Supreme Court Asked to Weigh in on NLRB Recess Appointments

Marcia Coyle

Legal Times

02-05-2013

The constitutional and political battle over President Barack Obama's recess appointments to the National Labor Relations Board has reached the U.S. Supreme Court in a case involving striking workers at nursing care facilities in Connecticut.

HealthBridge Management, represented by former George W. Bush-era Solicitor General Paul Clement of Bancroft, on Monday filed an emergency application with Justice Ruth Bader Ginsburg in which it seeks partial stay of a district court injunction ordering reinstatement of all striking workers pending its appeal to the U.S. Court of Appeals for the Second Circuit. In the alternative, the application states, the justices could consider the application as a petition for certiorari and a partial stay of the injunction pending resolution of the petition.

"This is an extraordinary request prompted by extraordinary circumstances," wrote Clement in the application, noting that it is "undisputed" that as the strikes began, some union members engaged in "unconscionable acts of medical sabotage, such as switching medical charts and removing identification bracelets from Alzheimer patients."

Also counsel on the application filed by Clement is Rosemary Alito, sister of Justice Samuel Alito Jr. and co-chair of K&L Gates global labor and employment practice.

The district court issued the reinstatement order under the authority of section 10(j) of the National Labor Relations Act, which authorizes the 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," wrote Clement. "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."

Under those circumstances, he added, the validity of the president's recess appointments will inevitably reach the Court whether in this case or the recent D.C. Circuit case of Noel Canning v. NLRB.

Clement argues that his case presents three questions: the validity of the recess appointments to the NLRB; whether the Board can seek relief under section 10(j) in the absence of a quorum by delegating authority to the Board's general counsel, and whether the traditional four-factor test for preliminary injunctive relief applies in the section 10(j) context.

"If this Court ultimately determines that the President's recess appointments are invalid, the question whether the Board may nonetheless seek section 10(j) relief will have the utmost importance, and so resolving that questioncontemporaneously with the recess appointment issue would be prudent," wrote Clement in HealthBridge Management v. Kreisberg.

HealthBridge manages sub-acute and long-term nursing care facilities for the elderly. Five of its centers operate in Connecticut. The New England Health Care Employees Union, District 1199, represents units of employees at the centers. Approximately 700 members of the bargaining unit went on strike on July 2, 2012, after bargaining negotiations reached an impasse.

Obama's controversial recess appointments to the NLRB came at the same time as his selection of Richard Cordray to head the Consumer Financial Protection Bureau.

This article originally appeared as a post on The BLT: The Blog of LegalTimes.