                        NO. 4-06-0560              Filed:    6-25-07

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE BOARD OF EDUCATION OF GLENVIEW     )    Direct Appeal from
COMMUNITY CONSOLIDATED SCHOOL          )    Illinois Educational
DISTRICT NO. 34,                       )    Labor Relations
          Petitioner-Appellant,        )    Board
          v.                           )    No. 2006-RS-0002-C
THE ILLINOIS EDUCATIONAL LABOR         )
RELATIONS BOARD; VICTOR E. BLACKWELL, )
Executive Director; and GLENVIEW       )
PROFESSIONAL ASSOCIATION, IEA/NEA,     )
          Respondents-Appellees.       )
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          Petitioner, the Board of Education of Glenview Commu-

nity Consolidated School District No. 34 (District), appeals from

a March 2006 final order of respondent Illinois Educational Labor

Relations Board (Board), in which the Board determined that the

position of administrative assistant to the director of technol-

ogy (technology administrative assistant) in the District was

included in a bargaining unit represented by respondent Glenview

Professional Association, IEA/NEA (Association).   We affirm the

Board's order.

                          I. BACKGROUND

          In September 2005, the Association filed a petition

with the Board, seeking to add the technology administrative

assistant position to a bargaining unit represented by the
Association.    Later that month, the District filed a response,

arguing that the technology administrative assistant position was

"confidential," pursuant to the Illinois Educational Labor

Relations Act (115 ILCS 5/2(n) (West 2004)).

          At an October 2005 hearing on the petition conducted by

an administrative law judge (ALJ), the evidence showed the

following.   At the end of the 2003-04 school year, the District

created a new full-time position of technology administrative

assistant.   That position combined some of the duties of a former

full-time network technician with the duties of a former part-

time administrative assistant.    The District's technology depart-

ment also includes the director of educational technology (Brian

Engle), the network manager (Kelly Conwell), and four network

engineers.   The network engineers report to work at individual

school buildings and are responsible for day-to-day troubleshoot-

ing in those buildings.    The technology administrative assistant

position reports to work in the District's administrative build-

ing, along with the director of educational technology and the

network manager.

          The job description for the technology administrative

assistant indicates that the purpose of the position is "to

provide administrative and secretarial support to ensure the

smooth operations of school[-]related and business functions" of

the District.    The job description also lists the following job


                                 - 2 -
responsibilities:   (1) provide support to the director of educa-

tional technology, network manager, and network engineers; (2)

coordinate technology purchases; (3) coordinate inventory of

software and hardware; (4) maintain the District's voice mail, e-

mail, and telephone systems; (5) coordinate telephone system

service activities; (6) coordinate new staff members' access to

the District's network and PowerSchool (a software program that

allows the District to track student attendance and report

grades); (7) maintain group e-mail lists; (8) provide support

with computer-software applications; (9) develop and download

data sets for certain assessment systems; and (10) assist in the

technology budgeting process.   The job description also indicates

that the technology administrative assistant should have the

"[a]bility to handle confidential information," but it does not

specify the nature of such confidential information.

          Marilyn Miller testified on the District's behalf that

she had been the District's executive director of human resources

for 12 years, until her retirement in June 2005.   The technology

administrative assistant position was first advertised prior to

the start of the 2004-05 school year.   An individual was hired

and held that position from September 2004 through December 2004.

Margaret Coons was then hired as the technology administrative

assistant.

          As the executive director of human resources, Miller's


                                - 3 -
responsibilities included hiring, making tenure recommendations,

overseeing applications and evaluations, addressing salary

issues, working with labor-relations groups, and serving on the

labor-relations management committee.   During the last round of

labor negotiations with the Association, Miller was on the

District's negotiating team.   Miller and her administrative

assistants regularly used their computers to draft policies and

salary proposals, saved those documents to the human-resources

shared folder, and e-mailed documents and messages to other

administrators regarding negotiations and grievance settlements.

She also attached documents to her e-mails to share with school-

board members and the District's attorneys.   Miller did not

recall ever personally showing any confidential labor-relations

documents to the technology administrative assistant or to the

predecessor to that position--namely, the former full-time

network technician.

