The Waukegan Police Strike-John Flood
THE WAUKEGAN POLICE STRIKE
Then Patrolman John Malloy called, then Patrolman Richard Kovach, then others. Acting Police Chief George Pasenelli took some of the calls, a police dispatcher and a typist took some others. It was "a hectic night, " Pasenelli recalled later.
The scene was the police department in Waukegan, Illinois, a medium sized industrial city about 50 miles north of Chicago. The date was July 24 1970, the start of Waukegan's blue flu epidemic, later a full-fledged strike. Blue flu is a fiction police and some other public employees in Illinois have used to get around the fact that they have no legal right to strike, no matter what their grievance may be.
Nineteen police officers were scheduled to work that night in Waukegan.
Only two arrived and for a couple of hours they were the entire police force. "On a Friday night in July in Waukegan, Illinois, that's serious, " the city attorney was to comment later. So serious, in fact, that Waukegan's mayor, the dominant political power in Waukegan and Lake County, was never to recover from his sense of frustrated anger that the police - he always had called them "my boys" - would leave the city unprotected. The gap was filled later that night when Lake County deputy sheriffs were called out to patrol the city.
The blue flu action was rather sudden, only definitely decided upon earlier that same evening, when a majority of the city's 78 policemen met in the American Legion hall and voted not to report to work, that night, or the next day, or until city officials began to act on some of their demands. But the fact that some kind of job action was imminent was no great surprise. Friday morning newspapers in Chicago had listed Waukegan as one of-five suburban police departments likely to be engulfed by the blue flu that day. Tension in the
The matter of union recognition was to become a key issue in the struggle that was to build during the rest of the summer in Waukegan and to end with the firing of 54 patrolmen, lieutenants and sergeants. The men contend they were fired because they joined the union and the city refused to deal with it, in violation of the policemen's rights. City officials contend they were fired because they repeatedly refused to report for duty, thus violating nine Civil Service Commission rules and their oaths of office. A court dispute over which version is correct is unfinished as this report is being written.
On that tense July night in Waukegan - Friday, July 24 - the acting police chief, George Pasenelli, working with a typist and a sergeant who had reported to work, called all the rest of the men listed on the duty roster for the night shift. Each replied that he was sick.
"Prior to reporting for duty, " the acting chief recalled telling each of them, "You'll bring in a doctor's certificate stating that you were examined, and for what ailment. "
Pasenelli was a 16-year veteran of the department and had been assistant chief for just over a year. The men he was calling were friends, long-time associates, many with years of service equal to or greater than his own. It was, as he said, a "hectic night. " The burden was his alone because the police chief, John Della Valle, was away on vacation. He came back the next day.
That first night Pasenelli sent a telegram to every member of the police department: "All days off and vacations are herewith cancelled effective immediately. You are ordered to report to the Waukegan police station at one p. m. on Saturday, July 25, 1970. " The time on the telegram was 11:02 p. m. and Western Union reported that all the telegrams were delivered by cab "by approximately 1:35 a.m."
The telegrams were ignored. The men did not report on Saturday. Nor Sunday. Nor Monday. Nor, many of them, ever again.
The blue flu was barely launched in Waukegan before the dispute began to center around two colorful, powerful persons. One was the mayor of Waukegan, Robert Sabonjian, who's proud of his nickname, "the Rock, " and who was operating from one of the firmest political bases in the nation. The other was a great bear
of a young man named John J. Flood, a sergeant in the Cook County sheriff's police and the founder and president of the Cook County Police Association, which had in the year and a half sit-ice its birth moved into 20 suburban Chicago police departments, conducting strikes (or sick-ins) in some of them before beginning to make some gains. Apparently each of the two instantly recognized the other as an appropriate antagonist. Sparks fly when Sabonjian speaks of Flood ("He impresses me as in authority on nothing. In my thinking, he doesn't exist. and when Flood speaks of Sabonjian ("The Rock is afraid to face his own citizenry. He is not a rock; he's a pebble,!."
They were the major adversaries, although they met face to face only once. In some ways the two men are remarkably similar, although neither would like the characterization and it is, indeed, only true in part. Both are selfmade men, with little formal education but with quick, shrewd minds. They are fiercely proud of their achievements. They are strong, stubborn men, quick to anger but well able, too, to exert considerable charm. Each has proved an ability to lead people. Each has the politician's grasp of where power lies and how to use it. But there are many differences.
Mayor Robert Sabonjian and Waukegan
Sabonjian was 53 years old and in his fourth term as mayor at the time of the police strike, the only mayor in the city's history to have served more than two terms (he'd be pleased if that reminded you of F.D. R. ). He considers himself an independent in politics, and was elected first, as an independent Democrat in 1957 (the story goes that when he filed for office that year, he borrowed a key to City Hall and arrived at 4 a. m. to assure his position at the top of the ballot). By the time of the last election, in 1969, he called himself an independent Republican. Actually, he's claimed rather wide support by people in both parties, many of whom feel that he's been good for Waukegan. An ardent booster for his city, he's brought in many new industries - offering some favors and demanding some in return. Here's an example: when the Dexter Corporation was talking of moving its Midland Paint Division out of Waukegan, the mayor arranged for the city to vacate a street and sell the land to Dexter for five cents a square foot (he said he really wanted to give it to them). In the years since, the city has openly solicited free paint from the company and its president now heads Waukegan's Civil Service Commission, which makes him a part of this story.
The city government makes a point of using local products and businesses are under considerable pressure to buy locally, too.
"We tell contractors they'd better hire local subcontractors and buy cement locally, " Sabonjian once explained. " 'This town has been good to you, I we tell them. 'Keep the money and the jobs here and we'll all grow together. I It all comes back to the city, to the people. But not one penny comes back to Robert Sabonjian. "
Sabonjian has fostered a building boom in Waukegan. - There's a trim new municipal building, with the police and fire departments housed at one end. There's a trim new library and a glamorous new county building, towering near Lake Michigan in the heart of downtown and wrapped around a vast plaza with fountains, flowers and sculpture.
Old-timers claim he's cleaned up the city and Sabonjian proudly agrees. The son of an Armenian immigrant who worked in the steel mill, Sabonjian grew tip in the mill area in the south of the city and says he saw all sorts of crime, gambling and prostitution there.
"I saw all this as I grew up here, " he recalled, "and I promised myself that if I ever became important, I'd clean up this town. When I became mayor I let everyone know that the good ol' days were over. The slots, the wire rooms and gambling and the crumbs who ran 'em - they all got the word. I was determined that this was going to be a town where men can get work, honest work, and where kids can grow up, get an education, and come back here to work and raise families.
He presides over it all with a kind of fierce ardor; he is the city and the city is him. No detail is too small. He'll worry, for example, about the width of the parking spaces in a new city lot, fretting that the yellow lines are so close together that the women will have trouble getting their car doors open if they're carrying packages, fretting until he finally calls his public works superintendent and tells him to repaint the lines, providing wider spaces.
For the most part, the city's people have been with him and the city council has been made up of his supporters. Only one alderman opposed him in his tough stand against the police. But there have been rumblings of dissent, too, with some saying he's so entrenched politically that he's become arrogant and autocratic. "I run the City Council, " he once said, "by Robert's rules of order. My name is Robert. "
From time to time, usually during election campaigns, there are charges that gambling still thrives in Waukegan, with official protection from the city. There are charges of government by crony and of potent black. lists for those out of favor.
Part of the controversy over Sabonjian centered around the nature of his tough stand during 1966 rioting in Waukegan's black ghetto. He called the rioters "scum, hoodlums, bums and animals. " Some people applauded but others did not, including the leadership of the black people who make up about 15 per cent of Waukegan's population. Later he suggested to a legislative commission that unwed mothers be jailed and their children placed in orphanages; there were more then who called him racist. Apparently he was encouraged by the kind of backlash support he was getting and ran for the senate in 1966, as a write-in candidate against Charles Percy. He drew 41, 965 votes, Percy more than 2 million.
-7sort of logic and reason to obtain our basic requests and for the most part they absolutely refused. We had no choice but to fight them. They'd give something one day, then take it away the next. It was completely frustrating. They had to see that they have to deal with us.
It wasn't just more money the men wanted, Flood insists, although that was part of it; most of the local chapters were seeking parity salaries with the Chicago police, who start at $12 000 a year. Mostly, he said, they wanted union recognition and, through it, the right to have some voice on how departments are run, about transfers, promotions, recognition of work done, the internal investigation systems. They wanted grievance procedures and dues checkoff.
Municipal officials tended to greet Flood as they would the arrival of the plague. He is almost frighteningly big and he had a habit of bringing along some more very big policemen. The men were armed and stubborn and municipal officials found the confrontation unnerving, if not downright threatening. Flood is also rather quick on the trigger. "I'm kind of a gut guy, " he says, "but I'm watching Art Loevy and trying to learn from him. I'm trying to learn how to relax, not to get heated up and stomp out, to learn to work toward agreement. But it is frustrating. "
Many of the municipal officials said they had no legal authority to recognize a police union (an issue still before the Illinois courts) and many more simply didn't want the union, legal authority or not. But the men were interested and about 20 departments had come into the association by the summer of 1970. Not all those departments were in Cook County; some were in Lake County. Lake County deputy sheriffs joined the association and that probably influenced the Waukegan police, who are closely associated with the Lake County deputies.
The Discontent in Waukegan
One center of controversy in Waukegan was the chief of police, John Della Valle, a 19-year veteran of the force promoted to chief by Mayor Sabonjian in October, 1968, less than two years before the strike. He was extremely unpopular with the men in the department.
One of them, Lt. Charles Fletcher, said, "The chief just doesn't get along with people. He came up through the ranks and is an old-time cop, a politician's policeman. It was a sloppy operation. There was no chain of command, no communication between the command and the men. "
Dick Maier, an earnest, quiet young officer who had made detective in four years, unusually quickly, said the chief kept calling him, "Meathead.
"He had names like that for most of us, " Fletcher said. "He was insulting. There was a lot of discontent. "
Murray Conzelman the Waukegan city attorney (corporation counsel) and probably the mayor's most influential adviser, in looking back, added another angle: "Our present chief is technically the best man we've ever had. But he's a book man - if it's - in the book, you do it, no questions asked. Apparently that rankled. The previous police chief was a really nice guy that everybody liked. So they'd gone from a nice guy to a tough guy.
Mayor Sabonjian added a comment, too: "Maybe it was a problem of familiarity breeds contempt. They worked with him all those years and knew him as just another guy, and then all of a sudden they had to call him chief. He used to smoke in the patrol cars, but then, when he got to be chief, he told the men they couldn't, that it was against the rules. That kind of thing. I could have gone outside and brought in someone else, but I don't believe in that. I believe in promoting up from the ranks. "
Early in June, 1970, Conzelman, the city attorney, recalls, "the chief came to me to tell me some bond money had been stolen from the front desk. I asked ,-Lim if he knew who did it and he said he thought it was one of three men in the department. I suggested that he give them lie tests. Unfortunately, instead, the chief asked a whole group to take lie tests and they all refused. "
The "whole group" that the chief called in for lie tests consisted of eight command officers ("all gold braid, " as Fletcher puts it); two captains, all the lieutenants, two sergeants, and only one patrolman. The group included officers who had not been on duty at the time the money disappeared.
"Some said they wouldn't take the tests - why should they?" Fletcher recalled. "The chief said, 'Because you're going to do what I tell you to do. ' It was really a power play; he knew those men weren't responsible. The chief had been using lie tests before, too. The men didn't like it. It was humiliating. Held never even tell the results. "
The stolen funds, a $50 bond and a $25 bond, were in a small envelope within a larger envelope containing about $2, 000 in all.
"Here's the thing about that bond money, " Fletcher continued. "If you're going to steal money, you'd have ' to cover it up by stealing the bond report and the accident report, too. The police would all know that. But the reports weren't taken, only one of the small envelopes. We say it was a set-up. Anyway, it brought everything to a head.
