American Federation of State, County and Municipal Employees v. Illinois Labor Relations Board

2014 IL App (1st) 132455, 16 N.E.3d 72

• Court: Appellate Court of Illinois
• Decided: July 8, 2014
• Docket: 1-13-2455
• Status: Unpublished

Opinion

2014 IL App (1st) 132455

SECOND DIVISION July 8, 2014

No. 1-13-2455

AMERICAN FEDERATION OF STATE, COUNTY ) On Petition for AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) Review of a Final ) Administrative Petitioner, ) Decision of the v. ) Illinois Labor ) Relations Board, ILLINOIS LABOR RELATIONS BOARD, STATE ) State Panel PANEL, THE STATE OF ILLINOIS, and THE ) TREASURER OF THE STATE OF ILLINOIS, ) ) Case No.: Respondents. ) S-UC-12-056

JUSTICE LIU delivered the judgment of the court, with opinion. Justice Simon concurred in the judgment and opinion. Presiding Justice Harris dissented, with opinion.

OPINION

¶1 Petitioner, American Federation of State, County and Municipal Employees, Council 31

(Union), is the union that represented a State of Illinois employee in the position of "Information

Systems Analyst II" (ISA II) who was excluded from the collective-bargaining unit when the

respondent, Illinois Labor Relations Board (Board), granted a petition filed by the respondent,

Treasurer of the State of Illinois (Treasurer), seeking to exclude any incumbent in that position

from Union membership because it is a "confidential employee" position within the meaning of

section 3(c) of the Illinois Public Labor Relations Act (5 ILCS 315/3(c) (West 2012)) (Act). The

issue before this court is whether the Board erred in finding that the ISA II position qualifies as a 1-13-2455

"confidential employee" position under the Act. For the reasons explained below, we conclude

that the Board's decision was clearly erroneous and accordingly reverse.

¶2 II. JURISDICTION

¶3 This is a direct appeal by the Union to the appellate court from the Board's final decision.

Jurisdiction is conferred on this court pursuant to section 9(i) of the Act (5 ILCS 315/9(i) (West

2012)), which states that "[a]ny person aggrieved by any such order [of the Board] *** may

apply for and obtain judicial review *** except that such review shall be afforded directly in the

Appellate Court." Consistent with the Administrative Review Law, "[a]ny direct appeal to the

Appellate Court shall be filed within 35 days from the date that a copy of the decision sought to

be reviewed was served upon the party affected by the decision." 5 ILCS 315/9(i) (West 2012);

115 ILCS 5/16(a) (West 2012). The Board's final decision is dated July 13, 2013. The Union's

petition for appellate review, filed on August 6, 2013, was timely and complied with this court's

procedure for those seeking direct review of administrative orders. Ill. S. Ct. R. 335 (eff. Feb. 1,

1994). Therefore, this court has jurisdiction to hear this appeal.

¶4 III. STANDARD OF REVIEW

¶5 In reviewing an administrative decision, " '[t]he findings and conclusions of the

administrative agency on questions of fact shall be held to be prima facie true and correct' and

'[n]o new or additional evidence in support of or in opposition to any finding, order,

determination or decision by the administrative agency shall be heard by the court.' " Provena

Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386 (2010) (quoting 735

ILCS 5/3-110 (West 2002)). " '[I]t is not a court's function on administrative review to reweigh

evidence or to make an independent determination of the facts.' [Citation.]" Id. We review an

agency's factual findings to determine if they are against the manifest weight of the evidence. Id.

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at 386-87. The agency's factual findings will not be found to be against the manifest weight of

the evidence unless "the opposite conclusion is clearly evident." Cinkus v. Village of Stickney

Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). However, "when the only point

in dispute is an agency's conclusion on a point of law," our review is de novo. Provena, 236 Ill.

2d at 387.

¶6 For mixed questions of law and fact, "i.e., where the historical facts are admitted or

established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory

standard," we review the agency's decision for clear error. Id. When reviewing mixed questions

of fact and law, this court gives deference to the agency's decision. AFM Messenger Service,

Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001). Reversal of mixed

questions of fact and law is inappropriate unless, after review of the entire record, the court has

" 'the definite and firm conviction that a mistake has been committed.' " Id. (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In other words, a reversal of the

Board's final order is not justified merely because an opposite conclusion is reasonable or the

appellate court may have ruled differently. Abrahamson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88 (1992). But "[t]hat the clearly erroneous standard is largely

deferential does not mean *** that a reviewing court must blindly defer to the agency's

decision." AFM Messenger Service, 198 Ill. 2d at 395.

¶7 The parties agree that we review the Board's decision that a position qualifies as a

"confidential employee" position under the "clearly erroneous" standard. However, we note that

there is also authority for applying the "manifest weight of the evidence" standard. See Niles

Township High School District 219 v. Illinois Educational Labor Relations Board, 387 Ill. App.

3d 58, 69-70 (2008) (Niles) (discussing precedent for the "manifest weight of the evidence"

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standard of review); Chief Judge of the Circuit Court v. American Federation of State, County &

Municipal Employees, Council 31, 153 Ill. 2d 508, 523 (1992) (Chief Judge II) (applying

"manifest weight of the evidence" standard for reviewing the Board's determination that

employee was not a "confidential employee"). Here, because the parties are in agreement, we

will review the Board's decision under the "clearly erroneous" standard.

¶8 IV. BACKGROUND

¶9 On April 26, 2012, the Treasurer filed a unit clarification petition with the Board stating

that the ISA II position should be properly classified as a "confidential employee" position as

defined under the Act and that any incumbent in that position should be excluded from

participation in the existing Union. 1 On May 17, 2012, the Union filed its objections to the

petition arguing that it was procedurally defective and that an ISA II employee does not perform

duties of a "confidential employee" as that term is statutorily defined.

¶ 10 Prehearing memos were filed by the parties, and on November 9, 2012, the administrative

law judge heard testimony regarding whether the ISA II position was a "confidential employee"

position pursuant to the Act.

