*2 mended that North’s be over- Before JONES, BROWN and Circuit ruled and the Union be certified. The Judges, PHILLIPS, and Senior Circuit adopted Board Director’s find- Judge.
ings and certified the Union. BROWN, BAILEY Judge. Circuit North then refused to bargain with the This case is before the court on the peti- Union. the unfair labor pro- tion of the National Labor Relations Board ceeding that followed acknowledged North for enforcement of its order to North Elec- it had refused bargain with the tric Company, Plant (North) No. 10 Union, to bar- but denied it had violated Sec- gain with the Communications 8(a)(5) because, Workers of argued, tion North (Union). America The Board’s decision and improperly Board had certified the Union. order reported are at 240 N.L.R.B. No. 32. The granted the General Counsel’s summary judgment motion for pro- this In October, 1974, a representation elec- ceeding followed. tion was held at plant North’s in Gray, Tennessee. The Union lost the by purpose bargain of North’s refusal to a two-to-one margin, 1441 to 762. The judicial Un- was to review of obtain the Board’s ion then filed unfair labor practice charges decision to objec- overrule North’s election against North, alleging that North had en- tions. Here North raises both substantive gaged in prohibited activities that under- complaints about mined the fairness of the election and de- adopt Board’s decision to manded a new complaint election. A overrule its issued the General Counsel and a certify hear- the Union. The substantive com- ing was held before an Board, law, Administrative Law plaint is that the as a matter Judge (ALJ).- The AU found that incorrectly North decided the two issues raised
582 with which we are decisions. The proceedings; i. representation
North follows: does e., threatened confronted is as unlawfully were employees Director to 102.69(g) require were made misrepresentations and material record to the Board the entire on the eve of the election. Union an administra- in which there is only is that the Board procedural complaint and no investigation hearing? tive not have the entire record before it did *3 102.69(g) provides: C.F.R. § adopt Regional when it decided to motions, rul- hearing, (g) The notice of agree with North report. Since of the orders, report ings, stenographic procedures were not followed proper docu- exceptions, hearing, stipulations, deal with the substantive issues we do not ob- evidence, together with the mentary at this time. the election or jections conduct of problem with which we procedural results of the elec- affecting the conduct are confronted is one that has been recur- tion, objections, any report on such any regularity in the last few ring with some ballots, exceptions challenged report on years. There seems to have been a rash of any briefs or other report, to such Regional cases in which the Director has par- submitted legal memoranda failed to transmit the record to the Board director, ties, regional the decision of the along with his recommendations. As noted made as previously record any, if earlier, the Regional Director did not hold a 102.68, shall constitute in described § hearing on North’s election but than Materials other record in the case. conducted an investigation. administrative part a of shall not be out above those set process of his making investigation record; proceeding that in a except Regional Director collected and con- held, filing party a hearing no is which sidered a variety evidence. regional director’s to a exceptions This evidence is Regional discussed in the challenges, request a or on indeed, upon is relied on decision director’s regional review of a to support report’s conclusions. The any opposition challenges, or objections or not, however, Director did trans- to thereto, to its submission may append mit this evidence to the Board as it has documents copies of the Board the record. The documents that were not director regional timely submitted transmitted to the Board include a copy not included and which were the Union’s mailing election eve that North issuance Immediately upon or decision. argues contains material misrepresenta- challenges, or of a or tions, a Union leaflet statements containing regional di- both, by the upon issuance related to the mailing, affidavits taken transferring the case rector of an order agents Board al- employees who were of an order Board, upon issuance or legedly threatened and the statement of an by the for review request a granting employee allegedly who was threatened. shall trans- Board, regional director Therefore, in considering North’s election Board. record to the mit the objections the Board did not have the bene- regulation of the language plain fit of actually reviewing the documents in Director to require seems to argues record. North this was a the Board record to the entire violation regulation Board of its own however, that argues,1 The Board all cases. (29 C.F.R. 102.69(g)) as well as a denial of § trans- required to Director is process. due in which only in cases entire record mit the proposition