|BMC Asks Court To Halt Nurses Union Strike|
|By Andy McKeever, iBerkshires Staff|
07:15PM / Wednesday, September 27, 2017
PITTSFIELD, Mass. — Berkshire Medical Center is seeking a preliminary injunction to halt a planned one-day strike.
The hospital filed for an injunction in federal court, claiming the Massachusetts Nursing Association had not followed contractual obligations prior to calling a strike. The union, however, asserts that the strike is legal and still plans to take to the picket lines on Tuesday.
In the union's filing for a strike, it listed it as an "unfair labor practice" strike. But, each of the complaints made by the union regarding unfair labor practices occurred while under contract and should have been resolved through an arbitration process, according to John Rogers, vice president and general counsel for the hospital.
"They haven't gone through the necessary steps," Rogers said.
According to the National Labor Relations Board, there are two types of strikes: economic or unfair labor practice.
With an economic strike, employees are striking over wages, benefits, or working conditions. They are legally allowed to strike on that basis and cannot be fired.
But, the employer does have the ability to hire replacement workers and the workers aren't entitled to return to work right away. In this case, the nurses have repeatedly said they are striking over staffing, which does fall into that category but isn't the type of strike the union filed.
Under an economic strike, the hospital could lock out the striking nurses while there are replacement workers in place. The hospital's administration had planned to hire replacements for an entire week, under the impression that staffing issues were the cause of the strike and why it would fall under the economic category.
The one-day strike by the union would be followed by a four-day lockout by the hospital.
"An economic strike is more manageable for the health system," Rogers said.
However, the local MNA chapter has filed for an "unfair labor practice" strike. That, according to the NLRB, is for other actions committed by the employer and with that, strikers are entitled to return to their jobs right after the strike, even if there are replacement workers.
Prior to issuing the 10-day notice of a strike, the nurses have filed three unfair practice complaints against the hospital — one over the release of health insurance information, one regarding threats allegedly made by the administration regarding the strike authorization vote, and one claiming the hospital unilaterally changed absenteeism policy.
"They all occurred while the old contract was in effect," Rogers said.
Under that contract, the nurses are supposed to take those issues to an arbitration process, which did not happen.
"Each of the above-listed disputes is arbitrable under the Agreement because the matters complained of arguably violate provisions of the Agreement, including the Earned Time, the Medical Insurance Clause, the Recognition Clause, the Non-Discrimination Clause, the Discipline Clause, the Leave of Absences Clause, and the Management Rights Clause," reads the request for an injunction.
"Because the disputes motivating the Defendant's imminent one-day strike occurred while the Agreement was still in effect, they are subject to grievance and arbitration procedures set forth therein, and the no-strike obligation continues to bind the MNA with respect to these disputes."
On Wednesday, the union said it filed yet another unfair labor practice complaint saying the management has consistently refused to bargain or come to agreements in relation to staffing. That came shortly before 5 p.m. on Wednesday after yet another failed attempt at bargaining.
"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 Alex Neary, co-chair of the MNA BMC Bargaining Committee. "On Wednesday, the hospital once again refused to compromise and agree to concrete improvements to patient care."
Union spokesman Joe Markman asserts that the strike is legal and that the nurses are willing to avert a strike by continuing to negotiate. The union doesn't feel the hospital is making any attempt to reach a compromise.
The courts will now have to decide which side is right. If the court does put forth a temporary injunction to halt the strike, then it will be litigated, which can take a while. Should the nurses strike anyway, then they would be in contempt of court.
"We are disappointed that the MNA has pushed for a strike rather than give that offer due consideration," reads a joint statement from President and CEO David Phelps and Chief Operating Officer Diane Kelly.
"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."
Markman said as of Wednesday night, the union has not been served and the plans are to continue with the strike.
On Monday, Oct. 2 from 6 p.m. to 8 p.m. the nurses are planning on a vigil outside of Berkshire Medical Center on North Street. The following morning, at 7 a.m. the nurses plan to take to the picket lines. The one-day strike is expected to end the following morning at 7 a.m.
"We are ready to return to the hospital to care for our patients on Wednesday morning," said Jody Stefanik, of the MNA BMC Bargaining Committee.
"Keeping us from our patients for an extra four days is the hospital's sole decision. Instead of valuing its own nurses, BMC is valuing a contract with replacement nurses."