“[T]he [National Labor Relations Board’s] failure to review the entire record before the Regional Director was held to lead to ‘rubber stamp’ review raising serious due process problems.”
How later courts described this case
- “[T]he [National Labor Relations Board’s] failure to review the entire record before the Regional Director was held to lead to ‘rubber stamp’ review raising serious due process problems.”
- “As the party challenging the election, [the employer] had the burden of showing by specific evidence at the hearing that 1
- Lovell, District Judge, Concurring
- abuse of discretion standard
Written by the judges who cited it.
The opinion
LOVELL, District Judge,
concurring:
I concur in the result reached by Judge Poole, and I agree with Judge Kennedy’s opinion. However, our opinions ought not be read to endorse the NLRB’s review procedures, which are inherently suspect.
On three separate occasions in three different cases during a recent three year period this court expressed its disagreement with the NLRB’s review procedures.
First, in NLRB v. Consolidated Liberty, Inc., 672 F.2d 788, 789 (9th Cir.1982), the Board’s failure to review the entire record before the Regional Director was held to lead to “rubber stamp” review raising serious due process problems. Next, in NLRB v. Advanced Systems, Inc., 681 F.2d 570, 573-74 (9th Cir.1982), we held that the Regional Director must transmit, as part of the record, any materials he relied on in his report, regardless of the source. Most recently, in West Coast Liquidators, Inc., 725 F.2d 532 (9th Cir.1984) this court, reviewing the Board’s revised rule, held that it was error for the Board to fail to review the entire record relied upon by the Regional Director, but that the court will not deny enforcement and order remand where the error is harmless. That decision reaffirmed the principle that proper review, both administrative and judicial, requires an adequate record.
The Board’s response in this case is to ask us to overrule West Coast Liquidators. I would decline to do so.
We order enforcement here because the record fails to disclose that the Employer established a prima facie case of objectionable conduct below, and any error, therefore, was harmless. This result is consistent with West Coast Liquidators.
This court will again be squarely confronted with the apparent deficiencies in the Board’s review procedures under West Coast Liquidators, Advanced Systems, and Consolidated Liberty. I would reaffirm those cases and disapprove the Board’s review procedures as part of our decision in this case.