Unilaterally changed several terms and conditions of employment for some of the union-represented employees.

Locked out union-represented employees.

Permanently replaced ULP strikers.

Unilaterally implemented employment terms from its last best bargaining offer without reaching a collective bargaining impasse.

Held that:

Declined to dismiss the NLRB's petition for lack of subject matter jurisdiction based on HealthBridge's assertions that:

Issued an order granting the NLRB's petition under Section 10(j) of the NLRA.

The district court lacked subject matter jurisdiction (and the Section 10(j) petition was therefore not validly authorized) because:

The Second Circuit's established standard for evaluating Section 10(j) petitions (which the district court had relied on) was the wrong legal standard because it had been overruled by the Supreme Court decision in Winter v. Natural Resources Defense Counsel.

The district court abused its discretion in granting the petition.

The 2001 Delegation, which states that it "shall be effective during any time at which the Board has fewer than three Members."

The 2002 Delegation, in which the Board confirmed that "all existing delegations of authority to the General Counsel and to staff in effect prior to the date of this order remain in full force and effect including the December 14, 2001 delegation."

The 2011 Delegation, which states that it "shall be effective during any time at which the Board has fewer than three Members" and which delegates to the General Counsel "full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j) of the Act."

A properly constituted Board may delegate the power to authorize Section 10(j) petitions to the General Counsel in circumstances where it can no longer do so, such as whenever it lost a quorum.

As a matter of first impression for the Second Circuit, the delegations in 2001 and 2002 were still effective. The Board's later loss of a quorum in 2008-2010 did not end the delegations, as they were designed specifically for the loss of quorum circumstance. The Second Circuit joined the US Courts of Appeals for the Fifth, Eighth and Ninth Circuits in concluding that a Board delegation of authority to the General Counsel to seek 10(j) injunctions survives an intervening loss of quorum before the General Counsel approves a regional director to seek one of those injunctions (Overstreet v. El Paso Disposal, LP, Osthus v. Whitesell Corp. and Frankl v. HTH Corp.).

Whether the Board lacked a quorum when it made its 2011 delegation was immaterial.

The petition was properly authorized by the Acting General Counsel under those delegations.

Held that:

Declined to evaluate whether President Obama's January 4, 2012 recess appointments to the Board were invalid, but affirmed that its precedent reaches a different conclusion than the US Courts of Appeals for the District of Columbia, Third and Fourth Circuits about the propriety of intrasession recess appointments. For more information, see Legal Updates, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt, Third Circuit Joins DC Circuit in Condemning NLRB Intra-session Recess Appointments; Casts Doubt on Validity of Other Recess Appointees' Decisions and NLRB Intrasession Recess Appointments Were Unconstitutional, Precluded Quorum: Fourth Circuit

Affirmed the district court's order.

Kreisberg v. HealthBridge Mgmt., LLC, No. 12-4890-cv, (2d Cir. Oct. 15, 2013).

Winter v. Natural Res. Defense Counsel, 555 U.S. 7 (2008).

Frankl v. HTH Corp., 650 F.3d 1335 (9th Cir. 2011).

Osthus v. Whitesell Corp., 639 F.3d 841 (8th Cir. 2011).

Overstreet v. El Paso Disposal, LP, 625 F.3d 844 (5th Cir. 2010).