Maryland Gov. O’Malley Grants Big Labor Protections from Disclosure

In Maryland, labor unions join the protected ranks of doctors and lawyers with respect to confidentiality privileges. In early May, Maryland Governor Martin O’Malley signed Big Labor’s new special privilege into law. It extends protection from compulsory disclosure to unions and their members. Only similarly pro-union Illinois has given unions the controversial protected status that may conflict with federal labor law.

The legislation gives evidentiary protection to communications between union representatives and union members, meaning neither can be compelled to disclose information pertinent to an employer’s investigation or grievance proceeding. The right of refusal hampers the possibilities of employers and employees resolving disputes before costly and time-consuming litigation or arbitration.

Labor law attorney representing the Maryland Chamber of Commerce Gary Simpler commented, “There could be instances where the union does have access to information that they’ve obtained from the [employee] that would be important in helping the employer make an informed decision… if they had information they might have made a different decision or resolved the case much quicker than when they only learned about the information at the hearing.”

Proponents of the legislation point to myriad exceptions awarded to unions’ newly acquired privileged status in the hopes to quiet detractors that claim government overreach, burdensome regulation, and union bias. However, the exceptions only apply to grievances or incidents that reach criminal proceedings. Until then, it is left to the discretion of the acting union representative to determine if it is necessary to disclose information concerning grievances.

Labor union representatives’ discretion to refuse to disclose information, obtained from a union member performing professional duties, adds another burden to job creation and conducting orderly business. The well-intended exceptions do not counter balance bad actors that will take advantage of labor unions’ protected status.

Another talking point made by the law’s sponsor State Sen. Brian Frosh (D) is, “This bill is not about protecting the union… it’s about protecting the employee.” Unfortunately, it is not in workers’ overall interest to increase the burden of managing a company so that it leads to reduced job creation. Furthermore, union stewards that are employees of the company will be most likely to use the new protection. Employees, as well as union representatives, should have the duty to contribute to continue the company’s orderly business not act as thorn in management’s side.

Finally, 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. Even though Maryland’s law gives deference to the NLRA, it means an employer at some point will incur the cost of litigation to gain its federal rights.

Overall, organized labor’s latest privilege subjugates employers to second-class citizens to unions that are dependent on them to exist. In the end, it will impose additional costs and regulatory burdens, and impede job creators’ ability to conduct orderly business.