RENDERED: APRIL 9, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0266-MR

RIVER CITY FRATERNAL ORDER OF POLICE

LODGE NO. 614, INC. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE BRIAN C. EDWARDS, JUDGE

ACTION NO. 18-CI-006171

LOUISVILLE/JEFFERSON COUNTY METRO

GOVERNMENT; and KENTUCKY LABOR

CABINET APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE: The overarching question presented in this appeal is whether 

the appellee, Louisville/Jefferson County Metro Government, by and through its 

police department (“LMPD”), committed an unfair labor practice by requiring one 

of its employees, Sgt. David Mutchler, who was a member and – at the time of 
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these events – President of appellant River City Fraternal Order of Police, Lodge 

No. 614, Inc. (“FOP”) to submit to an investigative interview from LMPD’s

Professional Standards Unit (“PSU”). This question was adjudicated by the 

Kentucky Labor Cabinet (“Cabinet”) and reviewed by the Jefferson Circuit Court; 

and both tribunals answered in the negative. Upon review, we affirm.

We begin with a discussion of the relatively brief interview itself, 

which occurred on August 2, 2017, and concerned a disciplinary matter. Mutchler, 

testifying not as a party but as a witness, did so in relevant part as follows:

Q: August 2. All righty. And it is 10:47. Okay. 

Sergeant Mutchler, thanks for having me over. Ah, as 

you are aware the Chief initiated an investigation into 

Lieutenant Donny George as filing of a hostile working 

environment. This investigation is to determine whether 

these documents that were submitted were deceptive in 

nature, okay? Ah, during the course of the investigation, 

there was a memo that turned up by Sergeant Armand 

[sic] White and that, ah, he indicated that he did not 

authorize the filing of this hostile working environment 

by Lieutenant Donny George. In his memo he indicated 

that he spoke with you as the FOP President regarding 

this situation. Ah, do you recall having a conversation 

with Sergeant White, ah, regarding this incident?

MUTCHLER: Um, yes. Ah, and I do need to say that, 

um, I am obviously complying with the department and 

the Chief’s orders to provide this statement. Um, and 

I’m, I will obviously do that. Ah, but I do wanna note 

that, ah, the statement is under protest as we believe, ah, 

the lodge believes that, ah, request for representation and 

conversations with the collective bargaining 

representative, ah, are somewhat privileged. But yes, I 

do recall a conversation with, ah, with Sergeant White.
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Q: Okay. In his memo, ah, and just let the record show 

I’m looking at the, the memo right now. In his memo he 

states that, um, they spoke to you by phone and he stated 

that, that Sergeant Mutchler, he said, did say that, “He 

thought if I had a problem I would’ve come to him 

directly.” Let, let me ask you this. At any time during 

your conversation with Sergeant White, did he indicate 

that he did not authorize the filing of this hostile working 

environment or did he indicate that this was filed without 

his permission?

MUTCHLER: I do not recall that we actually spoke 

about the hostile work environment filing I guess is, is 

the proper word. Um, I spoke with him, ah, and I did 

mention to him that normally, ah, officers would reach 

out on their own if they had some sort of issue. Um, but 

it’s not, I mean, it’s happened before where officers have 

called or COs have called on other officers, on another 

officer’s behalf. Um, ah, what I recollect from the 

conversation is generally that, um, he just wanted to be in 

a situation where he knew who was going to be giving 

him his orders and his job tasks so he could follow that, 

ah, and that he did, you know, was, didn’t want to be 

involved in conflicts with those above his rank.

Q: Mm-hm.

MUTCHLER: Um, he just wanted to do his job, 

basically. Um, I don’t recall if, I don’t recall the 

chronology as far as, I don’t remember when I was 

informed that there even was a filing of a, of a hostile 

work environment. I just knew that I had spoken with 

Sergeant White, and previously [sic] speaking to him I 

had spoken with Lieutenant George but I, I don’t 

remember, I don’t recall that we did that, if that was 

discussed or not and I am definitely not saying that that 

didn’t come up.

Q: Mm-hm.
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MUTCHLER: But I don’t recall in the conversation if he 

mentioned the hostile working environment or, or even 

mentioned that he didn’t want it to be filed. I don’t, 

unfortunately I talk to hundreds of people and I just don’t 

recall whether that even came up.

Q: Okay.

MUTCHLER: Um, but it’s very possible that it did.

Q: Mm-hm.

MUTCHLER: I have to say that. I just, I simply don’t 

recall.

Q: Okay. Ah, that’s all I have for you. Thank you so 

much for letting me come down and I will conclude this 

interview at 1052 hours.

In short, PSU asked Mutchler three questions: (1) Did he recall 

having a conversation with Sgt. Armin White? (2) If so, was the conversation 

about a “hostile working environment” complaint that Lt. Donny George filed on 

his behalf? And if so, (3) had Sgt. White stated whether he had authorized George 

to file it on his behalf? Essentially, Mutchler’s answers to those three questions 

were: (1) yes; (2) I can’t remember; and (3) I can’t remember.

As the substance of what is set forth above tends to indicate, Mutchler 

was interviewed as part of a PSU investigation relating to a “hostile working

environment” complaint that Lt. George – an LMPD officer and one of Sgt. 

