BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 729|
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THIRD READING
Bill No: AB 729
Author: Roger Hernández (D)
Amended: 7/9/13 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-2, 7/2/13
AYES: Corbett, Jackson, Leno, Monning
NOES: Walters, Anderson
NO VOTE RECORDED: Evans
ASSEMBLY FLOOR : 48-27, 5/28/13 - See last page for vote
SUBJECT : Evidentiary privileges: union agent-represented
worker privilege
SOURCE : California Labor Federation, AFL-CIO
DIGEST : This bill provides that a union agent, as defined,
and a represented employee or represented former employee have a
privilege to refuse to disclose any confidential communication
between the employee or former employee and the union agent
while the union agent is acting in his/her representative
capacity, except, as specified.
Senate Floor Amendments of 7/9/13 add double-jointing language
to address a chaptering out issue with AB 267 (Chau).
ANALYSIS : Existing law governs the admissibility of evidence
in court proceedings and generally provides a privilege to
refuse to testify or otherwise disclose confidential
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communications made in the course of certain relationships,
including the following:
attorney-client (Evid. Code Sec. 954);
spouses (Evid. Code Sec. 980);
physician-patient (Evid. Code Sec. 994);
psychotherapist-patient (Evid. Code Sec. 1014);
clergy-penitent (Evid. Code Sec. 1033, 1034);
sexual assault counselor-victim (Evid. Code Sec. 1035.8); and
domestic violence counselor-victim (Evid. Code Sec. 1037.5).
This bill establishes the union agent-represented worker
privilege and provides that a union agent and a represented
employee or represented 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, any
confidential communication between the employee or former
employee and the union agent made while the union agent was
acting in his/her representative capacity.
This bill specifies that a represented employee or represented
former employee also has a privilege to prevent another from
disclosing a confidential communication between the employee and
a union agent that is privileged.
This bill authorizes a union agent to use or reveal a
confidential communication made to the union agent while the
union agent is acting in his/her representative capacity in
either of the following circumstances:
1. In actions against the union agent in his/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; or
2. 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.
This bill requires a union agent to use or reveal a confidential
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communication made to the union agent while the union agent was
acting in his/her representative capacity if required to do so
by a court order.
This bill defines "confidential communication" to mean
information transmitted, by oral or written communication,
between a represented employee or represented former employee
and a union agent and in confidence by a means which, so far as
the employee, former employee, or union agent is aware,
discloses the information to no third persons other than those
who are present to further the interest of the employee, former
employee, or union agent or those to whom disclosure is
reasonably necessary for the transmission of the information or
the accomplishment of the purpose for which the communication
was made, and includes advice given by a union agency in the
course of a representational relationship.
This bill defines "union agent" to mean a person employed,
elected, 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
represented former employee communicates in confidence to the
steward regarding a grievance or potential grievance.
This bill provides that there is no privilege if the union agent
reasonably believes that disclosure of any confidential
communication is necessary to prevent a criminal act that the
union agent reasonably believes is likely to result in the death
of, or substantial bodily harm to, an individual.
This bill provides that there is no privilege with respect to a
confidential communication made to enable or aid a person in
committing, or planning to commit, a crime or fraud.
This bill provides that the union agent-represented worker
privilege does not apply in criminal proceedings.
Existing law provides that no person has a privilege to refuse
to be a witness; to refuse to disclose any matter or to refuse
to produce any writing, object, or thing, or prevent another
person from the same unless otherwise provided by statute.
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Existing law provides that the right of a person to claim
specified privileges is waived with respect to a protected
communication if the holder of the privilege has disclosed a
significant part of that communication or consented to
disclosure, without coercion. Existing law provides that a
disclosure does not constitute a waiver where it was reasonably
necessary to accomplish the purposes for which the services of a
lawyer, physician, psychotherapist, sexual assault counselor, or
domestic violence counselor were consulted.
Existing law 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.
Existing law 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.
This bill applies these and other related provisions to the
union agent-represented worker privilege.
Background
An evidentiary privilege permits an otherwise competent witness
to refuse to testify and/or prevent another from testifying.
Privileges are policy exclusions, unrelated to the reliability
of the information involved, which are granted because it is
considered more important to keep that information confidential
than it is to require disclosure of all the information relevant
to the issues in a pending proceeding. For example, to protect
the lawyer-client relationship, it is necessary to prevent
disclosure of confidential communications made in the course of
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that relationship. Whereas privileges of a witness under the
Federal Rules of Evidence are governed by the principles of
common law as interpreted by United States district courts in
light of "reason and experience," the only privileges that are
recognized in California are those statutory privileges
expressly codified in the Evidence Code.
