Union Communications Privilege: Is it Time for Ohio to Protect Union Representative-Member Communications

Author:Sean A. Devlin
Position:J.D. Candidate May 2017. I would like to thank Professor Margaret 'Peggy' Cordray for her outstanding instruction, guidance, and criticism as this article progressed. I would also like to express my deepest gratitude to Clarissa and my daughter Haley ('Monkey') for their continued support and understanding while I researched and wrote this article.
Pages:677-721
SUMMARY

A comparison with the privileges associated with an attorney and client privilege versus a union representative and a union member, and how Ohio should adopt a union communications privilege.

 
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UNION COMMUNICATIONS PRIVILEGE: IS IT TIME FOR
OHIO TO PROTECT UNION REPRESENTATIVE-MEMBER
COMMUNICATIONS?
SEAN A. DEVLIN*
An uncertain privilege, or one which purports to be certain but results in
widely varying applications by the courts, is little better than no privilege
at all.”
- Justice William Rehnquist, Supreme Court of the United States (1981)1
I. INTRODUCTION
Tim Davey, a member of the International Association of Firefighters
Union (IAFF), was terminated from Anytown Fire Department,2 located in
Ohio, for allowing a stranded motorist to use a city-owned gas can for fuel.
After many conversations with his family and friends, Tim met with his
IAFF union representative to file a grievance against the city. During this
meeting, several items were discussed regarding the charges resulting in
his termination. Tim’s IAFF union representative filed a grievance3 with
the city administration claiming the termination was in direct violation of
the bargaining agreement. Additional conversations with Tim about the
case and items related to his defense were conducted by phone and email.
Copyright © 2017, Sean A. Devlin.
* J.D. Candidate May 2017. I would like to thank Professor Mar garet “Peggy” Cordray
for her outstanding instruction, guidance, and criticism as this article progressed. I would
also like to express my deepest grati tude to Clarissa and my daughter Haley (“Monkey”) for
their continued support and understanding while I researched and wrote this article.
1 Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).
2 Although the scenario itself is fictional, it is largely inspired by very real situations
that not only happen in Ohio, but also happens throughout the country, and is being used
here to illustrate the importance of the union communication privilege.
3A grievance is generally defined as a claim by an employee that he or she is
adversely affected by the misinterpretation or misapplication of a written company policy or
collectively bargained agreement. See Grievance Procedures: What Are the Steps
Typically Found in a Grievance Procedure? SOCY FOR HUM. RES. MGMT. (May 11, 2012),
https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/aresolutionfor
managementandemployees.aspx [https://perma.cc/H26Y-D9NK].
678 CAPITAL UNIVERSITY LAW REVIEW [45:677
In preparation for the grievance hearing, the IAFF union representative
interviewed witnesses, collected documents, and submitted briefs to the
hearing officer as required.4 Prior to the start of the grievance hearing, the
hearing officer discovered that Tim’s submission of the grievance was not
timely; his case was therefore dismissed. If Tim wished to continue the
fight to get his job back, his only option was to file a claim against the city,
in a court of law, for wrongful termination.
Tim hired a local attorney for his suit. During the discovery phase,
Tim’s IAFF union representative was served with a subpoena from the
city’s attorney requiring the representative to appear for a deposition and
produce all documents and materials related to Tim’s claim against the
city.
Should the communications between the union representative and Tim,
as well as the documents related to the grievance, be protected by a union-
member communications privilege? As this commentary will show, the
answer is not as simple as it might appear.
Labor relations privilege has been defined as protection against
compelling the disclosure of any information or communication obtained
by a labor representative while acting in their representative capacity for an
employee.5 Recent rulings in the ongoing debate on whether courts
should grant a privilege to union representative-member communications
has led to a wide-range of differing opinions and applications.6
After presenting a brief overview of the rationale for, and historical
development of, current privilege law, this commentary will discuss the
current privilege doctrines recognized by the courts and specifically the
attorney-client privilege.7 Part III will present the competing approaches
to the development of privileges.8 Part IV will compare the relationship
4 Id.A grievance procedure is a means of internal dispute resolution by which [a
union member] may have [their] grievances addressed.” Id. Typica lly, bargaining
agreements include procedures for filing and resolving grievances. Id. As it relates to
union members, the processes will typically involve the union member, union
representatives, and representatives from managemen t. Id.
5 Chris Muniz, Labor Relation Privilege Scores Another Major Victory on the Road to
National Recognition, L.E. JER. BLOG (Sept. 28, 2012), https://thelejer.wordpress.com/
2012/09/28/labor-relation-privilege-scores-another-major-victory-on-the-road-to-national-
recognition [http://perma.cc/FQ4Z-TL9J].
6 See infra Section IV.D.
7 See infra Part II.
8 See infra Part III.
2017] UNION COMMUNICATIONS PRIVILEGE 679
between the attorney and client with the relationship between the union
representative and the union member.9 It will also provide a more detailed
analysis of the courts that have recognized the need for protecting these
communications as well as courts that have rejected the privilege.10 In Part
V, this commentary will discuss the major privileges Ohio currently
recognizes under Ohio Revised Code § 2317.02, and argues why Ohio
should adopt a union communications privilege.11
II. PRINCIP LES BEHIND EXISTING PRIVILEGES
A. Common Law and the Development of Privileges
Blacks Law Dictionary defines privilege as a special legal right,
exemption, or immunity granted to a person or class of persons; an
exception to a duty.12 Privileges13 are rights to withhold information,
otherwise discoverable, from legal proceedings without being compelled or
9 See infra Part IV.
10 See infra Section IV.D.
11 See infra Part V. Union communications privilege, labor relations privilege, and
labor official privilege have the same meaning and are used interchangeably throughout the
sources noted in this commentary. See Michael D. Moberly, Extending a Qualified
Evidentiary Privilege to Confidential Communications Between Employees and Their
Union Representatives, 5 NEV. L.J. 508, 509 (2004) (referring to the privilege as “union
representation privilege”); Mitchell H. Rubinstein, Is a Full Labor Relations Evidentiary
Privilege Developing, 29 BERKELEY J. EMP. & LAB. L. 221, 221 (2008) (referring to the
privilege as “labor relations privilege”); Leeann R. Gruwell Anderson, Turning the Key:
Ensuring Evidentiary Privilege as Labor Counsel, 45 DRAKE L. REV. 491, 492 (1997)
(referring to the privilege as “labor official pr ivilege”).
12 Privilege, BLACKS LAW DICTIONARY (10th ed. 2014).
13 Privileges are distinguished by testimonial or evidentiary privilege. Although
commonly used interchangeably, there is a slight difference. Testimonial privilege is
defined as “a right not to testify based on a claim of privilege; a privilege that overrides a
witness's duty to disclose matters within the witness's knowledge, whether at trial or by
deposition.Testimonial Privilege, BLACKS LAW DICTIONARY (10th ed. 2014).
Evidentiary privilege is defined as “a privilege that allows a specified person to refuse to
provide evidence or to protect the evidence from being used or disclosed in a proceeding,”
and includes attorney-client privilege. Evidentiary Privilege, BLACKS LAW DICTIONARY
(10th ed. 2014). This commentary’s focus encompasses both of these in the adoption of a
union communications privilege.

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