11-3147-ag NLRB v. Special Touch Home Care Servs., Inc. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND…

11-3147-ag
NLRB v. Special Touch Home Care Servs., Inc.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2012 5
6
(Argued: January 30, 2013 Decided: February 27, 2013) 7
8
Docket No. 11-3147-ag 9
10
11
NATIONAL LABOR RELATIONS BOARD, 12
13
Petitioner, 14
15
-v.- 16
17
SPECIAL TOUCH HOME CARE SERVICES, INC., 18
19
Respondent, 20
21
1199SEIU UNITED HEALTHCARE WORKERS EAST, 22
23
Intervenor. 24
25
26
27
Before: 28
W ESLEY , C HIN , Circuit Judges, L ARIMER, District Judge.*
29
30
Petitioner National Labor Relations Board applies to 31
this Court for enforcement of its January 30, 2011 32
Decision and Order finding that Respondent Special Touch 33
Home Care Services, Inc. (“Special Touch”) violated the 34
National Labor Relations Act, 29 U.S.C. § 158(a)(1) and 35
(3), by failing to immediately reinstate striking workers 36
* The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
1

-- 1 of 44 --

engaged in protected conduct. Home health care aides who 1
work for Special Touch went on strike after their Union 2
gave ten days of advance notice as required by statute, 29 3
U.S.C. § 158(g). Special Touch lawfully polled its 4
approximately 1400 employees scheduled to work on the 5
first day of the strike. Forty-eight of the aides who 6
indicated their intention to work failed to report to 7
their patients’ homes. Because we find that these 8
employees engaged in unprotected, indefensible conduct 9
that created a reasonably foreseeable risk of imminent 10
danger, we DENY the National Labor Relations Board’s 11
petition for enforcement. 12
13
DENIED. 14
15
16
17
JILL A. GRIFFIN, Supervisory Attorney (Lafe E. 18
Solomon, Acting General Counsel, Celeste J. 19
Mattina, Deputy General Counsel, John H. 20
Ferguson, Associate General Counsel, Linda 21
Dreeben, Deputy Associate General Counsel, 22
Amy H. Ginn, Attorney, on the brief), 23
National Labor Relations Board, Washington, 24
DC, for Petitioner. 25
26
RICHARD J. REIBSTEIN (Russell E. Adler, on the 27
brief), Pepper Hamilton LLP, New York, NY, 28
for Respondent. 29
30
DAVID M. SLUTSKY, Levy Ratner, P.C., New York NY, 31
for Intervenor. 32
33
34
35
36
W ESLEY , Circuit Judge: 37
38
This petition for enforcement presents two issues: (1) 39
whether a health care employer may enforce an individual 40
notice rule after its employees’ union provides advance 41
2

-- 2 of 44 --

notice of an impending strike pursuant to 29 U.S.C. § 1
158(g); and (2) whether health care employees who fail to 2
report to work at individual patients’ homes without 3
alerting their employer create a reasonably foreseeable risk 4
of imminent danger. 5
6
7
Background 8
9
Respondent Special Touch Home Care Services, Inc. 10
(“Special Touch”) subcontracts with nursing and health- 11
related services to provide home health aides for patients 12
who require assistance. Special Touch’s patients have four 13
common characteristics: (1) a physician ordered home health 14
care services; (2) they have an illness that prevents them 15
from normal functioning and daily living activities; (3) 16
they are “homebound;” and (4) they are receiving skilled 17
nursing, physical, occupational or speech therapy. Given 18
the nature of its services, Special Touch has a call-in rule 19
requiring aides who will not be able to report to their 20
patients’ homes as scheduled (for any reason) to notify 21
Special Touch. Because aides go directly to patients’ 22
homes, Special Touch uses an automated attendance system. 23
The company gets a report of which aides have not called in 24
after the start of their shifts, at which point Special 25
3

-- 3 of 44 --

Touch calls each home to verify whether or not the aide is 1
there. Confirming an aide’s presence takes approximately 2
twenty minutes. 3
In 2004, Special Touch had approximately 2500 aides on 4
its roster, with about 1400 of these aides regularly 5
assigned to specific clients. Aides are typically matched 6
with patients based on common language, primarily English, 7
Spanish, Chinese or Russian. Patients receive varying 8
amounts of care; some have an aide present twenty-four hours 9
per day, seven days a week, while others require just a few 10
hours each week. The necessary amount of care is determined 11
by the patient’s physician. A nursing agency sets the 12
specific “plan of care” and then subcontracts the work to 13
Special Touch. 14
Aides who work for Special Touch undergo two-and-a-half 15
weeks of mandatory training before being assigned to 16
patients. The specific responsibilities of an aide depend 17
on the individual patient’s plan of care, but they will 18
often include helping the patient bathe and maintain good 19
personal hygiene, helping patients move around and transfer 20
from a chair to bed or to the bath, meal planning and 21
preparation, light housekeeping, and grocery shopping and 22
4

-- 4 of 44 --

errands. Aides often remind patients to take medication and 1
ensure they are taking the proper doses, but aides do not, 2
and cannot, perform medical procedures. Special Touch’s 3
handbook explicitly lists functions its aides are not to 4
perform, including: taking vital signs, changing bandages, 5
giving medication, and “[g]iv[ing] any care not included on 6
the nursing care plan.” 7
According to Inessa Lutinger, a registered nurse 8
instructor who trains aides for Special Touch, “our role is 9
prevention, prevention of higher level care, prevention [of] 10
patient hospitalization, and prevention [of a] patient 11
[becoming] a resident in the nursing home.” To achieve this 12
end, aides are taught, among other things, how to look for 13
signs of distress, to prevent falls and to recognize signs 14
of internal bleeding. In addition, aides are trained how to 15
respond to an emergency, whether health-related or external 16
(such as a fire). According to Lutinger, one of the biggest 17
worries with patients is their susceptibility to falling – 18
particularly falling backwards – because of their lack of 19
balance and strength. Lutinger explained that the high risk 20
of falls is the reason the aides are tasked with light 21
housekeeping: “[I]f you keep your floor neat and nice, it 22
5

-- 5 of 44 --

decrease[s the] probability of falling, and as a 1
consequence[] of possible fatal injuries.” 2
3
4
Facts 5
6
On May 27, 2004, New York’s Health and Human Service 7
Union 1199SEIU, AFL-CIO, CLC (the “Union”) notified Special 8
Touch of its intent to strike from Monday, June 7, 2004 at 9
6:00 a.m. until Wednesday, June 10, 2004 at 6:00 a.m. 10
During the week prior to the strike, coordinators and 11
supervisors from Special Touch contacted the approximately 12
1400 aides scheduled to work to inquire whether they planned 13
to take any time off during the upcoming week. 2 The 14
majority of the aides indicated their intent to work as 15
scheduled. Approximately seventy-five aides said that they 16
anticipated being absent during part of the following week 17
(whether for purposes of striking or for other reasons). 18
19
2 In Preterm, Inc., the Board determined that a health care
organization may survey its employees to determine whether they
plan to work during an upcoming strike after receiving a ten-day
notice from the union. 240 N.L.R.B. 654, 656 (1979). The Board
proceeded to specify three requirements for a pre-strike survey:
(1) explain the purpose of the questioning, (2) assure employees
that “no reprisals would be taken against them as a result of
their response,” and (3) refrain from otherwise creating a
coercive atmosphere. Id. At oral argument, the Board agreed
that the poll here was never alleged to be unlawful and is
therefore not challenged in this action.
6

