Privileged Communication. Evidence, Privileged communication. Practice, Civil, Discovery. Public Employment, Collective bargaining. Labor, Collective bargaining.

Discussion of the standard of review applicable to review of a report of a question of law by a single justice of the Appeals Court. [649-650]

This court concluded that G. L. c. 150E, which grants public employees of the Commonwealth the right to bargain collectively over wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion, and which declares any interference, restraint, or coercion by a public employer of any employee in the exercise of any right guaranteed under that chapter to be a prohibited practice, as well as any domination, interference, or assistance in the formation, existence, or administration of any employee organization, does not implicitly create a privilege protecting communications between a union member and a union representative that is applicable in a civil action alleging disсrimination in employment, where the relevant statutory provisions clearly are not intended to apply to a civil action [650-653]; further, this court declined to create such a privilege judicially [653-656].

CIVIL ACTION commenced in the Superior Court Department on December 8, 2014.

A motion to compel discovery was heard by Raffi Yessayan, J.

A question of law presented in a petition for leave to prosecute an interlocutory appeal in the Appeals Court was reported by Andrew R. Grainger, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Jonathan J. Margolis (Beth R. Myers also present) for the plaintiff.

John J. Cloherty, III, for the defendants.¹

The following submitted briefs for amici curiae:

Ava R. Barbour, of Michigan, Matthew D. Jones, Ira C. Fader, James A.W. Shaw, Jasper Groner, Haidee Morris, Matthew E. Dwyer, Eric P. Klein, & Katherine D. Shea for Massachusetts Teachers Association & others.

Paul T. Hynes & Michael R. Keefe for Professional Fire Fighters of Massachusetts.

Stephen J. Finnegan & Christopher J. Petrini for Massachusetts Association of School Committees, Inc., & another.

HINES, J. In this appeal, we consider an issue of first impression: whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. The issue arises on interlocutory review of a discovery dispute in a Superior Court action brought by the plaintiff, Nancy Chadwick, alleging claims of discrimination and retaliation against the defendants.³ The plaintiff objected to certain of the defendants’ discovery requests, asserting a “union member-union” privilege. A Superior Court judge rejected the plaintiff‘s claim and entered an order compelling production of the requested discovery. The plaintiff filed an application for relief under G. L. c. 231, § 118, and a single justice of the Appeals Court reported the issue to a panel of the Appeals Court.⁴ We transferred the case to this court on our own motion.

In her challenge to the defendant‘s discovery requests, the plaintiff concedes that a union member-union privilege has never been recognized in Massachusetts. She argues, however, that G. L. c. 150E, the statute establishing the collective bargaining rights of public employees, should be interpreted to recognize a union member-union privilege and that such a privilege bars the employer‘s access to the requested discovery. We affirm the judge‘s ruling declining to recognize such a privilege, as we discern no legislative intent to incorporate within G. L. c. 150E a union member-union privilege extending beyond the labor dispute setting, and we decline to recognize the privilege under common lаw.

Background.

The following summary of the facts is drawn from the allegations in the plaintiff‘s complaint, the motion judge‘s memorandum of decision and order on the defendants’ motion to compel, and other relevant documents in the record.

1. The alleged discrimination and retaliation.

Beginning in 2006, and continuing to her retirement in 2015, the plaintiff was employed as an English teacher at Duxbury High School. During her employment by the Duxbury public schools, the plaintiff was represented by the Duxbury Teachers Association, the local affiliate of the Massachusetts Teachers Association. She served as president of the Duxbury Teachers Association for six years, from 2010 to 2015.

In 1998, the plaintiff was diagnosed with posttraumatic stress disorder (PTSD), but she successfully managed the symptoms until 2009. After 2009, she experienced panic attacks, anxiety, hypervigilance, and disturbed sleep patterns, which she asserts were caused by work conditions, including bullying and harassment from her direct supervisor. In 2012, the plaintiff‘s attorney notified the school superintendent of her PTSD diagnosis and requested accommodation in the form of a replacement supervisor. In response, the school superintendent assigned the assistant principal to conduct the plaintiff‘s performance evaluation but declined to alter the subject-matter supervisor for the English courses that the plaintiff taught.

