author: MaeKINNON, Circuit Judge:

text:
    GRAPHIC ARTS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Newspaper Agency Corporation, Intervenor.
    No. 73-1372.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 8, 1974.
    Decided Aug. 13, 1974.
    Samuel Edes, Chicago, 111., for petitioner.
    Russell H. Gardner, Atty., National Labor Relations Board, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliot Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, were on the brief, for respondent.

      James S. Lowrie, Salt Lake City, Utah, with whom Donald B. Holbrook, Salt Lake City, Utah and Morris J. Levin, Washington, D. C., were on the brief, for intervenor.
    Before ROBINSON and MaeKINNON, Circuit Judges, and DAVIES, United States Senior District Judge for the District of North Dakota.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   MaeKINNON, Circuit Judge:

Graphic Arts International Union (the Photoengravers) petitions under section 10(f) of the National Labor Relations Act (the Act), as amended, for review and modification of a decision and order of the National Labor Relations Board (the Board) entered against Newspaper Agency Corporation (the Newspaper). 201 N.L.R.B. No. 91 (Jan. 29, 1973). The Newspaper publishes and distributes two daily newspapers in Salt Lake City, Utah. Its employees are represented by several unions, including the Photoengravers and the Salt Lake Web Pressmen’s Union (the Pressmen). The Board concluded that the Newspaper had committed certain unfair labor practices and ordered affirmative action to remedy the violations. Finding the Board’s decision supported by substantial evidence, we affirm.

I

The genesis of this case was the decision of the Newspaper to modernize its plant by converting to the so-called direct printing process. To understand the arguments advanced by the parties, we need to compare the old printing method with the new direct printing process.

Newspapers contain both non-pictorial material such as news stories, classified advertisements and editorials, and pictorial material such as news photographs and advertisements. Under the old printing method the non-pictorial material was set in type by a “hot type” process. Since pictorial material could not be converted into type lines, it was assembled in the composing room into “paste-up” form. The paste-up was then transferred to the engraving room where the Photoengravers photographed the paste-up and prepared negatives of the image. If several negatives had to be combined to form a particular advertisement, the Photoengravers performed the process known as “stripping.” The next step, also performed by the Photoengravers, was to “burn” the image onto a photosensitive plate. Thereafter the Photoengravers etched away the non-image bearing portions of the plate, leaving the image bearing areas of the plate in relief form. After the plate was trimmed and cut by the Photoengravers, it was returned to the composing room where it was combined with other plates and type lines to form a full page. This “dummy page” was then sent to the stereotype department which prepared a “press plate” from molten lead. The press plate was dispatched to the press room where the Pressmen affixed the plate to the press and printed the newspaper.

The direct printing process incorporates more automated equipment and streamlines preparation of the printing plate. In the direct printing process, composing room employees assemble both pictorial and non-pictorial material into full-page paste-up form. The paste-ups are sent to a combination plate-making and press department where they are photographed by an automated camera. The image on the negative is then transferred onto a thin photosensitive plate and this plate is mounted directly on the press.

There are several apparent differences in the organization and operation of the Newspaper’s plant under the old and new printing methods. For example, the direct printing process utilizes a new camera to photograph the full-page paste-ups which is more fully automated and is capable of using distortion to achieve special effects. Further modernization results from the direct printing plates being pre-coated with photosensitive material, thus eliminating the need for hand coating which the old process required. With the new process, it is unnecessary to return the pictorial plates to the composing room to be combined with the non-pictorial material, and the stereotypers’ function of preparing press plates from molten lead is eliminated. Instead, a single plate is prepared using pictorial and non-pictorial material simultaneously, and that plate is mounted directly on the press without further preparation.

The increased efficiency and altered work assignments which result from these technological improvements enable the reorganization of employee units within the plant. Thus, with the incorporation of direct printing the Newspaper planned to consolidate the camera, platemaking and printing operations into an expanded “press department.” The operations within this new department would be spatially consolidated within the same general area. Moreover, because the automated equipment requires less skill, the employees could and would be trained in all phases of the work performed in the new department, thus enabling the employees to be used interchangeably within the department and to be under common supervision.

Preparing for the conversion to direct printing, the Newspaper negotiated with the Pressmen concerning the labor relations aspect of the conversion. These negotiations resulted in a contract under which the Newspaper agreed to recognize the Pressmen as the representative of all employees in the new press department and the Pressmen agreed to give up the press manning work rules which in the past had restricted the ability of the Newspaper to rotate employees between different tasks.

Only after negotiating this contract with the Pressmen did the Newspaper approach the Photoengravers concerning the impact of the conversion on the employees who were members of their union. The Photoengravers objected to their representation being transferred to the Pressmen and maintained that their craft skills would remain independent and identifiable after the conversion to direct printing. Throughout the negotiations, however, the Newspaper insisted that any contract with the Photoengravers would exist only until the conversion occurred because the Newspaper had already agreed to recognize the Pressmen as the representative of all employees in the new press department. Faced with this impasse, the Photoengravers filed unfair labor charges against the Newspaper with the Board. After such charges were filed the Newspaper informed the photoengraving employees that they would not be employed in the new press department so long as the unfair labor charges filed by their union remained pending before the Board.

After an evidentiary hearing the Board concluded that the new press department, as planned, would constitute a new employee unit over which no union could claim prospective recognition, and that the Newspaper violated section 8(a) (2) of the Act by extending premature recognition to the Pressmen. The Board further concluded that by conditioning agreement with the Photoengravers upon their acceptance of Pressmen representation, and by conditioning the Photoengravers’ employment in the new press department upon their withdrawing the charges before the Board, the Newspaper violated sections 8(a)(1) and (5) of the Act. To remedy these violations the Board ordered the Newspaper to withdraw the premature recognition of the Pressmen; to continue bargaining with the Photoengravers until the point of full conversion, at which time the representation issue could be resolved in an appropriate proceeding; to refrain from conditioning agreement with the Photoengravers upon a requirement that they accede to representation by the Pressmen; and to cease informing employees that transfer into the new press department depended on the Photoengravers withdrawing the unfair labor charges before the Board.

