National Labor Relations Board v. Special Touch Home Care Services, No. 11-3147 (2d Cir. 2013)
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The Board petitioned for enforcement of its decision and order finding that Special Touch violated the National Labor Relations Act, 29 U.S.C. 158(a)(1) and (3), by failing to immediately reinstate striking workers, home health care aides, engaged in protected conduct. The court held that the aides' actions were unprotected because their uncorrected affirmative misrepresentations regarding their plans to strike in response to the pre-strike poll placed 48 of Special Touch's patients in foreseeable imminent danger; the 48 aides engaged in indefensible conduct that was not protected by the NLRA; and Special Touch's failure to immediately reinstate these employees did not violate Section 8(a)(1) or (3). Accordingly, the court denied the petition for enforcement.
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11-3147-ag NLRB v. Special Touch Home Care Servs., Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: January 30, 2013 Decided: February 27, 2013) Docket No. 11-3147-ag NATIONAL LABOR RELATIONS BOARD, Petitioner, -v.SPECIAL TOUCH HOME CARE SERVICES, INC., Respondent, 1199SEIU UNITED HEALTHCARE WORKERS EAST, Intervenor. Before: WESLEY, CHIN, Circuit Judges, LARIMER, District Judge.* Petitioner National Labor Relations Board applies to this Court for enforcement of its January 30, 2011 Decision and Order finding that Respondent Special Touch Home Care Services, Inc. ( Special Touch ) violated the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 engaged in protected conduct. Home health care aides who work for Special Touch went on strike after their Union gave ten days of advance notice as required by statute, 29 U.S.C. § 158(g). Special Touch lawfully polled its approximately 1400 employees scheduled to work on the first day of the strike. Forty-eight of the aides who indicated their intention to work failed to report to their patients homes. Because we find that these employees engaged in unprotected, indefensible conduct that created a reasonably foreseeable risk of imminent danger, we DENY the National Labor Relations Board s petition for enforcement. 40 whether a health care employer may enforce an individual 41 notice rule after its employees union provides advance DENIED. JILL A. GRIFFIN, Supervisory Attorney (Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Amy H. Ginn, Attorney, on the brief), National Labor Relations Board, Washington, DC, for Petitioner. RICHARD J. REIBSTEIN (Russell E. Adler, on the brief), Pepper Hamilton LLP, New York, NY, for Respondent. DAVID M. SLUTSKY, Levy Ratner, P.C., New York NY, for Intervenor. WESLEY, Circuit Judge: This petition for enforcement presents two issues: (1) 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 6 7 8 9 10 of imminent danger. 11 ( Special Touch ) subcontracts with nursing and health- 12 related services to provide home health aides for patients 13 who require assistance. 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. 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. 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 Background Respondent Special Touch Home Care Services, Inc. Special Touch s patients have four Given Because aides go directly to patients 3 1 Touch calls each home to verify whether or not the aide is 2 there. 3 twenty minutes. 4 Confirming an aide s presence takes approximately In 2004, Special Touch had approximately 2500 aides on 5 its roster, with about 1400 of these aides regularly 6 assigned to specific clients. 7 with patients based on common language, primarily English, 8 Spanish, Chinese or Russian. 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. 12 by the patient s physician. 13 specific plan of care and then subcontracts the work to 14 Special Touch. 15 Aides are typically matched Patients receive varying The necessary amount of care is determined A nursing agency sets the Aides who work for Special Touch undergo two-and-a-half 16 weeks of mandatory training before being assigned to 17 patients. 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 The specific responsibilities of an aide depend 4 1 errands. 2 ensure they are taking the proper doses, but aides do not, 3 and cannot, perform medical procedures. 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 Aides often remind patients to take medication and Special Touch s 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. 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. 16 respond to an emergency, whether health-related or external 17 (such as a fire). 18 worries with patients is their susceptibility to falling 19 particularly falling backwards because of their lack of 20 balance and strength. 21 of falls is the reason the aides are tasked with light 22 housekeeping: [I]f you keep your floor neat and nice, it To achieve this In addition, aides are trained how to According to Lutinger, one of the biggest Lutinger explained that the high risk 5 1 decrease[s the] probability of falling, and as a 2 3 4 5 6 7 consequence[] of possible fatal injuries. 8 Union 1199SEIU, AFL-CIO, CLC (the Union ) notified Special 9 Touch of its intent to strike from Monday, June 7, 2004 at Facts On May 27, 2004, New York s Health and Human Service 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 15 majority of the aides indicated their intent to work as 16 scheduled. 17 anticipated being absent during part of the following week 18 (whether for purposes of striking or for other reasons). The Approximately seventy-five aides said that they 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. 6 Spanish, which made finding emergency replacements for them 7 difficult. 8 a meeting shortly before the strike, at which it advised 9 aides that they did not need to notify the company if they Most of these aides spoke Unbeknownst to Special Touch, the Union had held 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. 