Peterson v. Alaska Recognizes Grievant-Steward Privilege for Public Employees
Two months ago, we reported on legislation in Maryland enacted to protect communications between employees and their union representatives. This “labor-relations” or “grievant-steward” privilege appears to be a growing trend. In Peterson v. Alaska, the Alaska Supreme Court held that communications between a state employee and his or her union about issues related to disciplinary or grievance proceedings are privileged. The Court found that the state statute that grants public employees the right to form unions necessarily implies a labor relation privilege. Quoting a similar case out of New York, it stated:
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.’
Grievant-Steward Privilege Continues Even After Grievance Process is Over
When the State of Alaska fired Mr. Peterson, he filed a grievance challenging the termination. Although his union did not take the case to arbitration, Mr. Peterson hired an attorney and filed a wrongful termination lawsuit. The union shared information with Mr. Peterson’s attorney to assist in the case. When the State sought that information in discovery, Mr. Peterson argued that, like his communications with his attorney, his communications with his union were confidential. The Court agreed, stating: “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.”
The Court clearly spelled out the privilege in its decision:
The union-relations privilege we recognize today under PERA 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. Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.
Strengthening Labor Rights One State at a Time
In addition to Maryland and Illinois, which recognize a general grievant-steward privilege, Alaska joins several other states (e.g. California, New Hampshire, New York, Tennessee) in recognizing some form of the privilege for public employees. Despite this limitation, the underlying principles discussed by the Court are clearly applicable beyond the public sector: most importantly, that the absence of confidentiality between union members and stewards chills speech and undermines the basic right to form a union and collectively bargain.