White’s supervisors – submitted to his superiors, purportedly on Sgt. White’s 

behalf in January 2017. During PSU’s investigation of the complaint, however, 
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Sgt. White denied making the complaint or authorizing Lt. George to file any 

complaint on his behalf. Consequently, PSU focused its investigation upon 

whether Lt. George had filed a false report. 

As the substance of the August 2, 2017 interview further indicates, 

PSU investigators only sought to interview Mutchler for a limited reason. 

Specifically, Sgt. White stated to PSU investigators that he had had a brief 

telephone conversation with Mutchler relating to this matter at some point after 

January 2017, but that he did not recall saying anything to Mutchler during their 

conversation about a purported hostile work environment or about any complaint 

to that effect. By interviewing Mutchler, PSU wished to corroborate Sgt. White’s 

statement.

As indicated at the onset of this opinion, however, whether Lt. George 

did or did not file a false report is irrelevant. Rather, the present appeal is 

exclusively concerned with what Mutchler stated at the onset of his PSU interview:

I do wanna note that, ah, the statement is under protest as 

we believe, ah, the [FOP] believes that, ah, request for 

representation and conversations with the collective 

bargaining representative, ah, are somewhat privileged.

In other words, Mutchler (and the FOP) believed that the LMPD acted 

improperly at the August 2, 2017 interview because it had required him to divulge 

privileged information, i.e., information protected by a “union business” privilege. 

Moreover, on June 26, 2017 – in anticipation of that interview, and with a full 
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knowledge of its scope – the FOP filed a “charge of unfair labor practice” with the 

Kentucky Labor Cabinet. There, the FOP set forth its position, stating in relevant 

part:

[A]n effort to interrogate the Lodge President regarding 

actions in his role representative of officers in 

disciplinary matters, constituted unlawful coercion 

pursuant to provisions of KRS[1] 67C.400, et seq. (the 

Kentucky statutes establishing collective bargaining 

between FOP 614 and Louisville Metro), including 

specifically KRS 67C.406(1)(a) and KRS 67C.402(1), 

which provisions are based on analog provisions of the 

National Labor Relations Act.

. . .

Louisville Metro’s actions as described above constitute 

unlawful coercion as prohibited by and made an unfair 

labor practice in KRS 67C.400 et seq.

As an aside, the bulk of the FOP’s arguments before this Court and 

below have primarily focused upon the following two propositions: (1) Based 

upon “provisions of the National Labor Relations Act,” a “union business” 

privilege has been recognized in jurisdictions outside of Kentucky; and (2) because 

KRS 67C.406(1)(a) and KRS 67C.402(1) share similarities with those “provisions” 

of the National Labor Relations Act, a “union business” privilege should now be 

recognized in Kentucky.

 

1 Kentucky Revised Statute.
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Regarding what the “union business privilege” is and why it applied 

here, however, the FOP has never provided any substantive analysis. Instead, and 

from all appearances of its various pleadings below and brief before this Court, the 

FOP has simply adopted Mutchler’s lay understanding of what it is and why it 

applied. As illustrated by his October 5, 2017 testimony before the Cabinet

regarding the FOP’s charge of “unfair labor practice” against LMPD, Mutchler 

described his understanding of this “privilege” in relevant part as follows:

MUTCHLER: I think that discussions that I have with 

members as the FOP president as their elected 

representative, I think a large majority, if not all of those 

are privileged.

Q: All of them? You think all of them are?

MUTCHLER: I said all or a large majority.

Q: No matter what the circumstances leading to that 

conversation are?

MUTCHLER: No. Obviously I may even seek legal 

assistance regarding that. If a member called me up and 

said they just killed their wife, I don’t think that’s 

privileged. So I think it would depend on the 

circumstance. But if it involved administrative issues 

where they’re speaking to me whether officially or 

peripherally about representation, I do believe that that 

should be privileged.

Q: Do you think that’s true whether that person is the 

subject of an investigation or not?

MUTCHLER: I think that when they’re contacting me 

because they may be or may soon be the subject of an 
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investigation and they want representation and they need 

to give me a general idea of what’s going on so I can 

direct them to the appropriate representation, I think that 

should be privileged. I think once that occurs, and they 

found the representation they need, and then they’re told, 

hey, you are officially told you’re under investigation and 

don’t discuss this, I think that my role is, for the most 

part over in that circumstance until of course, you know, 

it comes up again. For instance, if an officer is 

disciplined and they appeal that discipline obviously I 

assist in representing them at the merit board. Or if 

anything else occurs that they need representation for 

peripherally, I would be, but I don’t, there’s no need for 

me to know details, extreme details of something. I don’t 

ask for that and I’m usually not given that. I just need to 

know how I need to get them the representation. I think 

that part should be privileged, yes.

Q: So I think your position is, with limited exceptions, 

the conversations you’re having with membership in your 

capacity as FOP president should be subject to a 

blanket-type of privilege; is that right?

MUTCHLER: I think so, yes.

. . .

Q: Do you agree that Sergeant White/Lieutenant White 

was in a position to waive any conversations he may 

have had with you, any privilege that may have applied?

MUTCHLER: Well, first I became aware of the waiver 

via Lodge counsel, Mr. Leightty and no, I don’t believe 

that regardless what personally Sergeant White or 

Lieutenant White may feel, I don’t believe he has the 

authority to waive for the Lodge.