-- 6 of 44 --

Special Touch arranged for replacements to cover these 1
employees’ patients. 2
Forty-eight 3 aides who had not previously conveyed their 3
plans to be absent during the strike did not appear for work 4
on Monday morning, June 7, 2004. Most of these aides spoke 5
Spanish, which made finding emergency replacements for them 6
difficult. Unbeknownst to Special Touch, the Union had held 7
a meeting shortly before the strike, at which it advised 8
aides that they did not need to notify the company if they 9
planned to strike because the Union had already provided the 10
requisite ten-day notice required by 29 U.S.C. § 158(g) for 11
health-care workers. 4
12
On June 7, when forty-eight aides who were expected to 13
work failed to call in or report, Special Touch struggled to 14
get replacements to its patients. These patients included 15
people suffering from recent strokes, Parkinson’s disease, 16
3 Although forty-eight aides struck after saying they would
report to work, the disciplinary measures Special Touch took are
relevant for only forty-seven of these aides because Crecencia
Miller was lawfully discharged for other reasons. See Special
Touch Home Care Servs., Inc., 351 N.L.R.B. 754, 754-55, 757
(2007) (Special Touch II).
4 The Union explains in its brief that: “1199 correctly
informed the Aides that the Union’s notice was the only notice
lawfully required, and individual Aides had no obligation to
provide individual notice to Special Touch.”
7

-- 7 of 44 --

early-onset Alzheimer’s disease and other memory problems, 1
epilepsy, broken limbs, diabetes, osteoporosis, breast 2
cancer, developmental disabilities, and impaired mobility; 3
some of these individuals were over eighty years old. 4
Forty-three of the patients received partial coverage, while 5
five patients did not receive any coverage. According to 6
Special Touch Vice President of Operations Linda Keehn, 7
“[s]ome of them got partial service because we didn’t find 8
out right away . . . . [It] was very, very confusing, very 9
chaotic. Here all of a sudden, we thought we had everything 10
sort of covered . . . .” 11
Following the strike, the seventy-five aides who had 12
advised Special Touch of their planned absence when asked 13
during the pre-strike poll were immediately reinstated to 14
work with their previously-assigned patients. The forty- 15
eight aides who responded during the poll that they intended 16
to work but failed to report as expected were advised not to 17
return to their assigned patients until further notice. 18
These forty-eight aides were ultimately reassigned over the 19
next few months, but not always to their prior patients or 20
to similar work schedules. One week after the strike began, 21
Keehn sent letters to these forty-eight aides detailing the 22
8

-- 8 of 44 --

company’s position on their absence: 1
2
You were asked if you would be taking any 3
time off the week of June 7th. You told 4
us that you would be working. 5
6
Despite your assurance, you did not show 7
up at the patient’s home on June 7th, nor 8
did you call into the office at any time 9
prior to the start of your shift to 10
advise us that you would not be working 11
that day. As a result, you left the 12
patient at risk of being unattended by a 13
home health aide. 14
15
You know that Special Touch policies and 16
procedures require you to call in. 17
18
(JA 863.) 19
20
The letter goes on to state that Special Touch was aware of 21
the confusion over notification following the Union meeting, 22
and, as a result, the company had determined not to 23
terminate any of the employees. 24
25
Procedural History 26
27
After the Union filed charges against Special Touch, 28
the National Labor Relations Board’s (“Board”) General 29
Counsel issued a complaint charging Special Touch with 30
violating the National Labor Relations Act (“NLRA”), 29 31
U.S.C. § 158(a)(1) and (3), 5 by failing and refusing to 32
5 Section 8(a)(1) and (3) of the National Labor Relations
Act, 29 U.S.C. § 158(a)(1) and (3), provides that:
9

-- 9 of 44 --

reinstate the forty-eight aides who participated in the 1
strike unexpectedly. Administrative Law Judge Raymond P. 2
Green (“ALJ”) held a hearing, at which he heard testimony by 3
eleven of the striking aides, various Special Touch 4
supervisors and coordinators, Keehn, and Lutinger. The ALJ 5
ruled that Special Touch could not defend its treatment of 6
the forty-eight aides as unprotected strikers because their 7
failure to comply with the company’s call-in rule did not 8
alter their status as protected workers. Special Touch Home 9
Care Servs., Inc., 2005 N.L.R.B. LEXIS 472, at *20-22 (Sept. 10
15, 2005) (Special Touch I). The ALJ reasoned that to find 11
otherwise would mean that “an employer could, by enactment 12
of a private rule, nullify the public rights guaranteed by a 13
statute of the United States” – namely, 29 U.S.C. § 158(g). 14
Id. at *14. 15
The ALJ discussed Congress’s enactment of Section 8(g) 16
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer–
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this
title;
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor organization
. . . .
10

-- 10 of 44 --

in 1974, which requires unions to give ten days of notice to 1
health care facilities before their employees go on strike. 6
2
He confirmed that the notification requirement is limited to 3
unions and does not apply to individual employees. See id. 4
at *17. The ALJ rejected Special Touch’s argument that some 5
type of notice requirement was appropriate in this situation 6
because of the “imminent danger” to patients that would be 7
created otherwise: “[a]ssuming arguendo that an ‘imminent 8
danger’ qualification can be read into the Act’s conference 9
of the right to strike, the evidence does not establish that 10
such a danger existed in this case.” Id. at *19. The ALJ 11
reasoned that “there were only about five clients for whom 12
the Respondent could not get coverage. And as to them, 13
there was no evidence that they suffered any adverse 14
consequences.” Id. at *20. Accordingly, the ALJ concluded 15
that Special Touch had violated 29 U.S.C. § 158(a)(1) and 16
(3) by failing to immediately reinstate the forty-eight 17
6 Section 8(g) of the NLRA, 29 U.S.C. § 158(g), provides
that:
A labor organization before engaging in any strike, picketing, or
other concerted refusal to work at any health care institution
shall, not less than ten days prior to such action, notify the
institution in writing and the Federal Mediation and Conciliation
Service of that intention . . . . The notice shall state the date
and time that such action will commence . . . .
11

