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

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Does partisan ideology influence the voting of members of multi-member adjudicatory bodies at “independent agencies”? 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. Few scholars to date, however, have systematically studied whether partisan panel effects occur in administrative adjudication. In this Article, I explore the impact that partisan ideology and panel composition have on the vote choices of an administrative agency rumored to be one of the most partisan: the National Labor Relations Board (“NLRB”). Employing an original dataset of close to 3,000 NLRB decisions from the William Jefferson Clinton and the George W. Bush (“Bush II”) administrations (1993-2007), this Article 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 to reach a decision favoring labor increases monotonically with each additional Democrat added to the panel. I also find that the partisanship effect is generally asymmetric, 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 behave in especially partisan ways. I further find that political actors—such as 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 ideology 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 agencies that have multi-member adjudicatory bodies who do all or primarily all of their work through adjudication as opposed to rulemaking.

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Berkeley Journal of Employment and Labor Law

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