Department of Central Management Services v. Illinois Labor Relations Board

ILLINOIS OFFICIAL REPORTS

Appellate Court

Department of Central Management Services/The Department of State Police v. Illinois

Labor Relations Board, State Panel, 2012 IL App (4th) 110356

Appellate Court THE DEPARTMENT OF CENTRAL MANAGEMENT

Caption SERVICES/THE DEPARTMENT OF STATE POLICE, Petitioner, v.

THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL;

JACALYN J. ZIMMERMAN, MICHAEL HADE, MICHAEL COLI,

ALBERT WASHINGTON, and JESSICA KIMBROUGH, the Members

of Said Board and Panel in Their Official Capacity Only; ELAINE L.

TARVER, in Her Official Capacity Only as an ILRB Administrative Law

Judge; JOHN BROSNAN, Executive Director of Said Board in His

Official Capacity Only; and THE ILLINOIS STATE EMPLOYEES

ASSOCIATION, LABORERS INTERNATIONAL UNION, LOCAL

2002, Respondents.

District & No. Fourth District

Docket No. 4-11-0356

Filed December 11, 2012

Held An attorney employed by the State Police in a position classified as a

(Note: This syllabus public service administrator was properly found not to be a managerial

constitutes no part of employee for purposes of being included in a collective-bargaining unit,

the opinion of the court since he had little discretion to act independently on behalf of the State

but has been prepared Police; however, the Board’s conclusion that he was not a confidential

by the Reporter of employee was clearly erroneous under a proper application of the

Decisions for the authorized-access test; therefore, the finding that the attorney was not a

convenience of the confidential employee was reversed and the portion of the certification of

reader.)

representation including the attorney’s position in the collective-

bargaining unit was vacated.

Decision Under Petition for review of order of Illinois Labor Relations Board, State Panel,

Review No. S-RC-10-122.

Judgment Reversed in part and vacated in part.

Counsel on Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special

Appeal Assistant Attorneys General, of Chicago, for petitioner.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and John P. Schmidt (argued), Assistant Attorney

General, of counsel), for respondent State of Illinois.

Panel JUSTICE TURNER delivered the judgment of the court, with opinion.

Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶1 Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 9(i) of the

Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/9(i) (West 2008)), petitioner,

the Department of Central Management Services/Department of State Police (Department),

seeks direct review of a decision of the Illinois Labor Relations Board, State Panel (Board),

to include the position held by Nicholas Kondelis, an attorney with the State Police, in a

stand-alone bargaining unit represented by the Illinois State Employees Association,

Laborers International Union, Local 2002 (Union). On review, the Department asserts

Kondelis cannot be a member of the collective-bargaining unit because he is a (1) managerial

employee under section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2008)), and (2)

confidential employee under section 3(c) of the Labor Act (5 ILCS 315/3(c) (West 2008)).

We reverse in part the Board’s decision and vacate in part the certification of representation.

¶2 I. BACKGROUND

¶3 On October 26, 2009, the Union filed a representation-certification petition, seeking to

create a collective-bargaining unit, consisting of four attorney positions classified as public

service administrator, option 8L, or staff attorney with the State Police and Illinois

Emergency Management Agency. The positions at the Illinois Emergency Management

Agency, which were certified as members of the collective-bargaining unit, are not at issue

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in this appeal. The attorneys who held the State Police positions at issue were William Jarvis

and Nicholas Kondelis. The Department responded, noting the State Police had four public

service administrator, option 8L, positions and objecting to those positions’ inclusion in the

proposed collective-bargaining unit. The Union then sought to include only the additional

public service administrator, option 8L, position of William Hosteny.

¶4 On April 29, 2010, administrative law judge Sylvia Rios commenced the hearing on the

Union’s proposed certification. The Department presented the testimony of Hosteny, who

was the acting chief legal counsel for the State Police, and numerous supporting exhibits.

The Union presented the testimony of Kondelis and Jarvis and a joint exhibit. The following

is a brief summary of the evidence since the parties are familiar with the facts of this case.

