The National Labor Relations Board (“NLRB” or “Board”) has issued its long-anticipated  decision in Browning-Ferris Industries, 362 NLRB No. 186 (pdf), establishing a new test for determining joint-employer status under the National Labor Relations Act (“NLRA” or the “Act”).  Because this revised standard will resonate with businesses relying on contractors and staffing firms throughout the economy and across industry lines, employers should be wary of its potential impact upon relationships with service providers that are supportive of, or critical to, their enterprise.

By fashioning a new standard in Browning-Ferris, the Board springs open new questions of which legally distinct entities will bear responsibility in NLRB cases addressing union recognition and bargaining obligations, as well as for any unfair labor practices that may follow.  Given the Board’s lead in fashioning a new standard, described as based on common law principles, it is likely to be relevant as well to other agencies, such as the Equal Employment Opportunity Commission and Department of Labor.

The majority opinion in this 3-2 decision makes clear that its objectives are far reaching: to address “the diversity of work­place arrangements in today’s economy,” including the increase in “[t]he procurement of employees through staffing and subcontracting arrangements, or contingent employment,” and fulfill a “primary function and responsibility.”

A New Standard for a Different Economy

Under the new standard enunciated by the majority, “[t]he Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” Browning-Ferris jettisons the long standing requirement that not only must a party have the means to influence such matters, but it must also have exercised that right in a meaningful way.  If the decision is upheld and followed, no longer will the Board need to find that an employer retains and exercises direct control over another employer’s employees to be liable as a joint employer of those employees.

In the decision and press release, the Board suggests that “the current economic landscape”, which includes some 2.87 million people employed by temporary agencies, warrants a “refined” standard for assessing joint-employer status. As the majority puts it: “If the current joint-employer standard is narrower than statutorily necessary, and if joint-employment arrangements are increasing, the risk is increased that the Board is failing what the Supreme Court has described as the Board’s ‘responsibility to adapt the Act to the changing patterns of industrial life.’”

What Is the New Test for Finding Joint Employer?

So what exactly is changed? Previously, an employer had to exercise direct and immediate control over the terms and conditions of employment to be found to be a joint-employer. Under the new standard, what matters is whether the purported joint-employer possesses the authority to control the terms and conditions of employment, either directly or indirectly. In other words, the actual or potential ability to exercise control, regardless of whether the company has in fact exercised such authority, is the focus of the Board’s inquiry.  As the Board puts it, “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry.” (emphasis added).

The Board’s decision also extends joint-employer status to employers that only exercise a degree of indirect control over the work performed by the employees of another. By way of example, in support of its holding that Browning-Ferris Industries (“BFI”) was a joint-employer of the employees of its contractor, Leadpoint Inc., a supplier of temporary labor, the Board emphasized that BFI had “communicated precise directives regarding employee work performance” to Leadpoint supervisors.

Why This Matters

As former NLRB Chair Wilma Liebman told Noam Scheiber of The New York Times, the Board’s decision changes the critical fact of which company is required to negotiate when employees unionize: “This is about, if employees decide they want to bargain collectively, who can be required to come to the bargaining table to have negotiations that are meaningful,”

One significant indicator of how broadly the Browning-Ferris decision will be applied may be seen when the decisions issue in the pending unfair labor practice charges in which McDonald’s is alleged to be a joint-employer of the employees of various franchisees. While the full import of Browning-Ferris may unfold over years of administrative litigation and court review, we know that the obvious (and intended) effect of the decision is to permit the Board to find joint-employer status where it did not previously exist. Indeed, the Board majority notes that extending joint-employer status is necessary to “encompass the full range of employment relationships wherein meaningful collective bargaining is … possible.” Notwithstanding the arrangements employers and contractors have made in years past to guard against joint-employer exposure, unions will be at the ready with unfair labor practice charges and representation petitions as vehicles for the Board to apply its new standard and examine or reexamine relationships forged before the pronouncements of Browning-Ferris. Thus, employers should anticipate a role in newly filed proceedings alleging joint-employer status – even as they contemplate reforming or redefining terms by which they engage with contractors and other providers of services supportive of their business.

Especially troubling is the prospect that the Board, in its zeal to create new applications for its joint-employer criteria, will ignore existing facts showing no actual exercise of control by one employer over employee relations of another, and instead look for control that potentially could be exercised in an ordinary arm’s length business relationship.

