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Authorized Representative-Welfare and Institutions Code section 10950 10950

2. Labor Code Section 923 Does Not Create a Union Privilege.

Citing Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766 (Crisan), DiMarco argues the so-called union representative-union member privilege may be implied whenever a state or federal statute allows employees to have lay representation. He contends the two statutes implying such a privilege are Labor Code section 923 and the RLA. We disagree.

First, we place Crisan in proper context, for that case does not stand for the proposition that a general evidentiary privilege applies every time a statute authorizes lay representation. In Crisan, Welfare and Institutions Code section 10950 (section 10950) provided that an applicant for public social services who was dissatisfied with a county decision concerning his or her receipt of such services under the Aid to Families with Dependent Children (AFDC) program could "in person or though an authorized representative . . . be accorded an opportunity for a fair hearing . . . ." (Crisan, supra, 33 Cal.3d at p. 770.) The issue before the court was "whether communications between welfare claimants and lay representatives authorized to represent them in administrative fair hearings under [the AFDC] are privileged." (Id. at p. 768.)

The court reiterated that "unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal." (Crisan, supra, 33 Cal.3d at p. 769.) In construing section 10950, the court recognized that AFDC recipients have a federal due process right {Slip Opn. Page 8} to an evidentiary hearing before their benefits are terminated. The court concluded that the term "authorized representative" in section 10950 signified an expansion of the right of legal representation that previously had been accorded welfare claimants: "Before the enactment of section 10950, the applicable statute (Welf. & Inst. Code, § 104.1) had provided: 'At the hearing the applicant or recipient may appear in person with counsel of his own choosing, or in person and without such counsel.' The substitution of 'authorized representative' for 'counsel' suggests that the Legislature recognized that attorneys alone could not satisfy the representational needs of the state's welfare claimants and that assistance through representation was necessary to insure the meaningfulness of the 'fair hearing' right provided by statute. [¶] . . . [T]he considerations which support the [attorney-client] privilege are so generally accepted that the Legislature must have implied its existence as an integral part of the right to representation by lay persons. Otherwise that right would, in truth, be a trap by inducing confidential communications and then allowing them to be used against the claimant. We do not attribute such a sadistic intent to the Legislature." (Crisan, supra, 33 Cal.3d at pp. 170-171.)

Thus, based upon the language of section 10950, its legislative history, and the court's characterization of the communication as "legal advice," the court construed the statute "as including a guarantee of confidentiality in its extension of the right of representation to include representation by lay persons as well as counsel in connection with welfare fair hearings." (Crisan, supra, 33 Cal.3d at pp. 768, 772.) The court did not create a new evidentiary privilege as a matter of judicial policy; rather, it held the Legislature impliedly crafted the privilege as it expanded section 10950.

To drive home the limits of its holding, the court warned that its decision was based upon the specific terms of the statute: "[T]here are . . . other statutes which permit lay representation before certain tribunals. (E.g., Unemp. Ins. Code, {Slip Opn. Page 9} § 1957; Lab. Code, § 5700.) Nothing we have said with respect to section 10950 of the Welfare and Institutions Code demands an identical interpretation of those other enactments, each of which will have to be examined against its own statutory, historical and constitutional background." (Crisan, supra, 33 Cal.3d at p. 772; but see 2 Witkin, Cal. Evid. (4th ed. 2000) Witnesses, § 103, p. 356 [describing the Crisan privilege as "a new privilege, analogous to that of attorney-client, for authorized representatives of welfare claimants and recipients in administrative fair hearings under the Aid to Families With Dependent Children program"].) Crisan's holding is narrow: a court may imply a privilege under statutes authorizing lay representation only if the statutory language and legislative history plainly demonstrate the Legislature's intent to create such a privilege.

Labor Code section 923 (section 923) differs substantially from Welfare and Institutions Code section 10950. Section 923 provides, in relevant part, that it is the public policy of the state that "the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (See Service Employees International Union v. Hollywood Park, Inc. (1983) 149 Cal.App.3d 745 [this section declares the public policy supporting the freedom of employees to organize and the collective bargaining process].)

American argues that section 923 does not apply to the Union, which was established under the RLA. (See Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707, 715 [private cause of action under section 923 preempted by federal labor law]; Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 887-889 [RLA preempts state law in certain areas of labor relations].) We need not {Slip Opn. Page 10} address that issue, for assuming the Union may generally avail itself of the benefits of section 923, there simply is no indication in the words of the statute or its history that the Legislature intended to include an evidentiary communication privilege between union members and their representatives. The statute in Crisan expressly pertained to authorized advocates before a tribunal under a narrowly drawn legislative scheme in which laypersons were permitted to act in lieu of attorneys. On the other hand, section 923 is only a general declaration of the well-accepted public policy that employees have the freedom to designate representatives "to negotiate the terms and conditions" of employment. Section 923 does not create any specific proceedings or hearings from which it can be inferred the existence of a privilege would apply. Stated differently, there is no foundation from which to make the legal leap from the freedom of designation, self-organization and collective bargaining to an evidentiary privilege for communications between a union representative and a union member. (See Tanzola v. De Rita (1955) 45 Cal.2d 1, 6 [privileges preclude relevant evidence and thus should be strictly construed within the narrow limits of the statutes].) Indeed, creating the type of evidentiary privilege proposed by DiMarco could severely compromise the ability of employers to conduct investigations pertaining to claims of harassment, discrimination, unlawful conduct, or other employer rules violations, all to the detriment of union members. For example, the FEHA enunciates this state's public policy to eliminate discrimination in the workplace. (See Gov. Code, §§ 12920 & 12920.5; Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 366-367.) Under FEHA, an employer, as well as a labor union, has an obligation to "take all reasonable steps necessary to prevent discrimination and harassment from occurring" in the workplace. (Gov. Code, § 12940, subd. (k).) The affirmative and mandatory duty to ensure a discrimination-free work environment requires the employer to conduct a prompt investigation of a discrimination claim. (See Northrop Grumman Corp. v. {Slip Opn. Page 11} Workers Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035-1036.) To carry out its obligation to prevent discrimination by investigating claims, an employer likely will need to obtain information from a wrongdoer's co-workers who were in a position to witness the misconduct and identify the wrongdoer. In a unionized workplace, an employer's investigation could be hampered by a union representative-union member privilege, thus conceivably undermining an employer and a labor union's statutory obligation to ensure a discrimination-free work environment. Although there may be various countervailing policy reasons why a union representative should not be compelled during civil litigation to disclose factual information obtained from other union members he or she represents, that policy determination (and the parameters of any concomitant evidentiary privilege) is the province of the Legislature, not this court. (See Roberts, supra, 5 Cal.4th at pp. 372-373; Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 99.) This is especially true in an area where the Legislature has declared the state's public policy in such detail. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 80 [describing FEHA as "comprehensive scheme" for combating employment discrimination].)

Finally, even assuming any privilege could be implied under section 923, under the statute's very language it would exist at most in the context of negotiating "the terms and conditions" of employment. This case pertains to no such negotiations.

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