Sixty-eight of the 78 men in the department signed a petition to take to Mayor Sabonjian. It read:
"We, the undersigned, officers and patrolmen of the Waukegan Police Department, because of the threat and the shadow of suspicion directed at eight of
our ranking officers and one patrolman, feel that we can-no longer effectively work fur Chief of Police John Della Valle."
The officers took the petition to the mayor and Lt. Fletcher made a bitter speech, starting, "Mayor, assembled before you are the highest ranking line officers of the Waukegan Police Department. We represent 149 years of police work for the city of Waukegan. Until now, these have been 149 years of loyal, honest police work. With one blow, Chief of Police John Della Valle has destroyed all of this, and turned these years into a nightmare for all of us. He has indiscriminately used his powers as a chief of police. We are all now suspected thieves. Our reputations have been smeared. Our men eye us with suspicion. Our names have been dragged through the mud. Our families are hurt and disgusted. "
He went on to complain that, in the 20 months since the chief took over, I I other men had been given lie tests, although all were found not guilty, and "during these 20 months, we have been harassed, shouted at, threatened and treated like a bunch of school children. "
Fletcher went on to assure the mayor that "we have no quarrel with you, " but that they were turning to him because, "As you may or may not know, Chief Della Valle is not a man one can sit down with and discuss a situation with.
Neither the petition nor Fletcher's prepared speech said so, but it
was the mayor s clear -understanding that he was being asked to fire the chief. He refused.
"I can't deal this way, " he recalls telling the officers. "Tomorrow who'll you tell me to fire ? I'm mayor. Nobody's going to tell me who to fire and hire. But why hadn't they come in to talk about their problems ? My door is open to them. It's always open to anyone.
"I asked for a meeting, with the chief present, and asked them to repeat the charges. I told them, I promise you there will be communication between the chief and the officers, there'll be some changes made. They did have some legitimate complaints - but they had never told me... We had the meeting with the chief. It was a good meeting, with good discussion. The guys said they had confidence in me and they'd tell that to the men. They kept saying, 'we have faith in you. I They said they would recommend to the men that they go along with the mayor, that held work things out and get better conditions. "
Fletcher agrees that the meeting with the chief was held but he doesn't recall that much was accomplished. "We all just sat there," he said. It was not the end of the affair.
There are other strands to the Waukegan Story in early June, too. The police were getting nowhere in their efforts to get a salary increase, a grievance system that would work, and some other changes they wanted.
Collective bargaining for Waukegan police was not a new venture as it is in many police departments. The Waukegan Police Association for many years had met with city officials to discuss salary and benefits and the city considered the police association the recognized bargaining agent under terms of the city's ordinance which guarantees such recognition.
"Waukegan is essentially a union town, " Murray Conzelman, the city attorney, explained. "During the 1930s there was tremendous labor strife here. The first sit-down strike took place here. 1 A lot of our city labor legislation dates from those days."
One such ordinance established a city council Labor Relations Committee to deal with employee organizations. One section of the ordinance is titled "Union Participation" and reads;
The city recognizes the right of its employees to organize, join a union, and to be heard on matters affecting their employment through their duly authorized representatives. A union shall be recognized as the bargaining agent for the employees who are members of that union, subject to the following conditions:
1. There shall be no discrimination against any employee because of his connection or non-connection with a union.
2. Any union which negotiates with the Labor Relations Committee will use its influence to protect the property of the city and to improve the many municipal services to the public.
3. No request for a check-off shall be made.
4. Grievances for which redress is sought from the Labor Relations Committee shall be reduced to writing and delivered to the Mayor.
Conzelman contends that the police association has bargained "success fully" with the committee, made up of three aldermen, in much the same way as firemen have, even though the police group was strictly local and the firemen have been members of the International Association of Firefighters for "as long as anyone can remember. " In 1969, the year before the strike, there had been some talk among the men of joining the police union but the talk ended when Waukegan offered substantial salary increases, which were accepted.
I See Chapter V, A Lake County Parallel
Captain William Kennedy was heading the police association's bargaining in 1970 but negotiations weren't going well. The aldermen and the police negotiators met in June and asked for a salary increase and seven other items, including an increase in the clothing allowance, and the right to live out of the city.
"The aldermen just said no, " Lt. Fletcher said. "They said there isn't any money this year. You're getting nothing. They wouldn't even discuss it. That's when we began to think we needed help and began thinking about the CCPA (Cook County Police Association. ) It's a strictly professional outfit, by police, for police. It's all business. We didn't think we'd get any help from the Illinois Police Association, which is strictly social. "
After the negotiations stalemate early in June, the police launched a slowdown in ticket-writing for traffic enforcement, as a method to put pressure on the city. Usually about 1200 tickets a month are issued; the level dropped to 50. The move irked Sabonjian and was one of the issues he talked to the police about at the time they were protesting to him about the police chief.
"They had just quit writing tickets, " Sabonjian said. "They said they should be spending more time solving crimes, instead of placing so much emphasis on traffic enforcement. I told them that wasn't for them to decide. There were -13 fatalities here in a year; that's reason enough to think traffic enforcement is important. I told them to go back to writing tickets, not to play games with the security of this city. "
Conzelman, the city attorney, has suggested since that the police might have been more successful in their demands had they stuck to the slowdown instead of turning to the blue flu. "The slowdown was a highly successful tactic, " lie said. "Or they could have stuck with that and picketed during off-hours. Four or five years ago the firemen picketed in off-duty time, then put on their uniforms and went to work. They were very successful. They won. The community was with them. " At no point, he contends, was the community with the police after they left their jobs. "People generally feel that policemen and firemen shouldn't strike and it's hard to get that feeling to change. The public was very unclear about what was going on here. There was real chaos for a while and you surely don't get public support that way. It was incredible mass psychology. "
But the unhappy police did not see that the slowdown was accomplishing anything. Despite repeated meetings with the mayor, the attorney and other officials, they thought they were getting nowhere, in their complaints against the chief, in their negotiations, even in getting a grievance system that would work.
Dick Maier the young detective that the chief called "Meathead, " explained one of the grievances, "We were supposed to have seven paid holidays a year but instead of getting them at the time of the holidays, the chief would just tack one week onto our two-week vacations. But that meant that we were only getting five days off instead of seven holidays. We were short two days, but we couldn't make him understand that. "
Maier proposed at one police association meeting a new five-step grievance procedure that would lead to action.
"The. next day, " he said, "the chief came down to the detective bureau and said, 'if you have any grievance, you can quit. I "
With all the stalemates, the leaders of the police association, including Capt. Kennedy, its head, decided to turn to the CCPA. They were ready to strike, and they had heard about John J. Flood and his toughness.
Lt. Fletcher called Flood at 2 a. m. one morning early in July. Flood and Art Loevy, the union attorney, went to Waukegan the next day to meet with about a dozen of the police leaders there, to explain the union and the way it operates, and to bring a stack of authorization cards for the men to sign. A signature means that the man has joined the association and authorizes it to represent him in collective bargaining.
One of the things they had to do, too, both Flood and Loevy recalled, was to cool the situation a bit and see what could be accomplished without a strike.
"The issues were not clearly formulated, " Loevy, said. "The men just knew they were being cheated. We said we couldn't help them with setting up grievance procedures unless they cooled down. "
The first step, the CCPA men explained, would be for Loevy to call Mayor Sabonjian and ask for a meeting to explain the purposes of the union. The next step would be for the Waukegan leaders to proceed to get signatures on the authorization cards.
Loevy called Sabonjian the next day; it was the first of a series of calls.
"I asked for a meeting to discuss representation, " Loevy went on. "He was very friendly to me, but he was very demeaning to his police. He called them all miserable so-and-sos.... he uses very strong language. He said to me, 'Well, I suppose I'll have to deal with you, but those blankety-blanks.... After all I've dune for them. ' He viewed it as a personal affront. We did set a meeting date, But the meeting was never held. "
Sabonjian turned for advice to Murray Conzelman, who was vacationing with his family at Georgian Bay, Conzelman, an important figure in the Waukegan business and political community, conducts an extensive private law
practice in addition to his work as the city's chief legal officer. - But, despite his active role in city politics, he says he prefers a quiet, contemplative kind of existence. He lives in a rural area outside Waukegan and treasures his Georgian Bay summer home;-he speaks ruefully of the installation of a telephone there. Conzelman said he was on the beach reading (a favored occupation for him) when the telephone call came. The mayor reported the conversation with Loevy.
"I asked the mayor, " Conzelman said, " 'Are you going to recognize the CCPA? I I told him he had to decide that before he met, because meeting would mean that he is recognizing it. "
The mayor called Loevy back and said, Loevy recalls, that "on the
advice of his attorney, he could not hold a meeting with me. If we met, it would amount to recognition, which he refused. I asked him to reserve judgment, that we would just be talking about the idea. I tried to soft-pedal. our differences. He seemed amenable, but then Conzelman again advised him not to meet with us. There was one last phone call in which he said he absolutely would not meet with us. I told him I thought the men would take job action. It's odd, bat never even mentioned wages. I never lost my temper in these calls and he was always rather polite to me, even when he was being hard on the men. Only later did he claim that I had been rude on the telephone. "
(At the time the blue flu started, Sabonjian stated publicly that Loevy had tried to blackmail him and he told Loevy, "If' you're looking for a fight, you're knocking on the right door. " In an interview later, Sabonjian said Loevy had been abusive and threatened Sabonjian, "From now on, we're going to get you, destroy you politically. Sabonjian is the issue now. We'll blacken your name from one end of the state to the other. " The two men simply do not agree about the nature of their private telephone conversations.
Meanwhile, Waukegan police leaders were meeting almost nightly, said Fletcher, the Waukegan police lieutenant who increasingly played a leadership role. They called a mass meeting for the policemen for July 7, in the American Legion hall. It was at that meeting that most of the authorization cards were signed, although a few were signed the day before and the day after. Fletcher said 70 men signed up to have the CCPA represent them, including some who never did go out on strike and some who returned to work before the strike was over. Fletcher was elected president of the Waukegan chapter at the July 7 meeting.
Fletcher, 43 years old, is 'a frank and candid man who gradually moved into the leadership role out of conviction rather than out of political ambition. Held been a Waukegan policeman for 16 years, working his way up to important police responsibilities. "I always loved being a policeman, " he said quietly, looking back on the Waukegan turmoil after a year. "I used to be a real hard-nosed, conservative cop. I'm much more liberal now than I used to be. " He is quick to admit that nothing in his background had prepared him for leading a bitter strike. "We were
amateurs, " he repeated several times. "We did what the experts told us, what had worked in other cities. " It is likely that he did not particularly relish his new adversary relationship with Sabonjian.
Angered by the July 7 meeting and the new link with the CCPA, Mayor Sabonjian called his entire police force to a session in the council chambers on Thursday, July 9. He said the city would no longer favor the police and he threatened "a little austerity" in the running of the department, mentioning the possibility of cutting out all overtime. He complained about their lack of gratitude. A Waukegan newspaper reporter was there and wrote about the tirade, under the headline, "Sabonjian 'Chews Out' Cops. "
"Maybe I assumed too much from our friendship, our camaraderie, lie told the officers. "You used to be my boys, but from now on its business as business. "
Lt. Fletcher commented after the "chewing out:" "We were ordered to that meeting today. We were ~_ complete captive audience. He said his things. I said 'Yes, sir' three times. These are the types of things we are trying to get away from. We don't want to be a captive audience. We want something to say in what goes on in the department. " The men had joined the CCPA, he said, "so we can negotiate. We have never been able to negotiate in a proper manner.
There were more meetings, too, with the mayor and sometimes other city officials. But there was no agreement. Conzelman recalled that he thought one of those sessions had been successful, and he was surprised to find that the process hadn't worked.