Given these circumstances, even those employers who do not exercise any direct or indirect control over the employees of their contractors should review carefully the terms of such arrangements, keeping in mind the Board’s stated intention of expanding joint-employer status.

What to Do Now

It is not an exaggeration to say that the new standard for determining joint-employer status will impact employers in almost every industry across the country.  As a first step, employers will want to closely examine their relationships with those who provide them with temporaries and other contingent workers, and their contracts and relationships with those other businesses that provide integral services and support, to assess whether there is a vulnerability to findings of joint-employer status.

CASINOOn July 10, in Venetian Casino Resort, LLC v. N.L.R.B., the D.C. Circuit Court of Appeals ruled that a resort and casino operator’s call to the Las Vegas Police Department, asking it to take action in response union demonstrators trespass on its private property, was protected by the First Amendment and did not violate the National Labor Relations Act (“Act”). The Court’s decision vacated a decision by the National Labor Relations Board (“NLRB” or “Board”), in which the Board found that the act of calling the police in those circumstances unlawfully interfered with employees’ rights under the Act.

Court Reject’s NLRB’s Narrow Reading of the First Amendment

The events leading to this appellate decision happened 16 years ago, in 1999, during a demonstration that was part of a union campaign to organize workers at the then recently opened, Venetian Casino Resort in Las Vegas.  When more than 1,000 demonstrators set up shop on the Venetian’s property, they were asked to leave. Only after the demonstrators refused to heed the trespassing notice did the resort ask the police to intervene. In response, the union filed unfair labor practice (“ULP”) charges with the NLRB alleging that the company had interfered with the demonstration and employees’ rights in violation of Section 8(a)(1) of the Act.

The employer argued that its actions did not violate the Act, and were in fact protected by the petition clause of the First Amendment of the Constitution, which protects “the right of the people… to petition the Government for a redress of grievances”  and the Noerr-Pennington doctrine interpreting the petition clause.  The Board, which did not issue a decision until 2011, rejected the employer’s argument, holding that Noerr-Pennington only applied to “petitions [for redress] that seek the passage of a law or rule, or a significant policy decision.” In other words, in the Board’s opinion, only formal, substantive petitions were worthy of protection under the First Amendment.

Fortunately for employers and property owners, however, the D.C. Circuit Court of Appeals rejected the Board’s narrow reading of the First Amendment and Noerr-Pennington, holding that the company’s “request that the police officers at the demonstration issue criminal citations to the demonstrators and block them from the walkway” fit “squarely within the traditional mold of a [protected] petition to government.” In adopting the reasoning previously relied upon by the Ninth Circuit Court of Appeals in Forro Precision Inc. v. IBM Corp., 673 F.2d 1045 (9th Cir. 1982), the D.C. Circuit noted that these types of petitions must be protected because they help ensure “the free flow of information to the police.”

Remand to the NLRB for Further Consideration

Notwithstanding this meaningful victory, the Court’s decision does not provide final resolution of the ULP charges. Specifically, the Court remanded the case to the Board with direction that it consider a question not previously addressed: whether the Venetian’s request for police intervention was a sham. If the Board determines that the petition was a sham, i.e., that it was “objectively baseless,” then the request for police intervention would not be entitled to the protection of the First Amendment under the Noerr-Pennington doctrine. Given the Board’s penchant for looking at employers’ actions and motivations with a good deal of doubt, it is reasonable to anticipate that the Board will take a close look at the matter for any grounds to discredit the request for police intervention.

The Conflict Between Employer’s Property Rights and Employees’ Section 7 Rights

While the Court’s holding offers some encouragement and relief to employers seeking to protect their property and respond to interference with business and operations, unfortunately, it appears likely that the Board will continue its expansion of the ability for unions to engage in organizing, demonstrations and related activities on private property and for employees to use employer property in the exercise of their Section 7 rights. As the Board demonstrated in its decision this past December in Purple Communications – which reversed the Board’s earlier Register Guard decision and provided employees new rights to use employer’s email systems for organizing and other concerted activities – when it comes to “balancing” employers’ property rights and the rights of employees under the Act, the current Board often finds that the Boards before it gave too much weight to the rights of property owners, generally at the expense of the rights of employees and the unions that represent or seek to represent them.

