Midwest Division-MMC, LLC d/b/a Menorah Medical Center

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 193 (N.L.R.B. 2015)

362 NLRB No. 193
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Midwest Division—MMC, LLC d/b/a Menorah Medical
Center and Nurses Organizing Committee—
Kansas/National Nurses United, affiliated with Na-
tional Nurses Organizing Committee/National
Nurses United. Cases 17–CA–088213 and 17–CA–
091912
August 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On December 23, 2013, Administrative Law Judge
Christine E. Dibble issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions4

1 On April 16, 2014, the Board granted the American Hospital As-
sociation, the Kansas Hospital Association, the Texas Hospital Associa-
tion, and the Texas Nurses’ Association’s motion to file an amicus
brief.
2 On exception, the Respondent maintains that the judge erred in
admitting, over the Respondent’s objection, testimony about the Nurs-
ing Peer Review Committee’s proceedings. The Respondent contends
that the employees’ communications to the Committee are privileged
under Kansas’s state peer review statute. See Kan. Stat. Ann. Sec. 65–
4915(b). We disagree. The testimony at issue concerned the employ-
ees’ appearances before the Committee, and no witness testified about
the Committee’s deliberations or decision-making process. See Hill v.
Sandhu, 129 F.R.D. 548, 550 (D. Kan. 1990) (Kansas’s peer review
privilege was “designed to protect the deliberations and the documents
created by the peer review committee and not statements of fact or
information supplied to the committee for review.”) (emphasis in origi-
nal). Moreover, the testimony at issue is critical to determining wheth-
er the Respondent violated Sec. 8(a)(1) by denying employees their
right to a union representative during their appearance before the
Committee. Thus, the Respondent seeks to “insulate from discovery
the facts and information which go to the heart of the [employees’]
claim.” See Adams v. St. Francis Regional Medical Center, 955 P.2d
1169, 1187 (Kan. 1998) (ordering disclosure of some documents the
hospital claimed were privileged under Kansas’s peer review statute).
Therefore, we affirm the judge’s ruling that the testimony is admissible.
For similar reasons, we affirm the judge’s ruling revoking the pro-
tective order covering this testimony, as the Respondent has failed to
show good cause for the protective order’s issuance. See, e.g., Water-
bed World, 289 NLRB 808, 809 (1988).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
and to adopt the recommended Order as modified and set
forth in full below.5
The judge found, among other things, that the Re-
spondent violated Section 8(a)(1) by denying two em-
ployees’ requests for a union representative when they
appeared before its Nursing Peer Review Committee
(Committee), and violated Section 8(a)(5) and (1) of the
Act by failing and refusing to furnish information re-
quested by the Union relating to the peer review process.
For the reasons that follow, we adopt these findings.
I. THE EMPLOYEES’ REQUESTS FOR A UNION
REPRESENTATIVE
The judge found that, pursuant to NLRB v. J.
Weingarten,6 the Respondent violated Section 8(a)(1) by
denying employee requests for a union representative at
their Nursing Peer Review Committee meetings. On
exception, the Respondent contends that the employees
were not entitled to a Weingarten representative because
they did not reasonably expect that discipline could result
from their appearances before the Nursing Peer Review
Committee, and because the employees’ attendance was
voluntary. For the reasons that follow, we find no merit
in either contention.7
As explained more fully in the judge’s decision, the
record shows that, in May 2012,8 the Respondent sent
letters to unit employees Sherry Centye and Brenda
Smith notifying them that the Peer Review Diversion

Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by maintaining a rule prohibiting employees from discussing
with other employees discipline or ongoing investigations, we find that
employees would reasonably understand the Respondent’s prohibition
on disclosure of “reportable incidents” to include not only what tran-
spires at their committee meetings, as the judge found, but also discus-
sions about the events underlying the peer review investigations. We
further find that the Respondent has not established any legitimate basis
for prohibiting discussion of these matters.
4 We shall amend the judge’s conclusions of law to delete the
judge’s inadvertent reference to an “oral” rule prohibiting employees
from discussing discipline or ongoing investigations, as the record
shows that the rule at issue was a written rule.
5 We shall conform the Order to our standard remedial language and
shall substitute a new notice to conform to the Order as modified and in
accordance with the Board’s decision in Durham School Services, 360
NLRB No. 85 (2014).
6 420 U.S. 251 (1975).
7 For the reasons given by the judge, we also find without merit the
Respondent’s argument that allowing a Union representative to accom-
pany employees to Nursing Peer Review Committee meetings would
interfere with legitimate employer objectives.
8 All dates are in 2012 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Prevention Committee9 had reviewed cases in which they
may have “exhibited unprofessional conduct.” The let-
ters further explained that the Committee had preliminar-
ily determined that their conduct amounted to “Standard
of Care Level 4: grounds for disciplinary action . . . . that
must be reported to the Kansas Board of Nursing.” (em-
phasis in original).10 The letters notified the employees
of the date and time when the Committee would be dis-
cussing their cases, and notified them of “the opportunity
to speak with the Nursing Peer Review Committee if you
choose.”
Before the Committee was scheduled to meet about
her case, Centye contacted the Respondent’s risk manag-
er, Jennifer Cross, and asked if her union representative
could accompany her to the meeting. Cross denied the
request and told Centye that the meeting was closed to all
except the target of the investigation and the Committee
members. Centye attended and participated in the meet-
ing without a representative. Smith also attended her
peer review meeting without a union representative. At
the start of her meeting, after the Committee presented
Smith with a list of incidents that were the subject of
investigation, Smith asked Cross, “shouldn’t I have a
Union representative in here?” Cross replied that union
representatives were not allowed.
On exception, the Respondent repeats the argument it
made to the judge, that a Weingarten right was not impli-
cated here because the Hospital (as opposed to the State
licensing agency) does not discipline employees based
on the outcome of peer review meetings, and employees
would not reasonably expect that it would. We agree
with the judge that this contention is without merit. The
letters stated that the employees’ conduct had been pre-
liminarily determined to be grounds for disciplinary ac-
tion, and nothing in the letters indicated that any poten-
tial discipline was limited to that imposed by the licens-
ing agency. Because the employees reasonably expected
that discipline could result from their appearances before
the Nursing Peer Review Committee, they were entitled
to the presence of a Weingarten representative at the peer
review meeting.

9 According to the letters, the Peer Review Diversion Prevention
Committee was the committee that made the initial determination of the
potential level of violation of the standard of care.
10 As noted by the judge, Kansas Admin. Regs. Sec. 28–52–4(a) es-
tablishes four levels for standard of care determinations: “(1)
[s]tandards of care met; (2) standards of care not met, but with no rea-
sonable probability of causing injury; (3) standards of care not met,
with injury occurring or reasonably probable; or (4) possible grounds
for disciplinary action by the appropriate licensing agency.” A deter-
mination that a level 3 or 4 violation occurred must be referred to the
appropriate Kansas State licensing agency. Id.; K.S.A. Sec. 65–4922.
Moreover, even if the letters had clarified that only the
licensing agency could impose any resulting discipline,
the employees would still be entitled to a Weingarten
representative. Employees would reasonably understand
that the Committee’s obligation to refer the matter to the
Kansas Board of Nursing could lead to suspension or
revocation of their nurse’s licenses. Further, it is undis-
puted that the Respondent cannot employ nurses who
lack the requisite license; therefore, the Respondent
would have to suspend or discharge a nurse who lost her
license. Consequently, it is clear that employees in these
circumstances would reasonably understand that their
appearance before the Committee could possibly lead to
their suspension or discharge.
The Respondent further argues on exception that it did
not violate Centye’s or Smith’s Weingarten rights be-
cause they appeared at the meetings voluntarily. In sup-
port, the Respondent relies on the language in the letters
informing the employees of “the opportunity to speak
with the Nursing Peer Review Committee if you choose”
and that they “may also submit a written response.” This
contention is without merit. “Employees have a Section
7 right to union representation at interviews where there
is a reasonable belief that the employee will be disci-
plined.” El Paso Electric Co., 355 NLRB 428, 441
(2010) (citing Weingarten, supra). A valid request for
such representation is not limited to circumstances where
the employer specifically compels an employee’s attend-
ance at the interview; rather, the request is valid when the
employee reasonably believes that the interview can re-
sult in discipline. “[O]nce an employee makes such a
valid request for union representation, the employer is
permitted 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.
Under no circumstances may the employer continue the
interview without granting the employee union represen-
tation, unless the employee voluntarily agrees to remain
unrepresented after having been presented by the em-
ployer with the choices mentioned in option (3) above or
if the employee is otherwise aware of those choices.”
Postal Service, 241 NLRB 141, 141 (1979) (emphasis in
original) (footnotes omitted).
Here, both Centye and Smith requested the assistance
of a union representative after receiving the letters in-
forming them of the Committee meeting. Once the Re-
spondent denied their requests, it was obligated, at that
point, to give the employees the opportunity to cease
their participation in the meetings. The Respondent
failed to do so. That failure was unlawful irrespective of
whether the Respondent specifically compelled the em-
MENORAH MEDICAL CENTER 3
ployees to attend the meeting in the first place. See El
Paso Electric Co., supra, 355 NLRB at 440–441 (em-
ployee’s Weingarten rights attached when the employer
gave the employee an open-ended invitation to speak
after giving him discipline).11
In sum, Centye and Smith reasonably believed that
discipline was a possible outcome when they appeared
before the Nursing Peer Review Committee. Therefore,
by continuing their interviews after denying the employ-
ees’ requests for a union representative, the Respondent
violated Section 8(a)(1) of the Act.
II. THE UNION’S INFORMATION REQUEST
On June 1, after learning that Centye was scheduled to
appear before the Nursing Peer Review Committee, the
Union emailed the Respondent’s vice president of human
resources and human resources secretary, requesting the
following information:
 “Copy of discipline issued by Peer Review
Diversion Committee12 along with all docu-
ments related to the Hospital’s allegations
against Ms. Centye; documents utilized,
names of all members of the committee and
all individuals present for the meeting, includ-
ing title, department and brief description of
their job functions.”
 “Complete description of the Peer Review
Diversion Committee, to include inception of
committee, first meeting date, purpose of the
committee, members, how members or indi-
viduals serve on the committee, any related
state statutes outlining the function, scope and
role of the committee within a Hospital.”
 “Copy/record of where the Peer Review Di-
version Committee discipline was placed, that

11 In light of our finding that the employees did not knowingly
waive their right to a Weingarten representative, we find it unnecessary
to pass on the judge’s finding that the choice not to participate in the
meeting was illusory.
12 Undisputed evidence shows that the Peer Review Diversion
Committee does not exist. Nevertheless, the Respondent used that
name in its letters to employees, including a May 4, 2012 letter to em-
ployee Centye notifying her that she was the subject of an investigation
and thrice referring to the “Peer Review Diversion Committee” as the
entity conducting that investigation. The judge correctly found that
because the Respondent caused the Union’s confusion over the name, it
cannot rely on that confusion to avoid supplying the Union with the
requested information. Therefore, like the judge, we construe the Un-
ion’s requests to refer to the Nursing Peer Review Committee, and we
shall order the Respondent to furnish information relevant to that com-
mittee.
is, in personnel record or any other record(s)
within or outside the Hospital.”
Having not received a response, on June 5 the Union
submitted a second information request for the follow-
ing information:
 “The names of all nurses who have received
such notification [to appear before the Peer
Review Diversion Committee].”
 “Copies of any/all disciplines issued to any
nurses who have appeared before the ‘Peer
Review Diversion Committee’ and the loca-
tion of any disciplines that may have been is-
sued either within or outside Menorah Medi-
cal Center.”
 “All information regarding the nature of the
allegations against all nurses so summoned,
copies of investigatory information the hospi-
tal utilized to make allegations with respect to
nurses so summoned.”
The Union renewed its request via email on June 21,
and in person on June 26. On June 27, the Respondent
denied the Union’s request and asserted that it did “not
see the relevance of the union’s request for information
concerning the committee” and that “[a]ll business con-
ducted in the committee is confidential between the Hos-
pital and the State.”
In finding that the Respondent’s failure to furnish the
requested information was unlawful, the judge first de-
termined that the requested information was 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 dis-
criminatory investigations and discipline. Next, the
judge addressed the Respondent’s claim of confidentiali-
ty, and found that, even assuming the Respondent estab-
lished a legitimate confidentiality interest in the request-
ed information, the Respondent unlawfully failed to en-
gage in accommodative bargaining.
We agree with the judge that the information is rele-
vant.13 Unlike the judge, however, we additionally find

13 In their brief, the American Hospital Association and its co-amici
argue that the requested information is not relevant because there is no
duty to bargain over peer review procedures that are specified in state
law. The record shows, however, that the Respondent exercises sub-
stantial discretion in how it implements the state’s requirement that it
maintain a peer review process. Specifically, the Respondent drafts its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
that the Respondent failed to establish a legitimate and
substantial confidentiality interest in any of the requested
information and, on this basis, find that the Respondent’s
failure to furnish the information violated Section
8(a)(5).
A party asserting confidentiality has the burden of es-
tablishing that the information is confidential. The
Board then balances the confidentiality interests against
the union’s need for the information. Kaleida Health,
Inc., 356 NLRB No. 171, slip op. at 1, 6–7 (2011), citing
Detroit Edison Co. v. NLRB, 440 U.S. 301, 318–319
(1979). In determining whether an employer has estab-
lished a confidentiality claim, the Board has considered
State laws deeming certain information confidential. See
Kaleida Health, Inc., 356 NLRB No. 171, slip op. at 1,
6–7 (affirming an administrative law judge’s finding that
New York State’s general policy against disclosure of the
kinds of information covered by Section 6527(3) raised a
legitimate confidentiality interest with regard to certain
incident reports requested by the union in that case);
Borgess Medical Center, 342 NLRB 1105, 1105 (2004)
(“state law deeming certain information confidential may
be considered in assessing whether there is a legitimate
confidentiality interest in that information”).
Here, the Respondent urges the Board to find that the
requested information is confidential because the delib-
erations of a peer review body are protected by a Kansas
State law privilege. Kansas created, by statute, a privi-
lege exempting the reports, findings, and other records
submitted to or generated by peer review committees
from discovery, subpoena, or other means of legal com-
pulsion. See Kan. Stat. Ann. Sec. 65–4915(b).14 The
purpose of that privilege is to “‘increase the level of
health care in the state by protecting the deliberations of

own risk-management plan, selects the individuals who will serve on its
peer review committees, and exercises substantial discretion in deter-
mining which, if any, standard of care has been violated. In these cir-
cumstances, the peer review process is a mandatory subject of bargain-
ing, about which the Union properly requested information. See, e.g.,
Dickerson-Chapman, Inc., 313 NLRB 907, 942 (1994) (although
OSHA regulations required the employer to designate “competent
persons” to conduct daily inspection of jobsite excavations, such desig-
nations involved mandatory subjects of bargaining because the employ-
er had discretion over the selection of those individuals).
14 Kan. Stat. Ann. § 65–4915(b) provides:
Except as provided by K.S.A. 60–437 and amendments thereto and by
subsections (c) and (d), the reports, statements, memoranda, proceed-
ings, findings and other records submitted to or generated by peer re-
view committees or officers shall be privileged and shall not be sub-
ject to discovery, subpoena or other means of legal compulsion for
their release to any person or entity or be admissible in evidence in
any judicial or administrative proceeding. Information contained in
such records shall not be discoverable or admissible at trial in the form
of testimony by an individual who participated in the peer review pro-
cess.
peer review committees.’” Adams v. St. Francis Region-
al Medical Center, 955 P.2d 1169, 1186 (Kan. 1998)
(quoting Hill v. Sandhu, 129 F.R.D. 548, 550–551 (D.
Kan. 1990)). In construing the statute, however, the
courts have made clear that the privilege is “to be nar-
rowly, not expansively, construed,” and is aimed at
shielding the committee’s internal deliberative process.
Hill v. Sandhu, supra at 550.
The information requested by the Union that relates to
the structure and function of the Committee and its
members clearly does not touch on the Committee’s de-
liberations, which the statute seeks to protect from dis-
closure. See Hill v. Sandhu, supra (Kansas’s peer review
privilege was “designed to protect the deliberations and
the documents created by the peer review committee and
not statements of fact or information supplied to the
committee for review.”) (emphasis in original); Adams
v. St. Francis Regional Medical Center, supra, 955 P.2d
at 1185 (same). Similarly, the requested information
relating to allegations against nurses summoned by the
Committee and information the Committee utilized in
making the allegations refers to reports and materials
generated outside the Committee’s deliberative process
which are not included within the statute’s protection.15
Hill v. Sandhu, supra (finding that statute’s “language
clearly does not include reports reviewed by the commit-
tee,” as the statute “says nothing about protecting evi-
dence and information . . . unless that information is re-
flective of the deliberations of the peer review commit-
tee.”).16 Therefore, the Respondent has plainly failed to
establish any basis for failing to furnish this information.
The Union’s request for the copies of employee disci-
pline issued by the Committee presents a closer issue.
The record establishes that these documents were gener-
ated by the Committee as part of the Respondent’s peer
review process. Thus, the documents appear to be cov-
ered by the Kansas statute. That does not, however, end
the inquiry, because the party asserting confidentiality
also has the burden of proving that its confidentiality
interest in the information sought outweighs its bargain-
ing partner’s need for the information. Howard Indus-
tries, 360 NLRB No. 111, slip op. at 2 (2014); Northern

