Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/20/2012 01:30 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| HB168 | |
| SB224 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 224 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 168 | TELECONFERENCED | |
SB 224-EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE
1:44:45 PM
CHAIR EGAN announced consideration of SB 224.
1:45:12 PM
DANA OWEN, staff to the Senate Labor and Commerce Committee,
sponsor, said SB 224 (and the companion measure in the other
body) seeks to grant to the communications between employees and
their union representatives the same kind of protection that is
granted to an attorney who is representing an employee. Under
current law, those communications are not privileged, and in
litigation, attorneys from one side can subpoena the union
representative and request any confidential information that
might have passed between the employee and the union
representative. The upshot of this is a situation where union
representatives cannot effectively advise or represent their
members.
MR. OWEN said Mr. Mertz noted that one of the California
justices says it is illogical to assume that the only advice a
union representative could legally or effectively give to anyone
is, "Don't talk to me." That is what happens today and that is
what this bill seeks to remedy. Several provisions in SB 224
make it clear that there are conditions under which no one is
compelled to withhold evidence and that in the case of conflict
with federal or other state laws, this bill would not apply.
SENATOR MENARD asked how many Alaskan cases have been affected
by a breach of confidentiality.
MR. OWEN replied that he didn't have a number, but one such case
is before the Alaska Supreme Court now; briefs on it are in
their packets. Maybe one of the attorneys could provide more
enlightened testimony about it, but he explained that for many
years the practice has been to not subpoena these kinds of
communications. It is a trend that started a few years back.
SENATOR MENARD asked if there will be fewer labor disputes with
this bill.
MR. OWEN replied that is not the aim of the bill, although it
would be nice. The aim of the bill is to make sure that one side
in this dispute doesn't have effective representation eroded. It
only applies in disciplinary proceedings when an employee has a
dispute with the employer.
SENATOR PASKVAN said it could be important to indicate that the
other side has an attorney representing it and there is a
privilege if that person is an attorney. He understood that the
bill attempts to create parity between parties where one is
represented in connection with the advocacy services.
MR. OWEN agreed that was the case precisely.
1:50:11 PM
DOUG MERTZ, Attorney, said this issue came to his attention when
he represented a client who was unjustly terminated by the
state. Under existing law, when that happens, you are required
to go through an administrative process before bringing a suit.
The administrative process involves a union advocate, basically
dealing with people from the state Division of Personnel, in an
attempt to resolve the matter. The feature that is unusual is
that the state prohibits the union member from using an
attorney. It requires using the union advocate and those are
always non-attorneys. This sets up the kind of trap that
happened with his client, where the employee went through the
whole process dealing with his union folks, assuming as everyone
has, that his communications were confidential. He related:
The state said, oh no, no confidentiality here. We
have the right to all your records, to all your notes,
to all your emails and letters, anything having to do
with this member, including tactical discussions,
evaluations of the strength of the case, discussions
of settlement positions - the sort of thing that if
there were an attorney representing the person there
is no question it could not be obtained.
MR. MERTZ said it would indeed be unethical to even try to do
it, and yet that is what has happened here. The reason it
matters is because for centuries, confidentiality has been
recognized as an absolute essential to a fair legal system. As
in the California Supreme Court opinion that Mr. Owen mentioned,
it would be ridiculous to think that the only advice the union
advocate could give to his member is, "Don't talk to me." If
there is no right to confidentiality between the union advocate
and the union member, then the state could even call the union
advocate as a witness against his own client. The state could
use this tactic to obtain confidential notes and discussions of
minutes of the other side's collective bargaining team while the
collective bargaining is going on! An employer could obtain all
the records having to do with confidential reports of wrong
doing to law enforcement agencies in order retaliate against the
person making the reports.
If there was no right to confidentiality, no union member would
ever talk to his union advocate, and the entire system of pre-
court litigation, the administrative remedy, would simply fall
apart, Mr. Mertz said. The process would become meaningless,
because nobody would talk to the union advocate.
MR. MERTZ said in his case he decided to make a discovery
request for their internal communications and their response was
that they couldn't do that because of attorney/client privilege.
