National Labor Relations Board v. Labor Services, Inc.

13 Moreover, keep past compilations private. promise of confidentiality interest that —an as the Commonwealth’s suit against promise is at stake whenever a of confiden- suggests, employers BSSG who collect cost tiality made, but an interest that is weak- information, only circulate it them among est when information is pe- related as selves, it, others deny access to risk ripherally agency’s main mission as it antitrust difficulties. Their practice may is here. accept To the threat to this inter- be viewed as an agreement among buyers est as determinative in this case would (secretarial services), of a factor see Mande come close to making simple “request plus Farms, ville Island Inc. v. Crystal American promise” necessarily sufficient to apply Sugar 334 U.S. S.Ct. “confidentiality” exemption. 1328 (1948); L.Ed. Cordova v. Bache & view, majority’s these matters are F.Supp. (S.D.N.Y.1970); 1 P. Aree However, better on explored remand. Turner, da D. ¶ 229a Antitrust Law litigation over a few documents gone information, to circulate price see for some time. It has been the subject of United States v. Container Corp. Ameri several opinions. district court No informa- ca, 393 U.S. S.Ct. L.Ed.2d great And, tion of moment is involved. (1969); Sugar Institute, Inc. v. United directly fact that a related state court con- States, 56 S.Ct. 80 L.Ed. sent decree exists prevents the case from (1936); American Column & Lumber having much precedential significance. It States, Co. v. United U.S. thus seems to me better to settle the matter (1921); 66 L.Ed. 284 Tag Manufactur now than to remand the case for yet anoth- FTC, (1st ers Institute v. 174 F.2d 452 Cir. er determination, district court another 1949); Areeda, P. Antitrust ch. Analysis 3C opinion, possibly still appeal. another (3d 1981), purpose ed. where the or еffect of government has had sufficient opportu- agreement is to suppress competition nity to demonstrate its interest in the confi- and where agreement provides no off dentiality of the information. I do not setting benefit through public dissemi it think has done so adequately. ‍​​​​‌‌‌​​‌​‌​​‌‌​​​​​‌‌​​​​‌‌​‌​​‌​​​​‌​​‌​‌​‌​​‍It is un- nation of the information. I do not know likely that the district court can reach a whether the Attorney Commonwealth Gen different result under the stаndards eral would have proven such an antitrust majority apply. Therefore, instructs I suit, violation in his for the parties settled affirm the district court’s re- But, consent decree. legiti sult. mate business need for confidentiality is far from obvious in the case of a confidential

salary information-sharing agreement

among competitors.

Second, government’s need for confi-

dentiality seems slight. government activity setting issue—the of salaries —is NATIONAL LABOR RELATIONS peripheral to the main job of the Federal BOARD, Petitioner, Reserve regional Boаrd and its banks. Nor- government mally salary setting is conduct- course, in public.

ed Of the Federal Re- SERVICES, INC., Respondent. LABOR serve Banks set differently their salaries No. 83-1207. authorized the Board to United Appeals, States Court of out comparable find what businesses pay First Circuit. But, their workers. these facts do not show any special need to enter into what was Argued Sept. evidently a legally questionable, private sal- Decided Nov. ary information-sharing agreement among Rather, various competing organizations. only interest government to which the point general

can is its keeping interest in

sibly found that a was not resulting victory in a union tainted representative supplied free a union when the electorate most of alcoholic before, after the election. during, and the em- Regional Director overruled election. objections to the ployer’s decision, a 3-2 without elabora- Director’s tion, Regional find- adopted that a recommendations certificate ings and The subse- should issue. charge practice unfair labor un- quent in violation of to bargain, refusal lawful the National Labor 8(a)(5) (1) and section Act, accordingly decided Relations union, favor of the judgment summary company bargain was ordered and applies Board now upon rеquest. to enforce order. 5:00 p.m. between

The election was held Johnson p.m. 7:00 at Howard Motor and Pawtucket, Rhode Island. The Lodge in was 18. The final total number against. 13 for and 5 vote was the union there is somewhat differ- Although another happened, version of what ent accepted the fol- Director —and Board — employer’s version wit- lowing nesses: [petitioner 4:15 p.m., “At about union’s] Counsel, Burgoyne, John D. Asst. Gen. Stromberg Richard Manager Business D.C., with A. William

