United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 26]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTION PRESENTED
At
docket 26, Plaintiff Chicago Bridge and Iron Company, N.V.
(CB&I) filed a motion to compel, requesting that the
court order Defendant International Brotherhood of Electrical
Workers, Local #1547 (IBEW) to produce documents withheld
from CB&I based upon IBEW's assertion of a
"labor relations privilege." IBEW filed its
opposition at docket 29. CB&I's reply is at docket
30. Oral argument was not requested and would not be of
assistance to the court.
II.
BACKGROUND
CB&I's
complaint alleges breach of contract and seeks declaratory
relief pertaining to enforcement of provisions contained
within the collective bargaining agreements (CBAs) between
the parties. Specifically, the case involves the
interpretation of the terms of two CBAs: (1) a 2012-2014 CBA
between Defendant Fairbanks Joint Crafts Council, AFL-CIO
(FJCC) and a company that CB&I acquired in 2013 and (2) a
2014-2016 CBA between CB&I and FJCC and "its
affiliates," which includes IBEW and other trade unions.
Both CBAs address "bargaining unit work of employees of
certain employers at U.S. Army Alaska bases under the terms
of a DPW Support Services Contract."[1] Each CBA has a
provision related to pension plans for employees that
requires CB&I to contribute to a retirement benefit fund
(the Fund) according to "Schedule A" of the
CBAs.[2]
CB&I
alleges that it incurred withdrawal liability under the Fund
when CB&I ceased performing the DPW Support Services
Contract after the Government re-bid the project and CB&I
was disqualified from submitting a bid to retain the support
services contract because it is not a small business
contractor. CB&I alleges that the CBAs require FJCC and
IBEW to reimburse CB&I for liability amounts assessed by
the Fund because of its early withdrawal. CB&I alleges
that "[t]he withdrawal liability incurred by it, and
paid to the Fund to date, is in excess of the amounts set
forth in Schedule A of each CBA" and therefore
"[the] contractual warranty under Section 15.04 of each
CBA obligates each union to reimburse CB&I for liability
for providing retirement benefits in excess of the
contribution percentages set forth in Schedule A of the
CBA."[3]
In
November of 2018, IBEW provided its initial disclosures
pursuant to Rule 26 of the Federal Rules of Civil Procedure.
Its disclosures included about 20 documents that were
redacted or withheld in full based upon what IBEW refers to
as a "labor relations privilege" that protects
union notes and correspondence from its bargaining files that
reflect on its strategy, mental impressions, opinions,
analysis, or conclusions. CB&I now moves to compel the
production of the redacted and withheld documents, arguing
that such a privilege is not recognized in federal court.
III.
DISCUSSION
Resolution
of this case involves determining the parties'
obligations related to pension plan contributions under the
terms of the applicable CBAs. CB&I contends that
discovery related to the negotiation of the CBAs in question
is relevant to demonstrate "the intent of the parties
concerning Section 15.04 or pension contribution obligations
generally" and should be disclosed.[4] In its response,
IBEW did not challenge the relevancy of the redacted or
withheld material. Nor did it assert that it is withholding
union communications and notes related to contract
negotiations based on Rule 26(c) or attorney-client
privilege. The only basis for withholding the material is
what the IBEW labels a "labor relations privilege"
and therefore the only question for the court at this time is
whether such a privilege exists to protect IBEW's
internal communications and notes from discovery.
In
federal question cases such as this, federal common law
determines whether there is a privilege.[5] Federal courts
have "the flexibility to develop rules of privilege on a
case-by-case basis."[6] However, the Supreme Court has stated
that it is "disinclined to exercise this authority
expansively."[7] An evidentiary privilege should not be
applied "unless 'it promotes sufficiently important
interests to outweigh the need for probative evidence. . . .
'"[8] Given federal "policy favoring open
discovery" privileges must be "strictly
construed."[9] The party seeking the application of a
privilege has the burden to establish the existence of that
privilege and its applicability to the particular
case.[10]
IBEW
cites to Harvey's Wagon Wheel, Inc. v.
NLRB[11] in support of a labor bargaining
strategy privilege. In that case, the Ninth Circuit
considered whether an employer under investigation by the
NLRB for unfair labor practices could obtain access to NLRB
investigation documents through a Freedom of Information Act
(FOIA) request while the investigation was ongoing. The NLRB
objected to disclosure based on an exclusion provision in
FOIA, 5.U.S.C. § 552(b)(7)(A), which exempts
investigatory records compiled for law enforcement purposes
to the extent that disclosure would interfere with
enforcement proceedings. The court upheld the lower
court's ruling that employee statements made during the
course of the NLRB investigation were protected from
disclosure under the FOIA exemption but remanded the issue to
the lower court to determine whether statements of union
agents and representatives would also fall within the
exemption.[12] When remanding, the court stated that
"statements of union representatives and agents of the
employee . . . should normally be protected from disclosure
as a matter of law. Otherwise, the danger of their
withholding relevant information for fear of exposing crucial
material regarding pending union negotiations would be
manifest." IBEW relies on this language in support of a
labor relations privilege protecting bargaining materials.
The
court concludes that IBEW's reliance on Harvey's
Wagon Wheel is misplaced. The Ninth Circuit analyzed the
question of disclosure based on NLRB rules and FOIA
exemptions. The language relied on by IBEW is only
dicta-there was no holding related to a categorical privilege
that would protect all labor negotiations and strategies from
disclosure in all circumstances-and must be read in light of
the circumstances of that case. The case here does not
involve FOIA disclosure exemptions or an ongoing NLRB
employer investigation. Moreover, disclosure of documents
related to contract terms of an expired CBA does not threaten
to "expos[e] crucial material regarding pending union
negotiations."[13]
IBEW
also cites Mallick v. International Brotherhood of
Electrical Workers[14] as another federal court case that
recognizes a privilege for labor bargaining strategy.
Mallick involved a claim brought by a union member
against the union under the Labor-Management Reporting and
Disclosure Act. The member sought access to union financial
records related to litigation in which he was not a party. In
determining whether the member was entitled to view such
records the court weighed his interest in gaining access to
the materials under the statute against the possible harm to
the union.[15] In doing so, it indicated that if
"disclosure of [the financial] information would be
comparable to . . . a union's disclosure of organizing
strategy, negotiating plans, or other secrets, then
examination should be refused."[16]
Again,
the case is inapposite. The Mallick court was not
addressing pretrial discovery of materials related to prior
negotiations of expired CBAs. Moreover, the court was not
deciding whether the requested financial records were
privileged but rather whether the member's showing of
"just cause" for access under the applicable
statute was outweighed by the union's financial interest
in nondisclosure. "Mallick, at most, suggests
that disclosure of the documents would be harmful to the
union."[17] It does not persuasively establish a
federal privilege categorically protecting material related
to a union's bargaining strategy.
IBEW
also relies on NLRB cases and a NLRB general counsel advisory
opinion for its assertion that labor relations privilege has
been applied by courts to protect notes and communications by
bargaining team members as to strategy. NLRB cases and
advisory opinions, however, are not binding on this
court.[18] While NLRB cases may be granted
deference on matters of labor policy and collective
bargaining, [19] ...