          Engle testified on the District's behalf that he had

been the director of educational technology for about one year.

The director of educational technology is responsible for the

District's technology department, educational technology, and

assuring that technology is being appropriately integrated into

the classrooms.   The technology administrative assistant is one

of three technology employees in the administration building who

perform troubleshooting duties.   The network manager is responsi-


                               - 4 -
ble for the District's entire network, while the network engi-

neers are responsible for "the day-to-day troubleshooting work on

the computers."    In addition to performing "clerical" duties, the

technology administrative assistant provides "level[-]one"

technology support to staff members in the administrative build-

ing.    Engle described level-one troubleshooting as "quick trou-

bleshooting" involving "easy issues."    The technology administra-

tive assistant also adds users to the District's network, which

involves using a program called WorkGroup Manager to create new

user accounts, maintain user names and passwords, and grant

access to e-mail groups.    The technology administrative assistant

is one of eight staff members who possess the master password

that allows for computer troubleshooting.    If Engle and Conwell

are both out of the administrative building, staff members could

ask Coons to assist them in retrieving lost documents.   To do so,

she would be expected to use the master password to try to find

the document on the server, desktop, or hard drive.    Engle stated

that when he and Conwell are not in their offices, they are

available via cellular phone or can be contacted through the help

desk.    When asked if Coons uses the master password to retrieve

lost documents "in the regular course of her job duties," Engle

replied as follows:    "I don't know the percentage or the amount

because she would only do it if [I was] not in the building."

Engle also stated that Coons "could be" expected to retrieve or


                                - 5 -
repair files in which collective-bargaining information is

stored.    Coons "might come across" a labor-relations document

when (1) a staff member is locked out of a file and Coons uses

WorkGroup Manager to reestablish the staff member's permission to

access the file or (2) she is performing "face-to-face trouble-

shooting."    The technology administrative assistant is not

responsible for "system tape backups."

            Engle also testified that the technology administrative

assistant is required to maintain confidentiality with respect to

network security and any information encountered while trouble-

shooting.    If Coons were to access a staff member's e-mail

account, that staff member would know because Coons would be

required to change the staff member's password to access the

account.    However, if Coons were working at a staff member's

workstation, no one would know whether she accessed an e-mail or

other document.    Engle stated that Coons had never seen a confi-

dential labor-relations document.

            Jill Engel testified on the District's behalf that she

had been the District's director of human resources since July

2005.   In that capacity, she oversees all employment matters for

the District.    She is also on the labor-relations committee,

where she deals with issues related to the formation of the

District's policies and procedures.     The next round of labor

negotiations with the Association was scheduled to begin in


                                - 6 -
February 2006, and Engel planned to be a member of the negotiat-

ing team.    She anticipated using her computer to create documents

containing proposals and analyses on economic issues, saving

those documents to a subfolder within the shared human-resources

folder.   Engel also expected to use e-mail to communicate with

other administrators regarding labor-relations issues.

            Engel also testified that she considered the technology

administrative assistant position more technology related than

secretarial or administrative.    Engel considered Coons the "go-

to" person for technology-related issues in the administration

building.    However, she did not know how much time Coons spent

performing troubleshooting duties.       Engel preferred not to ask

Engle or Conwell for technology-related assistance because it

takes them away from their duties in the individual schools.

However, if Coons is not available, she asks either Engle or

Conwell for assistance.    On one occasion when Coons helped Engel

with an e-mail issue, the subject-matter lines of Engel's e-mails

were displayed.    Engel could "almost guarantee" that some of

those e-mails had subject matter that "related to sensitive

issues that could be related to" labor-relations issues.

