Operations In Fiscal Year 1988 - National Labor Relations Board

Special and Miscellaneous Litigation 171quirement of comprising intra-agency memoranda. The courtconstrued the intra-agency documents language of Exemption 5to require that the materials be internally created and maintainedwithin the agency, rather than simply documents within the possessionof the agency. The court held that, on the evidence available,it appeared that the affidavits were the product of the witnesseswho made the statements, rather than of the Board attorneywho recorded them. Thereafter, on remand, the districtcourt found that a great majority of the remaining disputed documentswere protected under FOIA Exemptions 5 and 7(A), (C),and(])) 22E.Miscellaneous LitigationIn NLRB v. Florida Department of Business Regulations," theBoard filed a Nash-Finch suit24 to enjoin the State of Floridafrom enforcing a regulation requiring employees in the jai alai industryto give 15 days' notice prior to leaving their place of employment.The district court granted the Board's motion for apreliminary injunction. Initially, the court found that the Boardwas likely to prevail on the merits, noting that the Florida provisionappeared to directly conflict with the employees' protectedright to strike under Section 7. The court found an alternativebasis for concluding that the state regulation is preempted in thatit impermissibly regulates conduct exclusively within the Board'sjurisdiction. The court additionally ruled that the Board's injunctionwould not cause undue harm to the State because its right toseek judicial relief from violent conduct, should that occur, wasnot impaired; that the Board would suffer injury in its ability toprotect employee rights if enforcement of the state regulationwas not prohibited; and that the public interest would not beharmed by the injunction.In another case, counsel for John E. Sparks 25 filed a petitionto review the General Counsel's refusal to issue a complaint.Sparks' counsel then voluntarily sought to dismiss the petitionwhen she discovered that such refusals are not subject to judicialreview. Both the employer and the union, who were also namedin the action, sought sanctions for a frivolous appeal. The courtstated that in authorizing sanctions under Rule 38, F.R.App.P., itwould look to the principles evolved in the interpretation ofRule 11, F.R.Civ.P. It concluded that sanctions were appropriatebecause the principle that the decision of the General Counselnot to issue a complaint is not reviewable is a "bedrock principleof labor law," and Sparks' counsel, as a specialist in labor law,should have been aware of that principle.22 Thurner Heat Treating Corp. v. NLRB, 129 LARM 3012 (E.D.Wiac.).23 TCA 88-40079—WS (N.D Fla.).24 NLRB v. Nash-Finch Co., 404 U.S. 138 (1971)."Sparks v. NLRB, 835 F.2d 705 (7th Cir.).