FIRST DIVISION DECEMBER 15, 2008
No. 1-08-1158
NILES TOWNSHIP HIGH SCHOOL DISTRICT ) Petition for Review of 219, COOK COUNTY, ILLINOIS, ) Order of the Illinois ) Educational Labor Petitioner-Appellant, ) Relations Board ) v. ) No. 2003-UC-0007-C ) ILLINOIS EDUCATIONAL LABOR ) RELATIONS BOARD and NILES TOWNSHIP ) SUPPORT STAFF, LOCAL 1274, IFT/AFT, ) AFL-CIO, ) ) Respondents-Appellees. )
PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the court:
The issue in the case at bar is whether two employees are “confidential employee[s]” as
defined by the Illinois Educational Labor Relations Act, (the Act) 115 ILCS 5/2(n) (West 2006).
The Act permits educational employees to organize, but it excludes confidential employees from
the collective bargaining unit. 115 ILCS 5/2(b) (West 2006).
The two employees at issue are: (1) a systems and networking engineer (SN engineer);
and (2) a world-wide web communications assistant (WW assistant). The Illinois Educational
Labor Relations Board already ruled that these two employees were not confidential employees,
and it is this decision that the school district asks us to review. No. 1-08-1158
BACKGROUND
The petitioner is the Niles Township High School District 219, Cook County, Illinois (the
District). In its petition to this court, the District challenged the classification of two of its
employees as not confidential. The two respondents are the Illinois Educational Labor Relations
Board (the Board), and the Niles Township Support Staff, Local 1274, IFT/AFT, AFL-CIO (the
Union). The Board was the entity that ruled that the two employees were not confidential
employees, thereby allowing them to become part of the Union.
Confidential employees are those employees (1) who assist management with respect to
labor-relations policy; or (2) who have access to collective bargaining information . 115 ILCS
5/2(n) (West 2006). Thus, this background section will provide only those facts about the two
employees that relate to their assistance or access. In addition, for the first test, the District must
show that the supervisor whom the employee assists is someone who “formulate[s], determine[s]
and effectuate[s]” management policies with regard to labor relations. 115 ILCS 5/2(n) (West
2006). In the case at bar, it is undisputed that the employees’ supervisors fit this definition. Thus,
this background will provide only those facts about the supervisors that relate to the employees’
assistance and access.
Procedural History
On May 30, 2003, the District submitted a petition to the Board, asking the Board to
remove three existing computer positions from an existing bargaining unit because they were
confidential positions. The three positions were the two positions at issue in this appeal, as well
as the position of “Programmer Analyst.”
2 No. 1-08-1158
On October 15, 2004, the administrative law judge issued a recommended decision,
recommending that the petition be dismissed for several reasons. The judge found that: (1) the
three positions were neither newly created nor substantially altered since the creation of the
existing bargaining unit in 1999; (2) the claimed alteration, even if substantial, rendered the
petition untimely, as measured from the alteration date of May 2001; (3) even if the alteration was
substantial and the petition was timely, the alteration did not create genuine doubt as to whether
the position should remain in the bargaining unit, because the employees’ alleged access to
collective bargaining information was not authorized.
On November 1, 2004, the District filed exceptions to the administrative law judge’s
recommended decision. In particular, the District claimed that a substantial alteration had
occurred on January 6, 2003, when its Board of Education ratified an amendment to the District’s
computer use policy.
On June 16, 2005, the Board issued its final order, affirming the administrative judge’s
recommended decision. The Board refused to consider the alteration that the District claimed
occurred on January 6, 2003, because evidence of it was not presented to the administrative law
judge. Also, the District’s current claim that, after January 6, 2003, the employees independently
searched for violations of the District’s computer use policy was contrary to the District’s prior
claim that these employees investigated only when directed to by the administration.
The Board also determined that “unit clarification petitions seeking to exclude allegedly
statutorily excluded employees from a bargaining unit must be filed within a reasonable period of
time after the unit begins to include allegedly statutorily excluded employees.” The Board found
3 No. 1-08-1158
that because it “concluded that the unit clarification procedure was not appropriately employed, it
[was] unnecessary *** to address whether the disputed employees [were] in fact confidential.”
On November 13, 2006, the appellate court reversed the Board’s decision, and remanded
with instructions that the Board must conduct an evidentiary hearing. Niles Township High
School District 219 v. Illinois Educational Labor Relations Board, 369 Ill. App. 3d 128, 143
(2006). In part I of the decision, we held that the District’s rights to due process were violated,
when it was not allowed to present evidence that its petition was filed within a reasonable period
of time. Niles Township, 369 Ill. App. 3d at 136. In part II of the decision, we rejected the
Board’s determination that petitions had to be filed within a reasonable period of time. Niles
Township, 369 Ill. App. 3d at 142. We held instead that there was no time limit. Niles Township,
369 Ill. App. 3d at 142-43.
Since our holdings addressed only the timeliness rulings, we stated that we took no
position on (1) whether the employees at issue were confidential employees or (2) whether their
job duties had substantially changed. Niles Township, 369 Ill. App. 3d at 137. We instructed the
trial court on remand to consider “the additional facts submitted by the District in its exceptions.”
Niles Township, 369 Ill. App. 3d at 137.
