The opinion
2014 IL App (1st) 132455
SECOND DIVISION
July 8, 2014
No. 1-13-2455
AMERICAN FEDERATION OF STATE, COUNTY ) On Petition for
AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) Review of a Final
) Administrative
Petitioner, ) Decision of the
v. ) Illinois Labor
) Relations Board,
ILLINOIS LABOR RELATIONS BOARD, STATE ) State Panel
PANEL, THE STATE OF ILLINOIS, and THE )
TREASURER OF THE STATE OF ILLINOIS, )
) Case No.:
Respondents. ) S-UC-12-056
JUSTICE LIU delivered the judgment of the court, with opinion.
Justice Simon concurred in the judgment and opinion.
Presiding Justice Harris dissented, with opinion.
OPINION
¶1 Petitioner, American Federation of State, County and Municipal Employees, Council 31
(Union), is the union that represented a State of Illinois employee in the position of "Information
Systems Analyst II" (ISA II) who was excluded from the collective-bargaining unit when the
respondent, Illinois Labor Relations Board (Board), granted a petition filed by the respondent,
Treasurer of the State of Illinois (Treasurer), seeking to exclude any incumbent in that position
from Union membership because it is a "confidential employee" position within the meaning of
section 3(c) of the Illinois Public Labor Relations Act (5 ILCS 315/3(c) (West 2012)) (Act). The
issue before this court is whether the Board erred in finding that the ISA II position qualifies as a
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"confidential employee" position under the Act. For the reasons explained below, we conclude
that the Board's decision was clearly erroneous and accordingly reverse.
¶2 II. JURISDICTION
¶3 This is a direct appeal by the Union to the appellate court from the Board's final decision.
Jurisdiction is conferred on this court pursuant to section 9(i) of the Act (5 ILCS 315/9(i) (West
2012)), which states that "[a]ny person aggrieved by any such order [of the Board] *** may
apply for and obtain judicial review *** except that such review shall be afforded directly in the
Appellate Court." Consistent with the Administrative Review Law, "[a]ny direct appeal to the
Appellate Court shall be filed within 35 days from the date that a copy of the decision sought to
be reviewed was served upon the party affected by the decision." 5 ILCS 315/9(i) (West 2012);
115 ILCS 5/16(a) (West 2012). The Board's final decision is dated July 13, 2013. The Union's
petition for appellate review, filed on August 6, 2013, was timely and complied with this court's
procedure for those seeking direct review of administrative orders. Ill. S. Ct. R. 335 (eff. Feb. 1,
1994). Therefore, this court has jurisdiction to hear this appeal.
¶4 III. STANDARD OF REVIEW
¶5 In reviewing an administrative decision, " '[t]he findings and conclusions of the
administrative agency on questions of fact shall be held to be prima facie true and correct' and
'[n]o new or additional evidence in support of or in opposition to any finding, order,
determination or decision by the administrative agency shall be heard by the court.' " Provena
Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386 (2010) (quoting 735
ILCS 5/3-110 (West 2002)). " '[I]t is not a court's function on administrative review to reweigh
evidence or to make an independent determination of the facts.' [Citation.]" Id. We review an
agency's factual findings to determine if they are against the manifest weight of the evidence. Id.
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at 386-87. The agency's factual findings will not be found to be against the manifest weight of
the evidence unless "the opposite conclusion is clearly evident." Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). However, "when the only point
in dispute is an agency's conclusion on a point of law," our review is de novo. Provena, 236 Ill.
2d at 387.
¶6 For mixed questions of law and fact, "i.e., where the historical facts are admitted or
established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
standard," we review the agency's decision for clear error. Id. When reviewing mixed questions
of fact and law, this court gives deference to the agency's decision. AFM Messenger Service,
Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001). Reversal of mixed
questions of fact and law is inappropriate unless, after review of the entire record, the court has
" 'the definite and firm conviction that a mistake has been committed.' " Id. (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In other words, a reversal of the
Board's final order is not justified merely because an opposite conclusion is reasonable or the
appellate court may have ruled differently. Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 88 (1992). But "[t]hat the clearly erroneous standard is largely
deferential does not mean *** that a reviewing court must blindly defer to the agency's
decision." AFM Messenger Service, 198 Ill. 2d at 395.
¶7 The parties agree that we review the Board's decision that a position qualifies as a
"confidential employee" position under the "clearly erroneous" standard. However, we note that
there is also authority for applying the "manifest weight of the evidence" standard. See Niles
Township High School District 219 v. Illinois Educational Labor Relations Board, 387 Ill. App.
3d 58, 69-70 (2008) (Niles) (discussing precedent for the "manifest weight of the evidence"
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standard of review); Chief Judge of the Circuit Court v. American Federation of State, County &
Municipal Employees, Council 31, 153 Ill. 2d 508, 523 (1992) (Chief Judge II) (applying
"manifest weight of the evidence" standard for reviewing the Board's determination that
employee was not a "confidential employee"). Here, because the parties are in agreement, we
will review the Board's decision under the "clearly erroneous" standard.
¶8 IV. BACKGROUND
¶9 On April 26, 2012, the Treasurer filed a unit clarification petition with the Board stating
that the ISA II position should be properly classified as a "confidential employee" position as
defined under the Act and that any incumbent in that position should be excluded from
participation in the existing Union. 1 On May 17, 2012, the Union filed its objections to the
petition arguing that it was procedurally defective and that an ISA II employee does not perform
duties of a "confidential employee" as that term is statutorily defined.
¶ 10 Prehearing memos were filed by the parties, and on November 9, 2012, the administrative
law judge heard testimony regarding whether the ISA II position was a "confidential employee"
position pursuant to the Act.
¶ 11 Deborah Price testified for the Treasurer. Price was the information technology director
for the Treasurer's office from 2003 and has currently held that position since February 2011.