To date, California has codified several evidentiary privileges,
recognizing the need to protect the confidentiality of certain
communications. Among those are the: lawyer-client privilege,
spousal privilege, confidential marital communications
privilege, physician-patient privilege, psychotherapist-patient
privilege, clergyman-penitent privilege, sexual assault
counselor-victim privilege, domestic violence counselor-victim
privilege, and human trafficking caseworker-victim privilege.
Yet other statutory privileges protect official information
acquired in confidence by a public employee and the identity of
informants, protect persons from having to reveal their votes in
public elections, and protect against disclosure of trade
secrets.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 7/8/13)
California Labor Federation, AFL-CIO (source)
American Federation of State, County and Municipal Employees,
AFL-CIO
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 Professional Firefighters
California School Employees Association
California Statewide Law Enforcement Association
California Teachers Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
Glendale City Employees Association
International Longshore & Warehouse Union
Los Angeles Police Protective League
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Los Angeles Probation Officers Union, AFSCME, Local 685
Orange County Employees Association
Organization of SMUD Employees
Professional & Technical Engineers, Local 21
Riverside Sheriffs' Association
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
State Coalition of Probation Organizations
UC Student Workers' Union, UAW Local 2865
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Utility Workers Union of America, Local 132
OPPOSITION : (Verified 7/8/13)
Air Conditioning Trade Association
ALPHA Fund
Associated Builders and Contractors of California
Association of California Health Districts
California Association of Joint Powers Authorities
California Chamber of Commerce
California Grocers Association
California Manufacturers and Technology Association
California Special Districts Association
California State Association of Counties
Civil Justice Association of California
Los Angeles County Board of Supervisors
National Federation of Independent Business
Plumbing-Heating-Cooling Contractors Association of California
Rural County Representatives of California
School Employers Association of California
Schools Excess Liability Fund
Western Electrical Contractors Association
Western Growers Association
ARGUMENTS IN SUPPORT : The California Labor Federation,
AFL-CIO, sponsor, writes:
Under existing law, confidences shared with a lawyer, a
psychiatrist, or domestic violence counselors are
protected, but those shared with a union representative are
not. That just does not reflect the realities of labor
relations or promote early settlement of labor disputes.
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Instead, it creates the potential for a company to subpoena
a union representative and demand access to confidential
communications that the union representative had with
his/her members.
There are many important reasons to extend this privilege.
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
report employer harassment without fearing retaliation if
they came forward publically. AB 729 simply extends a
privilege to confidential communications shared with a
union representative.
ARGUMENTS IN OPPOSITION : The California Chamber of Commerce
and other business groups argue:
Evidentiary privileges are limited and narrowly tailored in
recognition of the fact that such privileges suppress
relevant facts that may lead to an unjust decision. See
Tanzola v. DeRita, 45 Cal.2d [1] (1955); American Airlines
v. Superior Court, 114 Cal.App.4th 881 (2003). Despite
this general public policy of access to the truth during a
proceeding in order to evaluate a dispute upon all relevant
information, AB 729 seeks to preclude disclosure of any
"confidential communication" between an employee and union
agent that was made while the agent was acting in his/her
representative capacity.
Notably, this privilege is only one-sided. Unlike other
privileges that apply to both sides of the
litigation/proceedings such as the attorney-client
privilege, AB 729 only protects the union agent and
employee communication. It does not equally protect the
management-employee communication, or communications
between members of management regarding labor union
disputes or grievance issues. Accordingly, in labor
related proceedings, an employer would be forced to
disclose all related communications, while the union agent
or employee could pick and choose which communications they
wanted to disclose. Such a lopsided proposal will result
in the miscarriage of justice. Finally, to the extent AB
729 interferes with the disclosure requirements of the
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National Labor Relations Act with regard to collective
bargaining, it would be preempted by federal law.
ASSEMBLY FLOOR : 48-27, 5/28/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chesbro, Dickinson, Eggman, Fong, Fox, Frazier,
Garcia, Gatto, Gomez, Gonzalez, Gray, Hall, Roger Hernández,
Jones-Sawyer, Levine, Lowenthal, Medina, Mullin, Muratsuchi,
Nazarian, Pan, Perea, V. Manuel Pérez, Quirk, Quirk-Silva,
Rendon, Skinner, Stone, Ting, Weber, Wieckowski, Williams,
Yamada, John A. Pérez
NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Cooley, Dahle,
Donnelly, Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones,
Linder, Logue, Maienschein, Mansoor, Melendez, Morrell,
Nestande, Olsen, Patterson, Salas, Wagner, Waldron, Wilk
NO VOTE RECORDED: Daly, Gordon, Holden, Mitchell, Vacancy
AL:ej 7/10/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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