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Privileged Communications with Union Representatives

This installment of NATCA’s “Know Your Rights” series will explain the basic information bargaining unit employees need to understand about privileged communications with union representatives. Specifically, the most important thing for bargaining unit employees to know is that they have a right to confidentiality in communications with union representatives, but that there are some significant limitations on these rights.

Are my communications with union reps confidential?

Yes, but within reason. Federal employees have a right to expect that communications with union representatives are confidential. The FLRA has repeatedly found that an agency violates the Statute when it compels a union representative to discuss the details of conversations with bargaining unit employees without special justification. In legal-speak, these communications are “privileged” and an agency cannot compel the union representative to reveal the substance of the discussions.

Specifically, the FLRA has found that the “content or substance of statements made by an employee to [her] Union representative in the course of representing the employee in a disciplinary proceeding” is protected as privileged. See Customs Service, 38 FLRA at 1308 finding that the agency committed an unfair labor practice (ULP) by requiring a union representative to disclose, under threat of disciplinary action, the content of statements made by an employee; see also 5 U.S.C. § 7116(a)(1). An agency may not interfere with the confidentiality of such communication unless the right to maintain the confidentiality of the conversations has been waived or some overriding need for the information is established. See Long Beach Naval Shipyard and Federal Employees Metal Trades Council AFL-CIO, 44 FLRA. 1021, 1038-40 (1992) finding that conversations between a bargaining unit employee and a union representative constituted protected activity and that the agency committed a ULP by threatening a union representative with disciplinary action for refusing to disclose the content or substance of statements made to him by a bargaining unit employee.

Are there limits to my confidentiality rights?

Yes, definitely. Both the FLRA and the MSPB have rejected privilege claims under certain circumstances.

The FLRA has recognized that an agency’s need for information regarding protected conversations may arise in the context of an investigation of employee misconduct. See, e.g., United States Department of Treasury United States Customs Service Customs Management Center and National Treasury Employees Union, 57 FLRA 319 (2001). In that case, the FLRA found that an agency established a sufficient need to justify questioning a bargaining unit employee concerning the advice given by a union vice president in light of an allegation that the vice president advised the employee to lie in the course of an earlier investigation. In addition, the FLRA has found that an agency established an extraordinary need to conduct an investigation and question bargaining unit employees regarding an alleged incident at a union meeting following the agency’s receipt of a sworn affidavit from an employee alleging that physical violence had been threatened by one employee against another on the premises. See Federal Bureau of Prisons Office of Internal Affairs and American Federation of Government Employees, 53 F.L.R.A. 1500, 1510. (1998).

Recently, the MSPB also found that an employee’s communications with a union representative were not privileged where she threatened to kill herself, “return as a ghost and harass people,” and “take others with her,” if she was fired. See Berkner v. Department of Commerce, 2011 MPB 27, 111 LRP 12516 (2011). In that case, the employee was discussing a pending EEO claim, and made threats in the presence of her union steward, who reported the incident. The MSPB held that the communications were not privileged as they involved threats of physical violence, thereby creating an extraordinary need for the agency to conduct an investigation. See Berkner, 2011 MSPB 27 at 7. The MSPB relied on the holding of the FLRA in Federal Bureau of Prisons, 53 FLRA 1500, above.

Summary: Federal employees do have confidentiality (privilege) rights in discussion with their union representatives, but these rights are often quite limited. In most instances, employees can expect that their discussions with their union are confidential and privileged. Employees should, of course, avoid making threats of any kind in the workplace, but as noted above, both the FLRA and MSPB have held that threats of violence in particular can remove any claim of privilege regarding communications with union representatives. It is quite easy to see how the FLRA and MSPB rationale could apply to other matters such as security threats, criminal conduct, etc. Therefore, employees should realize that, while they can expect discussions with their union representatives to remain privileged and confidential, making threats or discussing criminal conduct, etc., may not be protected at all. Please contact your regional vice president or the NATCA Labor Relations Department if have any questions on this issue.

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