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January 14, 2014

Why NLRB v. Canning Happened

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In Monday’s Noel Canning case, the Supreme Court considered whether the president can make recess appointments during Senate sessions. Few observers expect the Supreme Court to answer yes. Pundits have paid much less attention, however, to why he would want to stretch the constitutional limits on his authority: to unionize workers through regulation.

Private-sector union membership has fallen dramatically over the past generation. Unions represented almost a quarter of private-sector workers in the late 1970s. Today they represent just one in 15. This has happened because fewer workers today want to unionize. Polls show just a tenth of non-union workers would join a union. Unions have grown out of touch with modern workers’ needs.

Rather than accept this, or reform to become relevant, unions want the government to make it harder to decline their services. In 2009 they tried to pass the Orwellian “Employee Free Choice Act,” which would have eliminated secret-ballot elections in union organizing elections. Forcing workers to vote in front of union organizers would significantly bolster union ranks – but that was a bridge too far for even the Congress that passed Obamacare. Since then unions have turned to the National Labor Relations Board (NLRB) to boost their membership.

Senate filibusters prevented President Obama from appointing union activists to the NLRB. So unions urged the president to make recess appointments. Then, when the Supreme Court announced it would hear Noel Canning, Senate liberals forced through new NLRB nominees under threat of abolishing the filibuster (only to do so later nonetheless). Once on the board, Obama’s appointees drastically reinterpreted labor law. Among other changes they have:

Proposed shortening union election seasons to under three weeks. These “snap elections” would give companies little time make a case against unionizing. Of course, if workers won’t vote for a union after hearing opposing arguments they are probably better off without it.

Allowed unions to >cherry-pick bargaining units by job title. The board even certified a union in New York’s Bergdorff Goodman department store consisting solely of women’s shoes associates on the second and fifth floors. The NLRB now allows unions to selectively disenfranchise workers who oppose taking the risk of unionizing and seeing their company go under. Unions can simply cut them out of the bargaining unit and the election.

Decided workers cannot ask for an independent audit of their union’s books. Supreme Court precedent prevents unions from forcing workers to subsidize their political activism. Now workers must take union bosses at their word on how they spend on politics.

These changes benefit unions institutionally at the expense of workers. They hardly justify ignoring constitutional limits on executive power or abolishing the filibuster.

 - James Sherk is a senior policy analyst in labor economics at the Heritage Foundation.

Originally appeared on National Review Online

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