We have considered this issue several For this was a there sentence of the second past times in the two are now relies on years and that in provides which upon called to clarify scope prior of our 29 C.F.R. § was, argument. counsel The Board’s 1. It oral should be noted that the Board did not at however, prepared did, to, this is- only discuss bother to brief this issue so we have the argument. thoughts benefit at oral of the Board’s counsel sue object- reject interpretation held the We hearing in which no Board’s may copies submit ing party hold that the regula- submitted to the to the Board were requires tion review all the position Director. The Board’s relied required were that if the Director interpretation If the Board’s rector. pro- cases this to transmit record in all accepted process we think serious due prob- -The would be meaningless. vision presented. would be lems Prestolite Wire required out also that it is not hold points Division on all nor is it generally established that 29 C.F.R. review to make a de novo after the required 102.69(g) requires an Regional Director has conducted admin- the record the Board in cases istrative in which no is held. Although objecting clear that a to an party It is Prestolite did not hold expressly that the *4 has the right election to have Regional Director must transmit the record by the Board. 29 C.F.R. reviewed 102.69. cases, in all it is that clear the court felt the objects because a to the con Simply party was on the burden Director to do not, however, duct an election does mean so. the right it has to a Under Board Without expressly ruling that the Re- regulations either the Director or Regional- gional Director is invariably required un- may determine, the Board in the exercise of der Section to the discretion, a hearing reasonable that is war Board all of the materials by considered hand, ranted. On the other after reviewing him (although language says “shall”), the evidence, the and the they may we think that the better is to do that hearing decide no is necessary. Noth so and we are to fault the compa- unable ing said here should be taken indicate ny for having anticipate failed to that the Board is to hold a required hearing every objections. procedure case this raising election would not have been In fol- proper objections may election be re lowed here. (g) It is true that subsection solved on the basis of an administrative permit does party filing exceptions the investigation alone. v. NLRB Tennessee “append to its submission Packers, Inc., 172, 379 Cir.), F.2d 178 copies of it timely has sub- denied, cert. 389 88 U.S. S.Ct. 19 mitted to the director and which regional (1967). 364 L.Ed.2d were not the or included in deci- cannot, sion.” construe this present case was We decided the basis of an administrative language North’s shift from primary argument is not that it was wrong- responsibility rector to the petitioner denied a fully hearing, although that argu- assembling transmitting the rec- raised, ment is but rather that ord. for such a transmis- The mechanics to consider failed the record. lacking sion are believe that the argues The Board need it not review reliably be more Board’s review would by evidence considered the Regional following plain lan- by facilitated Director, and that it may confine its review addition, the guage peti- rule. In to the Director’s entirely power without tioner would be note, briefs submitted the parties. We affidavits which employee that even though, under the Board’s inter- had obtained. investigating officer pretation while reasoning at 305. The Prestolite Id. required Director is not to trans- in NLRB v. logical extension Cur given its record, mit the objecting party can sub- tis Noll 634 F.2d mit to Board all documentary evi- curiam). stated as a There we blanket (per it dence submitted to the Director. rule: The Board does not that it argue may ig- This also holds that the Board abu- Court nore evidence submitted adopting in this fashion. ses its discretion of the Director when the Re- Noll the procedural posture of the case was gional Director fails to transmit to the present identical to the case: Board the evidence relied upon by the objection certified the union over Regional Director. employer, conducting without or reviewing the evidence relied Id. at 1029. Regional Director in his making recommen- Without reviewing the evidence it is dations. In both of we remand- those cases impossible for the Board to determine ed to the to conduct Board with instructions whether the Regional Director’s recommen a hearing employer’s objec- on the dations should be followed or set aside. We Despite tions. the fact that the view the position Board’s it does not identical, posture of these cases is we do not have to review the documentary evidence as think we should order the Board to conduct an abdication of its responsibilities a hearing in this case. the National Labor Relations Act. If the where, Board does not look at over previously We have stated evidence it can do nothing objection, but union rubber the Board certifies stamp or