THE FEDERAL ADMINISTRATIVE
LAW JUDGES CONFERENCE
Address delivered by
John C. Truesdale
September 17, 1999
The views expressed are those of Chairman Truesdale, and do not necessarily reflect those of the Board or other Members
It is a pleasure to be here and have the opportunity to talk a little about the NLRB and its administrative law judges.
I am told that the NLRB employs the second largest number of administrative law judges of any Federal Agency -- although it is not even a close second to the leader, the Social Security Administration. We now have 60 judges, which is actually 25 percent less than the number of judges we had just 7 years ago -- in 1991 -- when the overall intake of cases in the Judges Division was also 25-30 percent higher.
The NLRB's judges, as you may know, operate out of 4 administrative offices - in Washington, D.C., New York, Atlanta and San Francisco. We used to have just two administrative offices for the judges - in Washington and San Francisco - but the number was increased to four in 1980.
In recent years, we have also started a program to allow a number of the judges to work out of their homes, pursuant to flexible workplace agreements with the Agency. Largely as a result of this program, our ALJ corps is much more geographically dispersed than it used to be. I was surprised to learn the other day from our Chief Judge, Bob Giannasi, that only about 20 of our judges currently live in the Washington area. Back in 1981, when we actually had a total of 117 judges, probably around 70 of them lived in Washington.
According to the old adage, "necessity is the mother of invention." Our work-at-home program was born of both necessity and invention. Successive budget crunches forced us to give up office space, and to also look for ways to reduce travel costs. At the same time, new technologies such as fax machines and computer modems and E-mail made it possible for our judges to do their jobs just as well in Moline, Illinois (where one of our judges lives and works) as in Washington.
Not everyone - nor every judge -- can work efficiently at home. But we have been pleased with those who have been approved for this program. And there seems little doubt that it is the wave of the future.
Now, it isn't every day that I have such a perfect opportunity to praise our judges, so I hope you'll understand if I take a little time here to do so.
As most of you are probably aware, NLRB hearings are hotly contested and heavily-lawyered affairs. There are usually at least 3 lawyers in the room - and sometimes many more - representing the General Counsel, the Charging Party, and the Respondent employer or union - all of whom have a right to introduce evidence and examine and cross-examine witnesses. The issues can run from the routine - such as whether a supervisor interrogated or threatened an employee - to more complex issues such whether an employer has engaged in unlawful surface bargaining.
Unfortunately, there seems to be a trend in recent years toward our hearings becoming even more hotly contested and complex. This is based, not only on anecdotal reports we receive from our judges and practitioners, but also the average length of hearing transcripts. Since 1991, the average transcript length has increased 30 percent, from 473 pages to 616 pages per case. In one recent case - involving Avondale Industries - the transcript was actually over 40,000 pages long.1
Given these circumstances, one might conclude that the productivity of our judges would have declined during the same period. Not so! Last year the number of decisions issued per judge was actually 20% higher than at the beginning of the decade.
The judges are also getting their decisions out faster. Since 1991, the median time between close of hearing and issuance of the ALJD has been reduced by 30 percent. And the median time from receipt of briefs to issuance of the ALJD has been reduced by almost 50 percent. Our judges are now getting their decisions out in a median of about 100 days from the hearing and about 50 days from the receipt of briefs.
These are truly remarkable statistics - particularly when one considers that the judges have done it without law clerks. And I haven't heard anyone suggest that this outstanding record of moving cases has come at the expense of quality. Indeed, the statistics indicate that there has actually been a slight increase in the percentage of total cases where the Board has short-form adopted the judge's decision without significant additional comment.
Of course, judges also play an important role in achieving settlements in cases. And our judges have established an outstanding settlement record as well.
Settlements are the lifeblood of this - and any - litigation-based agency. Our regional offices receive over 30,000 unfair labor practice charges per year. After investigation by the regional offices, almost all of those charges result in dismissal, withdrawal or settlement. Those that remain and are found to have merit result in the issuance of about 3,000 formal complaints annually.
Unlike in many other agencies, at the Board a case is not immediately assigned to a judge after the General Counsel issues the complaint. There are a number of institutional reasons for this, one of which is that the Board does not have discovery which might require considerable monitoring by a judge in advance of trial. In any event, case assignments are not made until about 2 or 3 weeks before the date of the trial. Typically, the judge then sets up a telephone conference call, and, among other things, tries to settle the case. If it does not settle at that point or at trial, the judge goes on and hears the case.
A few years ago, the Board implemented a settlement judge program where, with the agreement of all parties, a judge other than the judge who will conduct the trial may be assigned to convene and preside over settlement conferences and negotiations. In addition, in our Philadelphia Region, we have experimented with a monthly settlement docket where one of our judges tries to settle as many as 5 or 6 cases in one day.
We have been very pleased with the settlement efforts of all of the judges, whether acting as the assigned trial judge or as settlement judge. Again, comparing figures in 1991 with those of last year, not only are settlements as a percentage of total judge dispositions up significantly, the number of settlements per judge is up almost 30 percent.
The importance of settlements to administering the statute cannot be overstated. They are quite simply critical to the Agency's ability to manage its caseload and provide parties with a prompt resolution of their disputes.
