noting that meaningful administrative review “is impossible” without a record
How later courts described this case
- noting that meaningful administrative review “is impossible” without a record
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
concurring.
Contrary to Circuit precedent, the majority opinion holds that the “plain language” of 29 C.F.R. § 102.69 (g) requires the Regional Director to transmit to the Board the entire record of documentary evidence compiled in his administrative investigation. As was aptly stated in Randall, Burkhart/Randall Division of Textron, Inc. v. NLRB, 638 F.2d 957 (6th Cir. 1981) at 960-61:
The regulations that the Board has allegedly violated are found at 29 C.F.R. §§ 102.68 and 102.69(g). Together they state that stipulations, documentary evidence, transcripts of oral arguments before the Regional Director, exhibits, affidavits, etc., are all considered part of the record to be transmitted to the Board. This court has on several recent occasions condemned the NLRB practice of refusing to have the full record transmitted, for, even if it does not expressly violate the regulations, the practice allows the Board greater opportunity to abuse its discretion and complicates the problems faced by the reviewing court. Prestolite Wire Div. v. NLRB, 592 F.2d 302 (6th Cir. 1979); NLRB v. RJR Archer, Inc., 617 F.2d 161 (6th Cir. 1980); NLRB v. Curtis Noll Corp., 634 F.2d 1027 (6th Cir. 1980). (emphasis added)
Nor do I believe that due process mandates the majority’s construction of 29 C.F.R. § 102.69 (g). Such a holding, merely hinted at in the majority opinion, would render their opinion unnecessary and, indeed, misleading. The majority’s opinion as currently written “invites” the Board to rewrite 29 C.F.R. § 102.69 (g) to clearly require a party other than the Regional Director to transmit to the Board pertinent parts of the documentary evidence compiled in his administrative investigation. At that point, our Court is left where we started.
Because I prefer that we avoid that sense of déjá vu, I would hold that “the Board abuses its discretion when the Regional Director fails to transmit to the Board the evidence relied upon by the Regional Director.” NLRB v. Curtis Noll Corp., 634 F.2d 1027 (6th Cir. 1980), at 1029.
Because I believe we are bound by the decision in Curtis Noll, I concur in the judgment of the Court. I also concur in the majority opinion’s articulation of the appropriate appellate remedies when the Board abuses its discretion.