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Union Member Communications: When Knowing Too Much Can Become a Problem

August 1, 2017

By: Alidz Oshagan

In general, employers cannot force private sector unions to disclose  communications with members during the course of representation. The National Labor Relations Board recognized a union-member grievance privilege for private-sector employees in Cook Paint & Varnish Co., 258 NLRB 1230 (1981), and found that an employer violated the National Labor Relations Act when it threatened to discipline a union steward unless he disclosed the substance and notes of conversations with a member about an incident that could have resulted in discipline.  The Board held that the employer “not only interfered with the protected activities of those two individuals but it has also cast a chilling effect over all of its employees and their stewards who seek to candidly communicate with each other over matters involving potential or actual discipline.”  Id. at 1232.

A few states (Alaska, Illinois, New Hampshire, New York, and Washington) have also recognized a narrow litigation privilege for representation communications between a union member and the union. The Alaska Supreme Court, for example, has recognized a “limited” union-relations privilege with respect to “communications made: (1) in confidence; (2) in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee’s attorney) and union representatives; and (4) by union representatives acting in official representative capacity.”

But the vast majority of states-- including Pennsylvania-- have do not recognize a union-member communication litigation privilege.  Which means, practically speaking, that unions should be sensitive to the potential uses of information acquired from members, beyond simply administering the grievance procedure.

In this regard, the disclosure of information acquired from bargaining unit members could potentially be compelled in both civil and criminal litigation--including disclosures that could be detrimental to a member’s legal interests. Unions should be particularly alert to: (1) a member’s disclosure of information about criminal misconduct, or conduct that could potentially be viewed as criminal; (2) misconduct at or outside of the workplace that could involve harm to other persons; or (3) disclosures that affect the member’s interests in other legal matters (for example, domestic relations cases or taxation disputes). We all know that members want to talk, and they will say whatever they want. But you may not want to know some information that a member wants to share—precisely because you may not be able to keep it private.

Union representatives should understand that they potentially could be compelled to testify in a civil or criminal proceeding against a member, to reveal the member’s statements. The safest course is for the member to seek independent advice from their own attorney, especially before discussing criminal (or potentially criminal) conduct with the union or the union’s attorney.  It is also important to remember that the union, not an individual member, is generally the union attorney’s client.  So statements made by a grievant to the union’s attorney also may not be covered by the attorney-client privilege.

The concept of legal privilege is complicated, and often it is not clear where and when a privilege might be applicable. If the employer is trying to get the union to disclose communications with members made during the course of representation, there likely is a privilege and disclosure cannot be compelled. But if you have any concerns whatsoever about repercussions that lie outside the labor-management context, feel free to and do contact us directly for advice that is specific to your situation.

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