15 There is nothing in the record to suggest that this information was
prepared exclusively for use by the Committee outside of the Hospital’s
regular course of business.
16 We find unavailing our dissenting colleague’s contention that Ad-
ams v. St. Francis Regional Medical Center, supra, 955 P.2d at 1187–
1188 demonstrates that this information is privileged by the Kansas
statute. That case specifically held that only materials “generated by
the peer review committee, detailing the committee’s decision-making
process, the officers’ or committee’s conclusions, or final decisions”
were not subject to disclosure. It did not exempt from disclosure the
allegations and investigatory materials supplied to the committee.
MENORAH MEDICAL CENTER 5
Indiana Public Service Co., 347 NLRB 210, 211 (2006);
Washington Gas Light Co., 273 NLRB 116, 116 (1984).
Indeed, the proponent of confidentiality must establish
that its interest outweighs the other party’s need for the
information even when that interest is based on a state
statute. See Kaleida Health, Inc., supra,17 356 NLRB
No. 171, slip op. at 6–7; Howard University, 290 NLRB
1006, 1007 (1988). For the following reasons, we find
that the record fails to show that the Respondent’s confi-
dentiality interest outweighs the Union’s need for the
information.
As noted above, the Kansas statute seeks to protect the
deliberations of a peer review committee in order to im-
prove the quality of health care. The disciplinary letters
requested by the Union, however, were limited in scope
and did not trench on the Committee’s internal delibera-
tive processes. These letters, two of which are included
in the record,18 do not include any specifics about the
Committee’s actual deliberations, any patient infor-
mation or any details about the practice that purportedly
violated the standards of care.19 Given this lack of detail,
disclosure of the disciplinary letters runs little risk of
interfering with the state’s interest in promoting the kind
of frank discussion of patient care that is necessary to
maintain the integrity of the Committee’s deliberations.20

17 In Kaleida Health, the Board found that although a state statute
created a confidentiality interest with respect to certain requested inci-
dent reports produced for the respondent’s quality assurance program,
the union’s need for this information outweighed that confidentiality
interest. We recognize that, unlike the Kansas statute, the state statute
at issue in Kaleida Health had a specific exception, preventing disclo-
sure of quality assurance documents “except as provided by any other
provision of law.” Id. However, the absence of such a proviso in the
Kansas statute does not compel the conclusion that the prohibition on
disclosure of peer review materials is absolute. Indeed, as noted above,
in Adams, supra, the Kansas Supreme Court also recognized that the
privilege was not absolute, as it weighed the state’s interest in creating
the privilege against the fundamental right of the plaintiffs to have
access to all the relevant facts, and concluded that the plaintiffs had the
right to some of the requested documents. 955 P.2d at 1187–1188.
18 The letters the Committee issued to Centye and employee Brenda
Smith are in evidence.
19 Kansas has established four levels of violations of the appropriate
standard of care. See Kan. Admin. Regs. Sec. 28–52–4(a). Under the
Respondent’s risk-management plan, an initial peer review committee
makes an initial determination of the potential level of violation. Then,
after an investigation which includes hearing from the nurse being
investigated, the Nursing Peer Review Committee makes a final deter-
mination of whether there is sufficient evidence to sustain a complaint
to the Kansas State Board of Nursing concerning the nurse’s failure to
meet a particular standard of care.
20 This lack of detail also distinguishes the requested disciplinary
letters from the union’s information request in Borgess Medical Center,
supra, 342 NLRB at 1105–1106. There, the union requested the hospi-
tal’s incident reports, which included the actual details of patients’
treatments and the problems that occurred. See id. at 1105 fn. 2. Fur-
thermore, in Borgess, the Board stated that “state law deeming certain
information confidential may be considered in assessing whether there
Our dissenting colleague contends that not only the re-
quested discipline letters, but also records created for and
submitted to the Committee,21 are privileged from disclo-
sure. Although these documents do not reveal any spe-
cifics about the Committee’s actual deliberations, he
nonetheless claims that the Union’s requests for these
documents “entrench upon the deliberative process of the
Committee, or pose a clear and present danger of doing
so.” He provides no explanation of, and relies on no
evidence showing, how that might occur. Instead, by
relying on the phrase in the Kansas statute referring to
records submitted to the Committee, the dissent essen-
tially posits that the policies of the Kansas statute neces-
sarily require accommodative bargaining over these doc-
uments. In other words, a union otherwise entitled to
certain information when representing employees facing
possible disciplinary action is only entitled to accommo-
dative bargaining over this material, even though it does
not reveal any specifics of a committee’s deliberative
process. This interpretation of the statute, in our view,
does not adhere to our law, which requires the proponent
of confidentiality to establish that its interest outweighs
the other party’s need for the information. Only when
the balance weighs in favor of confidentiality would ac-
commodation be appropriate. Kaleida Health, supra.
Moreover, the dissent’s interpretation is at odds with
the courts’ interpretations of the statute. As noted above,
in Hill v. Sandhu, supra, the court found that documents
submitted to a hospital for a determination of staff privi-
leges were not protected by the Kansas peer review privi-
lege. Rather, the court held that only the “information or
documents which were generated by or that ‘delve into
the mind’ of the peer review committee” were covered
under the statute. 129 F.R.D. at 550. Similarly, in Ad-
ams v. St. Francis Regional Medical Center, supra, the
Kansas Supreme Court stated its agreement with the
analysis of Hill v. Sandhu, and held that the analysis is to
be used as guidance in construing the Kansas statute.
955 P.2d at 1187. The court found, among other things,
that the peer review statute did not privilege certain doc-
uments that were generated by a nursing review board as
part of its investigation of a complaint against a nurse.
955 P.2d at 1183.22 Inasmuch as none of the documents

is a legitimate confidentiality interest in that information.” Id. at 1105
(emphasis added).
21 Thus, in addition to the disciplinary letters, our colleague would
also find exempt from disclosure the documents related to the allega-
tions against Centye, and “[a]ll information regarding the nature of the
allegations against all nurses so summoned, copies of investigatory
information the hospital utilized to make allegations with respect to
nurses so summoned.”
22 Our colleague further misconstrues Adams in other respects. Sig-
nificantly, he essentially ignores the main point of the court’s decision,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
at issue delve into the collective minds of those engaged
in the deliberations, the dissent’s interpretation of the
statute in this Section 8(a)(5) case expands the breadth of
the statute beyond that of the courts with jurisdiction
over the state law. 23 In any event, as explained above,
the Board views the privilege in the state statute not as
the dispositive factor, but rather as a consideration to be
balanced against a union’s right, under the National La-
bor Relations Act, to relevant information. Kaleida
Health, supra. Here, that balance weighs in favor of the
Union’s right to the requested information.
In view of the fact that the two disciplinary letters in
the record do not disclose any specifics about the Com-
mittee’s deliberations, any patient information or details
of the infractions considered by the Committee, the dis-
closure of these letters to the Union presents little risk of
interfering with the state’s interest of promoting frank
and open discussion. The Union’s need for the infor-
mation, in contrast, is considerable, as the documents and
the information they contain are necessary for the per-
formance of its function in policing the collective-
bargaining agreement. As the judge found, the Union
needed the disciplinary documents to compare incidents
that cause nurses to become targets of investigations that
can result in the revocation of a license and ultimately
termination from employment. This information will
enable the Union to properly determine whether to file a
grievance on behalf of those who have been targeted for
investigation by the Committee. Thus, the documents
are essential to the Union’s “obliga[tion] [] to police and
administer the contract.” See Ohio Power Co., 216
NLRB 987, 992 (1975), enfd. 531 F.2d 1381 (6th Cir.
1976); see also Hekman Furniture Co., 101 NLRB 631,

that the interest in confidentiality is weighed and balanced against the
competing interests. Thus, his attempt to diminish the significance of
the balancing in Adams, on the basis that the countervailing need in that
case—unlike here implicated a plaintiff’s due process rights, ignores
the bigger picture: the recognition that the privilege is to be weighed
and balanced against legitimate countervailing interests. Finally, we
find no force in our colleague’s contention that the scope of the court’s
order in Adams is actually more in line with his view. Unlike that
court’s order, where the lower court was directed to conduct an in cam-
era inspection and permit the plaintiff access to the relevant facts, our
colleague would leave the Union’s statutory right to relevant infor-
mation to the accommodative bargaining process—and that clearly is a
distinct process from an in camera review by a court and clearly has
different implications.
23 Our dissenting colleague accuses us of engaging in unwarranted
speculation about the risk that disclosure of the letter would have on the
Committee’s deliberations, yet his dissent speculates that disclosure of
the letters and documents relied on by the Committee will necessarily
“chill the ‘frank and open discussions’ of health care providers.” Simi-
larly, he accuses us of “adding our own gloss to the statute,” when he
has substituted an expansive interpretation of what the statute should
require for the courts’ narrow construction of it.
641 (1952) (policing and administration of the contract is
an “essential[] facet of the Union’s legitimate func-
tions”), enfd. 207 F.2d 561 (6th Cir. 1953). In these cir-
cumstances, the Union’s need for the requested docu-
ments outweighs the Respondent’s confidentiality con-
cerns arising from their disclosure. Therefore, as with
the rest of the requested information, the Respondent was
obligated to furnish the disciplinary documents to the
Union.
Our colleague’s dismissive consideration of the Un-
ion’s interest in the requested information does an injus-
tice to the purposes of the National Labor Relations Act.
He relies on the same argument, rejected in Section I,
above, that the Respondent posited to support its denial
of a Weingarten right during the Committee’s meetings,
i.e., that the Committee’s action does not trigger the Re-
spondent’s own disciplinary process but rather may lead
to the revocation of a nurses state license. Of course, this
argument ignores the fact that the Committee’s meetings
are facilitated by the Respondent’s risk manager, the
Committee’s disciplinary letters state that the employee’s
conduct has been preliminarily determined to be grounds
for disciplinary action and, most importantly, the Com-
mittee’s findings could lead to a nurse’s suspension or
discharge due to a loss of a license.24 Because the Com-
mittee’s work can lead to the Respondent’s suspension or
discharge of an employee, the Union’s interest in, and
need for, the requested material is indeed considerable.
For these reasons, we find that the Respondent violated
Section 8(a)(5) and (1) by failing to furnish the requested
information to the Union.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
“3. By promulgating, maintaining, and enforcing a rule
prohibiting employees from discussing with other em-
ployees discipline or ongoing investigations, the Re-
spondent violated Section 8(a)(1).”
ORDER
The National Labor Relations Board orders that the
Respondent, Midwest Division–MMC, LLC d/b/a Meno-
rah Medical Center, Overland Park, Kansas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from

24 We find no merit in our colleague’s contention that the existence
of an employee’s Weingarten right necessarily weakens the Union’s
statutory interest in the information. The Weingarten right is grounded
in the right of employees to act in concert for mutual aid and protection.
NLRB v. J. Weingarten, 420 U.S. 251, 256-257 (1975). This limited
right in no way satisfies, even in part, the Union’s need for relevant
information essential to its obligation to police and administer the con-
tract, and to properly determine whether a grievance should be filed.
MENORAH MEDICAL CENTER 7
(a) Promulgating, maintaining, and enforcing a confi-
dentiality rule prohibiting employees from discussing
with other employees discipline or ongoing investiga-
tions.
(b) Refusing to bargain collectively with the National
Nurses Organizing Committee—Kansas/National Nurses
United, affiliated with National Nurses Organizing
Committee/National Nurses United (the Union) by fail-
ing and refusing to furnish it with requested information
that is necessary and relevant to the Union’s performance
of its functions as the exclusive collective-bargaining
representative of the employees in following unit:
All full-time, part-time and PRN registered nurses em-
ployed by Menorah Medical Center, excluding nurse
educators, regularly assigned charge nurses, Vascular
Lab Techs, infection control/employee health nurses,
risk management/performance improvement coordina-
tors, administrative employees, confidential employees,
managerial employees, guards and supervisors, as de-
fined in the Act, and all other employees.
(c) Denying the requests of employees for union repre-
sentation during Nursing Peer Review Committee meet-
ings or any other investigatory meetings which they rea-
sonably believe may result in discipline.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days of the Board’s Order, revise or re-
scind the confidentiality rule prohibiting employees from
disclosing information concerning reportable incidents.
(b) Furnish employees with an insert for the current
risk management plan that (1) advises that the unlawful
provision has been rescinded, or (2) provides a lawfully
worded provision on adhesive backing that will cover the
unlawful provision; or publish and distribute to employ-
ees revised risk management plans that (1) do not contain
the unlawful provision, or (2) provide a lawfully worded
provision.
(c) Furnish to the Union in a timely manner the infor-
mation requested by the Union on June 1 and 5, 2012.
(d) Within 14 days after service by the Region, post at
its Overland Park, Kansas facility copies of the attached
notice marked “Appendix.”25 Copies of the notice, on
forms provided by the Regional Director for Region 17,

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since May 1, 2012.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 17 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 27, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, concurring and dissenting in part.
My colleagues find the Respondent violated Section
8(a)(5) and (1) by failing to furnish certain requested
information, including written employee disciplines is-
sued by the Nursing Peer Review Committee and infor-
mation submitted to the Committee, which are protected
from disclosure under a peer review privilege statute. I
disagree with the short shrift given by the majority to the
policies behind such statutes, and their consequent re-
fusal to give such policies significant weight in assessing
this case. The Respondent has a legitimate confidentiality
interest in maintaining the integrity of the peer review
process by protecting the candor required for peer review
to effectively function, which, in turn, safeguards and
improves public health outcomes. I find that this inter-
est, in regard to certain of the information requests, far
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
outweighs the Union’s need for statutorily protected
documents, and thus the Respondent’s typical obligation
to disclose the documents upon the Union’s information
request did not apply. However, the Respondent did not
offer to engage in accommodative bargaining over these
information requests, but simply denied them. Thus, I
would find that the Respondent violated Section 8(a)(5)
and (1) for the separate reason of failing to engage in
accommodative bargaining concerning these privileged
documents. The remedy for that violation, however,
would be a bargaining order, and not delivery of the doc-
uments.1
Just as all states have done in some form, Kansas has
determined that adequately protecting public health re-
quires a candid exchange of information among
healthcare professionals in peer review committees and
that nondisclosure is required to ensure uninhibited par-
ticipation. As explained below, while I compliment my
colleagues in attempting to interpret and apply the State’s
peer review privilege as it would be applied by a Kansas
court under Kansas law, their ultimate finding that the
Respondent had a duty to furnish all the requested infor-
mation about the peer review committees fails to ade-
quately weigh the State’s paramount interest in regulat-
ing and improving the delivery of health care and im-
properly second-guesses the State’s determination that
nondisclosure of some information is fundamental to its
regulatory scheme.2 It is also not on all fours with the

