Mass Nurses Association to feds: BMC lockout is unfair

Filing says hospital 'failed, refused' to offer info on replacements


PITTSFIELD — Striking nurses at Berkshire Medical Center counted on one day off work this week. They got five.

Now, a federal agency has been asked to determine whether a four-day lockout was proper.

The Massachusetts Nurses Association filed an unfair labor practice complaint Thursday with the National Labor Relations Board, its fifth this year related to the Pittsfield hospital's yearlong negotiations with nearly 800 registered nurses.

Since 7 a.m. Tuesday, when a one-day strike began at two Pittsfield locations and one in North Adams, 247 replacement RNs have been providing care.

They will be in place, in two daily 12-hour shifts, until 7 a.m. Sunday.

The union's filing says the hospital "failed and refused" to provide information regarding use of replacement nurses.

In a Sept. 22 email to a law firm representing the hospital, a union official asked for proof that U.S. Nursing Corp., the company fielding the replacement help, set a minimum number of days for the staffing.

The email also asked the hospital to explain why the replacement nurses appear to be poised to work as many as seven days. Training for one shift of 120 nurses took place Sunday in Pittsfield. The replacement shifts conclude their work at 7 a.m. Oct. 8.

"It appears that this is a retaliatory lockout unless you can explain those two things," said Dana Simon, the MNA's director of strategic campaigns, referring to the U.S. Nursing contract and the replacement period.

The hospital said Thursday that it was under no obligation to provide proof of the contract to the union, because it didn't concern collective bargaining.

"We do not see how our agreement with U.S. Nursing is in any way necessary or helpful to the union to decide about terms and conditions of a new agreement for the nurses," said John Rogers, senior vice president and general counsel for Berkshire Health Systems.

Rogers said BMC's contract with U.S. Nursing specifies that, regardless of how long they are deployed in the hospital, replacement RNs must be paid 60 hours — the sum of five 12-hour shifts.

The hospital declined to release a copy of the contract to The Eagle but said it "may well" provide it to the NLRB if asked.

The union filed similar unfair labor practice complaints after replacement workers were used during lockouts at two other hospitals this summer — at Tufts Medical Center in Boston and at Baystate Franklin Medical Center in Greenfield.

Simon said the NLRB's review of those complaints is ongoing.

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Rogers said that the union has not, to his knowledge, responded to a request from its lawyer to explain why the U.S. Nursing contract is relevant.

"Although the union has a right to a large amount of information in connection with working out a new contract, that right is not unlimited and only includes information that is relevant," Rogers said in a statement, in response to questions from The Eagle.

Simon says the information is relevant because it will allow the union to determine whether the four-day lockout was compelled by circumstances outside the hospital's control. If the hospital was not required to pay the replacements for a minimum of five days, he said, it would be evidence of retaliation for striking.

By prohibiting the union's members from working Wednesday through Saturday this week, the hospital withheld their ability to earn normal wages for those days, Simon noted.

While the unfair labor practice complaint does not allege retaliation, Simon said he expected to be required by the NLRB to provide an affidavit with a fuller picture of the reasons for the filing. The case file will include correspondence with the hospital's attorney as well.

"That will be the whole basis of the charge," Simon said.

The initial requests for information sent by the union went to Diane Patrick, an attorney with Ropes & Gray LLP.

In a Sept. 28 email to Simon, Patrick said that the hospital was willing to consider the union's request further, if it explained why it was needed.

"Your information request," she wrote, "does not relate to bargaining unit information, and hence is presumptively not relevant to MNA's duties as collective bargaining representative."

On the issue of how many total days the replacement nurses might be in the Berkshires, Rogers said it would be more than five, because of travel time and training.

The strike was authorized by union members in July. The MNA filed a required 10-day advance notice of the strike Sept. 22.

The hospital and its registered nurses have worked for a year to shape terms of a new contract — but are unable to agree. A key stumbling block is the union's effort to secure additional staffing.

The RNs continued to work on the basis of a three-year contract that lapsed Sept. 30, 2016. That pact was terminated as of Sept. 1.

The union took that step because the contract did not allow members to strike. While the action blocks the union's access to the grievance process, terms of the former contract, including pay and benefits, remain largely in effect.

Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.


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