The Board pointed out, however, that the decision of the Newspaper to convert to direct printing was a non-discriminatory business judgment which was not motivated by any anti-union animus, and therefore refused to overturn the Newspaper’s decision to convert. Moreover, since the Board found that neither the Pressmen nor the Photoengravers could presently claim representation rights for the planned press department, the Board refused to conclude that the Newspaper unlawfully withdrew recognition from the Photoengravers. Nor did the Board accept the Photoengravers’ contention that they should continue to represent all employees engaged in the camera and platemaking operations in the new department. Rather, the Board indicated that representation of employees in the new department should be resolved in a proceeding under section 9 of the Act.

II

The Photoengravers’ fundamental position throughout this dispute has been that separate craft units for photoengraving and for printing will continue even after conversion to direct printing. Their primary objection is to the conclusion of the Board that a new employee unit would be created by the conversion, a conclusion which they contend was unnecessary to the Board’s decision and unsupported by substantial evidence. However, the issues raised by the Photoengravers did require the Board to determine the nature of the planned new department, and there is substantial evidence to support the Board’s conclusion that a new employee unit would arise upon full conversion.

In defending against the unfair labor charges before the Board, the Newspaper argued that the new press department would be formed merely by accretion to the existing press room. The Photoengravers argued in opposition that separate craft units would survive for platemaking and printing. Although the Board ruled against the Newspaper in rejecting the accretion argument, the Board did not go so far as to accept the Photoengravers’ argument for continued separate crafts. Rather, the Board explained that the plans of the Newspaper, if carried out, would create a new employee unit which would overlap several operations, including platemaking and printing.

The Photoengravers maintain that the Board’s conclusion that a new unit would arise was unnecessary because, to support the unfair labor violation which the Board found to have occurred, the Board need only have rejected the accretion argument as made by the Newspaper. According to the Photoengravers, the Board properly rejected the accretion argument but improperly offered the gratuitous observation that the planned press department would constitute a new employee unit. In other words, according to the contention of the Photoengravers, the Board should have stated what the new department would not be, without stating what it would be. However, if was certainly reasonable for the Board to explain the nature of the new department, as conceived, in order to explain why the new department could not be considered the product of accretion. While the conclusion that a new unit would arise was not absolutely essential to the finding that certain unfair labor violations existed, it was extremely helpful in understanding the rationale of the Board.

In any event, the conclusion that a new unit would arise was essential to another aspect of the Board’s decision. In addition to the unfair labor charges as upheld by the Board, the Photoengravers charged that the Newspaper unlawfully withdrew recognition from the Photoengravers. This charge hinged upon the contention that separate craft units would continue in the new department. If separate craft units did not continue, then there was no prior recognition which could be withdrawn. In rejecting the charge that the Newspaper unlawfully withdrew recognition, it was essential for the Board to conclude that separate craft units would not continue but a new unit would emerge. Thus the finding that the planned conversion would create a new employee unit was a necessary response to the Photoengravers’ unfair labor charges.

Ill

Since the finding of a new employee unit was essential to the Board’s decision, we must determine whether that finding is supported by substantial evidence on the record considered as a whole. The Photoengravers argue that separate craft units will continue after conversion to direct printing because both the old and the new procedures embody the same underlying scientific process of platemaking. That is, the employees must still photograph the material, develop a negative, transfer the image to a photosensitive surface and remove the unexposed areas to form a printing plate.

While it is true that the underlying scientific principles remain the same, the practical application of those principles is different under the direct printing method. The Photoengravers’ emphasis on the scientific principles ignores other simplifying changes wrought by technological advancement and plant reorganization which materially affect the work and working conditions of the employees. Recognizing that many of the same functions occur in both the old and the new printing methods, the Board concluded that other changes in working conditions justified treating the new press department as a new employee unit. For example, advancing technology has reduced the skill necessary in the platemaking operation, enabling the same employees to be trained to operate both the presses and the platemaking equipment. Consequently, the employees will be trained in all phases of the work performed in the new press department and will be rotated among the various operations on a short term basis as the need arises. The employees in the new unit will be located in the same general area and will be under common supervision.

The Board was entitled to rely on these changed factors in rej'ecting the Photoengravers’ contention that separate craft units would continue after conversion. Although the basic principles of platemaking remain the same, advanced technology has altered the employees’ role in the process. In view of this new role, the Board could properly conclude that employees who rotate among the same tasks, who are under common supervision and who therefore experience the same working conditions, should be treated as a homogeneous unit and not as a series of fragmented groups.

IV

The Photoengravers further assert that the Board relied on inaccurate information in determining that a new employee unit would arise. They contend that the Board improperly based its decision on the Newspaper’s speculation concerning the prospective plant operation and that the new press department in fact did not develop as planned. A month after the Board’s final decision the Photoengravers petitioned the Board to reopen the record to receive evidence of the actual plant operation under the direct printing method, but the Board denied the petition.

It is important to remember that this case was before the Board in the context of an unfair labor charge, not as a representation proceeding. The unfair labor charge focused on the conduct of the Newspaper during the period when it was preparing the plant for conversion to direct printing. In resolving the unfair labor issues the Board relied on the facts at the time of the alleged unfair labor practices, that is, during the planning stages of the conversion. Those facts necessarily included the plans of the Newspaper for future plant reorganization. Since the unfair labor charge depended to a large extent on the Newspaper’s plans as they existed at that time, the Board properly relied on those plans in resolving the unfair labor charges.

The Board’s decision regarding the anticipated formation of a new employee unit was necessitated by the Photengravers’ insistence that separate craft units would continue after the conversion to direct printing. As explained in section II, supra, this issue was central to the allegation that the Newspaper unlawfully withdrew recognition from the Photoengravers. But in resolving this unfair labor charge, the Board did not determine that the new unit would in fact be the appropriate unit for union representation. The Board expressly reserved the representation issue for a section 9 proceeding in which the parties would have the opportunity to present evidence regarding the actual plant operation after conversion.

It appears that the Photoengravers have now had the opportunity at a representation proceeding to present current evidence concerning the actual plant operation after the conversion to direct printing. Subsequent to oral argument in this court, on May 2, 1974, the regional director issued his decision concluding that the new press department constituted an appropriate unit for representation purposes. The regional director’s decision evidences his consideration of current evidence which was not before the Board at the time of the unfair labor proceedings. Thus, the regional director noted that the Employer had instituted a program to train all employees in the new press department to perform all the tasks encompassed by that department, that as of March 1974 over 68 percent of the employees in the press department had been trained in all 'job functions, and that the Newspaper rotates employees between the various operations in the new department to the extent possible.- The only employees who will not be cross-trained and rotated are those who are physically disabled or who will retire within two years. Although there is a separate “leadman” for the platemaking and press areas, the entire press department operates under the common supervision of a supervisor, a foreman and an assistant foreman.

