Support Council of District 39 v. Educational Labor Relations Board

FIRST DIVISION

June 26, 2006

No. 1-05-2687

SUPPORT COUNCIL OF DISTRICT 39, WILMETTE ) Petition for Review of

LOCAL 1274, IFT-AFT, AFL-CIO, ) Decision and Order of the

) Illinois Educational Labor

Petitioner-Appellant, ) Relations Board

)

v. )

)

EDUCATIONAL LABOR RELATIONS BOARD AND ) No. 2005-UC-0005-C

WILMETTE SCHOOL DISTRICT NO. 39, )

)

Respondents-Appellees. )

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

The Support Council of District 39, Wilmette Local 1274, IFT-AFT, AFL-CIO (the

Union), petitioner, appeals from a final order of the Illinois Educational Labor Relations Board

(IELRB), respondent, excluding from the Union's bargaining unit a newly created position in

Wilmette School District No. 39 (the District), respondent. We affirm.

The District established a new position of "network manager" for the 2004-05 school

year. The written job description described the primary function as: to "[manage] the design,

installation, configuration and maintenance of computers, network systems, and other related

equipment." Specific responsibilities were the support of "district-wide computer networks,"

including retrieving lost data, maintaining complex records, having the ability to prepare

complete and concise reports and other duties as assigned by the administrator. The job

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description did not mention that the manager would need or have access to confidential

information. The record shows that the position was filled before or during the pendency of this

matter. The new employee was given full access to the District's computer system and was

authorized to establish user names and passwords. He could override passwords to repair

workstations and he engaged in routine monitoring of network use by employees.

The Union filed a unit clarification petition with the IELRB, seeking to include the

position in the bargaining unit. See Sedol Teachers Union v. Illinois Educational Labor

Relations Board, 276 Ill. App. 3d 872, 879, 658 N.E.2d 1364 (1995) (unit clarification is proper

to resolve ambiguities about the unit placement of employees in newly established job

classifications). The District contested the petition, seeking exclusion of the manager as a

confidential employee. The District contended that the manager would encounter confidential

collective bargaining data on the job and would have unfettered access to the entire system of

files, including those of the superintendent and business manager.

The Illinois Educational Labor Relations Act (Act) defines a "confidential employee" as

"an employee, who (i) 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 (ii) 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 2004).

The IELRB's executive director issued an "Executive Director's Recommended Decision

and Order," denying the unit clarification petition and finding the network manager to be a

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confidential employee. The order provided, in relevant part:

"First, there is evidence that the Network Manager will have actual access to

confidential collective bargaining information in the regular course of his duties.

*** The Network Manager is responsible for the operation and maintenance of

the District's network on a daily basis ***. The network stores all of the

negotiations proposals, Board meeting minutes and costing data for collective

bargaining in identifiable files. The Network Manager has access to the District's

computer network and individuals['] workstations without restriction or detection

in the regular course of performing the duties listed in his job description. The

Network Manager can override employee passwords and the software used to

prevent unauthorized access to the network.

In the regular course of his duties, the Network Manager is required to

restore a file that has become corrupt or retrieve a file that was inadvertently

deleted. Because confidential collective bargaining data is stored in files on the

network, it is part of the Network Manager's job to restore or retrieve that data if

the file becomes corrupt or is otherwise lost. Even if an individual's access to

confidential collective bargaining information is sporadic, the individual is still

confidential if the access occurs as part of his or 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,] 493

N.E.2d 1130 (*** 1986). The Network Manager is also expected to troubleshoot

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database losses. These databases may contain collective bargaining information.

The Network Manager's access to collective bargaining information may occur

before or during, as well as after, negotiations. The Network Manager's access to

the District's system of files is unfettered.

In addition, it is envisioned that the Network Manager will be asked to

help District administrators in setting up and/or performing analytical functions,

including cost projections, the next time the District negotiates concerning one of

the bargaining units in the District. In performing these duties, the Network

Manager will necessarily have unfettered access ahead of time to collective

bargaining information."

