CLIENT ADVISORY: RECENT DECISIONS LIMIT UNION PRIVILEGES

Two recent decisions from the Second District Court of Appeal in Los Angeles restrict union representation and impose new obligations on peace officer labor unions. The most important decision is American Airlines Inc. v. Superior Court (DiMarco) (2003) 114 Cal.App.4th 881, in which the court held there is no "union communication privilege" protecting comments union members made to a union vice president about another employee. A second decision, Alhambra Police Officers Association v. City of Alhambra Police Department (2003) 113 Cal.App.4th 1413, allowed a disciplinary action to proceed against a union representative who refused to disclose his communications with an officer under criminal investigation.

Court Holds No Privilege Protects Union Communications

In the American Airlines case, an airline employee sued his former employer for wrongful termination based on race discrimination. He sought a court order compelling a union representative to answer deposition questions about race-based comments other union members allegedly had made to the representative. The union argued the communications were privileged because they were made in the course of union representation.

The Court of Appeal, however, held there is no "union communication privilege" protecting the discussions against disclosure. The court stated not all communications between union officials and members are privileged, and refused to create a privilege from members' First Amendment right to association or the right to privacy under the California Constitution.

Unions Have Duty to Prevent Discrimination and Harassment

The American Airlines case also is significant because it holds labor unions have a duty under the state anti-discrimination statute, the Fair Employment and Housing Act (FEHA), to "take all reasonable steps necessary to prevent discrimination and harassment from occurring" in the workplace. The ruling may mean a labor union or employee association can be held liable for failing to intervene in harassing or discriminatory conduct by its members. The decision does not comment on its implications for the duty of fair representation.

In the other case, Alhambra Police Officers Ass'n v. City of Alhambra Police Department, the Alhambra Police Department disciplined a police association official who refused to answer questions regarding conversations with a member he represented while the member was under criminal investigation. The union officer also had removed documents relating to the misconduct and returned them to the officer under investigation.

Official Duties as Peace Officer Trump Union Rights

The court held there is no privilege for communications made to a non-attorney union representative by an officer under investigation for criminal misconduct. The "official duty" of a peace officer to prevent and detect crime, the court stated, prohibits even a peace officer acting in his union capacity from interfering with a criminal investigation by tampering with evidence or refusing to cooperate with investigators.

The Alhambra decision is not as far-reaching as the American Airlines case because it is confined to criminal investigations. Nonetheless, the decision, when read together with American Airlines, demonstrates at least one court is limiting the statutory privileges available under the POBR. The decisions erode the confidentiality union members and executive boards have come to expect applies to personnel matters and peace officer personnel records.

Union presidents, business agents and executive officers should be careful to communicate with counsel over any issues involving possible union liability. Should you have any questions about these cases or union rights in general, please contact Mastagni, Holstedt & Amick.