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. Board’s 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.