In NLRB v. Special Touch, 2013 U.S. App. LEXIS 4058 (2d Cir. Feb. 27, 2013), the U.S Court of Appeals for the Second Circuit denied a National Labor Relations Board petition for enforcement in a well-reasoned case that employers may view as a sign that someone is listening to their pleas for common sense in labor decisions. The facts are relatively straight-forward.  Special Touch subcontracts with nursing and health-related services to provide home health aides. The patient population has either been ordered by a physician to receive home care, has an illness that prevents normal functioning and daily living activities, is homebound, or is receiving in-home health services. The SEIU provided a Section 8(g) notice to the employer of its intent to strike, as is its right. The employer, according to its rights, contacted the approximately 1400 aides scheduled to work to inquire whether they planned to take any time off during the time period provided by the union for the strike. Approximately 75 aides stated their intent to be absent. When the strike began, however, an additional 48 aides who had not previously stated they would be absent failed to appear for work. At the conclusion of the strike, the 75 who had informed the employer of their absence were reinstated; the other 48 were terminated.

The employer put forth two arguments to justify its actions: 1) the 48 aides failed to follow its call-in rule; and 2) the employees’ failure to report to work created a reasonably foreseeable risk of imminent danger. The court rejected the first argument, finding Section 8(g) trumps an employer’s legitimate business reasons for enforcing an individual notice rule. However, concerning the second argument, the court found the actions of the 48 aides were unprotected because “their uncorrected misrepresentations regarding their plans to strike in response to the pre-strike poll placed forty-eight of Special Touch’s patients in foreseeable imminent danger.”

The court made clear that there is no requirement that an employee tell an employer whether the employee plans to strike, as such would be considered an impediment to engaging in protected activity. What is required is that employees not “mislead their employer into expecting their presence when the lack thereof will result in foreseeable imminent danger.” The court reiterated this point several times throughout the opinion and firmly stated this was a minimal burden on the employees. Even more refreshing was the court’s statement that this obligation to take reasonable precautions not to create foreseeable imminent danger extended to all industries and was not tied to Section 8(g) notices or the health care industry.