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FOURTH DIVISION

September 26, 2002

PRESIDING JUSTICE THEIS delivered the opinion of the court:

Petitioner, One Equal Voice, the Association for Academic Professional Employees at theCollege of Lake County, Local 2394, IFT/AFT, AFL-CIO (the Union), appeals from the finalorder of the Illinois Educational Labor Relations Board (the Board), certifying the results from arepresentation election held at the College of Lake County (the College). The issue presented forreview is whether the Board erred in finding that the ballots cast by two employees during theelection were properly excluded on the basis that the employees were "confidential employees"as that term is defined in section 2(n) of the Illinois Educational Labor Relations Act (the Act)(115 ILCS 5/2(n) (West 2000)). For the following reasons, we reverse the decision of the Boardand remand for further proceedings.

In February of 2000, the Union filed a representation petition, pursuant to section 7 of theAct (115 ILCS 5/7 (West 2000)), seeking to represent a bargaining unit composed of "allclassified and specialist employees" and excluding "maintenance, custodial, and ground workers;faculty, counselors, and librarians; and managerial and confidential employees," employed by theCollege. Subsequently, an election was held on April 13, 2000, and in the initial tally of ballots,the Union received a majority in the election, by a margin of 103 to 102, to become the exclusiverepresentative of the bargaining unit. Thereafter, among other challenges and objections, theCollege challenged the ballots of Suzanne Warchal and Kathleen Dempsey, on the basis that theywere "confidential employees" as that term is defined under the Act.

On May 4, 2000, the Administrative Law Judge (ALJ) of the Board conducted a hearingon the issue of the challenged ballots. He heard extensive testimony from four witnessesregarding the nature of the employees' job duties and the role of their supervisor. Dempsey is aresearch associate and Warchal is a secretary in the Department of Institutional EffectivenessPlanning and Research of the College. Both employees report to Nancy McNerney, the assistantvice-president for institutional effectiveness planning and research. She, in turn, reports to PeterKrupczak, the vice-president for administrative affairs for the College.

Krupczak testified that he is responsible for the College's financial affairs. He stated thatin the fall of 1998, the role of the Department of Institutional Effectiveness Planning andResearch was changed from merely providing raw data to the administration to analyzing dataand providing various scenarios and projections for decision-making purposes. He further statedthat the reorganized department's responsibilities were to include establishing salary schedulesand analyzing the impact of proposals made during the collective bargaining process todetermine their financial impact on the College.

Krupczak testified that he had worked with McNerney at another college where she hadassisted in the collective bargaining process. While no collective bargaining had taken placesince McNerney became employed with the College, he foresaw a similar role for her in herpresent position when he hired her in 1999. At the time of the hearing, McNerney had not yetparticipated in the development of labor management policies at the College, but was preparingdata that would be used in negotiations with the Union. Krupczak stated that McNerney wouldbe involved in the pending collective bargaining negotiations with the faculty, would participatein bargaining with the petitioned-for bargaining unit of classified and specialist employees if itwere to be certified, and would also participate as a member of the College's collectivebargaining team. According to Krupczak, McNerney would have access to the College's bottomline in labor negotiations and would be involved in creating the financial projections upon whichthe College's bottom-line negotiation position would be based.

McNerney testified that she had held her position for about one year. Her job primarilyentails analyzing data and providing information to administrators for decision-making purposes.It was her understanding when she was hired that she would have a role in collective bargainingbecause that was her role at a previous college where she worked with Krupczak. In her previousjob, she was responsible for analyzing collective bargaining proposals and makingrecommendations to the administration on how to make its proposals more attractive to theunion. She had not yet been involved in collective bargaining at the College, and had not yetdeveloped any proposals or developed any salary information for collective bargaining. At thetime she was hired, negotiations were concluding with the staff council union, which representsthe maintenance and grounds workers. There had been no labor negotiations at the College sincethen. However, negotiations on a new faculty contract were to begin soon, and she was toldseveral days before the hearing that she would be a member of the collective bargaining team forthese negotiations. McNerney testified that she has access to the College's personnel andfinancial data. As she understood her position during collective bargaining, she and her staffwould be responsible for determining the cost of various bargaining packages, initiatingsuggestions for formulating proposals during the bargaining process, and makingrecommendations concerning those proposals. It was also her understanding that she would beprivy to the College's bottom line during collective bargaining.