            Coons testified on the Association's behalf that in

January 2005, she began working in the technology administrative

assistant position.    The majority of her job duties involve

administrative duties, such as obtaining price quotes on


                                 - 7 -
computer-related equipment and software, placing orders per

requests from the network manager, keeping inventory of hardware

and software products, and calling outside vendors for needed

computer support.    She has access to the technology budget and

the technology accounts, but the business office must provide her

with access to other accounts.    In addition, Coons is responsible

for "add[ing] users to the District's network" by creating new

user accounts and assigning to the new users various computer

privileges, such as e-mail accounts and access to group e-mails

and group folders.    After assigning a new staff member an e-mail

username and password, Coons instructs the staff member to change

his password.   Coons would then be required to "go in and actu-

ally change the password for that individual" if she wanted to

access that staff member's e-mail account.    Coons' job entails

similar responsibilities for the voice-mail system.    Coons has

never been asked to read any staff member's e-mails.

          Coons also testified that the majority of the trouble-

shooting duties are performed by the network manager.    Coons has

never used the District's remote desktop to access computer files

or drafts of documents, and she does not know how to do so.

Instead, the network manager performs such duties.    Coons stated

that if a staff member has problems with her e-mail password,

Coons "wouldn't even venture to try and help."    Instead, she

would direct that staff member to the network manager, who "knows


                                 - 8 -
the ins and outs of e-mail."   Nor has Coons ever been assigned to

look at any labor-relations materials.    The only confidential

material that may have "ever crossed [her] desk" was students'

standardized test scores.   Coons has taught other staff members

how to make charts using the Excel software program and had given

Engel access to an e-mail group that included staff members for

the primary grades.   Giving Engel that access did not require

Coons to enter Engel's e-mail account or view any of Engel's e-

mails.   Instead, it required only that Coons enter the network

and "pull[] a name from one area of the screen into another."

Coons acknowledged that in assisting a staff member with a

computer-related problem, it is possible that a document could be

opened in front of her.

           In November 2005, the ALJ issued a recommended decision

and order dismissing the Association's petition.     Glenview

Professional Ass'n, 21 Pub. Employee Rep. (Ill.) par. 201, No.

2006-RS-0002-C (ALJ decision, Illinois Educational Labor Rela-

tions Board) (November 16, 2005).    In so doing, the ALJ deter-

mined that the position of technology administrative assistant

was a "confidential employee" under section 2(n)(ii) of the Act

(115 ILCS 5/2(n)(ii) (West 2004)).     Later that month, the Associ-

ation filed exceptions to the ALJ's decision, and in December

2005, the District filed a response.

           In March 2006, the Board issued an order reversing the


                               - 9 -
ALJ's decision, upon determining that the position of technology

administrative assistant did not constitute a "confidential

employee" under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii)

(West 2004)).    Glenview Professional Ass'n, 22 Pub. Employee Rep.

(Ill.) par. 37, No. 2006-RS-0002-C (Illinois Educational Labor

Relations Board) (March 23, 2006) (hereinafter Glenview Profes-

sional Ass'n, 22 Pub. Employee Rep. (Ill.) par. 37).     In June

2006, the Board certified that Coons had chosen to be represented

by the Association.

          This appeal followed.

                            II. ANALYSIS

                A. The Act and the Standard of Review

          The purpose of the Act is to regulate labor relations

between educational employers and employees for their benefit as

well as that of the general public.     115 ILCS 5/1 (West 2004);

Board of Education of Community Consolidated High School District

No. 230, Cook County v. Illinois Educational Labor Relations

Board, 165 Ill. App. 3d 41, 56, 518 N.E.2d 713, 722 (1987).

Section 2(b) of the Act defines an "educational employee" as "any

individual, excluding *** confidential *** employees" (115 ILCS

5/2(b) (West 2004)).   Section 2(n)(ii) of the Act defines a

"confidential employee," in pertinent part, as one who, "in the

regular course of his or her duties has access to information

relating to the effectuation or review of the employer's


                               - 10 -
collective[-]bargaining policies" (115 ILCS 5/2(n)(ii) (West

2004)).   Thus, employees that are deemed "confidential" "are

excludable from labor organizations which otherwise represent

those employees and act to protect their rights."    District No.