-- 11 of 44 --

strikers upon their unconditional offer to return to work. 1
See id. at *35. 2
The Board adopted the ALJ’s reasoning with respect to 3
Special Touch’s violation of Section 8(a) and petitioned 4
this Court for enforcement of its September 29, 2007 5
Decision and Order. Special Touch Home Care Servs., Inc., 6
351 N.L.R.B. 754 (2007) (Special Touch II). We issued a 7
decision enforcing the order in part, modifying and 8
enforcing as modified in part, and remanding for the Board 9
to consider the intersection of the “plant rule” doctrine 10
and Section 8(g). NLRB v. Special Touch Home Care Servs., 11
Inc., 566 F.3d 292 (2d Cir. 2009) (Special Touch III). We 12
were concerned with the potential incompatibility between 13
the plant rule doctrine, which allows employers to enforce 14
neutral plant rules governing employees on company time 15
(such as Special Touch’s call-in rule), and Section 8(g)’s 16
union notification requirement. See id. at 297-301. We 17
remanded and advised the Board to balance three key 18
interests in resolving the issue: “(1) the employer’s 19
attempt to maintain a properly regulated workforce, (2) the 20
employees’ interest in striking (including their interest in 21
not having to decide in advance that they wished to 22
12

-- 12 of 44 --

participate), and (3) the risk to the clients, including the 1
nature of the care provided by the aides.” Id. at 300. We 2
did not reach Special Touch’s remaining arguments regarding 3
indefensible conduct (imminent danger), permanent 4
replacement and the legitimate business justification 5
defense. See id. at 301. 6
On remand, the Board re-affirmed its prior conclusion 7
that Special Touch had violated Section 8(a)(1) and (3) by 8
refusing to promptly reinstate the forty-eight striking 9
aides. Special Touch Home Care Servs., Inc., 2011 N.L.R.B. 10
LEXIS 322 (June 30, 2011) (Special Touch IV). The Board 11
concluded that Congress had already balanced the relevant 12
interests at stake with respect to health care strikes and 13
reached a conclusion: Section 8(g). 7 See id. at *13-19. 14
The Board determined that the union notification rule 15
represented a compromise reached by legislators endeavoring 16
to balance two competing interests: first, the previously 17
limited rights of health care employees, and second, the 18
special protection necessary for patient care. See id. at 19
*15-16. 20
7 The Board further noted that “[i]f the balance established
by Congress in the 1974 amendments is imperfect, it is up to
Congress, not the Board, to adjust it.” Special Touch IV, 2011
N.L.R.B. LEXIS 322, at *19.
13

-- 13 of 44 --

With respect to patient care, the Board acknowledged 1
that even health care employees who “cease work without 2
taking ‘reasonable precautions to protect’ the employer’s 3
plant, equipment, or patients ‘from foreseeable imminent 4
danger due to sudden cessation of work’” are not protected 5
under the NLRA. Id. at *41 (quoting Bethany Med. Ctr., 328 6
N.L.R.B. 1094, 1094-95 (1999)). The Board rejected the 7
claim that Special Touch’s aides’ failure to warn the 8
company about their intent to strike created an “imminent 9
danger.” See id. at *19-22. However, the Board noted that 10
“under appropriate circumstances, we would entertain an 11
argument that despite prior notice, a strike, or particular 12
employees’ participation in a strike, created an imminent 13
danger.” Id. at *22 n.17. 14
Finally, the Board reviewed and rejected Special 15
Touch’s argument that its aides’ misrepresentations during 16
its pre-strike polling justified denying immediate 17
reinstatement. Disavowing Special Touch’s contention that 18
the right to poll employees loses all value if the employees 19
need not answer accurately, the Board declined to adopt a 20
rule requiring honesty in polling or allowing discipline in 21
its absence. See id. at *33. 22
14

-- 14 of 44 --

Member Hayes dissented, arguing that under “the 1
particular facts of this case,” Special Touch acted lawfully 2
because the company had shown a “sufficiently compelling 3
business justification for enforcing its call-in rule and 4
that justification outweighs the minimal burden imposed on 5
employees’ protected right to strike.” Id. at *47 6
(dissent). The dissent focused on the forty-eight aides’ 7
affirmative misrepresentations upon being polled. Member 8
Hayes reasoned that the majority’s ruling meant that 9
employees need never provide a lawful answer to a post- 10
notice of strike survey, “thus eviscerating the poll as an 11
effective aid in arranging for continuing patient care.” 12
Id. at *51. The dissent noted further that this would allow 13
unions and employees the opportunity to wield their ability 14
to strike in a dangerously disruptive manner – essentially, 15
by purposely misleading their employer. See id. at *51-52. 16
The Board’s June 30, 2011 Decision and Order holding 17
Special Touch responsible for violating Section 8(a)(1) and 18
(3) is now before us on the Board’s petition for 19
enforcement. 20
21
22
15

-- 15 of 44 --

1
Discussion 2
Special Touch makes two main arguments before this 3
Court. First, Special Touch contends that the Board ignored 4
our mandate instructing it to balance the interests of 5
employees, employers and clients in determining whether 6
failure to comply with the company’s call-in rule renders 7
otherwise lawful strikers’ actions unprotected. The NLRB 8
argues that the Board did consider the interests of the 9
aides, Special Touch and patients “by giving heed to the 10
balance Congress already struck with regard to their 11
interests.” (Petitioner’s Br. at 28.) 12
Second, Special Touch argues that the Board erred in 13
rejecting its “imminent danger” defense, pursuant to which 14
the company claims that forty-eight aides failed to take 15
reasonable precautions to protect their patients from 16
foreseeable imminent danger. The NLRB gives little 17
attention to this argument, stating that the record fails to 18
show that patients were subject to substantial risk of harm 19
and, instead, only that the company was inconvenienced. 20
We will enforce the Board’s order if its legal 21
conclusions have a “reasonable basis in law.” See NLRB v. 22
16

-- 16 of 44 --

Windsor Castle Health Care Facilities, Inc., 13 F.3d 619, 1
623 (2d Cir. 1994)(citing Universal Camera Corp. v. NLRB, 2
340 U.S. 474, 488 (1951)). We review the Board’s factual 3
findings for whether they are supported by substantial 4
evidence. See id. Here, the facts are not in dispute. 5
Accordingly, we review the Board’s application of law to 6
fact de novo, deferring to the Board’s decision if there is 7
“more than one reasonable resolution,” one of which the 8
Board has adopted. See Sheridan Manor Nursing Home, Inc. v. 9
NLRB, 225 F.3d 248, 252 (2d Cir. 2000). 10
11
I. “Plant Rule” Doctrine 12
13
We previously remanded to the Board for the specific 14
purpose of considering the intersection between the plant 15
rule doctrine and Section 8(g). We understand the plant 16
rule doctrine to “permit[] an employer to enforce neutral 17
‘reasonable rules covering the conduct of employees on 18
company time.’” See Special Touch III, 566 F.3d at 297 19
(quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 20
n.10 (1945)). 21
In Republic Aviation, the Supreme Court upheld the 22
Board’s finding that a company’s rule prohibiting any type 23
of solicitation on company property could not be used to 24
17