"On the Monday before the sick-in (Monday, July 20), we had a meeting, the mayor, the clerk and I, with representatives of the police association. The problem with some of these meetings was that we never really knew what the issues were; every time we met, the issues were different. This time they wanted the mayor to fire the chief. We tried to explain that the mayor couldn't fire the chief just because the men wanted it, that you don't have a referendum in the department on who should be chief - or who shouldn't be chief. We convinced them that the mayor wasn't going to fire the chief.
"Then they presented a list of demands that I had never seen before. I guess they had presented them to the labor relations committee of the city council and the committee had turned them all down. I looked down the list and I frankly don't know why the committee didn't grant some of the demands. There were things there that would have been possible without too great expense. One, for example, was to increase the uniform allowance from $200 to $300 a year. It's surely true that a man can't keep himself clothed for $200 a year, and, with a 78-man force, that would only have been $7, 800. 1 thought we should agree to
that. Another demand was to waive the residency requirement; that wouldn't have cost us anything. But the first demand was for a huge salary increase, to a starting rate of $12, 000. Probably the committee saw that and just stopped looking at the rest of the list.
"We said okay on the uniform allowance and residency requirement, and offered a $1, 000 increase, starting on November 1. We had authority, as of May 1. 1971, to increase the police levy and we thought we could somehow come up with money for the increase for the six months starting November 1, 1970. 1 proposed a grievance procedure: the police should select a grievance committee and bring grievances to the chief. If the chief did nothing, then they should go to the Labor Relations Committee, then to the mayor.
"I thought the offer fell on willing ears. I believed it was all settled.
"I don't think the subject of the CCPA even came up at that meeting. I had never heard about it from the men, and didn't think it was a very serious thing There were six to eight of the men at the meeting including Quilty, Fletcher and Moore. Fletcher said he'd been elected bargaining representative.
"Well, that meeting was on Monday before the council meeting. When the men left, they said they would talk to the men in the department and let the mayor know by Wednesday. But they didn't wait that long. They came in before the end of the council meeting the same night and they talked to the mayor afterwards. They reported no deal. Apparently they never checked with the men, just the union, and the union said they had to get recognition. "
From that point on, the question of recognition became the key issue in Waukegan, as it had in many of the other CCPA disputes the year before. Conzelman had been right about the issues changing. They changed as the situation changed. The first issue was wages and the second issue was the chief and his lie tests. After that, the men joined Flood's tough union and the issue became recognition. A week later, after the start of the blue flu, the mayor was to announce that lie would "negotiate any question.... with the exception of recognition of the Cook County Police Association. "
But none of the parties knew then just how far the dispute would be carried, or that each side would become increasingly locked into a position from which it felt no change was possible. The police certainly felt that tactics which had proved effective in other Chicago-area communities would work in Waukegan, too. They reckoned without Mayor Sabonjian, who has said, "If they had the flu, I had the prescription for it. I would charge them with insubordination for being absent without leave. "
THE WAUKEGAN POLICE STRIKE
The Legal Background of the Police Dispute
At the time of the Waukegan police strike, in the summer of 1970, there was no legislation in Illinois regarding the right of public employees to organize for collective bargaining, the necessity of a governmental unit to recognize and bargain with an agent chosen by the employees, or the right of public employees to strike in support of their aims. These rights were neither given nor prohibited. The law was simply silent, even though public employee unionization was growing rapidly, modeled on patterns long established in the private sector but not necessarily transferable to the public sector.
One basic legal question was: Do public employees have the right to organize, bargain and strike unless these rights are specifically denied them by legislation or do they not have these rights until they are specifically granted them by legislation? There was no answer upon which everyone agreed.
In the absence of legislative determination of the answers, these bargaining relationships were determined by case law, by court decisions on whatever of these issues have been taken to court. But case law didn't answer all of the questions either. Some court precedents had been established, but the body of case law was only then developing, And even the case law that existed was not final; some of it was still being appealed through the state's court structure. Thus neither system of formulating law had provided solid answers to the legal issues that were to be posed in Waukegan.
But some Illinois cases, decided during the decade of the 19608, have at least some bearing on the Waukegan dispute. They will be briefly considered here.
Board of Education of Community Unit District No. 2 versus Doris Redding, et al. 32 111. 2d 567
The board of education involved is in the Greenville, Ill. , area, Thirteen employees of the school board's custodial staff joined Teamsters local 525 and, in August, 1964, sought a collective bargaining agreement with the board, The board refused to enter into any agreement at all. The employees did not report for work on September 2, 1964, and picketed the school buildings for eight days. Before the end of that time, on September 8, the board went to court to seek an injunction to prevent the continuation of the strike and of the picketing. It claimed it was being damaged by the strike activities: school attendance was low, affecting
the amount of state financial aid to the district; schools weren't being cleaned; a leaking roof could not be repaired because the roofers wouldn't cross the picket lines-, bus transportation was affected.
Schools were closed in the district on September 8, 9 and 10. In a court hearing on September 10, the custodial employees agreed to perform some essential services. Schools were reopened and the hearing continued to September 24. At that time, the board still sought a permanent injunction, claiming continuing damages because of the strike.
The trial court refused to enjoin the union's activity, saying that no irreparable injury had been shown and that picketing was peaceful. It stated that peaceful picketing is a constitutional right, The board of education appealed the decision to the Illinois Supreme Court. It claimed that the strike and picketing interfered with its constitutional duty to "provide a thorough and efficient system of free schools. " The issue to be decided by the court, then, was whether the employees could strike and whether they could picket to support their strike.
The Supreme Court of Illinois ruled, on May 20, 1965, that "there is no inherent right in municipal employees to strike against their government employer, whether federal, state, or a political subdivision thereof, and that a strike of municipal employees for any purpose is illegal... The underlying basis for the policy against strikes by public employees is the sound and demanding notion that governmental functions may not be impeded or obstructed, as well as the concept that the profit motive, inherent in the principle of free enterprise, is absent in the government function. "
The court gave this reasoning: Education is a state function, carried out by local agencies. Teachers are thus state agents, exercise a portion of the sovereign power, so have no right to strike. "Our own constitution impresses the General Assembly with the duty to provide a thorough and efficient system of free schools, and we believe it logically follows that those who, under the implementing statutes, become the agents to fulfill the will of the people in such respect are themselves charged with a duty to refrain from conduct which will render our schools less efficient and thorough. The drastic remedy of organizing strikes against employing school boards is in direct contravention of such duty. " There is no compelling difference between striking teachers and striking custodial employees. "The uncontroverted proof in the record here shows that the normal function of plaintiff's schools has been impeded and obstructed. " The trial court therefore erred in refusal to enjoin the strike and the picketing; it was therefore reversed.
In answer to the union's claims that picketing was an expression of free speech, protected by federal and state constitutions, the court said picketing is "more than free speech because (it is) designed to exert influence which produces action. Picketing may be subjected to restrictive regulations, without
abridging free speech, to protect the public interest and property rights and where picketing is for a purpose unlawful under state laws or policies. . .
This 1965 Supreme Court decision has not been reversed, so Illinois law, established in this decision, states that strikes by public employees are illegal and that picketing in support of such illegal strikes is also illegal.
Chicago Division of Illinois Education Association versus Board of Education
of Chicago and John M. Fewkes, et. al. , as officers of the Chicago Teachers
Union 76 Ill. Ap 2d 456
The teachers union in Chicago, as in other cities, went through a period of great growth during the 1960s and was contending for bargaining power with the education associations, which viewed themselves as professional associations and did not then seek collective bargaining on a formal basis. By the time of this case, 1965, the union in Chicago represented about 12, 000 of the 20, 000 teachers and was seeking a referendum election that would give it exclusive bargaining rights for all teachers in the system. The board of education in Chicago had agreed to the election which, if the union won, would then cancel out a "memorandum of agreement" the board had with the education association, at the termination date of that agreement. The association went to court to enjoin the board from conducting the election. It lost; the circuit court dismissed the complaint on Feb. 23, 1966, The association then appealed the decision to the Appellate Court, first district (Chicago). The legal question was whether the board had the power to recognize a union as bargaining agent and grant it exclusive representation.
The plaintiff, the education association, argued that public employees have no right to bargain collectively unless and until the legislature has conferred that right and defined the manner in which it can be exercised. As evidence of an Illinois policy against collective bargaining by public employees, the association pointed out that the "legislature has ten times refused general authorization for public collective bargaining but has, during the same period, authorized collective bargaining for two specified public agencies. It cited the Redding decision on the distinction between public and private sectors.
The board of education argued that specific legislation was unnecessary and that existing general legislation was more than sufficient to authorize exclusive collective bargaining agreements. The authority to engage in such bargaining and to conclude a contract could be implied from general legislation empowering the board to contract and to do all things "necessary or proper" for operation of the schools. It considered collective bargaining one of the proper functions. It further stated that "a review of the activity of state and federal legislation can be argued to demonstrate that legislation is needed to prevent collective bargaining by governmental agencies, not to authorize it. " In the absence of such prevention,
the existing legislation authorizes collective bargaining. 'The board said its position was in line with the Redding decision, which did not speak of the legality of collective bargaining by school employees, but held only that they could not strike.
The Chicago Teachers Union, the other defendant in the case, claimed government employees have a right to organize for collective bargaining under the first and fourteenth amendments to the United States Constitution. "Plaintiff says by entering public service employees thereby cede all their rights and have only those which the government gives." The exact opposite is true. Thus public employees in Illinois maintain their right to organize for the purpose of collective bargaining, at least until that right is legitimately limited. "There appears to be no disagreement over the fact defendant Board of Education has the power to employ 20, 000 teachers. The central issue of this case lies in disagreement over the means used to determine the contractual terms of those 20, 000 employees. It is submitted that the board is the beat judge of the most efficient method of arriving at those terms; this court is without authority to deny the board's exercise of discretion in choosing the method unless the choice is manifestly unreasonable.
The Appellate Court ruled that:
1. "We conclude that the Board of Education does not require legislative authority to enter into a collective bargaining agreement with a sole collective bargaining agent selected by its teachers, and we hold that such an agreement is not against public policy. "
2. The board has the power to direct certain provisions in connection with such collective bargaining, and an agreement "shall contain specific provisions whereby the employee organization shall agree not to strike, not to picket in any manner which would tend to disrupt the operation of any public school in the city of Chicago. "
The court order was signed November 9, 1966, and has not been appealed. Thus, at least in the first Appellate district of Illinois, a governmental unit has the power to recognize a bargaining agent chosen by its employees. Undecided was the question of whether a governmental unit must recognize such a union.
-Peoria County versus Harold L. Benedict et. al. Illinois Supreme Court,
Docket No. 42160,, September Term, 1970
Peoria County operates the BellWood Nursing Home and hires 104 non -supervisory employees to operate the home, In November, 1968, 88 of those employees were members of local 241 of American Federation of State, County and Municipal Employees.
In 1968, the superintendent of the home advised the union that he would recommend to the county board of commissioners (which provides funds for the home) that the employees be given a 10 per cent wage increase for 1969. But the commissioners offered only a 7 per cent increase, refusing in subsequent negotiations to make a larger offer. The union began to talk about a strike, to start November 30. On November 27, union officials were notified that the county would go into court on November 29 to seek an injunction against the strike. The union did not appear in court and an injunction was issued to prevent the union from any strike or work stoppage and from setting up picket lines on the property of the Bellwood Nursing Home. The union struck anyway and from November 30 to December 6, none of the 88 union members reported to work. They picketed on the grounds of the home and some infirm patients had to be transferred to other nursing homes.
The county sought court action to have the pickets held in contempt of court. On December 6, the court entered an interim order authorizing controlled picketing, specifying that the employees would perform minimum care, and continuing the case to January Z. On that date, the injunction was made permanent, the union -was fined $9, 400, Benedict was fined $1, 500 and sentenced to 60 days in jail, and 13 other employees were fined $50 each, to be suspended if they complied with the permanent injunction.
