In a decision that may extend to other state and federal courts, the National Labor Relations Board, and to labor arbitrations, Alaska’s Supreme Court became the first state or federal court to recognize an implied statutory privilege for union-employee communications during a disciplinary or grievance proceeding to block questioning about them. Comparable to confidential attorney-client communications, the privilege extends to confidential communications between an employee or the employee’s attorney and union representatives acting in their official capacity. The communications must also relate to anticipated or ongoing disciplinary or grievance proceedings.
The privilege blocks disclosure of the substance of such communications from discovery or in testimony.
The decision is unsurprising, given NLRB rulings-- cited by the court-- that employer demands to discover grievance-related confidential communications between an employee and his/her union representative interfere with “concerted activities” of employees protected by the National Labor Relations Act. Cook Paint & Varnish Co., 258 NLRB 1230 (1981). Still, this case marks the first time a court has extended the equivalent of attorney-client or doctor-patient privilege to union-employee communications and can serve as support for similar rulings by other state and federal courts.
Click here to access the court’s decision.
Understandably, employers may wonder whether their communications with their supervisors warrant comparable insulation from disclosure. That is logical, reasonable, and arguable, but there has been no recognition of such a privilege yet.