     11-3147-ag
     NLRB v. Special Touch Home Care Servs., Inc.


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


          *
            The Honorable David G. Larimer, of the United States
     District Court for the Western District of New York, sitting by
     designation.

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

40   whether a health care employer may enforce an individual

41   notice rule after its employees’ union provides advance


                                  2
 1   notice of an impending strike pursuant to 29 U.S.C. §

 2   158(g); and (2) whether health care employees who fail to

 3   report to work at individual patients’ homes without

 4   alerting their employer create a reasonably foreseeable risk

 5   of imminent danger.
 6
 7
 8                             Background
 9
10       Respondent Special Touch Home Care Services, Inc.

11   (“Special Touch”) subcontracts with nursing and health-

12   related services to provide home health aides for patients

13   who require assistance.   Special Touch’s patients have four

14   common characteristics: (1) a physician ordered home health

15   care services; (2) they have an illness that prevents them

16   from normal functioning and daily living activities; (3)

17   they are “homebound;” and (4) they are receiving skilled

18   nursing, physical, occupational or speech therapy.     Given

19   the nature of its services, Special Touch has a call-in rule

20   requiring aides who will not be able to report to their

21   patients’ homes as scheduled (for any reason) to notify

22   Special Touch.   Because aides go directly to patients’

23   homes, Special Touch uses an automated attendance system.

24   The company gets a report of which aides have not called in

25   after the start of their shifts, at which point Special

                                   3
 1   Touch calls each home to verify whether or not the aide is

 2   there.   Confirming an aide’s presence takes approximately

 3   twenty minutes.

 4       In 2004, Special Touch had approximately 2500 aides on

 5   its roster, with about 1400 of these aides regularly

 6   assigned to specific clients.       Aides are typically matched

 7   with patients based on common language, primarily English,

 8   Spanish, Chinese or Russian.     Patients receive varying

 9   amounts of care; some have an aide present twenty-four hours

10   per day, seven days a week, while others require just a few

11   hours each week.   The necessary amount of care is determined

12   by the patient’s physician.     A nursing agency sets the

13   specific “plan of care” and then subcontracts the work to

14   Special Touch.

15       Aides who work for Special Touch undergo two-and-a-half

16   weeks of mandatory training before being assigned to

17   patients.   The specific responsibilities of an aide depend

18   on the individual patient’s plan of care, but they will

19   often include helping the patient bathe and maintain good

20   personal hygiene, helping patients move around and transfer

21   from a chair to bed or to the bath, meal planning and

22   preparation, light housekeeping, and grocery shopping and



                                     4
 1   errands.   Aides often remind patients to take medication and

 2   ensure they are taking the proper doses, but aides do not,

 3   and cannot, perform medical procedures.     Special Touch’s

 4   handbook explicitly lists functions its aides are not to

 5   perform, including: taking vital signs, changing bandages,

 6   giving medication, and “[g]iv[ing] any care not included on

 7   the nursing care plan.”

 8       According to Inessa Lutinger, a registered nurse

 9   instructor who trains aides for Special Touch, “our role is

10   prevention, prevention of higher level care, prevention [of]

11   patient hospitalization, and prevention [of a] patient

12   [becoming] a resident in the nursing home.”     To achieve this

13   end, aides are taught, among other things, how to look for

14   signs of distress, to prevent falls and to recognize signs

15   of internal bleeding.     In addition, aides are trained how to

16   respond to an emergency, whether health-related or external

17   (such as a fire).   According to Lutinger, one of the biggest

18   worries with patients is their susceptibility to falling –

19   particularly falling backwards – because of their lack of

20   balance and strength.     Lutinger explained that the high risk

21   of falls is the reason the aides are tasked with light

22   housekeeping: “[I]f you keep your floor neat and nice, it



                                     5
 1   decrease[s the] probability of falling, and as a

 2   consequence[] of possible fatal injuries.”
 3
 4
 5                                 Facts
 6
 7        On May 27, 2004, New York’s Health and Human Service

 8   Union 1199SEIU, AFL-CIO, CLC (the “Union”) notified Special

 9   Touch of its intent to strike from Monday, June 7, 2004 at

10   6:00 a.m. until Wednesday, June 10, 2004 at 6:00 a.m.

11   During the week prior to the strike, coordinators and

12   supervisors from Special Touch contacted the approximately

13   1400 aides scheduled to work to inquire whether they planned

14   to take any time off during the upcoming week.2     The

15   majority of the aides indicated their intent to work as

16   scheduled.   Approximately seventy-five aides said that they

17   anticipated being absent during part of the following week

18   (whether for purposes of striking or for other reasons).

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
 1   Special Touch arranged for replacements to cover these

 2   employees’ patients.

 3        Forty-eight3 aides who had not previously conveyed their

 4   plans to be absent during the strike did not appear for work

 5   on Monday morning, June 7, 2004.    Most of these aides spoke

 6   Spanish, which made finding emergency replacements for them

 7   difficult.   Unbeknownst to Special Touch, the Union had held

 8   a meeting shortly before the strike, at which it advised

 9   aides that they did not need to notify the company if they

10   planned to strike because the Union had already provided the

11   requisite ten-day notice required by 29 U.S.C. § 158(g) for

12   health-care workers.4

13        On June 7, when forty-eight aides who were expected to

14   work failed to call in or report, Special Touch struggled to

15   get replacements to its patients.    These patients included

16   people suffering from recent strokes, Parkinson’s disease,



          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
 1   early-onset Alzheimer’s disease and other memory problems,

 2   epilepsy, broken limbs, diabetes, osteoporosis, breast

 3   cancer, developmental disabilities, and impaired mobility;

 4   some of these individuals were over eighty years old.

 5   Forty-three of the patients received partial coverage, while

 6   five patients did not receive any coverage.     According to

 7   Special Touch Vice President of Operations Linda Keehn,

 8   “[s]ome of them got partial service because we didn’t find

 9   out right away . . . . [It] was very, very confusing, very

10   chaotic.   Here all of a sudden, we thought we had everything

11   sort of covered . . . .”

12       Following the strike, the seventy-five aides who had

13   advised Special Touch of their planned absence when asked

14   during the pre-strike poll were immediately reinstated to

15   work with their previously-assigned patients.     The forty-

16   eight aides who responded during the poll that they intended

17   to work but failed to report as expected were advised not to

18   return to their assigned patients until further notice.