Q: Who do you think has the authority to waive any, 

let’s just say the privilege of the Lodge while we’re all 
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sitting here today? Who do you think has the authority to 

waive it?

MUTCHLER: I don’t think it should be waived at all.

Q: Ever, by anyone?

MUTCHLER: I can’t sit here and think of every 

circumstance that could potentially happen that none of 

us may accept, but I mean, for the most part I think it’s a 

privilege that shouldn’t be waived. Obviously I made a 

comment earlier, you know, I mean, if somebody comes 

to me and tells me that they’ve committed crimes 

obviously there’s potential it should be waived. I would 

obviously contact Lodge counsel about that. On 

administrative matters I believe that I’m the elected 

representative for them, and that they should be able to 

have candid conversations with me and that I should not 

be able to waive for them and they should not be able to 

waive for the Lodge.

(Emphasis added.)

As emphasized, Mutchler understood a “union business privilege” 

blanketly applied to (and thus, in a disciplinary context, exempted him from 

testifying about) discussions he has had with union membership while functioning 

in his role as a union representative. Mutchler also believed this privilege could 

not be voluntarily waived by any individual union member, defining the only 

“potential” exception to this privilege as, “if somebody comes to me and tells me 

that they’ve committed crimes.”
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Since Mutchler testified, the FOP has somewhat refined its 

understanding of this “privilege.” In its brief before this Court, the FOP 

summarizes it as follows:

Appellant submits that because a labor organization 

cannot fulfill its statutory duty to represent members 

regarding “conditions of employment”—which include 

matters of discipline [FN]—and any of its agents who are 

employees of LMPD (as FOP president Mutchler was) 

would be forced to warn any represented employee 

seeking assistance regarding a disciplinary [sic] against 

disclosing the facts of the situation because, in effect, I 

can be compelled by LMPD to divulge what you disclose 

to me there must be protection against coerced 

disclosures of the agent’s communications with 

employees in the course of disciplinary matters.

[FN] See, e.g., Nat’l Licorice Co. v. NLRB, 

309 U.S. 350 (1940), affirming an NLRB 

order that an employer cease bypassing 

negotiation with the union regarding 

disciplinary discharge.

The term “privilege” has been applied to this protection 

in many of the cases, and throughout this case. However, 

the protection is so specific and limited that “privilege” 

may be an exaggerated description:

• The “privilege” applies only in the collectivebargaining context, and only when the union agent 

in question is employed by LMPD—non-LMPD 

employees are of course not subject to LMPD 

orders. (As it happens, the current FOP 614 

president, Ryan Nichols, is retired from LMPD 

and thus immune from any coercive power of 

LMPD.)
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• It applies only to information the union agent has 

gathered in order to assist an officer in “anticipated 

or ongoing disciplinary proceedings.”[FN]

[FN] See, e.g., Bell v. Village of 

Streamwood, 806 F.Supp.2d 1052, 1056 

(N.D. Ill. 2011), discussed infra.

• The “privilege” has no application to court 

proceedings, or administrative proceedings other 

than the disciplinary proceeding for which the 

communications were made.

The main point is that this limited privilege is necessary 

for the purposes of the applicable collective bargaining 

statutes to be effected, and therefore the Legislature must 

be deemed to have intended it.

With that said, perhaps the best clue to what the “union business 

privilege” actually is, and why no such privilege could have applied here, is found 

in the second footnote of the FOP’s own argument, i.e., its citation to Bell v. 

Village of Streamwood, 806 F. Supp. 2d 1052 (N.D. Ill. 2011). There, the “union 

business privilege” was defined as follows:

Union representatives . . . may have various duties, 

including representing union members in disciplinary 

proceedings and internal investigations. In the course of 

representing a union member accused of some 

wrongdoing, a union representative may receive 

confidential information. This role is not unlike that of 

an attorney. As with the attorney-client privilege, there is 

a strong interest in encouraging an employee accused of 

wrongdoing to communicate fully and frankly with his 

union representative, in order to receive accurate advice 

about the disciplinary process. See U.S. Dept. of Justice 

v. Fed. Labor Relations Auth., 39 F.3d 361, 368-69 (D.C. 
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Cir. 1994) (recognizing an employee-union 

representative privilege in the context of labor law). The 

Court therefore holds that an employee-union 

representative privilege will extend to communications 

made (1) in confidence; (2) in connection with 

“representative” services relating to anticipated or 

ongoing disciplinary proceedings; (3) between an 

employee and his union representative; (4) where the 

union representative is acting in his or her official 

representative capacity. Cf. United States v. BDO 

Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007) 

(defining attorney-client privilege). Like the attorneyclient privilege, the employee-union representative 

privilege is limited in that it extends only to 

communications, not to the underlying facts. Discussing 

a relevant fact with a union representative will not shield 

it from discovery. See Upjohn Co. v. United States, 449 

U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) 

(holding the attorney-client privilege protects the 

disclosure of communications but does not protect the 

client from disclosing the underlying facts.)

The expectation of confidentiality is critical to the 

employee-union representative privilege. Without 

confidentiality, union members would be hesitant to be 

fully forthcoming with their representatives, 

detrimentally impacting a union representative’s ability 

to advise and represent union members with questions or 

problems. Absent an expectation of confidentiality, there 

is little need to protect the communications.

