by Jeffrey M. Place

The National Labor Relations Act (NLRA or “the Act”) requires unions representing employees in the health care industry to provide written notice to the employer ten days prior to any strike.  When a union provides the required notice, employers are permitted to poll employees to determine whether they plan to participate in the strike.  These polls, though unlawful in other industries, are allowed in the health care industry so that affected employers may make alternative staffing arrangements in order to avoid disruptions in patient care.  In Special Touch Home Care Services, Inc., 357 NLRB No. 2 (2011), the Board recently held that an employer violated the Act when it disciplined employees who responded to a lawful poll by indicating that they would work during a strike, but who then participated in the strike without providing any notice to the employer.   This decision appears to substantially undercut the effectiveness of the polling process available to employers in the health care industry.  The decision also reinforces that employers in all industries will be required to present individualized evidence of specific harms before they will be allowed to discipline employees for striking without notice.

In Special Touch, the employer’s home health aides provided personal care services such as cleaning, shopping, assistance in bathing, and observing customers for signs of medical distress.  The customers the company served included individuals suffering from a wide range of medical conditions, such as depression, diabetes, and post-stroke partial paralysis.  A union engaged in an organizing drive sent written notice to the employer pursuant to Section 8(g) of the NLRA, stating that the union intended to call a strike among the home health aides on June 7, 8 and 9, 2004

In response to the 8(g) notice, the employer conducted a lawful poll of its employees to determine in advance which employees intended to participate in the strike.  Seventy-five out of approximately 1,400 employees polled responded that they did not intend to work during the strike.  Forty-eight other employees stated that they would work on the relevant dates, but still participated in the strike.  The company maintained a nondiscriminatory rule requiring any employee who would not report for a scheduled shift to  provide notice in advance of the shift, with which the 48 employees who struck after stating that they would be at work on the dates of the strike did not comply.  As a result, some customers received delayed or partial services on June 7, and five customers received no services at all.

When the strike ended, the company reinstated all strikers except the 48 who had stated that they would work, but failed to notify the employer of their absence on June 7.  The company disciplined those employees for failing to comply with the notice rule by delaying their reinstatement, and also by reinstating some of them to positions that involved fewer or less regular working hours than the positions they held prior to the strike.  The union filed unfair labor practice charges.

On remand from the U.S. Court of Appeals for the Second Circuit, the Board affirmed its prior ruling.  Chairman Liebman and Member Becker noted that employees generally have no obligation to provide advance notice to their employer before commencing a strike.  The Board majority emphasized that the obligation to provide the 8(g) notice in the health care industry falls on unions, and not directly on the employees they represent.  In addition, the majority acknowledged that any striker, even outside of the health care industry, who “fail[s] to take reasonable precautions to protect the employer’s plant, equipment, or products from foreseeable imminent danger due to sudden cessation of work” is subject to discipline.   The majority concluded, however, that the employer in this case had not demonstrated that any of its customers were left in such danger.  The majority emphasized that the employer received the 10-day notice under Section 8(g), and thus knew that it should expect disruptions in service on June 7, including the possibility that more employees would strike than had so indicated in response to the poll.

With regard to the company’s pre-existing notice rule, the majority distinguished cases in which such rules had been held enforceable on the basis that none of the home care aides reported to work and then walked off the job suddenly.  Rather, the 48 aides did not come to work at all on June 7.  The majority asserted that not reporting to work at all was less disruptive to the company than it would have been for aides to suddenly walk off the job.  The majority concluded that allowing the company  to enforce its notice rule would create a “significant burden on the right to strike” by requiring employees to face the “intimidating prospect” of telling their employer that they would support the strike.  The majority held that the company could not enforce its notice rule against activity protected under Section 7 of the NLRA unless it demonstrated a “business justification [that was] sufficiently compelling to outweigh unrestricted exercise of protected activity.”  According to the majority, such justification did not exist in this case. 

All employers can take two lessons from this decision, and employers in the health care industry should be aware of a third.  First, employers who wish to discipline employees for “suddenly” commencing a strike will need to present evidence of significant harm or imminent danger created by the conduct of each individual employee.  Disciplining an employee with anything short of proof of actual damages to the company will be risky.  Employers should not discipline employees “as a group” for the nature in which they commence a work stoppage.

Second, although there remains a theoretical potential to demonstrate that a pre-existing and nondiscriminatory “notice” rule can be enforced against strikers, the Board must find that the need for the rule justified the resulting burden on the employees’ right to strike. 

Finally, employers in the health care industry should keep in mind that unions now have a “green light” to encourage all employees to respond to lawful polls by stating that they will work during any strike, in an effort to lull the employer into a false sense of confidence about its anticipated staffing needs during the strike.  Employers would be wise to assume that the number of actual strikers will exceed the number of employees who indicate an intent to strike – or at least honor the picket line – when responding to polls.