Nurses granted hearing in labor claims against BMC

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PITTSFIELD — Berkshire Medical Center may have violated labor law in three instances flagged by its registered nurses in the course of a prolonged contract dispute, a federal investigation determined.

The National Labor Relations Board says it continues to investigate a fourth unfair labor practice complaint. If that case goes against the hospital, it could be required to pay members of the Massachusetts Nurses Association for work time lost during a four-day lockout in October.

The findings move the complaints to a hearing before an administrative law judge and are not considered final.

A hospital executive says BMC believes it did not break the law and is prepared to defend its actions.

In a letter to employees, John F. Rogers, vice president and general counsel to Berkshire Health Systems, said the hospital was "somewhat disappointed" but not surprised that the board's regional director upheld the complaints.

"The hospital now looks forward to presenting its full case," Rogers wrote.

The findings come as the MNA and the hospital appear to be close to resolving contract negotiations that began in September 2016.

When two sides in a labor dispute reach a contract, it is customary for them to withdraw any outstanding NLRB complaints.

The union represents 800 registered nurses at the Pittsfield hospital.

The board's investigation was handled by attorney Jo Anne Howlett, its resident agent for Western Massachusetts. Her findings were upheld by the office's regional director.

According to the NLRB, the hospital appears to have run afoul of labor law in three instances:

- Official's letter: A July 13 letter sent by a human resources manager in connection with a proposed one-day strike threatened to interfere with benefits received by the RNs. At the time, nurses were considering whether to authorize a strike.

The letter warned that hospital contributions to health insurance benefits would stop for striking nurses.

In its complaint, the union alleged that the letter, written by Arthur Milano, a former vice president of human resources, violated a right by nurses to vote to authorize a strike. The union claimed Milano misrepresented the consequences of such a vote.

The NLRB agreed that the letter violated the National Labor Relations Act.

The hospital said Tuesday that before the strike, it notified nurses that they faced no lapse in their health insurance coverage.

- Outside staffing contract: Despite requests from the union, the hospital waited months to provide information to the union about the staffing agency it planned to use to cover shifts by RNs during the October strike and lockout. When that document was produced in December, the union says that 630 lines of text, out of 675, were blacked out.

The board found that the hospital did not "assert a claim of confidentiality" in a "timely" way, leading the agency's investigator to conclude that any right to confidentiality had been waived.

"The Employer violated [a section of the labor law] by delaying and refusing to respond to the Union's 9/22/17 requests for all correspondence, contracts and documents both hard copy and electronic between the Medical Center and the staffing agency related to the coverage over the time period of the proposed work stoppage at issue," Howlett wrote in a report to the board.

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The board ordered the hospital to provide an unredacted version of the contract with the company, U.S. Nursing Corp., that supplied replacement nurses in October.

Rogers said BMC's contract included a provision that it not be released without written approval from the staffing company, U.S. Nursing Corp. He said the company declined to allow the contract to be released without redactions.

"We didn't understand the relevance of the contract to the union's bargaining obligation," Rogers said in an interview. "We understood why they wanted to see it."

- Health insurance: The union waited months to get information from the hospital on use of a health insurance plan. The MNA said it needed data in order to evaluate the hospital's request that union members using individual plans pay more for coverage, matching the amounts paid by other hospital employees.

The board agreed the hospital should have provided the data. After receiving the information in late February, the union began reviewing it — a step that has further delayed contract talks.

Rogers said the hospital disagreed about how much information the union needed and wanted to protect privacy.

The issue was resolved after experts hired by the union were allowed to meet with representatives of the health plan, he said.

In his letter to employees, Rogers bemoans the expense of fighting the labor complaints, perhaps, he said, all the way to appellate courts.

"Reluctantly, Berkshire Medical Center must now invest the necessary costs to defend its position on these matters," he wrote. "These allegations become yet another example of the enormous diversion of scarce hospital resources and attention into this effort by the nurses' union to force the hospital to improve upon what is already a generous package of wages, benefits and working conditions."

Dana Simon, the union's director of strategic campaigns, faulted the hospital's response to the NLRB decision for suggesting in the letter it is "a preliminary step in a process that may take as long as two or three years to fully resolve."

"Management's characterization is completely inappropriate and typifies all that is wrong with their conduct," Simon told The Eagle. "They have characterized this as a game — where the nurses, who they consider to be their adversaries, have won a round.

"There is one thing and only one thing that has just happened: The federal government has announced that management has been violating the law in their conduct toward the nurses in three different ways. Period," Simon said.

Other complaint

Meantime, the NLRB says it continues to investigate a union complaint related to the four-day lockout that followed the nurses' Oct. 3 strike.

Rogers, the hospital vice president, says the redacted version of the U.S. Nursing Corp. contract included passages confirming that the contract required a minimum of five days of work.

"It was the one-day strike that triggered that obligation," he said.

Alex Neary, a co-chairwoman of the MNA's local bargaining committee, said in a statement provided by the union that the NLRB's finding of "merit" in the complaints shows that the hospital "has been withholding information they are legally required to provide and has tried to intimidate nurses from standing up for their rights in ways that the government has agreed were against the law."

The union plans to hold a membership meeting in coming days about the status of contract talks. No further bargaining dates have been scheduled, according to Joe Markman, a union spokesman.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.


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