Judge rejects Berkshire Medical Center's bid to block nurses strike

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SPRINGFIELD — A last-minute legal challenge to a nursing strike at Berkshire Medical Center failed Friday, clearing the way for next week's walkout and picketing.

The strike is scheduled to begin at 7 a.m. Tuesday and affect the Pittsfield hospital as well as BMC Cancer Center at the Hillcrest campus in the city and BMC's satellite campus in North Adams.

After hearing 75 minutes of arguments, then considering the case for more than two hours in chambers, a federal judge ruled against the hospital's emergency motion for a preliminary injunction blocking the strike.

U.S. District Court Judge Mark G. Mastroianni said arguments mustered by the hospital's three-member legal team in Springfield, and in motions filed Wednesday, did not allow him to find for the plaintiff and halt the strike.

In its filings, the hospital argued that the strike is illegal, given an existing labor agreement. David M. Mandel of Ropes & Gray LLP of Boston said the union listed "unfair labor practices" as the reason for the strike. He argued that the union's three-year contract requires those matters to be handled in the grievance and arbitration process.

Mastroianni said the hospital did not show that a strike would have caused it or the Berkshire County community irreparable harm.

Instead, he said damage would have been inflicted on the Massachusetts Nurses Association and its roughly 800 members at Berkshire Medical Center if their action had been prohibited.

"Depriving them of their right to strike in this case would have caused irreparable harm," Mastroianni said.

John F. Rogers, a vice president and general counsel for Berkshire Health Systems, said after the judge's ruling that the hospital felt it needed to do all it could to stop the strike.

"We're all disappointed that there will be a strike Tuesday," he said outside the courtroom. "We have taken all the steps we reasonably can to avoid the strike."

Rogers said the medical center mounted the legal challenge this week because it feels the strike will be harmful to both the hospital and the community.

Joe Markman, a union spokesman, said the court upheld that "nurses have a legally protected right to advocate for themselves and their patients."

"Despite attempts by the hospital to distract from the real patient safety concerns at hand, Berkshire Medical Center nurses remain united and prepared to strike if necessary," he said after the judge's decision.

Issue of motive

The reason for the strike emerged as a central issue in a hearing, in which Mastroianni closely questioned attorneys for both sides on the applicable law.

A 1970 Supreme Court case, Boys Markets Inc. v Retail Clerks Union, Local 770, allows injunctive relief under certain conditions.

While Mastroianni said the hospital's argument satisfied part of that high court case's standards, he found another aspect untenable.

That concerned the claim that even if a small part of a union's motive to strike is a matter normally handled in the grievance and arbitration process, then a walkout is improper.

Mastroianni said that aspect of the plaintiff's argument lacks supporting case law.

The judge said the threshold should instead be language from another case involving Verizon. "Is the strike really 'over' an arbitratable grievance?" Mastroianni asked.

"The court finds the medical center has not carried its burden," he said.

The union's attorney, James F. Lamond, of the firm McDonald Lamond Canzoneri, defended the nurses' right to strike, saying Congress decided the issue in the early 1970s.

"It is lawful for health care workers, even nurses, to strike," Lamond said.

Despite mention of unfair labor practice complaints in a Sept. 22 press release by the union, Lamond said the reason for the strike extends to wider issues.

"It's primarily about using pressure to convince the hospital to yield to the Massachusetts Nurses Association's economic demands," he said.

In his presentation, Lamond asked the judge not to allow a strike to be blocked because some small portion of a union's motive may concern a matter that would be settled through the grievance process.

"You'd be in a sense making a rule on that topic and we don't think that's appropriate," Lamond said. "Congress has spoken. Health care employees can strike. It's a right that they have to be out on strike."

During the hearing, Mastroianni indicated at several points that he had reservations about the proposed injunction. What irreparable harm might be caused to the union, he asked, if the strike were to be halted?

"You've just taken away a very important right," he said. "They have the right to be there."

The judge also dismissed the hospital's argument, advanced by attorney Douglas Brayley of the firm Ropes & Gray LLP, that the hospital would suffer irreparable damage to its goodwill and reputation.

Mastroianni noted that the hospital has been reassuring the public that it will be able to provide care during the strike.

"The hospital's assertion ... is speculative at best," he said. "There is no clear threat to its market position."

After the ruling came, Rogers, the hospital executive, reasserted the hospital's ability to function normally. The hospital plans to provide replacement workers not for one day — the duration of the strike — but for five days.

"We are well-prepared to continue the range of services we provide," he said.

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


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