Last week, the National Labor Relations Board decided Chemtrade West US LLC, a case about when management can ask questions related to union activity. The panel that decided the case included all Democratic appointees—a lineup you could have predicted from the result. The panel held that management may not ask a union member about his conversations with a union representative even when those questions are relevant to an ongoing lawsuit. In fact, management cannot ask those questions even when it does so during a formal deposition, and even when the answers would support its main legal defense.

The result was jarring, but not surprising. Board decisions have become increasingly easy to predict solely from the panel’s lineup. Studies have shown that Republican panels lean heavily toward management, and Democratic ones lean even more heavily toward unions. The gap is more than statistically significant: it dictates the outcome in nearly half of all cases. In other words, Board panels do not decide cases as disinterested arbitrators. They do not apply neutral legal principles or independent expertise. Instead, they decide cases solely on the principle of cui bono: whose side takes the prize. And that conclusion raises questions about why we continue to treat the Board as a nonpolitical, independent agency—and whether we ever should have.

Ironically, the Board was designed to avoid just this kind of labor v. management partisanship. Before adopting the NLRA, Congress experimented with labor regulation through the National Industrial Recovery Act. Section 7(a) of that Act gave employees the right to collectively bargain through their chosen representatives. To oversee that right, Congress created a new agency, the National Labor Board. The National Labor Board worked less like a government agency and more like an arbitration panel. It included two members representing management, two representing labor, and one representing the public. The Board tried to resolve disputes through negotiation and voluntary compliance. It operated less by command than by persuasion: the parties would work out their differences through private horse trading rather than public regulation.

That approach, however, was seen as one of the NIRA’s major failures. It produced less consensus than resistance. So when Congress tried again under the NLRA, it opted for a more government-centric approach. Rather than staffing the new Board with management and labor representatives, it decided that all Board members would represent the public. The Board would be an independent, expert agency, versed in industrial relations and labor economics. It would develop policy not through mediation and private dickering, but through legal principles and technical expertise.

But that ideal quickly collapsed. Though Congress created the Board for an economic purpose—reducing strikes—it later forbade the Board from hiring economists. The reasons were political. Some in Congress worried that the Board’s initial economic staff had communist and socialist sympathies. The Board’s first chief economist, David Saposs, came under fire for his alleged connections to the Socialist Party. He was also accused of using his position to advance collectivist policies. But rather than repudiate those policies directly, Congress chose to strip the Board of all economic expertise. So the Board, a purportedly economic regulator, became institutionally blinded to economic principles.

Of course, the Board still had to develop labor policy. Something had to fill the institutional gap. And increasingly, that something was politics. For a time, presidents tried to appoint relative moderates to the Board—people who came neither from management nor labor backgrounds. The Board therefore retained a veneer of independence. But as the decades marched on, even that veneer faded. Labor policy became increasingly partisan in the 1970s, when the Carter administration used its appointments to influence labor policy in a pro-union direction. And the pendulum swung back hard in the Reagan administration, when appointees like John Van de Water adopted pro-management positions that are still controversial today.

Those policy swings raised the stakes for Board appointments. Both parties knew that personnel had become policy. So they became increasingly willing to block appointees who held different views. That infighting led eventually to the practice of “packaging” nominees—one nominee for labor, and one for management. Since packaging was the only way to get nominees through, it helped keep the Board staffed. But perversely, it also led to more partisan nominees. A nominee no longer had to pass muster on her own merits; she could be “balanced” by a nominee from the other side. The partisan divide therefore deepened and led to even starker gaps between “labor” and “management” Board members.

The result is a modern Board that functions nothing like what its founders envisioned. The Board now resolves nearly every major case along partisan lines. Chemtrade is only the latest example. Recent Board decisions on issues including union access to property, card-check recognition, and worker classification have split the Board cleanly and predictably. Republican appointees have supported the “management” positions; Democratic appointees, the “labor” ones. There is no longer any need to understand the legal or economic issues to know how the cases will come out. They can be predicted just by doing a headcount.

Nor is this effect limited to high-profile cases. Studies have shown that the strongest predictor of a case’s outcome is a panel’s partisan makeup. An all-Republican panel will side with unions in only 26% of cases. But an all-Democratic panel—like the one that decided Chemtrade—will side with unions in 75% of them. In other words, partisan makeup causes nearly a 50% swing in the likely outcome. And that gap is neither anecdotal nor accidental. It is the result of a deliberate, decades-long turn from expertise to politics.

That change exposes the absurdity of the Board’s structure. The Board is still ostensibly an independent agency; its members serve fixed terms and can be removed only for cause. These protections exist to give the Board space to exercise its ostensible expertise. After all, expertise and politics are the oil and water of public policy: they do not mix, but repel and displace. Yet the Board now holds much less expert water than it does political oil. It is institutionally blinded to the economic effects of its decisions. And its members are selected less for their professional expertise than for their partisan viewpoints.

The result is decisions like Chemtrade—decisions resolved less on their merits than on whose ox gets gored. This is not law; it is not even policy. It is undistilled politics.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].