The NLRB received a nasty benchslap from the Eleventh Circuit Court of Appeals recently in a case challenging the NLRB’s interpretation of supervisor status under the NLRA. Lakeland Health Care Associates, LLC v. NLRB. The case arose when a nursing home and long-term care facility refused to bargain with a union that was voted in by a group of Licensed Practical Nurses (“LPN’s) at the facility. The employer refused to bargain because the LPN’s were “supervisors” under the NLRA, and therefore had no right to organize. The NLRB concluded that the LPN’s did not constitute supervisors, upheld the election results and found the employer violated the NLRA when it refused to bargain. The employer appealed to the Eleventh Circuit, which held that the NLRB’s decision was manifestly wrong, and, in fact, completely one-sided. The court repeatedly criticized the NLRB for ignoring or intentionally minimizing the employer’s overwhelming evidence proving that the LPN’s were, in fact, supervisors. In a quote that will be used against the NLRB repeatedly for many years to come, the court stated: “While we are mindful of the limited nature of our review in this appeal, this is not a case in which we merely disagree with the Board’s conclusions. Our review of the record as a whole reveals that the Board meticulously excluded or disregarded record evidence, which, when taken into account, compels a different result.”

The mind-blowing notion that the NLRB would “meticulously exclude or disregard” pro-employer evidence calls to mind Captain Renault’s famous line in Casablanca: “I’m shocked, shocked to find that gambling is going on here.”