In fact, since at least 2010, the Board has signaled its intent to rebalance the rights of employers/property owners and organizing rights more in favor of employees and unions. In 2010, in Roundy’s Inc. (PDF), a case with questions concerning when and whether nonemployee union organizers have the right to come on employer property and whether those rights should be expanded, the Board invited interested parties to submit amicus briefs indicating that it was reexamining issues concerning union rights to demonstrate and organize on private property in light of the Board’s Register Guard decision. While the Board has not issued a decision in Roundy’s (although the case has been fully briefed for 4 ½ years, as noted above), Register Guard and its reasoning was rejected by the Board majority when they decided Purple Communications.

What Does All of This Mean for Employers?casino2

The Venetian decision has significant implications for employers who have, for years now, dealt with a Board that is intent on rebalancing parties’ rights. If nothing else, the ruling should provide some solace to employers who are faced with the need to protect their property. Even still, the decision is not a cure all and employers must be careful not to read the holding too broadly. Indeed, the Court was quick to point out that the decision does not protect employers who petition for redress of a grievance involving a matter in which they have no judicially cognizable interest.

Thus, the ruling does not conflict with Sure-Tan, 467 U.S. 886 (1984), where an employer violated the Act when it reported its employees (who were engaged in union activity) to the then Immigration and Naturalization Service. The important point of distinction to keep in mind is that the employer in Sure-Tan “did not invoke the INS administrative process in order to seek the redress of any wrongs committed against them” while in this case, the Venetian sought to protect its private property rights against trespassing demonstrators.

Additionally, employers are cautioned that even though the DC Circuit has provided the Venetian with a victory, as repeatedly demonstrated in its adherence to the D.R. Horton/Murphy Oil anti-arbitration theories, this Board has exhibited its willingness to continue to advance its position in spite of Circuit Court admonishment.

Finally, with the continued uptick in union organizing activity engendered by the Board’s adoption of the Amended Election Rules that took effect this past spring, it makes sense for employers to review their policies and practices concerning public and other non-employee access to their premises and their protocols for dealing with trespass and attempts to gain access for non-business related purposes.  As the D.C. Circuit’s remand in Venetian Resort suggests, it is important that response plans are objectively based and proactively address the matters of employee and union access in light of the latest guidance not only from the Board, but from the courts as well.

By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry

In case you were hoping that the Supreme Court’s recent decision in Noel Canning would finally put to bed any questions regarding President Obama’s recess appointments to the NLRB, or that the Fifth Circuit’s rejection of the Board’s decision in  D.R. Horton might alter the NLRB’s position on the right of employers to require employees to abide by mandatory arbitration agreements , think again.

In Fuji Food Products a decision issued on July 15, 2014, NLRB Administrative Law Judge Jeffrey D. Wedekind held that former NLRB Board Member Craig Becker’s recess appointment was valid and that Fuji Food Product’s arbitration agreement, which required  employees  to arbitrate all federal claims,  was unlawful.

Specifically, the ALJ concluded  that Member Becker’s recess appointment was valid under Noel Canning because unlike the others appointments made by President Obama, his occurred during a 17-day intra-session recess, during which  no sessions of the Senate (pro-forma or otherwise) took place. For a closer look at the Noel Canning decision and its impact on the Board’s decisions from August 27, 2011 through July 17, 2013 read our earlier post.

With regards to D.R. Horton, the ALJ acknowledged that the Fifth Circuit Court of Appeals had rejected the Board’s conclusion upon which his decision was based, but he explained that because of the doctrine of non-acquiescence, he was “required to follow Board precedent unless and until it is reversed by the Supreme Court.” Our analysis of the Fifth Circuit’s decision in D.R. Horton v. NLRB can be read here.

ALJ Wedekind’s decision is evidence that significant questions remain in the post-Noel Canning world and that the principle in D.R. Horton is far from a settled matter.

The holding that former Member Becker’s appointment was valid may determine whether those decisions issued by the Board between August 27 and December 31, 2011 were valid. A finding that Member Becker’s appointment was unconstitutional and invalid would leave the Board without the requisite three members needed to issue decisions as established in New Process Steel.

The ALJ’s non-acquiescence to the Fifth Circuit Court of Appeals decision in D.R. Horton v. NLRB is also intriguing, although not surprising.  Indeed, NLRB ALJs are loath to disregard Board precedent even where federal courts have overturned their holding. As a practical matter, this means that ALJs will continue to find similar binding arbitration agreements unlawfully interfere with employees’ rights under the National Labor Relations Act unless and until the Supreme Court rules on the issue.  Don’t expect that any time soon however, the NLRB’s decision not to petition the Supreme Court for a writ of certiorari challenging the Fifth Circuit Court of Appeals decision, which it would have had to file earlier this month to be timely, means that the NLRB will likely continue to rely upon its holding in D.R. Horton for the foreseeable future.