¶5 The evidence showed the structure of the State Police and the current union

representation. The sworn officers of the State Police that were troopers, sergeants,

lieutenants, and captains were represented by the Troopers Lodge 41 of the Fraternal Order

of Police (Fraternal Order of Police) and the master sergeants were represented by the

Teamsters. The Director of the Department of State Police has several internal offices that

are led by chiefs that report to the Director’s office. Those offices included the legal office,

the labor-relations office, the office of governmental affairs, and the “EEO” office. The State

Police’s legal office consists of 10 attorneys. Seven of the attorneys are sworn police officers

who would normally be represented by the Fraternal Order of Police but were excluded from

the bargaining unit under a memorandum of understanding between the State Police and the

Fraternal Order of Police. The other three attorneys are Hosteny, Kondelis, and Jarvis, all of

whom are civilians in the public service administrator, option 8L, position. At the time of the

hearing, Hosteny was acting chief counsel. The chief of the legal office, currently Hosteny,

officially reported to the first deputy director, Luis Tigera, who was the second highest

ranking person in the State Police, and could also report to the chief of staff, Jessica Trame.

¶6 Moreover, Hosteny testified he worked with other offices on legal matters, including the

labor-relations office. According to Hosteny, all of the staff attorneys in the office had the

same kinds of duties, and he assigned cases based on who was available and who had the

best background for the issue. With his labor-relations background, Hosteny did most of the

labor-relations work. Evidence was presented showing a time when Jarvis worked on a labor-

relations issue. Due to Kondelis’s criminal-law background, Hosteny often assigned Kondelis

to work on merit-board cases. Hosteny explained discipline of sworn officers was governed

by the State Police Act (20 ILCS 2610/0.01 et seq. (West 2008)) and how the process

worked. In explaining the merit-board process, Hosteny noted the State Police were

represented by the Attorney General’s office and his office assisted with the cases by lining

up witnesses, prepping witnesses, and drafting questions. Hosteny emphasized that, while

he assigned attorneys matters based on their legal background, he did cross-train his

employees so they could handle a matter when needed. Hosteny also noted Kondelis was the

attorney in the office that handled matters with the State Police’s forensic science

laboratories and often Kondelis was contacted directly on such issues.

¶7 Kondelis testified he was a former prosecutor in the Cook County State’s Attorney’s

office. With his criminal-law background, “a lot” of Kondelis’s work was with merit-board

cases. Kondelis explained he had no authority to accept or reject settlement offers in merit-

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board cases. He relayed any settlement offers to Hosteny, who discussed the matter with

Tigera and Trane, outside of Kondelis’s presence. Kondelis also testified that, while he could

draft a merit-board complaint, he had no authority to file the complaint. Such matters had to

go through Hosteny.

¶8 In addition to merit-board cases, Kondelis conducted seminars for the State Police’s

forensic laboratory scientists. He had also worked on an Equal Opportunity Employment

Commission case involving a forensic scientist. In the past, Hosteny had also asked Kondelis

to provide State Police officers information on issues such as forced blood draws. Further,

Kondelis testified he was not involved in matters of collective bargaining and labor issues.

He had never been involved with grievances, labor arbitrations, and collective-bargaining

strategies. Even if a merit-board case he was working on also involved a grievance, Kondelis

had nothing to do with the grievance process.

¶9 In October 2010, administrative law judge Elaine L. Tarver filed a written recommended

decision and order, finding Kondelis’s and Jarvis’s positions were neither managerial nor

confidential. (The record does not reveal why the order was written by a different

administrative law judge than the one that heard the evidence.) Thus, the decision

recommended the certification of the bargaining unit that included Kondelis’s and Jarvis’s

positions. Hosteny’s public service administrator, option 8L, position was excluded due to

the lack of evidence about that position. Tarver later filed a corrected recommended decision

and order. The Department filed exceptions to the corrected recommended decision and

order, asserting Kondelis and Jarvis should have been excluded because they were both

managerial and confidential employees.

¶ 10 On March 25, 2011, the Board, which was comprised of Jacalyn J. Zimmerman, Michael

Hade, Michael Coli, Albert Washington, and Jessica Kimbrough, issued a decision and order,

rejecting the administrative law judge’s determination that Jarvis was not a confidential

employee. On March 29, 2011, the Board’s executive director, John Brosnan, executed the

certification of representative for the collective-bargaining unit that included Kondelis’s

position.

