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National Labor Relations Board (NLRB) Selected Significant Advice Memoranda, 2015-2016

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National Labor Relations Board (NLRB) Selected Significant Advice Memoranda, 2015-2016 Description of document: National Labor Relations Board (NLRB) Selected Significant Advice Memoranda, 2015-2016 Requested date: 22-October-2018 Release date: 17-April-2020 Posted date: 27-April-2020 Source of document: FOIA Request NLRB FOIA Officer National Labor Relations Board 1015 Half Street, SE 4th Floor Washington, DC 20570 Fax: (202) 273-FOIA (3642) The governmentattic.org web site (“the site”) is a First Amendment free speech web site, and is noncommercial and free to the public. The site and materials made available on the site, such as this file, are for reference only. The governmentattic.org web site and its principals have made every effort to make this information as complete and as accurate as possible, however, there may be mistakes and omissions, both typographical and in content. The governmentattic.org web site and its principals shall have neither liability nor responsibility to any person or entity with respect to any loss or damage caused, or alleged to have been caused, directly or indirectly, by the information provided on the governmentattic.org web site or in this file. The public records published on the site were obtained from government agencies using proper legal channels. Each document is identified as to the source. Any concerns about the contents of the site should be directed to the agency originating the document in question. GovernmentAttic.org is not responsible for the contents of documents published on the website. UNITED STATES GOVERNMENT NATIONAL LABOR RELATIONS BOARD FREEDOM OF INFORMATION ACT BRANCH Washington, D.C. 20570 Via email April 17, 2020 Re: FOIA Case No. NLRB-2019-000065 This is in response to your request, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, received in this Office on October 22, 2018, in which you request an electronic copy of thirty-eight (38) NLRB Significant Advice Memoranda (SAMs) listed in the chart that was provided in response to your previous FOIA Request LR-2017-0092. You assumed fees in the amount of $25.00 for the processing of your request. We acknowledged your request on October 22, 2018. In an email communication dated November 7, 2018, a member of my staff informed you that ten of the requested SAMs were already available on the Agency's public website at https://www.nlrb.gov/guidance/memos-research/advice-memos and provided you with the links to those records. Based on that email, you agreed to exclude those records from your request, i.e. the SAMs in Case Nos. 03-CA-176218, 13-CA-163079, 05-CA- 138613, 12-CA-165643, 28-CA-167277, 21-CA-15087 5, 01-CA-144463, 13-CA- 134294, 20-CA-130613, and 19-CA-125339. We regret the delay in our final response. Your request is granted in part and denied in part, as explained below. A search of the Agency's electronic casehandling system, NxGen, was conducted to locate the remaining requested SAMs. This search revealed that Case No. 10-RD- 149908 is not a real case file. It was created by employees in the Office of the Chief Information Officer to test the deployment of new features in the Agency's electronic casehandling system. Accordingly, there was no responsive record contained in that case file. However, the remaining requested SAMs were located by our search. After review of these records, I have determined that 21 of the remaining 27 SAMs are releasable with redactions, and they are attached here. Redactions were made to these responsive memoranda pursuant to FOIA Exemptions 6 and 7(C) to protect the privacy interests of individuals referenced therein. 5 U.S.C. § 552(b)(6) and (b)(7)(C). Certain portions of the attached memoranda have also been redacted to protect confidential, April 17, 2020 Page 2 "commercial or financial information" that is arguably covered by Exemption 4, 5 U.S.C. § 552(b)(4). See Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2366 (2019) (SNAP data from individual grocery retailers found to be "confidential" within meaning of Exemption 4 as requested information was treated as private by its owners and provided to the government under an assurance of privacy). Here, the redacted material includes sensitive financial information about some of the parties that was received by the Agency during the course of its investigation into the underlying unfair labor practice allegations. Finally, other redactions have been made pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), to protect casehandling guidance from attorneys in the NLRB's Office of General Counsel to regional personnel. Exemption 5 protects advice, recommendations and opinions that are part of the Agency's deliberative and decision­ making process, Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)), as well as the opinions and legal theories that are contained in records prepared in anticipation of litigation. Judicial Watch v. United States Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005). Six of the responsive SAMs identified in the search are being withheld in their entirety pursuant to FOIA Exemptions 5 and 7(A), 5 U.S.C. § 552(b)(5) and (b)(7)(A), as explained below. The responsive memorandum in Providence Tarzana Medical Center, Case No. 31-CA- 173364 is being withheld in its entirety pursuant to Exemption 5 as it contains casehandling guidance that directs neither the issuance of a complaint nor the dismissal of a charge. Accordingly, it does not fall under the Agency policy that releases advice memorandum in certain closed cases in the General Counsel's discretion, and is being withheld in its entirety as casehandling guidance pursuant to FOIA Exemption 5. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 159-160 (1975) (establishing that NLRB Advice and Appeals Memorandum are privileged from disclosure as attorney work­ product since they are "prepared by an attorney in contemplation of litigation" and set forth the "attorney's theory of the case and his litigation strategy"). The remaining five, responsive memoranda in Michael Cetta, Inc. dlbla Sparks Restaurant, Case No. 02-CA-142626, Hospital Espanol Auxilio Mutuo de Puerto Rico, Case No. 12-CA-175136, United Site Services of California, Inc., Case No. 20-CA- 139280, Preferred Building Services, Inc. and Rafael Ortiz dlbla Ortiz Janitorial Services, Joint Employers, Case No. 20-CA-149353, and Hospital of Barstow Inc., dlbla Barstow Community Hospital and Community Health Systems, Inc., Case No. 31- CA-124540 are parts of the investigative files in open cases. Thus, they are exempt from disclosure at this time pursuant to FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A). Exemption 7(A) allows an agency to withhold records included in an open investigatory file where disclosure could reasonably be expected to interfere with a pending enforcement proceeding. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978). Because the release of any investigatory records at this point in the proceedings could interfere with the pending cases, your request for these particular April 17, 2020 Page 3 SAMs is denied at this time. Please be note, however, that these memoranda may become disclosable, subject to applicable exemptions, after the cases close, that is, once there has been full compliance with a settlement, or the cases have otherwise been closed under Agency procedures. Accordingly, you may wish to file a new request at that time. For the purpose of assessing fees, we have placed you in Category D, the "all other requesters" category, because you do not fall within any of the other fee categories. Consistent with this fee category, you will be assessed charges to recover the reasonable direct costs for searching for the requested records, except that you will not be charged for the first two hours of search. NLRB Rules and Regulations, 29 C.F.R. § 102.117(d)(2)(ii)(D). Charges for all categories of requesters are $9.25 per quarter hour of professional time. 29 C.F.R. § 102.117(d)(2)(i). Less than two hours of professional time was expended in searching for the requested material. Accordingly, there is no charge assessed for this request. You may contact Marissa Wagner or Michael Maddox, the FOIA Attorneys who processed your request, at (202) 273-2957 or (202) 273-0013, or by email at [email protected] or [email protected], as well as the Agency's FOIA Public Liaison, Patricia A Weth, for any further assistance and/or to discuss any aspect of your request. The FOIA Public Liaison, in addition to the FOIA Specialist or Attorney­ Advisor, can further explain responsive and releasable agency records, suggest agency offices that may have responsive records, and/or discuss how to narrow the scope of a request in order to minimize fees and processing times. The contact information for the Agency's FOIA Public Liaison is: Patricia A Weth FOIA Public Liaison National Labor Relations Board 1015 Half Street, S. E., 4th Floor Washington, D.C. 20570 Email: [email protected] Telephone: (202) 273-0902 Fax: (202) 273-FOIA (3642) After first contacting the Agency, you may additionally contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA dispute resolution services it offers. The contact information for OGIS is: Office of Government Information Services National Archives and Records Administration 8601 Adelphi Road-OGIS College Park, Maryland 207 40-6001 April 17, 2020 Page 4 Email: [email protected] Telephone: (202) 7 41-5770 Toll free: (877) 684-6448 Fax: (202) 741-5769 You may obtain a review of this determination under the NLRB Rules and Regulations, 29 C.F.R.
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