The D.C. Circuit recently criticized a hospital’s challenge to a rule that the National Labor Relations Board (NLRB) promulgated more than two decades ago.
In 1989, the NLRB created the Health Care Rule to limit the number and types of bargaining units that are allowed in acute-care facilities. “The whole idea was to avoid proliferation of bargaining units on the grounds that if there were too many small units within a hospital, it could lead to more labor disputes, strikes and work interruptions—and thereby hurt patients,” says Bernard Jeweler, a shareholder at Ogletree Deakins and former assistant general counsel at the NLRB.
The D.C. Circuit wasn’t gentle in tossing San Miguel’s case. In the opinion, Judge Laurence Silberman wrote that the court saw “zero merit” to the hospital’s argument that the Health Care Rule violated the NLRA. He said that although the NLRA stipulates that the extent of employees’ organization cannot be the controlling factor in determining a unit, “consideration of that factor among others is entirely appropriate.”