THOMAS J. McAVOY, Senior District Judge.
Before the Court is Petitioner's request for a temporary injunction pursuant to Section 10(j) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §160(j), requiring reinstatement of two employees pending final administrative disposition of unfair labor practices charges brought against the respondent.
This case concerns ongoing disputes surrounding a union organizing campaign led by 1199 SEIU United Healthcare Workers East (the "Union") at Cayuga Medical Center in Ithaca, New York. The Union has been seeking since early 2015 to organize registered nurses at the facility. Petitioner, Regional Director for the National Labor Relations Board ("NLRB"), alleges that Respondent Cayuga Medical Center of Ithaca has engaged in a vigorous campaign, "replete with unfair labor practices," to prevent the Union from gaining a foothold at the Medical Center. The Union has filed numerous unfair labor practices charges with the NLRB, which the Petitioner investigated, found meritorious, and brought to a hearing before an Administrative Law Judge. On October 28, 2016, the ALJ issued a decision that found that the Respondent violated the NLRA in numerous ways, including a finding that Anne Marshall, one of the nurses who is the subject of the instant petition, had been improperly targeted for discipline and demotion because of her union activities.
On September 29, 2016, the Union filed additional unfair labor practices charges against the Respondent, alleging that on September 23, 2016, Respondent violated Section 8(a)(3) by disciplining two nurses, Loran Lamb and Anne Marshall, in retaliation for their union activities.
On November 29, 2016, the Petitioner issued an order consolidating the above cases, setting forth a consolidated complaint, and providing notice of a hearing.
On February 21, 2017, the Regional Director filed the instant Petition, which seeks a temporary injunction from the Court reinstating Lamb and Marshall. Petitioner contends that Respondent has violated the NLRA by preventing the Union from distributing literature at the workplace and by firing the two nurses in retaliation for their union activity. Respondent denies these allegations and insists that the matter provides no basis for injunctive relief.
Petitioner seeks an injunction pursuant to Section 10(j) of the NLRA, 29 U.S.C. § 160(j). That section permits the NLRB, after filing a complaint alleging unfair labor practices, "to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts, for appropriate relief or restraining order." 29 U.S.C. § 160(j). "The courts have generally issued section 10(j) injuctions only to preserve the status quo while the parties are awaiting the resolution of their basic dispute by the Board."
The Petitioner alleges that the campaign to organize nurses at the Cayuga Medical Center began in early 2015, growing out of nurses' frustration with persistent staffing shortages. Anne Marshall, a registered nurse employed by Respondent, served as an early and vocal advocate for the Union. Loran Lamb, also a registered nurse, joined Marshall in this public support. Both worked in the intensive care unit ("ICU"). According to the Petition, both nurses had an "unblemished" professional record and reputation before their involvement with the Union.
The earlier decision by an ALJ found, Petitioner points out, that Respondent engaged in unfair labor practices in violation of Sections 8(a)(1) and 8(a)(3). The ALJ found that "the net result of [Marshall's] union activity and her protected and concerted efforts to challenge the hospital on staffing issues was an employer that engaged in unlawfuly motivated and discriminatory targeting of her, which led directly to the adverse actions taken against her by the hospital." Exh. I to Petition, dkt. # 1-1, at 1. This decision has been appealed to the NLRB and is currently pending. Marshall and Lamb continued their organizing efforts even after the hearings concerning unfair labor practices. Marshall periodically maintained an information table in the hospital's cafeteria, canvassed employees in the parking lot, wore a union button, sent emails about the union, and put signs on her car. Lamb advocated for increased staffing, wore a union button on her work clothes, and attended a hearing on the earlier charges concerning Marshall. Respondent was aware of these activities, and particularly noticed Marshall's work; an internal email concerning responses to the organizing effort included a discussion of the Respondent's "Union or Anne Marshall Focus." The Respondent also allegedly removed literature Marshall posted from a bulletin board.
