Confidentiality of Communications between a Union Representative and Employee

Whenever a bargaining unit employee goes to a union representative to discuss a representational matter there is a long established right that the discussions are confidential. This confidentially has been codified in NATCA’s various collective bargaining agreements and by case law. The representation rights section of our contracts state that a union representative while performing representational duties will not be required to disclose information obtained from an employee who is subject to an investigation. There are only two exceptions; one is if the employee has waived the confidentiality already by disclosing the information elsewhere, and the other exception is if there is an overriding need established. That is a very high standard that has yet to be met.

The Federal Labor Relations Authority (FLRA) has long supported this principle of confidentiality as well. The FLRA case law suggests that the confidentiality could go to matters beyond discipline as long as it can be established that the discussions involved representational matters. The underlying premise is that in order for the union to meet its duty of fair representation it must be able to hold matters in confidence and free from disclosure. Required disclosure would interfere with that premise.

See Customs and NTEU, 38 FLRA 1300, (1991)

Accordingly, employees should know that their communications with their union representative are and shall remain confidential.