This has been especially true during the recent lean-budget years. The average NLRB trial lasts about 3 days, and we estimate that a settlement in such a case saves the Agency at least $25,000, depending on how much preparation time has been put into the case by the field attorney prior to the settlement. And this does not even include the additional cost if the ALJ's decision is appealed to the Board, which could add another $10,000 or more, depending on the length and complexity of the case. Of course, there are also cost savings to the private parties.
Another recent innovation is the Board's 1995 rule change giving our judges the authority to issue bench decisions or decisions without briefs. Before the new rule, parties had an absolute right to file post-hearing briefs to the administrative law judge. Now, under the new rule, the judge, in his or her discretion, can direct the parties to make oral arguments at the end of the case in lieu of filing briefs, and the judge can either read the bench decision into the record or go home and read the transcript and issue a regular written decision without waiting for briefs.
When it implemented the new rule, the Board stated that bench decisions should only be issued in relatively simple cases. Obviously, a bench decision must have all the elements required under the APA -- that is, all necessary findings of fact and credibility resolutions and an adequate rationale for all findings and conclusions. When that cannot easily be done from the bench, I think the better course would be to choose the other option, the written decision. Most Board cases are complex enough that a full written decision is required.
So far, our judges have issued bench decisions in about 5 to 10 percent of their cases. Most have either not been appealed to the Board or been affirmed without much difficulty. But some have had to be remanded or supplemented by a more detailed Board decision. Further, while one circuit court recently upheld the Board's rule change allowing bench decisions,2 we haven't yet had a large number of such decisions get reviewed on their merits by the courts of appeals. So I think it is fair to say that the jury is still out on bench decisions.
Hopefully, time and experience will prove the rule change allowing bench decisions to be a beneficial one for parties and the Agency. In general, I am in favor of any appropriate innovation that will help expedite the processing of cases. Indeed, as I have said on many occasions since my swearing in, my sole agenda as Chairman this past 9 months has been to work with my colleagues to do what it takes to reduce the backlog of old cases before the Board and resolve the newer cases in a more timely manner.
Unfortunately, the Board's record the past few years has not kept pace with our judges. When I returned to the Board last December, the backlog of cases on appeal before the Board in Washington had reached over 700 cases. Although this number was far from the historic high of 1,600 cases in the early 1980s -- a truly dark period in the Board's history -- it was still much higher than it should be. For example, in November 1995 - a month before the Federal Government shutdown over the lack of a budget agreement - the backlog was just 340 cases, less than half of what it was this past December.
Even more disturbing was the overall age of the cases in the backlog. For example, in November 1995, there were about 15 unfair labor practice cases that had been pending at the Board for 3 years or more. In contrast, in December of last year, there were about 40 ULP cases that were over 3 years old, and the number was growing with each passing day.
There are a number of reasons for these increases. The one most frequently mentioned is Board Member turnover and delays in the appointment process. The Act specifically provides for a Board of 5 Members appointed for 5-year terms. But, since the early 80s, turnover among Board Members and delays in Board appointments have rendered this statutory scheme the exception rather than the norm. In the last 20 years, the Board has been at its full 5-Member strength only about 40 percent of the time. And many of the Board Members who did serve during that period served for only a year or less as so-called "recess" appointees in the absence of a confirmed nominee.
This kind of turnover would cause problems in any organization, and the Board is no exception.
I am firmly convinced that the root of the Board's backlog problem is the failure to have timely nominations and timely confirmations. However, there are probably other contributing factors as well, including the Agency's tight budgets in recent years which have led to a 20 percent reduction in the Board Members' legal staffs.
But, whatever the causes of delay, we all agree that the Board has a responsibility to do what it takes to get the cases out in a timely manner. Since the beginning of the year, my colleagues and I have been working hard to get the Board back on the right track. Between January 1 and September 1 of this year, we have issued approximately 475 ULP and representation case decisions, or about 60 decisions a month. Of those 475 decisions, many were among the oldest cases at the Board -- cases that had been pending at the Board for 2 to 3 years or more.
Of course, new cases keep coming in. So, I can't say at this point that we have made a huge dent in the overall backlog. But, we have stopped its growth and even reduced it somewhat. And we are getting close to our goal of issuing all of the very oldest unfair labor practice and election cases by the end of this fiscal year.
Well, my time is about run out. But, I want to reiterate how heavily we rely on our judges and appreciate what they do. We know they settle a lot of cases that would not otherwise settle because of their knowledge of Board law and procedure, their experience, and their imagination and persistence. We also know that, because of those qualities and others, they get their cases out in a timely and efficient manner, as the parties and the public expect. Finally, we know that a well-reasoned, well-documented and well-written decision makes our jobs as Board Members easier and increases the likelihood that our decision will also issue in a timely and efficient manner. It also makes it more likely that our decision will be enforced in the courts.
For all these reasons, we on the Board are grateful for the professional work of our ALJs, who rightly should be proud of their contribution to enforcement of the Act and its principles.
I thank you for your time and attention.
1 The hearing lasted 165 days.
2 NLRB v. Beverly Enterprises-Massachusetts, 174 F.3d 13 (1st Cir. April 6, 1999).
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