Price supervises 10 information technology employees, including the incumbent in the ISA II
position, Sarah Schuering. Price's subordinates provide computer network support, including
application and development, to the Treasurer, the chief of staff and his subordinates, general
1
The petition also sought to designate any incumbent in the position of "Information System Analyst I" as a
"confidential employee" excluded from Union participation. However, at the commencement of the administrative
hearing on November 9, 2012, counsel for the Treasurer orally withdrew that portion of the petition, stating the
position was "unfilled and will likely remain that way."
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counsel and legal staff, the human resources' director and staff, and the director of accounting
and budget personnel, including the Treasurer's chief budgeter.
¶ 12 Price testified that she supervises two employees who function as computer network
administrators: (1) Schuering, the incumbent in the ISA II position under review, and (2) Joey
Lau, a network administrator in charge of the computer servers who keeps all communication
lines "up and running." Price further explained that in 1999, the Treasurer's office inherited the
ISA II position and the position's incumbent, Schuering, when the ISA II functions were
transferred from the Department of Financial Institutions to the Treasurer's office. Of the 10 job
positions in Price's division, the ISA II position is the only one included in the Union.
Specifically, Price testified that the co-network administrator position held by Joey Lau is not
included in the Union. Schuering and Lau are the only two employees who have "network
administrator passwords," and they perform similar duties. According to Price, "basically, if
someone has a problem with anything computer related, network related, [Schuering and Lau]
*** get called to help troubleshoot any of those problems." Both employees assist staff with
Excel functions, which is a program "used in the budget processing *** in the financial area" of
the Treasurer's office." Price testified that she has not been given a network password because
she is not qualified for network administration and "rel[ies] on [Schuering's and Lau's] expertise
and knowledge and advice to keep [the] network running."
¶ 13 During her testimony, Price also discussed the "Position Description" for the ISA II
position, which was entered into evidence. According to the "position summary" in the
description, the employee in the ISA II position "performs daily administration, monitoring, and
troubleshooting of servers in the LAN environment. These servers include File, Print, Exchange,
SQL and Blackberry."
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¶ 14 In addition, the specific "Duties and Responsibilities" for the ISA II position are: (1)
"[r]esponsible for setting up and administering users"; (2) "[r]esponsible for suspending and
archiving users as required due to termination"; (3) "[r]esponsible for setting up and
administering shared data access file directories with proper rights and configuration"; (4)
"[r]esponsible for setting up and administering SQL Server databases"; (5) "[r]esponsible for
configuring and monitoring automated backup procedures for File, SQL and Exchange Servers";
(6) "[r]esponsible for monitoring overall performance of servers and implementing changes
based on analysis"; (7) "[s]erves as user support leader – this position is expected to provide
expertise and guidance on user support issues, as well as resolving issues independently"; (8)
"[p]rovides technical support for third party software systems such as Unclaimed Property
Wagers and Liberty Net Systems"; and (9) "[p]erforms other duties as assigned or required
which are reasonably related to the duties enumerated above."
¶ 15 According to Price, as part of Schuering's daily responsibilities, she reviews (1) the server
logs to make sure everything is running properly; (2) the email spam folder to confirm whether
nonspam email was incorrectly filtered; and (3) the Internet logs to ensure there is proper
connectivity. Although Schuering has access to employee email and, theoretically, could read an
employee's email without the employee's knowledge, Price explained that Schuering only has
permission to read an individual's emails "if they were misdirected into the spam folder."
Schuering also can see when a user has been on the Internet and generate reports of Internet
usage when requested. Price testified that she had never asked Schuering to tell her "the content
of what [an employee] had read" over the Internet "during a given period of time."
¶ 16 Dan Gray, the deputy chief of staff for the Treasurer's office, also testified for the
Treasurer. Gray testified that his duties and responsibilities include "the daily management and
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long-term strategic goals of *** four to seven divisions of the Treasurer's Office[, which]
encompasses *** about $13 million of the budget and about 80 employees." He also sits on the
Treasurer's committee that is responsible for collective bargaining with the employees' Union,
which includes the development of the strategies and proposals from a budget perspective. To
carry out his duties, Gray testified that "[i]t's a collaborative effort" that involves interfacing with
the Treasurer, the chief of staff, general counsel and other legal staff, the director of human
resources, the director of accounting, and the chief budgeter. In formulating policy, including
union bargaining strategies containing budget information, Gray creates documents that are
stored on the computer network and, as necessary, shared with others in the collaborative group
via the network as "it's just the most efficient way for us to converse." Gray then creates a
"white paper for the Treasurer, which is a one-page recommendation with all appropriate
variables for use during Union negotiations." Gray plays a role in disciplining employees who
are Union members and exchanges communications via the computer with management.
According to Gray, Schuering had been "called upon to give *** reports about Internet usage"
concerning both an employee's "time on the Internet" and the "substance involved."
¶ 17 Following Gray's testimony, the Treasurer concluded his case-in-chief. The Union
moved for a directed verdict, arguing that the Treasurer failed to prove that Schuering had
authorized access to confidential documents because there was "no evidence that she [had] ever
been directed" to view, or ever had viewed, documents related to collective bargaining. The ALJ
denied the Union's motion.
¶ 18 Schuering, the incumbent in the ISA II position, then testified for the Union. According
to Schuering, she transferred from the Department of Financial Institutions to the Treasurer's
office as a Union member in 1999. In the 13 years she has worked in the Treasurer's office, she
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stated, she has never seen any documents related to collective bargaining. She also explained
that she did not recall ever "be[ing] directed by any of the managers to look at a document that
they [had] created." Rather, according to Schuering, "most of [her] time" is spent "reviewing
server logs in the morning and working with the unclaimed property division, answering help
desk calls, setting up access, [and] removing access."