-- 17 of 44 --

prohibit union solicitation on the premises during an 1
employee’s free time without violating Section 8(3). See 2
324 U.S. at 795, 805. The Court reached this result by 3
endorsing the Board’s established presumption that the NLRA 4
does not prevent employers from establishing “reasonable 5
rules” governing employee conduct while “on company time.” 6
Id. at 803 n.10 (quoting Peyton Packing Co., 49 N.L.R.B. 7
828, 843 (1943)). The Court (like the Board) emphasized the 8
importance of rules regulating the workplace applying to 9
conduct occurring “during working hours.” See id. 10
The Board subsequently relied on the plant rule doctrine 11
to uphold the termination of employees who violated a neutral 12
notification rule at a chicken-processing plant. See Terry 13
Poultry Co., 109 N.L.R.B. 1097 (1954). In Terry Poultry, the 14
company had a “long-standing plant rule” requiring factory 15
workers to notify other personnel if they were leaving the 16
assembly line. See id. at 1097-98. Two employees violated 17
this rule by leaving the line to make a labor complaint to 18
the plant’s superintendent. See id. Their undisclosed 19
departure caused disruption of the production line. See id. 20
at 1098. The employees were terminated for violating the 21
plant rule. Id. at 1099. The Board upheld their 22
terminations after finding that the rule was not adopted for 23
18

-- 18 of 44 --

a discriminatory purpose but was instead aimed solely at 1
ensuring efficient business practices. See id. at 1098-99. 2
The Board further supported this decision by reasoning that 3
the rule did not constitute an “unreasonable impediment” to 4
the employees’ exercise of their rights under the NLRA. See 5
id. at 1098. 6
The Board later cited to Terry Poultry in upholding 7
employee suspensions for violating a chemical plant’s 8
“longstanding, well-publicized rule requiring operators to be 9
properly relieved before leaving the plant” during a strike. 10
See Gen. Chem. Corp., 290 N.L.R.B. 76, 83 (1988). This case 11
brought in elements of both the plant rule doctrine and the 12
imminent danger doctrine, discussed infra, because the rule 13
at issue in General Chemical was not intended merely for 14
factory efficiency, but primarily for “ensur[ing] safety to 15
the equipment, the plant, and the general public.” Id. The 16
Board found that the employees’ failure to take the 17
reasonable precaution of spending fifteen minutes obtaining 18
relief at their stations created a “reasonably foreseeable 19
possibility of danger.” Id. However, because the “danger 20
was eminent (significant) rather than imminent (impending),” 21
the Board relied primarily on the plant rule doctrine to find 22
23
19

-- 19 of 44 --

that the employer’s response did not violate the NLRA. See 1
id. at 83-84. 2
In its analysis of these key plant rule decisions, the 3
Board noted some crucial differences between the facts 4
therein and those at issue here, see Special Touch IV, 2011 5
N.L.R.B. LEXIS 322, at *26-30, as did we, see Special Touch 6
III, 566 F.3d at 298-99. First, the companies in the plant 7
rule cases did not receive any prior notice of concerted 8
activity. Special Touch had ten days’ notice provided by the 9
Union. Second, the plant rule cases emphasize the propriety 10
of reasonable rules regulating employee conduct “on company 11
time.” Here, the relevant rule focuses specifically on 12
employee conduct outside of working hours by requiring 13
advance notice of an employee’s intent to miss work. 14
The Board contends that a better match for this case is 15
Savage Gateway Supermarket, 286 N.L.R.B. 180 (1987), enfd., 16
865 F.2d 1269 (6th Cir. 1989) (unpublished decision), in 17
which the Board examined when an employer’s desire to enforce 18
a plant rule is supported by compelling business interests 19
sufficient to outweigh certain rights held by employees. In 20
Savage Gateway, the Board determined that a grocery store had 21
violated the NLRA by terminating an employee who did not show 22
up for work on two consecutive days while picketing was 23
20

-- 20 of 44 --

ongoing in front of the store. See id. at 183-84. The 1
company argued that its termination of the employee was due 2
to her failure to comply with its “longstanding work rule 3
requiring notification of absence to the store manager.” Id. 4
at 183. The Board rejected this contention, finding that the 5
employer did not have a compelling business interest for 6
enforcing its rule that was sufficient to outweigh the 7
employee’s right to engage in protected activity. See id. 8
Instead, the company sought to apply its rule for the sake of 9
convenience. See id. 10
Special Touch argues that the Board’s reliance on Savage 11
Gateway is misplaced in light of this Court’s decision in 12
Business Services by Manpower, Inc. v. NLRB, which is cited 13
in Savage Gateway and features facts more closely analogous 14
to those at issue here. 784 F.2d 442 (2d Cir. 1986). In 15
Manpower, the company supplied temporary employees to 16
businesses with industrial or clerical short-term 17
assignments. See id. at 443. Because the employees reported 18
directly to the temporary employer that had contracted with 19
Manpower, the company had a policy that any employee who 20
could not make it to an assignment had to call in and that 21
anyone who failed to call in or report to work would be 22
considered to have resigned. See id. Two employees sent to 23
21

-- 21 of 44 --

fill a shift at a factory chose not to work after seeing a 1
“stranger” picket line composed of five or six workers from 2
one of the temporary-employer’s plants located 100 miles 3
away. See id. at 443-44. 4
Manpower considered these employees to have resigned 5
after they did not show up for their assignment. See id. at 6
444. The Board ruled that the company violated the 7
employees’ rights under the NLRA. See id. at 445. We 8
declined to enforce this order because we determined that 9
Manpower had “compelling business reasons” for enforcing its 10
policy that were sufficient to overcome the employees’ 11
exceptionally “thin” protected rights under the 12
circumstances. See id. at 454. 13
Here, Member Hayes takes a similar position in dissent: 14
Special Touch’s business reasons for enforcing its call-in 15
rule were sufficiently compelling to override the minimal 16
burden that compliance with the rule imposed on the aides’ 17
right to strike. The dissent notes that Congress intended 18
for health care workers to be treated the same as any other 19
industry employees, such that legitimate business reasons 20
that would justify a non-health care company’s conduct should 21
suffice equally in the health care field. See Special Touch 22
IV, 2011 N.L.R.B. LEXIS 322, at *52 (dissent). This argument 23
22

