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

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 grievance 3 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 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. 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. 3 “A 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? SOC’Y 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. Typically, 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 management. 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. PRINCIPLES BEHIND EXISTING PRIVILEGES A. Common Law and the Development of Privileges Black’s 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 Privileges 13 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 privilege”). 12 Privilege , BLACK’S 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 , BLACK’S 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 , BLACK’S LAW DICTIONARY (10th ed. 2014). This commentary’s focus encompasses both of these in the adoption of a union communications privilege. 680 CAPITAL UNIVERSITY LAW REVIEW [45:677 sanctioned by the court. 14 Privileges, if not developed through the common law, are created by statute in the federal and state legislatures. 15 “Framers of the American legal system quite naturally looked to England as a foundation for establishing legal doctrine.” 16 Much like the legal system in England, the American system has a long history of protecting private communications between certain parties having a “unique or special relationship.” 17 “These privileged relationships are carefully defined, and the assertion of an accepted privilege in a court of law is strictly protected.” 18 Traditionally, all information should be disclosed by those who possess it “in order that the truth may be discovered and justice prevail.” 19 A privilege, however, is an evidentiary exception to the general rule that the courts have a right to all the testimonial evidence and relevant facts one can provide when required to testify. 20 Because these privileges infringe on the other party’s right to evidence, “as well as the corresponding obligation of every citizen to testify when called upon to do so,” courts have routinely been reluctant to extend such privileges. 21 Privileges are granted to protect “people, not places” or property. 22 Unless the privilege is waived, a privilege attaches when the communication is made and, with very specific exceptions, continues indefinitely. 23 Indubitably, privileges that remain uncertain or not clearly 14 FED. R. CIV. P. 26(b)(5)(A). 15 FED. R. EVID. 501. 16 Robert S. Catz & Jill J. Lange, Judicial Privilege , 22 GA. L. REV. 89, 91 (1987). 17 Id. at 89. 18 Id. 19 Belichick v. Belichick, 307 N.E.2d 270, 271 (Ohio Ct. App. 1973). 20 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2192 (John T. McNaughton ed., 4th ed. 1961). 21 Michael D. Moberly, Extending a Qualified Evidentiary Privilege to Confidential Communications Between Employees and Their Union Representatives , 5 NEV. L.J. 508, 508–09 (2004). 22 Katz v. United States, 389 U.S. 347, 351 (1967). 23 Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property, and Evidence, Burden and Benefit, Hearsay and Privilege , 80 ST. JOHN’S L. REV. 497, 513 (2006). But see Harv. L. Rev. Ass’n, Developments in the Law—Privileged Communications: Familial Privileges , 98 HARV. L. REV. 1563, 1565–66 (1985) [hereinafter Familial ] (noting that the...