1 I agree with my colleagues’ finding of a Weingarten violation, in
this specific case. As my colleagues relate, there is no dispute that
these particular peer review proceedings may ultimately result in loss of
the nurse’s license, that the Respondent cannot employ nurses who lack
the requisite license; and that, therefore, the Respondent would have to
suspend or discharge a nurse who lost his or her license. Because of
this (albeit indirect) chain of “discipline causation,” the accused nurse
in this case would have a reasonable belief that peer review proceed-
ings could result in discipline from Respondent.
2 Notably, Hill v. Sandhu, 129 F.R.D. 548 (D. Kan. 1990), relied on
by my colleagues, was decided in 1990, and Kan. Stat. Ann. § 65–
4915(b) was amended in relevant part in 1997. At the time the district
court interpreted Hill v. Sandhu as it did, § 65–4915(b) read, in perti-
nent part:
. . . reports, statements, memoranda, proceedings, findings and other
records of peer review committees or officers shall be privileged and
shall not be subject to discovery, subpoena or other means of legal
compulsion for their release to any person or entity or be admissible in
evidence in any judicial or administrative proceeding.
After the 1997 amendments, Sec. 65–4915(b) reads in pertinent part,
that “reports, statements, memoranda, proceedings, findings and other
records submitted to or generated by peer review committees or offic-
ers shall be privileged …” (emphasis added). That is the language at
issue here, but it is not the language that the Hill v. Sandhu court was
construing. However, my position here is indeed consistent with Hill v.
Sandhu (and Adams v. St. Francis Regional Medical Center, 955 P.2d
1169 (1998)) insofar as I agree that the statute does not create a privi-
lege for “evidence and information” relevant to conduct that is also the
State and Federal decisions they rely on, as discussed
below.
The state of Kansas “recognizes the importance and
necessity of providing and regulating certain aspects of
health care delivery in order to protect the public’s gen-
eral health, safety and welfare,” and its legislature identi-
fied the “[i]mplementation of risk management plans and
reporting systems as required by K.S.A. 65–4922, 65–
4923 and 65–4924 and peer review pursuant to K.S.A.
65–4915 and amendments thereto to effectuate this poli-
cy.” Kan. Stat. Ann. § 65–4929. Under Kansas law, risk
management plans include professional practices peer
review committees that are required to investigate report-
able incidents and take appropriate actions. Peer review
committees have a duty to “report to the appropriate state
licensing agency any finding by the committee that a
health care provider acted below the applicable standard
of care which action had a reasonable probability of
causing injury to a patient, or in a manner which may be
grounds for disciplinary action by the appropriate licens-
ing agency, so that the agency may take the appropriate
disciplinary measures.” Kan. Stat. Ann. § 65–
4923(a)(1), (2).
Statutory medical peer review privileges in general are
designed to safeguard against the disclosure of infor-
mation acquired and/or generated by peer review com-
mittees. By guaranteeing that information will be kept
privileged, the peer review committees can provide a
forum in which medical professionals may candidly and
openly review the quality of care and work to reduce
medical errors without fear of repercussions—
specifically, that what occurs in committee may be re-
vealed and expose them to liability or litigation for
healthcare performance failures, or that statements made
in deliberations could implicate broader issues that could
be used against the Respondent in litigation and chill the
candor necessary for peer review to be effective. In the
case of Kansas, its statutory law imposes a strict nondis-
closure obligation on the peer review process. Kan. Stat.
Ann. § 65–4915(b) provides:
Except as provided by K.S.A. 60–437 and amendments
thereto and by subsections (c) and (d), the reports,
statements, memoranda, proceedings, findings and oth-
er records submitted to or generated by peer review
committees or officers shall be privileged and shall not
be subject to discovery, subpoena or other means of le-
gal compulsion for their release to any person or entity
or be admissible in evidence in any judicial or adminis-
trative proceeding. Information contained in such rec-

basis of a referral to the committee merely because such information is
also included in hospital records. Hill v. Sandhu, above at 550.
MENORAH MEDICAL CENTER 9
ords shall not be discoverable or admissible at trial in
the form of testimony by an individual who participat-
ed in the peer review process.
The applicable statute unequivocally states that all rec-
ords submitted to or generated by a peer review commit-
tee are protected from disclosure. However, I believe my
colleagues correct insofar as they find that the Kansas
courts have not interpreted the statute, for purposes of
malpractice lawsuit discovery, in accordance with its
literal meaning. Specifically, the Kansas courts would
not protect “all records submitted to” the committee in
those circumstances.3 The courts appear to have inter-
preted the statute so as not to cover documents created
independent of the peer review process or facts that oc-
curred prior to that process i.e., a hospital cannot protect
documents and facts from disclosure in discovery simply
by submitting them to the peer review process. Nor
would the statute protect the basic facts concerning how
the general peer review system at the Respondent works,
or who was affected by it, even under a literal interpreta-
tion. Thus, I agree with my colleagues that most of the
information requested by the Union would not be pro-
tected by the peer review privilege and thus should have
been turned over to the Union, because there could be no
real claim of confidentiality.
But my colleagues err in failing to find that only cop-
ies of employee discipline issued by the Committee are
protected from disclosure by Kansas law. The protective
reach of that law extends beyond that. See Adams v. St.
Francis Medical Center, 264 Kan. 144, 955 P.2d 1169,
1187–1188 (1998) (“The information generated by the
peer review committee, detailing the committee’s deci-
sion-making process, the officers’ or committee’s con-
clusions, or final decisions, is not subject to discovery by
the plaintiffs.”). Not only would I find that the employee
disciplines are unquestionably privileged under the con-
trolling interpretation of the statute, but I would addi-
tionally find that any records both specifically created for
and submitted to the Committee for purposes of its
decisionmaking process must logically be covered under

3 Here, I consider the Kansas Supreme Court’s determination of the
statutory meaning controlling. I would find that a union’s grievance-
related or contract-administration information request, because both are
protected under our national law, to be at least on the same footing as a
state malpractice lawsuit for purposes of weighing against the state
privilege. That being said, the Adams court was concerned with ac-
commodating the statute to a constitutional due process right potential-
ly infringed upon by the lower court’s application of statutory disclo-
sure provisions (including one at issue here). Thus, that court’s limita-
tion on the language of the peer review statute occurred in a very dif-
ferent context than the instant case.
the statute as well.4 Therefore, I more specifically con-
clude that, at a minimum, the following requested infor-
mation is statutorily protected from disclosure: From
the June 1, 2012 request, the“[c]opy of discipline issued
by Peer Review Diversion Committee.” And, also from
the June 1, 2012 request, “ all documents related to the
Hospital’s allegations against Ms. Centye; documents
utilized;” and, from the June 5 request, “all information
regarding the nature of the allegations against all nurses
so summoned, copies of investigatory information the
hospital utilized to make allegations with respect to nurs-
es so summoned,” to the extent that any of the above-
mentioned information was created for the purpose of
peer review and then submitted to the Committee or was
in fact created by the Committee itself. Given the ex-
treme breadth of the Union’s requests in this case, which
my colleagues unfortunately overlook, there is no ques-
tion that these requests entrench upon the deliberative
process of the Committee, or pose a clear and present
danger of doing so.
My colleagues contend that my interpretation of the
statute is “at odds” with that of the Kansas Supreme
Court and federal district court decisions cited above.
Not at all: like the courts, I would not privilege facts and
information merely because they were included in previ-
ously-prepared documents that later were submitted to
the committee for review. And contrary to my col-
leagues’ implication, the Adams court did not find that
the sought-after investigatory materials at issue there
were subject to wholesale disclosure. Rather, the court
held that the lower court’s duty was to “conduct an in
camera inspection and craft a protective order which will
permit the plaintiffs access to the relevant facts” (empha-
sis added) and that the court should “redact that which is

4 Privileged information, under Adams, would not include infor-
mation generated by a hospital as a matter of course for its own purpos-
es, e.g. internal discipline, even if that information was subsequently
submitted to a peer review committee. Notably, the controlling Kansas
Supreme Court decision in Adams discussed Hill v. Sandhu, above, and
several other cases, but did not hold that the peer review privilege could
never apply to any class of information submitted to the peer review
committee, simply because of the fact of its submission. I believe that
information generated because of a state’s peer review requirements,
for the specific purpose of being submitted to the applicable peer re-
view committee for its deliberative consideration, therefore, would still
be covered by the privilege in Kansas. Although I recognize that one
could interpret Adams as holding that the privilege is totally inapplica-
ble to all documents submitted to the Committee by other parties, as the
majority apparently does, I find such interpretation sweeps too far. It
would defeat the purpose of the statute if a peer review process required
certain documents to be generated but at the same time opened them up
to full disclosure. Moreover, if a committee’s practice is to require that
certain documents be kept and then submitted, the committee itself has
“generated” them under the statute in the sense that it caused their
creation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
protected and grant plaintiffs access to the portions [of
hospital records] containing the relevant facts.” Id. at
1187–88 (emphasis added). Thus, the scope of the order
in Adams is far more in line with my view than my col-
leagues contend—while certain material was not neces-
sarily subject to disclosure, the defendant there could not
withhold facts simply because they were included in ar-
guably privileged documents. And such an accommoda-
tion may be what the parties here would agree to under
my position, discussed below, which would require ac-
commodative bargaining.
Further, in balancing the competing confidentiality and
union representational issues with respect to the request-
ed discipline records, I believe my colleagues have not
given enough weight to the fact that the Kansas “legisla-
ture granted a peer review privilege to health care pro-
viders to maintain staff competency by encouraging
frank and open discussions and thus improving the quali-
ty of medical care in Kansas.” Adams, above at 1187.
Respect for the choice of the state’ legislature dictates
that we use caution in evaluating the impact of infor-
mation requests. Otherwise, the sum effect of our rulings
will chill the “frank and open discussions” of health care
providers, not just in Kansas, but across the nation.5 Ac-
cordingly, I find that the Respondent’s legitimate confi-
dentiality interest in the information covered by the peer
review privilege statute–including both the disciplines
issued and the additional information I find to be cov-
ered—outweighs the Union’s interest in having this in-
formation.
Peer review committees are part of the State’s regula-
tory apparatus for overseeing its licensed healthcare pro-
fessionals and the overall adequacy of healthcare in the
State of Kansas. Committees are not directly concerned
with the employee-employer relationship but with the
employee’s status with the licensing agency. The com-
mittees are not representatives of, agents of, or arms of
management. If a committee refers a finding or recom-
mendation to the State, the State reviews those findings
de novo. There is no evidence that the committees are
themselves involved in or trigger the Respondent’s own
disciplinary process, although their participation can
eventually lead to a situation where the State revokes a
license and the Respondent would have to terminate the
affected nurse. Because the committees do not represent

5 As stated above, the Adams court was specifically concerned with
the plaintiff’s constitutional due process rights in wrongful-death mal-
practice litigation, a far different posture than what we have at this
stage of the dispute where there is no claimed injury in fact. Thus the
court applied the statute in a manner that in that context would not
contravene the plaintiff’s constitutional due process right to seek a
remedy for medical injuries. Id. at 1187.
the Respondent and because their findings are submitted
to the State as part of the regulatory scheme, the Union’s
interest in information about the committee’s internal
deliberations is limited. Peer review does not directly
implicate the Respondent’s disciplinary process nor ei-
ther party’s obligations under the collective-bargaining
agreement. Rather, the Union’s interest derives, at most,
from its suspicion that the Respondent may somehow
meddle with or discriminatorily refer incidents for inves-
tigation and its general interest in ensuring a transparent
disciplinary process. But particularly where there is no
direct adverse employment action, the Union’s interest in
the internal workings of committee investigations is
weak. It is even weaker where, as here, the affected em-
ployee has a Weingarten right to have a union repre-
sentative for his or her personal interview with the com-
mittee.6
The State and Respondent’s interests in nondisclosure
are, in contrast, overwhelming and cut to the core of the
entire regulatory scheme.7 Healthcare professionals rea-
sonably concerned about liability or exposure to litiga-
tion based on what occurs in the committee would neces-
sarily be inhibited from participating and may refrain
from statements that could be used against the Respond-
ent in future litigation about the delivery of health care.
Whether that inhibition takes the form of a lack of candor
or a reluctance to participate at all, it would severely un-
dercut the public health concerns animating the statute.
Potential participants in the committees would also be
reasonably concerned that disclosure of information
about the committees and their deliberations would result
in a much broader loss of privilege. In this respect, to-
day’s decision has ramifications that go beyond the cur-
rent case as it calls into question the nondisclosure pro-
tections afforded committee participants in all states and
would broadly inhibit participation in future committees
nationwide. In sum, the nondisclosure requirements are
fundamental to the State’s regulatory purpose and police
powers.
Further, insofar as the Employer is involved in initiat-
ing an investigation, the right to investigate suspected

6 I believe that any state law peer review privileges and nondisclo-
sure obligations would apply to this Weingarten representative for
purposes of state court litigation.
7 See Kan. Stat. Ann. §65–4914 (“Public policy relating to provision
of health care: It is the declared public policy of the state of Kansas
that the provision of health care is essential to the well-being of its
citizens as is the achievement of an acceptable quality of health
care…”); Kan. Stat. Ann. § 65-4929 (peer review effectuates this public
policy); Bredice v. Doctor's Hospital., Inc., 50 F.R.D. 249, 250 (D.D.C.
1970), affd. 479 F.2d 920 (D.C. Cir. 1970) (“These committee meet-
ings, being retrospective with the purpose of self-improvement, are
entitled to a qualified privilege on the basis of this overwhelming public
interest.”) (emphasis added).
MENORAH MEDICAL CENTER 11
performance failures is a management prerogative (and
here it is a duty) not subject to bargaining with the Un-
ion. Unless there is an adverse employment action re-
sulting from the committee’s deliberations, rather than an
independent disciplinary review process undertaken by
management, the Union’s limited interest is far out-
weighed by the State’s interest in maintaining the regula-
tory scheme.8
I also find that a state law defining information as con-
fidential or protected from disclosure is relevant when
balancing an Employer’s claim of confidentiality against
a union’s need for information. Thus, in Borgess Medi-
cal Center, 342 NLRB 1105 (2004), the union requested
“incident reports” that were relevant to the union's prepa-
ration for an arbitration proceeding. The hospital refused
to supply the incident reports on the grounds that they
were confidential and protected from disclosure under
Michigan's peer review statutes. Based on the language
of the Michigan statute, and its public policy to ensure
the best healthcare possible by protecting such docu-
ments from disclosure, the Board held that the hospital
established a legitimate confidentiality interest in the
requested incident reports. Id. at 105–106. The Board
did not find that the hospital violated Section 8(a)(5) by
failing to turn over the incident reports. Id. at 106 fn.6.
In contrast, in Kaleida Health, Inc., 356 NLRB No.
171 (2011), the Board found a Section 8(a)(5) violation
for the respondent’s failure to provide incident reports
that were confidential under a state statute. Id. Although
noting that the information in Borgess was “strikingly
similar” to the disputed information, and that the statute
indicated that such documents were considered confiden-
tial, the Board found that the union’s need for the infor-
mation outweighed the general policy of confidentiality
where the applicable statute prevented disclosure of the
incident reports “except as hereinafter provided or as
provided by any other provision of law.” Id., slip op. at
5. See also LaGuardia Hospital, 260 NLRB 1455, 1463
(1982) (statutory confidentiality is not construed as abso-
lute when the statute states that records are confidential
“except as otherwise provided by law or a third-party
contract”).
The Kansas statute has no exception to the peer review
privileges that are comparable to those at issue in
Kaleida and LaGuardia Hospital. As in Borgess, requir-
ing the Respondent to provide the privileged information

8 That being said, insofar as the peer review process may become en-
twined in the disciplinary process, I agree with my colleagues that the
Respondent must offer to bargain an accommodation that permits it to
adhere to statutory nondisclosure requirements while reasonably as-
suaging Union concerns about transparency in the disciplinary process.
requested by the Union would breach a legitimate and
substantial interest established by the state legislature for
the health, safety and welfare of the public. Additional-
ly, the purpose of the Respondent’s peer review process
is to establish a process by which nurses can review qual-
ity of care issues involving other nurses and make deter-
minations regarding whether certain incidents need to be
referred to the State's Board of Nursing. The public in-
terests addressed by these policies vastly outweigh the
Union’s need for the privileged documents. Therefore,
the Respondent did not violate the Act by its refusal to
provide certain information regarding the peer review
process to the Union. Finding otherwise undermines the
peer review process and the State’s legitimate interests in
regulating its licensed healthcare providers and ensuring
the best and safest patient care.9 Thus, the requested
information comprising records submitted to and/or gen-
erated by the Committee is expressly statutorily protect-
ed from disclosure. I find that the Kansas state peer re-
view statutes’ confidentiality provisions, protecting the
peer review process and the public interest, and the Re-
spondent’s interest in maintaining the confidentiality of
its peer review information outweigh the Union’s inter-
ests to this privileged information subject to the limita-
tions as described above, and that the Respondent did not
violate Section 8(a)(5) by refusing to provide the Union
with the requested information upon its demand.
That does not end the matter. Despite this conclusion,
with regard to the privileged information, I would find
that the Respondent did not bargain in good faith based
on a different ground—by failing to engage in accom-
modative bargaining concerning that information. There
is no absolute privilege from disclosure at issue here.

