BILL ANALYSIS Ó
AB 729
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 729 (Hernandez) - As Introduced: February 21, 2013
As Proposed to Be Amended
SUBJECT : Evidentiary Privileges: Union Agent-Represented Worker
KEY ISSUE : Should confidential communications between a union
agent and a represented employee be subject to an evidentiary
privilege similar to the attorney-client, clergy-penitent, and
other evidentiary privileges?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill would create a new evidentiary privilege for
communications between union agents and represented employees,
similar to those currently in place for communications between
spouses, attorney and client, doctor and patient, and clergy and
penitent. More recently the privilege was extended to cover
relations between a psychotherapist and a patient, a domestic
violence counselor and a victim of domestic violence, and a
sexual assault counselor and a victim of sexual assault. The
privilege is an exclusionary rule of evidence that permits the
holder of the privilege, or the professional who may assert on
behalf of the holder, to refuse to disclose the content of a
confidential communication between two persons in a privileged
relation. The sponsor, the California Labor Federation,
contends that the relation between a union agent and a
represented employee is similar to other privileged relations
insofar as employees often share sensitive information with
union representatives and expect that the union agent will not
disclose communications made in confidence. At least two other
states - Illinois and Maryland - have enacted statutes granting
privileged status to communications between union agents and
employees. This bill would make both the union agent and the
employee (or former employee) the holder of the privilege;
however, as proposed to be amended, the union agent would only
be able to assert the privilege to refuse to disclose
confidential communications, whereas the represented employee
AB 729
Page 2
could assert the privilege to refuse to disclose, and to prevent
another person (including the union agent) from disclosing. The
bill is supported by several labor organizations. It is
opposed by the Chamber of Commerce, the Civil Justice
Association of California, and several business and trade
associations. In response to concerns raised by opponents that
the bill as introduced created a privilege that was too broad,
the author will take amendments in this Committee to narrow the
privilege. While these amendments appear to address many of the
opposition concerns, they do not appear to have removed the
opposition. The summary and analysis reflect the bill as
proposed to be amended.
SUMMARY : Creates a new evidentiary privilege relating to union
agents and represented employees. Specifically, this bill :
1)Provides that a union agent and a represented employee or
former employee have a privilege to refuse to disclose, in any
court or to any administrative board or agency, or in any
arbitration or other proceeding, whether civil or criminal,
any confidential communication between the employee or former
employee and the union agent while the union agent was acting
in his or her representative capacity.
2)Permits a union agent to use or reveal a confidential
communication made during the course of fulfilling his or her
professional representative duties in any of the following
circumstances:
a) If it appears necessary to prevent the commission of a
crime that is likely to result in a clear, imminent risk of
serious injury or death of another person.
b) In actions, civil or criminal, against the union agent
in his or her personal or official representative capacity,
or against the local union or subordinate body thereof or
international union of affiliated or subordinate body
thereof or any agent thereof in their personal or official
representative capacities.
c) When required by court order.
d) When, after full disclosure has been provided, the
written or oral consent of the bargaining unit member has
been obtained, or, if the bargaining unit member is
deceased or has been adjudged incompetent by a court of
competent jurisdiction, the written or oral consent of the
bargaining unit member's estate or guardian or conservator.
AB 729
Page 3
3)Defines "union agent" for purposes of this bill to mean any
person employed by, or elected by, or appointed by a labor
organization and whose duties include the representation of
employees in a bargaining unit in a grievance procedure or in
negotiations for a labor agreement and the labor organization.
Specifies that an appointed employee steward is not a union
agent except to the extent a represented employee or former
employee communicates in confidence to the steward regarding a
grievance or potential grievance.
4)Makes both the union agent and the represented employee or
former employee the holder of the privilege, as follows:
a) Subject to any waiver, a represented employee or former
employee has a privilege to refuse to disclose, and to
prevent another from disclosing, a confidential
communication made to the union agent.
b) Subject to any waiver, a union agent has a privilege to
refuse to disclose a confidential communication made
between the union agent and the represented employee or
former employee.
EXISTING LAW :
1)Governs the admissibility of evidence in court proceedings and
generally provides a privilege to refuse to testify or
otherwise disclose confidential communications made in the
course of certain relations, including the following:
a) The attorney-client relation (Evidence Code Section
954);
b) The spousal relation (Evidence Code Section 980);
c) The physician-patient relation (Evidence Code Section
994);
d) The psychotherapist-patient relation (Evidence Code
Section 1014);
e) The clergy-penitent relation (Evidence Code Sections
1033 and 1034);
f) The sexual assault counselor-victim relation (Evidence
Code Section 1035.8);
g) The domestic violence counselor-victim relation
(Evidence Code Section 1037.5.)