19   These forty-eight aides were ultimately reassigned over the

20   next few months, but not always to their prior patients or

21   to similar work schedules.   One week after the strike began,

22   Keehn sent letters to these forty-eight aides detailing the


                                   8
 1   company’s position on their absence:
 2
 3               You were asked if you would be taking any
 4               time off the week of June 7th. You told
 5               us that you would be working.
 6
 7               Despite your assurance, you did not show
 8               up at the patient’s home on June 7th, nor
 9               did you call into the office at any time
10               prior to the start of your shift to
11               advise us that you would not be working
12               that day. As a result, you left the
13               patient at risk of being unattended by a
14               home health aide.
15
16               You know that Special Touch policies and
17               procedures require you to call in.
18
19   (JA 863.)
20
21   The letter goes on to state that Special Touch was aware of

22   the confusion over notification following the Union meeting,

23   and, as a result, the company had determined not to

24   terminate any of the employees.

25
26                           Procedural History
27
28        After the Union filed charges against Special Touch,

29   the National Labor Relations Board’s (“Board”) General

30   Counsel issued a complaint charging Special Touch with

31   violating the National Labor Relations Act (“NLRA”), 29

32   U.S.C. § 158(a)(1) and (3),5 by failing and refusing to

          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
 1   reinstate the forty-eight aides who participated in the

 2   strike unexpectedly.   Administrative Law Judge Raymond P.

 3   Green (“ALJ”) held a hearing, at which he heard testimony by

 4   eleven of the striking aides, various Special Touch

 5   supervisors and coordinators, Keehn, and Lutinger.      The ALJ

 6   ruled that Special Touch could not defend its treatment of

 7   the forty-eight aides as unprotected strikers because their

 8   failure to comply with the company’s call-in rule did not

 9   alter their status as protected workers.     Special Touch Home

10   Care Servs., Inc., 2005 N.L.R.B. LEXIS 472, at *20-22 (Sept.

11   15, 2005) (Special Touch I).    The ALJ reasoned that to find

12   otherwise would mean that “an employer could, by enactment

13   of a private rule, nullify the public rights guaranteed by a

14   statute of the United States” – namely, 29 U.S.C. § 158(g).

15   Id. at *14.

16        The ALJ discussed Congress’s enactment of Section 8(g)


     (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
 1   in 1974, which requires unions to give ten days of notice to

 2   health care facilities before their employees go on strike.6

 3   He confirmed that the notification requirement is limited to

 4   unions and does not apply to individual employees.          See id.

 5   at *17.       The ALJ rejected Special Touch’s argument that some

 6   type of notice requirement was appropriate in this situation

 7   because of the “imminent danger” to patients that would be

 8   created otherwise: “[a]ssuming arguendo that an ‘imminent

 9   danger’ qualification can be read into the Act’s conference

10   of the right to strike, the evidence does not establish that

11   such a danger existed in this case.”         Id. at *19.   The ALJ

12   reasoned that “there were only about five clients for whom

13   the Respondent could not get coverage.         And as to them,

14   there was no evidence that they suffered any adverse

15   consequences.”       Id. at *20.   Accordingly, the ALJ concluded

16   that Special Touch had violated 29 U.S.C. § 158(a)(1) and

17   (3) by failing to immediately reinstate the forty-eight



             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
 1   strikers upon their unconditional offer to return to work.

 2   See id. at *35.

 3       The Board adopted the ALJ’s reasoning with respect to

 4   Special Touch’s violation of Section 8(a) and petitioned

 5   this Court for enforcement of its September 29, 2007

 6   Decision and Order.     Special Touch Home Care Servs., Inc.,

 7   351 N.L.R.B. 754 (2007) (Special Touch II).      We issued a

 8   decision enforcing the order in part, modifying and

 9   enforcing as modified in part, and remanding for the Board

10   to consider the intersection of the “plant rule” doctrine

11   and Section 8(g).     NLRB v. Special Touch Home Care Servs.,

12   Inc., 566 F.3d 292 (2d Cir. 2009) (Special Touch III).          We

13   were concerned with the potential incompatibility between

14   the plant rule doctrine, which allows employers to enforce

15   neutral plant rules governing employees on company time

16   (such as Special Touch’s call-in rule), and Section 8(g)’s

17   union notification requirement.      See id. at 297-301.   We

18   remanded and advised the Board to balance three key

19   interests in resolving the issue: “(1) the employer’s

20   attempt to maintain a properly regulated workforce, (2) the

21   employees’ interest in striking (including their interest in

22   not having to decide in advance that they wished to


                                     12
 1   participate), and (3) the risk to the clients, including the

 2   nature of the care provided by the aides.”      Id. at 300.     We

 3   did not reach Special Touch’s remaining arguments regarding

 4   indefensible conduct (imminent danger), permanent

 5   replacement and the legitimate business justification

 6   defense.     See id. at 301.

 7        On remand, the Board re-affirmed its prior conclusion

 8   that Special Touch had violated Section 8(a)(1) and (3) by

 9   refusing to promptly reinstate the forty-eight striking

10   aides.     Special Touch Home Care Servs., Inc., 2011 N.L.R.B.

11   LEXIS 322 (June 30, 2011) (Special Touch IV).      The Board

12   concluded that Congress had already balanced the relevant

13   interests at stake with respect to health care strikes and

14   reached a conclusion:     Section 8(g).7   See id. at *13-19.

15   The Board determined that the union notification rule

16   represented a compromise reached by legislators endeavoring

17   to balance two competing interests: first, the previously

18   limited rights of health care employees, and second, the

19   special protection necessary for patient care.      See id. at

20   *15-16.


          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
 1       With respect to patient care, the Board acknowledged

 2   that even health care employees who “cease work without

 3   taking ‘reasonable precautions to protect’ the employer’s

 4   plant, equipment, or patients ‘from foreseeable imminent

 5   danger due to sudden cessation of work’” are not protected

 6   under the NLRA.     Id. at *41 (quoting Bethany Med. Ctr., 328

 7   N.L.R.B. 1094, 1094-95 (1999)).         The Board rejected the

 8   claim that Special Touch’s aides’ failure to warn the

 9   company about their intent to strike created an “imminent

10   danger.”   See id. at *19-22.      However, the Board noted that

11   “under appropriate circumstances, we would entertain an

12   argument that despite prior notice, a strike, or particular

13   employees’ participation in a strike, created an imminent

14   danger.”   Id. at *22 n.17.