¶ 11 Deborah Price testified for the Treasurer. Price was the information technology director

for the Treasurer's office from 2003 and has currently held that position since February 2011.

Price supervises 10 information technology employees, including the incumbent in the ISA II

position, Sarah Schuering. Price's subordinates provide computer network support, including

application and development, to the Treasurer, the chief of staff and his subordinates, general

1 The petition also sought to designate any incumbent in the position of "Information System Analyst I" as a "confidential employee" excluded from Union participation. However, at the commencement of the administrative hearing on November 9, 2012, counsel for the Treasurer orally withdrew that portion of the petition, stating the position was "unfilled and will likely remain that way."

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counsel and legal staff, the human resources' director and staff, and the director of accounting

and budget personnel, including the Treasurer's chief budgeter.

¶ 12 Price testified that she supervises two employees who function as computer network

administrators: (1) Schuering, the incumbent in the ISA II position under review, and (2) Joey

Lau, a network administrator in charge of the computer servers who keeps all communication

lines "up and running." Price further explained that in 1999, the Treasurer's office inherited the

ISA II position and the position's incumbent, Schuering, when the ISA II functions were

transferred from the Department of Financial Institutions to the Treasurer's office. Of the 10 job

positions in Price's division, the ISA II position is the only one included in the Union.

Specifically, Price testified that the co-network administrator position held by Joey Lau is not

included in the Union. Schuering and Lau are the only two employees who have "network

administrator passwords," and they perform similar duties. According to Price, "basically, if

someone has a problem with anything computer related, network related, [Schuering and Lau]

*** get called to help troubleshoot any of those problems." Both employees assist staff with

Excel functions, which is a program "used in the budget processing *** in the financial area" of

the Treasurer's office." Price testified that she has not been given a network password because

she is not qualified for network administration and "rel[ies] on [Schuering's and Lau's] expertise

and knowledge and advice to keep [the] network running."

¶ 13 During her testimony, Price also discussed the "Position Description" for the ISA II

position, which was entered into evidence. According to the "position summary" in the

description, the employee in the ISA II position "performs daily administration, monitoring, and

troubleshooting of servers in the LAN environment. These servers include File, Print, Exchange,

SQL and Blackberry."

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¶ 14 In addition, the specific "Duties and Responsibilities" for the ISA II position are: (1)

"[r]esponsible for setting up and administering users"; (2) "[r]esponsible for suspending and

archiving users as required due to termination"; (3) "[r]esponsible for setting up and

administering shared data access file directories with proper rights and configuration"; (4)

"[r]esponsible for setting up and administering SQL Server databases"; (5) "[r]esponsible for

configuring and monitoring automated backup procedures for File, SQL and Exchange Servers";

(6) "[r]esponsible for monitoring overall performance of servers and implementing changes

based on analysis"; (7) "[s]erves as user support leader – this position is expected to provide

expertise and guidance on user support issues, as well as resolving issues independently"; (8)

"[p]rovides technical support for third party software systems such as Unclaimed Property

Wagers and Liberty Net Systems"; and (9) "[p]erforms other duties as assigned or required

which are reasonably related to the duties enumerated above."

¶ 15 According to Price, as part of Schuering's daily responsibilities, she reviews (1) the server

logs to make sure everything is running properly; (2) the email spam folder to confirm whether

nonspam email was incorrectly filtered; and (3) the Internet logs to ensure there is proper

connectivity. Although Schuering has access to employee email and, theoretically, could read an

employee's email without the employee's knowledge, Price explained that Schuering only has

permission to read an individual's emails "if they were misdirected into the spam folder."

Schuering also can see when a user has been on the Internet and generate reports of Internet

usage when requested. Price testified that she had never asked Schuering to tell her "the content

of what [an employee] had read" over the Internet "during a given period of time."

¶ 16 Dan Gray, the deputy chief of staff for the Treasurer's office, also testified for the

Treasurer. Gray testified that his duties and responsibilities include "the daily management and

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long-term strategic goals of *** four to seven divisions of the Treasurer's Office[, which]

encompasses *** about $13 million of the budget and about 80 employees." He also sits on the

Treasurer's committee that is responsible for collective bargaining with the employees' Union,

which includes the development of the strategies and proposals from a budget perspective. To

carry out his duties, Gray testified that "[i]t's a collaborative effort" that involves interfacing with

the Treasurer, the chief of staff, general counsel and other legal staff, the director of human

resources, the director of accounting, and the chief budgeter. In formulating policy, including

union bargaining strategies containing budget information, Gray creates documents that are

stored on the computer network and, as necessary, shared with others in the collaborative group

via the network as "it's just the most efficient way for us to converse." Gray then creates a

"white paper for the Treasurer, which is a one-page recommendation with all appropriate

variables for use during Union negotiations." Gray plays a role in disciplining employees who

are Union members and exchanges communications via the computer with management.

According to Gray, Schuering had been "called upon to give *** reports about Internet usage"

concerning both an employee's "time on the Internet" and the "substance involved."

¶ 17 Following Gray's testimony, the Treasurer concluded his case-in-chief. The Union

moved for a directed verdict, arguing that the Treasurer failed to prove that Schuering had

authorized access to confidential documents because there was "no evidence that she [had] ever

been directed" to view, or ever had viewed, documents related to collective bargaining. The ALJ

denied the Union's motion.

¶ 18 Schuering, the incumbent in the ISA II position, then testified for the Union. According

to Schuering, she transferred from the Department of Financial Institutions to the Treasurer's

office as a Union member in 1999. In the 13 years she has worked in the Treasurer's office, she

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stated, she has never seen any documents related to collective bargaining. She also explained

that she did not recall ever "be[ing] directed by any of the managers to look at a document that

they [had] created." Rather, according to Schuering, "most of [her] time" is spent "reviewing

server logs in the morning and working with the unclaimed property division, answering help

desk calls, setting up access, [and] removing access."

