Can we speak frankly?: SJC to decide whether to recognize a union-member testimonial privilege.
On May 3, 2016, the Supreme Judicial Court will hear argument in Nancy Chadwick v. Duxbury Public Schools et al, SJC-12054, and will be poised to decide whether the Commonwealth recognizes a union-member testimonial privilege that protects communications between a union member and his or her union representative made in the course of a grievance procedure.
For unions, union members, and labor and employment lawyers on both sides, the issue raised is significant. The SJC's ruling could effect how union union members communicate with their union representatives in the future and what communications are subject to discovery in discrimination and other lawsuits employees/union members file against their employer.
The case in a nutshell
Chadwick, a former schoolteacher, sued the Duxbury Public Schools and other related parties in Plymouth Superior Court for employment discrimination. Chadwick was a teacher for Duxbury Public Schools from 2006-2015. For the last six of those years, she was also President of the Duxbury Teachers' Association and an affiliate of the Massachusetts Teachers' Association.
Chadwick suffered from PTSD and, in 2012, requested an accommodation for her PTSD, which included asking that contact with her immediate supervisor (whom Chadwick alleged was hostile and triggered PTSD episodes) be limited. Chadwick alleged that, in response, a different person was assigned to evaluate her, but that her immediate supervisor remained very much in contact.
Chadwick alleged further that her newly appointed evaluator and her supervisor retaliated against her for seeking the accommodation and subjected her to unfair, unreasonable and disparate treatment, and punished her unfairly. While the events that gave rise to her complaint unfolded, Chadwick was also having communications with her union representative about the same matters.
During discovery in the discrimination case, a dispute arose regarding the discoverability of Chadwick's email communications with her union representatives. The school moved to compel and Chadwick cross moved for a protective order. Judge Yessayan refused to recognize the union communications privilege, denied the motion for protective order, allowed the motion to compel and ordered Chadwick to produce her emails with her union representatives. On Chadwick's petition to a Single Justice, Justice Grainger affirmed Judge Yessayan's order, but stayed the production order for seven days to allow Plaintiff to seek further review, which she did.
The SJC pulled the case up
Once Chadwick docketed her appeal in the Appeals Court, the SJC sua sponte took the matter up, and solicited amicus briefs on the issue of "Whether Massachusetts will recognize a union-member testimonial privilege, such that the plaintiff in this case, in her underlying employment discrimination action against her employer, would not be required to produce in discovery communications between herself and her union representatives related to her case." Interests on both sides answered the call and filed briefs.
On the plaintiff's side, Chadwick and amici argue that a privilege should be recognized and is needed to ensure full, frank and open communication between union members and union representatives in grievance proceedings and that discovery of those communications would amount to interference with Chadwick's ability to seek assistance from the union.
On the defendants' side, Duxbury School Committee and the other defendants and amici argue that Chadwick has not produced evidence showing the communicationsn were confidential and, moreover, any privilege is unwarranted, not supported by the case law and should be left to the Legislature to determine.
Read the briefs - Chadwick's Brief, Duxbury Public School's Brief, Amici Mass. Teachers Assoc. et al. Brief (in favor of recognizing the privilege) and Mass. Assoc. of School Committees et al. (against recognizing the privilege)