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08/05/87 Petitioner- v. Homer Community

August 5, 1987




514 N.E.2d 465, 160 Ill. App. 3d 730, 112 Ill. Dec. 802 1987.IL.1121

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. JUSTICE LUND, specially Concurring. JUSTICE McCULLOUGH, Dissenting.


This case arises under the recently enacted Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.). In the heat of a labor dispute between respondent Homer Community Consolidated School District No. 208 (school district) and the duly constituted bargaining unit for its teachers, intervenor Homer Association of Teachers, IEA-NEA (Association), and during a resultant strike by the Association, litigation has resulted from charges and countercharges of unfair labor practices. During the course of these proceedings, the school district has been ordered to give virtually unqualified discovery to the Association of the matters that have transpired in the closed-session meetings of the governing board of the school district in which its strategy in regard to the negotiations and the strike were discussed. The school district has been ordered to produce for the Illinois Educational Labor Relations Board (Board) various notes and minutes concerning those meetings and to present the members of its governing board to testify concerning matters transpiring at those meetings.

We recognize that the Association indicated some willingness for some limitations on the discovery and the court stated it would consider making some restrictions, but the school district insisted on a complete privilege of exclusion being applied to the transactions involved. However, the extent of the discovery granted was virtually unprecedented as far as any authority cited to us would indicate. Because of the recentness of the legislation involved, the lack of precedent on point, and the collateral consequences of permitting the unqualified discovery given, we hold that the school district did not waive any right to have restrictions placed on any discovery that might be allowed. We also take the extraordinary step of holding that the information sought was subject to a qualified privilege which must be applied on remand.

Between September 1986 and January 1987, the Association and the school district filed various unfair labor practice charges against each other with the Board pursuant to section 15 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1715). The strike began on October 17, 1986, and continued in existence during all times pertinent. Acting further pursuant to section 15, the Board considered the charges and issued three complaints of unfair labor practice against each of the parties. The complaints were set for a consolidated hearing, but prior to the hearing, the Association filed a request for production of documents upon the school district, and it filed objections. At the hearing, the school district filed a motion in limine asking that the Association be directed not to attempt to elicit evidence concerning the school district's closed-session deliberations attendant to bargaining. Acting pursuant to section 15, the Board's hearing officer denied the school district's objections and request for motion in limine. A member of the school district's governing board refused to testify concerning matters transpiring at closed sessions when the school district's bargaining strategy was being discussed. The Board's hearing officer ordered issuance of a subpoena duces tecum for the documents requested, and the school district refused to comply.

On February 25, 1987, the Board filed suit in the circuit court of Champaign County seeking enforcement of the Board's subpoena and an order requiring the members of the school district's governing board to testify concerning matters transpiring at the closed meetings, all as also authorized by section 15 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1715). The Association was apparently permitted to intervene. After a hearing, the circuit court entered an order on February 27, 1987, ordering the production of the documents and the testimony of the witnesses. The school district has appealed. We reverse and remand for a rehearing in the circuit court pursuant to directions we will later explain.

The documents requested by the Association, to which the school district objected, are as follows:

"(1) [All] bargaining notes or minutes which have been taken by the District, (2) all bargaining proposals made by the [Association] or the District upon which the District made any mark or notation, (3) all documents (excluding bargaining notes and proposals) which relate to the District's bargaining objections [ sic ], strategy or tactics, (4) all documents which relate to any plan or action of the District in the event of a strike by the [Association] of the effectuation or implementation of any such plan or action, [and] (5) all documents which relate to any Discussion or communication by the District concerning bargaining, any grievances which were filed by the [Association] or any of its members since April 10, 1986, or the strike by the [Association]."

The information sought by the Association relates to possible statements or proposals made or tentative agreements reached in closed meetings where bargaining strategy was discussed which might shed light on allegations that the school district was not bargaining collectively in good faith. Good-faith bargaining is required of educational employers' and employees' bargaining representatives by section 10 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1710), and the failure to do so is designated an unfair labor practice by sections 14(a)(5) and (b)(3) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1714(a)(5), (b)(3)).

The problem presented here is a phase of the inherent conflict between the usually predominant public policy of maintaining court and administrative proceedings as forums for the determination of the truth and public policy which for some reason favors that certain matters be kept in confidence (see McCormick, Evidence sec. 72(a), at 170 (3d ed. 1984)). The public policy to be served by suppressing evidence here is that of enabling parties to adversarial collective bargaining to plan a strategy without having it revealed to their adversaries. This confidentiality is particularly necessary during the course of the dispute, but it is also important afterwards because of future bargaining which may take place between the parties. Of most importance is the ability of each of the sides to keep confidential the extent to which it would be or might have been willing to make concession. Confidentiality is also important because it enables the persons involved to speak freely about their adversaries without the damage to future relationships that might result from disclosure of those statements.

The Association and the Board contend that school districts are given substantial protection from undue disclosure requirements because: (1) before the Board can issue a complaint, a showing must be made that the charge of unfair labor practice has substance; and (2) only material relevant to the complaint is subject to discovery.

Section 15 of the Act states in part:

"A charge of unfair labor practice may be filed with the Board by an employer, an individual or a labor organization. If the Board after investigation finds that the charge states an issue of law or fact, it shall issue and cause to be served upon the party complained of a complaint which fully states the charges . . .." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 1715.)

The language requiring the charge to state "an issue of law or fact" does not place any substantial burden upon the one preparing the charge. The statute does require an investigation, but even if that wording indicates that the Board must find some evidence of the existence of an unfair labor practice, such a situation is likely to exist in the heat of most strike situations. Notably, here, the Board found grounds for three complaints against each of the parties.

As has been indicated, the thrust of the complaints against the school district is that it did not bargain in good faith. When that is in issue, all of the circumstances of the bargaining have been said to have some relevancy. (Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 505 N.E.2d 418; see 48 Am. Jur. 2d Labor & Labor Relations sec. 1028 (1979).) Thus, because of the wide scope of relevancy, the tension between the truth-seeking process and the need for confidentiality is at a high level here. If a broad interpretation of relevancy is the only qualification for discovery here, the school district's deliberations of strategy will receive little protection.

The school district seeks to protect its bargaining strategy from being disclosed by reliance on Illinois legislation concerning the conduct of public meetings and access to public records. It maintains that this legislation makes information as to matters occurring in executive session of its meeting privileged from discovery for litigation.

Section 2 of the Open Meetings Act requires school boards, as well as other governmental bodies, to conduct their meetings open to the public with certain exceptions. One of these exceptions is for "collective negotiating matters between public employers and their employees or representatives." (Ill. Rev. Stat. 1985, ch. 102, par. 42.) Section 2.06 of the Open Meetings Act then makes the following requirements in regard to the keeping and disclosure of minutes of public meetings:

"(a) All public bodies shall keep written minutes of all their meetings, whether open or closed. Such minutes shall include, but need not be limited to:

(1) the date, time and place of the meeting;

(2) the members of the public body recorded as either present or absent; and

(3) a general description of all matters proposed, discussed, or decided, and a record of any votes taken.

(b) The minutes of meetings open to the public shall be available for public inspection within 7 days of the approval of such minutes by the public body. Minutes of meetings closed to the public shall be available only after the public body determines that it is no longer necessary to protect the public interest or the privacy of an ...

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