The regional director further found that there is no interchange of employees between the press department and other employees within the plant and that the employees in the new press department share a community of interest because they work on the same pay scale and receive the same fringe benefits. For these reasons the regional director concluded that the actual plant operation after the conversion “differs in only minor respects” from the anticipated operation described in the Board’s unfair labor decision.

It is evident from the factors relied on by the regional director that the Photoengravers had the opportunity in an appropriate proceeding to litigate the facts concerning actual plant operation. The reliance on projected plant operation in the unfair labor proceeding did not foreclose investigation into the actual plant operation in the representation proceeding.

V

Finally, the Photoengravers challenge the measures ordered by the Board to remedy the unfair labor practices committed by the Newspaper. The Photoengravers agree, of course, with the Board’s order requiring that the Newspaper withhold recognition from the Pressmen as representative of the new unit unless and until certified in an appropriate proceeding. Nor do the Photoengravers disagree with the Board’s decision to permit the Newspaper to convert to direct printing, since the conversion resulted from a nondiscriminatory business judgment without anti-union animus.

However, in an indirect attempt to thwart the conversion, the Photoengravers suggest that the manning provision should be restored to the contract between the Newspaper and the Pressmen because the Newspaper secured the elimination of that provision as the quid pro quo for unlawfully recognizing the Pressmen as the representative of the new press department. We do not agree that this relief is required. Since the Newspaper acted without anti-union animus in deciding to convert to direct printing, the purpose of the Board’s remedy was not to interfere with the conversion but to nullify the impact on the employees of the premature recognition of the Pressmen by the Newspaper and its unlawful practices in negotiating with the Photoengravers. The Pressmen do not object to the elimination of the manning provision in their contract, even though the Newspaper rescinded the recognition provision. The Board reasonably exercised its discretion in ordering the Newspaper to withdraw its recognition of the Pressmen and to continue bargaining with the Photoengravers, and the Board was not required to examine and rewrite the Pressmen’s entire contract in an attempt to nullify such a tangential consequence as the elimination of the manning provision.

The Photoengravers primarily disagree with the Board’s order that the Newspaper continue to bargain with the Photoengravers “as the exclusive representative of its employees in the engraving room unit . . . until the point of full conversion to one hundred percent photocomposition using direct photosensitive printing plates.” Jt.App. at 71 (emphasis added). The Photoengravers maintain that instead of specifying the time at which their representation would cease, the Board should have ordered continued recognition of the Photoengravers until some unspecified time at which changed conditions require a new unit determination.

Specifying the time at which the separate craft units would cease to exist was a reasonable and natural consequence of the Board’s earlier conclusion that a new employee unit would arise at the point of full conversion, a conclusion which was necessitated by the Photoengravers’ unfair labor charges. Even assuming that the Board somehow erred in requiring the Newspaper to recognize the Photoengravers only until the point of full conversion, we would not now require the Board to amend its order. The time for full conversion has passed and a different proceeding has determined that a new unit exists for representation purposes. It would be pointless at this time to modify a segment of the Board’s order which relates to an interim period long since past.

We accordingly affirm the decision-, and order of the Board.

Judgment accordingly.

      . 29 U.S.C. § 151 ot seq. (1970) (61 Stat. 136, 73 Stat. 519). Section 10(f) provides:
      Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Axuieals for the District of Columbia, by filing in such a court a written xjetition i)rnying that the order of the Board be modified or set aside . . . [Tlhe findings of the Boai'd with resxiect to questions of fact if suiHiorted by substantial evidence on the record considered as a whole shall in like manner be conclusive.
      29 U.S.C. § 160(f) (1970).

      . (a) It shall be an unfair labor practice for an employer—
      (2) to dominate or interfere with the formation or administration of any labor organization ....
      29 U.S.C. § 158(a) (2) (1970).

      . (a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.
      29 U.S.C. §§ 158(a) (1), (5) (1970).

      . (1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board-—
      (A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section, or (ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section; or
      (B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section ;
      the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.
      29 U.S.C. § 159(c) (1970).

      . See note 1 supra.

      . See note 4 supra.


source: Caselaw Access Project

author: WILKEY, Circuit Judge: MacKINNON, Circuit Judge

license: Public Domain

text:
    James BANYARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McLean Trucking Company, Intervenor. Clay D. FERGUSON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-1609, 73-1610.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 10, 1974.
    Decided Aug. 14, 1974.

      Arthur L. Fox, II, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for petitioners.
    Patrick Hardin, Associate Gen. Counsel, National Labor Relations Board, with whom John S. Irving, Deputy Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, were on the brief, for respondent.
    Melvin R. Manning, Richmond, Va., for intervenor.
    Before WRIGHT, MacKINNON and WILKEY, Circuit Judges.

      . International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 407.

   WILKEY, Circuit Judge:

These consolidated petitions for review of orders of the National Labor Relations Board call into question the Board’s application of its Spielberg and Collyer doctrines. Because we find the Board has erroneously applied those doctrines in these cases, we remand for further proceedings.

I.

Banyard’s Case

James Banyard worked as a truck driver for McLean Trucking Company and its predecessor for 22 years and also served as the Union’s appointed shop steward since 1955. He was fired on 7 October 1969 for refusing to drive a truck admittedly overloaded in violation of Ohio state law. At the time of his discharge there was in effect between the Company and the Union the National Master Freight Agreement and the Central States Area Local Cartage Supplemental Agreement. Article 16 of the contract provided that employees would not be required to violate any applicable statute or a governmental regulation relating to safety.

On 6 October 1969 Banyard was dispatched to pick up 800 fifty-pound sacks of breading at Specialty Products Company in Cleveland. He was reluctant to haul what he considered an overweight load, but when he expressed his reluctance to a Specialty employee, he was told that he would have to call his dispatcher if he wanted to reduce the size of the load. Banyard telephoned the dispatcher and was told to “load the front end light and the back end heavy, and . . . bring it in.” He loaded the truck and again telephoned the terminal. When he refused to “bring it in,” he was instructed to drop the trailer and return to the terminal. He was discharged the following day.

