In BMC talks, mediator tries to find middle ground

Mediator in BMC tiff offers suggestions, has `stopped things from getting heated'

PITTSFIELD —With a nurses union and hospital in deadlock over terms of their contract, there is one person who has been trying to help — and for free.

A mediator from a federally funded mediation service with what it says is a high success rate is still on the case for union and Berkshire Medical Center officials to continue negotiations that reached a final impasse last month.

The breakdown led to Tuesday's one-day strike and four-day lockout by the hospital.

"[The mediator] has made suggestions, she has worked with both parties, she has at times brought us suggestions about ways other hospitals have reacted to the same kinds of issues," said Arthur Milano, vice president of human resources at BMC.

"It's stopped things from getting heated," said Cathy Pease, a registered nurse picketing on the day of the strike, during which temperatures appeared hot enough.

Pease, who has been a nurse at BMC for 30 years, is on the Massachusetts Nurses Association bargaining committee for BMC nurses, the union that called the strike.

Hospital and union officials say a mediator from the Federal Mediation and Conciliation Service has offered some strategies to try to break the stalemate.

But the nurses say the mediator is powerless because the hospital isn't willing to negotiate, mainly over staffing numbers that the nurses say are unsafe for patients. And hospital management contends that its nurse-to-patient ratio meets or exceeds industry standards, and that a rigid staffing ratio is too expensive and impractical.

After 22 bargaining sessions since last fall failed to break the impasse, the union called the strike.

Another day, another negotiation

John Arnold, a spokesman for the mediation service, said that as soon as an expiring health care labor contract is opened for amending, the agency gets notice and assigns a mediator to the parties.

He said the mediator initially monitors negotiations, and will jump in any time one of the parties runs into problems and requests help.

"They will sit at the table or carry proposals from one side to the other," he added.

Milano said that after the hospital requested help from Cynthia Jeffries, the mediator assigned in this case, this is exactly how it went between the hospital and nurses union.

"It's common for mediators to have parties in two separate rooms, and talk to the parties about where they are and what's important, where you have some room to move, and to try to help bring [parties] together," he said, adding that a mediator can also "push their way in" to rocky bargaining efforts.

There is never a dry spell. The mediation service gets about 19,000 bargaining notices every year, and out of those, about 4,000 get actively mediated, Arnold said.

"The parties come to a mutually agreed upon settlement 87 percent of the time when there's a dispute," he said.

Congress established the service in 1947 through the Taft-Hartley Act, or Labor Management Relations Act, to stop disputes that could tie up interstate commerce. There are 10 regional offices and 60 field offices; its headquarters are in Washington.

But it is considered an independent agency. It handles everything in the private sector except railroads and airlines, as well as voluntary public sector bargaining in states that don't have state-run mediation services, Arnold said. The service also offers arbitration, where the arbitrator makes the decision after working with labor and management officials.

And federal mediators have been on both sides of the table. Arnold said they come to the service with collective bargaining experience either from the union or company management side. Then they go through an internal training that takes one to two years, depending on their experience.

"They're skilled," he said.

Deadlock at BMC

But so far, at Berkshire Medical Center, the parties are entrenched.

And the nurses, who were expected to return Sunday after a four-day lockout, say the mediator is only helpful if both sides are willing to negotiate. They claim that the hospital won't budge.

"[The mediator] has brought up options that have worked for other hospitals, but that are less than what we want," said Mark Brodeur, who is on the MNA bargaining committee. "And the hospital would strip [the options] down."

BMC's Milano said the hospital has tried.

"There were negotiations where we accepted some of those [options] and incorporated them into some of the language on the table," he said.

"She came in when it was already a hostile situation," bargaining committee member Marie Geary said of Jeffries. "So in all fairness to her, I don't think there's anything that she could have done to make that any different, nor do I think she has been able to help."

Donna Stern just emerged from three years of 44 failed collective bargaining attempts and a summer strike at Baystate Franklin Hospital in Greenfield. Stern is the chairwoman of that hospital's MNA, and said she sees another strike coming. She has been out to Pittsfield to support BMC nurses during the lockout.

Stern said she has a lot of respect for federal mediators.

"They're doing everything they can," she said. "But if you're dealing with one side that wants to negotiate and another that has no interest, what can a federal mediator do against that — not a lot."

She also said she wonders if the mediator services' 87 percent settlement rate truly reflects what are increasingly more heated labor disputes in health care.

"You may see a precipitous fall in that statistic," she said. "The days meeting at the hospital, and grabbing some Danish, and getting this done in three days are over."

And what one Cornell University labor expert says about the role of mediators defies that statistic, as well.

"A good mediator can't help much," said Kate Bronfenbrenner, director of labor education research and a senior lecturer at Cornell's School of Industrial and Labor Relations.

Bronfenbrenner said some mediators can manipulate both sides, since it is their job to stop strikes. She said this can be harmful, as it can cause the union to lower its bottom line, for instance.

John August, who specializes in health care labor relations at Cornell, said the success of mediation depends on the attitudes of both parties to create a lasting solution.

"Mediators are trained for the longer-term interest," said August, program director at the Scheinman Institute on Conflict Resolution.

And binding arbitration appears out of the question — at least for the hospital.

The Eagle previously asked David Phelps, president and CEO of Berkshire Health Systems, if he would allow these negotiations to go into binding arbitration.

"No," he said.

Jeffries is out of the country for several weeks, according to Geary. This might allow for some cooling down, she said.

And going forward, into the long term, no one is sure of much, except that patients have to be cared for.

BMC spokesman Michael Leary said he couldn't discuss the future of negotiations right now.

"We're focusing on what's going on inside the building," he said. "The important thing is for us to continue to provide care."

Reach staff writer Heather Bellow at 413-329-6871.


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