BMC files complaint against nurses in federal court, seeks unspecified damages

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By Thursday, Sep 28 News  14 Comments
Berkshire Medical Center in Pittsfield. Photo courtesy Berkshire Health Systems

Pittsfield — Berkshire Medical Center, the county’s largest hospital, is taking its nurses’ union to court over a one-day strike planned for early next month.

The eight-page complaint, filed yesterday in U.S District Court in Boston, not only questions the legality of the planned labor stoppage but seeks an injunction and damages to compensate the hospital for the cost of replacement nurses.

BMC lawyers say the agreement with the Massachusetts Nurses Association requires that union grievances be heard through arbitration, “a process that allows differences to be resolved without interfering with hospital operations,” BMC management said in a statement announcing the lawsuit.

The Sept. 19 forum in the United Methodist Church in Pittsfield where nurses spoke of their distress with the Berkshire Medical Center working conditions and contract. Photo: Terry Cowgill

“Instead, the MNA is asking nurses to leave patients’ bedsides to walk a picket line,” BMC said.

Represented by the MNA, the nearly 800 nurses at Berkshire Medical Center delivered a 10-day notice to hospital management on Friday notifying them of their intent to hold a one-day “unfair labor practice strike” beginning at 7 a.m. on Tuesday, Oct. 3 and running until 7 a.m. on Wednesday, Oct. 4.

That vote came three days after the union staged a forum at which five nurses told troubling stories of understaffed and overwhelmed nurses and certified nursing assistants.

The union said BMC nurses have raised patient safety concerns to hospital management using various means for years, including directly to supervisors, at labor-management meetings and during ongoing collective-bargaining negotiations.

But according to officials at Berkshire Health Systems, BMC’s parent organization, the strike will, by necessity, be considerably longer than one day. While “BMC will bring in experienced, qualified replacement nurses” to work in place of existing staff, “the temporary nursing agency requires a minimum five-day contract.” Therefore, the labor stoppage would result in greater financial losses for the striking nurses.

Yesterday, BMC said the union has made conflicting claims about its motivations for the strike. For weeks the union has said the strike is about patient care and nurse staffing concerns. According to the National Labor Relations Board, workers may strike for either economic reasons–such as wages benefits and working conditions–or because of “unfair labor practices.”

Posters displayed at a Sept. 19 forum in the United Methodist Church in Pittsfield, Mass., supporting the nurses contention that patient care was compromised by understaffing. The nurses union has now approved a one-day strike. Photo: Terry Cowgill

“However, in filing the required 10-day strike notice on Sept. 22, the MNA called the action an ‘unfair labor practice’ strike, although the only unfair labor practice charges that the MNA has made against BMC involve just the kind of contract grievances that must be settled through arbitration,” BMC said.

For its part, the union released a statement yesterday before the BMC complaint was filed. In it, the union said, at the collective bargaining session held the day before in an effort to avert a strike, BMC nurses proposed new compromises during negotiations on the contested issues of safe patient care and health insurance. The union says BMC officials effectively walked out of the meeting.

“For more than a year, Berkshire Medical Center has refused to negotiate in good faith over workload, safe patient care and quality, affordable health insurance,” said nurse Alex Neary, co-chair of the MNA bargaining committee. “On Wednesday, the hospital once again refused to compromise and agree to concrete improvements to patient care.”

Negotiations began for a new contract about a year ago and include a federal mediator. More than 25 bargaining sessions have been held. On May 31, 82 percent of the union nurses rejected the hospital’s “best and final” contract offer.

In July, 83 percent of the nurses voted to authorize a potential one-day strike. The 16-member bargaining committee had the authority to call for such a strike provided it issued a 10-day strike notice, which it did as required under federal law.

The strike includes the following BHS holdings: BMC in Pittsfield, the Hillcrest Cancer Center in Pittsfield and BMC’s facility in North Adams. BHS holdings also include Fairview Hospital in Great Barrington. However, Fairview nurses are represented by a different union, which reached an agreement with BHS on a new contract late last year.

