The Alaska Supreme Court recently expanded the concept of "privileged communication." Under federal and state law, certain types of communications are considered privileged and cannot be disclosed or used in a judicial or other proceeding absent a waiver. Examples include the attorney-client privilege, the spousal privilege, and the doctor-client privilege.
In a unanimous opinion issued on July 20, 2012 in Peterson v. State of Alaska, the Supreme Court declared that communications between a union representative and a state employee may be covered by a "union relations" privilege. This ruling extends the prior definition of "privileged communications" under Alaska law.
The Court held that for certain communications that occur between an employee and a union representative a privilege is implied under the Alaska Public Employment Relations Act ("PERA"). The Court relied heavily on the fact that the statute provides that a union and its members must be able to function free of harassment, restraint, coercion, or interference by the state and that there is a strong public interest in encouraging employees to communicate fully and frankly with their union representative.
The new union relations privilege is not without limit. The Court confirmed that the privilege extends only to communications made:
- in confidence;
- in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings;
- between an employee (or the employee's attorney) and union representatives; and
- by a union representative acting in official representative capacity."Once it exists, the privilege may be asserted by the employee or the union representative on behalf of the employee. But, like the "attorney-client privilege," the "union relations privilege" only extends to communications not to underlying facts.
Once it exists, the privilege may be asserted by the employee or the union representative on behalf of the employee. But, like the attorney-client privilege, the union relations privilege extends only to communications, not to underlying facts.
While the Court's ruling appears to apply only to state employees, because it concluded that the privilege arises from PERA, private employers should expect to see an assertion of this privilege by other unions in short order. We encourage Alaska employers to contact their legal counsel and develop a strategy on how to address any assertion of this new privilege.
A copy of the Court's decision is available at http://courts.alaska.gov/ops/sp-6693.pdf.