Application for enforcement of an order of the National Labor Relations Board finding that Respondent Special Touch Home Care Services, Inc., engaged in unfair labor practices by (1) not immediately reinstating employees who went on strike after the employees did not respond in the affirmative to the employer's survey asking if they would go on strike and (2) unlawfully interrogating two employees about their support for the union. The National Labor Relations Board therefore ordered Respondent to take various remedial actions.
First, we hold that, in connection with reinstatement, the Board erred by not considering the intersection of the plant rule doctrine and Section 8(g) of the National Labor Relations Act. We remand on this point so the NLRB can opine on this issue in the first instance. Second, we hold that the interrogations were unlawful, though not for the reasons relied upon by the Board.
Enforced in Part, Modified in Part and Enforced in Part as Modified, and Enforcement Denied in Part; Remanded.
The opinion of the court was delivered by: Straub, Circuit Judge
Argued: November 19, 2008
Before STRAUB, SACK, AND WESLEY, Circuit Judges.
Petitioner National Labor Relations Board ("NLRB" or "Board") petitions this Court for enforcement of its final decision and order, Special Touch Home Care Servs., Inc. & New York's Health & Human Serv. Union 1199/SEIU, 351 N.L.R.B. No. 46, 2007 WL 2963267 (Sept. 29, 2007) ("Special Touch II"), finding that Respondent Special Touch Home Care Services, Inc. ("Special Touch" or "Company") acted unlawfully by (1) not immediately reinstating employees who went on strike after failing to respond affirmatively to a survey asking if they would strike, and (2) interrogating employees about their support for the union. Special Touch responds that (1) the employees' actions were not protected because they violated a neutral, non-discriminatory "plant rule" and because the employees' conduct was indefensible, and (2) the interrogations were not improper. The Board also found that one striker, Crecencia Miller, was lawfully discharged; no party disputes this finding.
With respect to the primary issues raised on appeal, we first hold that, in connection with the reinstatement of strikers, the Board erred by not considering the intersection of the plant rule doctrine and Section 8(g) of the National Labor Relations Act ("NLRA") as amended, 29 U.S.C. § 158(g). In remedying this error, as more fully explained infra, we ask that the Board opine on the relationship between these two rules in the first instance. Second, we hold that the interrogations were unlawful, though not for the reasons relied upon by the Board.
Accordingly, the order below is enforced in part (with respect to Miller) and modified in part and enforced in part as modified (with respect to interrogations). Enforcement is denied in part (with respect to reinstatement). The case is remanded in part (with respect to reinstatement) for proceedings consistent with this opinion.
On May 27, 2004, 1199 SEIU United Healthcare Workers ("Union") served a ten-day strike notice on Special Touch, indicating that a strike would commence on June 7, 2004 and last for three days. Typically, advance notice is*fn1 not required before a strike. See Montefiore Hosp. & Med. Ctr. v. NLRB, 621 F.2d 510, 515 (2d Cir. 1980). However, in 1974, Congress amended the National Labor Relations Act to add Section 8(g). See Pub. L. No. 93-360, § 1(e), 88 Stat. 395, 396. Section 8(g) states in pertinent part:
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.
29 U.S.C. § 158(g). The parties assume that Special Touch is a "health care institution" within the meaning of Section 8(g). See Special Touch Home Care Servs., Inc. & New York's Health & Human Serv. Union 1199/SEIU, No. 29-CA-26661, 2005 WL 2323361, at n.3 (N.L.R.B. Div. of Judges, Sept. 15, 2005) ("Special Touch I") ("Although it is far from clear that the Respondent provides medical services, it seems that the parties herein, assumed that it is a health care facility within the meaning of the Act.").
Special Touch is a home health care agency located in Brooklyn, New York. It employs home health aides, who provide home health care services to clients at the clients' residences. Special Touch has a roster of about 2500 employees; of these 2500, over 1400 were assigned to clients on June 7, 2004. Following the Union's notice, Special Touch surveyed its employees to determine who would not be working during the strike. Special Touch assigned a replacement if an aide said he would not be working during the week of June 7. A total of seventy-five aides told Special Touch they would not be working on June 7, and a replacement was assigned to the corresponding client for each for the time the employee was out. After the strike, the employees were generally reinstated without any adverse consequences. This case does not involve those seventy-five employees.
In addition to those seventy-five, forty-eight other aides did not report for work on June 7, 2004. These latter forty-eight did not respond to Special Touch's survey by indicating that they would miss work. They also did not "call in," i.e., provide at least two hours' notice that they were going to miss a shift, as they are generally required to do by company policy. (The call-in rule applies to all absences, not just strikes.) As a result, Special Touch had to find replacements for the forty-eight with little or no lead time; forty-three clients received only partial coverage on June 7 and five received no coverage at all. Many of the forty-eight returned to work the next day, i.e., they did not strike for the full three-day period.
On June 14, 2004, Special Touch sent a letter to the forty-eight employees who missed work on June 7 without providing notice. The employees were told that they had violated Special Touch's policy by not calling in before missing work. However, the letter indicated that the employees would not be discharged.
Eventually, some of the forty-eight were reassigned to their original positions, some were reassigned to positions that were different (either substantively or in terms of the number of hours), and some found work elsewhere.*fn2
Later, in July 2004, while the Union's petition to represent the home health aides was pending, a coordinator at Special Touch named Lydia called an aide, Miriam Perez, and asked various questions about the Union, including if Perez had signed a union card. A month later, a Special Touch coordinator named Carmen Vasquez called an aide, Soila Peguero, and asked if Peguero had received an election package from the Union; Vasquez told Peguero to let her know when the package arrived so Vasquez could help her vote. Vasquez also said that Peguero should vote no if she were unable to contact Vasquez when the voting materials arrived.
On January 28, 2005, the NLRB filed a complaint against Special Touch, and on September 15, 2005, the ALJ found for the Board on essentially all counts. See generally Special Touch I, No. 29-CA-26661, 2005 WL 2323361. On September 29, 2007, the NLRB affirmed the decision of the ALJ in all material respects relevant to this appeal. See Special Touch II, 351 N.L.R.B. No. 46.*fn3
Specifically, the Board found that Special Touch violated the law by failing to immediately reinstate the strikers who did not call in and by interrogating employees about the Union. Special Touch II, 351 N.L.R.B. No. 46, 2007 WL 2963267, at *1 n.3. The NLRB did not discuss the plant rule or indefensible conduct arguments raised by Special Touch, but it did adopt the ALJ's decision, see id. at *7-22 (decision of ALJ) which discussed those issues, see id. at *12 (plant rule), *13 (indefensible conduct). The Board also issued a remedial order*fn4 requiring the Company to take various steps. These included reinstating workers who ...