Friday, September 5, 2014

Network Administrator Not Confidential Under The Labor Act

Contrary to the trend in recent years to exclude IT personnel from union participation because of their access to information stored on the employer’s network, the Appellate Court recently reversed a Labor Board decision to exclude an assistant information analyst in the State’s Treasurer’s Office from bargaining unit membership, reasoning that access alone was not enough to meet the exclusion test.

In  AFSCME v. ILRB and Treasurer’s Office of the State of Illinois, 2014 IL App (1st) 132455, 2014 WL 3352044, The Treasurer’s Office filed a unit clarification petition to exclude the position of Information System Analyst II (an assistant information system analyst) because the position allowed the employee access to all network information which included budget and other information relative to bargaining strategies for the employer. Under the Illinois Public Labor Relations Act there are two tests specifically designated in the statutory definition to determine whether a position is a confidential employee position: the “labor-nexus” test and the “authorized access” test. Here the Treasurer argued that the “authorized access” test applied.

Under the “authorized access” test, an employee is “confidential” if he or she has authorized access to information concerning matters specifically related to the collective-bargaining process between labor and management. The information must encompass ongoing or future collective-bargaining negotiations and strategies, not mere 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. Illinois courts have generally held that the inquiry into confidential status is limited to whether the employee in question has unfettered access ahead of time to information pertinent to the review or effectuation of pending collective-bargaining policies.  Thus, if, as part of a position's regular duties, an incumbent in the position has access to information that and divulged it to the incumbent's respective bargaining unit, it would give the Union unfair, advanced notice of the employer's private information regarding labor relations activity, and the incumbent should be classified as a confidential employee. It is generally thought that network administrators or those in positions similar to that in question in the Treasurer’s Office, easily fit that definition because they have “access” to all network stored information as part and parcel of their jobs.

In the recent case in the Treasurer’s Office, the employee was a network troubleshooter, allowing access to all information prepared and saved on the network, even that which was designated as “private”. While the evidence at the hearing also revealed that the incumbent in the job in question did not access information marked as “private” because of fear of discipline, the Labor Board nonetheless found that the position was confidential and subject to exclusion from the bargaining unit.

The Appellate Court reversed, holding that the ability to access is not enough to meet the test for exclusion. The access must be authorized and in the case of positions in existence for a long period of time, evidence must exist that actual access was gained, not just the possibility. It found compelling the testimony of the employee that the employer had created the designation of “private” for some information which she and others were prohibited from accessing and that she had, in fact, never accessed that information because she was not authorized to do so.

The ruling puts employers in a difficult situation. They can mark information as “private” and promulgate policies which prohibit access to certain IT employees without special permission. The problem of course is that the employer has no way to safeguard its information against access by a rogue employee. The lesson for employers is clear. Theoretical access to information is not enough to convince a court to deny an employee union participation. Before seeking the exclusion, employers must marshall evidence that the employee has both authorized access to labor relations strategies and information  as well as some evidence that those employees actually accessed this information.  In the alternative, employers can consider retaining its information on labor relations strategies in a place or manner other than on its network.

For more information on appropriate bargaining unit composition and all of your labor and employment issues, contact Margaret Kostopulos or any of the labor and employment attorneys at Ancel Glink.