¶ 19 With respect to the Internet usage reports she can access, Schuering testified that those

reports do not tell her "the content of any document" that was viewed by other employees or "the

contents of where someone has been on the Web site." The reports, however, will tell her the

name of a program that is running. For example, at one time she observed that an employee was

using the Skype program at work. She also acknowledged that she had determined, with the help

of "further information" from Lau, that an employee was printing non-work-related documents.

¶ 20 Schuering further testified that although she has the capability to access any employee's

"Private-Drive" (i.e., P-drive), and to take a document out and copy it to her computer to read the

document, she has never done this because she would be "disciplined or fired" for engaging in

this conduct. Even when she is "logged on to the exchange server" "[a]s an administrator of the

network," she testified, she cannot see the contents of individuals' emails, nor does she have

access to the mailboxes for the Treasurer's chief of staff or deputy chief of staff.

¶ 21 In rebuttal, Price testified that she "believe[d]" that both Schuering and Lau have "access

to all of the e-mails that are on the exchange server." Price has observed Schuering "access other

people's e-mails" when "directed by *** their managers," but it was not "part of [Schuering's] job

to read *** the content of e-mails" "in other people's mailboxes other than her own or spam or an

IT support mailbox."

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¶ 22 Both parties filed posthearing briefs. On April 9, 2013, the ALJ issued her corrected

recommended decision and order. 2 The ALJ determined that the Treasurer's unit clarification

petition was procedurally appropriate and conformed to existing Illinois law. On the merits, the

ALJ found that "Schuering is a confidential employee because she has authorized access to

collective-bargaining-related material when she troubleshoots on [the] Excel [computer

program]." The ALJ observed that Excel documents are "a class of materials which includes

documents that contain preliminary budget information not available to the Union or the public,

'access to which would most certainly impact the effectuation *** [of the employer's] bargaining

policies. [Citation.]' " The ALJ further found that "the manner in which [Schuering]

troubleshoots those documents sometimes requires her to assess and evaluate their contents."

This access, the ALJ explained, "is not merely incidental and is instead an inherent part of her

duties because [she] must assess and evaluate the substantive contents of documents she

troubleshoots so that she may fix problematic formulas." The ALJ also discounted "the fact that

Schuering [had] never seen a collective bargaining document during her 13-year tenure at the

Treasurer's Office" and concluded, instead, that the "job responsibilities" of the ISA II position

entailed "authorized access to such materials in the regular course of her duties."

¶ 23 The ALJ, however, expressly rejected the Treasurer's remaining arguments concerning

Schuering's general access to the network as a network administrator and her ability to review

the Internet usage logs. Specifically, the ALJ found that Schuering's "capacity to read all

documents stored on employees' P Drives" and to "read*** all emails on the servers *** by

logging into the system as Network Administrator and granting herself access rights" did not

render her a "confidential employee" because she actually was "prohibited" from doing so. The

2 The ALJ's original Recommended Decision and Order recommending granting the Treasurer's Petition was filed one day earlier, on April 8, 2013.

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ALJ similarly was not persuaded that Schuering's "need to read email in the spam folder to

determine whether the spam filter misdirected legitimate correspondence" made her a

"confidential employee" because the Treasurer presented "no evidence that emails related to

collective bargaining would be, or have ever been, classified as spam." Lastly, the ALJ found

that Schuering's access to employee Internet usage logs was insufficient because (1) "an

employee is not confidential merely because she helps enforce the employer's internet policy by

reviewing data on servers which contains information that may reveal an employee has violated

the employer's internet policy"; and (2) access to the log of the Internet sites that employees have

visited "does not lend insight into the manner in which" the employees will use the publicly

available information they have viewed.

¶ 24 The ALJ recommended to the Board that the Treasurer's unit clarification petition be

granted and that the position of ISA II be designated as a "confidential employee" position due to

Schuering's authorized access to collective-bargaining-related documents and information during

the course of her regular duties when troubleshooting problems within the Excel computer

program for other employees.

¶ 25 On May 13, 2013, the Union filed its exceptions to the ALJ's corrected recommended

decision and order, arguing that the ALJ incorrectly concluded that Schuering is a confidential

employee based on her troubleshooting of Excel documents because there was no evidence that

Schuering had ever worked on an Excel document that contained collective-bargaining-related

materials. On June 5, 2013, the Treasurer filed his response to the Union's exceptions as well as

his own exceptions to the recommended decision, stating that the ALJ should have additionally

found "confidential employee" status for the ISA II position because of the incumbent's (1)

access and capacity to read all documents that employees store on their P-drive; (2) ability to log

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into the computer network as the network administrator with her password and read all emails;

(3) ability to read all emails directed, rightly or wrongly, to the spam folder; and (4) ability to

access all employees' Internet logs, including those of deputy chief of staff Gray, who testified he

uses the Internet to develop collective-bargaining strategies and proposals. On June 21, 2013,

the Union filed its response to the Treasurer's exceptions.

¶ 26 On July 19, 2013, the Board issued its final decision and order, which affirmed the ALJ's

recommended decision that the Treasurer's unit clarification petition was procedurally proper.

The Board also adopted the ALJ's recommended decision that the ISA II position should be

appropriately classified as a "confidential employee" position as that term is defined by the Act

"based on [Schuering's] duty to troubleshoot Excel documents, including budgetary documents

upon which bargaining proposals or responses may be based." The Board found a nexus

between those Excel documents containing budget information and the Treasurer's development

of collective-bargaining proposals by concluding that such proposals are not developed without

referencing any such budget information. The Board also acknowledged Schuering's testimony

that she has never accessed and worked on Excel documents containing collective-bargaining-

related data, but found that doing so would be a part of her regular, assigned duties and would

not be an ad hoc assignment. The Board refused to address the Treasurer's exceptions to the

ALJ's recommendations because there was already an existing basis on which to find that

Schuering is a "confidential employee." The Board entered a final order granting the Treasurer's

unit clarification petition.