230, 165 Ill. App. 3d at 56, 518 N.E.2d at 722.    The

confidential-employee exclusion "is designed to protect against

premature disclosure of bargaining positions" (District No. 230,

165 Ill. App. 3d at 61, 518 N.E.2d at 726) by limiting the

bargaining association's membership to those employees who do

not, in the regular course of their jobs, have access to "'infor-

mation concerning matters arising from the collective[-]bargain-

ing process'" (District No. 230, 165 Ill. App. 3d at 63, 518

N.E.2d at 727, quoting City of Burbank, 1 Pub. Employee Rep.

(Ill.) par. 2008, No. S-RC-45, at 44 (Illinois State Labor

Relations Board, June 6, 1985)).

           Under section 2(n)(ii)'s "access test," the "inquiry is

limited to whether the employee in question has unfettered access

ahead of time to information pertinent to the review or effectua-

tion of pending collective-bargaining policies."    District No.

230, 165 Ill. App. 3d at 62, 518 N.E.2d at 726.    The information

must be confidential, and the employee's access to the informa-

tion must be authorized.   District No. 230, 165 Ill. App. 3d at

62, 518 N.E.2d at 726; see Chief Judge of the Circuit Court v.

American Federation of State, County & Municipal Employess,


                              - 11 -
Council 31, 153 Ill. 2d 508, 523, 607 N.E.2d 182, 189 (1992)

(discussing analogous statutory language).    Confidential informa-

tion includes "'the employer's strategy in dealing with an

organizational campaign, actual collective[-]bargaining proposals

and information relating to matters dealing with contract admin-

istration.'"     District No. 230, 165 Ill. App. 3d at 63, 518

N.E.2d at 727, quoting City of Burbank, 1 Pub. Employee Rep.

(Ill.) par. 2008, No. S-RC-45, at 44 (Illinois State Labor

Relations Board) (June 6, 1985).    Because the statutory exclusion

precludes the confidential employee from exercising the panoply

of rights guaranteed by the Act, courts must narrowly interpret

the exclusion.    One Equal Voice v. Illinois Educational Labor

Relations Board, 333 Ill. App. 3d 1036, 1042, 777 N.E.2d 648, 653

(2002).   The party asserting the exclusion has the burden of

producing sufficient evidence to support its position.    See

County of Cook v. Illinois Labor Relations Board, 369 Ill. App.

3d 112, 123, 859 N.E.2d 80, 89 (2006) (discussing analogous

statutory language and holding that "[a]n employer who wishes to

exclude an employee from a bargaining unit because the employee

is a confidential employee bears the burden of proving that

fact").

           The parties agree that the Board's determination as to

whether the facts establish that an employee is a confidential

employee as defined by statute will not be reversed unless that


                                - 12 -
determination was clearly erroneous.    Chicago Teachers Union v.

Illinois Educational Labor Relations Board, 344 Ill. App. 3d 624,

637, 800 N.E.2d 475, 484 (2003); see also One Equal Voice, 333

Ill. App. 3d at 1041, 777 N.E.2d at 653 (because the Board's

determination whether a position is confidential "is best charac-

terized as a mixed question of law and fact," that determination

should be reviewed under the clearly erroneous standard).     The

clearly erroneous standard is "extremely deferential."    Chicago

Teachers Union, 344 Ill. App. 3d at 638, 800 N.E.2d at 485.

Thus, an administrative agency's decision will be reversed only

if the reviewing court, based on the entire record, is "'left

with the definite and firm conviction that a mistake has been

committed.'"   AFM Messenger Service, Inc. v. Department of

Employment Security, 198 Ill. 2d 380, 393, 763 N.E.2d 272, 280-81

(2001), quoting United States v. United States Gypsum Co., 333

U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948); see

also Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001), quoting

Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866

F.2d 228, 233 (7th Cir. 1988) (describing the clearly erroneous

standard as follows:   "'[M]ore than just maybe or probably wrong;

it must *** strike us as wrong with the force of a five-week-old,

unrefrigerated dead fish").   Nonetheless, the clearly erroneous

standard does not mean that a reviewing court "must blindly defer

to the agency's decision."    AFM Messenger Service, 198 Ill. 2d at


                               - 13 -
395, 763 N.E.2d at 282.

