Supreme Judicial Court of Massachusetts, Plymouth
Heard: May 3, 2016.
action commenced in the Superior Court Department on December
8, 2014. A motion to compel discovery was heard by Raffi
question of law presented in a petition for leave to
prosecute an interlocutory appeal in the Appeals Court was
reported by Andrew R. Grainger, J. The Supreme Judicial Court
on its own initiative transferred the case from the Appeals
Jonathan J. Margolis (Beth R. Myers with him) for the
J. Cloherty, III, for the defendants.
following submitted briefs for amici curiae:
Barbour, of Michigan, Matthew D. Jones, Ira C. Fader, James
A.W. Shaw, Jasper Groner, Haidee Morris, Matthew E. Dwyer,
Eric P. Klein, & Katherine D. Shea for Massachusetts
Teachers Association & others.
T. Hynes & Michael R. Keefe for Professional Fire
Fighters of Massachusetts.
Stephen J. Finnegan & Christopher J. Petrini for
Massachusetts Association of School Committees, Inc., &
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
appeal, we consider an issue of first impression: whether an
employer, in defense of a lawsuit alleging discrimination in
employment filed by a union member, may demand communications
between the union member and her union representatives or
between union representatives acting in their official
capacity. The issue arises on interlocutory review of a
discovery dispute in a Superior Court action brought by the
plaintiff, Nancy Chadwick, alleging claims of discrimination
and retaliation against the defendants. The plaintiff
objected to certain of the defendants' discovery
requests, asserting a "union member-union"
privilege. A Superior Court judge rejected the
plaintiff's claim and entered an order compelling
production of the requested discovery. The plaintiff filed an
application for relief under G. L. c. 231, § 118, and a
single justice of the Appeals Court reported the issue to a
panel of the Appeals Court. We transferred the case
to this court on our own motion.
challenge to the defendant's discovery requests, the
plaintiff concedes that a union member-union privilege has
never been recognized in Massachusetts. She argues, however,
that G. L. c. 150E, the statute establishing the collective
bargaining rights of public employees, should be interpreted
to recognize a union member-union privilege and that such a
privilege bars the employer's access to the requested
discovery. We affirm the judge's ruling declining to
recognize such a privilege, as we discern no legislative
intent to incorporate within G. L. c. 150E a union
member-union privilege extending beyond the labor dispute
setting, and we decline to recognize the privilege under
following summary of the facts is drawn from the allegations
in the plaintiff's complaint, the motion judge's
memorandum of decision and order on the defendants'
motion to compel, and other relevant documents in the record.
The alleged discrimination and retaliation.
in 2006, and continuing to her retirement in 2015, the
plaintiff was employed as an English teacher at Duxbury High
School. During her employment by the Duxbury public schools,
the plaintiff was represented by the Duxbury Teachers
Association, the local affiliate of the Massachusetts
Teachers Association. She served as president of the Duxbury
Teachers Association for six years, from 2010 to 2015.
1998, the plaintiff was diagnosed with posttraumatic stress
disorder (PTSD), but she successfully managed the symptoms
until 2009. After 2009, she experienced panic attacks,
anxiety, hypervigilance, and disturbed sleep patterns, which
she asserts were caused by work conditions, including
bullying and harassment from her direct supervisor. In 2012,
the plaintiff's attorney notified the school
superintendent of her PTSD diagnosis and requested
accommodation in the form of a replacement supervisor. In
response, the school superintendent assigned the assistant
principal to conduct the plaintiff's performance
evaluation but declined to alter the subject-matter
supervisor for the English courses that the plaintiff taught.
December, 2013, and between March and May, 2014, the
plaintiff and the defendants engaged in a series of
interactions that, according to the plaintiff, involved
discrimination and retaliation against her. On June 9,
2014, the plaintiff was placed on a "directed growth
plan, " a disciplinary action that permitted
Duxbury public schools to dismiss her at the end of the
2014-2015 school year. The plaintiff commenced this lawsuit
seeking monetary damages in December, 2014.
The discovery requests.
January 5, 2015, the defendants served document requests and
interrogatories pursuant to Mass. R. Civ. P. 26, as amended,
423 Mass. 1401 (1996), and Mass. R. Civ. P. 33, as amended,
385 Mass. 1212 (1982), respectively. On June 19, 2015, the
plaintiff objected to certain of the discovery requests,
,  claiming a union
member- union privilege. At the request of the defendants,
the plaintiff supplied a privilege log for ninety-two
electronic mail (e-mail) messages withheld from disclosure.
The defendants filed a motion to compel production of the
requested discovery, and the plaintiff responded with an
opposition and cross-motion for protective
order. The Superior Court judge declined
the plaintiff's request to recognize a union member-union
privilege and ordered the plaintiff to disclose all requested
discovery withheld on the basis of an asserted union
member-union privilege. The judge acknowledged that some