An ALJ Who Really Needs a Good Clerk

The NLRB recently set aside seven recommended decisions and orders by ALJ Howard Edelman and directed the Chief ALJ to reassign the cases to different ALJs (see here and here for representative examples).  The problem with Edelman's decisions?  According to the Board, "the vast majority of the statement of facts in the judge's decision and virtually all of its legal analysis were copied almost verbatim from the General Counsel's brief."  To avoid the appearance of bias, the Board remanded the cases to different ALJs.

What is perhaps more disturbing about the Board feeling the need to remand seven decisions at once, is that the Board had remanded Edelman decisions twice before.  In a 2004 case, the Board found Edelman's practice of copying the General Counsel's brief, although not per se improper, to be troubling and not to be condoned in the future.  After he apparently didn't get the hint, the Board remanded a 2005 Edelman decision, noting the 2004 case and stating that the ALJ's "wholesale borrowing of large portions of the parties’ briefs into his decision" creates the appearance of impartiality.  I'll say.

As a former counsel for the NLRB's General Counsel, I'd like to say that this copying reflected the quality of the work of GC attorneys, but it's impossible to chalk this up to anything more than the lethal combination of hubris and laziness.  It also seems to be past the time for mere remands--this guy needs to go.

One interesting thing about these decisions is that the remands were triggered by Edelman's copying of briefs and the appearance of bias that copying creates, rather than an actual finding of bias itself.  It is nearly impossible to get a finding of bias for any adjudicator, whether ALJ or judge, based solely on their decisions.  There are good reasons for this, but Edelman's conduct raises the issue of whether this hurdle should be lowered a bit.  In one of my Fifth Circuit NLRB cases, an opponent accused the ALJ, whose credibility determinations the Board adopted, of being biased.  The ALJ's record was astounding (scores of decisions, all favoring unions) and gave me pause, but the law on this issue was so clearly against a finding of bias based solely on the judge's past decisions that the panel literally chewed out my opponent in oral argument for even raising the issue.  I'm sure it had nothing to do with the fact that had we looked to the judge's record it might have looked similarly bad against unions.

-JH