U.S. SC won't take up company's case over Obama recess appointments

By Jessica M. Karmasek | Feb 7, 2013

WASHINGTON (Legal Newsline) -- The U.S. Supreme Court has refused to get involved in a case over the constitutionality of President Barack Obama's recently-invalidated recess appointments.

On Wednesday, the nation's high court filed a one-page order denying HealthBridge Management LLC's application for stay presented to Justice Antonin Scalia, who shared it with the other justices.

"The application for stay presented to Justice Scalia and by him referred to the Court is denied," the brief order states. "Justice (Samuel) Alito took no part in the consideration or decision of this application."

According to news reports, Alito's sister, Rosemary Alito, is one of the attorneys representing the company, which manages sub-acute and long-term nursing care facilities.

"While we are disappointed in the decision, HealthBridge managed health care centers intend to comply with the district court's order. As always, our primary concern is with the care and well-being of our patients. Throughout this process our guiding principle has been to provide the highest standard of care and safety to our patients," Lisa Crutchfield, senior vice president of labor relations for HealthBridge, said in a statement late Wednesday.

"The court order makes it all the more urgent for the office of the Connecticut Chief State's Attorney to complete its investigation of the union workers who committed acts of sabotage against patients when the workers went they went out on strike in July 2012."

The company originally filed an emergency application to Justice Ruth Bader Ginsburg Monday.

However, Ginsburg denied HealthBridge's application without referring it to the full Court.

The company then directed its renewed application -- as Court rules allow -- to Scalia.

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 did as well.

In its application, 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, 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.

The company, in its 35-page application, argued that 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 argued it made "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."

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

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