     07-5422-ag
     National Labor Relations Board v. Special Touch Home Care Services, Inc.

 1                      UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3                               _______________
 4
 5                                  August Term, 2008
 6
 7   (Argued: November 19, 2008                                Decided: May 12, 2009)
 8
 9                                Docket No. 07-5422-ag
10                                 _______________
11
12                         NATIONAL LABOR RELATIONS BOARD ,
13                                                        Petitioner,
14
15                      1199 SEIU UNITED HEALTHCARE WORKERS,
16                                                      Intervenor,
17
18                                         —v.—
19
20                     SPECIAL TOUCH HOME CARE SERVICES, INC.,
21                                                        Respondent.

22
23                                   _______________

24   Before:

25                     STRAUB, SACK, AND WESLEY , Circuit Judges.

26                                   _______________

27          Application for enforcement of an order of the National Labor Relations

28   Board finding that Respondent Special Touch Home Care Services, Inc., engaged

29   in unfair labor practices by (1) not immediately reinstating employees who went

30   on strike after the employees did not respond in the affirmative to the employer’s

31   survey asking if they would go on strike and (2) unlawfully interrogating two


                                              1
 1   employees about their support for the union. The National Labor Relations Board

 2   therefore ordered Respondent to take various remedial actions.

 3          First, we hold that, in connection with reinstatement, the Board erred by

 4   not considering the intersection of the plant rule doctrine and Section 8(g) of the

 5   National Labor Relations Act. We remand on this point so the NLRB can opine

 6   on this issue in the first instance. Second, we hold that the interrogations were

 7   unlawful, though not for the reasons relied upon by the Board.

 8         Enforced in Part, Modified in Part and Enforced in Part as Modified,

 9                      and Enforcement Denied in Part; Remanded.

10                        _________________________________

11          AMY H. GINN , Attorney (Jill A. Griffin, Supervisory Attorney; Ronald
12          Meisburg, General Counsel; John E. Higgins, Jr., Deputy General
13          Counsel; John H. Ferguson, Associate General Counsel; Linda Dreeben,
14          Deputy Associate General Counsel; on the brief), National Labor
15          Relations Board, Washington, DC, for Petitioner.
16
17          RICHARD J. REIBSTEIN , Wolf, Block, Schorr and Solis-Cohen LLP (Russell
18          E. Adler, on the brief), New York, NY, for Respondent.
19
20         DAVID M. SLUTSKY , Levy Ranter, P.C., New York, NY, for Intervenor.
21   _________________________________

22   STRAUB, Circuit Judge:

23          Petitioner National Labor Relations Board (“NLRB” or “Board”) petitions

24   this Court for enforcement of its final decision and order, Special Touch Home

25   Care Servs., Inc. & New York’s Health & Human Serv. Union 1199/SEIU, 351

26   N.L.R.B. No. 46, 2007 WL 2963267 (Sept. 29, 2007) (“Special Touch II”),

27   finding that Respondent Special Touch Home Care Services, Inc. (“Special


                                               2
 1   Touch” or “Company”) acted unlawfully by (1) not immediately reinstating

 2   employees who went on strike after failing to respond affirmatively to a survey

 3   asking if they would strike, and (2) interrogating employees about their support

 4   for the union. Special Touch responds that (1) the employees’ actions were not

 5   protected because they violated a neutral, non-discriminatory “plant rule” and

 6   because the employees’ conduct was indefensible, and (2) the interrogations were

 7   not improper. The Board also found that one striker, Crecencia Miller, was

 8   lawfully discharged; no party disputes this finding.

 9            With respect to the primary issues raised on appeal, we first hold that, in

10   connection with the reinstatement of strikers, the Board erred by not considering

11   the intersection of the plant rule doctrine and Section 8(g) of the National Labor

12   Relations Act (“NLRA”) as amended, 29 U.S.C. § 158(g). In remedying this

13   error, as more fully explained infra, we ask that the Board opine on the

14   relationship between these two rules in the first instance. Second, we hold that

15   the interrogations were unlawful, though not for the reasons relied upon by the

16   Board.

17            Accordingly, the order below is enforced in part (with respect to Miller)

18   and modified in part and enforced in part as modified (with respect to

19   interrogations). Enforcement is denied in part (with respect to reinstatement).

