John Paul Stevens

“ Based on that experience, the Board formed the "considered judgment" that "acute care hospitals do not differ in substantial, significant ways relating to the appropriateness of units." App. 188-189. Moreover, the Board argues, the exception for "extraordinary circumstances" is adequate to take care of the unusual case in which a particular application of the rule might be arbitrary.
We do not believe that the challenged rule is inconsistent with the Board's earlier comment on diversity in the health care industry. ”

“ The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. ”

“ Petitioner also suggests that the admonition "is an authoritative statement of what Congress intended when it extended the Act's coverage to include nonproprietary hospitals." Brief for Petitioner 30. Even if we accepted this suggestion, we read the admonition as an expression by the Committees of their desire that the Board give "due consideration" to the special problems that "proliferation" might create in acute care hospitals. Examining the record of the Board's rulemaking proceeding, we find that it gave extensive consideration to this very issue. ”

“ This section, read in light of the policy of the Act, implies that the initiative in selecting an appropriate unit resides with the employees. Moreover, the language suggests that employees may seek to organize "a unit" that is "appropriate"-not necessarily the single most appropriate unit. ”

“ Interstate Commerce Commission, 249 U.S.App.D.C. 389, 393-394, 776 F.2d 355, 359-360 (1985) (Scalia, J.) ; Aberdeen & Rockfish R. Co. v. United States, 682 F.2d 1092, 1105 (CA5 1982) ; cf. FDIC v. Mallen, 486 U.S. 230, 247, 108 S.Ct. 1780, 1791, 100 L.Ed.2d 265 (1988) ("A statute such as this is not to be held unconstitutional simply because it may be applied in an arbitrary or unfair way in some hypothetical case not before the Court") . ”