Retaliation Cases

Timothy P. Chambers & another vs. RDI Logistics, Inc., & another; Dee & Lee, LLC, & another, third-party defendants. Bristol. October 5, 2016. December 16, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Independent Contractor Act. Federal Preemption. Statute. Federal preemption. Severability. Practice. Civil. Summary judgment. Standing. Employment. Retaliation. Protective Order. In a civil action brought by plaintiffs who contracted with the defendants through small corporations that the plaintiffs had formed for the purpose of contracting to perform services in Massachusetts as furniture delivery drivers, the judge erred in granting summary judgment in favor of the defendants, where, although a portion of G. L. c. 149, § 148B, the independent contractor statute, is preempted by the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501(c), the remainder was sever-able and remained applicable to the plaintiffs’ claim of misclassification, regarding which material facts remained in dispute [99-108]; and where the plaintiffs had alleged enough facts to establish a genuine issue of material fact whether they had standing to assert claims for misclassification under the independent contractor statute [108-109]; moreover, the judge erred in dismissing, without explanation, one plaintiff’s claim of retaliation [109-110], In a civil action brought by plaintiffs who contracted with the defendants through small corporations that the plaintiffs had formed for the purpose of contracting to perform services in Massachusetts as furniture delivery drivers, the judge did not abuse his discretion in denying the plaintiffs’ emergency motion for a protective order to enjoin one defendant from contacting its workers, where the judge’s determination that the communications were not coercive or misleading was not unreasonable. [110-112] Civil action commenced in the Superior Court Department on September 20, 2013. An emergency motion for a protective order was considered by Richard T Moses, L; a motion for reconsideration was considered by him; and the case was heard by him on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harold L. Lichten (Peter M. Delano also present) for the plaintiffs. Michael T. Grant (Andrew J. Fay also present) for the defendants. Individually and on behalf of all others similarly situated. Leroy Johnson, individually and on behalf of all others similarly situated. Richard J. Deslongchamps, Jr. Three T & C Transport, Inc. Lenk, J. We are called upon in this case chiefly to consider whether G. L. c. 149, § 148B, the independent contractor statute, is preempted by the Federal Aviation Administration Authorization Act of 1994 (FA A A A), 49 U.S.C. § 14501(c). The plaintiffs, who contracted with the defendants through small corporations that the plaintiffs apparently formed for this purpose, performed services in Massachusetts as furniture delivery drivers. They brought this putative class action against the defendants under the independent contractor statute, asserting that they had been misclassified as independent contractors. Following the addition of other claims and counterclaims, summary judgment entered for the defendants dismissing the plaintiffs’ claims on the ground that they were preempted by the Federal statute. We conclude that, while a portion of the independent contractor statute is preempted by the FAAAA, the remainder is severable and remains applicable to the plaintiffs’ misclassification claim. Nor is summary judgment dismissing that claim warranted on the separately asserted basis that the plaintiffs lack standing as individuals to assert claims for misclassification under the statute. Material issues of disputed fact preclude the entry of summary judgment on either basis. We conclude similarly that the dismissal, without explanation, of the claim of retaliation that Timothy Chambers individually asserts under G. L. c. 149, § 148A, was improper. Finally, we review the denial of the plaintiffs’ request for a protective order, brought in the wake of the defendants’ communications with putative class members in which they were offered payments in exchange for signed releases. While discerning no abuse of discretion requiring reversal in these circumstances, we acknowledge the legitimate concerns raised by such communications and the authority of a judge to enter appropriate protective orders when necessary. 