Operations In Fiscal Year 1988 - National Labor Relations Board

166 Flfty-Third Annual Report of the National Labor Relations Boardfense,4 the matter should have gone no further. 5 The court rejectedthe Board's position that continuation of the suit was supportablebecause the Government could have prevailed if thejudge had resolved two conflicts in testimony in favor of theGeneral Counsel. The court did, however, conclude that theGeneral Counsel acted reasonably in investigating and prosecut-.ing the charges to the conclusion of the trial in view of Leeward'sfailure to give hard evidence of its defenses prior to thehearing. It is noteworthy that, in making its determinationwhether the Board's position was substantially justified, the courtlooked to whether it was "slightly more than reasonable." Thistest has since been rejected by the Supreme Court in favor ofone requiring only that the Government action be reasonable infact. and in law.6B. Litigation Involving the Board's JurisdictionIn Augusta Bakery Corp. v. NLRB, 7 the District Court for theNorthern District of Illinois Eastern Division dismissed a requestfor injunctive relief, fmding that it lacked jurisdiction to enjoin •the Board's unfair labor practice proceedings. The GeneralCounsel had issued a complaint against Augusta alleging that thecompany violated Section 8(a)(3) and (1) of the Act by failingand refusing, since March 27, 1986, to reinstate economic strikerswho had made an unconditional offer to return to work. Duringthe course of the unfair labor practice hearing, the administrativelaw judge overruled Augusta's objection to the scope of theGeneral Counsel's prosecution. The judge ruled that he couldconsider Augusta's failure to reinstate the employees subsequentto March 27, 1986. Augusta contested this interlocutory rulingby filing with the Board a request for special permission toappeal. The Board denied Augusta's request and the unfair laborpractice hearing proceeded until closing. Before the districtcourt, Augusta argued that the Board exceeded its statutory subjectmatter jurisdiction under Section 10(b) by permitting the litigationof conduct that occurred subsequent to March 27, 1986.The court readily dismissed Augusta's argument that the Leedom.v. Kyne8 exception to nonreviewability applied in this case. Thecourt, citing Abercrombie v. Office of Comptroller of Currency,9stated that Kyne "is available only where the agency has exceededa plain and unambiguous statutory command or prohibition. . . that is, the agency takes 'blatantly lawless' action—in circumstanceswhere no adequate alternative judicial remedy existsfor the unlawful activity's victims." The court found it doubtful4 Watinghouse Electric Corp., 150 NLRB 1574 (1965).5 841 F.2d at 1147-1148.'See Pierce v. Undenvood, 108 S.Ct. 2541 (1988).No. 88 Civ. 2845 (N.D.M.).6 358 U.S. 184 (1958).'833 F.2d 672, 675 (7th Cir. 1987).