[00:00:02] Speaker 00: Case number 15-1312 at L. Midwest Division MMC LLC doing business as Menorah Medical Center Petitioner versus National Labor Relations Board. [00:00:12] Speaker 00: Mr. Daborksky for the petitioner, Ms. [00:00:14] Speaker 00: Isbell for the respondent, and Ms. [00:00:16] Speaker 00: Darrow for the intervener. [00:00:25] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:27] Speaker 03: I'm Shied Voretsky with Jones Day, representing the petitioner. [00:00:30] Speaker 03: With the Court's permission, I'd like to reserve two minutes for rebuttal. [00:00:34] Speaker 03: The NLRB's fundamental error in this case was that it ignored the distinction between state licensing on the one hand and employee discipline on the other. [00:00:43] Speaker 03: Peer review committees, like the one at issue in this case, exist in all 50 states. [00:00:48] Speaker 03: Their purpose is to ensure the safety of patients, not to govern the terms and conditions of employment. [00:00:54] Speaker 03: The NLRB has never before attempted to assert jurisdiction over the work of these committees, and doing so here threatens the candor and confidentiality necessary to effectuate the purpose of these committees, which again is patient safety. [00:01:07] Speaker 03: The Board's failure to recognize that peer review committees operate separately from employee discipline resulted in four reversible errors. [00:01:15] Speaker 03: First, the board improperly asserted jurisdiction over the work of these committees without so much as acknowledging the unprecedented nature of that holding or addressing Menorah's jurisdictional argument. [00:01:27] Speaker 03: Second, the board extended Weingarten rights to a proceeding. [00:01:31] Speaker 04: It might work best if we do each one of these one at a time. [00:01:35] Speaker 04: On that first argument, the ALJ did address the question, right? [00:01:41] Speaker 04: The ALJ addressed it, but the board did not. [00:01:44] Speaker 04: Well, typically, [00:01:46] Speaker 04: You can say that about almost every single board case, because typically the board opinions that we see basically say nothing more than we adopt the opinions, decisions, judgments, factual decisions of the ALJ, and we've always held that sufficient consideration. [00:02:00] Speaker 04: Now, whether it's correct or not, that's a different matter. [00:02:03] Speaker 04: But we've never held that the ALJ's own opinion has to restate what the ALJ said, have we? [00:02:10] Speaker 03: I respectfully disagree that you've never held that. [00:02:12] Speaker 03: You have, for example, in the Yukon-Kuskokwim Health Corporation case. [00:02:17] Speaker 03: I apologize if I'm mispronouncing that. [00:02:18] Speaker 03: It's 234 F3rd 714. [00:02:21] Speaker 03: And in that case, the board remanded, this court remanded, because the NORB failed to adequately address a jurisdictional issue. [00:02:29] Speaker 03: Did the ALJ address it in that case? [00:02:31] Speaker 03: I believe the ALJ did address it, but the board did not. [00:02:34] Speaker 03: And of particular importance there, it was a jurisdictional question that, like this case, posed a conflict between the applicability of the NLRA on the one hand and another statutory regime on the other. [00:02:47] Speaker 03: There it was the Indian Self-Determination Act. [00:02:49] Speaker 03: Here it's the Kansas peer review proceeding. [00:02:53] Speaker 03: And so to talk about the jurisdictional issue, [00:02:57] Speaker 03: The peer review committees at issue here are exempt under both prongs of the Hawkins test. [00:03:03] Speaker 02: So can I just ask why are you focusing on the peer review committee as opposed to the company? [00:03:08] Speaker 02: Are there other cases in which [00:03:12] Speaker 02: It seems like it would be conceded that the company is an employer, but the question then becomes whether some sub-aspect of the company is one as to which you could call it a political subdivision. [00:03:23] Speaker 03: I don't think it's a sub-aspect. [00:03:25] Speaker 03: I think this is an unusual case where you have hospital employees who are serving in a particular function where state law designates them as state officers. [00:03:34] Speaker 03: So it is an unusual sort of hybrid situation, but that is precisely why the board had to do more than just rubber stamp the ALJ's findings on jurisdiction without addressing the jurisdictional issue itself. [00:03:47] Speaker 02: That's what makes this a complicated question. [00:03:49] Speaker 02: If we just look past the, just for one moment, the fact that the board didn't specifically discuss the issue in its opinion and just talk substantively about the issue, [00:03:59] Speaker 02: Is there support for the proposition that appear at a review committee that even in the company's own description is part of the company? [00:04:07] Speaker 02: It's a menorah, a menorah body. [00:04:10] Speaker 02: It's definitely, its genesis comes from state law, I understand that. [00:04:15] Speaker 02: But the menorah treats it as a menorah body. [00:04:18] Speaker 02: Is there some support for the proposition that we would say that that body, even though it's part of an employer, is nonetheless a political subdivision as to which the board lacks jurisdiction when the unfair label practice is alleged to be committed by the employer, the company? [00:04:35] Speaker 03: It's a novel question. [00:04:38] Speaker 03: The closest that I can give you to support for that is the Ninth Circuit's decision in the Mount Vernon case, where even though it was an employer who was disciplining a sailor on board a ship, that was held to be outside the scope of wine garden rights under the NORA. [00:04:52] Speaker 02: So that goes to the question of whether wine garden... [00:04:55] Speaker 02: The substantive Weingarten inquiry comes out differently because of the nature of the functions, as opposed to whether the board just has jurisdictional authority over the entity. [00:05:04] Speaker 02: Because that wasn't a – I don't think that was a jurisdictional case. [00:05:07] Speaker 03: It was not, but there's an analogous principle that underlies both the jurisdictional question and the Weingarten question, which is what happens when an employer is not acting as an employer, but rather is carrying out an obligation under some other source of law? [00:05:23] Speaker 03: And in the Mount Vernon case, wine garden rights weren't applicable because the disciplinary proceeding there was not pursuant to the employer's economic power, but was pursuant to the obligation under state or federal law, I can't recall, to ensure safety aboard the ship. [00:05:39] Speaker 02: So too. [00:05:41] Speaker 02: You could make that same argument as a substantive argument as to why Weingarten, in your view, shouldn't apply, as opposed to an argument that this case involves a political subdivision that lies wholly outside the board's jurisdiction. [00:05:54] Speaker 03: Yes, and I don't mean to shift gears between jurisdiction and Weingarten. [00:05:56] Speaker 02: No, I just wanted to make sure I understood conceptually that the arguments, the substantive arguments you're making would do work under either conceptual lens. [00:06:05] Speaker 03: That's right. [00:06:06] Speaker 03: The same core substantive point applies to a number of different issues in this case. [00:06:12] Speaker 01: Are you on the jurisdictional point? [00:06:15] Speaker 01: Is the committee a state actor for other purposes? [00:06:19] Speaker 03: I don't know that it would be a state actor for other purposes except in so far as state law specifically provides that the PRC members, the peer review committee members, are state officers engaged in a discretionary function of the state. [00:06:35] Speaker 03: And that's the key point here is that these individuals, while employed by the hospital, [00:06:41] Speaker 03: for their purposes of their services on the peer review committee are functioning as state actors. [00:06:46] Speaker 03: The only reason that the peer review committee exists is that it is a function of state law. [00:06:51] Speaker 03: It was established by the state. [00:06:52] Speaker 04: Is it subject to 1983 liability, then? [00:06:56] Speaker 03: I don't know whether it would be subject to 1983 liability or not. [00:06:59] Speaker 03: That's not an issue that has been litigated, to my knowledge. [00:07:04] Speaker 03: Well, it actually has. [00:07:05] Speaker 03: The 10th Circuit says not. [00:07:07] Speaker 04: So the idea that it's a state actor for all purposes really doesn't work. [00:07:13] Speaker 04: And I assume you don't want to be subject to it. [00:07:15] Speaker 03: That was