In December, 2013, and between March and May, 2014, the plaintiff and the defendants engaged in a series of interactions that, according to the plaintiff, involved discrimination and retaliation against her.⁵ On June 9, 2014, the plaintiff was placed on

a “directed growth plan,”⁶ a disciplinary action that permitted Duxbury public schools to dismiss her at the end of the 2014-2015 school year. The plaintiff commenced this lawsuit seeking monetary damages in Decembеr, 2014.⁷

2. The discovery requests.

On January 5, 2015, the defendants served document requests and interrogatories pursuant to Mass. R. Civ. P. 26, as amended, 423 Mass. 1401 (1996), and Mass. R. Civ. P. 33, as amended, 385 Mass. 1212 (1982), respectively. On June 19, 2015, the plaintiff objected to certain of the discovery requests,⁸,⁹ claiming a union member-union privilege. At the

request of the defendants, the plaintiff supplied a privilege log for ninety-two electronic mail (e-mail) messages withheld from disclosure. The defendants filed a motion to compel production of the requested discovery, and the plaintiff responded with an opposition and cross-motion for protective order.¹⁰ The Superior Court judge declined the plaintiff‘s request to recognize a union member-union privilege and ordered the plaintiff to disclose all requested discovery withheld on the basis of an asserted union member-union privilege. The judge acknowledged that some jurisdictions have recognized a union member-union privilege, but he concluded that the Legislature is the more appropriate body to weigh the policy implications of doing so and declined the plaintiff‘s request to create such a privilege.

Discussion.

The plaintiff seeks recognition of a union member-union privilege “that would protеct from disclosure to employers communications between public sector employees and their unions when made (1) in confidence; (2) in connection with bargaining or representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee‘s attorney) and union representatives; or (4) by union representatives acting in official representative capacities.” Conceding that no such privilege exists under G. L. c. 150E, the plaintiff argues instead that we should interpret the statute as implying a union member-union privilege to secure the collective bargaining rights inherent in the statute. More specifically, she contends that the prohibited practices in G. L. c. 150E, § 10 (a) (1) and (2), are vital to furthering the statute‘s purpose and that such prohibitions must extend ‍​​‌​​​‌​​‌​‌​​‌​‌​‌​​​​​‌‌​‌​​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‍beyond the context of collective bargaining disputes to protect employee and union interests.

1. Standard of review.

The issue before us comes by way of a report for appellate review entered by a single justice of the Appeals Court. Under G. L. c. 231, § 118, first par., a single justice of the Appeals Court has the authority to allow appellate

review of an interlocutory order or a question of law contained therein. CUNA Mut. Ins. Soc‘y v. Attorney Gen., 380 Mass. 539, 540 (1980). See Barnes v. Metropolitan Hous. Assistance Program, 425 Mass. 79, 84 (1997). On review of a report by the single justice, we consider the merits of the underlying order. CUNA Mut. Ins. Soc‘y, supra at 540, 544. The issue whether the court should recognize a union member-union privilege as implicit in G. L. c. 150E is a pure question of law. Thus, we accord “no deference to the judge‘s decision” declining to recognize the privilege. See Barr Inc. v. Holliston, 462 Mass. 112, 114 (2012), quoting Sylvеster v. Commissioner of Revenue, 445 Mass. 304, 308 (2005), cert. denied, 547 U.S. 1147 (2006) (reviewing interlocutory order reported for appellate review by judge of Superior Court).

2. Statutory scheme.

We begin the analysis of the plaintiff‘s claim by reviewing the statutory language to determine if it reveals an unspoken legislative intent to create a union member-union privilege. General Laws c. 150E grants public employees of the Commonwealth, as defined therein, the right to bargain collectively over “wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.”¹¹ G. L. c. 150E, § 2. As relevant here, it is a “prohibited practice for a public employer” to, among other things, (1) “[i]nterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter“; or (2) “[d]ominate, interfere, or assist in the formation, existence, or administration of any employee organization.” G. L. c. 150E, § 10 (a) (1), (2). Considering the statutory scheme as a whole, its essential purpose is to prоtect the right of public employees to organize and to protect unions and their members from intrusion or control by the employer in the collective bargaining context.

To determine whether the Legislature intended that communications between a union member and a union representative be protected from disclosure to an employer in its defense against a civil action filed by an employee, “we look first to the language of the relevant statute, which is generally the clearest window into the collective mind of the Legislature.” Holmes v. Holmes, 467 Mass. 653, 659 (2014), citing Commonwealth v. Nanny, 462 Mass. 798, 801-802 (2012). “If the language of the statute is unambiguous, our function is to enforce the statute according to its terms.” Reading Co-op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 547-548 (2013), citing Massachusetts Community College Council MTA/NEA v. Labor Relations Comm‘n, 402 Mass. 352, 354 (1988).