           B. The Board's Prior Decisions Interpreting
                  Section 2(n)(ii)'s Access Test

           In Woodland Community Unit School District 5, 16 Pub.

Employee Rep. (Ill.) par. 1026, No. 99-UC-0005-2 (Illinois

Educational Labor Relations Board) (February 1, 2000) (hereinaf-

ter Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026), the

Woodland Education Association sought to add a newly created

position of technology coordinator to the bargaining unit the

Association represented.   The job description for that position

provided that one of the coordinator's "essential duties and

responsibilities" was to maintain strict confidentiality with

respect to "information relating to *** the effectuation or

review of the [school district's] collective[-]bargaining poli-

cies."   Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-

79. The technology coordinator was responsible for the security,

maintenance, and repair of the school district's computers.    The

coordinator had access to all of the school district's files and

backup system and had authority to open any and all computer

files to make sure that they had not been corrupted and perform

repairs.   To perform maintenance and repair functions, the

coordinator often had to access a file, which was then displayed

on a computer screen.   The evidence showed that once a file was

actually displayed on a screen, "it would be virtually impossible

not to read the document displayed."   Woodland, 16 Pub. Employee

                              - 14 -
Rep. (Ill.) par. 1026, at IX-80.   The technology coordinator

could and actually did access all files with or without the

superintendent's direction.   The coordinator’s access to the

superintendent’s files, which contained collective-bargaining

information, could not be detected.     The technology coordinator

was the only employee who was assigned to maintain all network

user names and passwords and who was capable of reading backup

tapes of the school district's computer system.     The Board

determined that the technology coordinator was a confidential

employee under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii)

(West 1998)).   The Board reasoned that the technology coordinator

had access to confidential collective-bargaining information "in

the regular course" of her duties.     In addition, the Board

emphasized that when addressing cases involving computer-technol-

ogy related positions, it would "decide each representation case

on the basis of the facts presented in that case alone."        Wood-

land, 16 Pub. Employee Rep. (Ill.) par. 1026, at IX-81.

          In Lake County Area Vocational System, 20 Pub. Employee

Rep. (Ill.) par. 5, No. 2003-UC-0003-C (Illinois State Labor

Relations Board) (January 20, 2004) (hereinafter Lake County Area

Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5), the

Board clarified its decision in Woodland.     The Board stated that

when deciding unit-clarification petitions involving employees

who are responsible for the operation and maintenance of an


                              - 15 -
employer's computer system, the Board would consider the follow-

ing factors:   (1) whether evidence exists of "actual access to

confidential collective[-]bargaining information in the regular

course of duties," (2) the job description of the position at

issue, and (3) the employee's day-to-day activities.   Lake County

Area Vocational System, 20 Pub. Employee Rep. (Ill.) par. 5, at

32.   The Board also stated that "[w]here a position has existed

for an amount of time, [the Board] will heavily weigh evidence of

actual access to confidential labor relations material as part of

that individual’s job."   Lake County Area Vocational System, 20

Pub. Employee Rep. (Ill.) par. 5, at 32.   The Board further noted

that it would closely scrutinize cases in which multiple techni-

cians handle confidential information.

               C. The Board's Decision in This Case

           The District argues that the Board's determination that

the position of technology administrative assistant did not

constitute a "confidential employee" under section 2(n)(ii) of

the Act (115 ILCS 5/2(n)(ii) (West 2004)) was clearly erroneous.

We disagree.

           In determining that the position of technology adminis-

trative assistant did not constitute a confidential employee

under section 2(n)(ii) of the Act (115 ILCS 5/2(n)(ii) (West

2004)), the Board stated, in pertinent part, the following:

                "Under the three-step test in Lake


                              - 16 -
County, the [technology administrative assis-

tant] is not a confidential employee.     First,

the facts do not establish Coons' actual

access to confidential collective[-]bargain-

ing information in the regular course of her

duties.   Unlike the [t]echnology

[c]oordinator in Woodland, it has not been

demonstrated that Coons accesses all files to

maintain the computer system and ensure that

it is operating properly.     The evidence es-

tablishes only that Coons gives other employ-

ees access to the District's computer system,

and that documents that Coons might encounter

while troubleshooting, retrieving[,] or re-

pairing them could include labor[-]relations

documents.   The District has not demonstrated

that giving access to a computer system in-

volves review of the documents contained in

that system.   ***   Miller *** admitted that

she had not shown Coons or the employee in

the eliminated [n]etwork [t]echnician's posi-

tion, who also engaged in technology trouble-

shooting and whose position was incorporated

into Coons' position, any labor[-]relations


                     - 17 -
documents.

     Moreover, the [Board] stated in Lake

County that an employee will not be consid-

ered confidential when his/her access to

confidential information is incidental to

his/her primary duties, like that of a custo-

dian emptying a superintendent's wastebasket.

Here, Coons testified that she does not pay

attention to documents when she is trouble-

shooting.    This demonstrates that reading the

documents is not an inherent part of her

troubleshooting duty, but is no more required

than a custodian is required to read the

documents in the wastebasket that he/she is

emptying.    Unlike in Woodland, the District

did not provide evidence that Coons' duties

require her to read the documents that she is

troubleshooting.    Thus, contrary to the Dis-

trict's argument, any access of Coons to

confidential labor relations information

would result from chance, rather than being

inherent in the functions of her position.

     The District argues that it should not

be required to establish that Coons has actu-


                     - 18 -
ally seen confidential information.   In re-

quiring that the District establish Coons'

actual access to confidential collective[-]

bargaining information in the regular course

of her duties, we do not require the District

to establish that Coons has actually seen

such information, but only that real and more

than incidental access will occur in the

regular course of her duties.

     The District argues that Coons has the

unfettered ability to access information on

the District's computer network at will, and

that she can access files saved locally on a

computer's hard drive.   The District asserts

that this access includes unfettered access

ahead of time to confidential labor[-]rela-

tions information.   However, unlike the

[t]echnology [c]oordinator in Woodland, there

is no evidence that Coons has been given the

responsibility of accessing all files in

order to maintain the computer system.     The

District has not demonstrated that for Coons

to explore files she has not been specifi-

cally asked to work on would be authorized or


                     - 19 -
in the regular course of her duties.    Coons'

ability to see the descriptive titles of

subfolders, files[,] and e[-]mails does not

establish authorization to view the documents

themselves.

        The District also argues that a reason-

able expectation existed that Coons would be

placed in close proximity to and would have

access to confidential collective[-]bargain-

ing information when negotiations began in

February 2006.    However, Coons' duties would

involve such access only in that documents

that she might encounter while troubleshoot-

ing, retrieving[,] or repairing them could

include labor[-]relations documents.    The

District did not provide evidence that Coons'

duties would require her to read the docu-

ments that she would be troubleshooting.

Thus, even during the February 2006 negotia-

tions, Coons would not have authorized access

to confidential collective[-]bargaining in-

formation in the regular course of her du-

ties.

        In addition, the District argues that


                      - 20 -
the fact that Coons' access to confidential

information may occur sporadically is of no

consequence to her status as a confidential

employee.   We recognize that, when it occurs

in the regular course of an individual's

duties, sporadic access to confidential

collective[-]bargaining information may be

sufficient to establish confidential status.

See Board of Education of Plainfield Commu-

nity Consolidated School District No. 202 v.

IELRB, 143 Ill. App. 3d 898, 493 N.E.2d 1130

(4th Dist. 1986).   However, we do not find

here that sporadic access to confidential

collective[-]bargaining information would be

insufficient to establish confidential sta-

tus.   Rather, we require that access to con-

fidential collective[-]bargaining information

be actual and in the regular course of the

disputed individual's duties.   In sum, we

conclude that the facts in this case do not

establish that the [technology administrative

assistant] has actual access to confidential

collective[-]bargaining information in the

regular course of her duties.