On September 11, 2016, Lamb and Marshall, working in the ICU, violated the Respondent's blood transfusion policy. That policy requires that two nurses check that the blood for designated transfusion matches the doctor's order and the patient's needs two times, first at the nurses' station and then at the patient's bedside. All parties ag ree that only Marshall performed the check at the patient's bedside, even though both nurses signed a form that appeared as if both had been at the patient's bedside. The patient complained to the charge nurse on duty, and an investigation ensued. Respondent claims that this conduct violated hospital policy, endangered the patient, and amounted to falsifying medical records. The Petitioner, citing to confidential statements made to the Board from other ICU nurses, contends that Lamb and Marshall engaged in a practice commonly accepted on the unit. Of six ICU nurses questioned, all six testified that they checked blood at the nurses' station, and only one nurse entered the patient's room to administer the transfusion. Petitioner further contends these nurses told the administrator charged with investigating the September 11 incident that they frequently followed the procedure Marshall and Lamb used. This investigator, Petitioner contends, encouraged the nurses to testify that they always followed the written procedures.
Respondent suspended and then terminated both Marshall and Lamb. Respondent's investigators interviewed Lamb on September 21, 2016. Lamb admitted that she knew the transfusion policy and had violated it on September 11 by not joining Marshall in the patient's room. Respondent suspended Lamb after this meeting. Marshall was on vacation when this interview occurred, and Respondent suspended Lamb without interviewing Marshall. Petitioner contends that the decision to suspend and then terminate Marshall was made before any interview occurred, pointing to a report on the incident prepared by Respondent's Director of Patient Services and a draft letter designed to be sent to employees, physicians and volunteers about the incident. Both of those documents concluded that Marshall had engaged in misconduct even before the Respondent had spoken to her about the events in question. Indeed, the draft letter to employees, Petitioner alleges, included a statement that the nurses had been fired. Petitioner asserts that these draft documents are "persuasive evidence that the investigation had a foregone conclusion considering that the nurses interviewed" by investigators "said they routinely perform blood checks at the nurses' station; the investigation was ostensibly ongoing; and Marshall had not yet been suspended, terminated or even interviewed about the incident."
After interviewing Marshall when she returned from vacation on October 4, 2016, Respondent suspended her. Respondent terminated Lamb on October 5 and Marshall on October 6. Both resigned in lieu of their discharge. Respondent sent employees an email explaining the terminations on October 7; this email was nearly identical to the draft circulated before the Respondent interviewed Marshall. The Petitioner contends that:
Petitioner's Brief, dkt. # 1-5, at 14.
Petitioner points to other incidents where nurses failed to follow the transfusion policy and did not receive the same discipline as Marshall and Lamb. These incidents could be seen as more egregious than the one on September 11, 2016, since the patients in these cases suffered potentially adverse medical reactions to the incidents. In both cases, the nurses who violated the transfusion policies faced no serious discipline, but instead were forced to review the transfusion policy with Respondent's staff. Likewise, nurses who violated policies and protocols in other areas received instruction rather than discipline. Respondent had disciplined some nurses who failed to follow protocols, but under different circumstances. One nurse was terminated, for example, after failing to follow blood protocols, but that nurse had also diverted narcotics. Other nurses involved in the incident were simply "debriefed" on the matter.
Petitioner also contends that Respondent's firing of Lamb and Marshall has undermined the Union's organizing efforts. Petitioner has produced affidavits from nurses Respondent still employs who attest to a chilling affect on organizing since the terminations.
The Regional Director argues that Respondent has violated sections 8(a)(1) and 8(a)(3) of the NLRA. The NLRA provides that "[I]t shall be an unfair labor practice for an employer (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7" of the NLRA and "(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. §§ 158(a)(1), (a)(3). Section 7 of the NLRA establishes, in relevant part, that "[e]mployees shall have the right to selforganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other protected activities for their purpose of collective bargaining or other mutual aid or protection[.]" 29 U.S.C. § 157. "An employer violates section 8(a)(3) by firing an employee for engaging in union activity."