the point of my question. [00:07:17] Speaker 03: No. [00:07:18] Speaker 03: Of course, don't want to be subject to liability as a state actor. [00:07:21] Speaker 03: But the Hawkins test, when you look at it, when you look at the Supreme Court's opinion, the Supreme Court did not say that the Hawkins test has to be applied mechanically to each potential political subdivision. [00:07:33] Speaker 03: What the Supreme Court did in that case was it said it reversed the board for improperly applying its own Hawkins test while leaving open the possibility that in other cases a different test would apply looking at the actual operations and characteristics of the entity at issue. [00:07:52] Speaker 04: When I look at Hawkins, the court explains, I'll just read it to you, the legislative history does reveal [00:07:58] Speaker 04: that Congress enacted the exemption to accept from board cognizance the labor relations of federal, state, and municipal governments, since governmental employees did not usually enjoy the right to strike. [00:08:12] Speaker 04: In the light of that purpose, and then they go forward with the test, there's no argument that these peer review people are themselves government employees, members of the committee. [00:08:25] Speaker 04: They're employees of the hospital, aren't they? [00:08:28] Speaker 03: They are, but the only reason that they are performing this function is to carry out a state licensing function. [00:08:36] Speaker 04: This has nothing to do with the relationship between the state as employer and the committee members as employees of the state, which is what the Supreme Court said was the reason for the exemption. [00:08:51] Speaker 03: But it does have to do, however, with carrying out a state function versus the employer-employee relationship, which is what the NORA is meant to govern. [00:09:02] Speaker 01: On your wine garden issue, if we get to that and get past the jurisdictional issue, not in your favor, what is the practical harm from your perspective of applying wine garden rights to these committees? [00:09:15] Speaker 03: The practical harm is that these committees depend on confidentiality in order to carry out their purpose of ensuring patient safety. [00:09:24] Speaker 03: When you introduce a third party union representative, you destroy that confidentiality, you make candor among peers, which again, this is a peer review committee, you make candor more difficult. [00:09:36] Speaker 03: And you change the dynamic from one that is focused on protecting patient safety above all else [00:09:42] Speaker 03: to a union intervening in a process in order to protect employees' terms and conditions of employment, which is not what these proceedings are about. [00:09:52] Speaker 03: The disciplinary proceedings in the hospital operate on a separate track, and employees have full union representation throughout that process. [00:10:01] Speaker 02: If it had dual purposes, if it served both the state licensing purpose and employee discipline purposes, would you be making the same argument? [00:10:12] Speaker 03: That's a bit of a difficult question to answer in the abstract because I think it would depend, again, as the court said in Hawkins in connection with the jurisdictional issue, on the actual operation of the committee and what it's really doing. [00:10:25] Speaker 01: But your answer to that has to be no, I think, because the whole point of your argument, as I understood it, was this is not a disciplinary process. [00:10:32] Speaker 03: Right. [00:10:33] Speaker 03: And then getting back to this case, the key point is. [00:10:35] Speaker 01: The key line is discipline is not involved here. [00:10:39] Speaker 01: Right. [00:10:40] Speaker 01: And if discipline were involved, different case. [00:10:43] Speaker 03: If it were a true hybrid case, that would certainly be different. [00:10:47] Speaker 02: So can I ask you then on a true hybrid case, I'm looking at the risk, the Menorah Medical Center risk management plan in the appendix. [00:10:56] Speaker 02: And it says at JA-68, [00:11:03] Speaker 02: down towards the bottom of the page, use of risk management data. [00:11:07] Speaker 02: And it says, when the investigation of a reported incident results in an adverse finding, the event will be considered at the time of recredentialing of members of the medical staff or health professionals or employee performance evaluations. [00:11:19] Speaker 02: And then later on, on C, it says internal institutional actions may be taken as a result of the investigation and data. [00:11:26] Speaker 02: Does that indicate that per the policy itself, that risk management portion of the inquiry seeps into [00:11:36] Speaker 02: employee performance evaluations and internal institutional actions, or is that not what that says? [00:11:42] Speaker 03: No, and let me make a few points to address that. [00:11:45] Speaker 03: First of all, as a practical matter, the hospital's internal disciplinary process proceeds much faster than the peer review process. [00:11:53] Speaker 03: And in this case, for example, any discipline for one of the incidents at issue occurred two months before the peer review committee even initiated its proceedings. [00:12:04] Speaker 03: And so there are separate tracks. [00:12:06] Speaker 03: And by the time anything is reported to the hospital as a result of the peer review committee, any hospital discipline procedure would have already been completed. [00:12:16] Speaker 03: Second of all, as far as recredentialing is concerned, [00:12:20] Speaker 03: If a nurse loses a license, any resulting consequence of that in employment is not a matter of hospital discipline. [00:12:29] Speaker 03: It's simply a matter of state law that imposes consequences for not having a license. [00:12:35] Speaker 03: With respect to performance evaluations, performance evaluations are not discipline. [00:12:39] Speaker 03: And there's no evidence in this record. [00:12:42] Speaker 03: To the contrary, there is testimony that no nurse has ever been placed on a performance improvement plan, which might be considered a form of discipline, as a result of the work of the peer review committee. [00:12:53] Speaker 02: So you think Weingarten doesn't apply to something that's called employee performance evaluation? [00:12:58] Speaker 02: If there's an employee performance evaluation process, [00:13:01] Speaker 02: And performance evaluations, I would think, naturally beget employment consequences, potentially, that Weingarten rights don't apply to the employee performance evaluation as such. [00:13:11] Speaker 03: I think it wouldn't, because that's not a form of discipline. [00:13:14] Speaker 03: But I also think that that's removed from this case. [00:13:17] Speaker 03: Because here, the sole purpose of the peer review committee is to report reportable incidents to the nursing board for licensing purposes, not for disciplinary purposes. [00:13:28] Speaker 03: Disciplinary. [00:13:30] Speaker 01: Keep going. [00:13:30] Speaker 01: No, please. [00:13:33] Speaker 01: You had a third argument, I think. [00:13:36] Speaker 01: You had four at the start. [00:13:37] Speaker 01: Yes. [00:13:37] Speaker 01: You've only gotten to one and two, I think. [00:13:39] Speaker 01: Yes. [00:13:40] Speaker 03: Your third's pretty strong, I think. [00:13:42] Speaker 03: So the third argument is that the board improperly compelled Menorah to turn over confidential information. [00:13:50] Speaker 01: Oh, I thought the third was going to be the violent whether they had a choice. [00:13:53] Speaker 03: They had a choice not to. [00:13:56] Speaker 03: I thought you were asking me to move on from Winegarden. [00:13:58] Speaker 03: The second part of our Winegarden argument, whether or not the proceedings are considered disciplinary, Winegarden does not apply when the proceedings are voluntary. [00:14:10] Speaker 03: And it's undisputed here that the proceedings were voluntary. [00:14:14] Speaker 03: The nurses at issue admitted that. [00:14:16] Speaker 03: In fact, one of the nurses chose not to attend one of the proceedings at issue. [00:14:21] Speaker 03: The letters that the nurses received at the outset of the process made crystal clear that the interview was voluntary. [00:14:28] Speaker 03: They explicitly offer, quote, the opportunity to speak with a nursing peer review committee if you choose. [00:14:35] Speaker 03: They acknowledge the employee's right of waiver of the opportunity to appear, and they allow the employee to submit a written response to the committee in lieu of an appearance, which one of the nurses did hear. [00:14:46] Speaker 03: And so the Weingarten right, even if it could apply in theory to a