your Honor.

THE COURT: So, it’s just strictly a matter of argu-

ment and application of legal principles.

MR. CALDWELL: As I understand it, Yes, Your

Honor.

THE COURT: Well, let’s just chat it out for a min-

ute. How about that? I fully agree with the first two

pages of your brief.

MR. CALDWELL: Thank you.

{[Tr. 8]

THE COURT: That’s not saying I deny the rest of it.

I’ll just address myself to the first two at this point in

time. I think that there is a reluctance of the District

Courts, and necessarily so and for various reasons, to

interfere with the ongoing proceedings of the NLRB

and, more specifically, to enjoin any scheduled proceeding

before the NLRB. The only exceptions, I think, perhaps

to that would be where the NLRB is violating its own

rules or exceeding specific delegations of authority. I

don’t think that either of those principles are present

here. It doesn’t appear to be.

So, it would certainly appear that, for the moment at

least, this Court would have to hold that it doesn’t have

any way to enjoin those proceedings as such. I do think,

however, that the Court can take jurisdiction under the

Freedom of Information Act here where there has been

no delay on the action of the company to pursue its rights

under Freedom of Information.

As soon as the hearings were scheduled, they promptly

said we want the affidavits and statements of people who

will testify. As soon as that request was denied, they

promptly filed an appeal. I recognize that the appeal

period has not expired at this point in

[Tr. 9]

time and that customarily, in fact, almost uniformly

Courts cannot and should not accept jurisdiction to review

agency action while the proceedings are still in prog-

ress, until there’s been an exhaustion, but there are excep-

tions to that and those exceptions may very well exist

here. Yes, sir.

MR. EARNEST: I might point out that in the affi-

davit that I have, I have contacted the General Counsel’s

office in Washington and was advised by phone that their

policy had not changed in denying such appeals as stated

in my affidavit. am

THE COURT: I think the amount of litigation that

is apparently developing suggests this, too.

MR. EARNEST: And it was not our intention to—we

did intend if at all possible to wait until we had re-

ceived a letter, but the timing of that letter was not

within our hands and the letter may well have come back

after the hearing began.

THE COURT: The Federal Mogul case that you

cited in a footnote in your brief was a different situation

than here presented because there the Federal Mogul had

not even filed an appeal to the General Counsel prior to

coming into court, asserting while we have still got time

to appeal that they—in that case factually, they had

asked for the

[Tr. 10]

information, had been denied at the Regional level, came

straight to court five days later or something like that,

and when we had the hearing ten days later, I said have

you appealed to the General Counsel. No, we haven't.

Our time hasn’t expired yet. They had not even sought

relief through the administrative remedy at the time

they were asking the Court to intervene.

Here these people have in fact actually sought and

done everything they can to exhaust. They’ve set it in

motion. So the question is simply whether there’s a suf-

ficient justification to make an exception to the general

rule that you don’t take jurisdiction during the zdmin-

istrative process. They’ve done everything that they can

and promptly so to at least initiate the administrative

process, whereas in Federal Mogul they had not. They

had taken Step One, had an adverse decision, didn’t even

take Step Two, and came straight here and actually

when we had the hearing, had not even taken Step Two.

So, there’s a distinction, I think. It really seems to me

that while I can’t and don’t intend to enjoin the NLRB

proceeding, I don’t think that I should, I don’t think

that the plaintiff really could show irreparable injury

even if we could

(Tr. 11]

find some perhaps violation of a rule that would give me

a right to enjoin. So, I don’t really think that I should.

I do think, however, that this Court does have jurisdic-

tion under Freedom of information after exhaustion of

administrative procedures. I think that that jurisdic-

tion is not absolutely predicated on exhaustion where cir-

cumstances suggest that exhaustion can be waived. Here

we have the plaintiff facing the prospects of a hearing on

the 27th having made what I feel and conclude is a

proper request at least for information. They’ve de-

scribed it properly, they’ve done it timely, the informa-

tion is definitive. It’s not an “open your whole bag”

approach. It’s just give us the statements or affidavits of

people you expect to call. They limited it in that fashion.

It seems to be generally covered, and they certainly

but for your asserting the specific offenses, the specific ex-

ceptions or exemptions that the Board has, on the sur-

face they are entitled to what they’ve asked for and

they’ve done it timely. So, then, we come to a point of

the exemptions and whether they are valid exemptions to

the information, keeping in mind, as I indicated to you,

asking you

[Tr. 12]

if that Supreme Court decision was under the old Act or

new Act. If that decision were under the new Act, I

think we would fold up the proceedings and go home.

