Midwest Division-MMC, LLC v. National Labor Relations Board
2017 U.S. App. LEXIS 15637
D.C. Cir.2017Background
- Menorah Medical Center (Kansas) operates a statutorily required Nursing Peer Review Committee that evaluates alleged nurse breaches of the standard of care and reports certain findings to the Kansas Board of Nursing.
- Two nurses (Centye, Smith) received letters classifying alleged conduct as potentially reportable and were offered the option to appear before the Committee or submit a written response; both chose to appear and requested union representation, which Menorah denied.
- The union requested information about the Committee’s structure, membership, investigations, and disciplinary letters; Menorah supplied only its Risk Management Plan and declined other materials citing Kansas confidentiality privilege.
- Menorah’s Risk Management Plan includes a broad Confidentiality Rule barring employees from disclosing information about “reportable incidents” except to limited recipients with prior approval.
- The NLRB’s ALJ and the Board found Menorah violated the NLRA by (1) denying union representation to the nurses, (2) refusing the union’s information requests, and (3) maintaining an overbroad confidentiality rule; the Board admitted testimony about Committee proceedings.
- The D.C. Circuit: set aside the Board’s Weingarten finding (no violation because hearings were voluntary), enforced the Board’s rulings that Menorah unlawfully withheld requested information and maintained an overly broad confidentiality rule, and affirmed admission of peer-review testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NLRB had jurisdiction given peer-review’s state role | NLRB: Menorah is a private employer subject to NLRA | Menorah: Committee is a state "political subdivision" exempt from NLRA | Court: NLRB jurisdiction proper; Committee not a political subdivision |
| Whether nurses had a Weingarten right to union representation at Committee interviews | Union: nurses were denied representation in investigatory interviews that could lead to discipline | Menorah: appearance was voluntary (could submit written response); Weingarten not triggered | Court: No Weingarten violation because hearings were optional and employees were not compelled to attend |
| Whether Menorah unlawfully refused union’s information requests about the peer-review program | Union: requested info is relevant to bargaining and discipline; confidentiality interest is limited | Menorah: state-law privilege and confidentiality outweigh union’s need | Court: NLRB decision affirmed — union’s need outweighed confidentiality; Menorah unlawfully withheld information |
| Whether Confidentiality Rule unlawfully chilled Section 7 activity | Union: rule would be read to bar employees discussing incidents, chilling protected concerted activity | Menorah: rule tracks state peer-review privilege and targets only privileged materials | Court: NLRB decision affirmed — rule is overbroad and likely chills Section 7 rights |
Key Cases Cited
- NLRB v. J. Weingarten, Inc., 420 U.S. 251 (Weingarten right to union representation in compelled investigatory interviews)
- Detroit Edison Co. v. NLRB, 440 U.S. 301 (employer’s duty to furnish relevant information to union)
- NLRB v. Nat. Gas Util. Dist. of Hawkins Cty., 402 U.S. 600 (definition of "political subdivision" exempt from NLRA)
- Daimler-Chrysler Corp. v. NLRB, 288 F.3d 434 (liberal, discovery-type relevancy standard for union information requests)
- Cintas Corp. v. NLRB, 482 F.3d 463 (Section 7 protects employees’ right to discuss terms and conditions of employment)
- Banner Health Sys. v. NLRB, 851 F.3d 35 (construing ambiguous work rules against employer when assessing chilling effect on Section 7 rights)