peer review committee proceeding, does not apply where attendance is voluntary. [00:14:56] Speaker 02: So what would make it involuntary is involuntariness applies only in a situation in which [00:15:03] Speaker 02: a sanction attaches to the failure to appear? [00:15:06] Speaker 02: Or how would you define a situation in which you don't have a choice whether to appear? [00:15:11] Speaker 03: Whether there's a sanction or not, I would say it's involuntary. [00:15:15] Speaker 03: If the letter had said you must appear at the following date and time, and whether the sanction is spelled out or not, if you receive that letter from your employer, I think you would treat that as a mandatory obligation. [00:15:25] Speaker 03: But here, we're so far removed from that. [00:15:27] Speaker 02: No, but I don't know. [00:15:28] Speaker 02: I guess the question is, even if a letter says you may appear, [00:15:31] Speaker 02: If everybody knows there's a consequence to not appearing, then the question is whether it's volunteer, right? [00:15:38] Speaker 02: It could say you can appear, you can't appear. [00:15:40] Speaker 02: By the way, if you don't appear, you're going to be fined $10,000. [00:15:43] Speaker 02: I think everybody would agree that's involuntary. [00:15:46] Speaker 03: Well, that's not what happened here. [00:15:49] Speaker 02: Right. [00:15:50] Speaker 02: So then the question becomes, what's the consequence of not coming? [00:15:54] Speaker 02: Do you think that that matters, what the consequence would be of not coming? [00:15:57] Speaker 03: The consequence of not coming, and this follows from Weingarten itself, is that the employer will conduct whatever investigation the employer is going to conduct without an in-person appearance from the employee, perhaps with a written submission, which is offered here. [00:16:15] Speaker 03: And so even if there were some hypothetical situation where the consequences were so coercive as to make the appearance involuntary, this is far removed from that and falls squarely within what the Supreme Court... Yeah, I'm not saying I necessarily disagree with you. [00:16:30] Speaker 02: I'm just trying to understand. [00:16:32] Speaker 02: when we get to compulsion in this context. [00:16:34] Speaker 02: So suppose the letter says, or the letter's fairly grand to say, you can show up at the hearing, you don't have to show up at the hearing. [00:16:42] Speaker 02: If you don't show up at the hearing, you won't have a chance to tell your side of the story, and based on the other evidence we've collected, we think it's pretty clear that you committed some inappropriate conduct, but you don't have to show up at the hearing. [00:16:52] Speaker 02: We'll base our determination on independent evidence that we collect without the benefit of your testimony at the hearing. [00:16:58] Speaker 02: Would you say that that's, [00:17:00] Speaker 02: a situation in which Weingarten doesn't apply because the person has a choice. [00:17:03] Speaker 02: And it may, that may well be. [00:17:05] Speaker 03: I think that is a situation where Weingarten does not apply because the person has a choice in that situation. [00:17:11] Speaker 01: Weingarten itself says that. [00:17:13] Speaker 03: And that falls squarely within the Supreme Court's own opinion. [00:17:16] Speaker 01: It's right on 259 and Weingarten, you lose the benefit. [00:17:20] Speaker 01: that you would otherwise gain by participating in the process. [00:17:24] Speaker 01: So that's. [00:17:24] Speaker 02: Right, I'm just trying to understand your argument. [00:17:26] Speaker 02: So that's, then my last question on this line, and then I'll have permission to move on, forgive me, is the board cites an opinion in its brief that our decision in AFGE Local 1941 versus FLRA, which is 837F, second 495, which talks, in the FLRA context, it talks about a statute that implements wine garden. [00:17:47] Speaker 02: And the board's understanding of that decision, and I can understand why they have this understanding if you read the decision, is that we construed Winegarden in that case to extend beyond formal compulsion in the way that you're talking about, to talk about effective compulsion, which is to say if it would be bad for you not to show up because some consequence could follow, that's still Winegarden. [00:18:09] Speaker 02: Do you have a response about that decision in particular, or? [00:18:12] Speaker 03: If I may, let me respond to that on rebuttal to that particular decision. [00:18:16] Speaker 03: But I think the core point is that Weingarten itself contemplates that, of course, there's a consequence for not showing up. [00:18:22] Speaker 03: You lose the benefit of telling your side of the story. [00:18:25] Speaker 04: Can I ask you also, on rebuttal, will you just check into this question about UConn? [00:18:29] Speaker 04: I haven't been able to find any. [00:18:31] Speaker 04: You can wait till you're rebuttaled, unless you have it. [00:18:34] Speaker 04: The question is, [00:18:36] Speaker 04: was the problem there, not only that the board didn't consider it, but that the ALJ also didn't consider it. [00:18:43] Speaker 04: Because I don't have any reference to the ALJ considering it in that issue. [00:18:47] Speaker 04: Of course, either, which would be different than this. [00:18:49] Speaker 04: Let me just ask you one other thing, if you could help me understand the Kansas statute 65-4923, the one about the reporting requirements. [00:18:58] Speaker 04: And maybe I'm looking at a section that's totally inapplicable. [00:19:01] Speaker 04: I'm looking at A2. [00:19:05] Speaker 04: And in the middle of it, it says, the committee, and that committee, I think, being the peer review committee, which is mentioned in the previous sentence, shall investigate all such reports and take appropriate action, including recommendation of a restriction of privileges at the appropriate medical facility. [00:19:23] Speaker 04: The committee shall have the duty to report to the appropriate state licensing committee center. [00:19:29] Speaker 04: That sounds like the statute is giving the committee the [00:19:35] Speaker 04: mandatory responsibility to make a recommendation of restriction of privileges at the [00:19:42] Speaker 04: at the hospital itself, not just the licensing issue. [00:19:45] Speaker 03: Is that wrong? [00:19:46] Speaker 03: But I think that the two rise and fall together. [00:19:49] Speaker 03: In other words, if the incident is so serious that the recommendation is that a license be revoked, that may automatically, as a matter of state law, involve restrictions at the hospital. [00:20:01] Speaker 03: That's still different, however, from hospital-initiated discipline, which proceeds here on a separate track. [00:20:08] Speaker 04: So you don't think that the order in which the statute puts this, which is first they're supposed to, in terms of the order of the sentences, first make a recommendation about restriction of privileges at the hospital and also have the duty to report to the licensing. [00:20:24] Speaker 04: You don't think that that means that these peer review committees are supposed to have anything to do with restriction of privileges at the hospital before a licensing determination. [00:20:34] Speaker 03: No, because I think that only the nursing board can ultimately make the licensing determination, which may have consequences for the ability of a nurse to practice at the hospital. [00:20:44] Speaker 03: But it's not a separate determination. [00:20:46] Speaker 03: But the hospital can restrict villages without a determination by the licensing board, can't it? [00:20:51] Speaker 03: It can, but that's not something that the peer review committee does. [00:20:55] Speaker 03: That's something that the hospital does through its own separate process. [00:20:59] Speaker 04: Is any information from the peer review committee go to the disciplinary process? [00:21:03] Speaker 04: Imagine we're not talking about your specific hospital, which, unfortunately, we don't have the evidence about. [00:21:09] Speaker 04: But you just mentioned on the record that disciplinary proceedings all happen first and licensing all happens later. [00:21:15] Speaker 04: So I'm looking at a more generalized situation. [00:21:18] Speaker 04: Imagine you have a hospital in which [00:21:20] Speaker 04: First comes the licensing decision, and then comes the discipline. [00:21:25] Speaker 04: Does information from the peer review committee go to the disciplinary committee of the hospital? [00:21:33] Speaker 03: So as Your Honor's question recognizes, that's certainly not the case here. [00:21:36] Speaker 03: And I don't think that that could