-- 22 of 44 --

is tempting. After all, Special Touch has compelling 1
business interests for enforcing its call-in rule (providing 2
aides when and where the company said it would) that are very 3
similar to the interests cited by the company in Manpower. 4
The problem with this position, however, is that it 5
elevates the company’s preferences over those espoused by 6
Congress. Congress’s decision to require union notification 7
via Section 8(g) trumps Special Touch’s interests in 8
enforcing its call-in rule, regardless of whether its argued 9
basis for doing so is business-related or safety-oriented. 8
10
As the Board correctly determined, to hold otherwise would 11
constitute a rejection of the balance struck by Congress in 12
enacting Section 8(g). 13
Section 8(g), one of Congress’s amendments to the NLRA 14
in 1974, is part of a package intended to remedy the 15
exclusion of nonprofit hospital workers 9 from the protections 16
8 Member Hayes’ dissent assures us that “the call-in rule
here comes into play only after the Respondent conducted the
lawful survey . . . and only for those aides who answered that
they would work on June 7, then failed to do so without giving
notice.” Special Touch IV, 2011 N.L.R.B. LEXIS 322, at *48
(dissent) (emphasis in original). But the dissent’s argument is,
nonetheless, that Special Touch’s call-in rule should be
enforced.
9 At the time, 56 percent of all hospital employees worked
at nonprofit, non-public hospitals. See Staff of S. Comm. on
Labor, 93d Congress, Legislative History of the Coverage of
Nonprofit Hospitals under the National Labor Relations Act,
23

-- 23 of 44 --

guaranteed by the NLRA while still ensuring “that the needs 1
of patients would be met during contingencies arising out of 2
labor disputes.” See Staff of S. Comm. on Labor, 93d 3
Congress, Legislative History of the Coverage of Nonprofit 4
Hospitals under the National Labor Relations Act, (Comm. 5
Print 1974) (hereinafter Legislative History). The 1974 6
amendments were the result of “extensive discussion with 7
those groups representing employers, employees and the 8
administration” in the health care industry. Id. The goal 9
of the amendments was to incorporate “the public interest 10
demand[] that employees of health care institutions be 11
accorded the same type of treatment under the law as other 12
employees in our society.” Legislative History, S. Rep. No. 13
93-766, at 11 (1974). With this in mind, the union 14
notification provision is intended as a sufficient safeguard 15
to enable health care workers to strike; there is no 16
requirement that individual employees provide notice. The 17
Board, and this Court, have recognized this principle 18
repeatedly. 19
For example, in Montefiore Hospital and Medical Center 20
v. NLRB, we confirmed that Section 8(g) contains a “clear 21
(Comm. Print 1974).
24

-- 24 of 44 --

limitation” requiring notice from labor organizations and not 1
from individual workers – an interpretation that had been 2
confirmed by numerous other Circuits as well as the Board. 3
621 F.2d 510, 514-15 (2d Cir. 1980). Our comments in dicta 4
that after a “union has given notice of its intention to 5
strike, the hospital would be well-advised to inquire of the 6
rest of its employees whether they plan to stay out in 7
sympathy” and that “[a]n employee who strikes after promising 8
to show up may well forfeit protection under the Act” have no 9
bearing on Section 8(g)’s requirements. Id. at 515. We 10
supported this assertion by citing to Silbaugh v. NLRB, 429 11
F.2d 761, 762 (D.C. Cir. 1970), which proposes that an 12
employee who strikes “in violation of a union’s commitment to 13
an employer not to do so” is not engaging in protected 14
activity. See id. But this cannot change our finding that 15
the language of Section 8(g) is “crystal clear” that no 16
individual health care employee is required to give notice. 17
Montefiore, 621 F.2d at 514. 18
In addition, our statement in dicta is directed toward 19
the “rest” of a hospital’s employees, meaning the ones who 20
are not covered by the union notification. See id. For 21
these employees to misrepresent their intentions to strike is 22
distinguishable: union employees have already given notice of 23
25

-- 25 of 44 --

their intent to strike via union compliance with Section 1
8(g). 2
For these reasons, the Board correctly determined that 3
an employer cannot subvert the Congressional compromise 4
reached in Section 8(g) by enforcing a plant rule requiring 5
notification of absence. The Foreword to the 1974 amendments 6
makes it apparent that Congress specifically weighed the 7
interests of employers and employees, in light of the 8
“special considerations” relevant in the health care 9
industry, in adopting a union notice rule but not an 10
individual employee notice rule. See Legislative History. 11
Notably, Congress balanced these interests in 1974, after the 12
plant rule doctrine had been established. 13
Special Touch cannot override this policy choice: 14
Section 8(g) trumps Special Touch’s legitimate business 15
reasons for enforcing an individual notice rule. Thus, we do 16
not believe that the aides’ conduct was stripped of 17
protection because they did not comply with Special Touch’s 18
call-in rule. Instead, we hold that the aides’ actions were 19
unprotected because their uncorrected affirmative 20
misrepresentations regarding their plans to strike in 21
response to the pre-strike poll placed forty-eight of Special 22
Touch’s patients in foreseeable imminent danger. 23
26

-- 26 of 44 --

1
II. Imminent Danger Doctrine 2
3
The Board and Special Touch agree that otherwise lawful 4
strikers’ conduct is unprotected when employees “cease work 5
without taking ‘reasonable precautions to protect’ the 6
employer’s plant, equipment, or patients ‘from foreseeable 7
imminent danger due to sudden cessation of work.’” 10 Special 8
Touch IV, 2011 N.L.R.B. LEXIS 322, at *41 (quoting Bethany 9
Med. Ctr., 328 N.L.R.B. at 1094-95). The case that is often 10
cited as providing the basis for this doctrine is Marshall 11
Car Wheel & Foundry Co., 107 N.L.R.B. 314 (1953), enf. 12
denied, 218 F.2d 409 (5th Cir. 1955). 13
In Marshall Car Wheel, almost half of the employees at a 14
foundry deliberately timed their walk-out (without giving 15
advance notice) to coincide with the moment when molten iron 16
in the plant cupola was ready to be poured off. 218 F.2d at 17
411. In determining whether the employees had engaged in 18
protected conduct, the Board first recognized the general 19
principle that an employee’s right “to engage in concerted 20
10 In its 2011 Order, the Board spelled out the NLRB’s
position as follows: “the General Counsel further asserts that
Section 8(g)’s 10-day notice requirement, combined with the
principle that a strike will be deemed unprotected if employees
fail to take reasonable precautions to protect the employer’s
plant, equipment, or products from foreseeable imminent danger,
already strikes the proper balance.” Special Touch IV, 2011
N.L.R.B. LEXIS 322, at *13 (emphasis added).
27

