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Illinois School Board Journal
May/June 2007

Fred B. Lifton is a founding principal and now serves "of counsel" for the school law firm of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. of Chicago, and has been negotiating union contracts on behalf of school boards for 37 years.

New school board members are sometimes perplexed at the secrecy that surrounds union negotiations. They see the value inherent in keeping the public fully informed as simply intuitive and the right thing to do.

And those intuitions are highly laudable most of the time.

However, practices associated with collective bargaining often are not intuitive. In fact, where union bargaining is concerned, what our intuition tells us is "right" typically turns out to be wrong in terms of what supports the public interest.

Keep in mind that the public interest usually depends more on terms of the final contract than it does upon any aspect of the bargaining process — up to and including a strike that temporarily closes the schools. Parents whose children are at home because of a strike will find that hard to believe. But a strike is temporary; key contractual provisions are frequently forever.

Considering that "forever" factor, seven reasons come to mind to support confidentiality during the bargaining process:

1. The process of collective bargaining is usually viewed as administrative work, which is generally not thought of as public work. However, the school board must discuss and establish key parameters — such as how much money to make available for compensation next year — and then must publicly approve the negotiated contract. It also is appropriate for the school board to share its bargaining goals and values with the public in advance of negotiations. But publicizing the board's bottom line on salaries, for example, would make bargaining a very one-sided proposition and potentially represent bad faith bargaining.

2. Illinois law requires public bodies to meet in public and seeks to make their work as transparent to citizens as possible. But the same law exempts negotiations with public employee unions. The reason: conventional wisdom recognizes that the public interest is best served by confidentiality in the bargaining process.

3. In some states, union bargaining in public is required by law. In addition, some communities have tried open bargaining just as an experiment in good public relations. In the opinion of professionals on both sides of the bargaining table, such practices have failed. Even apparent successes are illusions that result from secret one-on-one discussions that produce backroom agreements. (Off-the-record exchanges between chief negotiators are often essential in reaching agreement even in closed negotiations.)

4. Public bargaining makes it difficult — even impossible — for a school board or a union to back down from its initial demands. Reaching agreement through bargaining depends upon the ability to compromise or to find new ways to meet organizational needs. It is hard to compromise without losing face once demands are made public. For that reason, it is almost always counterproductive to publicly disclose either the union's proposals or the school board's response to those proposals.

5. Public bargaining invites grandstanding on both sides of the table and delays in reaching agreement on a contract.

6. Bargaining frequently involves the airing of dirty laundry. In public bargaining, either the laundry gets aired in public or, more likely, never gets aired at all.

7. The leaking of information from bargaining sessions may be regarded as an unfair labor practice if the leak gets in the way of good faith bargaining and movement toward agreement on a contract.

The public's "right to know" must be balanced against the public's interest in getting a union contract that treats public employees equitably without putting the school district into financial difficulty.

Therefore, when it comes to collective bargaining, providing a big-picture overview of goals and values during negotiation is better than letting the public watch every detail of the process.