The union appealed directly to the state Supreme Court, arguing that the preliminary injunction "constituted a prior restraint on speech and imposed servitude in violation of the first, thirteenth, and fourteenth amendments to the Federal Constitution, and section 14 of Article 11 of the Illinois Constitution. "
The court avoided ruling on the "thorny problem of constitutionality" but said the case could properly be settled on other grounds. It referred, instead, to the anti-injunction act passed by the Illinois legislature in 1967, which provides: "No restraining order or injunction shall be granted by any court of this state ... in any case involving or growing out of a dispute concerning terms or conditions of employment. . . " It noted that a previous decision had held that the anti- injunction. law was applicable to employees of a non-profit hospital and said it should apply in this case too. Therefore, the court ruled that the preliminary injunction was erroneously issued. It ruled further, however, that the injunction, while it was in force, could not be disregarded and that, if the parties felt it was wrongly issued, they should have gone into court to seek judicial determination rather than choose to disregard it. The fines and jail sentence were upheld.
The decision was announced December 4, 1970, after the Waukegan strike, and it does not specifically apply to the Waukegan situation, in which no injunction was sought. But labor lawyers in Illinois or some of them at least - are wondering whether this decision in some way alters the Redding decision, which said , aid public employees have no right to strike. If a governmental unit no longer has (lie power to enjoin a strike by public employees, does the public employee strike thus have greater legality than in the past? The decision inevitably will lead to more court arguments
Cook County Police Association versus City of Harvey (Case No.- 55670 in
Appellate Court of Illinois, First Judicial District
In November, 1969, Sergeant Flood's very young CCPA sent a telegram to Mayor James Haines of Harvey, a Chicago suburb: "Please be advised that the CCPA presently represents over 90 per cent of the uniformed patrolmen in Harvey. We request recognition of our organization as a duly authorized, collective bargaining representative of our members. "
Harvey employs 44 policemen, 29 of them uniformed patrolmen.
The mayor took the request to the city council, which refused to deal with the association. The minutes say, "Inasmuch as this Association does not represent 100 per cent of the Harvey policemen that it not be recognized. "
The policemen then began a ''job action" to gain recognition. They began calling in sick on November 28 and 29. Twenty-one of them stayed away from their jobs. Police Chief Leroy Knapp sent notices to all of them, then fired- them December 10 because they had abandoned their jobs, which is cause for firing under the city's civil service regulations. He set December, 16 for new civil service examinations to fill the police jobs.
The CCPA filed a complaint in circuit court on December 11, seeking a court order for recognition of the union and bargaining in good faith. The city, in its answer, replied that there is no legal authority to require the city to recognize the union and that refusal to do so is not illegal or wrongful. The city also said there was no cause for action because the CCPA did not represent any patrolmen in Harvey, since they had all been discharged.
On December 18, the court ordered that the 21 patrolmen be reinstated. It prohibited the union from seeking recognition for six months and the city from recognizing any other bargaining agent for six months. The judge was thus provid ing a kind of cooling off period and leaving the door open for continuing efforts later at collective bargaining.
In September, 1970, the CCPA sent a new petition to the city, asking recognition and listing its 33 members. The city council took no action, so the CCPA went back to court. On October 29, 1970, the court issued a permanent order enjoining the city from refusing to recognize CCPA as the duly authorized bargaining agent, and directing both parties to bargain in good faith. Shortly afterwards, the city of Harvey appealed the order and it is still before the Appellate Court, as this report is being prepared.
Taken together, the decisions in the cases say, at least tentatively, that public employees in Illinois do have a right to organize for collective bargaining purposes and to request recognition and that a governmental unit has the power
Sep-17-99 06:53A Combined Counties Police 1 847 202 4809 P-07
to recognize such a union. But there is no requirement - yet - that a governmental unit recognize such a union. With or without recognition, the union has no right to strike but the government employer has no right to seek court action to prevent a strike.
It is in this rather confusing context that the Cook County Police Association came into being and began to push against the limits of the court decisions, even going to court itself (in the Harvey case) to alter the limits. It was plagued with such fundamental organizational questions as:
- What good is a union if no one will bargain with it?
-What good is the right to bargain if you have no weapon, such as the strike - an entirely acceptable, legitimate and effective weapon in the private sector - to lend force to your demands ?
-In the absence of law, how can rights basic to employees throughout the state be denied to employees of public agencies?
The denial of the right to strike, combined with the need for some method of bringing pressure on public employers, gave birth to the fiction of the blue flu, a way of withholding services for a period of time without actually calling the "job action" a "strike. " In some ways it is comparable to private sector union practices such as slow-clowns or informal work restrictions. But the blue flu is a fiction with some built-in defects. Under most civil service regulations, if an employee is sick, he must prove he is sick. If he is not sick, and still stays away from work, he is violating civil service rules and is liable to dismissal.
But, despite the built-in defects, the blue flu fiction worked effectively for the Cook County Police Association in a number of instances. When persuasion failed in 1969, the first full year of CCPA operation, the CCPA chapters in five Chicago suburbs conducted some form of job action, or blue flu, or strike. They won some of their demands, even though they did not always gain formal recognition or achieve a formal written contract. The CCPA was trying techniques, like picketing, which had never been tried by police before, and it was finding that some of them worked. In that first year, the job actions came one at a time. Each local chapter elected its own officers to bargain, then had the help of Loevy or Flood in actual negotiations; they brought with them ideas about techniques that had been working in other communities and Loevy brought bargaining table experience. (It is an interesting sidelight that most of these negotiations were conducted on weekends, early in the morning or in the evening. Loevy was a volunteer negotiator for CCPA and still put in his regular office hours in his job as counsel for the Amalgamated Clothing Workers. )
But by the summer of 1970, when the situation was heating up in Waukegan, some of the CCPA local chapters were planning a concerted job action, and thinking about July 24.
In Wheeling, where Sergeant Flood had started his police career a decade before, the issue was recognition. The village attorney there believed strongly that Illinois law provided no possible authority for union recognition by a governmental unit, In Skokie, where the chapter had gained a measure of recognition the year before, the issue was a salary increase. Police in Harwood Heights and the sheriff's deputies in Lake County (Waukegan) were thinking of a Job action, too. And then there was Waukegan. Perhaps joining the union early in July when there was so much talk of job actions (and job actions had won the year before) added a certain element of strike contagion to an already volatile situation.
On July 24, when Waukegan police started calling in sick, police switchboards in Wheeling and Skokie were lighting up with sick calls, too. Lake County deputies went out a few days later. Some form of agreement was reached in Wheeling and Skokie after a while. But the Lake County deputies didn't fare very well. And there was never agreement of any kind in Waukegan.
THE WAUKEGAN POLICE STRIKE
A Full-Fledged Strike Emerges
During that first hectic weekend of the blue flu in Waukegan, when most of the police were not reporting to work and when the city was being patrolled by sheriff's deputies, there was a flurry of informal meetings aimed at getting the men back to work. Some of the aldermen volunteered to talk to policemen they'd known for years, since school days. None of the informal contacts paid off. Mayor Sabonjian asked for time on the local radio station and pleaded with the men to return. They didn't. Anger and tension mounted.
The mayor reported that on Sunday night he received a threatening phone call. The anonymous caller told him, he said, that political corruption, including 1, 500 traffic ticket fixes, would be revealed if he didn't cooperate. The phone call infuriated Sabonjian. He told the press about it the next morning; "I've been in office for 13 years, " he fumed. "And if these people think they're dealing with a country boy, they'll find that I won't back off. "
That phone call, which no one admits making, seems, in retrospect, to have been a crucial turning point in the Waukegan conflict. It was the point at which the mayor became personally involved, not as an official but as an individual, a prideful and scrappy man, who had been personally challenged. He apparently felt, thereafter, that to deal with the Cook County Police Association would be an admission that the anonymous charges were correct.
Sabonjian's memory of the phone call continued to infuriate him long after the strike was a dead issue. He talked about it, getting angrier as he spoke, almost a year later in an interview in his office, a memento-crammed room in which his desk faces a large, brightly -colored, brightly-lit, smiling picture of himself.
"Somebody called me one night and threatened to go to the FBI, to the Illinois Bureau of Investigation, to other agencies, " he recalled in the interview. "They said, 'We have enough to send you to prison, so you'd better back off. I I said, 'Fuck you. Go to any damn agency you want. I stand on my record. In every election, there've been accusations, attempts at shakedowns. I stand on my record. I'm the first four-term mayor of this city. No one can call me a crook. I "
On Monday morning, July 27, when Sabonjian fumed to the press about the phone call, he said he felt the men were being misled by John J. Flood.
He said he had offered the police $1, 000 a year raises above the $9, 400 top base salary for patrolmen. He said he'd made other concessions, too, and that he would "negotiate any question with the exception of recognition of the Cook County Police Association.
And that morning he issued an ultimatum to the police: Return to work by 10 a. m. the following morning or face immediate suspension.
It was on that same day, Monday, after the Waukegan city council met in a hectic session in the evening, that Sabonjian and Flood met face to face for their only encounter. Their versions of what happened in the private meeting do not really agree, except in the fact that the meeting took place.
The council session was packed, with perhaps 350 people jammed into a room that normally holds about 150. Besides the local police, Flood was there with a busload of policemen from other communities. He said many of them were from Skokie, one of the suburban Chicago communities hit by the same blue flu epidemic that had engulfed Waukegan. The city attorney believes many police had come, too, from Berwyn and Cicero, tough westside Chicago suburbs with reputations for considerable lawlessness. He said the police had guns. During the meeting, the city attorney pointed out Flood to the mayor and the mayor allowed Flood to speak. He urged that the city recognize the union and was loudly cheered by a noisy audience. During the meeting, too, a local man, angered over continuing sewer problems in Waukegan, stood up and yelled at the mayor that he was a "son of a bitch. " The city attorney recalls thinking conditions were ripe for riot.
The attorney says Flood approached the mayor to ask for a private meeting. Flood says lie was summoned into an anteroom by the mayor.
"We got together and really talked, " Flood said in an interview, recalling the session. "It was man-to-man. I gave him a way out. I've learned you have to do that; you can't just have a showdown. I said, 'We'll back off. We'll leave for six months. We just want recognition and checkoff. You can do that through a judge. ' (What Flood was suggesting Was the solution that had worked in Harvey a few months before. A circuit judge, involved in the dispute when the police went to court. to appeal their firings, reversed the firings and ordered a six-months cooling off period. It didn't work in Waukegan. ) The mayor said he'd think about it and he'd call me in the morning. He called about 6 a. m. and said, 'No deal, my aldermen wouldn't go for that. I Well, that's ridiculous. The aldermen would do what he wanted. It. was his decision. "
In Sabonjian's recollection of the meeting, Flood was much less reasonable. He says, "Flood told me, 'You're our toughest nut to crack. If we can crack you, every other mayor will fall in line. Can't we make a deal?' I told him
if I made a deal with him - the way he was behaving my. council would spit in my face. "
It is quite possible that both men's recollections of the meeting are correct, that both themes were explored, and that the failure to reach any kind of agreement explains why each feels that he was in some way wronged. At any rate, that single meeting between the two most volatile figures in the dispute was one of the few times when a settlement might have been possible. There was none. Perhaps the anonymous phone call of the night before was the major reason.
Sabonjian had already made his ultimatum: return to work by 10 a. m. Tuesday or face suspension. He repeated it the following morning, asking, about 6 a. m. , for air time on the local station and being granted a time slot at 7:40. As he recalled it later, this is about what he said:
"This is your mayor. Search your souls and your consciences. This city has been good to you and you have obligations to it. Think of your families. You're being led down the primrose path by this John J. Flood. Come back by 10 q.- m. today, and there'll be amnesty, no reduction in rank. All of you will be restored to your jobs. This is my last offer. Don't make me do what I'm afraid I'll have to do.
