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One Equal Voice v. Illinois Educational Labor Relations Board

September 26, 2002

ONE EQUAL VOICE, THE ASSOCIATION FOR ACADEMIC PROFESSIONAL EMPLOYEES AT THE COLLEGE OF LAKE COUNTY, LOCAL 2394, IFT/AFT, AFL-CIO, PETITIONER-APPELLANT,
v.
ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD AND COLLEGE OF LAKE COUNTY, RESPONDENTS-APPELLEES.



Appeal from an Order of the Illinois Educational Labor Relations Board No. 2000-RC-0009-C

The opinion of the court was delivered by: Presiding Justice Theis

UNPUBLISHED

Petitioner, One Equal Voice, the Association for Academic Professional Employees at the College of Lake County, Local 2394, IFT/AFT, AFL-CIO (the Union), appeals from the final order of the Illinois Educational Labor Relations Board (the Board), certifying the results from a representation election held at the College of Lake County (the College). The issue presented for review is whether the Board erred in finding that the ballots cast by two employees during the election 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 Board and remand for further proceedings.

In February of 2000, the Union filed a representation petition, pursuant to section 7 of the Act (115 ILCS 5/7 (West 2000)), seeking to represent a bargaining unit composed of "all classified and specialist employees" and excluding "maintenance, custodial, and ground workers; faculty, counselors, and librarians; and managerial and confidential employees," employed by the College. 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 exclusive representative of the bargaining unit. Thereafter, among other challenges and objections, the College challenged the ballots of Suzanne Warchal and Kathleen Dempsey, on the basis that they were "confidential employees" as that term is defined under the Act.

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

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

Krupczak testified that he had worked with McNerney at another college where she had assisted in the collective bargaining process. While no collective bargaining had taken place since McNerney became employed with the College, he foresaw a similar role for her in her present position when he hired her in 1999. At the time of the hearing, McNerney had not yet participated in the development of labor management policies at the College, but was preparing data that would be used in negotiations with the Union. Krupczak stated that McNerney would be involved in the pending collective bargaining negotiations with the faculty, would participate in bargaining with the petitioned-for bargaining unit of classified and specialist employees if it were to be certified, and would also participate as a member of the College's collective bargaining team. According to Krupczak, McNerney would have access to the College's bottom line in labor negotiations and would be involved in creating the financial projections upon which the College's bottom-line negotiation position would be based.

McNerney testified that she had held her position for about one year. Her job primarily entails 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 bargaining because that was her role at a previous college where she worked with Krupczak. In her previous job, she was responsible for analyzing collective bargaining proposals and making recommendations to the administration on how to make its proposals more attractive to the union. She had not yet been involved in collective bargaining at the College, and had not yet developed any proposals or developed any salary information for collective bargaining. At the time she was hired, negotiations were concluding with the staff council union, which represents the maintenance and grounds workers. There had been no labor negotiations at the College since then. However, negotiations on a new faculty contract were to begin soon, and she was told several days before the hearing that she would be a member of the collective bargaining team for these negotiations. McNerney testified that she has access to the College's personnel and financial data. As she understood her position during collective bargaining, she and her staff would be responsible for determining the cost of various bargaining packages, initiating suggestions for formulating proposals during the bargaining process, and making recommendations concerning those proposals. It was also her understanding that she would be privy to the College's bottom line during collective bargaining.

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

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

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

On July 24, 2000, the ALJ issued his recommended decision and order, finding that Dempsey and Warchal were confidential employees as that term is defined in section 2(n) of the Act (115 ILCS 5/2(n) (West 2000)). Therefore, according to the ALJ, these two employees were ineligible 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 Board issued its decision, concluding that Dempsey and Warchal were confidential employees ineligible to vote in the representation election. The majority of the Board, in a 4 to 3 decision, concluded that McNerney's job duties encompassed formulating, determining, and effectuating management policies regarding labor relations. While she had not yet participated in labor negotiations, the majority concluded that the evidence firmly established that her current responsibilities included the collective bargaining process. The Board also found that Dempsey and Warchal would assist McNerney in those matters. Additionally, the Board found that these employees were confidential employees because they would have access to confidential information concerning the College's bargaining position during collective bargaining negotiations. The Union filed a timely 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 future duties 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 on questions of fact are deemed to be prima facie true and correct and will not be reversed unless they are against the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998). The agency's determination on 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 mixed question 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 mixed question of law and fact because it involves assessing the nature of ...


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