decision. without the benefit of either a Meaningful review is impossible record, without a well- review of the full we will construe the the evidence. addition, pleaded employer’s if the factual assertions in the Board does not review the evidence favorably employer. most record, make it it is impossible for a Prestolite Wire Division 592 F.2d court to review the action, Nonetheless, Board’s since at 306-07. there is no record to *5 review. We compelled hold a is to be it is whether an abuse of discretion for the determined on a case case basis. both Board to adopt report Regional employer’s Prestolite and Curtis Noll the Director without reviewing face, objections, on their raised material documentary evidence relied upon by the Regional Regional with the Di- disputes Director. factual result, as a the denial We further hold that the burden of hearing was an abuse of discretion. of a transmitting the record to the Board lies reviewed North’s ob- carefully We have with the Regional Director. Prestolite out exceptions to election and its to jections lined the reasons why all the responsibility Regional report. Director’s Even con- for transmitting the record to the Board favorably most struing should lie with Director. 592 not, face, North, their do F.2d at 305. We think the reasons stated in disputes to war- raise such material factual Prestolite are persuasive and the responsi a rant an order to the Board to conduct bility for transmitting the record should be here is more that of problem with the Regional Therefore, Director. we giving weight to the evi- interpreting confirm the extension of Prestolite that we Director. developed by made in dence Curtis Noll require Region al Whether these when reviewed record, as defined in rec- documentary with the first sentence of 29 C.F.R. ord,2 will a require be sufficient to the Board with for the Board to is a matter better left recommendations on election objec tions. This ap- burden determine. We think the Board is the very slight one and we cannot see propriate body to make this determination any difficulty will be encountered in circum- complying with it. in the first instance these stances.
Finally, we must appropri- determine the ate remedy procedure adopted this violation of Since by the Board. In both Prestolite and reviewing Curtis Director’s without the doc- Although incomplete Therefore, appended 2. North has otherwise record. we do the documents brief, properly in to its we do us not consider this not consider before satisfactory augmenting to be a method of an to review. upon by investigation. the Re- in his administrative umentary evidence relied At that Director, gional deny the Board’s Peti- point, our Court is left where we started. Enforce, tion to the certification set aside prefer Because I avoid that we that sense and remand with instructions vu, déjá I would hold “the Board reconsider the abuses discretion when the with the evidence in the record. rector fails to to the Board the evidence relied JONES, Judge, NATHANIEL R. Circuit rector.” NLRB v. Curtis Noll concurring. 1980), F.2d 1027 Cir. at 1029. Contrary precedent, majori Circuit Because I are believe we bound ty opinion “plain language” holds that the Noll, in decision Curtis I concur the judg- 102.69(g) requires C.F.R. Re ment the Court. I also concur in the gional Director to transmit Board the opinion’s majority articulation of the appro- entire record of evidence com appellate priate remedies when the Board piled in his administrative abuses discretion. Randall, As was aptly stated Burk Textron, hart/Randall Division Inc. v. at 960-
61:
The regulations that the Board has al-
legedly violated found at 29 are 102.69(g). Together 102.68 and they §§ UNITED STATES of America ex rel. state that stipulations, documentary evi- GENIO, Fred DEL dence, oral transcripts arguments be- Petitioner-Appellant, Director, exhibits, fore the affi- davits, etc., are all considered record to be transmitted to the Board. UNITED STATES BUREAU OF PRIS This court has on several recent occasions ONS, Commission, United States Parole *6 practice condemned the NLRB of re- Elsea, Warden, Metropolitan and Robert fusing to have the full record transmit- Center, Respondents-Ap Correctional ted, for, even if it does not expressly pellees. violate the regulations, al- No. 79-2202. lows the Board greater opportunity to Appeals, United States Court abuse its complicates discretion and Seventh Circuit. problems faced reviewing court. Prestolite Wire Div. 592 F.2d Argued 1980. May (6th 1979); Cir. NLRB v. RJR Arch- 9, 1980. Sept. Decided er, Inc., 617 F.2d 1980); Cir. 22, 1980. Rehearing Denied Oct. NLRB v. Curtis Noll 1980). added) (emphasis Nor do I due process believe that man-
dates the majority’s construction of 29
C.F.R. 102.69(g). a holding, merely Such
hinted at in majority opinion, would
render their opinion unnecessary in-
deed, misleading. The majority’s opinion as
currently written “invites” the Board to
rewrite 29 clearly re-
quire a party other than
rector to transmit pertinent to the Board
parts of the documentary compiled