{ "id": 7328887, "name": "THE BOARD OF EDUCATION OF GLENVIEW COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 34, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees", "name_abbreviation": "Board of Education of Glenview Community Consolidated School District No. 34 v. Illinois Educational Labor Relations Board", "decision_date": "2007-06-25", "docket_number": "No. 4\u201406\u20140560", "first_page": "892", "last_page": "906", "citations": [ { "type": "official", "cite": "374 Ill. App. 3d 892" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "784 F.2d 232", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1548189 ], "year": 1986, "pin_cites": [ { "page": "235", "parenthetical": "affirming the National Labor Relations Board's decision rejecting supervisory status, in part, on the basis that the company's assessment of supervisory status would result in a ratio of one supervisor to two or three employees, which was \" 'clearly out of balance' \"" } ], "opinion_index": 0, "case_paths": [ "/f2d/784/0232-01" ] }, { "cite": "65 N.L.R.B. 284", "category": "reporters:federal", "reporter": "N.L.R.B.", "year": 1947, "pin_cites": [ { "page": "287", "parenthetical": "rejecting an employer's assertion that photostat operators were confidential employees because \"they photostat, on occasion, matters from the general manager's office which pertain to confidential labor relations data\"" } ], "opinion_index": 0 }, { "cite": "493 N.E.2d 1130", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 898", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5666957 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0898-01" ] }, { "cite": "866 F.2d 228", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10524912, 10524961 ], "year": 1988, "pin_cites": [ { "page": "233", "parenthetical": "describing the clearly erroneous standard as follows: \" '[M]ore than just maybe or probably wrong; it must *** strike us as wrong with the force of a five-week-old, unrefrigerated dead fish' \"" } ], "opinion_index": 0, "case_paths": [ "/f2d/866/0228-01", "/f2d/866/0228-02" ] }, { "cite": "263 F.3d 906", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9486196 ], "year": 2001, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/f3d/263/0906-01" ] }, { "cite": "92 L. Ed. 746", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1948, "pin_cites": [ { "page": "766" }, { "page": "766" } ], "opinion_index": 0 }, { "cite": "333 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157998 ], "weight": 4, "year": 1948, "pin_cites": [ { "page": "395" }, { "page": "542" }, { "page": "395" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/us/333/0364-01" ] }, { "cite": "763 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "280-81" }, { "page": "282" }, { "page": "280-81" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29956 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "393" }, { "page": "395" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0380-01" ] }, { "cite": "800 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "484" }, { "page": "485" } ], "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777914 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "637" }, { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0624-01" ] }, { "cite": "859 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "89", "parenthetical": "discussing analogous statutory language and holding that \"[a]n employer who wishes to exclude an employee from a bargaining unit because the employee is a confidential employee bears the burden of proving that fact\"" } ], "opinion_index": 0 }, { "cite": "369 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267077 ], "year": 2006, "pin_cites": [ { "page": "123", "parenthetical": "discussing analogous statutory language and holding that \"[a]n employer who wishes to exclude an employee from a bargaining unit because the employee is a confidential employee bears the burden of proving that fact\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0112-01" ] }, { "cite": "777 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "653" }, { "page": "653", "parenthetical": "because the Board's determination whether a position is confidential \"is best characterized as a mixed question of law and fact,\" that determination should be reviewed under the clearly erroneous standard" } ], "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486833 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "1042" }, { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/1036-01" ] }, { "cite": "607 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "189", "parenthetical": "discussing analogous statutoiy language" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738696 ], "year": 1992, "pin_cites": [ { "page": "523", "parenthetical": "discussing analogous statutoiy language" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0508-01" ] }, { "cite": "518 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1987, "pin_cites": [ { "page": "722" }, { "page": "722" }, { "page": "726" }, { "page": "727" }, { "page": "726" }, { "page": "726" }, { "page": "727" }, { "page": "726-27" } ], "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614210 ], "weight": 8, "year": 1987, "pin_cites": [ { "page": "56" }, { "page": "56" }, { "page": "61" }, { "page": "63" }, { "page": "62" }, { "page": "62" }, { "page": "63" }, { "page": "61-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0041-01" ] } ], "analysis": { "cardinality": 1192, "char_count": 38110, "ocr_confidence": 0.805, "pagerank": { "raw": 7.500188514851265e-08, "percentile": 0.44645807535497245 }, "sha256": "dfcfe112088469dbb2ab02a209386380a8c8f31309601234c06ae3ab08abfe6d", "simhash": "1:1d7e34c26176cd16", "word_count": 5716 }, "last_updated": "2023-07-14T18:10:59.295026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MYERSCOUGH and KNECHT, JJ., concur." ], "parties": [ "THE BOARD OF EDUCATION OF GLENVIEW COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 34, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nPetitioner, the Board of Education of Glenview Community Consolidated School District No. 34 (District), appeals from a March 2006 final order of respondent Illinois Educational Labor Relations Board (Board), in which the Board determined that the position of administrative assistant to the director of technology (technology administrative assistant) in the District was included in a bargaining unit represented by respondent Glenview Professional Association, IEA/NEA (Association). We affirm the Board\u2019s order.\nI. BACKGROUND\nIn September 2005, the Association filed a petition with the Board, seeking to add the technology administrative assistant position to a bargaining unit represented by the Association. Later that month, the District filed a response, arguing that the technology administrative assistant position was \u201cconfidential,\u201d pursuant to the Illinois Educational Labor Relations Act (115 ILCS 5/2(n) (West 2004)).\nAt an October 2005 hearing on the petition conducted by an administrative law judge (ALJ), the evidence showed the following. At the end of the 2003-04 school year, the District created a new full-time position of technology administrative assistant. That position combined some of the duties of a former full-time network technician with the duties of a former part-time administrative assistant. The District\u2019s technology department also includes the director of educational technology (Brian Engle), the network manager (Kelly Conwell), and four network engineers. The network engineers report to work at individual school buildings and are responsible for day-today troubleshooting in those buildings. The technology administrative assistant position reports to work in the District\u2019s administrative building, along with the director of educational technology and the network manager.\nThe job description for the technology administrative assistant indicates that the purpose of the position is \u201cto provide administrative and secretarial support to ensure the smooth operations of school[-] related and business functions\u201d of the District. The job description also lists the following job responsibilities: (1) provide support to the director of educational technology, network manager, and network engineers; (2) coordinate technology purchases; (3) coordinate inventory of software and hardware; (4) maintain the District\u2019s voice mail, e-mail, and telephone systems; (5) coordinate telephone system service activities; (6) coordinate new staff members\u2019 access to the District\u2019s network and PowerSchool (a software program that allows the District to track student attendance and report grades); (7) maintain group e-mail lists; (8) provide support with computer-software applications; (9) develop and download data sets for certain assessment systems; and (10) assist in the technology budgeting process. The job description also indicates that the technology administrative assistant should have the \u201c[a]bility to handle confidential information,\u201d but it does not specify the nature of such confidential information.\nMarilyn Miller testified on the District\u2019s behalf that she had been the District\u2019s executive director of human resources for 12 years, until her retirement in June 2005. The technology administrative assistant position was first advertised prior to the start of the 2004-05 school year. An individual was hired and held that position from September 2004 through December 2004. Margaret Coons was then hired as the technology administrative assistant.\nAs the executive director of human resources, Miller\u2019s responsibilities included hiring, making tenure recommendations, overseeing applications and evaluations, addressing salary issues, working with labor-relations groups, and serving on the labor-relations management committee. During the last round of labor negotiations with the Association, Miller was on the District\u2019s negotiating team. Miller and her administrative assistants regularly used their computers to draft policies and salary proposals, saved those documents to the human-resources shared folder, and e-mailed documents and messages to other administrators regarding negotiations and grievance settlements. She also attached documents to her e-mails to share with school-board members and the District\u2019s attorneys. Miller did not recall ever personally showing any confidential labor-relations documents to the technology administrative assistant or to the predecessor to that position \u2014 namely, the former full-time network technician.\nEngle testified on the District\u2019s behalf that he had been the director of educational technology for about one year. The director of educational technology is responsible for the District\u2019s technology department, educational technology, and assuring that technology is being appropriately integrated into the classrooms. The technology administrative assistant is one of three technology employees in the administration building who perform troubleshooting duties. The network manager is responsible for the District\u2019s entire network, while the network engineers are responsible for \u201cthe day-to-day troubleshooting work on the computers.