-- 27 of 44 --

activity is limited by the duty to take reasonable 1
precautions to protect the employer’s physical plant from 2
such imminent damage as foreseeably would result from their 3
sudden cessation of work.” Marshall Car Wheel, 107 N.L.R.B. 4
at 315. Although the Board found that the employees had 5
deliberately endangered the plant, the Board determined that 6
the evidence showed that the employer disciplined the 7
employees because they violated a plant rule, not because 8
their action caused a risk of damage. See id. at 318-19. 9
The former basis for reprisal was insufficient to undermine 10
the employees’ rights to engage in concerted activity; 11
therefore the Board declared the employees’ conduct to be 12
protected. See id. at 319. 13
The Fifth Circuit declined to enforce the Board’s 14
decision. NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 15
409 (5th Cir. 1955). The court disagreed with the Board’s 16
reasoning that the company “was not primarily concerned with 17
the imminent threat of damage” but instead with the violation 18
of its plant rule forbidding employees from leaving the plant 19
without notice and permission: 20
[The Board’s] ultimate conclusion that it 21
was the violation of the plant rule, and 22
that alone, which respondent refused to 23
condone or forgive seems to us 24
illogically to confuse cause and effect, 25
28

-- 28 of 44 --

to make the tail wag the dog. Assuredly 1
the respondent was not more interested in 2
preserving the inviolability of its plant 3
rule, as such, than it was in protecting 4
its plant from the extensive damage and 5
loss which might have resulted from the 6
illegal walkout. On the ultimate issue of 7
whether respondent was entitled to 8
discharge or deny reinstatement to the 9
offending strikers, the real inquiry is 10
the character of the concerted activity 11
engaged in, not whether the rule was 12
incidentally breached thereby. 13
14
218 F.2d at 416-17 (emphasis added) (internal quotation marks 15
omitted). 16
17
This case is a good example of how the plant rule 18
doctrine and the “imminent danger” principle can be conflated 19
– they will often go hand-in-hand. This is unsurprising; 20
companies with a need to protect against dangerous work- 21
related activity are likely to have rules in place for that 22
purpose. See, e.g., Gen. Chem. Corp., 290 N.L.R.B. at 77. 23
Regardless, while enforcing an internal company rule 24
antithetical to Congressional intent is inappropriate, 25
recognizing the applicability of the imminent danger doctrine 26
(even if it concerns the same subject matter as the plant 27
rule) is not only in keeping with the case law, it is good 28
policy. 29
In the health care context, we cited Marshall Car Wheel 30
in Montefiore Hospital and Medical Center v. NLRB for the 31
29

-- 29 of 44 --

proposition that prior notice of concerted activity is 1
required “only when a strike, by its timing or 2
unexpectedness, creates great danger or is likely to damage 3
the employer’s business excessively.” 621 F.2d 510, 515 (2d 4
Cir. 1980). This Court then rejected the hospital’s argument 5
that two doctors’ participation in a strike (without notice) 6
put patients at risk and therefore stripped the doctors’ 7
conduct of protection. See id. at 516. 8
We reached this result because the doctors’ main duties 9
were in teaching and consulting, rather than patient care, 10
and “[t]his was not a case in which patients were left lying 11
on the operating table, emergency room personnel walked off, 12
or people in need of immediate treatment were left to fend 13
for themselves.” Id. In addition, this Court noted that the 14
clinic remained open with one doctor, three nurses and a 15
receptionist during the strike. See id. at 512. Though 16
short of its usual ten or twelve doctors and approximately 17
twenty-five other personnel, the clinic was able to, and did, 18
treat patients. See id. 19
The Seventh Circuit dealt with a comparable scenario in 20
East Chicago Rehabilitation Center, Inc. v. NLRB, in which 21
the majority determined that a brief walk-out by seventeen 22
nurse’s aides and support personnel at a nursing home did not 23
30

-- 30 of 44 --

endanger the health of the facility’s patients. 710 F.2d 1
397, 405 (7th Cir. 1983). The majority gave several reasons 2
for its conclusion that the unexpected walk-out was 3
protected. 4
First, the court affirmed the Board’s finding that the 5
walk-out “caused inconvenience” but did not endanger 6
patients. Id. at 404. Specifically, the Board had found 7
that patients’ meals and medications were delayed, patients’ 8
sheets were not changed punctually, and one deceased person’s 9
body was not removed in a timely fashion – a fact that the 10
majority deemed “unpleasant[].” See id. at 405. Second, 11
none of the strikers were doctors or nurses, supporting the 12
Board’s finding that the strike did not “jeopardize[] any 13
patient’s safety or health.” See id. at 404 (internal 14
quotation marks omitted). Third, the court noted that the 15
nursing home refused to allow the striking employees to 16
resume work, implying that the company was operating ably 17
without them (and there was no evidence of replacements 18
arriving). See id. at 405. Even so, the court viewed this 19
as a “close case” which “might well have gone the other way,” 20
and noted that “at some point the cumulative distress to 21
helpless patients caused by a walkout of nurse’s aides might 22
cross the line that separates inconvenience from inhumanity.” 23
Id. 24
31

-- 31 of 44 --

In the final health care case discussed in Special Touch 1
IV, the Board re-affirmed the principle that Section 8(g) 2
only requires notice from unions, not from individual heath 3
care employees. See Bethany Med. Ctr., 328 N.L.R.B. 1094, 4
1094 (1999). In Bethany Medical Center, the Board determined 5
that a two-hour walk-out by catheterization laboratory 6
employees who provided fifteen minutes’ notice before the 7
first procedure scheduled for the day was not “indefensible” 8
conduct and did not create imminent danger. See id. at 1094- 9
95. Before analyzing the facts, the Board stated that the 10
“same standards of conduct” apply to health care employees as 11
to employees in other industries. Id. at 1094. 12
“Accordingly, the test of whether the catheterization 13
laboratory employees’ work stoppage lost the protection of 14
the Act is not whether their action resulted in actual injury 15
but whether they failed to prevent such imminent damage as 16
foreseeably would result from their sudden cessation of 17
work.” Id. 18
Based on this standard, the Board determined that the 19
employees’ conduct was protected. Id. First, at the time of 20
the walk-out, no patients were actually in the laboratory, 21
nor did any patients require emergency treatment. See id. at 22
1094-95. Second, all of the procedures scheduled for the day 23
were routine and able to be transferred to nearby hospitals. 24
32

-- 32 of 44 --

See id. at 1094. The Board noted that any delays experienced 1
were not exceptional and that the lab had a set policy for 2
rescheduling, or “bumping,” procedures – both routine and 3
emergency. Id. at 1095. Third, the Board found that because 4
there were “numerous other hospitals . . . in the near 5
vicinity” with the same capabilities as the lab, the 6
circumstances did not demonstrate a foreseeable risk of harm 7
to patients. Id. 8
Board Chairman Truesdale analogized the fact pattern in 9
Bethany Medical Center to that in East Chicago, finding that 10
both of these cases involved situations where “there were 11
other persons to ‘provide cover’ for the employees.” Id. at 12
1095 n.9. Chairman Truesdale distinguished circumstances 13
like these, in which striking workers are “provided cover,” 14
from those in NLRB v. Federal Security, Inc., 154 F.3d 751 15
(7th Cir. 1998), in which a walk-out by security guards left 16
a housing project unprotected. See id. 17
In Federal Security, the Seventh Circuit refused to 18
enforce the Board’s decision that security guards who 19
abandoned their stations at a dangerous public housing 20
complex in Chicago (leaving at least four posts completely 21
unguarded) had engaged in protected activity. 154 F.3d at 22
752-53, 756. The housing complex hired around-the-clock 23
armed guards to staff posts, sweep buildings for weapons and 24
33

