AMERICAN BAR ASSOCIATION LABOR & EMPLOYMENT SECTION NATIONAL CONFERENCE ON EEO LAW March 30, 2017 New Orleans, LA Defending a Union Representative Subpoenaed to Testify in Litigation Involving a Bargaining Unit Member Jon Howard Rosen The Rosen Law Firm 705 2 nd Avenue, Suite 1200 Seattle, WA 98104-1798 (206) 652-1464 jhr@jonrosenlaw.com
Not infrequently, when an employee commences litigation against his/her unionized employer the union will be subpoenaed to provide testimony relevant to the employee s claim. In some situations the union would prefer not to testify either to protect itself or to protect its bargaining unit member. What can be done? Recently, a union in Washington State was faced with this issue. A union member had brought a discrimination and retaliation claim against his employer and named his union representative as a potential witness. The employer, the City of Seattle, subpoenaed the union representative to testify at a deposition. The union filed an objection to the notice of deposition under the Civil Rules and the City moved to compel. In opposing the motion to compel the union argued that it could not be compelled to provide testimony or documentation concerning its communication with its member. Its argument was sufficiently persuasive to convince the court to limit the deposition to questions about discussions that the union representative had with representatives of the employer. The union s argument follows. A. The member/union privilege is alive and well in the State of Washington. The Public Employment Relations Commission, charged with enforcing the Public Employees Collective Bargaining Act (PECBA), RCW Chapt. 41.56, has repeatedly recognized not only the existence but the importance and rationale behind the need for confidential communications between and among labor union representatives and their members and membership. For an employer to demand a union member or union representative to divulge information about protected union activities has long been held to constitute unlawful
interference with the rights of public employees, a violation of RCW 41.56.140. City of Tacoma, Decision 6793-A, (PECB, 2000), 2000 WL 194131 (WPERC), citing Shelton School District, Decision 485-B (EDUC, 1979), 1979 WL 180310 (WPERC); Port of Tacoma, Decision 4626-A (PECB, 1995), 1995 WL 854141 (WPERC). In its City of Tacoma decision PERC noted that the Supreme Court of Washington has ruled that RCW Chapt. 41.56 is to be liberally construed to effect its purpose of implementing the right of public employees to join and be represented by labor organizations. City of Tacoma, supra at 4 citing Municipality of Metropolitan Seattle v. PERC, 118 Wn.2d 621, 633, 826 P.2d 158 (1992) and Nucleonics Alliance v. WPPSS, 101 Wn.2d 24, 29, 677 P.2d 108 (1984). [A] union is not required to produce its investigatory notes... [and] has a fiduciary duty to protect its members ability to discuss the issues. Public Utility District No. 1 of Snohomish County, Decision 7656-A (PECB, 2003), 2003 WL 21658695 (WPERC) at 13. The fiduciary relationship between a union and its members is akin to the duty owed by other fiduciaries to their beneficiaries. For example, the duty a union owes to the employees its represents has been likened to the duty a trustee owes the trust beneficiaries, the relationship between an attorney and client, and the responsibilities of corporate officers and directors towards shareholders. The Supreme Court of the United States has explained that just as these fiduciaries owe their beneficiaries a duty of care as well as a duty of loyalty, a union owes employees a duty to represent them adequately as well as honestly and in good faith. Id. Furthermore, the Union s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise discretion with complete faith and honesty, and to avoid arbitrary conduct. Id., at 19 citing Air Line Pilots Association, International v. O Neill, 499 U.S. 65, 74, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991).
PERC decisions cannot be brushed aside. The Commission s interpretation of the collective bargaining statute is entitled to substantial weight and great deference in view of its expertise in the area of collective bargaining. University of Washington v. Washington Federation of State Employees, 175 Wn. App. 251, 258-59, 303 P.3d 1101 (Div. 1, 2013) citing City of Bellevue v. International Association of Fire Fighters, Local 1604, 119 Wn.2d 373, 382, 831 P.2d 738 (1992). Thus, the City s entire premise for its motion, that there is no authority in the State of Washington recognizing a member/union privilege is inaccurate. The decisions of PERC wholly undercuts the claim for relief. B. Foreign precedent is highly persuasive. While the City is correct that the holding of the Alaska Supreme Court in Peterson v. State of Alaska, 280 P.3d 559 (2012), does not have mandatory precedential value in Washington it contains a persuasive and further authority for the court to deny the City s motion. First, as here, the only communications for which the Union is seeking protection are those involving confidential communications between the member and his union representative. The extension of the privilege to include the notes of the union representative containing her mental impressions take no great leap as it is merely an integrally related work product principle that goes hand-in-hand with the privilege. Moreover, the Peterson Court cites to cases decided in New York State and by the National Labor Relations Board which similarly provide persuasive authority.