20   The case is remanded in part (with respect to reinstatement) for proceedings

21   consistent with this opinion.

22                                     BACKGROUND


                                                3
 1          On May 27, 2004, 1199 SEIU United Healthcare Workers (“Union”)

 2   served a ten-day strike notice on Special Touch, indicating that a strike would

 3   commence on June 7, 2004 and last for three days.1 Typically, advance notice is

 4   not required before a strike. See Montefiore Hosp. & Med. Ctr. v. NLRB, 621

 5   F.2d 510, 515 (2d Cir. 1980). However, in 1974, Congress amended the National

 6   Labor Relations Act to add Section 8(g). See Pub. L. No. 93-360, § 1(e), 88 Stat.

 7   395, 396. Section 8(g) states in pertinent part:

 8          A labor organization before engaging in any strike, picketing, or
 9          other concerted refusal to work at any health care institution shall,
10          not less than ten days prior to such action, notify the institution in
11          writing and the Federal Mediation and Conciliation Service of that
12          intention . . . . The notice shall state the date and time that such
13          action will commence.
14
15   29 U.S.C. § 158(g). The parties assume that Special Touch is a “health care

16   institution” within the meaning of Section 8(g). See Special Touch Home Care

17   Servs., Inc. & New York’s Health & Human Serv. Union 1199/SEIU, No. 29-CA-

18   26661, 2005 WL 2323361, at n.3 (N.L.R.B. Div. of Judges, Sept. 15, 2005)

19   (“Special Touch I”) (“Although it is far from clear that the Respondent provides

20   medical services, it seems that the parties herein, assumed that it is a health care

21   facility within the meaning of the Act.”).

22          Special Touch is a home health care agency located in Brooklyn, New

23   York. It employs home health aides, who provide home health care services to

24   clients at the clients’ residences. Special Touch has a roster of about 2500


            1
               The Union was not representing Special Touch’s employees at the time. However, that
     point is immaterial here.

                                               4
 1   employees; of these 2500, over 1400 were assigned to clients on June 7, 2004.

 2   Following the Union’s notice, Special Touch surveyed its employees to determine

 3   who would not be working during the strike. Special Touch assigned a

 4   replacement if an aide said he would not be working during the week of June 7. A

 5   total of seventy-five aides told Special Touch they would not be working on June

 6   7, and a replacement was assigned to the corresponding client for each for the

 7   time the employee was out. After the strike, the employees were generally

 8   reinstated without any adverse consequences. This case does not involve those

 9   seventy-five employees.

10           In addition to those seventy-five, forty-eight other aides did not report for

11   work on June 7, 2004. These latter forty-eight did not respond to Special Touch’s

12   survey by indicating that they would miss work. They also did not “call in,” i.e.,

13   provide at least two hours’ notice that they were going to miss a shift, as they are

14   generally required to do by company policy. (The call-in rule applies to all

15   absences, not just strikes.) As a result, Special Touch had to find replacements for

16   the forty-eight with little or no lead time; forty-three clients received only partial

17   coverage on June 7 and five received no coverage at all. Many of the forty-eight

18   returned to work the next day, i.e., they did not strike for the full three-day period.

19           On June 14, 2004, Special Touch sent a letter to the forty-eight employees

20   who missed work on June 7 without providing notice. The employees were told

21   that they had violated Special Touch’s policy by not calling in before missing

22   work. However, the letter indicated that the employees would not be discharged.


                                                5
 1   Eventually, some of the forty-eight were reassigned to their original positions,

 2   some were reassigned to positions that were different (either substantively or in

 3   terms of the number of hours), and some found work elsewhere.2

 4          Later, in July 2004, while the Union’s petition to represent the home

 5   health aides was pending, a coordinator at Special Touch named Lydia called an

 6   aide, Miriam Perez, and asked various questions about the Union, including if

 7   Perez had signed a union card. A month later, a Special Touch coordinator named

 8   Carmen Vasquez called an aide, Soila Peguero, and asked if Peguero had received

 9   an election package from the Union; Vasquez told Peguero to let her know when

10   the package arrived so Vasquez could help her vote. Vasquez also said that

11   Peguero should vote no if she were unable to contact Vasquez when the voting

12   materials arrived.

