…but is forced to rule wrongly.

The SEIU sued University of Pittsburgh Medical Center, alleging “unfair” labor practices in that, claimed the union, UPMC management interfered with employees’ right to organize. In connection with that suit, the NLRB issued three subpoenas demanding “highly confidential and proprietary information” be released from UPMC to the union.

Federal District Judge Arthur Schwab found the NLRB’s subpoenas, among other things, over broad and unfocused, and so illegitimate. He also found the subpoenas fundamentally irrelevant to the underlying case (which itself would have rendered the subpoenas inappropriate). He went further. In noting that the NLRB itself made no serious effort to argue the relevance of its subpoenas, he wrote [emphasis added]

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…and, the requests seek information that a union would not be entitled to receive as part of a normal organization effort. Indeed, 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.

But he was forced to the wrong outcome and to uphold the subpoenas; although he stayed his upholding pending appeal.

However, 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.

The Third Circuit, the appellate court for Schwab’s district, can overrule Schwab and strike down the subpoenas. The appellate level is the normal place where Federal agency subpoenas get struck. Schwab also, though, has given the Third an out.

If the practical effect of this legal predicament is to be altered, it is not the District Court’s role to do so, but the role of the appellate court. The Court is at a loss of how to adequately address the above issues of whether the matter under investigation serves legitimate purposes, whether the inquiry is relevant to that purpose, and not unduly broad or burdensome, while still conforming to the extremely narrow and limited nature of the proceedings at hand. 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 (3) Subpoena[s] at issue here, the Court is prepared to do so.

Schwab’s opinion can be read here.