16 people suffering from recent strokes, Parkinson s disease, These patients included 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. 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. 11 According to sort of covered . . . . Here all of a sudden, we thought we had everything 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. 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. 22 Keehn sent letters to these forty-eight aides detailing the The forty- One week after the strike began, 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 company s position on their absence: 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 27 28 You were asked if you would be taking any time off the week of June 7th. You told us that you would be working. Despite your assurance, you did not show up at the patient s home on June 7th, nor did you call into the office at any time prior to the start of your shift to advise us that you would not be working that day. As a result, you left the patient at risk of being unattended by a home health aide. You know that Special Touch policies and procedures require you to call in. (JA 863.) The letter goes on to state that Special Touch was aware of Procedural History 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. 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. 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. Administrative Law Judge Raymond P. The ALJ Special Touch Home 10 Care Servs., Inc., 2005 N.L.R.B. LEXIS 472, at *20-22 (Sept. 11 15, 2005) (Special Touch I). 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 reasoned that to find 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. 5 at *17. 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. 12 reasoned that there were only about five clients for whom 13 the Respondent could not get coverage. 14 there was no evidence that they suffered any adverse 15 consequences. 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 See id. The ALJ rejected Special Touch s argument that some Id. at *20. Id. at *19. The ALJ And as to them, Accordingly, the ALJ concluded 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. 7 351 N.L.R.B. 754 (2007) (Special Touch II). 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). 12 Inc., 566 F.3d 292 (2d Cir. 2009) (Special Touch III). 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. 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 Special Touch Home Care Servs., Inc., We issued a NLRB v. Special Touch Home Care Servs., 12 See id. at 297-301. We We 1 participate), and (3) the risk to the clients, including the 2 nature of the care provided by the aides. 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. Id. at 300. We 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. 11 LEXIS 322 (June 30, 2011) (Special Touch IV). 12 concluded that Congress had already balanced the relevant 13 interests at stake with respect to health care strikes and 14 reached a conclusion: 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. 20 *15-16. Special Touch Home Care Servs., Inc., 2011 N.L.R.B. Section 8(g).7 7 The Board See id. at *13-19. See id. at 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. 7 N.L.R.B. 1094, 1094-95 (1999)). 8 claim that Special Touch s aides failure to warn the 9 company about their intent to strike created an imminent Id. at *41 (quoting Bethany Med. Ctr., 328 The Board rejected the 10 danger. 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. See id. at *19-22. However, the Board noted that 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. 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. Disavowing Special Touch s contention that 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. 7 (dissent). 8 affirmative misrepresentations upon being polled. 9 Hayes reasoned that the majority s ruling meant that Id. at *47 The dissent focused on the forty-eight aides Member 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. 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. 17 The dissent noted further that this would allow See id. at *51-52. 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 3 Discussion Special Touch makes two main arguments before this 4 Court. 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. 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. 13 First, Special Touch contends that the Board ignored The NLRB (Petitioner s Br. at 28.) 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. 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 The NLRB gives little conclusions have a reasonable basis in law. 16 See NLRB v. 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)). 4 findings for whether they are supported by substantial 5 evidence. 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. 10 11 12 13 14 See id. We review the Board s factual Here, the facts are not in dispute. See Sheridan Manor Nursing Home, Inc. v. NLRB, 225 F.3d 248, 252 (2d Cir. 2000). I. Plant Rule Doctrine 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). 17 rule doctrine to permit[] an employer to enforce neutral 18 reasonable rules covering the conduct of employees on 19 company time. 20 (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 21 n.10 (1945)). 22 We understand the plant See Special Touch III, 566 F.3d at 297 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). 3 324 U.S. at 795, 805. 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)). 9 importance of rules regulating the workplace applying to 10 See The Court reached this result by The Court (like the Board) emphasized the 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. 14 Poultry Co., 109 N.L.R.B. 1097 (1954). 