California is going where only two other progressive bastions—Maryland and Illinois—have gone before in terms of providing unions with special privileges. If Assembly Bill 729 passes the Senate, communications between union representatives and their members will receive the equivalent protected status as that of attorney-client, physician-patient, and psychotherapist-patient privileges.
Specifically, the bill adds a “union agent-represented worker privilege,” which defines union agent as union officials and union employees involved in grievance representation or collective bargaining. Meaning neither can be compelled to disclose information pertinent to an employer’s investigation or grievance proceeding. Giving unions the right to refuse to disclose communications hampers the possibilities of employers and employees resolving disputes on their own – before costly and time-consuming litigation or arbitration.
Initially, AB 729 would have allowed the union agent-represented worker privilege to stand even if withholding information would lead to individual being harmed or other crime. But in a compromise, the bill was amended to gain support by making a few exceptions to this government-granted union privilege. Unions and the represented employees lose their evidentiary privilege if the disclosure of confidential conversations is necessary to “prevent a criminal act that the union agent reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.”
In addition, the privilege is lost when the confidential communication that is made would lead or aid an individual in committing a crime. Lastly, the evidentiary privilege between union officials and members ceases during criminal proceedings.
However, these safeguards may not be as ironclad as they appear. Unfortunately, California state laws and court decisions enable unions to commit certain criminal offenses in the name of advancing “legitimate” union objectives without punishment.
For example in the U.S. Chamber of Commerce report, SABOTAGE, STALKING & STEALTH EXEMPTIONS: SPECIAL STATE LAWS FOR LABOR UNIONS, reveals unions in California are exempt from numerous criminal acts like trespassing, stalking and can even block the free movement of commuters in the transit system.
So what will happen when union officials commit crimes they are exempt from? Will the union agent-represented worker privilege survive? Sadly, the legislators who are proponents of the legislation have not thought this far ahead.
Further, the bill leaves it up to the union representative’s discretion as to whether disclosing private communications would prevent a crime or if a criminal act occurred. It is very possible since union officials know they are exempt from certain criminal activity, they may not relinquish their protected status appropriately.
Even after the amendments, the controversial protected status may conflict with federal labor law. The federal National Labor Relations Act (NLRA) requires union officials and members to furnish certain information, at the employer’s request, in numerous circumstances. For instance, any information related to a grievance before arbitration or the collectively bargained impasse resolution procedure requires the union to hand over the employer’s requested information.
Moreover the legislation on its face is biased. It only extends the confidentiality privileges to union representatives and not to management employees in labor relations. If union officials need this protection to get honest answers from their members then why would management not need the same confidentiality protection to speak frankly with their employees?
Lastly, even California state officials like Department of Personnel Administration, Dave Gilb, question the legitimacy of shielding union officials’ communications with employees. “There are so many union attorneys around to handle sensitive conversations,” Gilb said, “does the state need one more level of privilege added to the law?”
In the end, giving labor union representatives’ the discretion to refuse to disclose information, obtained from a union member performing professional duties does is add another burden to job creation and conducting orderly business. Overall, organized labor’s latest privilege would subjugate employers to second-class citizens to unions that are dependent on them to exist.