Federal Law Now Recognizes the Employee-Union Representative Privilege

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In a case of first impression, the Northern District of Illinois recently held in Bell v. Village of Streamwood (Case No. 10 C 3263) that an employee-union representative privilege exists as a matter of federal common law. In so holding, the Court reasoned that a union representative’s role is not unlike that of an attorney, and that there is a strong interest in encouraging an employee accused of wrongdoing to communicate fully and frankly with his or her union representative. Therefore, the Court held that the employee-union representative privilege would extend to communications made: (1) in confidence; (2) in connection with “representative” services relating to anticipated or ongoing disciplinary proceedings; (3) between an employee and his or her union representative; (4) where the union representative is acting in his or her official representative capacity. Moreover, similar to the attorney-client privilege, the employee-union representative privilege is somewhat limited in that it only extends to the communications, not to the underlying facts and issues.

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