Federal Judge Expresses Concern Over NLRB Stance

Federal Judge Expresses Concern Over NLRB Stance Photo: Diego M. Radzinschi / NLJ National Labor Relations Board in Washington, D.C.

Calling out the National Labor Relations Board as moving toward “serving as the litigation arm of the union” rather than enforcing federal labor law, a federal judge granted the NLRB’s broad subpoenas of the University of Pittsburgh Medical Center, but stayed their implementation so that UPMC can seek appellate review.

U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania, faced with the NLRB’s request to enforce three subpoenas that it had served on UPMC, expressed his misgivings about the scope of what the NLRB sought in the subpoenas, but acknowledged his court’s narrow discretion to weigh them.

“The practical effect of case law as to enforcement of subpoenas of federal government agencies is that this court is constrained to essentially ‘rubber stamp’ the enforcement of the subpoenas at hand,” Schwab said.

He granted the NLRB’s applications to enforce the subpoenas, but stayed the enforcement so that UPMC can appeal and let the U.S. Court of Appeals for the Third Circuit define those constraints.

The underlying case stems from the early stages of unionizing activity by some employees at UPMC Presbyterian who were trying to unionize through the Service Employees International Union. They allege that the hospital tried to stifle their activity by surveilling the employees’ union activity, interrogating them about union activity, threatening them with discipline and arrest, and selectively enforcing its solicitation policies against those who supported the union.

The SEIU filed charges with the NLRB in April 2013.

The subpoenas that the NLRB is now seeking to enforce are “overly broad and unfocused,” Schwab said.

“The court has never seen a document request/subpoena duces tecum of such a massive nature,” he said. “The court does not see how these requests have any legitimate relationship or relevance to the underlying alleged unfair labor practices; instead, the requests seek highly confidential and proprietary information (except for a few public documents); the requests have no proportionality to the underlying charges; and, the requests seek information that a union would not be entitled to receive as part of a normal organization effort.”

Further, the judge said, “The scope and nature of the requests, coupled with the NLRB’s efforts to obtain said documents for, and on behalf of, the SEIU, arguably moves the NLRB from its investigatory function and enforcer of federal labor law, to serving as the litigation arm of the union, and a co-participant in the ongoing organization effort of the union.”

Schwab had denied a request to enforce a subpoena that was similarly broad in a case captioned Equal Employment Opportunity Commission v. Kronos, which involved a company, Kronos Inc., that did assessment testing for Kroger grocery stores. The Equal Employment Opportunity Commission had sought information from Kronos about every Kroger store across the country when the initial complaint had been filed against a single store.

The Third Circuit, however, had disagreed on appeal and directed Schwab to enforce the subpoena.

On remand, Schwab granted in part and denied in part the application to enforce the subpoena.

“This court denied the application in part out of concern that a single instance of alleged discrimination, at a single store, was being used to obtain unrelated information as to Kronos and its testing methods,” Schwab explained in his recent National Labor Relations Board v. University of Pittsburgh Medical Center opinion. “The court was also concerned about the implications of this subpoena on Kroger.”

On appeal, the Third Circuit again disagreed with Schwab.

“This court’s experience with the Kronos matter and its subsequent appellate history, leads this court to believe that it is constrained in the current case, in that any denial of the present applications to enforce subpoenas will not be affirmed. The court remains concerned about the effects of broad subpoenas, especially in light of the fact that the investigation into Kronos/Kroger is still ongoing, despite the fact that the single underlying charge was filed over seven years ago,” he said.

But, Schwab said, it is not within his court’s power to change the framework for evaluating the enforcement of subpoenas—that lays with the Third Circuit.

He stayed the implementation of his order to give UPMC an opportunity to seek review from the appeals court.

“If the United States Court of Appeals for the Third Circuit finds that the district court has the authority to conduct a meaningful and/or thorough review of the three subpoena duces tecum at issue here, the court is prepared to do so,” Schwab said.

Ruthie Goodboe and Thomas Smock of Ogletree, Deakins, Nash, Smoak & Stewart in Pittsburgh represented UPMC and couldn’t immediately be reached for comment.

Julie Rose Stern represented the NLRB.

Rhonda Ley, acting regional director for Region 6 of the NLRB, clarified that the subpoenas the board issued were in preparation for trial, “to obtain evidence for trial,” she said.

“This isn’t part of the investigation, this is part of the litigation,” she said, explaining that Schwab’s emphasis on the subpoenas being investigative appeared to be misplaced.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 11-page opinion in National Labor Relations Board v. University of Pittsburgh Medical Center, PICS No. 14-1324, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

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