Monday, March 21, 2011
As readers to this blog know, I wrote a law review article on whether a labor union privilege is developing ,here. This is an area of law where there is relatively little authority and which is still developing. That is why each case is significant. As I pointed out in the article, New York has recognized a labor union privilege which protects confidential communications between a union member and a union officer concerning labor relations matters.
Matter of Suffolk Co. Ethics Commission, ___Misc. 3d____, 2010 NY Slip Op 20418 (Suffolk Co. Oct. 9, 2010), effectively rejected this privilege at least with respect to an EMPLOYEE of the union and union members. Why? The court reasoned that the leading case in this area, Seelig v. Shepard, 152 Misc. 2d 699 (N.Y. Co. 1991), dealt with communications between members.
The courts logic is difficult to comprehend. A labor relations privilege is designed to protect confidential labor relations information and it should make no difference whether the discussion with the union is being held with other union members or union employees. The policy reasons behind this privilege (to encourage open and frank debate and to not chill union activity) remain the same. The court also confused the notion of a privilege (which prevents a union member from having to disclose conversations via a subpoena) with the notion of a Improper Practice under the Taylor Law which makes it unlawful for the employer to pry into internal labor relations strategy that a union may have formulated.
I hope this decision is appealed.
Mitchell H. Rubinstein