Menorah Medical Center believed it was complying with the Kansas State peer review statute when it required peer review investigations be kept confidential, when it told employees that they were not allowed to bring a union representative to a peer review committee meeting and when it refused to provide peer review committee documents to the local nurses’ union. The National Labor Relations Board (“NLRB”) disagreed with the Medical Center across the board, finding they violated federal labor law.
In Menorah Medical Center, two nurses each asked for union representation when called to appear at nurse peer review committee meetings. Both were suspected of drug diversions and were informed in writing in advance that their conduct had “preliminarily been determined to be a Standard of Care Level 4 [violation]: grounds for disciplinary action.” Being members of a union, they each requested that a union representative be present during the meeting, under the Supreme Court’s ruling in NLRB v Weingarten, Inc. Both requests were denied as the Medical Center believed they were inconsistent with the confidentiality restrictions of the peer review function. The union followed up with informational requests sent to the Medical Center asking for a substantial amount of information related to disciplinary action given to nurses and the operation of the peer review committee. These requests were largely denied by the Medical Center.
The union filed an unfair labor practice charge alleging that the Medical Center could not hide behind the peer review statute. This August, the NLRB agreed. Specifically, the NLRB found:
- The Medical Center’s confidentiality policy prohibiting employees and staff from disclosing information concerning reportable incidents to outsiders must be stricken as a violation of Section 7 of the National Labor Relations Act;
- The Medical Center is required to allow union representatives to be present in peer review committee meetings attended by a union employee, where the employee reasonably believes that discipline could result; and
- The Medical Center is required to provide information to the union regarding the actions and makeup of the peer review committee, including “copies of investigatory information the hospital utilized…” in the peer review process.
What does this mean for peer review employers with union employees?
- When a union employee is under investigation by a peer review committee and appears at a committee meeting, he/she is entitled to a union representative if one is asked for and if the employee reasonably believes that disciplinary action could result from the meeting;
- Make sure that any confidentiality policies are reviewed by legal counsel – the NLRB closely scrutinizes these policies in light of the National Labor Relations Act requirement that employees generally be allowed to discuss the terms and conditions of their employment with co-workers, managers and outsiders.
- Peer review committee documentation may be fair game for union information requests. In a union environment, you should prepare these documents knowing that you may have to turn them over to the union.
If you have any questions, please contact Bruce Bagdady at bbagdady@wp.hallrender.com or your regular Hall Render attorney.
