Friday, July 20, 2012

Alaska Supreme Court Recognizes Labor Relations Privilege

In its decision today in Peterson v. State of Alaska, the Alaska Supreme Court reversed a lower court decision and recognized an evidentiary privilege for communication between a union representative and an employee relating to the union’s representation of the employee.

Plaintiff was employed by the Alaska Department of Labor. After his employment was terminated he filed a grievance under the State’s contract with the Alaska State Employees Association. Pursuant to that contract, his grievance was handled by a non-lawyer union representative. The parties were unable to resolve the grievance, and the Union elected not to pursue the case to arbitration. Plaintiff subsequently filed a wrongful termination suit in superior court.

During discovery the State sought to compel production of the Union’s grievance file, including copies of all correspondence between plaintiff and the Union. Plaintiff sought a protective order, arguing that such communication was privileged from disclosure, but that position was rejected by the superior court.

On review the Supreme Court, while noting that no currently recognized evidentiary privilege protected these communications, determined, after reviewing cases arising under the NLRA, and New York’s public sector labor statutes, that a privilege could be “implied “ under Alaska’s Public Employment Relations Act(PERA). The Court summarized the limitations of its holding as follows:

The union-relations privilege we recognize today under PERA 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 privilege may be asserted by the employee or by the union on behalf of the employee. Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.

The Court also held that the privilege “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.”

This issue, and recognition of a similar privilege by statute in Maryland, is discussed here and here.

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