¶ 27 On July 23, 2013, the Board issued a certification of unit clarification for the position

which had the effect of excluding an incumbent in the position of ISA II from the existing Union.

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¶ 28 V. ANALYSIS

¶ 29 The Board affirmed the ALJ's finding that the incumbent holding the position of ISA II is

a "confidential employee" within the meaning of section 3(c) of the Act and is, therefore,

excluded from collectively bargaining with the Treasurer. 5 ILCS 315/3(c) (West 2012). This

court reviews the final decision of the Board, not the ALJ's recommendation. Wilson v.

Department of Professional Regulation, 317 Ill. App. 3d 57, 64-65 (2000).

¶ 30 Section 3(c) of the Act defines a "confidential employee" as follows:

"[A]n employee who, in the regular course of his or her duties,

assists and acts in a confidential capacity to persons who

formulate, determine, and effectuate management policies with

regard to labor relations or who, in the regular course of his or her

duties, has authorized access to information relating to the

effectuation or review of the employer's collective bargaining

policies." 5 ILCS 315/3(c) (West 2012).

¶ 31 As the employer, the Treasurer bears the burden of proving that the ISA II position merits

classification as a "confidential employee" position. County of Cook (Provident Hospital) v.

Illinois Labor Relations Board, 369 Ill. App. 3d 112, 123 (2006). We construe the "confidential

employee" exclusion "narrowly" because such employees are precluded from exercising

collective-bargaining rights that are given to all public employees. Niles, 387 Ill. App. 3d at 68

(quoting Board of Education of Glenview Community Consolidated School District No. 34 v.

Illinois Educational Labor Relations Board, 374 Ill. App. 3d 892, 898-99 (2007) (Glenview), and

applying analogous provision in Illinois Educational Labor Relations Act).

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¶ 32 The Act's purpose in excluding "confidential employees" from any bargaining unit is to

prevent employees from having their loyalties divided between their employer, who expects

confidentiality in labor relations matters, and the union, which may seek disclosure of

management's labor relations material to gain an advantage in the bargaining process. Chief

Judge II, 153 Ill. 2d at 523.

¶ 33 There are two tests specifically designated in the statutory definition to determine

whether a position is, in fact, a "confidential employee" position: the "labor-nexus" test 3 and the

"authorized access" test. Id. at 523-24. 4 Here, the Treasurer argues that the "authorized access"

test applies.

¶ 34 Under the "authorized access" test, an employee is "confidential" if he or she has

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

bargaining process between labor and management." Chief Judge II, 153 Ill. 2d at 523. "Labor

relations encompasses ongoing or future collective-bargaining negotiations and strategy, not

general, though undoubtedly otherwise confidential department administration matters." Chief

Judge of the Circuit Court v. American Federation of State, County, & Municipal Employees,

Council 31, 218 Ill. App. 3d 682, 699 (1991) (Chief Judge I), aff'd, Chief Judge II, 153 Ill. 2d

508. In other words, "[m]ere access to 'confidential' information concerning the general

workings of the department or to personnel or statistical information upon which an employer's

labor relations policy is based is insufficient to confer confidential status." Id. at 699; see also

3 Under the labor-nexus test, not at issue here, an employee is "confidential" if he or she "assists in a confidential capacity in the regular course of his or her duties a person or persons who formulate, determine or effectuate labor relations policies." Chief Judge II, 153 Ill. 2d at 523. 4 A third, non-statutory test has developed in the case law and has been applied to factual scenarios where there is no prior history of a collective-bargaining relationship between the incumbent in the position and any union. It is referred to as the "reasonable expectation" test where consideration is given to the future role of the employee and employer in any collective-bargaining activities. Chief Judge of the Circuit Court v. American Federation of State, County, & Municipal Employees, Council 31, 218 Ill. App. 3d 682, 700 (1991). The instant case, which concerns an employee who has been a long-term member of the Union, does not involve this third test.

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Board of Education of Community Consolidated School District No. 230 v. Illinois Educational

Labor Relations Board, 165 Ill. App. 3d 41, 60 (1987) ("[A]ccess to information concerning

general confidential district business matters is irrelevant. *** [I]nquiry is limited to whether the

employee in question has unfettered access ahead of time to information pertinent to the review

or effectuation of pending collective-bargaining policies.").

¶ 35 Thus, if, as part of a position's regular duties, an incumbent in the position has access to

information that, if divulged to the incumbent's respective bargaining unit, would give the Union

unfair, advanced notice of the employer's private information regarding labor relations' activity,

the incumbent should be classified as a confidential employee. Chief Judge I, 218 Ill. App. 3d at

699. Sporadic access to such information is adequate if that access is "part of [the employee's]

normal duties." Niles, 387 Ill. App. 3d at 70-71 (citing Board of Education of Plainfield

Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board,

143 Ill. App. 3d 898, 911 (1986), and applying analogous provision in Illinois Educational Labor

Relations Act). But "sporadic means sometimes, not never." Id. at 76.

¶ 36 As an initial matter, we do not address whether the Board erred in finding the Treasurer's

Unit Clarification Petition was procedurally proper because the Union has waived that argument

by not raising the issue on appeal. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) ("Points not argued

[in the opening brief] are waived and shall not be raised in the reply brief, in oral argument, or on

petition for rehearing.").

¶ 37 Turning to the merits, the Union argues that the Treasurer failed to meet his burden of

proof because the evidence demonstrated that Schuering was not directed to access confidential,

collective-bargaining information and had not accessed such information in 13 years. Further,

the Union maintains that Board erred in speculating that Schuering's Excel troubleshooting

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duties could give her authorized access to confidential information because such access would be

"ancillary and incidental" to her job duties. In response, the Treasurer and the Board contend

that, regardless of whether Schuering has actually seen a collective-bargaining document in

connection with her Excel troubleshooting responsibilities, her regularly assigned job duties

require her to see and review the contents of Excel spreadsheets, which could include budget

information. In the alternative, should this court agree with the Union, the Treasurer maintains

that we nevertheless can conclude that Schuering is a "confidential employee" based on her

general access to documents and email in her role as a "Network Administrator"—an issue the

Board declined to address. For the reasons explained below, the Board's decision was clearly

erroneous because neither Schuering's Excel troubleshooting responsibilities nor her access as a

Network Administrator renders her a "confidential employee" under the Act.

