American Hospital Association

1
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

2
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 . . ..

3
Boards has the authority to adopt such a unit
determination rule.

• No inconsistency between rule and in each case
  language
• 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 them in a like manner.

4
Implications of Rule-Making

• Benefits
• Certainty in resolving issues that fall under the
  rule
• Costs
• Due process, more difficult for a party that
  believes its interests are not served by the rule
  to have its argument heard.