By Jim Cline
In a precedent setting case, Alaska has become one of the first states to formally recognize the legal privilege between a union and its members. In Peterson v. State of Alaska (2012), the Alaska Supreme Court has held that the communications between a represented employee and his union were privileged and inadmissible in court.
Russell Petersen was fired by Alaska’s Department of Labor and filed a grievance through his union, the Alaska State Employees Association. He also retained private counsel. He and his attorney communicated with the Association concerning his grievance. Ultimately, the Association decided not to pursue the grievance to arbitration. Peterson filed his own wrongful termination lawsuit. The State subpoenaed his Association representative and demanded all written communications between the Association and Petersen.
The Alaska Supreme Court noted that the NLRB prohibits an employer from compelling employees and stewards from disclosing representation conversations, finding such an order to constitute unlawful union “interference.” Citing that the Alaska public collective bargaining statute likewise prohibits interference, the court found an attempt to the employer to compel disclosure would be a ULP. It reasoned from this that the existence of the privilege was “implied” in the statute. The court defined the scope of the privilege it was recognizing:
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 noted that, it declining to address the question of whether the union could assert the privilege in the absence of a privilege claim by the employee.
Surprisingly, the case law regarding this privilege is sparse. It is generally recognized, as the Alaska court noted, that it would be an ULP for an employer to use its managerial authority to order to compel a member or steward to disclosure representation conversations. The issue that the case law has only lightly touched on is whether such a privilege would be recognized as valid in court litigation, especially in litigation involving third parties, and not the employer. It should be noted, that action did involve court litigation but not between third parties — this action was between the employee and his former employer that would otherwise be barred from directly “ordering” an employee to make a disclosure.
Law Professor Mitchell Rubinstein wrote a 2008 law review article surveying case law on the union privilege and noted the rather surprisingly sparse case law on the subject. Rubenstein agreed that it is generally recognized that it is a ULP for an employer to compel disclosure of union conversations, but also noted that the handful of cases published, conflicted on whether the privilege held up against third parties.
The failure of courts to adopt a clear statement of privilege is particularly problematic for law enforcement officers who might face criminal or civil litigation involving lethal force incidents. We have advised the more conservative position with our clients that there is no certainty that statements between a police union official and their members in the aftermath of a lethal force incident will be recognized as privileged against a third party subpoena by a third party prosecutor or civil litigant in a court of law.
As a result, we have advised that law enforcement unions should not attempt to discuss directly lethal force incidents, but should instead arrange for legal counsel to conduct post-shooting interviews with their members. The union’s own legal counsel might fulfill that role with the understanding that an attorney client privilege between the attorney and the officer need be established for such circumstances. (This arrangement carries one downside, that the union counsel might have a conflict of interest should any grievance ever arise from the incident, which in my experience is so infrequent so as to justify the convenience of this arrangement.) We have also, from time to time, appointed a union representative as an “agent” of the firm, when necessary to assist in the interview process. There are other representation arrangements law enforcement labor organizations have made, but the main point is that, if a more-clearly recognized union officer privilege is absent, one should not assume that member statements can be retained confidential indefinitely when faced with a third party subpoena.
In short, the Alaska decision is noteworthy and could lead other states to recognize this privilege. But unions should proceed with caution, especially concerning statements that might relate to possible third party litigation.
