From the Picket Line to the Courtroom: A Labor Organizing Privilege to Protect Workers

Abstract

The rights of workers to organize and collectively bargain are under attack and the statute designed to protect these rights, the National Labor Relations Act, has largely failed in its mission. This Article examines one way these fundamental rights are threatened – employers’ use of abusive litigation tactics to chill protected concerted activity – and proposes a solution: a labor organizing privilege to protect workers’ confidential communications. The decline of unions, the rise of non-traditional organizations such as worker centers, the increase in employment litigation as an alternative to NLRB-supervised elections and of aggressive anti-organizing campaigns by employers have led to an explosion of abusive litigation tactics by employers. Employers may see these tactics as a tool to divert focus and resources away from a nascent organizing campaign, or to retaliate against workers who organize. They may plan to use the threat of prolonged and costly litigation as a bargaining chip when settling labor disputes. Or, they may plan to use the discovery process to extract information from its workers for advantage in the organizing campaign. Regardless of the motivation, however, the effect on workers’ rights is the same – workers are discouraged from exercising their rights to organize and collectively bargain. The remedies currently available to workers in these situations – namely, filing an unfair labor practice charge with the National Labor Relations Board (“NLRB” or “Board”) or filing a motion to dismiss under a state anti-SLAPP statute – are ineffective. In order to adequately safeguard workers’ labor rights, communications concerning organizing and collective bargaining strategy should be protected from discovery in federal and state court proceedings by a labor organizing privilege. A labor organizing privilege meets the requirements of the traditional instrumentalist test for the recognition of evidentiary privileges. But this Article rests its primary argument on Section 7 of the National Labor Relations Act and the First and Thirteenth Amendments of the U.S. Constitution, which provide sound policy and constitutional arguments for the recognition of the privilege.