The Supreme Court of Alaska recently recognized a “union-relations” privilege for communications made in confidence between an employee (or the employee’s attorney) and union representatives acting in their official representative capacity in anticipated or ongoing disciplinary or grievance proceedings. The first state supreme court to recognize such a privilege, on July 20, 2012, the Court held in Peterson v. State of Alaska (Supreme Court No. S-14233) that the privilege was implied in Alaska’s Public Employee Relations Act, which establishes certain unfair labor practices and prohibits an employer from interfering, restraining or coercing an employee in the exercise of his rights guaranteed by the statute. The issue arose when Peterson, a state employee, sued for wrongful discharge after unsuccessfully grieving his discharge, assisted by a union representative. The State subpoenaed the union rep to appear for deposition with the union’s grievance file, and the lower court denied Peterson’s motion for protection on privilege grounds.
On appeal, the Court reversed and reasoned that, in addition to the statutory protection against unfair labor practices, because there is a strong interest in employees communicating fully and frankly with their union rep, the union-relations privilege would ensure accurate advice and effective union representation. It is likely that public sector unions in other states will rely on this decision in litigating for recognition of this privilege in their states. Because the interests underlying the Court’s decision apply equally to the rights guaranteed by the NLRA to private sector employees, it is possible that private sector unions may also attempt to obtain recognition of the union-relations privilege.