The opinion of the court was delivered by: VANARTSDALEN
Two basic issues are presented in this action involving the inter-relation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1967), as amended, 5 U.S.C. § 552 (Supp. 1976), with hearings conducted by the National Labor Relations Board (NLRB) to determine whether to direct a representation election, pursuant to Section 9(c) of the Labor-Management Relations Act of 1947 (LMRA), 29 U.S.C. § 159(c)(1973). First : Are employee authorization cards that have been obtained by a union and presented to the NLRB in connection with a union petition for a certified election disclosable under the FOIA? I conclude that the answer is "Yes". Second : Is an employer entitled to enjoin NLRB representation proceedings pursuant to Section 9(c) of the LMRA until the employer has had the opportunity to examine the authorization cards? I conclude the answer is "No". Consequently, defendants will be ordered to permit plaintiff to examine the documents under the FOIA, but the representation proceedings before the NLRB will not be enjoined pending such examination.
Plaintiff seeks to inspect employees' authorization cards that were presented by a union to the NLRB as evidence of substantial employee interest in being represented by the union. Included in the requests for production are "any documents indicating the Region's final determination of the Petitioner's showing of interest or lack thereof." Secondly, the plaintiff seeks to enjoin any proceedings before the NLRB concerning the representation of its employees until plaintiff has obtained the information which it seeks under the FOIA.
An application for a temporary restraining order to prohibit the NLRB from proceeding with the representation hearing was denied. In accordance with the mandate of the FOIA,
an early hearing date was scheduled on the motion for a preliminary injunction. Defendants submitted a motion for summary judgment. Pursuant to Fed. R. Civ. P. 65(a)(2), a consolidated hearing was held on the motion for a preliminary injunction and on the merits of a permanent injunction. A stipulation of facts was filed. Argument was heard on all the outstanding motions which are now ripe for final determination and judgment.
The action was filed pursuant to the FOIA, 5 U.S.C. § 552(a)(4)(B) (Supp. 1976), amending 5 U.S.C. § 552(a)(1967), which expressly vests jurisdiction in the district courts. Venue is proper in this district. Plaintiff's principal place of business, and the agency records are in this district. The statute requires that the district court determine the matter de novo.
1. On February 20, 1976, the American Federation of Grain Millers, AFL-CIO, filed on a standard printed form, a "representation petition" with Region 4 of the NLRB at Philadelphia, Pennsylvania, pursuant to Section 9 of the LMRA, 29 U.S.C. § 159(c) (1973). The petition alleged that a substantial number of the plaintiff's employees at a nursing home located in Elizabethtown, Pennsylvania, wished to be represented for collective bargaining purposes by the petitioner. The petition sought an NLRB directed election and certification in accordance with the LMRA.
2. The petition filed on February 20, 1976 alleged, inter alia, that the proposed unit consisted of 320 employees, and that the petition was supported by 30% or more of such employees. By letter of March 6, 1976, the plaintiff-employer wrote to the NLRB questioning the 30% "showing of employee interest" because plaintiff's records disclosed a payroll of over 480 employees.
3. Section 101.18 of Statement of Procedures for the NLRB provides that under most circumstances the petitioning union must be the authorized agent for at least 30% of the employees of the proposed unit in order to establish a showing of interest of a "substantial number of employees," as provided in 29 U.S.C. § 159(c)(1)(A)(1973).
4. By letter dated March 15, 1976, the plaintiff made a formal request to defendant, Peter W. Hirsch, Regional Director of the NLRB to supply the following information:
1. All authorization cards submitted by the Petitioner as evidence of its showing of interest.
2. Any documents indicating the Region's final determination of the Petitioner's showing of interest or lack thereof.
The letter further stated:
(Exhibit D -- Stipulation of Facts).
5. The request was denied by defendants, who claimed a privilege against disclosure under the statutory exemptions 5, 6, 7(A) and 7(C) of the FOIA. (Exhibit F -- Stipulation of Facts). In defendants' brief and at oral argument, defendants additionally relied on exemption 7(D), 5 U.S.C. § 552(b)(5), (6), 7(A), (7)(C), (7)(D) (Supp. 1976), amending 5 U.S.C. § 552(b)(1967).
6. By mailgram of March 18, 1976, plaintiffs requested that defendants hold in abeyance the scheduled Section 9 representation hearing until "the employer has had a reasonable opportunity to procure and inspect the sufficiency of the authorization cards submitted to the Board by the organizing union." The request was not granted by defendants.
1. The court has jurisdiction of the parties and subject-matter, insofar as the complaint seeks relief under the FOIA, 5 U.S.C. § 552(a)(4)(B) (Supp. 1976), amending 5 U.S.C. § 552(a)(1967).
2. The plaintiff-employer is entitled under the FOIA to inspect authorization cards signed by its employees authorizing a union to act as their bargaining agent, which cards were presented to the NLRB by the union as evidence of a substantial showing of interest by employees in order to have ...