13          On January 28, 2005, the NLRB filed a complaint against Special Touch,

14   and on September 15, 2005, the ALJ found for the Board on essentially all counts.

15   See generally Special Touch I, No. 29-CA-26661, 2005 WL 2323361. On

16   September 29, 2007, the NLRB affirmed the decision of the ALJ in all material

17   respects relevant to this appeal.3 See Special Touch II, 351 N.L.R.B. No. 46.

18   Specifically, the Board found that Special Touch violated the law by failing to


            2
              The Board found that one striker, Crecencia Miller, was lawfully discharged, see
     Special Touch Home Care Servs., Inc. & New York’s Health & Human Serv. Union 1199/SEIU,
     351 N.L.R.B. No. 46, 2007 WL 2963267, at *2-4, (Sept. 29, 2007) (“Special Touch II”) and the
     propriety of her discharge is not disputed on this appeal.
            3
              The Board reversed with respect to Miller: the ALJ had found that her discharge
     violated the NLRA, but the Board found that she was lawfully terminated.

                                              6
 1   immediately reinstate the strikers who did not call in and by interrogating

 2   employees about the Union. Special Touch II, 351 N.L.R.B. No. 46, 2007 WL

 3   2963267, at *1 n.3. The NLRB did not discuss the plant rule or indefensible

 4   conduct arguments raised by Special Touch, but it did adopt the ALJ’s decision,

 5   see id. at *7-22 (decision of ALJ) which discussed those issues, see id. at *12

 6   (plant rule), *13 (indefensible conduct).4 The Board also issued a remedial order

 7   requiring the Company to take various steps. These included reinstating workers

 8   who had not yet returned to work or who had their terms of employment changed

 9   since the strike, and making whole strikers who offered to return to work. Id. at

10   *5-6.

11                                     DISCUSSION

12   I.      Standard of Review

13           As we have explained recently,

14           our review of the Board’s decision is highly deferential.
15           Specifically, we review the NLRB’s factual findings to determine
16           whether they are supported by substantial evidence in light of the
17           record as a whole, and we review the Board’s legal conclusions to
18           ensure that they have a reasonable basis in law. Furthermore, we
19           defer to the Board’s decision when there appears to be more than
20           one reasonable resolution and the Board has adopted one of these.
21
22   Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v.

23   NLRB, 520 F.3d 192, 196 (2d Cir. 2008) (citations and internal quotation marks



             4
               The NLRB only tangentially alluded to Special Touch’s other defenses, that the strikers
     were replaced by permanent employees, see Special Touch II, 351 N.L.R.B. No. 46, 2007 WL
     2963267, at *4, *5 n.15, and that the failure to reinstate was supported by a legitimate business
     justification, see id. at *4.

                                              7
 1   omitted). In the immigration context, when the Board of Immigration Appeals

 2   adopts and affirms the Immigration Judge’s opinion and supplements it with its

 3   own conclusions, we review both opinions. See, e.g., Matadin v. Mukasey, 546

 4   F.3d 85, 89 (2d Cir. 2008). We have not squarely held the same in the labor

 5   context, but such a rule is consistent with that of other circuits. For example, the

 6   Third Circuit has written, “Where the [NLRB] adopts the ALJ’s findings of fact

 7   and conclusions of law, it is the ALJ’s determinations that we review. . . . Where

 8   the Board has adopted the ALJ’s decision in part, the Court reviews both.”

 9   Trafford Distrib. Ctr. v. NLRB, 478 F.3d 172, 179 (3d Cir.), cert. denied, 128 S.

10   Ct. 110 (2007). Here, the NLRB “affirm[ed] the [administrative law] judge’s

11   rulings, findings, and conclusions, as modified and set forth in full” in the Board’s

12   opinion. Special Touch Home Care Servs., Inc. & New York’s Health & Hum.

13   Serv. Union 1199/SEIU, 351 N.L.R.B. No. 46, 2007 WL 2963267, at *1 n.2 (Sept.

14   29, 2007) (“Special Touch II”). Therefore, we will review both the ALJ’s opinion

15   and the Board’s.

