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.

Is there a privilege for union member/union rep discussions?

That is the issue that will be argued tomorrow before the Alaska Supreme Court in Petersen v. State of Alaska. In a civil suit filed by Petersen, the State of Alaska sought production of communications between Petersen and his union representative. Petersen resisted production, arguing that communications with his union representative, his sole representative in the grievance process, should be treated as protected from disclosure by either the attorney client privilege or “by a new privilege, hitherto unrecognized under Alaska law, for communications between a union member and a union representative during the grievance process” .The trial court (in an opinion linked at Alaska Employment Law here) rejected this argument and concluded that it was without the authority to create such a new privilege, leaving that to the Legislature or the Alaska  Supreme Court. 

 

The question of whether communications between a union representative and a bargaining unit employee is discussed by  Professor Mitchell Rubenstein at Adjunct Law Prof  Blog  Adjunct Law Prof Blog: New York Lower Court Effectively Rejects Labor Union Privilege,  and is the subject of an article by him, and the availability of such a privilege in the federal sector is discussed by Peter Jeffrey at “Are Communications Between A Union Representative And A Bargaining Unit Employee Privileged?” | The Jeffrey Law Group, PLLC | The Federal Employee's Law Firm

Update: The Alaska Supreme Court has recognized a labor relations privilege. The court's decision is available here.