Anderson Greenwood and Company, Plaintiff-appellee, v. National Labor Relations Board, Defendant-appellant, 604 F.2d 322 (5th Cir. 1979)

The National Labor Relations Board ("NLRB") appeals from an order of the district court requiring it to provide appellee Anderson Greenwood & Co. with certain statements of witnesses taken during the NLRB's investigation of a challenged representation election. Since the date of the trial court's order, we have decided Clements Wire & Mfg. Co., Inc. v. NLRB, 589 F.2d 894 (5th Cir. 1979). Clements Wire requires us to reverse the judgment of the trial court.

The facts are not in dispute. After a representation petition was filed by the International Association of Machinists and Aerospace Workers, AFL-CIO ("the Union") seeking certification as a collective bargaining unit for certain employees of appellee, the NLRB duly conducted a representation election. The election was extremely close,¹  and both sides filed timely objections to it. The NLRB conducted an investigation into the election, during which it interviewed a number of individuals and secured affidavits and statements from some of them. On the basis of this investigation, the Regional Director of the NLRB issued a report ordering that an evidentiary hearing be conducted on certain issues raised by the investigation.

On January 6, 1978, ten days prior to the scheduled hearing, appellee filed with the Regional Director a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking copies of all affidavits and written statements of employees of appellee or others taken by or submitted to the regional office of the NLRB in the course of the investigation into the election, as well as other documents acquired by the regional office in the course of the investigation. The Regional Director denied the request in its entirety, relying on Exemptions 7(A), (C), and (D) of the FOIA, 5 U.S.C. § 552(b) (7) (A), (C), and (D).²  Appellee appealed this denial to the NLRB's General Counsel, who denied appellee all requested documents except campaign letters written by appellee. The General Counsel relied on FOIA Exemptions 5 and 7(A).³ 

On January 12, 1978, appellee filed a complaint in United States District Court for the Southern District of Texas seeking an order compelling the NLRB to provide the requested documents prior to any hearing on the election objections.⁴  The district court, relying on our opinion in Robbins Tire and Rubber Co. v. N. L. R. B., 563 F.2d 724 (5th Cir. 1977), found that the documents were not exempt from disclosure under the FOIA, and entered final judgment ordering the NLRB to provide appellee with any affidavits or written statements acquired in its investigation.⁵  The NLRB obtained a stay of execution of the judgment and brought this appeal.

Our decision in Robbins Tire,

Interpreting Congresses' reported desires,

Exposed workers to their bosses' ire.

The High Court, avoiding this sticky quagmire,

And fearing employers would threaten to fire,

Sent our holding to the funeral pyre.⁶ 

Then along came Clements Wire,⁷ 

Soon after its venerable sire.

To elections, Wire extended Tire,

Leaving app'llees arguments higher and drier.

Now to colors our focus must shift,

To Green wood and stores that are Red.⁸ 

We hope this attempt at a rhyme, perhaps two,

Has not left this audience feeling too blue.

Since Clements Wire directly controls our decision here, we reverse.

REVERSED.