Legislature(2011 - 2012)BARNES 124
03/21/2012 03:15 PM House LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| HB202 | |
| HB327 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 202 | TELECONFERENCED | |
| *+ | HB 327 | TELECONFERENCED | |
HB 327-EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE
4:32:01 PM
CHAIR OLSON announced that the next order of business would be
HOUSE BILL NO. 327, "An Act making privileged certain
communications between employees and employee union
representatives; and amending Rule 402 and Rule 501, Alaska
Rules of Evidence."
4:32:11 PM
REPRESENTATIVE BOB LYNN, Alaska State Legislature, asked members
to imagine they are employees whose employer alleges wrongdoing
on the job. The employees obviously need help and cannot fight
the battle alone so they go to their union representative and
share the accusations and information. He pointed out that when
parties speak to their attorneys the employees share privileged
information in an honest manner. The employees assume their
discussion will be held in confidence. The union
representative's process is to take the information to the next
level and the process is then repeated. The next step is
litigation and the union representative is subpoenaed and
required under oath to reveal everything their employees stated,
including damaging information. He asked whether this is fair
and reasonable. He stated that he would not want it to happen
to him. He hoped members would not think this is the way to
resolve problems for the employer and their employees. He
pointed out that these issues do not occur in the private sector
since employers and employee advocates can speak frankly about
grievances without fear of their discussions being subject to
subpoenas. He offered his belief that the same limited
privilege of confidentiality should be attained for the public
employee sector as well.
REPRESENTATIVE LYNN said, "I think that's only fair. That's
really what this bill is all about. It's to ensure that a union
advocate can fulfill their duty of fair representation in
disciplinary procedures and making things fair and equitable for
everybody that's concerned." He asked members to try to put
themselves in the scenario he just described and members will
understand what the bill is all about.
4:35:31 PM
MIKE SICA, Staff, Representative Bob Lynn, Alaska State
Legislature, stated that Section 1 amend Alaska Statute 09.25,
the code of civil procedures, by adding a new subsection AS
09.25.405, which provides that confidential communications
between employee and employee representative of an organization
are privileged conversations, when conducted in an advocacy
setting in a disciplinary matter and provides for the definition
of "organization."
4:36:12 PM
MR. SICA stated that Section 2 amends AS 23.40, by adding a new
subsection 23.40.065, which provides that (a) an individual
cannot be compelled to disclose information in any proceeding,
acquired from an employee represented by the individual, if such
information was obtained in confidence and was in connection
with an individual providing advocacy services in regards to
disciplinary proceeding of the employee.
MR. SICA related that subsection (b) provides exceptions to the
privilege, such as being ordered by the court to disclose, if
there is information concerning the commission of a crime, or if
the employee consents to disclosure. Subsection (c) provides
that if there is a conflict between this statute and federal or
state law, then this statute is preempted and does not apply;
and subsection (d) provides for the definition of "organization"
to include any labor or employee organization existing in the
state, and a definition of "proceeding," which includes any
legislative, judicial, administrative, or any other proceeding
requiring testimony under oath, and any arbitration, hearing or
meeting under the grievance procedures of a collective
bargaining agreement.
4:37:18 PM
MR. SICA related that Section 3 declares an indirect court rule
change [Alaska Rules of Evidence 402 and 501]. He explained
Section 4 provides that Sections 1 and 2 can only take effect if
Section 3 is approved by two-thirds vote of both houses. He
summarized that this bill places in statute what most people
already thought existed.
4:37:32 PM
REPRESENTATIVE HOLMES referred to Section 2, which she said she
assumes is patterned or is similar to a whole host of other
professions such as accountants, therapists, social workers, and
attorneys with this type of privilege.
4:38:03 PM
MR. SICA pointed out that the bill drafter is online and could
more specifically answer; however, this language is patterned
after an Illinois law. He agreed that other privileges include
communications between a husband and wife and clergy, and is
limited so it wouldn't be as broad as attorney-client
communications, but is relevant to the conversations in the
grievance process.
4:38:29 PM
REPRESENTATIVE SADDLER referred to page 1 line 7, to
confidential communications. He asked for clarification on the
definition of confidential communication.
MR. SICA answered that in his limited understanding he thought
it would refer to anything that falls under the privilege, which
would include a communication between the union representative
and the employee as it pertains to an anticipated or ongoing
disciplinary proceeding.
4:39:13 PM
REPRESENTATIVE SADDLER asked what the limits would be in terms
of an anticipated disciplinary meeting. He questioned whether
that might be too broad since any conversation might relate to a
disciplinary proceeding.
REPRESENTATIVE LYNN offered his belief that it would be limited
to grievance under discussion.
MR. SICA pointed out that the Senate held hearings on the
companion bill and testimony revealed this was a required
process early on in any type of pre-court phase of disciplinary
hearings. He said he did not know for certain.
4:40:11 PM
REPRESENTATIVE SADDLER asked for clarification on disciplinary
proceedings and the threshold.