happen at another hospital either because of the privilege that attaches to peer review committee proceedings under state law. [00:21:45] Speaker 03: Under the state statute, the privilege applies to report statements, memoranda, proceedings, findings, and other records submitted to or generated by peer review committees or officers. [00:21:58] Speaker 03: So there's a broad privilege that attaches to the sort of information that Your Honor's question is referring to that would prevent that from being disclosed within the hospital and used for other purposes, precisely because the peer review committee is privileged. [00:22:15] Speaker 03: And privileged even from the hospital itself? [00:22:21] Speaker 03: So the privilege belongs to the committee, and so it would be, I think, privileged even from the hospital itself. [00:22:30] Speaker 03: Can I just ask one more question? [00:22:31] Speaker 04: I'm sorry, we're way into your time, but we'll give you a chance for a bottle anyway, about the restriction on disclosing reportable information as compared to the statutory [00:22:44] Speaker 04: which is about reported information, or at least about, which is about reported information, submitted information, why isn't it too broad to say reportable information? [00:22:54] Speaker 03: Because reportable incidents – a nurse who is charged with understanding the peer review process in Kansas is charged with an understanding of this statute, which defines a reportable incident in a way that is virtually identical to the definition of a reportable incident in the hospital's plan. [00:23:16] Speaker 03: And it is best understood, and the only objectively reasonable way to understand it is that this hospital procedure, this confidentiality requirement, is simply tracking the requirement under state law that peer review committees be treated as confidential. [00:23:34] Speaker 04: So the risk management plan defines a reportable incident, right? [00:23:41] Speaker 04: And it says an act or practice [00:23:43] Speaker 04: which is or may be below the applicable standard of care or may be a grounds for disciplinary action by the appropriate licensing agency. [00:23:55] Speaker 04: So that seems like it's the underlying act or practice. [00:24:00] Speaker 04: Now, are you saying that, and then the restriction says no hospital employee can disclose information concerning reportable incidents except the superior's hospital administration, et cetera. [00:24:13] Speaker 04: So if the employee wants to discuss with the union an unsafe practice in the hospital, that can't be done because it might be reportable? [00:24:27] Speaker 03: No. [00:24:28] Speaker 03: I think that the policy is not meant to cover the underlying facts that may be relevant to what the peer review committee is doing. [00:24:37] Speaker 03: But it says an act of practice. [00:24:39] Speaker 03: That sounds like the underlying facts. [00:24:42] Speaker 03: So the language in the policy is tracking 654921F, which refers to a reportable incident in virtually identical terms to what's in the policy. [00:24:57] Speaker 03: And that reportable incident in the statute is referring to the outcome of the peer review committee process, not to the underlying facts separate from what was generated by or submitted to the peer review committee. [00:25:12] Speaker 04: But do you agree that the words of the risk management plan sound broader than that? [00:25:17] Speaker 04: A nurse would have to look somewhere else to think it was narrower than the risk management plan. [00:25:22] Speaker 03: The nurse would have to read the language of the risk management plan in light of the state statute, and nurses are charged with an understanding of the state statute as part of their licensure requirements. [00:25:33] Speaker 03: And so I don't think it can be read in isolation. [00:25:35] Speaker 03: I think it has to be read against the backdrop of that state statute. [00:25:39] Speaker 03: OK. [00:25:39] Speaker 03: All right, thank you. [00:25:41] Speaker 03: We'll hear from the other side. [00:25:55] Speaker 07: May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board. [00:25:59] Speaker 07: I want to address the jurisdictional issue, the political subdivision issue first, and the question about whether or not these peer review committee members are state officers under section 65.4929 of the Kansas statute. [00:26:14] Speaker 07: What that provision actually says is that peer review committee members and any provider who performs a function under the peer review statute, which includes the mandatory reporting of any suspected reportable incident. [00:26:31] Speaker 07: So if you are a nursing supervisor and you see a nurse do something that might be a reportable incident, you're required under the statute under section 4923 to report it. [00:26:43] Speaker 07: So you and anybody on the peer review committee is a state officer serving a discretionary function and you're entitled to all immunity of the state. [00:26:53] Speaker 07: That provision explicitly refers to immunity of the state. [00:26:56] Speaker 07: The next provision, C, then says you're not an employee of the state for any other purpose. [00:27:03] Speaker 07: So this provision, the board found, does not [00:27:08] Speaker 07: give you, it doesn't make you a state employee. [00:27:11] Speaker 07: It doesn't put you under any state law. [00:27:13] Speaker 07: You are not responsible to the state in any way except that you have reporting requirements. [00:27:22] Speaker 07: I do want to talk a little bit about the privilege and whether or not you have to disclose to the hospital, which was Judge Garland. [00:27:29] Speaker 02: Can we talk about Weingarten for a second? [00:27:31] Speaker 02: Yes, of course. [00:27:32] Speaker 02: So on Weingarten, [00:27:34] Speaker 02: Why isn't it the case that there's voluntariness here because of what Winegarden says? [00:27:39] Speaker 02: Because at page 250 at Winegarden, the Supreme Court seems to make pretty clear that it's okay for an employer to have a process under which [00:27:53] Speaker 02: independent evidence can be gathered that results in some sort of consequence for the employee. [00:27:59] Speaker 02: And that the employee may be worse off by not showing up at the hearing because the employee may, in the court's words, forego any benefits that might be derived from one. [00:28:11] Speaker 02: But as long as the employee is not compelled to appear at the hearing without union representation, that's still okay as a matter of ongoing. [00:28:19] Speaker 07: Except that what you're not taking into account just by reading that part of Wine Garden is the purpose of Wine Garden and what the Court is talking about there. [00:28:27] Speaker 07: They're talking about union representation. [00:28:29] Speaker 07: We're not talking about whether or not a meeting is voluntary in and of itself. [00:28:33] Speaker 07: Whether the meeting is voluntary or compulsory is not really the question. [00:28:37] Speaker 07: The question is when an employee requests a union representative to accompany her to this meeting, the employer under Wine Garden is obligated to say, [00:28:49] Speaker 07: Yes, or in this case, no, you can't have one. [00:28:53] Speaker 07: Wine Garden absolutely gives the employer the right to say, no, you can't have one. [00:28:56] Speaker 07: But once the employer says, no, you can't have one, the employer then needs to say, [00:29:02] Speaker 07: You can't come with a union rep, so now it's your decision. [00:29:05] Speaker 02: What if the sequence is just a little bit? [00:29:08] Speaker 02: So suppose you have a proceeding. [00:29:10] Speaker 02: At the beginning of the proceeding, the announcement is made. [00:29:14] Speaker 02: We see that the employee is here. [00:29:16] Speaker 02: You, of course, don't have to be here. [00:29:18] Speaker 02: It's entirely up to you whether to be here or not. [00:29:20] Speaker 02: You can leave right now if you'd like. [00:29:21] Speaker 02: If you stay, we'll ask you some questions. [00:29:25] Speaker 02: If you stay, you don't get to have a union representative, but again, you're free to leave. [00:29:28] Speaker 02: And then the employee says, I'd like to have a union representative. [00:29:32] Speaker 02: At that point, does the employer have to repeat what it just said? [00:29:35] Speaker 07: I don't think so, but that's not what happened here. [00:29:37] Speaker 07: What happened here, they asked for union representatives and they were told no, period. [00:29:42] Speaker 01: They were previously told that they could appear without a union representative or not appear at all. [00:29:50] Speaker 07: They were previously