Kentucky Supreme Court: Conversations Between Union And Members Confidential

This article appears in the November 2022 issue of our monthly newsletter, Public Safety Labor News.

On January 11, 2017, Sergeant Armin White of the Louisville Metro Police Department (LMPD) met with his direct supervisor, Lieutenant Donald George, to discuss issues he was experiencing in the workplace. White reported directly to George, but he also had administrative duties under a different lieutenant. White claimed that he was receiving conflicting orders from George and the other lieutenant and needed a resolution.

Following this meeting, George submitted a memorandum to his superior, Major Thomas Dreher, alleging that White complained to him of a “hostile work environment.” LMPD’s Professional Standards Unit (PSU) began investigating. During this investigation, White denied making a hostile work environment accusation. Thus, the PSU also began investigating whether George filed a false report.

George sought guidance from David Mutchler, the President of the Louis­ville FOP, both after his initial conversation with White and after he was given notice by the PSU that he was being investigated. Additionally, George met with Mutchler and the FOP’s legal counsel to prepare for his interview with the PSU. Mutchler also sent one email to and had one brief telephone conversation with White concerning the matter.

In May 2017, the PSU notified the FOP that it wanted to interview Mutchler regarding his conversations with George and White. The FOP objected to any interview of Mutchler, asserting a “union business privilege” that completely protected those conversations from disclosure. PSU then narrowed its requested interview scope to only Mutchler’s conversation with White. At the request of the PSU, White had initialed a document purporting to “waive any client privilege that may or may not exist regarding his conversations with” Mutchler.

The FOP filed an unfair labor practice charge against LMPD, alleging that the effort to interrogate Mutchler regarding his actions in his role as President of the FOP, including his conversations with White and George, was unlawful coercion and therefore an unfair labor practice. The matter eventually wound up in the Kentucky Supreme Court.

The Court found in favor of the FOP. The Court’s opinion immediately addressed the policy issues behind its ruling: “The legal question before this Court is whether Louisville Metro committed an unfair labor practice when it compelled Mutchler to disclose the substance of his conversation with White. Specifically, the FOP asks this Court to find that Louisville Metro violated state law by violating the officers’ right to be protected in the exercise of the right of self-organization free from interference, restraint, or coercion.

“The law broadly protects the ability of a police officer to work with their union representative on questions related to the conditions of their em­ployment. Some negotiations are only possible through the representation of a union representative and the ano­nymity of the complainant. If, during internal investigations or negotiations, the metro government could compel a union representative to divulge sen­sitive information, then the power of the protection within the law becomes illusory. Allowing Louisville Metro to compel information under threat of discipline will severely discourage other FOP members from candidly discussing their own problems with FOP presidents or representatives in the future.

“We need look no further than the statute itself to determine that the legislature could not have intend­ed for the protection to lack force or meaning as it relates to conditions of employment such as the disciplinary hearing at the center of this case. ‘Free from interference’ certainly includes interference with an active disciplinary case – a ‘condition of employment’ – for which Mutchler was consulted. To preserve the intent of the legislature to prevent interference with collective bargaining, we must acknowledge the protection of union communications inherent within the statutory scheme.

“The kind of protection over communications at issue between the FOP and Metro is clearly not a privilege. Rather than a privilege, the protection afforded by the law is better understood as a confidence. It operates only against Metro. We hold that the confidentiality created by the law is limited to communications between a union member and an officer of the union, and operates only as against the public employer, on a matter where the member has a right to be represented by a union representative, and then only where the observations and communications are made in the performance of a union duty. The confidentiality does not and cannot apply to legal proceedings.”

River City Fraternal Order of Police v. Louisville/Jefferson County Metro Government, 2022 WL 4397981 (Ky. 2022).

Also in the November 2022 issue:

  • Union Officers’ Knowledge Can Waive Union’s Right To Bargain
  • Officer Had No Expectation Of Privacy In Employer Video Equipment
  • Waiver Of Bargaining Rights Need Not Be In Writing
  • Can An Officer On FMLA Leave Work A Second Job?
  • Post-Retirement Conduct Can Result In Pension Forfeiture
  • Officer Loses Pension On Conviction Of Wire Fraud
  • Corrections Officers Lack Standing To Challenge Sick Leave Confinement Policy
  • Explosive Breacher Training Claim Survives Dismissal
  • For Third Time, Newark Told To Bargain Over Drug Testing
  • Police Chief Loses Defamation Claims Against Union’s Law Firm
  • Important To Intervene Early In Discrimination Cases
  • Q & A
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