\u201d In addition to performing \u201cclerical\u201d duties, the technology administrative assistant provides \u201clevel[-]one\u201d technology support to staff members in the administrative building. Engle described level-one troubleshooting as \u201cquick troubleshooting\u201d involving \u201ceasy issues.\u201d The technology administrative assistant also adds users to the District\u2019s network, which involves using a program called WorkGroup Manager to create new user accounts, maintain user names and passwords, and grant access to e-mail groups. The technology administrative assistant is one of eight staff members who possess the master password that allows for computer troubleshooting. If Engle and Conwell are both out of the administrative building, staff members could ask Coons to assist them in retrieving lost documents. To do so, she would be expected to use the master password to try to find the document on the server, desktop, or hard drive. Engle stated that when he and Conwell are not in their offices, they are available via cellular phone or can be contacted through the help desk. When asked if Coons uses the master password to retrieve lost documents \u201cin the regular course of her job duties,\u201d Engle replied as follows: \u201cI don\u2019t know the percentage or the amount because she would only do it if [I was] not in the building.\u201d Engle also stated that Coons \u201ccould be\u201d expected to retrieve or repair files in which collective-bargaining information is stored. Coons \u201cmight come across\u201d a labor-relations document when (1) a staff member is locked out of a file and Coons uses WorkGroup Manager to reestablish the staff member\u2019s permission to access the file or (2) she is performing \u201cface-to-face troubleshooting.\u201d The technology administrative assistant is not responsible for \u201csystem tape backups.\u201d\nEngle also testified that the technology administrative assistant is required to maintain confidentiality with respect to network security and any information encountered while troubleshooting. If Coons were to access a staff member\u2019s e-mail account, that staff member would know because Coons would be required to change the staff member\u2019s password to access the account. However, if Coons were working at a staff member\u2019s workstation, no one would know whether she accessed an e-mail or other document. Engle stated that Coons had never seen a confidential labor-relations document.\nJill Engel testified on the District\u2019s behalf that she had been the District\u2019s director of human resources since July 2005. In that capacity, she oversees all employment matters for the District. She is also on the labor-relations committee, where she deals with issues related to the formation of the District\u2019s policies and procedures. The next round of labor negotiations with the Association was scheduled to begin in February 2006, and Engel planned to be a member of the negotiating team. She anticipated using her computer to create documents containing proposals and analyses on economic issues, saving those documents to a subfolder within the shared human-resources folder. Engel also expected to use e-mail to communicate with other administrators regarding labor-relations issues.\nEngel also testified that she considered the technology administrative assistant position more technology related than secretarial or administrative. Engel considered Coons the \u201cgo-to\u201d person for technology-related issues in the administration building. However, she did not know how much time Coons spent performing troubleshooting duties. Engel preferred not to ask Engle or Conwell for technology-related assistance because it takes them away from their duties in the individual schools. However, if Coons is not available, she asks either Engle or Conwell for assistance. On one occasion when Coons helped Engel with an e-mail issue, the subject-matter lines of Engel\u2019s e-mails were displayed. Engel could \u201calmost guarantee\u201d that some of those e-mails had subject matter that \u201crelated to sensitive issues that could be related to\u201d labor-relations issues.\nCoons testified on the Association\u2019s behalf that in January 2005, she began working in the technology administrative assistant position. The majority of her job duties involve administrative duties, such as obtaining price quotes on computer-related equipment and software, placing orders per requests from the network manager, keeping inventory of hardware and software products, and calling outside vendors for needed computer support. She has access to the technology budget and the technology accounts, but the business office must provide her with access to other accounts. In addition, Coons is responsible for \u201cadd[ing] users to the District\u2019s network\u201d by creating new user accounts and assigning to the new users various computer privileges, such as e-mail accounts and access to group e-mails and group folders. After assigning a new staff member an e-mail user name and password, Coons instructs the staff member to change his password. Coons would then be required to \u201cgo in and actually change the password for that individual\u201d if she wanted to access that staff member\u2019s e-mail account. Coons\u2019 job entails similar responsibilities for the voice-mail system. Coons has never been asked to read any staff member\u2019s e-mails.\nCoons also testified that the majority of the troubleshooting duties are performed by the network manager. Coons has never used the District\u2019s remote desktop to access computer files or drafts of documents, and she does not know how to do so. Instead, the network manager performs such duties. Coons stated that if a staff member has problems with her e-mail password, Coons \u201cwouldn\u2019t even venture to try and help.