REPRESENTATIVE THOMPSON stated that he is not an attorney. He
related his understanding that HB 327 relates to public
employees and that public unions are being discriminated
against. He suggested if it is a private employer with union
employees that the shop steward communications would be
privileged, but these communications are not privileged for
public employees.
MR. SICA related his understanding that in a private situation
privileges are extended by the National Labor Relations Act.
4:41:11 PM
REPRESENTATIVE MILLER related a scenario in which Mr. Sica was
in the union and Representative Miller, as his boss fired him.
He asked if the action would be an anticipated disciplinary
hearing and if the firing would be covered by the wording.
MR. SICA offered his belief that the communication would be an
ongoing procedure since as the employee he will go to union
representative to file a grievance and his union representative
will be involved in the process.
4:41:54 PM
DOUG MERTZ, Attorney, Mertz Law, stated he became involved with
this issue when one of his clients was unfairly terminated by
the state. He explained that the law requires a very specific
process must be used, such that a person cannot immediately sue,
but must exhaust administrative remedies. In order to do so,
the employee must engage in a process with the state Division of
Personnel. He detailed that a representative from that division
and a representative of the aggrieved person attempt to work out
an agreement, which is a process that can go on for a
substantial amount of time and can potentially result in
arbitration. The state requires the employee be represented by
a union advocate - a non-lawyer advocate - and prohibits the
employee from being represented by an attorney. In fact, if the
employee was allowed to hire private counsel the usual attorney-
client would apply and there wouldn't be any question that all
the communications were private. However, the state requires a
non-attorney represent employees during this process. He
relayed the process, noting that once the administrative
processes are exhausted the suit is brought forth using a
private attorney. In his client's case at that point the state
alleged no privilege exists and issued a subpoena for all the
information from the union's file. Thus everything related to
the member, any discussions between the union representative and
the member, including tactics, case evaluations, and potential
acceptable or unacceptable settlements, and any strategies were
subpoenaed.
4:44:40 PM
MR. MERTZ reinforced that if an attorney had been involved there
would not be any question that it would be blatantly wrong and
improper to even demand these things. He stated that he
formerly held the position as an assistant attorney general and
at the time no one would have even thought of issuing a subpoena
for the records, and if they had, the action would likely have
been considered unethical. However, in the past two years the
Department of Law has decided to attempt to gain an advantage
during litigation, including employing this tactic. He
characterized this action as so extreme and outrageous that when
a similar situation - a parallel case - came before the
California Supreme Court, the court said it would be ridiculous
for the California legislature to set up a system whereby the
only thing a lay advocate could say is, "Don't talk to me." He
predicted that is what will happen as soon as people realize
that communications between the advocate and the member can be
obtained by the state. He further predicted that people will
not talk to their advocate and their advocates will not talk to
them and the entire process will fall apart. He surmised the
state could potentially call the advocate as a witness against
the advocate's own client. He brought up one case in another
state that pertained to collective bargaining between a school
district and the teacher's union. The teacher's union tried to
subpoena all of the internal communications of the school
district relating its collective bargaining position - what the
school district intended to ask for and not ask for - and in
that case the Illinois Supreme Court said Illinois could not do
so.
4:46:55 PM
MR. MERTZ pointed out numerous cases in which employees have
reported to some authority serious wrongdoing. In those
instances the employers attempted to subpoena, essentially
retaliate, by requesting information on their employees. He
again predicted that if this were allowable the entire system
would fall apart. Essentially the system set up to make
resolution of grievances more efficient would fall apart and the
employees would simply mark time until they could sue since the
employees would then have proper confidential relationships. He
reported that the Alaska Supreme Court is currently considering
his client's case. He questioned why the legislature should
consider this issue since the court may soon decide the case.
He offered two reasons for the legislature to take action now.
First, the Alaska Supreme Court takes a long time to decide
cases. Second, when the Alaska Supreme Court considers the
matter it will not focus on whether it is good idea to prohibit
this practice, but rather will consider whether the action is
unconstitutional - a denial of due process - to allow the
employer to make this type of demand from the union. He pointed
out that this is a much higher bar to satisfy. It is entirely
possible the Alaska Supreme Court could rule that the state's
actions are unfair, but it does not violate due process;
however, the legislature has the privilege of being able to
decide whether the state's actions constitute good or bad
policy, and whether the state should simply set a standard and
set aside the constitutional issues. Therefore it would be
appropriate, for those reasons, for the legislature to look at
this case now. This bill would affect lots of people since it
is not limited to public employees, but could also apply to
private employees who are union members. He surmised since it
has now become an official policy of this administration to
employ these types of tactics, the actions will probably spread
to private employers. He urged members to look very strongly at
this now. He hoped the committee will conclude the importance
of having an even playing field and confidentiality is essential
to that process. He concluded that confidentiality between
employees and their union representatives should be preserved
through a bill like this.
