By Josh Brokaw
The federal trial over allegations that Cayuga Medical Center fired two nurses for union organizing adjourned on the afternoon of Friday, March 10.
So far, there have been 14 whole or partial days of testimony spread out over three weeks in this National Labor Relations Board [NLRB] hearing, which started on January 9.
NLRB judge Kimberly Soag Graves and attorneys for Cayuga Medical Center [CMC], the NLRB, and Service Employees International Union Local 1199, the union that CMC nurses started organizing to join in early 2015, will all re-convene at the Ithaca Tompkins airport administration building on April 3. The hope is to conclude testimony in two days.
Your Truthsayers correspondent has sat through the majority of this trial, and would like to take this opportunity to issue a halfhearted “sorry … but not really” apology for deviating from the initial plan of providing daily updates. It became apparent to me after writing stories for Day One, Day Two, Day Three, and Day Four, back in January, that any given day of testimony would be granting only the slightest of new insight toward the trial’s central question: whether Anne Marshall and Loran Lamb were unjustly fired for their union affiliation rather than for not following a blood transfusion protocol, as the hospital claims. And since both the employer, CMC, and the employees, represented by the NLRB and SEIU 1199, are sticking to their stories, you can just as well read my first story on this whole mess to understand what the two parties are claiming to be true.
Expect a couple of comprehensive recap stories of both sides’ arguments as the trial concludes. [With over 25,000 words in typed notes, the stories better be comprehensive. – Ed.] And you can read Truthsayers stories based on the testimony so far from hospital administrators, the two nurses’ fired, and one on the bones of CMC’s defense. There have also been bits and pieces dropped about the hospital that I’ll be following up on in future stories as Truthsayers continues to keep eyes on Tompkins County’s only hospital.
But for now, Truthsayers will take on perhaps the most frequent question put to its reporter in recent weeks – that is, Why is this trial taking so dang long?
The first and most obvious answer is paper – lots and lots of paper.
On the first day of the trial, CMC attorney Raymond Pascucci told Judge Soag Graves there were “thousands and thousands of pages being printed,” in response to the subpoena issued by NLRB counsel Jessica Noto. Between them, Noto and SEIU 1199 attorney Mimi Satter were hauling around at least 10 paper boxes between hearing locations that first week.
Soag Graves has said that health care is a “very heavily documented industry.” Seemingly every blood transfusion card signed, or not signed, at CMC, for the last several years is included in the trial documents. It also seems that most every “QA,” as in quality assurance, report filed in CMC’s internal reporting system for several years is part of the trial, along with reams of policies and meeting minutes that might pertain, somewhat, to this case.
Both sides are using the documents to bolster their cases. The nurses’ argument has included testimony that many blood transfusion cards have been improperly signed in the past at CMC, pushing against the hospital narrative that “falsification of records” was part of the legal reason to terminate Marshall and Lamb. For the hospital, Pascucci is arguing that the two nurses should have been aware of the two-nurse bedside check transfusion policy, and has brought into evidence “HealthStream” training records and the old blood policy, changed after a 2012 “near miss” incident, to make that case.
The amount and timely availability of documents has led to numerous squabbles between the two sides’ attorneys. Those disputes often lead to breaks in testimony where a witness is sent out of the room so the lawyers can argue their case to the judge.
A few examples: on Jan. 9, the trial’s first day, CMC attorney Raymond Pascucci argued that notes and minutes from the hospital’s peer review committee meetings had to be kept confidential, per state health law. Noto argued that these committee minutes could be relevant to how decision-makers decided to terminate the two nurses. The judge sided with the NLRB attorney.
Noto and Satter have asked in at least three specific instances why certain documents asked for in the pre-trial subpoena were not provided to them. Noto has questioned the hospital staff’s ability to perform a Boolean search. It has been Pascucci’s position that all the search results for “blood transfusion” was just too much. On several occasions, the CMC lawyer has been called to account for why he has not provided documents on time.
“The subpoenas were very expansive,” Pascucci told the judge in a typical argument on March 7. “Every effort was made to do it. It was done in real time. There was no opportunity for me to read all of that information … several staff members spent several days working on these subpoenas.”
An example of Pascucci not seeing relevant documents came up on March 8, when a witness referred to the “packed red blood cell” policy of CMC’s blood bank. Dr. Daniel Sudilovsky, CMC’s laboratory director, had referred to the policy in his testimony on March 3.
“I asked for the blood policy in 2012,” Noto said. “I didn’t have it when I asked for it in December. I didn’t have it when I asked for any more documents and I didn’t have it this morning when I asked for documents … This shouldn’t have been on the fly. I’m trying really hard to not get upset on this sort of thing.”
“The first time I’ve seen that document was 45 minutes ago,” Pascucci responded. “Don’t accuse me of not asking – I’ve been asking since the charges were filed,” he continued, later adding that CMC has “problems with some of the record retention system and record storage system … it’s a very complex organization.”
“They were extremely burdensome subpoenas,” Pascucci defended himself at another point. “They were extremely broad. Then we were criticized for returning too much … it was called a document dump.”
The NLRB and SEIU attorneys asked Judge Soag Graves to issue a “negative inference” against CMC on both March 6 and March 8, a sanction that the judge said is reserved for cases where a party refuses to produce documents or tries to hide a document. The judge declined to go that far, but has restricted Pascucci from referring to at least two documents that weren’t produced until a witness was on the stand, including that packed blood cell policy.
The NLRB process does not include discovery, the legal process before a trial when each party gets to ask the other for information. There are subpoenas, to compel witnesses to testify or to make a party produce documents. But when a new witness is called, there are sometimes documents produced, like affidavits, that the other party must examine before cross-examination happens. Sometimes the “timeouts” take 10 minutes; sometimes it has taken more than an hour before the attorneys are ready. On the morning of March 9, the attorneys spent more than two hours agreeing to transcripts of recordings, while the judge, court reporter, and observers hung tight in the hearing room.
Beyond the paperwork, there have been a lot of witnesses in this trial. The NLRB and SEIU 1199 called 13 to make their case; the hospital, so far, has called 19 witnesses. Sometimes those witnesses have taken up most of a day, or stretched over two days – on at least three occasions, the on-deck witness was waiting outside for most of an afternoon and had to return the next day after not getting to take the stand. On other occasions, one witness has been questioned, and the next one isn’t there yet – Pascucci, in particular, did not make good estimates of cross-examination time from his opposition in the last week of the trial, and would be left without a next witness.
Coordinating the witnesses’ schedules has also been difficult, since many of them still work at CMC. The judge and the attorneys also have other commitments, so as the trial has stretched into more weeks, scheduling becomes more difficult [the second week of this trial was initially supposed to start on Jan. 30, before being pushed back to Feb. 27]. The Mondays and the Fridays in this trial have been short days, because NLRB judges travel and are allowed to spend the weekends with their family.
It’s always worth repeating, when it comes to trials, that real life is nothing like television, from crime to conclusion in an hour. After the first CMC labor trial last May, it took the NLRB judge five months to issue a decision, one which is now under appeal by the hospital. No one knows when that decision will come down from the NLRB. The injunction filed last month to put Marshall and Lamb back to work isn’t yet on the U.S. district court’s docket, at last check. Stay with Truthsayers, and we’ll keep you informed.