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WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on Feb. 6 denied an application for a stay filed by a Connecticut nursing home company in a suit over a union strike in light of questions over the legitimacy of 2012 appointments to the National Labor Relations Board (HealthBridge Management, LLC, et al. v. Jonathan B. Kreisberg, Regional Director of Region 34 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, No. 12A769, U.S. Sup.).
(Order available. Document #73-130208-027R.)
Applicant HealthBridge Management LLC originally submitted the emergency application for partial stay to Justice Ruth Bader Ginsburg. She denied the application on Feb. 4. Just hours after her denial, HealthBridge renewed its plea, this time asking that it be referred to Justice Antonin Scalia.
Justice Scalia referred it to the entire court, and the application was once again denied in an order issued yesterday without any explanation. Justice Samuel Anthony Alito Jr. took no part in the consideration or decision.
The issue over the NLRB appointments arose Jan. 25 when the District of Columbia Circuit U.S. Court of Appeals declined to enforce an NLRB ruling in Noel Canning v. NLRB (No. 12-1115) [enhanced version available to lexis.com subscribers] after finding that the NLRB could not lawfully issue its February 2012 ruling in the dispute as it lacked a quorum. The appellate judges determined that the appointments of three NLRB members by President Obama on Jan. 4, 2012, were invalid under the U.S. Constitution.
In its emergency application, HealthBridge argued: "This is an extraordinary request prompted by extraordinary circumstances. This case arises out of an ongoing strike at Applicants' nursing home centers in Connecticut. It is undisputed that as the strikes began, some as-yet-identified Union members engaged in unconscionable acts of medical sabotage, such as switching medical charts and removing identification bracelets from Alzheimer patients. Nonetheless, the District Court has ordered the immediate reinstatement of all the striking workers pursuant to section 10(j) of the National Labor Relations Act (NLRA), which authorizes the National Labor Relations Board (Board or NLRB) to seek preliminary injunctive relief to protect the Board's jurisdiction while the Board deliberates before taking final action. But 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. 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."
Rosemary Alito and George P. Barbatsuly of K&L Gates and A. Alberto Lugo of HealthBridge Management in Fort Lee, N.J., represent HealthBridge.
Paul D. Clement, Erin E. Murphy and Stephen V. Potenza of Bancroft in Washington represent the NLRB.
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