told via letter that they are, that something they did [00:29:56] Speaker 07: subjects them to possible disciplinary action, and they should show up, but it's voluntary. [00:30:00] Speaker 01: Once they ask for the union rep... And voluntary means you don't have to show up. [00:30:03] Speaker 07: It means you don't have to show up, but once they ask for the union representation... [00:30:08] Speaker 07: The onus is on the employer, not to provide the representation. [00:30:11] Speaker 01: Why? [00:30:11] Speaker 01: Where does that come from? [00:30:11] Speaker 01: That's a new rule. [00:30:12] Speaker 01: That would be a big expansion of Weingarten to say you have to do a repeat of the advice that is already given that the appearance is voluntary. [00:30:26] Speaker 07: I don't think so, Your Honor, because remember, Weingarten and the board's cases have set out that the employer needs to make this obvious. [00:30:33] Speaker 07: And here's the reason why. [00:30:35] Speaker 07: The employee [00:30:38] Speaker 07: Once they get to the meeting, the union's purpose is to protect the employee, right? [00:30:49] Speaker 07: So if the union is not there to bargain with the employer, the union in these situations is usually silent. [00:30:55] Speaker 07: But the nurses, remember, do not know the charges against them before they go in. [00:31:00] Speaker 07: They are not told before they go what the charge is against them. [00:31:04] Speaker 07: The union's purpose is to represent the employee. [00:31:07] Speaker 07: And if they are in these meetings that can lead to discipline, then the union is able to assist the employee [00:31:14] Speaker 01: But your point is that they don't have a right to have a union representative in there. [00:31:19] Speaker 07: They do not have an absolute right to have a union representative. [00:31:22] Speaker 07: That is correct. [00:31:23] Speaker 02: I don't understand why that's different from a hypothetical because in the hypothetical at the very beginning of the hearing before the employee knows [00:31:30] Speaker 02: Suppose the employee doesn't know the nature of the charges or anything, just a notice that this proceeding is going to happen, and they're told, by the way, you don't have to be here. [00:31:37] Speaker 02: It's entirely up to you whether to be here. [00:31:40] Speaker 02: And then the employee says, I'd like a union representative. [00:31:43] Speaker 02: It sounds to me like your argument would say, well, at that point, they have to remind it again that they don't have to be there. [00:31:50] Speaker 02: Otherwise, all we're talking about is how far in advance were they told that they didn't have to be there. [00:31:54] Speaker 02: Here it was more in advance than at the very beginning, but that's what we're talking about. [00:31:58] Speaker 02: We're not talking about anything other than the duration of time, are we? [00:32:05] Speaker 07: In my mind, we are. [00:32:06] Speaker 07: I mean, the point of Winegarden is so that an employee is on notice, that they can refuse to participate and refuse to answer the questions without antagonizing the employer. [00:32:16] Speaker 07: And that's a big deal, right? [00:32:18] Speaker 07: So once you've asked for a union rep, you're taking this to a different level, right? [00:32:23] Speaker 07: You need to know you're not antagonizing your employer. [00:32:26] Speaker 07: And if the employer tells you, [00:32:27] Speaker 02: That's equally true if the announcement's made at the very beginning of the proceeding, you don't have to be here, and then the employee says, I'd like a union rep. [00:32:36] Speaker 02: It sounds to me like the logic of your argument, and maybe it's right, but the logic of your argument would be, well, everything changed once the employee asked for a union rep, even though the employee was just told that they didn't have to be there. [00:32:47] Speaker 02: The employer then has to repeat that they don't have to be there. [00:32:49] Speaker 07: I mean, that is a different case. [00:32:51] Speaker 07: And if that actually happened in these meetings, the union representation issue was discussed and the voluntariness was discussed at the meetings, the board might have come out differently. [00:33:01] Speaker 01: But do you assume they read the letter? [00:33:02] Speaker 07: I do assume they read the letter. [00:33:06] Speaker 01: OK. [00:33:06] Speaker 01: Look, can I ask a preliminary question about Wine Garden applying at all? [00:33:10] Speaker 04: Can I ask just one question on this, just on this point before we drop off? [00:33:15] Speaker 04: In the board's opinion, [00:33:18] Speaker 04: It lists the argument you're making and then says, or if the employee is otherwise aware of those choices, quoting the Postal Service. [00:33:29] Speaker 04: So why doesn't the letter make the employee otherwise aware? [00:33:35] Speaker 04: That is, even without being told afterwards again that it's voluntary? [00:33:40] Speaker 07: Because I don't think in this case that the employees were on notice, that this could go forward, that they had the right to a, they do have the right to a unit representative. [00:33:52] Speaker 07: What they were told was that they did not. [00:33:55] Speaker 07: And they were told that they could not have a union representative, right? [00:33:58] Speaker 04: I thought you told the other judges that that alone was all right, that they didn't have the right to a union representative, as long as it was voluntary. [00:34:08] Speaker 07: I mean, it is voluntary, and they don't have the absolute right to a union representative. [00:34:13] Speaker 07: But they were told no, with no additional discussion of these other factors, which would let them know that they could refuse to participate without antagonizing the interior. [00:34:24] Speaker 01: The letter had already told them that. [00:34:25] Speaker 01: I mean, it says it's voluntary. [00:34:27] Speaker 01: I mean, I guess we're just repeating ourselves. [00:34:30] Speaker 04: Is there an LRB case on this that is a case like the one that we have here, or is this the first? [00:34:38] Speaker 07: I don't know if this is absolutely the first, but I can't think of a case that's exactly the same. [00:34:42] Speaker 04: There's no case that's addressed this point and said that. [00:34:45] Speaker 07: About timing? [00:34:46] Speaker 04: Yes. [00:34:47] Speaker 04: No. [00:34:48] Speaker 01: Can I, on the Weingarten applying it all, so the American Hospital Association's amicus brief says that the board's approach here promises to frustrate efforts to promote better quality health care throughout the United States, and they have great concern about the board's decision. [00:35:04] Speaker 01: Your response? [00:35:07] Speaker 07: I don't believe that having a union representative whose job is just to assist the employees in a situation where they don't know what's going to happen, I don't see how that impacts. [00:35:18] Speaker 01: But they presumably know about health care, and they're saying the approach here is going to interfere with peer review, which is present in all 50 states, and in their words, frustrate efforts to promote better quality health care throughout the United States. [00:35:36] Speaker 01: I mean, what their point is, I believe they explain, is peer review is very important to ensuring better practices and that peer review is separate from discipline and that merging the two in the way the board did here would interfere with the peer review process and diminish its effectiveness and thereby harm health care in the United States. [00:36:02] Speaker 07: Well, remember that [00:36:04] Speaker 07: The employer does not bargain with or really even interact with the union in these meetings. [00:36:09] Speaker 07: The union is just there to assist the employee. [00:36:11] Speaker 07: The union is not making any kind of pronouncement about the peer review committee proceedings. [00:36:17] Speaker 07: The nurses are there to give their statement of what happened. [00:36:22] Speaker 07: The nurses are not there while the peer review is deliberating. [00:36:26] Speaker 07: So the union is not present during that time. [00:36:28] Speaker 07: They're just present while the employee is giving a statement. [00:36:31] Speaker 01: What about the point that [00:36:33] Speaker 01: which is the basic thrust of the argument, which is there are two separate tracks here. [00:36:38] Speaker 01: There's the peer review track and there's the disciplinary track, and that this would improperly bring the union or expand Weingarten in a new way to bring the union into the peer review track. [00:36:52] Speaker 07: I think in this particular