Operations In Fiscal Year 1988 - National Labor Relations Board

170 Fifty-Third Annual Report of the National Labor Relations Boardprocess privilege to apply, the materials sought must be both"predecisional" and "deliberative." The court held that all therepresentation case memoranda that the Board sought to protectwere not required to be disclosed under Exemption 5 due totheir character as intra-agency predecisional analyses communicatedfrom agents in the Board's Regional Office to their RegionalDirector. The court further ruled that the remaining documentswere protected under Exemption 6 on the ground thatsuch • documents were "personnel and medical files and similarfiles the disclosue of which would constitute a clearly unwarrantedinvasion of personal privacy." Initially, as to Exemption 6, thecourt noted that "similar files" had been construed broadly andthat the records at stake—consisting of employees' names and addressesand payroll records—easily fit into that category. Thecourt concluded that the employees' right to privacy as to theiraddresses and payroll records, although slight, nonetheless outweighedthe public interest in their disclosure. It noted thatLocal 3's interest was, in essence, as a litigant before the Boardto determine the names of employees needed to sign union authorizationcards. The court accordingly ruled that the unioncould not use a FOIA request to circumvent the Board's "ExcelsiorRule,"" which requires disclosure of a list of employeenames and addresses only after the union has demonstrated sufficientemployee interest and the Regional Director has directedthat an election be held.In Los Angeles County Building Trades Council v. NLRB," thedistrict court granted the Board's Motion for Summary Judgmentbased on the FOIA Exemption 5 protection for attorneywork product materials as applied to disputed records consistingof copies of affidavits and declarations given to the Board in anunfair labor practice proceeding. The court found, moreover,that Exemption 7(C) of FOIA protects such materials from disclosurewhen the privacy interest of the subject employees outweighsthe public interest in disclosure. Because, in this case, therisk of reprisals and embarrassment to the employees who providedthe statements was great, and the plantiff s interest in thedocuments was its private interest in aiding its own litigationeffort, the court ruled that the documents were exempt from disclosureunder Exemption 7(C).Finally, in Thurner Heat Treating Corp. v. NLRB,21 Thurnersought a large number of documents, including witness statementsfrom various unfair labor practice case files. The SeventhCircuit upheld the district court decision that the witness statementswere not protected by Exemption 5 on the ground that thewitness' affidavits had not been shown to satisfy the threshold re-" Excelsior Underwear, 156 NLRB 1236 (1966)." No. 87-01647 (CD.Cal.).al 839 F.2d 1256 (7th Cir.).