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Nevada Journal Publishes Moberly Article on Union Representation Privilege
Nevada Journal Publishes Moberly Article on Union Representation Privilege
The Nevada Law Journal has published an article
by RC&A shareholder Mike Moberly that addresses a potentially
emerging evidentiary privilege protecting the confidentiality of
communications between employees and their union representatives.
The
National Labor Relations Board recognized the confidentiality of
communications between employees and their union representatives more
than 20 years ago in Cook Paint and Varnish Co., holding that such
confidentiality is essential to the union’s performance of its
statutory responsibilities to employees under the National Labor
Relations Act. Other state and federal administrative agencies,
including the Federal Labor Relations Authority (which has jurisdiction
over labor relations matters arising in federal government employment),
subsequently expanded the Board’s analysis to encompass a broad
evidentiary privilege. The state appellate courts in New York have
taken a similar position.
However, the evidentiary privilege
recognized by these agencies and courts has been rejected by every
federal court to consider the issue. A state appellate court in
California also recently refused to extend the protection afforded by
Cook Paint to encompass an evidentiary privilege applicable in civil
and criminal judicial proceedings.
Moberly’s article discusses
the statutory basis for the administrative recognition of the
privilege, as well as the reasons for the refusal of most courts to
embrace the privilege. The article also analyzes the implications of
this split in authority, and ultimately concludes that although
confidential communications between employees and union representatives
are generally shielded from disclosure to employers in Board
proceedings, the courts’ reluctance to extend this protection to
judicial proceedings may occasionally deter employees from
communicating with their union representatives.