15 company had a long-standing plant rule requiring factory 16 workers to notify other personnel if they were leaving the 17 assembly line. 18 this rule by leaving the line to make a labor complaint to 19 the plant s superintendent. 20 departure caused disruption of the production line. 21 at 1098. 22 plant rule. 23 terminations after finding that the rule was not adopted for See id. at 1097-98. See id. See Terry In Terry Poultry, the Two employees violated Their undisclosed See id. The employees were terminated for violating the Id. at 1099. The Board upheld their 18 1 a discriminatory purpose but was instead aimed solely at 2 ensuring efficient business practices. 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. 6 id. at 1098. 7 See id. at 1098-99. See 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). 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. 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. 21 was eminent (significant) rather than imminent (impending), 22 the Board relied primarily on the plant rule doctrine to find Id. This case Id. The However, because the danger 23 19 1 that the employer s response did not violate the NLRA. 2 id. at 83-84. 3 See 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. 8 rule cases did not receive any prior notice of concerted 9 activity. First, the companies in the plant Special Touch had ten days notice provided by the 10 Union. 11 of reasonable rules regulating employee conduct on company 12 time. 13 employee conduct outside of working hours by requiring 14 advance notice of an employee s intent to miss work. 15 Second, the plant rule cases emphasize the propriety Here, the relevant rule focuses specifically on 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. 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 In 1 ongoing in front of the store. 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. 5 at 183. 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. 9 Instead, the company sought to apply its rule for the sake of 10 11 See id. at 183-84. The Id. The Board rejected this contention, finding that the convenience. See id. See id. 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. 16 Manpower, the company supplied temporary employees to 17 businesses with industrial or clerical short-term 18 assignments. 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. 784 F.2d 442 (2d Cir. 1986). See id. at 443. In Because the employees reported See id. 21 Two employees sent to 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. 5 See id. at 443-44. Manpower considered these employees to have resigned 6 after they did not show up for their assignment. 7 444. 8 employees rights under the NLRA. 9 declined to enforce this order because we determined that See id. at The Board ruled that the company violated the See id. at 445. We 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. 14 See id. at 454. 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. 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. 23 IV, 2011 N.L.R.B. LEXIS 322, at *52 (dissent). The dissent notes that Congress intended 22 See Special Touch This argument 1 is tempting. 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 After all, Special Touch has compelling The problem with this position, however, is that it 6 elevates the company s preferences over those espoused by 7 Congress. 8 via Section 8(g) trumps Special Touch s interests in 9 enforcing its call-in rule, regardless of whether its argued Congress s decision to require union notification 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. 4 Congress, Legislative History of the Coverage of Nonprofit 5 Hospitals under the National Labor Relations Act, (Comm. 6 Print 1974) (hereinafter Legislative History). 7 amendments were the result of extensive discussion with 8 those groups representing employers, employees and the 9 administration in the health care industry. See Staff of S. Comm. on Labor, 93d The 1974 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. 14 93-766, at 11 (1974). 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. 18 Board, and this Court, have recognized this principle 19 repeatedly. 20 21 Legislative History, S. Rep. No. With this in mind, the union The For example, in Montefiore Hospital and Medical Center 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). 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 Our comments in dicta 10 bearing on Section 8(g) s requirements. 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. 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 See id. Id. at 515. We But this cannot change our finding that 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. 22 these employees to misrepresent their intentions to strike is 23 distinguishable: union employees have already given notice of 25 See id. For 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. 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. 12 Notably, Congress balanced these interests in 1974, after the 13 plant rule doctrine had been established. 14 The Foreword to the 1974 amendments See Legislative History. 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. 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. 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. Thus, we do Instead, we hold that the aides actions were 26 1 2 3 4 II. Imminent Danger Doctrine 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 9 Touch IV, 2011 N.L.R.B. LEXIS 322, at *41 (quoting Bethany Special 10 Med. Ctr., 328 N.L.R.B. at 1094-95). 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 The case that is often 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. 18 411. 19 protected conduct, the Board first recognized the general 20 principle that an employee s right to engage in concerted 218 F.2d at In determining whether the employees had engaged in 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. 5 at 315. 