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.
One tenet of NLRB case law is that an employer’s use of permanent replacements renders a lockout in support of its bargaining position unlawful. In Harborlite Corporation, 357 NLRB No. 151 (2011), the Administrative Law Judge relied on this principle to find a lockout in support of an employer’s bargaining position unlawful due to the employer’s statements that it would permanently replace employees. In a somewhat surprising result, the Board agreed the statements were unlawful, but concluded that the lockout itself was lawful. The Board’s separation of statements and conduct, as well as its implicit approval of the employer’s attempt to cure an errant statement, amounts to a welcome Board decision for employers.
In an interesting interpretation of logic and language, a 2-1 NLRB majority decided that a company “reemployed” illegal strikers by telling them they were locked out when they attempted to return to work. Douglas Autotech Corp., 357 NLRB No. 111 (Nov. 18, 2011).
The United Auto Workers Local 822 (UAW) represented a unit of 146 employees at Douglas Autotech’s Bronson, Michigan plant. The UAW’s contract expired April 30, 2008, and employees struck the next day. Within days, the UAW discovered that although it had served notice to terminate the labor contract, it had failed to file the separate notice of dispute with the Federal Mediation and Conciliation Service (FMCS). As the party initiating bargaining, the union could not lawfully strike until 30 days after the FMCS notice was filed.
In Alden Leeds, Inc., 357 NLRB No. 20 (2011), a unanimous Board (Members Becker, Pearce and Hayes) upheld an ALJ’s finding of an unlawful lockout. The ALJ’s decision contains a clear summary of Board law regarding lockouts (while clear, the discussion may gloss over some of the more confusing parts of Board law regarding lockouts, which tends to be quite obtuse and – perhaps not surprisingly - results oriented) emphasizing, “in order for the lockout to be lawful, the union must be informed on a timely basis of the employer’s demands so that the union can evaluate whether to accept them and prevent the lockout.”
NLRB: Employees Failing to Notify Home Health Care Employer They Were Participating in Strike Could Not Be Disciplined
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.