Id. at 1056-57 (emphasis added).

Thus, contrary to Mutchler’s understanding (which the FOP has 

always adopted in this matter), the “union business privilege,” where it has been 

recognized, is not a “blanket-type of privilege” that applies to every conversation 
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that a union representative has with a union member. Rather, where it has been 

recognized, it has been deemed comparable to the “attorney-client” privilege. 

And, in the words of another Court that discussed more of the legal 

underpinnings of this “privilege”:

[It] appears to originate from a decision by the Federal 

Labor Relations Authority (“FLRA”) in U.S. Department 

of the Treasury Customs Service Washington, D.C. 

(Respondent) & Nat’l Treasury Employees Union 

(Charging Party), 38 F.L.R.A. 1300 (Jan. 8, 1990). In 

that case, the privilege was recognized for the benefit of 

the employee: “that the employee be free to make full 

and frank disclosure to his or her representative in order 

that the employee have adequate advice and a proper 

defense.” Id. at 1308 (emphasis added). In the few cases 

that have recognized this privilege, the privilege has been 

asserted for the benefit of protecting employee 

disclosures, not those of the union representative. See 

U.S. Dep’t of Justice v. Fed. Labor Relations Auth., 39 

F.3d 361, 368-69 (D.C. Cir. 1994); Bell v. Vill. of 

Streamwood, 806 F. Supp. 2d 1052, 1058 (N.D. Ill. 

2011); Long Beach Naval Shipyard Long Beach, 

California (Respondent) & Fed. Emps. Metal Trades 

Coun-cil AFL-CIO (Charging Party/union), 44 F.L.R.A. 

1021, 1038 (Apr. 29, 1992). The union representativebargaining unit member privilege is analogous to the 

attorney-client privilege, whose purpose is also to [sic]

“to encourage full and frank communication between 

attorneys and their clients.” Upjohn Co. v. United States, 

449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 

(1981). And just as the attorney-client privilege “is that 

of the client, not that of the attorney,” Am. Standard Inc. 

v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987), if there 

is a union representative-bargaining unit member 

privilege, it belongs to the employee and not the union 

representative.
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Martin v. Department of Homeland Security, 810 F. App’x 867, 871 (Fed. Cir. 

2020) (some emphasis added).

In short, it is unsurprising that the FOP’s understanding of whom the 

“union business privilege” belongs to derives from the testimony of Mutchler – a 

lay witness – rather than any form of legal authority. The “union business 

privilege,” in the limited cases where it has been recognized, does not belong to the 

union or its representative. Just as the attorney-client privilege belongs to the 

client, the union business privilege belongs to the employee. Id.

Recall, when Mutchler testified during the administrative proceedings 

before the Cabinet, he was asked about and acknowledged that there had been a 

“waiver” from Sgt. White of “any privilege” that might have applied to any 

conversation they may have had relative to this matter. Specifically, on June 23, 

2017, Sgt. White executed a written waiver stating:

This letter is to notify the Professional Standards Unit 

that I Sergeant Armin White waive any client privilege 

that may or may not exist regarding my conversations 

with the FOP Lodge 614 regarding Professional 

Standards Unit case 17-034.

I consent to the Professional Standards Unit investigators 

speaking to FOP Lodge 614 regarding my conversations 

with FOP President Sgt. David Mutchler.

To be clear, Mutchler and the FOP have never disputed that Sgt. 

White’s waiver, set forth above, was knowing, voluntary, and intentional. See 
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Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010) (discussing elements of 

waiver). Indeed, Sgt. White testified during the administrative proceedings before 

the Cabinet that it was knowing, voluntary, and intentional; and, the FOP did not 

question his testimony at all. Instead, the FOP’s argument has always been one of 

authority, i.e., that the “union business privilege” belonged to the FOP, not Sgt. 

White.

In its own review of this matter, the Cabinet determined in its 

dispositive order that LMPD did not commit an unfair labor practice by requiring 

Mutchler to submit to the PSU interview because: (1) “there is no indication that 

Sgt. Mutchler was asked to divulge any information that may have been considered 

confidential”; and, in any event, because (2) there is no established union business 

privilege in Kentucky. The Jefferson Circuit Court made the same determinations.

Now on appeal, as noted, the FOP once again directs most of its 

arguments toward the proposition that we should recognize a union business 

privilege in Kentucky. While that is an interesting question, we cannot answer it 

on the case before us because even if such a privilege could be recognized (which 

we have strong reservations about), it belonged to Sgt. White. And, he did not 
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deem his conversation with Mutchler confidential and waived any privilege in 

writing.2 

It is enough to say, however, that while opinions differ on this subject 

across many jurisdictions,3the Kentucky Supreme Court has promulgated no rule 

recognizing such a privilege; nothing in KRS Chapter 67C explicitly recognizes 

any such privilege; and, simply inferring a privilege from a statute is, as our 

caselaw amply demonstrates, a strongly disfavored practice. See Kentucky Rule of 

Evidence (KRE) 501 (providing that privileges can be granted by the Constitution, 

rules promulgated by the Kentucky Supreme Court, or by statute); see also Collins 

v. Braden, 384 S.W.3d 154, 159 (Ky. 2012) (explaining “the almost universally 

accepted rule that testimonial privileges are generally disfavored and should be 

strictly construed.” (citation omitted)). If the FOP wishes to pursue the recognition 

and protection of the privilege, that is more appropriately the prerogative of the 

legislative branch or the Kentucky Supreme Court. Hence, given this and in light 

of Sgt. White’s wavier, any further discussion of case law from other jurisdictions 

as cited by the FOP is a futile endeavor. 

