Employment Law Daily OK to deny union representation in peer review meeting, but denying union info about peer review unlawful
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Tuesday, August 22, 2017

OK to deny union representation in peer review meeting, but denying union info about peer review unlawful

By Ronald Miller, J.D.

The NLRB’s determination that an employer improperly denied the request of two nurses for union representation in peer-review-committee hearings was set aside by the D.C. Circuit. The appeals court observed that when, as here, employees are not obligated to take part in an investigatory hearing, there is no requirement that they be permitted to bring a union representative if they elect to participate. However, the court upheld the Board’s decision in all other respects, including that the employer unlawfully denied the union’s request for information about the peer-review committee, and in maintaining a confidentiality rule barring employees from discussing incidents subject to the committee’s oversight. Judge Kavanaugh filed a separate opinion concurring in part and dissenting in part (Midwest Division – MMC, LLC dba Menorah Medical Center v. NLRB, August 18, 2017, Srinivasan, S.).

Investigatory interview. Section 8 of the NLRA imposes three obligations on employers. First, an employee must be allowed to bring a union representative to any investigatory interview she is required to attend if she reasonably believes the interview might result in disciplinary action. Second, absent an overriding need for confidentiality, an employer must furnish labor unions (upon request) information bearing on the administration of a collective bargaining agreement. Third, employees presumptively must be permitted to communicate with one another in service of their Section 7 rights.

Peer-review program. Kansas law calls for hospitals to establish an internal peer-review program to monitor the quality of care furnished by their medical professionals. As required by state law, the employer formed a peer-review committee for the facility’s nursing staff. The committee examines alleged violations of the applicable standard of care by the hospital’s nurses and reports serious breaches to the state licensing agency. Kansas law also attaches a confidentiality privilege to certain aspects of peer-review proceedings, including reports, statements, proceedings, findings, and other records submitted to and generated by peer-review committees. The peer review committee does not itself impose any form of discipline, but reports to the appropriate licensing agency if it finds grounds for disciplinary action.

Further, the hospital sought to fortify confidentiality protections by prohibiting employees from disclosing information concerning incidents within the committee’s purview.

Investigation of substandard conduct. This case arose out of the peer-review committee’s investigation of two nurses for substandard conduct. In May 2012, the nurses received letters from the hospital’s risk manager alleging they had exhibited unprofessional conduct. They were reminded that a “Care Level 4″ determination must be reported to the Kansas Board of Nursing for potential disciplinary action. The nurses were afforded an opportunity to address the peer review committee if they chose. Both nurses asked to be allowed a union representative before the committee, but the employer denied the requests. After the first hearing, a union representative requested information pertaining to the structure of the peer review committee, the allegations against the nurses, and any discipline issued by the committee. Aside from the hospital’s risk management plan, the employer declined to supply information responsive to the union’s request.

In response to the employer’s actions, the union filed unfair labor practice charges against the hospital. The Board ultimately found the hospital had violated the NLRA in the various ways alleged. The employer petitioned for review of the Board’s order, while the Board sought enforcement.

Jurisdiction. The appeals court first disposed of the employer’s contention that the Board wrongfully asserted jurisdiction over this dispute. The employer asserted that the peer review committee qualified as a political subdivision of the state, so that it did not function as a statutory employer when it acted to fulfill obligations imposed by state law. However, the court noted that the Board exercised jurisdiction over the hospital itself, not the peer review committee. The employer was the sole respondent in the agency proceedings, and as the “aggrieved party,” was the only petitioner. There was no doubt that the hospital itself qualified as a statutory employer capable of committing unfair labor practices.

Denial of representation request. On the merits, the appeals court considered whether the hospital violated the NLRA by denying the nurses’ request for union representation in connection with the peer-review hearings. In this instance, the court determined the Board’s ruling that the employer violated the nurses’ Weingarten rights could not be sustained. An employee’s Weingarten right is infringed when an employer compels him to appear at an interview that may put his job in jeopardy. However, absent compulsory attendance, the right to union representation recognized in Weingarten does not arise.

Here, the nurses were given precisely that choice. The letters advising them of the charges against them expressly “afforded an opportunity” to appear before the committee. However, neither nurse was compelled to attend a committee hearing so as to trigger a right to union representation under Weingarten.

Denial of information request. However, the court reached a different result with respect to the union’s information requests. Because the Board concluded that the withheld information was relevant to the union’s mission and that the employer’s confidentiality interests did not outweigh the union’s need for the materials, the appeals court found no basis to set aside the Board’s conclusion. Specifically, the union requested information pertaining to the structure of the peer review committee, the allegations against the nurses, and any discipline issued by the committee. The court concluded that substantial evidence supported the Board’s determination that the information was relevant to the union’s enforcement of the CBA.

With regard to the hospital’s confidentiality interests in the information requested, the employer described its interests solely by reference to the state-law provision privileging the reports, statements, proceedings, findings, and other records submitted to, or generated by, peer review committees. However, the appeals court observed that the Kansas Supreme Court has not construed the privilege to encompass any document that may incidentally come into the committee’s possession. The Board reasonably determined that, for all three categories of information sought by the union, its interest in the information prevailed over the employer’s confidentiality interests.

Similarly, the court invalidated the employer’s confidentiality rule prohibiting employees from disclosing information concerning reportable incidents. The Board invalided the rule as an excessive restriction on employees’ Section 7 rights, and the court concluded that its ruling was supported by substantial evidence.

Partial concurrence and partial dissent. In a separate opinion, Judge Kavanaugh agreed with the majority opinion except with respect to its agreement with the Board that the information requested was relevant to its union’s mission. He argued that the hospital’s confidentiality interest in the requested information was weighty, while the union’s need for that information was minimal at best. Thus, the dissent argued that the Board should have rejected the most of the union’s information request, and that it gave very short shrift to the hospital’s confidentiality interest in the requested information and significantly exaggerated the union’s need for the information.

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