National Labor Relations Board v. Special Touch Home Care Services, Inc.
708 F.3d 447
2d Cir.2013Background
- NLRB seeks enforcement of its 2011 decision finding Special Touch violated NLRA 8(a)(1),(3) by not reinstateing 48 striking aides after a union-notice strike.
- Union gave ten days' advance notice under NLRA 8(g); Special Touch polled ~1400 aides who were scheduled to work and most planned to work.
- 48 aides who planned to work did not report; company faced difficulty securing replacements for patient care, including elderly and disabled patients.
- Aides were told they could be replaced and that union notice sufficed; 43 patients received partial care and 5 had no coverage.
- Board held that individual notice rule cannot override Section 8(g); aiding misconduct caused foreseeably imminent danger to patients, justifying denial of reinstatement.
- Dissent argued otherwise, emphasizing business justification and poll integrity; majority's view nothing protected about misrepresentations by aides.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8(g) union notice precludes enforcing an individual call-in rule | NLRB: Congress balanced interests with 8(g); union notice suffices. | Special Touch: plant rule enforcement is legitimate for workforce regulation. | 8(g) trumps individual notice; cannot subvert Congress balance. |
| Whether aides' misrepresentations to polling render conduct unprotected | Aides’ misrepresentation undermined protection of protected activity. | Polls may be imperfect; does not destroy protected status. | Misrepresentations render conduct unprotected; not protected under NLRA. |
| Whether imminent danger doctrine applies to health care strikes with prior notice | Foreseeable imminent danger from aides’ absence justified limitation of protection. | No actual imminent danger; dangers were not shown to exist; plant-rule rationale applies. | Imminent danger doctrine applies; foreseeably dangerous to patients from coverage gaps justifies denying protection. |
Key Cases Cited
- Montefiore Hospital and Medical Center v. NLRB, 621 F.2d 510 (2d Cir. 1980) (union notice not required for every employee; health care context balance)
- Bethany Medical Ctr., 328 N.L.R.B. 1094 (NLRB 1999) (imminent danger standard—notice may not be required if safety preserved)
- Federal Security, Inc., 154 F.3d 751 (7th Cir. 1998) (imminent danger doctrine applies; unguarded posts endanger residents)
- East Chicago Rehabilitation Center, Inc., 710 F.2d 397 (7th Cir. 1983) (unprotected but not per se non-protected; context matters)
- Manpower, Inc. v. NLRB, 784 F.2d 442 (2d Cir. 1986) (compelling business reasons vs rights; temp staffing context)
- Republic Aviation Corp. v. NLRB, 324 U.S. 793 (Supreme Court 1945) (plant-rule doctrine—reasonable rules governing conduct on company time)