David Phelps, CEO and president of Berkshire Health Systems. Photo courtesy Berkshire Health Systems

“We are disappointed that the MNA has pushed for a strike rather than give that offer due consideration,” said David Phelps, president and CEO of BHS, and chief operating officer Diane Kelly in a joint statement. “However, in the event that the strike does take place, we are well prepared to continue the full range of services always available at Berkshire Medical Center through capable and dedicated care teams. The hospital will remain open and fully accessible to our patients and our community.”

BMC spokesman Michael Leary told the Edge that U.S Nursing Corporation will provide the temporary nurses if the strike occurs. Indeed, USNC has posted openings for nurses in a Massachusetts facility where a “strike notice has been received.” The required dates of availability for the replacement nurses coincide with the days of the planned MNA strike at BMC. The posting boasts a 60-hour guarantee for the week and offers a $500 bonus for persons who refer a nurse to USNC who successfully completes the assignment.

On its website, USNC describes itself as “the premier provider of job action services in the US.” and says, since 1989, it “has been working with healthcare facilities and nursing professionals to provide turnkey staffing solutions during labor disputes.”

Asked for the union’s reaction to the legal action filed by the hospital, MNA spokesman Joe Markham called the hospital’s complaint “without merit” and said that MNA attorneys are preparing to fight it in federal court, though no date has yet been set for a hearing.

“In general, by this action, Berkshire Medical Center executives are treating the nurses as if they have no legal right to withhold their labor even for a day,” Markham said.

“The nurses obviously have the right to protest, to advocate for themselves and their patients. The hospital would deprive nurses of their protected voice. This is a continuation of the hospital’s arrogant, ongoing refusal to bargain in good faith, and its refusal to ensure appropriate nurse staffing and safe patient care.”

The union has scheduled a “Patient Safety Vigil” the day before the planned strike on Monday, Oct. 2, from 6 to 8 p.m. outside BMC on North Street in Pittsfield so that “nurses and supporters gather in solidarity the evening before [the] strike,” Markham said.


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14 Comments   Add Comment

  1. John says:

    It’s been reported that an experienced nurse makes approximately 116,000 a year…plus lucrative benefits…
    The union had a crippling strike to Eastern Airlines in 1989, and it folded never to reopen again… now yes that’s an airline, but a perfect example if what happens when a union gets greedy.

    Good for the hospital to go after the union for costs.

    1. Ed Abrahams says:

      John, you should site sources. Or Edge editors, you should take this comment down.
      I have no idea if that number is correct but of the many nurses I’ve known (and the one I married) that seems rediculously high.

      1. Terry Cowgill says:

        Ed, that number came from BMC officials in a statement they made to us in a previous story about the bargaining committee authorizing a strike. Scroll to the end. https://theberkshireedge.com/bmc-nurses-union-committee-votes-to-authorize-one-day-strike/

      1. Shawn G. says:

        Ed, et al- The source you cited puts the average wage of a BMC nurse at $34/hr. Their standard schedule is 4 shifts per week…times 52 weeks in a year. I did the math: ROUGHLY $55,000/year.

    2. Chris says:

      Wrong nurses make no where near that amount .. while the top
      Management makes 5-7xs that amount

    3. steve smith says:

      First thing, you need to do your research before representing myth as fact. Second, do you not wonder why this administration pays it’s CEO over $700.000.00 and Treasurer over half a million, yet can not see fit to compensate the backbone of hospital health care fairly? In many instances nurse to patient is one on one, leaving a larger patient ratio. Quality patient care requires quality nursing. Nurses have more initials following their signature than any CEO or Treasurer, each initial signifying expertise and training which equates to quality care yet overpaid armchair warriors deny patients that care as the, the administration, prostitute themselves to the dollar bill then blame rank and file

  2. annscarbro@icloud.com says:

    Please give the nursing staff the accommodation they deserve and need.

  3. John Breasted says:

    Thank you, Ed Abrahams, for giving us the reality check about the actual salaries of most nurses at BMC.

    And thank you, also, Terry Cowgill and David Scribner, for providing more informative coverage than did the Berkshire Eagle on BMC’s sudden legal move on Wednesday..

    It was very helpful to be able to read the full text of the BMC legal brief to the federal court in Springfield thru the link Terry included in his Thursday news story (a link not provided by the Eagle in its own news story on the sudden BMC legal move).