                    - 21 -
     Second, Coons' job description does not

indicate that she is to have access to confi-

dential labor[-]relations information.    While

her job description states that her position

requires the 'ability to handle confidential

information,' it does not elaborate as to the

nature of the confidential information.    This

is unlike the [t]echnology [c]oordinator's

job description in Woodland, which specified

that the information that the [t]echnology

[c]oordinator was expected to keep confiden-

tial related to the 'the effectuation or

review of the District's collective[-]bar-

gaining policies.   ***

     Third, an analysis of Coons' day-to-day

activities does not demonstrate that she is a

confidential employee.    Coons' day-to-day

activities consist of performing various

administrative duties and providing technol-

ogy support for the District administrative

office.   Within the realm of providing tech-

nology support, her day-to-day activities

included setting up and helping with computer

access, providing support for user accounts,


                    - 22 -
           troubleshooting, helping other employees who

           ask for assistance in operating their soft-

           ware, maintaining the [e-]mail system, and

           coordinating and maintaining the District

           telephone system.   Unlike the [t]echnology

           [c]oordinator in Woodland, Coons is not re-

           sponsible for system tape back[]ups.   The

           District has not made a sufficient showing

           that these duties entail authorized access to

           confidential labor[-]relations information."

           Glenview Professional Ass'n, 22 Pub. Employee

           Rep. (Ill.) par. 37, at 131-32.

           We have carefully reviewed the evidence presented under

the appropriate standard of review, as we are required to do.

Having done so, we are not "'left with the definite and firm

conviction that a mistake has been committed.'"    AFM Messenger

Service, 198 Ill. 2d at 393, 763 N.E.2d at 280-81, quoting United

States Gypsum Co., 333 U.S. at 395, 92 L. Ed. at 766, 68 S. Ct.

at 568.   The evidence showed that in the course of her regular

duties, the technology administrative assistant theoretically

could have access to confidential collective-bargaining informa-

tion.   However, the District presented no evidence showing that

the technology administrative assistant (or the predecessor

network technician, for that matter) had actual authorized,


                               - 23 -
unfettered access to such confidential information in the course

of her regular duties.   In addition, the evidence showed that the

technology administrative assistant's day-to-day activities

predominantly involved general administrative duties.   To the

extent those day-to-day activities involved technology support

and computer troubleshooting, such duties did not involve autho-

rized, unfettered access to confidential collective-bargaining

information.   Instead, the evidence showed that, at most, the

technology administrative assistant had been exposed to the names

of folders and subfolders and e-mail subject lines that may have

suggested that the underlying content of the documents related to

confidential bargaining information.   The evidence further showed

that while the technology administrative assistant's job descrip-

tion indicates that the person occupying the position should have

the "'ability to handle confidential information'" (Glenview

Professional Ass'n, 22 Pub. Employee Rep. (Ill.) par. 37, at

132), it does not specify the nature of such confidential infor-

mation.

          We thus conclude that the Board's decision that the

technology administrative assistant position did not constitute a

confidential employee under section 2(n)(ii) of the Act was not

clearly erroneous.

          In so concluding, we reject the District's contention

that the Board "applied a new 'actual access' standard."   In-


                              - 24 -
stead, the Board's written decision shows that the Board simply

applied the three-step test outlined in Woodland (including the

"actual[-]access" test) to the facts of this case.   We agree with

the Board that the way it defined "actual access"--namely, as

real and more than incidental access *** occur[ring] in the

regular course of her duties (Glenview Professional Ass'n, 22

Pub. Employee Rep. (Ill.) par. 37, at 131)--was consistent with

prior decisions of the Board and the National Labor Relations

Board that rejected claims that employees were confidential

because they had occasional, irregular, or potential access to

collective-bargaining material.   See, for example, In re

Bethlehem-Sparrows Point Shipyard, Inc., 65 N.L.R.B. 284, 287

(1947) (rejecting an employer's assertion that photostat opera-

tors were confidential employees because "they photostat, on

occasion, matters from the general manager's office which pertain

to confidential labor relations data"); District No. 230, 165

Ill. App. 3d at 61-63, 518 N.E.2d at 726-27 (in which this court

affirmed the hearing officer's determination that the secretaries

at issue were not confidential employees, even though evidence

showed that the secretaries had access to employee personnel

files and had acted "in a confidential capacity" regarding

grievances).