I think that fully covers the proceedings and you would

be entitled to win. I don’t think that the Supreme Court

will hold that under the new Act. The new Act is a hole

new ballgame, it seems to me. Certainly the District

Court in Washington correcently concluded that the Ex-

emption Five is not present. Yes, sir.

MR. CALDWELL: May I, Your Honor, at this

point—

THE COURT: Y’all both interrupt at any time. I’m

just sharing with you some thoughts.

MR. CALDWELL: I was listening without interrupt-

ing. If I may go back, there are a couple of points.

I’m not, with all due respect, sure that I agree with

Your Honor that the Federal Mogul—it was a distinc-

tion without a difference perhaps, because I see it as

the same whether they had exhausted or not exhausted

in that you are saying that the time that a hearing

it set expedites or moves and changes the Federal In-

formation Rules of appealing and so forth because, of

course, we expedited our response

{[Tr. 13]

at the Regional level two days after the answer and as

quickly as we could even though we had a longer period

of time in which to respond, and I think whether we had

responded before this Court or they had not appealed

before this Court or they had appealed before this Court

doesn’t in fact make a difference as to the legal issue

under the Freedom of Information Act.

THE COURT: No. The point there was simply to say

that they had here done everything they could toward ex-

haustion, whereas in Federal Mogul they had not.

MR. CALDWELL: To that extent I would agree, but

as a legal result I don’t think there’s a great deal of dif-

ference. Now, I think, Your Honor, I’m in accord that

the Freedom of Information Act did not change the au-

thority of jurisdiction of a District Court to enjoin Board

proceedings at this stage before a hearing. I think, Your

Honor, that—I recognize that District Courts around

the country have varied widely in their interpretation

of their jurisdiction under the Freedom of Information

Act to require production or not require production of

affidavits, some Courts holding that the Board was re-

quired to, others that the Board was not required to, and

it is a very difficult area which is in a great state

oes '- a? 4s

(Tr. 14]

of flux at the present time. There’s no appellate court,

no Supreme Court decision certainly on it since the

amendments.

There’s only one appellate court decision, as I under-

stand it, reviewing the lower courts and determining

whether statements were exempt under Section 7 A of the

Act, and that is the Title Guarantee decision which is-

sued just the other day in the Second Circuit. I have

a copy of that decision if Your Honor wauld like.

But that goes on the merits of whether statements

taken by the Board in an Unfair Labor Practice pro-

ceeding are available, and I think, Your Honor, that the

Freedom of Information Act creates a right in the public

for certain information from the Government, and the

fact that the party requesting that information is a

private litigant or not with the Government doesn’t in-

crease his rights nor decrease his rights under the Pub-

lic Information Act and I think he’s to be treated as a

member of the public without regard to his status of

dispute with the Government as to whether he’s entitled

te that information under the Freedom of Information

Act.

So, the fact that the party here is coming up for an

Unfair Labor Practice with us doesn’t

[Tr. 15]

entitle him to more or less consideration than someone

who comes in that says I’m entitled to that information

under the Act.

THE COURT: It doesn’t entitle him to any more in-

formation or any more rights under it, but may very well

justify a capsuled timetable and expedited proceeding

or, in certain instances, perhaps a shortcutting of final

exhaustion to get into Federal Court to assert rights that

otherwise could be asserted by a private individual.

MR. CALDWELL: Which gives the Court jurisdic-

tion.

THE COURT: Purely and simply jurisdiction—

MR. CALDWELL: Yes, sir, Your Honor, jurisdiction,

and under the Act, of course, jurisdiction to enjoin the

Board from not producing the statements if they find

that they’re entitled to them. To that extent we are in

agreement. I would only suggest that the Court of Ap-

peals decision in the Title Guarantee interpreting exemp-

tion under Section 7 is at this point dispositive of the

issue. I hope that we’re going to have some other Court

of Appeals decisions issued in the very near future which

will adopt that similar approach to this exemption and

Board statements. I have a copy, Your Honor, of the

Second

[Tr. 16}

Circuit’s decision.

THE COURT: I would like it because I don’t have it,

I see the quotation from it here.

MR. CALDWELL: I did not duplicate it, Your

Honor, and I have it only in the Daily Labor Report.

THE COURT: Is it in full?

MR. CADWELL: Yes, Yovr Honor, i believe it is.

THE COURT: Carol, take it down and make—do you

have a copy?

MR. POELLNITZ: Yes, sir, one copy.

THE COURT: Take it down and make a couple of

copies, Carol. ;

MR. POELLNITZ: Your Honor, before we gei into

the further discussion of Mr. Caldwell’s remarks, it seems

to me that we ought to at least pause a minute and put

this thing into focus as to what the practical effect,

that is, the irreparable injury that the defendant in the

NLRB proceeding will be put in. I think it’s maybe not,

that maybe the case doesn’t turn on that point, but it’s

certainly appropriate background, and if you’d let Mr.