case, those tracks are already [00:36:57] Speaker 07: muddled, to say the least. [00:36:58] Speaker 07: I mean, the statute says that the peer review committee members and officers can share any of their information with the hospital and with management of the hospital. [00:37:09] Speaker 07: Risk manager cross says that if the peer review committee is not meeting soon, if she gets a report of something that happens, she sends it straight to the nursing supervisor. [00:37:16] Speaker 07: and then sends it on. [00:37:18] Speaker 07: These things are intertwined. [00:37:20] Speaker 07: And as Judge Sreenivasan pointed out, the risk management plan itself says that any adverse finding will be used in employee evaluations and institutional action will be taken. [00:37:30] Speaker 01: But any disciplinary proceeding that took place, of course, the employee would get notice and would have the right to union representative at the disciplinary proceeding. [00:37:44] Speaker 01: at the disciplinary, but remember these- Before anything that can happen to your job, pay, firing, what have you. [00:37:52] Speaker 07: Maybe not before. [00:37:53] Speaker 07: I mean, the peer review committee's purpose is to decide whether or not something is reportable to the state. [00:37:58] Speaker 07: And if it comes up under number three or four, it gets reported to the state. [00:38:01] Speaker 07: The peer review committee has extremely broad discretion. [00:38:06] Speaker 07: They decide if something is a two, which means it doesn't go to the state, or a three. [00:38:10] Speaker 07: And here, if you look at the two disciplinary letters that were originally sent out, they were sent out in the original as, this is a potential four. [00:38:17] Speaker 07: Come in and talk to us about it. [00:38:18] Speaker 07: They were reduced to two after the nurses showed up. [00:38:22] Speaker 07: That is the decision of the peer review committee. [00:38:26] Speaker 07: They analyzed the data and decided it was only a two. [00:38:31] Speaker 01: Peer review has been in place for many years. [00:38:33] Speaker 01: Why now Wine Garden rights? [00:38:36] Speaker 07: As you know, the board can only take the cases that come to us. [00:38:43] Speaker 07: We don't go out. [00:38:44] Speaker 07: We can't go out and find cases. [00:38:46] Speaker 07: So this may be the first case that's come to us that hasn't settled. [00:38:48] Speaker 04: Neither can we. [00:38:50] Speaker 04: Okay, unless we have further questions. [00:38:54] Speaker 01: I do. [00:38:55] Speaker 01: Suppose the state licensing board itself did this kind of [00:39:01] Speaker 01: investigation instead of a peer review committee. [00:39:04] Speaker 01: In other words, any incident was reported directly to the state licensing board. [00:39:09] Speaker 01: Obviously, no right to a union representative if the state licensing board did. [00:39:14] Speaker 07: And the state sometimes does. [00:39:15] Speaker 07: The state board of nursing may do its own independent. [00:39:17] Speaker 01: And I think the point then is that the peer review committee is doing it [00:39:22] Speaker 01: in place of the state. [00:39:23] Speaker 01: They may not be state actors, under your view, but they're doing it in place of the state, and it's the same kind of proceeding that would be the proceeding before the state licensing board. [00:39:31] Speaker 01: It may result in the loss of license for the nurse. [00:39:35] Speaker 07: Yes, it may. [00:39:36] Speaker 01: But not job discipline, as traditionally understood, job discipline by the employer. [00:39:42] Speaker 07: Except that these are hospital employees tasked by the hospital to fulfill this function, chosen by the hospital, [00:39:49] Speaker 07: reportable to the hospital, not to the State Board of Nursing to do this function. [00:39:54] Speaker 02: Can I just ask one question on a slightly different issue, which is the information requests? [00:40:00] Speaker 02: So the third category of information requests had to do with, I think it was the letters vis-a-vis other employees. [00:40:09] Speaker 02: Can you explain what the value is of that? [00:40:12] Speaker 07: The disciplinary letters sent to nurses? [00:40:15] Speaker 07: But the union is probably better able to discuss this, but the union's purpose is, the union is entitled to information about terms and conditions of employment, right? [00:40:28] Speaker 07: So the union requests information about discipline and disciplinary letters, and then they can try to figure out, are the rules being applied to everyone equally? [00:40:37] Speaker 07: What's going on? [00:40:38] Speaker 07: Why are nurses, every nurse on the third shift is coming up with a medication diversion problem? [00:40:44] Speaker 07: What is that about? [00:40:46] Speaker 02: So it ties into the notion about discipline. [00:40:48] Speaker 02: In other words, it accepts the predicate of your position, which is that the discipline and the licensing review were merged. [00:40:59] Speaker 02: And as a consequence, the letters that have to do with what the other side would say was purely licensing becomes a disciplinary issue because it's merged. [00:41:07] Speaker 07: Well, I think the board's decision is actually a little broader. [00:41:10] Speaker 07: I mean, all these issues go to the terms and conditions of employment for the nurses. [00:41:15] Speaker 07: They're subject to the peer review committee. [00:41:17] Speaker 07: And I'm not sure the question was exactly before the board this way, but if the question is whether or not the board would find that information needed to be provided, we're assuming no privilege, right? [00:41:29] Speaker 07: So we're assuming no privilege, but that there was no discipline. [00:41:33] Speaker 07: The board might, in fact, find [00:41:36] Speaker 07: The union is here and I gave them five minutes of my long-ago expired time. [00:41:45] Speaker 04: Okay. [00:41:47] Speaker 04: Forgot about you. [00:41:48] Speaker 04: Sorry. [00:41:52] Speaker 06: Good morning, Your Honors, and may it please the Court. [00:41:54] Speaker 06: My name is Nicole Darrow, and I'm Counsel for the National Nurses Organizing Committee, Kansas, which is the union that represents the registered nurses employed by Menorah Medical Center, including the two nurses whose investigatory interviews are the subject of this case. [00:42:11] Speaker 06: I'd like to add first some, supplement what Counsel for the Board already said about how the internal discipline procedure and the peer review [00:42:22] Speaker 06: procedure are in fact intertwined at Menorah and one [00:42:30] Speaker 06: One piece of record evidence that demonstrates that is that testimony by Blom, who was the former risk management supervisor at the hospital, did testify that depending on the facts of the case at hand, a finding by a peer review committee could be considered in deciding whether to initiate a performance improvement plan. [00:42:51] Speaker 06: And opposing counsel, I believe, just did not disagree that a performance improvement plan is undeniably disciplined. [00:43:01] Speaker 06: I then would also like to address the questions you raised about the voluntariness of participating. [00:43:06] Speaker 01: But before a performance improvement plan is put in place, presumably there has to be some process with the employee at which Wine Garden Rights would attach. [00:43:19] Speaker 01: There may be, if there is an investigatory... That's the whole point, I think, is that before any discipline, whether performance improvement plan or other discipline takes place, yes, you would have the traditional proceedings with wine garden rights. [00:43:34] Speaker 01: But this is a different kind of proceeding with a different purpose, the promoting better quality health care purpose. [00:43:41] Speaker 06: In this case, based on the testimony by Blom, it appears that those two processes are the same, that the peer review procedure, the peer review committee procedure, where an investigatory interview is conducted with the nurse whose conduct is at issue, that is their opportunity to participate, and that based on the findings of that peer review process, the supervisors at the hospital could decide to put that nurse on a performance improvement plan. [00:44:11] Speaker 01: Well, that's the question. [00:44:12] Speaker 01: I think it's before that happens, there has to be a disciplinary proceeding. [00:44:16] Speaker 01: And my understanding was that no, that actually can't happen directly as a result of the peer review committee. [00:44:22] Speaker 06: That's what opposing counsel argues, but in fact there's no requirement that hospitals have any kind of disciplinary