Political Decision-Making at the National Labor Relations Board: An Empirical Examination of the Board’s Unfair Labor Practice Decisions through the Clinton and Bush II Years

Abstract

Are the members of multi-member adjudicatory bodies at “independent agencies” motivated by partisan ideology in their vote choices? In studying the federal circuit courts of appeals, scholars have found that results of cases vary depending upon the partisan composition of the particular panel hearing a case. However, to date, few have systematically studied whether partisan panel effects occur in administrative adjudication. In this paper, I explore the role that partisan ideology and panel composition have in impacting the vote choices of one of the administrative agencies rumored to be one of the most partisan– the National Labor Relations Board (“NLRB”). Employing an original dataset of almost 3,000 NLRB decisions from the Clinton and Bush years (1993-2007), this paper presents one of the few recent studies of voting patterns at the NLRB on unfair labor practice disputes. I find that the propensity of a panel reaching a decision that favors labor increases monotonically with each additional Democrat added to the panel during much of the time frames under study. I also find that the partisanship effect is unbalanced, meaning that the addition of a single Democrat to an otherwise Republican panel increases the propensity to vote in labor’s favor more so than the addition of a Republican to an otherwise Democratic panel. Homogenous Republican panels – increasingly prevalent in recent years –behave in especially partisan ways. I further find that political actors – such as the Congress, the President and the appellate courts – fail to have a direct impact on NLRB unfair labor practice decisions; rather, the decision of the lower court Administrative Law Judge (“ALJ”) and the partisan composition of the Board have the most impact in influencing whether the NLRB rules for or against labor. These findings have significant implications for a number of controversies, including debates about agency independence as well as questions concerning political diversity on multi-member adjudicatory bodies.