Why is this coming up now? He explained that when he was an
assistant attorney general decades ago, they would never have
thought of doing this; it would have been dismissed as
ineffective and maybe unethical. But in the last two years, as a
result initially of overenthusiastic attempts by an assistant
attorney general to gain an advantage over the other side, it
became Department of Law policy.
MR. MERTZ said he took his case to the State Supreme Court and
it is considering what to do with it now. That raises the final
question: why should the legislature deal with this problem when
it's in the Supreme Court's lap? The answer is that the Supreme
Court is examining whether this tactic violates the
constitutional duty of affording due process to litigants. That
is a very high level to achieve. The legislature, on the other
hand, has the luxury of deciding whether this tactic is fair and
whether it is good policy to let it happen. He urged them to
conclude that there are so many down sides to allowing one side
to invade the confidentiality of the other side that it would
essentially destroy the current system of employer relations
with union members.
1:56:46 PM
SENATOR MENARD asked why unions don't hire attorneys as union
advocates.
MR. MERTZ answered because attorneys are really expensive and it
would require a revolution in the way they fund their
representation. It would mean displacing all the current corps
or advocates, many of whom are quite experienced and good at
their jobs, with new attorneys. Even if that was possible, it
wouldn't happen real soon.
SENATOR MENARD asked if his concern was with the tactic.
MR. MERTZ answered yes; it is being used as an unfair tactic.
SENATOR PASKVAN said the administrative process is required and
as part of it, the retention by the employee of counsel is
prohibited.
MR. MERTZ replied, "Right on both counts." The Supreme Court has
said you have to exhaust this administrative remedy before you
can go to court. And the collective bargaining agreement, which
is approved by the legislature, says you have to use a union
advocate, essentially barring private attorneys. In his case,
one of the things that the state attorney subpoenaed was his
confidential correspondence with the union advocate.
2:00:10 PM
STEVEN SORENSON, attorney and general counsel, Public Safety
Employees Association (PSEA), said he supported SB 224, because
PSEA had this happen in Fairbanks: union records were subpoenaed
along with the deposition of an executive director, a non-
attorney. The two members involved in this lawsuit were
represented by business agents of the union (non-attorneys) all
the way through the administrative procedures (required under
the collective bargaining agreement). They went all the way
through to arbitration and have now sued the city for wrongful
termination.
The city sought the union's records and served a "subpoena duces
tecum" on PSEA to get them and deposed the former executive
director, John Cyr. In the deposition they asked Mr. Cyr what
advice he, as the executive director of the union, gave the
members; he declined to give that information absent a court
order requiring him to do so. In his response to the subpoena
duces tecum for those records, he would have to give over the
emails, the written correspondence, the advocacy aspect of that
part of communication to the attorneys representing the city.
MR. SORENSON said this case was ongoing and in its initial
stages of discovery; it's very likely, now that there is some
notoriety with Mr. Mertz's case, that the attorneys for the City
of Fairbanks could press the Superior Court to issue an order
for these records and require the former executive director to
testify. This legislation is desperately needed now to protect
these private and confidential communications that exist between
a business agent and its members.
CHAIR EGAN asked him to explain a "subpoena duces tecum."
MR. SORENSON replied that it is a type of subpoena that is used
to get just the documents that a litigant may have.
2:04:24 PM
KATE SIAN, Deputy Director, Labor Relations, Division of
Personnel and Labor Relations, Department of Administration
(DOA), commented specifically about section 2 rather than
section 1 that amends AS 23.40. She said that employee union
representatives are recognized through collective bargaining
agreements and this legislation could significantly hinder
management's rights, which are also found in collective
bargaining agreements. Further, she said unions are free to
bargain language with regards to the roles their employee
representatives play and, in fact, unions have done just that.
MS. SIAN used the Alaska Correctional Officers Association as an
example, because they are in current negotiations with them.
Their language states:
The confidentiality of officer representative
discussions with members regarding contractual or
disciplinary issues shall be respected except when an
officer representative has information of a criminal
nature. Officer representatives shall not be asked or
compelled to disclose information gained while acting
in their capacity as an officer representative unless
it involves knowledge of criminal misconduct.
