Twenty-three of the National Labor Relations Board’s 36 Administrative Law Judges (64%) were Board attorneys before the Board chose them to adjudicate its unfair labor practice complaints. If in that data you think you caught a whiff of pro-agency orientation, read on, Febreze at the ready.

According to a Pew Research Center analysis of 2022 federal criminal cases, 39% (30 of 77) of trials for “regulatory offenses” resulted in acquittals. The National Labor Relations Board does far better than the DOJ. In FY 2023, just 9% of its unfair labor practice hearing Respondents beat the rap.

Details for 2023 are not publicly available, so to understand how the Board does so well, let’s dive into 2021, when the Board published 121 ALJ decisions. Thirty-nine became final without appeal. Another 14 were awaiting Board review as of December 14, 2023. One settled pending Board review. Three resolved non-dispositive motions. The remaining 64 cases broke down like this:

Complaints against Union Respondents: 2 (50% dismissal rate after Board review)

The Board affirmed one decision dismissing the complaint (3-CB-256179) and affirmed another finding a violation (19-CB-245120).

Complaints against Employer Respondents: 62 (10% dismissal rate after Board review)

In six cases, the Board affirmed an ALJ finding of no violation. The Board affirmed 53 ALJ decisions that found violations and imposed remedies. The Board remanded one decision dismissing the complaint (7-CA-273203), reversed another decision for finding too few violations (19-CA-260013), and reversed a third for only directing a re-run election, adopting a more pro-union standard and directing the employer to bargain without an election (28-CA-230115).  

As the comparison to FY ’23 shows, those numbers are unremarkable.

Yes, DOJ’s proof burden is higher, but another big factor is how testimonial disputes are resolved. In most DOJ “regulatory offense” trials, jurors make credibility judgments. The NLRB assigns that task to its ALJs and defers to their assessments using a boilerplate footnote to dismiss Respondent objections. Consequently, few ALJ decisions receive anything resembling de novo review, except when the Board decides to change the applicable law. When Respondents seek judicial review of Board decisions, the Board claims subject matter expertise, invokes Chevron, and typically receives deference to its deference.

A Respondent’s poor odds of enduring this years-long gauntlet may explain why so few force the Board to litigate. On average, in the last three reporting years, Respondents settled at least seven charges for every complaint issued against them: 5,174 settlements versus 742 complaints. This is a lower boundary estimate, since the Board reports pre-complaint settlements as charge dismissals.

 

That’s not to say that every, or any, Board Respondent gets the royal treatment described in David Julian’s amicus brief in SEC v. Jarkesy. But if not, it’s only because the Board’s ALJs less eagerly exploit their opportunities. We can (and should, and do) applaud their professionalism—while also observing that the system reeks.

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