                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




   Department of Central Management Services/The Department of State Police v. Illinois
             Labor Relations Board, State Panel, 2012 IL App (4th) 110356




Appellate Court            THE DEPARTMENT OF CENTRAL MANAGEMENT
Caption                    SERVICES/THE DEPARTMENT OF STATE POLICE, Petitioner, v.
                           THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL;
                           JACALYN J. ZIMMERMAN, MICHAEL HADE, MICHAEL COLI,
                           ALBERT WASHINGTON, and JESSICA KIMBROUGH, the Members
                           of Said Board and Panel in Their Official Capacity Only; ELAINE L.
                           TARVER, in Her Official Capacity Only as an ILRB Administrative Law
                           Judge; JOHN BROSNAN, Executive Director of Said Board in His
                           Official Capacity Only; and THE ILLINOIS STATE EMPLOYEES
                           ASSOCIATION, LABORERS INTERNATIONAL UNION, LOCAL
                           2002, Respondents.


District & No.             Fourth District
                           Docket No. 4-11-0356


Filed                      December 11, 2012


Held                       An attorney employed by the State Police in a position classified as a
(Note: This syllabus       public service administrator was properly found not to be a managerial
constitutes no part of     employee for purposes of being included in a collective-bargaining unit,
the opinion of the court   since he had little discretion to act independently on behalf of the State
but has been prepared      Police; however, the Board’s conclusion that he was not a confidential
by the Reporter of         employee was clearly erroneous under a proper application of the
Decisions for the          authorized-access test; therefore, the finding that the attorney was not a
convenience of the         confidential employee was reversed and the portion of the certification of
reader.)
                           representation including the attorney’s position in the collective-
                           bargaining unit was vacated.
Decision Under             Petition for review of order of Illinois Labor Relations Board, State Panel,
Review                     No. S-RC-10-122.



Judgment                   Reversed in part and vacated in part.


Counsel on                 Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special
Appeal                     Assistant Attorneys General, of Chicago, for petitioner.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and John P. Schmidt (argued), Assistant Attorney
                           General, of counsel), for respondent State of Illinois.


Panel                      JUSTICE TURNER delivered the judgment of the court, with opinion.
                           Justices Pope and Knecht concurred in the judgment and opinion.




                                             OPINION

¶1           Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 9(i) of the
        Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/9(i) (West 2008)), petitioner,
        the Department of Central Management Services/Department of State Police (Department),
        seeks direct review of a decision of the Illinois Labor Relations Board, State Panel (Board),
        to include the position held by Nicholas Kondelis, an attorney with the State Police, in a
        stand-alone bargaining unit represented by the Illinois State Employees Association,
        Laborers International Union, Local 2002 (Union). On review, the Department asserts
        Kondelis cannot be a member of the collective-bargaining unit because he is a (1) managerial
        employee under section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2008)), and (2)
        confidential employee under section 3(c) of the Labor Act (5 ILCS 315/3(c) (West 2008)).
        We reverse in part the Board’s decision and vacate in part the certification of representation.

¶2                                      I. BACKGROUND
¶3          On October 26, 2009, the Union filed a representation-certification petition, seeking to
        create a collective-bargaining unit, consisting of four attorney positions classified as public
        service administrator, option 8L, or staff attorney with the State Police and Illinois
        Emergency Management Agency. The positions at the Illinois Emergency Management
        Agency, which were certified as members of the collective-bargaining unit, are not at issue

