                                                                      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_________________________________




                                       29