9 My colleagues also improperly speculate that the disclosure of dis-
ciplinary letters “runs little risk of interfering with the state’s interest in
promoting the kind of frank discussion of patient care” necessary to
effectuate the peer review process. Although I applaud my colleagues
in looking to the Kansas Supreme Court and other court decisions to
determine how the statute has actually been interpreted, see infra, it is
not within our competence or authority to further qualify the statutory
requirements by adding our own gloss to the statute. That being said,
and as explained above, my position on the scope of the privilege is
consistent with the concerns expressed by those courts. As for my
colleagues’ contention that I have not explained why providing the
requested information would chill frank discussion in the future, the
Kansas State legislature already made this determination—particularly
in amending the statute in 1997. And, the Kansas Supreme Court ex-
pressly recognized this connection between the privilege and open
discussion. Adams, above, at 1187. (The “legislature granted a peer
review privilege to health care providers to maintain staff competency
by encouraging frank and open discussions . . .”). I also think the con-
nection reflects common sense: parties preparing documents for peer
review committees would be more likely to provide candid assessments
if they could reasonably expect that such assessments would not be
used against them or their employer in future litigation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Even when an employer demonstrates a substantial con-
fidentiality interest that outweighs the requesting union’s
legitimate interest in having requested information, the
employer cannot simply ignore a union’s request for rel-
evant information. It must timely respond and seek an
accommodation of its confidentiality concerns and the
union’s need for the requested information, under its
bargaining obligation. The burden is on the employer to
offer to bargain over an accommodation, giving the “the
parties an opportunity to bargain regarding the conditions
under which the Union's need for relevant information
could be satisfied with appropriate safeguards protective
of the Respondent’s confidentiality concerns.” Metro-
politan Edison Co., 330 NLRB 107, 109 (1999). If the
parties cannot resolve their differences in good faith bar-
gaining, the issue may return to the Board for final reso-
lution. This process may not be as expeditious or defini-
tive as a judge’s ruling after in camera inspection of doc-
uments, but it is in keeping with longstanding precedent
holding that “first allowing these parties an opportunity
to adjust their differences . . . best effectuates the Nation-
al Labor Relations Act policy of maintaining industrial
peace through the resolution of disputes by resort to the
collective-bargaining process.” Minnesota Mining &
Mfg., 261 NLRB 27, 32 (1982).
As found by the judge, the information sought by the
Union was relevant and the Respondent failed to engage
in the requisite accommodative process. The evidence is
clear that the Respondent took over a month to respond
even respond to the Union’s request, and did nothing
more than claim confidentiality in responding to the re-
quest. The Respondent refused to respond to any specif-
ic questions or information and simply denied the re-
quests, making no attempt to accommodate the parties’
respective interests. None of the Respondent’s actions
fulfilled its obligation to offer and seek accommodations
of the privileged information sought by the Union’s re-
quests.
In conclusion, I would find that the Respondent violat-
ed Section 8(a)(5) and (1) by failing to adequately offer
to accommodate its confidentiality interests and the Un-
ion’s need in the requested privileged information. In
order to appropriately remedy this violation, I would
order that the Respondent engage in accommodative bar-
gaining regarding the privileged information. I would
not join my colleagues in ordering that all of the request-
ed information be furnished immediately to the Union.
Dated, Washington, D.C. August 27, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit you from discussing with other
employees discipline or matters under investigation by us
or our peer review committees.
WE WILL NOT refuse to bargain collectively with the
National Nurses Organizing Committee—
Kansas/National Nurses United, affiliated with National
Nurses Organizing Committee/National Nurses United
(the Union) by failing and refusing to furnish it with re-
quested information that is necessary and relevant to the
Union’s performance of its functions as the collective-
bargaining representative of the employees in following
unit:
All full-time, part-time and PRN registered nurses em-
ployed by Menorah Medical Center, excluding nurse
educators, regularly assigned charge nurses, Vascular
Lab Techs, infection control/employee health nurses,
risk management/performance improvement coordina-
tors, administrative employees, confidential employees,
managerial employees, guards and supervisors, as de-
fined in the Act, and all other employees.
WE WILL NOT deny your requests for union representa-
tion at Nursing Peer Review Committee meetings or oth-
er investigatory interviews that you reasonably believe
might result in disciplinary action.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL revise or rescind the confidentiality rule pro-
hibiting you from disclosing information concerning re-
portable incidents.
MENORAH MEDICAL CENTER 13
WE WILL furnish you with an insert for the current risk
management plan that (1) advises that the unlawful pro-
vision has been rescinded, or (2) provides a lawfully
worded provision on adhesive backing that will cover the
unlawful provision; or WE WILL publish and distribute
revised risk management plans that (1) do not contain the
unlawful provision, or (2) provide a lawfully worded
provision.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on June 1 and 5,
2012.
MIDWEST DIVISION MMC—D/B/A MENORAH
MEDICAL CENTER
The Board’s decision can be found at www.nlrb.gov/case/17–
CA–088213 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.
Michael E. Werner, Esq., for the General Counsel.
F. Curt Kirschner, Jr., Esq. and Edward M. Richards, Esq., for
the Respondent.
Micah Berul, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge.1 This case
was tried in Overland Park, Kansas, on August 6 and 7, 2013.
The National Nurses Organizing Committee—Kansas/National
Nurses United, affiliated with National Nurses Organizing

1 The Respondent argues that any actions taken by this Board, in-
cluding its agents and delegates, lacks authority because the court in
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted 81
U.S.L.W. 3695 (U.S. June 24, 2013) (no. 12-1281), found the recess
appointments of Members Sharon Block and Richard Griffin were
unconstitutional and invalid. Thus, according to Respondent, the Board
lacks a quorum. The Board does not accept the decision in Noel Can-
ning, in part, because there is a conflict in other circuits regarding this
issue. See Belgrove Post Acute Care Center, 359 NLRB No. 77, slip
op. at **fn. 1 (2013). Furthermore, the Board has determined that
while the question regarding the validity of the recess appointments
remains in litigation and is pending a definitive resolution, it will con-
tinue to fulfill its obligations under the Act. See Bloomingdale, Inc.,
359 NLRB No. 113 (2013); ORNI 8, LLC, 359 NLRB No. 87 (2013).
Committee/National Nurses United (Charging Party/Union)
filed the charges in cases 17–CA–088213 and 17–CA–091912
on August 28 and October 24, 2012,2 respectively. The Gen-
eral Counsel issued the consolidated complaint and notice of
hearing on May 28, 2013.
The complaint alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (NLRA/the Act)
when in May and August 2012, Respondent, through Jennifer
Cross, denied requests by its employees Sherry Centye and
Brenda Smith to be represented by the Union during investiga-
tory interviews. 3 The complaint also alleges that Respondent
violated Section 8(a)(1) of the Act when since May 1, Re-
spondent has promulgated and maintained a policy that restricts
employees Section 7 rights;4 and since about June 1, Respond-
ent failed and refused to provide the union with relevant and
necessary information related to the discipline of union mem-
bers and for purposes of carrying out the collective-bargaining
agreement in violation of Section 8(a)(1) and (5) of the Act.5
(GC Exh. 1-I.)6
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a full-service acute care hospital with a location
in Overland Park, Kansas, provides in-patient and out-patient
medical care. Respondent is part of the Health Corporation of
America (HCA) hospital chain. (Tr. 153.) During the 12-month
period ending April 30, 2013, Respondent as described above,
purchased and received at its facility, goods valued in excess of
$50,000 directly from points outside the State of Kansas. Dur-
ing the 12-month period ending April 30, 2012, Respondent
derived gross revenues in excess of $250,000. Respondent
admits, and I find, that at all material times it has been an em-
ployer engaged in commerce within the meaning of Section
2(2),7 (6), and (7) of the Act. (GC Exh. 1-K, 1-L.)

2 All dates are 2012, unless otherwise indicated.
3 This allegation is alleged in pars. 5(a) and (b) of the complaint.
4 This allegation is alleged in par. 6 of the complaint.
5 This allegation is alleged in pars. 8(a), (b), and (d) of the com-
plaint.
6 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s exhibit; “GC Br.” for the
General Counsel’s brief; “R. Exh.” for Respondent’s exhibit; “R. Br.”
for Respondent’s brief; “CP Exh.” for Charging Party’s exhibit; “CP
Br.” for Charging Party’s brief; “ALJ Exh.” for administrative law
judge exhibit; and “Jt. Exh.” for Joint Exhibit. My findings and con-
clusions are based on my review and consideration of the entire record.
7 Respondent admitted in its answer to the consolidated complaint
that it is an employer within the meaning of Sec. 2(2). However, in its
first amended answer to the consolidated complaint, Respondent raised
as an affirmative defense that the Peer Review Committee members are
“state officers” of Kansas. Therefore, Respondent argues the Board
should not assert jurisdiction because the Peer Review Committee
members constitute a political subdivision of the State of Kansas and is
not an employer within the meaning of Sec. 2(2). This defense will be
discussed later in the decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Overview of Respondent’s Operation
As a full-service, acute care hospital, Respondent employs
physicians, nurses, pharmacists, medical support staff, and
administrative staff at its Menorah Medical Center (MMC)
Campus in Overland Park, Kansas.
At all material times since approximately October 18, 2000,
Respondent has recognized the Union as the exclusive collec-
tive-bargaining representative of the following bargaining unit:
All full-time, part-time and PRN registered nurses employed
by Menorah Medical Center, excluding nurse educators, regu-
larly assigned charge nurses, Vascular Lab Techs, infection
control/employee health nurses, risk manage-
ment/performance improvement coordinators, administrative
employees, confidential employees, managerial employees,
guards and supervisors, as defined in the Act, and all other
employees. (GC Exh. 1-K, L.)
The Union and Respondent have entered into successive col-
lective-bargaining agreements (CBAs), the one relevant to the
issues before me was effective from September 8, 2009,
through September 7, 2012. (Jt. Exh. 16.)
Respondent’s Managerial and Administrative Staff
Jennifer Cross (Cross) began her employment with Respond-
ent in October 2011, as the interim risk manager and transi-
tioned into that position full time in April 2012. Cross reports
to Kathy Chrobot, director/vice president of quality and risk
management. (Tr. 163.) In her role as risk manager, Cross is
responsible for overseeing the implementation of Respondent’s
risk management program, patient complaint process, national
patient safety goals, and risk reduction program. (Tr. 164–165.)
Since August 2012, Amy Hunt (Hunt) has been Respond-
ent’s human resources director. From January 2010, until she
became the human resources director, Hunt was a human re-
sources specialist. Richard Cybulski (Cybulski) was the human
resources director before Hunt assumed the role. (Tr. 281–282.)
As the human resources director, Hunt, among other duties,
oversees the hospital’s employment policies, employee rela-
tions, employee benefit packages, employee orientation, and
employee pay rates. She also works with managers to adminis-
ter employee discipline. (Tr. 282.)
Zachary McMahon (McMahon) began his employment with
Respondent in September 2009, as a staff pharmacist. In De-
cember 2009, he was appointed interim director of pharmacy
and became the full-time director in February 2011. He contin-
ues to work as the director of pharmacy. (Tr. 296.) In his role
as director of pharmacy, McMahon oversees “the medication
management of the hospital, medication distribution throughout
the facility, management of diversion prevention, and . . .
manag[es] employees.” (Tr. 297.)
From September 2010 to October 2011, Kaye Blom (Blom)
worked for Respondent as vice president of risk and quality.
Her duties involved carrying out the quality and risk manage-
ment functions of the hospital. (Tr. 132.)
Respondent’s Risk Management Plan and Peer
Review Committees
Kansas’ State law8 requires medical facilities within the state
to develop and submit to the state for approval an internal risk
management program. 9 On or about May 2012, Respondent
submitted its risk management plan to the state for approval.
(Tr. 243; Jt. Exh. 1.) However, the state returned the plan with
instructions to revise it. Subsequently, Respondent submitted
an amended risk management plan to the state, which was ap-
proved. (Tr. 243; J. Exh. 3.) The risk management plan rele-
vant to the issues before me became effective March 2012.10
(Tr. 167–168; Jt. Exhs. 2, 3.)
One of the primary functions of Respondent’s risk manage-
ment plan is to set forth a system to monitor the standard of
care provided to patients by the medical facility and investigate
complaints that the standard of care has been violated. Kansas
requires that risk management plans include a means of investi-
gating and analyzing reportable incidents; measures to mini-
mize reportable incidents and injuries in the medical facility;
and an effective system for reporting reportable incidents.
Violations of standard of care11 level 3 or 4 are defined by the
State of Kansas as “reportable incidents” which requires they
be reported to the appropriate state licensing agency. (Tr. 192–
194; R. Exh. 10; Jt. Exh. 1.) A potentially reportable incident is
brought to the attention of the risk manager, in this instance,
Cross. She can receive notification of a reportable incident
from a myriad of sources, e.g. patient, physician, staff member,
medical facility administration, incident reporting system. (Tr.
246.)
Once Respondent is notified of a potentially reportable inci-
dent, it is referred to the Initial Peer Review Committee. The