McNerney further testified that Warchal is responsible for reviewing all of her work foraccuracy and is also responsible for data entry and checks formulas used in making financialprojections, including any formulas that would be used in collective bargaining. According toMcNerney, Warchal would be privy to the College's bottom line in negotiations and would haveaccess to the printed reports that McNerney would produce in making her proposals. Withrespect to Dempsey, she works with her as a team on all of her research projects and would beresponsible for working directly with her on framing bargaining proposals. Both Warchal andDempsey are privy to her passwords to the computer system and share the same server. Thedepartment is organized such that it is not dependent on any given person to know where thecomputer files are and how they are set up. If someone is absent, the others in the departmentcan find and access those files. It would be possible to keep information regarding the College'snegotiating position from her staff, but if they maintained their current responsibilities, theywould learn this information. McNerney would have to change her password if these employeeswere part of the bargaining unit.

Warchal testified that her current duties involve compiling enrollment reports, handlingsurveys and purchase orders, handling requests for information and sending out reports. Shestated that she compiles information from various college departments and puts them into aformat on the computer. She does not do any of the research. She has never had responsibilitieswith respect to collective bargaining, has not had access to the College's collective bargainingproposals or documents, and has not discussed collective bargaining with McNerney. She is theonly secretary in the department and has access to the passwords for the department computersystem.

Dempsey testified that her job as a research associate has primarily involved compilingand analyzing student-related data, courses, and review of programs in terms of their efficacy inproviding services to students. She works with statistical software packages to create variousspreadsheets. She has never had any involvement in making financial projections for theCollege. She had never had a role in collective bargaining and McNerney has not talked to herabout such a role. Dempsey also testified that she was involved in the interview process whenMcNerney was hired and that a role in collective bargaining was never specifically mentionedduring this process. She acknowledged that the focus of the department had shifted from issuingstandard publications to providing more targeted research to assist various College departmentsin making more informed decisions. She agreed that the collective bargaining team could be oneof the groups to which she is now asked to provide information. She further testified that sheworks together with McNerney on projects and occasionally reviews projects that McNerney isworking on. They all have access to the same databases.

On July 24, 2000, the ALJ issued his recommended decision and order, finding thatDempsey and Warchal were confidential employees as that term is defined in section 2(n) of theAct (115 ILCS 5/2(n) (West 2000)). Therefore, according to the ALJ, these two employees wereineligible to vote in the representation election, and their votes should not have been counted. The Union filed timely written exceptions to the ALJ's findings. On January 12, 2001, the Boardissued its decision, concluding that Dempsey and Warchal were confidential employees ineligibleto vote in the representation election. The majority of the Board, in a 4 to 3 decision, concludedthat McNerney's job duties encompassed formulating, determining, and effectuating managementpolicies regarding labor relations. While she had not yet participated in labor negotiations, themajority concluded that the evidence firmly established that her current responsibilities includedthe collective bargaining process. The Board also found that Dempsey and Warchal would assistMcNerney in those matters. Additionally, the Board found that these employees wereconfidential employees because they would have access to confidential information concerningthe College's bargaining position during collective bargaining negotiations. The Union filed atimely appeal.