15       Finally, the Board reviewed and rejected Special

16   Touch’s argument that its aides’ misrepresentations during

17   its pre-strike polling justified denying immediate

18   reinstatement.    Disavowing Special Touch’s contention that

19   the right to poll employees loses all value if the employees

20   need not answer accurately, the Board declined to adopt a

21   rule requiring honesty in polling or allowing discipline in

22   its absence.     See id. at *33.


                                        14
 1       Member Hayes dissented, arguing that under “the

 2   particular facts of this case,” Special Touch acted lawfully

 3   because the company had shown a “sufficiently compelling

 4   business justification for enforcing its call-in rule and

 5   that justification outweighs the minimal burden imposed on

 6   employees’ protected right to strike.”     Id. at *47

 7   (dissent).     The dissent focused on the forty-eight aides’

 8   affirmative misrepresentations upon being polled.       Member

 9   Hayes reasoned that the majority’s ruling meant that

10   employees need never provide a lawful answer to a post-

11   notice of strike survey, “thus eviscerating the poll as an

12   effective aid in arranging for continuing patient care.”

13   Id. at *51.     The dissent noted further that this would allow

14   unions and employees the opportunity to wield their ability

15   to strike in a dangerously disruptive manner – essentially,

16   by purposely misleading their employer.     See id. at *51-52.

17       The Board’s June 30, 2011 Decision and Order holding

18   Special Touch responsible for violating Section 8(a)(1) and

19   (3) is now before us on the Board’s petition for

20   enforcement.

21

22



                                     15
 1

 2                             Discussion

 3       Special Touch makes two main arguments before this

 4   Court.   First, Special Touch contends that the Board ignored

 5   our mandate instructing it to balance the interests of

 6   employees, employers and clients in determining whether

 7   failure to comply with the company’s call-in rule renders

 8   otherwise lawful strikers’ actions unprotected.     The NLRB

 9   argues that the Board did consider the interests of the

10   aides, Special Touch and patients “by giving heed to the

11   balance Congress already struck with regard to their

12   interests.”   (Petitioner’s Br. at 28.)

13       Second, Special Touch argues that the Board erred in

14   rejecting its “imminent danger” defense, pursuant to which

15   the company claims that forty-eight aides failed to take

16   reasonable precautions to protect their patients from

17   foreseeable imminent danger.   The NLRB gives little

18   attention to this argument, stating that the record fails to

19   show that patients were subject to substantial risk of harm

20   and, instead, only that the company was inconvenienced.

21       We will enforce the Board’s order if its legal

22   conclusions have a “reasonable basis in law.”     See NLRB v.


                                    16
 1   Windsor Castle Health Care Facilities, Inc., 13 F.3d 619,

 2   623 (2d Cir. 1994)(citing Universal Camera Corp. v. NLRB,

 3   340 U.S. 474, 488 (1951)).   We review the Board’s factual

 4   findings for whether they are supported by substantial

 5   evidence.   See id.   Here, the facts are not in dispute.

 6   Accordingly, we review the Board’s application of law to

 7   fact de novo, deferring to the Board’s decision if there is

 8   “more than one reasonable resolution,” one of which the

 9   Board has adopted.    See Sheridan Manor Nursing Home, Inc. v.

10   NLRB, 225 F.3d 248, 252 (2d Cir. 2000).

11
12   I. “Plant Rule” Doctrine
13
14       We previously remanded to the Board for the specific

15   purpose of considering the intersection between the plant

16   rule doctrine and Section 8(g).     We understand the plant

17   rule doctrine to “permit[] an employer to enforce neutral

18   ‘reasonable rules covering the conduct of employees on

19   company time.’”   See Special Touch III, 566 F.3d at 297

20   (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803

21   n.10 (1945)).

22       In Republic Aviation, the Supreme Court upheld the

23   Board’s finding that a company’s rule prohibiting any type

24   of solicitation on company property could not be used to

                                    17
 1   prohibit union solicitation on the premises during an

 2   employee’s free time without violating Section 8(3).          See

 3   324 U.S. at 795, 805.   The Court reached this result by

 4   endorsing the Board’s established presumption that the NLRA

 5   does not prevent employers from establishing “reasonable

 6   rules” governing employee conduct while “on company time.”

 7   Id. at 803 n.10 (quoting Peyton Packing Co., 49 N.L.R.B.

 8   828, 843 (1943)).   The Court (like the Board) emphasized the

 9   importance of rules regulating the workplace applying to

10   conduct occurring “during working hours.”       See id.

11       The Board subsequently relied on the plant rule doctrine

12   to uphold the termination of employees who violated a neutral

13   notification rule at a chicken-processing plant.          See Terry

14   Poultry Co., 109 N.L.R.B. 1097 (1954).      In Terry Poultry, the

15   company had a “long-standing plant rule” requiring factory

16   workers to notify other personnel if they were leaving the

17   assembly line.   See id. at 1097-98.      Two employees violated

18   this rule by leaving the line to make a labor complaint to

19   the plant’s superintendent.     See id.    Their undisclosed

20   departure caused disruption of the production line.          See id.

21   at 1098.   The employees were terminated for violating the

22   plant rule.   Id. at 1099.    The Board upheld their

23   terminations after finding that the rule was not adopted for

                                     18
 1   a discriminatory purpose but was instead aimed solely at

 2   ensuring efficient business practices.    See id. at 1098-99.

 3   The Board further supported this decision by reasoning that

 4   the rule did not constitute an “unreasonable impediment” to

 5   the employees’ exercise of their rights under the NLRA.      See

 6   id. at 1098.

 7       The Board later cited to Terry Poultry in upholding

 8   employee suspensions for violating a chemical plant’s

 9   “longstanding, well-publicized rule requiring operators to be

10   properly relieved before leaving the plant” during a strike.