¶ 19 With respect to the Internet usage reports she can access, Schuering testified that those
reports do not tell her "the content of any document" that was viewed by other employees or "the
contents of where someone has been on the Web site." The reports, however, will tell her the
name of a program that is running. For example, at one time she observed that an employee was
using the Skype program at work. She also acknowledged that she had determined, with the help
of "further information" from Lau, that an employee was printing non-work-related documents.
¶ 20 Schuering further testified that although she has the capability to access any employee's
"Private-Drive" (i.e., P-drive), and to take a document out and copy it to her computer to read the
document, she has never done this because she would be "disciplined or fired" for engaging in
this conduct. Even when she is "logged on to the exchange server" "[a]s an administrator of the
network," she testified, she cannot see the contents of individuals' emails, nor does she have
access to the mailboxes for the Treasurer's chief of staff or deputy chief of staff.
¶ 21 In rebuttal, Price testified that she "believe[d]" that both Schuering and Lau have "access
to all of the e-mails that are on the exchange server." Price has observed Schuering "access other
people's e-mails" when "directed by *** their managers," but it was not "part of [Schuering's] job
to read *** the content of e-mails" "in other people's mailboxes other than her own or spam or an
IT support mailbox."
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¶ 22 Both parties filed posthearing briefs. On April 9, 2013, the ALJ issued her corrected
recommended decision and order. 2 The ALJ determined that the Treasurer's unit clarification
petition was procedurally appropriate and conformed to existing Illinois law. On the merits, the
ALJ found that "Schuering is a confidential employee because she has authorized access to
collective-bargaining-related material when she troubleshoots on [the] Excel [computer
program]." The ALJ observed that Excel documents are "a class of materials which includes
documents that contain preliminary budget information not available to the Union or the public,
'access to which would most certainly impact the effectuation *** [of the employer's] bargaining
policies. [Citation.]' " The ALJ further found that "the manner in which [Schuering]
troubleshoots those documents sometimes requires her to assess and evaluate their contents."
This access, the ALJ explained, "is not merely incidental and is instead an inherent part of her
duties because [she] must assess and evaluate the substantive contents of documents she
troubleshoots so that she may fix problematic formulas." The ALJ also discounted "the fact that
Schuering [had] never seen a collective bargaining document during her 13-year tenure at the
Treasurer's Office" and concluded, instead, that the "job responsibilities" of the ISA II position
entailed "authorized access to such materials in the regular course of her duties."
¶ 23 The ALJ, however, expressly rejected the Treasurer's remaining arguments concerning
Schuering's general access to the network as a network administrator and her ability to review
the Internet usage logs. Specifically, the ALJ found that Schuering's "capacity to read all
documents stored on employees' P Drives" and to "read*** all emails on the servers *** by
logging into the system as Network Administrator and granting herself access rights" did not
render her a "confidential employee" because she actually was "prohibited" from doing so. The
2
The ALJ's original Recommended Decision and Order recommending granting the Treasurer's Petition was filed
one day earlier, on April 8, 2013.
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ALJ similarly was not persuaded that Schuering's "need to read email in the spam folder to
determine whether the spam filter misdirected legitimate correspondence" made her a
"confidential employee" because the Treasurer presented "no evidence that emails related to
collective bargaining would be, or have ever been, classified as spam." Lastly, the ALJ found
that Schuering's access to employee Internet usage logs was insufficient because (1) "an
employee is not confidential merely because she helps enforce the employer's internet policy by
reviewing data on servers which contains information that may reveal an employee has violated
the employer's internet policy"; and (2) access to the log of the Internet sites that employees have
visited "does not lend insight into the manner in which" the employees will use the publicly
available information they have viewed.
¶ 24 The ALJ recommended to the Board that the Treasurer's unit clarification petition be
granted and that the position of ISA II be designated as a "confidential employee" position due to
Schuering's authorized access to collective-bargaining-related documents and information during
the course of her regular duties when troubleshooting problems within the Excel computer
program for other employees.
¶ 25 On May 13, 2013, the Union filed its exceptions to the ALJ's corrected recommended
decision and order, arguing that the ALJ incorrectly concluded that Schuering is a confidential
employee based on her troubleshooting of Excel documents because there was no evidence that
Schuering had ever worked on an Excel document that contained collective-bargaining-related
materials. On June 5, 2013, the Treasurer filed his response to the Union's exceptions as well as
his own exceptions to the recommended decision, stating that the ALJ should have additionally
found "confidential employee" status for the ISA II position because of the incumbent's (1)
access and capacity to read all documents that employees store on their P-drive; (2) ability to log
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into the computer network as the network administrator with her password and read all emails;
(3) ability to read all emails directed, rightly or wrongly, to the spam folder; and (4) ability to
access all employees' Internet logs, including those of deputy chief of staff Gray, who testified he
uses the Internet to develop collective-bargaining strategies and proposals. On June 21, 2013,
the Union filed its response to the Treasurer's exceptions.
¶ 26 On July 19, 2013, the Board issued its final decision and order, which affirmed the ALJ's
recommended decision that the Treasurer's unit clarification petition was procedurally proper.
The Board also adopted the ALJ's recommended decision that the ISA II position should be
appropriately classified as a "confidential employee" position as that term is defined by the Act
"based on [Schuering's] duty to troubleshoot Excel documents, including budgetary documents
upon which bargaining proposals or responses may be based." The Board found a nexus
between those Excel documents containing budget information and the Treasurer's development
of collective-bargaining proposals by concluding that such proposals are not developed without
referencing any such budget information. The Board also acknowledged Schuering's testimony
that she has never accessed and worked on Excel documents containing collective-bargaining-
related data, but found that doing so would be a part of her regular, assigned duties and would
not be an ad hoc assignment. The Board refused to address the Treasurer's exceptions to the
ALJ's recommendations because there was already an existing basis on which to find that
Schuering is a "confidential employee." The Board entered a final order granting the Treasurer's
unit clarification petition.
¶ 27 On July 23, 2013, the Board issued a certification of unit clarification for the position
which had the effect of excluding an incumbent in the position of ISA II from the existing Union.
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¶ 28 V. ANALYSIS
¶ 29 The Board affirmed the ALJ's finding that the incumbent holding the position of ISA II is
a "confidential employee" within the meaning of section 3(c) of the Act and is, therefore,
excluded from collectively bargaining with the Treasurer. 5 ILCS 315/3(c) (West 2012). This
court reviews the final decision of the Board, not the ALJ's recommendation. Wilson v.
Department of Professional Regulation, 317 Ill. App. 3d 57, 64-65 (2000).
¶ 30 Section 3(c) of the Act defines a "confidential employee" as follows:
"[A]n employee who, in the regular course of his or her duties,
assists and acts in a confidential capacity to persons who
formulate, determine, and effectuate management policies with
regard to labor relations or who, in the regular course of his or her
duties, has authorized access to information relating to the
effectuation or review of the employer's collective bargaining
policies." 5 ILCS 315/3(c) (West 2012).
¶ 31 As the employer, the Treasurer bears the burden of proving that the ISA II position merits
classification as a "confidential employee" position. County of Cook (Provident Hospital) v.
Illinois Labor Relations Board, 369 Ill. App. 3d 112, 123 (2006). We construe the "confidential
employee" exclusion "narrowly" because such employees are precluded from exercising
collective-bargaining rights that are given to all public employees. Niles, 387 Ill. App. 3d at 68
(quoting Board of Education of Glenview Community Consolidated School District No. 34 v.
Illinois Educational Labor Relations Board, 374 Ill. App. 3d 892, 898-99 (2007) (Glenview), and
applying analogous provision in Illinois Educational Labor Relations Act).
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¶ 32 The Act's purpose in excluding "confidential employees" from any bargaining unit is to
prevent employees from having their loyalties divided between their employer, who expects
confidentiality in labor relations matters, and the union, which may seek disclosure of
management's labor relations material to gain an advantage in the bargaining process. Chief
Judge II, 153 Ill. 2d at 523.
¶ 33 There are two tests specifically designated in the statutory definition to determine
whether a position is, in fact, a "confidential employee" position: the "labor-nexus" test 3 and the
"authorized access" test. Id. at 523-24. 4 Here, the Treasurer argues that the "authorized access"
test applies.
¶ 34 Under the "authorized access" test, an employee is "confidential" if he or she has
"authorized access to information concerning matters specifically related to the collective-
bargaining process between labor and management." Chief Judge II, 153 Ill. 2d at 523. "Labor
relations encompasses ongoing or future collective-bargaining negotiations and strategy, not
general, though undoubtedly otherwise confidential department administration matters." Chief
Judge of the Circuit Court v. American Federation of State, County, & Municipal Employees,
Council 31, 218 Ill. App. 3d 682, 699 (1991) (Chief Judge I), aff'd, Chief Judge II, 153 Ill. 2d
508. In other words, "[m]ere access to 'confidential' information concerning the general
workings of the department or to personnel or statistical information upon which an employer's
labor relations policy is based is insufficient to confer confidential status." Id. at 699; see also
3
Under the labor-nexus test, not at issue here, an employee is "confidential" if he or she "assists in a confidential
capacity in the regular course of his or her duties a person or persons who formulate, determine or effectuate labor
relations policies." Chief Judge II, 153 Ill. 2d at 523.
4
A third, non-statutory test has developed in the case law and has been applied to factual scenarios where there is no
prior history of a collective-bargaining relationship between the incumbent in the position and any union. It is
referred to as the "reasonable expectation" test where consideration is given to the future role of the employee and
employer in any collective-bargaining activities. Chief Judge of the Circuit Court v. American Federation of State,
County, & Municipal Employees, Council 31, 218 Ill. App. 3d 682, 700 (1991). The instant case, which concerns an
employee who has been a long-term member of the Union, does not involve this third test.
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Board of Education of Community Consolidated School District No. 230 v. Illinois Educational
Labor Relations Board, 165 Ill. App. 3d 41, 60 (1987) ("[A]ccess to information concerning
general confidential district business matters is irrelevant. *** [I]nquiry is limited to whether the
employee in question has unfettered access ahead of time to information pertinent to the review
or effectuation of pending collective-bargaining policies.").
¶ 35 Thus, if, as part of a position's regular duties, an incumbent in the position has access to
information that, if divulged to the incumbent's respective bargaining unit, would give the Union
unfair, advanced notice of the employer's private information regarding labor relations' activity,
the incumbent should be classified as a confidential employee. Chief Judge I, 218 Ill. App. 3d at
699. Sporadic access to such information is adequate if that access is "part of [the employee's]
normal duties." Niles, 387 Ill. App. 3d at 70-71 (citing Board of Education of Plainfield
Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board,
143 Ill. App. 3d 898, 911 (1986), and applying analogous provision in Illinois Educational Labor
Relations Act). But "sporadic means sometimes, not never." Id. at 76.
¶ 36 As an initial matter, we do not address whether the Board erred in finding the Treasurer's
Unit Clarification Petition was procedurally proper because the Union has waived that argument
by not raising the issue on appeal. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) ("Points not argued
[in the opening brief] are waived and shall not be raised in the reply brief, in oral argument, or on
petition for rehearing.").
¶ 37 Turning to the merits, the Union argues that the Treasurer failed to meet his burden of
proof because the evidence demonstrated that Schuering was not directed to access confidential,
collective-bargaining information and had not accessed such information in 13 years. Further,
the Union maintains that Board erred in speculating that Schuering's Excel troubleshooting
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duties could give her authorized access to confidential information because such access would be
"ancillary and incidental" to her job duties. In response, the Treasurer and the Board contend
that, regardless of whether Schuering has actually seen a collective-bargaining document in
connection with her Excel troubleshooting responsibilities, her regularly assigned job duties
require her to see and review the contents of Excel spreadsheets, which could include budget
information. In the alternative, should this court agree with the Union, the Treasurer maintains
that we nevertheless can conclude that Schuering is a "confidential employee" based on her
general access to documents and email in her role as a "Network Administrator"—an issue the
Board declined to address. For the reasons explained below, the Board's decision was clearly
erroneous because neither Schuering's Excel troubleshooting responsibilities nor her access as a
Network Administrator renders her a "confidential employee" under the Act.
¶ 38 A. The Treasurer Failed to Prove That Schuering's Excel Troubleshooting Duties
Qualified Her as a "Confidential Employee"
¶ 39 According to the Union, the Treasurer did not meet his burden of proof because he failed
to provide sufficient evidence that Schuering's Excel troubleshooting responsibilities gave her
authorized access to confidential, collective-bargaining information in the regular course of her
duties as the evidence was undisputed that she had never seen or been asked to review collective-
bargaining documents. In response, the Treasurer and the Board maintain that whether
Schuering has actually viewed collective-bargaining information is immaterial; instead, they
argue that she has the requisite authorized access because she could view such documents as part
of her job duties and those documents could include preliminary budgeting information used in
collective bargaining. Because we find that the Board misapplied the relevant legal standard in
assessing whether Schuering was a "confidential employee," we agree with the Union.
¶ 40 1. Schuering Does Not Have Authorized Access in the Regular Course of Her Job Duties
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¶ 41 First, the Board erred in concluding that the undisputed facts surrounding Schuering's
Excel troubleshooting responsibilities satisfy the established legal criteria for the "authorized
access" test. Although the evidence demonstrates that Schuering would have authorized access
to certain Excel documents if asked by an employee to assist them in troubleshooting, access to
Excel documents alone is insufficient—the authorized access must be to "information relating to
the effectuation or review of the employer's collective bargaining policies." Here, the Board
clearly erred in elevating evidence of Schuering's theoretical access to such information—access
that is only tangential and incidental to her regular job duties—over the undisputed evidence that
she had yet to be exposed to collective-bargaining information at any time during her 13-year
tenure in the ISA II position, the latter of which should "weigh heavily" in the Board's analysis.
Niles, 387 Ill. App. 3d at 76.
¶ 42 In situations where, as here, "a position has existed for a substantial amount of time, the
Board will weigh heavily the employee's actual access to collective bargaining material." Niles,
387 Ill. App. 3d at 76; see also Glenview, 374 Ill. App. 3d at 903-04 (holding that evidence that
"technology administrative assistant theoretically could have access to confidential collective-
bargaining information" was insufficient where the employer "presented no evidence" that the
employee "had actual authorized, unfettered access to such confidential information in the
course of her regular duties" (emphases in original)). Moreover, although employers need not
"establish that [the employee] has actually seen such information," they at least must
demonstrate that "real and more than incidental access will occur in the regular course of her
duties." (Internal quotation marks omitted.) Glenview, 374 Ill. App. 3d at 902.
¶ 43 Our decision in Niles, an Illinois Educational Labor Relations Act case, is instructive on
this point. There, the challenged positions were the world-wide web communications assistant
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and the systems and networking engineer. These employees testified that they had not "read or
retrieved collective bargaining information in five years' time." Niles, 387 Ill. App. 3d at 76.
Relying on this testimony, this court explained that "[i]f a computer person testifies that she has
not read collective bargaining documents, then any access would be the result of mere chance"
and "[s]uch theoretical access [was] insufficient" to satisfy the "authorized access" test. Id.
Moreover, because the employees had not accessed collective-bargaining information in five
years, "[a]ccess was certainly not part of [the employees'] regular duties." Id.
¶ 44 Similarly here, it is undisputed that Schuering has not reviewed a collective-bargaining
document at any time during her 13-year tenure in the ISA II position at the Treasurer's office.
Nor is there any evidence that Gray—the only witness who presumably had any involvement
with the Treasurer's collective-bargaining negotiations—has ever directed Schuering to review
documents containing collective-bargaining information. The Board, however, departed from
this court's analysis in Niles and failed to "heavily weigh" this evidence of Schuering's actual
access to collective-bargaining information. Rather, it focused on the possibility that Schuering
could access such confidential information in the future as part of her troubleshooting
responsibilities. But, as the evidence demonstrates, her theoretical access to collective-
bargaining information—access which had yet to occur after 13 years in the same position—
would only be "incidental" to her job responsibilities and would not occur in the regular course
of her job. (Internal quotation marks omitted.) See Glenview, 374 Ill. App. 3d at 902. Such
access, therefore, is unlikely to "prematurely expose[]" the Treasurer's "negotiation strategies in
collective bargaining" "to the employees with whom it will bargain." Chief Judge I, 218 Ill.
App. 3d at 698-99. On this record, the Board's finding that Schuering's Excel troubleshooting
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responsibilities rendered her a "confidential employee" under the Act is inapposite to the
analyses in Niles and Glenview and demonstrates a misapplication of the law.
¶ 45 Department of Central Management Services/The Department of State Police v. Illinois
Labor Relations Board, State Panel, 2012 IL App (4th) 110356, cited by the Treasurer and the
Board, is distinguishable and does not undermine that general proposition that the Board should
"heavily weigh" an employee's actual access the collective-bargaining information where the
position "has existed for a substantial amount of time." There, the job description for the
challenged attorney position included assignments to labor relations matters and providing legal
advice to labor relations divisions. The board concluded that, despite the job description, the
attorney was not a "confidential employee" because he had yet to perform any duties related to
labor relations. The appellate court reversed, holding that in applying the "authorized access"
test, the attorney's job duties must be considered, not "just what the current employee has done
so far in the position." Id. ¶ 32. The court also emphasized that the attorney worked in the same
office as other lawyers who had received "collective-bargaining assignments," finding that it was
"highly likely he is present for conversations about those assignments or has computer access to
his coworkers' work." Id. Thus, unlike the present case where any theoretical access would only
be tangential and incidental to Schuering's regular responsibilities, the attorney's job duties in
Central Management Services expressly included substantive involvement in labor relations
matters.