\u201d Instead, she would direct that staff member to the network manager, who \u201cknows the ins and outs of e-mail.\u201d Nor has Coons ever been assigned to look at any labor-relations materials. The only confidential material that may have \u201cever crossed [her] desk\u201d was students\u2019 standardized test scores. Coons has taught other staff members how to make charts using the Excel software program and had given Engel access to an e-mail group that included staff members for the primary grades. Giving Engel that access did not require Coons to enter Engel\u2019s e-mail account or view any of Engel\u2019s e-mails. Instead, it required only that Coons enter the network and \u201cpull[ ] a name from one area of the screen into another.\u201d Coons acknowledged that in assisting a staff member with a computer-related problem, it is possible that a document could be opened in front of her.\nIn November 2005, the ALJ issued a recommended decision and order dismissing the Association\u2019s petition. Glenview Professional Ass\u2019n, 21 Pub. Employee Rep. (Ill.) par. 201, No. 2006\u2014RS\u20140002\u2014C (ALJ decision, Illinois Educational Labor Relations Board November 16, 2005). In so doing, the ALJ determined that the position of technology administrative assistant was a \u201cconfidential employee\u201d under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West 2004)). Later that month, the Association filed exceptions to the ALJ\u2019s decision, and in December 2005, the District filed a response.\nIn March 2006, the Board issued an order reversing the ALJ\u2019s decision, upon determining that the position of technology administrative assistant did not constitute a \u201cconfidential employee\u201d under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West 2004)). Glenview Professional Ass\u2019n, 22 Pub. Employee Rep. (Ill.) par. 37, No. 2006\u2014RS\u20140002\u2014C (Illinois Educational Labor Relations Board March 23, 2006) (hereinafter Glenview Professional Ass\u2019n, 22 Pub. Employee Rep. (Ill.) par. 37). In June 2006, the Board certified that Coons had chosen to be represented by the Association.\nThis appeal followed.\nII. ANALYSIS\nA. The Act and the Standard of Review\nThe purpose of the Act is to regulate labor relations between educational employers and employees for their benefit as well as that of the general public. 115 ILCS 5/1 (West 2004); Board of Education of Community Consolidated High School District No. 230, Cook County v. Illinois Educational Labor Relations Board, 165 Ill. App. 3d 41, 56, 518 N.E.2d 713, 722 (1987). Section 2(b) of the Act defines an \u201ceducational employee\u201d as \u201cany individual, excluding *** confidential *** employees\u201d (115 ILCS 5/2(b) (West 2004)). Section 2(n)(ii) of the Act defines a \u201cconfidential employee,\u201d in pertinent part, as one who, \u201cin the regular course of his or her duties has access to information relating to the effectuation or review of the employer\u2019s collective[-] bargaining policies\u201d (115 ILCS 5/2(n)(ii) (West 2004)). Thus, employees that are deemed \u201cconfidential\u201d \u201care excludable from labor organizations which otherwise represent those employees and act to protect their rights.\u201d District No. 230, 165 Ill. App. 3d at 56, 518 N.E.2d at 722. The confidential-employee exclusion \u201cis designed to protect against premature disclosure of bargaining positions\u201d (District No. 230, 165 Ill. App. 3d at 61, 518 N.E.2d at 726) by limiting the bargaining association\u2019s membership to those employees who do not, in the regular course of their jobs, have access to \u201c \u2018information concerning matters arising from the collective [-jbargaining process\u2019 \u201d (District No. 230, 165 Ill. App. 3d at 63, 518 N.E.2d at 727, quoting City of Burbank, 1 Pub. Employee Rep. (Ill.) par. 2008, No. S\u2014RC\u201445, at 44 (Illinois State Labor Relations Board June 6, 1985)).\nUnder section 2(n)(ii)\u2019s \u201caccess test,\u201d the \u201cinquiry 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.\u201d District No. 230, 165 Ill. App. 3d at 62, 518 N.E.2d at 726. The information must be confidential, and the employee\u2019s access to the information must be authorized. District No. 230, 165 Ill. App. 3d at 62, 518 N.E.2d at 726; see Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees, Council 31, 153 Ill. 2d 508, 523, 607 N.E.2d 182, 189 (1992) (discussing analogous statutoiy language). Confidential information includes \u201c \u2018the employer\u2019s strategy in dealing with an organizational campaign, actual collective[-]bargaining proposals and information relating to matters dealing with contract administration.\u2019 \u201d District No. 230, 165 Ill. App. 3d at 63, 518 N.E.2d at 727, quoting City of Burbank, 1 Pub. Employee Rep. (Ill.) par. 2008, No. S\u2014RC\u201445, at 44 (Illinois State Labor Relations Board June 6, 1985). Because the statutory exclusion precludes the confidential employee from exercising the panoply of rights guaranteed by the Act, courts must narrowly interpret the exclusion. One Equal Voice v. Illinois Educational Labor Relations Board, 333 Ill. App. 3d 1036, 1042, 777 N.E.2d 648, 653 (2002). The party asserting the exclusion has the burden of producing sufficient evidence to support its position. See County of Cook v. Illinois Labor Relations Board, 369 Ill. App. 3d 112, 123, 859 N.E.2d 80, 89 (2006) (discussing analogous statutory language and holding that \u201c[a]n employer who wishes to exclude an employee from a bargaining unit because the employee is a confidential employee bears the burden of proving that fact\u201d).