Tuesday, December 30, 2003
C.A.: Worker’s Conversations With Union Representative Not Privileged
By a MetNews Staff Writer
There is no evidentiary privilege in California for communications between a union member and a union representative, the Court of Appeal for this district ruled yesterday.
Div. Eight granted a writ of mandate directing that a representative of Local 564 of the Transport Workers Union be compelled to disclose the substance of conversations with a former aircraft mechanic who claims he was wrongfully terminated by American Airlines.
Justice Laurence Rubin, writing for the Court of Appeal, cited Evidence Code Sec. 911, which precludes recognition of an evidentiary privilege “[e]xcept as otherwise provided by statute.” While the creation of a union representative-union member privilege may be supported by public policies favoring effective union representation and the right to bargain collectively, the justice said, those arguments are appropriately addressed to the Legislature.
The issue arose after Jawad Alamad sued American and 11 supervisors for wrongful termination and for harassment and discrimination based on national origin. Alamad alleges that he was constantly subjected to hostility based on his middle-eastern heritage, and that he was fired for complaining about it.
During discovery, Alamad stated that he had reported the harassment to several persons, including Local 564 Vice President Richard DiMarco. The union officer represented Alamad in a grievance proceeding that resulted in a ruling in favor of American, prior to the filing of the lawsuit.
DiMarco was subpoenaed for deposition by airline lawyers, testifying that he regularly heard employees using derogatory names toward Alamad. He also testified that several mechanics who had testified during the grievance arbitration, supporting the airline’s claim that Alamad had engaged in dishonesty and was not discriminated against, were “coerced” into doing so.
The airline’s lawyer then asked him to detail the alleged coercion, to specify which employees were coerced and to identify the sources of the racist remarks, as well as to identify any employees who had—as DiMarco testified several had—been subjected to retaliation for complaining about working conditions. DiMarco refused, and the airline moved to compel.
Los Angeles Superior Court Judge David Workman denied the motion, saying there “should be a privilege as to communications between a union and its members.”
But Rubin, writing for the Court of Appeal, rejected arguments that state and federal laws allowing laypersons designated by a union to represent a member in certain proceedings create an evidentiary privilege. Nothing in the language of history of those laws indicates any such intent on the part of lawmakers, the justice concluded.
Nor is it clear that public policy favors creation of such a privilege, he suggested. “Indeed, creating the type of evidentiary privilege proposed by DiMarco could severely compromise the ability of employers to conduct investigations pertaining to claims of harassment, discrimination, unlawful conduct, or other employer rules violations, all to the detriment of union members,” Rubin wrote.
The case is American Airlines, Inc. v. Superior Court (DiMarco), B162513.
Copyright 2003, Metropolitan News Company