Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, March 21, 2011

New York Lower Court Effectively Rejects Labor Union Privilege

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

New York Law, Unions | Permalink


It seems to this paralegal that today very few attorneys have read our Constitution in detail! As the great nephew of Alton Brooks Parker-here is my opinion of that ignorant court slip opinion. Our First Amendment in the Bill of Rights specifically prohibits Congress from enacting any law which abridges U.S. Civil Rights to ("reduce one's civil rights)-"abridge"- the right of free speech, the freedom of the press against censorship, the right of all the people of the United States to assemble, (to join in groups) of their choice e.g. Democrats, Republicans and tea leaves, and the last right to petition the Government for a redress (relief)of grievances. The recent attack upon the unions of the U.S. to gather as appointed representatives of teachers, firefighters, police, and other public workers singled out to have their paychecks diminished contrary to Article I, section 9 clauses 3 and 4. Clause 4 requires all taxes to be per capita. Taxing only public workers to make up public State budget shortfalls violates the U.S. Constitution Clause 4. Clause 3 prohibits any "Bill of Attainder" for death and a "Bill of Pains and Penalties," for any bill aimed at a specific class of citizen deprived of liberty, property or civil right without a judicial trial since 1459. Recently in my State of Florida the Legislature passed a "Bill of Pains and Penalties," taxing all public workers only and contrary to Clause 4 because it lacked applying a tax per capita to the census! This made the Bill passed contrary to the U.S. Constitution. This type of Bill of Pains and Penalties was specifically prohibited by the U.S. Constitution. It plainly tried all State teachers for "malfeasance of office," by representative Fressen and his Republican cohorts. I watched him prance the Legislative Floor in the manner of a prosecuting attorney condemning all teachers of this State without exception even though the Department of Education had Certified everyone to be competent to teach. I witnessed an Unconstitutional Bench Trial by Republican Jury of this state against teachers not given notice of the allegation of incompetency en-mass! I was disgusted at this unconstitutional process and the arrogance of the man responsible for this unconstitutional bill of pains and penalties. This State cannot afford to have every teacher test every subject by some specially composed test that will cost the State millions that it doesn't already have. What happened to the First Amendment right to "free speech." What gives that court authority to "chill" or "freeze" guaranteed "free speech?"

Posted by: Kurt Spehr | Mar 22, 2011 12:49:57 PM

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