June 6, 2005

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Nevada Journal Publishes Moberly Article on Union Representation Privilege

Nevada Journal Publishes Moberly Article on Union Representation Privilege The Nevada Law Journal has published an article by RC&A shareholder Mike Moberly that addresses a potentially emerging evidentiary privilege protecting the confidentiality of communications between employees and their union representatives.

The National Labor Relations Board recognized the confidentiality of communications between employees and their union representatives more than 20 years ago in Cook Paint and Varnish Co., holding that such confidentiality is essential to the union’s performance of its statutory responsibilities to employees under the National Labor Relations Act. Other state and federal administrative agencies, including the Federal Labor Relations Authority (which has jurisdiction over labor relations matters arising in federal government employment), subsequently expanded the Board’s analysis to encompass a broad evidentiary privilege. The state appellate courts in New York have taken a similar position.

However, the evidentiary privilege recognized by these agencies and courts has been rejected by every federal court to consider the issue. A state appellate court in California also recently refused to extend the protection afforded by Cook Paint to encompass an evidentiary privilege applicable in civil and criminal judicial proceedings.

Moberly’s article discusses the statutory basis for the administrative recognition of the privilege, as well as the reasons for the refusal of most courts to embrace the privilege. The article also analyzes the implications of this split in authority, and ultimately concludes that although confidential communications between employees and union representatives are generally shielded from disclosure to employers in Board proceedings, the courts’ reluctance to extend this protection to judicial proceedings may occasionally deter employees from communicating with their union representatives.
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