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High court weighs in on union communications

Posted: July 24, 2012 - 2:38am

JUNEAU — The right to confidentiality exists for communications between unions and their members in labor disputes and grievances, the Alaska Supreme Court has ruled.

The finding of “union-relations privilege” comes in a case brought against the state by Russell Peterson Jr. And a union attorney said Monday that it could have implications nationwide.

Peterson was fired from his job with the state labor department in 2009 for not disclosing prior felonies. His attorney, Douglas Mertz, has said that Peterson was acting on advice from a representative at a job service agency.

When Peterson was fired, he went to the union as part of the grievance process. The union didn’t seek arbitration, and Peterson sued for wrongful termination. The state then subpoenaed the union representative to appear for a deposition with the union’s grievance file, court records show.

A lower court denied Peterson’s request to keep his communications with the union confidential, prompting Mertz last year to ask the high court to review the issue before trial begins.

The Supreme Court issued its ruling Friday. Mertz said it cannot be appealed.

Assistant Attorney General John Ptacin noted the case has been sent back to the lower court and said the Department of Law generally doesn’t comment on ongoing litigation. However, he said that while the Supreme Court established limited privilege for union-member communications, it “still preserved the state’s ability to obtain relevant facts from the union through civil discovery. And so we’ll have to see how that plays out in this case and others,” he said.

Michael Rubin, an attorney for the AFL-CIO, said that while there have been similar cases nationally, the Alaska decision “is the clearest statement of the right of workers to confide in their union representatives.” He said other states will likely bring their laws into conformity with the court’s finding and that of the National Labor Relations Board in another case. AFL-CIO supported Peterson’s position before the Alaska Supreme Court.

According to the court’s decision, under a collective bargaining agreement, only the union, not a private attorney, can represent a covered public employee in the grievance process. In Peterson’s case, a non-lawyer union representative handled the grievance; definitions for attorney-client privilege do not extend to union representatives. However, the court said it has the ability to recognize new privileges under certain circumstances.

“We do not need to address whether a union-relations privilege is required by constitutional due process principles — we agree with AFL-CIO and find the privilege implied in our statutes,” said the ruling, written by Justice Daniel Winfree, which adds later: “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.”

“As with attorney-client relationships, there is a strong interest in encouraging employees to communicate fully and frankly with their union representative,” the rulings states.

The union-relations privilege recognized by the court, under the Alaska Public Employment Relations Act, extends to communications made in confidence, in connection to union services related to anticipated or ongoing disciplinary or grievance proceedings, between an employee — or the employee’s lawyer — and union representatives, and by union representatives action in an official representative capacity.

Mertz said he is seeking a trial date. At trial, Peterson will seek reinstatement, back pay and punitive damages for pain and suffering.

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