APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action No. 76-851.
Seitz, Chief Judge, Aldisert and Hunter, Circuit Judges.
This appeal presents an issue not previously considered by an appellate court: whether an employer can use the Freedom of Information Act, 5 U.S.C. § 552, to obtain copies of the individual union cards that were submitted to the National Labor Relations Board (NLRB) in support of a petition by the union for a representation election. The lower court found no exemption applicable, and ordered disclosure.*fn1 We vacate that order, for the following reasons.
On February 20, 1976, the American Federation of Grain Millers, AFL-CIO, filed a representation petition with the regional office of the NLRB, on behalf of employees of a nursing home operated by the plaintiff (Masonic Homes) in Elizabethtown, Pennsylvania. The petition described the unit as including "All employees of Masonic Homes at Elizabethtown, PA." and numbering "Approx. 320." Question 6b - "Is this petition supported by 30% or more of the employees in the unit?" - was checked "yes." Union cards, signed by individual employees, were presented along with the petition, to substantiate the thirty-percent showing of support.
On March 2, 1976, the Regional Director sent a copy of the petition with a "notice of representation hearing" to Masonic Homes. An attorney for Masonic Homes responded, on March 6, 1976, with a letter challenging the sufficiency of the union's showing of support. The specific objection was that the petition claimed a unit numbering 320, but the employer's payroll records would fix the number at 480 or more. The hearing, originally scheduled for March 10, 1976, was rescheduled for March 23 and 24.
Then, on March 15, 1976, the employer sent the following letter to the Regional Director:
Pursuant to the applicable provisions of the Freedom of Information Act and Section 102.117 of the Board's Rules and Regulations, counsel for Employer in the above captioned matter hereby requests 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.
Counsel for Employer requests the above mentioned information in view of the fact that it wishes to attack the validity of the signatures, the manner in which the cards were solicited and the accuracy of the dates of the cards.
Counsel for Employer will assume the financial burden for any costs incurred regarding the reproduction of the information requested above.
Thank you very much for your cooperation in this matter.
App. at 30-31. In addition, Masonic Homes requested a further postponement of the hearing.
The Regional Director, on March 19, 1976, denied the request for disclosure, claiming exemption under sections 5, 6, 7(A), and 7(C) of the Freedom of Information Act, 5 U.S.C. §§ 552(b)(5), (6), (7), (A) and (C). On the same day, Masonic Homes appealed to the NLRB. The Board, on March 24, 1976, affirmed the Regional Director's refusal to disclose, mainly because "the FOIA was not intended to serve as a discovery tool. . . . Further, the sufficiency of a showing of interest in support of a petition is a matter for administrative investigation and determination by the regional director not subject to litigation." App. at 37.
On March 22, 1976, Masonic Homes filed a complaint in the United States District Court for the Eastern District of Pennsylvania, under the Freedom of Information Act, and requested a temporary restraining order against further NLRB proceedings. The request for a temporary restraining order was denied. The request for disclosure of the union authorization cards and the agency documents, however, was granted. On a motion for summary judgment, the district court held that authorization cards fall outside any exemption, and specifically discussed exemptions 6, 7(C), and 7(D). The requested "documents indicating the Region's final determination of the petitioner's showing of interest or lack thereof" were found not to fit exemption 5. The request for an injunction against further NLRB proceedings pending receipt of the information ordered disclosed was denied. On the disclosure issue, though, NLRB was ...