Sears, Roebuck and Co. v. National Labor Relations Board and Ogden W. Fields, Executive Secretary of the National Labor Relations Board
433 F.2d 210
6th Cir.
1970
Check Treatment
PER CURIAM.

This case arises out of a collateral issue to an unfair labor practice proceeding presently in progress before the National Labor Relations Board. Seаrs filed certain demands for information with the defendants on June 23 and June *211 26, 1970, purportedly under the authority of the Freedom of Information Act, 81 Stat. 54, 5 U.S.C.A. § 552. While the defendants provided plaintiff with some of. the requested information, most of its demands were rejected on the grounds - that the informatiоn was either not cowered-by the Act or was expressly excluded. . Plaintiff filed a complaint in “the'' United States District Court for the'' Eastern-District of Michigan essential-., ly seeking judicial review of this dеci-. sion. The district court concluded, that Sections 10(e) and 10(f) of the National-Labor Relations Act, as amended, 29 U.S.C.A. § 160, provided the sole method of review of Board decisions, including in-' tеrmediate decisions as to discovery; arid ' dismissed the complaint for lack of jurisdiction. Plaintiff has appealed, and was denied a temporary injunction pending appeal by the district court. It- has now requested a stay of the ‍​​‌​​‌​‌​‌​​‌‌‌‌‌​​​​‌‌‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​‌​‌​‍district court’s order pending appeаl, and subsequently filed a motion for expediting the briefing schedule. The questions -presented- for dеcision, both on the merits of this appeal and on the irreparable injury necessary tо support the requested stay order,’’ are' extensively covered in -the memoranda оf the parties. For the rea-, sons .stated below, we conclude that plaintiff’s motion for stаy and motion for an expedited briefing schedule must.be denied.- We further conclude that, the questions on the merits of the appeal having -been fully treated, we can proceed to the disposition of this case without further assistance from the parties and that the questions presented for; appeal aré so unsubstantial and entirely, without merit as to require us to affirm, the judgment of the District Court without further argument. Rules 8 and 9, Rules of the United States Court of Appeals fоr-the -Sixth Circuit.

The district court was correct in concluding that it was without juris) diction. The prayer for rеlief contained in plaintiff’s complaint requested the.. court to--enjoin further procеedings of' the National Labor Relations Board pending final decision on its complaint аnd sought a declaratory judgment find-. ing its right to review under 29 U.S.C.A. § 160 prejudiced because of the information withheld. Essentially, the form of relief plaintiff seeks would result in early judicial review of a Board decision on permissible discovery, not an order to produce records. Plaintiff contends that jurisdiction for such an action is granted to the district courts by the Freedom of Information Act, 5 U.S.C.A. .§ 552(a) (3), which grants “* * * jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records * * Even assuming the dubious ■proposition that Congress intеnded to create an exception to its long-standing policy against enjoining the Boаrd, plaintiff seeks neither an injunction nor an order of the type described above. We thеrefore conclude that the district court properly dismissed the complaint for laсk of jurisdiction, since it does not have the power to enjoin or to review decisions of the National Labor Relations Board. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The appropriate method of review of the Board’s orders in connection with a case pending befоre it is by petition ‍​​‌​​‌​‌​‌​​‌‌‌‌‌​​​​‌‌‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​‌​‌​‍for review filed in the United States Court of Appeals. 29 U.S.C.A. § 160, Myers v. Bethlehem Shipbuilding Corр., supra. This Court has often reviewed Board decisions involving alleged procedural as well as substantive errors. See, e.g., N.L.R.B. v. Rogers Mfg. Co., 406 F.2d 1106, 1110 (6th Cir. 1969); N.L.R.B. v. ‍​​‌​​‌​‌​‌​​‌‌‌‌‌​​​​‌‌‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​‌​‌​‍American Federation of Television & Radio Artists, 285 F.2d 902, 903 (6th Cir. 1961); N.L.R.B. v. Tennessee-Carolina Transportation, Inc., 226 F.2d 743, 744 (6th Cir. 1955); Thompson Products, Inc. v. N.L.R.B., 133 F.2d 637, 639-640 (6th Cir. 1943). Thompson Products, supra, also disposes of plaintiff’s contention that this Court has jurisdiction ‍​​‌​​‌​‌​‌​​‌‌‌‌‌​​​​‌‌‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​‌​‌​‍to enjoin the Bqard undеr the All-Writs statute, 28 NS.C.A. § 1651(a).

The district court also concluded that the type of information which the рlaintiff requested inquired impermissibly into thé decisional processes of the Board, *212 although it reсognized that this ground was unnecessary to its decision. We would have no difficulty ‍​​‌​​‌​‌​‌​​‌‌‌‌‌​​​​‌‌‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​‌​‌​‍in agreeing with this conclusion if the issue were properly before us. United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1940); Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307 (6th Cir. 1970), Nos. 20,344 and 20,345.

The motion for a stay pеnding appeal and the motion for an expedited briefing schedule must be, and the same are hereby denied. We further conclude that the merits of this appeal are so unsubstantiаl and entirely without merit that further argument would not be helpful to this Court in deciding the questions presented. See, Rules 8 and 9, Rules of the United States Court of Appeals for the Sixth Circuit. Plaintiff is granted leave to file its Request for Reconsideration with the Board within 10 days after the entry of the order affirming judgment. The judgment of the district court is therefore

Affirmed.