Isolated and Politicized: The Nlrb's Uncertain Future

Abstract

The National Labor Relations Board has managed to remain unusually detached or isolated in its decision-making even as it has come to operate in an openly partisan manner. There is a certain paradoxical quality to the coexistence of these two descriptors for Board conduct: isolation in agency performance ordinarily suggests a neutral separation from the political process whereas politicization implies a close connection to the elected branches. The explanation for this odd pairing involves a number of factors: some reflect political realities beyond the agency's ability to control, others relate to the structure of the NLRA, and still others are a function of internal agency choices. The article discusses and analyzes these various factors, drawing comparisons to labor law experience in other countries, and also contrasting the NLRB's path with that followed by two other New Deal agencies.

The Board's isolation and politicization have left it in an unfortunate position. As the agency principally charged with overseeing the development and retention of collective bargaining relationships, it seems incapable of halting or even responding to the movement away from such relationships. The dramatically reduced role played by unions and collective bargaining in the U.S. private economy is hardly attributable solely or even primarily to the workings of the legal regime. At the same time, the Board's strategic choices over a period of decades have meant that it has failed to contribute to - and may well have inhibited - a constructive response to these developments.