11   See Gen. Chem. Corp., 290 N.L.R.B. 76, 83 (1988).     This case

12   brought in elements of both the plant rule doctrine and the

13   imminent danger doctrine, discussed infra, because the rule

14   at issue in General Chemical was not intended merely for

15   factory efficiency, but primarily for “ensur[ing] safety to

16   the equipment, the plant, and the general public.”     Id.   The

17   Board found that the employees’ failure to take the

18   reasonable precaution of spending fifteen minutes obtaining

19   relief at their stations created a “reasonably foreseeable

20   possibility of danger.”   Id.   However, because the “danger

21   was eminent (significant) rather than imminent (impending),”

22   the Board relied primarily on the plant rule doctrine to find

23

                                     19
 1   that the employer’s response did not violate the NLRA.     See

 2   id. at 83-84.

 3       In its analysis of these key plant rule decisions, the

 4   Board noted some crucial differences between the facts

 5   therein and those at issue here, see Special Touch IV, 2011

 6   N.L.R.B. LEXIS 322, at *26-30, as did we, see Special Touch

 7   III, 566 F.3d at 298-99.   First, the companies in the plant

 8   rule cases did not receive any prior notice of concerted

 9   activity.   Special Touch had ten days’ notice provided by the

10   Union.   Second, the plant rule cases emphasize the propriety

11   of reasonable rules regulating employee conduct “on company

12   time.”   Here, the relevant rule focuses specifically on

13   employee conduct outside of working hours by requiring

14   advance notice of an employee’s intent to miss work.

15       The Board contends that a better match for this case is

16   Savage Gateway Supermarket, 286 N.L.R.B. 180 (1987), enfd.,

17   865 F.2d 1269 (6th Cir. 1989) (unpublished decision), in

18   which the Board examined when an employer’s desire to enforce

19   a plant rule is supported by compelling business interests

20   sufficient to outweigh certain rights held by employees.     In

21   Savage Gateway, the Board determined that a grocery store had

22   violated the NLRA by terminating an employee who did not show

23   up for work on two consecutive days while picketing was

                                   20
 1   ongoing in front of the store.        See id. at 183-84.   The

 2   company argued that its termination of the employee was due

 3   to her failure to comply with its “longstanding work rule

 4   requiring notification of absence to the store manager.”             Id.

 5   at 183.   The Board rejected this contention, finding that the

 6   employer did not have a compelling business interest for

 7   enforcing its rule that was sufficient to outweigh the

 8   employee’s right to engage in protected activity.          See id.

 9   Instead, the company sought to apply its rule for the sake of

10   convenience.   See id.

11       Special Touch argues that the Board’s reliance on Savage

12   Gateway is misplaced in light of this Court’s decision in

13   Business Services by Manpower, Inc. v. NLRB, which is cited

14   in Savage Gateway and features facts more closely analogous

15   to those at issue here.   784 F.2d 442 (2d Cir. 1986).        In

16   Manpower, the company supplied temporary employees to

17   businesses with industrial or clerical short-term

18   assignments.   See id. at 443.    Because the employees reported

19   directly to the temporary employer that had contracted with

20   Manpower, the company had a policy that any employee who

21   could not make it to an assignment had to call in and that

22   anyone who failed to call in or report to work would be

23   considered to have resigned.     See id.     Two employees sent to

                                      21
 1   fill a shift at a factory chose not to work after seeing a

 2   “stranger” picket line composed of five or six workers from

 3   one of the temporary-employer’s plants located 100 miles

 4   away.    See id. at 443-44.

 5          Manpower considered these employees to have resigned

 6   after they did not show up for their assignment.       See id. at

 7   444.    The Board ruled that the company violated the

 8   employees’ rights under the NLRA.    See id. at 445.    We

 9   declined to enforce this order because we determined that

10   Manpower had “compelling business reasons” for enforcing its

11   policy that were sufficient to overcome the employees’

12   exceptionally “thin” protected rights under the

13   circumstances.     See id. at 454.

14          Here, Member Hayes takes a similar position in dissent:

15   Special Touch’s business reasons for enforcing its call-in

16   rule were sufficiently compelling to override the minimal

17   burden that compliance with the rule imposed on the aides’

18   right to strike.    The dissent notes that Congress intended

19   for health care workers to be treated the same as any other

20   industry employees, such that legitimate business reasons

21   that would justify a non-health care company’s conduct should

22   suffice equally in the health care field.    See Special Touch

23   IV, 2011 N.L.R.B. LEXIS 322, at *52 (dissent).     This argument

                                     22
 1   is tempting.   After all, Special Touch has compelling

 2   business interests for enforcing its call-in rule (providing

 3   aides when and where the company said it would) that are very

 4   similar to the interests cited by the company in Manpower.

 5        The problem with this position, however, is that it

 6   elevates the company’s preferences over those espoused by

 7   Congress.   Congress’s decision to require union notification

 8   via Section 8(g) trumps Special Touch’s interests in

 9   enforcing its call-in rule, regardless of whether its argued

10   basis for doing so is business-related or safety-oriented.8

11   As the Board correctly determined, to hold otherwise would

12   constitute a rejection of the balance struck by Congress in

13   enacting Section 8(g).

14        Section 8(g), one of Congress’s amendments to the NLRA

15   in 1974, is part of a package intended to remedy the

16   exclusion of nonprofit hospital workers9 from the protections


          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
 1   guaranteed by the NLRA while still ensuring “that the needs

 2   of patients would be met during contingencies arising out of

 3   labor disputes.”      See Staff of S. Comm. on Labor, 93d

 4   Congress, Legislative History of the Coverage of Nonprofit

 5   Hospitals under the National Labor Relations Act, (Comm.

 6   Print 1974) (hereinafter Legislative History).      The 1974

 7   amendments were the result of “extensive discussion with

 8   those groups representing employers, employees and the

 9   administration” in the health care industry.      Id.    The goal

10   of the amendments was to incorporate “the public interest

11   demand[] that employees of health care institutions be

12   accorded the same type of treatment under the law as other

13   employees in our society.”      Legislative History, S. Rep. No.

14   93-766, at 11 (1974).     With this in mind, the union

15   notification provision is intended as a sufficient safeguard

16   to enable health care workers to strike; there is no

17   requirement that individual employees provide notice.       The

18   Board, and this Court, have recognized this principle

19   repeatedly.