¶ 38 A. The Treasurer Failed to Prove That Schuering's Excel Troubleshooting Duties Qualified Her as a "Confidential Employee"

¶ 39 According to the Union, the Treasurer did not meet his burden of proof because he failed

to provide sufficient evidence that Schuering's Excel troubleshooting responsibilities gave her

authorized access to confidential, collective-bargaining information in the regular course of her

duties as the evidence was undisputed that she had never seen or been asked to review collective-

bargaining documents. In response, the Treasurer and the Board maintain that whether

Schuering has actually viewed collective-bargaining information is immaterial; instead, they

argue that she has the requisite authorized access because she could view such documents as part

of her job duties and those documents could include preliminary budgeting information used in

collective bargaining. Because we find that the Board misapplied the relevant legal standard in

assessing whether Schuering was a "confidential employee," we agree with the Union.

¶ 40 1. Schuering Does Not Have Authorized Access in the Regular Course of Her Job Duties

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¶ 41 First, the Board erred in concluding that the undisputed facts surrounding Schuering's

Excel troubleshooting responsibilities satisfy the established legal criteria for the "authorized

access" test. Although the evidence demonstrates that Schuering would have authorized access

to certain Excel documents if asked by an employee to assist them in troubleshooting, access to

Excel documents alone is insufficient—the authorized access must be to "information relating to

the effectuation or review of the employer's collective bargaining policies." Here, the Board

clearly erred in elevating evidence of Schuering's theoretical access to such information—access

that is only tangential and incidental to her regular job duties—over the undisputed evidence that

she had yet to be exposed to collective-bargaining information at any time during her 13-year

tenure in the ISA II position, the latter of which should "weigh heavily" in the Board's analysis.

Niles, 387 Ill. App. 3d at 76.

¶ 42 In situations where, as here, "a position has existed for a substantial amount of time, the

Board will weigh heavily the employee's actual access to collective bargaining material." Niles,

387 Ill. App. 3d at 76; see also Glenview, 374 Ill. App. 3d at 903-04 (holding that evidence that

"technology administrative assistant theoretically could have access to confidential collective-

bargaining information" was insufficient where the employer "presented no evidence" that the

employee "had actual authorized, unfettered access to such confidential information in the

course of her regular duties" (emphases in original)). Moreover, although employers need not

"establish that [the employee] has actually seen such information," they at least must

demonstrate that "real and more than incidental access will occur in the regular course of her

duties." (Internal quotation marks omitted.) Glenview, 374 Ill. App. 3d at 902.

¶ 43 Our decision in Niles, an Illinois Educational Labor Relations Act case, is instructive on

this point. There, the challenged positions were the world-wide web communications assistant

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and the systems and networking engineer. These employees testified that they had not "read or

retrieved collective bargaining information in five years' time." Niles, 387 Ill. App. 3d at 76.

Relying on this testimony, this court explained that "[i]f a computer person testifies that she has

not read collective bargaining documents, then any access would be the result of mere chance"

and "[s]uch theoretical access [was] insufficient" to satisfy the "authorized access" test. Id.

Moreover, because the employees had not accessed collective-bargaining information in five

years, "[a]ccess was certainly not part of [the employees'] regular duties." Id.

¶ 44 Similarly here, it is undisputed that Schuering has not reviewed a collective-bargaining

document at any time during her 13-year tenure in the ISA II position at the Treasurer's office.

Nor is there any evidence that Gray—the only witness who presumably had any involvement

with the Treasurer's collective-bargaining negotiations—has ever directed Schuering to review

documents containing collective-bargaining information. The Board, however, departed from

this court's analysis in Niles and failed to "heavily weigh" this evidence of Schuering's actual

access to collective-bargaining information. Rather, it focused on the possibility that Schuering

could access such confidential information in the future as part of her troubleshooting

responsibilities. But, as the evidence demonstrates, her theoretical access to collective-

bargaining information—access which had yet to occur after 13 years in the same position—

would only be "incidental" to her job responsibilities and would not occur in the regular course

of her job. (Internal quotation marks omitted.) See Glenview, 374 Ill. App. 3d at 902. Such

access, therefore, is unlikely to "prematurely expose[]" the Treasurer's "negotiation strategies in

collective bargaining" "to the employees with whom it will bargain." Chief Judge I, 218 Ill.

App. 3d at 698-99. On this record, the Board's finding that Schuering's Excel troubleshooting

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responsibilities rendered her a "confidential employee" under the Act is inapposite to the

analyses in Niles and Glenview and demonstrates a misapplication of the law.

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

Labor Relations Board, State Panel, 2012 IL App (4th) 110356, cited by the Treasurer and the

Board, is distinguishable and does not undermine that general proposition that the Board should

"heavily weigh" an employee's actual access the collective-bargaining information where the

position "has existed for a substantial amount of time." There, the job description for the

challenged attorney position included assignments to labor relations matters and providing legal

advice to labor relations divisions. The board concluded that, despite the job description, the

attorney was not a "confidential employee" because he had yet to perform any duties related to

labor relations. The appellate court reversed, holding that in applying the "authorized access"

test, the attorney's job duties must be considered, not "just what the current employee has done

so far in the position." Id. ¶ 32. The court also emphasized that the attorney worked in the same

office as other lawyers who had received "collective-bargaining assignments," finding that it was

"highly likely he is present for conversations about those assignments or has computer access to

his coworkers' work." Id. Thus, unlike the present case where any theoretical access would only

be tangential and incidental to Schuering's regular responsibilities, the attorney's job duties in

Central Management Services expressly included substantive involvement in labor relations

matters.