Earnest tell you, he’s in charge of that hearing.

THE COURT: I’d like to hear from him. I might

mention that I have a difficult time finding,

[Tr. 17]

so I would like to hear it, finding irreparable injury be-

cause of the nature and scope of review by the Circuit

Courts of Appeals of NLRB decisions, which scope of re-

view clearly covers denials of Constitutional rights or

denial or rights secured by other statutes and related

matters. ~

MR. EARNEST: Weill, both Mr. Caldwell and I, Mr.

Caldwell presently being with the Board and myself for-

merly being with the Board and Your Honor being fa-

miliar, I’m sure, with the Board procedures—in the trial

of the Unfair Labor Practice case of the investigations

case, the Court’s procedure is that after the witness has

testified that upon proper request the Board will turn over

any affidavits, statements, like that to the opposing party

for his examination at that time. The practical effect

is that the—

THE COURT: Using the criminal approach.

MR. EARNEST: Yes, sir. The practical effect that

the Administrative Law Judge gives the opposing attor-

ney some few minutes, three to five minutes to examine

the affidavit and then he has an opportunity to cross-

examine at that time using the affidavit. At the conclu-

sion of that cross-examination, he must turn the affidavit

back over. He has no use of that

(Tr.18] ?

affidavit with other witnesses, either prior witnesses or

following witnesses. He’s not entitled to it.

THE COURT: Do they do that pursuant to a rule -

that they have or just a matter of custom? Why do they

give them at the conclusion?

MR. EARNEST: I think maybe Mr. Caldwell could

speak to that.

MR. CALDWELL: It is a rule of the Board that upon

request after calling the witness they are to produce the

statement, and counsel is, to my knowledge, every time in

a hearing counsel asks for the affidavit he’s allowed to re-

cess and allowed the time necessary he wishes to examine

it and there’s no particular time limit placed on him by

the Judge. If it gets to ge a half hour, unreasonable, of

course—but the Judge looks at the length of the affidavit

and allows him time to examine it.

THE COURT: Let me ask Mr. Caldwell this question

because this bothers me with regard to the Title Guaran-

tee decision, which I’ve not read. If the Title Guarantee

goes out on a 7 A exemption, which I thought I under-

stood you to say it did—

MR. CALDWELL: I think that was the narrow

limits of the decision. ;

THE COURT: If it goes out on a 7 A exemption,

[Tr. 19]

what is the justification for a conclusion by the Court

there or by anyone that the enforcement proceedings are

interfered with by giving affidavits before the proceeding

that the absolutely by the rules of the Board going to be

given during the proceeding? What’s the justification for

showing an interference with the proceeding?

MR. CALDWELL: Well, without going into it exten-

sively, as I understand it, the Court considered the very

peculiar nature of a Board proceeding in that many of the

witnesses you’re calling are employed by and depending on

their livelihood with the employer respondent against

whom they’re going to testify and the Board or the

Court considered that an important factor in how they

could be affected by turning these over prior to their

testimony and that it would interfere or had the tendency

to interfere with the enforcement proceedings.

THE COURT: Well, now, they know the identity of

these people, don’t they?

MR. CALDWELL: No, sir, they don’t know the iden-

tity and we do not reveal the identity of individuals to

whom we talk prior to calling them as a witness. This is

a matter of strict confidentiality between the Board and

the witness and we don’t reveal

(Tr. 20}

to anyone, as a matter of fact, to whom we have talked.

Now, some may know or speculate or guess, and of course,

the charging party presents certain witnesses to us. He

knows who he presents or who he suggests we see. We

may not in all cases be able to see them or they may not

give us a statement. When the company cooperates, of

course, they know which supervisors they presented to us.

They may or may not on occasion know whether that su-

pervisor gave us a statement or not in that that witness

may come in to us in private and say I’d prefer not to be

involved or give you a statement in the case, or we may

see a witness presented by the Union who says I don’t

wish to be involved or don’t want to give you a statement,

or one may volunteer, or on occasions a supervisor may

come to us voluntarily and say yes, I know about this, let

me tel! you what happened, and the company may not

know that we have talked to the supervisor.

THE COURT: But they wili know if you use him.