He had decided, he recalled, what he would have to do. He said held spent four sleepless nights worrying about it, worrying because "I didn't want to hurt these men. I don't want to sound corny, but I prayed for guidance. There was just no way to compromise with these tactics. "
When 10 a.m. came, none of the missing police had returned. "That's the end of amnesty, " Sabonjian says he told his city hall colleagues. "We'll file formal charges for dismissal.
Dismissal Procedure Started
Police Chief John Della Valle prepared a formal notice to send to each of the .95 officers still away from their posts: three lieutenants, five sergeants, the rest patrolmen. It read:
You and each of you are hereby suspended without pay for thirty (30) days from the Police Department of the City of Waukegan, Illinois, for failure to report to duty in violation of Section 12; Rule XIII of the Civil Service Commission Rules.
On the same day, Tuesday, July 28 the chief sent his list of charges against each man to the Civil Service Commission, launching the procedure for dismissal. The secretary of the Commission notified each officer that a hearing would be held on the charges on August 4.
Under civil service regulations, the 30-day suspension is the most serious punishment the police chief can mete out. Any more severe punishment, such as dismissal, must be acted upon by the Civil Service Commission. The Commission consists of three members, appointed by the mayor. The mayor said publicly that he would recommend to the Commission that all of the men be fired. He added, at least once, that he would see to it they were fired, no matter what the Commission did. (Later, when the hearing was held, the Commission chairman would not allow that statement to be entered in the record, despite repeated attempts by attorneys for the policemen. )
Meanwhile, John J. Flood told reporters there was a "strong possibility" that the CCPA would take legal action against Waukegan officials for their refusal to bargain with the police union. "Waukegan has an ordinance that requires the city to recognize the right of city employees to be represented by a union or organization of their choice as a bargaining agent. The mayor has violated the law by denying the police representation by the association. "
But the CCPA did not immediately launch the legal action, perhaps because it thought it might not really be necessary, and perhaps because of the utter confusion of the week. Strikes were proceeding in Wheeling and Skokie, too, and meetings there - with Flood and Loevy trying to get to as many as possible were just as tense as they were in Waukegan. In each, the issue was a bit different, but just as knotty; these issues required attention, too, from a hard-pressed union leadership.
Two other events that week helped heat up the Waukegan climate. Most of the deputies of Lake County Sheriff Harold W. Scheskie joined the police strike. (The sheriff said it was just as well; he wanted to abolish their jobs anyway and have state police assume their duties so the county could save money. He fired those who were on probation and started action, through the county's civil service apparatus, to fire the rest. ) Then, on Wednesday night, July 29, the Waukegan assistant police chief, George Pasenelli, the man who had talked of the "hectic night" when the blue flu started, was shot in the left leg while he walked his dog behind his home in the rain. Sabonjian promptly blamed the CCPA. Flood said his organization would post a $1, 000 reward for information leading to arrest of the assailant. There have been some broad hints that Pasenelli shot himself to remove himself from a personnel conflict he found intolerable. But the best guess is that a local hoodlum, taking advantage of a chaotic situation, chose that moment to pay off a personal grudge. The assailant has never been identified, whoever he was, but he surely didn't help Waukegan tempers.
The following day, Thursday, July 30, almost a week after the start of the blue flu, found an angry swarm of people in downtown Waukegan. Police were demonstrating on the streets around the city hall and the elegant new county building across the street. They were frustrated over events that seemed to allow them no course of action and angry over the threatened dismissals; many were accompanied by their wives, who tended to be even angrier than the men.
"Blow your horns if you're with us, " they urged motorists, sometimes blocking their way in the streets until the horns were blown. Mayor Sabonjian claims policemen's cars were parked in no parking zones, or driven the wrong way on one-way streets. The confusion in the streets brought many curiosity seekers downtown, among them members. of juvenile gangs, traditional police enemies who tended to side with the police in this dispute and came to help picket. Fletcher, the lieutenant who headed the local CCPA unit, recalled that one gang carried signs reading, "With guys like us on the streets, you need your police back. "
Assessing the situation afterward, Murray Conzelman, the city attorney, guessed that the street scenes did the police no good, that if public opinion had ever been with the police - as it might have been in a labor town - it was lost at this point.
"The average Waukegan citizen - really Mrs. Citizen - goes downtown to shop, is harassed with all that noise, blocked in the streets, sees all these local weirdoes, " lie said. "Well, it was real chaos. You surely don't get public support that way. It was incredible mass psychology. "
But it was essentially unplanned, the result of a strike that wasn't quite a strike. The police were new to organized union activity and, in day to day dealings, had no skilled leadership. Because of the blue flu fiction, there were no organized picket line duties, no regular strike bulletins to keep up morale, no real way to direct the activities of frustrated, unhappy people.
"We would have been better off if we'd just called it a strike from the beginning, " Lt. Fletcher guessed later. "Or, better yet, if we'd stayed on the job longer and tried to work from within.
An Attempt at Conciliation
It was in this chaotic setting, on Thursday, July 30, that Circuit Judge LaVerne Dixon, chief judge of the Lake County Circuit Court, called the mayor, city officials, and representatives of the CCPA into his chambers for a conciliation session. To members of the police union, his was a hopeful move. In other communities, when negotiations were rough - or nonexistent - individuals or groups had often come forward, impartial third parties who could help mediate differences and hold the community together, in the public interest. In Harvey, the strong man mediator had been a circuit judge. So the police leaders were hopeful about Judge Dixon.
"It was the first time we had been able to talk about our organization, said Arthur Loevy, the Amalgamated Clothing Workers lawyer who was the only one in negotiations who had really had this kind of experience before. "It was our only chance to talk about the things we wanted- the right to raise grievances and have them processed, the right to negotiate economics - and we were willing to
include a no-strike provision - and the right to checkoff of dues., We did get a chance to talk about these things. Outside the men were picketing city hall and there was a lot of horn blowing. Sabonjian was angry about it. We told the judge we'd stop all demonstrations, that we only wanted another date for a meeting and no publicity. The meeting was set. . I thought we were close to working out an agreement. It
Judge Dixon was hopeful, too. After his two and a half hour session, lie told reporters, "I feel we made some progress. Sabonjian and the CCPA are going to talk to each other and report back to me next Thursday. We're trying to work things out without agitating any more on either side. "
But the next week's meeting was never held; Loevy says Sabonjian called the judge and said the deal was off. The two sides never got together again.
Sabonjian held a press conference when he left Judge Dixon's chambers. Columnist Tom Fitzpatrick of the Chicago SunTimes was there and reported that "the Rock" seemed to be "loving all the controversy. "
"Here we are, " Sabonjian told the press, "and we have a meeting set up which is supposed to be conciliatory. It's supposed to be just like the Viet Gong at the round table in Paris. And what does the other side do? They break faith. They pull out their men from the county sheriff's office and they have our men, who are supposed to be so ill with the blue flu, march on our police station to curse, insult and threaten our police officers who are still working. "
Fitzpatrick ended his column with, "Over in the American Legion Hall, where the striking policemen meet every day, there is a cardboard placard. It reads: 'Crush the Rock into a Pebble. ' "
Flood said later, "Sabonjian violated every part of our agreement with Judge Dixon. We never got back together. Judge Dixon did really try to bring something together, but he couldn't really use his influence. He's so bound to Sabonjian. We were hoping he would take the initiative. We wanted someone to lead to a solution. "
The next day the Waukegan city council met in executive session for two hours. Afterwards, Sabonjian refused comment, except to say that the city would make no new offers, beyond the week-old offer of a $1, 000 increase without recognition of the Cook County Police Association as bargaining agent.
There was some further urging that help be sought in reaching a solution. The Illinois division of the American Civil Liberties Union asked Sabonjian to recognize the men's right to organize and bargain collectively. "Effective grievance machinery with arbitration as a terminal step" would be an alternative to the police strike, the ACLU director said. City Attorney Conzelman, the mayor's closest advisor, also thought the mayor should deal with the men, perhaps through
arbitration, saying that otherwise the city would be harmed by the bitter cleavage. Later a group of Waukegan attorneys offered to help mediate. They were all refused. Sabonjian had issued his ultimatum; he was going to stick with it. And he was convinced that the people of Waukegan were with him.
The chances at settlement were slipping away and the date for the Civil Service Commission hearing was approaching. The face-to-face meeting between the mayor and Flood had produced nothing. The session with Judge Dixon had led nowhere. The efforts at conciliation were refused.
At this point, the police began to escalate their pressure. A week after the start of the blue flu, they turned their job action into a full-fledged strike, picketing city hall on an organized basis. The picketing was to go on for two full months, until long after they had been fired and their young successors hired and launched on a training program.
There was one more event that might have helped bring about a settlement. A Waukegan attorney named Louis Brydges filed suit in circuit court, seeking a court order to force the city to follow its own labor relations ordinance and recognize the CCPA as bargaining agent. Brydges contended in his complaint that lie was being deprived of police protection because of the dispute and the city's refusal to deal with the representatives chosen by the police. But the suit was dismissed by Circuit Judge Harry Strouse, who ruled that Brydges did not have a cause of action, that he was not being deprived of police protection because the sheriff's deputies and later the state police were patrolling Waukegan. The judge said he would reconsider the suit if it were filed on the behalf of a third party, such as the CCPA, instead of by an individual citizen. As events turned out, perhaps the union should have joined the suit at that moment. It did seek to do so later, but the ruling went against it then.
On Monday, August 3, there was still considerable confusion in Waukegan's downtown streets. Police, accompanied by wives and children, were picketing city hall. Sheriff's deputies were picketing the county building across Utica Street. Motorists were still being urged to honk their horns in support of the work stoppage. The city council meeting, scheduled for the evening, was called off. Sabonjian posted a notice on the door of city hall: "For the safety of our people, the meeting has been cancelled. " Flood commented, "We regret that Mayor Sabonjian has permitted such a volatile situation to develop. He is afraid to come out and speak to the people. "
Feelings run high and bitter words are spoken in most strikes but the tension and bitterness was greater in Waukegan than usual, perhaps because the strike experience there was new to most of the participants. Sabonjian claims that strikers followed his car wherever his family went, "hollering 'crook' and threatening us. " Flood says Sabonjian was behind a wave of anonymous letters in the community, stated Flood was a "New York Communist sent out here to infiltrate the police department. " Lt. Fletcher, the local strike leader, whose pleasant house in the
northwest part of town served as unofficial strike headquarters, 'reported roaring traffic all night long on the quiet road outside and reported, too, the firing of shots there.
Civil Service Commission Acts
The Waukegan Civil Service Commission met the morning of August 4 to consider the dismissal of the strikers. Police and their supporters disrupted the meeting, calling it a "Kangaroo Court" and charging that they wouldn't got fair treatment because the Commission, composed of Sabonjian friends, was biased in favor of the mayor. Angry, Flood and the police walked out. The chairman continued the hearing until the following Monday, after Loevy argued that none of the 55 men had received proper notice of the hearing and needed time to retain lawyers .
On Monday, August 10, when the hearing was resumed, attorneys for the policemen again raised a series of protests. They contended that the city had not complied with state regulations in serving notice of the hearing. They contended that the chairman of the Commission should disqualify himself because he was an officer of a company that does business with the city and thus could not be impartial. They contended that the Commission did not really have jurisdiction in the case because it was a labor dispute. "Charges have been filed in this matter, " the lawyers contended, "not because of the alleged misconduct of certain city employees... but rather because these employees desire to negotiate with their employer, the City of Waukegan, with respect to matters affecting their employment pursuant to the provisions of subsection c of Section 4. 34 of the General Ordinances of the City of Waukegan. The Constitutional rights of the people to petition government for the redress of grievances is provided in the Illinois Constitution, Article II, Section 17 and in the United States Constitution, in the First Amendment and the Fourteenth Amendment. The state and federal constitutions provide support for the argument and the right of public employees to discuss the terms and conditions of their employment with their employer. This right of consultation serves the public interest by permitting informed government action. "
On each point, the lawyers' motions were denied. The chairman ruled that proper notice had been shown and he refused to disqualify himself as chairman. He ruled that the Commission did have jurisdiction over the charges brought against each of the policemen, all of which stemmed from failure to report for duty.