1. Background. Since this case concerns a grant of summary judgment, we “summarize the relevant facts in the light most favorable to the plaintiff[s].” Somers v. Converged Access, Inc., 454 Mass. 582, 584 (2009). RDI Logistics, Inc. (RDI), is a furniture delivery company headquartered in South Easton. Richard Deslongchamps, Jr., is the founder and president of RDI. The company provides “last mile” delivery services for large retail furniture companies. The plaintiffs delivered furniture for RDI for several years on a full-time basis, working approximately sixty hours per week over five or six days. Since RDI only does business with independent business entities, the plaintiffs incorporated prior to entering into contracts with RDI. The contracts contained both nonsolicitation and noncompete clauses, which effectively prevented the plaintiffs from performing any delivery work for RDTs competitors during their tenure with the company and for three years thereafter. RDTs managers informed the plaintiffs that their contracts would be terminated if they worked for any company other than RDI. The company also required the plaintiffs to wear uniforms and to display signs on their trucks bearing either RDTs logo or the logos of RDTs customers. RDI deducted from the plaintiffs’ pay the costs of uniforms, truck lease payments, and damage allegedly done to customers’ property in the course of their deliveries. RDI also regulated how the plaintiffs loaded the furniture on their trucks, which customers they delivered to, and the specific windows of time in which they were to deliver their goods to customers. Finally, RDI required that the plaintiffs follow prescribed routes to reach their customers and use global positioning system devices to ensure that the plaintiffs did not deviate from their assigned routes. After approximately four years of service, RDI terminated its contract with Johnson’s company in December, 2011, under disputed circumstances. During the summer of 2013, Chambers informed his fellow drivers at RDI that he suspected that RDI was misclassifying them as independent contractors rather than as employees. In August, 2013, RDI informed Chambers that his contract was subject to a sixty-day review period. On the evening of September 18, 2013, Deslongchamps confronted Chambers and accused him of attempting to file a lawsuit under the independent contractor statute. After a brief argument, Deslong-champs fired Chambers. Two days later, the plaintiffs filed a class action complaint against RDI and Deslongchamps, individually, alleging misclass-ification. In October, 2013, they filed an amended complaint, adding a claim for unjust enrichment stemming from the purported misclassification, as well as an individual claim on behalf of Chambers alleging retaliation under G. L. c. 149, § 148A. The defendants asserted two counterclaims for breach of contract against Johnson, maintaining that he had violated a release of claims against RDI that he signed upon his termination. They also filed a third-party complaint against the plaintiffs’ respective corporations, asserting that the contracts between those corporations and RDI indemnified RDI against any damages resulting from the plaintiffs’ claims. In July of 2014, the parties engaged in an unsuccessful mediation effort. Three montos later, as discovery was underway, RDI sent a series of letters on an ex parte basis to certain current and former RDI contractors. Each letter contained a check for $1,000 that would, if endorsed, purportedly release all claims against RDI. The two-page letters, in essence, stated that two individuals had filed a class action complaint against RDI in which they claimed that they were misclassified as independent contractors. The letters, which contained toe Superior Court case caption, noted that although “RDI believes firmly that it has not acted improperly with regard” to its classification of its workers, it would offer “a one-time payment in exchange for a release” of any claims relating, inter alia, to the classification of those workers. On learning of these letters, the plaintiffs sought an emergency protective order barring RDI from engaging in further communications with “putative class members.” They asked the judge to strike “any alleged settlements obtained as the result of toe letters and checks” that had been mailed. The motion was denied. A few months later, toe plaintiffs filed a motion for reconsideration of their emergency motion, claiming that an RDI driver had informed the plaintiffs’ counsel that he and his fellow drivers feared they would lose their contracts with RDI if they did not endorse the checks. The judge denied that motion. The plaintiffs sought interlocutory review before a single justice of toe Appeals Court, which also was denied. Two weeks later, the plaintiffs moved for partial summary judgment on their misclassification claim. In response, the defendants filed a cross motion for summary judgment on all of the plaintiffs’ claims, along with their claims against Johnson and the plaintiffs’ companies. The judge denied the plaintiffs’ motion and allowed the defendants’ motion on the ground that the FAAAA preempted the independent contractor statute in its entirety. The plaintiffs’ complaint was dismissed, along with the defendant’s claims against Johnson and the plaintiffs’ companies. We allowed the plaintiffs’ application for direct appellate review. 