Evidentiary Hearing
On July 23, 2007, the Board on remand held an evidentiary hearing, where the District
presented five witnesses and introduced five exhibits. Two witnesses, Dr. Nanciann Gatta and
Guy Ballard were supervisors. Gatta was the District’s assistant superintendent for human
resources; and Ballard was the District’s director of technology. The administrative law judge
4 No. 1-08-1158
(ALJ) found that both Gatta and Ballard “formulate, determine and effectuate labor relations
policy”; and that the Union in its appellate brief accepted the ALJ’s findings. Thus, Gatta and
Ballard’s role with respect to labor relations policy is undisputed in this appeal.
The three remaining witnesses were employees in the contested positions: (1) Ms. Pat
Giorgas, a world-wide web communications assistant; (2) Mr. Adnan Memon, a systems and
networking engineer; and (3) Ms. Madeline Czervionke, a senior programmer analyst. The Board
ruled that the third position was a confidential employee; but the Union did not challenge this
classification on appeal. Since this position is not at issue on appeal, this order will not discuss
facts concerning it.
The District’s five exhibits were labeled A through E, and were as follows: (A)
instructions by the District to its employees concerning acceptable computer use, dated 2001 to
2007; (B) crisis management memoranda for the technology department, dated 2007; (C) the
technology department’s budgets for the years 2004-2008; (D) the technology department’s
organizational chart, dated July 19, 2007; and (E) job descriptions for the contested positions,
dated July 2007. All of the District’s exhibits were admitted without objection, except for exhibit
B, which was admitted over an objection as to relevance. The ALJ also had 7 ALJ exhibits that
were admitted without objection.
At the start of the hearing, the parties orally entered three stipulations: (1) that the District
was “an educational employer within the meaning of Section 2-A of the Act” (115 ILCS 5/2(a)
(West 2006)); (2) that the Union was “an employee organization within the meaning of Section 2-
C of the Act [115 ILCS 5/2(c) (West 2006)], and an exclusive representative within the meaning
5 No. 1-08-1158
of Section 2-D of the Act”(115 ILCS 5/2(d) (West 2006)); and (3) that “the bargaining unit is as
set forth” in the [Board’s] opinion and order.”
World-Wide Web Communications Assistant
The job description in Exhibit E stated that the WW assistant was “responsible for the
continuous development and maintenance of the District 219 web site to ensure information is
current and meets District 219 standards and guidelines.”
At the hearing, Ms. Pat Giorgas testified that she had been a WW assistant with the
District for five years, and that she reported to Ms. Chris Bush, a manager who supervised
Giorgas and “programmer analysts.” Giorgas described her job duties as “develop[ing],
implement[ing], troubleshoot[ing], [and] support[ing] all the internal and external web sites of the
school district, as well as any databases that go along with that.”
Giorgas testified that “part of [her] daily job routine” was “making sure that our teachers
and staff follow the AUP policy.” Giorgas explained that the “AUP” or Acceptable Use Policy,
which she identified as Exhibit A, was “a policy that our employees have to follow and sign-off
[sic][of when they come into the school district to use our computer systems.” With respect to
the AUP, her job was to “make[] sure that our staff or students or teachers don’t post, you know,
something bad onto the website that can affect us in a negative way.” Giorgas did not draft or
prepare the AUP.
Giorgas testified that there was an AUP in place when she started with the District in
2002, and that the AUP was enforced at that time but “[p]robably not to the extent as it was after
it was revised.” Giorgas helped to enforce the AUP by “do[ing] searches on [her] servers for
6 No. 1-08-1158
various things that could possibly violate the AUP.” If she found a violation, she reported it
either to her manager or the director of technology; but she was never at the meeting when the
employee was accused, and never asked to present evidence. Giorgas testified that the
programmer analyst and the network administrator also enforced the AUP. When asked whether
she assisted the school administration “in a confidential capacity,” Giorgas responded: “I guess.”
Giorgas testified that she assisted with “backups” of stored information, which was “a
mixture of everything on the server” and that there were no restrictions on her access to
information. She read materials only when she needed to “troubleshoot.” She implemented the
program for attendance records, but she had “not done anything with [teacher] evaluations.”
Giorgas testified that there were sites that “probably do hold material that is confidential in
nature” but she had not read them. She testified that she had never had an occasion to read any
documents of Dr. Gatta’s on the web.
Giorgas testified that different computer users had different levels of security access, and
that she determined the level “related to the web servers.” As a result, she had the capability to
control other users’ access to specific materials. She had complete control over “web-related”
user names and passwords, and she had the capability to log on as another user without the user’s
knowledge. However, she could not read another person’s email. She also had the capability to
access the web portions of the District’s network, as well as “[d]atabases holding personnel and
personal information of employees,” without another person being able to detect her access.
Giorgas testified that the network engineer would have access to other users’ email without their
knowledge
7 No. 1-08-1158
Giorgas identified the District’s Exhibit B as documents relating to “crisis management.”
She testified that this is “[s]omething we’ve put in place, just in case there was a crisis, we’d be
able to keep our school district up and running [o]r bring it back up in the fastest way possible.”
Giorgas was on the crisis management team, and her job obviously related to “the web server.”
When asked if she had seen before all the materials in Exhibit B, she replied “I believe so.”
