BS&J Attorneys Help Achieve Win for Union Workers Rights in Public Sector Union Privilege Case

Nov 11, 2022

Three Branstetter, Stranch & Jennings (BS&J) attorneys, David O’Brien Suetholz, Pamela M. Newport and Andrew Mize, recently contributed to a successful ruling by the Supreme Court of Kentucky in favor of public sector bargaining rights for the River City Fraternal Order of Police Lodge #614 (FOP 614).

Following a five-year legal battle where every ruling issued went against FOP 614’s claim of unfair labor practice, Judge Michelle Keller of the Supreme Court of Kentucky filed an opinion in September 2022 reversing previous opinions and remanding the case back to the Labor Cabinet.

“We applaud Judge Keller for her recognition and diligent upholding of Kentucky’s statutes regarding union privilege, and are proud to have been part of this effort to improve rights for public sector bargaining in Kentucky,” Suetholz said. “As a result of her ruling, we can assure Kentucky’s public sector employees that they are entitled to confidentiality within all collective bargaining situations, and are not ever required to reveal any communications that took place in that context, which is clearly protected by state law.”

FOP 614 has been engaged in a dispute for several years with the Louisville Metro Government and the Kentucky Labor Cabinet about the city council’s role in collective bargaining for Louisville police officers. The case centered on FOP 614’s unfair labor practice charge, filed in June 2017, alleging that the Louisville Metro Police Department (LMPD) coerced the FOP president at the time to reveal communications he had with a lower-ranking officer. The FOP asserted that communications between a represented police officer and the officer’s collective bargaining representative regarding matters that might lead to discipline of the officer were confidential and protected by a union business privilege.

An administrative hearing was held before the Labor Cabinet in October 2017, after which the parties each filed briefs. The Labor Cabinet’s hearing officer recommended denial of the charge, to which FOP 614 filed exceptions. In September 2018, the Labor Cabinet issued its final order, finding that because “a union business privilege does not exist in Kentucky,” the LMPD did not engage in an unfair labor practice and dismissed the charge.

FOP 614 appealed to Jefferson Circuit Court, which issued an opinion in January 2020 affirming the Labor Cabinet’s final order. FOP 614 then appealed to the Kentucky Court of Appeals, which also returned an opinion in April 2021 that affirmed previous opinions. Discretionary review of these opinions by the Supreme Court of Kentucky was granted in October 2021, and FOP 614 filed a brief with that court in December 2021. Oral arguments before the court were scheduled for June 2022.

The appellant brief asserted that, for four decades, “it has been the rule, under federal statutes mimicked virtually word for word in Kentucky statutes, employer coercion of its employees to disclose employee communications with an agent of their collective bargaining representative about potential discipline is unlawful … Denial of [this] protection to public employees in Kentucky covered by the very same language would create a glaring, unnecessary, and unjustified disparity that is contrary to reason and to the rules of statutory construction.”

In early 2022, prior to the June arguments before the Supreme Court of Kentucky, three amicus briefs were filed in the Kentucky Court of Appeals in support of the appellant, including one filed by the BS&J team of Suetholz, Newport and Mize. The BS&J attorneys serve as counsel for the Amici Curiae American Federation of State, County and Municipal Employees (AFSCME) Council 962, which consists of 11 local unions that are the exclusive bargaining agents for approximately 3,500 public employees under 14 county, municipal and school board collective bargaining agreements in Kentucky. The attorneys also serve as counsel for the International Association of Fire Fighters Locals 38, 45, 168, 345, 526 and 1928; the Laborers International Union of North America Local 576; and the National Conference of Firemen and Oilers, SEIU 32BJ.

“All Amici Curiae are engaged in collective bargaining on behalf of Kentucky public employees and file this brief in support of the Appellant,” the brief stated. “Failure to recognize what has been coined a ‘union business privilege’ would impede successful dispute resolution between public employers and representatives of their employees. The appellate court’s decision has effectively removed a Union’s ability to properly investigate grievances. This means unions will no longer be able to resolve grievances in the early steps of the grievance procedures.

“Upholding the appellate court’s decision will cause all parties to collective bargaining agreements to expend more resources, and ultimately, will require the courts to do what the legislature had put in the hands of employers and unions. The Court should recognize the practical necessity for confidential conversations between grievant members and their union representatives. Amici Curiae unions ask this Court to grant Appellant’s Appeal and recognize a union business privilege.”

Judge Keller agreed with the appellant and amicus briefs and issued an opinion reversing and remanding the case, which stated (in part):

“At the center of this case is the function of the FOP as a labor organization for its police officer members,” the opinion states. “A labor organization in this context is ‘any chartered labor organization of any kind in which police officers participate and which exists for the primary purpose of dealing with consolidated local governments concerning grievances, labor disputes, wages, rate of pay, hours of employment, or conditions of employment.’ KRS 67C.400(2). 

“The legal question before this Court is whether Louisville Metro committed an unfair labor practice. KRS 67C.402 broadly protects the ability of a police officer to work with their union representative on questions related to the conditions of their employment. If, during internal investigations or negotiations, the metro government could compel a union representative to divulge sensitive information, then the power of the protection within KRS 67C.402 becomes illusory.

“We need look no further than the statute itself to determine that the legislature could not have intended for the protection to lack force or meaning as it relates to conditions of employment such as the disciplinary hearing at the center of this case. Because KRS 67C.402 creates a limited confidentiality for union representative communications with members, it cannot be unilaterally waived. Without the FOP, police officers would have no ability to organize to collectively address problems in the workplace. Allowing for interference with this ability cannot be the intent of the legislature as it is in direct contradiction with KRS 67C.402.

“Louisville Metro unlawfully interfered with the right of the police officers to bargain collectively regarding conditions of employment under KRS 67C.402(1). Accordingly, Louisville Metro committed an unfair labor practice under KRS 67C.410. For the foregoing reasons, we reverse the decision below and remand to the Labor Cabinet to enter a cease and desist order pursuant to KRS 67C.410(2) in accordance with our Opinion.”