HB3156 S JUD AM #1

Baker x7816

    The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §6C-2-8, to read as follows:

ARTICLE 2. WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE PROCEDURE.

§6C-2-8. Labor organizations may not be compelled to disclose certain communications; exceptions.

    (a) (1) Except as otherwise provided in this section, a labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from a public employee, while the labor organization or agent was acting in a representative capacity concerning a public employee grievance or an investigation of a potential public employee grievance, regardless of whether the public employee is a member of the labor organization.

    (2) The confidentiality established under this section applies only to the extent that the communication or information is germane to a grievance or potential grievance of the public employee.

    (3) The confidentiality established under this subsection continues after termination of:

    (A) The public employee’s employment; or

    (B) The representative relationship of the labor organization or its agent with the public employee.

    (4) The confidentiality established under this subsection protects the communication or information received or acquired by the labor organization or its agent, but does not protect the employee from being compelled to disclose, to the extent provided by law, the facts underlying the communication or information.

    (b) The protection for confidential communications provided by this section only extends to proceedings under the public employees grievance procedure. Nothing in this section may be construed to extend the confidentiality to circuit court proceedings or other proceedings outside of the public employees grievance procedure.

    (c) A labor organization or its agent shall disclose to the employer as soon as possible a communication or information described in subdivision (1), subsection (a) of this section to the extent the labor organization or its agent reasonably believes:

    (1) It is necessary to prevent certain death or substantial bodily harm.

    (2) It is necessary to prevent the employee from committing a crime, fraud or any act that is reasonably certain to result in substantial injury to the financial interests or property of another or to rectify or mitigate any such action after it has occurred;

    (3) The communication or information constitutes an admission that the employee has committed a crime; or

    (4) It is necessary to comply with a court order or other law.

    (d) A labor organization or its agent may disclose a communication or information described in subdivision (1), subsection (a) of this section in order to:

    (1) Secure legal advice about the compliance of the labor organization or its agent with a court order or other law;

    (2) Establish a claim or defense on behalf of the labor organization or its agent in a controversy between the employee and the labor organization or its agent;

    (3) Establish a defense to a criminal charge or civil claim against the labor organization or its agent based on conduct in which the employee was involved; or

    (4) Respond to allegations in any proceeding concerning the performance of professional duties by the labor organization or its agent on behalf of the employee.

    (e) A labor organization or its agent may disclose a communication or information described in subdivision (1), subsection (a) of this section, without regard to whether the disclosure is made within the public employees grievance procedure, in the following circumstances:

    (1) The labor organization has obtained the express written or oral consent of the employee;

    (2) The employee has, by other act or conduct, waived the confidentiality of the communication or information; or

    (3) The employee is deceased or has been adjudicated incompetent by a court of competent jurisdiction and the labor organization has obtained the written or oral consent of the personal representative of the employee’s estate or of the employee’s guardian.

    (f) If there is a conflict between the application of this section and any federal or state labor law, the provisions of the federal or other state law shall control.

Adopted

Rejected