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. Marshall Car Wheel, 107 N.L.R.B. Although the Board found that the employees had 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. 14 See id. at 319. The Fifth Circuit declined to enforce the Board s 15 decision. 16 409 (5th Cir. 1955). 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 22 23 24 25 NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d The court disagreed with the Board s [The Board s] ultimate conclusion that it was the violation of the plant rule, and that alone, which respondent refused to condone or forgive seems to us illogically to confuse cause and effect, 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 to make the tail wag the dog. Assuredly the respondent was not more interested in preserving the inviolability of its plant rule, as such, than it was in protecting its plant from the extensive damage and loss which might have resulted from the illegal walkout. On the ultimate issue of whether respondent was entitled to discharge or deny reinstatement to the offending strikers, the real inquiry is the character of the concerted activity engaged in, not whether the rule was incidentally breached thereby. 218 F.2d at 416-17 (emphasis added) (internal quotation marks 16 17 18 omitted). 19 doctrine and the imminent danger principle can be conflated 20 they will often go hand-in-hand. 21 companies with a need to protect against dangerous work- 22 related activity are likely to have rules in place for that 23 purpose. 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 31 This case is a good example of how the plant rule This is unsurprising; See, e.g., Gen. Chem. Corp., 290 N.L.R.B. at 77. In the health care context, we cited Marshall Car Wheel 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. 5 Cir. 1980). 6 that two doctors participation in a strike (without notice) 7 put patients at risk and therefore stripped the doctors 8 conduct of protection. 9 621 F.2d 510, 515 (2d This Court then rejected the hospital s argument See id. at 516. 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. 15 clinic remained open with one doctor, three nurses and a 16 receptionist during the strike. 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. 20 Id. In addition, this Court noted that the See id. at 512. Though See id. 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. 2 397, 405 (7th Cir. 1983). 3 for its conclusion that the unexpected walk-out was 4 protected. 5 710 F.2d The majority gave several reasons First, the court affirmed the Board s finding that the 6 walk-out caused inconvenience but did not endanger 7 patients. 8 that patients meals and medications were delayed, patients 9 sheets were not changed punctually, and one deceased person s Id. at 404. Specifically, the Board had found 10 body was not removed in a timely fashion a fact that the 11 majority deemed unpleasant[]. 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. 15 quotation marks omitted). 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). 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. See id. at 405. See id. at 405. Second, See id. at 404 (internal Third, the court noted that the Even so, the court viewed this 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. 5 1094 (1999). 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 Bethany Med. Ctr., 328 N.L.R.B. 1094, In Bethany Medical Center, the Board determined See id. at 1094- 10 95. 11 same standards of conduct apply to health care employees as 12 to employees in other industries. 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. 19 Before analyzing the facts, the Board stated that the Id. at 1094. Id. Based on this standard, the Board determined that the 20 employees conduct was protected. 21 the walk-out, no patients were actually in the laboratory, 22 nor did any patients require emergency treatment. 23 1094-95. 24 were routine and able to be transferred to nearby hospitals. Id. First, at the time of See id. at Second, all of the procedures scheduled for the day 32 1 See id. at 1094. 2 were not exceptional and that the lab had a set policy for 3 rescheduling, or bumping, procedures both routine and 4 emergency. 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. The Board noted that any delays experienced Id. at 1095. Third, the Board found that because 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. 13 1095 n.9. 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. 18 Id. at Chairman Truesdale distinguished circumstances See id. 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. 23 752-53, 756. 24 armed guards to staff posts, sweep buildings for weapons and 154 F.3d at The housing complex hired around-the-clock 33 1 drugs, and verify that only residents and guests entered the 2 facilities. 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. 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 See id. at 753. The court determined that the Id. at 756. Given the 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. 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. 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 756. Moreover, The court explained that the imminent 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. 4 See id. at 755, 756. We have no doubt that this case is more akin to Federal 5 Security than to East Chicago. 6 dismissive of the argument that Special Touch s patients were 7 placed at risk by the aides conduct. 8 to two sources. 9 The Board, however, was This view is traceable 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. 14 as to them, there was no evidence that they suffered any 15 adverse consequences. 16 Actual harm to patients is not the issue. 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. 22 Security, the Seventh Circuit specifically noted that 23 [w]hether actual harm resulted is hindsighted and 24 irrelevant. And 2005 N.L.R.B. LEXIS 472, at *20. 