¶ 46 For these reason, we conclude that the Treasurer failed to prove that Schuering's
theoretical, yet unrealized, exposure to collective-bargaining documents as part of her Excel
troubleshooting responsibilities qualifies her as a "confidential employee" under the Act.
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¶ 47 2. Preliminary Budget Information Is Not Information Relating to the Effectuation
or Review of the Employer's Collective Bargaining Policies
¶ 48 Second, even assuming that Schuering had authorized access to preliminary budget
information as part of her Excel troubleshooting duties, the Treasurer also has failed to prove that
such information qualifies as "information relating to the effectuation or review of the employer's
collective bargaining policies" as required by the Act. In Chief Judge I, this court expressly
rejected the argument that employees actually involved in preparing budget information were
confidential employees, holding that "[m]erely supplying raw financial data for use in
negotiations is insufficient to establish that an individual is a confidential employee." Chief
Judge I, 218 Ill. App. 3d at 705. Specifically, the employees at issue were responsible for
"supplying raw financial data," which was later "use[d] *** in future collective bargaining
negotiations," and assisting the Director of Financial Control in "furnishing a budget for use in
future collective bargaining negotiations." Id. at 701. This court distinguished such budgetary
information from information related to collective-bargaining proposals and policies, holding
that employees' "access to confidential information which may be used in but is not related to
labor relations does not indicate that they are confidential employees." (Emphasis added.) Id. at
702. Similarly here, the Treasurer has not demonstrated that such financial information is
anything more than the type of general business information this court has previously held does
not satisfy the requirements of the Act.
¶ 49 The Treasurer relies on Department of Central Management Services v. Illinois Labor
Relations Board, State Panel, 2011 IL App (4th) 090966, to argue that budget information and
financial data "relat[es] to the effectuation or review of the employer's collective bargaining
policies." To the extent that this case is inconsistent with both our decision in Chief Judge I and
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the well-established rule that the "confidential employee" exclusion is "narrowly" applied, we
decline to follow it.
¶ 50 The Board found that "Schuering is a confidential employee based on her duty to
troubleshoot Excel documents, including budgetary documents upon which collective-bargaining
proposals and responses may be based." Contrary to the Board's finding, however, the
evidentiary record in this case does not establish that Schuering has had actual access to
collective-bargaining information. Furthermore, the job description for the ISA II position
occupied by Schuering does not indicate that she will have, or is intended to have, access to
confidential collective-bargaining information, nor does the description indicate that her
employer contemplates that she will access such information. Finally, the evidence shows that,
on a day-to-day basis in the regular course of her duties, Schuering does not handle documents or
records containing confidential collective-bargaining information. As a result, we are " 'left with
the definite and firm conviction that a mistake [was] committed' " by the Board's finding that
Schuering is a "confidential employee," and we find the Board's determination to be clearly
erroneous. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d
380, 393 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
We therefore reverse the decision of the Board.
¶ 51 The dissent concludes otherwise and finds that the Board's determination that the ISA II
position is a "confidential employee" position is not clearly erroneous. In contrast to the
majority's analysis, the dissent maintains that Niles and Glenview are distinguishable from this
case, because the evidence in those cases "showed *** that [the employees'] jobs did not require
them to actually read the contents of such [collective-bargaining] documents during
troubleshooting and maintenance tasks. Infra ¶ ___." We respectfully disagree. To the contrary,
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in Niles, the record contained evidence that one of the contested employees did in fact "read
materials" that could conceivably contain confidential or sensitive information, albeit "only when
she needed to 'troubleshoot.' " Niles, 387 Ill. App. 3d at 63. In Glenview, the court noted that
"the evidence showed that, at most, the [employee] had been exposed to the names of folders and
subfolders and e-mail subject lines that may have suggested the underlying content of the
documents related to confidential bargaining information" and, furthermore, that the employee's
"job description indicates that the person occupying the position should have the 'ability to
handle confidential information.' " Glenview, 374 Ill. App. 3d at 904. Finally, unlike the
situation in Central Management Services, 2012 IL App (4th) 110356, ¶¶ 30-31, the prospect
that Schuering may be required to access or review collective bargaining information as part of
her authorized job responsibilities is mere speculation, when the evidence has established that
she has not been privy to this information for the past 13 years during her employment as an ISA
II.
¶ 52 B. The Treasurer's Office Failed to Prove That Schuering's Duties as Network
Administrator Gave Her Authorized Access to Information Relating to the Effectuation
or Review of Treasurer's Collective Bargaining Policies
¶ 53 In the alternative, the Treasurer argues that even if this court disagrees with the Board
that Schuering's Excel troubleshooting responsibilities render her a "confidential employee," we
nevertheless can affirm the Board's decision because Schuering's "duties as a Network
Administrator" gave her authorized access to collective-bargaining-related information. The
Board declined to reach this issue. Although the Board maintains that we should remand this
issue for it to address in the first instance, both the Union and the Treasurer contend that we can
resolve it on appeal.
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¶ 54 In Johnson v. Human Rights Comm'n, 318 Ill. App. 3d 582 (2000), this court outlined a
procedure for determining whether a remand is necessary if we conclude that the agency's
decision must be reversed. Specifically, "[w]here the record will permit only one
determination," this court "may impose that determination." Id. at 587. But, because we lack
"authority to 'evaluate the credibility of the witnesses or resolve conflicting evidence' " (id.
(quoting Przislicki v. City of Chicago, 212 Ill. App. 3d 661, 668 (1991))), if we find that "varying
credibility evaluations could support differing resolutions of a case, we must remand to the
agency for findings of fact" (id.).