20        For example, in Montefiore Hospital and Medical Center

21   v. NLRB, we confirmed that Section 8(g) contains a “clear



     (Comm. Print 1974).

                                      24
 1   limitation” requiring notice from labor organizations and not

 2   from individual workers – an interpretation that had been

 3   confirmed by numerous other Circuits as well as the Board.

 4   621 F.2d 510, 514-15 (2d Cir. 1980).   Our comments in dicta

 5   that after a “union has given notice of its intention to

 6   strike, the hospital would be well-advised to inquire of the

 7   rest of its employees whether they plan to stay out in

 8   sympathy” and that “[a]n employee who strikes after promising

 9   to show up may well forfeit protection under the Act” have no

10   bearing on Section 8(g)’s requirements.    Id. at 515.    We

11   supported this assertion by citing to Silbaugh v. NLRB, 429

12   F.2d 761, 762 (D.C. Cir. 1970), which proposes that an

13   employee who strikes “in violation of a union’s commitment to

14   an employer not to do so” is not engaging in protected

15   activity.   See id.   But this cannot change our finding that

16   the language of Section 8(g) is “crystal clear” that no

17   individual health care employee is required to give notice.

18   Montefiore, 621 F.2d at 514.

19       In addition, our statement in dicta is directed toward

20   the “rest” of a hospital’s employees, meaning the ones who

21   are not covered by the union notification.    See id.    For

22   these employees to misrepresent their intentions to strike is

23   distinguishable: union employees have already given notice of

                                    25
 1   their intent to strike via union compliance with Section

 2   8(g).

 3       For these reasons, the Board correctly determined that

 4   an employer cannot subvert the Congressional compromise

 5   reached in Section 8(g) by enforcing a plant rule requiring

 6   notification of absence.   The Foreword to the 1974 amendments

 7   makes it apparent that Congress specifically weighed the

 8   interests of employers and employees, in light of the

 9   “special considerations” relevant in the health care

10   industry, in adopting a union notice rule but not an

11   individual employee notice rule.   See Legislative History.

12   Notably, Congress balanced these interests in 1974, after the

13   plant rule doctrine had been established.

14       Special Touch cannot override this policy choice:

15   Section 8(g) trumps Special Touch’s legitimate business

16   reasons for enforcing an individual notice rule.    Thus, we do

17   not believe that the aides’ conduct was stripped of

18   protection because they did not comply with Special Touch’s

19   call-in rule.   Instead, we hold that the aides’ actions were

20   unprotected because their uncorrected affirmative

21   misrepresentations regarding their plans to strike in

22   response to the pre-strike poll placed forty-eight of Special

23   Touch’s patients in foreseeable imminent danger.

                                   26
 1
 2   II. Imminent Danger Doctrine
 3
 4          The Board and Special Touch agree that otherwise lawful

 5   strikers’ conduct is unprotected when employees “cease work

 6   without taking ‘reasonable precautions to protect’ the

 7   employer’s plant, equipment, or patients ‘from foreseeable

 8   imminent danger due to sudden cessation of work.’”10       Special

 9   Touch IV, 2011 N.L.R.B. LEXIS 322, at *41 (quoting Bethany

10   Med. Ctr., 328 N.L.R.B. at 1094-95).        The case that is often

11   cited as providing the basis for this doctrine is Marshall

12   Car Wheel & Foundry Co., 107 N.L.R.B. 314 (1953), enf.

13   denied, 218 F.2d 409 (5th Cir. 1955).

14          In Marshall Car Wheel, almost half of the employees at a

15   foundry deliberately timed their walk-out (without giving

16   advance notice) to coincide with the moment when molten iron

17   in the plant cupola was ready to be poured off.        218 F.2d at

18   411.        In determining whether the employees had engaged in

19   protected conduct, the Board first recognized the general

20   principle that an employee’s right “to engage in concerted

            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
 1   activity is limited by the duty to take reasonable

 2   precautions to protect the employer’s physical plant from

 3   such imminent damage as foreseeably would result from their

 4   sudden cessation of work.”       Marshall Car Wheel, 107 N.L.R.B.

 5   at 315.     Although the Board found that the employees had

 6   deliberately endangered the plant, the Board determined that

 7   the evidence showed that the employer disciplined the

 8   employees because they violated a plant rule, not because

 9   their action caused a risk of damage.       See id. at 318-19.

10   The former basis for reprisal was insufficient to undermine

11   the employees’ rights to engage in concerted activity;

12   therefore the Board declared the employees’ conduct to be

13   protected.     See id. at 319.

14       The Fifth Circuit declined to enforce the Board’s

15   decision.     NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d

16   409 (5th Cir. 1955).     The court disagreed with the Board’s

17   reasoning that the company “was not primarily concerned with

18   the imminent threat of damage” but instead with the violation

19   of its plant rule forbidding employees from leaving the plant

20   without notice and permission:

21               [The Board’s] ultimate conclusion that it
22               was the violation of the plant rule, and
23               that alone, which respondent refused to
24               condone or forgive seems to us
25               illogically to confuse cause and effect,

                                       28
 1               to make the tail wag the dog. Assuredly
 2               the respondent was not more interested in
 3               preserving the inviolability of its plant
 4               rule, as such, than it was in protecting
 5               its plant from the extensive damage and
 6               loss which might have resulted from the
 7               illegal walkout. On the ultimate issue of
 8               whether respondent was entitled to
 9               discharge or deny reinstatement to the
10               offending strikers, the real inquiry is
11               the character of the concerted activity
12               engaged in, not whether the rule was
13               incidentally breached thereby.
14
15   218 F.2d at 416-17 (emphasis added) (internal quotation marks

16   omitted).
17
18       This case is a good example of how the plant rule

19   doctrine and the “imminent danger” principle can be conflated

20   – they will often go hand-in-hand.    This is unsurprising;

21   companies with a need to protect against dangerous work-

22   related activity are likely to have rules in place for that

23   purpose.    See, e.g., Gen. Chem. Corp., 290 N.L.R.B. at 77.

24   Regardless, while enforcing an internal company rule

25   antithetical to Congressional intent is inappropriate,

26   recognizing the applicability of the imminent danger doctrine

27   (even if it concerns the same subject matter as the plant

28   rule) is not only in keeping with the case law, it is good

29   policy.