MS. SIAN said this matter is more appropriate for collective
bargaining than statute. In addition, this legislation could
present several problems for agencies, particularly those that
provide security related services. For instance, the Department
of Corrections' policy is that you need to report incidences and
security breaches through the chain of command and sometimes
employee union representatives are in the line of command, for
instance, a supervisor. They have had examples where an employee
has reported something to their employee union representative
and that report has not been brought forward. It was done under
the guise of talking to an employee union representative, but
then at the same time saying they reported it up the chain of
command, because they happen to be one and the same person.
2:06:51 PM
She said Mr. Mertz mentioned that union advocates are always
non-attorneys, but that is not accurate for every union. Many
attorneys are union representatives; PSEA actually has an
attorney in addition to Mr. Sorenson.
MS. SIAN said that Mr. Mertz raised the issue of speaking to a
representative during collective bargaining and pointed out that
there are specific ground rules in play during collective
bargaining that must be followed by both parties.
SENATOR PASKVAN said she referenced a contract provision and
asked if that was based on fairness.
MS. SIAN replied that language was probably proposed by the
union and may have been the result of interest arbitration, but
it was related to fairness. It's understood that employee union
representatives play a vital role in the world of labor's
organizations and how business is conducted in the state. But,
for instance, the Department of Corrections has major security
concerns that have to be brought forward to management's
attention, and there is some concern that this legislation could
hinder that process.
SENATOR PASKVAN asked if the employer is represented by counsel
as part of the administrative hearing process.
MS. SIAN replied in the grievance process that the employer is
represented by labor relations and all but one of the labor
relations analysts are attorneys and she can go to the Attorney
General's Office for advice.
2:09:33 PM
JAKE METCALF, Executive Director, Public Safety Employees
Association (PSEA), Local 803, said he was also a lawyer. Prior
to this job, he worked as associate general counsel and general
counsel for IBEW 1547. He said unions have many representatives;
some unions call them shop stewards. They are the initial
representative for members, especially in disciplinary
proceedings. They usually represent the member throughout the
grievance process up unto the time it has settled or gone to
arbitration.
These representatives tend to not be attorneys, he explained.
However, sometimes attorneys that have gone to law school but
have not passed the bar work as business representatives, but
they are still not considered attorneys. For this process to
work, clients need the confidence that their representatives can
talk to them and get all the information, much like a lawyer
would do representing a client, because all the information they
can gather early on is used to hopefully settle the case before
it has to go to arbitration, which is a very expensive process.
2:12:03 PM
MR. METCALF also pointed out that in the middle of representing
an employee under the collective bargaining agreement, if the
employer were to come and say they want all their records, they
could say no. The Alaska Labor Relations Act specifically
prohibits an employer from interfering with administration of a
union and the reason is because it would mess up the process and
interfere with the union's ability to represent the member. This
proposal is a limited privilege that would allow the
communications between a union rep and a member to stay
confidential. If they don't have that, the union can't do its
job and is limited in its ability to resolve disputes quickly
costing both sides more money and time. This bill is very
necessary he concluded.
2:13:43 PM
SENATOR PASKVAN said he understood the limited privilege, but he
could also see the benefit in a reciprocal action of removing
the administrative privilege even if one is an attorney. In
other words, if it's fair for one side it should be fair for the
other side. And just because they can afford the attorney, if
it's appropriate to gain access to that information, then maybe
they should remove the privilege on the other side as well.
MR. METCALF said that was logical thinking.
2:14:41 PM
BARBARA HUFF TUCKNESS, Director, Governmental and Legislative
Affairs, Teamsters Local 959, supported SB 224. She read a last
minute letter about privileged communications into the record in
support of SB 224 as follows:
Dear Senator Egan:
On behalf of our Teamster Local 959 business reps and
the members that we represent around the state, we
wish to thank the committee for introducing this
legislation in regards to the impact of privileged
communications.