 

2 The FOP also asks this Court to consider whether the privilege might have applied, had LMPD 

questioned Mutchler about any conversations Mutchler may have had with Lt. George –

someone who did not execute a waiver of any kind of privilege. We decline to do so because it 

is not our prerogative to render advisory opinions. See Bingham Greenebaum Doll, LLP v. 

Lawrence, 567 S.W.3d 127, 129-30 (Ky. 2018).

3

See, e.g., Michael D. Moberly, Extending a Qualified Evidentiary Privilege to Confidential 

Communications Between Employees and Their Union Representatives, 5 NEV. L.J. 508 (2004).
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In sum, a reviewing court may only overturn the decision of an 

agency if the agency acted arbitrarily or outside the scope of its authority, if the 

agency applied an incorrect rule of law, or if the decision itself is not supported by 

substantial evidence on the record. Ky. State Racing Comm’n v. Fuller, 481 

S.W.2d 298, 300-07 (Ky. 1972). Here, the FOP’s sole contention is that the 

Cabinet misapplied the law discussed above. We disagree. For the reasons 

discussed above, we therefore AFFIRM.

MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.

CALDWELL, JUDGE, DISSENTS AND FILES SEPARATE 

OPINION.

MAZE, JUDGE, CONCURRING: I fully agree with the reasoning 

and the result of the majority opinion. I write separately to emphasize the reasons 

why this is not the case to recognize a union business privilege. First and 

foremost, as the majority opinion aptly states, Sgt. White made a knowing and 

voluntary waiver of any privilege. I agree with the majority that the FOP has no 

standing to assert a privilege.

Furthermore, our legislature has the exclusive authority to adopt 

privileges on matters outside of courtroom proceedings. Commonwealth, Cabinet 

for Health and Family Servs. v. Chauvin, 316 S.W.3d 279, 286 (Ky. 2010). When 

courts are called upon to address the issue, the issue is generally whether the 
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General Assembly expressed a clear intent to establish a privilege, either through 

the express language of the statute or by necessary implication. In Chauvin, the 

General Assembly enacted legislation limiting the disclosure of KASPER

4

information. Id. Similarly, in Manns v. Commonwealth, 80 S.W.3d 439 (Ky. 

2002), the Court discussed a statutory provision restricting disclosure of juvenile 

records. And in Sisters of Charity Health Systems., Inc. v. Raikes, 984 S.W.2d 464 

(Ky. 1998), the legislation limited the disclosure of peer-review hospital records in 

medical malpractice suits. In each of these cases, the Court inferred the General 

Assembly’s intent to create a privilege from statutory language excluding certain 

specifically identified records from disclosure. 

Here, the FOP does not cite to any specific statutory language creating 

an exception from disclosure of identified information. Rather, the FOP argues 

that this Court should infer the existence of a privilege as a necessary implication 

of the collective bargaining scheme in KRS Chapter 67C. The FOP points out that 

other jurisdictions have inferred the existence of a union business privilege from 

similar statutory language. The National Labor Relations Board (NLRB) 

recognized the existence of an implied union business privilege under the National 

Labor Relations Act in Cook Paint and Varnish Co., 258 N.L.R.B. No. 166, 258 

N.L.R.B. 1230, 1981 WL 21122 (1981). However, the NLRB has been delegated 

 

4 Kentucky All-Schedule Prescription Electronic Records.
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broad authority to enforce the Act’s provisions prohibiting employers from 

engaging in any unfair labor practice affecting commerce. May Dep’t Stores Co. v. 

N.L.R.B., 326 U.S. 376, 390, 66 S. Ct. 203, 211-12, 90 L. Ed. 145 (1945). The 

FOP does not identify any similar delegation of authority to the Labor Cabinet.

Nevertheless, the FOP points out that courts in other states have 

adopted similar interpretations of their collective bargaining statutes. But to date, 

only two states, New York and Alaska, have applied the Cook Paint reasoning to 

their statutes. See City of Newburgh v. Newman, 421 N.Y.S.2d 673, 70 A.D.2d 

362 (N.Y. App. Div. 1979), and Peterson v. State, 280 P.3d 559 (Alaska 2012). 

Illinois has expressly adopted a statutory union agent – union member privilege. 

Bell v. Vill. of Streamwood, 806 F. Supp. 2d 1052 (N.D. Ill. 2011) (citing 735 ILL.

COMP. STAT. ANN. 5/8-803.5). And three other states, California, New Hampshire,

and Massachusetts, have declined to apply the Cook Paint reasoning to their 

collective bargaining statutes. American Airlines, Inc. v. Superior Court, 114 Cal. 

