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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

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. 


----------------------- Page 2-----------------------

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...) 



                                                  -2-                                            6693
 


----------------------- Page 3-----------------------

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). 



                                                  -3-                                             6693
 


----------------------- Page 4-----------------------

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). 



                                                  -4-                                             6693
 


----------------------- Page 5-----------------------

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"). 



                                                 -5-                                            6693
 


----------------------- 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. 



                                                 -6-                                            6693
 


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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
 


----------------------- Page 8-----------------------

                 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
 


----------------------- Page 9-----------------------

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
 


----------------------- Page 10-----------------------

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. 



                                                  -10-                                               6693 


----------------------- Page 11-----------------------

(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). 



                                                   -11-                                               6693 


----------------------- Page 12-----------------------

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...) 



                                                  -12-                                             6693
 


----------------------- Page 13-----------------------

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). 



                                                    -13-                                              6693
 


----------------------- Page 14-----------------------

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. 



                                                     -14-                                               6693
 


----------------------- Page 15-----------------------

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. 



                                                   -15-                                              6693
 


----------------------- Page 16-----------------------

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...) 



                                                  -16-                                            6693
 


----------------------- Page 17-----------------------

                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. 



                                                   -17-                                               6693 

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