AB 729
Page 4
1)Provides that a person's right to claim a privilege based on
one of the relations listed above is waived with respect to a
communication protected by the privilege if any holder of the
privilege, without coercion, has disclosed a significant part
of the communication or has consented to a disclosure made by
anyone. (Evidence Code Section 912 (a).)
2)Provides that if two or more persons are joint holders of a
privilege, a waiver of a right of a particular joint holder of
the privilege to claim the privilege does not affect the right
of another joint holder to claim the privilege. In the case
of the spousal privilege, the right of one spouse to claim the
privilege does not affect the right of the other spouse to
claim the privilege. (Evidence Code Section 912 (b).)
3)Provides that if a privilege is claimed on the ground that the
matter sought to be disclosed is a communication made in
confidence in the course of a recognized privileged relation,
the communication is presumed to have been made in confidence
and the opponent of the claim of privilege has the burden of
proof to establish that the communication was not
confidential. A communication does not lose its privileged
character for the sole reason that it was communicated by
electronic means or because persons involved in the delivery,
facilitation, or storage of electronic communication may have
access to the content of the communication. (Evidence Code
Section 917.)
COMMENTS : This bill seeks to create a new evidentiary privilege
for confidential communications between union agents and
represented employees, similar to those traditionally granted to
other relations characterized by, or assuming, confidentiality,
including those between spouses, attorney and client, doctor and
patient, and a clergy person and a penitent. More recently the
privilege was extended to cover relations between a
psychotherapist and a patient, a domestic violence counselor and
a victim of domestic violence, and a sexual assault counselor
and a victim of sexual assault. The privilege is an
exclusionary rule of evidence that permits the holder of the
privilege, or the professional who may assert it on behalf of
the holder, to refuse to disclose the content of a confidential
communication between certain classes of persons.
The Holder of the Privilege : Aside from the spousal privilege,
most of the other evidentiary privileges recognized in existing
AB 729
Page 5
law involve a relationship between a professional of some sort
and a "client" who divulges confidential information to that
professional: for example, attorney-client, doctor-patient,
psychotherapist-patient, trained domestic violence or sexual
assault counselor-victim, and clergy-penitent. Usually it is
the "client" or the "patient" - that is, the non-professional in
the relationship - who is the holder of the privilege. This
means that it is the patient or client who has the right to
invoke, or waive, the privilege. Not only can the patient or
client invoke the privilege in order to refuse to testify or
otherwise disclose the contents of a confidential communication,
the patient or client can prevent others, including the trained
professional, from testifying about or disclosing the content of
the confidential communication. In short, the privilege is
primarily intended to protect the person who discloses
confidential information to a trusted person. This assumption
of a special trust is also, of course, at the core of the
spousal privilege.
However, in one of the privileged relations, both parties - to
varying degrees - are deemed the holder of the privilege. Under
the clergy-penitent privilege, both the clergy person and the
penitent are deemed to be holders of the privilege, even though
the privilege is greater for the penitent than it is for the
clergy person. The penitent may assert the privilege to refuse
to disclose, or to prevent another from disclosing, the content
of the confidential communication. (Evidence Code Section
1033.) The clergy person can assert the privilege in order to
refuse to disclose the confidential communication, but he or she
does not have the right to assert the privilege to prevent
another from disclosing the information. (Evidence Code Section
1034.) This bill would create a similar distribution of the
privilege - the employee could invoke the privilege to refuse to
disclose, and to prevent another (including the union agent)
from disclosing, the confidential communication. It is not
entirely clear why the clergy person is deemed a holder of the
privilege while a doctor or lawyer, for example, is not.
Perhaps it is because the clergy person has a religious, rather
than a merely legal, duty to maintain the confidence of
penitent.
At any rate, the rationale for making both the union agent and
the employee a holder of privilege under this bill does not
reflect any essential affinity between the union agent and a
clergy person; rather, according to the sponsor, it is based on
AB 729
Page 6
the fact that the union agent does not only represent the
employee who made the confidential communication, but represents
all of the other employees of the bargaining unit. Thus, a
union agent may have a duty not to disclose a confidential
communication, even if the employee waives the privilege, if to
do so would adversely affect another represented employee.