When the IELRB voted on the adoption of the recommendation, one member recused

herself. The remaining members voted to a 2 to 2 tie. In the absence of a majority, the decision

of the executive director became final, but lacked precedential effect. Board of Education of

Community Consolidated High School District No. 230 v. Illinois Educational Labor Relations

Board, 165 Ill. App. 3d 41, 54, 418 N.E.2d 713 (1987).

The Union appeals, claiming: (1) the executive director should have set the petition for a

hearing because there were unresolved questions of material fact; and (2) the executive director

erred in finding the network manager to be a confidential employee.

Our review of an IELRB decision is deferential and we will reverse only if it was clearly

erroneous. One Equal Voice v. Illinois Educational Labor Relations Board, 333 Ill. App. 3d

1036, 1041, 777 N.E.2d 648 (2002).

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Where a unit clarification petition "presents unresolved questions of material fact, the

Executive Director shall set it for a hearing." 80 Ill. Admin. Code '1110.160(c), as amended by

28 Ill. Reg. 7938 (eff. May 28, 2004). If there are no unresolved facts that warrant a hearing,

then the executive director issues a recommended decision and order to which the parties may

file exceptions and supporting briefs. 80 Ill. Admin. Code '1110.160(c), as amended by 28 Ill.

Reg. 7938 (eff. May 28, 2004).

The Union first claims that unresolved questions of material fact existed, requiring the

executive director to hold a hearing. It argues: (1) the decision of the executive director was

based solely on the unverified and unsworn factual assertions, conclusions and commentary in

the answer and reply filed by the District's attorney; (2) the attorney's assertions were

unsupported by affidavit or other admissible evidence; and (3) the job description does not

mention that the manager would have access to confidential information. The District argues

that the Union did not challenge the facts about the position presented by the District earlier and

does so disingenuously now.

The most pertinent document of record is the Union's response to the District's answer to

the unit clarification petition. That response supports the conclusion that the Union accepted the

material facts as set forth by the District's attorney in its answer. The Union applied its legal

arguments to the facts as stated in the District's answer and voiced no challenges to the facts.

Other than the Union's claim on appeal, we find no indication that material facts were in dispute

between the parties such that a hearing was warranted. The IELRB did not err in proceeding

without a hearing.

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The Union next argues that the executive director erred in finding that the network

manager is a confidential employee under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West

2004)). It argues that the network manager would not need access to confidential information to

perform the functions of the job. It contends that unfettered access is necessary only because the

District chose to store confidential information on computer hard drives rather than removable

disks.

The IELRB considered a similar argument in deciding whether a school district's newly

created position of technology coordinator, a job similar to the one at issue here, was a

confidential employee within the meaning of section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii)

(West 1998)) in Woodland Community Unit School District 5, 16 Pub. Employee Rep. (Ill.) par.

1026, No. 99CUCC0005C2 (IELRB February 1, 2000) (hereinafter 16 Pub. Employee Rep.

(Ill.) par. 1026). The Woodland job description required the employee to coordinate the repair

and maintenance of the district's technology equipment. The coordinator maintained the

passwords and security methodologies for all computers and network systems of the district.

The coordinator was responsible for "maintain[ing] strict confidentiality in respect to all District

records kept in any electronic or magnetic form, including *** those developed or maintained by

the Board of Education or Administrators with regard to labor relations and collective

bargaining." Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at 79.

The IELRB in a plurality opinion determined that the technology coordinator was a

confidential employee within the meaning of section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii)

(West 1998)). Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at 78. The IELRB found that

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the district's technology coordinator would need to access files and "once a file is displayed on a

screen, it would be virtually impossible not to read the document displayed." Woodland, 16 Pub.

Employee Rep. (Ill.) par. 1026, at 80. In Woodland, as here, the union argued that the district

had a duty to devise a system to prevent the employee's access to confidential files. The IELRB

disagreed, concluding that an employer had no legal duty to purchase a computer program or

devise a system to limit or detect the employee's access to files. Woodland, 16 Pub. Employee

Rep. (Ill.) par. 1026, at 81.

The facts here are similar to those in Woodland. Here, as there, the position is newly

created. Both jobs require district-wide repair and maintenance of computer network systems.