16   II.    Analysis

17          A.      Crecencia Miller

18          The NLRB found that Crecencia Miller was lawfully discharged. See

19   Special Touch II, 351 N.L.R.B. No. 46, 2007 WL 2963267, at *4. The parties do

20   not dispute this. We grant the petition for enforcement with respect to the Board’s

21   finding that Miller was properly discharged.

22          B.      Failure to Immediately Reinstate Workers


                                               8
 1           Forty-eight employees struck without either calling in or responding

 2   honestly to Special Touch’s survey. When they returned to work, they were not

 3   all immediately reinstated to their prior positions, which the NLRB held was

 4   unlawful. See Special Touch II, 351 N.L.R.B.. No. 46, 2007 WL 2963267, at *1.

 5   Special Touch argues on appeal, inter alia, that the employees lost the protections

 6   of the law by failing to call in before missing their shifts.

 7           Thus, the first disputed issue in this case is whether employees of a health

 8   care institution who violate a non-discriminatory call-in rule lose the protections

 9   of the NLRA even though the relevant union has given the notice required by

10   Section 8(g) thereof. This is a question of first impression in this Circuit.

11   Because we are of the opinion that the NLRB should address this issue as an

12   initial matter, we deny the petition for enforcement in principal part and remand

13   the case for further proceedings. Both Special Touch and the NLRB insisted at

14   argument that Section 8(g) and the plant rule doctrine do not overlap. However,

15   as we discuss below, this case is a manifestation of that intersection.

16           The plant rule doctrine permits an employer to enforce neutral “reasonable

17   rules covering the conduct of employees on company time.” Republic Aviation

18   Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945) (internal quotation marks omitted).

19   The Board expounded on the plant rule doctrine in Terry Poultry Co., 109

20   N.L.R.B. 1097 (1954). In that case, two employees walked off a production line

21   to convey a grievance to management regarding working conditions. Id. at 1098.

22   The NLRB held that this was not protected conduct because the employees failed


                                                9
 1   to follow a rule adopted by the company,

 2          well known to its employees, requiring them to notify their
 3          foreman or fellow employees when they desired to leave the
 4          production line. Plainly, such a rule is necessary to insure orderly
 5          and efficient operation of the production line. It is not, nor could it
 6          be, contended, that this rule was adopted for a discriminatory
 7          purpose. . . . [T]he Respondent’s rule was not designed to limit an
 8          employees’ union or concerted activity but simply to control
 9          absences from the production line. . . . In these circumstances, and
10          considering the legitimate business interests of the Respondent and
11          the statutory rights of its employees, we find that the Respondent’s
12          rule is not an unreasonable impediment to the employees’ right to
13          engage in concerted activities . . . .
14
15   Id.
16
17          Similarly, other cases recognize the right of an employer to enforce non-

18   discriminatory rules. See, e.g., La Mousse, Inc., 259 N.L.R.B. 37, 49-50 (1981),

19   enforced, 703 F.2d 576 (9th Cir. 1983); Gen. Chem. Corp., 290 N.L.R.B. 76, 83

20   (1988); Wilshire at Lakewood & Lisa Jochims, 343 N.L.R.B. 141, 144 (2004),

21   rev’d on other grounds, Jochims v. NLRB, 480 F.3d 1161 (D.C. Cir. 2007). Thus,

22   on its face, this case would seem to be governed by the plant rule doctrine:

23   Special Touch had a neutral plant rule in effect requiring employees to call in

24   before missing a shift; those who struck without notifying Special Touch violated

25   that rule; and it can be posited that the Company therefore did not engage in unfair

26   labor practices by failing to immediately reinstate them.

27          However, the plant rule cases emphasize factors that are not present in this

28   case, making them slightly inapposite. For example, Republic Aviation discusses

29   plant rules in the context of “employees on company time,” 324 U.S. at 803 n.10



                                              10
 1   (emphasis added and internal quotation marks omitted), and it is not clear whether

 2   these forty-eight employees were on company time when they failed to call in.

