Harvey's Wagon Wheel, Inc. v. National Labor Relations Board

This is an appeal from an order of the district court granting summary judgment in favor of the defendant National Labor Relations Board (NLRB) and holding that “employee statements” obtained by the Board in its investigations of unfair labor practices charged against plaintiffs-employers were exempt from the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (Supp. IV 1974). Because of reasons set forth below, we vacate its order in part and remand the case for further proceedings.

The plaintiffs-employers are various Nevada hotels, restaurants and casinos which were under investigation by NLRB for certain unfair labor practice charges made by the Hotel-Motel-Restaurant Employees and Bartenders Union. In keeping with its usual procedure, the NLRB interviewed and took affidavits from members of the Union, many of whom employers acknowledge to be their employees. Since these affidavits are not available to employers through Board discovery rules unless and until the affiant testifies at an enforcement hearing, employers requested and were refused disclosure of them pursuant to the FOIA. Employers later took an administrative appeal from the Board’s refusal; the…