4:49:40 PM
REPRESENTATIVE HOLMES remarked that she thinks what she is
hearing is completely unconscionable - that people are not able
to use an advocate since everything is discoverable at the next
level. She asked whether the state can subpoena the union's
records, but the union cannot subpoena the records from the
state.
MR. MERTZ answered no; the union cannot subpoena the records
from the state.
4:50:52 PM
REPRESENTATIVE SADDLER recalled Mr. Mertz cited an Illinois
Supreme Court case in which a union tried to do a reverse
discovery. He asked whether the union should have the right to
do so.
MR. MERTZ answered that goes right to the question of what the
role of the union is in the collective bargaining process. He
said if only one side has access to the confidential planning
sessions prior to the collective bargaining sessions that it
makes the whole collective bargaining process meaningless, which
is why the National Labor Relations Board (NLRB) and others have
said this effectively destroys the role of the union and should
be prohibited.
4:52:07 PM
REPRESENTATIVE SADDLER asked whether either side should have a
hidden microphone privilege.
MR. MERTZ answered yes.
REPRESENTATIVE SADDLER asked if the hidden microphone privilege
were allowed the parties would go straight to court.
MR. MERTZ responded that it would make the initial process
meaningless. Currently, the process is quite efficient for most
minor or major grievances. He offered his belief that it is a
valuable process to have and once the playing field is lopsided
during the administrative process that it ruins the usefulness
of the entire administrative process.
4:52:53 PM
REPRESENTATIVE SADDLER asked if he is aware of any advice given
employees with respect to the grievance process.
MR. MERTZ responded up until this incident happened the
assumption has been that - for most part - anything between a
union advocate and his/her member has been deemed confidential.
Thus when a union representative talks to the member he/she asks
the member to tell the advocate everything about the case;
however, that can no longer happen.
4:53:49 PM
REPRESENTATIVE SADDLER asked for the definition of confidential
communication between an employee and a union representative.
MR. MERTZ answered that confidential communication is not
defined in the bill. He predicted the court will go back to the
parallel privileges in the rules for attorney-client privileges
to decide when the privilege begins and when it doesn't apply.
He elaborated that very specific precedents apply to an attorney
and his/her clients.
4:54:28 PM
REPRESENTATIVE SADDLER asked whether the union advocates should
have the same protections as an attorney when meeting informally
with their clients.
MR. MERTZ answered yes.
4:54:36 PM
REPRESENTATIVE SADDLER asked when the decision in his client's
specific case is expected.
MR. MERTZ answered that oral arguments were held two weeks ago.
The Alaska Supreme Court typically issues their decision between
six months and a year after oral arguments.
4:55:05 PM
REPRESENTATIVE HOLMES related her understanding that since this
precedent has been set that the current advice is not to talk to
advocates.
MR. MERTZ answered yes, that has to be the outcome.
4:55:25 PM
PETE FORD, Southeast Regional Manager, Alaska Public Employees
Association (APEA); President, Juneau Central Labor Council,
stated that the Juneau Central Labor Council is the local
affiliate of the AFLCIO. The APEA represents 8,000 employees
and a few private sector employees in the state, school
districts, university, cities, boroughs, and nonprofit
organizations. He stated that he speaks today in favor of
adoption of HB 327. He characterized this bill as a significant
and meaningful source of solace during a time when employees are
already facing difficult situations.
4:57:15 PM
MR. FORD estimated that in approximately 60 percent of the time
APEA's members frequently interrupt the discussions with their
union representatives to ask whether their communications will
be held as confidential communications. He speculated that in
approximately 30 to 40 percent of the employees who seek
guidance when they encounter difficulties with their employers
ask whether their discussions are confidential. He has always
been able to confidently answer yes. He emphasized that he
needs to have honest and complete information during these
discussions in order to fully understand the employee's
situation and explore acceptable settlements.
4:58:17 PM
MR. FORD stated during the day-to-day activities of union
representation that HB 327 would offer employees assurance of
their confidential rights, which is appropriate and proper.
4:58:35 PM
REPRESENTATIVE SADDLER asked for the threshold for a
disciplinary action or anticipated disciplinary action.
MR. FORD answered that typically these employees would be facing
dismissal situations, but other actions could include
suspensions or reductions in pay or status, and in some
instances employees would face reprimands of some type as a
first level of discipline. He pointed out that sometimes he
consults with employees who sense the atmosphere in the
workplace has become uncomfortable and they also sense that they
are being treated differently by their supervisor or manager.
He emphasized the importance of confidentiality in those
situations so the union can more fully understand the specific
situation and help the employee rebuild his/her relationship
with his/her supervisor.
5:00:02 PM
REPRESENTATIVE SADDLER related his understanding that the
privilege should kick in at the lowest level of disciplinary or
potential disciplinary action.
MR. FORD agreed.
REPRESENTATIVE SADDLER asked whether there would be any point at
which the privilege would not be necessary.
MR. FORD said he was unsure. He then speculated that a
theoretical conversation would not require a privilege.
[HB 327 was held over.]