Alaska Court Finds Union-Member Privilege

Russell Peterson began working for the Alaska Department of Labor in 2007. He became a member of the Alaska State Employees Association (ASEA). In 2009 he requested service time credit for a previous period of employment with the State; while investigating his request the State discovered Peterson’s 2007 job application did not disclose a previous felony. The State subsequently terminated Peterson’s employment.

Peterson filed a grievance under ASEA’s collective bargaining agreement with the State. The CBA states only the union, and not private counsel, may represent an employee in the grievance process. The ASEA representative communicated with Peterson’s attorney, Douglas Mertz, regarding strategy. ASEA and the State were unable to resolve Peterson’s grievance and ASEA decided not to pursue arbitration. Peterson then filed suit in superior court for wrongful termination.

The State subpoenaed the ASEA representative to appear for a deposition with the union grievance file pertaining to Peterson, including all written communication between ASEA and Mertz. Peterson sought a protective order on privilege grounds. When a trial court denied the motion, holding that there was no basis for recognizing a new union-relations privilege, the Alaska Supreme Court accepted the case for review.

The Court found that a union-member privilege existed, and shielded the communications involving ASEA. The Court started with the proposition that “whether we recognize a union-relations privilege depends on whether its basis can be found in statutes, the rules of this court, or the constitution. The National Labor Relations Board has held an employer’s demand to discover grievance-related confidential communications between an employee and his union representative interferes with the employee’s right to union representation. The NLRB has held that ‘consultation between an employee potentially subject to discipline and his union steward constitutes protected activity in one of its purest forms.’

“Our collective bargaining laws state that ‘the enactment of positive legislation establishing guidelines for public employment relations is the best way…to provide a rational method for dealing with disputes and work stoppages.’

”Implicit in Alaska’s public union statutory rights is the right of the union and its members to function free of harassment and undue interference from the State. If unions are to function, leaders must be free to communicate with their members about the problems and complaints of union members without undue interference. Members must be able to have confidence that what they tell their representatives on such subjects cannot be pried out of the representatives by an overzealous governmental agency. Union members must know and be secure in feeling that those whom they elect from among their ranks will be their spokespersons and representatives, not the unwilling agents of the employer.

“As with attorney-client relationships, there is a strong interest in encouraging employees to communicate fully and frankly with their union representative. Frank communication ensures the employee receives accurate advice and meaningful and effective union representation. Any attempt by the State to force disclosure of confidential communications between an employee and a union representative during a grievance proceeding would constitute an unfair labor practice. We believe the protection against forced disclosure of confidential union-related communications should not be lost if the grievance dispute is not resolved and the employee files a civil suit, otherwise the statutory protection is greatly undermined. Based on the strong interest in confidential union-related communications and the statutory protection against unfair labor practices, we hold PERA impliedly provides the State’s union employees a union-relations privilege.

“The union-relations privilege we recognize today extends to communications made: (1) in confidence; (2) in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee’s attorney) and union representatives; and (4) by union representatives acting in official representative capacity. The privilege may be asserted by the employee or by the union on behalf of the employee.”

Peterson v. State, 280 P.3d 559 (Alaska 2012).