In NLRB v. Special Touch Home Care Services, the key litigated issue was whether striking health care employees who failed to report to work at their assigned patients' homes after notifying the employer that they would report to work created a reasonably foreseeable risk of imminent danger, excusing the employer's subsequent failure to immediately reinstate them.

Special Touch Home Care Services (Special Touch) subcontracts with health-related services to provide home health aides for patients, many of whom have health conditions impairing mobility and normal daily activities. Special Touch maintains a call-in rule requiring aides who will not be able to report to their patients' homes for any reason to notify Special Touch.

On May 24, 2004, the New York Health and Human Service Union 1199SEIU (union) notified Special Touch of its intent to strike for two days starting at 6 a.m. on June 7, 2004. The notice was given pursuant to Section 8(g) of the NLRA, which requires labor organizations planning strikes at a health care institution to provide ten days' notice to that institution (29 U.S.C. 158(g)).

During the week before the strike, Special Touch contacted approximately 1400 aides scheduled to work to ask whether they planned to take time off during to coming week. A healthcare employer that has notice of pending strike may lawfully survey its employees as to whether they plan to work during the strike if they:

(Preterm, Inc.)

Although Special Touch was not aware of it, shortly before the strike the union held a meeting advising health aides that they did not need to notify the company if they planned to strike because the union had already provided the required ten-day notice. 75 aides informed Special Touch that they would be absent for at least part of the week. 48 aides, who told Special Touch that they would report to work at their patients' homes, failed to do so on June 7, 2004 without otherwise informing Special Touch through its notice procedures. Their failure to report caused their patients to go without care for varying periods of time.

Generally, an employer commits an unfair labor practice (ULP) if it refuses to reinstate a worker returning from a lawful strike. When the strike is an economic strike rather than a strike to challenge a ULP committed by an employer, as was the case here, an employer must reinstate employees once they unconditionally offer to return to work, unless it can show a legitimate and substantial business justification, such as the employer needed to hire permanent replacement workers for the strikers to maintain business operations (Mackay Radio). After the strike, Special Touch immediately reinstated the aides who had informed Special Touch of their planned absence during the pre-strike poll to the their regular patients and assignments. Special Touch advised the 48 aides who failed to report after informing Special Touch that they would not to return to work pending further notice. Special Touch later acknowledged that they learned that the union's directives had caused confusion about these aids' call-out obligations, so it would not terminate all of them. Over the course of several months, Special Touch reinstated these aids, but not always to their original patients or work schedules.

The union filed ULP charges against Special Touch, and the NLRB's Acting General Counsel issued a complaint alleging that Special Touch violated the NLRA by failing to immediately reinstate the 48 employees in retaliation for lawful strike activity under the protections of the union's Section 8(g) notice. An NLRB administrative law judge (ALJ) found that the employer committed this ULP and recommended a make-whole remedy for the 48 aids (Special Touch I), holding that:

The panel (Board) heading the NLRB's judicial functions adopted the ALJ's reasoning, affirmed the ALJ's decision and petitioned the Second Circuit for enforcement of its decision and order (Special Touch II). The Second Circuit partially enforced the order, and remanded to the Board for consideration of additional issues (Special Touch III). On remand, the Board affirmed its prior decision, rejecting the argument that the aides' failure to warn Special Touch about their planned strike created imminent danger (Special Touch IV), and again petitioned the Second Circuit for enforcement.

On February 27, 2013, the US Court of Appeals for the Second Circuit issued an opinion in NLRB v. Special Touch Home Care Services, Inc., denying the NLRB's petition for enforcement. The court held that although employees are generally entitled to reinstatement when returning from a lawful economic strike, even where they individually fail to comply with an employer's notice of absence policy, the 48 aides were not entitled to reinstatement because:

The Second Circuit noted that, under the imminent danger doctrine, the conduct of otherwise lawful strikers is unprotected where employees cease work without taking reasonable precautions to protect the employers' plant, equipment or patients from foreseeable imminent danger due to the employees' sudden cessation of work. The court rejected the argument that the aides' absence did not put the patients at foreseeable risk of harm, noting that there were foreseeable serious consequences from failing to report to the homes of patients who rely on the aides for observation and safety.

The Second Circuit also rejected arguments that no imminent danger existed because the patients suffered no actual harm and because some of the aides had directly informed their patients that they would not be at work. It noted that:

The court distinguished several decisions in which courts and the Board had found no foreseeable imminent danger where health care workers had gone on strike, including:

The Second Circuit found NLRB v. Federal Security Inc. analogous. There, the Seventh Circuit refused to enforce the Board's decision that security guards who abandoned their posts at a dangerous Chicago public housing complex had engaged in protected activity. Although the guards had left their posts for only 20 minutes, the Seventh Circuit determined that the protection provided by the guards was critical, and that its absence, without any form of back-up, was sufficient to place residents in danger. Similarly, the Second Circuit concluded, the absence of aides at patients' homes, which may have been for as little as 20 minutes in certain cases, was sufficient to place patients in foreseeable imminent danger.

Despite its conclusion, the Second Circuit emphasized that health care workers that do not call-out and strike under an 8(g) notice generally remain protected by the NLRA when:

Workers lose the protections of the NLRA when:

There was no allegation that Special Touch's polling here was unlawful, so there was no basis for reviewing whether it satisfied the Preterm factors and disregarded arguments to the contrary.

The Second Circuit's decision delineates a narrow set of circumstances under which striking health care workers for whom proper notification has been given under Section 8(g) may lose protections, and rights to immediate reinstatement, under the NLRA. For health care employers, the decision highlights the Preterm factors which will generally apply to any pre-strike attendance polls (although they were not applied in this case) and the potential changes in reinstatement obligations if an employee misrepresents their plans to report to work causing an imminent harm to patients. For healthcare employers and other employers of workers that provide safety-sensitive protections to the public or customers, such as security guards, the decision provides a rare application of the imminent harm doctrine an a blue print for the Second Circuit's analysis of it.