proceeding whatsoever prior to disciplining a nurse. [00:44:33] Speaker 06: Pursuant to the collective bargaining agreement, the union could file a grievance and after the fact challenge the discipline, but there's no requirement under law or the collective bargaining agreement that that happened before the discipline is issued. [00:44:49] Speaker 01: But wouldn't that, if discipline were ever imposed directly as a result of the peer review proceeding, contrary to what the representations have been by the amici and by parties, then you could say, wait, our rights were violated because we were subject to discipline based on the peer review proceeding at which one garden rights were not provided. [00:45:13] Speaker 01: Why isn't that the solution? [00:45:15] Speaker 06: that it could be a solution if the hospital itself did separate those two functions entirely? [00:45:25] Speaker 06: That would be acceptable. [00:45:26] Speaker 06: I'd also just like to emphasize that whether Weingarten rights apply has to do with whether a nurse reasonably believes that an investigatory interview could lead to discipline. [00:45:39] Speaker 06: And in this case, the nurses did believe that it could, and reasonably so, based on the letters that were sent to them by the hospital summoning them to the peer review committee meetings. [00:45:53] Speaker 06: And I'd like to add something else about those letters. [00:45:56] Speaker 06: There was some discussion earlier that the letters made it clear that participation was voluntary. [00:46:03] Speaker 06: But in the case, especially of the first letter directed to Nurse Sentai, it said use language including [00:46:13] Speaker 06: that a final determination about whether her conduct could be subject to discipline cannot be made without gathering information from you. [00:46:21] Speaker 06: And also that the Medical Center's peer review committee, quote, cannot fairly and accurately make a final determination without more details that can only be provided by you. [00:46:31] Speaker 06: And that letter appears in the Deferred Appendix at 71. [00:46:35] Speaker 02: But then the letter also gave a choice between appearing or submitting and writing, right? [00:46:41] Speaker 06: It did, but it did not provide any facts from which the nurse could prepare a written response. [00:46:49] Speaker 06: And that was admitted by the hospital's risk manager who said that there was no way to respond in writing to the letters because the letters lacked any facts to which they could respond. [00:47:01] Speaker 04: And I would like to... Could I just interrupt here for a minute? [00:47:05] Speaker 04: So what do we do with footnote 11 of the board's opinion [00:47:09] Speaker 04: which says we find it unnecessary to pass on the ALJ's finding that the choice not to participate in the meeting was illusory. [00:47:18] Speaker 04: That's the argument you're making now that the choice not to participate was illusory, but it appears that the board did not rest its decision on that. [00:47:27] Speaker 04: Am I right or am I misreading the footnote? [00:47:29] Speaker 06: You are right, the board decided that voluntariness or lack of voluntary compulsion is not a threshold question in deciding whether Weingarten applies at all and it did refer to the decision in the AFGE decision which was under the FLRA and within the board's discretion adopted the standard from that decision. [00:47:55] Speaker 04: into board law, and that decision said that the question about... I'm sure I'm not being clear because I'm not clear on what the board said, but in the board's own decision, it appeared to rest solely on the failure to give a second warning. [00:48:12] Speaker 06: Okay. [00:48:13] Speaker 04: I'm looking at page two. [00:48:16] Speaker 06: Okay. [00:48:16] Speaker 04: And then it drops a footnote saying, in light of our finding that the employees did not knowingly waive their right to a Weingarten representative, I assume because they didn't get the second warning, we find it unnecessary to pass on the judge's finding that the choice not to participate in the meeting was illusory. [00:48:33] Speaker 06: Yes. [00:48:33] Speaker 04: So we're not allowed to rely on the ALJ's conclusion about it not being [00:48:40] Speaker 06: voluntary sure I'm glad you ask that because I I did want to talk you were asking questions earlier about the sequencing of the wine garden right and wine garden is clear there is a set sequence that that may in the abstract appear to [00:48:57] Speaker 06: require an employer to make the same announcement twice, but the sequence is clear. [00:49:03] Speaker 06: If an employee reasonably believes that an investigatory meeting could lead to discipline, and the employee asserts the right to have a union representative by requesting a union representative, then the employer has three choices, none of which were exercised by petitioner. [00:49:21] Speaker 06: And these three choices [00:49:22] Speaker 06: The board has developed in its expertise balancing the employer prerogative with the rights of employees. [00:49:30] Speaker 06: And those choices are the employer can grant the request and permitting a representative to participate in the meeting. [00:49:38] Speaker 06: The employer can deny the request and discontinue the meeting and base its investigation on facts available from other sources, or it can [00:49:49] Speaker 06: let the employee know, put the employee on notice, knowing notice that it can proceed voluntarily without a wine garden, without a union representative present. [00:50:02] Speaker 06: And those last two options protect all of the prerogatives asserted by the employer in this case, confidentiality, [00:50:10] Speaker 06: efficiency, maintaining the privilege, they could have done either of those things and instead they opted to just continue with the unlawful inquiry of the nurses who had requested union representation and were denied. [00:50:27] Speaker 04: It's that last sentence that follows the ones that you're referring to that I was asking the board lawyer about which says, under no circumstances may the employer continue the interview without granting the [00:50:40] Speaker 04: employee union representative unless the employee voluntarily agrees to remain unrepresented after having been presented by the employer with the choices mentioned above and the board italicizes after, or if the employee is otherwise aware of these choices. [00:50:59] Speaker 04: And I think the question is, why don't the initial letters make the employee aware of those choices? [00:51:08] Speaker 04: That's I think what we're struggling with. [00:51:10] Speaker 06: Because the employer assert the choices referred to are the choices within the wine garden framework and here the employer denied then and denies now that the wine garden framework applies at all and so the employer could not have communicated in those letters the wine garden rights of the employees which it denies that they have. [00:51:37] Speaker 04: Okay, thank you. [00:51:40] Speaker 06: Thank you. [00:51:42] Speaker 04: We used up more than all the time of Dishner. [00:51:45] Speaker 04: I will give you just a brief, if you could answer the questions that the members of the court previously asked you to start, that would be the best way. [00:51:56] Speaker 03: Judge Garland, in terms of the procedural posture of the Yukon case, it was a bit complicated because the jurisdictional issue there arose in the context of a representation proceeding. [00:52:06] Speaker 03: And so there was an earlier board decision in which the board did consider and reject the employer's jurisdictional arguments. [00:52:13] Speaker 03: That's 328 NORB, number 101, and it's June 18, 1999. [00:52:18] Speaker 03: That decision was not immediately appealable because of the nature of representation proceedings. [00:52:23] Speaker 03: It was in a subsequent appeal that the board gave only one sentence about the employer's jurisdictional argument, and this court remanded because the court didn't give it sufficient attention. [00:52:33] Speaker 03: It wasn't the AOJ. [00:52:34] Speaker 03: It was the board itself that had previously addressed the issue, but that was insufficient. [00:52:38] Speaker 03: So then you're saying that our court was wrong to say there was only a sentence. [00:52:43] Speaker 03: There was only a sentence in the opinion that was directly on review. [00:52:48] Speaker 03: And even that was insufficient. [00:52:51] Speaker 03: And the court doesn't reference this initial decision in the representational election? [00:52:55] Speaker 03: No, no it is not. [00:52:57] Speaker 03: This is based on, just answering your question based on