Limitations on Privilege : Like any other evidentiary privilege,
the union agent-represented employee privilege is subject to
many exceptions. For example, like any other privilege
protecting confidential communications, it would only protect
communications that were made in confidence and only to the
other party. If a third party were present, or if the
communication is voluntarily shared with any third party, the
privilege is waived. Similarly, the bill makes standard
exemptions for instances in which disclosure is necessary to
prevent the commission of crime that would likely result in
serious injury or death, or pursuant to a court order.
The Cook Paint & Varnish Case : Both proponents and opponents of
this bill cite the same case in support of their respective
positions -- Cook Paint & Varnish Co. v. NLRB (1981) 648 F.2d
712 - yet neither side does so in an entirely convincing
fashion. The question in that case was whether an employer had
violated Section 8(a)(1) of the National Labor Relations Act
(NLRA) by seeking to compel employees, at a pre-arbitration
interview, to respond to questions raised by company counsel
relating to a union grievance - where presumably the grievance
had been expressed at some point to a union representative. The
National Labor Relations Board (NLRB) held that the company
violated Section 8(a)(1) of the Act by threatening two employees
with suspension or discharge if they refused to answer
questions. The Board ordered the company to cease this
allegedly unlawful conduct. (Cook Paint & Varnish Co. v. NLRB
(1979) 246 NLRB 464.) On appeal, however, a federal court found
that, in reaching this conclusion, the Board had adopted an
overly broad per se rule that an employer may never use a threat
of discipline to obtain information from an employee concerning
a matter that has been set for arbitration. The Court refused to
enforce the Board's order and remanded the case back to the
Board.
Proponents of the bill cite the 1979 NLRB ruling for the
proposition that, in holding that the employer could not compel
an employee to reveal what was said between the employee and
AB 729
Page 7
union representative, the Board created a presumption that their
communications were confidential. However, proponents of the
bill fail to note that a federal court refused to enforce the
Board's order as overly broad.
Opponents of the bill, on the other hand, cite the 1981 court
ruling for the proposition that a union's ability to refuse
disclosure of pertinent information would be an "unfair"
practice under NLRA because the employer would be forced to
disclosure management communications with employees regarding a
grievance while the union agent and the employee would not.
Yet, the opponents of the bill apparently make an inference that
the Court did not. The Court rejected the Board's ruling, not
because it was an "unfair practice," but because the Board has
relied on an overly broad, per se rule that an employer could
never compel an employee to participate in a pre-arbitration
interview. The Court noted that there might be situations in
which a pre-arbitration interview would be appropriate, while at
the same time acknowledging that the pre-arbitration interview
should not be conducted in a manner that would allow the
employer to "pry into union protected activities." In short,
while the case may be suggestive, it does not appear to lend
much support to either the opponents or proponents of this bill.
ARGUMENTS IN SUPPORT : According to the sponsor, the California
Labor Federation (CLF), when "a union member confides in a union
representative, he or she has every expectation that the
conversation will remain private. The ability to speak
confidentially is essential to a union representative's ability
to provide effective representation. It is also important to
resolving workplace conflicts expeditiously, fairly, and without
litigation." CLF notes that under existing law evidentiary
privileges are extended to other relations where confidences are
shared, such as the relation between a lawyer and client. Even
though the relationship between a union agent and a represented
employee is similar in terms that both are of a representational
nature and both require establishing trust that confidences will
not be disclosed, the union agent-employee communications are
not similarly protected by an evidentiary privilege. CLF
maintains that there are "many important reasons to extend this
privilege." For example, an "employee may confide to a union
representative information that is sensitive, explaining that
they were late due to a medical condition or missed work to
obtain a domestic violence restraining order. They may want to
AB 729
Page 8
report employer harassment without fearing retaliation if they
come forward publicly." This bill, CLF concludes, would simply
extend "a privilege to the confidential communications shared
with a union representative," while also "providing exemptions
for any information that is necessary to disclose or prevent the
commission of a crime or where required by court order."
Many other labor organizations support this bill for
substantially the same reasons as those articulated by the CLF.
The California Teachers Association adds, however, that at least
two other states - Illinois and Maryland - have enacted a
statutory privilege for communications between an employee and
union agent, and that the Alaska Supreme Court recently
established such a privilege for public employees.
