Home health aides who deceived their employer about their intention to strike created a reasonably foreseeable risk of imminent danger to their patients and were not entitled to be reinstated to their original patients and schedules after they were given new assignments following the strike, the U.S. Court of Appeals for the Second Circuit has ruled. NLRB v. Special Touch Home Care Servs., Inc., No. 11-3147-ag (2d Cir. Feb. 27, 2013). Finding that the aides engaged in “unprotected, indefensible conduct,” the Court denied a petition for enforcement of the National Labor Relations Board’s order to immediately reinstate the striking workers.


Special Touch Home Care Services, Inc. provides home health aides to homebound patients who often are elderly and have illnesses or disabilities (such as Parkinson’s disease, Alzheimer’s disease, epilepsy, diabetes, strokes, cancer, or developmental disabilities) that prevent them from performing activities of daily living. An aide’s responsibilities include helping the patient bathe and maintain good personal hygiene, helping the patient move around, planning and preparing meals, doing light housekeeping, shopping and running errands. Aides also remind patients to take their medication, but do not perform medical procedures.

In 2004, Special Touch had approximately 2,500 aides on its roster, with about 1,400 of them regularly assigned to specific clients. On May 27, 2004, New York’s Health and Human Service Union 1199 SEIU, AFL-CIO, CLC notified the company of its intent to strike from June 7 to 10, 2004. During the week before the strike, the company contacted the approximately 1,400 aides scheduled to work, inquiring whether they planned to take any time off during the upcoming week. The majority of the aides indicated their intent to work as scheduled. However, on the first day of the strike, 48 aides, who previously had not indicated they would be absent, failed to report for work. As a result, 43 of their patients received only partial coverage, while five did not receive any coverage. Following the strike, Special Touch told those 48 aides not to return until further notice. They were reassigned over the next few months, but not always to their prior patients or to similar work schedules.

The Union filed unfair labor practice charges against Special Touch, alleging the company violated Sections 8(a)(1) and (3) of the NLRA by failing to reinstate the 48 aides to their original assignments. The company defended its actions, arguing, among other things, that the aides’ misrepresentations during its pre-strike polling justified denying immediate reinstatement. After years of litigation, the Board found that Special Touch had violated the NLRA and petitioned the Court for enforcement of its order.

Applicable Law

Under the NLRA, otherwise lawful strikers’ conduct is unprotected when employees cease work without taking reasonable precautions to protect the employer’s plant, equipment, or patients from foreseeable imminent danger due to sudden cessation of work. Marshall Car Wheel & Foundry Co., 107 N.L.R.B. 314 (1953), enf. denied, 218 F.2d 409 (5th Cir. 1955). In the health care context, this rule has been extended to require prior notice of concerted activity “only when a strike, by its timing or unexpectedness, creates great danger or is likely to damage the employer’s business excessively.” Montefiore Hosp. & Med. Ctr. v. NLRB, 621 F.2d 510, 515 (2d Cir. 1980) (two doctors’ participation in strike was protected activity where doctors’ main duties were teaching and consulting and affected clinic continued to provide medical care). See also East Chicago Rehab. Ctr., Inc. v. NLRB, 710 F.2d 397, 405 (7th Cir. 1983) (brief walk-out by 17 nurse’s aides and support personnel at a nursing home did not endanger the health of facility’s patients and thus was protected activity); Bethany Med. Ctr., 328 N.L.R.B. 1094 (1999) (two-hour walk-out by catheterization laboratory employees who provided 15 minutes’ notice before first procedure scheduled for day was not “indefensible” conduct and did not create imminent danger).

Aides’ Actions Placed Patients in Risk of Harm

Seeking to enforce its order, the Board argued the aides’ failure to appear for work was protected activity because there was “no evidence” that any of the patients suffered any adverse consequences. But the Court found the Board’s argument missed the point — the appropriate inquiry is focused on the “risk of harm, not its realization.” 

The Board also pointed out that the aides had contacted the patients’ families to inform them that they would be absent. While the gesture was “well-meaning,” the Court said, “it [did] not remove the danger.” The Court noted that many of the patients lived alone or with aged and infirm spouses or siblings and had no alternate caregiver. Even if a patient lived with family, these individuals had not been trained to provide the appropriate care. The Court observed that the consequences of the aides’ failure to report “could very well be dire” to the patients, given their medical conditions and their homebound state. 

Accordingly, the Court found the 48 aides who failed to report for work engaged in “indefensible conduct” not protected by the NLRA and denied enforcement of the Board’s order.

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Health care employers may be vulnerable to union gamesmanship. The Court recognized employees’ deceptive conduct put patients at serious risk of harm. This case shows that whether such a risk exists — and whether discipline is proper — must be judged at the time of the action, not in hindsight. A retrospective “no harm, no foul” assessment is not the rule of law. “Penalizing companies for disciplining employees whose indefensible conduct fortuitously yields no damage would not serve the underlying purpose of the doctrine — avoiding unreasonable risk,” the Court explained.