90 LRRM 3138 (D.C.S.C.)

Deering Milliken, Inc. (DMI) that the defendant Peter G. Nash, in his capacity as General Counsel to the National Labor Relations Board (NLRB), is withholding during the course of an NLRB proceeding certain documents to which DMI contends it is entitled under the provisions of the Freedom of Information Act (FOI Act).

The present action can actually be viewed as merely a skirmish in the massive, almost legendary conflict between DMI and the NLRB over the 1956 closing of the Darlington Manufacturing Company's textile plant after a vote of its employees revealed their preference for union representation. Board Case No. 11-CA-1071 was initiated in 1956, charging DMI and the Darlington Manufacturing Company with violating Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by closing the Darlington plant to discourage union organization in the remaining DMI plants.

Years of litigation and a series of NLRB and court decisions established that the charges made by the NLRB in 1956 were essentially correct and have brought the case to its present status.2 The parties are now engaged in what is termed the compliance phase of the litigation, DMI having been found to be liable for the loss of earnings (back pay) and other expenses and losses incurred by employees as a result of the unlawful plant closing. In the present back pay proceeding which began May 28, 1975, the NLRB has the burden of establishing the amounts due by DMI, while

national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order; “(2) related solely to the internal personnel rules and practices of an agency;

"(3) specifically exempted from disclosure by statute; obtained from a person and privileged or confidential; “(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

"(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

“(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication. (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety or law enforcement personnel;

"(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

“(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.

"(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

2For a summary of the litigation history, see the last court decision in the series, the Fourth Circuit's opinion in Darlington Mfg. Co. v. N.L.R.B. 397 F.2d 760, 68 LRRM 2356 (4th Cir. 1968), cert. denied, 393 U.S. 1023, 70 LRRM 2225 (1969).

90 LRRM 3138 (D.C.S.C.)

DMI can reduce its liability by showing, for example, that employees had declined proper reinstatement offers, had received interim earnings from other employers during the back pay period or had not in fact incurred claimed expenses, or that the Darlington plant would have closed at an ascertainable later date for reasons other than unlawful retaliation against the employees.3

Over the 19-year history of the Darlington mill litigation, it is apparent and perhaps understandable that more than the ordinary degree of animosity has developed be

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tween the parties. This, in addition to the altogether proper desire of counsel for both sides to provide the fullest sort of representation, may help to explain the obvious fervor with which the parties seem determined to litigate rather than negotiate issues such as those raised in this action. Only the precise nature of the particular phase now in progress (the back pay determination), is germane to the resolution of the issues in this action, however, since the applicability of § 552(b)(7)(A) must be determined with reference thereto. Otherwise the sole basis of this court's decision must be the merits of DMI's request according to the FOI Act provisions, determined without reference to what occurred or might have occurred as the conflict between DMI and the NLRB unfolded.

When the NLRB determined that the amount of back pay owed by DMI could not be resolved without a formal hearing, it issued on November 29, 1974 a "Backpay Specification and Notice of Hearing," pursuant to the NLRB Rules and Regulations, 29 C. F. R. 102.52. This document, consisting of over 2000 pages, sets forth the NLRB computations indicating gross and net back pay due and related information. An affidavit provided by the Supervisory General Attorney for the NLRB at Winston-Salem, North Carolina also emphasizes that DMI was supplied with a variety of information concerning the identity and location of discriminatees and their interim earnings; the affidavit fails to mention that the NLRB was required to provide this infor

3For a fuller discussion of the remedy and the manner in which DMI can mitigate its liability, see the NLRB decision, Darlington Mfg. Co., 139 NLRB 241, 254-5, 258-59, 51 LRRM 1278 (1962) and the Fourth Circuit decision, Darlington Mfg. Co. v. N.L.R.B. supra note 2. 397 F.2d at 773, 68 LRRM 2356.

*The information required to be included in such specifications is set forth in 29 C.F.R. 102.53.

90 LRRM 3138 (D.C.S.C.)

mation under the guidelines established in the Fourth Circuit's decision in Florence Printing Co. v. N.L.R.B.5

Between December 16, 1974 and March 5, 1975 DMI unsuccessfully attempted by means of subpoena and requests through administrative channels within the NLRB to secure additional documents and records it contended were necessary to the preparation of its case for the back pay hearing. On March 13, 1975 DMI invoked the mechanisms of the FOI Act and properly but unsuccessfully attempted to secure the same documents it had previously requested. The complaint in this action, seeking injunctive relief from the NLRB's further withholding of the requested information, was filed May 22, 1975 pursuant to 5 U.S.C. § 552(a)(4)(B), which gives this court jurisdiction and empowers it to grant the relief sought. The categories of documents sought by DMI in this action and previously are the following:

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1. All documents containing information relating to the interim earnings of the individual backpay claimants including, but not necessarily limited to, tax records, payroll records, affidavits, statements, memoranda or notes.

