Even the Administrative Law Judges are getting frustrated with the Board’s “all in for unions” approach to labor law. In an impressive stand against overreach, Administrative Law Judge (ALJ) Lisa Ross made a principled decision to recuse herself from a case the NLRB recently remanded to her. The case involves actor Sean Penn's nonprofit organization, Community Organized Relief Effort (CORE).

The judge’s decision came in response to a remand order from the NLRB. Remands are somewhat routine. The Board decides there’s something in the ALJ decision they’d like looked at a little closer, or they want evidence taken on an issue they felt wasn’t fully fleshed out in the record.

The remand in CORE was not routine. Judge Ross (along with myself and I believe most objective readers of the Board decision) viewed the Board order as a demand for a predetermined outcome—specifically, one that would favor the General Counsel.

Judge Ross had previously ruled that the NLRB’s prosecutors failed to provide evidence showing that a 2021 email from Penn to his employees constituted a threat under the National Labor Relations Act. In her original ruling, Ross noted that the email—meant to rally the staff amid a grueling COVID-19 vaccination campaign—did not violate the Act. The NLRB, however, sent the case back to her, arguing that she had failed to apply the proper standard for evaluating Penn’s statements.

In a bold move, Judge Ross chose to recuse herself from the case rather than compromise her judicial integrity. Her justification? She had already used the very standard the NLRB claimed she ignored. “I do not know what the Board wants me to do in this situation, other than rule in the General Counsel’s favor,” Ross stated, making clear that the Board’s intentions were less about re-examining the facts and more about pushing for a preordained verdict.

Ross’s original decision was very sound. She considered the context of Penn’s email, which was delivered during a pandemic-induced crisis at Dodger Stadium in Los Angeles. CORE employees were working tirelessly to administer COVID-19 vaccinations. She rightly considered Penn’s email as a motivational speech aimed at uniting his team rather than a coercive threat. Penn’s remarks addressed anonymous internet criticisms of the organization’s working conditions, but Ross saw no evidence that the email had any adverse effects on employees or that it was intended to do so.

The NLRB’s insistence that Ross should have focused solely on whether the statement “had a reasonable tendency to coerce employees” is overly rigid and completely ignores the context. It disregards common sense and the realities of crisis management, where rallying language is often necessary to maintain morale. By refusing to be bullied into a decision pre-ordained by the Board, Ross demonstrated her commitment to fair and impartial adjudication.

Recusal was the right move to preserve judicial independence. It underscores a troubling trend at the NLRB: the willingness to ignore common sense and the integrity of its own judges to achieve desired outcomes. It’s disrespectful to her expertise and sets a dangerous precedent for future cases.

While the NLRB has every right to remand cases for reconsideration, it should not do so with the expectation that its judges will simply reverse their previous rulings to suit the Board’s agenda. The NLRB’s actions, in this case, undermine the credibility of its own adjudicative process.

Judge Ross’s principled stance reminds us that judicial independence is essential for ensuring that decisions are based on the law and evidence—not on external pressure. Her decision to step down speaks volumes about her integrity and the importance of resisting attempts to influence judicial outcomes. The NLRB would be wise to take Judge Ross’s message to heart..