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.).
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) 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
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.,
Paul D. Clement, Erin E. Murphy and Stephen V. Potenza of
Bancroft in Washington
represent the NLRB.
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