 3   Some rules the NLRB has upheld relate to the need to protect an employer’s

 4   property, see, e.g., Terry Poultry, 109 N.L.R.B. at 1098; Gen. Chem. Corp., 290

 5   N.L.R.B. at 83, whereas the primary risk of harm here was to Special Touch’s

 6   clients. Special Touch cites La Mousse, in which the NLRB upheld a plant rule

 7   requiring workers to call in one hour in advance if they were going to miss their

 8   shift or be late, similar to the rule here. 259 N.L.R.B. at 49. However, the NLRB

 9   only reached the issue of whether the adoption of the rule was an unlawful

10   unilateral change of the terms and conditions of employment, see id. at 49-50; the

11   Board did not pass on the substantive validity of the rule itself. In any event, to

12   the extent that the NLRB upheld the call-in rule in La Mousse, the workers did not

13   miss work to strike or otherwise engage in protected activity, id., and thus La

14   Mousse is inapposite.

15          Furthermore, a plant rule requiring notice cannot be immediately

16   reconciled with cases which have held that individual employees — including in

17   the medical context — need not give notice before going on strike. For example,

18   in Montefiore Hospital, we held that doctors who engaged in a sympathy strike

19   did not render their conduct unprotected by failing to give notice:

20          In this case, although prior notice by Drs. Gould and Fisher would
21          have been more considerate and in keeping with their ethical duties
22          . . . , we cannot say that their failure to give it created such danger
23          or risk of harm to patients as to justify depriving them of the Act’s
24          protection. This was not a case in which patients were left lying on


                                              11
 1           the operating table, emergency room personnel walked off, or
 2           people in need of immediate treatment were left to fend for
 3           themselves.
 4
 5   Montefiore Hosp. & Med. Ctr., 621 F.2d 510, 516 (2d Cir. 1980). Thus, we

 6   rejected the argument that Section 8(g) requires individual employees to give

 7   notice beyond what is required by statute. We said such an interpretation would

 8   require us to “disregard the ordinary meaning of plain language,” id. at 514

 9   (citation and internal quotation marks omitted), and “would in effect be rewriting

10   [§] 8(g),” id. at 516. 29 U.S.C. § 158(g), by its own terms and as we emphasized

11   in Montefiore Hospital, applies only to labor organizations and not to individual

12   employees.

13           Certain plant rule cases come to a similar conclusion, namely, that no

14   individual notice is required. See, e.g., NLRB v. Wash. Aluminum, 370 U.S. 9, 16

15   (1962) (“Nor can we accept the company’s contention that because it admittedly

16   had an established plant rule which forbade employees to leave their work without

17   permission of the foreman, there was justifiable ‘cause’ for discharging these

18   employees . . . .”); NLRB v. Pratt & Whitney, 789 F.2d 121, 131 (2d Cir. 1986)

19   (requiring employees to call in every day of a strike and give a reason for absence

20   is an unfair labor practice).

21           However, both Washington Aluminum and Pratt & Whitney are

22   distinguishable, as the plant rule in the former required workers to receive

23   permission of the foreman to leave work, and the rule in the latter required

24   workers to call in and indicate the reason why they were missing work, e.g., to


                                              12
 1   strike. Moreover, in Montefiore Hospital, we noted in a dictum:

 2          When, as in this case, a union has given notice of its intention to
 3          strike, the hospital would be well-advised to inquire of the rest of
 4          its employees whether they plan to stay out in sympathy. An
 5          employee who strikes after promising to show up may well forfeit
 6          protection under the Act.
 7
 8   621 F.2d at 515.

 9          Here, Special Touch conducted such a survey. Possibly relying on the

10   dictum from Montefiore Hospital, it believed those who struck without

11   responding honestly to the survey would not be protected. In this case, over 1300

12   employees did not say they would miss work during the week of June 7, 2004, and

13   did not call in before their shift. If Special Touch could not rely on the survey or

14   the neutral call-in rule, the Company (not to mention its clients, many with serious

15   needs) could be in a state of limbo, with somewhere between zero and 1300 aides

16   potentially going on strike. Special Touch’s conclusion that those who did not

17   either respond affirmatively to the survey or call in would lose the NLRA’s

18   protections is thus arguably reasonable.