¶ 46 For these reason, we conclude that the Treasurer failed to prove that Schuering's

theoretical, yet unrealized, exposure to collective-bargaining documents as part of her Excel

troubleshooting responsibilities qualifies her as a "confidential employee" under the Act.

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¶ 47 2. Preliminary Budget Information Is Not Information Relating to the Effectuation or Review of the Employer's Collective Bargaining Policies

¶ 48 Second, even assuming that Schuering had authorized access to preliminary budget

information as part of her Excel troubleshooting duties, the Treasurer also has failed to prove that

such information qualifies as "information relating to the effectuation or review of the employer's

collective bargaining policies" as required by the Act. In Chief Judge I, this court expressly

rejected the argument that employees actually involved in preparing budget information were

confidential employees, holding that "[m]erely supplying raw financial data for use in

negotiations is insufficient to establish that an individual is a confidential employee." Chief

Judge I, 218 Ill. App. 3d at 705. Specifically, the employees at issue were responsible for

"supplying raw financial data," which was later "use[d] *** in future collective bargaining

negotiations," and assisting the Director of Financial Control in "furnishing a budget for use in

future collective bargaining negotiations." Id. at 701. This court distinguished such budgetary

information from information related to collective-bargaining proposals and policies, holding

that employees' "access to confidential information which may be used in but is not related to

labor relations does not indicate that they are confidential employees." (Emphasis added.) Id. at

702. Similarly here, the Treasurer has not demonstrated that such financial information is

anything more than the type of general business information this court has previously held does

not satisfy the requirements of the Act.

¶ 49 The Treasurer relies on Department of Central Management Services v. Illinois Labor

Relations Board, State Panel, 2011 IL App (4th) 090966, to argue that budget information and

financial data "relat[es] to the effectuation or review of the employer's collective bargaining

policies." To the extent that this case is inconsistent with both our decision in Chief Judge I and

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the well-established rule that the "confidential employee" exclusion is "narrowly" applied, we

decline to follow it.

¶ 50 The Board found that "Schuering is a confidential employee based on her duty to

troubleshoot Excel documents, including budgetary documents upon which collective-bargaining

proposals and responses may be based." Contrary to the Board's finding, however, the

evidentiary record in this case does not establish that Schuering has had actual access to

collective-bargaining information. Furthermore, the job description for the ISA II position

occupied by Schuering does not indicate that she will have, or is intended to have, access to

confidential collective-bargaining information, nor does the description indicate that her

employer contemplates that she will access such information. Finally, the evidence shows that,

on a day-to-day basis in the regular course of her duties, Schuering does not handle documents or

records containing confidential collective-bargaining information. As a result, we are " 'left with

the definite and firm conviction that a mistake [was] committed' " by the Board's finding that

Schuering is a "confidential employee," and we find the Board's determination to be clearly

erroneous. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d

380, 393 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

We therefore reverse the decision of the Board.

¶ 51 The dissent concludes otherwise and finds that the Board's determination that the ISA II

position is a "confidential employee" position is not clearly erroneous. In contrast to the

majority's analysis, the dissent maintains that Niles and Glenview are distinguishable from this

case, because the evidence in those cases "showed *** that [the employees'] jobs did not require

them to actually read the contents of such [collective-bargaining] documents during

troubleshooting and maintenance tasks. Infra ¶ ___." We respectfully disagree. To the contrary,

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in Niles, the record contained evidence that one of the contested employees did in fact "read

materials" that could conceivably contain confidential or sensitive information, albeit "only when

she needed to 'troubleshoot.' " Niles, 387 Ill. App. 3d at 63. In Glenview, the court noted that

"the evidence showed that, at most, the [employee] had been exposed to the names of folders and

subfolders and e-mail subject lines that may have suggested the underlying content of the

documents related to confidential bargaining information" and, furthermore, that the employee's

"job description indicates that the person occupying the position should have the 'ability to

handle confidential information.' " Glenview, 374 Ill. App. 3d at 904. Finally, unlike the

situation in Central Management Services, 2012 IL App (4th) 110356, ¶¶ 30-31, the prospect

that Schuering may be required to access or review collective bargaining information as part of

her authorized job responsibilities is mere speculation, when the evidence has established that

she has not been privy to this information for the past 13 years during her employment as an ISA

II.

¶ 52 B. The Treasurer's Office Failed to Prove That Schuering's Duties as Network Administrator Gave Her Authorized Access to Information Relating to the Effectuation or Review of Treasurer's Collective Bargaining Policies

¶ 53 In the alternative, the Treasurer argues that even if this court disagrees with the Board

that Schuering's Excel troubleshooting responsibilities render her a "confidential employee," we

nevertheless can affirm the Board's decision because Schuering's "duties as a Network

Administrator" gave her authorized access to collective-bargaining-related information. The

Board declined to reach this issue. Although the Board maintains that we should remand this

issue for it to address in the first instance, both the Union and the Treasurer contend that we can

resolve it on appeal.

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¶ 54 In Johnson v. Human Rights Comm'n, 318 Ill. App. 3d 582 (2000), this court outlined a

procedure for determining whether a remand is necessary if we conclude that the agency's

decision must be reversed. Specifically, "[w]here the record will permit only one

determination," this court "may impose that determination." Id. at 587. But, because we lack

"authority to 'evaluate the credibility of the witnesses or resolve conflicting evidence' " (id.

(quoting Przislicki v. City of Chicago, 212 Ill. App. 3d 661, 668 (1991))), if we find that "varying

credibility evaluations could support differing resolutions of a case, we must remand to the

agency for findings of fact" (id.).

¶ 55 Here, because the material facts are not in dispute—indeed, the Treasurer refers to this

issue as a "conclusion*** of law" and has not challenged any of the ALJ's relevant factual

findings—we can address the Treasurer's argument that Schuering's duties as a Network

Administrator give her the requisite "authorized access" to qualify as a "confidential employee"

under the Act. As explained below, they do not.