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     in this appeal. The attorneys who held the State Police positions at issue were William Jarvis
     and Nicholas Kondelis. The Department responded, noting the State Police had four public
     service administrator, option 8L, positions and objecting to those positions’ inclusion in the
     proposed collective-bargaining unit. The Union then sought to include only the additional
     public service administrator, option 8L, position of William Hosteny.
¶4        On April 29, 2010, administrative law judge Sylvia Rios commenced the hearing on the
     Union’s proposed certification. The Department presented the testimony of Hosteny, who
     was the acting chief legal counsel for the State Police, and numerous supporting exhibits.
     The Union presented the testimony of Kondelis and Jarvis and a joint exhibit. The following
     is a brief summary of the evidence since the parties are familiar with the facts of this case.
¶5        The evidence showed the structure of the State Police and the current union
     representation. The sworn officers of the State Police that were troopers, sergeants,
     lieutenants, and captains were represented by the Troopers Lodge 41 of the Fraternal Order
     of Police (Fraternal Order of Police) and the master sergeants were represented by the
     Teamsters. The Director of the Department of State Police has several internal offices that
     are led by chiefs that report to the Director’s office. Those offices included the legal office,
     the labor-relations office, the office of governmental affairs, and the “EEO” office. The State
     Police’s legal office consists of 10 attorneys. Seven of the attorneys are sworn police officers
     who would normally be represented by the Fraternal Order of Police but were excluded from
     the bargaining unit under a memorandum of understanding between the State Police and the
     Fraternal Order of Police. The other three attorneys are Hosteny, Kondelis, and Jarvis, all of
     whom are civilians in the public service administrator, option 8L, position. At the time of the
     hearing, Hosteny was acting chief counsel. The chief of the legal office, currently Hosteny,
     officially reported to the first deputy director, Luis Tigera, who was the second highest
     ranking person in the State Police, and could also report to the chief of staff, Jessica Trame.
¶6        Moreover, Hosteny testified he worked with other offices on legal matters, including the
     labor-relations office. According to Hosteny, all of the staff attorneys in the office had the
     same kinds of duties, and he assigned cases based on who was available and who had the
     best background for the issue. With his labor-relations background, Hosteny did most of the
     labor-relations work. Evidence was presented showing a time when Jarvis worked on a labor-
     relations issue. Due to Kondelis’s criminal-law background, Hosteny often assigned Kondelis
     to work on merit-board cases. Hosteny explained discipline of sworn officers was governed
     by the State Police Act (20 ILCS 2610/0.01 et seq. (West 2008)) and how the process
     worked. In explaining the merit-board process, Hosteny noted the State Police were
     represented by the Attorney General’s office and his office assisted with the cases by lining
     up witnesses, prepping witnesses, and drafting questions. Hosteny emphasized that, while
     he assigned attorneys matters based on their legal background, he did cross-train his
     employees so they could handle a matter when needed. Hosteny also noted Kondelis was the
     attorney in the office that handled matters with the State Police’s forensic science
     laboratories and often Kondelis was contacted directly on such issues.
¶7        Kondelis testified he was a former prosecutor in the Cook County State’s Attorney’s
     office. With his criminal-law background, “a lot” of Kondelis’s work was with merit-board
     cases. Kondelis explained he had no authority to accept or reject settlement offers in merit-

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       board cases. He relayed any settlement offers to Hosteny, who discussed the matter with
       Tigera and Trane, outside of Kondelis’s presence. Kondelis also testified that, while he could
       draft a merit-board complaint, he had no authority to file the complaint. Such matters had to
       go through Hosteny.
¶8         In addition to merit-board cases, Kondelis conducted seminars for the State Police’s
       forensic laboratory scientists. He had also worked on an Equal Opportunity Employment
       Commission case involving a forensic scientist. In the past, Hosteny had also asked Kondelis
       to provide State Police officers information on issues such as forced blood draws. Further,
       Kondelis testified he was not involved in matters of collective bargaining and labor issues.
       He had never been involved with grievances, labor arbitrations, and collective-bargaining
       strategies. Even if a merit-board case he was working on also involved a grievance, Kondelis
       had nothing to do with the grievance process.
¶9         In October 2010, administrative law judge Elaine L. Tarver filed a written recommended
       decision and order, finding Kondelis’s and Jarvis’s positions were neither managerial nor
       confidential. (The record does not reveal why the order was written by a different
       administrative law judge than the one that heard the evidence.) Thus, the decision
       recommended the certification of the bargaining unit that included Kondelis’s and Jarvis’s
       positions. Hosteny’s public service administrator, option 8L, position was excluded due to
       the lack of evidence about that position. Tarver later filed a corrected recommended decision
       and order. The Department filed exceptions to the corrected recommended decision and
       order, asserting Kondelis and Jarvis should have been excluded because they were both
       managerial and confidential employees.
¶ 10       On March 25, 2011, the Board, which was comprised of Jacalyn J. Zimmerman, Michael
       Hade, Michael Coli, Albert Washington, and Jessica Kimbrough, issued a decision and order,
       rejecting the administrative law judge’s determination that Jarvis was not a confidential
       employee. On March 29, 2011, the Board’s executive director, John Brosnan, executed the
       certification of representative for the collective-bargaining unit that included Kondelis’s
       position.
¶ 11       On April 26, 2011, the Department filed its timely petition for administrative review
       under Rule 335. See 5 ILCS 315/9(i) (West 2008). Accordingly, we have jurisdiction under
       article VI, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, § 6) and
       section 9(i) of the Labor Act (5 ILCS 315/9(i) (West 2008)).

