Special Touch Home Care Services, Inc.(29-CA-26661; 357 NLRB No. 2) Brooklyn, NY, June 30, 2011

This case, on remand from the Second Circuit, involved a strike by employees of a home health care provider.  The Board majority, consisting of Chairman Liebman and Member Becker, found that the employer violated the Act by refusing immediate reinstatement to 47 economic strikers.  The Union had provided the employer with timely notice of the strike, as required by the Act when striking a health care institution.  The employer contended, however, that it lawfully denied immediate reinstatement because the 47 employees told the employer during a pre-strike poll that they planned to work during the time period of the strike and because they failed to comply with an employer rule that required them to notify the employer if they would not be reporting to work for any reason.

In rejecting the employer’s arguments, the Board majority noted that employees are not required to give individualized advance notice of their intent to participate in a strike, that there was no evidence that the employees’ conduct created an imminent danger, and that there was no evidence of a concerted effort to mislead the employer in responding to the poll.  Dissenting, Member Hayes found that the employer had shown a sufficiently compelling business justification for enforcing its notification rule, that this justification outweighed the minimal burden imposed on employees’ protected right to strike, and that the majority’s position eviscerated the usefulness of the pre-strike poll.

Chairman Liebman and Members Becker and Hayes participated.  Member Pearce was recused and took no part in consideration of the case. Charge filed by New York’s Health and Human Service Union 1199/SEIU.  Adm. Law Judge Raymond P. Green issued his decision on September 15, 2005.  The Board issued a Decision and Order on September 29, 2007, and the United States Court of Appeals for the Second Circuit remanded the case to the Board on May 12, 2009.