App. 4th 881, 891, 8 Cal. Rptr. 3d 146 (2003); In re Grand Jury Subpoena, 155 

N.H. 557, 560–561, 563, 926 A.2d 280, 283 (2007); and Chadwick v. Duxbury 

Pub. Schs., 475 Mass. 645, 655, 59 N.E.3d 1143, 1151 (2016).

Thus, the weight of precedent does not overwhelmingly favor the 

interpretation of KRS Chapter 67C advocated by the FOP. In any event, Kentucky 

law does not favor broad assertions of privilege because they contravene the 
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fundamental principle that the public has a right to every man’s evidence. Raikes, 

984 S.W.2d at 468. For this reason, our courts generally refrain from recognizing 

privileges merely by implication of statute. See Caldwell v. Chauvin, 464 S.W.3d 

139, 159-60 (Ky. 2015) (holding that the federal Health Insurance Portability and 

Accountability Act (HIPAA) does not create a privilege prohibiting interviews of 

nonexpert treating physicians). I am convinced that this Court is not authorized to 

adopt such a broad reading of the statute. Rather, that prerogative is left to either 

the Kentucky General Assembly or our Supreme Court, not to an intermediate 

appellate court. As a result, even if the proposed privilege had not been clearly 

waived, I would decline to recognize the existence of a union business privilege in 

this case.

CALDWELL, JUDGE, DISSENTING: I respectfully dissent. In the 

narrow context of determining whether unfair labor practices occurred in the 

course of internal disciplinary proceedings and investigations, Kentucky Revised 

Statutes (KRS) 67C.400 et seq. implicitly creates a limited “privilege” such that 

the FOP representative cannot be compelled to disclose the content of 

communications with union members about internal disciplinary proceedings to the 

employer. Further, while I believe the majority opinion is correct that this limited 

“privilege” would belong to the employee and not the union, the Kentucky Labor 

Cabinet did not make a finding that the employee had validly waived this privilege. 
-21-

Therefore, I would reverse the Jefferson Circuit Court’s judgment and remand with 

directions to vacate the Cabinet’s denial of the unfair labor practice charge and 

remand to the Cabinet to determine if the “privilege” was validly waived. 

Of note, while both parties and the courts have used the term 

“privilege,” and it is not inaccurate, it also imbues a meaning of consequence far 

more reaching than what I perceive is sought. I would express no opinion as to 

whether a union business privilege exists other than as implicitly arising under 

KRS 67C.400 et seq. in the specific context discussed herein. In other words, I 

would not reach whether Kentucky law generally recognizes a union business 

privilege nor whether a union business privilege arises under any other statute, 

regulation, or other legal authority. I would simply recognize that the 

communications between an employee and his union representative regarding 

internal disciplinary proceedings in the specific context here are confidential. And 

I would recognize that it is an unfair labor practice in this context for an employer 

to compel disclosure of those communications under threat of further disciplinary 

actions or other coercive measures. For ease of reference, I will refer to a “union 

business privilege” to signify the protection from disclosure of confidential 

communications between union representatives and members regarding internal 

disciplinary proceedings—again, in the specific context here (i.e., application of 

KRS 67C.400 et seq.). 
-22-

I must disagree with the circuit court’s opinion, and the concurring 

majority opinion, accepting the Cabinet’s argument that it lacked authority to 

recognize a union business privilege because “KRS 67C.402 and KRS 67C.406 

contain no language which would lead to the creation of a union business privilege 

between a union representative and its members.” And while I do not 

fundamentally disagree with the circuit court’s view of the legislature as having 

power to create privileges, I construe the legislature’s adoption of KRS 67C.400, et 

seq. to necessitate by implication the creation of this limited union business 

privilege, particularly in light of authority in existence at the time of its adoption—

such as Cook Paint and Varnish Co., 258 N.L.R.B. No. 166, 258 N.L.R.B. 1230 

(1981). Despite any lack of specific language explicitly recognizing a privilege or 

the confidentiality of certain communications, I believe such a privilege is implied 

reading all words and phrases in the governing statutes in their proper context. In 

short, I disagree with the Cabinet’s conclusion that the existence of this privilege is 

precluded by a lack of explicit language specifically referring to a “privilege” or 

information deemed “confidential.”

KRS 67C.402(1) states:

Police officers of a consolidated local government shall 

have, and shall be protected in the exercise of, the right 

of self-organization, to form, join, or assist any labor 

organization, to bargain collectively through 

representatives of their own choosing on questions of 
-23-

wages, hours, and other conditions of employment free 

from interference, restraint, or coercion. 

Our legislature has long called for liberal construction of statutes, “with a view to 

promote their objects and carry out the intent of the legislature . . . .” KRS 

446.080(1) (enacted in 1942). Further, in construing statutes, we must consider all 

words or phrases in a statute and not ignore some words or phrases. Pearce v. 

University of Louisville, by and through its Board of Trustees, 448 S.W.3d 746, 

751 (Ky. 2014); Krieger v. Garvin, 584 S.W.3d 727, 729 (Ky. 2019).

So, when construing KRS 67C.402(1)’s language “to bargain 

collectively through representatives of their own choosing on questions of wages, 

hours, and other conditions of employment free from interference, restraint, or 

coercion” there is simply no logical way to not include internal disciplinary 

proceedings as an “other condition[] of employment.” (Emphasis added.) In fact, 

when considering “other conditions of employment” outside of those relating to 

wages and hours, it is difficult to think of one more significant than conduct codes 

and rules regarding internal disciplinary measures. 

