Not often do we hear (much less care) about decisions from the courts of Alaska, but this one is interesting and may have wider implications for evidence and labour law. Russell Peterson, an employee of the Alaska state government, was dismissed. He challenged his termination in grievance proceedings with the help of his union representative, but without success. He then sued the state for wrongful dismissal. In the course of those proceedings, the state’s lawyers demanded production of Peterson’s union grievance file. Peterson asserted that the file was privileged, a claim rejected by the trial court on the grounds that it was not covered by attorney-client privilege (the union rep was not a lawyer) or by any other recognised category of privilege.
The Alaska supreme court upheld Peterson’s claim of privilege: Peterson v State of Alaska (Alaska SC, 20 July 2012). The file could not be privileged as an attorney-client communication on the facts, but the court was prepared to recognise a new category of privilege for union-employee communications in the context of a grievance. Winfree J pointed to decisions of the National Labor Relations Board and two New York cases which have effectively recognised such a privilege, and found that its existence was implied in Alaska public employment legislation.
Whether other states follow suit remains to be seen – but if they do, there may be pressure on Canadian courts to recognise a similar unionemployee privilege.