By Adam C. Abrahms, Steven M. Swirsky, and D. Martin Stanberry

On Tuesday, August 20th, in an opinion that follows in the wake of Noel Canning, United States District Judge Benjamin H. Settle dismissed an injunction petition filed by Ronald Hooks, a Regional Director  of the National Labor Relations Board, on the grounds that he was “without power” to issue the underlying unfair labor practice complaint.

The Regional Director had initially filed the petition with the District Court in June in an effort to obtain a temporary injunction that would, among other things, have prevented Kitsap Tenant Support Services, a home healthcare provider, from disciplining or terminating employees pending the resolution of complaint alleging a host of unfair labor practices.

The Court however, dismissed the Regional Director’s petition, ruling that the NLRB had no legal power to issue the underlying complaint alleging violations of the NLRA.  Not only did the Judge follow Noel Canning and its progeny by ruling the Board (as constituted at the time) lacked a properly constituted quorum but Judge Settle went even further by ruling the Board lacked a properly authorized General Counsel.

In a ruling which could potentially paralyze the NLRB, Judge Settle held that Acting General Counsel Lafe Solomon’s appointment to the post had been invalid, and consequently, that he could not have lawfully delegated the authority to request a temporary injunction to the Regional Director.  Specifically, Solomon was never confirmed by the Senate but was serving in the “Acting” capacity pursuant to President Obama’s appointment under the Federal Vacancies Reform Act (FVRA).  The Judge ruled, however, that this appointment was invalid because Solomon failed to meet the very specific requirements which would permit an appointment under the FVRA – namely he was not a first assistant to the departing General Counsel.

The decision is an exciting one because it raises interesting procedural questions affecting the operations of the Board. It remains to be seen what the administrative law judge tasked with adjudicating the dispute will do. Will he or she acknowledge that Regional Director Hooks lacked authority to issue the Complaint as dismiss it on such grounds? Or will the adjudication proceed as though Judge Settle’s decision does not affect agency operations? This issue is further complicated by the fact that the Board had already denied a motion to dismiss filed by Kitsap earlier this year on grounds similar to those relied upon by Judge Settle. If the administrative law judge refuses to proceed however, then it would seem that he or she would have no choice but to refuse to hear any complaints issued by the Regional Director during the period in which the Board lacked a valid quorum let alone all complaints issued under the authority of Solomon who has served as the Acting General Counsel since June 2010.

Beyond this case, the theory advanced in Kitsap could have wide-ranging implications that render the recent compromise to confirm a five member Board virtually meaningless.  Without a properly appointed General Counsel can the Agency continue to issue complaints?  Are the complaints issued under Solomon all invalid?  What about appeals authorized or being responded to under the direction of Solomon?  What about the appointment of Regional Directors – were those appointed under Solomon invalid and are the actions of such Regional Director’s similarly without authority?

Likewise, where does these leave the General Counsel’s office?  As noted here the President has appointed Robert Griffin to replace Solomon but Griffin likely would face stiff opposition in the Senate.  The prior conventional wisdom was Obama could use the FVRA to make Griffin the Acting General Counsel but under Kitsap Griffin also would not be qualified for such an interim appointment.  This could leave the Agency without “authority to act” until the Senate confirms a new General Counsel or the President appoints an Acting General Counsel that meets the FVRA criteria.

Certainly, this groundbreaking decision leaves many more questions than it provides answers.

And lest we forget, like every other decision which has relied upon Noel Canning, the impact of Judge Settle’s ruling may hang in the balance until the Supreme Court hears Noel Canning next term. Until that time however, rest assured that attorneys will be citing Kitsap at Board hearings and in court rooms across the country.

Management Missives

  • Employers facing unfair labor practice charges should consider preserving the issue that the NLRB is without authority to issue a complaint (seek an injunction or take other action which requires the General Counsel’s approval).
  • Stay tuned!

By Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry

With an eye toward next term, the Supreme Court announced on Monday, June 24th, that it had granted the National Labor Relations Board’s (“NLRB”) petition for certiorari in Noel Canning v. NLRB. This news all but ensures that America’s highest court will determine not only the fate of President Obama’s recess appointments to the Board, but also the extent of a president’s Constitutional power to appoint individuals to various federal agencies, departments and courts without the advice and consent of the Senate.