As the hearing proceeded, only the case against the policemen was presented. The 54 policemen, on the advice of the lawyers, chose not to testify.
"As you gentlemen on the Commission saw last week, as I am sure that you sensed this morning, " Attorney Loevy explained, "the patrolmen, the sergeants, the lieutenants of the police department of the City of Waukegan do not have complete
confidence in this Commission. Certainly not because of anything that you gentlemen as individuals represent, but at least, in part, because of the statements that have been made in the press, arid then given the opportunity to explore, I would submit, have been made individually to the policemen that this Commission was not really one that could act independently. "
The Commission made public its decision two and a half weeks later, on August 28. It reviewed the evidence presented and reaffirmed its jurisdiction, answering the labor dispute argument this way;
"This argument is irrelevant, at best, and is not supported by evidence in the record, If the conduct of the respondents in failing to report for duty was in fact motivated by some feeling that the withholding of services would improve their position in negotiating with the city, then, such conduct is not only inconsistent with any suggestion of illness on their part but is also in violation of the public policy of the state. We therefore cannot accept the . . . argument in defense of the charges filed herein. "
The Commission ended its order with the statement:
"The Commission is well aware of the fact that many of the police officers named in these charges have served the City of Waukegan for many years. We are saddened by the conduct of these men which necessitated the charges and regret we are compelled to announce that the decision of this Commission is that 'cause' for removal or discharge has been established. The Commission orders the City of Waukegan and/or Chief of Police John Della Valle to remove or discharge each and every individual so named. "
"This may be the end of the Cook County Police Association, " commented Mayor Sabonjian. "I hope other mayors have as much guts.
Charges of Corruption
The announcement of the mass firings came in the midst of a political maelstrom. On August 10, the day of the Civil Service Commission hearing, the striking policemen had let loose the threatened barrage of charges that Waukegan politicians were corrupt. Nine policemen talked to reporters of gambling and prostitution protection and massive ticket fixing. They turned over to reporters more than 1, 500 traffic citations issued since 1963 which they say were ordered voided by the mayor, judges, aldermen, and the state's attorney's office. They claimed excessive ticket writing had been encouraged to allow political fixing of the tickets. They took reporters on a tour to point out gambling and prostitution establishments which they said were protected.
Sabonjian, absolutely infuriated, said all the -charges against him were lies and that lie had opened his own investigation "of the personal activities of these striking policemen. Let's see how clean they were.
Both state, and federal law enforcement officials promised to look into the charges and State's Attorney Jack Hoogasian said he would present the charges to the county grand jury. State officials said they would ask Hoogasian to step aside so a special grand jury, with a special prosecutor not related to Waukegan politics, could lead the investigation, but that effort came to naught.
Chicago newspapers (but not Waukegan's) kept the charges alive, adding the results of their own investigations into favorable financial deals for Sabonjian friends. They said, for example, that the Civil Service Commission president was associated with a firm that had sold the city $13, 000 worth of paper supplies in the past year and they quoted the state conflict -of -interest statute. They talked of city help, in the form of zoning changes, to the owner of a large parcel of land slated for sale at a large profit to the state mental health department; the land owner, they said, was also the owner of two large bowling establishments who had been implicated by police in after-hours liquor sales. They quoted an excavating contractor who said he was forced to haul clay at his own expense to a private Waukegan landfill site or face revocation of city work permits by Mayor Sabonjian. They said the city attorney was a director of a chemical firm that sold supplies to the city without bids. They said Sabonjian was a director of the Bank of Waukegan, which is the depository of thousands of dollars in city revenue. There were other charges.
Whether the striking police made a tactical error in unleashing charges of political corruption, an error that absolutely guaranteed they would be fired, will be long debated. One who calls it an error is Murray Conzelman, the city attorney.
"I just don't understand why they did that, " he said. "We're human beings. No human being is going to stand for something like that. The mayor told Judge Dixon, 'If we make an agreement with them now, everybody in Waukegan will think the charges were right. ' I just can't understand why they did it. It would have made life impossible if they came back to work and we had to all go on working together. "
The mayor will be forever furious about the charges and about what the police thought they might accomplish through them.
"My men knew I wouldn't give in to threats, " he said a year later. "Or surely they should have known. I had backed them to the hilt in the riots. I told them to take any action necessary to preserve peace in the community - kill the bastards. I told them, if they throw rocks at you, don't wait to tell them about their constitutional rights. Why did they think they could push me around?"
John J. Flood, the CCPA president, views the matter differently, as a kind of gut issue that shows why policemen have to begin to speak out and seek a louder voice in the management of police departments. He said his organization has given police a new solidarity that enables them to speak out against corruption. He says Waukegan was a "glaring example" of the type of community where police had "to keep their mouths shut and their eyes closed.
Charles Pletcher, the 16-year police veteran who headed the Waukegan police unit - and who might one day have been chief of police himself - wonders. He says the feelings that led to the charges of corruption were very real.
"There were a lot of sore spots, " he said, "like the gambling we couldn't do anything about. Johnny Huey runs a million dollar game, but he's protected by the mayor and the chief. Huey used to be a narcotics pusher - he did seven years in the penitentiary. His place is in a high-tension area; there are 11 or 12 murders a year around there. We'd be pursuing a man in connection with a crime and held duck into Huey's. Then we couldn't do anything about it. We :-aren't supposed to go in there. There was a no-raid policy. How did I know that'? I flat asked. I was shift commander when I asked.
"Everybody kind of got backed against the wall. I guess neither side realized how tough the other side would be. The mayor would have taken most of the men back, I think, except for maybe the hard core, if we'd never made the charges of corruption. Maybe that was wrong, but it wasn't just a tactic. It was something we cared about, part of the whole problem. "
On part of Fletcher's staternent, at least, everyone involved in the Waukegan dispute can agree; "everybody kind of got backed against the wall. " Whatever action anyone took, and whatever reaction it brought on, seemed to lead inevitably to the firing of the 54 policemen, men who really believed what the Waukegan ordinance said, that they had a right to representation of their choice. The two main challengers in the fight, Flood and Sabonjian, each tend to view the other's inflexibility as the major cause of the drastic outcome.
"In Waukegan it was politics all the way, " said Flood. "Sabonjian likes his tough guy political image. The thing that brought about the strike was his administration. He simply would not recognize the men's needs. "
Scoffs Sabonjian, "Flood was the major problem. In normal labor relations, you don't go in and close down three cities and a sheriff's office and then say you're bargaining in good faith. He wasn't the spokesman for our men. I wouldn't recognize him. The men followed the big John J. Flood and they all drowned. "
THE WAUKEGAN POLICE STRIKE
Days in Court
The Waukegan police dispute did not end with the firing of the policemen. A number of legal actions followed the dismissal order and it is still being disputed in Illinois courts as this report is being written.
The matter of the Waukegan ordinance, guaranteeing recognition of a bargaining agent chosen by city employees, is one of the most puzzling parts of this complex dispute. The existence of the ordinance seems to make public employees in Waukegan a rather privileged group; other public employees in Illinois do not have this right as a matter of law. It seems an irony, then, that the Waukegan police, who had the right of recognition, should be the only public employees in Illinois who were fired after they sought to claim the right.
Did the police, perhaps, not follow the rules in seeking recognition of their union? There is no answer to the question because there are no rules. The ordinance that presumably guarantees recognition provides no procedure; it merely says "a union shall be recognized as the bargaining agent for the employees who -ire members of that union . . . " When there is no procedure, how do you follow it? What do you do when the mayor, who is the undisputed power in your town, both legally and politically, says he will negotiate any issue except recognition of the union the employees have chosen? In private enterprise, where bargaining is governed by the National Labor Relations Act, the procedures for achieving recognition are spelled out and there is an agency to supervise the process and enforce the rules; the same is true for public employees in those states which have labor legislation, but Illinois is not among them. In the Waukegan ordinance, there is not only no procedure but there is also no method of enforcement, no penalty for failure to carry it out. Who, then, is the referee? The courts ? Can the courts, part of the established political structure of a community, really act as referee, particularly where there are no written rules to enforce?
Waukegan officials, in discussions long after the dispute in the summer of 1970, have hinted that had the police proceeded in a different fashion, the result might have been different.
Conzelman, the city attorney, said, and Lt. Fletcher agrees, that Judge Dixon, in his effort to bring both sides together, suggested that the men, both the Waukegan police and the sheriff's deputies who joined the strike, form a Lake County Police Association instead of joining the Cook County Police Association.
"We would have recognized that, " Conzelman said. -"You have to know Lake County to understand this, but this union, the Cook County Police Association, just has a bad name here. To come up here with the name, Cook County, just doesn't work.
The police rejected the suggestion. They wanted to be part of a going organization, one with a history of some victories that could provide support. They didn't want to form a new group, one that might be weaker, one that might be, in essence, a company union. In addition, what happens to the element of free choice of representation when your employer tells you what choice you may make ?
Conzelman raised some further questions about the process of seeking recognition. "Loevy told me, " he said, "that the union had authorization cards from 50-some of the men, but I never saw them. And we never got a written demand for recognition - until later, after I had said to the press that we'd never gotten such a demand. The process was the problem. If they'd picketed with off duty men, and not struck, -and made a demand for recognition, obviously we would ultimately have recognized the union. We might have objected a bit along the way. But they put us in an impossible spot; if we recognized the union at that point, it would seem all the charges were true. "
Mayor Sabonjian, in interviews during and after the strike, raised other issues regarding the procedure his unhappy police chose to follow. He has said, for example, that he didn't know the men had joined the Cook County Police Association. It is a statement that has been received with considerable skepticism. The mayor had had a series of phone calls with Art Loevy on the subject and the July 7 meeting at which the police signed the union authorization cards surely was no secret. Sabonjian knew enough about it to call his police together two days later for the tongue-lashing reported in the press. Actually, he said at that meeting, according to the Waukegan News-Sun of July 10, 1970, that he would deal with the police negotiators from then on, but that is a statement that was never repeated, and was not acted upon.
Sabonjian has also made mild objection to the fact that the police group is called an "association" rather than a "union, " intimating that the name is deliberately misleading, designed to pull the wool over the eyes of public officials. Perhaps there is a semantic misunderstanding, but there has been a long tradition among groups that consider themselves professional to choose the name association even though a major aim is collective bargaining. Education associations and nurses associations, to name two examples, have long behaved as unions behave and certainly must be considered to be unions.
"At no time did anyone say we've joined the union and things are different this year, " Sabonjian continued. "They never told the Labor Relations Committee (of the city council). Why didn't they tell us they wanted CCPA to negotiate for them? But they didn't bring a business agent in here. They came in themselves.
Fletcher said he was bargaining agent.
Some of the answers in the series of questions Sabonjian raised lie in the time sequence of events leading up to the strike. At the time the police were talking to the Labor Relations Committee - and getting nowhere - they had not Joined the, CCPA; that came later, after the group had given up dealing with the aldermen and was socking the help of the mayor. The police involved give no credence. to the mayor's contention that he didn't know they bad joined the CCPA.
They explain further that they "didn't bring a business agent in here" because the CCPA has no business agent. It has, in fact, only volunteer officers, who are working policemen. When a unit is formed in a community, that unit's officers are chosen from among the membership, a negotiating committee is chosen to bargain for themselves with, when possible, some assistance from Loevy, the lawyer, or from John J. Flood. When Fletcher told the mayor he had been chosen bargaining agent for the officers, he was speaking the truth.