The Union contends that the Board's determination that Warchal and Dempsey are"confidential employees" is contrary to law because it is based solely on their alleged futureduties and not on their present responsibilities and is against the manifest weight of the evidence. Initially, we address the appropriate standard of review. An administrative agency's findings onquestions of fact are deemed to be prima facie true and correct and will not be reversed unlessthey are against the manifest weight of the evidence. City of Belvidere v. Illinois State LaborRelations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998). The agency's determinationon purely legal questions is reviewed de novo and is not binding on a reviewing court. Belvidere,181 Ill. 2d at 205, 692 N.E.2d at 302. However, where the agency's findings are a mixedquestion of law and fact, the appropriate standard is whether the decision was clearly erroneous,"so as to provide some deference to the [agency's] experience and expertise." Belvidere, 181 Ill.2d at 205, 692 N.E.2d at 302. Here, the Board's determination is best characterized as a mixedquestion of law and fact because it involves assessing the nature of various employees' job dutiesand determining whether they should be characterized under section 2(n) of the Act as"confidential," a legal term that requires interpretation. See Belvidere, 181 Ill. 2d at 205, 692N.E.2d at 302. Accordingly, we review the Board's decision under the clearly erroneousstandard.

A confidential employee has been defined under the Act as either:

"[A]n employee, who (i) in the regular course of his or herduties, assists and acts in a confidential capacity to persons whoformulate, determine and effectuate management policies withregard to labor relations or who (ii) in the regular course of his orher duties has access to information relating to the effectuation orreview of the employer's collective bargaining policies." 115 ILCS5/2(n) (West 2000).

Those falling within the ambit of the definition are excluded from labor organizations thatotherwise represent those employees and act to protect their rights. Board of Education ofCommunity Consolidated High School District No. 230, Cook County v. Illinois EducationalLabor Relations Board, 165 Ill. App. 3d 41, 56, 518 N.E.2d 713, 722 (1987). Thus, theexemption is narrowly interpreted because it precludes the confidential employee from exercisingthe panoply of rights set forth in the Act. Community Consolidated High School District No.230, 165 Ill. App. 3d at 60, 518 N.E.2d at 725.

The purpose of excluding confidential employees from the bargaining unit is to preventemployees from having their loyalties divided between their employer, who expectsconfidentiality in labor relations matters, and the union, which may seek access to theconfidential materials to gain a bargaining advantage. Chief Judge of the Circuit Court of CookCounty v. American Federation of State, County & Municipal Employees, Council 31, AFL-CIO,153 Ill. 2d 508, 523, 607 N.E.2d 182, 189 (1992). Confidential employees "have the potentialfor obtaining advance knowledge of confidential labor relations information, thereby upsettingthe normal balance of negotiations." Community Consolidated High School District No. 230,165 Ill. App. 3d at 60, 518 N.E.2d at 725.

By its terms, section 2(n) sets up two separate yet related tests in determining whether anemployee possesses confidential status. The first test under subsection (i) has been labeled the"labor nexus" test. Under this test, if an employee assists in a confidential capacity in the regularcourse of his or her duties a person who formulates, determines and effectuates labor relationspolicies, then the employee holds confidential status. Chief Judge, 153 Ill. 2d at 523, 607 N.E.2dat 189. The second mode for determining if an individual is a confidential employee undersubsection (ii) has been deemed the "labor access" or "authorized access" test. Where theemployee has authorized access to information concerning matters specifically related to thecollective bargaining process between labor and management, the employee is deemedconfidential. Chief Judge, 153 Ill. 2d at 523, 607 N.E.2d at 189.

Under these tests, the Board and the courts have generally been reluctant to consider asevidence an employee's future job duties when the onset of those duties is merely a speculativepossibility. See, e.g., Board of Education of Plainfield Community Consolidated School DistrictNo. 202 v. Illinois Educational Labor Relations Board, 143 Ill. App. 3d 898, 910, 493 N.E.2d1130, 1138 (1986)(principals' planned future role would not control their current status forpurposes of determining whether secretaries were confidential employees); VermilionOccupational Technical Center, 1 Pub. Employee Rep. (Ill.) par. 1103, No. 84-UC-0003-S, atVII- 203 (IELRB April 17, 1985) ("we must look to that employee's present job duties and not topossible and, as yet, quite uncertain developments"). In both Plainfield and Vermillion, therewas little or no evidence to support an impending future role in labor relations. Rather, therecord reflected merely speculative future changes in the employee's job duties. The inherent riskof considering such possible future job duties is evident as the employer could use suchspeculation as a method to exclude employees from a bargaining unit.