19          However, it seems equally reasonable for the Union to instruct employees

20   (correctly) that they need not give individualized notice to the Company because

21   the Union had already given the notice required by Section 8(g). As discussed

22   above, we have held that Section 8(g) places a burden only on labor organizations,

23   not individual employees.

24          Therefore, it appears both parties reasonably relied on separate doctrines

25   — the Union relying on Section 8(g) and Special Touch on the plant rule doctrine


                                                13
 1   — and these rules came into conflict with each other. No other case, either at the

 2   NLRB or in the federal courts, involves the intersection of both doctrines.

 3   Montefiore Hospital, for example, was only a Section 8(g) case, while Terry

 4   Poultry and General Chemical only involved plant rules. Thus, even if the plant

 5   rule and notice cases were directly on point (and they are not, as described supra),

 6   it remains that they do not speak to the implications, if any, of Section 8(g). This

 7   case illustrates the intersection between the two, and it is proper for us to remand

 8   to the NLRB to address this intersection in the first instance. Cf. Sure-Tan, Inc. v.

 9   NLRB, 467 U.S. 883, 900 n.10, 905-06 (1984) (explaining that when a court of

10   appeals determines that the NLRB erred in adopting a remedy, the proper course

11   is to remand); NLRB v. Quinnipiac College, 256 F.3d 68, 81 (2d Cir. 2001)

12   (remanding to NLRB for determination of proper remedy in the first instance);

13   Ewing v. NLRB, 732 F.2d 1117, 1122 (2d Cir. 1984) (remanding when the

14   relevant legal issues were not properly developed at the Board level).

15          Thus, on remand, the NLRB should determine where the law stands in

16   light of the intersection between Section 8(g) and the plant rule, i.e., whether

17   Special Touch may enforce its call-in rule and mandate compliance with its

18   survey, reasonably relying on the results of both, in light of Section 8(g)’s

19   requirement that only unions and not individual employees are required to give

20   notice to health care employers.

21          This is not to say that the case law provides no guidance. First, as noted in

22   Republic Aviation, employees’ “rights are not unlimited in the sense that they can


                                              14
 1   be exercised without regard to any duty which the existence of rights in others

 2   may place upon employer or employee. Opportunity to organize and proper

 3   discipline are both essential elements in a balanced society.” 324 U.S. at 798.

 4   This signals that there is some weighing of interests involved when it comes to the

 5   NLRB’s application of the relevant doctrines.

 6          Second, Montefiore Hospital implicitly exemplifies this kind of balancing.

 7   This was a Section 8(g) case in which we held that employees, even in the health

 8   care context, are not required to give individual notice in the event of a strike. Yet

 9   we intimated (but did not hold) that notice might be required if “failure to give

10   [notice] created such danger or risk of harm to patients as to justify depriving

11   them of the Act’s protection.” 621 F.2d at 516. This suggests that Section 8(g)

12   may not be the end of the inquiry; even if the Union gave the required 8(g) notice,

13   and even though there is no general requirement that employees give

14   individualized notice, a high “risk of harm to patients” might nonetheless

15   “depriv[e employees] of the Act’s protection.”

16          Thus, on remand, the NLRB should consider the several interests that must

17   be balanced in resolving this issue. Although the case law does not answer the

18   precise question posed, it highlights certain themes that should guide the NLRB.

19   These include (1) the employer’s attempt to maintain a properly regulated

20   workforce, (2) the employees’ interest in striking (including their interest in not

21   having to decide in advance that they wished to participate), and (3) the risk to the

22   clients, including the nature of the care provided by the aides. For example, if


                                              15
 1   Special Touch’s aides were administering medication to treat a life-threatening

 2   illness, their actions could be analogous to leaving patients “lying on the operating

 3   table,” Montefiore Hosp., 621 F.2d at 516, which we have suggested might be

 4   unprotected activity. Conversely, if the aides were monitoring clients who had no

 5   serious medical needs and were in no danger, their actions might retain the

 6   NLRA’s protections.

 7          Ultimately, the NLRB need not provide a broad analysis of the modern

 8   state of the plant rule doctrine or even the factors a court should consider in

 9   applying the doctrine. Instead, it need only decide the degree to which the plant

10   rule doctrine is affected by Section 8(g) and whether, in this case, after Special

11   Touch was informed of the strike by the Union, Special Touch’s employees are

12   still entitled to labor law protection given their failure to comply with the call-in

13   rule or honestly answer Special Touch’s survey. In particular, the NLRB should

14   explore, in light of Montefiore Hospital, how the limited scope of Section 8(g)

15   should apply in a case where the relevant labor organization may have instructed

16   employees that they need not inform the employer of their absence.