8 Kan. Stat. Ann. §65-4922 (West 2012).
9 I am granting Respondent’s oral motion to take judicial notice of
the Kansas Peer Review and Risk Management statutes and regulations
over the objection of counsel for the Charging Party. Federal Rule of
Evidence (FRE) 201 allows judges to take judicial notice (also referred
to as “official” or “administrative” notice) of adjudicative facts that are
not subject to reasonable dispute. Further, FRE 201 does not “regulate
judicial notice of so-called “legislative facts”. (FRE 201, author’s
comments) The Board also supports the taking of judicial notice. See
Mimbres Memorial Hospital & Nursing Home, 342 NLRB 398, 403 fn.
14 (2004), enfd. 483 F.3d 683 (2007) (judicial notice taken of require-
ments mandated by state statutes).
10 The risk management plan effective March 2012, replaced the
plan effective March 2011 to March 2012. The evidence is undisputed
that the sole change in the plans is the establishment of the Initial Peer
Review Committee, included in the plan effective March 2012. (Tr.168;
Jt. Exh. 1.) Although the Initial Peer Review Committee is also re-
ferred to by Respondent as the Multidisciplinary Review Committee, I
will only refer to it as the Initial Peer Review Committee to avoid con-
fusion.
11 Kan. Admin. Regs. §28-52-4(a) establishes four levels (or catego-
ries) for standard of care determinations: “(1) [s]tandards of care met;
(2) standards of care not met, but with no reasonable probability of
causing injury; (3) standards of care not met, with injury occurring or
reasonably probable; or (4) possible grounds for disciplinary action by
the appropriate licensing agency.” A determination by a peer review
committee that level 3 or 4 has been violated is referred to the appro-
priate Kansas State licensing agency. Kan. Admin. Regs. §28-52-4(b);
K.S.A. §65-4922.
MENORAH MEDICAL CENTER 15
committee is comprised of at least one physician and directors
from the nursing units and ancillary departments. (Tr. 168.)
The Initial Peer Review Committee determines whether the
incident potentially violates the standard of care or internal
processes. If there is evidence that indicates the standard of
care has potentially not been met, the committee refers the mat-
ter to the appropriate peer review committee for investigation.
(Tr. 169.) The Initial Peer Review Committee held its first
meeting in July 2012. (Tr. 183.)
Incidents involving nonmedical or nonnursing practitioners
are reviewed by the Ancillary Peer Review Committee. It de-
termines whether an incident involving those practitioners must
be reported to the applicable state board (e.g., Kansas State
Board of Pharmacy, Kansas Department of Health and Envi-
ronment). (Tr. 169, 185.)
The Nursing Peer Review Committee addresses issues of re-
portable incidents involving nurses. The committee is com-
prised solely of nurses. It decides if there is sufficient evidence
to sustain a complaint of a reportable incident, which requires a
referral of its findings to the Kansas State Board of Nursing for
action. (Tr. 170, 184.) The Nursing Peer Review Committee’s
finding may be reported in a nurse’s performance evaluation,
which may lead to “[s]pecific institutionally driven disciplinary
actions” being taken against the nurse. (Tr. 150–151, 156.) The
first Nursing Peer Review Committee meeting was held in Oc-
tober 2011. It meets at least quarterly and since October 2011,
it has held 12 meetings. (Tr. 188, 196–197.) Cross facilitates
the meetings but is not a voting member. (Tr. 189.)
The Medical Staff Peer Review Committee is composed of
physicians. It makes a finding on whether a complaint alleging
a violation of the standard of care should be sustained because a
“physician had not met the standard of care or caused harm or
willfully violated a policy of applicable regulation.” (Tr. 170.)
If the Medical Staff Peer Review Committee finds that the inci-
dent is “reportable”, their findings are forwarded to the Medical
Executive Committee. The Medical Executive Committee has
several options: ratify the Medical Staff Peer Review Commit-
tee’s final determination and forward it to the Kansas State
Board of Healing Arts for action; conduct its own investigation;
send it to an external peer review committee for investigation;
or return it to the Medical Staff Peer Review Committee for
further investigation. (Tr. 184–185.)
In 2012, Respondent created the Medication Diversion Pre-
vention Committee,2612 which held its first meeting in April

12 Respondent uses an automated medicine dispensing system called
Pyxis to track medication and medical devices used by certain medical
staff to give to patients. Users input their user name and fingerprint
into the system to access medication contained in locked cabinets. (Tr.
299–300.) The Pyxis system also tracks the “wasting” of medication.
Wasting refers to the appropriate disposal of unused medication by
medical staff. Pyxis records the medication/medical device name dis-
pensed, amount, date, time, and, if applicable, name of the employee
“wasting” the medication. (Tr. 300.) Respondent also uses an electron-
ic system, RxAuditor, for a statistical comparison of its nurses to de-
termine if there are medication deviations that would indicate a poten-
tial medication diversion problem. If a problem is indicated, the infor-
mation to the Medication Diversion Prevention Committee for review.
(Tr. 307–308.)
2012. (Tr. 189.) Unlike the other committees, the Medication
Diversion Prevention Committee is not a peer review commit-
tee. It is a “committee that HCA13 [as] a corporation mandated
at each facility to investigate potential [medication] diversion
. . . . ” (Tr. 189.) Prior to the creation of the Medication Diver-
sion Prevention Committee and the Initial Peer Review Com-
mittee, reports implicating nurses in potential medication diver-
sion incidents were submitted to Cross who forwarded them
directly to the Nursing Peer Review Committee. (Tr. 215–216,
218.)
Respondent’s Internal Disciplinary Process
The evidence established that Respondent can address pa-
tient care complaints through various means. Upon receipt of a
reported incident to the risk manager, it would be forwarded to
the appropriate peer review committee for investigation and, if
applicable, referred to the appropriate state licensing board.
The incident report could also be sent to the individual’s super-
visor or the Human Resources Department for an investigation
and disciplinary action. (Tr. 140, 152, 181–182, 185.) If the
complaint involves a potential medication diversion issues it
would be forwarded to the Medication Diversion Prevention
Committee for review. However, potential medication diver-
sion incidents can also be forwarded to the appropriate supervi-
sor or Human Resources Department for investigation and hos-
pital-imposed discipline. (Tr. 248–249, 284–286; R. Exh. 9)
Risk Management Plan Confidentiality Clause
As noted above, on or about May 2012, Respondent submit-
ted its risk management plan to the state for approval. (Tr. 243;
Jt. Exh. 1.) However, the state returned the plan with instruc-
tions to revise it. Subsequently, Respondent submitted an
amended risk management plan to the state, which was ap-
proved. (Tr. 243; Jt. Exh. 3.) The General Counsel alleges that
the confidentiality clause contained in Respondent’s risk man-
agement plan establishes a rule that violates Section 8(a)(1) of
the Act. The confidentiality provision reads in relevant part:
No Hospital employee, Medical Staff Member, or Allied
Health Professional shall disclose information concerning re-
portable incidents except to their superiors, Hospital Admin-
istration, the Risk Manager, the appropriate Hospital and
Medical Staff committees, legal counsel for the Hospital, or
the applicable licensing agencies, unless authorized to do so
by the Risk Manager, Administration, or legal counsel. (Jt.
Exh. 3.)
It is undisputed that Respondent modeled its confidentiality
clause on Kan. Stat. Ann. §65–4915(b) which provides, in per-
tinent part, as follows:
Except as provided by K.S.A. 60-437 and amendments there-
to and by subsections (c) and (d), the reports, statements,
memoranda, proceedings, findings and other records submit-
ted to or generated by peer review committees or officers
shall be privileged and shall not be subject to discovery, sub-
poena or other means of legal compulsion for their

13 HCA is the acronym for Health Corporation of America. (Tr.
153.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Respondent interprets this part of Kansas State statute and
thus its confidentiality clause to preclude the target of an inves-
tigation from discussing the notification of the incident report
and the discussions that occur in the peer review committee
meetings with anyone except the officials specified in the con-
fidentiality clause. (Tr. 245–246.) Consequently, the target of
the investigation is not notified of the facts underlying the
complaint against him/her until the target appears before the
peer review committee. Respondent also acknowledges that
state law does not specifically prohibit union representation in
the peer review committee meetings, but it “has interpreted the
state statute to not allow anybody to accompany the affected
practitioner.” (Tr. 220.) The incident report (also referred to as
the notification form) is confidential, but an individual may
discuss the facts underlying the incident report to the extent
patient information protected by Health Insurance Portability
and Accountability Act (HIPPA) is not disclosed. (Tr. 200–201,
203, 245.)
Sherry Centye and the Request for Representation
Beginning in December 2000, Sherry Centye (Centye) began
working as a registered nurse for Respondent. Since April
2012, she has also served as the union representative for the
floor where she works. (Tr. 24.) By letter dated May 4, 2012,
Respondent notified Centye, in relevant part:
Menorah Medical Center’s Peer Review Diversion Prevention
Committee14 has reviewed cases in which you may have ex-
hibited unprofessional conduct as defined by the Kansas
Nurse Practice Act and Menorah Medical Center, specifically
policy non-compliance, in March 2012. This conduct has pre-
liminarily been determined to be a Standard of Care Level 4:
grounds for disciplinary action.” (J Exh. 4.)
The letter went on to read:
As governed by Kansas Statute, a final Standard of Care level
4 determination must be reported to the Kansas Board of
Nursing. Pursuant to Menorah Medical Center’s Risk Man-
agement Plan, a practitioner is afforded an opportunity to ad-
dress the Peer Review Committee regarding any potentially
reportable incident prior to any final determination of a
Standard of Care by the Committee. Additionally, the Com-
mittee cannot fairly and accurately make a final decision
without more details that can only be provided by you. (J Exh.
4.)
Respondent, via the letter, explained that Centye could re-
spond in person before the Nursing Peer Review Committee or
submit a written response in lieu of an appearance. Failure to
notify the committee of her intention to appear in person consti-
tuted a waiver of her opportunity to appear. (Tr. 25; Jt. Exh. 4.)
Upon receipt of the letter, Centye consulted with Julie Perry
(Perry), union representative, for guidance. Perry counseled
her to ask Respondent for a union representative to accompany

14 The record is undisputed that the Peer Review Diversion Preven-
tion Committee has never existed. Cross admitted that on several corre-
spondences, including the one to Centye, she incorrectly identified the
Medication Diversion Prevention Committee as the Peer Review Diver-
sion Prevention Committee. (Tr. 190–191; Jt. Exhs. 4, 6, 7, 8.)
her before the Nursing Peer Review Committee. (Tr. 44.) Sub-
sequently, Centye contacted Cross to inform her that she would
appear before the committee. During their discussion, Centye
asked Cross whether Perry could accompany her as her union
representative at the Nursing Peer Review Committee meet-
ing.15 Cross told her that Perry could not attend because the
meeting was closed to all except the target of the investigation
and the committee members. (Tr. 26.) She also refused to di-
vulge to Centye the specific charge against her and told her the
committee would inform her of the specifics of the offense at
the meeting. Based on her perception of the “severe implica-
tions” of the letter, Centye was afraid and wanted to appear to
determine the specific nature of the offense she was charged
with committing. (Tr. 26–27.)
On May 31, Centye appeared before the Nursing Peer Re-
view Committee without a union representative. (Tr. 26–27,
203.) Approximately a dozen people were in attendance, in-
cluding the committee members and Cross. (Tr. 36, 227.) The
committee members consisted of at least 2 nurse managers and
2 nurse educators. (Tr. 36–37). Cross began the meeting by
reading the specific charge against Centye. The incident in-
volved her failure to properly “waste” morphine she checked
out from the Pyxis system in April 2012. Cross asked her if she
remembered the incident. Centye recalled the incident and
explained her actions to the committee. (Tr. 39–41.) After she
finished her explanation, the committee members thanked her
for her time and she left. Centye was not privileged to the de-
liberation process of the committee members. On the afternoon
of May 31, Cross informed Centye by telephone that the com-
mittee determined she had violated standard of care level 2,
which was not reportable to the Kansas State Board of Nursing.
Cross told her she would receive written notification of the
nursing peer review committee’s determination.16 (Tr. 42.)
Ultimately, Centye was not disciplined by the Kansas State
Board of Nursing or Respondent.
Brenda Smith and the Request for Representation
Brenda Smith (Smith) worked for Respondent as a registered
nurse from May 2009, to February 2013. By letter dated May

15 Cross denies that Centye requested a union representative. Ac-
cording to Cross, Centye asked if she needed to have a lawyer present
at the meeting, to which Cross responded she did not because it was not
a legal proceeding. (Tr. 203–204.) I credit Centye’s testimony on this
point. Based on my personal observations, I found Centye’s testimony
was thoughtful, consistent, and plausible. Further I find that her testi-
mony was more plausible than Cross’ version on whether Centye re-
quested union representation. The evidence is undisputed that on re-
ceipt of the letter charging her with violating patient standard of care,
Centye consulted the Union for guidance and was told to ask for union
representation in the meeting. (Tr. 44.) Centye, herself a union repre-
sentative, was aware of her Weingarten rights and given her concern
about the letter (and Perry’s advice), I find it unlikely she did not ask to
have union representation at an investigatory meeting with manage-
ment. (Tr. 44.)
16 Centye finally received a copy of the letter after Perry or Sheilah
Garland (union organizer) obtained a copy for her from Respondent’s
human resources office. (Tr. 43, 203; Jt. Exh. 5.)
MENORAH MEDICAL CENTER 17
11, 2012,17 Respondent notified Smith that the Menorah Medi-
cal Center’s Peer Review Diversion Prevention Committee18
had preliminarily determined that based on reviewed cases she
had “exhibited unprofessional conduct as defined by the Kansas
Nurse Practice Act and Menorah Medical Center, specifically
policy noncompliance, in April 2012. This conduct has prelim-
inarily been determined to be a Standard of Care Level 4:
grounds for disciplinary action.” (Jt. Exh. 6.) (emphasis in
original). The letter continued by informing Smith that she
could either appear in person at the Nursing Peer Review
Committee meeting scheduled for May 31, or submit a written
response in lieu of an appearance. Failure to notify the com-
mittee of her intention to appear in person constituted a waiver
of her opportunity to appear. (Tr. 25; Jt. Exh. 6.)
The meeting was held on May 31, but Smith did not attend
because she did not retrieve the May 11 letter, from her post
office box until the day of the meeting. On receipt of the letter,
Smith immediately telephoned Cross and left a voicemail mes-
sage asking for additional information about the content of the
letter. Subsequently, Cross responded in a voicemail message
asking her to return her call. Smith did not return the call, nor
attend the meeting because it had occurred by the time she got
the letter from her post office box.19 (Tr. 71–72, 81.) Due to
the mix-up with Smith’s address, the committee decided to
provide Smith with another opportunity to appear by convening
again on August 9 to address the charges leveled against her.
(Tr. 222.) By letter dated July 23, Cross sent Smith a letter
identical to the one sent May 31, notifying her that she had an
opportunity to address the “Peer Review Diversion Prevention
Committee” on August 9. (Tr. 72, 222; Jt. Exh. 7.) Smith tele-
phoned Cross and during their discussion Smith asked her for
more specific information about the charge against her. Cross
responded that the investigation involved “medication admin-
istration, times and documenting.” (Tr. 73.) Cross also used the
phrase “diverting medication from the hospital.” (Tr. 73.)
On August 9, Smith appeared before the Nursing Peer Re-
view Committee without a union representative. (Tr. 73–74,
203.) Smith acknowledged her appearance before the commit-
tee was voluntary to the extent it was a choice between appear-
ing in person or responding in writing. Based on the serious-
ness of the charge, she felt that she had to attend the committee
meeting to “defend my integrity and answer the questions that
they had.” (Tr. 95–96.) Upon entering the meeting, Cross
handed her a paper listing the dates and times of the incidents
that were the subject of the investigation. (Tr. 75–76.) Those
incidents occurred in April 2012. (Tr. 209, 211.) Six to 12