2. Discussion, a. Summary judgment. The defendants claim that they are entitled to judgment as a matter of law on all of the plaintiffs’ claims. They contend that the plaintiffs’ misclassification claim fails for two reasons. First, they suggest that the statute is preempted by the FAAAA. Second, they argue that the plaintiffs do not have standing under the independent contractor statute because their contracts with RDI were through corporate entities. The defendants also suggest that Chambers’s retaliation claim fails because he does not have standing unless he proves that he is an employee. i. Standard of review. “We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.’ ” DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013), quoting Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). Because we review this matter de novo, “no deference is accorded the decision of the judge in the trial court.” Federal Nat’l Mtge. Ass’n v. Hendricks, 463 Mass. 635, 637 (2012). The defendants, as the moving parties, bear the “burden of establishing that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law.” DeWolfe, supra. ii. Misclassification claim. A. Independent contractor statute. The independent contractor statute “establishes a standard to determine whether an individual performing services for another shall be deemed an employee or an independent contractor for purposes of our wage statutes.” Somers v. Converged Access, Inc., 454 Mass. 582, 589 (2009). “Under this standard, ‘ “an individual performing any service” is presumed to be an employee’ ” (citations omitted). Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321, 327 (2015). “The purpose of the independent contractor statute is ‘to protect workers by classifying them as employees, and thereby grant them the benefits and rights of employment, where the circumstances indicate that they are, in fact, employees’ ” (citation omitted). Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 620 (2013). To establish that a presumptive employee is actually an independent contractor, an employer must prove that “(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and “(2) the service is performed outside the usual course of the business of the employer; and “(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G. L. c. 149, § 148B. To “rebut the presumption of employment,” an employer must satisfy all three of these prongs. Depianti, 465 Mass. at 621. B. The FAAAA. In enacting the FAAAA in 1994, Congress sought to deregulate the trucking industry. See Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769, 1775 (2013). Congress acted based on a finding “that [SJtate governance of intrastate transportation of property had become ‘unreasonably burdensome]’ to ‘free trade, interstate commerce, and American consumers.’ ” Id., quoting Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 440 (2002). Toward that end, Congress included a preemption clause in the statute that expressly preempts any State “law, regulahon, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1) (2012). “The critical question in any preemption analysis is always whether Congress intended that [F]ederal [law] supersede [S]tate law” (citation omitted). Bay Colony R.R. v. Yarmouth, 470 Mass. 515, 518 (2015). While Congress’s intent to preempt State law under the FAAAA is explicit, “that ‘does not immediately end the inquiry because the question of the substance and scope of Congresses] displacement of [S]tate law still remains.’” Id., quoting Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008). In order to determine this scope, we “focus first on the statutory language, ‘which necessarily contains the best evidence of Congresses] pre-emptive intent’ ” (citahon omitted). Dan’s City Used Cars, Inc., 133 S. Ct. at 1778. The breadth of the FAAAA’s preemption clause is “purposefully expansive.” Massachusetts Delivery Ass’n v. Coakley, 769 F.3d 11, 18 (1st Cir. 2014). Any State laws “ ‘having a connection with, or reference to,’ carrier ‘ “rates, routes, or services,” are pre-empted’ ” (citation omitted). Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370 (2008). Congress’s overarching goal in establishing such expansive preemption was twofold. First, it aimed to “ensure transportation rates, routes, and services that reflect[ed] ‘maximum reliance on competitive market forces,’ thereby stimulating ‘efficiency, innovation, and low prices,’ as well as ‘variety’ and ‘quality’ ” (citation omitted). Id. at 371. Second, Congress wanted to sweep aside “a patchwork of [S]tate service-determining laws, rules, and regulations” that would undercut this goal. Id. at 373. The United States Supreme Court has interpreted the FAAAA’s preemptive effect broadly, concluding that preemption occurs “at least where [S]tate laws have a ‘significant impact’ related to