30        In the health care context, we cited Marshall Car Wheel

31   in Montefiore Hospital and Medical Center v. NLRB for the

                                     29
 1   proposition that prior notice of concerted activity is

 2   required “only when a strike, by its timing or

 3   unexpectedness, creates great danger or is likely to damage

 4   the employer’s business excessively.”          621 F.2d 510, 515 (2d

 5   Cir. 1980).   This Court then rejected the hospital’s argument

 6   that two doctors’ participation in a strike (without notice)

 7   put patients at risk and therefore stripped the doctors’

 8   conduct of protection.       See id. at 516.

 9       We reached this result because the doctors’ main duties

10   were in teaching and consulting, rather than patient care,

11   and “[t]his was not a case in which patients were left lying

12   on the operating table, emergency room personnel walked off,

13   or people in need of immediate treatment were left to fend

14   for themselves.”    Id.   In addition, this Court noted that the

15   clinic remained open with one doctor, three nurses and a

16   receptionist during the strike.        See id. at 512.    Though

17   short of its usual ten or twelve doctors and approximately

18   twenty-five other personnel, the clinic was able to, and did,

19   treat patients.    See id.

20       The Seventh Circuit dealt with a comparable scenario in

21   East Chicago Rehabilitation Center, Inc. v. NLRB, in which

22   the majority determined that a brief walk-out by seventeen

23   nurse’s aides and support personnel at a nursing home did not

                                       30
 1   endanger the health of the facility’s patients.          710 F.2d

 2   397, 405 (7th Cir. 1983).       The majority gave several reasons

 3   for its conclusion that the unexpected walk-out was

 4   protected.

 5         First, the court affirmed the Board’s finding that the

 6   walk-out “caused inconvenience” but did not endanger

 7   patients.    Id. at 404.   Specifically, the Board had found

 8   that patients’ meals and medications were delayed, patients’

 9   sheets were not changed punctually, and one deceased person’s

10   body was not removed in a timely fashion – a fact that the

11   majority deemed “unpleasant[].”        See id. at 405.    Second,

12   none of the strikers were doctors or nurses, supporting the

13   Board’s finding that the strike did not “jeopardize[] any

14   patient’s safety or health.”       See id. at 404 (internal

15   quotation marks omitted).       Third, the court noted that the

16   nursing home refused to allow the striking employees to

17   resume work, implying that the company was operating ably

18   without them (and there was no evidence of replacements

19   arriving).    See id. at 405.     Even so, the court viewed this

20   as a “close case” which “might well have gone the other way,”

21   and noted that “at some point the cumulative distress to

22   helpless patients caused by a walkout of nurse’s aides might

23   cross the line that separates inconvenience from inhumanity.”

24   Id.

                                       31
 1         In the final health care case discussed in Special Touch

 2   IV, the Board re-affirmed the principle that Section 8(g)

 3   only requires notice from unions, not from individual heath

 4   care employees.     See Bethany Med. Ctr., 328 N.L.R.B. 1094,

 5   1094 (1999).     In Bethany Medical Center, the Board determined

 6   that a two-hour walk-out by catheterization laboratory

 7   employees who provided fifteen minutes’ notice before the

 8   first procedure scheduled for the day was not “indefensible”

 9   conduct and did not create imminent danger.      See id. at 1094-

10   95.   Before analyzing the facts, the Board stated that the

11   “same standards of conduct” apply to health care employees as

12   to employees in other industries.     Id. at 1094.

13   “Accordingly, the test of whether the catheterization

14   laboratory employees’ work stoppage lost the protection of

15   the Act is not whether their action resulted in actual injury

16   but whether they failed to prevent such imminent damage as

17   foreseeably would result from their sudden cessation of

18   work.”     Id.

19         Based on this standard, the Board determined that the

20   employees’ conduct was protected.     Id.   First, at the time of

21   the walk-out, no patients were actually in the laboratory,

22   nor did any patients require emergency treatment.      See id. at

23   1094-95.     Second, all of the procedures scheduled for the day

24   were routine and able to be transferred to nearby hospitals.

                                     32
 1   See id. at 1094.       The Board noted that any delays experienced

 2   were not exceptional and that the lab had a set policy for

 3   rescheduling, or “bumping,” procedures – both routine and

 4   emergency.     Id. at 1095.    Third, the Board found that because

 5   there were “numerous other hospitals . . . in the near

 6   vicinity” with the same capabilities as the lab, the

 7   circumstances did not demonstrate a foreseeable risk of harm

 8   to patients.     Id.

 9       Board Chairman Truesdale analogized the fact pattern in

10   Bethany Medical Center to that in East Chicago, finding that

11   both of these cases involved situations where “there were

12   other persons to ‘provide cover’ for the employees.”       Id. at

13   1095 n.9.    Chairman Truesdale distinguished circumstances

14   like these, in which striking workers are “provided cover,”

15   from those in NLRB v. Federal Security, Inc., 154 F.3d 751

16   (7th Cir. 1998), in which a walk-out by security guards left

17   a housing project unprotected.         See id.

18       In Federal Security, the Seventh Circuit refused to

19   enforce the Board’s decision that security guards who

20   abandoned their stations at a dangerous public housing

21   complex in Chicago (leaving at least four posts completely

22   unguarded) had engaged in protected activity.       154 F.3d at

23   752-53, 756.    The housing complex hired around-the-clock

24   armed guards to staff posts, sweep buildings for weapons and

                                       33
 1   drugs, and verify that only residents and guests entered the

 2   facilities.     See id. at 753.     The court determined that the

 3   protection provided by the guards was critical – a finding

 4   contained “in record evidence undisputed by the parties but

 5   largely unmentioned by the ALJ.”        Id. at 756.   Given the

 6   guards’ protective duties, the Seventh Circuit determined

 7   that even though the complex was left unguarded for only

 8   twenty minutes, that was enough to place residents in danger.

