Department of Central Management Services v. Illinois Labor Relations Board

ILLINOIS OFFICIAL REPORTS
Appellate Court

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

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

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

Filed December 11, 2012

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

Judgment Reversed in part and vacated in part.

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

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

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

OPINION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶ 36 Reversed in part and vacated in part.

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