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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Peterson v. State (7/20/2012) sp-6693
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RUSSELL PETERSON, JR., )
) Supreme Court No. S-14233
Petitioner, )
) Superior Court No. 1JU-10-00569 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
) No. 6693 - July 20, 2012
Respondent. )
)
Petition for Review from the Superior Court of the State of
Alaska, First Judicial District, Juneau, Philip M. Pallenberg,
Judge.
Appearances: Douglas K. Mertz, Mertz Law Office, Juneau,
for Petitioner. John M. Ptacin, Assistant Attorney General,
Anchorage, and John J. Burns, Attorney General, Juneau, for
Respondent. Justin W. Roberts, Anchorage, Lynn K.
Rhinehart, James P. Coppess, and Matthew J. Ginsburg,
AFL-CIO, Washington, D.C., and Michael Rubin, Altshuler
Berzon LLP, San Francisco, California, for Amicus Curiae
AFL-CIO.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
A State of Alaska employee was discharged. With union representation,
the employee challenged his termination in grievance proceedings; he was unsuccessful.
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When he later filed suit for wrongful termination, the State subpoenaed the union
representative to appear for a deposition with the union's grievance file. The superior
court denied the employee's privilege-based request for a protective order. We granted
the employee's petition for review to consider whether a union-relations privilege exists
in Alaska. We conclude the privilege exists by implication of Alaska statutes, and we
therefore reverse the superior court's ruling and remand for application of the privilege
to the discovery dispute.
II. FACTS AND PROCEEDINGS
Russell Peterson, Jr. began working for the Alaska Department of Labor in
2007. He became a member of the Alaska State Employees Association (ASEA) union.
In 2009 he requested service time credit for a previous period of employment with the
State; while investigating his request the State discovered Peterson's 2007 job
application did not disclose a previous felony. The State subsequently terminated
Peterson's employment.
Peterson filed a grievance under ASEA's collective bargaining agreement
(CBA) with the State. The CBA states only the union, and not private counsel, may
represent an employee in the grievance process.1 A non-lawyer ASEA representative
1 Section 103 of the CBA indicates who may represent an employee in
grievance proceedings:
The Employer will not negotiate or handle grievances with
any individual or employee organization other than the Union
with respect to terms and conditions of employment of
bargaining unit members in the [ASEA]. When individuals
or organizations other than the Union request negotiations or
seek to represent bargaining unit members in grievances or to
otherwise represent bargaining unit members in
Employer/employee matters, the Employer shall advise them
(continued...)
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handled Peterson's grievance. The ASEA representative communicated with Peterson's
attorney, Douglas Mertz, regarding strategy. ASEA and the State were unable to resolve
Peterson's grievance and ASEA decided not to pursue arbitration. Peterson then filed
suit in superior court for wrongful termination.
The State subpoenaed the ASEA representative to appear for a deposition
with the union grievance file pertaining to Peterson, including all written communication
between ASEA and Mertz. Peterson sought a protective order on privilege grounds. The
superior court denied the motion, holding that any attorney-client privilege covering
Mertz's letters was waived by giving the letters to the union and that there was no basis
for recognizing a new union-relations privilege.
Peterson petitioned for review of the superior court's order. We granted
the petition, directing the parties to address: (1) the applicability, if any, of existing
privileges; (2) this court's authority, outside of its rule-making authority, to judicially
recognize new privileges; (3) any relevant privileges adopted by other jurisdictions; and
(4) relevant due process concerns. In addition to the parties' briefs, the American
Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed an
amicus curiae brief supporting Peterson.
III. STANDARD OF REVIEW
Discovery rulings are generally reviewed for abuse of discretion,2 but
1 (...continued)
that the Union is the exclusive representative for such
matters. Similarly, the Union will so advise individuals or
organizations making such requests.
2 Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998).
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whether a privilege applies is a question of law we review independently.3 Whether a
new privilege may be recognized is a pure question of law reviewed de novo,4 and we
will "adopt the rule of law that is most persuasive in light of precedent, reason, and
policy."5
IV. DISCUSSION
A. Existing Privilege
The only existing privilege arguably protecting the confidentiality of
ASEA's conversations with Peterson or his attorney is the attorney-client privilege of
Alaska Evidence Rule 503.6 But the attorney-client privilege alone does not protect the
grievance file or ASEA's communications with Peterson or Mertz because Alaska
Evidence Rule 503's definitions do not extend to union representation.