what I know about the record. [00:53:01] Speaker 03: Judge Renevasen, in response to the FLRA case that you cited, first of all, the court in that decision recognized that representation rights under the FLRA may be different than representation rights under the NORA. [00:53:15] Speaker 03: Second of all, in that case, the hearing at issue was the only hearing before disciplinary action was taken. [00:53:22] Speaker 03: Whereas here, the hearing is not disciplinary, and any disciplinary proceedings by the employer would follow a separate track, as we've discussed. [00:53:32] Speaker 01: They're contesting that, though. [00:53:34] Speaker 01: I mean, I took both the board and the union to be trying to cast doubt on what you just said. [00:53:42] Speaker 01: So you want to respond to that? [00:53:43] Speaker 03: Yeah, let me respond to that with a few record citations that I think are relevant. [00:53:48] Speaker 03: First, Deferred Appendix 252 explains that any disciplinary proceedings would be on a separate track and would not be triggered. [00:53:58] Speaker 03: automatically by the peer review process but rather would be on a separate track with employee representation. [00:54:03] Speaker 03: Second of all, both nurses admitted that they understood that the only consequences of the nursing board of the peer review committee would be discipline perhaps by the nursing board but not employer discipline. [00:54:17] Speaker 03: That's deferred appendix 238 as well as 227 to 29 [00:54:22] Speaker 03: 168 and 238. [00:54:25] Speaker 03: So those are record citations that establish the separate tracks for this. [00:54:31] Speaker 03: And again, within that is also record testimony that no performance improvement plan has ever resulted automatically from a peer review committee proceeding. [00:54:42] Speaker 03: This always occurs on a separate hospital track. [00:54:44] Speaker 02: I'm not quite sure I followed the answer on the FLRA decision, just in one respect. [00:54:48] Speaker 02: Your second point, as I understood it, was that in that case, discipline immediately followed from the hearing. [00:54:54] Speaker 03: employer discipline would immediately follow from the hearing. [00:54:57] Speaker 03: Whereas here, no discipline follows from the hearing, it's only a referral to the nursing board. [00:55:02] Speaker 02: Right, but it just seems like that's addressing a different point, because I was raising the FLRA decision for the point about voluntariness. [00:55:10] Speaker 02: And voluntariness, that argument would apply regardless of whether discipline came right after the entire proceeding could be about discipline. [00:55:16] Speaker 02: And your point would be, based on Winegarden, as long as it's voluntary, it doesn't matter. [00:55:21] Speaker 02: There's been no denial of Winegarden rights. [00:55:23] Speaker 02: So I was trying to ask, what does FLRA, what does the FLRA decision tell us about voluntariness? [00:55:28] Speaker 02: Is it still voluntary, even if the employee is told it will inure to your detriment not to show up? [00:55:34] Speaker 02: You don't have to show up. [00:55:36] Speaker 02: It just is going to inure to your detriment not to show up, because we're not going to know your side of the story. [00:55:40] Speaker 02: And your answer, I think, is that, well, that's just Winegarden. [00:55:43] Speaker 02: And I guess my question was, does – is FLRA consistent with that understanding? [00:55:48] Speaker 03: If you isolate just the voluntariness question, I think there's some tension there with Weingarten. [00:55:53] Speaker 03: However, I think the tension is resolved, first of all, because it's the FLRA rather than the NORA. [00:55:58] Speaker 03: And second of all, while we're parsing this analytically very finely here, I think as a practical matter, it may be that the issues do bleed together. [00:56:07] Speaker 03: In this case, the disciplinary consequences are wholly different than they were in the FLRA case. [00:56:15] Speaker 04: I took you as saying in answer to one of our questions that the information from the peer review committee couldn't be shared with the hospital administration for any other purpose. [00:56:25] Speaker 04: Is that right? [00:56:26] Speaker 04: I believe that's right. [00:56:27] Speaker 04: So the other side says no and so I look at 4915E of the Kansas statute. [00:56:33] Speaker 04: Maybe again I've misunderstood it. [00:56:35] Speaker 04: But it says a peer review committee or officer may report to and discuss its activities, information and findings to a board of directors or an administrator officer of a health care provider without waiver of the privilege. [00:56:54] Speaker 04: Sorry, let me just pull up the statute for one second. [00:56:58] Speaker 04: And I must say, it would seem surprising if the peer review committee found a big problem and weren't allowed to tell the administration of the hospital. [00:57:06] Speaker 04: But regardless of whether it's surprising, that seems to me what the Kansas statute says. [00:57:25] Speaker 03: So I think whether the Kansas statute would allow it in theory, I think as a practical matter, on this record, the information used for any disciplinary proceedings is developed as part of a separate investigation and not as part of what the peer review committee has done. [00:57:43] Speaker 01: What if it were shared? [00:57:45] Speaker 01: So it's shared, but no discipline's imposed until a new proceeding [00:57:51] Speaker 01: So there's information that goes, but it's a new proceeding and you have a wine garden right at that proceeding. [00:57:58] Speaker 03: So if those were the facts, the fact that you have a wine garden right before any discipline attaches would still mean that no wine garden right would attach to the nursing board proceeding. [00:58:10] Speaker 03: The key point of wine garden is that when the employer is exercising its economic power vis-a-vis the employee, [00:58:16] Speaker 03: and affecting the terms and conditions of the employee in its capacity as an employer. [00:58:21] Speaker 03: At that point, the right to union representation attaches. [00:58:24] Speaker 04: At that point, does the confidential information of the peer review committee get disclosed to the employee? [00:58:31] Speaker 04: In other words, you have a peer review committee. [00:58:35] Speaker 04: No wine garden right applies, and there's a privilege. [00:58:40] Speaker 04: That information is shared, it seems to me, appropriately with a hospital. [00:58:45] Speaker 04: The hospital then begins a disciplinary proceeding. [00:58:48] Speaker 04: Does the hospital have to share that information at that point with the disciplinee? [00:58:54] Speaker 03: I don't know the answer to that question because again that's not how it actually operates in practice at this hospital where any hospital discipline invariably occurs before peer review committee findings rather than after. [00:59:08] Speaker 03: So I just don't know as a practical matter how that would work. [00:59:10] Speaker 04: Can you just repeat the appendix citation that says it always occurs before? [00:59:19] Speaker 03: So I would look at deferred appendix 252. [00:59:24] Speaker 02: It's a practical matter in that situation. [00:59:26] Speaker 02: So in this case, for example, the hospital thought that there was a level four problem and then after hearing from the employees as part of the peer review process, it gets downgraded to a level two. [00:59:36] Speaker 02: So if discipline would happen beforehand, would discipline happen based on false information? [00:59:41] Speaker 03: So, I don't think that the hospital disciplinary process tracks the rating scale, so to speak, of the state licensure proceedings. [00:59:52] Speaker 02: Presumably, if it turned out… It's clear that the hospital had one assumption about what had happened and was disabused of that assumption based on hearing from the employees, but it sounds like the way you described it, practically the discipline [01:00:04] Speaker 02: disciplinary question would have already been answered. [01:00:07] Speaker 03: But the facts could very well be the same, and the only question that the peer review committee is answering is how do we, in a sense, rate those facts according to the statutory scale that is required under the Kansas scheme. [01:00:20] Speaker 03: The fact that a level four was downgraded to a level two doesn't mean that any of the facts changed. [01:00:25] Speaker 03: It simply means you've had a proceeding and you've figured out what this represents on the state's scale. [01:00:32] Speaker 03: All right, thank you all. [01:00:34] Speaker 03: All sides will take the matter under submission.