The Privilege of Union: Examining the Long Arc of Privileges in Massachusetts

Posted on Posted in Mediation

Massachusetts has long enshrined the sanctity of the attorney-client privilege.

In civil cases, Massachusetts also recognizes the common interest or joint litigation doctrine, the work product doctrine, the marital disqualification doctrine, the priest-penitent privilege, the psychotherapist-patient privilege, the allied mental health professional-client privilege, the social worker-client privilege, the rape counselor-victim privilege, the domestic violence counselor-victim privilege, the sign language interpreter privilege, the privilege against self-incrimination, the mediation privilege, the privilege attaching to state tax returns, the medical peer review privilege, and the informant’s privilege.

Despite this vast constellation of privileges, the Supreme Judicial Court was recently asked to carve out yet another: the member – union privilege.

The matter of Chadwick v. Duxbury Public Schools, et al., SJC Docket No. SJC-12054 involved a public school teacher, Nancy Chadwick.

Ms. Chadwick was an English teacher at Duxbury High school. She began teaching at Duxbury High School in 2006, until her retirement in 2015. During her employment, she was represented by the Duxbury Teachers Association, the local affiliate of the Massachusetts Teachers Association. Indeed, from 2010 to 2015, she served as president of the Duxbury Teachers Association.

In 1998, she was diagnosed with post-traumatic stress disorder (PTSD), but courageously managed her symptoms until 2009. In 2009, she began to experience panic attacks, disturbed sleep patterns, anxiety, and hypervigilance. Ms. Chadwick submitted that these were caused by her work conditions, and as a result of her direct supervisor.

In 2012, her attorney notified the school superintendent of her PTSD, and requested an accommodation in the form of a replacement supervisor. In response, the school superintendent assigned the school’s assistant principal to conduct her performance evaluation, but declined to remove her supervisor within the English department.

In December 2013, and then between March and May of 2014, Ms. Chadwick, the school district, and others, engaged in interactions that Ms. Chadwick argued were discriminatory and retaliatory, as a result of her request for an accommodation. In June of 2014, she was placed on a “directed growth plan,”, which ultimately allowed the school to dismiss her at the end of the 2014-2015 school year. In December of 2014, she filed suit.

During the course of discovery, the Defendants served document requests and interrogatories upon Ms. Chadwick. Among other things, Ms. Chadwick objected to producing certain material on the basis of a so-called member-union privilege. As a result, 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 Ms. Chadwick responded with an opposition and cross-motion for protective order.  At hearing, the Superior Court judge declined to recognize the existence of a union member – union privilege, and ordered her to disclose the material which she was withholding.

Ms. Chadwick then 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. The SJC transferred the case to their court on their own motion.

On appeal, Ms. Chadwick conceded that the no such privilege existed under G. L. c. 150E. Instead, she argued instead that the Court should interpret the statute as implying a union member-union privilege, to secure the collective bargaining rights provided by the statute. 

After an exhaustive examination of the legislature’s intent, the SJC determined that 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) did 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.

Resiliently, Ms. Chadwick offered authority from other jurisdictions as persuasive authority. Chiefly, 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. The SJC preferred to follow the guidance of the Supreme Court of New Hampshire, in which the New Hampshire high court – 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 SJC was not persuaded by Ms. Chadwick’s arguments. Ultimately, the Supreme Judicial Court affirmed the lower court’s decision, concluding that the creation of such a privilege is better suited for the legislature, than the judiciary.