First, a union representative is not a lawyer's representative, which is
defined as "one employed to assist the lawyer in the rendition of professional legal
services."7 A union representative is the only person representing a union employee
3 Jones v. Jennings , 788 P.2d 732, 735 (Alaska 1990).
4 See, e.g., Doe v. Alaska Superior Court, Third Judicial Dist. , 721 P.2d 617,
622-26 (Alaska 1986) (recognizing as a matter of law executive privilege for governor).
5 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
6 Alaska R. Evid. 503(b) (providing client with "privilege to refuse to
disclose and to prevent any other person from disclosing confidential communications
made for the purpose of facilitating the rendition of professional legal services to the
client"). The Evidence Rules also provide physician-patient, pyschotherapist-patient,
husband-wife, and clergymen communications privileges. See Alaska R. Evid. 504-506.
7 Alaska R. Evid. 503(a)(4).
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during the grievance proceedings.8 The union representative at most will communicate
and confer with private counsel, not assist private counsel.
Second, a union representative is not exclusively an employee's
representative. Although personally representing an employee during the grievance
proceedings, a union representative is more accurately characterized as a representative
of the union collectively, and not of an employee individually.
Accordingly, no evidentiary privilege currently recognized under Alaska
law is applicable.
B. This Court's Authority To Recognize New Privileges
Our authority to recognize new privileges is limited by Evidence Rule 501,
which provides that "[e]xcept as otherwise provided by the Constitution of the United
States or of this state, by enactments of the Alaska Legislature, or by these or other rules
promulgated by the Alaska Supreme Court, no person . . . has a privilege." Many other
states have adopted similar privilege provisions,9 limiting recognition of privileges
"unless adopted by the legislature or a supreme court rule, or required by the state or
federal constitution."10
For example, in Doe v. Alaska Superior Court, Third Judicial District we
8 See note 1, above.
9 See EDWARD J. IMWINKELRIED , THE NEW WIGMORE : EVIDENTIARY
PRIVILEGES §4.3.1, at 277-78 n.38 (2d ed. 2009) (listing Arizona, Florida, Hawaii, Idaho,
Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North
Dakota, Oklahoma, South Dakota, Texas, and Wisconsin as adopting similar privilege
statutes).
10 In re Imposition of Sanctions in Alt v. Cline , 589 N.W.2d 21, 27 (Wis.
1999) (interpreting WIS . STAT . § 905.01, which states no privilege exists "[e]xcept as
provided by or inherent or implicit in statute or in rules adopted by the supreme court or
required by the constitution of the United States or Wisconsin").
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----------------------- Page 6-----------------------
recognized an executive privilege for the governor in the discharge of official duties.11
Although we did not address the limitations of Rule 501, we found the separation of
powers principle implicit in the Alaska Constitution and concluded it provided the basis
for a limited executive privilege.12
Whether we recognize a union-relations privilege therefore depends on
whether its basis can be found in statutes, the rules of this court, or the constitution.
C. Relevant Privileges Adopted By Other Jurisdictions
1. Cook Paint & Varnish Co.
The National Labor Relations Board (NLRB) has held an employer's
demand to discover grievance-related confidential communications between an employee
and his union representative interferes with the employee's right to union representation.
In Cook Paint & Varnish Co. an employee was discharged for his involvement in a paint
spill.13 The union filed a grievance on the employee's behalf.14 The grievance proceeded
according to the collective bargaining agreement, with the union steward involved in all
steps of the process.15 The union then invoked binding arbitration.16 Two weeks before
arbitration the steward was called into a meeting with management personnel and told
they wished to question him regarding the incident, threatening disciplinary action if he
11 721 P.2d 617, 623 (Alaska 1986).
12 Id. at 623-25.
13
258 N.L.R.B. 1230 (1981).
14 Id.
15 Id. at 1231.
16 Id.
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refused to cooperate.17 The steward answered under protest, but refused to produce his
notes about the incident because they were part of his union notebook.18
The NLRB found the steward's involvement arose solely from his union
official status, noting he was neither an eyewitness to the incident nor involved because
of his own misconduct.19 "Having determined that [the steward's] involvement in the
incident arose and continued in the context of his acting as [the employee's]
representative," the NLRB ruled Cook Paint's "questioning exceeded permissible
bounds, pried into protected activities, and, accordingly, constituted an unlawful
interference with employee Section 7 rights [of self-organization]."20 The NLRB stated
that "consultation between an employee potentially subject to discipline and his union
steward constitutes protected activity in one of its purest forms."21 It then explained the
probe had "cast a chilling effect over all of [Cook Paint's] employees and their
stewards":
To allow [Cook Paint] here to compel the disclosure of this
type of information under threat of discipline manifestly
17 Id.
18 Id.
19 Id.
20 Id. at 1232. Section 7 of the National Labor Relations Act provides:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . . . .
29 U.S.C. § 157 (2006).
21 258 N.L.R.B. at 1232.
-7- 6693
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restrains employees in their willingness to candidly discuss
matters with their chosen, statutory representatives. Such
actions by [Cook Paint] also inhibit stewards in obtaining
needed information from employees since the steward knows
that, upon demand . . . he will be required to reveal the
substance of his discussions or face disciplinary action
himself.[22]
The NLRB specifically noted that not all discussions between employees
and stewards are confidential and protected by the National Labor Relations Act
(NLRA).23 It limited the union-relations privilege to situations involving a steward's
representational status and overreaching questioning.24
2. City of Newburgh v. Newman
A New York court reached a similar outcome in City of Newburgh v.
Newman .25 The Public Employment Relations Board had ruled the City engaged in an
improper employment practice when its police commissioner ordered the police union
president to answer questions regarding observations of a union member.26 The union
member had sought the union president's advice and assistance concerning disciplinary
22 Id. (footnote omitted).
23 Id.
24 Id. Section 8(a)(1) of the NLRA provides that "[i]t shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section [7]." 29 U.S.C. § 158(a)(1) (2006). See also
U.S.Dep't of Treasury Customs Serv. v. Nat'l Treasury Emps. Union , 38 F.L.R.A. 1300
(1991) (finding employer violated employee's union rights by threatening an employee,
who was also a union representative, with disciplinary action if he did not provide
information regarding communications with another employee while acting in union
representative capacity).
25 421 N.Y.S.2d 673 (N.Y. App. Div. 1979).
26 Id. at 674.
-8- 6693
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charges.27 The court stated:
Questioning of a union official as to his observations and
communications with a union member facing disciplinary
proceedings, if permitted, would tend to deter members of the
union from seeking advice and representation with regard to
pending charges, thereby seriously impeding their
participation in an employee organization.[28]
The court affirmed the Board's finding of improper employment practice by the City on
the basis of a statute providing union member privileges similar to those under the
NLRA.29
Responding to an argument that its decision created a common law
privilege on par with the attorney-client privilege, the court stated:
Any privilege established by the decision of the board is
strictly limited to communications between a union member
and an officer of the union, and operates only as against the
public employer, on a matter where the member has a right to
be represented by a union representative, and then only where
the observations and communications are made in the
performance of a union duty.[30]
3. Seelig v. Shepard
In Seelig v. Shepard31 a New York court considered the breadth of
communications covered by the union-relations privilege recognized in City of
27 Id.
28 Id. at 675-76.
29 Id. at 675 (citing N.Y. CIV . SERV . LAW § 209-a(1)(a) ("It shall be an
improper practice for a public employer or its agents deliberately . . . to interfere with,
restrain or coerce public employees in the exercise of their [union] rights . . . .")).
30 Id. at 676.
31 578 N.Y.S.2d 965 (N.Y. Sup. 1991).
-9- 6693
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Newburgh . A New York City commissioner investigating corrections officers had
served a subpoena on the corrections officers' union president seeking information about
labor-relations communications the president had with union members; the union moved
to quash the subpoena.32
The court denied the application to quash, concluding that the union-
relations privilege adequately protected the union president's "legitimate concern for the
confidentiality of internal Union communications on matters concerning labor
relations."33 Analogizing to the attorney-client privilege, the court stated the privilege
was not absolute and that communications by union members or representatives to those
outside the union were not protected.34
D. Union-Relations Privilege In Alaska
Peterson argues employment is a right and "a public employer may not
deprive an employee of that right without due process." Because the CBA provides that
only a union representative may represent a union employee in grievance proceedings,
Peterson argues an employee's expectation of confidentiality, inherent in the due process
right to counsel, should extend to grievance proceedings. The State replies there was no
threat to due process rights because Peterson was being "afforded a fair trial on his
claims in superior court."
AFL-CIO contends that "[a] public employer's demand to discover
confidential communications between an employee and his union representative made
during the mandatory grievance and arbitration process interferes with the employee's
right to union representation in violation of the Alaska Public Employment Relations Act
32 Id. at 966-67.
33 Id. at 967-68.
34 Id. at 968.
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(PERA)." AFL-CIO argues that a statutory-based union-relations privilege protecting
grievance-related communications between employees and their union representatives
should be recognized to "harmonize PERA's strong public policy in favor of contractual
resolution of labor disputes with the civil discovery rules' presumption in favor of
disclosure." It further argues that such a privilege is necessary to the union's role in the
grievance process: "The proper functioning of PERA's mandatory grievance and
arbitration system . . . requires[] some protection for . . . 'confidential communications
made for the purpose of facilitating the rendition of [grievance-related representative]
services to the [employee].' "
At oral argument before us the State argued that PERA does not create a
union-relations privilege, noting a California court's similar conclusion in American
Airlines, Inc. v. Superior Court .35 The State also contended there was no need for
grievance-related communications to remain confidential subsequent to the grievance
process.