2. All documents containing information concerning the search for substantially equivalent or interim employment by the individual backpay claimants including, but not necessarily limited to, affidavits, statements, memoranda or notes.

3. All documents, receipts, statements, memoranda or notes relating to travel, moving, medical or other expenses alleged in the Backpay Specification.

4. All affidavits, statements, memoranda or notes relating to the decisions by individual backpay claimants not to accept reinstatement.

5. The report, "The Darlington Case, The Economics of a Mill Closing" by Professors Robert Thornton and Urban Ozanne including any subsequent reports and supporting evidence not submitted by the employers.

The number of documents which may be included may be

5376 F.2d 216, 65 LRRM 2047 (4th Cir. 1967), cert. denied, 389 U.S. 840, 66 LRRM 2307. "The provision in its entirely reads:

(a) Each agency shall make available to the public information as follows:

(4)(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.

90 LRRM 3138 (D.C.S.C.)

included in the above request is obviously quite substantial. The rights of approximately 540 discriminatees are involved in the back pay determination and the NLRB has indicated that it possesses files of varying complexity for each of the discriminatees. To simplify this action and to provide DMI with some insight into the nature of the documents which it has requested but obviously

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not seen, this court ordered on June 5, 1979 that the NLRB provide a descriptive list of the documents contained in several typical files. The NLRB has complied, furnishing a list of the contents of six files and including thereon the reasons for which it claims each document is exempt from production under the FOI Act. Counsel for DMI have not questioned the accuracy of the list and the court has been assured that it is both accurate and representative of the entire group of documents. Counsel for the NLRB have also submitted to the court for possible in camera inspection the documents itemized in the list.

In declining to produce the documents requested by DMI, the NLRB claims that subsections (5), (7)(C), (7)(D), and (7)(E) of Section 552 exempt certain documents from production under the FOI Act and that all of the documents are exempt under Subsection (7)(A) because their production would "interfere with enforcement proceedings."

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There can be no disagreement concerning the basic policies of the FOI Act, which establishes disclosure to the public as the rule rather than the exception in government agencies. The Supreme Court recently considered certain aspects of the FOI Act in NLRB v. Sears, Roebuck & Co.8 and stated:

[T]he Act seeks 'to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (hereinafter S. Rep. No. 813); EPA v. Mink, supra, at 80. As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions."

7See note 1 supra for the full text of all the exemptions.

8421 U.S. 132, 89 LRRM 2001 (1975).

9Id. at 136, 89 LRRM at 2002. The FOI Act's background and principal objectives were described more fully in EPA v. Mink in 1972, and although it was the 1974 amendments which included the exemptions at issue here, that case and Sears, which actually construed the pre-amendment version of § 552, are nevertheless authoritative as to the general nature and scope of the Act and of course, as to the unamended portions.

90 LRRM 3138 (D.C.S.C.)

In implementing the FOI Act, it is imperative that the courts construe the obligation to produce broadly and the exemptions from this obligation narrowly.10

The parties appear to agree that the FOI Act requires the production of the documents in this case unless they fall within one of the specific exemptions. DMI also does not appear to contend that the items requested are not "investigatory records compiled for law enforcement purposes" within the meaning of Subsection (b)(7). Thus if any of the documents are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" (exemption 5), they need not be produced. If any documents interfere with enforcement proceedings, constitute an unwarranted invasion of personal privacy, disclose the identity of a confidential source, or disclose investigative techniques and procedures they need not be produced. Under the FOI, DMI is entitled only to those documents which fall in none of the categories listed above.

DMI cannot and does not deny that it seeks the documents requested in this action for its own use in an NLRB back pay determination. Such material is, by its very nature, of limited appeal and utility, and this court quite frankly cannot envision that DMI or any member of the general public would have any great desire for it at all outside the context of the present NLRB hearings. Nevertheless, the request has been made and in the consideration of it, this court must consider whether DMI's status as a litigant has any effect on its rights under the FOI Act. This issue appears to have been decided by the Supreme Court in N.L.R.B. v. Sears, however, when it observed that

"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 inform the public about agency action and not to benefit private litigants. EPA v. Mink, 410 U.S. 73, 79, 92; Renegotiation Board v. Bannercraft, 415 U.S. 1, 24. Accordingly, we will not refer again to Sears' underlying unfair labor practice charge.""

Therefore, in determining DMI's rights under the FOI

10See the excellent opinion in Ethyl Corporation v. EPA, 478 F.2d 47 (4th Cir. 1973).

11421 U.S. at 143 n. 10, 89 LRRM at 2005.