Union-member privilege bill survives cutoff

A bill creating a new legal privilege between unions and union members passed off the House floor last week with a unanimous vote. AWC is “other” on the bill because while some level of privilege may be appropriate in some circumstances, there is concern about the broad grant of privilege to labor organizations that isn’t comparable to anything elsewhere. We are still working to get some concerns addressed with amendments.

HB 1187 creates a new legal privilege between an employee and their union. We last wrote about the bill here. The version of the bill that passed out of the House prevents both the union and the employee from being examined in a court proceeding about their communications made with each other or between union representatives during the course of union representation. “Union representation” includes a union’s actions on behalf of an employee’s employment relationship with their employer, like personnel matters, grievances, labor disputes, wages and pay rates, employment hours, working conditions, and collective bargaining.

The bill contains several exceptions where the privilege would not apply:

• Where examination or disclosure is necessary to prevent commission of a crime likely to result in an imminent risk of serious physical injury.
• In civil or criminal actions where the employee is accused of a crime or assault or battery.
• In civil or criminal actions where a union member is a party, the member may obtain a copy of their statements to the union or elicit testimony from the union concerning the subject matter of the action. The exception explicitly states that such statements are not discoverable by other parties.
• In civil, criminal, or regulatory actions against the union or its affiliated organizations or their agents.
• When a union member admits to a crime, or intent to engage in a crime, to their union.
• When the communication record would otherwise be subject to the Public Records Act.

An early version of the bill expressly allowed the union to unilaterally waive the privilege, but that section has since been removed. However, given the current language of the bill it is unclear whether the employee or the union (or both) hold the privilege and who would have the authority to waive it and to what extent. It is also unclear if there is a distinction between “employees” who aren’t necessarily members of the union and “union members” in the operation of the proposed privilege or exceptions.

For those unfamiliar with the legal process, “discovery” refers to the compulsory disclosure of relevant documents by one party in a legal action to the other party on request. Parties routinely request documents relating to the other side’s witnesses as part of the discovery process. A legal privilege protects certain confidential communications from disclosure to maintain certain professional and personal relationships where privacy is critical to the work or relationship involved, and where society recognizes the relationship as important enough justify keeping relevant evidence out of court.

There are currently 10 statutory legal privileges in Washington, including well known privileges like attorney-client, doctor-patient, and clergy-penitent, among others.

How other legal privileges work

By way of comparison, Washington courts have found that when a client testifies, or has their lawyer testify, about part of a privileged communication between the client and lawyer, the client has waived attorney-client privilege as to the whole of that communication – making it discoverable by the other side. Likewise, a client offering up their attorney’s testimony on a specific communication could also waive privilege for other communications on the same subject matter. This is so the court can be given all the relevant evidence from witnesses in context so it can render a fair decision based on all the facts, rather than only getting part of the story. Generally, clients are discouraged from calling their own attorney as a witness to preserve attorney-client privilege.

Similarly, in the statute creating a doctor-patient privilege, there is an exception that waives privilege and allows an opposing party to discover medical records and examine a patient’s doctor when the patient has filed a civil action for personal injury or wrongful death. The thought behind this is that when a patient files a personal injury case, they have put their health and the cause of their injuries into question and the court needs to see all the relevant medical information and hear from all the relevant doctors to make a fair decision in the case.

Finally, while most would agree that the relationship between children and their parents is a socially important one, only a very narrow legal privilege exists for communications between parents and children. The parent-child privilege exists only for preventing testimony about communications between a minor child and the child’s attorney after the child has been arrested for a crime. Generally, Washington does not recognize a parent-child testimonial privilege.

AWC continues to seek amendments

HB 1187’s proponents argue that it returns the state to the status quo prior to a 2021 case that for the first time litigated the union-member privilege issue and found that Washington had no union-member privilege. No Washington courts had ruled on the union-member privilege issue prior to that case. 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 the broad union-member privilege in the bill could mean for cities. The bill could limit cities’ ability to adequately investigate and take action in misconduct situations (like harassment or discrimination claims) that cities could ultimately be liable for.

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 chances to fairly defend itself in court. As currently drafted, HB 1187 would favor union representation communications more than attorney-client or doctor-patient privileges by allowing a union representative to testify for the union member without being subject to discovery or effective cross examination. The same is not true if a client were to call their attorney to testify, nor if a patient places their health at issue by filing a personal injury claim. Courts should be able to hear all the relevant evidence submitted at trial so they can ascertain the truth, not just select bits and pieces. Courts are also the best place to decide what information is relevant vs. what should remain protected in a particular case.

We also remain concerned that the privilege created by the bill may run with the union organization and not the employee, unlike most other privilege relationships where the privilege lies with the individual. We understand that this is because a union may represent multiple members on a matter, and we agree that one union member should not get to waive privilege on behalf of everyone else. But this scenario should be more clearly addressed in the language of the bill.

AWC appreciates the House’s earlier amendments to clarify how the privilege would intersect with the Public Records Act. However, AWC will continue to work on amendments in the Senate to narrow the bill and allow discovery when the union member chooses to call their union representative to the stand. The privilege would still protect against employers seeking union-member communications records on their own and only make relevant communications eligible for discovery when the employee has chosen to put them in play by calling the union as a witness, similar to how attorney-client and doctor-patient privileges work.