New Limitations on Union Representation for Peer-Review Investigations

Published: 9 October 2017

In Midwest Division-MMC, LLC, d/b/a/ Menorah Medical Center v. NLRB, 867 F.3d 1288 (D.C. Cir. Aug. 18, 2017), the Circuit Court of Appeals for the District of Columbia held that nurses do not have a right to union representation during voluntary investigatory hearings. The circuit court’s decision reversed the National Labor Relations Board’s (“NLRB”) expansive ruling that would have extended employees’ Weingarten rights to have union representation present at non-compulsory investigative hearings.

Kansas law requires hospitals to establish an internal peer-review program to monitor the standard of care provided by nursing and other allied healthcare professionals. As required by this law, Menorah Medical Center (“Menorah”), a Kansas acute-care hospital, formed a peer-review committee to examine alleged violations of the applicable standard of care of the hospital’s nurses. The committee is required to report serious breaches to the Kansas State Board of Nursing (“KSBN”).

Menorah’s committee investigated two nurses for substandard conduct. The committee sent letters to the nurses notifying them that the committee had reviewed instances in which the nurses “exhibited unprofessional conduct” that could subject them to disciplinary action. The letters also indicated that the nurses could choose to address the allegations at a committee hearing prior to any final determination. Menorah barred the nurses from having union representation at their hearings before the committee and also denied the union’s request for information about the committee’s operations.

The union filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”) on behalf of the nurses, and the NLRB ruled against the hospital. In its decision, the NLRB relied on NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). In Weingarten, the United States Supreme Court held that an employee may refuse to submit to an interview that he reasonably fears may result in discipline without representation. But the Weingarten protection is only triggered when an employee is required to attend the investigatory meeting. The NLRB found that, as a practical matter, the nurses’ participation in the hearing was not optional because they could be reported to the KSBN and be subject to discipline as a result of the committee’s determination. According to the NLRB, although the letters indicated that the nurses could choose whether to attend their hearings, the seriousness of the committee’s decision left the nurses with no choice but to attend. The NLRB also found that Menorah violated the National Labor Relations Act (“Act”) by denying the union’s request for information regarding the committee. Menorah petitioned for review of the NLRB decision.

The Circuit Court of Appeals for the District of Columbia set aside the NLRB’s determination that Menorah improperly denied the nurses’ requests for union representation in the peer-review hearings. The court found that the nurses were not obligated to take part in the investigatory hearing; therefore, Menorah was not required to permit the nurses to bring a union representative to the hearing. Because the committee advised that participation in the hearing was voluntary and that the nurses could submit a written response in lieu of attending, the court concluded that the nurses could not have reasonably believed they were required to attend the hearing. Although the court found that Menorah did not violate the Act under Weingarten, it sustained the NLRB’s finding that Menorah committed unfair labor practices in denying the union’s request for information about the committee.

The purpose of Weingarten rights are to address the perceived imbalance of economic power between labor and management. While healthcare professionals may be barred from having union representation during voluntary peer-review proceedings, nurses may—and often should—have representation present at hearings where their presence is required. Although peer-review proceedings are confidential under Kansas law, unions may be able to obtain information relating to the proceedings and the peer-review process if they are able to show that the union’s need for the information outweighs the confidentiality interests established by the hospital.

Our professional licensing attorneys in Wichita, Topeka, Lawrence, Overland Park and Kansas City represent nurses and other healthcare professionals in peer review proceedings. Healthcare professionals who find themselves in a peer review proceeding should obtain legal advice as soon as possible, regardless of whether any representative—union or otherwise—can accompany the nurse to any particular hearing.

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