Labor Relation Privilege Scores Another Major Victory On The Road to National Recognition

By: Chris Muniz

Labor relations privilege has been defined as protection against compelling the disclosure of any information or communication obtained by a labor representative while acting in their representative capacity for an employee.[1] Although this privilege has arisen occasionally in administrative and judicial proceedings, the issue has not yet come before the Supreme Court.[2] Aside from being judicially recognized in limited contexts,[3] only two states solidified this protection in legislation.[4] However, just two months after the second statute passed,[5] a major decision issued by the the Supreme Court of Alaska this past July[6] seems to mark another major victory on the road to nationwide recognition of a labor relations privilege.

The first major landmark in recognizing labor relations privilege came in June 2005 when the Illinois legislature passed Public Act 94-0022.[7] Maryland followed suit, passing a similar statute effective October 1, 2012.[8] This right is important to recognize when an employee discusses confidential matters such as collective bargaining or grievances with a labor representative. This is because there is a “natural expectation that he or she may speak freely without fear that the employer will be privy to the information shared.”[9] Acknowledging this privilege promotes major policies such as employee confidence and faith in openly speaking to their labor representatives by recognizing their right to “engage in protected concerted activities.”[10] The passage of these statutes speaks volumes about the need to protect against wrongful disclosure of communications of a sensitive nature.

The most recent development in this area is Peterson v. State of Alaska (“Peterson”). Peterson, a State employee, filed a wrongful termination suit after an unsuccessful challenge in a grievance proceeding regarding his termination.[11] The State subpoenaed Peterson’s union representative to testify pertaining to communications made between the union, Peterson, and Peterson’s legal counsel.[12]  Peterson subsequently sought a protective order not to compel this information based on privilege grounds. The Superior Court rejected the order, claiming that Peterson waived this right when he relayed this information from his attorney to his union representative.[13] Peterson then filed a petition to the Supreme Court of Alaska to decide if the State provide for a union (labor) relations privilege.[14]

After concluding that no evidentiary privilege recognized under Alaska law was applicable, the Supreme Court examined their authority to recognize new privileges.[15] The Supreme Court followed a privilege provisions model in state evidence rules that limited recognition of privileges “unless adopted by the legislature or a supreme court rule, or required by the state or federal constitution.”[16] The Supreme Court found its statutory authority in the Alaska Public Employment Relations Act (“PERA”).[17]  PERA permits the enactment of legislation that provides rational methods for dealing with labor disputes and recognizes the right of employees to organize for the purpose of collective bargaining free from harassment and undue interference by the State.[18]

Using PERA as its legislative authority, the Supreme Court held that a Union (labor) relations privilege existed in Alaska. The rule the Court developed is similar to the Illinois and Maryland statues in relevant portion, holding that the labor relations privilege shall extend 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.[19]

The Court stressed that if unions were to function properly, employees and union representatives must have confidence knowing they are free to communicate without undue interference by an “overzealous government agency.”[20] Without such a privilege, any interference would “tend to deter members of the union from seeking advice and representation . . . thereby seriously impeding their participation in an employee organization.”[21] This sort of open, honest communication ensures that employees receive accurate advice as well as meaningful and effective union representation.[22]

This decision is another milestone in the developing national recognition of the labor relation privilege. With the passage of the Maryland statute taking effect this October and the Peterson decision so close together, it seems that this issue is gaining a great deal of momentum. If this issue continues to gain traction, it may not be long before other courts and legislatures across the country follow suit.


[1] Sheila Kiernan & Krista Bell, Illinois Becomes the First State to Grant an Evidentiary Privilege to Union Representatives, NixonPeabody.com (July 18, 2005), http://www.nixonpeabody.com/117507#note8.

[2] Mitchel H. Rubinstein, Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley J. Emp. & Lab. L., 223, 225 (2008).

[3] See, e.g., Newburgh v. Newman, 421 N.Y.S.2d 673, 674 (1979) (limiting application of labor relations privilege to public employers with respect to confidential labor relations communications between a union and its members).

[4] Public Act 094-0022, § 8-803.5, 735 Ill. Comp. Stat. 5/8-803.5 (2012); Senate Bill 797, ch. 304, 2012 Md. Laws 304, *1 (West) (2012) (to be codified at Md. Code Ann., §9-124).

[5] Senate Bill 797, ch. 304, 2012 Md. Laws 304, *1 (West) (2012) (to be codified at Md. Code Ann., §9-124).

[6] Peterson v. State of Alaska, No. S–14233, 2012 WL 2947636, at *1 (Alaska, July 20, 2012).

[7] Kiernan & Bell, supra note 1.

[8] Mitchel H. Rubinstein, Maryland Joins Illinois in Recognizing a Labor Relations Privilege, Adjunct Law Prof Blog (May 25, 2012), http://lawprofessors.typepad.com/adjunctprofs/2012/05/maryland-joins-illinois-in-recognizing-a-labor-relations-privilege.html.

[9] JM Favreau, Maryland Enacts Legislation to Protect Grievant-Steward Communications, Peer, Gan & Gisler LLP (May 25, 2012), http://peerganlaw.com/maryland-enacts-legislation-to-protect-grievant-steward-communications/.

[10] Rubinstein, supra note 2, at 264.

[11] Peterson, 2012 WL 2947636, at *1.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at *2.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at *6.

[20] Id. at *2.

[21] Id.

[22] Id.

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