\nThe parties agree that the Board\u2019s 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. Chicago Teachers Union v. Illinois Educational Labor Relations Board, 344 Ill. App. 3d 624, 637, 800 N.E.2d 475, 484 (2003); see also One Equal Voice, 333 Ill. App. 3d at 1041, 777 N.E.2d at 653 (because the Board\u2019s determination whether a position is confidential \u201cis best characterized as a mixed question of law and fact,\u201d that determination should be reviewed under the clearly erroneous standard). The clearly erroneous standard is \u201cextremely deferential.\u201d Chicago Teachers Union, 344 Ill. App. 3d at 638, 800 N.E.2d at 485. Thus, an administrative agency\u2019s decision will be reversed only if the reviewing court, based on the entire record, is \u201c \u2018left with the definite and firm conviction that a mistake has been committed.\u2019 \u201d AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393, 763 N.E.2d 272, 280-81 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948); see also Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001), quoting Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988) (describing the clearly erroneous standard as follows: \u201c \u2018[M]ore than just maybe or probably wrong; it must *** strike us as wrong with the force of a five-week-old, unrefrigerated dead fish\u2019 \u201d). Nonetheless, the clearly erroneous standard does not mean that a reviewing court \u201cmust blindly defer to the agency\u2019s decision.\u201d AFM Messenger Service, 198 Ill. 2d at 395, 763 N.E.2d at 282.\nB. The Board\u2019s Prior Decisions Interpreting Section 2(n)(ii)\u2019s Access Test\nIn Woodland Community Unit School District 5, 16 Pub. Employee Rep. (Ill.) par. 1026, No. 99\u2014UC\u20140005\u20142 (Illinois Educational Labor Relations Board February 1, 2000) (hereinafter Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026), the Woodland Education Association sought to add a newly created position of technology coordinator to the bargaining unit the Association represented. The job description for that position provided that one of the coordinator\u2019s \u201cessential duties and responsibilities\u201d was to maintain strict confidentiality with respect to \u201cinformation relating to *** the effectuation or review of the [school district\u2019s] collective[-]bargaining policies.\u201d Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-79. The technology coordinator was responsible for the security, maintenance, and repair of the school district\u2019s computers. The coordinator had access to all of the school district\u2019s files and backup system and had authority to open any and all computer files to make sure that they had not been corrupted and perform repairs. To perform maintenance and repair functions, the coordinator often had to access a file, which was then displayed on a computer screen. The evidence showed that once a file was actually displayed on a screen, \u201cit would be virtually impossible not to read the document displayed.\u201d Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-80. The technology coordinator could and actually did access all files with or without the superintendent\u2019s direction. The coordinator\u2019s access to the superintendent\u2019s files, which contained collective-bargaining information, could not be detected. The technology coordinator was the only employee who was assigned to maintain all network user names and passwords and who was capable of reading backup tapes of the school district\u2019s computer system. The Board determined that the technology coordinator was a confidential employee under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West 1998)). The Board reasoned that the technology coordinator had access to confidential collective-bargaining information \u201cin the regular course\u201d of her duties. In addition, the Board emphasized that when addressing cases involving computer-technology related positions, it would \u201cdecide each representation case on the basis of the facts presented in that case alone.\u201d Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-81.\nIn Lake County Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, No. 2003 \u2014 UC\u20140003\u2014C (Illinois State Labor Relations Board January 20, 2004) (hereinafter Lake County Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5), the Board clarified its decision in Woodland. The Board stated that when deciding unit-clarification petitions involving employees who are responsible for the operation and maintenance of an employer\u2019s computer system, the Board would consider the following factors: (1) whether evidence exists of \u201cactual access to confidential collective[-]bargaining information in the regular course of duties,\u201d (2) the job description of the position at issue, and (3) the employee\u2019s day-to-day activities. Lake County Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, at 32. The Board also stated that \u201c[w]here a position has existed for an amount of time, [the Board] will heavily weigh evidence of actual access to confidential labor relations material as part of that individual\u2019s job.\u201d Lake County Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, at 32. The Board further noted that it would closely scrutinize cases in which multiple technicians handle confidential information.