Staffing impasse sets stage for Berkshire Medical Center nurses strike

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PITTSFIELD — Diane Kelly, chief operating officer of Berkshire Medical Center, signed on the line. So did Julie Pinkham, executive director of the Massachusetts Nurses Association.

Three years ago, these women agreed on work rules for nearly 800 registered nurses in Pittsfield.

Today, after trying for a year to reach a new pact, their institutions are locked in combat, trading accusations of insincerity and low motives.

And starting Tuesday, a strike and lockout will bring tensions between the hospital and union to a new level.

How did they get to this point?

They got here, in the simplest sense, by disagreeing over what those work rules should say, particularly on the question of how many nurses are needed to care for the hospital's patients.

In the old 71-page contract, in a section called "management rights," the hospital was granted the authority to decide how to staff and run the place. Nurses would have a say through a five-member committee that would consult on hospital policies, nursing practice issues and "staffing patterns."

But on Page 52, the contract sets a clear limit: "It is understood that any recommendations made by the Nurses Committee shall be advisory only."

Two days from now, a strike will dramatize how profoundly this union wants more than the power of suggestion.

The two sides remained at an impasse this week when they met at a ski resort in Hancock for their latest collective bargaining session, aided by a federal mediator. Barring a last-minute breakthrough, this week's one-day strike and five-day use of replacement nurses will put a normally closeted process before the public.

Normally, but not this year. Over months of bargaining, as old contract provisions remained in effect by law, both sides have sought to win community support for their positions.

The rhetoric has been rough, making it hard for people who rely on the hospital's services to sort out a complicated issue.

Roots of conflict

Six months before the old contract went into effect, the president of the union, a nurse by the name of Donna Kelly-Williams, launched a statewide campaign. "As you may know," she said in a message to members, "our top 2013 legislative priority will be to pass a law to require safe RN staffing levels in all Massachusetts hospitals. We have created a strategy that can make safe staffing a reality by the end of 2014."

Concern over staffing had been brewing since the 1990s, the union says, when financial and working conditions inside hospitals began to change. Nursing unions saw these changes, including "managed care," as a risk to the profession itself.

Perceived threats stacked up like air traffic over Logan: re-engineering of traditional nursing roles, use of people other than RNs for certain tasks, mandatory overtime and what they saw as under-staffing.

Nurses in Pittsfield went out into the snow with an informational picket Dec. 10, 2014, to make their concerns public.

While 2014 came and went without a legislative win, the union's focus held. It secured significant support on Beacon Hill and won a first-ever debate in the state Senate on the question of nurse staffing. The MNA is now hoping to put the issue before voters in November 2018.

As the resolve of nurses hardened, so did opposition from hospitals.

They came to see the drive for "safe staffing" rules as a threat to their ability to operate in a time of perilous funding and tight margins. A study by the Center for

Health Information and Analysis found that from 2014 to 2015, the median operating margin for acute care hospitals in Massachusetts — the amount by which revenues exceeded expenses — fell from 4.2 to 3.7. An operating margin is a measure of profitability; it shows how much of every dollar of revenue is left over after expenses are met.

Like all hospitals, and labor-intensive businesses, BMC is pinched by rising costs and stagnant revenues. Its costs have been climbing roughly 6 percent a year while its reimbursements have gone up 1 percent.

Pat Noga, a nurse who serves as vice president of clinical affairs for the Massachusetts Health & Hospital Association, says her group's members need flexibility in how they deliver care.

"MNA's misguided attempt to impose assembly line-like staffing quotas takes decision-making away from nurse leaders in each hospital, where it belongs," Noga said, in response to questions from The Eagle. "This approach ultimately harms not only hospitals, but all hospital employees, patients and the communities they serve."

Since the union's legislative campaign began in earnest in 2013, its members have approved contracts around Massachusetts, some of which do not include mandatory staffing numbers for nurses.

