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Union-Member Grievance-Related Privilege - Does It Exist and Can It Be Enforced?

January 2, 2013

A familiar scenario: John Smith, a member of the bargaining unit, was discharged. John’s union representative, Jane Brown, filed a grievance asserting that the employer lacked just cause for discharge in violation of the collective bargaining agreement. Throughout the steps of the grievance process, Jane discussed with John various aspects of the charges against him and strategized about possible defenses. Many of their discussions were conducted by email. Ultimately, the union decided not to arbitrate John’s grievance. Subsequently, John filed a lawsuit against the employer alleging wrongful termination.

A disturbing trend: Jane has been served with a subpoena from the employer directing her to produce the union’s entire grievance file for John, including her notes and any letters, memos and emails exchanged between the union and John related to his grievance. In addition, the employer’s subpoena directs Jane to appear for a deposition to testify about all discussions she had with John related to his discharge and to explain the reason why the union decided not to arbitrate John’s discharge.

Are Jane’s communications with John on matters related to his grievance confidential and privileged? Can Jane refuse to produce the subpoenaed file and/or to testify about all matters related to John’s discharge on the basis that these matters are confidential and therefore protected by a union-member grievance-related privilege?

Federal courts have not yet adopted a union-member grievance-related privilege. However, the National Labor Relations Board (“NLRB”) has ruled that an employer’s demand to discover confidential communications between an employee and his union representative made during the grievance process is an unfair labor practice. In so ruling, the NLRB found that the grievance-related information sought by the employer from the union interferes with the employee’s right to union representation and impinges on protected union activities in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”). Cook Paint and Varnish Co., 258 NLRB 1230, 1232 (1981).

To date, the handful of state courts and state labor relations boards that have had the opportunity to consider this issue have adopted and enforced the privilege. See, Peterson v. State of Alaska, 280 P.3d 559 (Alaska 2012); Int’l Bhd. of Elec. Workers v. Pub. Util. Dist. 1, Dec. 7656-A, 2003 WA PERC LEXIS 46, 55 (Wash. Pub. Employment Relations Comm’n., June 11, 2003); N. H. Troopers Ass’n v. N.H. Dept. of Safety, Dec. 94-74 (N.H. Pub. Employee Relations Bd., Aug. 31, 1994); Seelig v. Shepard, 578 N.Y.S.2d 965 (N.Y. Sup.Ct. 1991); Ill. Ed. Lab. Rel. Bd. v. Homer Cnty. Consol. Sch. Dist., 547 N.E.2d 182, 188 (Ill. 1989).

The most recent decision adopting the union-member grievance-related privilege was issued by the Supreme Court of Alaska in July, 2012. Peterson v. State of Alaska, 280 P. 3d 559 (2012). In this case, the plaintiff sued his employer, the State of Alaska, for wrongful termination after he was notified that the union would not arbitrate his discharge grievance. The State subpoenaed the plaintiff’s union representative to appear for a deposition and to bring with him a copy of the plaintiff’s grievance file. The plaintiff asked the court to issue a protective order that would prohibit the State from obtaining testimony and records from his union representative about his grievance. The plaintiff asserted that the information and documents were confidential and protected by a union-member privilege. Alaska has a public employee labor relations statute that governs labor disputes between a public employer and its employees. The statute does not contain language recognizing a union-member privilege. However, the statute contains a provision requiring collective bargaining agreements to include a grievance and arbitration provision. The trial court refused to recognize a union-member privilege and denied the plaintiff’s request for a protective order. The plaintiff appealed to Alaska’s Supreme Court.

The Supreme Court reversed the lower court, adopted a union-member grievance-related privilege and returned the case to the lower court for further proceedings. The Court found that a union-member privilege existed by inference because Alaska’s labor relations statute required agreements to include a grievance and arbitration provision and because the statute provides that an employer commits an unfair labor practice if it “interfere[s] with, restrain[s], or coerce[s] an employee in the exercise of the employee’s rights guaranteed” under the statute or “dominate[s] or interfere[s] with the formation, existence, or administration of an organization.” AS 23.40.080 and AS 23.40.110.

The Court also found persuasive the reasoning employed by the NLRB and the state courts who had adopted the union-member grievance-related privilege. Like the NLRB and state courts, the Supreme Court concluded that if an employer is permitted to obtain grievance-related information from a union representative all union members would be deterred from seeking advice and representation from the union regarding disciplinary charges thus seriously impeding the members’ statutory right to union representation and to participate in an employee organization. Additionally, the Court found “[i]mplicit in Alaska’s public union statutory rights . . . the right of the union and its members to function free of harassment and undue interference from the State. . . . As with attorney-client relationships, there is a strong interest in encouraging employees to communicate fully and frankly with their union representative. Frank communication ensures the employee receives accurate advice and meaningful and effective union representation.” Peterson, 280 P.3d at 565.    

The reasoning of the NLRB and the state courts in adopting a union-member grievance-related privilege is logical and unassailable. However, until the federal and state appellate courts rule definitively on this issue, unions should take affirmative steps to protect grievance-related documents and communications from disclosure. Unions served with a subpoena by an employer or a member’s attorney to produce a member’s grievance file and/or to testify on any matter related to a member’s grievance should contact the union’s attorney immediately so that it may be determined whether a motion to quash the subpoena or a motion for a protective order is warranted. This advice should be communicated by the union to its staff as well as it is not unusual for a steward, staff representative or business agent to be served personally with a subpoena at their home or place of business.    

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