By Ashley S. Kircher.

Last Friday, the D.C. Circuit held that the NLRB properly certified the NUHHCE District 1199 NM as the representative of a “wall-to-wall” bargaining unit that included professional and nonprofessional employees of a New Mexico hospital, and found that the Hospital violated Sections 8(a)(1) and (5) of the NLRA when it refused to bargain with the union (San Miguel Hosp. Corp. v. NLRB, No. 11-1198, Nov. 2, 2012).  In a scathing opinion in which the court referred to some arguments advanced on behalf of the Hospital as “silly” and “a doozy,” the D.C. Circuit denied the Hospital’s petition for review and granted the Board’s cross-applications for enforcement. 

By way of background, in 2007, the Union filed a representation petition seeking an election for a bargaining unit combining all of the Hospital’s onsite professional and nonprofessional employees, except for guards and physicians.  The NLRB regional director was required to (and did) hold a separate election among the professionals to determine whether they wanted to be included in a unit with nonprofessionals.  The professionals voted 48 to 19 to be included in the unit with the nonprofessionals, and the two groups together voted 121 to 73 for union representation.  The Hospital filed 24 objections to the election, but an NLRB hearing officer recommended that all of them be overruled.  The Hospital subsequently refused to bargain with the Union, and the Board ultimately found this refusal unlawful.   

In its petition for review, the Hospital argued that the Board’s 1989 Health Care Rule (29 C.F.R. §103.30(a)), which lays out the appropriate bargaining units in the health care industry, was illegal.  Specifically, the Hospital contended that the Rule violated Section 9(c)(5) of the Act, which prohibits the Board from using “the extent to which the employees have organized” as the controlling factor in unit determination.  The court found no merit to this argument, observing that Section 9(c)(5) requires only that the extent of organization not be the controlling factor, and that the Board’s consideration of that factor among a number of others in formulating the Rule was entirely lawful. 

The Hospital also contended that the Board had violated the Health Care Rule by combining professional and nonprofessional employees in a unit without finding “extraordinary circumstances.”  The court rejected this argument, observing that it was based upon “an obvious misreading of the Rule.”  The court did note that combined units such as the one at issue can be objectionable if they transgress the community of interest standard, but concluded that because the Hospital never raised this issue before the NLRB hearing officer, the Hospital had waived any such challenge. 

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 with the following widely understood admonition:  “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 moral of the story:  when challenging a combined unit under the Board’s Health Care Rule, be sure to raise the community of interest argument at the initial hearing before the Board officer, and when drafting appellate briefs, don’t take a “kitchen sink” approach.