    I was surprised this morning to read the news [http://www.berkshireeagle.com/stories/judge-rejects-berkshire-medical-centers-bid-to-block-nurses-strike,520722? ] that federal judge Mastroianni ruled yesterday in favor of the nurses and denied BMC’s request that he block the strike.

    The last five paragraphs of this morning’s page one Eagle news article are especially telling, in illustrating how BMC has been trying to have it both ways: making an emergency claim to a federal court of “irreparable harm” from a one-day strike while saying it plans to lock out the nurses for four additional days, at great extra corporate expense, and while also asserting that all hospital services will function normally during those five days. (I have numbered the four paragraphs because I do not see a way to italicize or offset them in this format:

    [1] The judge also dismissed the hospital’s argument, advanced by attorney Douglas Brayley of the firm Ropes & Gray LLP, that the hospital would suffer irreparable damage to its goodwill and reputation.

    [2] Mastroianni noted that the hospital has been reassuring the public that it will be able to provide care during the strike.

    [3] “The hospital’s assertion … is speculative at best,” he said. “There is no clear threat to its market position.”

    [4] After the ruling came, Rogers, the hospital executive, reasserted the hospital’s ability to function normally. The hospital plans to provide replacement workers not for one day — the duration of the strike — but for five days.

    [5] “We are well-prepared to continue the range of services we provide,” he said.

    Since May 4, I have followed closely the media coverage of the issues in the protracted BMC nursing contract negotiations. Now that the strike and lockout are imminent, there are at least 17 questions that reporters need to ask BMC managers, to inform readers about what will be going on during the next week in this phase of the continuing story. I plan to post them here in a separate comment. I hope that both the Berkshire Eagle and The Berkshire Edge will pursue these questions, which I supplied to both publications on September 28.

    1. John Breasted says:

      15 questions that come easily to mind, about the planned October 3 BMC nurses’ strike and BMC’s plan to lock them out for four additional days.

      I see a compelling public interest in the provision of answers to these questions. If BMC asserts that some of the answers are proprietary information, we should remember that our payments of federal and state taxes and the premiums for private medical insurance provide virtually all of BMC’s revenue. The public is the final payor of the costs of any contracts with agencies that BMC hires to strengthen its bargaining position. (And yes, this feature is a prominent selling point on the website of the US Nursing Corporation, the agency hired by BMC to provide nurses during the strike and lock-out.) We have the moral right, and I should hope a legal one, to know these costs.

      Of course some of these questions need to be directed also to independent students and analysts of labor issues in our increasingly commercialized system of hospital-based delivery of medical care.

      I hope that we will soon be reading (and hearing)answers to these questions in our regional news media.

      First, here is a relevant page from the website of the US Nursing Corporation, where the dates listed earlier this week suggested that this agency was recruiting nurses for the announced BMC strike:

      https://www.usnursing.com/nurses/job-action-alerts/ma-strike-notice-received

      1) How, in general, do such arrangements with a nursing labor agency work?

      2) What is the history of such arrangements in hospital nursing labor disputes?

      3) What is the larger context of such arrangements in the history of unionized labor in the US?

      4) What is their larger context in the present atmosphere of apparently increased hostility to organized labor in the Trump administration and in the Republican majority in our Congress?

      5) Does BMC have to make a deposit to engage the services of such a company for an announced strike?

      6) If so, what is the amount that has been paid?

      7) If so, will any of the deposit be refundable if the planned strike does not occur?

      8) Does BMC not have enough bargaining power to set a shorter term than five days, in drawing up a contract with an agency like US Nursing Corporation?

      9) Could BMC get a shorter term agreement from another nursing labor agency (like Nurse Bridge)? (A shorter lock-out period would be less disruptive to patient care and presumably less expensive for BMC’s coffers.)

      10) Would BMC have had to pay a kill fee (in addition to a possible deposit) to the agency if the strike had been quashed by the judge?

      11) If so, what would that fee have been?

      12) What is the expected total cost of hiring replacement nurses for five days? (This cost typically includes above-market wages and payments for travel, food, and lodging.)

