Hospital’s Challenge to NLRB Health care rule Denied

A hospital challenged the National Labor Relations Board's (NLRB) certification of the union as the representative of a "wall to wall" bargaining unit of the hospital's professional and non-professional employees. The hospital claimed that the Health Care Rule (which limited the number and type of bargaining units allowed in an acute care setting) violated the National Labor Relations Act, Section 9(c)(5) because it endorsed the extent of a union's organization as the controlling factor in determining bargaining units. The D.C. Circuit Court of Appeals, however, rejected this argument, as well as the hospital's argument that the NLRB violated the Rule because the union was required to show, and the Board was required to find, extraordinary circumstances to join together a number of the Rule's designated units. The Court of Appeals, however, found that such a showing was not required under the Rule.

The Court further rejected the hospital's procedural objections to union certification, which involved the timing of the Board's order and a purported untimely complaint amendment. Accordingly, the petitions for review were denied and the Board's cross-applications for enforcement were granted.

The Court found it "regrettable" that the hospital appeared to simply be seeking "the inevitable delay that review of Board Orders affords." The Court concluded that "the hospital unleashed a blizzard of arguments to challenge the Board's unfair-labor-practice orders. It might be appropriate to suggest that in appellate argument, the proverbial rifle is preferable to a machine gun."

The Court's ruling means that acute care facilities facing union organizing efforts may still continue to rely on the long-standing Health Care Rule for guidance on appropriate units. The Court's ruling also means that it is best not to take the "kitchen sink" approach when drafting an appellate brief. For additional information read San Miguel Hospital Corporation v. National Labor Relations Board , Case No. 11-1198 (C.A., D.C., November 2, 2012)