FOX News: Employers hoping for an end to labor pains after NLRB picks ruled 'unconstitutional'
By Perry Chiaramonte
March 04, 2013
Foxnews.com
Workers at a sandwich shop allowed to tell customers food handlers may have the flu. A car dealer told his policy that employees be courteous to customers is illegal. And employees at a nursing home told they can’t keep complaints and concerns about co-workers confidential.
Over the last year, the National Labor Relations Board has made 341 rulings, including some that have prompted critics to call it the most activist, pro-worker board ever. And now that a federal court has ruled the current board was put together with unconstitutional recess appointments by President Obama, those holdings are suddenly in question.
“At no time have I seen an NLRB more aggressively overrule long-standing precedent,” said Mark Carter, a West Virginia-based labor law attorney with nearly three decades of experience. “They have taken 'change' to an aggressive level beyond anything I’ve seen.”
The independent government agency is governed by a five-person board, all of its members hand-picked and appointed by the president. The average salary for a sitting board member can be between $150,000 and $165,000 a year and they are charged with ruling on decisions pertaining to unfair labor practices and issues over the course of a five-year term.
Republican members of the House cried foul when President Obama appointed Mark Gaston Pierce as chairman and Richard F. Griffin, Jr. and Sharon Block as members during a recess appointment months after GOP members of the Senate attempted to block his choices in a filibuster.
The debate was brought before the D.C. Circuit Court of Appeals, which ruled in January that the appointments were a violation of the Constitution because the Senate was technically still in session during a 20-day recess.
While a decision looms as to the fate of the current board members, some of the decisions they ruled on in the past year could be completely voided.
Among the decisions made by the board or the administrative law judges that get the cases first:
A Minneapolis-area cluster of Jimmy John’s sub shops was forced to hire back six employees it fired for posting warnings around the neighborhood that sandwiches might be made by sick employees. Labor law has never permitted employees to disparage their employers without sanction, but here, the administrative law judge ruled the workers were simply trying to bargain for sick leave. While the board never ruled on the case, which is being appealed, it did send out a press release trumpeting the decision. Not only did the workers get their jobs back, they received back pay.
A Lake Bluff, Ill., BMW dealer got the green light to fire a salesman who posted on his Facebook page a picture of a Land Rover that ended up in a pond when his colleague allowed a 13-year-old to test drive it. The board, in one of its first social media cases, ruled that the posting was an unprotected activity. But when the salesman argued that his firing was actually due to other posts, about Knauz Motors having a picnic for customers, the three-member panel said the employer’s “courtesy” rule regarding employee communications was unlawful because employees would be led to believe that they would be unable to make ANY statements of a critical nature. So, even in upholding the employee’s firing, the board did order Knauz Motors to remove the courtesy rule from the employee handbook.
Read more: http://www.foxnews.com/politics/2013/03/04/unconstitutional-nlrb-employers-worst-nightmare/#ixzz2NAqFupAn
March 04, 2013
Foxnews.com
Workers at a sandwich shop allowed to tell customers food handlers may have the flu. A car dealer told his policy that employees be courteous to customers is illegal. And employees at a nursing home told they can’t keep complaints and concerns about co-workers confidential.
Over the last year, the National Labor Relations Board has made 341 rulings, including some that have prompted critics to call it the most activist, pro-worker board ever. And now that a federal court has ruled the current board was put together with unconstitutional recess appointments by President Obama, those holdings are suddenly in question.
“At no time have I seen an NLRB more aggressively overrule long-standing precedent,” said Mark Carter, a West Virginia-based labor law attorney with nearly three decades of experience. “They have taken 'change' to an aggressive level beyond anything I’ve seen.”
The independent government agency is governed by a five-person board, all of its members hand-picked and appointed by the president. The average salary for a sitting board member can be between $150,000 and $165,000 a year and they are charged with ruling on decisions pertaining to unfair labor practices and issues over the course of a five-year term.
Republican members of the House cried foul when President Obama appointed Mark Gaston Pierce as chairman and Richard F. Griffin, Jr. and Sharon Block as members during a recess appointment months after GOP members of the Senate attempted to block his choices in a filibuster.
The debate was brought before the D.C. Circuit Court of Appeals, which ruled in January that the appointments were a violation of the Constitution because the Senate was technically still in session during a 20-day recess.
While a decision looms as to the fate of the current board members, some of the decisions they ruled on in the past year could be completely voided.
Among the decisions made by the board or the administrative law judges that get the cases first:
A Minneapolis-area cluster of Jimmy John’s sub shops was forced to hire back six employees it fired for posting warnings around the neighborhood that sandwiches might be made by sick employees. Labor law has never permitted employees to disparage their employers without sanction, but here, the administrative law judge ruled the workers were simply trying to bargain for sick leave. While the board never ruled on the case, which is being appealed, it did send out a press release trumpeting the decision. Not only did the workers get their jobs back, they received back pay.
A Lake Bluff, Ill., BMW dealer got the green light to fire a salesman who posted on his Facebook page a picture of a Land Rover that ended up in a pond when his colleague allowed a 13-year-old to test drive it. The board, in one of its first social media cases, ruled that the posting was an unprotected activity. But when the salesman argued that his firing was actually due to other posts, about Knauz Motors having a picnic for customers, the three-member panel said the employer’s “courtesy” rule regarding employee communications was unlawful because employees would be led to believe that they would be unable to make ANY statements of a critical nature. So, even in upholding the employee’s firing, the board did order Knauz Motors to remove the courtesy rule from the employee handbook.
Read more: http://www.foxnews.com/politics/2013/03/04/unconstitutional-nlrb-employers-worst-nightmare/#ixzz2NAqFupAn
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