Union-privilege bill passes out of committee with new lineup of exceptions

The bill creating a new legal privilege between unions and union members saw long-anticipated action on February 10.

HB 1187 creates a legal privilege between unions and union members for communications made during the course of union representation akin to attorney-client privilege and providing some enumerated exceptions. We previously wrote about the bill here.

On its way out of the House Civil Rights & Judiciary Committee last week, the bill received a few amendments, including some that came at AWC’s request. The amendments include:

• Not applying the privilege to:
  • Communications subject to the Public Records Act.
  • Civil or criminal actions where the union member is accused of a crime, or assault or battery.
  • Civil or criminal actions where a union member is a party. The union member may obtain a copy of any statement previously given that concerns the subject matter of the action and may elicit testimony concerning such statements. However, this right does not render them discoverable over the objection of the union member.
  • Civil, criminal, or regulatory actions against the union or its affiliated, subordinate, or parent bodies.
• Retaining the exception to the privilege for preventing a future imminent, serious crime.
• Removing the provision that expressly allowed the union to unilaterally waive the privilege.
• Clarifying that “communication” includes oral, written, and electronic communications or documents containing such information.

AWC took a position of other on the bill because we agree that there should be some confidentiality protections for communications between unions and their members made during representation. However, we are still concerned what this broad union-member privilege could mean for cities. The bill could limit the cities’ ability to adequately investigate and take action in misconduct situations.

AWC is also concerned with the fairness of allowing a broad privilege against discovery for witnesses called to testify against a city at trial, hindering a city’s ability to effectively defend itself in court. In the attorney-client context, it is generally considered a partial waiver of privilege if a client calls their own attorney to testify, opening certain communications to disclosure. This bill would favor union representation communications more than an attorney-client relationship in some ways since a union could still testify on the union member’s behalf without being subject to discovery or effective cross examination. We also remain concerned that the privilege created by the bill runs with the union organization and not the employee, unlike most other privilege relationships where the privilege lies with the individual.

We do appreciate the amendments that address the public records concerns that we had raised.