In a 2-1 decision issued on June 30, 2011, the NLRB clarified the interplay of the statutory notice requirements of NLRA Section 8(g) with a health care employer's right to poll individual employees' intention to report to work during a strike and the employer's right to enforce neutral work rules requiring patient care employees to provide advance notice of absence. In Special Touch Home Care Services, Inc, 357 NLRB No 2 (2011).pdf, the Board:
- confirmed that Section 8(g)'s requirement of ten days' advance written notice of a strike at a healthcare institution applied to unions only and did not apply to individual employees; and
- ruled that a home health agency violated the NLRA by failing immediately to reinstate striking home health aides who failed to provide notice of their intent to strike in response to the employer's pre-strike poll or otherwise comply with the employer's non-discriminatory rule requiring advance notice of absence.
NLRA Section 8(g) requires unions to provide healthcare employers with ten days advance written notice of a strike. In Special Touch, a union that was attempting to organize the employer's home health aides provided a Section 8(g) notice that employees would be engaging in a three-day strike. Upon receipt of the notice, the employer polled employees scheduled to work during the impending strike. Of the employees polled, 75 who participated in the strike informed the employer of their intention to do so. Forty-eight employees also participated in the strike but failed to provide any notice of their intent to do so, either in response to the employer's poll or by otherwise providing notice of their absence in accordance with the employer's call-in rule requiring at least two hours' advance notice of absence. After the strike, the employer immediately reinstated the 75 employees who had provided notice. The remaining 48 employees were not immediately reinstated, and some of those who eventually were reinstated did not return to their previous position.
The Board's decision in Special Touch was rendered in response to a specific question asked by the Second Circuit in connection with its remand of the Board's petition seeking enforcement of a prior ruling against the same employer. Special Touch Home Care Services, Inc, 351 NLRB 754 (2007).pdf. In partially denying enforcement, the Second Circuit identified the need to balance several competing interests and instructed the Board to determine whether the employer
may enforce its call-in rule and mandate compliance with its [pre-strike] survey, reasonably relying on the results of both, in light of Section 8(g)'s requirement that only unions and not individual employees are required to give notice to health care employers.
NLRB v. Special Touch Home Care Services, 566 F.3d 292, 300 (2d Cir. 2009).
The Board concluded that Section 8(g) already struck a careful balance of the parties' competing interests: by requiring unions to give ten days' notice of a strike, Section 8(g) protects healthcare employees' right to strike while ensuring healthcare institutions have sufficient advance notice of a strike to permit them to arrange for continuity of patient care. The Board rejected the employer's arguments that it was entitled to punish striking employees who violated its call-in rule and/or who did not respond truthfully to the employer's pre-strike survey, stating that to do so would "effectively impose an individual notice obligation on health care employees, when Congress chose not to impose any such obligation." The Board did recognize that healthcare employers, like non-healthcare employers, can discipline particular employees who cease work without taking reasonable precautions to protect the employer's plant, equipment or patients "from reasonably foreseeable imminent danger due to sudden cessation of work," but it concluded that the facts of the case did not meet that standard.
In dissent, Member Hayes concluded that the employer had a compelling business justification for requiring compliance with its call-in rule and that the corresponding burden on employees' exercise of their right to strike was minimal. In his view, an appropriate balance could be struck by requiring employees who did not want to disclose their intent to strike in response to the employer's poll to simply call in to report that they would be absent without identifying any reason. Indeed, he suggested, the Board's ruling "gives unions and their employee supporters the opportunity to increase the disruptive impact of a strike by deliberately giving false answers in response to a poll, thus eviscerating the poll as an effective aid in arranging for continuing patient care."
So what's a healthcare employer to do upon receipt of a Section 8(g) strike notice? Can it ask employees whether they intend to report to work during the strike?
Healthcare employers clearly have the right to poll employees to assess the need to arrange for replacement workers. The Board in Special Touch reaffirmed prior decisions holding that employers conducting such a poll must:
- explain fully the purpose of the questioning;
- assure the employees that no reprisals will be taken as a result of their response; and
- refrain from otherwise creating a coercive environment.
Citing, Preterm, Inc 240 NLRB 654 (1979).pdf. Special Touch makes equally clear, however, that employers have no means to compel truthful responses to their poll, nor may they rely upon existing work rules requiring employees to provide advance notice of an absence. Thus, if a healthcare employer decides to conduct such a poll, it must assess the reliability of the poll results and balance that reliability assessment with the costs associated with arranging for contingency staffing and the impact on patient care if insufficient staffing is available during the strike.
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