\nC. The Board\u2019s Decision in This Case\nThe District argues that the Board\u2019s determination that the position of technology administrative assistant did not constitute a \u201cconfidential employee\u201d under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West 2004)) was clearly erroneous. We disagree.\nIn determining that the position of technology administrative assistant did not constitute a confidential employee under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West 2004)), the Board stated, in pertinent part, the following:\n\u201cUnder the three-step test in Lake County, the [technology administrative assistant] is not a confidential employee. First, the facts do not establish Coons\u2019 actual access to confidential collective[-]bargaining information in the regular course of her duties. Unlike the technology [coordinator in Woodland, it has not been demonstrated that Coons accesses all files to maintain the computer system and ensure that it is operating properly. The evidence establishes only that Coons gives other employees access to the District\u2019s computer system, and that documents that Coons might encounter while troubleshooting, retrieving[,] or repairing them could include labor[-]relations documents. The District has not demonstrated that giving access to a computer system involves review of the documents contained in that system. *** Miller *** admitted that she had not shown Coons or the employee in the eliminated [n]etwork [technician\u2019s position, who also engaged in technology troubleshooting and whose position was incorporated into Coons\u2019 position, any labor[-]relations documents.\nMoreover, the [Board] stated in Lake County that an employee will not be considered confidential when his/her access to confidential information is incidental to his/her primary duties, like that of a custodian emptying a superintendent\u2019s wastebasket. Here, Coons testified that she does not pay attention to documents when she is troubleshooting. This demonstrates that reading the documents is not an inherent part of her troubleshooting duty, but is no more required than a custodian is required to read the documents in the wastebasket that he/she is emptying. Unlike in Woodland, the District did not provide evidence that Coons\u2019 duties require her to read the documents that she is troubleshooting. Thus, contrary to the District\u2019s argument, any access of Coons to confidential labor relations information would result from chance, rather than being inherent in the functions of her position.\nThe District argues that it should not be required to establish that Coons has actually seen confidential information. In requiring that the District establish Coons\u2019 actual access to confidential collective[-]bargaining information in the regular course of her duties, we do not require the District to establish that Coons has actually seen such information, but only that real and more than incidental access will occur in the regular course of her duties.\nThe District argues that Coons has the unfettered ability to access information on the District\u2019s computer network at will, and that she can access files saved locally on a computer\u2019s hard drive. The District asserts that this access includes unfettered access ahead of time to confidential labor[-]relations information. However, unlike the technology [coordinator in Woodland, there is no evidence that Coons has been given the responsibility of accessing all files in order to maintain the computer system. The District has not demonstrated that for Coons to explore files she has not been specifically asked to work on would be authorized or in the regular course of her duties. Coons\u2019 ability to see the descriptive titles of subfolders, files[,] and e[-]mails does not establish authorization to view the documents themselves.\nThe District also argues that a reasonable expectation existed that Coons would be placed in close proximity to and would have access to confidential collective[-]bargaining information when negotiations began in February 2006. However, Coons\u2019 duties would involve such access only in that documents that she might encounter while troubleshooting, retrievingt,] or repairing them could include labor[-]relations documents. The District did not provide evidence that Coons\u2019 duties would require her to read the documents that she would be troubleshooting. Thus, even during the February 2006 negotiations, Coons would not have authorized access to confidential collective[-]bargaining information in the regular course of her duties.\nIn addition, the District argues that the fact that Coons\u2019 access to confidential information may occur sporadically is of no consequence to her status as a confidential employee. We recognize that, when it occurs in the regular course of an individual\u2019s duties, sporadic access to confidential collective[-]bargaining information may be sufficient to establish confidential status. See Board of Education of Plainfield Community Consolidated School District No. 202 v. IELRB, 143 Ill. App. 3d 898, 493 N.E.2d 1130 (4th Dist. 1986). However, we do not find here that sporadic access to confidential collective [-]bargaining information would be insufficient to establish confidential status. Rather, we require that access to confidential collective[-]bargaining information be actual and in the regular course of the disputed individual\u2019s duties. In sum, we conclude that the facts in this case do not establish that the [technology administrative assistant] has actual access to confidential collective[-]bargaining information in the regular course of her duties.