The role of union representatives is vital in safeguarding employees' rights in the workplace, as they advocate for better working conditions, provide a voice for workers in collective bargaining, and protect employees from employer retaliation. However, to perform their duties effectively, union representatives require access to confidential and sensitive information. This raises the question of whether union representatives are entitled to a confidentiality privilege, as seen in other professions such as doctors and lawyers.

This article explores the legal basis for confidentiality privilege for union representatives. Specifically, we will examine the legislative and common law sources of privilege, the extent of the privilege, and the limitations of the privilege.

Statutory Basis for Confidentiality Privilege

The primary legislative basis for the confidentiality privilege for union representatives is Section 8(b)(1)(A) of the National Labor Relations Act (NLRA). This provision prohibits labor organizations from coercing or restraining employees in exercising the rights guaranteed in Section 7 of the NLRA, which gives employees the right to engage in collective activities for their mutual aid and protection.

The National Labor Relations Board (NLRB) has construed Section 8(b)(1)(A) to include the right to confidentiality for employees who confide in their union representatives. In Anheuser-Busch, Inc., 237 NLRB 982, 984 (1978), the NLRB declared that "the statutory protection of Section 8(b)(1)(A) extends to the confidential nature of employee-union communications."

Common Law Basis for Confidentiality Privilege

In addition to the legislative basis, the confidentiality privilege for union representatives also has a common law foundation. The privilege is derived from the legal principle of "fiduciary duty." A fiduciary is a person who owes a duty of trust and loyalty to another person, and the fiduciary duty requires the fiduciary to act in the best interests of the person to whom the duty is owed.

Union representatives owe a fiduciary duty to the employees they represent, requiring them to act in the best interests of the employees and to maintain the confidentiality of any information employees share with them in confidence. The duty of confidentiality is vital in preserving trust between union representatives and employees and in enabling employees to communicate freely with their representatives.

The Extent of Confidentiality Privilege

The scope of the confidentiality privilege for union representatives is relatively extensive. The privilege covers any information that employees convey to their union representatives in confidence. This may include information on working conditions, grievances, disciplinary actions, and personal issues that may impact an employee's job performance.

The privilege also applies to communications between union representatives and their attorneys, as long as the communications are made in the course of providing legal advice to the union or its members. As a result, the attorney-client privilege applies to communications between the union and its attorneys, as it would in any other legal setting.

Limitations to Confidentiality Privilege

Although the confidentiality privilege for union representatives is extensive, there are some limitations to the privilege. The most notable limitation is the "crime-fraud exception." This exception holds that the privilege does not apply to communications made in furtherance of a crime or fraud.

For example, if an employee informs a union representative of their plan to commit a crime, the union representative cannot maintain confidentiality. The same applies if an employee provides information to the union representative about committing fraud.

Conclusion

In conclusion, the confidentiality privilege for union representatives is a critical protection that enables union representatives to effectively advocate for employees' interests in the workplace. The privilege has both a legislative and common law foundation and covers any information that employees convey in confidence to their union representatives.