The Respondent argues that the Petitioner has not demonstrated reasonable cause. The Respondent contends that the firing of Lamb and Marshall was unrelated to their union activities. Instead, the nurses were terminated because of "flagrant misconduct and disregard for patient safety." Both nurses, after all, are the subject of a State investigation for the activities that led to their termination, and Cayuga Medical Center regularly fires employees who falisfy medical records. Moreover, Respondent argues, Petitioner has not provided any documentary evidence to support its claims for that Respondent committed unfair labor practices. Respondent further argues that the evidence it supplied will substantiate that the terminations were justified and not motivated by the nurses' union activity. Injunctive relief is inappropriate here, Respondent argues, because the administrative record has not been fully developed.
The problem with the Respondent's position is that the Court's role here is not to make credibility determinations or weigh the value of the evidence supporting CMC's decision to terminate the nurses against that supporting the Petitioner's position. Instead, the Court is to defer to the NLRB's findings unless those findings are "fatally flawed."
The Court finds that the facts presented to the Court, giving the Petitioner the benefit of the doubt, create reasonable cause to believe that the Court of Appeals will enforce a finding by the NLRB of unfair labor practices in relation to the firing of Nurses Lamb and Marshall. The Petitioner has put forth evidence, as related above, that creates reasonable cause to believe that Respondent terminated the nurses because of their union activity. The Regional Director has presented evidence that indicates that the actions for which Respondent allegedly fired Lamb and Marshall-failing to both be present in the room when a transaction occurred and failing to document the transfusion truthfully-were actions that did not lead to the firing of other employees who engaged in the same behavior. The Regional Director has also presented evidence that makes it reasonably likely that Respondent was motivated by anti-union animus for the firing. Beyond the extreme action taken against nurses with stellar work records who were involved vociferously in the union campaign, the Petitioner has also provided evidence that an ALJ has already found that Respondent acted out of anti-union animus in previously disciplinary actions against Marshall. Courts are permitted to use such decisions in evaluating a 10(j) motion, since "the ALJ's factual and legal determinations suppy a useful benchmark against which the Director's prospects of success may be weighed."
Respondent's arguments simply quarrel with the facts, asserting that the stated reasons for the decision to fire the nurses were the real ones and pointing out that a failure to follow the stated transfusion policies could endanger a patient. Whatever the merits of those arguments, they can be raised before the ALJ and the Court of Appeals if necessary. At this point, the Court finds "reasonable cause to believe that the respondent ha[s] committed unfair labor practices under section 8(a)(1) and 8(a)(3) of the Act."
Respondent argues that the Court is to "apply the same general equitable principles that ordinarily apply in determining the propriety of injunctive relief, including irreparable harm, balance of equities, and public interest."
The Respondent misstates the law in this area. The Second Circuit Court of Appeals recently explained that, while "the `just and proper'" element "of the 10(j) injunctive relief standard for labor disputes incorporates elements of the four-part standard for preliminary injunctions that applies in other contexts," courts evaluating a Section 10(j) request do not need to apply that standard.
The Second part of the test is also satisfied. Here, the alleged unfair labor practice involves firing employees for their participation in the organization drive. Firing employees for wanting to join a union surely undermines collective bargaining rights and has the effect of discouraging future organizing. Petitioner has provided evidence, cited above, to this effect. Multiple affidavits from workers at Cayuga Medical Center indicate that the firings have created a fearfulness among nurses that any connection with the Union could cause them to be fired. Attendance at meetings and participation in unionizing events has been reduced, and the affiants indicate that the reduction is directly related to fear for employment. In this context, "the rights of improperly discharged employees take priority over the rights of those hired to replace them."
The Court will therefore grant the Section 10(j) injunction as requested.
For the reasons stated above, the Petitioner's motion for preliminary injunction, dkt. # 1, is hereby GRANTED, as follows:
The Petitioner's motion to determine the Petition on the basis of the administrative record, dkt. # 2, is hereby GRANTED. The Petitioner's motion to shorten time and for an expedited hearing, dkt. # 3, is hereby DENIED as moot.
