Client Bulletin #475

8.2.12

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The Alaska Supreme Court recently ruled that union communications are subject to a "union-relations privilege" that protects communications made in confidence between an employee (or his or her attorney) and a union representative who is acting in an official representative capacity, in connection with representative services relating to ongoing or anticipated grievance proceedings.  Arbitrators have previously protected these types of communications during arbitration hearings, but no universal rule or extension of the ad hoc arbitral practices have been established before this case.  Alaska’s extension of this privilege now invites other states to follow suit.

The State of Alaska terminated employee Russell Peterson, Jr., for failing to disclose prior felonies in his job application. Peterson filed a grievance, and, when the union declined to arbitrate, Peterson sued the state for wrongful termination.

During discovery, the state subpoenaed the union's grievance file, which required the union representative to appear for a deposition.  Peterson moved for a protective order, contending that the grievance file was privileged and therefore did not have to be produced to the state.  A trial court denied Peterson's motion, and he appealed to the Alaska Supreme Court.  The AFL-CIO submitted an amicus curiae (“friend of the court”) brief in support of Peterson. 

Peterson argued that he was entitled to the privilege based on due process, but it was the AFL-CIO's argument that won the day.  The AFL-CIO asserted that the privilege was implied under state Public Employment Relations Act and promoted the PERA's strong public policy in favor of contractual resolution of labor disputes.  The court agreed, explaining that “[a]s with the attorney-client relationships, there is a strong interest in encouraging employees to communicate fully and frankly with their union representative.”  Accordingly, “[a]ny 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.” (Emphasis in original.)  

This landmark holding is limited to state workers covered by the PERA and not private sector unions.  The court also emphasized that the privilege does not extend to “informal conversations” but only to communications that are made when union officials are acting in an official role providing representative services relating to anticipated or ongoing disciplinary or grievance proceedings.   

However, because the PERA closely mirrors the National Labor Relations Act and the Court relied on precedent from the National Labor Relations Board, the ability to extend the privilege to private sector unions is potentially magnified.  Constangy will continue to monitor this legal issue.  For further questions please feel free to contact any attorney in our Labor Relations practice group or the Constangy attorney of your choice.  

About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 130 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.

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