Judge criticizes NLRB role in UPMC labor dispute

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A federal judge blasted the National Labor Relations Board Friday for a series of subpoenas it served on UPMC in a bitter labor dispute, but he granted the agency's application to enforce them, while giving the medical giant time to appeal.

U.S. District Judge Arthur J. Schwab wrote in an opinion that a series of NLRB subpoenas for UPMC documents, including some that he said were issued at the behest of the Service Employees International Union, were far too broad.

"The court has never seen a document request/subpoena … of such a massive nature," Judge Schwab wrote. The requests seek "highly confidential and proprietary information (except for a few public documents)" that has little to do with the underlying labor dispute, and require so much work that it would disrupt UPMC's business, he wrote.

The broadness of the requests "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," he wrote.

Acting NLRB regional director Rhonda P. Ley said that the subpoenas weren’t issued as part of the NLRB’s investigatory function, but rather in its trial role.

The NLRB’s judges are in between phases of a two-part trial pitting SEIU — backed by the NLRB’s investigators — against UPMC.

The first phase explored SEIU’s allegations that when it tried to organize UPMC Presbyterian and UPMC Shadyside, management responded by conducting surveillance and interrogations, and making implied threats of discipline and arrest. The NLRB judges handling the case have not yet issued a decision.

The second phase, Ms. Ley said, will focus on whether, as SEIU contends, UPMC is one entity. UPMC claims that each hospital is its own entity, as it did when the city of Pittsburgh sued to challenge its tax exemptions.

"We're doing the board's work in prosecuting the complaint that we have outstanding which alleged that UPMC is a single employer with hospitals,“ Ms. Ley said.

After criticizing the NLRB’s demands upon UPMC, Judge Schwab wrote that appeals court rulings on document requests by federal agencies force him to "essentially 'rubber stamp' the enforcement of the subpoenas at hand."

So he granted the NLRB's application to enforce the subpoenas. However, he stayed his own order to allow for an appeal by UPMC.

"We're going to wait, I guess, for the appeal period to run,” said Ms. Ley, adding that the decision could delay the start of the second phase of the trial.

SEIU issued a statement from Leslie Poston, described as a unit secretary in the heart and lung transplant department at UPMC Presbyterian.

"Thousands of UPMC workers like me are unable to pay our bills while UPMC pays for fancy lawyers and corporate jets,“ Ms. Poston said in the statement. ”Legal maneuvers don't change the fact that Pittsburgh knows UPMC is our largest employer. Executives who are paid millions of dollars could decide tomorrow to raise wages for us and end the retaliation against workers” allegedly fired for union activity.


Rich Lord: rlord@post-gazette.com, 412-263-1542 or on Twitter @richelord.

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