New Union Rep-Member Privilege

Illinois passed a law in June amending their code of civil procedure to create an evidentiary privilege for communications between union representatives and bargaining unit members. With some exceptions, this privilege will be similar to the attorney-client or doctor-patient communication privilege. This is the first (and hopefully not the last) state to adopt such a privilege. For more information see here.

I have argued (as have many others) that unions already have this privilege, and a related "work product" type privilege under the NLRA for bargaining strategy, organizing tactics, membership lists, etc. See, Berbiglia, Inc. 233 NLRB 1476, 89 LRRM (BNA) 1369 (1977); Champ Corp., 291 NLRB 803, 817, 131 LRRM 1555, 1561 (1988), enforced, 933 F.2d 688 (9th Cir. 1990).

In Berbiglia, the Board stated: "Requiring the Union to open its files to Respondent would be inconsistent with and subversive of the very essence of collective bargaining and the quasi-fiduciary relationship between the union and its members. If collective bargaining is to work, the parties must be able to formulate their positions and devise strategies without fear of exposure."

The Board also held in Wright Electric, Inc. that employers may not seek the identities of union activists and supporters without violating 8(a)(1) of the Act. 327 NLRB 1194, 163 LRRM 1077 (1999). NLRB v. Robbins Tire & Rubber Co. protects identities of union supporters and "salts". 437 U.S. 214 (1995). NAACP v. Alabama ex rel. Patterson permits "associational privacy" protecting members of organizations from being identified as members of that organization. 357 U.S. 449, 462 (1958).

In Harvey’s Wagon Wheel v. NLRB, the Court held that even statements of union representatives, and not just employees, deserved protection from disclosure: Statements of union representatives and agents of the employee, for example, should normally be protected from disclosure as a matter of law. Otherwise, the danger of their withholding relevant information for fear of exposing crucial material regarding pending union negotiations would be manifest. 550 F.2d 1139, 1143 (9th Cir. 1977).

Garner provides an evidentiary privilege for materials used in union elections. 102 F.R.D. 108, 109 (M.D.Tenn 1984).

The attorney-client privilege that union lawyers have with their union clients extends to the members as long as there is some legal information or context in some part of the discussion. By legal context I mean: legal training, arbitration prep, hearing prep, bargaining and negotiations caucuses and prep, etc etc. So everything we do. Let me know if you need those cites.

You can tell I ganked all this out of a brief I wrote a few months ago. I hope it helps others, and I hope other states take the step that IL just took. I am sure that Gov. Schwarzenegger would veto that kind of legislation right now in CA, but we will encourage our clients to propose this at the next chance they have.