Pursuant to Articles 8, 42, and 48 of the contract, the Union had prosecuted Banyard’s grievance through two stages of grievance procedure when on 2 January 1970 Banyard filed a charge with the National Labor Relations Board alleging violation by the Company of sections 8(a)(1) and (3) of the National Labor Relations Act of 1947. On 23 July 1970 the trial examiner concluded that although the grievance proceedings were under way, there was no award for the Board to recognize. He went on to find that Banyard’s discharge violated sections 8(a)(1) and (3) of the Act.

Although the Company filed timely exceptions, the Board reached no decision until after the Union’s claim had been denied at the final stage of the contract grievance procedure. On 23 March 1973 the Board dismissed the unfair labor practice complaint, deferring to the decision of the National Grievance Procedure under Spielberg.

Ferguson’s Case

Clay D. Ferguson worked as an over-the-road driver for Roadway Express, Inc., for nine years. He was fired on 24 March 1972 for refusing to drive a truck which he asserted was unsafe. At the time of Ferguson’s discharge there was in effect between the Company and the Union the National Master Freight Agreement and the Carolina Freight Council Over the Road Supplemental Agreement. Article 16 of the contract provided that employees would not be required to operate vehicles not in safe operating condition.

On 20 March 1972 Ferguson was assigned a tractor to drive from Nashville, Tennessee, to Columbia, South Carolina. Finding it difficult to hold the road — ■ and therefore believing the truck to be unsafe — he hailed a second Roadway driver who happened by and asked him to road test the tractor for possible defects. When the second driver confirmed the danger, Ferguson proceeded with caution to Hageman’s, a nearby truck stop, and telephoned his dispatcher who instructed him to allow the Hageman’s mechanic to road test the vehicle. When the mechanic also expressed doubt over the vehicle’s safety, Ferguson again telephoned his dispatcher, refusing to proceed any farther', and was told to wait at Hageman’s for Roadway personnel. Roadway sent a safety supervisor and a mechanic, both of whom indicated that the vehicle was safe, but Ferguson still refused to drive. Pursuant to Ferguson’s request, a Department of Transportation Safety Investigator arrived, inspected (but did not drive) the tractor, and stated that he could find nothing wrong. Roadway’s replacement driver then drove the tractor ten or fifteen miles and reported it safe to drive. When Ferguson then refused to drive the tractor “unless somebody from Roadway Express signs a statement that they will be responsible for the unit,” he was discharged.

Pursuant to Articles 43 and 44 of the contract, Ferguson’s grievance was heard by the Carolina Joint Bi-State Grievance Committee and denied on 11 April 1972. Four days earlier, Ferguson had filed a charge with the National Labor Relations Board alleging violation by Roadway of section 8(a)(1) of the National Labor Relations Act. The opinion of the trial examiner deferring to the Joint Committee award and dismissing the complaint was affirmed by the Board on 25 April 1973.

II.

In Spielberg (post-arbitral) the Board established its policy of dismissing unfair labor practice complaints where the issues involved had been previously resolved by arbitral award. Under Collyer (pre-arbitral) the Board will withhold its processes until the parties first submit to those processes upon which they have privately agreed. If, after the Board has withheld under Collyer, the unfair labor practice issues are resolved by the arbitral tribunal, the Board will apply Spielberg and defer to the arbitral award.

In three opinions this year by Judges Wright and Tamm of this court, the Spielberg and Collyer doctrines are analyzed. Recognizing that

submission to grievance and arbitration proceedings of disputes which might involve unfair labor practices would be substantially discouraged if the disputants thought the Board would give de novo consideration to the issue which the arbitrator might resolve [,]

in Associated Press v. NLRB, we approved the application of both Spielberg and Collyer. However, our acceptance of those doctrines was and is founded upon the premise that they are appropriately applied only where the resolution of the contractual issues is congruent with the resolution of the statutory unfair labor practice issues. In Local Union 2188 v. NLRB we held: “This congruence between the contractual dispute and the overlying unfair labor practice charge is significant. If it were not present, the Board’s abstention might constitute [ ] not deference, but abdication.” Moreover, shortly thereafter in Local Union 715 v. NLRB, we held that abstention is proper only where three prerequisites (established in the Spielberg opinion itself) are met: (1) fair and regular arbitral proceedings, (2) parties agreed to be bound by the arbitral award, and (3) a decision which is “not clearly repugnant to the purposes and policies of the National Labor Relations Act.” To these we add other prerequisites exemplified in 'this case (see p. 347 infra).

Banyard

As found by the trial examiner, the Company has engaged in the practice of requiring its employees to haul overloaded trucks in violation of state law. Banyard’s attempts to protest the practice ultimately resulted in his discharge in 19 69. We agree with the conclusion of the trial examiner:

In the instant case, it is patent that the issue raised by the allegations of the complaint, namely, whether Ban-yard has been discharged by Respondent because of his concerted or union activity, is not one which falls within the special competence of an arbitrator, but is primarily one for resolution under the provisions of the Act which the Board has been mandated by Congress to enforce.

With respect to the issue whether the purpose of the Ohio law was for the protection of this driver, or other drivers on the highways, or for the protection of the highways, the Board majority refused to substitute its judgment for that of the Grievance Committee, but pointed out that no points were assessed against the license of any driver caught hauling an overload, and that during periods of suspension of a driver’s license the Company agreed to provide employment at equivalent earnings. Whatever the primary purpose of the Ohio law (which we need not determine), aside from possible loss of license vel non, there are other valid reasons for refusing to haul overloads in violation of state law. The trial examiner found definite safety risks involved in the practice. These risks pose a danger not only to the driver himself, but to the rest of the motoring public as well.

Our review of the transcript fails to reveal that the Committee considered such important issues as safety. Moreover, the actual Committee award does not indicate that the Committee’s judgment was exercised at all on the crucial issues regarding violation of the Ohio statute. The award to which the Board deferred states in its entirety:

Please be advised that the National Grievance Committee on December 2, 1971, adopted a motion that based on the transcript, the claim of the Union be denied.

As Judge Tamm pointed out in Local Union 715, supra, “[T]his reasoning appears to contradict the Board’s own decisions to the effect that deferral is not appropriate with respect to an issue not considered by the arbitration panel.” We do not know what was considered in the case at bar.

