In San Miguel Hosp. Corp. v. NLRB, ___F.3d___ D.C. Cir. 11/02/12, The DC Court of Appeals affirmed the NLRB’s decision to certify the Union as the sole representative of a unit that comprised professionals and non-professional employees.
The Hospital raised two main arguments.
- The Hospital argued that the Health Care Rule violated Section 9 of the NLRA because it endorses the extent of a union’s organization as the controlling factor in unit determination.
- The Hospital also argued that unit certification is improper when the unit comprises professional and non-professional employees.
The Court responded to these arguments as follows.
- The Court held the argument to have “zero merit.” First, the Court explained, the administrative record makes “quite clear that the factors the Board considered in deciding upon the eight listed units included ‘uniqueness of function; training, education and licensing; wages, hours and working conditions; supervision; employee interaction; and factors relating to the collective bargaining agreement.'” Second, the Court stated that the NLRA only requires that the extent of organization not be the controlling factor. Therefore, the “consideration of that factor among others is entirely lawful.”
- Regarding the second Hospital’s argument, the Court highlighted the fact that the Hospital never challenged this issue. The Court also stated that there is no precedent, in the NLRB or Courts, that addressed this specific issue. As a consequence, the Court concluded that no remand was necessary since the Hospital waived any subsequent challenge.
In plain words, the DC Circuit Court of Appeals reaffirmed two main conclusions, supported by precedent.
First, that if you don’t raise a challenge below — you cannot raise a challenge in appeal.
Second, that the NLRA Section 9(c) provides that the NLRB can use the extent of the organization as a factor, as long as it is not controlling. Since the NLRB used a plethora of factors, it was clear that it did not decide the issue solely on the extent of union organization.
What we can learn from this case is simple. Raise all challenges in the court below to make sure you preserve these challenges in an appeal.