Business As Usual At NLRB Despite Circuit Court Rebuke

By Fred Wszolek

Last month, President Obama’s National Labor Relations Board was rebuked by the 11^th Circuit of Appeals.  In a decision denying enforcement of the Board’s order against an employer the court said that it was not “merely disagreeing with the Board’s conclusions.”  It charged that the NLRB “meticulously excluded or disregarded record evidence, which, when taken into account, compels a different result.”

In the case, known as Lakeland Health Care Associates v. NLRB, the Board, with Republican Brian Hayes in dissent, denied the employer’s request for review of a regional director (RD) decision.  The RD had held that the licensed practical nurses the United Food and Commercial Workers Union (UFCW) wanted to represent were “employees” under the National Labor Relations Act entitled to unionize, not supervisors who may not.  The 11^th Circuit detailed the evidence, quoting at length from the transcript, and flatly rejected the Board’s descriptions of the evidence as “in conflict,” “inconclusive” or “conclusory.”  According to the court, “It was none of these.”

One would expect members of a quasi-judicial agency who are charged with upholding the law and who should be concerned about the agency’s reputation with the circuit courts to exercise a heightened degree of care when asked a few weeks later to review another strongly contested RD decision that finds no supervisory status.  Not so for Obama’s labor board.  The other day, three Board members declined to review the record in a case in which the employer, ETP Magnetic Corp, persuasively argued that its team leaders supervise the company’s 87 production line employees and that the RD’s decision to the contrary disregarded record evidence.  The employer’s petition is peppered with citations to the record which at a minimum called for the record’s review.

But care in finding the facts and judgment in applying the law is not the modus operandi of the President’s NLRB.  The majority members have been charged by Obama and his Big Labor supporters with making union organizing easier.  The facts and the law control only to the extent they serve that end.  Now, it is easier for union bosses to organize if they have the support of leaders on the plant floor.  Supervisors are leaders on the plant floor as well as persons with authority over the workers (to discipline, assign work, etc.), which enables them to strongly influence how workers will vote.  Consequently, labor bosses are all in favor of having supervisors found to be employees and the NLRB is more than willing to oblige them.  Wrongly finding employee status as the Board did in Lakeland, and which it may well be doing in ETP Magnetic Corp, is simply business as usual for the Obama board.