      13) Where will BMC be housing the replacement nurses?

      14) Have hotel reservations already been made to ensure housing for the replacements who plan to come from places outside commuting range?

      15) How do the circumstances around the planned BMC strike compare with those around the strike at Tufts medical center in July?

      1. jennifer wade says:

        Here are some partial answers to some of John Breasted’s questions, and comments: (I am a retired nurse manager who more than once was extensively involved in preparations for strike in a large NYC hospital.)
        Strike replacement agencies such as US Nursing charge hospitals in step-wise fashion. They charge a baseline fee for the intial potential arrangement, then more if their nurses arrive at the airport, then more if their nurses actually fly, etc–even if, as is often the case, the strike is called off at the last minute. Then if strike is a go they of course charge for their labor. I believe US Nursing will not contract its nurses for fewer than five work days. So even if the BMC nurses planned to strike for only one day BMC is forced to pay for five days replacement. And to avoid paying double (and also possibly for punitive reasons?) they lock out the BMC nurses for the next four days.
        Arrangements are typically made to physically separate the striking nurses from the replacement nurses, who are housed in an undisclosed location. On Tues at 7 a.m. when the BMC nurses walk out one door, buses will likely pull up to another door through which, surrounded by security, replacement nurses will walk in.
        Replacement nurses must be flexible, and prepared to “hit the ground running.” They are assigned to patient units that correspond to their own specialty: OB nurses to maternity, psych nurses to psch, ICU nurses, with their special certifications, to ICU, etc. etc. Their qualifications have been previously vetted by the agency. So they should know their specialty.
        A big issue for rapid turn around is not how well they know their specialty but how quickly they can grasp the nuances of a particular hospital system. Each hospital has a somewhat different system for charting notes, computerized ordering of medications, and how to release medication from a locked medication machine. It’s all done with computers, and the nurse better know how it works in her new hospital. Presumably, the replacement nurses are getting their electronic medical record (EMR) crash course right now, in some undisclosed location.
        Predictably, the union will disparage the competency of the replacement nurses. Hospital management will likely praise them, saying they are excellent; everything in the hospital is going smoothly. The truth will likely be somewhere in the middle. When as a manager I prepared my unit for a strike my union nurses characterized the replacements as the “dregs.” Yet my middle management peers who had actual experiences with fufilled strikes said some replacement nurses were indeed excellent. The smooth running of the hospital in this interim will depend on how well the hospital has planned, and the active, flexible engagement of all levels of management, as they communicate with and assist these interim nurses, to the end of providing excellent care to patients.
        Also, I believe state agencies will be watching closely, to ensure appropriate patient care.
        Hope this helps.

      2. John Breasted says:

        Thank you, Jennifer Wade. Your response (which I have read only today, October 5, is very helpful and informative.

  4. John Breasted says:

    Here again is the link to this morning’s Berkshire Eagle news story on Judge Mastroianni ‘s decision yesterday denying BMC’s emergency request in the Springfield federal court for an injunction to prevent the announced October 3 nurses’ strike at BMC:

    http://www.berkshireeagle.com/stories/judge-rejects-berkshire-medical-centers-bid-to-block-nurses-strike,520722?

    It is not “live” in the first of my two previous postings here this morning. And again, it may not be in this one. There are many such mysteries of the internet that I have not yet fathomed.

  5. Bernie says:

    Contrary to what the ‘spokespeople’ say, Nurses are not being led around like docile animals by their union.
    They would not threaten to strike unless it was imperative to do so.
    Nurses dedicate their lives to their profession. Not for the money. Not for the glory. But for the health and welfare of others.
    If the BMC MNA Nurses say they don’t have enough help-they don’t have enough help!
    Period.
    The hospital admin has been pulling the same stuff for years. David, Arthur and Michael are speaking of a (still) female- dominated profession that they wish to dominate.
    Diane should be ashamed of herself.
    Support our Nurses!

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Frederick Simmons Sr., 86, of Lee

Tuesday, Oct 17 - Fred enjoyed hunting and fishing in the local area, vegetable gardening, woodworking, spending time with his large extended family and being a great dad.