In October 2004, Local 2898 of the International Association of Fire Fighters, which represents rank-and-file employees of the Seattle Fire Department filed a grievance on behalf of a bargaining unit member alleging that the employer imposed discipline without just cause. The grievance eventually proceeded to arbitration. Prior to the arbitration hearing, Local 2898 requested that the City provide it with full disclosure of the names of all individuals interviewed concerning the case, the questions asked and the information provided in the interviews, and copies of all notes and statements relating to the arbitration of the grievance.
The City refused to produce the information, citing the fact that it was protected from disclosure as “attorney work product.” Local 2898 responded by filing an unfair labor practice complaint with Washington’s Public Employment Relations Commission.
The Commission found that the duty to collectively bargain in good faith “includes the duty to provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process. The obligation extends not only to information that is useful and relevant to the collective bargaining process, but also encompasses information necessary to the administration of the parties’ collective bargaining agreement. Requested information necessary for arguing grievances under a collective bargaining agreement, including that necessary whether to decide to proceed with the grievance or arbitration, must be provided by an employer.”
The Commission found that the “work product” privilege meant that “a party could obtain discovery of documents and other tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney) only upon showing that the party seeking discovery has substantial need or the materials in preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means.”
The Commission found that virtually all of the materials requested by Local 2898 were not work product. The Commission noted that “although an attorney interviewed witnesses, this does not necessarily make the information that she gathered privileged. By requesting full disclosure of all interviewees, Local 2898 was, in effect, asking for the names of all employees the employer interviewed in preparation for the grievance arbitration hearing, and names of employee witnesses are not attorney work product. Knowing the identity of the witnesses is necessary to level the playing field, and the Union needed to know the identity of the employees in order to have the ability to obtain substantially equivalent information.
“With respect to Local 2898’s request for the questions the employer’s attorney asked bargaining unit employees, the timing of events will determine whether or not the information is disclosable. The Union asked for the information provided by the employee witnesses and copies of all notes and statements. With respect to any information collected by the attorney leading up to the imposition of discipline, this information is relevant to grievance processing and contract enforcement. Witness statements that are signed or otherwise approved by the person making the statement are not protected by the attorney-client privilege.”
The Commission found that the questions asked the witnesses in preparation for an arbitration hearing were within the “work product” privilege and need not be disclosed. Also, the Commission found protected from disclosure the notes taken by the employer’s attorney.
International Association of Fire Fighters, Local 2898 v. City of Seattle, Decision 9526-A (Wash. PERC 2009).
This article appears in the April 2009 issue