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Stewards, when they're defending members against an accusation by management, can almost feel like lawyers. So here's the question: do stewards have with members the same confidentiality protections that lawyers have with their clients? Can you legally refuse to tell your employer facts about a workplace situation that are disclosed to you by a member?

Here's an example where confidentiality could become an issue.

Let's say one or both of the parties to a workplace shoving match comes to you for advice. The next day, the employer, investigating the scuffle in order to decide whether someone should be disciplined for it - maybe suspended or even fired - asks you what you know about it. Not only does he ask you, in fact, but he demands to know.

Can you refuse to reveal that information?

"Member/steward privilege" protected

The answer is almost always "yes." Administrative agencies, labor boards, courts and arbitrators in both the United States and Canada give legal protection to this "member/steward privilege" - the confidentiality of conversations and other communications between members and their union officials.

Of course, this protection is not unique to the union world. A lawyer can't be compelled to reveal information given by a client in confidence. And disclosures to a physician are protected by confidentiality, as are those to a religious leader or a mental health professional.

These legal protections exist because there are good reasons to shield confidential communications. We want people with medical conditions to feel free to reveal everything to their healthcare providers; public health will suffer if patients have to worry about disclosure of matters they might find embarrassing. This extends to mental health care, too, with the U.S. Supreme Court having recognized that a relationship of "trust and confidence" is needed if a patient is to be able to benefit from psychotherapy.

Similarly, we understand that in our adversary system of justice clients must be free to reveal all potentially relevant information to their lawyers, so that lawyers can then advise their clients properly and, if the case proceeds, present the most effective legal case. (Of course, there are common sense exceptions in all these instances, such as when a client reveals plans to commit a new crime. Society recognizes that there is a strong interest in preventing future crimes, and accordingly expects the lawyer to come forward with the information.)

Similar policy reasons apply for protecting the privacy of communications in the union world. While very few stewards are lawyers, in facto one critical function of being a steward is to provide the same kind of representation services that a lawyer provides. (The collective bargaining agreement is the law of the workplace, and the grievance process or a disciplinary proceeding is the equivalent of a workplace court system.)

"Telling all" without fear

So, just as a client wanting to get adequate advice and a proper defense must be able to fully and frankly present all the information at hand to the attorney providing legal representation, a union member facing a disciplinary action or seeking to enforce provisions of the union contract needs to be able to "tell all" to the union rep, without worrying about whether the steward will later be forced to betray those confidences.

And a union steward seeking to protect due process rights of members and to enforce the terms of the collective bargaining agreement must be in a position to assure members that they don't have to hold back on what information they provide.

That said, here are some words of caution: just as with attorneys and their clients and with doctors and theri patients, there are limits on the confidentiality of communications between members and their union stewards. An arbitrator or a court may determine that a member's right to confidentiality has been given up, for example, if the communication took place in a setting that one ordinarily would not think was confidential. For example, if a member tells you - and everybody else in the lunchroom - about having thrown the first punch, you won't be able to tell the prying employer that you won't revela the contents of that conversation.

Be sure it's confidential

Like wise, if you share confidential information from a member with union higher ups or a union attorney on a "need to know" basis, the confidentiality will be preserved. But if the member goes around talking to everyone under the sun, it won't be possible to argue that the information is still confidential.

So, some practical words of advice: first, you can assure a member of the confidentiality of what you are told, but also make clear the limits; second, in whatever notes you make of conversations with a member, make sure to include any assurances you gave him or her that the matter would be kept confidential, or any requests made by the member to that effect. This makes it clear that the expectation at the time was that the mater would remain confidential.
-Michael Mauer. The writer is a labor attorney and author of The Union Member's Complete Guide.

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