Stephen R. McCutcheon, Jr., Attorney at Law
It is an unfortunate reality that the National Labor Relations Board’s position on an issue often swings back and forth depending upon the political party holding the Presidency. The current administration has undeniably staked out a strong pro-union agenda, identifying a number of established NLRB precedents governing the relationship between employers, employees, and unions that it wishes to overturn in the interest of promoting the interests of organized labor. It has also taken positions in a number of individual cases that strongly favored labor interests to the detriment of employee rights. Lost in this political climate has been the question of what is in the interest of the employees protected by the National Labor Relations Act, and the need for a steady and neutral arbiter in labor disputes.
The courts are becoming increasingly skeptical of this behavior. In a recent decision by United States District Court Judge Arthur J. Schwab, in NLRB v. UPMC, No. 14mc00109 (WD Penn., Aug. 22, 2014), the Court questioned whether the NLRB’s enforcement activities were legitimate, or whether the NLRB was abusing its power to aid a powerful labor union in its attempts to organize a local hospital.
The NLRB had filed unfair labor practice charges against the hospital, and served demands that the hospital produce confidential and proprietary information that was unrelated to the unfair labor practice charges, but would aid the union in its organizing efforts. Judge Schwab remarked that the “Court has never seen a document request . . . of such a massive nature” and that the “Court does not see how these requests have any legitimate relationship or relevance to the underlying alleged unfair labor practices . . . and, the requests seek information that a union would not be entitled to receive as part of a normal organization effort.”
In his most pointed remarks regarding the NLRB’s unprecedented demands, the Court stated,
Indeed the scope of 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 a litigation arm of the Union, and a co-participant in the ongoing organization effort of the Union.
The NLRB’s charge is to neutrally enforce the NLRA and protect the rights of employees, not to place its thumb on the scales of justice in favor of one side or the other, and these actions undermine the legitimacy of and respect for the NLRB.