¶ 55 Here, because the material facts are not in dispute—indeed, the Treasurer refers to this
issue as a "conclusion*** of law" and has not challenged any of the ALJ's relevant factual
findings—we can address the Treasurer's argument that Schuering's duties as a Network
Administrator give her the requisite "authorized access" to qualify as a "confidential employee"
under the Act. As explained below, they do not.
¶ 56 The ALJ concluded that Schuering's general responsibilities as a "Network
Administrator" did not make her a "confidential employee" because (1) "she is prohibited from
taking the only action which could allow her to read" the "documents stored on employees' P
drives"; and (2) she is "prohibited" from "reading *** emails on the servers." Further, although
the Board did not base its decision on Schuering's general network access, it did acknowledge
her testimony that "while she had the capability of accessing documents, this was not permitted,"
and concluded that this fact did not "appear*** to be incorrect." The Treasurer notably has not
challenged these factual findings that Schuering was prohibited from accessing other employees'
documents and emails. Instead, he contends that Schuering's access is nevertheless "authorized"
because "the Treasurer intends for her to have the Network Administrator password," and
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employers "should not be left in the position to simply trust an employee not to access"
confidential collective-bargaining information. (Emphasis in original.)
¶ 57 This argument, however, improperly conflates Schuering's capability to access with
authorized access—the latter is required by the statute. As this court explained in Niles, "the
issue is not what access an employee is capable of exercising, but what access the employer
intends for the employee to exercise." Niles, 387 Ill. App. 3d at 75. In other words, "the issue is
not capability but authorization." Id.; see also County of Cook (Provident Hospital) v. Illinois
Labor Relations Board, 369 Ill. App. 3d 112, 125 (2006) (affirming Board decision that
employees who reported to the director of human resources and labor relations were not
"confidential employees" under the Act—despite having "the means" to access director's
collective-bargaining and labor-relations files—because "there was little evidence presented that
they were 'authorized' to access that information").
¶ 58 Support Council of District 39 v. Illinois Educational Labor Relations Board, 366 Ill.
App. 3d 830 (2006) (Wilmette), cited by the Treasurer, is not to the contrary. In Wilmette, the
court affirmed the board's decision that the school district's newly-created network manager
position was a "confidential employee" position under the analogous provision of the Illinois
Educational Labor Relations Act. But unlike the present case, in Wilmette, the board found that
the manager's access to the school district's network was "without restriction" and "unfettered."
(Internal quotation marks omitted.) Id. at 832. Here, based on the ALJ's unchallenged findings,
Schuering actually was prohibited from using her network administrator access to view other
employees' documents or email unless instructed to do so. As such, her access was not
"authorized" as required by the Act.
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¶ 59 VI CONCLUSION
¶ 60 For the foregoing reasons, the Board's final decision that the position of ISA II is a
"confidential employee" position within the meaning of section 3(c) of the Illinois Public Labor
Relations Act was clearly erroneous. Further, we conclude that the Treasurer's alternative basis
for affirming the Board's decision is not supported by the record. Accordingly, the Board's
decision is reversed.
¶ 61 Reversed.
¶ 62 PRESIDING JUSTICE HARRIS, dissenting.
¶ 63 I would affirm the Board's determination that the ISA II position qualifies as a
"confidential employee" position under the Act. Therefore, I respectfully dissent.
¶ 64 As the majority stated above, this court gives deference to the Board's decision when
reviewing mixed questions of fact and law. AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 395 (2001). 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 determination was clearly erroneous. Board of Education of Glenview
Community Consolidated School District No. 34 v. Illinois Educational Labor Relations Board,
374 Ill. App. 3d 892, 899 (2007). The question for an appellate court is not how we would rule if
we had been standing in the Board's shoes and writing in the first instance. The "clearly
erroneous" standard of review is so firmly established in the common law that courts have on
many occasions chosen to define it using various phrases all designed to emphasize that reversals
should only be granted to correct profoundly wrong orders. Such phrases as "does the Board's
decision stink like a dead fish" (Glenview, 374 Ill. App. 3d at 899) and the decision must "strike
us as wrong with the force of five-week-old, unrefrigerated dead fish" (Parts & Electric Motors,
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Inc. v. Sterling Electric Inc., 866 F.2d 228, 233 (7th Cir. 1988)) are such examples.
Notwithstanding, the majority now reverses the Board's decision, which is reasonable and
worthy of deference, and finds that Schuering's actual access to collective bargaining information
is " merely theoretical access to such information – access which is only tangential to her regular
job duties." We should not reverse an agency's determination unless it is clearly erroneous, or in
other words, we have a "definite and firm conviction that a mistake has been committed." AFM
Messenger Service, 198 Ill. 2d at 395. The agency did not make a mistake. Schuering's access
to the collective bargaining information was not theoretical. It may be tangential to her regular
job duties but it is still actual access to the information.
¶ 65 The Act permits employees to organize, but it excludes confidential employees from the
collective bargaining unit. "Confidential employee" is defined 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 collective bargaining policies." 115 ILCS 5/2(n) (West 2012). Even if Schuering's
access to such information was sporadic or "theoretical," she would still be a confidential
employee under the Act as long as her access resulted from the performance of her regular
duties. Board of Education of Plainfield Community Consolidated School District No. 202 v.
Illinois Educational Labor Relations Board, 143 Ill. App. 3d 898, 911 (1986).
¶ 66 The ISA II position at issue here is one of ten in the Treasurer's office that provides
computer network support to the Treasurer and the staff. None of the other nine positions are
included in the Union, and neither should Schuering's. The ISA II position "performs daily
administration, monitoring, and troubleshooting of servers" and assists with functions of Excel,
which is a program used in the Treasurer's office for budget-related matters. Dan Gray testified
that as deputy chief of staff for the Treasurer's office, he is responsible for "the daily
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management and long-term strategic goals" of the divisions of the office. He also sits on a
committee responsible for collective bargaining with the Union, and takes part in the
development of strategies and proposals for use during the bargaining process. In this capacity,
Gray creates documents formulating bargaining strategies that contain budget information which
he stores on the computer network.
