Most states, including Connecticut and Massachusetts, have laws that allow hospitals and other health care institutions to establish confidential peer review programs to oversee the quality of care provided by their health care professionals without the threat those proceedings will be subject to discovery.  Menorah Medical Center (“Menorah”), in Kansas, had such a program for its nurses.  The Peer Review Committee (“Committee”) would investigate allegations of substandard care and, if substantiated, report the breach to the Kansas Board of Nursing.

In May of 2012, Menorah advised two of its nurses that it had made a preliminary determination that they had “exhibited unprofessional conduct,” which could subject them to discipline.  Menorah also advised the nurses that they would have “an opportunity to address the Peer Review Committee . . . prior to any final determination . . . .”  Menorah explained that if the nurses chose not to appear before the Committee, they could instead submit a written response for the Committee’s consideration.

The nurses elected to appear and requested that their union representative accompany them to their meetings with the Committee.  Based on the confidential nature of the proceedings, Menorah denied each nurse’s request and proceeded with hearings.  The nurses elected to participate without union representation.  The Union filed charges with the National Labor Relations Board (“NLRB”), claiming that Menorah unlawfully denied the nurses their right to union representation during an investigatory interview, known as Weingarten rights.

In NLRB v. J. Weingarten, Inc.,the United States Supreme Court held that “an employee [may] . . . refuse to submit without representation to an interview which he reasonably fears may result in discipline.”  The right arises only when employees are required to attend the investigatory meeting.

The NLRB determined that the Menorah nurses’ participation was not optional because the nurses were in peril of being reported to the state licensing board and could face discipline as a result of the hearing before the Committee.  Instead, the NLRB concluded that Menorah had violated the law because the gravity of the hearings indicated to the nurses that they had no choice but to attend.

The Circuit Court of Appeals for the District of Columbia overturned the NLRB, concluding that the nurses could not reasonably have believed that their presence at the hearings was required. Menorah had communicated that it merely was “offering [the nurses] the opportunity” to participate and that they could submit a written response in lieu of attending.  Because Menorah made the nurses aware of the voluntary nature of their participation at the hearings, the nurses were not entitled to union representation. The court held that they were free to elect to participate and reap the benefits of offering their input regarding the allegations or to decline to attend the hearing and forfeit any benefit they may have garnered from their participation.

The take-away for those with peer review programs that cover union employees is that making participation for those union employees who are the subject of an inquiry voluntary will help a peer review committee avoid triggering employees’ Weingarten rights, so long as the voluntary nature of participation is clear.