 9   See id. at 757.

10        The court identified a “clear” distinction between the

11   facts in Federal Security and those in East Chicago: “[W]hile

12   the nurses’ aides left behind doctors, nurses, and other

13   front-line health care workers to provide cover, here the

14   guards were the front line, leaving behind unattended

15   stations and vulnerable residents.”        Id. at 756.   Moreover,

16   the Seventh Circuit took issue with the ALJ’s focus on

17   whether harm actually occurred as a result of the walk-out.

18   See id. at 756-57.     The court explained that the imminent

19   danger doctrine11 “does not ask whether anyone actually was

20   harmed by the activity otherwise protected; it asks whether

21   the activity endangered anyone to the point that harm was

22   foreseeable.”     Id. at 757.     Since “otherwise protected


          11
            Therein referred to as the “‘health and safety’
     exception.” See id. at 757.

                                        34
 1   activity surely loses its protection when it compromises the

 2   safety of others,” the guards’ conduct was not protected

 3   under the NLRA.   See id. at 755, 756.

 4       We have no doubt that this case is more akin to Federal

 5   Security than to East Chicago.     The Board, however, was

 6   dismissive of the argument that Special Touch’s patients were

 7   placed at risk by the aides’ conduct.      This view is traceable

 8   to two sources.

 9       First, the ALJ in Special Touch I used the wrong

10   standard to assess whether the imminent danger doctrine was

11   in play (as in Federal Security), observing that “[a]t the

12   end of the day on June 7, 2004, there were only about five

13   clients for whom the Respondent could not get coverage.      And

14   as to them, there was no evidence that they suffered any

15   adverse consequences.”   2005 N.L.R.B. LEXIS 472, at *20.

16   Actual harm to patients is not the issue.      The appropriate

17   inquiry is focused on the risk of harm, not its realization.

18   The Board was quite clear in General Chemical:      “Although no

19   actual damage took place, that is not the test.      There was a

20   reasonably foreseeable possibility of danger – the purpose of

21   the [plant] rule.”   290 N.L.R.B. at 83.     Likewise, in Federal

22   Security, the Seventh Circuit specifically noted that

23   “[w]hether actual harm resulted is hindsighted and

24   irrelevant.   The proper focus is that the unguarded stations

                                   35
 1   unquestionably heightened the danger to residents.”     154 F.3d

 2   at 757.   The standard is well-established for good reason.

 3   Penalizing companies for disciplining employees whose

 4   indefensible conduct fortuitously yields no damage would not

 5   serve the underlying purpose of the doctrine – avoiding

 6   unreasonable risk.   It would be cruel to hold well-meaning

 7   entities accountable for their employees’ good luck.

 8       Second, although the Board cabined its focus to danger

 9   (rather than actual harm) in Special Touch IV, it also

10   observed that it was unaware of any case in which “imminent

11   danger” existed along with properly given Section 8(g)

12   notice.   2011 N.L.R.B. LEXIS 322, at *22.   And, while “under

13   appropriate circumstances, [the Board] would entertain an

14   argument that despite prior notice, a strike, or particular

15   employees’ participation in a strike, created an imminent

16   danger,” the Board did not believe that the situation here

17   qualified.   See id. at *22 n.17.

18       The facts in this case are not disputed.    The Board

19   acknowledged that Special Touch patients “have a wide range

20   of physical and mental conditions ranging from depression to

21   diabetes to poststroke partial paralysis.”    Id. at *3.

22   Still, the Board did not believe that Special Touch aides’

23   presence in patients’ homes was necessary to prevent a

24   foreseeable risk of harm.   At oral argument, attorneys for

                                   36
 1   the NLRB supported this position by explaining that many of

 2   the aides advised their patients or patients’ families that

 3   they would be absent on the day of the strike (thus

 4   alleviating the danger) and that, regardless, if an emergency

 5   did arise, the aides are unable to administer medication.      We

 6   disagree with the Board’s application of the law to these

 7   facts and to the record as a whole.    Neither the aides’

 8   individual notice to patients nor the aides’ inability to

 9   perform medical services significantly mitigates the risks

10   posed when a home health care aide neglects to attend his or

11   her patient.

12       It was undisputed that Special Touch aides care for

13   patients who are referred to nursing agencies by physicians

14   or hospitals and it is this contracting agency that

15   ultimately determines whether a patient can be left alone at

16   any given time.    For example, Special Touch Vice President

17   Keehn testified that if a patient resists having an aide on

18   any given day, or even if a family member of the patient

19   offers to take care of the patient instead, Special Touch

20               would then consult with the contracting
21               agency just to see if that would be
22               acceptable to them because we couldn’t
23               cancel the service even for the one day
24               without reporting it to the nursing
25               staff, contracting agency nursing staff.
26               And they do say no. Sometimes they say,
27               no, we don’t think it’s a good idea.
28   (JA 503.)


                                     37
 1   There is an obvious explanation: medical professionals do not

 2   want people without training to be responsible for taking

 3   care of elderly, sick and/or homebound patients.

 4        For this reason, it is irrelevant that many of the

 5   forty-eight aides who did not call in or show up on June 7,

 6   2004 warned their patients in advance.     While this gesture is

 7   well-meaning, it does not remove the danger.     First, many of

 8   the patients served by Special Touch live alone and there is

 9   no one readily available to cover for an absent aide.      Some

10   of the company’s patients live with equally aged and infirm

11   spouses or siblings.12   Second, even if a patient does live

12   with family, these individuals have not been trained to

13   provide the care the patient needs.     And finally (but

14   critically), many of Special Touch’s patients do not

15   appreciate the degree of care that their conditions require.

16        The aides who work at Special Touch receive weeks of

17   training designed to help them take care of patients who,

18   like some of the forty-eight who were left alone on June 7,

19   2004, have conditions including Parkinson’s disease, early-

20   onset Alzheimer’s disease and other memory problems,


          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
 1   epilepsy, broken limbs, diabetes, osteoporosis, breast

 2   cancer, developmental disabilities, impaired mobility and

 3   recent strokes.    Although not all of these patients were

 4   slated to receive twenty-four hour care, they were all

 5   subject to nursing plans that prescribe some measure of

 6   supervision and assistance.     The primary reason for aides to

 7   be present in patients’ homes is prevention.     The Special

 8   Touch aides are the primary link between the nursing agency

 9   and the patients and their job is to observe the patients and

10   ensure their safety.