MR. CALDWELL: If we use him, they will know

and they’re entitled to the affidavit. I might add this

case presents a peculiar or very interesting offshoot in

that the respondent asks for the statements of witnesses

we'll present and in this case we have

[Tr. 21]

both an Unfair Labor Practice proceeding and a proceed-

ing concerning objections filed by the Union. Now, as

the Government attorney representing the public and the

Board, we litigate only the Unfair Labor Practice pro-

ceeding and we don’t litigate the objections except to the

extent that they may be encompassed coextensive with the

ULP’s, Unfair Labor Practices. So, we would call cer-

tain witnesses to establish our Unfair Labor Practices

and by the same token those will establish certain objec-

tions, but there may be other objections filed or may be

material relating to objections and we have seen and we

have investigated the matter and it’s determined a hear-

ing is appropriate and we have witnesses, statements from

those witnesses, we’re not going to call them.

THE COURT: Then he has no request to that in-

formation.

MR. CALDWELL: But under the Freedom of Infor-

mation Act asking for statements of witnesses in the pos-

session of the Government, as a matter of the public he

could reasonably argue he’s entitled to those statements

as the ones of the witness we’re going to call.

THE COURT: Well, he wouldn't be entitled to those

under his request.

[Tr. 22]

MR. CALDWELL: No. I agree under this request.

THE COURT: So, you’re arguing an academic ques-

tion. : ;

MR. CALDWELL: Yes. I’m just pointing out that

there is this problem and that under the Freedom of

Information Act, if you say he’s entitled to statements in

the possession of the Government as public, not as a

private litigant but as a general member of the public, is

it reasonable to argue—

THE COURT: That’s the only way he stands here is

under the Freedom of Information Act is a member of the

ublic.

: MR. CALDWELL: So, the fact that he’s in litigation

and we have statements of witnesses we’re going to pre-

sent doesn’t give him any more right than he would if

he was a member of the public. The fact we’re going to

call the witnesses doesn’t add to his rights.

THE COURT: That’s just his method of ascribing

what he wants.

MR. CALDWELL: Yes, Your Honor.

THE COURT: I personally wondered why he de-

scribed it that way, why he limited himself that way.

[Tr. 23]

MR. EARNEST: I purposely did that for the very

argument that he now raises. Let me say with regard

to some of the statements that the Board has raised

that the Board does have a procedure of sending out

subpoenas prior to the hearing.

THE COURT: As to all witnesses?

MR. EARNEST: As to the witnesses that they in-

tend to use. In the past they have not been secretive of

about who was received those subpoenas and in fact in

the past have on occasion told me which witnesses were

going to be used. Employees also will come up, and I

think this is—it’s worked weli between the employers and

the Board because the employer must know who is going

to testify so that he can schedule his work force. With

regard to the Board’s fear of any retribution by the

company against people whose names were known ahead

of time, quite frankly these individuals would enjoy more

protection than those names who were not known. There’s

a specific section of the Act, Section 884, which prohibits

employers from taking action against such individuals,

and a company would certainly be at a disadvantage to

be put on notice as to who such witnesses were. I really

don’t share that fear.

In fact, the employer has a—it puts the

(Tr. 24]

employer to a disadvantage should they choose to discipline

somebody who in turn has done something warranting

discipline and who in turn testifies or is known to be tes-

tifying. It’s extremely difficult and chancy to discipline

somebody who is known to be going to testify or is known

to be in favor of Section 7—

THE COURT: Let me get right down to the bottom

line of it really. In the final analysis, assuming that I

stay where I am, and don’t think I’m going to budge from

that position that I don’t have any business enjoining

a proceeding or stopping the proceeding, I don’t see any

justification for that, we’re dealing purely and simply

with a Freedom of Information jurisdiction, that, as-

suming that I stay where I am, and I’m inclined to stay

there at the present time, that I consider jurisdiction of

this Court properly invoked notwithstanding the failure

to exhaust because of the unusual timetable the person

who’s seeking the information is under, then, if I stay

there, are we not then squarely presented with the ques-

tion, the academic matter of law question of whether

statements such as these are exempt under 7 A—

MR. POELLNITZ: Of witnesses who are expected

(Tr. 25]

to testify.

THE COURT: That’s right, just a pure matter of

law, the one that the Second Circuit wrestled with in

Title Guarantee—with the idea, with the idea that if, as

the Second Circuit may have held, it is an exemption,

summary judgment for the Board or dismissal or what-

have-you would be appropriate. If the Second Circuit’s

decision is not quite as strong as Mr. Caldwell says it

is, and he feels pretty good about it, although I happen

to disagree and don’t feel particularly bound by the

Second Circuit, and I were to conclude that it’s not an

exemption, I still can’t enjoin the Board. The only thing

I could do, as I see it, would be to direct the Board to

give the statements that were requested and they say

and that these statements must be delivered pursuant to

my order within X days preceding any hearing where

those people are going to be called and then leave it to

the Board to decide whether it wants to continue its

own hearing because of that type ruling or deliver the

statements or seek some emergency relief somewhere else.