Regardless of the purpose of the Ohio statute, it remains axiomatic that it was still the law; for this or any other company to require its employees to act in violation thereof can never be upheld by the Board or this court. We concur in the dissenting Board members’ perception of the dispositive issue in this case, viz., “No contract provision or arbitration award can permit an employer to require his employees to violate state laws or to create safety hazards for themselves or others.” Left standing, the arbitral award below grants the Company a license to violate state law and as such is void as against public policy and repugnant to the purposes of the National Labor Relations Act.

Congress recognized that neither employers, employees, nor labor organizations have “any right in [their] relations with each other to engage in acts or practices which jeopardize the public health, safety, or interest.” Whether Banyard’s discharge was violative of section 8(a)(1) of the Act was the proper issue for the Board’s consideration, and this in turn necessarily embraced the admitted violations of Ohio law and their repugnance to public policy and the purposes of the Act. To the three prerequisites of Spielberg already listed in Local Union 715, supra, we would add that the Spielberg doctrine only applies if the arbitral tribunal (A) clearly decided the issue on which it is later urged that the Board should give deference, and (B) the arbitral tribunal decided an issue within its competence. Here the doctrine was misapplied as to these two prerequisites. Moreover, the arbitral tribunal’s award appears repugnant to the statute.

Ferguson

Section 7 of the Act extends to employees “the right ... to engage in . concerted activities for the purpose of . mutual aid or protection . . . ,” Ferguson contends that his refusal to drive was a protest against “abnormally dangerous” working conditions protected under section 502 of the Act and a protest on behalf of other employees against the unsafe condition of the vehicle and to secure its repair. He argues that such protest constitutes protected activity under section 7. The Board argues that its deferral under Spielberg was proper because the statutory question — whether in all the circumstances Ferguson was justified in refusing to operate the tractor because of unsafe operating conditions — “was squarely faced by the Joint Committee since Article 16 of the contract prohibited discharging Ferguson unless his refusal to drive based on safety factors ‘is unjustified.’ ” Yet the Board’s characterization of the contract and statutory issues as identical does not make them - so, and our decisions make it clear that deferral on statutory issues is proper only where there is congruence with contractual issues.

We perceive the resolution of the statutory issue here as dependent upon whether, in the Board’s own language, “the actual working conditions shown to exist by competent evidence might in the circumstances reasonably be considered ‘abnormally dangerous.’ ” Rejecting the conclusion of the Third Circuit that “an employee’s honest belief, no matter how unjustified, in the existence of ‘abnormally dangerous conditions for work' necessarily invokes the protection of § 502,” the Supreme Court in Gateway Coal Company v. United Mine Workers of America recently held that “a union seeking to justify a contractually prohibited work stoppage under § 502 must present ‘ascertainable, objective evidence supporting its conclusion that an abnormally dangerous condition for work exists.’ ”

Our reluctance in the case sub judice to sanction the Board’s deferral to the Joint Committee award stems from our uncertainty over whether the standard applied by the Joint Committee to the contractual issue before it is the correct standard to be applied to the statutory issue before the Board. Our concern is that the Joint Committee applied a “safe-in-fact” standard and thereby found that Ferguson was not contractually justified in refusing to drive the tractor. Under the more liberal Gateway Coal standard the Board might have concluded that Ferguson’s belief that the tractor was unsafe was amply supported by “ascertainable, objective evidence.”

Our approval of the Board’s deferral under Spielberg of statutory issues to arbitral resolution along with contractual issues is conditioned upon the resolution by the arbitral tribunal of congruent statutory and contractual issues. In that situation “the arbitration award becomes the sole remedy for both contractual and statutory violations.” If in the present case the Joint Committee applied to the issue before it a standard correct under the contract but not under judicial interpretation of section 502, then it cannot be said that the statutory issue was decided by the Joint Committee. In that event the Board’s abstention goes beyond deferral and approaches abdication.

As in Banyard’s case, the award of the Grievance Committee in this case was exceedingly brief. After merely summarizing the Company’s and the Union’s positions, the award states in its entirety:

Claim of Union denied.
The trial examiner, whose findings were adopted by the Board in this case, stated that the “Committee in reaching its conclusion to deny the grievance had to con-elude that Ferguson’s refusal to drive the vehicle was unjustified.” Yet the failure of the Committee to amplify its decision forced the trial examiner to speculate by what standard the refusal was “unjustified.” Neither the examiner, the Board, nor we are entitled to engage in such speculation.
Accordingly, these petitions are remanded with instructions that deferral not being appropriate, the Board should proceed to a consideration of the unfair labor practice issues in a manner not inconsistent with this opinion.

So ordered.

MacKINNON, Circuit Judge

(concurring) :

I concur in the majority opinion with respect to Ferguson and concur in the result with respect to Banyard.

As to Banyard, the majority errs in adopting an interpretation of the contract which conflicts with the interpretation by the National Grievance Committee. Banyard’s position is that his refusal to drive the overloaded vehicle was an attempt to enforce Article 16 of the contract, which provides:

The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law. . . . Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation relating to safety of person or equipment. . The Employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical department. The Employer and the Union together shall create a joint committee of qualified representatives for the purpose of consulting among themselves and with appropriate Government agencies, state and federal, on matters involving highway and equipment safety. (Emphasis added.)

Banyard contends that the reference in the contract to “any applicable statute” is not limited to statutes “relating to safety” because the latter phrase is separated from the former by a comma. The majority opinion seems to adopt this construction of the contract.

The National Grievance Committee, however, adopted a contrary interpretation of the contract. In denying Ban-yard’s grievance, the Committee necessarily concluded: (1) that the contractual reference to “any applicable statute” is limited to statutes “relating to safety,” and (2) that the Ohio load-limit statute does not relate to safety. See Page’s Ohio Rev.Code Anno. Gh. 5577 (1970). The Committee settled the interpretation of the contract for the parties and we are not at liberty to adopt a different interpretation. Since Article 16 is devoted entirely to employee and equipment safety, the Committee was on solid ground in concluding that the isolated phrase “applicable statute” refers only to statutes related to safety. This interpretation of the contract is not repugnant to the federal labor relations policy because Congress has not designated the National Labor Relations Board to be the enforcement agency for the multitude of state and local highway ordinances and other state laws.