¶ 56 The ALJ concluded that Schuering's general responsibilities as a "Network

Administrator" did not make her a "confidential employee" because (1) "she is prohibited from

taking the only action which could allow her to read" the "documents stored on employees' P

drives"; and (2) she is "prohibited" from "reading *** emails on the servers." Further, although

the Board did not base its decision on Schuering's general network access, it did acknowledge

her testimony that "while she had the capability of accessing documents, this was not permitted,"

and concluded that this fact did not "appear*** to be incorrect." The Treasurer notably has not

challenged these factual findings that Schuering was prohibited from accessing other employees'

documents and emails. Instead, he contends that Schuering's access is nevertheless "authorized"

because "the Treasurer intends for her to have the Network Administrator password," and

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employers "should not be left in the position to simply trust an employee not to access"

confidential collective-bargaining information. (Emphasis in original.)

¶ 57 This argument, however, improperly conflates Schuering's capability to access with

authorized access—the latter is required by the statute. As this court explained in Niles, "the

issue is not what access an employee is capable of exercising, but what access the employer

intends for the employee to exercise." Niles, 387 Ill. App. 3d at 75. In other words, "the issue is

not capability but authorization." Id.; see also County of Cook (Provident Hospital) v. Illinois

Labor Relations Board, 369 Ill. App. 3d 112, 125 (2006) (affirming Board decision that

employees who reported to the director of human resources and labor relations were not

"confidential employees" under the Act—despite having "the means" to access director's

collective-bargaining and labor-relations files—because "there was little evidence presented that

they were 'authorized' to access that information").

¶ 58 Support Council of District 39 v. Illinois Educational Labor Relations Board, 366 Ill.

App. 3d 830 (2006) (Wilmette), cited by the Treasurer, is not to the contrary. In Wilmette, the

court affirmed the board's decision that the school district's newly-created network manager

position was a "confidential employee" position under the analogous provision of the Illinois

Educational Labor Relations Act. But unlike the present case, in Wilmette, the board found that

the manager's access to the school district's network was "without restriction" and "unfettered."

(Internal quotation marks omitted.) Id. at 832. Here, based on the ALJ's unchallenged findings,

Schuering actually was prohibited from using her network administrator access to view other

employees' documents or email unless instructed to do so. As such, her access was not

"authorized" as required by the Act.

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¶ 59 VI CONCLUSION

¶ 60 For the foregoing reasons, the Board's final decision that the position of ISA II is a

"confidential employee" position within the meaning of section 3(c) of the Illinois Public Labor

Relations Act was clearly erroneous. Further, we conclude that the Treasurer's alternative basis

for affirming the Board's decision is not supported by the record. Accordingly, the Board's

decision is reversed.

¶ 61 Reversed.

¶ 62 PRESIDING JUSTICE HARRIS, dissenting.

¶ 63 I would affirm the Board's determination that the ISA II position qualifies as a

"confidential employee" position under the Act. Therefore, I respectfully dissent.

¶ 64 As the majority stated above, this court gives deference to the Board's decision when

reviewing mixed questions of fact and law. AFM Messenger Service, Inc. v. Department of

Employment Security, 198 Ill. 2d 380, 395 (2001). The Board's determination as to whether the

facts establish that an employee is a confidential employee as defined by statute will not be

reversed unless that determination was clearly erroneous. Board of Education of Glenview

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

374 Ill. App. 3d 892, 899 (2007). The question for an appellate court is not how we would rule if

we had been standing in the Board's shoes and writing in the first instance. The "clearly

erroneous" standard of review is so firmly established in the common law that courts have on

many occasions chosen to define it using various phrases all designed to emphasize that reversals

should only be granted to correct profoundly wrong orders. Such phrases as "does the Board's

decision stink like a dead fish" (Glenview, 374 Ill. App. 3d at 899) and the decision must "strike

us as wrong with the force of five-week-old, unrefrigerated dead fish" (Parts & Electric Motors,

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Inc. v. Sterling Electric Inc., 866 F.2d 228, 233 (7th Cir. 1988)) are such examples.

Notwithstanding, the majority now reverses the Board's decision, which is reasonable and

worthy of deference, and finds that Schuering's actual access to collective bargaining information

is " merely theoretical access to such information – access which is only tangential to her regular

job duties." We should not reverse an agency's determination unless it is clearly erroneous, or in

other words, we have a "definite and firm conviction that a mistake has been committed." AFM

Messenger Service, 198 Ill. 2d at 395. The agency did not make a mistake. Schuering's access

to the collective bargaining information was not theoretical. It may be tangential to her regular

job duties but it is still actual access to the information.

¶ 65 The Act permits employees to organize, but it excludes confidential employees from the

collective bargaining unit. "Confidential employee" is defined as one who "in the regular course

of his or her duties has access to information relating to the effectuation or review of the

employer's collective bargaining policies." 115 ILCS 5/2(n) (West 2012). Even if Schuering's

access to such information was sporadic or "theoretical," she would still be a confidential

employee under the Act as long as her access resulted from the performance of her regular

duties. Board of Education of Plainfield Community Consolidated School District No. 202 v.

Illinois Educational Labor Relations Board, 143 Ill. App. 3d 898, 911 (1986).

¶ 66 The ISA II position at issue here is one of ten in the Treasurer's office that provides

computer network support to the Treasurer and the staff. None of the other nine positions are

included in the Union, and neither should Schuering's. The ISA II position "performs daily

administration, monitoring, and troubleshooting of servers" and assists with functions of Excel,

which is a program used in the Treasurer's office for budget-related matters. Dan Gray testified

that as deputy chief of staff for the Treasurer's office, he is responsible for "the daily

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management and long-term strategic goals" of the divisions of the office. He also sits on a

committee responsible for collective bargaining with the Union, and takes part in the

development of strategies and proposals for use during the bargaining process. In this capacity,

Gray creates documents formulating bargaining strategies that contain budget information which

he stores on the computer network.

