January 2011 - National Labor Relations Board

11822 FOIA DISCLOSURE OF DOCUMENTSthe processing of cases. See Sec. 11824 for certain exceptions to this policy. As set forthbelow, this policy has been upheld in numerous cases.It has consistently been held that the Act does not compel the Board to provide fordiscovery in its proceedings and that the unavailability of discovery is not a prejudicialdenial of due process. See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214(1978); Wellman Industries v. NLRB, 490 F.2d 427 (4th Cir. 1974); NLRB v. AutomotiveTextile Products Co., 422 F.2d 1255, 1256 (6th Cir. 1970); North American RockwellCorp. v. NLRB, 389 F.2d 866, 871–873 (10th Cir. 1968); NLRB v. Movie Star, Inc., 361F.2d 346 (5th Cir. 1966); Raser Tanning Co. v. NLRB, 276 F.2d 80 (6th Cir. 1960). Inaddition, the General Counsel has no obligation to disclose any exculpatory evidencecontained in investigatory files. Erie County Plastic Corp., 207 NLRB 564, 570 (1973),enf. mem. 505 F.2d 730 (3d Cir. 1974); North American Rockwell, supra.Notwithstanding the above, pursuant to Sec. 102.118(b)(1), Rules andRegulations, upon request, certain statements and material must be made available by theGeneral Counsel after a witness has testified at a hearing. Sec. 10394.7.The Agency policy of restricting Board agent testimony is required since thehighly sensitive and delicate role of a Board agent in processing cases would be seriouslyimpaired if a real likelihood existed that the agent would become a witness in litigation orif confidential investigative information would become public. Sunol Valley Golf &Recreation Co., 305 NLRB 493 (1991) and G. W. Galloway Co., 281 NLRB 262 fn. 1(1986). In this regard, the limited evidentiary privilege for informal deliberations of allprosecutorial agencies and branches of Government has also been recognized in thecourts as applying to internal Agency documents and agent testimony. Stephens ProduceCo. v. NLRB, 515 F.2d 1373 (8th Cir. 1975); J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d223, 230 (5th Cir. 1973).In addition, internal deliberative memoranda are protected from disclosure basedupon the historic privilege against disclosure of intra-agency memoranda andcommunications. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149–152 (1975); Davisv. Braswell Motor Freight Lines, 363 F.2d 600, 603 (5th Cir. 1966). Further, suchmaterials are privileged from disclosure as attorney work product. Hickman v. Taylor,329 U.S. 495 (1947).11822 FOIA Disclosure of DocumentsSec. 102.117, Rules and Regulations describes, generally, which Agencydocuments, records, and materials are open to public inspection and sets forth Agencyprocedures for the disclosure of information under the Freedom of Information Act(FOIA).Additional direction with respect to FOIA and documents contained in case filesis provided in the NLRB FOIA Manual that issued in March 2008. This Manualsupercedes all prior GC and OM memoranda dealing with FOIA. It is available on theAgency’s web site at www.nlrb.gov/FOIA/E-Reading_Room.aspx.Revised 01/11