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organizing—with or without the nlrb12322. The Board has the power to define appropriate units by regulation, something ithas done in the case of acute care hospitals. American Hospital Association v.National Labor Relations Board, 499 U.S. 606, 111 S.Ct. 1539, 113 L.Ed.2d 675(1991) (approving 29 CFR § 103.30). While the hospital has the right participatein the hearing, and can ask for a full-blown pre-election hearing on unit issues ifit can show that there are extraordinary circumstances that require modificationof one of the standard eight units, it no longer has the opportunity to turn thesehearings into marathons lasting months or years, as some employers did before thepromulgation of the rule.23. Cynthia Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev.1527, 1527-28 (2002).24. While there are innumerable reasons why the NLRB finds the facts differently thancourts and draws different conclusions from them, one important considerationis the sheer volume of cases that the Board sees. The NLRB has, over the years,developed a body of law on issues such as animus and pretext based on thousandsof cases that have come before it.That constant exposure to all of the varieties of anti-union discrimination and thejustifications offered it by employers not only gives the Board a practical expertisethat district courts simply do not have, but even has a bearing on the way that appellatejudges decide labor law cases. As Brudney, Schiavoni, and Merritt note intheir study of over 1200 labor law cases decided by the circuit courts from 1986through 1993,appellate judges with experience as a management-side attorney inNLRA matters were more likely to side with unions, even to the extent of reversingthe NLRB, than their colleagues with employment law experience that did notinclude NLRA. James J. Brudney et al., Judicial Hostility Toward Labor Unions?Applying the Social Background Model to a Celebrated Concern, Ohio St. U. L. J.,1675 (1999) available at http://www.bna.com/bnabooks/ababna/nlra/2000/judhos.pdf.25. Indeed, as Weiler points out, even the individual remedy of reinstatement falls shortof undoing the harm that discharging a union activist can do to an organizing drive.Weiler, supra note 4 at 1788-89.26. Art Levine, Missing Lesson From the Mine Tragedy: Union-Busting = Death,Truthout, April 12, 2010, at http://www.truth-out.org/missing-lesson-frommine-tragedy-union-busting-death58501.