Academic journal article
By Schneider, Martin
Journal of Public Administration Research and Theory , Vol. 14, No. 1
"No carrot and no stick": This is how Edward B. Miller (1999, 60), former chairman of the National Labor Relations Board (NLRB), summarizes the employment system operating on the NLRB's administrative law judges. Like other employees in public administration, judges are afforded employment security and receive a fixed salary unrelated to performance. As a consequence, judges hold considerable discretion in their job and would be able to neglect the execution of their professional duties. How do public agencies achieve good performance, defined as the effective execution of professional roles, among their employed professionals when monetary rewards and effective sanctions are infeasible?
The literature on professionalism provides two seemingly opposing answers: Good performance may be secured either by tight bureaucratic control and supervision or by relying on professional ethics and morality (Matthews 1991, 747; Waters 1989). This article provides evidence that both of these answers may in fact complement each other in securing good performance. Theoretically, it is argued that performance can be managed by drawing on organizational culture or a sense of mission among professional employees (e.g., Moon 2000; Rainey and Steinbauer 1999; Simon 1998; Wilson 1989). This type of performance management combines soft control with a plea to professional ethics. To illustrate this idea empirically, the article compares attempts to manage performance within two judiciaries: the U.S. NLRB's Division of Judges and the German Labor Courts of Appeal (Landesarbeitsgerichte). In both judiciaries, experienced judges are granted a high degree of professional autonomy in adjudicating labor cases, and to promote judicial independence, judges are tenured and receive a fixed salary. Exemption from monetary incentives and effective sanctions would, in principle, allow professionals to neglect performance (Dewatripont, Jewitt, and Tirole 1999; Wilson 1989, 155). For instance, judges could procrastinate, inducing lengthy procedures and a large case backlog. At the same time, professionalism endows judges with a strong common culture. Therefore, maintaining and directing culture are techniques for managing performance. Although the institutional background differs, observed practices in the two judiciaries are indeed very similar, and they are more in line with the idea of management by culture than with either tight bureaucratic control or pure professional ethics.
The case study findings rely on information gained from document analysis and interviews. The most important sources of information were interviews with two presidents and one vice president of the Labor Courts of Appeal in Germany and interviews with the chief administrative law judge, one associate chief administrative law judge, and two administrative law judges in the NLRB. The German interviews were conducted in 1999, 2000, and 2001; the U.S. interviews, in 2001.
The article is organized as follows: the first section lays out the institutional background in each country and characterizes the judges' task as a professional job: complex, with high skill demands, and performed in autonomy (Mintzberg 1979, 348ff). The resulting danger of negligence in performance can be alleviated by drawing on professional norms and values. The next section examines this idea from the perspective of organizational culture (in particular, O'Reilly and Chatman 1996), and the third interprets the observed practices of performance management in both judiciaries as attempts to influence culture. The concluding section explains why organizational culture provides a more fruitful perspective on performance management than the traditional perspectives do.
INSTITUTIONAL BACKGROUND: THE PROFESSIONAL JOB OF LABOR JUDGES IN THE UNITED STATES AND GERMANY
The NLRB is the U.S. federal agency that administers the National Labor Relations Act. It oversees representation elections in plants and seeks to prevent and remedy so-called unfair labor practice cases, that is, unlawful actions of employers, employees, or unions in dealing with each other. …