The Grievance Committee was also on solid ground in concluding that the Ohio load-limit statute does not relate to safety. The purpose of that statute is to protect and to reduce maintenance costs of “improved streets, highways, bridges or culverts” in Ohio. See id. Most states have similar statutes designed to protect the highways, but the load limits vary from state to state. The limits also vary with the season of the year and the structure of the highway. Requiring an employee to operate a vehicle with loads in excess of a statutory load limit does not violate Article 16 of the contract, as interpreted by the Grievance Committee, absent some showing that the loads exceed the limit set by the manufacturer for the vehicle.

However, even accepting the Grievance Committee’s interpretation of the contract and the statute, the Board erred in assuming that the Grievance Committee decision resolved the federal statutory issue. The National Labor Relations Act protects employees engaged in concerted activity designed to enforce contractual rights. 29 U.S.C. §§ 157, 158(a)(1) (1970). Even though Banyard’s position with respect to the ambiguous language of Article 16 ultimately proved erroneous, his position was not unreasonable. In view of the grammatical structure of the relevant sentence in Article 16, a layman reasonably could conclude that the reference to “any applicable statute” was not modified by the subsequent phrase “relating to safety.” As long as Banyard acted with a reasonable and good faith belief that his interpretation of the contract was correct, the National Labor Relations Act protects his concerted efforts to enforce that interpretation. Otherwise, employees would be discouraged from asserting interpretations favorable to themselves except in the clearest situations involving unambiguous contract language. In other words, the employee is protected when he engages in concerted activity to enforce a reasonable and good faith interpretation of the contract, even though his interpretation ultimately does not prevail.

For this reason, the Grievance Committee’s adverse ruling on the contract interpretation issue did not foreclose a favorable ruling by the Board on the statutory claim under the National Labor Relations Act. Therefore, I would remand for the Board to determine whether Banyard’s refusal to drive the overloaded truck was a concerted effort to enforce a reasonable and good faith interpretation of his contract.

      . These proceedings were consolidated by order of this court on 22 May 1974.

      . McLean Trucking Co., 202 NLRB No. 102, 82 L.R.R.M. 1652 (23 March 1973); Roadway Express, Inc., 203 NLRB No. 25, 83 L.R.R.M. 1149 (25 April 1973).
      Our jurisdiction to review these orders is provided by section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f).

      . Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955).

      . Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).

      . The parties stipulated that Ohio law prohibited a weight exceeding 19,000 pounds plus three percent tolerance on the drive axle, and/or a weight exceeding 32,000 pounds plus three percent on the trailer axle. The trial examiner found that the 6 October shipment was in excess of the lawful weight under Ohio law and that Banyard did in fact refuse to pull an overload on that date. App. 27. (Citations to the record hereafter will be indicated as follows: "App.” refers to the Appendix to the parties’ briefs; “Tr.” refers to the transcript of proceedings before the trial examiner.)

      . Article 16 provides in relevant part:
      The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law. It shall not be a violation of this agreement where employees refuse to operate such equipment unless such refusal is unjustified. . . . Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation relating to safety of person or equipment.

      . Tr. at 88-89.

      . 29 U.S.G. §§ 158(a) (1) and (3).

      . In the meantime, the Board announced its decision in Collyer Insulated Wire, note 4 supra.

      . Ferguson was a member of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 391.

      . See note 7 supra.

      . Testifying before the trial examiner, Roy Potts (the second driver) stated: “Well, it scared me. I thought maybe it was going to break in two. ... 1 didn’t see how that I could drive the truck because I thought it was unsafe.” Tr. at 97.

      . The mechanic testified that “I told him [Ferguson] that I wouldn’t drive it, and that in my opinion the tractor was not safe to be on the road and get somebody else killed.” Tr. at 182.

      . Claude Gatlin, Jr., Safety Investigator of the Department of Transportation, would state neither that the tractor was safe nor that it was unsafe. Gatlin merely inspected the vehicle and could find nothing visibly wrong with it.

      . Tr. at 333.

      . Associated Press v. NLRB, 160 U.S.App.D.C. 396, 401, 492 F.2d 662, 667 (1974).

      . Ibid.

      . Local Union 2188, AFL-CIO v. NLRB, 161 U.S.App.D.C. 168, 172, 494 F.2d 1087, 1091 (1974).

      . Local Union 715, AFL-CIO v. NLRB, 161 U.S.App.D.C. 217, 219, 494 F.2d 1136, 1138 (1974).

      . In tliis connection, the record is amply supported by examples of employees who were told to pull overloads. One such employee was told to pull an overload and not get caught. App. 25-26.

      . That Banyard himself may have acquiesced in the practice by pulling overloads from 1966 to 1969 is not determinative of the issue now before us. He explained, and the trial examiner found, “that he pulled the overloads because he did not know the position of his union above the local level on overloads and that, without pulling overloads, he had to work 6 days a week in order to earn what other drivers earned in 5 days.” App. 28. Banyard, of course, had no more authority to sanction the Company’s violation of the law than did the contract or the arbitral tribunal.

      . App. 30.

      . Referring to the arguments made by the dissent concerning the purpose of the Ohio state law, the Board majority stated
      We are not persuaded that the issues are either as simple or dramatic as our colleagues assert, and are thus less anxious than they to rush to substitute our judgment for that of an experienced Committee, composed of experienced union and management representatives, or to accuse that Committee of sanctioning the creation of safety hazards.
      App. 7.

      . The parties stipulated that under Ohio law no penalties would be assessed against a driver’s license but that any overload was the obligation of the owner of the company. App. 27.

      . Article 36 of the contract provides in relevant part:
      In the event an employee shall suffer a suspension or revocation of his chauffeur’s license because of a succession of size and weight penalties, caused by the employee complying with his Employer’s instructions to him, the Employer shall provide employment for such employee at not less than his regular earnings at the time of his suspension for the entire period thereof, subject however, to the seniority and lay-off provisions applicable to him at the time of such suspension.

      . One employee testified that lie had trouble maintaining traffic speed with an overload and that he could not brake an overload to a stop as he could a legal load. Both Banyard and another employee confirmed the difficult braking. Banyard also testified, and the trial examiner found, that overloading limits maneuverability. App. 26.

      . 161 U.S.App.D.C. at 220, 494 F.2d at 1139.

      . 202 NLRB No. 102 at 9, 82 L.R.R.M. at 1654 (Fanning and Jenkins, Members, dissenting) .

      . 29 U.S.C. § 141.

      . 29 U.S.C. § 157.