11       The consequences of aides not showing up to patients’

12   homes and failing to secure replacements in advance could

13   very well be dire.     In the Decision and Order that the Board

14   asks us to enforce, the Board makes light of the aides’

15   duties, describing them as “cleaning, shopping, bathing,

16   reminding customers to take their medication, and observing

17   customers for signs of immediate distress, such as dizziness

18   or chest pains.”     Special Touch IV, 2011 N.L.R.B. LEXIS 322,

19   at *3.   But the reason aides perform light cleaning is to

20   decrease the chance that their frail and elderly patients

21   will trip over an obstacle or slip on a dirty floor.

22   Likewise, the reason the aides help their patients with

23


                                     39
 1   shopping is that many of the patients have trouble walking

 2   and are homebound.

 3       It is true that some patients are occasionally left

 4   alone – even when an aide is on duty – but in these

 5   situations, the aide first places a phone with emergency

 6   phone numbers near the patient, ensures that the patient has

 7   taken any necessary medications, has gone to the bathroom and

 8   is in a comfortable position, and the aide must call a

 9   coordinator at Special Touch to inform the agency.     The

10   evidence shows that patients who are left alone when they,

11   their families and their physicians expect that an aide will

12   be present are exposed to “foreseeable imminent danger.”

13       On June 7, 2004, when forty-eight aides did not arrive

14   as expected at their patients’ homes, their actions gave rise

15   to this danger.     This is not a case like Montefiore, where

16   one physician and three nurses remained available to help

17   patients in need.     See 621 F.2d at 512.   This is not a case

18   like East Chicago, where two nurse’s aides and four nurses

19   kept working in the nursing home and were available to assist

20   the elderly.   See 710 F.2d at 407 (dissent).     This is not a

21   case like Bethany Medical Center, where routine operations

22   were delayed and transferred to other hospitals, and

23   emergency procedures could be redirected to “numerous other


                                     40
 1   hospitals . . . in the near vicinity.”     See 328 N.L.R.B. at

 2   1095.     Instead, this is a case like Federal Security, where

 3   workers completely abandoned their assigned posts, exposing

 4   the people they were hired to care for and protect to

 5   foreseeable and imminent danger.     See 154 F.3d at 753-57.

 6       Before this Court, the Board emphasized the lack of

 7   prior notice provided to employers in each of these cases.

 8   Here, the Union gave the requisite ten-day notice of its

 9   intent to strike pursuant to Section 8(g).     As previously

10   discussed, the employees were not required to give individual

11   notice – not by Section 8(g) and not by Special Touch’s plant

12   rule.     But the aides were required to take “‘reasonable

13   precautions to protect’ the employer’s . . . patients ‘from

14   foreseeable imminent danger due to sudden cessation of

15   work.’”     Special Touch IV, 2011 N.L.R.B. LEXIS 322, at *41

16   (quoting Bethany Med. Ctr., 328 N.L.R.B. at 1094-95).        By

17   misleading Special Touch into believing that each of the

18   forty-eight aides’ patients would be covered during the

19   strike, the aides exposed their patients to the risk of harm.

20       To be clear, this is not a roundabout way of

21   establishing an individual employee notification rule.       Had

22   Special Touch not reached out to their aides in advance of

23   the strike in an attempt to plan ahead (as the company is


                                     41
 1   authorized to do pursuant to Board precedent), the aides

 2   would not have been required to call in.      The Union’s notice

 3   sufficed to advise the company that all of the approximately

 4   1400 aides scheduled to work on June 7, 2004 might be on

 5   strike.    If an employer does not take it upon itself to

 6   inquire further, the employer should be considered to have

 7   received notice of 1400 absences.      Moreover, there is no

 8   requirement that an employee answer its employer’s request

 9   for information.    The Board made it clear in Preterm that an

10   employee cannot be forced to tell the employer whether or not

11   the employee plans to strike – this would constitute an

12   impediment to engaging in protected activity.      See 240

13   N.L.R.B. at 656.    What employees cannot do is mislead their

14   employer into expecting their presence when the lack thereof

15   will result in foreseeable imminent danger.

16       Despite the fact that forty-eight aides never started

17   work on June 7, 2004, it can still be said that foreseeable

18   imminent danger resulted from their “sudden cessation of

19   work.”    Until approximately twenty minutes after each of the

20   forty-eight aides’ shifts began, Special Touch believed that

21   it had these patients covered.      The “sudden cessation of

22   work” occurred when the company determined that nearly fifty

23   of its aides were absent and that it would need to secure


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 1   replacements (many of whom would need to speak Spanish) as

 2   fast as possible.13    This twenty-minute period (the bare

 3   minimum for which a patient might have been without coverage

 4   on June 7), was enough time for harm to have occurred.       See

 5   Federal Security, 154 F.3d at 757.     Moreover, while forty-

 6   three patients received partial coverage on the first day of

 7   the strike, an additional five patients were left alone

 8   entirely when the company could not secure replacements.

 9        The burden on employees is minimal.     It is simply not to

10   mislead an employer about whether an employee plans to work

11   when an unexpected absence will create a risk of harm to the

12   employer’s plant, equipment or patients.     This obligation

13   extends to all industries.     Indeed, the resolution of this

14   case has very little to do with Section 8(g) or the

15   requirements imposed on health care employees and employers

16   by Congress.

17        This case, and our opinion, merely invokes the

18   established Board principle that an employee must take

19   reasonable precautions not to create foreseeable imminent

20   danger.     The parties and the Board all agree that this is the

21   standard.     Indeed, the Board identifies the employer’s right

          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
 1   to discipline employees who fail to meet this burden as one

 2   of the reasons why an individual employee notification

 3   requirement is unnecessary in the health care industry.

 4   Special Touch IV, 2011 N.L.R.B. LEXIS 322, at *41.   The

 5   forty-eight Special Touch aides who affirmatively

 6   misrepresented their intent to work on June 7, 2004 engaged

 7   in “indefensible conduct” that is not protected by the NLRA.

 8   As a result, Special Touch’s failure to immediately reinstate

 9   these employees did not violate Section 8(a)(1) or (3).

10

11                            Conclusion

12       For the foregoing reasons, the petition of the National

13   Labor Relations Board to enforce its June 30, 2011 Decision

14   and Order is DENIED.




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