Washington, whom the bar. At and two other men entered Counsel, Jr., Lubbers, Higgins, John E. Gen. other men p.m., 4:30 five or six about Counsel, Allen, Act- E. Deputy Gen. Robert together. Stromberg the bar entered Counsel, Elliott Gen. and Associate that the men told them their greeted Counsel, Moore, ‍​​​​‌‌‌​​‌​‌​​‌‌​​​​​‌‌​​​​‌‌​‌​​‌​​​​‌​​‌​‌​‌​​‍Deputy Associate Gen. tab, go that he drinks would on his D.C., brief, peti- were Washington, take allow the bartender tioner. money. Stromberg instructеd bar- were on that the men’s drinks him. tender Corcoran, Boston, Mass., P. Robert drank, stayed or six men The five Miller, Stoneman, Bos- whom Chandler & men Stromberg the two while ton, Mass., brief, respondent. was on briefly had left whom he entered COFFIN, FAIR- Judge, Circuit Before before 5:00 Shortly p.m., then returned. *, BREY Judge, CHILD Circuit Senior five group three of or six two or ER, Judge. Circuit appeared men finished their drinks time, Stromberg leaving. At this stat-

COFFIN, Judge. Circuit through- heard in a voice that could be ed hurry, was no the bar there presents This case whether out still few minutes before there were permis- National Labor Relations * Circuit, sitting by designation. Of the Seventh vote, there time mind the Board’s own

they objec oft-articulated Stromberg again for another drink. tive “to establish in election proceedings the men that all their minded as nearly possible conditions ideal as to de on his After a few go tab. more termine the uninhibited desires of the em minutes, the six together, five or men left ployees”, Gallery Ltd., Rattan Art 260 N.L. so, said, Stromberg and as did ‘Don’t R.B. No. 109 LRRM how to A forget vote.’ few minutes la- (citing General Shoe ter, same came the men back into the bar 127 (1948)), the extent to prior which its and to on [Stromberg’s] continued drink decisions fall short encompassing of the original The of was then group tab. men case, facts in this the absence of ratiоn any joined by other gradually entering men al in guidance the five factors upon relied until, eventually, the bar there were 12 to Director, Regional the grave and the drinking 15 men in the bar on Strom- elections, policy implications for future we tab. 6:20 berg’s p.m., Employer’s Around reluctantly decline to enforce the order. President Robert Blanchette the Em- and begin To with the of last these considera- Corcoran, plоyer’s attorney, Robert also tions, we think it to helpful sharp focus a the spoke entered bar and with [Paw- harsh on the light policy implication of the police tucket Champagne and officers] ruling. precise The is holding Randall.”1 that may union station repre- a well-funded Regional concluding in that a bar sentative in within brief walk of a manager’s the business union conduct did polling place may where he with impunity election, aside setting not warrant the open the bar to unlimited free to all subsidiary (1) findings: lied on several that before, and after the elec- during, of induce- there was evidence “advance tion, in fact may pay for drinks served to at the bar employees ment of the come to electorate, least of two-thirds the and get the in order vote for free [union] generosity this both accompany by pressing drink”; (2) that there was no evidence of the invitation drink more and remind- statements; (3) coercive there was no “forget the electorate not how to employees evidence that were inebriat- ed; vote”. A of (4) corollary ruling, that the value of the drinks was not this not men- “sufficient to with the Regional interfere tioned Director or the choice”; free and the incident oc- an employer may is that station also the polling curred outside area. its perhaps better funded in priced bar and offer the higher even We are well aware deference beverage brands of alcoholic on the same in exercising in discretion terms to the electorate. Board counsel with rulings concerning repre connection oral argument acknowledged reciprocal sentation elections and the burden on heavy application ruling. prospect this party show that this discretion has competition a bibulous between England been Divi abused. New Lumber and hosts near and employer during polling sion Diamond International v. seems to return NLRB, (1st Cir.1981); atavistic to turn-of- 646 F.2d Fall Savings NLRB, pursuit v. the-century through River Bank of votes (1st Cir.1981). Nevertheless, discriminating in having distribution of alcohol.2 Champagne p.m. changed 1. Officers and Randall were “At 6:00 bartenders shifts. going duty present assignment off male bartender went in bar on an unrelated Stromberg Stromberg up settle and took throughout employer these events. The Labor heavy paid out a roll of and the tab. Services, bills provided testimony Inc. of both Stromberg then a new started tab Regional support officers to the Director in duty female bartender who came on employer’s objections. quoted Not made shе that all the men sure understood testimony Director but included in the drinking on him.” controlling as assumed additional this statement: pointed many Respondent out that states proscribing have statutes sale or enacted interference; fellowship form induced Regional Di The observations is reminded of scenes satisfactory another. One rector, the Board deemed Last Hurrah Edwin O’Connor’s The ruling justifying limitations mus- politician where а veteran such as that analysis. withstand in our view annual efficacy of his ward club’s inducement” es of “advance First, the absence Dance: realistically Spring cannot and coercive statements assuming that the a difference. Even make people together dancing got “One manager not advertise did business eating drinking, singing bar, he man advance his sometimes, good drugged by spirits voters in the for 12 to 15 aged buy fellowship, temporary feeling It is the effect electorate of 18 voters. things agreed and did things said activities, not manager’s which, the union business circum- under more normal things motives, disturbs us mad. stances, his or union’s have considered they would NLRB, Baking here. Co. Id. at very See Cross It valuable.” politically Cir.1971). The (1st receipt ‍​​​​‌‌‌​​‌​‌​​‌‌​​​​​‌‌​​​​‌‌​‌​​‌​​​​‌​​‌​‌​‌​​‍F.2d 84. during an election