Congresses] deregulatory and pre-emption-related objectives” (citation omitted). Id. at 371. Despite its expansive ambit, however, the FAAAA’s preemption is not unlimited. State laws that “affect fares in only a ‘tenuous, remote, or peripheral... manner’ ” are not preempted (citation omitted). Id. The defendants contend that the FAAAA preempts the independent contractor statute for two reasons. First, they contend that the FAAAA preempts the statute because the second prong of G. L. c. 149, § 148B (prong two), dictates that motor carriers such as RDI perform their services using employees rather than independent contractors. They also argue that prong two cannot be severed from the statute because the Legislature drafted the statute as a conjunctive test with three inseparably intertwined prongs. Second, the defendants argue that the FAAAA preempts the application of the independent contractor statute to motor carriers such as RDI because enforcement of the plaintiffs’ misclassification claim would have an impermissible impact on motor carriers’ services. C. Prong Wo. The defendants are correct that prong two draws the independent contractor statute into the gravitational pull of the FAAAA’s preemption. Prong two provides an impossible standard for motor carriers wishing to use independent contractors. This de facto ban constitutes an impermissible “significant impact” on motor carriers that would undercut Congress’s objectives in passing the FAAAA; the statute containing prong two also forms part of an impermissible “patchwork” of State laws due to its uniqueness. See Rowe, 552 U.S. at 371, 373. A delivery driver for a motor carrier necessarily will be performing services within “the usual course of the business of the employer” whenever a court concludes that delivery services are part of its usual course of business. See G. L. c. 149, § 148B (a) (2). Prong two thereby, in essence, requires that motor carriers providing delivery services, such as RDI, use employees rather than independent contractors to deliver those services. As a result, motor carriers are compelled to adopt a different manner of providing services from what they otherwise might choose because prong two dictates the type of worker that will provide the services. This likely also would have a significant, if indirect, impact on motor carriers’ services by raising the costs of providing those services. See, e.g., G. L. c. 151, § 1 (requiring that employers pay employees minimum wage). The statute containing prong two therefore contravenes the objectives of Congress in enacting the FAAAA by “substituting] ... its own governmental commands for ‘competitive market forces’ in determining (to a significant degree) the services that motor carriers will provide.” Rowe, 552 U.S. at 372. Moreover, with prong two included, the statute contravenes the congressional objective of preventing a ‘“patchwork of [S]tate service-determining laws.” Id. at 371. Unlike the first and third prongs, prong two ‘“stands as something of an anomaly” amongst State laws regulating the classification of workers. Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429, 438 (1st Cir. 2016). Very few States have enacted such a test, which explicitly hinges employee status on the connection between the services performed by the worker and the employer’s usual course of business. Id., and cases cited. The provision’s distinctiveness both undercuts Congress’s intent to prevent ‘“a patchwork of [S]tate service-determining laws, rules, and regulations,” Rowe, supra, and suggests that Congress did not intend to allow such provisions to stand as a “type of pre-existing and customary manifestation of the [S]tate’s police power.” Schwann, supra. D. Severability of prong two. The defendants take the view that the prongs of the independent contractor statute are nonseverable because they operate conjunctively and are inextricably intertwined. They argue that, given that prong two of the independent contract statute triggers the FAAAA’s preemption, the entire statute, on this view, must fall. This contention fails for several reasons. When compelled to strike down part of a statute, the court will, ‘“as far as possible,... hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part.” Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, 41

