2nd Circuit Asks NLRB to Weigh In on Strike Case

(CN) - In a case of first impression, the 2nd Circuit asked the National Labor Relations Board to determine whether employees who went on strike for one day without notifying their employer should lose their labor protections.

In 2004, the SEIU United Healthcare Workers organized a three-day strike against Special Touch Home Care Services, a home health-care agency in Brooklyn, N.Y. As required by law, the union notified Special Touch that 75 aides would be striking on June 7. The employer was able to find replacement aides for those workers.

However, another 48 aides skipped work on June 7 without notifying their employer or the union.

Those employees were told they had violated Special Touch's call-in policy. They were able to keep their jobs, but some were reassigned to other positions.

The next month, Special Touch coordinators called aides and questioned them about their union activities.

The NLRB filed a complaint against Special Touch, claiming Special Touch violated the law by failing to immediately reinstate the strikers who did not call in and by interrogating employees about the union.

The board ordered the company to reinstate workers who had not returned to work or who had been reassigned since the strike.

Special Touch argued that some of the aides had lost the protections of the National Labor Relations Act (NLRA) by failing to call in before missing their shifts.

"Thus, the first disputed issue in this case is whether employees of a health-care institution who violate a non-discriminatory call-in rule lose the protections of the NLRA even though the relevant union has given notice" required by law, wrote Judge Straub of the New York-based appeals court. "This is a question of first impression in this Circuit."

The 2nd Circuit remanded to the board, saying the board was better situated to answer the question.

However, the court held that the interrogations were unlawful, because the coordinators who called and questioned the aides were agents of Special Touch.

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