Legal Update – August 2012 Union Business Agent Privilege

Alaska now recognizes a Union-Business agent privilege
By: Ryan Burton, Associate General Counsel
International Union of Police Associations

On July 20, 2012, the Supreme Court of Alaska dealt a strong victory to Labor Organizations and Union members in their state. While State and Federal laws recognize privileges for communications between employees and their attorneys, many States fail to explicitly recognize a Union-relations privilege protecting communications between members and non-attorney Union representatives.  Alaska law, similarly, recognized no privilege between employees and Union representatives.  However, its Supreme Court chose to create a new “implied” privilege in order to protect the rights of its public employees granted by its State Public Employment Relations Act.

The Alaska Supreme Court here created a new evidentiary privilege which now protects certain communications between an employee and their Union representative.  This privilege may be asserted by either the employee or the Union and, further, extends to not only administrative procedures but civil litigation as well.

In this case, a State of Alaska public employee was terminated after a review of his job application revealed an undisclosed criminal conviction.  The employee filed a grievance through his Union and had ongoing communications with a Union business representative as well as an outside counsel whom he hired in anticipation of litigation. Because the Collective Bargaining Agreement between the Union and State detailed that the Employer would only discuss grievances with Union representatives (not outside counsel), the employee’s attorney and Union business agent communicated regularly regarding the case.  After the employee filed suit for wrongful termination, the State employer deposed the Union business agent and demanded information regarding his communications with the employee’s attorney, including copies of written communications.  The employee filed for a protective order which was denied by the lower court.  The court reasoned that because the State of Alaska did not recognize a Union-relations privilege and that any claimed attorney-client privilege was waived when the employee’s attorney provided information on the employee’s case to the Union representative, the communications were not protected.

The Alaska Supreme Court reviewed of the case and reversed the lower court’s denial of the protection order.  In a decisive decision, the Court adopted the position of the employee as well as the reasoning provided by a support brief filed by the AFL-CIO with assistance from the I.U.P.A.  The Court reasoned that while there is no explicit Union-relations privilege in Alaska law, one must be implied in order to ensure that Union representatives will be “free to communicate with their members about problems and complaints without undue influence”. Peterson v. State, — P.3d —-, 2012 WL 2947636 (Alaska 2012)(Citing Seelig v. Shepard, 578 N.Y.S.2d 965, 967 (N.Y. Sup. 1991)). The Court would further reason that “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”.  Id.

This ruling means that, in Alaska, communications made in confidence and in connection with Union services (grievances) which are between an employee (or the employee’s attorney) and Union representatives acting in their official capacity may not be forced to be disclosed during administrative or court proceedings.

In adopting this implied privilege, the Alaska Supreme Court examined relevant privileges adopted in other jurisdictions.  In particular, the Court examined cases addressing this precise issue in the private sector, as well as two cases litigated in New York under public sector law.  The theme of these cases was that to permit employers to probe into communications between members and Union representatives which are related to Union matters and grievances would effectively 1) deter Union members from seeking advice and representation and 2) have a “chilling effect” on Union activity.  Peterson v. State, — P.3d —-, 2012 WL 2947636 (Alaska 2012)(Citing Cook Paint & Varnish Co., 258 NLRB 1230 (1981); City of Newburgh v. Newman, 421 N.Y.S.2d 673 (N.Y. App. Div. 1979); and Seelig v. Shepard, 578 N.Y.S.2d 965 (N.Y. Sup. 1991)). In this case, however, it is unclear as to whether this new privilege applies if a third party (for example a prosecutor in a criminal case or a non-employer third party litigant) requests the communications.  Unions should assume the privilege only applies to requests made by employers or their attorneys until this issue is resolved by the Courts.

While this decision only affects Alaska law, it is an important development because, in issuing its decision, the Alaska Supreme Court chose to exercise its authority granted by its State Evidence Rules to recognize a new privilege.  The Alaska Court noted that many other States grant similar authority to adopt new privileges through their Supreme Courts. Therefore, the Alaska Supreme Court’s decision could be used to extend this privilege in other states. However, until courts in a particular jurisdiction officially recognize this privilege, Union representatives should assume that no privilege exists.  Further, Unions must be particularly cautious in cases involving potential criminal charges.

If you or your members want additional information on this topic please contact the I.U.P.A.’s general counsel’s office.  The general counsel’s office assisted the AFL-CIO in the drafting of their support brief and can provide further direction to I.U.P.A. Locals upon request. As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.