of unlimited free drinks of Third, similar that the value point the forget not to accompanied by the reminder not per- was is more the drinks insufficient hardly justified simply to can be how vote well monetary value suasive. not been previous bargain because considerable; how have much been the of coercive spelled out. And absence “heavy bills” union roll of representative’s as is immaterial in a statements appear. not More disbursed tac campaigning party’s this one where a reality the point, appearance the of cajolery friendly tics take the form of rath is buying drinks for voters impropriety than intimidation. ugly er specific figure. not State triggered Second, liquor to voters proscribing gifts evidence of inebri- statutes the absence of do make such distinctions. Nor drawing ation offers no better basis for to us such, Board The cases cited precedents. line. If it were to offer thought unobjec- payments the Board which find breathalyzers apparatus and similar involve, it characteriz- elec- tionable all as indeed gear standard them, “money are gifts of alcohol is more es cases where or tions.3 Here the rendered, minimal; bought given drinks for in return for a service than the union during process, are furtherance of the election at least of the electorate two-thirds receipt contingеnt upon is not point a two-hour to period. salient in, election.”4 Even support the Board voters’ use the standard endorsed con- cases, Co., explicitly was not among giving many Weyerhaeuser voter, we see tingent (1980), support 978 n. 2 “the rendered or any service reasonably suggestion conduct tends to interfere with proc- the election any freedom of choice in the assistance ” only not the еss.5 election.. .. Inebriation is Canners, Inc., beverages polls hearing); v. NLRB States gift Gulf of alcoholic while (5th Cir.1981) (union payment for specifically barring gifts open 634 F.2d 215 as well as laws gasoline transport small, meet- liquor, workers union influence voters. however NLRB, Heavenly ings); Valley Area Ski v. product (9th Cir.1977) (reasonable reim- is our 3. That such a scenario not the F.2d 269 observers). imagination following argu- illustrated bursements election is Company ment in the Board’s brief: “[T]he See, Mfg. e.g., NLRB v. Savair never evidence to the Board con- offered (1973) (imper- L.Ed.2d 495 cerning they 94 S.Ct. actual at the time the voters’ state pre-election give $10.00 ballots, drink, waiver of they missible cast their had to amount fee); Aikman Collins & drinking.” initiation maximum or even what were Cir.1967); NLRB, (4th v. Inc., (im- Tools, See, e.g., Klingler 248 N.L.R.B. Elec. Easco NLRB signifi- pay (union (5th Cir.1981) permissible observers F.2d reimbursement wages); day’s requested cantly Genеral Cable wages than lost more attendance yet scheduled, oc tion had been Finally, the fact incident and a union- polling descrip sponsored area Christmas were held not party curred outside the be objectionable. Neither case can be con- tive, exculpatory. By definition remotely sidered analogous.6 at a not at provision of drinks bar near but polling place does not occur inside precedent The closest is Lach-Simkins polling area. We know that an inevitable Laboratories, Inc., Dental 186 N.L.R.B. 671 ap necessity tension exists between the where, (1970), decision, in 2a to 1 the Board prac praising “realistically an election who upheld tically, against ... and not .. . theoretical objections overruled election where to an ideal, ly but nevertheless stan artificial provided lunch of a free sand- dards”, Market, Inc., The Liberal 108 N.L. midday and soft in a wiches drinks at base- (1954), aspiration R.B. and the election, ment before and during the Milchem, Inc., voiced in 170 N.L.R.B. 362 was in a at the of a top conducted room (1968): “The minutes an em final before foot 15 to 20 of 44 high stairway. Some own, ployee casts his vote ‍​​​​‌‌‌​​‌​‌​​‌‌​​​​​‌‌​​​​‌‌​‌​​‌​​​​‌​​‌​‌​‌​​‍should be his as partook. The Board relied on the possible.” free from interference аs Bos facts that luncheon was not held so ton Insulated Wire & Cable 259 N.L. the polling close to area and the value of enf’d, (5th R.B. 1118 703 F.2d 876 and soft sandwiches not so Cir.1983), pamphleteering permitted large as interfere election. To glass-paneled only outside doors which were case, rely on such a without discussion or polling ten feet from the But the place. as analysis, governing the instant effects of the strident voice and the crum equate short to effects of a likely tuna pled flyer dissipate when the doors quickly Pepsi scotch, on a rye double closed; physical psychological unpersuaded. leaves us just effects of rounds convivial drinks on urged by The considerations Board adjacent poll consumed in an bar enter the do not analysis counsel withstand or reflect ing area. any special expertise. We think the case at cases, We have all the bar is different in kind all other precedents examined fraught implications, lied on serious Board find none concern- helpful some guidance demands both furnishing liquor during free and employers. unions We therefore Inc., de- Son, election. In Movsovitz 194 enforce the cline to Board’s order. This (1971), witness, N.L.R.B. 444 one in other specific outcome should not be read to de- discredited, matters had said a union the general judicial