By: Anne D. Harris, Esq.
The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s grant of a temporary injunction brought by the NLRB under Section 10(j) of the National Labor Relations Act to prevent an operator of a group of long-term elder care facilities from engaging in alleged unfair labor practices. See Kreisberg v. HealthBridge Mgmt. LLC, Case No. 12-4890 (Oct. 15, 2013). Notably, the Second Circuit declined to address the constitutional issue regarding President Obama’s recess appointments to the NLRB (that we have blogged about here and here) noting that when “a case may be resolved on other grounds, courts may decline to reach a constitutional question to avoid deciding constitutional issues needlessly.” Instead, the Second Circuit relied on authority granted to the Board’s General Counsel over a decade ago and concluded that the acting General Counsel’s delegation of authority to authorize such petitions remained intact regardless of the validity of the Board’s appointments.
HealthBridge and the union representing its workers engaged in contentious negotiations for a new collective bargaining agreement. Negotiations remained unsuccessful during the year-and-a-half of bargaining and resulted in a lockout of employees followed by a strike declared by the union. During this time period, HealthBridge implemented changes to employee wages, hours, and working conditions. The union filed unfair labor practice charges and the Acting General Counsel of the NLRB authorized a petition for injunctive relief under Section 10(j) of the Act, asking the federal district court to prevent HealthBridge from implementing the terms of its final contract offer pending resolution of unfair labor practice allegations. The district court granted the 10(j) petition finding reasonable cause to support the Board’s allegations that HealthBridge engaged in unfair labor practices.
The Second Circuit rejected Healthbridge’s argument on appeal that the Board lacked a quorum to authorize a Section 10(j) petition based on two prior delegations of authority to the Board’s General Counsel in 2001 and 2002. Although HealthBridge argued that a 2011 delegation of authority was invalid based on the lack of a quorum, the Second Circuit emphasized that the 2002 delegation confirmed that existing delegations of authority remained in effect and delegated additional authority not included in the 2001 delegation. As such, these delegations of authority had no expiration date and were in effect regardless of the validity of the 2011 delegation. Additionally, the panel rejected the contention that a loss of quorum negated the grant of authority and held that it now “join[s] those of our sister Circuits that have concluded that the delegation of § 10(j) authority to the General Counsel at issue survives even when the Board subsequently lacks quorum.”
The Second Circuit also shot down Healthbridge’s argument that the U.S. Supreme Court’s 2008 decision in Winter v. Natural Resources Defense Council, 555 U.S. 7, changed the standard for issuing a Section 10(j) injunction under the Act. The Court of Appeals concluded that Winter addressed the standard for preliminary injunctions in general, but did not address or alter the standard for issuing Section 10(j) injunctions.
This case underscores another court’s willingness to reach back to authority delegated by the Board more than a decade ago and find it to remain in effect and applicable despite the lack of a Board quorum and despite Noel Canning. Until the Supreme Court rules on the constitutional arguments raised in Noel Canning, such defenses should be carefully analyzed to determine whether the Board has acted on retained authority regardless of the validity of the January 2012 recess appointments.