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United Technologies Corp. v. National Labor Relations Board

decided: November 18, 1985.


Appeal from a summary judgment of the District Court for Connecticut, M. Joseph Blumenfeld, Judge, denying appellant's Freedom of Information Act request.

Lumbard, Circuit Judge.

Author: Lumbard

LUMBARD, Circuit Judge:

United Technologies Corp. ("UTC") appeals from a summary judgment in the District Court for Connecticut in favor of the National Labor Relations Board exempting the Board from compulsory disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1982), the identities of an informant for the Board and of a Board agent. We affirm.

This case grows out of a dispute between UTC and a union of security guards that sought to represent the guards at UTC's Hamilton Standard Division in Windsor Locks. On September 16, 1983, the union filed charges against UTC with the NLRB's subregional office in Hartford, alleging unfair labor practices by UTC in connection with an election to certify the union as the representative of the Hamilton Standard security guards. After an investigation, on March 14, 1984, the Officer-in-Charge of the subregional office, Peter Hoffman, issued a complaint against UTC. A hearing was set before an NLRB administrative law judge for May 7, 1984.

At a hearing preparation meeting on April 27, a UTC employee provided a Board agent with some UTC documents, including a memorandum and exhibits prepared by UTC for use at the May 7 hearing. These materials had apparently been copied without UTC's permission. When the Board agent determined the nature of the documents, he immediately returned them to the UTC employee and explained to him the seriousness of the unauthorized possession of an employer's materials prepared for litigation.

On May 3, the union, for unstated reasons, notified the NLRB subregional office that it wished to withdraw the unfair labor practice charge. The office postponed the hearing scheduled for May 7. On May 8 and May 10, Hoffman advised UTC that copies of its documents had been brought to the Board's April 27 hearing preparation meeting. On May 11, the NLRB's General Counsel's office approved the union's request to withdraw the charge and Hoffman dismissed the complaint.

This did not end the matter. UTC wanted to know more about the April 27 meeting, particularly the identities of the Board agent who received the documents and the UTC employee who delivered them. When Hoffman refused to reveal this information, UTC, on June 26, 1984, filed a request under the FOIA for all materials in the Board's possession that related to the unfair labor practice investigation against UTC.

The Board produced a number of documents. Most important for this litigation were two internal NLRB memoranda, dated May 9, 1984 and June 1, 1984, written by the Board agent who received the UTC materials at the April 27 hearing preparation meeting. The Board released portions of the memoranda, but deleted those portions that contained the opinions and recommendations of the Board agent and the names of the UTC employee and Board agent involved. The Board maintained that this information and any other documents withheld were exempt from UTC's FOIA request under Exemptions 5, 6, 7(C), and 7(D) of the FOIA. However, the Board did reveal the identities of the UTC employee and the Board agent to the counsel for the union.

On July 13, 1984, UTC appealed to the NLRB General Counsel's office. Soon thereafter, the General Counsel's office ordered the disclosure to UTC of some previously withheld materials, but refused to order the disclosure of the names sought by UTC.

UTC then brought suit in the district court to compel compliance with its FOIA request. Both parties agreed that the case could be decided on their cross-motions for summary judgment. UTC's papers revealed that it remained primarily interested in the names of the UTC employees who were prospective witnesses for the Board in the unfair labor practice proceedings and in unredacted copies of the May 9 and June 1 memoranda which would reveal the identities of the people involved in the April 27 meeting.

On March 28, 1985, Judge Blumenfeld denied UTC's motion and granted the Board's cross-motion. He based his decision on Exemptions 5 and 7 (D) of the FOIA and did not pass on the Board's claim of Exemptions 6 and 7(C).

We affirm on the basis of Exemption 7(D).*fn1

The identities of the employee-informants. 5 U.S.C. § 552(b)(7)(D) exempts from disclosure under the FOIA "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . disclose the identity of a confidential source. . . ." The Board claims, and the district court held, that the identities of employee-informants, including the identity of the employee who delivered the stolen UTC documents, are protected under this Exemption. UTC contends that employee-informants ...

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