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.