NLRB Processing Times Have Dramatically Increased

Report from the Practice and Procedure Under the National Labor Relations Act Committee indicates a major slowdown.

On March 5, 2024, the General Counsel (GC) of the National Labor Relations Board (NLRB) released GC 24-03, which contains answers to various questions presented to the agency by the Practice and Procedure Under the National Labor Relations Act Committee of the ABA Labor and Employment Law Section. The most interesting questions pertain to case processing times and the answers to those questions confirm what many union representatives and lawyers have been complaining about for the last year: the NLRB has gotten a lot slower.

The graph below shows the average amount of time that elapsed between four case-processing events for the years 2022 and 2023.

The average amount of time between filing an unfair labor practice (ULP) charge with an NLRB region and that region disposing of the case in one form or another increased by nearly 50 percent from 84.4 days to 124.2 days. The time from the issuance of a complaint in a ULP case and a hearing on that complaint has increased by 47.3 days while the amount of time elapsing between the time a case reaches the Board to a Board decision has increased by 39 days.

These numbers track with the experience of many union representatives and labor lawyers that I have talked to over the last year and with my own experience practicing at the NLRB. When filing ULP charges in NLRB Region 16 (Fort Worth), I have even received unusual notices along with the initial letter to the charging party indicating that the region is suffering from a backlog that is likely to delay the processing of the case by six months.

The figures in the report do not make it clear why such a pronounced slowdown has occurred. The number of ULP charges has increased from 18,002 to 19,869. But this 10 percent increase is hard to square with a nearly 50 percent increase in the amount of time it takes to get a regional disposition.

These kinds of processing times are not just annoying for charging parties and their representatives. The difference between short and long processing is, practically, a difference between what the law says and what it actually can do.

The slogan “personnel is policy” has become popular over the last few years, with the point being that who is appointed to run administrative agencies matters as much as what the statutes, regulations, and case law actually say. Current NLRB GC Jennifer Abruzzo is a good example of this idea as is current FTC commissioner Lina Khan.

But in the same way that personnel is policy, the administration of the law is the law. If it takes 450 days from the filing of a ULP charge to get an ALJ decision, many of the protections nominally provided by the law (e.g. reinstatement for illegally terminated workers) do not really exist.

The NLRB is ultimately constrained by its budget. If we want fast NLRB processing times, which is necessary if we want the law to actually provide the protections it promises, then we need to vastly increase the size of the agency. We need more board agents, more administrative law judges, and more staff in general at every bottleneck in the agency.

Just as Congress recently increased IRS funding to increase its capacity to enforce tax laws, it must increase NLRB funding to increase its capacity to enforce the NLRA.