As FOP points out, many provisions KRS 67C.400 et seq. are nearly 

identical to provisions of the National Labor Relations Act (NLRA).5 Thus, I find 

 

5

See KRS 67C.402(1) & (3), providing:

(1) Police officers of a consolidated local government shall have, and shall be 

protected in the exercise of, the right of self-organization, to form, join, or assist 
-24-

persuasive outside authority construing the NLRA or other similar statutory 

provisions to recognize a limited union business privilege in the context here. See 

Cook Paint and Varnish Co., supra; City of Newburgh v. Newman, 421 N.Y.S.2d 

673, 70 A.D.2d 362 (N.Y. App. Div. 1979). 

While Kentucky courts may not be required to follow Cook Paint or 

federal or other state court cases construing the NLRA or similar statutes to 

determine if a union business privilege exists, we may certainly consider whether 

we find such outside authority persuasive, particularly when there is no Kentucky 

 

any labor organization, to bargain collectively through representatives of their 

own choosing on questions of wages, hours, and other conditions of employment 

free from interference, restraint, or coercion.

. . .

(3) Labor organizations recognized by a consolidated local government as the 

exclusive representative or so designated in accordance with the provisions of this 

section shall be responsible for representing the interest of all police officers in 

the unit without discrimination.

Compare 29 U.S.C. (United States Code) § 157, providing in part: “Employees shall have the 

right to self-organization, to form, join, or assist labor organizations, to bargain collectively 

through representatives of their own choosing, and to engage in other concerted activities for the 

purpose of collective bargaining or other mutual aid or protection . . .” with KRS 67C.406(1)(a), 

providing: “Except as provided in KRS 336.130(3), consolidated local governments, their 

representatives, or their agents are prohibited from: Interfering, restraining, or coercing police 

officers in the exercise of the rights guaranteed in KRS 67C.402[.]”

Compare 29 U.S.C. § 158(a)(1), providing: “It shall be an unfair labor practice for an employer-

- to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in

section 157 of this title” with KRS 67C.410(1), providing: “Violations of the provisions of KRS 

67C.406 shall be deemed to be unfair labor practices remedial by the cabinet . . .”

Cf. 29 U.S.C. § 160(a), providing: “The Board is empowered, as hereinafter provided, to prevent 

any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting 

commerce.”
-25-

case directly on point. Kentucky’s appellate Courts have often cited federal case 

law construing federal statutes that are similar to Kentucky statues to interpret said 

statutes. This has occurred even when our state statutes make no explicit reference 

to those similar federal statutes. See, e.g., Commonwealth, Dep’t of Agriculture v. 

Vinson, 30 S.W.3d 162, 169 (Ky. 2000); Kentucky New Era, Inc. v. City of 

Hopkinsville, 415 S.W.3d 76, 80 n.3 (Ky. 2013). 

Further, I agree with FOP that it makes sense to infer that 

communications between union representatives and union members are 

confidential and prohibited from coerced disclosure, in certain contexts, in order to 

allow union representatives to effectively perform their statutory duties under KRS 

67C.400 et seq. I do not believe Sgt. Mutchler was far off point with his lay 

understanding of what a union business privilege would entail. And, while courts 

interpret statutes, statutes are written by the legislature for all people, not just 

lawyers. It is not unheard of for a common understanding to be the intent of 

legislation.

It is perhaps best said in Cook Paint:

[T]he very facts sought were the substance of 

conversations between an employee and his steward, as 

well as the notes kept by the steward, in the course of 

fulfilling his representational functions. Such 

consultation between an employee potentially subject to 

discipline and his union steward constitutes protected 

activity in one of its purest forms. To allow Respondent 

here to compel the disclosure of this type of information 
-26-

under threat of discipline manifestly restrains employees 

in their willingness to candidly discuss matters with their 

chosen, statutory representatives.

258 N.L.R.B. at 1232. The Federal Labor Relations Authority6relied heavily on 

the analysis in Cook Paint to explicitly recognize a “privilege” just like the limited 

union business privilege I urge recognizing here in U.S. Department of the 

Treasury Customs Service Washington, D.C. and National Treasury Employees 

Union, 38 F.L.R.A. 1300, 1308-09 (Jan. 8, 1990). 

Though Louisville/Jefferson County Metro Government (LMG) 

points out that various federal and state courts have determined that no union 

business privilege existed even where federal or state statutes may resemble the 

NLRA, many of these decisions concerned a significantly different context than 

here. Rather than concerning court review of an administrative agency action 

about whether questioning of a union representative amounted to an unfair labor 

practice, often these decisions involved discovery disputes in civil litigation. See

Degrandis v. Children’s Hospital Boston, 203 F. Supp. 3d 193 (D. Mass. 2016); 

Chadwick v. Duxbury Pub. Schs., 475 Mass. 645, 59 N.E.3d 1143 (2016). In 

contrast, in the context of determining whether an unfair labor practice resulted 

from compelling disclosure of communications between union representatives and 

 

6 The Federal Labor Relations Authority is the independent federal administrative agency that 

administers the labor-management relations program for non-postal federal employees. 
-27-

members about internal disciplinary proceedings, other authorities have recognized 

the limited privilege I urge recognizing here. See Cook Paint; City of Newburgh; 

U.S. Department of Treasury, supra. 

