Judicial review of NLRB rulemaking in the health care industry: implications for labor and management.

In 1987 the National Labor Relations Board set out to promulgate a rule to define the appropriate bargaining units for the health care industry, making the first use of its substantive rulemaking powers. This departure from the traditional process of adjudication of unit determination issues occurred because of thirteen years of NLRB frustration resulting from congressional admonition against proliferation of bargaining units and subsequent inconsistent judicial interpretation of that admonition. This article traces the factors that led to the decision to rulemake, discusses the development of the rule itself, and examines the rule's judicial experience to date. It presents empirical findings of hospital union election activity during the period from 1985 through 1987 that confirm the thesis that bargaining unit size is a significant variable in election outcomes. Finally, the authors assess the likely outcome of the impending Supreme Court decision on the rule, along with implications for labor and management.