17 Cross testified that she initially sent the letter to Smith on May 4
but mailed it to the wrong address. (Tr. 209.) The May 11, letter is her
second attempt to contact Smith.
18 Again, the record is undisputed that the “Peer Review Diversion
Prevention Committee” has never existed and Cross incorrectly identi-
fied the Medication Diversion Prevention Committee as the “Peer Re-
view Diversion Prevention Committee” on several correspondences,
including letters to Smith. (Tr. 190–191; Jt. Exhs. 4, 6, 7, 8.)
19 Cross and Smith gave contradictory testimony about the exact
date of their conversation following Smith’s receipt of the letter dated
May 11. Regardless, I do not find this to be a material issue of fact that
I must resolve in order to rule on the issues before me.
individuals were in the peer review meeting. At the start of the
meeting each person introduced themselves to Smith. (Tr. 77.)
After the introductions, Smith commented to Cross that she had
seen brochures throughout Respondent’s facility “recommend-
ing” employees have a union representative in all meetings that
might result in discipline. At which point she asked Cross
“shouldn’t I have a Union representative in here” to which
Cross explained that it was not allowed.20 (Tr. 77–79.) There-
after, the committee members asked her a series of questions
about the incidents of April 12. Smith explained her actions to
the committee, they thanked her for her time, and she left.
Smith was in the Nursing Peer Review Committee meeting
between 25 to 35 minutes. (Tr. 79.) She was not privileged to
the deliberation process of the committee members. (Tr. 79.) A
few days after her appearance before the committee members,
Cross informed Smith by telephone that the committee deter-
mined she had violated standard of care level 2, which was not
reportable to the Kansas State Board of Nursing. Cross told her
she would receive written notification of the Nursing Peer Re-
view Committee’s determination. (Tr. 80, 213; Jt. Exh. 8.) Ul-
timately, Smith was not disciplined by the Kansas State Board
of Nursing or Respondent.
Union’s Information Request
Sheilah Garland (Garland), local union organizer for Mis-
souri and Illinois, represented the nurses at Respondent’s facili-
ty from May 2012 through September 2012. Her responsibili-
ties include labor representation, contract enforcement, and
grievance processing. (Tr. 108.) After learning that Centye was
scheduled to appear before the Nursing Peer Review Commit-
tee, on June 1, Garland sent, via email, an information request
to Respondent’s Vice President of Human Resources, Richard
Cybulski (Cybulski) and Human Resources Secretary, Vickie
Sivewright (Sivewright). (Tr. 109; Jt. Exh. 9.) The June 1,
email requested in relevant part:
3. Copy of discipline issued by Peer Review Diversion Com-
mittee along with all documents related to the Hospital’s alle-
gations against Ms. Centye; documents utilized, names of all
members of the committee and all individuals present for the
meeting, including title, department and brief description of
their job functions.
4. Complete description of the Peer Review Diversion Com-
mittee, to include inception of committee, first meeting date,
purpose of the committee, members, how members or indi-
viduals serve on the committee, any related state statutes out-
lining the function, scope and role of the committee within a
Hospital.
9. Copy/record of where the Peer Review Diversion Commit-

20 Cross denied that Smith ever asked if she needed or could have a
union representative in the meeting. (Tr. 211–212.) I credit Smith’s
testimony over Cross’ version of the exchange. Cross relied on closed
questions and answers to deny the occurrence of the discussion. Fur-
ther, Smith’s testimony and overall demeanor were more credible than
Cross’ denials of the conversation. Smith detailed the date, location,
and approximate time of the conversation. Also, her description of the
content of the discussion has the ring of truth when viewed in context
of the entire situation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
tee discipline was placed, that is, in personnel record or any
other record(s) within or outside the Hospital. (J Exh.9)
On June 5, Garland submitted a second information request
to Cybulski and Sivewright noting an unspecified number of
nurses had received letters to appear before the Peer Review
Diversion Committee. Therefore, Garland asked for the fol-
lowing information:
1. the names of all nurses who have received such notifica-
tion.
2. copies of any/all disciplines issued to any nurses who have
appeared before the “Peer Review Diversion Committee” and
the location of any disciplines that may have been issued ei-
ther within or outside Menorah Medical Center.
3. all information regarding the nature of the allegations
against all nurses so summoned, copies of investigatory in-
formation the hospital utilized to make allegations with re-
spect to nurses so summoned. (J Exh. 9.)
Garland also requested a meeting to discuss “the role of the
Peer Review Diversion Committee and the proper application
of the contract to the conduct of the committee with respect to
bargaining unit RNs.” (Jt. Exh. 9.) By June 21, Respondent
had not provided the Union with a response to its information
requests. (Jt. Exh. 9.) However, on June 26, Garland and the
Union’s Nurse Representatives, Pam Darple (Darple) and
Sandy Baldry (Baldry), met with Respondent’s Director of
Labor Relations Douglas Billings (Billings) and Human Re-
source Specialist Amy Hunt21 (Hunt) to discuss the peer review
committee and Centye, and to request a meeting with Risk
Management.22 (Tr. 114; Jt. Exh. 10.) During the meeting, the
Union again asked Respondent to respond to the information
request to no avail. (Tr. 115.)
Following the meeting, Billings emailed Garland telling her
to send the “formal” information request regarding the Risk
Department/Peer Review Committee. By email sent June 27,
Garland submitted another request for the information outlined
in her prior emails and the meeting held on June 26. (Tr. 113–
115.; Jt. Exh. 10.) Several hours later, Billings responded to
Garland’s email, writing, in relevant part:
With regards to the Nursing Peer Review Committee:
1. The union asked to meet with the Risk Department
in order to gather information about the committee. This
request is denied. The Hospital’s HR department will con-
tinue to be the focal for all information requests and con-
tinue to provide data per union information requests. All
union requests for information should be directed to the
MMC HR staff and myself.

21 From January 2010 to August 2012, Hunt was the human resource
specialist. In August 2012, she replaced Cybulski as the human re-
source director. (Tr. 281–282.)
22 Hunt testified that she did not recall meeting with the union repre-
sentatives to discuss the information request. (Tr. 293.) I credit Gar-
land’s testimony on this point because she had a clear recollection of
the meeting and the email messages indicate that Hunt attended the
meetings. (Jt. Exh. 10.)
2. The committee does not offer, impose or suggest
discipline to RNs, it investigates reportable incidents and
provides to the State its findings as per the Kansas Stat-
utes.
3. All business conducted in the committee is confi-
dential between the Hospital and the State.
4. The MMC HR department has no knowledge of any
specific outcomes or content of the committee’s meetings.
5. Therefore, the Hospital does not see the relevance of
the union’s request for information concerning the com-
mittee as part of the Hospital’s responsibility to administer
the CBA. (Jt. Exh. 10.)
On June 29, Garland telephoned Billings to again try to con-
vince him to provide the information she had previously re-
quested about the peer review committee. She also informed
him that the Union believed Centye and other nurses appearing
before the Nursing Peer Review Committee were entitled to
exercise their Weingarten23 rights. (Tr. 115–116.)
Subsequently, Garland emailed Billings twice to follow-up
on their discussion about the Nursing Peer Review Committee.
On June 29, Garland emailed Billings reiterating the points she
made to him in the meeting earlier in the day. (Jt. Exh. 11.)
She emailed him again on July 2, to ask for clarification regard-
ing Respondent’s position on a nurse exercising his/her
Weingarten rights if called before the Nursing Peer Review
Committee. (Jt. Exh. 11.) Billings responded by writing in
part:
The peer review process undertaken by the Committee is in-
dependent and separate from any internal, hospital-initiated
disciplinary investigation or action.
For the reasons outline (sic) herein, the information requested
by the union that seeks disclosure or discovery of materials,
documents or recommendations developed as part of the peer
review process, is confidential within the meaning of the Kan-
sas statutes identified above. As such, the union’s request is
denied. For these same reasons, the union’s request to partici-
pate in the confidential Peer Review Committee meetings is
also denied. (Jt. Exh. 12.)
In response to the Union’s information requests, on or about
July 30, Billings finally provided Garland with, among other
items not relevant to the charge at issue, Respondent’s risk
management plan and a written response to the Union’s June 1,
information request. (Jt. Exh. 13.) In addition, Hunt responded
to the information requests related to the “Peer Review Diver-
sion Committee” with “n/a” because she was unaware of the
existence of a Peer Review Diversion Committee. (Tr. 290–
293; Jt. Exh. 13.) Hunt acknowledged that she did not ask Gar-
land to clarify the information request or investigate, other than
to ask Billings, to determine the existence of a “Peer Review
Diversion Committee”. (Tr. 290–293.) On July 30, Garland
sent an email to Billings, Hunt, and Cybulski in an attempt to

23 Weingarten rights refers to a Supreme Court ruling that employ-
ees have the right to union representation in investigatory interviews
provided certain factors are met. NLRB v. J. Weingarten, Inc., 420 U.S.
251 (1975).
MENORAH MEDICAL CENTER 19
make clear that her information requests pertained to the com-
mittee referred to in the letters received by several nurses, in-
cluding Centye. (Tr. 117–118; Jt. Exh. 14.) On August 1,
Billings responded:
To clarify the request you made on June 5, 2012, the Hospital
does not have a “Peer Review Diversion Committee”. Are
you referencing the Diversion Committee that is mandated by
Kansas Statute KSA 65-4915 and further defined in 65-
4915(4)? (Tr. 118; Jt. Exh. 15.)
In response, on August 1, Garland emailed Billings:
Yes, you’re correct; specifically, does the Hospital have a pol-
icy/policies dealing with the Peer Review Diversion commit-
tee. This is the specific information request along with the
names of all nurses summoned before the Peer Review Diver-
sion Committee. (Jt. Exh. 15.)
Respondent has provided the Union with peer review policy.
The only other information Respondent has provided the Union
was to respond “n/a” to Garland’s specific questions about the
peer review or diversion prevention committees referenced in
the letters Cross sent to Centye and Smith. (Tr.119; Jt. Exhs. 4,
5, 6, 7, 13.)
III. DISCUSSION AND ANALYSIS
A. Preliminary Motions on Judicial Notice, Protective Order,
and Jurisdiction
During the hearing, Respondent raised several preliminary
issues that I must first address before ruling on the merits of the
consolidated complaint. Respondent made a motion for me to
take judicial notice of the Kansas Peer Review and Risk Man-
agement statutes and regulations. (Tr. 362–363.) Charging
party objected based on relevancy and ease of discovering the
Kansas statutes and regulations through independent research.
(Tr. 363.) Based on Board cases24 approving of taking judicial
notice and the Federal Rules of Evidence (FRE) 201, I grant
Respondent’s motion.
Second, Respondent requested that portions of the hearing
transcript pertaining to discussions in the peer review commit-
tee meetings be placed under a protective order. The General
Counsel agreed to a “limited protective order with respect to
testimony regarding . . . what took place at the peer review
committee” with the stipulation that once the hearing closed, I
reconsider my ruling and reverse the protective order. (Tr. 27–
32.) During the hearing, I granted Respondent’s motion for a
limited protective order to cover witness testimony regarding
meetings of the Nursing Peer Review Committee. (ALJ Exhs.
1, 2.) In their posthearing briefs, the parties set forth their posi-
tions on the continued necessity of the protective order. Ac-
cording to Respondent, the protective order is justified because
the Nursing Peer Review Committees’ communications in its
meetings and its deliberative process are privileged under Kan-
sas law. The General Counsel argues that I should reverse the
protective order because state confidentiality laws do not

24 Mimbres Memorial Hospital & Nursing Home, 342 NLRB 398,
403 fn. 14 (2004), enfd. 483 F.3d 683 ( 2007) (judge properly took
judicial notice of requirements mandated by state statutes).
preempt the Act. Charging Party objected to the protective
order. (Tr. 33; ALJ Exh. 3.)
The Board has held that state confidentiality laws are not
binding in NLRB proceedings. Admissible evidence is not
rendered inadmissible in Board proceedings because it is privi-
leged under State law. See R. Sabee Co., 351 NLRB 1350,
1350 fn. 3 (2007); North Carolina License Plate Agency #18,
346 NLRB 293, 294 fn. 5 (2006), enfd. 243 Fed. Appx 771 (4th
Cir. 2007).
Moreover, the Supreme Court and several federal courts
have refused to recognize a state privilege against the disclo-
sure of peer review information. A presumption exists against
privileges unless it would achieve a “public good transcending
the normally predominant principle of utilizing all rational
means for ascertaining truth.” Trammel v. United States, 445
U.S. 40, 50 (1980). This is a high standard which is exceeding-
ly difficult to overcome. Factors to consider in determining
whether an evidentiary privilege should be created include: 1)
the needs of the public good; 2) if the privilege is ingrained in
the need for confidence and trust; 3) the evidentiary benefit of
the denial of the privilege; and 4) consensus among the states.
Jaffee v. Redmond, 518 U.S. 1, 10–16 (1996) There is no
Board or federal case that holds federal law allows for a peer
review privilege in NLRB proceedings. See Virmani v. Novant
Health, Inc., 259 F.3d 284, 289 (4th Cir. 2001); Memorial Hos-
pital v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981) (per
curiam); Adkins v. Christie, 488 F.3d 1324, 1328–1330 (11th
Cir. 2007); Sonnino v. University of Kansas Hospital Authority,
220 F.R.D. 633 (2004).
Accordingly, based on a careful consideration of the evi-
dence and Board case law, I am rescinding the protective order
issued in this matter.
Respondent also contends that the Board does not have juris-
diction over this case pursuant to Section 2(2) of the Act be-
cause Respondent’s Nursing Peer Review Committee operates
as a political subdivision of the State of Kansas. Even assum-
ing the Nursing Peer Review Committee is not a political sub-
division of the State of Kansas, Respondent asserts that I should
exercise my discretion and decline to assert jurisdiction based
on policy reasons. I reject both arguments.
Section 2(2) of the Act exempts “political subdivision” from
the definition of employer. An entity is a political subdivision
if “(1) created directly by the state, so as to constitute depart-
ments or administrative arms of the government, or (2) admin-
istered by individuals who are responsible to public officials or
to the general electorate.” NLRB v. Natural Gas Utility District
of Hawkins County, 402 U.S. 600, 604–605 (1971). Respond-
ent’s peer review committees do not satisfy either prong of the
Hawkins test. Respondent is a private corporation, which inde-
pendently drafts and establishes its risk management plan and
peer review committees. Respondent readily admits it is not a
political subdivision of the State of Kansas. (Tr. 150.) Despite
Respondent’s contention to the contrary, I find that the Nursing
Peer Review Committee members are not state officials, nor do
they operate as an arm of the government. The Nursing Peer
Review Committee members are supervised, compensated,
hired, appointed, and evaluated by Respondent without input
from the state. (Tr. 143, 224–227) Simply because medical
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
providers’ peer review committees must conform to state re-
quirements does not make them a political subdivision that is
exempt from the Act.25
B. Complaint Allegations
1. Union’s request for information
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when on or about June 1 and 5,
Respondent failed and refused to provide the Union with rele-
vant and necessary information related to the peer review
committees.
Respondent contends that the Union sought information that
is confidential and privileged. Further, Respondent argues that
despite the confidential and privileged nature of the requests, it
formulated a reasonable accommodation by meeting with the
Union and providing it with “non-confidential information
relating to its risk management and peer review process.” (R.
Br. 42.) Last, Respondent claims that despite the ambiguous
and vague nature of the Union’s requests, it complied with its
obligation to request clarification and/or provide the infor-
mation to the extent that it is necessary and relevant. (R. Br.
46.)
Section 8(a) (5) of the Act mandates that an employer must
provide a union with relevant information that is necessary for
the proper performance of its duties as the exclusive bargaining
representative. NLRB v. Truitt Mfg. Co. 351 U.S. 149, 153
(1956); Detroit Edison v. NLRB 440 U.S. 301, 303 (1979).
“[T]he duty to bargain unquestionably extends beyond the peri-
od of contract negotiations and applies to labor-management
relations during the term of an agreement.” NLRB v. Acme In-
dustrial Co., 385 U.S. 432, 436 (1967). Information requests
regarding bargaining unit employees’ terms and conditions of
employment are “presumptively relevant” and must be provid-
ed. Whitesell Corp., 352 NLRB 1196, 1197 (2008), adopted by
a three-member Board, 355 NLRB 649 (2010), enfd. 638 F.3d
883 (8th Cir. 2011); Southern California Gas Co., 344 NLRB
231, 235 (2005). The standard for establishing relevancy is the
liberal, “discovery-type standard”. Alcan Rolled Products, 358
NLRB No. 11, slip op. at 4 (2012), citing and quoting applica-
ble authorities.
In Leland Stanford Junior University, 307 NLRB 75, 80
(1992), the Board summarized its application of these princi-
ples as follows:
the Board has long held that Section 8(a)(5) of the Act obli-
gates an employer to furnish requested information which is
potentially relevant to the processing of grievances, an actual
grievance need not be pending nor must the requested infor-
mation clearly dispose of the grievance. It is sufficient if the
requested information is potentially relevant to a determina-
tion as to the merits of a grievance or an evaluation as to
whether a grievance should be pursued. United Technologies
Corp., 274 NLRB 504 (1985); TRW, Inc., 202 NLRB 729,
731 (1973).