      . 29 U.S.C. § 143. Section 502 provides in relevant part:
      [Nlor Khali the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.

      . Respondent’s Brief at 15.

      . See note 19 supra and accompanying text.

      . Redwing Carriers, Inc., 130 N.L.R.B. 1208, 1209 (1961).

      . 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

      . Id. at 386-387, 94 S.Ct. at 641.

      . The trial examiner found that the .Toint Committee “in reaching its conclusion to deny the grievance had to conclude that Ferguson’s refusal to drive the vehicle was unjustified. Possibly bolstering its conclusion is the fact that the tractor was driven some 800 miles without any repairs after Ferguson’s refusal.” App. 12 (emphasis added). Evidence of what happened after Ferguson’s refusal, while relevant to the question whether the truck was safe in fact, is irrelevant to whether there was “ascertainable, objective evidence” supporting a justified conclusion that an abnormally dangerous condition for work existed at the time he refused to drive.

      . 161 U.S.App.D.C. at 219, 494 F.2d at 1138.

      . See note 19 supra and accompanying text.

      . App. 12.


text:
    TAX ANALYSTS AND ADVOCATES and Thomas F. Field et al. v. INTERNAL REVENUE SERVICE et al., Appellants.
    No. 73-1978.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 5, 1974.
    Decided Aug. 19, 1974.
    Rehearing Denied Sept. 12, 1974.

      Ernest J. Brown, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen. and Bennett N. Hollander, Atty., Tax Div., were on the brief, for appellants.
    William A. Dobrovir, Washington, D. C., with whom Thomas F. Field, Washington, D. C., was on the brief, for ap-pellees.
    Before WRIGHT and MacKINNON, Circuit Judges and DAVIES, Senior District Judge for the District of North Dakota.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   RONALD N. DAVIES, Senior District Judge:

In an action commenced pursuant to the Freedom of Information Act, 5 U.S.C. § 552, Tax Analysts and Advocates and its Executive Director sought to compel the Internal Revenue Service, its Commissioner and its Assistant Commissioner (Technical) to disclose letter rulings and technical advice memoranda, together with communications and in-dices relating thereto, issued to producers of minerals other than oil and gas between July 26, 1968, and October 1, 1971, in which determinations were made of the processes to be treated as “mining” under Section 613(c) of the Internal Revenue Code, 26 U.S.C. § 613(c), when computing gross income from property for percentage depletion purposes.

The District Court rejected the defendants’ (appellants’) contentions that the Freedom of Information Act (Act) did not apply to letter rulings or technical advice memoranda or that, if it did, specific exemptions precluded disclosure of the material sought. The District Court also refused appellants’ request that it exercise the discretion inherent in its equitable powers and refuse to order disclosure. The Court ordered all materials sought, consisting of two unpublished letter rulings, eight technical advice memoranda, communications to and from the taxpayer or his representative relating thereto, and six index-digest cards, be made available:

“ * * * intact and without deletion, except for those items which, within said thirty (30) days period, Defendants submit to the Court, sealed and intact, without deletion but with any proposed deletions indicated, for in camera review as to whether proposed deletion of information is justified under the Freedom of Information Act, together with a detailed written explanation of the justification for each deletion, * * * ”

and also:

-x * within thirty (30) days of date all items in the Internal Revenue Service’s index-digest reference card file sought by Plaintiffs herein, and all memoranda of conferences and telephone calls relating to the letter rulings and technical advice memoranda involved herein, unless within said thirty (30) day period those items are submitted to the Court for in camera review as to whether they may be properly withheld as internal memoranda within the meaning of exemption 5, 5 U.S.C. § 552(b)(5), of the Freedom of Information Act.” Tax Analysts and Advocates v. Internal Revenue Serv., 362 F.Supp. 1298 (D.D.C.1973).

A stay was granted pending appeal in which appellants present only two issues: (1) whether the materials sought were, under § 552(b)(3) of the Act, “specifically exempted from disclosure by statute” ; and (2) whether the District Court erred in holding that it did not have, under the Act, equitable powers to refuse to order disclosure.

As described by the District Court:

“A letter ruling is a written statement issued to a taxpayer by the Office of Assistant Commissioner (Technical) in which interpretations of the tax laws are made and applied to a specific set of facts. The function of a letter ruling, usually sought by the taxpayer in advance of contemplated transaction, is to advise the taxpayer regarding the tax treatment that he can expect from IRS in the circumstances specified in the ruling. The letter rulings are not publicly disclosed by the IRS and it is clearly specified that no taxpayer is entitled to rely upon an unpublished private ruling not issued specifically to him. The taxpayer who does receive such a ruling is advised to file it along with his tax return.
“A technical device (sic) memoranda (T.A. memo) is comparable to a letter ruling, except that it is not issued directly to a taxpayer, but to a District Director of the IRS in response to the director’s request for instructions as to the treatment of a specific set of facts relating to a named taxpayer. The director’s question may relate to audit examination of a taxpayer’s return or consideration of a taxpayer’s claim for refund or credit. The substantive portion of the memorandum if (sic) given to the taxpayer.
“All letter rulings and technical advice memoranda are divided into two categories by the IRS for filing purposes. Many rulings and memos are considered of no significant ‘reference’ value. These are placed in a historical file, alphabetically by taxpayer’s name, and maintained for a period of four years. No separate index is prepared for materials in the historical file. The other letter rulings and t.a. memos are deemed to have a continuing ‘reference’ value for internal IRS purposes, and these are placed in the IRS’ permanent reference file, along with Court decisions, published Revenue Rulings, and other materials deemed to have a continuing reference value. The reference file is organized by code section and an ‘index-digest’ card file is maintained, giving citations to the main ‘reference’ file and usually summarizing the contents of the reference file.” (Footnotes omitted.) Tax Analysts and Advocates v. Internal Revenue Serv., supra, at 1301-1302.

First, it is to be noted that appellants do not contest the District Court’s holding that letter rulings and technical advice memoranda are “statements of policy and interpretations which have been adopted by the agency and not published in the Federal Register”, Section (a) (2) (B), and must be made available for public inspection and copying if not exempt under subsection (b) (3) of the Act.

“It is well established that information which either creates or provides a way of determining the extent of substantive rights and liabilities constitutes a form of law that cannot be withheld from the public. See Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971); American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1968). The FOIA by its explicit terms condemns ‘secret law’ and requires that it be made public:
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register )>
Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086, footnote 13 at p. 1091 (1973).

