Alaska Employment Law

Must a union divulge its evaluations of possible grievances, or its bargaining committee’s notes, when they are relevant and are demanded by an adverse party? 

Say the employer in an arbitration suspects that the union is processing a discharge grievance over the objection of fellow employees.  Can the employer demand copies of the union grievance committee’s minutes that may show that the union decided to proceed with a meritless grievance only out of loyalty to a long-time employee, or avoidance of an ULP charge?  If members sue an employer for breach of a CBA promise to provide benefits, may the employee obtain copies of the union’s drafts of its bargaining demands?  If the law protects such materials, what is the source of that protection?  Is there a union-union member privilege analogous to the attorney-client privilege?

In Winnett v. Caterpillar, Inc., 2008 WL 339301 (M.D.Tenn. 2008), UAW retires argued that Caterpillar had breached a CBA-based duty to provide lifetime, no-cost health benefits.  Caterpillar then subpoenaed various documents from the UAW locals and International, including the unions’ draft bargaining proposals and internal documents reflecting strategic discussions leading up to the proposals. 

When the unions objected to disclosure, Caterpillar moved to compel, and the unions moved for a protective order under Rule 26(c)(7).  That subsection protects “a trade secret or other confidential research, development, or commercial information.” [fn]

The District Court first held that “the undisclosed, confidential bargaining strategies of a party to a contract are not probative of the meaning of the written agreement between the parties.”  Id. at *3.  But, it continued,

[t]o the extent that any information regarding the UAW’s confidential bargaining strategy and priorities is relevant to the claims and defenses in this case, the court agrees with the UAW that such information is confidential and must be protected from disclosure pursuant to [FRCP] 26(c)(7).

The Court extended the protection only because UAW and Caterpillar had an “ongoing collective bargaining relationship [in which they] revisit and renegotiate the same issues again and again.”  Id. at *4.    Moreover, the Court limited the protection to materials that the union had not previously disclosed to others.  Id. at *5.  

Commentary:  Caterpillar must have decided the stakes were high enough to risk a reciprocal obligation of disclosure .  If Caterpillar’s motion to compel had succeeded, the rationale would equally have supported union discovery of similar corporate documents.   The scarcity of caselaw on this topic (the court cites only two other opinions) suggests that CBA parties have decided that each is better off with a mutual non-aggression pact.  Only when the stakes are huge (here, a class action for retirement health benefits) or when the company or union may not survive the current battle does it make sense to in effect demand to read the other side’s diary and resign oneself to publishing one’s own diary.

[fn] The unions pointedly did not assert a privilege under Rule 26(b).   Id. at *3.  Any privilege would have been limited to federal-question cases.  See FRE 501, 2nd sentence.  A protective order issued under Rule 26(c), on the other hand, would also apply to diversity cases.  The trial court retains more discretion to deny a request under the balancing test of Rule 26(c) than one under Rule 26(b), where a privilege is subject to limited exceptions (e.g., crime/fraud exception).

H/T:  Mitchell Rubinstein at Adjunct Law Professor.  Prof. Rubinstein’s article on this topic will appear in the summer issue of the Berkeley Journal of Labor and Employment Law.