tract from principle promised, well before an deference Board in the super- discretion election, to wine buy employees beer and process. vision of the NLRA election after the union won. The properly Board held that in promise event could that, acknowledge At the same time we reasonably expected influ- be to have dissenting pointed as the members Board enced the free Two choice. out, there seem to be and mate- substantial earlier, Cochran, years Inc., in Jacqueline questions rial of fact created non-em- (1969), 177 N.L.R.B. gift 837 ployer witnesses which warrant resolution of a free turkey to each attend employee hearing. by a That the version of the a union elec- campaign meeting, relating prоvision where no facts to the offer Corp., (1968) (impermissible 1444 (1958); 170 N.L.R.B. 1682 120 N.L.R.B. The Zeller 115 give gift $5.00 (1956). union to to vot- certificate 762 N.L.R.B. All of these cases involve Inc., ers); Co., Performance Measurements 148 serving part pre of drinks or dinner as (1964) (impermissible N.L.R.B. 1657 for em- activities. additional election The two cases ployer allowance). promise $6.00 shoe dissenting opinion, in the Albion Mallea cited Co., 225, (1953); 104 226-27 ble Iron N.L.R.B. 6. Not relied on below Board but cited in Inc., Cooper’s 94 1556 N.L.R.B. Warehouse, Inc., City its brief are Peachtree to, prior drink-buying but not also involved (1966); Lloyd Fry Roofing 158 N.L.R.B. 1031 A. representation during, a election. Co., (1959); Co., Mfg. 123 86 N.L.R.B. Ra-Rich Inc., Laboratories, Dental Lach-Simkins drinks which the pur- (1970). Board, accepted for and we have N.L.R.B. subject signifi- pose of decision policies its interpreted The Board has this therefore remand change. We cant Televi consistently. Cf. Sunbeam this area proceedings. to the Board for further case (D.C.Cir. FCC, sion respondent. Costs awarded its consistently apply 1957) (agency must egre less (though policies). prior own BREYER, Judge (dissenting). Circuit cases, Jacque allowed drinks. gious) aside decided not to set n. 1 Cochran, Inc., The Labor Board 177 N.L.R.B. line Warehouse, Inc., because simply City (1969); Peachtree representative bought some drinks (1966); Lloyd n. 1 1039-40 N.L.R.B. The voting employeеs. for some of the 123 N.L.R.B. 87-88 Fry Roofing A. rested on the sum total N.L. Board its decision Albion Iron (1959); Malleable Inc., (1953); Cooper’s case—no special features of the individual R.B. 226-27 bar, (1951). In the closest “advance inducement” ‍​​​​‌‌‌​​‌​‌​​‌‌​​​​​‌‌​​​​‌‌​‌​​‌​​​​‌​​‌​‌​‌​​‍come inebriation, statements, coercive no Dental Laborato no Lach-Simkins precedent, Inc., value, ries, supra, it allowed the union small dollar some distance from soft The a free of sandwiches and place, serve lunch polling conditions. place during near members, polling di deciding between “lunch election. difference three vided to two. fact and “no lunch but one case, however, and soft drinks” found close this a my is more obvious to hard drinks” Rather, two not make it close in this court. mat Perhaps than it is a to me. minor, brethren the type presents precisely hunger thirst. ter of versus detailed, labоr elec interstitial Congress tion asked the Labor policy that court believes apparently courts, Cf. NLRB decide. discretion,” “an abuse of Board’s decision is Inc., Publications, v. Hearst substitutes 5 U.S.C. § 130-31, 851, 860-61, L.Ed. 1170 agency. for that of the Courts judgment (1944) (determination of Act in coverage of agencies dis- second-guess do not often assigned borderline primarily cases di- cretionary policy matters of substantive Board). statutory related to their missions. rectly Davis, K. Law Treatise Administrative I not what law or specific understand 29.00-1, at And this (Supp.1982). § legal rule has Its ac the Board violated. here is why. case illustrates not, tion violate way, does in obvious reasonably strike might how this record enabling the terms its statute —a statute could body expert Why in labor relations. (insofar simply provides as relevant not the incident trivi- body find here) that the Board directs an elеction important, why could it not see al? More ballot, results certify secret it “shall practical policing difficulties endless has 159(c)(1). thereof.” 29 Nor U.S.C. § associ- prohibit workplace strict rules that Ari agency violated its own rules. Cf. another? buying drinks one ates Atchinson, Grocery Topeka zona Co. v. it being might nature what Human 370, 389, 52 Railway Fe Sante U.S. prove inevitable drink-buying some often 183, 186, (1932) (agency L.Ed. 348 S.Ct. ready-made presence excuse and its offer Board, rules). must follow its own delay prevent or to seeking to those ob beginning, from the has stated that its ques- these certification? jective is “to in which provide laboratory answers, tions, not is sufficient experiment conducted, under me is not that the Board’s decision convince nearly possible, conditions as ideal as unreasonable. determine the uninhibited desires (“The Last Hurrah” notwithstand- employees.” General Shoe 77 N.L.R.B. Nor 124, contrary decision run (1948). And it clear ing) has made are a Drinks and elections policy. public that will consider validity provid Mas- public still debates. subject refreshments on a “case basis. by case” sachusetts, prohibited example, political spending money