However, in conjunction with the above tests, the "reasonable expectation" test has beenadopted by the Board and recognized by our supreme court as a means to consider evidence ofimpending future job duties where there has been no history of collective bargaining, but where itwas reasonably expected that confidential responsibilities would be assumed by the employeewith the establishment of a collective bargaining unit. Chief Judge, 153 Ill. 2d at 524, 607N.E.2d at 1989-90; City of Burbank, 1 Pub. Employee Rep. (Ill.) par. 2008, No. S-RC-45, atVIII-45 (ISLRB June 6, 1985).

In City of Burbank, the Board was troubled by the application of the statute whenaddressing the confidential status of an employee in a department with no prior collectivebargaining relationship. In that situation, the Board found that it would be fruitless for thedecision-maker to look only at the tasks that the person actually performed at the time of thepetition and/or hearing. Instead, the Board stated that it would consider the employee's and hissuperior's future roles in collective bargaining based upon the employee's current job duties and areasonable expectation that the employee alleged to be confidential would in fact be performingconfidential duties that meet the statutory definition with the onset of collective bargainingwithin the department. To prevent abuse, the Board qualified the reasonable expectation test bypermitting either party to file a unit clarification petition if actual confidential duties did notresult. City of Burbank,1 Pub. Employee Rep. (Ill.) par. 2008, at VIII-45.

We find that the same rationale for applying the reasonable expectation test in City ofBurbank applies under the narrow set of facts presented in the instant appeal. While werecognize that there has been a history of collective bargaining at the College with otherbargaining units, the department in which McNerney, Warchal, and Dempsey work has recentlyundergone a complete restructuring. The effect of that restructuring, as testified to by severalwitnesses, was to establish a new title and new role for the department such that it would now beinvolved in the upcoming collective bargaining process where it had previously played no role. Additionally, since the restructuring of the department, and McNerney's new role, no collectivebargaining negotiations have taken place. As such, it would be fruitless for the decision-maker toexamine solely the employee's and supervisor's current job tasks. Rather, in the instant case, thedecision-maker should have considered whether there was a reasonable expectation that theemployees alleged to be confidential would in fact be performing confidential duties that meetthe statutory definition with the onset of the department's established new role in the impendingcollective bargaining process.

Here, while the ALJ and the Board considered the facts in relation to the labor nexus andaccess tests, they never considered the application of the reasonable expectation test. Instead,they concluded that even though McNerney, Warchal, and Dempsey had not yet been involved inlabor relations, their current job duties had "firm contours" and thus were not merely hypotheticalfuture duties, applying the language of their Parkland College decision. Parkland College,15Pub. Employee Rep. (Ill.) par. 1021, No. 98-UC-0005-S (IELRB February 2, 1999). In Parkland,the question at issue was whether a petition to add the position of professor emeritus to abargaining unit of full-time employees at the college was premature where it was a newly createdposition that had not yet been filled. The Board found that where the terms and conditions ofemployment of the position were not speculative but, rather, had "firm contours," the technicallyunfilled position was not distinguishable from a filled position. Under these circumstances, theBoard created a narrow exception to the principle that these petitions are generally premature. We find that the reasonable expectation test is better suited to address the concerns at issue in thepresent case, given the statutory policy considerations regarding confidential employees and theneed for maintaining the normal balance of the bargaining process.

Without having considered the appropriate test to the given set of facts, we find that thedecision of the Board was clearly erroneous. Accordingly, we remand this matter to the Boardwith directions to apply the reasonable expectation test to the facts that were presented at thehearing without prejudice to either party from also introducing further evidence as to whetheractual confidential duties have since resulted under the labor nexus and labor access tests.

For the aforementioned reasons, we reverse the opinion and order of the Board andremand this matter for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HARTMAN and GREIMAN, J.J., concur.