By Brendan O'Brien
(Reuters) - A U.S. appeals court on Wednesday denied
a National Labor Relations Board petition to force an in-home
healthcare company to reinstate aides who deceived their
employer over their intention to strike.
In denying the request, the court said that 48 striking
health aides failed to take required precautions not to create
foreseeable imminent danger when they misled Special Touch Home
Care Services Inc about their intention to strike.
"We find that these employees engaged in unprotected,
indefensible conduct," the 2nd U.S. Circuit Court of Appeals
said in its ruling.
On May 27, 2004, New York's Health and Human Service Union
informed Special Touch of its intent to strike from June 7 to
June 10, meeting a required 10-day notification rule for
Before the strike, Special Touch contacted about 1,400 aides
to inquire whether they planned to take any time off during the
next week. Most said they planned to work, while about 75 said
they planned to be absent for at least part of the following
week. Another 48 aides said they planned to show up for work and
then failed to do so on June 7, the first day of the walkout.
According to the court, Special Touch struggled to get
replacement aides to its patients, five of whom were without
care on the first day of the strike.
After the strike, the 75 aides who informed Special Touch of
their plans to be absent were immediately reinstated.
Special Touch told the 48 aides who said they would be at
work not to return until further notice. They were reassigned
over the next few months, but not necessarily to their prior
patients or their original work schedules.
In 2005, administrative law judge Raymond Green ruled in
favor of the 48 aides, saying their failure to comply with the
company's call-in rule did not alter their status as protected
In January 2011, the NLRB ruled that Special Touch had
violated the Fair Labor Standards Act and ordered the 48 aides
reinstated to their original positions. The NLRB then petitioned
the 2nd Circuit to enforce the order.
In its ruling on Wednesday, the 2nd Circuit said the 48
aides were obligated to tell their employer of their intentions
because the employer had independently sought that information.
Richard Reibstein of Pepper Hamilton, who represented
Special Touch, said Wednesday's decision was "welcome relief for
"The NLRB's decision had left home healthcare companies
vulnerable to deception and gamesmanship and their elderly and
infirm clients exposed to foreseeable and imminent harm," he
said. He noted that the decision also extended to other
NLRB officials and the attorney for the health aides were
not immediately available to comment.
The case is National Labor Relations Board v. Special Touch
Home Care Services Inc, 2nd U.S. Circuit Court of Appeals, No.
For the health aides: Gwynne Wilcox of Levy Ratner.
For Special Touch Home Health Care Services Inc: Richard
Reibstein and Russell Adler of Pepper Hamilton.
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