¶ 11 On April 26, 2011, the Department filed its timely petition for administrative review

under Rule 335. See 5 ILCS 315/9(i) (West 2008). Accordingly, we have jurisdiction under

article VI, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, § 6) and

section 9(i) of the Labor Act (5 ILCS 315/9(i) (West 2008)).

¶ 12 II. ANALYSIS

¶ 13 A. Standard of Review

¶ 14 With direct administrative review, this court reviews de novo the agency’s decision on

a question of law. Niles Township High School District 219 v. Illinois Educational Labor

Relations Board, 379 Ill. App. 3d 22, 26, 883 N.E.2d 29, 33 (2007). On the other hand, we

afford deference to the agency’s decision on a question of fact and will not reverse such a

decision unless it is against the manifest weight of the evidence. Niles Township, 379 Ill.

App. 3d at 26, 883 N.E.2d at 33. An administrative agency’s finding is “against the manifest

weight of the evidence only where the opposite conclusion is clearly evident.” Peacock v.

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Board of Trustees of the Police Pension Fund, 395 Ill. App. 3d 644, 652, 918 N.E.2d 243,

250 (2009).

¶ 15 Some agency decisions involve both questions of law and fact. “ ‘A mixed question of

law and fact asks the legal effect of a given set of facts.’ ” Niles Township, 379 Ill. App. 3d

at 26, 883 N.E.2d at 33 (quoting Elementary School District 159 v. Schiller, 221 Ill. 2d 130,

143, 849 N.E.2d 349, 358 (2006)). This court will not reverse an agency’s decision on a

mixed question of law and fact unless it is clearly erroneous. Niles Township, 379 Ill. App.

3d at 26, 883 N.E.2d at 33. Our supreme court has defined the clearly erroneous standard as

follows:

“An agency decision will be reversed because it is clearly erroneous only if the reviewing

court, based on the entirety of the record, is left with the definite and firm conviction that

a mistake has been committed. [Citation.] While this standard is highly deferential, it

does not relegate judicial review to mere blind deference of an agency’s order.” (Internal

quotation marks omitted.) SPEED District 802 v. Warning, 242 Ill. 2d 92, 112, 950

N.E.2d 1069, 1080-81 (2011) (quoting Board of Trustees of the University of Illinois v.

Illinois Labor Relations Board, 224 Ill. 2d 88, 97-98, 862 N.E.2d 944, 950-51 (2007)).

Generally, Illinois courts treat the Board’s determination of whether an employee is a

managerial or confidential employee as a mixed question of law and fact and thus review the

matter under the clearly erroneous standard. See Board of Education of Glenview Community

Consolidated School District No. 34 v. Illinois Educational Labor Relations Board, 374 Ill.

App. 3d 892, 899, 874 N.E.2d 158, 164 (2007); County of Cook v. Illinois Labor Relations

Board-Local Panel, 351 Ill. App. 3d 379, 387, 813 N.E.2d 1107, 1115 (2004).

¶ 16 B. Managerial Employee

¶ 17 The Department first contends the Board erred by including Kondelis’s position in the

collective-bargaining unit because he is a managerial employee and the Labor Act excludes

such employees from engaging in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West

2008). The Board alleges Kondelis’s primary duties of assisting in merit-board cases and

advising personnel in the State Police’s forensic science laboratories do not make him a

managerial employee. We conclude the Department has failed to show the Board’s decision

was clearly erroneous.

¶ 18 Section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2008)) defines “managerial

employee” as “an individual who is engaged predominantly in executive and management

functions and is charged with the responsibility of directing the effectuation of management

policies and practices.” The purpose of the exclusion is to “maintain the distinction between

management and labor and to provide the employer with undivided loyalty from its

representatives in management.” Chief Judge of the Sixteenth Judicial Circuit v. Illinois State

Labor Relations Board, 178 Ill. 2d 333, 339, 687 N.E.2d 795, 797 (1997). In determining

whether an employee is a “managerial employee” under the Labor Act, Illinois courts have

utilized the following two tests: (1) “the traditional test, which considers whether the

employee is a managerial employee as a matter of fact,” and (2) “the alternative test, which

considers whether the employee is a managerial employee as a matter of law.” (Internal