¶ 67 The ALJ found that when troubleshooting an Excel document, Schuering must sometimes

"assess and evaluate their contents" to "fix problematic formulas" and these documents in the

Treasurer's office can contain budget information pertinent to the collective bargaining process.

The ALJ further found that Schuering had authorized access to such material in the regular

course of her duties. The Board added that although to date, Schuering may not have had

occasion to view collective bargaining information in an Excel document, doing so would be part

of the regular course of her duties and not an ad hoc assignment. The Board's findings of fact are

entitled to deference. On administrative review it is not this court's function to reweigh the

evidence or make independent determinations of fact. Abrahamson v. Illinois Department of

Professional Regulation, 153 Ill. 2d 73, 88 (1992). The majority has chosen to reweigh the

evidence and substitute its judgment for that of the Board. The facts presented sufficiently

support the Board's finding that the ISA II is a confidential employee position under the Act, and

I do not have a firm and definite conviction that the Board made a mistake.

¶ 68 The majority based its decision on reweighing Schuering's testimony that she has never

encountered a collective bargaining document in her 13 years in the position. Consequently, it

determined that Schuering did not have authorized, or actual, access to collective bargaining

information in the regular course of her duties, relying on Niles Township High School District

219 v. Illinois Educational Labor Relations Board, 387 Ill. App. 3d 58 (2008) and Glenview, 374

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Ill. App. 3d 892, for support. Neither of those cases support the majority's opinion. In both

cases, the evidence showed that not only did the employees at issue testify that they had never

viewed collective bargaining material in the course of their duties, but also that their jobs did not

require them to actually read the contents of such documents during troubleshooting and

maintenance tasks. The court in both Niles and Glenview found the fact that the employees did

not have to read the collective bargaining information they accessed while performing their

regular duties significant when it determined the employees did not have actual access to

confidential material. Niles, 387 Ill. App. 3d at 76; Glenview, 374 Ill. App. 3d at 901-02.

¶ 69 The majority disagrees and points out that in both Niles and Glenview the contested

employees stated that they read or had access to confidential material. However, in Niles,

although one of the contested employees stated that on occasion she "read materials only when

needed" to troubleshoot, the materials she read consisted of " 'backups' of stored information

which was 'a mixture of everything on the server[.]' " Niles, 387 Ill. App. 3d at 63. Although

there were no restrictions on her access to information, she did not have access to all of the

servers and stated that she had no reason to read a collective bargaining document. Id. at 64. In

Glenview, although the contested employee's job description stated that the person in the position

should have the "ability to handle confidential information," the court did not view the

description as determinative because "it does not specify the nature of such confidential

information." Glenview, 374 Ill. App. 3d at 904. The court found that the school district failed

to present evidence showing that the employee had actual, authorized access to confidential

collective bargaining information in the course of her regular duties. Id. at 903-04.

¶ 70 Here, the ALJ found that when troubleshooting an Excel document, Schuering must

sometimes "assess and evaluate their contents" to "fix problematic formulas" and that these

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documents can contain budget information material to the collective bargaining process. Price

testified that Schuering's position provides computer network support to the Treasurer and staff,

including assistance with Excel functions. Unlike the situation in Niles and Glenview, where no

evidence was presented that the contested employees must read or have actual access to

confidential collective bargaining information, here we know with certainty that Schuering had

actual access to the information when performing her regular duties. She was required and had

the ability to actually read the contents of Excel documents while troubleshooting.

¶ 71 The majority has reweighed heavily Schuering's testimony that in all of her years on the

job she has never encountered a collective bargaining document, reasoning that when a position

exists for a substantial length of time the employee's actual access weighs in the determination.

Equally relevant to the inquiry is the position's present job description. See Department of

Central Management Services v. Illinois Labor Relations Board (CMS), 2012 IL App (4th)

110356, ¶¶ 29, 30. In CMS, the court found that although the employee at issue had not accessed

collective bargaining material so far in the course of his duties, his job description states that one

of his duties is drafting and reviewing legal documents including labor agreements. Id. The

court found the fact that the employee had not yet received an assignment with access to

confidential material "carrie[d] little weight" because he could be assigned "such a task at any

time." Id. ¶ 32. It further reasoned that to look only "at what the current employee has done so

far in the position, and not what his or her job responsibilities include, yields absurd results"

because if the employee subsequently receives such an assignment he or she "would need to be

removed from the union, which could happen at any time." Id.

¶ 72 The job description for ISA II states that the position "performs daily administration,

monitoring, and troubleshooting of servers" which the ALJ found includes assistance with Excel,

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a program used in the Treasurer's office for budget-related matters. In order to perform her

troubleshooting duties, the ALJ found that Schuering must sometimes "assess and evaluate their

contents" to "fix problematic formulas" and these documents in the Treasurer's office can contain

budget information pertinent to the collective bargaining process. As the court in CMS reasoned,

the fact that Schuering has not yet performed a task requiring her to peruse a collective

bargaining document carries little weight here because she could perform such a task at any time

according to her job description.

¶ 73 The majority finds significant the fact that Schuering has not encountered confidential

collective bargaining information in the course of her duties for the past 13 years. However, the

evidence presented shows that in her position Schuering must assist in troubleshooting with

Excel, and when doing so she must read the contents of Excel documents in order to

troubleshoot. Excel documents can contain confidential collective bargaining information. The

majority now changes the law to exclude from "confidential employee" status those who have

actual access to read the contents of confidential bargaining information, but have not yet done

so. Although Schuering has not come across such documents yet, she could at any time during

the course of her duties. The majority opinion sets out a change to the law which is properly one

for the legislature, not the courts. For these reasons, I would find that the Board's determination

was not clearly erroneous and should be affirmed; therefore, I respectfully dissent.