The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

• Author: Cole D. Taratoot
• Date: 01 January 2014
• Published date: 01 January 2014
• DOI: http://doi.org/10.1111/lapo.12013

The Influence of Administrative Law Judge and

Political Appointee Decisions on Appellate

Courts in National Labor Relations

Board Cases

COLE D. TARATOOT

Scholars have long been simultaneously concerned with the factors that influence

appellate court decision making and the level of deference that the courts allow

for agencies. However, scholars have treated administrative agencies as unitary

actors with a single level of decision making, but in reality agency decisions

involve input from multiple actors within the agency. I argue that appellate courts

rely more heavily on decisions made by actors in the bureaucracy with greater

levels of expertise and who are less politically motivated as cues in their decision

making. This theory is bolstered by legal precedent in the area of administrative

law that suggests courts should more heavily rely on the expert judgment of

administrative judges. Thus, as a result of their increased expertise, appearance of

political neutrality, and institutional support, courts will be more reliant on deci-

sions issued by administrative law judges (ALJs) than those issued by the political

appointees as cues in their decision making. Using over 300 unfair labor practice

decisions issued by the federal appeals courts on review of cases from the National

Labor Relations Board (NLRB or Board), I develop a model of appeals court

decision making in unfair labor practice cases as a function of the initial decision

of the ALJ, the final order of the political appointees of the NLRB, case charac-

teristics, the ideology of the deciding appeals court panel, Supreme Court influ-

ence, and economic factors. Though the ideology of the court plays a role in its

decision making, cues from ALJ decision making and that of the Board weigh

more heavily in appellate court outcomes. However, cues from ALJ decisions play

the most consistent role in appellate court decision making, even in more difficult

cases. This has important implications for agency strategy in courts and suggests

that future research should consider the influence of lower-level decision making

over appellate court decision making in the area of administrative law.

The author would like to thank the reviewers of this article for their comments and suggestions.

In addition, the author would like to thank the following people for their suggestions and help

with this article: David C. Nixon, Robert M. Howard, Sunjoo Kwak, and Renato Corbetta.

I would also like to thank my research assistant, Anthony Del Rio, for his hard work in the

construction of the data set used in this project.

Address correspondence to Cole D. Taratoot, Department of Government, University of

Alabama at Birmingham, 1720 Second Street South, Birmingham, AL, USA, 35294. Telephone:

(205) 934-2339; E-mail: taratoot@uab.edu.

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LAW & POLICY, Vol. 36, No. 1, January 2014 ISSN 0265–8240

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12013

INTRODUCTION

Because of the direct and significant role that unelected bureaucrats

play in the lives of the public, scholars have long concerned themselves

with the means for effective oversight of the bureaucracy in a democratic

society. Scholars have identified the lower courts as one possible means for

ensuring effective oversight and control over federal agencies (Canes-

Wrone 2003; Howard and Nixon 2002, 2003; Humphries and Songer 1999).

Courts ensure that agencies do not overstep their statutory bounds and

fulfill their legislative and executive mandates when using discretion in the

creation of policy. The degree of control that courts exercise over agencies

can be said to be a function of the level of deference that the courts afford

agencies.

At the same time, scholars have been interested in identifying the factors

that influence judicial decision making at the appellate court level (see,

e.g., Hettinger, Lindquist, and Martinek 2004; Klein 2002; Humphries

and Songer 1999; Van Winkle 1997; Songer and Haire 1992). In the course

of this research, scholars have placed courts within a “hierarchy of justice”

and attempted to discover the interactions between levels of the federal

judiciary and the effects of this interaction on judicial decision making

(Klein 2002, 2003; Songer, Segal, and Cameron 1994). Thus, collectively,

scholars have been motivated to not only determine the factors that influ-

ence judicial decision making in the appellate courts, but also the factors

that increase or decrease the level of deference that courts afford to admin-

istrative agencies.

However, in the area of administrative law, scholars have treated admin-

istrative agencies as unitary actors with a single level of decision making or

one single output/decision. In actuality, the adjudication process involves the

initial decision of an administrative law judge (ALJ) as well as the final order

of the political appointee(s), creating a separate hierarchy of justice. Thus,

when disagreement occurs between bureaucratic actors, this not only con-

founds the traditional concept of deference, but it also provides the court

with multiple cues that could potentially influence the decision of the court.

Questions are then raised as to whether these lower-level decisions play a role

in appellate court decision making, and, if so, which of these actors’ decisions

is more influential in appellate court decision making? Answers to these

questions directly speak to the influence of lower-level administrative deci-

sions on subsequent review by the federal appellate courts but also indirectly

provide a more detailed explanation of the nature of judicial deference to

administrative agencies.

I theorize that courts, given growing caseloads and in an effort to promote

efficiency in decision making, will rely on cues from the decisions of lower-

level actors in their own decision making. However, faced with conflicting

cues, courts will be more willing to defer to and rely on decisions made

by actors in the bureaucracy with greater levels of expertise and less likely to

36 LAW & POLICY January 2014

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

rely on politically appointed and/or motivated bureaucratic actors (Unah

1997; Sheehan 1992). The increased level of deference to those with greater

expertise should come as no surprise given that the primary normative argu-

ment in favor of deference is to help promote the use of expertise in admin-

istrative decision making. As an initial test of this general theory, this study

examines the relationship between the appellate courts, political appointees,

and ALJs in the context of the National Labor Relations Board (NLRB or

Board). I hypothesize that as a result of their increased expertise in the area

of labor policy, labor law, and NLRB case law, appearance of political

neutrality, institutional support, and appellate court decision making will be

more heavily influenced by the initial decisions issued by ALJs than the final

orders of political appointees.

Thus, I examine how ALJs and political appointee decisions affect

federal appellate court decision making when reviewing adjudicatory

actions of agencies in the context of unfair labor practice (ULP) cases at

the NLRB. Using over 300 decisions issued by the federal appeals courts,

I develop a model of appeals court decision making in ULP cases as a

function of the initial decision of the ALJ, the final order of the poli-

tical appointees of the Board, case characteristics, the ideology of the

deciding appeals court panel, Supreme Court influence, and economic

factors.

As expected, the ideology of the court plays a role in its decision making,

but does not play as strong of a role as the initial decision of the ALJ

and the final order of the Board. However, Board influence is limited to

certain situations, while ALJ influence plays a consistent role in appellate

court decision making. Results also show that court deference to adjudica-

tory decision making is the greatest when the ALJ and the Board agree.

However, in instances where disagreement occurs, the court is more consis-

tent in its reliance on the decision making of the ALJ. A second analysis

of a subset of appellate court decisions, in more controversial cases, dem-

onstrates that ALJ’s decision is the most significant determining factor

in the appellate court’s decision. These findings have important implica-

tions for agency strategy in courts and reveals that judicial deference to

administrative agencies is a more complicated matter than previous litera-

ture suggests.

This article begins by describing the processing of cases at the NLRB.

Next, the article reviews previous studies that have been conducted in this

area in order to develop a theory as to why we would expect courts to

rely more heavily on the decision making of ALJs than that of political

appointees. This theory is then placed within the broader context of an

appeals court decision-making model predicated on legal and attitudinal

influences. Next, I present my data, including summary statistics, along with

my methodology. Results are then presented along with the elimination of

alternative explanations of court decision making. I conclude by discussing

the implications of the findings presented here.

Taratoot ALJ/BOARD IMPACT IN APPEALS COURTS 37

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary