Board of Education of Glenview Community Consolidated School District No. 34 v. Illinois Education Labor Relations Board ( 2007 )

NO. 4-06-0560 Filed: 6-25-07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE BOARD OF EDUCATION OF GLENVIEW ) Direct Appeal from
COMMUNITY CONSOLIDATED SCHOOL ) Illinois Educational
DISTRICT NO. 34, ) Labor Relations
Petitioner-Appellant, ) Board
v. ) No. 2006-RS-0002-C
THE ILLINOIS EDUCATIONAL LABOR )
RELATIONS BOARD; VICTOR E. BLACKWELL, )
Executive Director; and GLENVIEW )
PROFESSIONAL ASSOCIATION, IEA/NEA, )
Respondents-Appellees. )
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
Petitioner, the Board of Education of Glenview Commu-
nity Consolidated School District No. 34 (District), appeals from
a March 2006 final order of respondent Illinois Educational Labor
Relations Board (Board), in which the Board determined that the
position of administrative assistant to the director of technol-
ogy (technology administrative assistant) in the District was
included in a bargaining unit represented by respondent Glenview
Professional Association, IEA/NEA (Association). We affirm the
Board's order.
I. BACKGROUND
In September 2005, the Association filed a petition
with the Board, seeking to add the technology administrative
assistant position to a bargaining unit represented by the
Association. Later that month, the District filed a response,
arguing that the technology administrative assistant position was
"confidential," pursuant to the Illinois Educational Labor
Relations Act (115 ILCS 5/2(n) (West 2004)).
At an October 2005 hearing on the petition conducted by
an administrative law judge (ALJ), the evidence showed the
following. At the end of the 2003-04 school year, the District
created a new full-time position of technology administrative
assistant. That position combined some of the duties of a former
full-time network technician with the duties of a former part-
time administrative assistant. The District's technology depart-
ment also includes the director of educational technology (Brian
Engle), the network manager (Kelly Conwell), and four network
engineers. The network engineers report to work at individual
school buildings and are responsible for day-to-day troubleshoot-
ing in those buildings. The technology administrative assistant
position reports to work in the District's administrative build-
ing, along with the director of educational technology and the
network manager.
The job description for the technology administrative
assistant indicates that the purpose of the position is "to
provide administrative and secretarial support to ensure the
smooth operations of school[-]related and business functions" of
the District. The job description also lists the following job
- 2 -
responsibilities: (1) provide support to the director of educa-
tional technology, network manager, and network engineers; (2)
coordinate technology purchases; (3) coordinate inventory of
software and hardware; (4) maintain the District's voice mail, e-
mail, and telephone systems; (5) coordinate telephone system
service activities; (6) coordinate new staff members' access to
the District's network and PowerSchool (a software program that
allows the District to track student attendance and report
grades); (7) maintain group e-mail lists; (8) provide support
with computer-software applications; (9) develop and download
data sets for certain assessment systems; and (10) assist in the
technology budgeting process. The job description also indicates
that the technology administrative assistant should have the
"[a]bility to handle confidential information," but it does not
specify the nature of such confidential information.
Marilyn Miller testified on the District's behalf that
she had been the District's executive director of human resources
for 12 years, until her retirement in June 2005. The technology
administrative assistant position was first advertised prior to
the start of the 2004-05 school year. An individual was hired
and held that position from September 2004 through December 2004.
Margaret Coons was then hired as the technology administrative
assistant.
As the executive director of human resources, Miller's
- 3 -
responsibilities included hiring, making tenure recommendations,
overseeing applications and evaluations, addressing salary
issues, working with labor-relations groups, and serving on the
labor-relations management committee. During the last round of
labor negotiations with the Association, Miller was on the
District's negotiating team. Miller and her administrative
assistants regularly used their computers to draft policies and
salary proposals, saved those documents to the human-resources
shared folder, and e-mailed documents and messages to other
administrators regarding negotiations and grievance settlements.
She also attached documents to her e-mails to share with school-
board members and the District's attorneys. Miller did not
recall ever personally showing any confidential labor-relations
documents to the technology administrative assistant or to the
predecessor to that position--namely, the former full-time
network technician.
Engle testified on the District's behalf that he had
been the director of educational technology for about one year.
The director of educational technology is responsible for the
District's technology department, educational technology, and
assuring that technology is being appropriately integrated into
the classrooms. The technology administrative assistant is one
of three technology employees in the administration building who
perform troubleshooting duties. The network manager is responsi-
- 4 -
ble for the District's entire network, while the network engi-
neers are responsible for "the day-to-day troubleshooting work on
the computers." In addition to performing "clerical" duties, the
technology administrative assistant provides "level[-]one"
technology support to staff members in the administrative build-
ing. Engle described level-one troubleshooting as "quick trou-
bleshooting" involving "easy issues." The technology administra-
tive assistant also adds users to the District's network, which
involves using a program called WorkGroup Manager to create new
user accounts, maintain user names and passwords, and grant
access to e-mail groups. The technology administrative assistant
is one of eight staff members who possess the master password
that allows for computer troubleshooting. If Engle and Conwell
are both out of the administrative building, staff members could
ask Coons to assist them in retrieving lost documents. To do so,
she would be expected to use the master password to try to find
the document on the server, desktop, or hard drive. Engle stated
that when he and Conwell are not in their offices, they are
available via cellular phone or can be contacted through the help
desk. When asked if Coons uses the master password to retrieve
lost documents "in the regular course of her job duties," Engle
replied as follows: "I don't know the percentage or the amount
because she would only do it if [I was] not in the building."
Engle also stated that Coons "could be" expected to retrieve or
- 5 -
repair files in which collective-bargaining information is
stored. Coons "might come across" a labor-relations document
when (1) a staff member is locked out of a file and Coons uses
WorkGroup Manager to reestablish the staff member's permission to
access the file or (2) she is performing "face-to-face trouble-
shooting." The technology administrative assistant is not
responsible for "system tape backups."
Engle also testified that the technology administrative
assistant is required to maintain confidentiality with respect to
network security and any information encountered while trouble-
shooting. If Coons were to access a staff member's e-mail
account, that staff member would know because Coons would be
required to change the staff member's password to access the
account. However, if Coons were working at a staff member's
workstation, no one would know whether she accessed an e-mail or
other document. Engle stated that Coons had never seen a confi-
dential labor-relations document.
Jill Engel testified on the District's behalf that she
had been the District's director of human resources since July
2005. In that capacity, she oversees all employment matters for
the District. She is also on the labor-relations committee,
where she deals with issues related to the formation of the
District's policies and procedures. The next round of labor
negotiations with the Association was scheduled to begin in
- 6 -
February 2006, and Engel planned to be a member of the negotiat-
ing team. She anticipated using her computer to create documents
containing proposals and analyses on economic issues, saving
those documents to a subfolder within the shared human-resources
folder. Engel also expected to use e-mail to communicate with
other administrators regarding labor-relations issues.
Engel also testified that she considered the technology
administrative assistant position more technology related than
secretarial or administrative. Engel considered Coons the "go-
to" person for technology-related issues in the administration
building. However, she did not know how much time Coons spent
performing troubleshooting duties. Engel preferred not to ask
Engle or Conwell for technology-related assistance because it
takes them away from their duties in the individual schools.
However, if Coons is not available, she asks either Engle or
Conwell for assistance. On one occasion when Coons helped Engel
with an e-mail issue, the subject-matter lines of Engel's e-mails
were displayed. Engel could "almost guarantee" that some of
those e-mails had subject matter that "related to sensitive
issues that could be related to" labor-relations issues.
Coons testified on the Association's behalf that in
January 2005, she began working in the technology administrative
assistant position. The majority of her job duties involve
administrative duties, such as obtaining price quotes on
- 7 -
computer-related equipment and software, placing orders per
requests from the network manager, keeping inventory of hardware
and software products, and calling outside vendors for needed
computer support. She has access to the technology budget and
the technology accounts, but the business office must provide her
with access to other accounts. In addition, Coons is responsible
for "add[ing] users to the District's network" by creating new
user accounts and assigning to the new users various computer
privileges, such as e-mail accounts and access to group e-mails
and group folders. After assigning a new staff member an e-mail
username and password, Coons instructs the staff member to change
his password. Coons would then be required to "go in and actu-
ally change the password for that individual" if she wanted to
access that staff member's e-mail account. Coons' job entails
similar responsibilities for the voice-mail system. Coons has
never been asked to read any staff member's e-mails.
Coons also testified that the majority of the trouble-
shooting duties are performed by the network manager. Coons has
never used the District's remote desktop to access computer files
or drafts of documents, and she does not know how to do so.
Instead, the network manager performs such duties. Coons stated
that if a staff member has problems with her e-mail password,
Coons "wouldn't even venture to try and help." Instead, she
would direct that staff member to the network manager, who "knows
- 8 -
the ins and outs of e-mail." Nor has Coons ever been assigned to
look at any labor-relations materials. The only confidential
material that may have "ever crossed [her] desk" was students'
standardized test scores. Coons has taught other staff members
how to make charts using the Excel software program and had given
Engel access to an e-mail group that included staff members for
the primary grades. Giving Engel that access did not require
Coons to enter Engel's e-mail account or view any of Engel's e-
mails. Instead, it required only that Coons enter the network
and "pull[] a name from one area of the screen into another."
Coons acknowledged that in assisting a staff member with a
computer-related problem, it is possible that a document could be
opened in front of her.
In November 2005, the ALJ issued a recommended decision
and order dismissing the Association's petition. Glenview
Professional Ass'n, 21 Pub. Employee Rep. (Ill.) par. 201, No.
2006-RS-0002-C (ALJ decision, Illinois Educational Labor Rela-
tions Board) (November 16, 2005). In so doing, the ALJ deter-
mined that the position of technology administrative assistant
was a "confidential employee" under section 2(n)(ii) of the Act
(115 ILCS 5/2(n)(ii) (West 2004)). Later that month, the Associ-
ation filed exceptions to the ALJ's decision, and in December
2005, the District filed a response.
In March 2006, the Board issued an order reversing the
- 9 -
ALJ's decision, upon determining that the position of technology
administrative assistant did not constitute a "confidential
employee" under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii)
(West 2004)). Glenview Professional Ass'n, 22 Pub. Employee Rep.
(Ill.) par. 37, No. 2006-RS-0002-C (Illinois Educational Labor
Relations Board) (March 23, 2006) (hereinafter Glenview Profes-
sional Ass'n, 22 Pub. Employee Rep. (Ill.) par. 37). In June
2006, the Board certified that Coons had chosen to be represented
by the Association.
This appeal followed.
II. ANALYSIS
A. The Act and the Standard of Review
The purpose of the Act is to regulate labor relations
between educational employers and employees for their benefit as
well as that of the general public. 115 ILCS 5/1 (West 2004);
Board of Education of Community Consolidated High School District
No. 230, Cook County v. Illinois Educational Labor Relations
Board, 165 Ill. App. 3d 41, 56, 518 N.E.2d 713, 722 (1987).
Section 2(b) of the Act defines an "educational employee" as "any
individual, excluding *** confidential *** employees" (115 ILCS
5/2(b) (West 2004)). Section 2(n)(ii) of the Act defines a
"confidential employee," in pertinent part, as one who, "in the
regular course of his or her duties has access to information
relating to the effectuation or review of the employer's
- 10 -
collective[-]bargaining policies" (115 ILCS 5/2(n)(ii) (West
2004)). Thus, employees that are deemed "confidential" "are
excludable from labor organizations which otherwise represent
those employees and act to protect their rights." District No.
230, 165 Ill. App. 3d at 56, 518 N.E.2d at 722. The
confidential-employee exclusion "is designed to protect against
premature disclosure of bargaining positions" (District No. 230,
165 Ill. App. 3d at 61, 518 N.E.2d at 726) by limiting the
bargaining association's membership to those employees who do
not, in the regular course of their jobs, have access to "'infor-
mation concerning matters arising from the collective[-]bargain-
ing process'" (District No. 230, 165 Ill. App. 3d at 63, 518
N.E.2d at 727, quoting City of Burbank, 1 Pub. Employee Rep.
(Ill.) par. 2008, No. S-RC-45, at 44 (Illinois State Labor
Relations Board, June 6, 1985)).
Under section 2(n)(ii)'s "access test," the "inquiry is
limited to whether the employee in question has unfettered access
ahead of time to information pertinent to the review or effectua-
tion of pending collective-bargaining policies." District No.
230, 165 Ill. App. 3d at 62, 518 N.E.2d at 726. The information
must be confidential, and the employee's access to the informa-
tion must be authorized. District No. 230, 165 Ill. App. 3d at
62, 518 N.E.2d at 726; see Chief Judge of the Circuit Court v.
American Federation of State, County & Municipal Employess,
- 11 -
Council 31, 153 Ill. 2d 508, 523, 607 N.E.2d 182, 189 (1992)
(discussing analogous statutory language). Confidential informa-
tion includes "'the employer's strategy in dealing with an
organizational campaign, actual collective[-]bargaining proposals
and information relating to matters dealing with contract admin-
istration.'" District No. 230, 165 Ill. App. 3d at 63, 518
N.E.2d at 727, quoting City of Burbank, 1 Pub. Employee Rep.
(Ill.) par. 2008, No. S-RC-45, at 44 (Illinois State Labor
Relations Board) (June 6, 1985). Because the statutory exclusion
precludes the confidential employee from exercising the panoply
of rights guaranteed by the Act, courts must narrowly interpret
the exclusion. One Equal Voice v. Illinois Educational Labor
Relations Board, 333 Ill. App. 3d 1036, 1042, 777 N.E.2d 648, 653
(2002). The party asserting the exclusion has the burden of
producing sufficient evidence to support its position. See
County of Cook v. Illinois Labor Relations Board, 369 Ill. App.
3d 112, 123, 859 N.E.2d 80, 89 (2006) (discussing analogous
statutory language and holding that "[a]n employer who wishes to
exclude an employee from a bargaining unit because the employee
is a confidential employee bears the burden of proving that
fact").
The parties agree that the Board's determination as to
whether the facts establish that an employee is a confidential
employee as defined by statute will not be reversed unless that
- 12 -
determination was clearly erroneous. Chicago Teachers Union v.
Illinois Educational Labor Relations Board, 344 Ill. App. 3d 624,
637, 800 N.E.2d 475, 484 (2003); see also One Equal Voice, 333
Ill. App. 3d at 1041, 777 N.E.2d at 653 (because the Board's
determination whether a position is confidential "is best charac-
terized as a mixed question of law and fact," that determination
should be reviewed under the clearly erroneous standard). The
clearly erroneous standard is "extremely deferential." Chicago
Teachers Union, 344 Ill. App. 3d at 638, 800 N.E.2d at 485.
Thus, an administrative agency's decision will be reversed only
if the reviewing court, based on the entire record, is "'left
with the definite and firm conviction that a mistake has been
committed.'" AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 393, 763 N.E.2d 272, 280-81
(2001), quoting United States v. United States Gypsum Co., 333
U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948); see
also Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001), quoting
Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866
F.2d 228, 233 (7th Cir. 1988) (describing the clearly erroneous
standard as follows: "'[M]ore than just maybe or probably wrong;
it must *** strike us as wrong with the force of a five-week-old,
unrefrigerated dead fish"). Nonetheless, the clearly erroneous
standard does not mean that a reviewing court "must blindly defer
to the agency's decision." AFM Messenger Service, 198 Ill. 2d at
- 13 -
395, 763 N.E.2d at 282.
B. The Board's Prior Decisions Interpreting
Section 2(n)(ii)'s Access Test
In Woodland Community Unit School District 5, 16 Pub.
Employee Rep. (Ill.) par. 1026, No. 99-UC-0005-2 (Illinois
Educational Labor Relations Board) (February 1, 2000) (hereinaf-
ter Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026), the
Woodland Education Association sought to add a newly created
position of technology coordinator to the bargaining unit the
Association represented. The job description for that position
provided that one of the coordinator's "essential duties and
responsibilities" was to maintain strict confidentiality with
respect to "information relating to *** the effectuation or
review of the [school district's] collective[-]bargaining poli-
cies." Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-
79. The technology coordinator was responsible for the security,
maintenance, and repair of the school district's computers. The
coordinator had access to all of the school district's files and
backup system and had authority to open any and all computer
files to make sure that they had not been corrupted and perform
repairs. To perform maintenance and repair functions, the
coordinator often had to access a file, which was then displayed
on a computer screen. The evidence showed that once a file was
actually displayed on a screen, "it would be virtually impossible
not to read the document displayed." Woodland, 16 Pub. Employee
- 14 -
Rep. (Ill.) par. 1026, at IX-80. The technology coordinator
could and actually did access all files with or without the
superintendent's direction. The coordinator’s access to the
superintendent’s files, which contained collective-bargaining
information, could not be detected. The technology coordinator
was the only employee who was assigned to maintain all network
user names and passwords and who was capable of reading backup
tapes of the school district's computer system. The Board
determined that the technology coordinator was a confidential
employee under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii)
(West 1998)). The Board reasoned that the technology coordinator
had access to confidential collective-bargaining information "in
the regular course" of her duties. In addition, the Board
emphasized that when addressing cases involving computer-technol-
ogy related positions, it would "decide each representation case
on the basis of the facts presented in that case alone." Wood-
land, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-81.
In Lake County Area Vocational System, 20 Pub. Employee
Rep. (Ill.) par. 5, No. 2003-UC-0003-C (Illinois State Labor
Relations Board) (January 20, 2004) (hereinafter Lake County Area
Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5), the
Board clarified its decision in Woodland. The Board stated that
when deciding unit-clarification petitions involving employees
who are responsible for the operation and maintenance of an
- 15 -
employer's computer system, the Board would consider the follow-
ing factors: (1) whether evidence exists of "actual access to
confidential collective[-]bargaining information in the regular
course of duties," (2) the job description of the position at
issue, and (3) the employee's day-to-day activities. Lake County
Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, at
32. The Board also stated that "[w]here a position has existed
for an amount of time, [the Board] will heavily weigh evidence of
actual access to confidential labor relations material as part of
that individual’s job." Lake County Area Vocational System, 20
Pub. Employee Rep. (Ill.) par. 5, at 32. The Board further noted
that it would closely scrutinize cases in which multiple techni-
cians handle confidential information.
C. The Board's Decision in This Case
The District argues that the Board's determination that
the position of technology administrative assistant did not
constitute a "confidential employee" under section 2(n)(ii) of
the Act (115 ILCS 5/2(n)(ii) (West 2004)) was clearly erroneous.
We disagree.
In determining that the position of technology adminis-
trative assistant did not constitute a confidential employee
under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West
2004)), the Board stated, in pertinent part, the following:
"Under the three-step test in Lake
- 16 -
County, the [technology administrative assis-
tant] is not a confidential employee. First,
the facts do not establish Coons' actual
access to confidential collective[-]bargain-
ing information in the regular course of her
duties. Unlike the [t]echnology
[c]oordinator in Woodland, it has not been
demonstrated that Coons accesses all files to
maintain the computer system and ensure that
it is operating properly. The evidence es-
tablishes only that Coons gives other employ-
ees access to the District's computer system,
and that documents that Coons might encounter
while troubleshooting, retrieving[,] or re-
pairing them could include labor[-]relations
documents. The District has not demonstrated
that giving access to a computer system in-
volves review of the documents contained in
that system. *** Miller *** admitted that
she had not shown Coons or the employee in
the eliminated [n]etwork [t]echnician's posi-
tion, who also engaged in technology trouble-
shooting and whose position was incorporated
into Coons' position, any labor[-]relations
- 17 -
documents.
Moreover, the [Board] stated in Lake
County that an employee will not be consid-
ered confidential when his/her access to
confidential information is incidental to
his/her primary duties, like that of a custo-
dian emptying a superintendent's wastebasket.
Here, Coons testified that she does not pay
attention to documents when she is trouble-
shooting. This demonstrates that reading the
documents is not an inherent part of her
troubleshooting duty, but is no more required
than a custodian is required to read the
documents in the wastebasket that he/she is
emptying. Unlike in Woodland, the District
did not provide evidence that Coons' duties
require her to read the documents that she is
troubleshooting. Thus, contrary to the Dis-
trict's argument, any access of Coons to
confidential labor relations information
would result from chance, rather than being
inherent in the functions of her position.
The District argues that it should not
be required to establish that Coons has actu-
- 18 -
ally seen confidential information. In re-
quiring that the District establish Coons'
actual access to confidential collective[-]
bargaining information in the regular course
of her duties, we do not require the District
to establish that Coons has actually seen
such information, but only that real and more
than incidental access will occur in the
regular course of her duties.
The District argues that Coons has the
unfettered ability to access information on
the District's computer network at will, and
that she can access files saved locally on a
computer's hard drive. The District asserts
that this access includes unfettered access
ahead of time to confidential labor[-]rela-
tions information. However, unlike the
[t]echnology [c]oordinator in Woodland, there
is no evidence that Coons has been given the
responsibility of accessing all files in
order to maintain the computer system. The
District has not demonstrated that for Coons
to explore files she has not been specifi-
cally asked to work on would be authorized or
- 19 -
in the regular course of her duties. Coons'
ability to see the descriptive titles of
subfolders, files[,] and e[-]mails does not
establish authorization to view the documents
themselves.
The District also argues that a reason-
able expectation existed that Coons would be
placed in close proximity to and would have
access to confidential collective[-]bargain-
ing information when negotiations began in
February 2006. However, Coons' duties would
involve such access only in that documents
that she might encounter while troubleshoot-
ing, retrieving[,] or repairing them could
include labor[-]relations documents. The
District did not provide evidence that Coons'
duties would require her to read the docu-
ments that she would be troubleshooting.
Thus, even during the February 2006 negotia-
tions, Coons would not have authorized access
to confidential collective[-]bargaining in-
formation in the regular course of her du-
ties.
In addition, the District argues that
- 20 -
the fact that Coons' access to confidential
information may occur sporadically is of no
consequence to her status as a confidential
employee. We recognize that, when it occurs
in the regular course of an individual's
duties, sporadic access to confidential
collective[-]bargaining information may be
sufficient to establish confidential status.
See Board of Education of Plainfield Commu-
nity Consolidated School District No. 202 v.
IELRB, 143 Ill. App. 3d 898, 493 N.E.2d 1130
(4th Dist. 1986). However, we do not find
here that sporadic access to confidential
collective[-]bargaining information would be
insufficient to establish confidential sta-
tus. Rather, we require that access to con-
fidential collective[-]bargaining information
be actual and in the regular course of the
disputed individual's duties. In sum, we
conclude that the facts in this case do not
establish that the [technology administrative
assistant] has actual access to confidential
collective[-]bargaining information in the
regular course of her duties.
- 21 -
Second, Coons' job description does not
indicate that she is to have access to confi-
dential labor[-]relations information. While
her job description states that her position
requires the 'ability to handle confidential
information,' it does not elaborate as to the
nature of the confidential information. This
is unlike the [t]echnology [c]oordinator's
job description in Woodland, which specified
that the information that the [t]echnology
[c]oordinator was expected to keep confiden-
tial related to the 'the effectuation or
review of the District's collective[-]bar-
gaining policies. ***
Third, an analysis of Coons' day-to-day
activities does not demonstrate that she is a
confidential employee. Coons' day-to-day
activities consist of performing various
administrative duties and providing technol-
ogy support for the District administrative
office. Within the realm of providing tech-
nology support, her day-to-day activities
included setting up and helping with computer
access, providing support for user accounts,
- 22 -
troubleshooting, helping other employees who
ask for assistance in operating their soft-
ware, maintaining the [e-]mail system, and
coordinating and maintaining the District
telephone system. Unlike the [t]echnology
[c]oordinator in Woodland, Coons is not re-
sponsible for system tape back[]ups. The
District has not made a sufficient showing
that these duties entail authorized access to
confidential labor[-]relations information."
Glenview Professional Ass'n, 22 Pub. Employee
Rep. (Ill.) par. 37, at 131-32.
We have carefully reviewed the evidence presented under
the appropriate standard of review, as we are required to do.
Having done so, we are not "'left with the definite and firm
conviction that a mistake has been committed.'" AFM Messenger
Service, 198 Ill. 2d at 393, 763 N.E.2d at 280-81, quoting United
States Gypsum Co., 333 U.S. at 395, 92 L. Ed. at 766, 68 S. Ct.
at 568. The evidence showed that in the course of her regular
duties, the technology administrative assistant theoretically
could have access to confidential collective-bargaining informa-
tion. However, the District presented no evidence showing that
the technology administrative assistant (or the predecessor
network technician, for that matter) had actual authorized,
- 23 -
unfettered access to such confidential information in the course
of her regular duties. In addition, the evidence showed that the
technology administrative assistant's day-to-day activities
predominantly involved general administrative duties. To the
extent those day-to-day activities involved technology support
and computer troubleshooting, such duties did not involve autho-
rized, unfettered access to confidential collective-bargaining
information. Instead, the evidence showed that, at most, the
technology administrative assistant had been exposed to the names
of folders and subfolders and e-mail subject lines that may have
suggested that the underlying content of the documents related to
confidential bargaining information. The evidence further showed
that while the technology administrative assistant's job descrip-
tion indicates that the person occupying the position should have
the "'ability to handle confidential information'" (Glenview
Professional Ass'n, 22 Pub. Employee Rep. (Ill.) par. 37, at
132), it does not specify the nature of such confidential infor-
mation.
We thus conclude that the Board's decision that the
technology administrative assistant position did not constitute a
confidential employee under section 2(n)(ii) of the Act was not
clearly erroneous.
In so concluding, we reject the District's contention
that the Board "applied a new 'actual access' standard." In-
- 24 -
stead, the Board's written decision shows that the Board simply
applied the three-step test outlined in Woodland (including the
"actual[-]access" test) to the facts of this case. We agree with
the Board that the way it defined "actual access"--namely, as
real and more than incidental access *** occur[ring] in the
regular course of her duties (Glenview Professional Ass'n, 22
Pub. Employee Rep. (Ill.) par. 37, at 131)--was consistent with
prior decisions of the Board and the National Labor Relations
Board that rejected claims that employees were confidential
because they had occasional, irregular, or potential access to
collective-bargaining material. See, for example, In re
Bethlehem-Sparrows Point Shipyard, Inc., 65 N.L.R.B. 284, 287
(1947) (rejecting an employer's assertion that photostat opera-
tors were confidential employees because "they photostat, on
occasion, matters from the general manager's office which pertain
to confidential labor relations data"); District No. 230, 165
Ill. App. 3d at 61-63, 518 N.E.2d at 726-27 (in which this court
affirmed the hearing officer's determination that the secretaries
at issue were not confidential employees, even though evidence
showed that the secretaries had access to employee personnel
files and had acted "in a confidential capacity" regarding
grievances).
We also reject the District's contention that the Board
acted inappropriately when it heavily weighed the actual access
- 25 -
to collective-bargaining material in this case. According to the
District, the technology administrative assistant position was
newly created, similar to the technology coordinator position in
Woodland. When the position at issue is newly created, actual
access to confidential labor-relations information should not be
given much weight, especially when labor negotiations had not
taken place during the short time that the position existed.
Unlike the newly created position in Woodland, which had existed
for only four months at the time of the hearing in that case, the
technology administrative assistant position here had existed and
been staffed for more than a year before the October 2005 hearing
on the petition. We recognize that the Board in Lake County did
not specifically define what it means for a position to have
"existed for an amount of time." Lake County Area Vocational
System, 20 Pub. Employee Rep. (Ill.) par. 5, at 32. However,
whatever that phrase means, we conclude that the Board did not
act inappropriately by giving weight to the technology adminis-
trative assistant position's actual access to collective bargain-
ing material.
We further reject the District's contention that the
Board arbitrarily applied "greater scrutiny" in this case based
on its decision in Lake County, in which the Board noted that it
would scrutinize cases in which multiple technicians handle
confidential information. In this case, the District claimed
- 26 -
that all eight of its technical employees who possess the master
password constitute confidential employees under the Act. In
addition, the evidence showed that (1) Engle and Conwell are
principally responsible for troubleshooting computer problems in
the administration building; (2) both Engle and Conwell have
offices in the administration building; (3) when they are not in
their offices, they are available via cellular phone or can be
contacted through the help desk; and (4) both Engle and Conwell
can perform troubleshooting duties from remote locations. Given
that the District has multiple technicians who allegedly handle
confidential information and both Engle and Conwell are available
for troubleshooting within the administration building, the Board
did not act arbitrarily by applying greater scrutiny here. Nor
did the Board's application of that standard result in its
telling the District how it should run its technology department
or structure its staff. Instead, as the Association points out,
the Board merely determined that where (1) an educational em-
ployer has multiple technicians (each of whom the employer
purports is confidential) and (2) the status of one of those
technicians is questioned, the Board "will look carefully at the
evidence to ensure that the Act's indicia of 'confidential
status' is met as to that employee" (emphasis in original). We
note that the Board's "greater scrutiny" test is consistent with
the National Labor Relations Board's longstanding principle of
- 27 -
looking critically at supervisory status where the exclusion of
supervisors in a department would result in an abnormally high
ratio of supervisors to those being supervised. See, for exam-
ple, National Labor Relations Board v. Health Care Logistics,
Inc., 784 F.2d 232, 235 (6th Cir. 1986) (affirming the National
Labor Relations Board's decision rejecting supervisory status, in
part, on the basis that the company's assessment of supervisory
status would result in a ratio of one supervisor to two or three
employees, which was "'clearly out of balance'").
Finally, we reject the District's contention that the
Board acted arbitrarily by determining that the technology
administrative assistant "would have to 'read' the documents
displayed on the computer screen in order for it to be considered
an inherent part of her job duty." Viewing the Board's written
decision in its totality, we agree with the Association that the
Board's remark that Coons does not "read" documents while trou-
bleshooting (Glenview Professional Ass'n, 22 Pub. Employee Rep.
(Ill.) par. 37, at 132) was part of a lengthy discussion of the
distinction between the job duties performed by the technology
coordinator in Woodland (who often accessed files, which were
then displayed on the computer screen, thus being virtually
impossible not to read) and the technology administrative assis-
tant position here. Given that no evidence showed that the
technology administrative assistant had actual access to confi-
- 28 -
dential collective-bargaining documents in the regular course of
her computer troubleshooting duties, the Board's isolated remark
does not constitute arbitrariness in the Board's decision.
III. CONCLUSION
For the reasons stated, we affirm the Board's order.
Affirmed.
MYERSCOUGH and KNECHT, JJ., concur.
- 29 -