As we explained at the time Noel Canning was decided, the D.C. Circuit Court of Appeals’ ruling invalidated three of President Obama recess appointments to the NLRB, thereby leaving it without a quorum (3 validly appointed members) to conduct elections, decide unfair labor practice charges, and perform other functions.

Interestingly, in addition to the issues raised in the Board’s petition, the Court has instructed the parties to brief whether the president may exercise the Constitution’s recess-appointment power when the Senate convenes every three days in pro forma sessions (i.e., whether appointments made by the president during short sessions of the Senate where business is not actually conducted, but a recess has also not technically occurred).

By agreeing to decide the case, the Justices will have to grapple with, among other things, the intent of the Founding Fathers, how recess appointments were utilized at the time the Constitution was drafted, what the language of the recess-appointment clause actually means, and whether deferral to the past practice of making intra-session recess appointments by presidents from both sides of the aisle (all while under the watchful eye of Congress) is appropriate.

In the interim, we should expect the NLRB to continue to operate as usual (as they have brazenly stated that Noel Canning does not impact their ability to operate) and for Congress to continue its efforts to prevent the NLRB from performing that business until a valid quorum is appointed; a result that would occur if the Supreme Court invalidates Noel Canning, or else three of President Obama’s five pending nominations to the NLRB are approved upon the advice and consent of the Senate.

Even before the Supreme Court will have the opportunity to hear the case, NLRB Chairman Mark Pearce’s Senate-approved term will expire in August. The expiration of his term will leave the Board without a three-member quorum of either Senate approved or recess appointed members. Senate approval of three of the five nominees prior to the Court’s review would resolve any question about the Board’s prospective authority to act, that alone however may not affect the High Court’s authority to review Noel Canning.

by: Steven M. Swirsky and D. Martin Stanberry

An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.

The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that may be disruptive, offensive to others, or harmful to morale” or “[t]o solicit employees to support any group or organization, unless sanctioned by UPMC executive management.”

The ALJ, found that the policies, by using the terms and phrases “disruptive”, “offensive” and “harmful to morale” without providing examples or guidance to assist employees in interpreting the policy, “would reasonably be understood to include a spectrum of communication about unions, and … criticism of [the employer’s] working conditions, while permitting widespread nonwork use of the email system for an array of other subjects.”

The ALJ also found that the policy’s language restricting solicitation was unlawful because it provided managers with discretion to grant or deny solicitation in a manner thatdiscriminates against unions and union supporters.

The ALJ also found unlawful UPMC’s social media policy, which prohibited employees from using web-based applications to describe their affiliation with UPMC, disparage or misrepresent UPMC, or make false or misleading statements about UPMC,  largely the same reasons.

Alluding to an issue decided by the NLRB in the Register Guard decision, the ALJ noted that “a complete ban on employee email use would not raise a legal issue.” Practically speaking however, this is not necessarily true. The current Board has taken an activist stance regarding the potentially discriminatory application of workplace policies and, in the real world, very few employers maintain and enforce absolute prohibitions on the personal use of employer communications and electronic systems. Thus it may be quite difficult to prove consistent and non-discriminatory enforcement of such policies.

 

By Steven M. Swirsky and D. Martin Stanberry

Will Congress shut down the National Labor Relations Board?  In a narrow, 219 – 209 vote this past Friday, the United States House of Representatives passed a bill that would strip the National Labor Relations Board (“Board”) of the authority to take any substantive action until the Supreme Court decides Noel Canning v. NLRB, 2013 WL 276024, (D.C. Cir. 2013) or the Senate confirms a quorum of members to the Board (as constituted, the Senate would have to confirm at least 2 new members to establish a quorum).  As we reported, in Noel Caning, although the Court of Appeals for the District of Columbia held that President Obama’s recess appointments to the NLRB were unconstitutional and that the Board lacked authority to Act, the Board has continued to decide cases.

The bill, titled “Preventing Greater Uncertainty in Labor-Management Relations” is very similar in purpose to one introduced in January by Senator Mike Johanns (R-Neb.).  Given the Senate’s Democratic majority, Senator Johann’s bill died in committee, and thus, was never brought up for a vote in the Senate. Now that the House of Representatives has passed HR1120, the Senate may have no choice but to consider the issue.

