ITHACA, N.Y. — The National Labor Relations Board has found Cayuga Medical Center unlawfully fired two nurses “in an effort to rid itself of the union organizing drive,” a decision released Tuesday states.
From January to April 2017, the NLRB held a hearing in Ithaca to investigate a case involving two nurses at Cayuga Medical Center. On Tuesday, Administrative Law Judge Kimberly Sorg-Graves, who presided over the case, released her decision on the matter, ultimately finding that the hospital fired the two nurses unlawfully.
In its defense, CMC said it fired two Intensive Care Unit nurses — Anne Marshall and Loran Lamb — for violating blood transfusion policy and falsely documenting it. The complaint about the blood transfusion came from the patient. However, the nurses argued that the way they performed the transfusion and documented it was common practice and they were really targeted for their union activity.
Related: Union retaliation or fair termination at Cayuga Medical Center? Judge now has case
Marshall, who no longer works at the hospital, was a key union organizer as nurses tried to form a union with 1199 SEIU United Healthcare Workers East. Union efforts began in early 2015. Lamb also supported the union, though she was less vocal about it.
Sorg-Graves states in the decision, “I find that CMC unlawfully suspended and subsequently discharged Marshall and Lamb in an effort to rid itself of the union organizing drive perpetuated by Marshall. CMC’s claim that Marshall’s and Lamb’s failure to follow established procedures while performing and documenting a blood transfusion was so egregious as to necessitate their discharges is a ruse for its real motivation of removing Marshall’s vocal support for unionization.”
Sorg-Graves said administrators at CMC chose to ignore information it uncovered in its investigation that other nurses performed blood transfusions in the same manner as Marshall and Lamb. She said administrators also disregarded its practices of re-educating staff and deviated from providing its employees progressive discipline. The hospital also violated the National Labor Relations Act by removing union literature from bulletin boards while allowing other non-CMC literature, Sorg-Graves said.
Cayuga Medical Center has previously been found to have violated federal labor law in a case involving nurses’ unionization efforts. Marshall was involved in that case as well, and the judge in that case found that she was unlawfully suspended and demoted.
CMC has denied all allegations related to both cases. Recently, the NLRB upheld its previous decision but CMC says it will appeal again.
In response to the decision Tuesday, John Turner, vice president of public relations at Cayuga Medical Center, said the hospital will appeal the ruling.
“Cayuga Medical Center strongly disagrees with the ruling by the National Labor Relations Board. Patient safety has always been at the forefront of delivering high quality care to our patients. We have always maintained a supportive workplace for our employees, as we partner together to deliver patient care. We will be appealing the ruling,” a statement from Cayuga Medical Center said.
The blood transfusion that led to Marshall and Lamb’s termination took place on Sept. 11, 2016. Cayuga Medical Center administrators testified during the hearing that the two nurses did not follow the hospital’s blood transfusion policy and falsely documented that they had.
When a blood transfusion is needed at Cayuga Medical Center, a doctor orders the blood and it is delivered from the blood bank. From there, two nurses are required to check the patient’s information against the blood outside the room and then at the patient’s bedside. A strict procedure is in place because giving a patient the wrong type of blood can be fatal.
However, nurses testified at the hearing that at the time of the blood transfusion in this case, it was routine for nurses to do all of the checks — checking patient birth date, name, consent forms, etc, — and sign off on everything at the nurses’ station before entering the patient’s room. And instead of two nurses doing the bedside check, just the primary nurse would enter, hang the blood and verify the patient’s information.
On Sept. 11, 2016, Marshall and Lamb performed a blood transfusion in this manner. The patient was receiving the transfusion had cancer and was familiar with the process. In a statement from the patient provided by Cayuga Medical Center, the patient said, “Nurse calls, we wait. My sister and aunt were in the room. The nurse comes in hangs the bag and starts the blood. I looked at her and said ‘What about the protocol?’ And she said ‘Oh, we did that at the desk.’–and left the room. My sister, who is an RN in the state of Maine, ran over to the blood to check the numbers. I said ‘This isn’t how it’s ever been done.’”
The patient said she wanted the hospital to be aware of the breach of protocol and how vulnerable she felt in her bed that day.
Marshall and Lamb did not deny that they did not follow protocol that day, but said they were following what was routine practice at the time. Marshall testified that she did check the patient’s identity before hanging the blood, and Sorg-Graves credited her testimony.
After this blood transfusion and subsequent complaint, CMC launched an investigation that resulted in Marshall and Lamb being terminated.
In the decision, Sorg-Graves said Cayuga Medical Center was preparing to terminate Marshall before a proper investigation, as early as Sept. 16, five days after the blood transfusion. Sorg-Graves said CMC’s vice president of human resources Brian Forrest was unwilling to state when the decision was first made to discharge Marshall, but that sometime around Sept. 16, directed his secretary to draft a discharge letter for Marshall. It stated Marshall falsified the transfusion card and has been “untruthful in other previous situations including the July 1, 2015 suspension” (the suspension found to be in violation of the National Labor Relations Act at a previous hearing.)
Sorg-Graves said it was significant that at that time, there is no evidence of a discharge letter being drafted for Lamb.
“Lamb was never the focus of management and was simply a casualty of circumstances,” Sorg-Graves said.
She said she initially gave Forrest the benefit of the doubt while he was testifying that he couldn’t remember when the discharge letter was drafted, but said it “became apparent that he was intentionally evading questions.” Sorg-Graves said she found credible evidence that administrators decided to discharge Marshall before any steps were taken as per the hospital’s “red rule” violation investigation standard. A “red rule” is a term used for key tasks that if not performed correctly could lead to a dangerous outcome.
Sorg-Graves said Cayuga Medical Center staff chose to ignore that failing to follow blood transfusion policy was widespread.
Sorg-Graves recommended an order requiring Cayuga Medical Center to offer Marshall and Lamb full reinstatement to their former jobs with back pay. She also ordered that the hospital read a notice (page 57 below) to employees.
Marshall, who now works at Auburn Correctional Facility, said she was very happy to hear the news Tuesday.
“We all knew that we were on the right side and what they were doing was completely wrong,” Marshall said.
Read the full 58-page decision below:
NLRB Decision regarding Cayuga Medical Center by Kelsey O’Connor on Scribd