But MNA members won staffing gains elsewhere. And bargaining committees dug in and made headlines with two short strikes this summer, one at Baystate Franklin Medical Center in Greenfield and the other at Tufts Medical Center in Boston. This week's planned strike and subsequent four-day lockout in Pittsfield continues that trend.

"While our patients are sicker with greater needs for care, BMC has implemented staffing policies that often force nurses to care for too many patients at one time," said Joe Markman, the union spokesman. "This contract dispute centers on nurses' efforts to convince management to do what they refuse to do on their own, which is to provide the staffing conditions that allow nurses to care for the patients admitted to this hospital."

Three months into talks on a new contract, the union presented the hospital with 320 forms filled out by BMC nurses documenting what they believed were instances of unsafe staffing.

Bringing attention to this issue, in contract talks and in the community at large, became job one. "No unsafe staffing assignment should go undocumented," the passage on the union's website says.

Talks run aground

Last March, half a year into negotiations with its registered nurses, the head of Berkshire Medical Center's human resources department sent a good news, bad news letter to employees.

The hospital had reached new contract agreements with four union bargaining units, Arthur D. Milano reported.

That left just one to go. But even then, talks with the Massachusetts Nurses Association, representing nearly 800 registered nurses, appeared to be stuck. After 19 bargaining sessions with the local MNA committee, the hospital called March 14 for a federal mediator — and the union agreed.

That mediator, Cynthia Jeffries of the Federal Mediation and Conciliation Service, joined the effort April 6.

Despite her presence, neither side relaxed its position on the most vexing issue: a union request that nurse-patient ratios be assigned for all nursing units. The hospital calculated that such a change in the contract, Milano said in his "Dear BHS Colleague" letter, along with other union requests, would cost it more than $21 million over three years.

Less than two months later, after three more bargaining sessions, the hospital was done talking. It issued a "best and final" offer to the nurses that it has estimated would cost it $6.5 million over three years.

"We have made it clear to the MNA bargaining committee that we cannot agree to their unrealistic and unsustainable staffing demands," Milano had written in his March letter.

In a letter of their own, David E. Phelps, the president and CEO of Berkshire Health Systems, and Diane Kelly, a nurse who serves as the hospital's chief operating officer, said the union's staffing request was a deal-breaker.

"We have made it clear to the union that we cannot accept its rigid approach to staffing the hospital," they wrote in a May 3 letter to employees.

The hospital's "best and final" package included a 10 percent pay increase over three years, an increase in evening and night shift pay differentials and a carrot to conclude eight months of negotiations. If the union accepted the offer by May 31, the hospital would make elements of the pay increases retroactive to the end of the last contract Sept. 30, 2016.

As with all employment contracts, money matters. While the hospital's final offer asked nurses to pay more for health insurance, by and large the monetary demands were not far apart.

By summer, the union had put its sights on a one-year contract, perhaps mindful — and hopeful — for a change in state law. It was asking for a 3.5 percent increase, with a 1.5 percent retroactive payment back to Sept. 30, 2016, when the old contract lapsed.

While the parties were relatively close on money, that wasn't so for staffing .

On that front, the hospital offered one change: a new staffing committee made up of three MNA members and three non-union nurse leaders. The panel would meet twice a year to study staffing issues brought forward from rank-and-file nurses and report its findings to Brenda Cadorette, the chief nursing officer.

That didn't fly with the union, which believed it limited its members to an advisory role, when what they wanted was a say.

Nurses had long been completing what the union calls "unsafe staffing" reports, but felt they were not taken seriously. In August, following up on its gambit last December, the union released a spreadsheet showing 437 instances of what nurses cited as inadequate staffing since Oct. 1, 2015.

Kelly, the hospital's COO, told The Eagle on Aug. 31 she believes the forms contain misinformation, saying of nurses: "They can write whatever they want on those forms."

The "best and final" offer was rejected at the end of May by 82 percent of the union's 616 voting members.

