Legal Updates

Massachusetts SJC Rejects Claim Of Union Evidentiary Privilege

In a matter of first impression in the Commonwealth, the Massachusetts Supreme Judicial Court (“SJC”) recently declined to recognize a new type of evidentiary privilege that would protect communications between union members and union officials from disclosure outside of a labor dispute setting. The SJC concluded, in Chadwick v. Duxbury Public Schools, 475 Mass. 645 (2016), that the appropriateness of any such privilege was a matter for the Legislature to decide, and that there was no evidence that the Legislature had intended to create such a privilege.

Background

The issue arose as a result of a discrimination and retaliation lawsuit filed against the Duxbury Public Schools by a former English teacher, Nancy Chadwick. Chadwick suffered from post-traumatic stress disorder, which was allegedly exacerbated by the conduct of her department chair. As a result of continuing performance issues, Chadwick was eventually placed on a performance improvement plan, and subsequently was dismissed from the Duxbury Public Schools at the end of the 2014-2015 school year.

In the course of discovery, the Duxbury Public Schools sought from Chadwick all communications concerning her claims, including communications she had with the Duxbury Teachers Association, the union representing teachers in the school system. Chadwick objected to producing such communications, asserting that they were shielded by a union member-union privilege. On this basis, Chadwick withheld 92 e-mail communications from disclosure.

The School moved to compel production of the e-mails, and Chadwick responded with a motion for a protective order. The Superior Court declined to issue a protective order or to recognize the existence of a union member-union privilege, and ordered Chadwick to turn over the communications. Chadwick filed an interlocutory appeal, which was referred to a panel of the Appeals Court and subsequently transferred to the SJC.

SJC Declines To Recognize A Privilege

Chadwick based her privilege argument on M.G.L. c. 150E, the statute establishing the collective bargaining rights of Massachusetts public employees, including public school teachers. The statute grants public employees the right to bargain collectively over “wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.” In addition, c. 150E makes it a prohibited practice for an employer to “[i]nterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter,” or “[d]ominate, interfere, or assist in the formation, existence, or administration of any employee organization.”

Notably, the Massachusetts Labor Relations Commission has interpreted c. 150E as protecting the confidentiality of communications between union members and union officials in the context of labor disputes. See, e.g., Bristol County Sheriff’s Dep’t, 31 M.L.C. 6, 17 (2004); City of Lawrence & Lawrence Patrolmen’s Ass’n, 15 M.L.C. 1162, 1165-66 (1988). Chadwick argued that, in order to secure the collective bargaining rights enshrined in the statute, c. 150E should be read as implicitly creating a similar union member-union privilege in the context of civil lawsuits.

Rejecting Chadwick’s argument, the SJC held that the provisions of c. 150E on which Chadwick based her privilege claim did not apply to a civil action such as Chadwick’s discrimination suit against the Duxbury Public Schools. In the SJC’s words, Chadwick’s dispute had nothing to do with “the formation, existence, or administration of any employee organization.” Finding that the “plain and unambiguous language” of c. 150E restricted its application to the collective bargaining context, the SJC concluded that it could not find that the Legislature “contemplated a necessity to protect the confidentiality of union member-union communications in a private lawsuit brought by a union member against the employer.”

Having rejected Chadwick’s arguments based on c. 150E, the SJC further declined to create a common law privilege shielding communications between a union member and her union. The SJC stated that the Legislature was the appropriate body to decide whether to create such a privilege.

What Does This Mean For Employers?

Employees often seek advice and counsel from their unions on matters that fall outside of the labor relations arena, and through the Chadwick decision, the SJC has made clear that those communications are not privileged from discovery. Thus, a Massachusetts employer faced with a lawsuit brought by a union-represented employee, arising outside the context of a labor dispute, should consider tailoring its discovery requests to encompass any relevant communications between the employee and his or her union officials.

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Please feel free to contact us if you have any questions about the Chadwick decision or any related issues.