The job description here did not mention the specific terms "confidentiality" or "collective

bargaining," but Woodland was not decided solely on the basis of the explicit use of those terms.

The IELRB in Woodland stated that a job description alone is not the deciding factor in

determining confidential status. The actual duties of the employee and the facts of the case at

hand must be weighed. Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at 81.

Here, the network manager received broad and "unfettered" district-wide access to

computer files when he started the job. The manager was given direct access to the computer

files at all levels, including the confidential data of the superintendent and high-level

administrators. The manager's responsibility of retrieving lost data supports the inference that he

sees confidential documents that have been lost or deleted. See Plainfield, 143 Ill. App. 3d at

911 ("a person who performs confidential duties on a sporadic basis is still confidential").

Maintaining complex records and generating reports suggests that the manager is privy to

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confidential financial and workforce information and projections. Under these circumstances, it

cannot be said that the IELRB erred in finding that the network manager was a confidential

employee.

Woodland also resolves the Union's argument that the District should be required to store

its confidential collective bargaining data on disks to prevent the manager from seeing it. The

IELRB rejected the notion that a school district must devise systems to prevent computer

technology managers from accessing confidential files. Woodland, 16 Pub. Employee Rep. (Ill.)

par. 1026, at 81.

As noted, Woodland was a plurality decision and the Union relies on the dissent. The

dissenters argued that the district had provided insufficient evidence to establish that the

technology coordinator, in the regular course of her duties, had access to information related to

collective bargaining. Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at 82 (Berendt,

Chairman, and Gavin, Member, dissenting). The dissent likened the role of the technology

coordinator to that of a security staff member watching the door outside a confidential meeting

or a custodian emptying the superintendent's waste basket of confidential documents.

Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at 83.

We find these analogies inapplicable to the role of the network manager here. More

applicable is the pragmatic view of the Woodland majority: "once a file is displayed on a screen,

it would be virtually impossible not to read the document displayed." Woodland, 16 Pub.

Employee Rep. (Ill.) par. 1026, at 80. The network manager here sees, manipulates, reads and

develops reports from all data on all district computers, including confidential material

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pertaining to labor relations. The exclusion of the network manager from the bargaining unit as

a confidential employee achieves the objective long supported by courts: "management should

not be required to handle labor relations matters through employees in a union who, in the

normal performance of their duties, 'may obtain advance information of the [c]ompany's position with

regard to contract negotiations, the disposition of grievances, and other labor relations matters.' " District

No. 230, 165 Ill. App. 3d at 60, quoting National Labor Relations Board v. Hendricks

County Rural Electric Membership Corp., 454 U.S. 170, 179, 70 L. Ed. 2d 323, 331,

102 S. Ct. 216, 223 (1981).

The Union also argues that the manager should not be excluded under Board of Control

of the Lake County Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, No.

2003CUCC0003CC (IELRB January 20, 2004) (hereinafter 20 Pub. Employee Rep. (Ill.) par.

5). There, the IELRB reversed an order that granted a school district's unit clarification petition

to remove two computer technicians from the bargaining unit by designating them as

confidential employees. The IELRB declined to follow Woodland, finding that the exclusion

sought in Woodland was for one position that was newly created. The controversy in Lake

County involved "the entire [t]echnician force" of two employees who were not new but had

been in the bargaining unit earlier. Lake County, 20 Pub. Employee Rep. (Ill.) par. 5, at 32.

"Where a position has existed for an amount of time, we will heavily weigh evidence of actual

access to confidential labor relations material as part of that individual's job." Lake County, 20

Pub. Employee Rep. (Ill.) par. 5, at 32.

The facts here are unlike those in Lake County. The network manager is a newly created

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position with no earlier participation in the bargaining unit. Nor are there multiple positions that

constitute the entire workforce of computer technicians. Lake County does not prevent us from

deciding that the IELRB did not err in this case, particularly in light of the opinion's agreement

with Woodland that, since "each bargaining unit determination is dependent on factual

variations, each case should be decided on an ad hoc basis." Lake County, 20 Pub. Employee

Rep. (Ill.) par. 5, at 32.

