Is a Full Labor Relations Evidentiary Privilege Developing?

Berkeley Journal of Labor and Employment Law, Vol. 29, p. 221, 2008

St. John's Legal Studies Research Paper No. 06-0072

46 Pages Posted: 1 May 2007 Last revised: 6 Jul 2008

Mitchell H. Rubinstein

New York Law School; Rutgers University School of Management and Labor Relations

Date Written: June 2008

Abstract

Whether a full labor relations privilege is developing is one of the most interesting as well as difficult aspects of labor law and the law of evidence. This issue typically arises when an employee has a confidential conversation with a non-attorney union representative concerning a labor relations issue and the employer or a third party seeks to learn about that confidential communication. A labor relations privilege is a critically important issue in labor law because much of labor-management relations is conducted by non-attorneys.

While a number of courts have recognized a labor relations privilege in the context of an employee-employer relationship, courts have issued widely conflicting opinions with respect to the application of this privilege to third parties. I refer to the application of this privilege to third parties as a "full labor relations privilege."

In supporting the recognition of a full labor relations privilege, this Article examines general principles of privilege law, the treatment of lay privileges in other contexts, freedom of association principles, and the litigation that has taken place concerning the recognition of a labor relations privilege. This Article also explores the unique features of labor law that support the recognition of a full labor relations privilege. The handful of courts and commentators who have examined whether a labor relations privilege should be recognized have not examined these critically important labor law principles.

As the Supreme Court has recognized, it is in no ones interest to have uncertain privileges. That is exactly the state of the law this Article addresses and hopes to clarify.

Keywords: Privilege, Evidence, Unions, Arbitration

JEL Classification: J50, J52, J53, K31, K41

Suggested Citation

Rubinstein, Mitchell H., Is a Full Labor Relations Evidentiary Privilege Developing? (June 2008). Berkeley Journal of Labor and Employment Law, Vol. 29, p. 221, 2008; St. John's Legal Studies Research Paper No. 06-0072. Available at SSRN: https://ssrn.com/abstract=983508

Mitchell H. Rubinstein (Contact Author)

New York Law School ( email )

52 Broadway, 9th Floor
New York, NY 10004
United States
212-533-6300 (Phone)
212-995-2347 (Fax)

HOME PAGE: http://lawprofessors.typepad.com/adjunctprofs/

Rutgers University School of Management and Labor Relations ( email )

New Brunswick, NJ
United States

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