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quotation marks omitted.) Department of Central Management Services/The Illinois Human

Rights Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 310, 315,

943 N.E.2d 1150, 1155 (2010) (quoting Department of Central Management Services/The

Department of Healthcare & Family Services v. Illinois Labor Relations Board, State Panel,

388 Ill. App. 3d 319, 330, 902 N.E.2d 1122, 1130 (2009).

¶ 19 On the issue of whether the position was a managerial one, the administrative law judge

found Kondelis (1) did not meet the first criterion of the traditional test; (2) was not

managerial under the application of the considerations in Salaried Employees of North

America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013, 1022, 560

N.E.2d 926, 933 (1990); and (3) was not a managerial employee as a matter of law because

his functions were not prescribed by law. On appeal, the Department’s application of the law

to the facts of this case, which is only 10 lines long and contains no citation to the evidence

presented at the hearing, appears to assert Kondelis is a managerial employee under the

considerations of SENA. The administrative law judge found SENA distinguishable from the

facts of this case because Kondelis did not regularly provide assistance to, or consult with,

the labor-relations office as such matters are handled by Hosteny. Additionally, despite the

cross-training, the administrative law judge found the evidence showed the attorneys were

divided by their background and experience.

¶ 20 In SENA, 202 Ill. App. 3d at 1021, 560 N.E.2d at 932, the reviewing court emphasized

the managerial exclusion exists to prevent employees from being placed in a position that

requires them to divide their loyalty between the employer and the collective-bargaining unit.

There, the law department at issue functioned as a single cohesive unit as tasks were assigned

in a team fashion without any acknowledgment of formal management-union division

between the attorneys. SENA, 202 Ill. App. 3d at 1022, 560 N.E.2d at 933. Moreover, the

reviewing court found the law department was an inherent part of the city as all of the

attorneys had the authority to recommend changes in the manner in which the city operated.

SENA, 202 Ill. App. 3d at 1022-23, 560 N.E.2d at 933. The law department attorneys also

exercised a tremendous amount of discretion on the city’s behalf, and thus the reviewing

court did not believe the city should have to bear the divided loyalty that often followed

unionization. SENA, 202 Ill. App. 3d at 1023, 560 N.E.2d at 933. Last, the reviewing court

emphasized the uniqueness of the facts of the case and noted the law department’s structure

was diffused rather than rigid. SENA, 202 Ill. App. 3d at 1023, 560 N.E.2d at 933-34.

¶ 21 Here, the State Police’s legal office has a clear hierarchy and a division of labor. Hosteny,

as acting chief legal counsel, assigned matters to the other attorneys in the office and

generally relied on the attorney’s background and experience in assigning the cases. Due to

his criminal-law background, Kondelis worked primarily on merit-board cases. In such cases,

Kondelis had no authority to accept or reject settlement offers and was not even present when

the settlement offers were discussed. Moreover, Kondelis did not have the authority to file

a merit-board complaint. The complaint had to go through Hosteny. At the merit-board

hearings, the State Police were represented by the Attorney General’s office, and Kondelis

only assisted that office. The Department noted those cases were against union members,

who were usually represented by union attorneys. However, the only union members

mentioned at the hearing as being disciplined in the merit-board process belonged to the

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Teamsters and the Fraternal Order of Police, not the union from which the Department seeks

to exclude Kondelis’s position. The only evidence of Kondelis acting independently was in

giving legal advice to the forensic laboratories. Hosteny testified the laboratory employees

could contact Kondelis directly about questions.

¶ 22 Thus, we find the structure of the State Police’s legal division is not diffused, and

Kondelis had little discretion to act independently on behalf of the State Police. The facts of

this case are clearly distinguishable from those in SENA and the same considerations do not

apply here. Accordingly, the Board’s finding Kondelis failed to qualify as a managerial

employee under the application of the considerations in SENA is not clearly erroneous.

