Co-authored by Phil Rosen
In a unanimous decision, the Alaska high court has recognized a union-relations privilege for certain discussions between a union representative and a state employee. Peterson v. State of Alaska, No. S-14233 (Alaska July 20, 2012). “Based on the strong interest in confidential union-related communications and the statutory protection against unfair labor practices, we hold PERA [the Alaska Public Employment Relations Act] impliedly provides the State’s union employees a union-relations privilege,” the Court said.
Private-sector employers should take heed. The policies behind the Alaska statute and the National Labor Relations Act are nearly identical. Unions representing both public- and private-sector workers likely will seek to assert this privilege in other courts or agencies.
The privilege recognized in Peterson 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.
Moreover, the privilege may be asserted by the employee or by the union on behalf of the employee. Finally, the Court instructed, “Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.”