When an employee approaches his or her union representative to discuss something related to a grievance or a potential grievance, there’s a natural expectation that he or she may speak freely without fear that the employer will be privy to the information shared. Indeed, in the 1981 Cook Paint & Varnish case, the National Labor Relations Board implicitly recognized a “grievant-steward” or “labor relations” privilege when it held that an employer could not require a union steward to reveal what a union member had discussed with him about a disputed incident.

Despite Cook Paint and despite the fact that most employees believe that their conversations with stewards are privileged, the issue of whether employers or even third parties have a right to compel a union to reveal such communications or information in arbitration and other proceedings is still disputed.  This uncertainty has the potential to weaken employees’ willingness to talk openly with union stewards and, consequently, to limit the union’s ability to fully investigate grievances and provide the best representation to bargaining unit members.

Maryland Joins Illinois in Recognizing a Labor Relations Privilege

Until now, only one state – Illinois – had legislation that explicitly protected communications between employees and their union representatives (a handful of states have court decisions providing such protections and some have laws that recognize the privilege solely for public employees).  On May 2, 2012, however, Maryland Governor Martin O’Malley signed Senate Bill 797 into law, thus ensuring that employees in that state may feel free to discuss grievance-related issues with their union representatives without fear that the union could be required to disclose those communications.

SB 797 takes effect on October 1, 2012 and provides that, with certain exceptions:

A labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee while the labor organization or agent was acting in a representative capacity concerning an employee grievance.

Notably, under the law, there are various instances in which a union may disclose communications related to grievances (for example when the employee has filed a criminal or civil claim against the union).  However, similar to other privileges most of us are familiar with such as the attorney-client or doctor-patient privilege, Maryland’s law only requires unions to disclose grievant-steward communications related to grievances where the union representative “reasonably believes” that disclosure is “necessary to prevent certain death or substantial bodily harm.”

Although not an absolute privilege, this legislation should give employees in Maryland a significant degree of confidence that their grievance-related discussions with union representatives will remain privileged.

For a good discussion of the labor relations privilege, see Mitch Rubinstein’s “Is a Full Labor Relations Evidentiary Privilege Developing?