¶ 67 The ALJ found that when troubleshooting an Excel document, Schuering must sometimes
"assess and evaluate their contents" to "fix problematic formulas" and these documents in the
Treasurer's office can contain budget information pertinent to the collective bargaining process.
The ALJ further found that Schuering had authorized access to such material in the regular
course of her duties. The Board added that although to date, Schuering may not have had
occasion to view collective bargaining information in an Excel document, doing so would be part
of the regular course of her duties and not an ad hoc assignment. The Board's findings of fact are
entitled to deference. On administrative review it is not this court's function to reweigh the
evidence or make independent determinations of fact. Abrahamson v. Illinois Department of
Professional Regulation, 153 Ill. 2d 73, 88 (1992). The majority has chosen to reweigh the
evidence and substitute its judgment for that of the Board. The facts presented sufficiently
support the Board's finding that the ISA II is a confidential employee position under the Act, and
I do not have a firm and definite conviction that the Board made a mistake.
¶ 68 The majority based its decision on reweighing Schuering's testimony that she has never
encountered a collective bargaining document in her 13 years in the position. Consequently, it
determined that Schuering did not have authorized, or actual, access to collective bargaining
information in the regular course of her duties, relying on Niles Township High School District
219 v. Illinois Educational Labor Relations Board, 387 Ill. App. 3d 58 (2008) and Glenview, 374
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Ill. App. 3d 892, for support. Neither of those cases support the majority's opinion. In both
cases, the evidence showed that not only did the employees at issue testify that they had never
viewed collective bargaining material in the course of their duties, but also that their jobs did not
require them to actually read the contents of such documents during troubleshooting and
maintenance tasks. The court in both Niles and Glenview found the fact that the employees did
not have to read the collective bargaining information they accessed while performing their
regular duties significant when it determined the employees did not have actual access to
confidential material. Niles, 387 Ill. App. 3d at 76; Glenview, 374 Ill. App. 3d at 901-02.
¶ 69 The majority disagrees and points out that in both Niles and Glenview the contested
employees stated that they read or had access to confidential material. However, in Niles,
although one of the contested employees stated that on occasion she "read materials only when
needed" to troubleshoot, the materials she read consisted of " 'backups' of stored information
which was 'a mixture of everything on the server[.]' " Niles, 387 Ill. App. 3d at 63. Although
there were no restrictions on her access to information, she did not have access to all of the
servers and stated that she had no reason to read a collective bargaining document. Id. at 64. In
Glenview, although the contested employee's job description stated that the person in the position
should have the "ability to handle confidential information," the court did not view the
description as determinative because "it does not specify the nature of such confidential
information." Glenview, 374 Ill. App. 3d at 904. The court found that the school district failed
to present evidence showing that the employee had actual, authorized access to confidential
collective bargaining information in the course of her regular duties. Id. at 903-04.
¶ 70 Here, the ALJ found that when troubleshooting an Excel document, Schuering must
sometimes "assess and evaluate their contents" to "fix problematic formulas" and that these
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documents can contain budget information material to the collective bargaining process. Price
testified that Schuering's position provides computer network support to the Treasurer and staff,
including assistance with Excel functions. Unlike the situation in Niles and Glenview, where no
evidence was presented that the contested employees must read or have actual access to
confidential collective bargaining information, here we know with certainty that Schuering had
actual access to the information when performing her regular duties. She was required and had
the ability to actually read the contents of Excel documents while troubleshooting.
¶ 71 The majority has reweighed heavily Schuering's testimony that in all of her years on the
job she has never encountered a collective bargaining document, reasoning that when a position
exists for a substantial length of time the employee's actual access weighs in the determination.
Equally relevant to the inquiry is the position's present job description. See Department of
Central Management Services v. Illinois Labor Relations Board (CMS), 2012 IL App (4th)
110356, ¶¶ 29, 30. In CMS, the court found that although the employee at issue had not accessed
collective bargaining material so far in the course of his duties, his job description states that one
of his duties is drafting and reviewing legal documents including labor agreements. Id. The
court found the fact that the employee had not yet received an assignment with access to
confidential material "carrie[d] little weight" because he could be assigned "such a task at any
time." Id. ¶ 32. It further reasoned that to look only "at what the current employee has done so
far in the position, and not what his or her job responsibilities include, yields absurd results"
because if the employee subsequently receives such an assignment he or she "would need to be
removed from the union, which could happen at any time." Id.
¶ 72 The job description for ISA II states that the position "performs daily administration,
monitoring, and troubleshooting of servers" which the ALJ found includes assistance with Excel,
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a program used in the Treasurer's office for budget-related matters. In order to perform her
troubleshooting duties, the ALJ found that Schuering must sometimes "assess and evaluate their
contents" to "fix problematic formulas" and these documents in the Treasurer's office can contain
budget information pertinent to the collective bargaining process. As the court in CMS reasoned,
the fact that Schuering has not yet performed a task requiring her to peruse a collective
bargaining document carries little weight here because she could perform such a task at any time
according to her job description.
¶ 73 The majority finds significant the fact that Schuering has not encountered confidential
collective bargaining information in the course of her duties for the past 13 years. However, the
evidence presented shows that in her position Schuering must assist in troubleshooting with
Excel, and when doing so she must read the contents of Excel documents in order to
troubleshoot. Excel documents can contain confidential collective bargaining information. The
majority now changes the law to exclude from "confidential employee" status those who have
actual access to read the contents of confidential bargaining information, but have not yet done
so. Although Schuering has not come across such documents yet, she could at any time during
the course of her duties. The majority opinion sets out a change to the law which is properly one
for the legislature, not the courts. For these reasons, I would find that the Board's determination
was not clearly erroneous and should be affirmed; therefore, I respectfully dissent.
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