by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry

The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.

While the NLRB had held that the workers actions were protected activity under the Act and that they had no obligation to the patients since the union had provided a statutory 10-day notice of the strike to their employer, the Court disagreed. The Second Circuit’s decision was a significant repudiation of the Board’s conclusion that the patients were not in imminent danger because: (1) many of the aides provided individual notice to the patients that they would not be coming to work; (2) the aides were not licensed to perform life-saving medical services; and (3) no actual harm came to any of the patients.

In 2004, 1199 SEIU, the union representing Special Touch’s home health aides, served a statutorily required 10-day notice of the union’s intent to conduct a two-day strike.  In preparation for the strike, Special Touch contacted the home health aides scheduled to work that week and asked whether they intended to take time off during the week of the strike (importantly, they did not ask whether they would be participating in the strike and were not obligated to answer). Of the 1,400 employees, 75 indicated that they would be taking time off. When the strike commenced, 48 additional employees who had affirmatively denied such an intent, were absent without notice.

Unsurprisingly, Special Touch had to scramble to make alternate arrangements to serve its patients once it learned the additional 48 aides had not reported to the homes of the patients for whom who they were assigned to care. As the day progressed, Special Touch was able to arrange alternate coverage for all but five of the 48 home health aides. Fortunately, no harm came to any of the 48 patients that received reduced or no care during the day.

When the strike ended two days later, Special Touch immediately reinstated the 75 employees that had provided notice that they would be absent on the days that the union struck. The 48 aides who had been out even though they had said they would work were directed not to report until further notice. Over the next few months, all 48 were given new assignments. None were terminated because of their absence.

The union then filed charges with the NLRB over the employer’s decision not to immediately reinstate the 48 employees who had participated in the strike after telling the employer that they would be reporting to work and taking care of their assigned patients.  The union argued that the decision not to correct their misstatements was not protected activity under the Act and had not lost the protection because there had not been any imminent danger to their assigned patients as a result of their participation. The Board’s Acting General Counsel agreed with the union and issued a complaint.  The employer did not agree and a hearing was held before an Administrative Law Judge who agreed with the AGC that the employees’ participation in the strike was protected even though they had told the employer that they would not be participating and would be going to their patients’ home to provide care as assigned.  The Board agreed with the ALJ and upheld his decision after the employer appealed.

Fortunately for patients and employers alike, the Court held that there was no reasonable basis for the Board to conclude that the 48 home health aides had not placed their patients in imminent danger, and consequently, lost the protection of the Act.

The Court based this conclusion on a reasoned examination of the applicable facts and law, finding that individual notice provided to patients by their aides did not significantly mitigate the risk of danger because many patients that receive home healthcare services “do not appreciate the degree of care that their conditions require.”  The Court also emphasized the fact that the non-performance of even general or menial tasks such as cleaning, shopping and bathing the patient creates a risk of imminent danger. Other duties, such as “reminding customers to take their medication, and observing customers for signs of immediate distress” are surely intended to mitigate the risk of danger.

This decision by the Court does not require employees to tell their employer whether they intend to participate in a strike. Nor does it require the employee even respond to the employer’s query. In fact, the employees would not have lost the protection of the Act if they had simply not answered the employer’s inquiries about whether they planned to report on those days, because the 10-day notice from the union serves to put the employer on notice of their intent to strike. In fact, “[h]ad Special Touch not reached out to their aides in advance of the strike in an attempt to plan ahead… the aides would not have been required to call in.”

It is only when the employee controverts the intent of the 10-day notice that they lose the protection of the Act. As the Court concisely explained, “[w]hat employees cannot do is mislead their employer into expecting their presence when the lack thereof will result in foreseeable imminent danger.”


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