By the numbers

Nurses still want to see new staffing rules in their next contract, though the odds of securing them look grim.

The hospital says its nurse staffing plan takes a lot of factors into account, but at root there are indeed numbers.

One RN, the hospital says on an informational website, bmcnurses.com, generally handles three to five patients on day shifts and five to seven patients at night. In the intensive care unit, the hospital follows a new state law secured in large measure by the MNA that limits nurses to one patient, or two, if the "acuity" of the patients — the intensity of their medical conditions — allows it.

In its earlier push for the statewide "Patient Safety Act," the union proposed a 1:4 nurse-patient ratio on medical and surgical floors. That's not far from what BMC says is its standard.

But Milano, the human resources vice president, said BMC has reason to be reluctant to put staffing requirements into contracts.

"Those are the things that have gotten hospitals into trouble," he said in an interview. "We are currently staffed in a way that we feel is appropriate."

In a letter sent Feb. 24 to the hospital community, Phelps and Kelly tried to explain why they were unwilling to agree to what they termed the union's "unreasonable staffing demands." They said they needed to be able to take a slew of factors into account, hearing on a real-time basis from teams made up of professionals in a variety of fields.

In a follow-up letter, May 3, the two administrators said they'd rejected the union's staffing request, but offered to address how the hospital responds to instances in which nurses feel overwhelmed by the volume of work.

The hospital was willing, they said, "to establish a means of nearly instantaneous response to concerns by any nurse about temporary staffing shortages at any time."

"We have moved quite a bit in this process," said Michael Leary, BMC's spokesman, of the overall negotiations, in an interview this summer.

Dana Simon, the union's director of strategic campaigns, said the bargaining committee came to recognize and accept the hospital's resistance. That led it to move away from its initial proposals on staffing ratios. Instead, it asked that "charge" nurses not be required to handle patients during day and evening shifts, allowing them to back up other nurses feeling overwhelmed by patients needs.

"We felt if we could at least get some relief there that would be major," Simon told The Eagle.

The union also asked that the hospital make a commitment not to worsen what the MNA saw as a difficult workload.

Markman, of the union, says that with the closing of the North Adams Regional Hospital, the patient census in Pittsfield has risen significantly. And despite concerns expressed by MNA members, the hospital upped the number of patients nurses must tend in seven units.

Nurses claim they need more help in part because patients are increasingly older and sicker, and more arrive beset by substance abuse and mental health problems.

The staffing requests by the union were still on the table when its members voted 442-92 in July to authorize a one-day strike. In August, the hospital, after asking for time to study the revised proposals, turned them down.

Is it politics?

Since spring, hospital officials have argued that the MNA bargaining committee is more intent on achieving big-picture staffing goals than with reaching a fair contract in Pittsfield.

"It is clearer than ever," Phelps and Kelly wrote May 3, "that the MNA's position is dominated by its concern for a statewide agenda, rather than the needs and interests of the BMC nurses or Berkshire County generally."

Markman, the MNA staff member, says it was nurses in Pittsfield who set the terms of this year's talks, elected bargaining committee members in secret ballots and voted to strike.

He insists the staffing proposals put forward by the BMC bargaining committee are homegrown, even as members of the union look to the future and seek support for a nurse staffing law. "Statewide, nurses and their supporters are approaching the overall, long-standing nurse-patient assignment problem with the ballot question," he said.

Amber VanBramer, a member of the bargaining committee, said the hospital is wrong to suggest the local union is a pawn of the MNA.

"We the nurses are the MNA," she said in a recent interview. "From day one, everything we've brought to the table was brought by nurses at BMC — all 794 of us."

Mark Brodeur, of Pittsfield, a registered nurse and seven-year BMC employee, echoes other union members when he says the strike was a last resort.

"We would have liked to have settled this at the bargaining table," he said. "We at this time essentially have no voice with our administration."

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


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