Menorah Medical Center secures victory in National Labor Relations Board decision regarding peer review programs
Clients Menorah Medical Center
Jones Day client Menorah Medical Center, an acute care hospital in Kansas affiliated with HCA, Inc., secured a victory in a case challenging a National Labor Relations Board decision involving the role of labor unions in hospitals' peer review programs. Nearly all states and the District of Columbia have statutes establishing peer review proceedings to monitor the quality of patient care, and protecting the confidentiality of such proceedings. The D.C. Circuit granted the Hospital's petition for review of the NLRB's finding that the Hospital violated two nurses' rights under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), to union representation in peer review committee proceedings investigating incidents in which the nurses were involved.
Weingarten itself arose in the context of an employer's disciplinary proceedings. The D.C. Circuit held that, even assuming that Weingarten applies to state-mandated peer review proceedings, the Hospital did not violate the nurses' rights. The court explained that, under Weingarten, an employee's right to union representation at an investigatory interview that reasonably could lead to discipline is infringed only "when an employer compels him to appear at such an interview but denies him union representation." (emphasis in original). "Conversely," the court explained, "absent compulsory attendance, the right to union representation recognized in Weingarten does not arise. . . ." Because the Hospital advised the nurses that they were not required to attend the peer review committee meetings in question, "neither nurse was compelled to attend a Committee hearing so as to trigger a right to union representation under Weingarten." As a result, the court concluded that the Board's finding that Menorah violated the nurses' Weingarten rights "cannot be sustained." Writing separately, Judge Kavanaugh explained that he would have held that Weingarten rights do not apply at all to peer review proceedings that are "part of a state licensing process mandated by statute." Such proceedings, he explained, simply are "not part of the hospital's disciplinary process."
The decision should encourage employers -- both in health care and in other industries -- that they need not permit third-party union representatives to attend disciplinary or peer review meetings where confidential or other sensitive information is likely to be discussed or exchanged. Rather, in such situations, employers may deny requests for union representation as long as the employer has informed the employee that his or her attendance is voluntary. Moreover, the question whether Weingarten rights apply at all to peer review proceedings will likely recur in future cases, given the prevalence of peer review statutes across the country.
Midwest Division – MMC, LLC d/b/a Menorah Medical Center v. Nat'l Labor Relations Bd., Nos. 15-1312 and 15-1359 (D.C. Cir.)