25 Respondent relies on Kan. Stat. Ann. §65-4929(b) to support its
argument that the individuals who serve on the peer review committees
are responsible to public officials. However, I find that the statute does
not justify such a broad reading.
The requested information does not have to be dispositive of
the issue for which it is sought, but only has to have some rela-
tion to it. Pennsylvania Power & Light Co., 301 NLRB 1104,
1104–1105 (1991). The Board has also held that a union may
make a request for information in writing or orally. Further, if
an employer fails to respond timely to a request for infor-
mation, the union does not need to repeat the request. Bundy
Corp., 292 NLRB 671, 672 (1989). An unreasonable delay in
responding to a valid request for information is a violation of
the Act. See Airo Die Casting, Inc., 354 NLRB 92 (2009);
Oaktree Capital Mgmt., 353 NLRB 1242 (2009).
The law is well settled that the type of information at issue is
presumptively relevant and must be furnished on request. See
Booth Newspapers, Inc., 331 NLRB 296 (2000), and the cases
cited therein; See also, Salem Hospital Corp., 358 NLRB No.
82 (2013), (employer violated Sec. 8(a)(5) of the Act when it
ignored and refused to furnish the requested disciplinary rec-
ords).
a. Relevancy of information
An employer is required to provide, on request, a union with
information that is necessary and relevant to its role as the bar-
gaining representative of its constituency. Brooklyn Union Gas
Co., 220 NLRB 189, 191 (1975). I find that the requested in-
formation is necessary for the Union to effectively monitor and
enforce the terms of the CBA. Its access to the peer review
committee information enables the Union to compare the inci-
dents that cause nurses to become the target of an investigation
and ensure that the Respondent is not using the committee to
discriminate against bargaining unit employees. Additionally,
the information requested in this matter is relevant and neces-
sary because it enables the Union to make a determination on
whether to file a grievance on behalf of unit employees who
might have unknowingly been the victim of discriminatory
investigations and ultimately discipline. This is a legitimate
function of the Union and the requested information is neces-
sary for it to fulfill that duty. United Technologies Corp., 274
NLRB 504 (1985); TRW, Inc., 202 NLRB 729, 731(1973);
United Graphics, Inc., 281 NLRB 463, 465 (1986) (the Board
held that information presumptively relevant to the union’s role
as bargaining agent must be provided to the union as it “relates
directly to the policing of contract terms.”).
b. Confidentiality of information
Respondent argues that even assuming the information re-
quested by the Union is relevant and necessary, the Union’s
interest in the information does not outweigh Respondent’s
legitimate interest in complying with Kansas’ statute establish-
ing a peer review committee privilege and requiring that infor-
mation related to the peer review process remain confidential.
It is well settled law that the party asserting confidentiality
has the burden of proof. Postal Service, 356 NLRB No. 75
(2011); Detroit Newspaper Agency, supra; Northern Indiana
Public Service Co., 347 NLRB, 210 (2006). Even assuming
that Respondent meets its burden, it cannot simply refuse to
furnish the information, but rather must engage in accommoda-
tive bargaining with the Union to seek a resolution that meets
the needs of both parties. In Alcan Rolled Products, supra at 15,
MENORAH MEDICAL CENTER 21
the Board explained:
Confidential information is limited to a few general categories
that would reveal, contrary to promises or reasonable expecta-
tions, highly personal information. Detroit Newspaper Agen-
cy, 317 NLRB 1071, 1073 (1995). Such confidential infor-
mation may include “individual medical records or psycho-
logical test results; that which would reveal substantial propri-
etary information, such as trade secrets; that which could rea-
sonably be expected to lead to harassment or retaliation, such
as the identity of witnesses; and that which is traditionally
privileged, such as memoranda prepared for pending law-
suits.” Id. Additionally, the party asserting the confidentiality
defense may not simply refuse to furnish the requested infor-
mation, but must raise its confidentiality concerns in a timely
manner and seek an accommodation from the other party. Id.
at 1072.
Respondent insists that meeting with the Union and provid-
ing it with Respondent’s risk management plan reasonably
accommodated the Union’s request. Respondent notes its risk
management plan provided the Union with “a detailed descrip-
tion of the NPRC [Nursing Peer Review Committee], infor-
mation relating to the purpose of the NPRC, a description of
how members serve on the committee, and information relating
to how Kansas statutes outline the function, scope and role of
the committee within the Hospital.” (R. Br. 45–46; Jt. Exh. 3.)
Further, Respondent argues that although the Union’s written
questions referencing the peer review process were “vague and
ambiguous” because they incorrectly identified the nursing peer
review committee as the peer review diversion committee, its
“n/a” responses were justified because no such committee ex-
isted and reemphasized that the risk management plan accom-
modated the Union’s requests. (R. Br. 42, 46–47; Jt. Exh. 13.)
I find that Respondent failed to engage in the accommoda-
tive process. Beginning June 1 and on numerous occasions
thereafter, Garland emailed the director of labor relations re-
questing information on the nursing peer review committee. In
addition, Garland met with labor relations officials (Billings,
Hunt), requested a meeting with the risk manager, and repeat-
edly telephoned labor relations officials to get the requested
information. By contrast, Respondent took more than a month
before acknowledging Garland’s initial information request and
providing its risk management plan, denied the Union’s request
to meet with the risk manager about the peer review commit-
tees, provided nonresponsive answers to Garland’s written
questions about the peer review committee, and feigned confu-
sion regarding Garland’s request for information on the “peer
review diversion committee.” Although the Union received a
copy of Respondent’s risk management plan, the evidence is
clear that Respondent refused to respond to the specific ques-
tions. Respondent did not make a reasonable attempt to ac-
commodate the Union’s request but simply denied the requests,
noting “the information requested by the union that seeks dis-
closure of discovery of materials, documents or recommenda-
tions developed as part of the peer review process, is confiden-
tial within the meaning of the Kansas statutes identified above.
As such, the union’s request is denied.” (Jt. Exh. 12.)
Respondent’s final argument that it was justified in its writ-
ten responses of “n/a” to the Union’s request for information on
the “Peer Review Diversion Committee” also falls. (Tr. 290–
293; Jt. Exhs. 13, 15.) Respondent concedes that in her corre-
spondences to Centye and Smith, Cross mistakenly identified
the Medication Diversion Prevention Committee as the Peer
review Diversion Committee. Nevertheless, when the Union
identified the committee in the same manner as Cross used in
her letters, Respondent responded by claiming the committee
did not exist without clarifying to Garland that Cross mistaken-
ly labeled the committee name. Consequently, Respondent
cannot now use the confusion that its mistake created to prevent
the Union from obtaining necessary and relevant information.
I find that it is not necessary for me to determine that Re-
spondent failed to show that the Union’s interest in the infor-
mation does not outweigh Respondent’s legitimate interest in
complying with Kansas’ statute establishing a peer review
committee privilege and confidentiality provision. Even as-
suming Respondent met its burden of proof showing that its
confidentiality interest outweighed the Union’s need for infor-
mation, Respondent failed to show that it made a valid attempt
at an accommodation.
Based on the evidence, I find that the information requested
is relevant and necessary to the Union’s representational role.
Further, the facts unequivocally establish that the Respondent
had the information readily available, yet did not make a valid
attempt at an accommodation. Accordingly, I find the Re-
spondent’s delay and refusal to provide the requested infor-
mation violates Section 8(a)(5) and (1) of the Act.
2. Rule precluding employees subject to investigations by peer
review committees from discussing reportable incidents
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by promulgating, maintaining, or enforc-
ing a rule prohibiting employees who are the target of peer
review committee investigations from discussing with anyone
the ongoing investigations conducted by the peer review com-
mittees against employees.
Respondent argues “the Hospital has an obligation under
state law to maintain confidentiality of peer review proceedings
in order to foster free discussion of the standard of care, which
is intended to improve the quality of healthcare services.” (R.
Br. 47.) In addition, Respondent insists that Respondent’s reg-
istered nurses “would not reasonably construe the language in
the confidentiality provision at issue as restricting Section 7
activity when viewed within the broader framework of the Plan
and Kansas’ risk management statutes and regulations.” (R. Br.
48.)
Section 8(a)(1) of the National Labor Relations Act
(NLRA/the Act) provides that it is an unfair labor practice for
an employer to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.” See Brighton Retail,
Inc., 354 NLRB 441, 441 (2009).
The Board has held that if a rule specifically restrains Sec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
tion 7 rights, the rule is invalid. Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). See Waco, Inc., 273 NLRB
746, 748 (1984) (work rule explicitly prohibits employees from
discussing wages with coworkers, a restriction on Sec. 7
rights). Even if the rule does not specifically restrict protected
activity, the Board has determined that the rule will constitute a
violation of Section 8(a)(1) if “(1) the employees would rea-
sonably construe the language to prohibit [protected] activity;
(2) the rule was promulgated in response to union activity; and
(3) the rule has been applied to restrict the exercise of [protect-
ed] rights.” Lutheran Heritage Village-Livonia, at 647; Longs
Drug Stores California, Inc., 347 NLRB 500, 500–501 (2006).
The Board also stated, “in determining whether a challenged
rule is unlawful, the Board must . . . give the rule a reasonable
reading. It must refrain from reading particular phrases in isola-
tion, and it must not presume improper interference with em-
ployee rights.” Id. at 646. See also Lafayette Park Hotel, 326
NLRB 824 at 828 (1998) (citing Norris/O’Bannon, 307 NLRB
1236, 1245 (1992)).
The Board requires that the judge use a balancing test in de-
termining if the employer’s right to promulgate a rule to main-
tain discipline in the workplace outweighs the employees’ right
to engage in Section 7 activity. In order to justify a rule prohib-
iting employee discussions of ongoing investigations, the Re-
spondent must show that it has a legitimate business justifica-
tion. See Hyundai America Shipping Agency, 357 NLRB No.
80, slip op. at 15 (2011) (the Board held no legitimate and sub-
stantial justification when an employer promulgates a blanket
prohibition against employees discussing matters under investi-
gation). The question becomes whether the Respondent’s stated
legitimate and substantial business reasons outweigh the em-
ployees’ exercise of their Section 7 rights. See also Banner
Estrella Medical Center, 358 NLRB No. 93, slip op. 2 (2012)
(the Board quoting from Hyundai America Shipping Agency,
“Rather, in order to minimize the impact on Section 7 rights, it
was the Respondent’s burden ‘to first determine whether in any
give[n] investigation witnesses need [ed] protection, evidence
[was] in danger of being destroyed, testimony [was] in danger
of being fabricated, or there [was] a need to prevent a cover
up.’”). Id.
I find that Respondent’s confidentiality rule is overly broad
and unlawful on its face. As written it prohibits employees
from disclosing any information discussed in the peer review
committee meetings, particularly if it involves “reportable inci-
dents.” Consequently, it restricts employees’ right to discuss
potential discipline, working conditions, and “other information
that employees are entitled to know and to share with cowork-
ers.” Hyundai America Shipping Agency, at 21. This is a re-
striction on employees’ right to discuss the terms and condi-
tions of their employment for the purpose of “collective bar-
gaining or other mutual aid or protection.” Brighton Retail,
Inc., at 441.
It is undisputed that Respondent modeled the confidentiality
rule set forth in its risk management plan on Kan. Stat. Ann.
§65–4915(b). It is also undisputed that Respondent precludes
targets of peer review investigations (and committee members)
from disclosing information about “reportable incidents” to
anyone except those officials designated in its confidentiality
clause. (Tr. 268.) The Respondent explains that it established
the rule to comply with state law and to ensure witnesses will
freely share information to improve the quality of patient care
and protect the welfare of patients. Although Cross tells the
targets their responses are confidential and will not be disclosed
to other individuals by the committee members, she acknowl-
edges that she does not tell them they are likewise precluded
from divulging information discussed in the meeting. (Tr. 267–
268.) Cross testified confidentiality of the peer review process
was important to ensure that “people” were confident that they
could fully share information to the committee members. (Tr.
200.) Cross noted she has not encountered a situation where
someone has violated the confidentiality provision so it is un-
clear the type of discipline, if any, would be taken against an
employee for violating it. (Tr. 268.)
I find that Respondent failed to show that its business justifi-
cation for promulgating such an overly broad confidentiality
rule outweighs the employees’ exercise of their Section 7
rights. Although Respondent argues Kansas statute mandates
the confidentiality clause, it admits the statute does not specifi-
cally restrict targets of investigation from being represented by
the Union in the peer review committee meetings or discussing
“reportable incidents’ with others. The evidence established
that despite the lack of a specific restriction in this area, Re-
spondent decided on its own to broadly interpret the Kansas
confidentiality statute to preclude all discussion of information
shared in the peer review committee meeting about “reportable
incidents”. This overly broad restriction unnecessarily pre-
cludes employees’ from seeking counsel and representation for
charges that could possibly threaten employees’ livelihood, i.e.,
revocation of their professional license.
Second, I find that Respondent presented no evidence to
show that it could not protect the integrity of the investigation
and pursue its goal of ensuring quality patient care without
enforcement of a rule that tramples on its employees rights to
engage in “concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” Section 8(a)(1)
of the Act. The Respondent did not assert, nor present evidence
that it conducted an analysis to determine if the integrity of its
investigations would have been threatened without issuing the
confidentiality rule. It is most likely that Centye and Smith
would have been unable to compromise the investigation in any
significant manner because they were unaware of the witnesses
or evidence that the committee members were using in their
deliberative process. Further, there is no evidence either
Centye or Smith attempted to contact committee members be-
fore or after their appearance to coerce, threaten, or influence
them to provide information or rule in their favor. Likewise,
there is no evidence that during the investigations employees or
committee members accused Centye or Smith of asking or co-
ercing them to fabricate testimony on their behalf, or threatened
them with physical harm for testifying against them.
Last, Respondent failed to show that patient care would have
been compromised without the confidentiality rule. In fact,
Cross testified that if there was a concern that the target of an
investigation posed a “potential danger” to patient care and a
peer review committee meeting was not shortly scheduled, she
would follow-up with the nurse’s manager to ensure the nurse
MENORAH MEDICAL CENTER 23
was not compromising patient safety. (Tr. 230–232.) Cross
agreed that incidents involving the human resources office and
the targeted employee’s supervisor’s investigation of reportable
incidents are not subject to the confidentiality clause and can be
freely discussed, except for matters excluded by HIPPA. This
is just one example of a less intrusive means Respondent can
and has implemented to carry out the intent of the Kansas stat-
ute and guarantee quality patient care without violating em-
ployees Section 7 rights. The rule at issue is clearly a restraint
on Centye’s, Smith’s, and other employees’ Section 7 right to
speak with fellow employees to obtain evidence in support of a
defense against the charges or to speak with their representative
to assist them in the defending against the charges.
Based on the evidence of record, I find the Respondent has
failed to demonstrate that a legitimate and substantial justifica-
tion exists for promulgating and enforcing a blanket rule that
restricts employees from exercising their Section 7 rights. Ac-
cordingly, I find that the Respondent has unlawfully maintained
an overly broad and discriminatory rule prohibiting employees
from discussing matters under investigation by the peer review
committees. The Respondent has violated Section 8(a)(1) of
the Act as alleged in the complaint.
3. Respondent rejection of employees Weingarten rights
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act when it denied Centye’s and Smith’s
requests to be represented by a union representative at the
Nursing Peer Review Committee meetings.
Respondent argues it was justified in its actions because (1)
neither Centye nor Smith requested Union representation; (2)
Centye’s and Smith’s appearance before the Nursing Peer Re-
view Committee was voluntary; (3) based on their training and
experience, Centye and Smith could not reasonably believe that
the peer review process would result in Hospital-imposed dis-
cipline; and (4) allowing Centye and Smith to have Union rep-
resentation at the Nursing Peer Review Committee meetings
would interfere with Respondent’s legitimate prerogative to
maintain the confidentiality of the peer review process. (R. Br.
1–2.)
In NLRB v. J. Weingarten, Inc.,26 the Supreme Court held an
employee has a right to union representation in an investigatory
interview which the employee reasonably believes might result
in disciplinary action. An objective standard that analyzes all
the facts and not just the employee’s subjective motivation is
used to determine the reasonableness of an employee’s belief.
Weingarten, supra 257, fn. 5. The employee must request rep-
resentation and the right to representation “may not interfere
with legitimate employer prerogatives.” Id. at 258. Moreover,
the employer is not obligated to bargain with the union repre-
sentative who attends the investigatory interview with the em-
ployee. If the employer refuses an employee’s request to have
union representation in the investigatory interview, the employ-
er and employee have several options. Weingarten quoting the
Board in Mobil Oil Corp., 196 NLRB 1052 (1972).
The employer may, if it wishes, advise the employee that it
will not proceed with the interview unless the employee is

