Health Law Update

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The NLRB, in an August 27, 2015,<span class="Apple-converted-space"> </span><a class="js-autopdflink" href="http://f.datasrvr.com/fr1/415/41694/Administrative_Law_Judges_Decision.pdf" target="_blank" rel="noopener">decision</a>, held that two nurses who were requested to voluntarily appear before a hospital’s Nursing Peer Review Committee were entitled to have their union representatives attend the peer review meeting because the nurses could reasonably expect that discipline could result from their appearances before the committee.

The hospital contended that it did not discipline employees based on the outcome of peer review meetings and that employees could not reasonably expect that the meeting would lead to disciplinary action. The NLRB dismissed that argument as without merit, even if the committee could not impose any disciplinary action.

The Board’s decision was premised on the fact that the Nursing Peer Review Committee could report the nurses’ conduct to the Kansas Board of Nursing, which could lead to suspension or revocation of their nurse’s licenses which in turn could lead to their suspension or discharge from the hospital’s employment because the hospital “cannot employ nurses who lack the requisite license.”

Once an employee makes a proper request for union representation, the employer is generally permitted, according to the NLRB, one of three options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all. The hospital, however, may not continue a peer committee interview without granting the employee union representation, unless the employee voluntarily agrees to remain unrepresented after having been presented by the employer with the choices mentioned in option (3) above, or if the employee is otherwise aware of those choices.

The hospital refused to provide the nurses’ union with information regarding the peer review committee, its processes, and past disciplinary action. In response to the request, the hospital stated that “[a]ll business conducted in the committee is confidential between the Hospital and the State.” The NLRB rejected the claim of confidentiality.
<blockquote>Where requested information is “relevant to the Union’s ability to (a) effectively monitor and enforce the terms of the collective-bargaining agreement, (b) enable the Union to compare incidents that cause nurses to become targets of investigations, and (c) determine whether to file a grievance on behalf of unit employees who might have unknowingly been the victims of discriminatory investigations and discipline,” the party asserting confidentiality has the burden of (i) establishing that the information is confidential and (ii) “that its confidentiality interest in the information sought outweighs its bargaining partner’s need for the information."</blockquote>
State peer review laws “deeming certain information confidential may be considered in assessing whether there is a legitimate confidentiality interest in that information.” Thus despite the state peer review privilege laws, the NLRB found that the requested documents were essential to the union’s obligation to police and administer its contract and therefore found that the hospital was obligated to furnish the documents to the nurses’ union.

NLRB: Nurses Entitled to Union Representation at Peer Review Meeting