Nancy Chadwick vs. Duxbury Public Schools & others. Plymouth. May 3, 2016. October 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Privileged Communication. Evidence. Privileged communication. Practice. Civil. Discovery. Public Employment. Collective bargaining. Labor. Collective bargaining. Discussion of the standard of review applicable to review of a report of a question of law by a single justice of the Appeals Court. [649-650] This court concluded that G. L. c. 150E, which grants public employees of the Commonwealth the right to bargain collectively over wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion, and which declares any interference, restraint, or coercion by a public employer of any employee in the exercise of any right guaranteed under that chapter to be a prohibited practice, as well as any domination, interference, or assistance in the formation, existence, or administration of any employee organization, does not implicitly create a privilege protecting communications between a union member and a union representative that is applicable in a civil action alleging discrimination in employment, where the relevant statutory provisions clearly are not intended to apply to a civil action [650-653]; further, this court declined to create such a privilege judicially [653-656], Civil action commenced in the Superior Court Department on December 8, 2014. A motion to compel discovery was heard by Raffi Yes say an. J. A 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 Court. Jonathan J. Margolis (Beth R. Myers also present) for the plaintiff. John J. Cloherty, III, for the defendants. The following submitted briefs for amici curiae: Ava R. 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. Paul T. Hynes & Michael R. Keefe for Professional Fire Fighters of Massachusetts. Stephen J. Finnegan & Christopher J. Petrini for Massachusetts Association of School Committees, Inc., & another. Karen Baynes, Andrew Stephens, and Marc Talbot. Justices Spina, Cordy, and Duffly participated in the deliberation on this case prior to their retirements. Hines, J. In this 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 plaintiffs 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. In her 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 common law. Background. The following summary of the facts is drawn from the allegations in the plaintiffs complaint, the motion judge’s memorandum of decision and order on the defendants’ motion to compel, and other relevant documents in the record. 1. The alleged discrimination and retaliation. Beginning 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. In 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. In 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. 2. The discovery requests. On January 5, 2015, the defendants served document requests and interrogatories pursuant to Mass. R. Civ. R 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 jurisdictions have recognized a union member-union privilege, but he concluded that the Legislature is the more appropriate body to weigh the policy implications of doing so and declined the plaintiffs request to create such a privilege. Discussion. The plaintiff seeks recognition of a union member-union privilege “that would protect from disclosure to employers communications between public sector employees and their unions when made (1) in confidence; (2) in connection with bargaining or representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee’s attorney) and union representatives; or (4) by union representatives acting in official representative capacities.” Conceding that no such privilege exists under G. L. c. 150E, the plaintiff argues instead that we should interpret the statute as implying a union member-union privilege to secure the collective bargaining rights inherent in the statute. More specifically, she contends that the prohibited practices in G. L. c. 150E, § 10 (a) (1) and (2), are vital to furthering the statute’s purpose and that such prohibitions must extend beyond the context of collective bargaining disputes to protect employee and union interests. 1. Standard of review. The issue before us comes by way of a report for appellate review entered by a single justice of the Appeals Court. Under G. L. c. 231, § 118, first par., a single justice of the Appeals Court has the authority to allow appellate review of an interlocutory order or a question of law contained therein. CUNA Mut. Ins. Soc’y v. Attorney Gen., 380 Mass. 539, 540 (1980). See Barnes v. Metropolitan Hous. Assistance Program, 425 Mass. 79, 84 (1997). On review of a report by the single justice, we consider the merits of the underlying order. CUNA Mut. Ins. Soc’y, supra at 540, 544. The issue whether the court should recognize a union member-union privilege as implicit in G. L. c. 150E is a pure question of law. Thus, we accord “no deference to the judge’s decision” declining to recognize the privilege. See Barr Inc. v. Holliston, 462 Mass. 112, 114 (2012), quoting Sylvester v. Commissioner of Revenue, 445 Mass. 304, 308 (2005), cert. denied, 547 U.S. 1147 (2006) (reviewing interlocutory order reported for appellate review by judge of Superior Court). 