17          The ALJ did discuss these issues in his opinion, albeit briefly. See Special

18   Touch II, 351 N.L.R.B. No. 46, 2007 WL 2963267, at *12 (plant rule), *12-13

19   (Section 8(g)). However, that analysis was lacking to the extent that it did not

20   recognize the intersection of the plant rule and Section 8(g). Because our review

21   of the NLRB’s analysis is “highly deferential,” and we defer to the Board’s legal

22   conclusions so long as they have a reasonable basis in law, even if we might


                                               16
 1   decide otherwise ourselves, the Board should address the issue in the first

 2   instance. See Int’l Union, United Auto., Aerospace, & Agric. Implement Workers

 3   of Am. v. NLRB, 520 F.3d 192, 196 (2d Cir. 2008). As the Supreme Court has

 4   written in another context, “The Congress has committed to the [NLRB] the task

 5   of striking the appropriate balance among the interests of hospital employees,

 6   patients, and employers, a role familiar to the Board in other contexts.” NLRB v.

 7   Baptist Hosp., Inc., 442 U.S. 773, 779 (1979). The Board should “strik[e] the

 8   appropriate balance” here.

 9          Because we find that the Board did not adequately analyze the intersection

10   of the plant rule doctrine and Section 8(g), we do not reach Special Touch’s

11   indefensible conduct, permanent replacement, and legitimate business justification

12   defenses.

13          B.      Interrogations

14          The NLRB contends that, in August 2004 (in an incident unrelated to the

15   June 2004 strike), two Special Touch employees unlawfully interrogated aides

16   regarding their support for the Union. Threats or coercive interrogations of

17   employees regarding their union activities constitute unfair labor practices in

18   violation of Section 8(a)(1). See 29 U.S.C. § 158(a)(1); see also NLRB v. J. Coty

19   Messenger Serv., Inc., 763 F.2d 92, 97 (2d Cir. 1985) (citing cases).

20          Special Touch does not argue that the questioning was not coercive;

21   instead, it argues that the employees who interrogated aides about their support for

22   the Union were not “supervisors” within the meaning of the NLRA and that


                                              17
 1   therefore the interrogations were not improper. The ALJ found these to be

 2   improper coercive interrogations, mistakenly believing that Special Touch had

 3   stipulated to the fact that all of its so-called “coordinators” were supervisors

 4   within the meaning of 29 U.S.C. § 152(11). See Special Touch II, 351 N.L.R.B.

 5   No. 46, 2007 WL 2963267, at *1 n.3 (referencing Special Touch Home Care

 6   Servs., Inc. & New York’s Health & Human Serv. Union 1199/SEIU, No. 29-CA-

 7   26661, 2005 WL 2323361, at n.2 (N.L.R.B. Div. of Judges, Sept. 15, 2005)). The

 8   Board attempted to clarify this error and held that only two employees were

 9   stipulated supervisors. See Special Touch II, 351 N.L.R.B. No. 46, 2007 WL

10   2963267, at *1 n.3. Special Touch claims that it stipulated only that the workers’

11   job title was coordinator, not that they were supervisors within the meaning of the

12   NLRA.

13           However, Section 8(a)(1)’s prohibition on unfair labor practices does not

14   apply only to practices that are carried out by supervisors. Section 8(a)(1) simply

15   states that it is “an unfair labor practice for an employer . . . to interfere with,

16   restrain, or coerce employees in the exercise of rights guaranteed by” the NLRA.

