Alaska recently adopted a “union relations privilege” in Peterson v. State, 280 P.3d 559 (Alaska 2012), but only a small minority of states recognize an evidentiary privilege precluding from discovery communications between an employee and her union representative. Other courts, federal and state, reject a labor-relations privilege or cast uncertainty about the privilege’s viability.
In his recent law review article, Bringing Jobs Back to the American People: The Need for a Recognized Labor Relations Privilege in the Aftermath of the Economic Recession, 31 Hofstra Labor & Employment Law Journal 237, Christopher M. Muniz seeks to remove the uncertainty by arguing for the legislative adoption of a labor-relations privilege. You may read the article here.
Muniz notes that, because most employees pursue grievances with the assistance of non-attorney union representatives, the attorney-client privilege does not protect the employee-representative communications from discovery in subsequent litigation. He argues:
If a labor relations privilege is not recognized, it could temper open and honest communication between employees and their union representatives and would fail to serve the public interest in promoting judicial economy. A labor relations privilege promotes the deeply rooted public policy established in the NLRA to advance industrial harmony by allowing employees to freely organize, bargain collectively and engage in protected concerted activity.
Muniz’s article contains a draft statute outlining the scope and contours of a labor-relations privilege. I recommend this thoughtful article to lawyers arguing for or against an evidentiary privilege in the labor relations context. My thanks to Mr. Muniz and the Hofstra Labor & Employment Law Journal for permission to link this article in this post.