We do not need to address whether a union-relations privilege is required
by constitutional due process principles - we agree with AFL-CIO and find the
privilege implied in our statutes. PERA states that "the enactment of positive legislation
establishing guidelines for public employment relations is the best way . . . to provide a
rational method for dealing with disputes and work stoppages."36 It expressly recognizes
"the right of public employees to organize for the purpose of collective bargaining,"37
including the rights to "self-organize and form, join, or assist an organization to bargain
collectively through representatives of their own choosing, and engage in concerted
35 8 Cal. Rptr. 3d 146 (Cal. App. 2003).
36 AS 23.40.070.
37 AS 23.40.070(1).
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activities for the purpose of collective bargaining or other mutual aid or protection."38
Similar to Section 8 of the NLRA, PERA establishes certain unfair labor practices and
provides that a public employer "may not (1) interfere with, restrain, or coerce an
employee in the exercise of the employee's rights guaranteed in AS 23.40.080; [or] (2)
dominate or interfere with the formation, existence, or administration of an
organization."39
Implicit in Alaska's public union statutory rights is the right of the union
and its members to function free of harassment and undue interference from the State.40
As the New York court in Seelig explained, this includes the right to confidential
communications with union representatives regarding labor disputes and grievances:
If unions are to function, leaders must be free to communicate
with their members about the problems and complaints of
union members without undue interference. Members must
be able to have confidence that what they tell their
representatives on such subjects cannot be pried out of the
representatives by an overzealous governmental agency.
Union members must know and be secure in feeling that
those whom they elect from among their ranks will be their
spokespersons and representatives, not the unwilling agents
of the employer.[41]
As with attorney-client relationships, there is a strong interest in encouraging employees
to communicate fully and frankly with their union representative.42 Frank
38 AS 23.40.080.
39 AS 23.40.110.
40 See AS 23.40.110(1)-(2).
41 Seelig v. Shepard, 578 N.Y.S.2d 965, 967 (N.Y. Sup. 1991).
42 See Houston v. State, 602 P.2d 784, 790 (Alaska 1979) ("The attorney-
(continued...)
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communication ensures the employee receives accurate advice and meaningful and
effective union representation.
Any attempt by the State to force disclosure of confidential communications
between an employee and a union representative during a grievance proceeding would
constitute an unfair labor practice.43 Such interference "would tend to deter members of
the union from seeking advice and representation . . . thereby seriously impeding their
participation in an employee organization."44 We believe the protection against forced
disclosure of confidential union-related communications should not be lost if the
grievance dispute is not resolved and the employee files a civil suit, otherwise the
statutory protection is greatly undermined. Based on the strong interest in confidential
union-related communications and the statutory protection against unfair labor practices,
we hold PERA impliedly provides the State's union employees a union-relations
42 (...continued)
client privilege . . . rests on the theory that encouraging clients to make the fullest
disclosure to their attorneys enables the latter to act more effectively, justly and
expeditiously . . . ." (quoting United States ex rel. Edney v. Smith, 425 F. Supp. 1038,
1046 (E.D.N.Y. 1976))); see also Cool Homes, Inc. v. Fairbanks N. Star Borough , 860
P.2d 1248, 1261 n.22 (Alaska 1993) (quoting Sacramento Newspaper Guild v.
Sacramento Cnty. Bd. of Supervisors, 69 Cal. Rptr. 480, 489 (Cal. App. 1968)):
The privilege against disclosure is essentially a means for
achieving a policy objective of the law. The objective is to
enhance the value which society places upon legal
representation by assuring the client full disclosure to the
attorney unfettered by fear that others will be informed. . . .
If client and counsel must confer in public view and hearing,
both privilege and policy are stripped of value.
43 See AS 23.40.110; see also Seelig , 587 N.Y.S.2d at 967.
44 City of Newburgh v. Newman, 421 N.Y.S.2d 673, 675-76 (N.Y. App. Div.
1979).
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privilege.
