In a case of particular importance to health care providers, the NLRB concluded that a hospital’s statutorily-supported confidentiality interest in accident reports did not outweigh the union’s interest in seeking disclosure.  In Kaleida Health Inc., 356 NLRB No. 171 (2011), in response to an employee’s termination for failure to document a patient fall, the union propounded a broad information request on the employer hospital seeking “records of all accident reports” and related disciplines in the previous six months.  The union claimed the information was necessary to determine whether the terminated employee was subject to disparate treatment.

The hospital responded that the request for house-wide incident reports sought confidential information as a matter of New York state law.  Nonetheless, the hospital offered to review the requested information itself and provide the union with a list of any employees disciplined in similar circumstances.  Not satisfied with this offered accommodation, the union filed an unfair labor practice charge. 

The ALJ initially determined that the information sought concerned bargaining unit members’ terms and conditions of employment and was thus presumptively relevant.  But the ALJ agreed with the hospital that it had a legitimate confidentiality interest based on two New York state statutes designed to encourage health care facilities to fully and accurately analyze negative outcomes at the facility.

Despite recognizing the confidentiality interest, the ALJ found that it was “not absolute” according to the terms of  the statutes.  In fact, he explained, the statutes expressly recognized that there may be some circumstances where the law otherwise requires disclosure.  Citing the Supreme Court's balancing test for the production of such information under Detroit Edison v. NLRB, 440 U.S. 301 (1979), the ALJ found that the union's interest in determining whether the terminated employee was treated disparately outweighed the hospital's legitimate confidentiality interest in the incident reports.  Thus, the documents were ordered to be produced with patient names redacted and subject to a limitation that only those “involved in or necessary to the resolution of the grievance” be permitted to review them.  The Board affirmed the ALJ’s decision.

In light of the Board’s order, health care employers must be aware that claims of confidentiality, even when supported by statute, may not be sufficient to withhold internal quality assurance documents.  When a union makes requests for such information, employers should work closely with experienced labor counsel to determine whether an appropriate accommodation of the union’s interest can be made.

This article was written by Robert Hennessy.

photo credit: peepo