-- 33 of 44 --

drugs, and verify that only residents and guests entered the 1
facilities. See id. at 753. The court determined that the 2
protection provided by the guards was critical – a finding 3
contained “in record evidence undisputed by the parties but 4
largely unmentioned by the ALJ.” Id. at 756. Given the 5
guards’ protective duties, the Seventh Circuit determined 6
that even though the complex was left unguarded for only 7
twenty minutes, that was enough to place residents in danger. 8
See id. at 757. 9
The court identified a “clear” distinction between the 10
facts in Federal Security and those in East Chicago: “[W]hile 11
the nurses’ aides left behind doctors, nurses, and other 12
front-line health care workers to provide cover, here the 13
guards were the front line, leaving behind unattended 14
stations and vulnerable residents.” Id. at 756. Moreover, 15
the Seventh Circuit took issue with the ALJ’s focus on 16
whether harm actually occurred as a result of the walk-out. 17
See id. at 756-57. The court explained that the imminent 18
danger doctrine 11 “does not ask whether anyone actually was 19
harmed by the activity otherwise protected; it asks whether 20
the activity endangered anyone to the point that harm was 21
foreseeable.” Id. at 757. Since “otherwise protected 22
11 Therein referred to as the “‘health and safety’
exception.” See id. at 757.
34

-- 34 of 44 --

activity surely loses its protection when it compromises the 1
safety of others,” the guards’ conduct was not protected 2
under the NLRA. See id. at 755, 756. 3
We have no doubt that this case is more akin to Federal 4
Security than to East Chicago. The Board, however, was 5
dismissive of the argument that Special Touch’s patients were 6
placed at risk by the aides’ conduct. This view is traceable 7
to two sources. 8
First, the ALJ in Special Touch I used the wrong 9
standard to assess whether the imminent danger doctrine was 10
in play (as in Federal Security), observing that “[a]t the 11
end of the day on June 7, 2004, there were only about five 12
clients for whom the Respondent could not get coverage. And 13
as to them, there was no evidence that they suffered any 14
adverse consequences.” 2005 N.L.R.B. LEXIS 472, at *20. 15
Actual harm to patients is not the issue. The appropriate 16
inquiry is focused on the risk of harm, not its realization. 17
The Board was quite clear in General Chemical: “Although no 18
actual damage took place, that is not the test. There was a 19
reasonably foreseeable possibility of danger – the purpose of 20
the [plant] rule.” 290 N.L.R.B. at 83. Likewise, in Federal 21
Security, the Seventh Circuit specifically noted that 22
“[w]hether actual harm resulted is hindsighted and 23
irrelevant. The proper focus is that the unguarded stations 24
35

-- 35 of 44 --

unquestionably heightened the danger to residents.” 154 F.3d 1
at 757. The standard is well-established for good reason. 2
Penalizing companies for disciplining employees whose 3
indefensible conduct fortuitously yields no damage would not 4
serve the underlying purpose of the doctrine – avoiding 5
unreasonable risk. It would be cruel to hold well-meaning 6
entities accountable for their employees’ good luck. 7
Second, although the Board cabined its focus to danger 8
(rather than actual harm) in Special Touch IV, it also 9
observed that it was unaware of any case in which “imminent 10
danger” existed along with properly given Section 8(g) 11
notice. 2011 N.L.R.B. LEXIS 322, at *22. And, while “under 12
appropriate circumstances, [the Board] would entertain an 13
argument that despite prior notice, a strike, or particular 14
employees’ participation in a strike, created an imminent 15
danger,” the Board did not believe that the situation here 16
qualified. See id. at *22 n.17. 17
The facts in this case are not disputed. The Board 18
acknowledged that Special Touch patients “have a wide range 19
of physical and mental conditions ranging from depression to 20
diabetes to poststroke partial paralysis.” Id. at *3. 21
Still, the Board did not believe that Special Touch aides’ 22
presence in patients’ homes was necessary to prevent a 23
foreseeable risk of harm. At oral argument, attorneys for 24
36

-- 36 of 44 --

the NLRB supported this position by explaining that many of 1
the aides advised their patients or patients’ families that 2
they would be absent on the day of the strike (thus 3
alleviating the danger) and that, regardless, if an emergency 4
did arise, the aides are unable to administer medication. We 5
disagree with the Board’s application of the law to these 6
facts and to the record as a whole. Neither the aides’ 7
individual notice to patients nor the aides’ inability to 8
perform medical services significantly mitigates the risks 9
posed when a home health care aide neglects to attend his or 10
her patient. 11
It was undisputed that Special Touch aides care for 12
patients who are referred to nursing agencies by physicians 13
or hospitals and it is this contracting agency that 14
ultimately determines whether a patient can be left alone at 15
any given time. For example, Special Touch Vice President 16
Keehn testified that if a patient resists having an aide on 17
any given day, or even if a family member of the patient 18
offers to take care of the patient instead, Special Touch 19
would then consult with the contracting 20
agency just to see if that would be 21
acceptable to them because we couldn’t 22
cancel the service even for the one day 23
without reporting it to the nursing 24
staff, contracting agency nursing staff. 25
And they do say no. Sometimes they say, 26
no, we don’t think it’s a good idea. 27
(JA 503.) 28
37

-- 37 of 44 --

There is an obvious explanation: medical professionals do not 1
want people without training to be responsible for taking 2
care of elderly, sick and/or homebound patients. 3
For this reason, it is irrelevant that many of the 4
forty-eight aides who did not call in or show up on June 7, 5
2004 warned their patients in advance. While this gesture is 6
well-meaning, it does not remove the danger. First, many of 7
the patients served by Special Touch live alone and there is 8
no one readily available to cover for an absent aide. Some 9
of the company’s patients live with equally aged and infirm 10
spouses or siblings. 12 Second, even if a patient does live 11
with family, these individuals have not been trained to 12
provide the care the patient needs. And finally (but 13
critically), many of Special Touch’s patients do not 14
appreciate the degree of care that their conditions require. 15
The aides who work at Special Touch receive weeks of 16
training designed to help them take care of patients who, 17
like some of the forty-eight who were left alone on June 7, 18
2004, have conditions including Parkinson’s disease, early- 19
onset Alzheimer’s disease and other memory problems, 20
12 For example, Norma Lindao, one of the forty-eight aides at
issue, was assigned to care for a couple from 9:00 a.m. to 5:00
p.m. six days per week in June of 2004. The husband had
Parkinson’s disease and early-stage Alzheimer’s disease and the
wife suffered from epilepsy.
38