But it is apparent that Waukegan city officials do have strong points on their side of the argument. They cannot be charged with refusing to bargain with police spokesmen because they had long bargained with the Waukegan Police Association and did, indeed, do so at the beginning of the 1970 negotiations. And it is true that no official notification was sent to Waukegan before the strike, informing officials that the men who formerly were represented by the Waukegan Police Association now wished to be represented by the CCPA. Such notification from the CCPA had been a routine order of business in other communities where policemen had joined the union and sought bargaining rights. But it was not sent to Waukegan until after the strike began, after the city could contend that the men were guilty of insubordination because they refused to report for duty when ordered. Sabonjian, for example, repeatedly insisted that the issue was not union recognition but insubordination.
On the other hand there is a nagging rumor in Waukegan. Newspaper reporters there widely believe that long before the trouble started, Mayor Sabonjian told a News-Sun columnists that "The police are going to join the CCPA and they're going to go on strike and I'm going to fire them all.
Loevy and Edward J. Copeland, a Chicago attorney who lives in Lake County, filed a series of court cases on behalf of the CCPA. Two of them have particular bearing on the case.
A Suit to Require Waukegan to Follow Its Labor Ordinance
On August 21, after the Civil Service Commission hearing but a week before the Commission issued its order to fire 54 striking policemen, CCPA began a legal action seeking a court order requiring the city to recognize CCPA as a bargaining agent, in line with its own ordinance. The firings took place before
-38there was a court hearing in the case and CCPA later, on September 9, amended its original complaint.
The amended complaint claimed that the police "were unlawfully discharged from their employment. " It said that the CCPA had sought recognition from city officials as bargaining representative but the city had refused the request and had failed to negotiate. It asked three kinds of action from the court:
L. An injunction restraining the city from these unlawful acts refusal of recognition and refusal to bargain - and directing officials to recognize the Association, to bargain, and to reinstate the fired policemen.
2_ A writ of mandamus requiring recognition and bargaining.
3. An award of $5, 500, 000 in damages to the fired policemen who "have been hindered and prevented from following their occupation as policemen and ha-. e thereby lost their usual wages and earnings; the policemen have suffered great mental anguish, fear and intimidation which have contributed to injure and impair their health. "
The city officials named as defendants sought dismissal of the complaint on all counts. Circuit Court Judge L. Eric Carey heard the case and on December 9 ruled in favor of the city officials. He presented this reasoning:
On Count 1, the request for an injunction, he said that remedy is "entirely unsuited to this case. It would require a mandatory injunction continuous in nature and which might well compel this court to pursue the case and the effects in the future of its order granting the injunction to make certain that certain or many of the defendants were indeed obeying the injunction order. He cited other cases pointing up the difficulties of an injunction "continuous in nature."
On Count II, the request for a writ of mandamus to require recognition and bargaining, he said that this remedy too "would require a continuous course of action on the part of the court to insure that its order would continue to be activated and obeyed in the future by the defendants. " Another sufficient reason for denying the writ, he said, was the fact that the firing of the policemen by the Civil Service Commission was at that time being reviewed by the court under the state's Administrative Review Act and "that cause of action is the only remedy available to challenge the ruling of said commission. "
On Count 111, the request for damages, he agreed with motions by the defendants that this count was in violation of Illinois statutes.
-39Judge Carey's order has been difficult for the fired -policemen to understand. One reason is that it is opposite to the ruling made by another circuit judge a year earlier in Harvey. The case was in many ways exactly comparable to the Waukegan case arid the judge in the Harvey case did issue an order to the city, telling it to stop refusing to recognize the CCPA and to start bargaining. Another reason is that in the Harvey case there was no local ordinance involved as there was in Waukegan. As Fletcher put it, "Judge Carey said he didn't have time to make the city obey its own ordinance. ")
A Suit for Court Review of the Civil Service Dismissal Order
Copeland and Loevy filed the complaint on September 29, noting that they had petitioned the Civil Service Commission for rehearing and review, had been denied that, and had "exhausted every administrative remedy. " The complaint listed 10 reasons why the fired policemen believed the commission's order was "erroneous and illegal, " among them:
-The Commission did not have jurisdiction over a labor dispute and the police were not allowed to present that aspect of their case;
-Notice of the hearing was faulty;
-The Commission chairman was "prejudiced and personally hostile" to the police but refused to disqualify himself;
-The action was in violation of the Waukegan ordinance and was "in fact an act of discrimination against the plaintiffs because of their exercise of their legal rights. "
-The plaintiffs were discharged "not because of their alleged misconduct but rather because they charged the Defendants City of Waukegan and Robert Sabonjian with condoning ticket fixing, gambling and prostitution. "
In later arguments before the court, Attorney Copeland claimed the acts of the police were an "exercise of constitutional rights, coincident with a labor dispute, over which the Commission had no jurisdiction.
Circuit Judge James H. Cooney heard the case and issued his decision in April, 1971, upholding the Commission in its dismissal order. He pointed out that under the Administrative Review Act, the court is limited to the record of proceedings before the administrative agency and "if there is competent evidence to support the finding the decision will be affirmed. " (The police did not testify at the hearing so there was no evidence presented beyond the city's charges. )
-40On some of the specific points raised by the CCPA attorneys, Judge Cooney ruled.:
-That proper notice of the hearing had been given;
-That the Commission did have jurisdiction even though the phrase "valid labor dispute" was the "appropriate characterization for the initial circumstances leading to the controversy. " He continued, "However, plaintiffs for varying lengths of time had accepted and functioned Under the terms and conditions of their employment, including the rules of the Commission. Verily it was under these rules that the appointment of many of them was made possible and effected. Involvement in a labor dispute is not an exception to the sanctions that the Commission rules impose. One cannot accept the benefits while escaping the responsibilities. " He also referred to the Illinois Supreme Court decision in the Redding case that "there is no inherent right in municipal employees to strike against their government employer;"
-The record fails to show prejudice on the part of the Commission chairman and even if he were prejudiced it would not have mattered since the three-man decision was unanimous and the "vote of the (other) two would have effected the same decision;"
-The claim of the plaintiffs that they had not been given reasonable opportunity to be heard could not be taken seriously since they had chosen not to testify;
-The record showed that, whether the men were sick or thought they were sick or feigned illness, they had clearly failed to report for duty. "It is not the city's obligation, " said Judge Cooney, "to prove that the man was not sick. The psychological comfort that may come from being a fellow among others in a cause may well be something else when tested by the light of the law. "
The police attorneys' next step was to begin work on a court appeal of Judge Cooney's decision upholding the Civil Service Commission. They filed their 31 -page brief in September, 1971, and they filed it directly with the state Supreme Court rather than with an appellate court because they claimed constitutional issues were involved. They raised two constitutional issues, both involved in interpretation of the 14th amendment to the United States Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection 'of the laws. "
This second aspect of the case tackles head an the 1965 ruling by the Illinois Supreme Court that public employees have no inherent right to strike. The argument includes these sections:
There is no real and substantial difference between public and private agencies with respect to the general question of employer -employee relations and the specific question of strikes. To argue that the mere fact that one employer is public and another private is a sufficient basis for making a distinction between their employees, as groups, is to presume that there are fundamental and far-reaching differences between public and private employment. There is no basis in logic or in law for making this presumption.
. . . Both categories of employment contain the same potential for a clash of interests as employers and employees seek to realize their goals. Regardless of whether the employment is public or private, there exists the opportunity for arbitrary and discriminatory practices against employees. In both cases the employer is under pressure to as little as possible and still retain his personnel . . . It is precisely this similarity in result that is significant here.
. . . This lack of basis for distinguishing between private and public employees has long been recognized by the State of Illinois in its approach to employment problems. The courts have not, for example, distinguished between private and public employees in the application of statutes regulating working conditions. Though Illinois' eight hour day law is silent on the subject, the courts have consistently applied it with no suggestion that its application be limited to private employers. . . The same is true of legislation protecting female employees . . . and of legislation regulating the safety of scaffolds . . . The important thing to note here is the court's recognition of the fact that there is nothing about the nature of the two kinds of employment which suggests that the two groups of employees should be treated differently. Thus, a difference in treatment would violate the Fourteenth Amendment.
There is, moreover, nothing about the nature of public employment which creates a 'real and substantial difference' between a strike against a government employer and a strike against a private one. . . It cannot be argued realistically that a strike by municipal employees is a challenge to the authority of the state. It is, as in the private sector, a means of compelling an employer to grant the things he is empowered to grant. It is not a strike against the state, a political action, but a strike by employees against their employer, an economic action, which is identical to its counterpart in the sphere of private employment.
A strike by public employees cannot be distinguished, as some have suggested, as an attempt to usurp the power of the government. Striking public employees seek not to subvert the will of the people by dictating policy of the legislature; rather they seek to exercise a voice in the allocation of resources budgeted to a specific agency. The Waukegan Police Department has the discretion to make a wide variety of decisions about the terms and conditions of the employment of police officers. The plaintiff -police officers assert only the same right granted to private employees - the right to use the strike as a means of pressuring the employer to grant those things he is empowered to grant. . . . Like a strike by private employees, a strike by public employees is an effort by those who are affected by decisions to gain a voice in the making of those decisions. Again, strikes in the private and public sectors are essentially the same and there is no constitutionally permissible basis for distinguishing them.
The final argument which is sometimes advanced in favor of denying public employees the right to strike I_ the proposition that a strike by public employees contravenes the public welfare and results in paralysis of society. It is clear, however, that the disruptive potential of a strike by private employees has not been a sufficient basis for a general denial of the right to strike in the private sector. . . Because the threat of social damages is not grounds for denying private employees the right to strike, it cannot constitutionally be the basis for denying public employees a similar right in the absence of a showing of real and substantial difference.
The constitutional arguments were not all dealt with directly in the brief prepared by Murray Conzelman on behalf of the Waukegan city officials. He contended, instead, that no constitutional issues were raised in the trial court and, therefore, no such issues can be raised on appeal. Conzelman's motion that the case be transferred to the Appellate Court in the second judicial district was granted and it is awaiting argument there at the time this report is written.
"This case is brought under the Administrative Review Act to review a decision of the Civil Service Commission of the City of Waukegan discharging the plaintiffs as police officers, " the Conzelman brief continues. ". . . The law is clear that we are restricted to the record. . . . The Court does not reweigh the evidence or rehear the case on the record. The decision of the Administrative Agency is presumed to be correct and must be affirmed if there is competent evidence in support . . . None of the plaintiffs took the stand to testify in the case. There is no denial that they were absent from duty, that they failed to exercise their duties, that they failed to respond as ordered and there is no suggestion in the record that they had any excuse for these failures. "
Referring to a claim by the police attorneys that issues stated in their brief were, indeed, raised in the trial court, Conzelman wrote, ''It is true that four of the issues were raised in trial, but not in the way they are being raised now. They were raised simply as factual issues and, of course, there was no evidence in the record to support them. Now they are raised as constitutional issues and the trial court never heard arguments on these questions raised in this fashion.
"The first issue raised in this court that police officers have full constitutional rights has never been raised before and it is really not an issue in this case. We have no quarrel with the proposition, but it is only half the story. In addition to their rights, they also have responsibilities. The plaintiffs took an oath to uphold the Constitution and to faithfully discharge their duties. If they are to receive the benefits of the Civil Service, then surely they must accept its burdens and comply with the Civil Service laws and the rules of the Commission. Among those rules is the obligation to appear when assigned to duty, to exercise and discharge their duties and to obey proper orders. The record does not show any excuse for these failures. If a defense was available then the- plaintiffs were required to provide it and their failure to testify should not be used by them now as an excuse or defense. "
Conzelman's brief also restated that adequate written notice had been given the officers and that the record shows complete fairness rather than prejudice.