2. Statutory scheme. We begin the analysis of the plaintiffs claim by reviewing the statutory language to determine if it reveals an unspoken legislative intent to create a union member-union privilege. General Laws c. 150E grants public employees of the Commonwealth, as defined therein, the right to bargain collectively over “wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.” G. L. c. 150E, § 2. As relevant here, it is a “prohibited practice for a public employer” to, among other things, (1) “[ijnterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter”; or (2) “[djominate, interfere, or assist in the formation, existence, or administration of any employee organization.” G. L. c. 150E, § 10 (a) (1), (2). Considering the statutory scheme as a whole, its essential purpose is to protect the right of public employees to organize and to protect unions and their members from intrusion or control by the employer in the collective bargaining context. To determine whether the Legislature intended that communications between a union member and a union representative be protected from disclosure to an employer in its defense against a civil action filed by an employee, “we look first to the language of the relevant statute, which is generally the clearest window into the collective mind of the Legislature.” Holmes v. Holmes, 467 Mass. 653, 659 (2014), citing Commonwealth v. Nanny, 462 Mass. 798, 801-802 (2012). “If the language of the statute is unambiguous, our function is to enforce the statute according to its terms.” Reading Co-op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 547-548 (2013), citing Massachusetts Community College Council MTA/NEA v. Labor Relations Comm’n, 402 Mass. 352, 354 (1988). We conclude that the privilege sought by the plaintiff is not implicit in G. L. c. 150E, § 10 (a) (1) and (2), because those provisions clearly are not intended to apply to a civil action. First, the dispute underlying the plaintiffs civil action is not related to “the formation, existence, or administration of any employee organization,” as protected in G. L. c. 150E, § 10 (a) (2). Although the plaintiff was president of her local union for six years, her lawsuit relates to allegedly discriminatory actions taken against her personally as an employee, not to matters encompassing union activity. Neither is a privilege implicit in § 10 (a) (1), which provides that a public employer may not “[ijnterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter' (emphasis added). The rights provided under c. 150E protect collective bargaining and “lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.” G. L. c. 150E, § 2. Where the plain and unambiguous language of § 10 (a) (1) restricts its application to the collective bargaining context, we cannot say that, in securing that right, the Legislature contemplated a necessity to protect the confidentiality of union member-union communications in a private lawsuit brought by the union member against the employer. Consistent with the statutory emphasis on protecting the right to collective bargaining, § 10 (a) (1) has been interpreted by the Massachusetts Labor Relations Commission to protect the confidentiality of communications between a union and its members in labor disputes. See Bristol County Sheriff’s Dep’t, 31 M.L.C. 6, 17 (2004) (employer prohibited from asking union members, during internal affairs investigations, “overly-broad questions about the means and methods by which the Union was organizing the upcoming picket” because such organization “clearly falls within the realm of concerted activities protected under [G. L. c. 150E, § 2]”). See also City of Lawrence & Lawrence Patrolmen’s Ass’n, 15 M.L.C. 1162, 1165-1166 (1988) (employer prohibited from demanding content of letter containing communications between union members and union administrator because subject matter protected whether written or oral). A parallel provision in the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (2012), has been interpreted similarly by the National Labor Relations Board (board). In Local 754, 258 N.L.R.B. 1230 (1981) (Cook Paint), the board ruled that compelled disclosure of communications between an employee and his union steward during the grievance process violated the prohibition against interfering, restraining, or coercing employees in the exercise of their collective bargaining rights. Id. at 1232, citing 29 U.S.C. § 158(a)(1). The communications sought in Cook. Paint related to an incident where an employee allegedly fell in a paint spill after notifying his union representative of the spill and being advised to return to regular duties while the representative sought out the floor supervisor. Id. at 1230. As a result of the incident, the employer decided to discharge the employee. Id. The board relied on the facts that the union representative’s involvement “arose solely as a result of his status as union steward,” and after the union filed a grievance on behalf of the employee, the employer specifically sought contemporaneous notes taken by the representative in his capacity of carrying out union functions. Id. at 1231-1232. In ruling that