Ronald Reagan Has Shaped U.S. Labor Law for Decades

https://onlabor.org/ronald-reagan-has-shaped-u-s-labor-law-for-decades/

January 4, 2024

By Andrew Strom

As we enter a Presidential election year, it’s a good time to think about how Presidents affect workers’ rights. As we get closer to the election, I will remind everyone how bad Donald Trump was for workers, and when I do that, it’s worth noting how long the lingering effects of an anti-worker President can last. Ronald Reagan famously broke a strike by the Professional Air Traffic Controllers Organization (PATCO) in 1981 when he issued an order to fire the 11,000 striking federal employees. Many people view that decision as a symbolic turning point for the labor movement in the U.S. But, what’s less talked about is how Reagan’s appointees to the National Labor Relations Board (NLRB) have made a lasting impact on labor law.

Before Reagan became President, the five members of the NLRB tended to be career government lawyers. Reagan broke that mold by stacking the Board with individuals who had spent their careers representing management. The Reagan NLRB aggressively reversed precedents, and narrowed workers’ rights, and workers are still feeling the effects of a number of key decisions made by the Reagan appointees. This is largely due to agency norms that have only been eroded in recent years. In litigation before the Board, the NLRB’s General Counsel controls the theory of the case, and prior to the Trump Administration, the General Counsel wouldn’t authorize a complaint if conduct was lawful under existing precedent. The Board’s current General Counsel, Jennifer Abruzzo, still adheres to that practice. While she has argued that the Board should reconsider some anti-worker precedents, she will not authorize a complaint where the employer has not committed any violation under current Board law. Moreover, since these cases have been followed for forty years, they have acquired an air of legitimacy that presents an additional obstacle to overruling them.

In 1984, in Rossmore House, the Reagan NLRB announced a new test for determining when it is illegal for an employer to interrogate open union supporters regarding their union sympathies. Previously, the Board had held that questioning union supporters about their reasons for supporting a union was illegal unless the employer had a legitimate reason for asking the questions and gave an assurance against any reprisal. The Reagan Board replaced this rule with a “totality of the circumstances” test that generally allows employers to interrogate open union supporters. Forty years later, this is still the operative test, and employers regularly rely upon Rossmore House to justify asking workers about their support for unionization. For instance, in Bozzuto’s Inc. v. NLRB, the Second Circuit overruled a divided Board and held that an employer’s questioning was not illegal where the employer’s Vice President stopped a worker and asked him, “What’s going on with this union stuff?” The worker responded, “I’m not going to talk about it with you, Mr. Clark.” To the Board majority, the worker’s response showed that he was uncomfortable with the questioning. But, the Second Circuit judges disagreed – to them, the worker’s deflection of the question showed there was no coercion.

To me, what’s notable about the Bozzuto’s case is how much time and money was spent litigating whether the interrogation was coercive. The Second Circuit judges devoted many pages to a discussion of five different factors, including whether the worker was an open union supporter at the time of the questioning, and whether the employer had already committed unfair labor practices by the time of the questioning or whether those unfair labor practices occurred days later. The Board majority had cited more than twenty cases that supported its ruling – the Second Circuit decided all were distinguishable. Back in 1965, Henry Friendly, a widely respected federal judge, explained the problem with the Rossmore House approach – an agency receiving thousands of charges each year shouldn’t “be forced to determine every instance of alleged unlawful interrogation by an inquiry covering an employer’s entire union history and his behavior during the particular crisis and to render decisions having little or no precedential value since the number of distinct fact situations is almost infinite.” Yet, forty years later, we’re still stuck with the Rossmore House multifactor test, and as a result, workers often only learn that they were subjected to illegal interrogation years after the fact.

FULL story at link above.