290 N.L.R.B. at 83. The appropriate Likewise, in Federal The proper focus is that the unguarded stations 35 1 unquestionably heightened the danger to residents. 2 at 757. 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. 7 entities accountable for their employees good luck. 8 9 154 F.3d The standard is well-established for good reason. It would be cruel to hold well-meaning Second, although the Board cabined its focus to danger (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. 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. 18 2011 N.L.R.B. LEXIS 322, at *22. And, while under See id. at *22 n.17. 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. 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. Id. at *3. 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. 6 disagree with the Board s application of the law to these 7 facts and to the record as a whole. 8 individual notice to patients nor the aides inability to 9 perform medical services significantly mitigates the risks We Neither the aides 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. 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 21 22 23 24 25 26 27 28 For example, Special Touch Vice President would then consult with the contracting agency just to see if that would be acceptable to them because we couldn t cancel the service even for the one day without reporting it to the nursing staff, contracting agency nursing staff. And they do say no. Sometimes they say, no, we don t think it s a good idea. (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. 7 well-meaning, it does not remove the danger. 8 the patients served by Special Touch live alone and there is 9 no one readily available to cover for an absent aide. While this gesture is First, many of Some 10 of the company s patients live with equally aged and infirm 11 spouses or siblings.12 12 with family, these individuals have not been trained to 13 provide the care the patient needs. 14 critically), many of Special Touch s patients do not 15 appreciate the degree of care that their conditions require. Second, even if a patient does live And finally (but 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. 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. 7 be present in patients homes is prevention. 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 11 Although not all of these patients were The primary reason for aides to The Special ensure their safety. The consequences of aides not showing up to patients 12 homes and failing to secure replacements in advance could 13 very well be dire. 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. 19 at *3. 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 In the Decision and Order that the Board Special Touch IV, 2011 N.L.R.B. LEXIS 322, But the reason aides perform light cleaning is to 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. 16 one physician and three nurses remained available to help 17 patients in need. 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. 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 This is not a case like Montefiore, where See 621 F.2d at 512. This is not a case See 710 F.2d at 407 (dissent). 40 This is not a 1 hospitals . . . in the near vicinity. 2 1095. 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. 6 See 328 N.L.R.B. at Instead, this is a case like Federal Security, where See 154 F.3d at 753-57. 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. 13 precautions to protect the employer s . . . patients from 14 foreseeable imminent danger due to sudden cessation of 15 work. 16 (quoting Bethany Med. Ctr., 328 N.L.R.B. at 1094-95). 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. But the aides were required to take reasonable Special Touch IV, 2011 N.L.R.B. LEXIS 322, at *41 By 20 To be clear, this is not a roundabout way of 21 establishing an individual employee notification rule. 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 Had 1 authorized to do pursuant to Board precedent), the aides 2 would not have been required to call in. 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. 6 inquire further, the employer should be considered to have 7 received notice of 1400 absences. 8 requirement that an employee answer its employer s request 9 for information. The Union s notice If an employer does not take it upon itself to Moreover, there is no 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. 13 N.L.R.B. at 656. 14 employer into expecting their presence when the lack thereof 15 will result in foreseeable imminent danger. 16 See 240 What employees cannot do is mislead their 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. 20 forty-eight aides shifts began, Special Touch believed that 21 it had these patients covered. 22 work occurred when the company determined that nearly fifty 23 of its aides were absent and that it would need to secure Until approximately twenty minutes after each of the 42 The sudden cessation of 1 replacements (many of whom would need to speak Spanish) as 2 fast as possible.13 3 minimum for which a patient might have been without coverage 4 on June 7), was enough time for harm to have occurred. 5 Federal Security, 154 F.3d at 757. 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 This twenty-minute period (the bare See Moreover, while forty- 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. 13 extends to all industries. 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 obligation Indeed, the resolution of this 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. 21 standard. The parties and the Board all agree that this is the 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. 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). The 10 11 12 Conclusion 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. 44
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