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 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.

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. 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

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 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, 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.