We find the State's reliance on American Airlines, Inc. v. Superior Court45
misplaced - it presented different circumstances under different law and lends no
assistance to our consideration of a union-relations privilege. In American Airlines an
airline employee, whose union was formed under the federal Railway Labor Act (RLA),
was discharged.46 The employee grieved his termination, with a union official
investigating the grievance and assisting him in the grievance process.47 After the
employee's grievance was denied, he filed suit against the airline and a number of his
supervisors, alleging illegal discrimination.48 The employee identified the union official
who had assisted him as someone with knowledge supporting his claims.49 The union
official testified at a deposition that: (1) he regularly heard other airline employees use
racially derogatory names towards the terminated employee and he could identify those
employees; (2) six union stewards had told him they were actively retaliated against by
the airline; and (3) the airline coerced employees into giving statements and testifying
in favor of the airline and against the terminated employee during the grievance
proceedings.50 But the union official refused to identify any of the persons or provide
further details, claiming a union-relations privilege for his communications with the
45 8 Cal. Rptr. 3d 146 (Cal. App. 2003).
46 Id . at 148-49.
47
Id . at 149.
48 Id . at 148-49.
49 Id .
50 Id . at 149.
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union members who gave him information.51
The trial court denied a motion to compel the union official to provide more
information, stating that "there . . . should be a privilege as to communications between
a union officer and members."52 The appellate court reversed, first concluding that
California's Evidence Code did not provide for a union-relations privilege.53 It then
rejected the union's argument that a privilege may be implied whenever a state or federal
statute allows employees to have lay representatives.54 Noting that no court had ever
found a union-relations privilege under the RLA, the court rejected the union's reliance
on the NLRB's decision in Cook Paint & Varnish Co., explaining that: (1) Cook Paint
interpreted the NLRA, not the RLA, and presented a narrow holding regarding efforts
to interrogate a union official about an upcoming arbitration; and (2) in contrast, the
union official in the airline case was "a percipient witness to allegedly discriminatory
conduct that he has observed over a four-year time period; nor was he threatened with
adverse job action."55 Finally, the court declined to find a union-relations privilege in
state and federal labor statutes giving airline employees rights to self-organize and be
free from employer interference or restraint.56
The differences between American Airlines and this case are substantial and
significant. First and foremost, this case involves public employment covered by PERA;
51 Id .
52 Id . at 150.
53 Id . at 150-51.
54 Id . at 151-53 (rejecting an extension of Welfare Rights Org. v. Crisan, 661
P.2d 1073 (Cal. 1983)).
55 Id . at 154-55.
56 Id . at 152-54.
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American Airlines did not. Second, this case involves only confidential communications
between an employee (and his attorney) and his union representative in connection with
a grievance process; American Airlines focused broadly on communications between a
union official and other union employees, not communications between a union
employee and his union representative regarding the grievance process. Finally, the
union-relations privilege protects confidential communications, not facts or unrelated
observations; the union official in American Airlines was in most respects a percipient
witness to events relevant to the terminated employee's claims. In short, American
Airlines does not provide sufficient grounds to reject the limited union-relations privilege
we recognize today.
The union-relations privilege we recognize today under PERA 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.57 The privilege may be asserted
by the employee or by the union on behalf of the employee.58 Like the attorney-client
privilege, the union-relations privilege extends only to communications, not to
underlying facts.59
57 See Bell v. Vill. of Streamwood, 806 F. Supp. 2d 1052, 1056 (N.D. Ill.
2011). Like the attorney-client privilege, the union-relations privilege protects
communications between union representatives and an employee's attorney. See Alaska
Evid. R. 503(b).
58 Because Peterson claimed the privilege, we have no occasion to address
whether the union has a right to claim the privilege on its own behalf.
59 See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (holding
attorney-client privilege protects disclosure of communications but does not protect
(continued...)
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We emphasize that the expectation of confidentiality is critical to the
privilege because without it "union members would be hesitant to be fully forthcoming
with their representatives, detrimentally impacting a union representative's ability to
advise and represent union members with questions or problems."60 Thus, "[a]bsent an
expectation of confidentiality, there is little need to protect the communications."61 We
also emphasize that the privilege is only applicable when the union representative is
acting in an official union role because "[p]rotecting informal conversations would
extend the privilege too far, unnecessarily burdening the search for truth."62
V. CONCLUSION
We recognize the union-relations privilege described above, REVERSE the
superior court's discovery ruling, and REMAND for further proceedings consistent with
this opinion.
59 (...continued)
client from disclosure of underlying facts). For example, the State argues the union-
relations privilege "would undermine the exhaustion doctrine by making it impossible
for an employer to prove that an employee failed to exhaust the grievance process
provided by a collective bargaining agreement." Because facts, such as whether Peterson
exhausted the grievance process or attempted to, are not protected by the union-relations
privilege, the State's concern is without merit.
60 Bell , 806 F. Supp. 2d at 1057.
61 Id.
62 Id.
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