On cross-examination, Giorgas testified that the description for her job in Exhibit E
“pretty much” described her duties. There were seven people in her “area,” and they all did
troubleshooting. She testified that the other two positions at issue, the SN engineer and the
senior programmer analyst, also had access to passwords. As far as backup materials were
concerned, the SN engineer had “access to everything” and the programmer analyst had “access
to certain things.” When asked if she had ever, in the five years she had been working for the
District, opened files relating to collective bargaining policies, Giorgas first testified “I don’t
know” and then she asked “what do you mean by collective bargaining?” Counsel then defined
‘collective bargaining’ as negotiations with the Union, and asked whether she would have “any
reason” to read such a document. Giorgas testified: “To read it? No.”
After cross-examination, the ALJ asked Giorgas some questions to clarify her role.
Giorgas testified that she had access to six or seven of the District’s servers, but not all of them.
One of the servers to which she had access was “the database server which holds all the Human
Resource information,” including teacher advancements and grievances. When asked whether she
had ever been asked to look at documents on any server relating to “negotiations between the
employer and the Union” or to “grievances,” she testified: “I don’t remember coming across any.”
8 No. 1-08-1158
Systems and Networking Engineer
The job description in Exhibit E stated that the SN engineer was “responsible for daily
operations of systems, servers and networking tasks as delegated by the Operations and
Networking Administrator.” The Operations and Networking Administrator is Marcello Sanz,
who is the immediate supervisor of Adnan Memon, the SN engineer.
Adnan Memon, the District’s SN engineer, testified that he had been in that position for
six years and that he reported to the operations manager. He testified that his access was broader
than that of Giorgas’ access, and that he had “access to any and all kind of data, e-mail, backups,
restores for data.” Memon testified that his access to email could be detected by other
employees, but that his access to data could not be detected.
Memon testified that he monitored the system for possible AUP violations as part of his
“day-to-day job.” When he discovered a violation, he reported it to his supervisor. There were
“instances” where he was present when an employee was accused of violating the AUP.
Memon testified that he had seen collective bargaining information, but he had never been
asked to read it, and he had never read it. He testified that he had never been asked to retrieve a
document that related to negotiations or grievances.
Supervisors’ Testimony
Dr. Gatta testified that she was currently the District’s assistant superintendent for human
resources. Previously, she had been a teacher at the District and vice-president of the local
teacher’s union. Now, she served on the “Board of Education Policy Committee” which
consisted only of herself and “Board of Education members.” The committee made
9 No. 1-08-1158
recommendations to the board of education concerning “policies” that would eventually be
adopted as “formal procedures.” The administrator in charge of a particular department would
then write administrative regulation to implement the board’s policies.
Gatta testified that the individuals involved with collective bargaining were the “attorneys
at the Board of Education and the cabinet-level administration.” The “cabinet-level
administration” was “a nine-person team” consisting of “the superintendent, the assistant
superintendents, and the principals, and *** the director of technology *** our community
relations administrator, and our head of security.” The cabinet shared computer “folders,”
including folders labeled “strike information” and “negotiations.” The negotiations folder
contained “every single proposal,” as well as “[s]trike-throughs, spreadsheets, whatever [they]
developed to look at as a team.”
Gatta testified that the three employees at issue in the hearing all worked for the director
of technology. Gatta testified that, recently, she had saved a file with the new teacher handbook
and that she could not locate it, and that Giorgas had found it on the server. Gatta testified that
“Giorgas developed a database for HR [Human Resources] to use, which details all of our
grievances, ULP, EEOC charges, anything of a legal nature related to HR.” Gatta testified that
while the three employees at issue could access her folders without her knowledge, they should
not do that.
Gatta testified that Madeline Czervionke, a programmer analyst, told Gatta that the Union
had asked Czervionke “in the past to get some access to some data.” However, Gatta did not
know if the person seeking access was a Union official because the programmer did not tell Gatta
10 No. 1-08-1158
who had asked. Gatta testified that the programmer did not access the data because “she knows
that it’s ethically wrong to access other people’s drawers.”
Gatta testified that during collective bargaining, she could ask one of the three employees
at issue to put together spread sheets. As an example, she testified that she could ask for a
spreadsheet on sick days, such as how many sick days does the average employee use and how
many sick days are in the “sick day bank.”
Gatta testified that, after she learned of the Union’s “appeal after the Appellate Court
decision,” she sent the employees at issue “all memos that placed them back in the [bargaining]
unit, paying Union dues, back on the salary schedules.”
Guy Ballard, the District’s director of technology, testified that he had been in that
position for 8 years. He identified District’s Exhibit D as the organizational chart of the
technology department. Of the 25 people on the chart, five were excluded from the Union: (1)
Ballard; (2) Ballard’s secretary, Daphne Wilson; (3) Chris Busch, the applications administrator,
to whom Pat Giorgas reported; (4) Phil Lacey, the manager of technology training; and (5)
Marcello Sanz, the manager of operations and networking, to whom Adnan Memon reported.
Ballard testified that the three employees at issue worked at the District office, in offices
adjacent to Ballard’s office. Ballard identified Exhibit A as the District’s authorized computer
use policy (AUP); and Exhibit C as the technology budget. Ballard explained that the AUP “went
through a radical review and change” in 2003, when “the Union and the District negotiated the
contents” of the policy. Part of the policy provided that “[a]nyone who can identify a security
breach on the web server must notify the webmaster or building administrator.” Ballard identified
11 No. 1-08-1158
“the webmaster” as Giorgas.