The Union's final argument is that the executive director erred in accepting the District's

claim that the network manager would participate in future analytical functions, including cost

projections in collective bargaining. The Union argues that, in general, planned future

responsibilities and advisory roles are insufficient to exclude the network manager as a

confidential employee, citing One Equal Voice, 333 Ill. App. 3d at 1043; Plainfield, 143 Ill.

App. 3d at 910; Vermilion Occupational Technical Center, 1 Pub. Employee Rep. (Ill.) par. 1103,

No. 84CUCC0003CS (IELRB April 17, 1985). In One Equal Voice, the IELRB

found that certain employees were confidential because they would have access to confidential collective

bargaining information in the future. One Equal Voice, 333 Ill. App. 3d at 1041. This court reversed

and remanded the decision because the IELRB did not determine "whether there was a reasonable

expectation that the employees alleged to be confidential would in fact be performing confidential duties" in an

impending collective bargaining process. One Equal Voice, 333 Ill. App. 3d at 1044. The

District argues that the "reasonable expectation" test as discussed in One Equal Voice, 333 Ill. App.

3d at 1043-44, is not applicable here because the network manager's duties are not speculative.

The "reasonable expectation" test is one of three tests formulated by the IELRB to decide

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whether an employee has confidential status. Chief Judge of the Circuit Court of Cook County v.

American Federation of State, County & Municipal Employees, Council 31, 153 Ill. 2d 508,

523, 607 N.E.2d 182 (1992). An employee is confidential if he meets the requirements

established in any one of the three tests. Chief Judge, 153 Ill. 2d at 523. The "reasonable

expectation" test is applied where no collective bargaining unit is in place, but it is expected that

the employee will assume confidential responsibilities when the unit is established. Chief Judge,

153 Ill. 2d at 524. The Alabor-nexus@ test finds that an employee is confidential where, in his regular duties

and in a confidential capacity, he assists one or more persons who formulate, determine or effectuate labor

relations policies. Chief Judge, 153 Ill. 2d at 523. An employee is confidential under the

Aauthorized access@ test if he has authorized access to information on matters specifically related to collective

bargaining between labor and management. Chief Judge, 153 Ill. 2d at 523. In both the "authorized

access" and "labor nexus" tests, "inquiry 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."

District 230, 165 Ill. App. 3d at 62.

The facts here differ from those in One Equal Voice where there had been no history of collective

bargaining. One Equal Voice, 333 Ill. App. 3d at 1043. Here, the bargaining unit was in

existence and so the "reasonable expectation" test as used in One Equal Voice is inapplicable. But the

application of the other tests described in Chief Judge support the conclusion that the network manager is a

confidential position. Chief Judge, 153 Ill. 2d at 523. The job is "confidential" under the "labor-

nexus" test because its regular duties include providing assistance on the network in a confidential capacity to

the District's top administrators, including the superintendent and business manager. Those employees

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formulate, determine or effectuate labor relations policies. It is not disputed their computer files contain

collective bargaining information. The network manager has access to their files to perform his duties of

maintaining complex records, retrieving lost data and preparing reports from the data. The manager is

"confidential" under the "authorized access" test because his job gives him access to all data stored in and

transmitted though the District's network of computers, which includes collective bargaining information.

Having determined that the IELRB did not err in adopting the executive director's recommendation

and order, we need not address the District's alternative argument in support of an affirmance based on

Niles Township High School District No. 219, 21 Pub. Employee Rep. (Ill.) par. 103, No.

2003CUCC0007CC (IELRB June 16, 2005); and McHenry County College, 21

Pub. Employee Rep. (Ill.) par. 149, No. 2005CUCC0013CC (IELRB August 25,

2005).

We conclude that the executive director's finding that the network manager had unfettered access to

confidential collective bargaining information was not erroneous. Nor did the IELRB err in adopting the

director's order that excluded the network manager from the bargaining unit as a confidential employee. The

order is affirmed.

Order affirmed.

GORDON and McBRIDE, JJ., concur.

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