Moreover, the statute under which the Alaska Supreme Court relied for the creation of a member/union privilege is closely akin to the PECBA, administered by PERC. The Alaska Supreme Court notes that [i]mplicit in Alaska s public union statutory rights is the right of its union and its members to function free of harassment and undue interference from the state. This is almost identical to RCW 41.56.040 ( No public employer... shall directly or indirectly, interfere with... any public employee or group of public employees in the free exercise of their right to organize and designate representatives of their own choosing.... ) and RCW 41.56.140 ( It shall be an unfair labor practice for a public employer... (1) [t]o interfere with... public employees in the exercise of their rights guaranteed by this chapter [and] (2) [t]o control, dominate or interfere with a bargaining representative... ). As the court explained in Seelig v. Shepard, 152 Misc.2d 699, 578 N.Y.2d 965 (NY Supp. 1991) this includes the right to confidential communications with union representatives regarding labor disputes and grievances..., cited in Peterson, at 565. Both the Alaska Supreme Court and PERC rely on the National Labor Relations Board for guidance on how to negotiate between the Scylla and Charybdis of open disclosure and union rights. In Cook, Paint and Varnish Company, 258 NLRB 1230 (1981) the Labor Board refused to require a union steward to turn over contemporaneous notes regarding conversations the steward had with a union member about an incident to which the union member was ultimately fired. The Board explained that if the employer were allowed to compel disclosure of this type of information, employees would be manifestly restrained in their willingness to candidly discuss matters with their union representatives. Public Utility District No. 1 of Snohomish County, supra at 19.
C. The undue burden on and inconvenience to the union are factors that are to be given special weight especially given that the documents are those that the City has or should have in its possession. In addition to the member/union privilege as a basis for denying the City s motion to compel, the burden the subpoena places on the Union must also be considered and respected. PTE Local 17 is not a party to this litigation. While parties to a lawsuit must accept its burden as a natural part of civil litigation, nonparties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon nonparties is a factor entitled to special weight evaluating the balance of competing needs. Eugster v. City of Spokane, 121 Wn. App. 799, 813, 91 P.3d 117 (Div. 3, 2004) (citations omitted) (emphasis added). While PTE Local 17 is not comparing the number of documents it is being asked to review to those of the subpoenaed party in Eugster it nevertheless has made a compelling showing of undue burden. Perez Declaration, 9-12. This undue burden must be considered along with the fact that the City should already be in possession of most if not all the documents surrounding the five areas of factual inquiry described in Exhibit I to the Declaration of Katrina R. Kelly filed in support of defendant s motion to compel and repeated at pp. 4-5 of its motion. Thus, the City, already possessing the documents, will not be prejudiced by denying its motion to compel since the need for confidentiality in the member/union relationship greatly outweighs any slight inconvenience the City might have in searching its own records to find documents relevant to its five areas of inquiry. D. That plaintiff did not initially challenge the subpoena duces tecum to Ms. Perez in no way lessens the Union s rights to do so. Although not supplying any authority, nor even making a direct argument, the City in its motion to compel notes that the plaintiff did not initially challenge the subpoena duces tecum
that was ultimately served on Ms. Perez. Whether or not the plaintiff initially challenged the subpoena is immaterial. As the Alaska Supreme Court recognized in Peterson, supra at 567, The privilege may be asserted by the employee or by the union on behalf of the employee. While this principle is different than the attorney/client privilege which is typically recognized to be owned by the client to whom the attorney owes a unique duty, in the situation of the member/union privilege the union s representation extends far beyond that of an individual union member but to the bargaining unit as a whole.