¶ 12                                       II. ANALYSIS
¶ 13                                   A. Standard of Review
¶ 14       With direct administrative review, this court reviews de novo the agency’s decision on
       a question of law. Niles Township High School District 219 v. Illinois Educational Labor
       Relations Board, 379 Ill. App. 3d 22, 26, 883 N.E.2d 29, 33 (2007). On the other hand, we
       afford deference to the agency’s decision on a question of fact and will not reverse such a
       decision unless it is against the manifest weight of the evidence. Niles Township, 379 Ill.
       App. 3d at 26, 883 N.E.2d at 33. An administrative agency’s finding is “against the manifest
       weight of the evidence only where the opposite conclusion is clearly evident.” Peacock v.

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       Board of Trustees of the Police Pension Fund, 395 Ill. App. 3d 644, 652, 918 N.E.2d 243,
       250 (2009).
¶ 15       Some agency decisions involve both questions of law and fact. “ ‘A mixed question of
       law and fact asks the legal effect of a given set of facts.’ ” Niles Township, 379 Ill. App. 3d
       at 26, 883 N.E.2d at 33 (quoting Elementary School District 159 v. Schiller, 221 Ill. 2d 130,
       143, 849 N.E.2d 349, 358 (2006)). This court will not reverse an agency’s decision on a
       mixed question of law and fact unless it is clearly erroneous. Niles Township, 379 Ill. App.
       3d at 26, 883 N.E.2d at 33. Our supreme court has defined the clearly erroneous standard as
       follows:
           “An agency decision will be reversed because it is clearly erroneous only if the reviewing
           court, based on the entirety of the record, is left with the definite and firm conviction that
           a mistake has been committed. [Citation.] While this standard is highly deferential, it
           does not relegate judicial review to mere blind deference of an agency’s order.” (Internal
           quotation marks omitted.) SPEED District 802 v. Warning, 242 Ill. 2d 92, 112, 950
           N.E.2d 1069, 1080-81 (2011) (quoting Board of Trustees of the University of Illinois v.
           Illinois Labor Relations Board, 224 Ill. 2d 88, 97-98, 862 N.E.2d 944, 950-51 (2007)).
       Generally, Illinois courts treat the Board’s determination of whether an employee is a
       managerial or confidential employee as a mixed question of law and fact and thus review the
       matter under the clearly erroneous standard. See Board of Education of Glenview Community
       Consolidated School District No. 34 v. Illinois Educational Labor Relations Board, 374 Ill.
       App. 3d 892, 899, 874 N.E.2d 158, 164 (2007); County of Cook v. Illinois Labor Relations
       Board-Local Panel, 351 Ill. App. 3d 379, 387, 813 N.E.2d 1107, 1115 (2004).

¶ 16                                 B. Managerial Employee
¶ 17        The Department first contends the Board erred by including Kondelis’s position in the
       collective-bargaining unit because he is a managerial employee and the Labor Act excludes
       such employees from engaging in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West
       2008). The Board alleges Kondelis’s primary duties of assisting in merit-board cases and
       advising personnel in the State Police’s forensic science laboratories do not make him a
       managerial employee. We conclude the Department has failed to show the Board’s decision
       was clearly erroneous.
¶ 18        Section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2008)) defines “managerial
       employee” as “an individual who is engaged predominantly in executive and management
       functions and is charged with the responsibility of directing the effectuation of management
       policies and practices.” The purpose of the exclusion is to “maintain the distinction between
       management and labor and to provide the employer with undivided loyalty from its
       representatives in management.” Chief Judge of the Sixteenth Judicial Circuit v. Illinois State
       Labor Relations Board, 178 Ill. 2d 333, 339, 687 N.E.2d 795, 797 (1997). In determining
       whether an employee is a “managerial employee” under the Labor Act, Illinois courts have
       utilized the following two tests: (1) “the traditional test, which considers whether the
       employee is a managerial employee as a matter of fact,” and (2) “the alternative test, which
       considers whether the employee is a managerial employee as a matter of law.” (Internal