26 420 U.S. 251 (1975).
willing to enter the interview unaccompanied by his repre-
sentative. The employee may then refrain from participating
in the interview, thereby protecting his right to representation,
but at the same time relinquishing any benefit which might be
derived from the interview. The employer would then be free
to act on the basis of the information obtained from other
sources.
If the employer continues the investigatory interview without
granting the requested union representation, the interview can-
not continue unless the employee “voluntarily agrees to remain
unrepresented after having been presented by the employer
with the choices” described above, or “is otherwise made aware
of these choices.” Postal Service, 241 NLRB 141, 142 (1979)
(emphasis in original); see also Penn Dixie Steel Corp., 253
NLRB 91 (1980).
I find that Respondent violated the Act by continuing its in-
terviews of Centye and Smith after denying them representa-
tion. Respondent argues that allowing nurses to have represen-
tation in the peer review committee meetings would interfere
with Respondent’s obligations to adhere to State confidentiality
laws and privileges, and inhibit participants ability to be “frank
and open” in the interviews. (R. Br. 32–33.) Respondent also
insists Centye’s and Smith’s presence before the peer review
committees was voluntary and their beliefs that the investigato-
ry interviews might result in discipline were unreasonable.
Last, Respondent contends that neither Centye nor Smith re-
quested union representation.
I find Respondent’s arguments unpersuasive. The evidence
establishes that the Kansas statute27 relied on by Respondent
does not specifically prohibit nurses from having representation
before the committees. It is silent on this point. Respondent
acknowledged it has interpreted the statute to mean nurses are
banned from having representation in the peer review commit-
tee meetings. (Tr. 220.) Therefore, I find that honoring
Centye’s and Smith’s Weingarten rights would not have inter-
fered with a legitimate employer prerogative to comply with
state confidentiality laws. Second, Respondent failed to pro-
vide anything other than conclusory statements to show how
allowing nurses to have union representatives accompany them
into the interview would inhibit participants in being frank and
open in the interviews. (R. Br. 32.)
Respondent also argues that neither Centye, nor Smith re-
quested to have union representatives accompany them into
their interviews before the Nursing Peer Review Committee.
Previously in the decision, I credited the testimony of Centye
and Smith and found that they asked for union representatives
to accompany them before the Nursing Peer Review Committee
but were denied by Respondent. Accordingly, I reject Re-
spondent’s argument.
Although Respondent argues nurses’ appearances before the
Nursing Peer Review Committee is voluntary, the evidence
establishes otherwise. Based on the evidence, it is clear that the
choice to not appear before the committee is an illusionary one.
Cross admitted that the letter sent to Centye and Smith con-
tained insufficient information for them to submit a written

27 Kan. Stat. Ann. §65–4915(b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
response. Both were told that they would not be provided with
the specifics of the charges against them until they appeared
before the committee. Consequently, Centye’s and Smith’s
decision to appear was a forced action disguised by Respondent
as a voluntary choice. In fact, Centye’s letter explicitly stated
the committee could not make a final decision on the charges
against her without more details that “can only be provided by
you.” (Tr. Jt. Exh. 4.) Since, however, the letter did not give
her specifics regarding the charge against her, the only means
Centye could use to provide the details that the committee
needed was to appear in person. The situation Centye and
Smith faced was similar to that described in American Federa-
tion of Government Employees Local 1941 v. FLRA, 837 F.2d
495, 499–500 (D.C. Cir. 1988). The court found:
The fact [the employee] had the privilege to absent himself,
however, should not control. This hearing is the only hearing
he ever would have. It settled the facts… It is obvious [the
employee] was in fact compelled to attend if he wished to be
heard on the issues relating to his professional competence
and continued career at Noble Army Hospital. The record was
about to be developed. He knew he faced disciplinary action
which could include the loss of his job… The decisive con-
sideration governing the employee’s right to union representa-
tion was not whether the employee was formally required to
respond to an investigation of his conduct but whether he
wanted union support and reasonably believed he faced disci-
plinary sanctions. Both of these factors were present here.
The Board has held that an employer cannot avoid violating the
Act for denying an employee’s valid request for union repre-
sentation by pointing to the fact that the employee participated
in the investigation. In Super Value Stores, Inc., 236 NLRB
1581, 1591 (1978), the Board explained:
The fact that [the employee] stayed, and answered the ques-
tions put to him, did not make his participation voluntary or
constitute a waiver of his right to union representation. It
should not be a requisite to the continued maintenance of the
properly asserted right of union representation that the lone
employee further antagonize the employer and jeopardize his
job by walking out of the meeting or by refusing to answer
questions.
Based on the evidence and case law, I find Respondent argu-
ment on this point fails.
I also reject Respondent’s argument that it was unreasonable
for Centye and Smith to believe that the investigatory inter-
views might result in discipline. The letters sent to Centye and
Smith requesting their appearance before the Nursing Peer
Review Committee read in relevant part:
Menorah Medical Center’s Peer Review Diversion Prevention
Committee has reviewed cases in which you may have exhib-
ited unprofessional conduct as defined by the Kansas Nurse
Practice Act and Menorah Medical Center, specifically policy
non-compliance in March 201228. This conduct has prelimi-

28 The letters sent to Smith used identical language as the one sent to
Centye, except the noncompliance date listed on Smith’s letter was
April 2012.
narily been determined to be a Standard of Care Level 4:
grounds for disciplinary action. (Jt. Exhs. 4, 6, 7) (emphasis
in original).
Measured by an objective standard, Centye’s and Smith’s be-
liefs that the interviews might result in disciplinary action were
reasonable because their letters clearly stated that their conduct
had preliminarily been determined to be “grounds for discipli-
nary action.” Respondent argues that the letter’s reference to
“Kansas statute, the Kansas Nurse Practice Act, standard of
care determinations, Menorah’s Risk Management Plan, and
the peer review process” makes it clear “that the [Nursing Peer
Review Committee] meetings cannot lead to Hospital-impose
discipline.” (R. Br. 38.) Further, Respondent suggests that
Centye and Smith should have known the letter did not infer
any Hospital-imposed discipline because during their employee
orientation they were given information about Respondent’s
quality and risk management policies. I, however, am at a loss
to understand how a brief introduction to Respondent’s risk
management plan would contradict the plain language of the
letters sent to Centye and Smith noting there were potentially
“grounds for disciplinary action” against them. Moreover, there
is no evidence that either Centye or Smith were familiar with
the “Kansas statute, the Kansas Nurse Practice Act, standard of
care determinations, Menorah’s Risk Management Plan, and
the peer review process” referenced in the letters. (Jt. Exh. 4, 6,
7.)
Even assuming Centye and Smith were familiar with the
state statutes governing Respondent’s risk management plan,
there is nothing in the statutes that precludes both the Kansas
State Board of Nursing and Respondent from taking action
against a nurse found to have violated standard of care level 3
or 4. Respondent acknowledged this fact. (Tr. 153, 160–161,
232.) Practically speaking, if a nurse were stripped of her li-
cense by the state board for violating level 3 or 4, Respondent
would be compelled to take disciplinary action against the
nurse by terminating him/her for failing to maintain a valid
nursing license. (Tr. 147.)
With the letters containing nothing more than a vague refer-
ence to charges of unprofessional conduct that is grounds for
disciplinary action, it was reasonable for Smith and Centye to
believe the meeting before the Nursing Peer Review Committee
could lead to disciplinary action. Centye credibly testified that
she was confused and scared by the severe implications of the
letter and her ignorance of the purpose of a peer review com-
mittee. (Tr. 26.) Smith was also frightened by the letter be-
cause it “used the description of [she] exhibited unprofessional
conduct and there (sic) could be grounds for discipline.” (Tr.
80.)
Respondent also argues that Smith and Centye’s fears were
baseless because the “peer review process has never led to dis-
cipline imposed by Menorah.” The evidence does not support
this statement either way. There is no evidence that Centye or
Smith knew that throughout the entire existence of the Nursing
Peer Review Committee it had never led to Respondent im-
posed discipline. Even assuming as true that the Nursing Peer
Review Committee’s determinations had never led to Respond-
ent imposed discipline, it is irrelevant. The appropriate ques-
MENORAH MEDICAL CENTER 25
tion would remain whether the targets of the investigatory in-
terviews reasonably believed that they could be subject to dis-
ciplinary action. I agree a nurse’s knowledge that Respondent
had never imposed discipline against a nurse based on the
Nursing Peer Review Committee’s determination could support
a finding that his/her belief is unreasonable. However, there is
no evidence to support such a finding in this case.
Based on the totality of the circumstances and using an ob-
jective standard, I find that it was reasonable for Smith and
Centye to believe that their appearances before the Nursing
Peer Review Committee might result in Respondent taking
disciplinary action against them. I also find that Centye and
Smith requested and were entitled to representation when called
before the Nursing Peer Review Committee. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act when it
denied them their Weingarten rights.
CONCLUSIONS OF LAW
1. The Respondent, Midwest Division – MMC, LLC d/b/a
Menorah Medical Center, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. National Nurses Organizing Committee – Kansas/National
Nurses United, affiliated with National Nurses Organizing
Committee/National Nurses United is a labor organization
within the meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing an oral rule
prohibiting employees from discussing with other employees
discipline or ongoing investigations, the Respondent violated
Section 8(a)(1).
4. By failing and refusing to fully provide relevant infor-
mation requested by the Union beginning June 1, 2012, Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
5. By denying Sherry Centye’s request for union representa-
tion at an investigatory interview held on or about May 31,
2012, Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
6. By denying Brenda Smith’s request for union representa-
tion at an investigatory interview held on or about August 9,
2012, Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
7. The above violations are an unfair labor practice that af-
fects commerce within the meaning of Section 2(6) and (7) of
the Act.
8. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
As I have concluded that the Respondent unlawfully prom-
ulgated, maintained, and enforced a confidentiality rule prohib-
iting employees from discussing with other employees disci-
pline or ongoing investigations, the recommended order re-
quires that the Respondent revise or rescind the unlawful rule,
and advise its employees in writing that said rule has been so
revised and rescinded.
As I have concluded that the Respondent unlawfully failed to
produce relevant information in response to the Union’s re-
quest, the Respondent will, therefore, be ordered to produce the
requested and relevant information.
As I have concluded that the Respondent unlawfully denied
employees’ lawful request for union representation at investiga-
tory interviews, the recommended order requires that it must
cease and desist from engaging in such conduct in the future
and to take certain affirmative action designed to effectuate the
policies of the Act.
Further, Respondent will be required to post and communi-
cate by electronic post to employees the attached Appendix and
notice that assures its employees that it will respect their rights
under the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended28
ORDER
The Respondent, Midwest Division – MMC, LLC d/b/a Meno-
rah Medical Center, Overland Park, Kansas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, and enforcing a confidentiali-
ty rule prohibiting employees from discussing with other em-
ployees discipline or ongoing investigations.
(b) Refusing to provide the Union, National Nurses Organiz-
ing Committee – Kansas/National Nurses United, affiliated
with National Nurses Organizing Committee/National Nurses
United, information requested that is necessary and relevant to
its role as the exclusive representative of the employees in fol-
lowing unit:
All full-time, part-time and PRN registered nurses employed
by Menorah Medical Center, excluding nurse educators, regu-
larly assigned charge nurses,Vascular Lab Techs, infection
control/employee health nurses, risk manage-
ment/performance improvement coordinators, administrative
employees, confidential employees, managerial employees,
guards and supervisors, as defined in the Act, and all other
employees.
(c) Denying employees’ request for union representation at
interviews the employees reasonably believe might result in
discipline.
(d) In any like or related manner, interfering with, restraining
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes and policies of the Act.
(a) Within 14 days from the date of the Board’s Order, ad-

28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
vise employees that it has revised or rescinded the confidenti-
ality rule prohibiting employees from discussing with other
employees discipline or ongoing investigations.
(b) Within 14 days from the date of the Board’s Order, fur-
nish the Union with all information it requested beginning June
1, 2012.
(c) Within 14 days from the date of the Board’s Order, ad-
vise employees that it will not deny employees’ request for
union representation at interviews the employees reasonably
believe might result in discipline.
(d) Within 14 days after service by the Region, post at its fa-
cility in Overland Park, Kansas, copies of the attached notice
marked “Appendix.”29 Copies of the notice, on forms provided
by the Regional Director for Region 14 Sub-region 17, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees and members are customarily posted. In
addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since May 1, 2012.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. December 23, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT prohibit you from discussing with other em-
ployees discipline or matters under investigation by us or our
peer review committees.
WE WILL NOT refuse to bargain collectively with the Union
(National Nurses Organizing Committee – Kansas/National
Nurses United, affiliated with National Nurses Organizing
Committee/National Nurses United) by failing and refusing to
furnish it with requested information that is relevant and neces-
sary to the Union’s performance of its functions as the collec-
tive bargaining representative of the employees in the following
unit:
All full-time, part-time and PRN registered nurses employed
by Menorah Medical Center, excluding nurse educators, regu-
larly assigned charge nurses, Vascular Lab Techs, infection
control/employee health nurses, risk manage-
ment/performance improvement coordinators, administrative
employees, confidential employees, managerial employees,
guards and supervisors, as defined in the Act, and all other
employees.
WE WILL NOT deny employees’ request for union representa-
tion at investigatory interviews that employees believe might
result in disciplinary action.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the rights guaranteed to them
by Section 7 of the Act.
MIDWEST DIVISION-MMC, LLC D/B/A MENORAH
MEDICAL CENTER