ARGUMENTS IN OPPOSITION : The California Chamber of Commerce and
a coalition of business and trade associations oppose this bill
because, they contend, "it is a one-sided proposed evidentiary
privilege that can be misused by labor union representatives to
preclude employees who voluntarily want to testify, from
testifying regarding discussions with union representatives."
The Chamber-led coalition claims that the union's ability to
refuse disclosure of pertinent information has already been
deemed as "unfair" in Cook Paint and Varnish Co. v. NLRB (1981)
648 F.2d 712, "in the sense that the employer would be forced to
disclose management communications with employees regarding
information related to the processing of an employee grievance,
but under AB 729, the union representative and employee would
not. Also, to the extent that this bill interferes with the
disclosure requirements of the NLRA with regard to collective
bargaining, it would be preempted by federal law."
The California Association of Joint Powers Authorities, other
organizations representing local government entities, and the
California District Attorneys Association generally oppose the
breadth of this bill, and also add that all of the other
privileged relations require special educational, licensing, and
training requirements.
PROPOSED AUTHOR AMENDMENTS : In order to clarify that both the
union agent and the represented employee or former employee are
holders of the privilege, albeit to different degrees, and to
clarify that the privilege only extends to confidential
communications between the union agent and the represented
AB 729
Page 9
employee or former employee, the author will take the following
amendments in this Committee:
- Delete SEC. 3, which runs from page 3, line 26, through
page 4, line 24, in its entirety and replace it with the
following:
SEC. 3. Article 9.5 (commencing with Section 1048) is added to
Chapter 4 of Division 8 of the Evidence Code, to read:
Article 9.5. Union Agent-Represented Worker Privilege
1048. (a) Except as required by subdivision (b), a union agent
and a represented employee or former employee have a privilege
to refuse to disclose, in any court or to any administrative
board or agency, or in any arbitration or other proceeding,
whether civil or criminal, any confidential communication
between the employee or former employee and the union agent
while the union agent was acting in his or her representative
capacity.
(b) A union agent may use or reveal a confidential communication
made during the course of fulfilling his or her professional
representative duties in any of the following circumstances:
(1) To the extent it appears necessary to prevent the commission
of a crime that is likely to result in a clear, imminent risk of
serious injury or death of another person.
(2) In actions, civil or criminal, against the union agent in
his or her personal or official representative capacity, or
against the local union or subordinate body thereof or
international union of affiliated or subordinate body thereof or
any agent thereof in their personal or official representative
capacities.
(3) When required by court order.
(4) When, after full disclosure has been provided, the written
or oral consent of the bargaining unit member has been obtained
or, if the bargaining unit member is deceased or has been
adjudged incompetent by a court of competent jurisdiction, the
written or oral consent of the bargaining unit member's estate
or guardian or conservator.
AB 729
Page 10
1048.1 For purposes of this article a union agent means any
person employed by, elected by, or appointed by a labor
organization and whose duties include the representation of
employees in a bargaining unit in a grievance procedure or in
negotiations for a labor agreement and the labor organization.
An appointed employee steward is not a union agent except to the
extent a represented employee or former employee communicates in
confidence to the steward regarding a grievance or potential
grievance.
1048.2. Subject to Section 912, a represented employee or former
employee, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication made to
the union agent.
1048.3. Subject to Section 912, a union agent has a privilege to
refuse to disclose any confidential communication made between
the union agent and the employee or former employee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation (sponsor)
AFSCME
Association for Los Angeles Deputy Sheriffs
California Association of Psychiatric Technicians
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Correctional Peace Officers Association
California Correctional Supervisors Organization
California Federation of Teachers
California Professional Firefighters
California School Employees Association
California Statewide Law Enforcement Association
California Teachers Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
Los Angeles County Probation Officers Union
Los Angeles Police Protective League
Orange County Employees Association
Riverside Sheriff's' Association
State Coalition of Probation Organizations
AB 729
Page 11
UC Student Workers Union, UAW Local 2865
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Opposition
ALPHA Fund
Associated Builders and Contractors of California
Association of Health Districts
California Association of Joint Powers Authorities
California Chamber of Commerce
California District Attorneys Association
California Grocers Association
California Manufacturers and Technology Association
California Special Districts Association
California State Sheriffs' Association
Civil Justice Association of California
National Federation of Independent Businesses
Rural County Representatives of California
Western Growers Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334