Nat'l Labor Relations Bd. v. Special Touch Home Care Servs., Inc.

• Decision Date: 27 February 2013
• Docket Number: Docket No. 11–3147–ag.
• Citation: 708 F.3d 447
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPECIAL TOUCH HOME CARE SERVICES, INC., Respondent, 1199SEIU United Healthcare Workers East, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

708 F.3d 447

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v. SPECIAL TOUCH HOME CARE SERVICES, INC., Respondent,1199SEIU United Healthcare Workers East, Intervenor.

Docket No. 11–3147–ag.

United States Court of Appeals, Second Circuit.

Argued: Jan. 30, 2013.

Decided: Feb. 27, 2013.

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.

Before: WESLEY, CHIN, Circuit Judges, LARIMER, District Judge. ^*

WESLEY, Circuit Judge:

This petition for enforcement presents two issues: (1) whether a health care employer may enforce an individual notice rule after its employees' union provides advance notice of an impending strike pursuant to 29 U.S.C. § 158(g); and (2) whether health care employees who fail to report to work at individual patients' homes without alerting their employer create a reasonably foreseeable risk of imminent danger.

Background

Respondent Special Touch Home Care Services, Inc. (“Special Touch”) subcontracts with nursing and health-related services to provide home health aides for patients who require assistance. Special Touch's patients have four common characteristics: (1) a physician ordered home health care services; (2) they have an illness that prevents them from normal functioning and daily living activities; (3) they are “homebound;” and (4) they are receiving skilled nursing, physical, occupational or speech therapy. Given the nature of its services, Special Touch has a call-in rule requiring aides who will not be able to report to their patients' homes as scheduled (for any reason) to notify Special Touch. Because aides go directly to patients' homes, Special Touch uses an automated attendance system. The company gets a report of which aides have not called in after the start of their shifts, at which point Special Touch calls each home to verify whether or not the aide is there. Confirming an aide's presence takes approximately twenty minutes.

In 2004, Special Touch had approximately 2500 aides on its roster, with about 1400 of these aides regularly assigned to specific clients. Aides are typically matched with patients based on common language, primarily English, Spanish, Chinese or Russian. Patients receive varying amounts of care; some have an aide present twenty-four hours per day, seven days a week, while others require just a few hours each week. The necessary amount of care is determined by the patient's physician. A nursing agency sets the specific “plan of care” and then subcontracts the work to Special Touch.

Aides who work for Special Touch undergo two-and-a-half weeks of mandatory training before being assigned to patients. The specific responsibilities of an aide depend on the individual patient's plan of care, but they will often include helping the patient bathe and maintain good personal hygiene, helping patients move around and transfer from a chair to bed or to the bath, meal planning and preparation, light housekeeping, and grocery shopping and errands. Aides often remind patients to take medication and ensure they are taking the proper doses, but aides do not, and cannot, perform medical procedures. Special Touch's handbook explicitly lists functions its aides are not to perform, including: taking vital signs, changing bandages, giving medication, and “[g]iv[ing] any care not included on the nursing care plan.”

According to Inessa Lutinger, a registered nurse instructor who trains aides for Special Touch, “our role is prevention, prevention of higher level care, prevention [of] patient hospitalization, and prevention [of a] patient [becoming] a resident in the nursing home.” To achieve this end, aides are taught, among other things, how to look for signs of distress, to prevent falls and to recognize signs of internal bleeding. In addition, aides are trained how to respond to an emergency, whether health-related or external (such as a fire). According to Lutinger, one of the biggest worries with patients is their susceptibility to falling—particularly falling backwards—because of their lack of balance and strength. Lutinger explained that the high risk of falls is the reason the aides are tasked with light housekeeping: “[I]f you keep your floor neat and nice, it decrease[s the] probability of falling, and as a consequence[ ] of possible fatal injuries.”

Facts

On May 27, 2004, New York's Health and Human Service Union 1199SEIU, AFL–CIO, CLC (the “Union”) notified Special Touch of its intent to strike from Monday, June 7, 2004 at 6:00 a.m. until Wednesday, June 10, 2004 at 6:00 a.m. During the week prior to the strike, coordinators and supervisors from Special Touch contacted the approximately 1400 aides scheduled to work to inquire whether they planned to take any time off during the upcoming week.¹ The majority of the aides indicated their intent to work as scheduled. Approximately seventy-five aides said that they anticipated being absent during part of the following week (whether for purposes of striking or for other reasons). Special Touch arranged for replacements to cover these employees' patients.

Forty-eight ² aides who had not previously conveyed their plans to be absent during the strike did not appear for work on Monday morning, June 7, 2004. Most of these aides spoke Spanish, which made finding emergency replacements for them difficult. Unbeknownst to Special Touch, the Union had held a meeting shortly before the strike, at which it advised aides that they did not need to notify the company if they planned to strike because the Union had already provided the requisite ten-day notice required by 29 U.S.C. § 158(g) for health-care workers.³

On June 7, when forty-eight aides who were expected to work failed to call in or report, Special Touch struggled to get replacements to its patients. These patients included people suffering from recent strokes, Parkinson's disease, early-onset Alzheimer's disease and other memory problems, epilepsy, broken limbs, diabetes, osteoporosis, breast cancer, developmental disabilities, and impaired mobility; some of these individuals were over eighty years old. Forty-three of the patients received partial coverage, while five patients did not receive any coverage. According to Special Touch Vice President of Operations Linda Keehn, “[s]ome of them got partial service because we didn't find out right away.... [It] was very, very confusing, very chaotic. Here all of a sudden, we thought we had everything sort of covered....”

Following the strike, the seventy-five aides who had advised Special Touch of their planned absence when asked during the pre-strike poll were immediately reinstated to work with their previously-assigned patients. The forty-eight aides who responded during the poll that they intended to work but failed to report as expected were advised not to return to their assigned patients until further notice. These forty-eight aides were ultimately reassigned over the next few months, but not always to their prior patients or to similar work schedules. One week after the strike began, Keehn sent letters to these forty-eight aides detailing the company's position on their absence:

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 the confusion over notification following the Union meeting, and, as a result, the company had determined not to terminate any of the employees.

Procedural History

After the Union filed charges against Special Touch, the National Labor Relations Board's (“Board”) General Counsel issued a complaint charging Special Touch with violating the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1) and (3),⁴ by failing and refusing to reinstate the forty-eight aides who participated in the strike unexpectedly. Administrative Law Judge Raymond P. Green (“ALJ”) held a hearing, at which he heard testimony by eleven of the striking aides, various Special Touch supervisors and coordinators, Keehn, and Lutinger. The ALJ ruled that Special Touch could not defend its treatment of the forty-eight aides as unprotected strikers because their failure to comply with the company's call-in rule did not alter their status as protected workers. Special Touch Home Care Servs., Inc., 2005 WL 2323361, 2005 N.L.R.B. LEXIS 472, at *20–22 (Sept. 15, 2005)( Special Touch I ). The ALJ reasoned that to find otherwise would mean that “an employer could, by enactment of a private rule, nullify the public rights guaranteed by a statute of the United States”—namely, 29 U.S.C. § 158(g). Id. at *14.

The ALJ discussed Congress's enactment of Section 8(g) in 1974, which requires unions to give ten days of notice to health care facilities before their employees go on strike.⁵ He confirmed that the notification requirement is limited to unions and does not apply to individual employees. See id. at *17. The ALJ rejected Special Touch's argument that some type of notice requirement was appropriate in this situation because of the “imminent danger” to patients that would be created otherwise: “[a]ssuming arguendo that an ‘imminent danger’ qualification can be read into the Act's conference of the...