committees from on “in-

toxicating liquors,” 1946 Mass.Acts ch. changed its mind Mass.

§ ch. changed again

Acts mind 1974 Mass.Acts ch. §

changed its mind third time in for a (codified

1975 Mass.Acts ch. at § 6).

Mass.Gen. Laws ch. Ann. At the §

moment, Massachusetts does not prohibit expenditures.

these isNor federal policy 6, 1983,

much different. On October

Federal Election voted Commission unani-

mously to allow corporation provide

“hospitality suite” at which it could serve delegates Republican

Democratic National Conventions. FEC

Advisory Opinion (treating 1983-23 food

and alcoholic similarly).

Now that the majority distinguished

the “tuna fish rye Pepsi” from the

“double scotch” what is next? Will we

have to decide where and hamburgers beer spectrum?

fit on the If basic division of

tasks between administrative agency and

court meaning, continues to have see FPC 17, 20-21,

v. Idaho Power 85, 86-87, 97 L.Ed. 15

members of the Labor National Relations court, the members decide the

should content labor/man-

agement day menu. America, Appellee,

UNITED STATES of McKINNON, Defendant,

John S.

Appellant.

No. 83-1019. Appeals,

United States Court

First Circuit.

Argued Aug.

Decided Nov.

Case Details

Case Name: National Labor Relations Board v. Labor Services, Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 7, 1983

Citation: 721 F.2d 13

Docket Number: 83-1207

Court Abbreviation: 1st Cir.