*By George S. Crisci, Esq
In a recent decision, the Supreme Court of Alaska established a broad
“union relations” privilege that appears to be the first of its kind in
public sector employment, if not the entire country. In Peterson v. State of Alaska,
No. S-14233, Opinion No. 6693, 2012 Alaska LEXIS l04 (Alaska July 20,
2012), the Court established a “union relations privilege” that
“extends 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.” The Court
added that, “The privilege may be asserted by the employee or by the
union on behalf of the employee.”
The case involved a discharged employee who unsuccessfully
grieved his discharge (because the union opted not to pursue
arbitration) and then filed suit for wrongful termination. The labor
agreement provided that only the union, and not any private counsel,
could represent an employee in the grievance process. However, the
union representative communicated with the discharged employee’s
private counsel regarding strategy. The employer (which was the State)
subpoenaed the union representative and the union’s grievance file for
a deposition, including all communications between the union
representative and the employee’s private counsel.
The Court recognized that no existing privilege (including the
attorney-client privilege) covered these types of communications, so
it decided to create a new privilege under Alaska’s Rules of Evidence,
which provides that no person has a privilege “[e]xcept as otherwise
provided ... by these or other rules promulgated by the Alaska Supreme
Court ....” Although the New York courts (for New York public
sector employees) and the National Labor Relations Board (for private
sector employees) had protected certain communications between union
representatives and employees, those decisions involved attempts to gain
access to communications while the disciplinary or grievance
proceedings were pending. The Alaska Supreme Court’s ruling appears to
be the first to provide protection after those proceedings have
concluded and covering communications with a private attorney (who was
contractually excluded from the disciplinary/grievance process)
involving strategy for a court action.
The Court did establish two limitations on this new
privilege. First, “[l]ike the attorney-client privilege, the
union-relations privilege extends only to communications, not to
underlying facts.” Thus, a union representative who also is a fact
witness to certain events cannot refuse to provide relevant information
under the guise of a privilege. Second, “the privilege is applicable
only when the union representative is acting in an official union role
because protecting informal conversations would extend the privilege
too far, unnecessarily burdening the search for truth.”
Ohio does not have such a union-relations privilege, and it
remains to be seen whether any such privilege would be established.
Ohio’s Rules of Evidence have a similarly broad, but not precisely
worded, rule that allows the courts to establish privileges under the
common law. To this point, there are no cases where a union or an
employee has attempted to assert such a privilege.
*George S. Crisci,
an OSBA Certified Specialist in Labor and Employment Law, represents
public and private employers in all aspects of workplace law. For more
information about union-relations or labor & employment law, please
contact George (gsc@zrlaw.com) at 216.696.4441.
