By Josh Brokaw
If a federal judge issues an injunction in their favor, two nurses fired in October 2016 by Cayuga Medical Center will go back to work at Tompkins County’s only hospital.
On Tuesday, Feb. 21, the National Labor Relations Board filed a request for a temporary injunction in the northern district court of New York, under article 10j of the National Labor Relations Act. If a federal judge decides the injunction is appropriate, it would restore Anne Marshall and another intensive care unit nurse to their jobs until a final decision is reached in an ongoing NLRB case.
The NLRB, the federal agency that enforces U.S. labor law, is currently pressing its second case in less than a year against Cayuga Medical. The Labor Board alleges that CMC unlawfully fired the two nurses for their union organizing activity, rather than for not following a blood transfusion protocol, as the hospital claims.
Hearings in that case, open to the public, resume after a six week break at 1 p.m. on Monday, Feb. 27, at the Ithaca Tompkins regional airport administration building, 72 Brown Road.
An injunction under U.S. labor law, NLRB attorney Jessica Noto argues in the NLRB memorandum filed Tuesday, is ““just and proper” when it is necessary to prevent irreparable harm .”
“Unless injunctive relief is immediately obtained,” Noto writes, “it is anticipated that [Cayuga Medical] will continue its unlawful conduct during the proceedings before the Board and during subsequent proceedings before a Court of Appeals for an enforcement decree, with the result that employees will continue to be deprived of their fundamental right to organize for purposes of collective bargaining as provided for in the Act.”
CMC will meet its “unlawful objective of chilling employee support for the Union” unless an injunction is granted, Noto argues. By the time the Labor Board issues a final decision – assuming an appeal, that could be at least 18 months – Marshall and the other nurse will have moved on to other jobs and CMC “will have succeeded in permanently removing them from the unit.”
“The message this result will send [to CMC employees] will be clear,” Noto writes. Organizing will lead to termination, and “neither the Board nor the Union can effectively or timely protect them.”
Nurses “express fear that [Cayuga Medical] will retaliate against them, as it retaliated against Marshall and Lamb, if they continue to organize,” Noto writes. The attorney bases that argument on four confidential statements taken from nurses in February 2017 and one from SEIU Local 1199 organizer Mark Bergen.
“The Union and its campaign at the Hospital were a regular topic of conversation amongst employees in my department (4 North) before Marshall and Lamb were fired,” one nurse on CMC’s fourth floor told the NLRB. “Since they were fired, there has been no talk about the organizing effort going forward …
“The Union organizing campaign is dead in the water, in my opinion,” continued the fourth floor nurse. “I believe this to be the case for two reasons: because there are no other employees who want to step up to lead the organizing effort, and because I believe there is there is a general sense of fear which exists because of Marshall and Lamb’s terminations. I am not personally interested in taking the organizing effort forward because I am also afraid that I would be terminated … I would feel as though I would be targeted by hospital management if I attempted to lead the union campaign, and I do not want that to occur.”
“The Union was a regular and open topic of conversation before Marshall and Lamb was fired,” another nurse told the NLRB. “However, since they were fired, there is far less discussion of the Union, and I am much more secretive about how I discuss the Union, who I discuss it with, and where I am when I talk about the Union. The other employees I have talked to about this have told me they are just as secretive.”
At a meeting that Bergen held on Oct. 28, 2016, there were 14 nurses who told the SEIU organizer “they felt badly for Marshall and Lamb, but that they were not willing to openly support the Union because they were scared of being fired. The sentiment was that people were afraid to be visibly in support of the Union, for fear it would cost them their jobs. We tried to move the campaign forward with a focus on short staffing, distributing forms we could file when they were working short. But even this was more than people were willing to do, out of concern for keeping their jobs. ”
All four nurses interviewed said that they had seen or heard of Marshall tabling with information in the cafeteria and had seen pro-union flyers posted on bulletin boards, but since she was fired no one has stepped up to take Marshall’s place in those activities.
In cases where the NLRB is “arguing someone has been fired for union activity in the midst of an ongoing union campaign,” there is always serious consideration of asking for injunctive relief, according to Paul Murphy, director of NLRB region 3. This is the third case in two years in which region 3, covering most of New York and all of Vermont, has asked for an injunction.
“We get 600 cases a year, but not all fall into this category,” Murphy said. “We might get a dozen cases like Cayuga Medical where it’s alleged someone has been fired for union activity.”
Often those cases are settled before a hearing. After the NLRB conducts an investigation and decides there is enough evidence of illegal activity to go to a hearing, the “respondent,” as CMC is known in this case, is given an opportunity to agree to a settlement. Not so with Cayuga Medical, which is currently appealing the NLRB finding issued on Oct. 28, 2016, that it broke federal labor law in numerous ways.
“The thing that’s unique about this case is the organizing drive has stretched out over two full years,” Murphy said. “Typically when you get a case like this organizing drive, the unfair labor practice, if it gets committed, gets committed within a short time period and you proceed in one case. Because this organizing drive has stretched out and because unfair labor practices allegedly occurred after the first case, you end up with a round two. I’m not sure we have a ton of experience in region 3 with these, but they have happened in other regions across the country, where the dispute continues to boil over and you find yourself having to go to the mat two or three times.”
Marshall says she’s ready to go back to work in Cayuga Medical’s ICU.
“When I get back to work we’ll continue to unionize,” Marshall said. “I think [an injunction] would make realize people how wrong [CMC administration] really are, and they really can’t hurt you. This is a temporary bump in the road. I have no doubt we’ll succeed and I’ll be back, and we’ll resume where we left off in October.”
A call to John Turner, CMC vice president of public relations, asking for comment on this story was not returned.
Featured photo: Anne Marshall tabling with union information at Cayuga Medical Center in 2015. Photo via facebook.