-- 38 of 44 --

epilepsy, broken limbs, diabetes, osteoporosis, breast 1
cancer, developmental disabilities, impaired mobility and 2
recent strokes. Although not all of these patients were 3
slated to receive twenty-four hour care, they were all 4
subject to nursing plans that prescribe some measure of 5
supervision and assistance. The primary reason for aides to 6
be present in patients’ homes is prevention. The Special 7
Touch aides are the primary link between the nursing agency 8
and the patients and their job is to observe the patients and 9
ensure their safety. 10
The consequences of aides not showing up to patients’ 11
homes and failing to secure replacements in advance could 12
very well be dire. In the Decision and Order that the Board 13
asks us to enforce, the Board makes light of the aides’ 14
duties, describing them as “cleaning, shopping, bathing, 15
reminding customers to take their medication, and observing 16
customers for signs of immediate distress, such as dizziness 17
or chest pains.” Special Touch IV, 2011 N.L.R.B. LEXIS 322, 18
at *3. But the reason aides perform light cleaning is to 19
decrease the chance that their frail and elderly patients 20
will trip over an obstacle or slip on a dirty floor. 21
Likewise, the reason the aides help their patients with 22
23
39

-- 39 of 44 --

shopping is that many of the patients have trouble walking 1
and are homebound. 2
It is true that some patients are occasionally left 3
alone – even when an aide is on duty – but in these 4
situations, the aide first places a phone with emergency 5
phone numbers near the patient, ensures that the patient has 6
taken any necessary medications, has gone to the bathroom and 7
is in a comfortable position, and the aide must call a 8
coordinator at Special Touch to inform the agency. The 9
evidence shows that patients who are left alone when they, 10
their families and their physicians expect that an aide will 11
be present are exposed to “foreseeable imminent danger.” 12
On June 7, 2004, when forty-eight aides did not arrive 13
as expected at their patients’ homes, their actions gave rise 14
to this danger. This is not a case like Montefiore, where 15
one physician and three nurses remained available to help 16
patients in need. See 621 F.2d at 512. This is not a case 17
like East Chicago, where two nurse’s aides and four nurses 18
kept working in the nursing home and were available to assist 19
the elderly. See 710 F.2d at 407 (dissent). This is not a 20
case like Bethany Medical Center, where routine operations 21
were delayed and transferred to other hospitals, and 22
emergency procedures could be redirected to “numerous other 23
40

-- 40 of 44 --

hospitals . . . in the near vicinity.” See 328 N.L.R.B. at 1
1095. Instead, this is a case like Federal Security, where 2
workers completely abandoned their assigned posts, exposing 3
the people they were hired to care for and protect to 4
foreseeable and imminent danger. See 154 F.3d at 753-57. 5
Before this Court, the Board emphasized the lack of 6
prior notice provided to employers in each of these cases. 7
Here, the Union gave the requisite ten-day notice of its 8
intent to strike pursuant to Section 8(g). As previously 9
discussed, the employees were not required to give individual 10
notice – not by Section 8(g) and not by Special Touch’s plant 11
rule. But the aides were required to take “‘reasonable 12
precautions to protect’ the employer’s . . . patients ‘from 13
foreseeable imminent danger due to sudden cessation of 14
work.’” Special Touch IV, 2011 N.L.R.B. LEXIS 322, at *41 15
(quoting Bethany Med. Ctr., 328 N.L.R.B. at 1094-95). By 16
misleading Special Touch into believing that each of the 17
forty-eight aides’ patients would be covered during the 18
strike, the aides exposed their patients to the risk of harm. 19
To be clear, this is not a roundabout way of 20
establishing an individual employee notification rule. Had 21
Special Touch not reached out to their aides in advance of 22
the strike in an attempt to plan ahead (as the company is 23
41

-- 41 of 44 --

authorized to do pursuant to Board precedent), the aides 1
would not have been required to call in. The Union’s notice 2
sufficed to advise the company that all of the approximately 3
1400 aides scheduled to work on June 7, 2004 might be on 4
strike. If an employer does not take it upon itself to 5
inquire further, the employer should be considered to have 6
received notice of 1400 absences. Moreover, there is no 7
requirement that an employee answer its employer’s request 8
for information. The Board made it clear in Preterm that an 9
employee cannot be forced to tell the employer whether or not 10
the employee plans to strike – this would constitute an 11
impediment to engaging in protected activity. See 240 12
N.L.R.B. at 656. What employees cannot do is mislead their 13
employer into expecting their presence when the lack thereof 14
will result in foreseeable imminent danger. 15
Despite the fact that forty-eight aides never started 16
work on June 7, 2004, it can still be said that foreseeable 17
imminent danger resulted from their “sudden cessation of 18
work.” Until approximately twenty minutes after each of the 19
forty-eight aides’ shifts began, Special Touch believed that 20
it had these patients covered. The “sudden cessation of 21
work” occurred when the company determined that nearly fifty 22
of its aides were absent and that it would need to secure 23
42

-- 42 of 44 --

replacements (many of whom would need to speak Spanish) as 1
fast as possible. 13 This twenty-minute period (the bare 2
minimum for which a patient might have been without coverage 3
on June 7), was enough time for harm to have occurred. See 4
Federal Security, 154 F.3d at 757. Moreover, while forty- 5
three patients received partial coverage on the first day of 6
the strike, an additional five patients were left alone 7
entirely when the company could not secure replacements. 8
The burden on employees is minimal. It is simply not to 9
mislead an employer about whether an employee plans to work 10
when an unexpected absence will create a risk of harm to the 11
employer’s plant, equipment or patients. This obligation 12
extends to all industries. Indeed, the resolution of this 13
case has very little to do with Section 8(g) or the 14
requirements imposed on health care employees and employers 15
by Congress. 16
This case, and our opinion, merely invokes the 17
established Board principle that an employee must take 18
reasonable precautions not to create foreseeable imminent 19
danger. The parties and the Board all agree that this is the 20
standard. Indeed, the Board identifies the employer’s right 21
13 This task was made even more difficult because Special
Touch had already pulled seventy-five replacements from its
additional pool of aides to fill in for the aides who informed
the company of their plans to strike.
43

-- 43 of 44 --

to discipline employees who fail to meet this burden as one 1
of the reasons why an individual employee notification 2
requirement is unnecessary in the health care industry. 3
Special Touch IV, 2011 N.L.R.B. LEXIS 322, at *41. The 4
forty-eight Special Touch aides who affirmatively 5
misrepresented their intent to work on June 7, 2004 engaged 6
in “indefensible conduct” that is not protected by the NLRA. 7
As a result, Special Touch’s failure to immediately reinstate 8
these employees did not violate Section 8(a)(1) or (3). 9
10
Conclusion 11
For the foregoing reasons, the petition of the National 12
Labor Relations Board to enforce its June 30, 2011 Decision 13
and Order is DENIED. 14
44

-- 44 of 44 --