¶ 23 C. Confidential Employee

¶ 24 The Department further asserts Kondelis should not have been included in the collective-

bargaining unit because he is a confidential employee, which the Labor Act also excludes

from engaging in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West 2008). The Board

argues its decision Kondelis failed to meet the definition of “confidential employee” is not

clearly erroneous because the record shows Kondelis did not handle labor-relations matters

and did not have authorized access to collective-bargaining information. However, the

Board’s decision and its argument on appeal consider only the work Kondelis has done so

far in his position as a public service administrator, option 8L, and fail to take into account

all of the position’s job responsibilities.

¶ 25 Section 3(c) of the Labor Act (5 ILCS 315/3(c) (West 2008)) defines a “confidential

employee” as the following:

“an 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.”

The Labor Act excludes confidential employees to prevent “employees from ‘having their

loyalties divided’ ” between their employer, who expects confidentiality in labor-relations

matters, and their union, which may seek access to confidential material to gain an advantage

in the bargaining process. Chief Judge of the Circuit Court v. American Federation of State,

County & Municipal Employees, Council 31, 153 Ill. 2d 508, 523, 607 N.E.2d 182, 189

(1992) (hereinafter AFSCME). For determining whether an employee is a “confidential

employee” under section 3(c) of the Labor Act, three different tests have been formulated.

AFSCME, 153 Ill. 2d at 523, 607 N.E.2d at 189. If an employee meets the requirements

established in any one of the tests, the employee is a confidential employee for purposes of

the Labor Act. AFSCME, 153 Ill. 2d at 523, 607 N.E.2d at 189. The employer bears the

burden of proving the employee is a confidential employee.

¶ 26 In this case, the Department only asserted Kondelis was a confidential employee under

the labor-nexus and authorized-access tests, and the administrative law judge found Kondelis

was not a confidential employee under those tests. On appeal, the Department sets forth both

the labor-nexus and the authorized-access tests, but it does not present any argument as to

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how Kondelis’s position met the requirements of the labor-nexus test. Due to that failure, the

Board asserts the Department has forfeited any argument Kondelis is a confidential employee

under the labor-nexus test. See Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006) (providing for the

waiver of any point not argued). We note the Department did not file a reply brief, and thus

it did not respond to the Board’s forfeiture argument. Accordingly, we find the Department

has forfeited any argument based on the labor-nexus test.

¶ 27 Under the authorized-access test, an employee is deemed confidential if the employee has

authorized access to information concerning matters specifically related to the collective-

bargaining process between labor and management. AFSCME, 153 Ill. 2d at 523, 607 N.E.2d

at 189. Information related to the collective-bargaining process would include (1) the

employer’s strategy in dealing with an organizational campaign, (2) actual collective-

bargaining proposals, and (3) the information relating to matters dealing with contract

administration. City of Evanston v. Illinois State Labor Relations Board, 227 Ill. App. 3d

955, 978, 592 N.E.2d 415, 430 (1992). However, an employee’s “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.” City of Evanston, 227 Ill. App. 3d at 978, 592 N.E.2d at 430.

Additionally, the access to information must be in the regular course of the employee’s

duties. AFSCME, 153 Ill. 2d at 525, 607 N.E.2d at 190.

¶ 28 In concluding Kondelis was not a confidential employee, the administrative law judge

found he was not privy to conversations, documents, meetings, or any other communications

concerning labor relations. The order noted Kondelis did have access to investigative reports

drafted by the internal affairs division, but the record did not disclose the information

contained in such reports. The administrative law judge found that, since Kondelis did not

have job duties related to collective bargaining, contract matters, or contract administration

matters, he did not regularly handle or have access to information that, if divulged, would

provide advance notice to the bargaining unit on labor-relation matters.

¶ 29 The aforementioned findings focus on the work Kondelis has done so far in his position

with the State Police and do not look at the job responsibilities of Kondelis’s position. While

this issue was not raised in the parties’ briefs, it was discussed at oral arguments. After oral

arguments, respondent was granted leave to cite One Equal Voice v. Illinois Educational

Labor Relations Board, 333 Ill. App. 3d 1036, 777 N.E.2d 648 (2002). In that case, the First

District noted that, under the tests for determining a confidential employee, both the Board

and courts “have generally been reluctant to consider as evidence an employee’s future job

duties when the onset of those duties is merely a speculative possibility.” One Equal Voice,

333 Ill. App. 3d at 1042-43, 777 N.E.2d at 653-54. “The inherent risk of considering such

possible future job duties is evident as the employer could use such speculation as a method

to exclude employees from a bargaining unit.” One Equal Voice, 333 Ill. App. 3d at 1043,

777 N.E.2d at 654. The court went on to find that, due to the recent restructuring of job

functions, the Board should have applied the reasonable-expectation test, which was adopted

“to consider evidence of impending future job duties where there has been no history of

collective bargaining.” One Equal Voice, 333 Ill. App. 3d at 1043, 777 N.E.2d at 654.