We conclude that the privilege sought by the plaintiff is not implicit in G. L. c. 150E, § 10 (a) (1) and (2), because those provisions clearly are not intended to apply to a civil action. First, the dispute underlying the plaintiff‘s civil action is not related to “the formation, existence, or administration of any employee organization,” as protected in G. L. c. 150E, § 10 (a) (2). Although thе plaintiff was president of her local union for six years, her lawsuit relates to allegedly discriminatory actions taken against her personally as an employee, not to matters encompassing union activity. Neither is a privilege implicit in § 10 (a) (1), which provides that a public employer may not “[i]nterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter” (emphasis added). The rights provided under c. 150E protect collective bargaining and “lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.” G. L. c. 150E, § 2. Where the plain and unambiguous language of § 10 (a) (1) restricts its application to the collective bargaining context, we cannot say that, in securing that right, the Legislature contemplated a necessity to protect the confidentiality of union member-union communications in a private lawsuit brought by the union member against the employer.

Consistent with the statutory emphasis on protecting ‍​​‌​​​‌​​‌​‌​​‌​‌​‌​​​​​‌‌​‌​​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‍the right to collective bargaining, § 10 (a) (1) has been interpreted by the Massachusetts Labor Relations Commission to protect the confidentiality of communications between a union and its members in labor disputes.¹² See Bristol County Sheriff‘s Dep‘t, 31 M.L.C. 6, 17 (2004) (employer prohibited from asking union members,

during internal affairs investigations, “overly-broad questions about the means and methods by which the Union was organizing the upcoming picket” because such organization “clearly falls within the realm of concerted activities protected under [G. L. c. 150E, § 2]“). See also City of Lawrence & Lawrence Patrolmen‘s Ass‘n, 15 M.L.C. 1162, 1165-1166 (1988) (employer prohibited from demanding content of letter containing communications between union members and union administrator because subject matter protected whether written or oral).

A parallel provision in the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (2012), has been interpreted similarly by the National Labor Relations Board (board).¹³ In Local 754, 258 N.L.R.B. 1230 (1981) (Cook Paint), the board ruled that compelled disclosure of communications between an employee and his union steward during the grievance process violated the prohibition against interfering, restraining, or coercing employees in the exercise of their collective bargaining rights.¹⁴ Id. at 1232, citing 29 U.S.C. § 158(a)(1). The communications sought in Cook Paint related to an incident where an employee allegedly fell in a paint spill after notifying his union representative of the spill and being advised to return to regular duties while the representative sought out the floor supervisor. Id. at 1230. As a result of the incident, the employer decided to discharge the employee. Id. The board relied on the facts that the union representative‘s involvement “arose solely as a result of his status as union steward,” and after the union filed a grievance on behalf of the employee, the employer specifically sought contemporaneous notes taken by the representative in his capacity of carrying out union functions. Id. at 1231-1232.

In ruling that the employer impermissibly interfered with the employee‘s collective bargaining rights by demanding the substance of the conversations during the grievance process, the board reasoned that “consultation between an employee potentially subject to discipline and his union steward constitutes protected activity in one of its purest forms.” Id. at 1232. The board specifically limited its ruling, emphasizing, “[T]his case does not mean that all discussions between employees and stewards are confidential and protected by the [National Labor Relations Act]. Nor does our decision hold that stewards are, in all instаnces, insulated from employer interrogation.” Id.

Unlike proceedings that are directly connected to the collective bargaining context, the plaintiff here seeks a protective order in a civil lawsuit against her employer. Civil lawsuits are beyond the zone of protection for union rights contemplated in G. L. c. 150E. Therefore, the plain and unambiguous language of § 10 (a) (1) does not require that communications between union members and union representatives be protected from interference by an employer defending itself from an employee‘s civil action.