\nSecond, Coons\u2019 job description does not indicate that she is to have access to confidential labor[-]relations information. While her job description states that her position requires the \u2018ability to handle confidential information,\u2019 it does not elaborate as to the nature of the confidential information. This is unlike the [technology [cjoordinator\u2019s job description in Woodland, which specified that the information that the [technology [coordinator was expected to keep confidential related to the \u2018the effectuation or review of the District\u2019s collective[-]bargaining policies. ***\nThird, an analysis of Coons\u2019 day-to-day activities does not demonstrate that she is a confidential employee. Coons\u2019 day-to-day activities consist of performing various administrative duties and providing technology support for the District administrative office. Within the realm of providing technology support, her day-to-day activities included setting up and helping with computer access, providing support for user accounts, troubleshooting, helping other employees who ask for assistance in operating their software, maintaining the [e-]mail system, and coordinating and maintaining the District telephone system. Unlike the [tjechnology [coordinator in Woodland, Coons is not responsible for system tape back[ ]ups. The District has not made a sufficient showing that these duties entail authorized access to confidential labor[-]relations information.\u201d Glenview Professional Ass\u2019n, 22 Pub. Employee Rep. (Ill.) par. 37, at 131-32.\nWe have carefully reviewed the evidence presented under the appropriate standard of review, as we are required to do. Having done so, we are not \u201c \u2018left with the definite and firm conviction that a mistake has been committed.\u2019 \u201d AFM Messenger Service, 198 Ill. 2d at 393, 763 N.E.2d at 280-81, quoting United States Gypsum Co., 333 U.S. at 395, 92 L. Ed. at 766, 68 S. Ct. at 568. The evidence showed that in the course of her regular duties, the technology administrative assistant theoretically could have access to confidential collective-bargaining information. However, the District presented no evidence showing that the technology administrative assistant (or the predecessor network technician, for that matter) had actual authorized, unfettered access to such confidential information in the course of her regular duties. In addition, the evidence showed that the technology administrative assistant\u2019s day-to-day activities predominantly involved general administrative duties. To the extent those day-to-day activities involved technology support and computer troubleshooting, such duties did not involve authorized, unfettered access to confidential collective-bargaining information. Instead, the evidence showed that, at most, the technology administrative assistant had been exposed to the names of folders and subfolders and e-mail subject lines that may have suggested that the underlying content of the documents related to confidential bargaining information. The evidence further showed that while the technology administrative assistant\u2019s job description indicates that the person occupying the position should have the \u201c \u2018ability to handle confidential information\u2019 \u201d (Glenview Professional Ass\u2019n, 22 Pub. Employee Rep. (Ill.) par. 37, at 132), it does not specify the nature of such confidential information.\nWe thus conclude that the Board\u2019s decision that the technology administrative assistant position did not constitute a confidential employee under section 2(n)(ii) of the Act was not clearly erroneous.\nIn so concluding, we reject the District\u2019s contention that the Board \u201capplied a new \u2018actual access\u2019 standard.\u201d Instead, the Board\u2019s written decision shows that the Board simply applied the three-step test outlined in Woodland (including the \u201cactual[-]aceess\u201d test) to the facts of this case. We agree with the Board that the way it defined \u201cactual access\u201d \u2014 namely, as real and more than incidental access *** occurring] in the regular course of her duties (Glenview Professional Ass\u2019n, 22 Pub. Employee Rep. (Ill.) par. 37, at 131) \u2014 was consistent with prior decisions of the Board and the National Labor Relations Board that rejected claims that employees were confidential because they had occasional, irregular, or potential access to collective-bargaining material. See, for example, In re Bethlehem-Sparrows Point Shipyard, Inc., 65 N.L.R.B. 284, 287 (1947) (rejecting an employer\u2019s assertion that photostat operators were confidential employees because \u201cthey photostat, on occasion, matters from the general manager\u2019s office which pertain to confidential labor relations data\u201d); District No. 230, 165 Ill. App. 3d at 61-63, 518 N.E.2d at 726-27 (in which this court affirmed the hearing officer\u2019s determination that the secretaries at issue were not confidential employees, even though evidence showed that the secretaries had access to employee personnel files and had acted \u201cin a confidential capacity\u201d regarding grievances).\nWe also reject the District\u2019s contention that the Board acted inappropriately when it heavily weighed the actual access to collective-bargaining material in this case. According to the District, the technology administrative assistant position was newly created, similar to the technology coordinator position in Woodland. When the position at issue is newly created, actual access to confidential labor-relations information should not be given much weight, especially when labor negotiations had not taken place during the short time that the position existed. Unlike the newly created position in Woodland, which had existed for only four months at the time of the hearing in that case, the technology administrative assistant position here had existed and been staffed for more than a year before the October 2005 hearing on the petition. We recognize that the Board in Lake County did not specifically define what it means for a position to have \u201cexisted for an amount of time.