Employers hoping for an end to labor pains after NLRB picks ruled 'unconstitutional’

Even though workers at Jimmy John's franchises in Minneapolis hung posters around town warning that sandwiches could be made by flu-stricken workers, their employer didn't have the right to fire them, according to the National Labor Relations Board. That was just one of several odd decisions the board made last year, say critics.

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.

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