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Murphy v. Cayuga Medical Center of Ithaca

United States District Court, N.D. New York

March 22, 2017

PAUL J. MURPHY, Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,

          DECISION & ORDER

          Thomas J. McAvoy Senior, U.S. 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. See dkt. # 1. The parties have briefed the issue and the Court has determined to decide the matter on the administrative record without a hearing.[1]

         I. BACKGROUND

         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. See Exh. I to Petition for Preliminary Injunction, dkt. # 1-3.

         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. See Exh. A to Petition, dkt. # 1-1. The Complaint alleged that Respondent had suspended Lamb and revoked her email access and that Respondent had threatened discipline and revoked the email access of Marshall. Id. The Union Amended the charge on November 22, 2016 to allege that Marshal was suspended in retaliation for her union activities on October 4, 2016. See Exh. B to Petition, dkt. # 1-1. Another charge, filed on October 12, 2016, alleged that Respondent had been violating Section 8(a) of the NLRA since July 2016 by interfering, restraining and coercing employees from exercising their rights under the Act. See Exh. C to Petition, dkt. # 1-1. The Union alleged that the Respondent had violated the act by “discriminatorily enforcing its bulletin board policy, . . . engaging in surveillance of union activity, . . . forcibly removing an employee from a conversation with a union organizer, and . . . requiring employees to wear anti-union buttons.” Id.

         On November 29, 2016, the Petitioner issued an order consolidating the above cases, setting forth a consolidated complaint, and providing notice of a hearing. See Exh. D to Petition, dkt. # 1-1. The complaint alleged that in July 2016, the Respondent “prohibited employees from posting union literature around the facility while permitting employees to post other literature.” Id. The complaint also alleged that on September 21, 2016, Respondent suspended Loran Lamb and on October 5, 2016, Respondent terminated her employment. Id. The complaint further alleged that Respondent suspended Anne Marshall on October 5, 2016, and terminated her employment on October 6, 2016. Id. The complaint alleges that Respondent engaged in these employment actions “because the named employees of Respondent formed, joined or assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities.” Id. Such conduct allegedly violated Section 8(a)(1) and 8(a)(3) of the NLRA. Id. The NLRB also ordered a response and scheduled a hearing on the charges to take place before an ALJ on January 9, 2017. The parties agree that such hearings are presently ongoing.

         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.” McLeod v. General Elec. Co., 366 F.3d 847, 850 (2d Cir. 1966). A court considering a request for an injunction under Section 10(j) must apply a two-part test. Hoffman ex rel. N.L.R.B. v. Inn Credible Caterers, Ltd., 247 F.3d 360, 364 (2d Cir. 2001). “First, the court must find reasonable cause to believe that unfair labor practices have been committed.” Id. at 364-65. “Second, the court must find that the requested relief is just and proper.” Id. at 365. In applying the first element, “‘the court need not make a final determination that the conduct in question is an unfair labor practice. It need find only reasonable cause to support such a conclusion.'” Id. at 333 (quoting Silverman v. Major League Baseball Player Relations Comm., Inc., 67 F.3d 1054, 1059 (2d Cir. 1995)). The district court is to defer to the NLRB's “judgment” and “should decline to grant relief only if convinced that the NLRB's legal or factual theories are fatally flawed.” Id. (internal citations omitted). As to the second element, “‘injunctive relief under § 10(j) is just and proper when it is necessary to prevent irreparable harm or to preserve the status quo.'” Paulsen v. Remington Lodging & Hospitality, LLC, 773 F.3d 462, 469 (2d Cir. 2014) (quoting Kreisberg ex rel. N.L.R.B. v. HealthBridge, 732 F.3d 131, 144 (2d Cir. 2013)). “The principal purpose of a § 10(j) injunction is to guard against harm to the collective bargaining rights of employees.” Id.

         III. ANALYSIS

         A. Factual Background[2]

         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 ...

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