It went on to say that, ''There is no evidence in this record that a labor dispute was involved. No plaintiff testified and we have only the unsworn statement of counsel for that. Even if it were true it would not be a defense because the Supreme Court in the case of Board of Education v. Redding, adopted 'the universal view that there is no inherent right in municipal employees to strike against their government employer. . . '
The simple answer to plaintiffs' suggestion that they were denied 'the right to strike, the brief continues, "is that they have no such right. The law of the case of Board of Education v. Redding binds them and all other public employees. . .
None of the cases cited (in) plaintiffs' brief have to do with public employees and their so-called 'right to strike. I The only case that comes close to this proposition is the case of County of Peoria v. Benedict. In that case the Supreme Court held that the Illinois Anti-Injunction Act applied and an injunction could not issue to restrain a strike by public employees . . . The Anti-Injunction Act does not repeal or affect the Civil Service Act regarding discharges of Civil Service employees. . . The Anti-Injunction Act is not intended to do anything more than remove one remedy, namely the remedy of injunction. That is not an issue in this case because no injunction was ever sought. The case of County of
Peoria v. Benedict does not purport to overrule the case of Board of Education v. Redding.
We no longer burn murderers at the stake, but this does not mean that murder is no longer an illegal act. The crime remains, only the remedy is changed. Here A strike by public employees cannot be enjoined, but this does not relieve them of the other burdens of the law, including the burdens and benefits of the Civil Service laws.
If the legislature had intended that the Anti-Injunction Act overrule the Civil Service Act, then they would have said so. In fact, if the Civil Service Act is overruled, then the plaintiffs have no right to any public employment at all because it is only under that Act that they obtain public employment and its protections.
The Grand Jury_ Hearings
Off and on over a period of months, the Lake County Grand Jury met to hear witnesses, not only -regarding the police charges of corruption -it also regarding charges against the policemen (for example, the "illegal act" of taking traffic tickets from the police department to back up the charges of political fixing. ) Some of the fired policemen were called to testify, but others who said they wanted to testify about gambling were not called. The investigation was conducted by State's Attorney Jack Hoogasian, although Illinois law enforcement officers had originally sought to have him step aside in favor of a special prosecutor.
The jury issued its report, with no indictments of anyone but with some comments and recommendations of its own, in March of 1971. The report noted that "The charges investigated . . . were originally voiced by striking members of the Waukegan Police Department. The strike arose from serious labor-management disputes within the Police Department. " It said it would not attempt to resolve the labor-management problems or to fix blame for them but that the evidence was considered "in light of the conditions which gave rise to the allegations. "
Sections of the report were devoted to specific charges. Regarding gambling, it said:
"The Grand Jury finds that gambling in the form of cards, dice, sports parlay cards and bookmaking existed in the City of Waukegan throughout the 1960s and during most of 1970. Such gambling may continue to exist at present. The Grand Jury further finds that, without the statements made by admitted gamblers after receiving immunity, there is not sufficient proof of
gambling occurring within the statute of limitations to justify indictments.
"The initial hearings upon the subject of gambling clearly showed that the dismissed officers could not legally prove that gambling existed. . . . In our view it was more important to discover whether gambling was aided by official corruption than to indict accused gamblers on flimsy evidence or to belabor transactions that had occurred beyond the statute of limitations . . .
"The enforcement of gambling laws represents a great point of stress in any police department. In the first place effective enforcement of gambling statutes is difficult except when it occurs on open streets . . . . The difficulties of effective enforcement were compounded by the ignorance displayed by most police witnesses with respect to the amount and kind of evidence necessary to establish probable cause for a search warrant . . . Enforcement may require a substantial force of men and this creates a second problem. If a police force is understaffed, as nearly all police forces are, then the commitment of several men to gambling cases may diminish enforcement of the more serious crimes, i. --. , those against persons and property . . . A third prime factor weighing against effective enforcement of gambling laws is that such enforcement is not widely applauded. . . . The individual who gambles is often a responsible citizen in all other respects and arrest engenders hostility toward the police by citizens who would otherwise support him.
"A particular complicating factor present in Waukegan concerns the widely held belief by policemen and civilians alike that the city administration tolerates gambling because closing down gambling would cause disorder and perhaps riot in the black community.
A final complicating factor with respect to the enforcement of gambling laws is the obvious desire of professional gamblers to have absolute assurance of safety . . . The only guarantee is to bribe police officers . . . The Grand Jury made many efforts to secure solid evidence of bribery. Bribery by its very nature, is a most guarded, secretive transaction carefully conducted in the absence of witnesses and documentary evidence and goes hand in hand with vice and gambling . . . The admitted gamblers refused to be shaken in their denials of bribery. No officer admitted accepting a bribe nor did any officer refuse to answer questions on the subject or indicate a desire to receive immunity.
The jury urged improved training and better methods of handling vice control by the Waukegan police department.
Regarding prostitution, the jury said it found little evidence. The police had never made much of the charge, either.
-46The report went on to deplore the long silence by police if their charges were really serious, to say the bitterness of the accusations detracted from their credibility, and to state "the conduct of the accusing witnesses is nearly, if not wholly, as deplorable as the alleged conduct of those they accuse."
It then 'recommended that the police department "either implement a vigorous program of enforcement of existing vice laws or give a clear and sufficient explanation as to why it is unable to do so. "
Regarding ticket fixing, the jury said any suggestion "that traffic tickets were voided in exchange for money or other valuable consideration the Grand Jury finds , , . to be totally unproven, " It said witnesses produced four large envelopes containing 1, 890 traffic tickets with the word "void" written on them, covering a period from 1963 through 1970, but it said the witnesses could not sustain charges of corrupt voiding or even show that the names on some tickets had not been "added recently. " It presented a number of reasons .why voiding had occurred, including changes of mind by the issuing officer or because of insufficient evidence. The jury recommended some reforms in the handling -f tickets, including a new system whereby each ticket written must be sent to court, to be disposed of there rather than on the street or at the police station.
The jury also considered many of the conflict of interest and favoritism charges made, not only by police but through newspaper investigations. It outlined the charges, here and there raised an eyebrow slightly, but found no serious violations of law.
In conclusion, the jury stated:
''In the course of its investigation the Grand Jury learned much about the Waukegan Police Department. It is beyond dispute that the Department was torn by discontent. A police 'strike' would not have occurred otherwise. Further the dissatisfaction has existed for some time. Neither the present Chief of Police nor his predecessor has escaped serious opposition within the Department though whether that is the fault of the Chiefs or of their opposition or of both is not clear. On the basis of the nature and quality of the testimony of the officers we heard, we would conclude that the standards of performance in the Department were low. Of the officers we heard testify only a fraction impressed us as knowledgeable and competent. We might hesitate to voice this opinion merely on the basis of what was before us, however, we have the benefit of the study of the Department conducted by the Field Operations Division of the International Association of Chiefs of -Police. This study confirms our opinions and much that we have heard confirms the conclusions in the study. We recommend that the study be carefully considered and its recommendations followed to the extent it is practical to do so. "
The study referred to, that made by the highly - respected international Association of Chiefs of Police, was paid for by the Illinois Law Enforcement Commission and launched at the request of the Lake County Law Enforcement Committee. The study was started before the strike and completed well after it, in January, 1971. It made broad recommendations for department reorganization, for better record keeping, improved community relations particularly with the black community, for tightening of vice control operations, and for better relations with employees.
"There is unquestionably a need for responsible employee organizations and formal grievance procedures to allow such groups, and all employees, to be heard, " the report said. It noted that lack of a grievance procedure was one cause of the strike, not the only reason for the dispute but contributory to "the state of mind. "
The IACP report went on to admonish police to choose the right kind of organization so there would be "proper regard for the protection of the community. " And it assailed the use of militant tactics, saying "Under no circumstances should excessive militant tactics be employed by or tolerated from police employee groups. . . . Police strikes, over or through the guise of feigned sickness, can have no moral justification.
Mayor Sabonjian's reaction to the report perhaps was characteristic. He may or may not have read it at the time a Waukegan reporter asked him about it, but he promptly labeled it "a bunch of hogwash" and called it the work of the CCPA, seeking to lay the blame for the strike on his administration.
"It sounds, " he said, "like the CCPA's last-ditch effort to distort the image of the city and the police department. "
Commented Roy McLaren, director of field operations for the IACP, "We are on opposite sides of the street. Nothing could be more startling than to have the IACP accused of having a liaison with a union. "
WAUKEGAN POLICE STRIKE
A Lake County ParallelAdjoining Waukegan, like a twin city, is the industrial community of North Chicago, the setting of a famous labor dispute, one of the nation's first sit-down strikes. It was the strike referred to by Waukegan's city attorney when he talked of the union orientation of many area residents.
The strike took place at the Fansteel Metallurgical Corporation, which manufactures products from rare metals. The problem began in 1936, when the National Labor Relations Act was still new and many of its' provisions still hotly disputed. A group of Fansteel employees organized a local of Amalgamated Association of Iron, Steel and Tin Workers of North America. But Fansteel's superintendent consistently refused to meet with the union's representatives stating that it was company policy not to deal with an "outside" union. After one such refusal, on the afternoon of February 17, 1937, the union committee called a sit-down strike. With 95 employees, it took over two key buildings and halted operations. Police went with company officials to the buildings and demanded that the men leave. When they refused, the company's lawyer "announced in loud tones that all the men in the plant were discharged for the seizure and retention of the buildings."
Department of labor officials and the governor of Illinois tried to mediate the dispute but were unsuccessful.
Despite a court injunction and a ruling that the union was in contempt of court, the men stayed in the buildings until February 26, when sheriff's police battled with the strikers, hauled them out of the buildings and arrested them. Most of the men were eventually fined and given jail sentences for violating the injunction. Many of them were told they could return to work, with back pay but without recognition of the union, but the majority refused to return without union recognition and reinstatement of all. In the meantime, their replacements were called together in a company building for the organization of an "independent" union. The National Labor Relations Board later ruled it was company-dominated.
The NLRB went on, in its order, to demand that the company stop interfering with its employees in the exercise of their right to self-organization and to bargain collectively through representatives of their own choosing. And it ordered
Waukegan Police Strike -49
the company to offer reinstatement to all workers with back pay, contending that the company's unfair labor practices had led to the strike and that, under terms of the MIRA employees who go on strike because of an unfair labor practice retain their status as employees and are to be considered as such despite discharge for illegal conduct.
A circuit court reversed the NLRB and the case finally went to the United States Supreme Court. That court, in an opinion written by Chief Justice Hughes and handed down in 1939, drew some distinctions.
The company did engage in unfair labor practices in interfering with the self-organization of employees and in refusing to bargain, the decision said. But, it went on, the NLRA provided a remedy. The company's actions could have been the subject of complaint to the NLRB. The employees had the right to strike over the issue, the court said, "but they had no license to commit acts of violence or the seizure of their employer's plant. . . In its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labor dispute or of an unfair labor practice would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society."
Congress and the courts have made clear, the decision continued, that an employer is not permitted to discharge his employees because of union activity or agitation for collective bargaining. But the employees were fired, not for their union activity, but for their illegal seizure of the buildings; the NLRB exceeded its limits in ordering the reinstatement of all the strikers.
There are intriguing parallels in the Fansteel case and the Waukegan police case, a generation apart in adjoining communities. In each case, employees were seeking recognition of their union and collective bargaining rights . In each case " management" refused to deal with an "outside" union and made efforts to encourage formation of a strictly local union. In each case the law (the NLRA in one, the Waukegan ordinance in the other) gave the employees the right to choose their own union and be recognized. In both cases, the employees then engaged in what was for them an illegal action: the seizure of the buildings in the Fansteel case, a strike in the police case. In both cases, employees were fired because of the illegal actions.
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