You see what I’m saying?

MR. CALDWELL: I see what you’re saying, Your

Honor, and I will say if Your Honor issues that order

we’re certainly not going to be in contempt of this

[Tr. 26]

Court and go ahead with the hearing if you say produce

the statements in so many days before the hearing—

THE COURT: But I’m not enjoining the hearing.

MR. CALDWELL: Oh, but you would be, Your

Honor, because if we go to the hearing after that kind

of an order when you said produce the statements and

we failed to produce them—

THE COURT: No. You’d either have to produce the

statements or forego the hearing, but that’s your choice.

MR. CALDWELL: Yes, and I understand that. We’re

obviously not going to the hearing, as we have got to post-

pone the hearing. So, it has the same effect as enjoining

the hearing. You might as well, Your Honor, to enjoin

the hearing as to say produce them in so many days.

Your Honor, this gives this litigant with the Board

greater rights than someone that’s not in litigation with

the Board under the Public Information Act.

THE COURT: No. If a private individual can come

in here and show a need for expeditious receipt of the

information he’s otherwise entitled to under Freedom of

Information Act—let’s just say, for example, a person in

about to be deported and he seeks from the Immigration

officials some documents

{[Tr. 27]

that would save him from being deported and he’s asked

for it and the information was denied, he appealed and the

deportation hearing was set, the appeal had not been de-

cided and he came in here, I think that this Court would

have jurisdiction, one, to waive the normal exhaustion,

two, to enter final judgment, if in fact he’s entitled to the

information, direct that information forthwith be pro-

duced.

MR. CALDWELL: So, you would find in that case,

though, Your Honor, irreparble injury, the man being de-

ported.

THE COURT: No. I’m just showing that he has

made out a case for entitlement to the information under

the Freedom of Information Act and his request for

that information has been expedited because of some other

circumstances. Do you understand what I’m saying?

MR. CALDWELL: I understand what you’re saying,

You. Honor, and I’m reading it from the other side, I’m

sure. I understand what you’re saying, Your Honor, but

to me it has the same effect as if you said you are en-

joined from holding the hearing until: you produce or

produce it before you hold a hearing.

THE COURT: Except this: I’m pointing that out be-

cause I’m not saying that he’s getting more

(Tr. 28]

rights because he’s in litigation with the Board, he’s

getting the same rights as any other person, if, you know,

he’s entitled to the information. He’s geting the same

rights as any other person would be under the Freedom

of Information Act. The only thing he’s getting is an

rpedited determination of those rights because of some-

thing happening.

MR. CALDWELL: Well, Your Honor, as I under-

stand what you’re saying, it seems that you’re boing

farther in that situation. Being removed from the coun-

try until you get the information is a type thing you’re

showing, in effect, I’m going to suffer irreparable in-

jury unless I get this information very quickly and

soon.

THE COURT: Irreparable injury is not—and let’s

think of another example because I’m not trying to put

it on an irreparable situation. I’m trying to put it on a

situation that generates a factual basis that says I need

help promptly. Maybe it’s reparable harm rather than

irreparable, but still the reparable harm could justify an

expeditious handling of it.

MR. CALDWELL: But you’ve got to put it on that

basis that he’s going to suffer harm if you do this.

THE COURT: The point is I could find here

(Tr. 29]

that his harm is reparable harm, that is to say, what-

ever he may be denied in the forthcoming hearing the

Fifth Circuit can straighten out on direct appeal. So,

it’s reparable. But even though it’s reparable, he may,

nevertheless, be entitled to an expeditious determination

here that he’s entitled to that information forthwith.

Now, we all travel on the premise that I conclude that

he’s entitled to the information notwithstanding what the

Second Circuit has said, but let’s keep talking on that

vein. Let’s keep talking on that vein. Let’s say that I

do determine that they are entitled to this information

period, notwithstanding the Second Circuit, I could do one

thing. I could say you shall forthwith deliver.

MR. CALDWELL: Yes, Your Honor.

THE COURT: That’s the normal, just say give them

the information and give it to them before the sun sets

tomorrow or whatever.

MR. CALDWELL: Which is the remedy provided by

the Public Information Act that you will not refuse to

produce.

THE COURT: That’s right. But rather than go to

that extreme, since you would be raising such a serious

objection to it, I would, in effect, be

[Tr. 30]

giving you an option that that type of relief wouldn’t

give you. I would be saying to you, you give it to him

by tomorrow night if you intend to use them at a sched-

uled hearing or you give them to him by seven days before

any hearing that they would be used at. It’s relief more

than what I would think the NLRB would be entitled to

under the Freedom of Information Act if the informa-

tion is otherwise required to be produced.