As for waiver of any such privilege, LMG correctly argues that 

privileges may be waived. But though LMG points to Sgt. White’s signing a 

document indicating he intended to waive any privilege applicable to him, the 

Cabinet did not make a definitive finding that Sgt. White waived the privilege. 

And FOP has asserted Sgt. White did not even have an opportunity to consult 

counsel before signing the document. 

As FOP argues, the purpose of the privilege is to encourage individual 

union members to make candid disclosures to their union representatives, 

regarding the individual union member as the holder; therefore, it makes sense to 

prohibit disclosure of communications with the representative unless the individual 

member waives the privilege. And FOP has not cited any authority to support its 

argument that the union or union representative is the holder of the privilege. 

Although there is not a plethora of published authority on the 

question, an unpublished federal appellate court decision held that a union 

business-type privilege would be held by the represented employee and not by the 

union representative. See Martin v. Department of Homeland Security, 810 F. 
-28-

App’x 867 (Fed. Cir. 2020). On the issue of waiver, I agree with the majority that 

it is the employee, and not the union, that holds the union business privilege.

However, neither the circuit court’s opinion, nor the majority’s, 

definitively states whether a union business privilege existed. Instead, they

incorrectly distinguished this case from Cook Paint based on Sgt. White’s not 

being subject to investigation and having waived the privilege—contrary to the 

Cabinet’s findings—to find that any privilege did not apply or was waived.

The circuit court states on page five of its opinion and order that Sgt. 

White “was not the subject of the PSU investigation.” But the Cabinet’s factual 

findings included a statement that the PSU investigator had testified that “Sgt. 

White had been served a notice by the time of the interview and was therefore 

considered by the PSU to be under investigation.” And the Cabinet further 

explained in a footnote that: “Officers generally receive a ‘48-Hour Notice’ before 

they are questioned if they face the possibility of disciplinary action in relation to 

the subject matter of the questioning.” Sgt. White received such a 48-Hour Notice.

In short, Sgt. White was the holder of the privilege recognized herein 

pertaining to his communications with his union representative (Sgt. Mutchler) 

about internal disciplinary matters. But the Cabinet made no finding whether he 

validly waived any privilege. As the circuit court functioned as an appellate court 

in reviewing the Cabinet’s decision under KRS 13B.140(1), it should have 
-29-

reviewed only the findings actually made by the Cabinet rather than making its 

own findings on matters not decided by the Cabinet. And this Court similarly 

should not make the initial determination about whether the privilege was waived. 

See Klein v. Flanery, 439 S.W.3d 107, 122 (Ky. 2014) (“As an appellate court, we 

review judgments; we do not make them.”); Calhoun v. CSX Transp., Inc., 331 

S.W.3d 236, 245 (Ky. 2011) (“In this Commonwealth, it is axiomatic that appellate 

courts are not fact-finders . . . the Court of Appeals exceeded its scope of review 

when it made factual findings regarding the validity of some of Appellants’

evidence.”). 

Even though Sgt. White initialed a form purporting to waive any 

privilege applying to him, signing a waiver form does not always mean that a 

waiver is valid. See Humphrey v. Commonwealth, 153 S.W.3d 854, 858 (Ky. App. 

2004) (despite juvenile’s signing form indicating he was waiving his right to a 

preliminary hearing before transfer to circuit court, “based on the record, we are 

not convinced that the waiver was valid.”). FOP suggested to the decision-makers 

below that Sgt. White did not validly waive a privilege as it emphasized he did not 

consult with union representatives or counsel before signing the waiver form. But 

the Cabinet did not determine whether the waiver was valid—a matter which can 

involve questions of fact as well as law. See generally 5 C.J.S. Appeal and Error § 

824 (2021) (waiver of attorney-client privilege generally mixed question of law 
-30-

and fact). Rather than attempt to make our own findings of fact or conclusions of 

law regarding the validity of Sgt. White’s waiver, I believe it is more appropriate 

to remand to the Cabinet to address this matter. 

So, I would recognize a limited union business privilege in this 

specific context, and I would reverse the trial court with directions to vacate the 

denial of the unfair labor practice charge and to remand to the Cabinet for the 

limited purpose of determining whether Sgt. White validly waived this union 

business privilege. 
-31-

BRIEFS AND ORAL ARGUMENT 

FOR APPELLANT:

David Leightty

Louisville, Kentucky

BRIEF FOR APPELLEE, 

LOUISVILLE/JEFFERSON 

COUNTY METRO GOVERNMENT:

Michael J. O’Connell

Jefferson County Attorney

J. Daniel Landrum

Wendy C. Hyland

Assistant Jefferson County Attorneys

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLEE, 

LOUISVILLE/JEFFERSON 

COUNTY METRO GOVERNMENT:

Wendy C. Hyland

Assistant Jefferson County Attorney

Louisville, Kentucky

BRIEF AND ORAL ARGUMENT 

FOR APPELLEE, KENTUCKY 

LABOR CABINET:

John R. Rogers

Frankfort, Kentucky