Operations In Fiscal Year 1988 - National Labor Relations Board

150 Fffty-Third Annual Report of the National Labor Relations Boardclose credibility dispute, entered an order deferring decision onthe matter until the administrative law judge could issue a decisionin the underlying administrative proceeding. The Board thenfiled with the Ninth Circuit a petition for a writ of mandamus todirect the district court to decide the case promptly, arguingthat, because a 10(j) injunction lasts only for the duration of theadministrative proceeding, it was inappropriate for the districtcourt to defer action on the 10(j) petition pending completion ofany significant aspect of that proceeding. In an unpublished opinion,the Ninth Circuit agreed and directed the district court topromptly determine the merits of the 10(j) petition. 2 Pursuant tothat direction, the district court did issue the injunction theBoard had sought. -However, shortly before that order was totake effect, the administrative law judge issued a decision resolvingthe credibility disputes against the General Counsel and recommendingthat the complaint be dismissed. The Board thenpromptly sought a stay of the injunction order to permit the districtcourt to assess the impact of the administrative law. judge'sdecision on its injunction order. Subsequently, with the Board'spartial concurrence, the district court vacated the injunction ongrounds that the relief sought was no longer just and properunder the particular circumstances.3In Aguayo v. Tomco Carburetor Co., 4 the Ninth Circuit reverseda district court's refusal to order the interim reinstatementof a group of 11 employees allegedly discharged because of theirunion organizing activities. The district court assumed, withoutdeciding, that there was reasonable cause to believe the employerviolated the Act by discharging 11 union committee members fortheir attempts to secure union representation, but concludedwithout elaboration "that the Board failed to show the 'requisitenecessity' to justify interim relief." The Ninth Circuit disagreed.Initially, it concluded that the affidavits submitted by the Boardin support of the 10(j) petition, if true, amply warranted a fmdingof reasonable cause to believe that the employer violated theAct. For, "[Oven the low threshold of proof section 10(j) imposeson the Board to establish reasonable cause. . . the allegationscontained in the Board's petition were not 'insubstantial andfrivolous." 6 Accordingly, although the employer had not had anopportunity to cross-examine the Board's affiants, because the affidavits"more than satisfied" the Board's "minimal burden," noremand was necessary to resolve the reasonable cause issue. 7 Thecircuit court further concluded that the district court abused itsdiscretion by failing to order the reinstatement of the discharged2 See Fuchs v. Hood Industries, 590 F.2d 395, 397 (1st Cir. 1979).'129 LRRM 2723 (D.Hawaii).4 853 F.2d 744.'Id. at 749.'Id. at 748.7 Id. at 750-751.