Illinois Becomes The First State To Grant An Evidentiary Privilege To Union Representatives

By Sheila Kiernan and Krista Bell, Courtesy of Nixon Peabody, LLP

On June 14, 2005, the Illinois legislature passed Public Act 94-0022, amending the Illinois Code of Civil Procedure to establish a new evidentiary privilege for communications between union representatives and bargaining unit members. The statute, the first of its kind in the country, becomes effective January 1, 2006.

Similar to the attorney-client and doctor-patient privileges, this new law provides that a union representative “shall not be compelled to disclose” any information obtained from a bargaining unit member “in attending to his or her professional duties or while acting in his or her representative capacity.” 735 Ill. Comp. Stat. 5/8-803.5 (2005). Exceptions to the privilege exist when necessary to prevent crimes likely to result in a clear, imminent risk of serious physical injury or death of another person, civil or criminal actions against the union or union representative, court-ordered disclosure, and written or oral consent, after full disclosure, of the bargaining unit member involved. The law expressly acknowledges that conflicting “federal or state labor laws shall control.”

Illinois is the first state to actually enact such a privilege into law. However, for years courts and commentators have debated creating a union representative privilege. The general trend, however, has been for both federal and state courts to decline to proclaim such a new privilege and defer to Congress and state legislatures. In 2003, a California Court of Appeal explicitly refused to sanction such a privilege under the California Labor Code, the Railway Labor Act, or under employees’ constitutional right to privacy. American Airlines v. Superior Court, 8 Cal.Rptr.3d 146 (Ct.App. 2003). In Americans Airlines, a union representative refused to disclose information obtained from union members in a wrongful termination suit, claiming the communications were privileged. The employee (who was a real party in interest) argued that the Court should borrow the privilege from the National Labor Relations Act (NLRA), and relied on Cook Paint and Varnish Co., 258 NLRB 1230 (1981). The Court declined to find a union member-union representative evidentiary privilege under the NLRA based on Cook’s “narrow” holding. (In Cook, the Board found the employer committed an unfair labor practice by questioning a union steward who had been involved in another employee’s grievance arbitration, and by threatening to discipline the steward if he didn’t turn over his notes). The Court noted that transforming an unfair labor practice under the NLRA into a new evidentiary privilege under California law should be left to the legislature. Likewise, the Arizona Supreme Court refused to extend the attorney-client privilege to encompass the relationship between a union representative and a union member. Hunt v. Maricopa County Employees Merit System Commission, 619 P.2d 1036 (Ariz. 1980).

The only federal courts to examine this issue have likewise declined to establish a privilege shielding communications between union members and their official representatives from compulsory disclosure. In refusing to recognize such a new privilege, one district court pointed out that “all 50 states and the District of Columbia had enacted some form of psychotherapist privilege before the Supreme Court finally recognized that privilege.” In re: Grand Jury, 995 F.Supp. 332 (E.D.N.Y. 1998). Another district court found the union representative-union member relationship was not one society ought to encourage and protect as it does the attorney-client privilege or the spousal privilege. Walker v. Huie, 142 F.R.D. 497 (D.Utah 1992).

The Illinois law breaks new ground. Two federal labor agencies, the National Labor Relations Board and the Federal Labor Relations Authority, have discussed a possible evidentiary privilege for union members and representatives. See Cook Paint & Varnish Co., supra and Customs Service, 38 F.L.R.A. 1303 (1991). A New York appellate court also discussed a union representative privilege but unequivocally rejected the contention that “a common-law privilege on a par with that of attorney-client” should be established. City of Newburgh v. Newman, 70 A.D.2d 362 (3d Dep’t 1979). In fact, the 1996 New York legislature went so far as to pass legislation creating a new testimonial privilege for communications between police officers and police union officials, but that legislation was vetoed by Governor Pataki. See In re: Grand Jury, supra, at 335-36.

The new Illinois law will likely encourage union lobbyists to urge other state legislatures to follow suit. If other state legislatures follow Illinois’ lead, the movement toward the establishment of a formally recognized union representative privilege will pick up speed. The most likely scenario, however, is that other states will wait to see the fallout from the enactment of the Illinois law and how that precedent-breaking law fares in the courts.

NOTE: Nixon Peabody, LLP is one of the largest employer-side labor law firms in the U.S. with offices in 15 cities. Nixon Peabody has graciously allowed PSLN to reprint this article, which first appeared in one of Nixon Peabody’s regular periodicals provided to clients.

This article appears in the January 2006 issue