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Battle v. Illinois Civil Service Com.

OPINION FILED NOVEMBER 13, 1979.

PAUL BATTLE ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS CIVIL SERVICE COMMISSION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiffs were discharged from employment with the Illinois Department of Labor, Bureau of Employment Security (Department), after a consolidated hearing before the Illinois Civil Service Commission (Commission) (Ill. Rev. Stat. 1975, ch. 127, par. 63b111). On July 7, 1976, Local 1006 of the American Federation of State, County, and Municipal Employees (AFSCME) went on strike against the Department. Plaintiffs were officers and members of that union. They filed a complaint for administrative review of the Commission's decision in the circuit court of Cook County. (Ill. Rev. Stat. 1975, ch. 110, pars. 264-279.) The circuit court affirmed the discharge and plaintiffs appeal.

Twenty-two of the 23 plaintiffs were discharged for participation in an illegal strike, unauthorized absence for five consecutive work days, and withholding of services. The remaining plaintiff, Willie Newell, was discharged for excessive absenteeism. His discharge will be treated separately below. Plaintiffs do not assert that the Commission's determination is against the manifest weight of the evidence. Thus, only a short statement of the facts is necessary. Additional facts will be stated in connection with plaintiffs' contentions.

At the hearing, Ray Tillman, Executive Assistant to the Administrator of the Illinois Bureau of Employment Securities, testified that after the third day of the strike (on or about July 10, 1976), mailgrams were sent to the strikers requesting they return to work. On July 13 the Department suspended, pending discharge, those employees who had been absent for five consecutive work days. The striking employees were also notified of a meeting on July 16 at the Hyatt Regency Hotel. Employees were interviewed concerning reasons for their absences. Similar meetings were subsequently held at the Midland Hotel on July 23. Tillman testified that the interviews were not considered to be presuspension hearings under Rule 3400 of the State Time and Leave Policy Manual. Striking employees were only permitted to have a union or legal representative attend as an observer. The local union objected to this denial of representation. In protest, most of the employees signed union strike leaflets to show their attendance and walked out.

During the strike, Tillman received reports from the local offices regarding absent employees. Following the Midland Hotel meeting, Tillman prepared a chart based on the local office reports regarding employees who were absent for five consecutive work days. The chart also indicated those employees charged with instigating the strike or engaging in picket line misconduct. Tillman indicated that the chart might not be accurate in every instance because of information received subsequently. The chart was submitted for the limited purpose of showing that the Department attempted to compile information on individual strikers.

On July 28, 1976, the Director of the Department of Labor initiated discharge proceedings against all personnel who had been absent from work for more than five consecutive work days without prior authorization. Over 280 employees, including the instant plaintiffs, were discharged initially. Most of the striking employees had their discharges converted to suspensions as a result of a strike settlement agreement between the AFSCME International Union and the State. Thirty-three employees, including the instant plaintiffs, remained discharged because the chart indicated they had engaged either in instigation of the strike or in picket line misconduct, or both.

On March 14, 1977, the hearing officer found that, except for Willie Newell, plaintiffs either instigated, observed or promulgated the illegal strike in July of 1976 against the Department. On March 16, 1977, the Commission affirmed the hearing officer's decision. It also found the record showed that Willie Newell's excessive absenteeism warranted discharge. The circuit court affirmed the Commission's decision. We affirm the circuit court order.

Plaintiffs raise several contentions upon appeal: (1) striking does not constitute cause for discharge absent a specific Department rule; (2) they were denied equal protection of law because differing punishments were imposed upon striking employees; (3) they were denied due process of law because of a conspiracy between the State and the AFSCME International Union leadership to oust selected local union officials, using the strike as a pretext; (4) hearings at the Hyatt Regency and Midland Hotels were not presuspension hearings as required by rule and were otherwise improper; (5) filing of amended charges by the Attorney General denied plaintiffs due process; (6) discharge for mere participation in the strike through picketing violates the first amendment; and (7) defects in the appointment of I. Lawrence Richardson make his actions in discharging plaintiffs a nullity.