MR. CALDWELL: How, Your Honor, is that not

the same remedy as to enjoin the Board proceedings

which you admit you don’t have jurisdiction to do?

THE COURT: I do not and I assert for the record

that I don’t think I’m entitled to enjoin the Board’s pro-

ceeding. I am, here again assuming that these are pro-

ducible, ! am vested with jurisdiction and the obligation

to tell a private person you are entitled to these docu-

ments and to tell a public agency you shall forthwith de-

liver them to them.

MR. CALDWELL: To that I agree.

THE COURT: If I find that to be the facts and the

law in this case, that is a decision I could render.

MR. CALDWELL: Yes, Your Honor.

THE COURT: That is less onerous, seems to

[Tr. 31]

me, to the Board than to say you shall deliver them

seven day before a hearing, any hearing. In the first

place, he’s defined what he wants in relation to what

you’re going to use at a hearing. So, necessarily, it con-

templates something that’s going to be used at a hearing.

MR. CALDWELL: All right. But Your Honor, that’s

taking the remedy one step, as I see it, beyond the author-

ity granted in the Public Information Act and is doing

by indirection a blockage of the Board’s hearing in this

matter absent compliance with your order. You might

as well, Your Honor, say to the Board you are enjoined

from holding the hearing until you produce. You’re say-

ing produce or you can’t hold a hearing.

THE COURT: All right. Let’s stop, then. Let’s don’t

go that far. Let’s say that we find that they’re entitled

to the information and I enter an order that says you

shall by April 17th deliver to them the statements period.

MR. CALDWELL: Yes, Your Honor.

THE COURT: Have I enjoined your proceedings:

MR. CALDWELL: No, Your Honor, you haven’t.

THE COURT: All right. Now, would you rather

have that type decision or would you rather have one

(Tr. 82]

that says you shall deliver the statements ten days be-

fore any scheduled hearings? Now, which would the

Board rather have?

MR. CALDWELL: You really give me a Hobson’s

choice. |

THE COURT: No. One you tell me I don’t have au-

thority to do because I’m enjoining your proceeding. I

think that helps you.

MR. CALDWELL: All right, Your Honor.

THE COURT: The other one is the one you say I

clearly have authority to do but I believe it’s the one that

you’re not going to select.

MR. CALDWELL: I think I am, Your Honor, and

I would say this. Maybe someone from the Washington

enforcement branch that is more knowledgeable in this

area than I am, since I’m committed to General Coun-

sel in this area—but if you say produce by April the 17th

the statements, as I read it, you’re within the scope of

the Freedom of Information Act and we may file a request

for a stay and appeal that ruling, as I understand it,

and we could go ahead and hold our Board hearing. If

you issue that order and that order is strictly within, I

will take the position that that would be strictly within

the Freedom of Information and we can appeal that as

to whether these

[Tr. 33]

are exempt, and that’s ruling strictly on the merits.

THE COURT: But you’re going to carry a tough

burden to get a stay, aren’t you?

MR. CALDWELL: Well, a stay only of your order

pending this appeal. I would not relate to the Board’s

Unfair Labor Practice hearing because your order

wouldn’t go that far. You follow me?

THE COURT: I say, but you would have a hard time

justifying why you’re entitled to a stay of that order.

MR. CALDWELL: A stay while we appeal, or at least

we could file our appeal to the Court as to your order to

produce the statements and we’re strictly within the scope

of the Freedom of Information Act and whether the ex-

emption 7 A applies because you would be saying, in

effect, they’re entitled to these statements under 7 or

under the Act and they are not exempt under the exemp-

tions, and to that extent I’d say yes, this puts it in the

proper posture, the proper form and proper line of pro-

gression. But with that order we would still be entitled to

go ahead and hold our Board hearing because it was

merely a matter of producing within that time frame

those statements which we claim are exempt and would

not jump over into the right of this Court to enjoin by

direct

[Tr. 34]

action or indirect action a Board proceeding. You can

say it either way, Your Honor, as I see it. You can say

you’re enjoined, Board, until you produce or you can say

produce and don’t hold a hearing until you do and the

results are the same that you have enjoined the Board

proceeding.

THE COURT: The way they’ve described the infor-

mation, it necessarily contemplates your hearing because

any direction that I will give to you to produce would

have to say you shall produce those statements and affi-

davits of those persons who you intend to call at a hear-

ing in connection with these charges.

MR. CALDWELL: That frames the statements.

That’s a description of the statements, but that doesn’t,

as I see it, Your Honor, intrude over to what I say is

beyond the Court’s jurisdiction which is enjoining of the

Unfair Labor Practice hearing that is scheduled before

the Board and I think the authority is clear that you

can’t extend that much farther beyond what you just

said.

