WHEN ARE UNION-EMPLOYEE CONVERSATIONS CONFIDENTIAL?
The short answer is, “Most times, but not always.” The FLRA rolled out a decision recently making that crystal clear by endorsing management’s right to force a union representative to reveal to its investigators what an employee had told him in confidence.
Normally, an agency violates § 7116(a)(1) by requiring a union representative to disclose, under threat of disciplinary or similar action, privileged communications made by an employee to that union representative in the course of representing the employee. Such communications are protected because employees must be free to make full and frank disclosures to their representatives in order to obtain adequate advice and a proper defense.
However, there are two exceptions to that rule. First, the union rep can waive the right by answering the management questions or if the rep reveals the information to anyone other than another union rep connected to the case he/she losses the right to withhold the information from the agency. “The Judge stated that ‘[i]nformation which was privileged loses its immunity upon public disclosure.’ . . . We agree with this statement only insofar as it means in this case that Walsh did not have a right under the Statute to keep confidential any information that he had already told Edwards.” (MTC, 44 FLRA 1021)
The second exception to the rule is tougher to administer because it is yet another of those many FLRA ambiguous case law rules that frustrate well-meaning practitioners. The union rep has no right to keep information confidential if the agency has some “overriding need for it,” which FLRA explains means if the matter is “serious.” (AFGE, 66 FLRA 589) (Yes, we know that is a nearly useless description for practitioners seeking to make the right decision before acting, but more about that later.)
In this particular case, an employee told the union rep that some mailroom employees were destroying first and second class agency mail and asked the rep to tell management without revealing the informer’s identity. When the rep did tell management, it promptly sent agency investigators after the rep to get the name of the informer. When the rep refused to give it up, the investigators threatened discipline. FLRA concluded that the presence of “possible criminal activity” was serious enough to override the union’s right.
We admit that allowing management to intrude on union confidentiality when there is “possible criminal activity” is more helpful to practitioners than the amorphous “serious” concept. However, it also leaves management enormous discretion to question because so many day-to-day workplace actions are susceptible to criminal allegations. For example,
- An incorrect answer to a manager’s question could be characterized as a possible false statement in the matter of official business violating 18 USC 1001 as could an incorrect entry on a travel voucher,
- Downloading certain pornography via a government computer can violated 18 USC 13,
- Domestic violence can be prosecuted under 18 USC 921,
- Misuse of a government vehicle, mails, credit card, or photocopying equipment could violate 18 USC 641,
- Abuse of one’s governmental authority can raise to a criminal charge as can certain violations of the Privacy Act, and
- Almost any harsh words could be construed as a threat against a federal officer.
Beyond the near endless opportunities to call almost any misconduct potentially criminal activity, there is the question of what standard should be used to determine whether there is “possible criminal conduct.” One agency tried to convince FLRA it should be able to override the confidentiality privilege if it has a reasonable belief that there has been such conduct. Thankfully, for employees, FLRA rejected that standard with these words, “
In so finding, we reject the Respondent’s proposed “reasonable belief” standard. Such a standard would be difficult to enforce and would permit agencies to coerce information from union representatives merely by raising evidence of misconduct by employees known to have sought assistance from their representatives. Moreover, as noted by the Judge, such a standard would be largely empty and futile when applied after an interview had already occurred. Therefore, such a standard would undermine the clear, established statutory right and duty of a union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented. (NTEU, 38 FLRA 1300)
However, FLRA has left us without a substitute standard, e.g., the conclusion that there is possible criminal activity must be made by an independent law enforcement officer, not simply an LR official or line manager, etc. It could also require that it be made by an outside authority with prosecuting authority. All us practitioners on both sides of the table will have to wait for the next installment of FLRA case law on that issue before we know what the rule is. Hopefully, it will not take another 30 years of case law to be revealed.
In the meantime, here are some good principles for guiding a union rep’s decision-making when confronted with a demand to “rat out” an employee:
- The confidentiality privilege only extends to information you learned while serving as a union representative and actually performing representational activities, such as assessing a request for representational help or developing a representational strategy. If you were an eyewitness to the misconduct or even a participant, your privilege does not extend to the information gather from that activity.
- If you do not want to be forced to tell management what you know, do not tell anyone other than another union rep involved with the case.
- If you sense that the employee may have criminal liability, stop the conversation, and contact a union lawyer to discuss whether the employee should talk directly to the lawyer without you. Doing so could entitle the employee to benefit from an attorney-client privilege or at least the fact that the agency cannot compel a non-employee to testify to anything.
- If confronted with a management demand that you reveal privileged information, do not refuse to reveal it ever, but ask for a reasonable time to talk to a union attorney before answering.
- If you learn from an employee that he or she plans some future retaliatory action, particularly violent action against anyone, contact a union attorney if there is time or get help from within management, e.g., such as from an EAP counselor. But if there is little time to stop violence against another individual, disclose it to management immediately.
(Remember, we at FEDSMILL.com are not attorneys and our advice should not be read as legal advice. If you believe you need that, contact an attorney.)
(Posted originally on May 2, 2012)