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Judge Denies BMC's Request To Halt Strike
By Andy McKeever, iBerkshires Staff
06:19PM / Friday, September 29, 2017
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PITTSFIELD, Mass. — A federal judge has denied Berkshire Medical Center's request for a temporary injunction to halt the one-day strike planned Tuesday by the nursing union.
 
The hospital had filed an emergency motion requesting the federal courts to put a stop to the strike. The hospital alleged that the Massachusetts Nurses Association did not follow the proper grievance process as outlined in the contract. It asked for a temporary injunction.
 
On Friday, Judge Mark G. Mastroianni denied that emergency request after a hearing in U.S. District Court in Springfield. The nurses plan to go ahead with the one-day strike on Tuesday.
 
"We are disappointed that it appears there will be a strike on Tuesday," said John Rogers, vice president and general counsel for the hospital. "A strike doesn't serve anybody's best interest, not the hospital's, not the nurses', and not the communities'. We did what we could do to avoid a strike."
 
Massachusetts Nurses Association spokesman Joe Markman said he isn't surprised by the ruling, saying the hospital's request was "baseless."
 
"The hospital is trying to distract from the issues at hand," he said, adding that the nurses are "ready to strike Tuesday morning if necessary."
 
Markman is still calling on the administration to return to the bargaining table and settle a contract before Tuesday. On Monday, Oct. 2, from 6 to 8 p.m. the nurses are planning on a vigil outside of Berkshire Medical Center on North Street. The following morning at 7,  the nurses plan to take to the picket lines. The one-day strike is expected to end the following morning at 7. 
 
What happens at that point is still unclear. According to the National Labor Relations Board, there are two types of strikes: economic or unfair labor practice. The unfair labor practice strike entitles workers to return to the job right after the strike — in this case that would mean Wednesday morning — whereas an economic strike allows for the administration to lock them out until the temporary workers are released. 
 
The hospital has planned to lock the workers out for four days following the strike, saying that was the length of contract with temporary workers required. Rogers said the hospital was successful in making its case to Mastroianni that this strike wasn't an "unfair labor" strike but an economic one.
 
"We are satisfied that is not," Rogers said. "It was clear this strike was going to occur long before the [labor complaints]."
 
The judge's ruling is not yet available through the court reporting system. The docket listing states the preliminary injunction was rejected "for the reasons stated in open court."
 
Markman, contacted prior to the issuance of the written ruling, said he has to review that ruling before stating whether or not the strike is classified as an unfair labor or economic. Since the hospital believes it is in the right to lock the nurses out, that is likely what will happen and a separate court case would have to decide if that is right or not.
 
The tense contract negotiations have been underway for more than a year and have hit a stalemate in recent months — and animosity has grown with each side filing unfair labor practice complaints against each other. 
 
The nurses specifically have been citing the need for increased staffing levels, which they picketed about back in 2014 in the wake of the closure of North Adams Regional Hospital. The nurses say they've documented hundreds of cases when they say the staffing levels sub-par and jeopardized patient safety.
 
When the nurses and the hospital began negotiations, the union was pushing for staffing ratios in the contract. That would have established minimum requirements for the number of registered nurses on duty at one time based on the number of patients, levels of sickness, and shift. 
 
Hospital officials, however, say they don't want to essentially give up control of how the hospital is staffed. The hospital has an internal staffing department that reviews the information and deploys resources as needed. But, those resources don't necessarily have to be nurses. The hospital calls it a team approach to providing care in which sometimes a unit may be short on nurses, but there are doctors and other specialists working the floor.
 
The hospital returned with a proposal to create a staffing committee consisting of union officials and nurses. That committee would meet regularly, review the data, and then make recommendations for any staffing changes. Hospital officials see that as a way to bring in the concerns of the nurses to the decision-making process without taking away flexibility. By putting ratios into the contract, the hospital would be liable for violating the contract should those staffing levels fall short at a given time.
 
The nurses say there is already a staffing committee that is ineffective. In May, nurses rejected that hospital's "best and final offer" by a union vote.
 
The hospital has outlined the proposal on its website and it boasts of 10 percent worth of pay raises over three years, quality health insurance, and the staffing committee.
 
"We cannot agree to the demand by the MNA that we accept its fixed staffing ratios or similar language that has the effect of controlling staffing decisions or its proposal that nurses cannot be temporarily reassigned from less busy units of the hospital to more busy ones to perform basic nursing services in relief of their colleagues," according to the statement on the hospital's website.
 
The nurses responded with a proposal for language changes which alleviates a charge nurse from being assigned, patients. That, they said, would allow for an extra hand on the floor and somebody to manage what is happening at a given time. 
 
The hospital, however, said that change doesn't address its concern about flexibility by locking in certain jobs. They also see the nurse's push for staffing as part of a statewide push by the MNA — and multiple MNA chapters across the state have either gone to a strike or near a strike over the similar issues. The MNA is also pushing for a statewide ballot initiative regarding the topic.
 
The hospital later filed an unfair labor practice complaint saying the union was essentially repackaging the same proposal and accused the nurses of "surface bargaining."
 
But there had been other issues as well. Regarding the health insurance, which the hospital is proposing to change the percentage nurses pay from 10 percent to 20 percent of the premium to align with other staff members, and the length of the contract still unsettled. The nurses filed an unfair labor practice labor saying the hospital hadn't provided enough data about the health insurance plans.
 
The union said it is still willing to call off the strike if the hospital returns to the table in the next few days. But both sides are prepared for Tuesday.
 
"We're ready. We've been preparing for this for several months," said hospital spokesman Michael Leary, emphasizing that Berkshire Medical Center will continue to treat patients and keep providing medical services to the community.
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