Even if the Democratic-controlled Senate does pass the bill (which is unlikely), President Obama has signaled that he would veto the legislation rather than concede that his recess appointments were invalid or that the Board lacks the authority to act as currently constituted. Since the bill was only narrowly passed in the House of Representatives, it seems improbable that it would be able to garner the necessary two-thirds majority vote in both houses to override a presidential veto.

Absent a change in the composition of the House or Senate, there appears to be little chance that this issue will be resolved through Congressional action.  Though President Obama has nominated three additional candidates to fill the Board’s vacancies, there is no indication when or if the confirmation process will go forward in the Senate, let alone confirm the President’s nominees. As a result, employers may have no choice but to wait and see whether and how the Supreme Court would resolve the matter.  The Board’s petition for certiorari, which must be filed before the Supreme Court can decide whether it will review Noel Canning, is due by the 25th of this month.

by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry

The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.

While the NLRB had held that the workers actions were protected activity under the Act and that they had no obligation to the patients since the union had provided a statutory 10-day notice of the strike to their employer, the Court disagreed. The Second Circuit’s decision was a significant repudiation of the Board’s conclusion that the patients were not in imminent danger because: (1) many of the aides provided individual notice to the patients that they would not be coming to work; (2) the aides were not licensed to perform life-saving medical services; and (3) no actual harm came to any of the patients.

In 2004, 1199SEIU, the union representing Special Touch’s home health aides, served a statutorily required 10-day notice of the union’s intent to conduct a two-day strike.  In preparation for the strike, Special Touch contacted the home health aides scheduled to work that week and asked whether they intended to take time off during the week of the strike (importantly, they did not ask whether they would be participating in the strike and were not obligated to answer). Of the 1,400 employees, 75 indicated that they would be taking time off. When the strike commenced, 48 additional employees who had affirmatively denied such an intent, were absent without notice.

Unsurprisingly, Special Touch had to scramble to make alternate arrangements to serve its patients once it learned the additional 48 aides had not reported to the homes of the patients for whom who they were assigned to care. As the day progressed, Special Touch was able to arrange alternate coverage for all but five of the 48 home health aides. Fortunately, no harm came to any of the 48 patients that received reduced or no care during the day.

When the strike ended two days later, Special Touch immediately reinstated the 75 employees that had provided notice that they would be absent on the days that the union struck. The 48 aides who had been out even though they had said they would work were directed not to report until further notice. Over the next few months, all 48 were given new assignments. None were terminated because of their absence.

The union then filed charges with the NLRB over the employer’s decision not to immediately reinstate the 48 employees who had participated in the strike after telling the employer that they would be reporting to work and taking care of their assigned patients.  The union argued that the decision not to correct their misstatements was not protected activity under the Act and had not lost the protection because there had not been any imminent danger to their assigned patients as a result of their participation. The Board’s Acting General Counsel agreed with the union and issued a complaint.  The employer did not agree and a hearing was held before an Administrative Law Judge who agreed with the AGC that the employees’ participation in the strike was protected even though they had told the employer that they would not be participating and would be going to their patients’ home to provide care as assigned.  The Board agreed with the ALJ and upheld his decision after the employer appealed.

Fortunately for patients and employers alike, the Court held that there was no reasonable basis for the Board to conclude that the 48 home health aides had not placed their patients in imminent danger, and consequently, lost the protection of the Act.

The Court based this conclusion on a reasoned examination of the applicable facts and law, finding that individual notice provided to patients by their aides did not significantly mitigate the risk of danger because many patients that receive home healthcare services “do not appreciate the degree of care that their conditions require.”  The Court also emphasized the fact that the non-performance of even general or menial tasks such as cleaning, shopping and bathing the patient creates a risk of imminent danger. Other duties, such as “reminding customers to take their medication, and observing customers for signs of immediate distress” are surely intended to mitigate the risk of danger.

This decision by the Court does not require employees to tell their employer whether they intend to participate in a strike. Nor does it require the employee even respond to the employer’s query. In fact, the employees would not have lost the protection of the Act if they had simply not answered the employer’s inquiries about whether they planned to report on those days, because the 10-day notice from the union serves to put the employer on notice of their intent to strike. In fact, “[h]ad Special Touch not reached out to their aides in advance of the strike in an attempt to plan ahead… the aides would not have been required to call in.”

It is only when the employee controverts the intent of the 10-day notice that they lose the protection of the Act. As the Court concisely explained, “[w]hat employees cannot do is mislead their employer into expecting their presence when the lack thereof will result in foreseeable imminent danger.”