¶ 30 We find One Equal Voice distinguishable from this case because the job duties for

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Kondelis’s position are not speculative possibilities. The evidence showed the State Police’s

legal office, in which Kondelis works, currently had the responsibility of providing legal

advice to other internal divisions, including the labor-relations division. Specifically, the job

description for Kondelis’s position states one of his job duties is drafting and reviewing legal

documents necessary for the functioning of the agency, including, inter alia, labor

agreements. The Department presented numerous documents showing actual work by

attorneys in the legal office on matters related to the collective-bargaining process. Several

documents were related to Jarvis’s work assignment, for which he worked with the chief of

the labor-relations division on an “interest arbitration” involving the contract with the

Teamsters. In finding Jarvis was a confidential employee, the Board found Jarvis’s

aforementioned worked clearly exposed him to “sensitive information regarding collective

bargaining strategy.” Despite the fact Jarvis had only that one labor-relations assignment, the

Board found it was part of his regular course of duties because it was a normal task and not

an ad hoc assignment. The Department also submitted labor-relations work done by Hosteny

related to the collective-bargaining agreement with the Teamsters, which also demonstrated

access to information related to the collective-bargaining process.

¶ 31 Moreover, Hosteny explained Kondelis could be assigned such work and indicated why

Kondelis had not yet received such work. Specifically, Hosteny testified that, while he

generally assigned worked based on an employee’s background, he had the right to give any

of the assignments to any of his legal staff and did cross-train his employees. Additionally,

he explained all of the public service administrator, option 8L, attorneys in his office perform

similar roles as legal advisors for the State Police. With his labor-relations background,

Hosteny currently performed most of the labor-relations work in his office. Further, we note

the evidence did not indicate the labor agreement language contained in the job description

for a public service administrator, option 8L, was only included to keep the position out of

the union.

¶ 32 Accordingly, the Department’s evidence clearly showed providing legal advice to the

labor-relations division is part of a public service administrator option 8L’s regular job

responsibilities, which gave the employee authorized access to information concerning the

collective-bargaining process between labor and management. The fact Hosteny has yet to

give Kondelis, the current employee holding the position, such an assignment carries little

weight because Hosteny could assign Kondelis or any future employee in the position such

a task at any time. Looking just at what the current employee has done so far in the position,

and not what his or her job responsibilities include, yields absurd results. For example, as

soon as Hosteny assigned Kondelis to an assignment related to collective bargaining, he

would need to be removed from the union, which could happen at any time. The limited

focus also forces a supervisor to make sure all employees perform all of their job

assignments as soon as possible when some tasks may need more on-the-job experience

before an employee can properly perform it. Moreover, since Kondelis is in the same office

as attorneys who have received collective-bargaining assignments, it is highly likely he is

present for conversations about those assignments or has computer access to his coworkers’

work. Keeping Kondelis’s position from all access to collective-bargaining related materials

would place a large burden on the legal office. Accordingly, we hold that, in applying the

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authorized-access test, one must consider the position’s job responsibilities and not just what

the current position holder just happens to have done so far in the position.

¶ 33 Here, under a proper application of the authorized-access test, Kondelis’s public service

administrator, option 8L, position is a confidential employee. Accordingly, we find the

Board’s conclusion Kondelis’s position was not a confidential one under section 3(c) of the

Labor Act was clearly erroneous. Thus, we vacate that portion of the certification of

representation that included Kondelis’s position in the collective-bargaining unit.

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, we reverse that part of the Board’s decision finding Kondelis’s

position was not a confidential employee and vacate the part of the certification of

representation that included Kondelis’s position in the collective-bargaining unit.

¶ 36 Reversed in part and vacated in part.

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