17   29 U.S.C. § 158(a)(1). “The term ‘employer’ includes any person acting as an

18   agent of an employer, directly or indirectly . . . .” Id. § 152(2). The Board has

19   explained that the relevant question in determining whether one is an agent is

20   “whether, under all the circumstances, the employees would reasonably believe

21   that the [interrogating] employee in question was reflecting company policy and

22   speaking and acting for management.” Waterbed World, 286 N.L.R.B. 425, 426-


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 1   27 (1987) (internal quotation marks omitted). We have found a violation of

 2   Section 8(a)(1) even when the interrogating individual was not a supervisor under

 3   the terms of the Act. See Abbey’s Transp. Servs., Inc. v. N.L.R.B., 837 F.2d 575,

 4   578-79 (2d Cir. 1988) (finding violation when interrogator was a “lawyer-

 5   consultant”).

 6          Here, the interrogators were clearly Special Touch’s agents, making the

 7   interrogations unlawful. Special Touch’s home health aides report to

 8   “coordinators.” These coordinators assign aides to clients and set the aides’

 9   schedules in a manner consistent with the clients’ plans of care. See Special

10   Touch II, 351 N.L.R.B. No. 46, 2007 WL 2963267, at *1. In Crecencia Miller’s

11   case, it was the coordinator who, when Miller showed up late to a shift, asked her

12   to leave the client’s home. See id. at *2-3. Coordinators are also responsible,

13   inter alia, for ensuring that aides have the skills and training necessary to meet

14   clients’ needs.

15          The ALJ found that two employees were questioned about their contacts

16   with the union. Miriam Perez testified that,

17          [i]n the middle of July, [a coordinator named] Lydia called me to
18          ask me if I had signed a union card. How did I find out about the
19          union? How had I signed? By mail? By phone? Who had talked
20          to me about the union[?] . . . She [asked] what the union offered
21          me. . . . I told her . . . [t]he union is offering us what we need, what
22          we want. Health insurance and paid vacation.
23
24   J.A. 155.

25          Another employee, Soila Peguero, testified that a coordinator named



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 1   Carmen Vasquez called in August of 2004. Vasquez asked

 2           [i]f I received a package about the election. I told her, no. She
 3           said, when you receive the package, let me know, so I can help you
 4           vote. If you get the package and you don’t call me, mark it where
 5           it says no. I did know of a co-worker who has received the
 6           package, that showed them how to vote.
 7
 8   Id. at 167.

 9           As noted above, both the ALJ and the Board proceeded on the basis of a

10   purported stipulation by Special Touch that these coordinators were supervisors

11   within the meaning of the NLRA. We need not address this question, because the

12   record makes it clear that they were Special Touch’s agents within the meaning of

13   the Act and that “under all the circumstances, [Perez and Peguero] would

14   reasonably [have] believe[d] that the [coordinators] in question w[ere] reflecting

15   company policy and speaking and acting for management.” Waterbed World, 286

16   N.L.R.B. at 426-27 (internal quotation marks omitted).

17           We therefore hold that the interrogations were unlawful. In doing so, we

18   do not rely on any stipulations, as the ALJ and Board apparently did. We have the

19   authority, however, to modify the Board’s order and enforce it as modified. See

20   29 U.S.C. § 160(e). Therefore, we modify the Board’s opinion to hold the

21   interrogations unlawful because Lydia and Vasquez were agents of Special Touch,

22   bringing them within the definition of “employer” under § 152(2). We enforce

23   the order as modified.

24                                     CONCLUSION

25           In primary part, this case involves the intersection of the plant rule


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 1   doctrine and Section 8(g) of the National Labor Relations Act. Because we defer

 2   to the NLRB’s interpretation of the law in this area, and because the Board has not

 3   spoken to this issue previously, we decline to do so in the first instance and

 4   remand on this point. However, no party disputes that the discharge of Crecencia

 5   Miller was lawful, so we enforce the Board’s opinion to that extent. We hold that

 6   the interrogations by Lydia and Vasquez were unlawful, but for different reasons

 7   than those stated by the ALJ or Board; therefore, we modify the opinion and

 8   enforce it as modified.

 9          Accordingly, the NLRB’s order is ENFORCED in part (with respect to

10   Miller), and MODIFIED in part and ENFORCED in part as modified (with

11   respect to interrogations). Enforcement is DENIED in part (with respect to

12   reinstatement). The case is REMANDED in part (with respect to reinstatement)

13   for proceedings consistent with this opinion.




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