Findings of an administrative agency are prima facie true and correct. (Ill. Rev. Stat. 1975, ch. 110, par. 274.) On administrative review, the court's function is to determine whether the agency's findings are supported by substantial evidence and are not contrary to the manifest weight of the evidence. (Davis v. Retirement Board of Policemen's Annuity Fund (1975), 30 Ill. App.3d 318, 332 N.E.2d 446.) To conclude that findings are against the manifest weight of the evidence, the court must be satisfied that an opposite conclusion is clearly evident. Kelly v. Police Board (1975), 25 Ill. App.3d 559, 323 N.E.2d 624.

• 1, 2 An additional inquiry upon review is whether a charge is sufficient cause for discharge. This issue is generally for the Commission to determine (Caliendo v. Goodrich (1975), 34 Ill. App.3d 1072, 340 N.E.2d 560), and its finding of cause may not be overturned unless trivial, arbitrary or unreasonable. (Hardaway v. Civil Service Com. (1977), 52 Ill. App.3d 494, 367 N.E.2d 778.) Although not defined in the Personnel Code, "cause" has been construed to be some substantial shortcoming which renders an employee's continuation in office detrimental to the discipline and efficiency of the service and which law and public policy recognize as good cause for dismissal. Parkhill v. Illinois Civil Service Com. (1978), 58 Ill. App.3d 291, 374 N.E.2d 254.

• 3 Although plaintiffs raise no contentions specifically concerning Willie Newell's discharge, we have examined the record as it relates to him and find that the Commission's findings are not contrary to the manifest weight of the evidence. Newell's absence of more than one-half of a two-month work period is uncontroverted. Moreover, his absence for at least three days during the work stoppage is supported by competent evidence. Additionally, since neglect of duty constitutes just cause for discharge (see People ex rel. Carroll v. Durkin (1935), 280 Ill. App. 510), Newell's excessive absenteeism warrants that sanction.

• 4 The main contention of the remaining plaintiffs is that public employees may not be discharged for striking absent a specific Department rule to that effect. We believe that Strobeck v. Illinois Civil Service Com. (1979), 70 Ill. App.3d 772, 388 N.E.2d 912, appeal denied (1979), 76 Ill.2d, is dispositive of this issue. Strobeck concerned the discharge of another employee who participated in the same illegal strike against the Department. The appellate court held that "public employees have no protected right to engage in a strike" and that "unauthorized absence from employment due to participation in a work stoppage was cause for discharge." (70 Ill. App.3d 772, 778, 388 N.E.2d 912, 917.) Notice via a specific Department regulation that striking employees are subject to discharge proceedings is not necessary in light of the line of cases holding that public employees have no right to strike. See Strobeck, 70 Ill. App.3d 772, 778, 388 N.E.2d 912, 917.

• 5 Furthermore, Strobeck rejects plaintiffs' argument that they were deprived of equal protection because differing punishments were imposed upon striking employees. We note that the Department had just cause to discharge all 280-plus employees who engaged in the strike. Under the compromise agreement between the Department and the International Union, all but 33 of the dismissed employees had their discharges converted into suspensions. Employees who engaged in strike instigation or in picket-line misconduct remained discharged in order to deter future strikes. The Department decided to reinstate the vast majority of the strikers in order to maintain a work force. We concur with the reasoning of Strobeck that this classification of strikers was rationally related to the fulfillment of legitimate State purposes, served to benefit the public and did not offend equal protection.

• 6 Plaintiffs also allege they were denied due process of law because the State and the International Union conspired to oust selected local union officials who were not supportive of the International Union president. They base their contention on the third amended complaint of a pending Federal lawsuit in the Northern District of Illinois, Eastern Division, and the deposition of Neal Bratcher, vice president of the International Union of AFSCME in that suit. Neither of these documents is properly before us because they are not part of the record before the Civil Service Commission. Appellate review is confined to the record established before the Civil Service Commission. We may not consider new or additional evidence in support of or in ...


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