THE COURT: I think that’s correct, but we’re travel-

ing academic at this point—

MR. CALDWELL: I hope so, Your Honor. In any

event, that is how I would view the interpretation of

(Tr. 35]

the discovery rights, the rights of litigants to enjoin

Board proceedings and the extent of the Court’s authority

under the Freedom of Information Act.

THE COURT: I think your filing of the motion to

dismiss or in the alternative summary judgment empha-

sizes something that I said at the beginning, and that is,

that we’re dealing here really with a, for all practical

purposes, a pure question of law.

MR. CALDWELL: I think we are, — Honor.

THE COURT: And I don’t see any reason not to and,

consequently, I hereby order that under Rule 65 we shall

advance to trial on the merits to this point in time and

that whatever we do will be a final adjudication either

finally adjudicating that you’re not entitled to anything

as the plaintiff or finally adjudicating that as a matter of

law the Board is required to produce something so that

either side would be in a position to take some further

step if necessary. I don’t see any reason, in other words,

not to advance and consolidate the final hearing on the

merits to this hearing here today and it’s so ordered.

Have you had a chance to look at the Title Guarantee

case?

MR. EARNEST: I have yes.

(Tr. 36}

THE COURT: Does it hold what Bill says it does?

MR. EARNEST: I don’t—and I'd have to go back and

re-read that part, but I don’t think it gets into the juris-

dictiona!l end of this at all which I think we may have

passed already here. It does get into 7 A, and I think

under the 7 B and 7 C, in effect, I felt like gave approval

to the District Court’s decision. Under 7 A—

THE COURT: I’ve got to assume that because Mr.

Caldwell didn’t argue those to me. He argued 7 A.

MR. EARNEST: Under the 7 A, what we have tried

to do in our memorandum is while we don’t agree—we

agreed with the lower court’s decision obviously. I think

the Fifth Circuit would not have followed the Second Cir-

cuit’s decision in this case, and even though the decisions

we cited to vou were prior to the amendment, I think it

shows the Fifth Circuit’s definition of what might be in-

terference with enforcement proceedings and I think the

Board is tu prove, not just by an allegation, but to prove

what that interference would be. We can see no inter-

ference. We have waited until the investigation, investi-

gation of both

[Tr. 37]

of these matters had been completed. We’re as close to

the hearing as I think we could be and it is not our desire

to interfere with that and, frankly, we see no interfer-

ence.

So, I think the Fifth Circuit has indicated its particu-

lar feeling in limiting the scope of the 7 A exemption,

and that’s in a recent case, I think, of Stokes. That par-

ticular case involved, I think, some seeking of records of

the Occupational Safety & Health Administration and it

did get into the enforcement area. I think that the Fifth

Circuit has talked in terms of that. That case may have

been since the amendment.

THE COURT: No, no. It was a ’73 case.

MR. EARNEST: All right. Your Honor, I would also

refer you to the lower court’s decision in this regard. I

think that particular case is a well-reasoned decision, the

case which we also cited in our memo, memorandum—

THE COURT: Bellingham.

MR. EARNEST: The Bellingham case. I think that

covered that point, and its decision, as I read the Belling-

ham case—and we attached some other cases, too. As I

read the Bellingham case, it did not predicate its finding

no exemption under 7 A on

[ Tr. 38}

the Title VII case. In other words, it found that inde-

pendent of the Title VII decision was my reading of it.

It did cite the Title case in connection with a further

exempt.on which we’re really not into.

THE COURT: Mr. Caldwell, it’s clear that the bur-

den of establishing an exemption, I think, perhaps rests

with the NLRB in this situation. Is there anything unique

about the statements or unusual that would cause them

to interfere with the enforcement proceeding or is the

Board’s position with regard to the statements that as a

general proposition the giving of virtually any statement

would interfere?

MR. CALDWELL: I will have to accept the latter de-

scription. There’s nothing unique in Board proceedings

in these statements, no.

THE COURT: So, we’re traveling basically under a

situation where you don’t need to go forward and make

a showing that these particular statements would inter-

fere. We’ll assume, I take it, for the purposes of this case

that these are just normal statements and that the Board’s

position would be that these, like any other statements,

would interfere.

MR. CALDWELL: Yes, Your Honor, yes.

THE COURT: O.K. All Right. Is there anything else.

that either of y’all would like to file

[Tr. 39]

or say? I think I understand it. I don’t know that I’m

able to answer it, but I think I understand it.

MR. CALDWELL: May I have just a moment, Your

Honor? I was looking to see if I had a case that would

be of some importance.