the employer impermissibly interfered with the employee’s collective bargaining rights by demanding the substance of the conversations during the grievance process, the board reasoned that “consultation between an employee potentially subject to discipline and his union steward constitutes protected activity in one of its purest forms.” Id. at 1232. The board specifically limited its ruling, emphasizing, “[Tjhis case does not mean that all discussions between employees and stewards are confidential and protected by the [National Labor Relations Act]. Nor does our decision hold that stewards are, in all instances, insulated from employer interrogation.” Id. Unlike proceedings that are directly connected to the collective bargaining context, the plaintiff here seeks a protective order in a civil lawsuit against her employer. Civil lawsuits are beyond the zone of protection for union rights contemplated in G. L. c. 150E. Therefore, the plain and unambiguous language of § 10 (a) (1) does not require that communications between union members and union representatives be protected from interference by an employer defending itself from an employee’s civil action. 3. Common-law privilege. Having concluded that there is no statutorily based privilege implicit in G. L. c. 150E, we now decline the plaintiff’s request to judicially create such a privilege. Under Massachusetts law, a litigant or witness may not rely on a privilege to withhold evidence in a legal proceeding except as recognized by the “constitution, statute, rules promulgated by the Supreme Judicial Court, or the common law.” See Mass. G. Evid. § 501 (2016). In the absence of a recognized privilege as set forth in § 501, this court has the power to create privileges, but “it is a power that we have exercised sparingly.” Babets v. Secretary of the Executive Office of Human Servs., 403 Mass. 230, 234 (1988), citing Three Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984). Privileges are exceptions to the general duty imposed on a person to be a witness, disclose information, and produce writings. Matter of the Enforcement of a Subpoena, 463 Mass. 162, 166 (2012). a. The plaintiff’s reliance on other jurisdictions. The plaintiff relies principally on a recent case, Peterson v. State, 280 P.3d 559 (Alaska 2012) (Peterson), in which the Supreme Court of Alaska recognized a broad union-member privilege based on language in the State’s Public Employment Relations Act. Id. at 564-565. Peterson goes substantially beyond other jurisdictions that have considered the matter, and is the only case we have located where a court has judicially recognized such a privilege for civil lawsuits without relying on a State statute specifically protecting the same. The Supreme Court of Alaska held that ‘“[a]ny attempt by the State to force disclosure of confidential communications between an employee and a union representative during a grievance proceeding would constitute an unfair labor practice” (emphasis in original). Id. at 565. The communications at issue in Peterson developed during a grievance proceeding, but when the union and the State were unable to resolve the issue, the employee filed a civil suit claiming wrongful termination. Id. at 561. The court created a broad union-member privilege after reasoning that the ‘“protection against forced disclosure of confidential union-related communications should not be lost if the grievance dispute is not resolved and the employee files a civil suit” because ‘“the strong interest in confidential union-related communications” would otherwise be undermined. Id. at 565. Other jurisdictions that have analyzed this issue have declined to judicially create privileges that would apply to matters outside of grievance proceedings or disciplinary investigations. The Supreme Court of New Hampshire, although recognizing that ‘“an employer engages in an unfair labor practice when it compels a union representative to disclose confidential communications with a union employee” during a disciplinary investigation, declined to create a privilege that would apply in the context of a grand jury proceeding. In re Grand Jury Subpoena, 155 N.H. 557, 560-561, 563 (2007). The court reasoned that the petitioner “failed to show that the union relationship is so highly valued by an ordered society that its confidences warrant protection even at the cost of losing evidence important to the administration of justice.” Id. at 563, quoting In re Grand Jury Subpoenas Dated January 20, 1998, 995 F. Supp. 332, 335 (E.D.N.Y. 1998). Likewise, a California court declined to recognize a union-member privilege. In American Airlines, Inc. v. Superior Court, 114 Cal. App. 4th 881, 891 (2003), the court concluded that determination of the “countervailing policy reasons why a union representative should not be compelled during civil litigation to disclose factual information obtained