Company wants U.S. SC to consider constitutionality of recess appointments

By Jessica M. Karmasek | Feb 5, 2013

WASHINGTON (Legal Newsline) -- A company that manages sub-acute and long-term nursing care facilities filed an emergency application to the U.S. Supreme Court Monday, asking it to consider the constitutionality of President Barack Obama's recently-invalidated recess appointments.

Last month, the U.S. Court of Appeals for the District of Columbia ruled that the President's "intrasession appointment" of three new members to the National Labor Relations Board was an unconstitutional abuse of power.

Just as the D.C. Circuit's decision involved an NLRB-related case, the emergency application filed by HealthBridge Management LLC does as well.

In its application to Justice Ruth Bader Ginsburg Monday, HealthBridge questioned whether the NLRB can seek relief under section 10(j) of the National Labor Relations Act in the absence of a quorum by delegating authority to the board's general counsel.

The NLRA authorizes the NLRB to seek preliminary injunctive relief to protect the board's jurisdiction while the board deliberates before taking final action.

The case at issue involves HealthBridge and five facilities operated in Connecticut managed by the company. New England Health Care Employees Union District 1199 represents employees at the five facilities.

Following 38 bargaining sessions with the union over the course of more than 16 months, HealthBridge concluded that the parties were at a "good faith and lawful impasse" and on June 17, 2012 implemented "last, best and final" bargaining proposals.

The union responded by going out on strikes at each of the five facilities, with about 700 members walking off their jobs on July 2, 2012.

According to the company, the union members committed a series of "unconscionable acts of medical sabotage" that put the facilities' residents at "immediate and significant risk."

Some of those acts included, according to the company's application:

- Mixing up names on patients' doors and photographs on patients' medical records for patients in the Alzheimer's ward of one of the facilities;

- Removing dietary stickers affixed to door name tags indicating how patients could safely be fed;

- Removing patients' identification wristbands and patient identifiers from room doors and wheelchairs at another facility; and

- Removing handles from patient lifts in an effort to make them inoperable.

Despite this, the NLRB authorized its general counsel, who in turn authorized his regional director, to file a petition in the District of Connecticut seeking an injunction under section 10(j) of the NLRA.

The injunction sought to compel HealthBridge to reinstate all of the striking workers.

In its 35-page application to Ginsburg, the company argued the board's ability to take final action has been called into question by the D.C. Circuit's recent decision invalidating the President's recess appointments and recognizing that the board therefore lacks a quorum to take action.

"That decision is of particular consequence because any final action by the Board in disputes arising throughout the Nation may be appealed to the D.C. Circuit," HealthBridge wrote.

"Moreover, the Board has made clear it will not acquiesce in the D.C. Circuit's decision, and companies subject to final Board orders have made clear they will not comply because of the D.C. Circuit's decision.

"Under these circumstances, the validity of the President's recess appointments to the Board is a question that will inevitably and quickly find itself before this Court, whether in this case, Noel Canning v. NLRB, or another."

HealthBridge contends it makes "little sense" for the courts to order immediate action at the behest of the board when the board's ability to act is in "profound doubt."

The company is requesting a partial stay of the district court's section 10(j) order while the Supreme Court considers the "propriety of that relief on the merits."

HealthBridge said in the alternative the Court could also grant a stay pending its own consideration of the company's application as a petition for review before judgment.

The company said in a statement late Monday that Ginsburg denied its application without referring it to the full court.

HealthBridge says it is in the process of renewing the emergency application to another justice, as Court rules allow.

The renewed application is being directed to Justice Antonin Scalia, the company says.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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