THE COURT: Please do. Mr. Caldwell, was this an

extra copy of the brief?

MR. CALDWELL: Yes, sir. I filed one with the Clerk.

Your Honor, I don’t believe that I have anything further

to offer. I think the Board’s argument is fully set forth

in Title Guarantee and the cases cited and we rely on

that as to the merits of the availability of the statements

and the application of 7A.

THE COURT: All Right. Anything further from

y'all?

MR. EARNEST: I would like to request that Your

Honor take a look at the District Court decision also with

regard to that District Court—

THE COURT: Was that reported somewhere?

MR. POELLNITZ: We’re getting you a copy of it

right now, Your Honor. It’s in the Labor Reports. I

haven’t seen it in Fed. 2d.

MR. EARNEST: It’s so new you have a problem of

getting it, but I request that Your Honor look at

(Tr. 40]

that.

THE COURT: It’s no longer the law, is it?

MR. EARNEST: Of that Circuit, yes, sir.

MR. POELLNITZ: It’s an interpretation of the Free-

dom of Information Act and somebody is going to have to

eventually interpret it.

THE COURT: Was the decision in the State of Wash-

ington appealed, do you know?

MR. CALDWELL: No, I don’t, Your Honor, I’m

sorry, but we’re appealing a great many of them I’m

afraid. We've been sustained and overruled in any num-

ber of cases. I would suspect that all of the adverse deci-

sions are being appealed though, Your Honor.

THE COURT: Well, that’s an adverse decision. It’s

as adverse as it can be.

MR. CALDWELL: That’s right, and I would say with-

out knowing that one specifically, but I’m sure as a gen-

93 if

eral matter we’re filing appeals on all of the adverse deci-

sions.

MR. EARNEST: Your Honor, I would also refer you

to the Sears case which I think the Labor Board—I be-

lieve it’s my Exhibit I attached to the complaint. It’s the

Supreme Court Sears case, and I think in that particular

case, although the issue was not

[Tr. 41]

exactly the one that we’re faced here with, the Court did

point out in that particular situation that it was not go-

ing to make a determination with regard to a Section 7

exemption. It pointed out that the Board had not raised

this as a defense in the District Court but first raised it

when they got to the Court of Appeals and that the Court

of Appeals went ahead and decided against the Board

without referring to the Section 7 exemiption, and the

Court had some language in its decision on that. I don’t

think there was any definitive one way or the other, but

it may help Your Honor with what the mood of the Court

may be should they be faced with that, Supreme Court,

excuse me, Supreme Court of the United States. I think

that the Court also noted in that particular decision that

they didn’t make the Section 7 exemption claim when the

Act was more favorable to it than the present Act is.

THE COURT: All right, then. I will take the matter

under submission and hopefully we’ll have something on

it in the next few days consistent with my other work

policy.

MR. POELLNITZ: Thank you, Your Honor.

MR. CALDWELL: Thank you.

CERTIFICATE

STATE OF ALABAMA _)

)

JEFFERSON COUNTY )

I do hereby certify that the above and foregoing type-

written matter is a true and correct transcript of the

stenotype notes of the proceedings herein, taken down by

me, and transcribed under my supervision, at the time and

place hereinbefore noted.

I further certify that I am neither of counsel nor of

kin to the parties to the action, nor am I in anywise

interested in the result of said cause.

/s/ John T. Weaver

JOHN T. WEAVER

Court Reporter

-”

CLERK’S CERTIFICATE

UNITED STATES OF AMERICA )

)

NORTHERN DISTRICT OF ALABAMA )

I, JAMES E. VANDEGRIFT, Clerk of the United

States District Court for the Northern District of Ala-

bama, do hereby certify that the foregoing pages num-

bered from one (1) to forty-two (42), both inclusive,

comprise the original pleadings in this action and are

herewith attached, as a full, true and correct transcript

of the supplemental record on appeal in the matter of

ROBBINS TIRE AND RUBBER COMPANY, Plaintiff-

Appellee-vs. NATIONAL LABOR RELATIONS BOARD,

Defendant-Appellant, Civil Action No. 76-H-0528-North-

western Division, as fully as the same appears of record

and on file in my office.

IN WITNESS WHEREOF, I have hereunto subscribed

my name and affixed the seal of said Court at Birming-

ham, Alabama, in said District, on this the 17th day of

May, 1976.

/s/ James E. Vandegrift

JAMES E. VANDEGRIET, Clerk

United States District Court

[dated April 20, 1976]

* * * * *

EMERGENCY MOTION FOR STAY

PENDING APPEAL

To the Honorable, the Judges of the United States

Court of Appeals for the Fifth Circuit:

Pursuant to Rule 8(a) of the F

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.