Relying on 26 U.S.C. § 6103(a)(1), which provides

“Returns made with respect to taxes . upon which the tax has been determined by the Secretary or his delegate shall constitute public records; but, except as hereinafter provided . . . they shall be open to inspection only upon order of the President and under rules and regulations prescribed by the Secretary or his delegate and approved by the President”

and on 26 U.S.C. § 7213(a)(1) which makes it unlawful

“. . .to divulge or to make known . to any person the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return; >>

appellants contend that letter rulings and technical advice memoranda are “specifically exempted from disclosure by statute.”

It was appellants’ burden to sustain their claim that the materials sought came within the meaning of the statutes. Mere labeling of the letter rulings and tax advice memoranda as returns is not sufficient. It is the District Court’s function to determine whether appellants’ classification was proper.

“This court has continued to adhere to the position that exemptions of the Information Act are to be narrowly-construed. Vaughn v. Rosen [157 U.S.App.D.C. 340], 484 F.2d 820 (1973), cert. denied, 415 U.S. 977 [94 S.Ct. 1564, 39 L.Ed.2d 873] (1974); Cuneo v. Schlesinger [157 U.S.App.D.C. 368] 484 F.2d 1086 (1973), cert. denied 415 U.S. 977 [94 S.Ct. 1564, 39 L.Ed.2d 873] (1974). The ordinary meaning of the language of Exemption (3) is that the statute therein referred to must itself specify the documents or categories of documents it authorizes to be withheld from public scrutiny. * * *
“In EPA v. Mink, 410 U.S. 73, [93 S.Ct. 827, 35 L.Ed.2d 119] (1973), the Supreme Court considered a specific exemption by statute, Exemption (1) of the Information Act itself, which exempts matters ‘specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy.’ 5 U.S.C. § 552(b) (1). The documents sought to be disclosed had been classified as secret pursuant to Executive Order 10501. Exemption (1) was construed to be a specific reference by Congress itself to a definite class of documents which were not to be disclosed. 410 U.S. at 83, [93 S.Ct. 827]. Their disclosure accordingly was not required.” (Footnote omitted.) Robertson v. Butterfield, 162 U.S.App.D.C. 298, 498 F.2d 1031 (1974).

The two statutes relied upon by appellants provide for protection of the privacy of taxpayers filing tax returns and are designed to prevent disclosure of information contained either in the returns or in documents filed in conjunction therewith which enable the Secretary or his delegate to determine tax due the United States. It is not difficult, therefore, to conclude that letter rulings are not encompassed in either statute. Letter rulings are issued at the request of taxpayers seeking advice as to the tax consequences of specific transactions. This information provides guidance in planning and conducting their business affairs and, if the transaction is consummated, aids in preparation of their tax returns. The fact that taxpayers may elect to follow the Internal Revenue Service’s recommendations that letter rulings be attached to returns containing information about the transactions referred to in the letter rulings does not deprive a letter ruling of its separate status as a “final opinion" and “interpretation" nor does it make the attachment part of a return. Attachment is to alert the District Director of the Internal Revenue Service that a letter ruling had been issued. The appropriate District Director is always sent a copy at the time a letter ruling is issued to any taxpayer required to file a return in his district.

Conversely, technical advice memoranda are prepared in response to an inquiry by a District Director as to the treatment of a specific set of facts relating to a tax return filed by a named taxpayer involving either an audit or in connection with the taxpayer’s claim for refund or credit of taxes. Technical advice memoranda deal directly with information contained in “returns made with respect to taxes” and are a part of the process by which tax determinations are made and, thus, “specifically exempted from disclosure by statute.”

We emphasize that there is still available to appellants, through in ca/mera production of all documents other than the technical advice memoranda and material relating thereto, exemption under § 552(b)(4) to prevent disclosure of “commercial or financial information obtained from a person and privileged or confidential.”

Lastly, appellants ask us to reconsider our previous holding that a District Court has no jurisdiction under the Act to deny disclosure, apart from the exemptions contained in the Act, on equitable grounds. Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971); accord, Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971); Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973); Tennessean Newspapers, Inc. v. Federal Housing Admin., 464 F.2d 657 (6th Cir. 1972); Hawkes v. Internal Revenue Service, 467 F.2d 787, n. 6 at p. 792 (6th Cir. 1972). See also Bannercraft Clothing Co. v. Renegotiation Board, 151 U.S.App.D.C. 174, 466 F.2d 345, 353 (1972) (discussing equitable principles) reversed on other grounds, 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123.

However, there is nothing in the “factors present in this case which were absent in the other Freedom of Information Act cases considered by the Court” which would compel us to change our previous opinion.

Modified in part and remanded to the District Court for further proceedings not inconsistent with this opinion.

      . The IRS also urges that Treas.Reg. § 301.6103(a)-l(a) (3) (Feb. 8, 1972), specifically exempts letter rulings from disclosure under the Act:
      (3) Terms -used — (i) Return. For purposes of section 6103(a), the term “return” includes—
      (a) Information returns, schedules, lists, and other written statements filed by or on behalf of the taxpayer with the Internal Revenue Service which are designed to be supplemental to or become a part of the return, and
      (b) Other records, reports, information received orally or in writing, factual data, documents, papers, abstracts, memoranda, or evidence taken, or any portion thereof, relating to the items included under (a) of this subdivision.
      Clearly, letter rulings are not encompassed by (a) since they are issued at the request of the taxpayer anti their attachment as a matter of convenience to the return does not make them “supplemental to or . .a part of the return.” Where the transaction proposed in the letter ruling is not executed, the letter ruling would not be comprehended by (b) since it would not “relate” to a filed return. However, letter rulings involving proposed transactions subsequently executed would fall within the literal terms of (b). Nonetheless, we think that letter rulings generated by the voluntary request of a taxpayer for tax advice from the IRS are beyond the scope of that which the Congress sought to protect under section 6103, that is, “returns” filed under compulsion of law which contain information necessary to determine federal tax liability. Accordingly, the regulation cannot immunize letter rulings from disclosure under the Freedom of Information Act.

      . Our recent decision in National Parks and Conservation Assoc. v. Rogers C. B. Morton, Secretary, Department of the Interior et al., 162 U.S.App.D.C. 223, 498 F.2d 765 (1974), may be of aid to tlie District Court in this respect.