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       quotation marks omitted.) Department of Central Management Services/The Illinois Human
       Rights Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 310, 315,
       943 N.E.2d 1150, 1155 (2010) (quoting Department of Central Management Services/The
       Department of Healthcare & Family Services v. Illinois Labor Relations Board, State Panel,
       388 Ill. App. 3d 319, 330, 902 N.E.2d 1122, 1130 (2009).
¶ 19       On the issue of whether the position was a managerial one, the administrative law judge
       found Kondelis (1) did not meet the first criterion of the traditional test; (2) was not
       managerial under the application of the considerations in Salaried Employees of North
       America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013, 1022, 560
       N.E.2d 926, 933 (1990); and (3) was not a managerial employee as a matter of law because
       his functions were not prescribed by law. On appeal, the Department’s application of the law
       to the facts of this case, which is only 10 lines long and contains no citation to the evidence
       presented at the hearing, appears to assert Kondelis is a managerial employee under the
       considerations of SENA. The administrative law judge found SENA distinguishable from the
       facts of this case because Kondelis did not regularly provide assistance to, or consult with,
       the labor-relations office as such matters are handled by Hosteny. Additionally, despite the
       cross-training, the administrative law judge found the evidence showed the attorneys were
       divided by their background and experience.
¶ 20       In SENA, 202 Ill. App. 3d at 1021, 560 N.E.2d at 932, the reviewing court emphasized
       the managerial exclusion exists to prevent employees from being placed in a position that
       requires them to divide their loyalty between the employer and the collective-bargaining unit.
       There, the law department at issue functioned as a single cohesive unit as tasks were assigned
       in a team fashion without any acknowledgment of formal management-union division
       between the attorneys. SENA, 202 Ill. App. 3d at 1022, 560 N.E.2d at 933. Moreover, the
       reviewing court found the law department was an inherent part of the city as all of the
       attorneys had the authority to recommend changes in the manner in which the city operated.
       SENA, 202 Ill. App. 3d at 1022-23, 560 N.E.2d at 933. The law department attorneys also
       exercised a tremendous amount of discretion on the city’s behalf, and thus the reviewing
       court did not believe the city should have to bear the divided loyalty that often followed
       unionization. SENA, 202 Ill. App. 3d at 1023, 560 N.E.2d at 933. Last, the reviewing court
       emphasized the uniqueness of the facts of the case and noted the law department’s structure
       was diffused rather than rigid. SENA, 202 Ill. App. 3d at 1023, 560 N.E.2d at 933-34.
¶ 21       Here, the State Police’s legal office has a clear hierarchy and a division of labor. Hosteny,
       as acting chief legal counsel, assigned matters to the other attorneys in the office and
       generally relied on the attorney’s background and experience in assigning the cases. Due to
       his criminal-law background, Kondelis worked primarily on merit-board cases. In such cases,
       Kondelis had no authority to accept or reject settlement offers and was not even present when
       the settlement offers were discussed. Moreover, Kondelis did not have the authority to file
       a merit-board complaint. The complaint had to go through Hosteny. At the merit-board
       hearings, the State Police were represented by the Attorney General’s office, and Kondelis
       only assisted that office. The Department noted those cases were against union members,
       who were usually represented by union attorneys. However, the only union members
       mentioned at the hearing as being disciplined in the merit-board process belonged to the

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       Teamsters and the Fraternal Order of Police, not the union from which the Department seeks
       to exclude Kondelis’s position. The only evidence of Kondelis acting independently was in
       giving legal advice to the forensic laboratories. Hosteny testified the laboratory employees
       could contact Kondelis directly about questions.
¶ 22       Thus, we find the structure of the State Police’s legal division is not diffused, and
       Kondelis had little discretion to act independently on behalf of the State Police. The facts of
       this case are clearly distinguishable from those in SENA and the same considerations do not
       apply here. Accordingly, the Board’s finding Kondelis failed to qualify as a managerial
       employee under the application of the considerations in SENA is not clearly erroneous.

¶ 23                                  C. Confidential Employee
¶ 24        The Department further asserts Kondelis should not have been included in the collective-
       bargaining unit because he is a confidential employee, which the Labor Act also excludes
       from engaging in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West 2008). The Board
       argues its decision Kondelis failed to meet the definition of “confidential employee” is not
       clearly erroneous because the record shows Kondelis did not handle labor-relations matters
       and did not have authorized access to collective-bargaining information. However, the
       Board’s decision and its argument on appeal consider only the work Kondelis has done so
       far in his position as a public service administrator, option 8L, and fail to take into account
       all of the position’s job responsibilities.
¶ 25        Section 3(c) of the Labor Act (5 ILCS 315/3(c) (West 2008)) defines a “confidential
       employee” as the following:
            “an employee who, in the regular course of his or her duties, assists and acts in a
            confidential capacity to persons who formulate, determine, and effectuate management
            policies with regard to labor relations or who, in the regular course of his or her duties,
            has authorized access to information relating to the effectuation or review of the
            employer’s collective bargaining policies.”
       The Labor Act excludes confidential employees to prevent “employees from ‘having their
       loyalties divided’ ” between their employer, who expects confidentiality in labor-relations
       matters, and their union, which may seek access to confidential material to gain an advantage
       in the bargaining process. Chief Judge of the Circuit Court v. American Federation of State,
       County & Municipal Employees, Council 31, 153 Ill. 2d 508, 523, 607 N.E.2d 182, 189
       (1992) (hereinafter AFSCME). For determining whether an employee is a “confidential
       employee” under section 3(c) of the Labor Act, three different tests have been formulated.
       AFSCME, 153 Ill. 2d at 523, 607 N.E.2d at 189. If an employee meets the requirements
       established in any one of the tests, the employee is a confidential employee for purposes of
       the Labor Act. AFSCME, 153 Ill. 2d at 523, 607 N.E.2d at 189. The employer bears the
       burden of proving the employee is a confidential employee.
¶ 26        In this case, the Department only asserted Kondelis was a confidential employee under
       the labor-nexus and authorized-access tests, and the administrative law judge found Kondelis
       was not a confidential employee under those tests. On appeal, the Department sets forth both
       the labor-nexus and the authorized-access tests, but it does not present any argument as to

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       how Kondelis’s position met the requirements of the labor-nexus test. Due to that failure, the
       Board asserts the Department has forfeited any argument Kondelis is a confidential employee
       under the labor-nexus test. See Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006) (providing for the
       waiver of any point not argued). We note the Department did not file a reply brief, and thus
       it did not respond to the Board’s forfeiture argument. Accordingly, we find the Department
       has forfeited any argument based on the labor-nexus test.
¶ 27        Under the authorized-access test, an employee is deemed confidential if the employee has
       authorized access to information concerning matters specifically related to the collective-
       bargaining process between labor and management. AFSCME, 153 Ill. 2d at 523, 607 N.E.2d
       at 189. Information related to the collective-bargaining process would include (1) the
       employer’s strategy in dealing with an organizational campaign, (2) actual collective-
       bargaining proposals, and (3) the information relating to matters dealing with contract
       administration. City of Evanston v. Illinois State Labor Relations Board, 227 Ill. App. 3d
       955, 978, 592 N.E.2d 415, 430 (1992). However, an employee’s “access to ‘confidential’
       information concerning the general workings of the department or to personnel or statistical
       information upon which an employer’s labor relations policy is based is insufficient to confer
       confidential status.” City of Evanston, 227 Ill. App. 3d at 978, 592 N.E.2d at 430.
       Additionally, the access to information must be in the regular course of the employee’s
       duties. AFSCME, 153 Ill. 2d at 525, 607 N.E.2d at 190.
¶ 28        In concluding Kondelis was not a confidential employee, the administrative law judge
       found he was not privy to conversations, documents, meetings, or any other communications
       concerning labor relations. The order noted Kondelis did have access to investigative reports
       drafted by the internal affairs division, but the record did not disclose the information
       contained in such reports. The administrative law judge found that, since Kondelis did not
       have job duties related to collective bargaining, contract matters, or contract administration
       matters, he did not regularly handle or have access to information that, if divulged, would
       provide advance notice to the bargaining unit on labor-relation matters.
¶ 29        The aforementioned findings focus on the work Kondelis has done so far in his position
       with the State Police and do not look at the job responsibilities of Kondelis’s position. While
       this issue was not raised in the parties’ briefs, it was discussed at oral arguments. After oral
       arguments, respondent was granted leave to cite One Equal Voice v. Illinois Educational
       Labor Relations Board, 333 Ill. App. 3d 1036, 777 N.E.2d 648 (2002). In that case, the First
       District noted that, under the tests for determining a confidential employee, both the Board
       and courts “have generally been reluctant to consider as evidence an employee’s future job
       duties when the onset of those duties is merely a speculative possibility.” One Equal Voice,
       333 Ill. App. 3d at 1042-43, 777 N.E.2d at 653-54. “The inherent risk of considering such
       possible future job duties is evident as the employer could use such speculation as a method
       to exclude employees from a bargaining unit.” One Equal Voice, 333 Ill. App. 3d at 1043,
       777 N.E.2d at 654. The court went on to find that, due to the recent restructuring of job
       functions, the Board should have applied the reasonable-expectation test, which was adopted
       “to consider evidence of impending future job duties where there has been no history of
       collective bargaining.” One Equal Voice, 333 Ill. App. 3d at 1043, 777 N.E.2d at 654.
¶ 30        We find One Equal Voice distinguishable from this case because the job duties for

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       Kondelis’s position are not speculative possibilities. The evidence showed the State Police’s
       legal office, in which Kondelis works, currently had the responsibility of providing legal
       advice to other internal divisions, including the labor-relations division. Specifically, the job
       description for Kondelis’s position states one of his job duties is drafting and reviewing legal
       documents necessary for the functioning of the agency, including, inter alia, labor
       agreements. The Department presented numerous documents showing actual work by
       attorneys in the legal office on matters related to the collective-bargaining process. Several
       documents were related to Jarvis’s work assignment, for which he worked with the chief of
       the labor-relations division on an “interest arbitration” involving the contract with the
       Teamsters. In finding Jarvis was a confidential employee, the Board found Jarvis’s
       aforementioned worked clearly exposed him to “sensitive information regarding collective
       bargaining strategy.” Despite the fact Jarvis had only that one labor-relations assignment, the
       Board found it was part of his regular course of duties because it was a normal task and not
       an ad hoc assignment. The Department also submitted labor-relations work done by Hosteny
       related to the collective-bargaining agreement with the Teamsters, which also demonstrated
       access to information related to the collective-bargaining process.
¶ 31       Moreover, Hosteny explained Kondelis could be assigned such work and indicated why
       Kondelis had not yet received such work. Specifically, Hosteny testified that, while he
       generally assigned worked based on an employee’s background, he had the right to give any
       of the assignments to any of his legal staff and did cross-train his employees. Additionally,
       he explained all of the public service administrator, option 8L, attorneys in his office perform
       similar roles as legal advisors for the State Police. With his labor-relations background,
       Hosteny currently performed most of the labor-relations work in his office. Further, we note
       the evidence did not indicate the labor agreement language contained in the job description
       for a public service administrator, option 8L, was only included to keep the position out of
       the union.
¶ 32       Accordingly, the Department’s evidence clearly showed providing legal advice to the
       labor-relations division is part of a public service administrator option 8L’s regular job
       responsibilities, which gave the employee authorized access to information concerning the
       collective-bargaining process between labor and management. The fact Hosteny has yet to
       give Kondelis, the current employee holding the position, such an assignment carries little
       weight because Hosteny could assign Kondelis or any future employee in the position such
       a task at any time. Looking just at what the current employee has done so far in the position,
       and not what his or her job responsibilities include, yields absurd results. For example, as
       soon as Hosteny assigned Kondelis to an assignment related to collective bargaining, he
       would need to be removed from the union, which could happen at any time. The limited
       focus also forces a supervisor to make sure all employees perform all of their job
       assignments as soon as possible when some tasks may need more on-the-job experience
       before an employee can properly perform it. Moreover, since Kondelis is in the same office
       as attorneys who have received collective-bargaining assignments, it is highly likely he is
       present for conversations about those assignments or has computer access to his coworkers’
       work. Keeping Kondelis’s position from all access to collective-bargaining related materials
       would place a large burden on the legal office. Accordingly, we hold that, in applying the

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       authorized-access test, one must consider the position’s job responsibilities and not just what
       the current position holder just happens to have done so far in the position.
¶ 33       Here, under a proper application of the authorized-access test, Kondelis’s public service
       administrator, option 8L, position is a confidential employee. Accordingly, we find the
       Board’s conclusion Kondelis’s position was not a confidential one under section 3(c) of the
       Labor Act was clearly erroneous. Thus, we vacate that portion of the certification of
       representation that included Kondelis’s position in the collective-bargaining unit.

¶ 34                                   III. CONCLUSION
¶ 35       For the reasons stated, we reverse that part of the Board’s decision finding Kondelis’s
       position was not a confidential employee and vacate the part of the certification of
       representation that included Kondelis’s position in the collective-bargaining unit.

¶ 36      Reversed in part and vacated in part.




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