          We also reject the District's contention that the Board

acted inappropriately when it heavily weighed the actual access


                             - 25 -
to collective-bargaining material in this case.    According to the

District, the technology administrative assistant position was

newly created, similar to the technology coordinator position in

Woodland.   When the position at issue is newly created, actual

access to confidential labor-relations information should not be

given much weight, especially when labor negotiations had not

taken place during the short time that the position existed.

Unlike the newly created position in Woodland, which had existed

for only four months at the time of the hearing in that case, the

technology administrative assistant position here had existed and

been staffed for more than a year before the October 2005 hearing

on the petition.    We recognize that the Board in Lake County did

not specifically define what it means for a position to have

"existed for an amount of time."    Lake County Area Vocational

System, 20 Pub. Employee Rep. (Ill.) par. 5, at 32.    However,

whatever that phrase means, we conclude that the Board did not

act inappropriately by giving weight to the technology adminis-

trative assistant position's actual access to collective bargain-

ing material.

            We further reject the District's contention that the

Board arbitrarily applied "greater scrutiny" in this case based

on its decision in Lake County, in which the Board noted that it

would scrutinize cases in which multiple technicians handle

confidential information.    In this case, the District claimed


                               - 26 -
that all eight of its technical employees who possess the master

password constitute confidential employees under the Act.    In

addition, the evidence showed that (1) Engle and Conwell are

principally responsible for troubleshooting computer problems in

the administration building; (2) both Engle and Conwell have

offices in the administration building; (3) when they are not in

their offices, they are available via cellular phone or can be

contacted through the help desk; and (4) both Engle and Conwell

can perform troubleshooting duties from remote locations.    Given

that the District has multiple technicians who allegedly handle

confidential information and both Engle and Conwell are available

for troubleshooting within the administration building, the Board

did not act arbitrarily by applying greater scrutiny here.    Nor

did the Board's application of that standard result in its

telling the District how it should run its technology department

or structure its staff.   Instead, as the Association points out,

the Board merely determined that where (1) an educational em-

ployer has multiple technicians (each of whom the employer

purports is confidential) and (2) the status of one of those

technicians is questioned, the Board "will look carefully at the

evidence to ensure that the Act's indicia of 'confidential

status' is met as to that employee" (emphasis in original).       We

note that the Board's "greater scrutiny" test is consistent with

the National Labor Relations Board's longstanding principle of


                              - 27 -
looking critically at supervisory status where the exclusion of

supervisors in a department would result in an abnormally high

ratio of supervisors to those being supervised.    See, for exam-

ple, National Labor Relations Board v. Health Care Logistics,

Inc., 784 F.2d 232, 235 (6th Cir. 1986) (affirming the National

Labor Relations Board's decision rejecting supervisory status, in

part, on the basis that the company's assessment of supervisory

status would result in a ratio of one supervisor to two or three

employees, which was "'clearly out of balance'").

          Finally, we reject the District's contention that the

Board acted arbitrarily by determining that the technology

administrative assistant "would have to 'read' the documents

displayed on the computer screen in order for it to be considered

an inherent part of her job duty."     Viewing the Board's written

decision in its totality, we agree with the Association that the

Board's remark that Coons does not "read" documents while trou-

bleshooting (Glenview Professional Ass'n, 22 Pub. Employee Rep.

(Ill.) par. 37, at 132) was part of a lengthy discussion of the

distinction between the job duties performed by the technology

coordinator in Woodland (who often accessed files, which were

then displayed on the computer screen, thus being virtually

impossible not to read) and the technology administrative assis-

tant position here.   Given that no evidence showed that the

technology administrative assistant had actual access to confi-


                              - 28 -
dential collective-bargaining documents in the regular course of

her computer troubleshooting duties, the Board's isolated remark

does not constitute arbitrariness in the Board's decision.

                         III. CONCLUSION

          For the reasons stated, we affirm the Board's order.

          Affirmed.

          MYERSCOUGH and KNECHT, JJ., concur.




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