American Hospital Association
• Does the Board have the legal authority under the
NLRA to adopt a rule determining eight
presumptively appropriate bargaining units in
acute care hospitals?
• What is a RULE? - an agency statement of
(usually) general applicability and future effect for
all affected parties
• Compare to ADJUDICATION: a decision in a
particular case; it binds only those parties involved
in the case, although it has precedential value for
similar cases 1
Statutory Provisions At Issue
• Sec. 6. The Board shall have authority from time to time to
make, amend, and rescind, in the manner prescribed by
subchapter II of chapter 5 of title 5, such rules and
regulations as may be necessary to carry out the provisions
of this subchapter.
• Sec. 9(b) . The Board shall decide in each case . . . the unit
appropriate for the purposes of collective bargaining . . ..
Board’s has the authority to adopt
such a unit determination rule.
• No inconsistency between rule and “in each case”
– Relevant only when there is a dispute
– Board may be guided by rules, policies, and principles.
• Rule-making authority under Section 6 broad
– No indication Congress meant to carve out an exception
for bargaining unit determinations
• If Congress believes Board rule is inconsistent with its
“admonition” on the undue proliferation of bargaining
units, it could act
• Rule not “arbitrary and capricious;” Board went through
rule-making procedure (notice, responses, etc.);
experience; had reasons for its rule.
• Acute care hospitals sufficiently similar to justify treating them3
in a like manner.
Implications of Rule-Making
– Certainty in resolving issues that fall under the
– Due process, more difficult for a party that
believes its interests are not served by the rule
to have its argument heard.