SB 224 would allow free candid and confidential
conversations between employees and their business
representative. In addition, this bill allows business
representatives to fully investigate workplace
disputes. SB 224 establishes privilege similar to the
attorney client privilege between a business
representative and a member. This correlates to
conversations that occur during the administration of
any of our collective bargaining agreements.
Additionally, previous legislatures have recognized
other privileges for persons other than doctors,
lawyers, and spouses such as (a long list included in
their packets). Considering the above examples of SB
224, we believe the merit of privilege is to ensure
that members, clients and patients can confide freely
in their representatives or provide support in order
to help them reduce problems, resolve litigation
and/or get appropriate service.
Rick Boyles, Secretary Treasurer
MS. HUFF TUCKNESS said one of the earlier testifiers talked
about collective bargaining and actually used an excellent
example of where the issue is. First of all, she clarified that
Teamsters Local 959 represents private sector and public sector
employees. The private sector, under federal law, does recognize
this privilege. The private sector in the state does not. As a
business agent, she actually does day-to-day administration of
one public sector contract and two private sector contracts,
collective bargaining and arbitrations. She wears two different
hats under two different sets of laws. She actually agreed with
the earlier testifier that this should be an issue in collective
bargaining, but unfortunately, the success of some individuals
in being able to collectively bargain these particular issues in
a contract is good while other unions are not successful.
She said this was one of the arguments used that Senator Davis,
in particular, might remember in the attempt for about seven
years to pass the nurses' overtime bill. In fact, Ms. Huff
Tuckness said she had testified on it, because she had
negotiated the 10-hour in-between protection in their hospital
agreements; they had minimum hours, and it was all in the
contract. Unfortunately, the employer with the other groups out
there was not willing to negotiate the same or similar
provisions. That law was finally passed, and it has been pretty
successful for everybody around the state, but the point is that
some individuals or organizations have those tools and maybe a
relationship with a particular employer to successfully
negotiate those provisions while others don't. It would set up
an unlevel playing field throughout the state for those that are
unable to accomplish that.
2:19:08 PM
MS. HUFF TUCKNESS said the other issue with respect to attorneys
is that while Local 959 has a general counsel, everyone else on
staff has been hired from within the different bargaining units
- to continue the relationship.
SENATOR MENARD noted that her letter of March 20 about
privileged communication was indeed in their packets.
2:20:18 PM
SENATOR PASKVAN invited Ms. Sian back and asked her thoughts on
removing any attorney/client privilege of any sort from the
administrative proceeding.
MS. SIAN responded that both sides have emails and deliberative
conversations that they wouldn't want the other side to be able
to discover and use. She could only speak for the state and the
11 unions it works with, but they don't try to subpoena records
and don't seem to be having any issues like that. She understood
this issue was based on a very limited incident.
SENATOR PASKVAN remarked that she would find it a problem of
fundamental fairness if the other side could ask her lawyers
what they were told on their side of the equation.
MS. SIAN answered at times, yes; there are things you don't want
to disclose to the other side. As an employer, the state has to
provide information on which they base their disciplinary
decisions; the state is more of an open book, because when they
go to arbitration, they have all the information and have to
provide it to the unions and their representatives. So, there
are some differences in who holds what information.
SENATOR PASKVAN asked if there is a difference between having to
turn over the facts of the case and information regarding
tactics or strategies that she might want to establish while the
proceeding is still active.
MS. SIAN replied that the unions have requested information that
the state has withheld based on confidentialities such as
deliberative privilege.
CHAIR EGAN found no further questions and closed public
testimony. He removed his objection, thanked everyone for
attending.
[SB 224 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 224 Sponsor Statement.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Sectional Analysis.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Relevant Statutes.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 20110718 PetRev Brief final copy.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 amicus brief of AFLCIO 20110718.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Brief of Appellee State of Alaska.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Appendix to Brief of Appellee State of Alaska.pdf |
SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 RP reply brief final 20111007.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 testimony, Mertz 032012.PDF |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB224-DOLWD-ALRA-3-16-12.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB224-DOA-LR-3-7-12.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 lttr supporting, Angaiak, NEA 031912.PDF |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |