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Paul M. Secunda, Politics Not as Usual: Inherently Destructive Conduct, Institutional Collegiality, and the National Labor Relations Board, 32 Fla. St. U. L. Rev. 51 (2004) © Florida State University Law Review

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32 Florida State University Law Review 51 (2004)


The National Labor Relations Board (Board or NLRB) is a collegial administrative body whose adjudications are not significantly tainted by the blight of political bias. Nonetheless, it has been roundly assumed by most commentators that the Board engages in politically motivated decisionmaking because of the natural affinity between conservative Republican Board Members and employers on the one hand, and liberal Democratic Board Members and unions and individual employees on the other.

Yet, this Article's empirical study of agency adjudication at the NLRB - involving a comprehensive examination of all Board cases implementing the highly indeterminate inherently destructive conduct standard - covincingly suggests otherwise. Instead, it appears that Board Members are able to overcome their ideological biases and arrive at a surprising number of consistent decisions in order to foster the institutional integrity of their organization. This Article posits that the concept of institutional collegiality, developed by Judge Harry T. Edwards in the domain of federal appellate court decisionmaking, helps best explain how this counterintuitive result is possible in the midst of a purportedly partisan agency environment and under circumstances where amorphous legal standards would appear to permit the most aggressive forms of political adjudication.

The ramifications of these empirical findings are at least three-fold. First, if Board Members do not consider their own political interests in making inherently destructive conduct determinations, the Board gains stature not only in the eyes of the Supreme Court and other reviewing courts, as Professor Summers has observed, but also increases its credibility in the eyes of labor and management groups that appear before it. Second, such consistent adjudicative outcomes assist parties in planning their future conduct and predicting the legality of their conduct, thereby fostering a more constructive labor relations environment throughout the country. Third, and perhaps most significantly, this empirical study suggests that institutional collegiality is playing a central and pivotal role in administrative agency adjudications. And although one study should not be interpreted too broadly, by establishing that Board Members are successfully able to act in a collegial manner by separating their political ideologies from their institutional roles and by seeking to get the law right, this Article confirms that agency adjudication can indeed play a valuable role in protecting the increasing number of individuals who seek vindication of their rights in front of these administrative tribunals.

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