Ballard testified that Memon, the SN engineer, was in charge of backing up all the
information on the networks and saving it to backup tapes. Approximately a year and a half ago,
or the end of 2005, Ballard decided to create a crisis plan for the District so that they “could then
have a way to bring the District back on line in the case of a catastrophic event.” Ballard
identified Exhibit B as “the Reader’s Digest version ** or the executive summary of the crisis
management meetings that we had.” While developing the crisis management policy, Ballard
received assistance from the three contested employees. In addition, each of these employees
carried a “thumb drive, to carry the essential documents that they would need to maintain their
systems.” A thumb drive is a USB drive that can be put on a key chain.
Ballard testified that he asked Giorgas, the WW assistant, to give him “a chart of when the
teachers had last updated their web pages,” which Ballard testified was a major issue in the last
negotiation between the parties. Delinquent teachers were given a certain time period within
which to update; and if they failed to update, their supervisors were contacted.
Ballard testified that, during the last negotiation, his department prepared “a plan to shut
down the district in the case of a lockout or in case of a walkout *** to prevent inappropriate
access to *** information during negotiations.” Ballard asked Giorgas, the WW assistant, “to
prepare a bare bones web site and put it in a separate server”; and he asked Memon, the SN
engineer, “to make a final back up of everything and one last backup on the day that we were
closing negotiations.” Ballard asked the programmer analyst, who is not at issue in this appeal, to
relinquish all of her passwords, and Ballard changed them “so everybody was essentially locked
12 No. 1-08-1158
out of the system at that point.” Ballard testified that when he locked these three employees out
of their systems, they were “upset” and it created “bad feeling.”
Board’s and ALJ’s Decision
On September 26, 2007, the ALJ issued a detailed 26-page recommended decision, in
which she found that the programmer analyst was a confidential employee, but that the WW
assistant and the SN engineer were not confidential employees. The ALJ noted that the WW
assistant and the SN engineer had never read any documents relating to negotiations. In contrast,
the ALJ observed that programmer analyst had been “asked to prepare reports for negotiations,
which may include spreadsheets stating the cost of giving a specified amount in negotiations.” In
addition, the ALJ quoted the programmer analyst’s job description which stated that her duties
included “‘[d]evelop[ing] reports for Administration to use in collective bargaining.’”
On October 10, 2007, the District filed its exceptions to the ALJ’s recommended decision.
In particular, the District argued that employee disciplinary and grievance matters related to
collective bargaining, and that the WW assistant and SN engineer’s participation in enforcing the
District’s computer use policy rendered them confidential employees.
On April 7, 2008, the Board issued its opinion and order, affirming the ALJ’s
recommended decision in its entirety. On May 6, 2008, the District filed a petition for review
with this court, and this appeal followed.
ANALYSIS
At issue on this appeal is the Board’s finding that both the SN engineer and the WW
assistant were not confidential employees under the Act. 115 ILCS 5/2(n) (West 2006).
13 No. 1-08-1158
Since confidential employees are precluded from exercising the bargaining rights
guaranteed by the Act, “courts must narrowly interpret the exclusion.” Board of Education of
Glenview Community Consolidated School District No. 34 v. Illinois Educational Labor Relations
Board, 374 Ill. App. 3d 892, 898-99 (2006)(Glenview); One Equal Voice v. Illinois Educational
Labor Relations Board, 333 Ill. App. 3d 1036, 1042 (2002). The party asserting the exclusion –
normally the school district – has “the burden of producing sufficient evidence to support its
position. Glenview, 374 Ill. App. 3d at 899.
The District appealed directly to this court, because a party seeking to contest a final order
of the Board may do so only in an appellate court, and only in an appellate court “of a judicial
district in which the Board maintains an office.” 115 ILCS 5/16(a) (West 2006). Since the Board
maintains an office in Chicago, this appeal directly to the First Judicial District was proper. Board
of Trustees v. Illinois Education Labor Relations Board, 274 Ill. App. 3d 145, 153-54 (1995).
Standard of Review
“[T]he 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.” Glenview, 374 Ill. App. 3d at 899; Support Council of District 39, Wilmette,
Local 1274, IFT-AFT, AFL-CIO v. Educational Labor Relations Board, 366 Ill. App. 3d 830,
833 (2006) (Wilmette). The clearly erroneous standard is highly deferential. Glenview, 374 Ill.
App. 3d at 899; Wilmette, 366 Ill. App. 3d at 833. We will not reverse the board’s determination
about a confidential employee, unless our review of the entire record leaves us “‘with the definite
and firm conviction that a mistake has been committed.” Glenview, 374 Ill. App. 3d at 899,
14 No. 1-08-1158
quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,
393 (2001).
The appellate court has considered in two prior cases whether computer employees were
“confidential employees,” and reached opposite conclusions, based in part on the deferential
standard of review. In Glenview, a “technology administrative assistant” was found not to be a
confidential employee. Glenview, 374 Ill. App. 3d at 904. By contrast, in Wilmette, a “networks
manager” was found to be a confidential employee. Wilmette, 366 Ill. App. 3d at 838. Thus,
there is no bright-line rule for computer employees.
In part, the opposite conclusions of these two cases can be understood in terms of the
deferential standard of review. In Glenview, the Board found that the technology administrative
assistant was not a confidential employee; and the appellate court affirmed the Board’s ruling, as
not clearly erroneous. Glenview, 374 Ill. App. 3d at 904. In Wilmette, the appellate court also
affirmed the Board’s ruling as not clearly erroneous, but in that case the Board had found that the
network manager was a confidential employee. Wilmette, 366 Ill. App. 3d at 838. Thus, both
cases were affirmations, based on a clearly erroneous standard of review.
Thus, 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 question for us is does the
Board’s decision stink like a “dead fish.” Glenview, 374 Ill. App. 3d at 899, quoting Parts &
Electronic Motors, Inc., v. Sterling Electric Inc., 866 F.2d 228, 233 (7th Cir. 1988) (for an
appellate court to reverse under a clearly erroneous standard, the decision must “strike us as
wrong with the force of five-week old, unrefrigerated dead fish”).
15 No. 1-08-1158
Although the parties agree that the proper standard of review is the ‘clearly erroneous’
standard, there is also precedent for applying the standard of ‘against the manifest weight of the
evidence.’ Chief Judge of the Circuit Court of Cook County v. American Federation of State,
County and Municipal Employees, Council 31, AFL-CIO, 153 Ill. 2d 508, 526 (1992) (holding
that “the Board’s decision was not against the manifest weight of the evidence”); Board of
Education of Community Consolidated High School District No. 230 v. Illinois Educational
Labor Relations Board, 165 Ill. App. 3d 41, 55 (1987) (Consolidated) (also applying a standard of
“contrary to the manifest weight of the evidence”). Both standards are highly deferential. Under
a ‘manifest weight’ standard, a reviewing court may still not “reweigh the evidence or make an
independent determination of the facts.” Consolidated, 165 Ill. App. 3d at 55. Thus, under either
standard, the result is the same on the facts before us.
Tests for ‘Confidential Employee’ Status
To be considered “confidential”, the employee’s position must qualify under either (1) the
labor nexus test, or (2) the authorized access test. Wilmette, 366 Ill. App. 3d at 837. The two
tests are taken from the definition of “confidential employee,” contained in the Act:
“‘Confidential employee’ means an employee, who (I) in the regular
course of his or her duties, assists and acts in a confidential capacity
to persons who formulate, determine and effectuate management
policies with regard to labor relations or who (ii) in the regular
course of his or her duties has access to information relating to the
effectuation or review of the employer’s collective bargaining
16 No. 1-08-1158
policies.” 115 ILCS 5/2(n) (West 2006).
The labor nexus test is in clause (I) of the above-quoted section; the authorized access test is in
clause (ii).
There is a third test, the reasonable expectations test, which is not at issue in this case.
Wilmette, 366 Ill. App. 3d at 837; One Equal Voice, 333 Ill. App. 3d at 1044. This test asks
whether there is a reasonable expectation that the employees at issue would perform confidential
duties in a future collective bargaining process. Wilmette, 366 Ill. App. 3d at 837; One Equal
Voice, 333 Ill. App. 3d at 1044. The reasonable expectations test applies only when a collective
bargaining unit is not yet in place, but the employees at issue are expected to assume confidential
responsibilities once the unit is established. Wilmette, 366 Ill. App. 3d at 837; Chief Judge, 153
Ill. 2d at 523, 528 (“[t]he reasonable expectation test should only be applied where the
responsibilities may be reasonably expected but have not yet been assumed”). Since a unit was
already established in the case at bar, the employees’ duties are not speculative and this test does
not apply. Wilmette, 366 Ill. App. 3d at 837.
Both the labor nexus test and the authorized access test use the phrase “in the regular
course of his or her duties.” 115 ILCS 5/2(n) (West 2006). Interpreting this phrase, the appellate
court has held that “a person who performs confidential duties on a sporadic basis is still
confidential.” Board of Education of Plainfield Community Consolidated School District No. 202
v. Illinois Educational Labor Relations Board (Plainfield), 143 Ill. App. 3d 898, 911 (1986).
Thus, even if the computer employees in the case at bar had only sporadic access or nexus, they
would still be considered confidential employees, so long as their access or nexus was part of their
17 No. 1-08-1158
normal duties. Plainfield, 143 Ill. App. 3d at 911.
Labor Nexus Test
Under the labor nexus test, an employee is a “confidential employee” if he or she “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.” 115
ILCS 5/2(n) (West 2006).
The assistance must be “in a confidential capacity,” and the confidential capacity must
relate specifically to “labor relations.” 115 ILCS 5/2(n) (West 2006); Consolidated, 165 Ill. App.
3d at 56 (“the confidentiality aspect of the ‘labor nexus’ test *** must relate specifically to the
field of labor relations”). In this context, labor relations does not include hiring, performance or
promotion or “mere access to personnel or statistical information,” even if that information is
confidential. Consolidated, 165 Ill. App. 3d at 62-63. The assistance must provide the employee
with advance information about bargaining positions. Consolidated, 165 Ill. App. 3d at 61.1
In the case at bar, the ALJ found that the Union conceded that Dr. Gatta, the assistant
1 In its appellate brief, the District cited page 61 of Consolidated for the proposition that
personnel information, such as discipline of employees, handling of employee grievances and
overseeing responses to unfair labor practices, were considered ‘labor relations’ policies under the
statute. Consolidated, 165 Ill. App. 3d at 61. The cited page indicated just the opposite. The
cited page stated that although the secretaries at issue acted in a confidential capacity with respect
to such personnel matters as employee discipline, that did not mean that they were confidential
employees within the meaning of the act. Consolidated, 165 Ill. App. 3d at 61
18 No. 1-08-1158
superintendent for human resources, and Mr. Ballard, the director of technology, formulated,
determined and effectuated labor relations policy; and the Union in its appellate brief accepted the
ALJ’s findings. Thus that part of the labor nexus test can be taken as a given on this appeal.
After reading the entire record, we cannot find that the Board was clearly erroneous, when
it found that Giorgas and Memon were not confidential employees under the labor nexus test.
The record provides plenty of support for the Board’s decision. For five and six years,
respectively, Pat Giorgas and Adnan Memon worked as the WW assistant and SN engineer for
the district. During all those years, the collective bargaining process was alive and well. In fact,
during that time, by all accounts, there had been intense negotiation about the computer use
policy.
Yet, Giorgas testified that during her five years, she had never once read a collective
bargaining document, she had never once been asked to look at any collective bargaining
documents, and she had never once had an occasion to read any documents of Dr. Gatta’s on the
web. When asked about collective bargaining, Giorgas had to ask for a definition. Similarly,
Memon testified that during his six years as the SN engineer, he also had never read any collective
bargaining information, and he had never been asked to retrieve a document relating to
negotiations.
The sole reason for excluding confidential employees is to prevent those employees from
feeling torn between two masters: the employer, on the one hand, who wants confidentiality for
its bargaining strategy; and the union, on the other hand, who wants to learn that strategy to gain
an advantage. Chief Judge, 153 Ill. 2d at 523. Our supreme court has stated unequivocally that
19 No. 1-08-1158
the sole “purpose of excluding confidential employees is to keep employees from ‘having their
loyalties divided’ between their employer and the bargaining unit who represents them.” Chief
Judge, 153 Ill. 2d at 523. It is hard to see how Giorgas or Memon could have possibly felt torn
about whether to expose their employer’s strategy, when they themselves had no exposure to
collective bargaining information during their entire five or more years of employment.
Consolidated, 165 Ill. App. 3d at 61 (“the labor-nexus test is designed to protect against the
premature disclosure of bargaining positions”).
Not only does the Board’s decision comport with the purpose behind the statute, it also
comports with the letter of the statute itself. The language of the statute requires the employee’s
assistance to be “in a confidential capacity.” 115 ILCS 5/2(n) (West 2006). When Giorgas was
asked whether she assisted the school administration in a confidential capacity, the strongest
answer that she could muster was “I guess.” Giorgas testified that there were web sites that
“probably do hold material that is confidential in nature,” but she had never read them. Memon
testified that it was his job to “backup and restore” data, which would include any confidential
information on the server. However, the District, who had the burden of producing evidence,
failed to ask Memon whether he ever read any confidential documents.
In addition to legislative purpose and statutory language, the Board’s decision is also in
line with case law. For example, in Wilmette, this court held that a network manager was a
confidential employee, because that position was newly created and it was assumed that the
manager would have to read confidential, collective bargaining documents in order to perform her
duties. Wilmette, 366 Ill. App. 3d at 836. By contrast, in the case at bar, we do not have to
20 No. 1-08-1158
guess. We know for a fact that Giorgas and Memon do not have to read collective bargaining
documents to perform their duties, because they have never read them during their five or more
years of employment. Thus, the logic of the Wilmette case compels us to find that Giorgas and
Memon are not confidential employees.
The District claims that computer use was a subject of negotiation; that Giorgas and
Memon help to enforce the computer use policy by looking for violations and reporting them; and
that Giorgas and Memon thereby assist in formulating labor relations policy.
Practically anything can be a subject of labor negotiations, from how many books a
teacher is allowed to purchase to how many sick days she is permitted to take. The person who
counts the books or the sick days does not thereby become a confidential employee, even though
he or she is effectuating management policy. Similarly, the person who counts the number of
times that a teacher uses her computer for an unauthorized use does not thereby become a
confidential employee. Chief Judge, 153 Ill. 2d at 523 (recommending disciplinary action does
not count as formulating, determining or effectuating labor relations policies). As already noted,
access to information relating to hiring, performance, promotion, personnel or statistics does not
turn an employee into a confidential one, for purposes of this statute. Consolidated, 165 Ill. App.
3d at 61-63.
When asked how the employees at issue provided assistance during collective bargaining,
Dr. Gatta replied that she could ask them to provide spread sheets, such as a spread sheet on sick
days. Giorgas had implemented the computer program for attendance records. Back in the pen
and ink days, this court held that secretaries with full and regular access to personnel records were
21 No. 1-08-1158
not confidential employees. Consolidated, 165 Ill. App. 3d at 60- 61. This result does not change
simply because Giorgas now tracks attendance and sick days on a computer.
The sick day spreadsheet is completely different in character from the spreadsheets
prepared by the programmer analyst; and this difference is part of the reason why the ALJ found
the programmer analyst to be a confidential employee, while finding that the other two employees
were not. As the ALJ found, the programmer analyst was asked to prepare “spreadsheets stating
the cost of giving a specified amount in negotiations,” which gave her access to “what amounts
the District is considering offering.” The sick sheet spreadsheet did not provide the same type of
insight. Far from being clearly erroneous, the underlying decision recognized important
differences and drew a solomonic line.
The District also claimed in its appellate brief that Giorgas and Memon were “instrumental
in developing” the District’s computer use policy, but the record does not support the District’s
claim. Giorgas specifically testified that she did not draft or prepare the District’s computer use
policy; and the District failed to ask Memon whether he drafted or prepared the District’s
computer use policy. The District’s appellate brief claimed that the director of technology
testified that he had utilized Giorgas’s and Memon’s “knowledge” in drafting the policy.
However, the use of the word “knowledge” on the cited transcript page had nothing to do with
Giorgas’s and Memon’s “knowledge.” Counsel asked whether the Union had “knowledge that
people would be monitoring the use of e-mails and what teachers put on,” and the director
responded affirmatively.
The District also claimed in its appellate brief that Giorgas and Memon routinely assisted
22 No. 1-08-1158
the District in compiling information for both collective bargaining and employee grievance
procedures, and cited in support the testimony of the director of technology. Again, the record
does not support the District’s claim. The director was asked a question that was compound in a
couple of respects. First, it covered all three employees at issue in the hearing, while only two of
those employees are at issue on this appeal. Second, the question asked about whether they had
ever given the director information relating to either negotiations or grievance handling. When
the director responded “routinely,” he may have meant primarily grievance handling or primarily
the third employee not at issue on this appeal. His following comment supports the inference that
he meant primarily grievance handling, because he went out of his way to add “[p]articularly in
the case of grievances.”
The District also claims that Giorgas and Memon are confidential employees because they
are part of the crisis management team that would keep the District’s computer systems running
in a skeletal fashion during a crisis and would bring the District’s computer systems back to their
full-functioning capacity after the crisis was over. However, their assistance in that sphere must
be severely limited, because when the director of technology actually did bring the computer
system “down to its minimum, its bare necessity,” and presumably then brought it back up, the
director locked both Giorgas and Memon out of the system.
After a careful review of the record, we conclude that there is plenty of support in it for
the Board’s conclusion that Giorgas and Memon were not confidential employees under the
labor-nexus test.
23 No. 1-08-1158
Authorized Access Test
Under the authorized access test, an employee is a “confidential employee,” if “in the
regular course of his or her duties, [he or she] has access to information relating to the
effectuation or review of the employer’s collective bargaining policies.” 115 ILCS 5/2(n) (West
2006). The access must be authorized; and the information must relate specifically to collective
bargaining between labor and management. Wilmette, 366 Ill. App. 3d at 837. Examples of such
information include the employer’s bargaining strategy and actual collective bargaining proposals.
Glenview, 374 Ill. App. 3d at 898. The access must also be in the regular course of the
employee’s duties. Glenview, 374 Ill. App. 3d at 904.
Although the word “authorized” does not appear in the statute, most cases that have
interpreted this section of the statute have held that the access must be “authorized.” Wilmette,
366 Ill. App. 3d at 837; Glenview, 374 Ill. App. 3d at 898 (“the employee’s access to the
information must be authorized”); Chief Judge, 153 Ill.2d at 523 (the employee must have
“authorized access” to information “specifically related to the collective bargaining process”);
County of Cook v. Illinois Labor Relations Board, 369 Ill. App. 3d 112, 124 (2006) (Cook
County); One Equal Voice, 333 Ill. App. 3d at 1042.
The authorization part is so important that the name of the test is “the authorized access
test.” Wilmette, 366 Ill. App. 3d at 837; Chief Judge, 153 Ill.2d at 523; Cook County, 369 Ill.
App. 3d at 124; One Equal Voice, 333 Ill. App. 3d at 1042. Thus, the issue is not what access an
employee is capable of exercising, but what access the employer intends for the employee to
exercise. Cook County, 369 Ill. App. 3d at 125 (employees were not confidential, although they
24 No. 1-08-1158
had “the means to access information related to collective bargaining,” since the employer did not
authorize it). Put simply, the issue is not capability but authorization.
There is no question that Giorgas and Memon had a lot of capability. Giorgas testified
that she had the capability to access the web portions of the District’s network, as well as
databases holding personnel and personal information of employees, without another person being
able to detect her access. Memon testified that his capability to access data was even greater than
Giorgas’ access.
Authorization is a different story. Dr. Gatta, the assistant superintendent for human
resources, testified that, while Giorgas and Memon had the capability of accessing Gatta’s files
without Gatta’s knowledge, they were not authorized to do that. Giorgas testified that she did
not recall ever being asked, and thus authorized, to look at documents on any server relating to
negotiations between the District and the Union, or relating to grievances. Giorgas testified that
she had no reason to read such documents, and that she had never read any of Dr. Gatta’s
documents on the web. Glenview, 374 Ill. App. 3d at 902 (computer employee did not have
authorized access to collective bargaining documents, where she had not been asked to
troubleshoot those documents).
When Memon was asked on direct examination, whether his access to the District’s
systems was “authorized,” he responded “yes.” However, on cross-examination, when Memon
was asked if he would read a confidential letter authored by Dr. Gatta, Memon testified that he
would read the document only if he was instructed to do so. Memon also testified that he had
never been asked to read or to retrieve a document relating to collective bargaining.
25 No. 1-08-1158
Giorgas and Memon’s role was, in some ways, similar to the cleaning person who could
open other people’s desk drawers at night: while both the computer person and the cleaning
person had the capability to read documents, neither was authorized to do so. Glenview, 374 Ill.
App. 3d at 901-02 (cleaning person who emptied a superintendent’s wastebasket was not a
confidential employee). Dr. Gatta used the same analogy when she testified. Dr. Gatta explained
that although the Union had asked a programmer to access files, the programmer did not do it,
because “she knows that it’s ethically wrong to access other people’s drawers.”
In addition to authorization, we must also consider actual access. Glenview, 374 Ill. App.
3d at 903-04 (access must be actual and in the regular course of duties). When a position has
existed for a substantial amount of time, the Board will weigh heavily the employee’s actual
access to collective bargaining material. Glenview, 374 Ill. App. 3d at 901, 905 (substantial
amount of time includes “more than a year”). If a computer person testifies that she has not read
collective bargaining documents, then any access would be the result of mere chance. Glenview,
374 Ill. App. 3d at 901-02. In the case at bar, we know that chance is pretty slim, since Giorgas
and Memon testified that they had never read or retrieved collective bargaining information in five
years’ time. Such theoretical access is insufficient. Glenview, 374 Ill. App. 3d at 903 (a
computer employee was not a confidential employee, even though she “theoretically could have
access to confidential collective bargaining information”). While sporadic access is sufficient,
sporadic means sometimes, not never. Plainfield, 143 Ill. App. 3d at 911.
The access would also have to be a part of their regular duties. 115 ILCS 5/2(n) (West
2006); Glenview, 374 Ill. App. 3d at 903-04. Access was certainly not part of Giorgas and
26 No. 1-08-1158
Memon’s regular duties where it did not happen in five years or more.
Our case is distinguishable from Wilmette, where the network manager was found to have
access. Wilmette, 366 Ill. App. 3d at 838. First, as noted above, the posture on review was
different, since in Wilmette, the Board had already found that the manager was confidential, and
we could not find that this decision was clearly erroneous. Wilmette, 366 Ill. App. 3d at 838.
Second, also as noted above, the position was newly created, so the court was forced to speculate
on whether the employee would be required, and thus authorized, to read documents; whereas in
our case, after five years, no speculation is needed. Wilmette, 366 Ill. App. 3d at 836. Third, in
Wilmette, “it was envisioned” that the network manager would perform cost projections, relating
specifically to negotiations with the union. Wilmette, 366 Ill. App. 3d at 833. By contrast, there
is no evidence in our case that Giorgas or Memon performed such projections.
Based on the lack of authorization, the lack of actual access and the lack of access during
regular duties, we cannot find that the Board was clearly erroneous when it concluded that
Giorgas and Memon were not confidential employees under the authorized access test.
CONCLUSION
For the foregoing reasons, the order of the Board is affirmed. We cannot find that the
Board’s decision was clearly erroneous or against the manifest weight of the evidence.
Affirmed.
WOLFSON, and HALL, JJ., concur.
27 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be attached to each Opinion) Please use the ] following form: ] ] NILES TOWNSHIP HIGH SCHOOL DISTRICT ] 219, COOK COUNTY, ILLINOIS, ] ] Petitioner-Appellant, ] v. ] ] ILLINOIS EDUCATIONAL LABOR ] RELATIONS BOARD and NILES TOWNSHIP ] SUPPORT STAFF, LOCAL 1274, IFT/AFT, ] AFL-CIO, ] ] Respondents-Appellees. Complete ] TITLE ] of Case. ] Docket No. ] No. 1-08-1158 ] Appellate Court of Illinois COURT ] First District, First Division ] ] DECEMBER 15, 2008 Opinion Filed ] (Month, Day and Year) JUSTICES ] PRESIDING JUSTICE ROBERT E. GORDON delivered the ]opinion of the court. ] WOLFSON and HALL, JJ., concur. APPEAL from the ] Lower Court and Trial Judge(s) in form indicated Circuit Court ] in margin: of Cook County; ] Appeal from the Circuit Court of Cook County. the Hon:______ ] Judge Presiding ] Honorable , Judge Presiding. For APPELLANTS ]Indicate if attorney represents APPELLANTS or John Doe of ]APPELLEES and include attorneys of counsel. Chicago. ]Indicate the word NONE if not represented. For APPELLEES, ]----------------------------------------------------------------------------------------------- Smith and ] Scariano, Himes and Petrarca, Chtd. Smith, of ] Chicago Heights, Illinois 60411 Chicago. ] Attorneys for Appellant Brown, ] Attn: Anthony G. Scariano, Kimberly Payne and John A. Heintz of Counsel. ] OF COUNSEL ] Also add atty. ] Cornfield and Feldman for third party ] Chicago, Illinois 60602 appellants ] Attorneys for Appellee, Local 1274, IFT/AFT, AFL-CIO or appellees. ] Attn: Gilbert Feldman, Esq. ] OF COUNSEL ] ] Lisa Madigan, Attorney General - State of Illinois ] Chicago, Illinois 60601 ] Attorneys for Respondent, Illinois Educational Labor Relations Brd. ] Attn: John P. Schmidt ] OF COUNSEL No. 1-08-1158
___________________(USE REVERSE SIDE IF NEEDED_________________________________