3. Common-law privilege.

Having concludеd that there is no statutorily based privilege implicit in G. L. c. 150E, we now decline the plaintiff‘s request to judicially create such a privilege. Under Massachusetts law, a litigant or witness may not rely on a privilege to withhold evidence in a legal proceeding except as recognized by the “constitution, statute, rules promulgated by the Supreme Judicial Court, or the common law.” See Mass. G. Evid. § 501 (2016). In the absence of a recognized privilege as set forth in § 501, this court has the power to create privileges, but “it is a power that we have exercised sparingly.”¹⁵ Babets v. Secretary of the Executive Office of Human Servs., 403 Mass. 230, 234 (1988), citing Three Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984). Privileges are exceptions to the general duty imposed on a person to be a witness, disclose information, and produce writings. Matter of the Enforcement of a Subpoena, 463 Mass. 162, 166 (2012).

a. The plaintiff‘s reliance on other jurisdictions. The plaintiff relies principally on a recent case, Peterson v. State, 280 P.3d 559

(Alaska 2012) (Peterson), in which the Supreme Court of Alaska recognized a broad union-member privilege based on language in the State‘s Public Employment Relations Act.¹⁶ Id. at 564-565. Peterson goes substantially beyond other jurisdictions that have considered the matter, and is the only case we have located where a court has judicially recognized such a privilege for civil lawsuits without relying on a Statе statute specifically protecting the same.¹⁷ The Supreme Court of Alaska held that “[a]ny attempt by the State to force disclosure of confidential communications between an employee and a union representative during a grievance proceeding would constitute an unfair labor practice” (emphasis in original). Id. at 565. The communications at issue in Peterson developed during a grievance proceeding, but when the union and the State were unable to resolve the issue, the employee filed a civil suit claiming wrongful termination. Id. at 561. The court created a broad union-member privilege after reasoning that the “protection against forced disclosure of confidential union-related communications should not be lost if the grievance dispute is not resolved and the employee files a civil suit” because “the strong interest in confidential union-related communications” would otherwise be undermined. Id. at 565.

Other jurisdictions that have analyzed this issue have declined to judicially create privileges that would apply to matters outside of grievance proceedings or disciplinary investigations. The Supreme Court of New Hampshire, although recognizing that “an employer engages ‍​​‌​​​‌​​‌​‌​​‌​‌​‌​​​​​‌‌​‌​​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‍in an unfair labor practice when it compels a union representative to disclose confidential communications with a union employee” during a disciplinary investigation, declined to create a privilege that would apply in the context of a grand jury proceeding. In re Grand Jury Subpoena, 155 N.H. 557, 560-561, 563 (2007). The court reasoned that the petitioner

“failed to show that the union relationship is so highly valued by an ordered society that its confidences warrant protection even at the cost of losing evidence important to the аdministration of justice.” Id. at 563, quoting In re Grand Jury Subpoenas Dated January 20, 1998, 995 F. Supp. 332, 335 (E.D.N.Y. 1998). Likewise, a California court declined to recognize a union-member privilege. In American Airlines, Inc. v. Superior Court, 114 Cal. App. 4th 881, 891 (2003), the court concluded that determination of the “countervailing policy reasons why a union representative should not be compelled during civil litigation to disclose factual information obtained from other union members he or she represents . . . is the province of the Legislature, not this court” (emphasis in original).

b. The Legislature‘s role. In any event, the question whether to crеate such a privilege is better left to the Legislature. The decision to create a privilege requires a “balancing of the public‘s interest in obtaining every person‘s [evidence] against public policy considerations in favor of erecting a . . . privilege.” Three Juveniles, 390 Mass. at 364. As to this issue, the Legislature may be in a better position to decide whether to create a privilege and, if so, to weigh the considerations involved in defining its contours. See Matter of a Grand Jury Subpoena, 430 Mass. 590, 598-599 (2000), S.C., 443 Mass. 20 (2004). See also Babets, 403 Mass. at 235, quoting McCormick, Evidence § 75, at 180 (3d ed. 1984) (“It may be argued that legitimate clаims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege“).

Not only is the Legislature the more appropriate body to weigh policy considerations and the contours of any such privilege, but this also is not an appropriate case on which to judicially create such a privilege. We have been “especially reluctant to create new privileges on the basis of speculation or conjecture as to the harms which may result from our failure to do so.” Babets, 403 Mass. at 238. The record before us contains a privilege log listing a series of communications between the plaintiff and representatives and members of her union. We do not know the content of those communications or the context in which they were made. We do not know if they were made in a confidential setting or whether they were made to the union representative while acting in that role. Without clarity in the record on these points, any harm to the plaintiff in declining her request to create a privilege is only speculative.

Conclusion. We decline to create a union member-union privilege in this case, and we affirm the order below.¹⁸

So ordered.