\u201d Lake County Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, at 32. However, whatever that phrase means, we conclude that the Board did not act inappropriately by giving weight to the technology administrative assistant position\u2019s actual access to collective bargaining material.\nWe further reject the District\u2019s contention that the Board arbitrarily applied \u201cgreater scrutiny\u201d in this case based on its decision in Lake County, in which the Board noted that it would scrutinize cases in which multiple technicians handle confidential information. In this case, the District claimed that all eight of its technical employees who possess the master password constitute confidential employees under the Act. In addition, the evidence showed that (1) Engle and Conwell are principally responsible for troubleshooting computer problems in the administration building; (2) both Engle and Conwell have offices in the administration building; (3) when they are not in their offices, they are available via cellular phone or can be contacted through the help desk; and (4) both Engle and Conwell can perform troubleshooting duties from remote locations. Given that the District has multiple technicians who allegedly handle confidential information and both Engle and Conwell are available for troubleshooting within the administration building, the Board did not act arbitrarily by applying greater scrutiny here. Nor did the Board\u2019s application of that standard result in its telling the District how it should run its technology department or structure its staff. Instead, as the Association points out, the Board merely determined that where (1) an educational employer has multiple technicians (each of whom the employer purports is confidential) and (2) the status of one of those technicians is questioned, the Board \u201cwill look carefully at the evidence to ensure that the Act\u2019s indicia of \u2018confidential status\u2019 is met as to that employee\u201d (emphasis in original). We note that the Board\u2019s \u201cgreater scrutiny\u201d test is consistent with the National Labor Relations Board\u2019s longstanding principle of looking critically at supervisory status where the exclusion of supervisors in a department would result in an abnormally high ratio of supervisors to those being supervised. See, for example, National Labor Relations Board v. Health Care Logistics, Inc., 784 F.2d 232, 235 (6th Cir. 1986) (affirming the National Labor Relations Board\u2019s decision rejecting supervisory status, in part, on the basis that the company\u2019s assessment of supervisory status would result in a ratio of one supervisor to two or three employees, which was \u201c \u2018clearly out of balance\u2019 \u201d).\nFinally, we reject the District\u2019s contention that the Board acted arbitrarily by determining that the technology administrative assistant \u201cwould have to \u2018read\u2019 the documents displayed on the computer screen in order for it to be considered an inherent part of her job duty.\u201d Viewing the Board\u2019s written decision in its totality, we agree with the Association that the Board\u2019s remark that Coons does not \u201cread\u201d documents while troubleshooting (Glenview Professional Ass\u2019n, 22 Pub. Employee Rep. (Ill.) par. 37, at 132) was part of a lengthy discussion of the distinction between the job duties performed by the technology coordinator in Woodland (who often accessed files, which were then displayed on the computer screen, thus being virtually impossible not to read) and the technology administrative assistant position here. Given that no evidence showed that the technology administrative assistant had actual access to confidential collective-bargaining documents in the regular course of her computer troubleshooting duties, the Board\u2019s isolated remark does not constitute arbitrariness in the Board\u2019s decision.\nIII. CONCLUSION\nFor the reasons stated, we affirm the Board\u2019s order.\nAffirmed.\nMYERSCOUGH and KNECHT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "Stanley B. Eisenhammer, Ellen B. Eothenberg, and Steven M. Richart, all of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Paul Berks, Assistant Attorney General, of counsel), for appellee Illinois Educational Labor Relations Board.", "Laurie M. Burgess, of Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck, of Chicago, for appellee Glenview Professional Association." ], "corrections": "", "head_matter": "THE BOARD OF EDUCATION OF GLENVIEW COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 34, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees.\nFourth District\nNo. 4\u201406\u20140560\nArgued June 13, 2007.\nOpinion filed June 25, 2007.\nStanley B. Eisenhammer, Ellen B. Eothenberg, and Steven M. Richart, all of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for appellant.\nLisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Paul Berks, Assistant Attorney General, of counsel), for appellee Illinois Educational Labor Relations Board.\nLaurie M. Burgess, of Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck, of Chicago, for appellee Glenview Professional Association." }, "file_name": "0892-01", "first_page_order": 910, "last_page_order": 924 }