Lawful to Prohibit Union Representative at a Peer-Review Meeting...But Employers Should Be Wary of Withholding Documentation About Those Committees

Midwest Division - MMC, LLC v. National Labor Relations Board - D.C. Circuit Court of Appeals

Facts:  Midwest Division - MMC, LLC had a d/b/a, Menorah Medical Center ("Menorah") which operated a hospital.  In Kansas, where Menorah was located, state law requires hospitals have an internal peer-review program to monitor the quality of care furnished.  Menorah subsequently formed the Nursing Peer Review Committee ("Committee"0 for the hospital's nursing staff.  The committee was charged with examining alleged violations of the applicable standard of care by the hospital's nurses and reported serious breaches to the state licensing agency.

The committee investigated two nurses, Sherry Centye ("Centye") and Brenda Smith ("Smith"), at the hospital for alleged substandard conduct.  Both Centye and Smith received letters from Menorah's Risk Manager that alleged the nurses had "exhibited unprofessional conduct as defined by the Kansas Nurse Practice Act" and their conduct had been preliminarily determined to be grounds for discipline.  While Centye and Smith were both offered given the option to address the Committee regarding their alleged conduct (which they accepted), Menorah denied the nurses' request to have a union representative accompany the nurses in their hearings.  Menorah also denied the union's request for a variety of information about the committee's operations and maintained a confidentiality rule that barred employees from discussing incidents within the committee's purview.

The union subsequently filed unfair labor practice charges against the hospital and the National Labor Relations Board ("NLRB") found Menorah violated the National Labor Relations Act ("NLRA").  Menorah petitioned the Court of Appeals for a review of the NLRB's decision.

Holding:  Generally speaking, Section 8 of the NLRA imposes three obligations on employers:  1) an employee must be allowed to bring a union representative to any investigatory interview he/she is required to attend if he/she reasonably believes the interview might result in disciplinary action; 2) absent an overriding need for confidentiality, employers must furnish labor unions (upon request) information bearing on the administration of a collective bargaining agreement; and 3) employees must preemptively be permitted to communicated with each other in service of their Section 7 rights under the NLRA.  As well, NLRB v. Weingarten, Inc. established that the NLRA "creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline."

Option to Address the Committee

In this case, the Court noted that while the Committee is charged with reporting to the Nursing Board anytime it is found a nurse "acted below the applicable standard of care", the Committee itself does not impose any discipline.  Taking it one step further, an employee's Weingarten right is infringed upon when an employer compels that employee to appear at an interview but denies him/her union representation.  It subsequently follows that absent compulsory attendance, the right to union representation established by Weingarten does not arise.  As established, Centye and Smith were given the option to appear before the Committee.  Since neither were compelled to appear before the Committee (and they voluntarily chose to address the Committee without being forced by Menorah), the right to union representation under Weingarten never triggered.

Withholding Information From the Union

It has previously been established that an employer's statutory obligation to engage in collective bargaining "includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining representative."   As for the relevance of the requested information for that purpose, a "liberal" standard is applied.  Consequently, the Board [NLRB] must "balance a union's need for the information against any legitimate and substantial confidentiality interests established by the employer."  The employer will be required to provide the requested information if "the union's need for the information outweigh[s] the general policy regarding confidentiality."

In this instance, the union representative requested information from Menorah about the operation of its Committee, including its structure, purpose, and functions as well as information about investigations the Committee conducted.  While the NLRB had deemed all the requests to be relevant, it held that Menorah's confidentiality interests were "modest" and therefore the information could not be withheld.  Having reviewed the requested information and the privilege asserted, the Court of Appeals held that the NLRB had properly decided that Menorah had violated the NLRA by withholding documentation from the union.  A significant interest was found to exist in allowing the union to obtain the information, such that the release of the requested information did not outweigh Menorah's confidentiality concerns.

Judgment:  The D.C. Circuit Court of Appeals found that although the two nurses who voluntarily chose to appear before a peer-review committee did not have their NLRA rights violated by not being allowed to have a union representative present, a violation of the NLRA did occur when the employer failed to disclose requested information out the peer-review committee that had been requested by the union.

The Takeaway:  This was an interesting case to read through, albeit it was somewhat straight to the point without as much analysis as I would have preferred.  I did want to highlight the first inquiry the Court examined, as to the question of whether a violation of the NLRA occurred when a union representative was not permitted to join the two nurses when they appeared before the Committee.  However, the Court was quick to point out that the nurses had both been given the option whether or not to appear before the Committee.  Having found in the affirmative that the nurses both voluntarily chose to attend, that appears to have in essence ended the Court's analysis of this matter based upon the Supreme Court's ruling in Weingarten:  Weingarten does not require an employer to renew advice to an employee that attendance at a hearing is optional.  The fact that Menorah made it known to both nurses that they had the option to attend, and were not compelled to do so, eliminated any risk of a violation of the NLRA having occurred.

Majority Opinion Judge:  Judge Srinivasan

Date:  August 18, 2017

Opinion:  http://hr.cch.com/ELD/MidwestNLRB081817.pdf