EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, July 22, 2012

And, Cousin, I'm A Union Man: Supreme Court Of Alaska Recognizes A Union-Relations Privilege

In Peterson v. State, 2012 WL 2947636 (Alaska 2012), 

Russell Peterson, Jr. began working for the Alaska Department of Labor in 2007. He became a member of the Alaska State Employees Association (ASEA) union. In 2009 he requested service time credit for a previous period of employment with the State; while investigating his request the State discovered Peterson's 2007 job application did not disclose a previous felony. The State subsequently terminated Peterson's employment.

Peterson filed a grievance under ASEA's collective bargaining agreement (CBA) with the State. The CBA states only the union, and not private counsel, may represent an employee in the grievance process. A non-lawyer ASEA representative handled Peterson's grievance. The ASEA representative communicated with Peterson's attorney, Douglas Mertz, regarding strategy. ASEA and the State were unable to resolve Peterson's grievance and ASEA decided not to pursue arbitration. Peterson then filed suit in superior court for wrongful termination.

The State subpoenaed the ASEA representative to appear for a deposition with the union grievance file pertaining to Peterson, including all written communication between ASEA and Mertz. Peterson sought a protective order on privilege grounds. The superior court denied the motion, holding that any attorney-client privilege covering Mertz's letters was waived by giving the letters to the union and that there was no basis for recognizing a new union-relations privilege.

The Supreme Court of Alaska reversed and decided to recognize a new union-relations privilege.

In recognizing this new privilege, the Supreme Court of Alaska cited to Alaska Rule of Evidence 501, which states in relevant part that

Except as otherwise provided by the Constitution of the United States or of this state, by enactments of the Alaska Legislature, or by these or other rules promulgated by the Alaska Supreme Court, no person, organization, or entity has a privilege....

The question for the Alaska Supremes was thus  whether a basis for a union-relations privilege could "be found in statutes, the rules of this court, or the constitution." According to the court, it could. Initially, the court cited to some precedent. Specifically, it cited to:

-Cook Paint & Varnish Co., 258 N.L.R.B. 1230 (1980), in which "[t]he National Labor Relations Board (NLRB)...held an employer's demand to discover grievance-related confidential communications between an employee and his union representative interferes with the employee's right to union representation;"

-City of Newburgh v. Newman, 421 N.Y.S.2d 673 (N.Y.App.Div.1979), in which the court held that "[q]uestioning of a union official as to his observations and communications with a union member facing disciplinary proceedings, if permitted, would tend to deter members of the union from seeking advice and representation with regard to pending charges, thereby seriously impeding their participation in an employee organization;" and

-Seelig v. Shepard, 578 N.Y.S.2d 965 (N.Y.Sup.1991), in which the court concluded that a union-relations privilege would protect a union president's "legitimate concern for the confidentiality of internal Union communications on matters concerning labor relations."

The Supreme Court of Alaska then found similar grounds for a union-relations privilege implied in its statutes (and thus did not need to address whether such a privilege is constitutionally required). According to the court,

Implicit in Alaska's public union statutory rights is the right of the union and its members to function free of harassment and undue interference from the State. As the New York court in Seelig explained, this includes the right to confidential communications with union representatives regarding labor disputes and grievances:

If unions are to function, leaders must be free to communicate with their members about the problems and complaints of union members without undue interference. Members must be able to have confidence that what they tell their representatives on such subjects cannot be pried out of the representatives by an overzealous governmental agency. Union members must know and be secure in feeling that those whom they elect from among their ranks will be their spokespersons and representatives, not the unwilling agents of the employer.

Moreover, the court held that

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.

Finally, the court concluded that

Any attempt by the State to force disclosure of confidential communications between an employee and a union representative during a grievance proceeding would constitute an unfair labor practice. Such interference "would tend to deter members of the union from seeking advice and representation ... thereby seriously impeding their participation in an employee organization." We believe the protection against forced disclosure of confidential union-related communications should not be lost if the grievance dispute is not resolved and the employee files a civil suit, otherwise the statutory protection is greatly undermined



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