Reply Brief — O'Donnell v. Local 165, International Brotherhood of Electrical Workers

Supreme Court, U.S.

FILED

' OCT 15 887

No. 87-369

JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

STEVEN R. O’DONNELL, Petitioner

Vv.

LOCAL 165, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, AFL-CIO

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

FIRST JUDICIAL DISTRICT

REPLY BRIEF OF PETITIONER

RAYMOND J. LESTER

15029 South 8lst Court

Orland Park, Illinois 60462

(312) 460-2626

Counsel of Record

on 2

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TABLE OF CONTENTS

Argument in REPLY... cw scsesccceveces

I. Respondent has completely

misinterpreted the decision

of the

Appellate Court. ...scecae

II. The Appellate Court’s decision

invalidates resignations of

which the union has actual

notice

and as such restricts

a union member’s right to

resign

CONCLUSION

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TABLE OF AUTHORITIES

CASES

Brinkerhoff-Faris Co. v. Hill,

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Communication Workers, Local 6135,

188 NLRB 144, 76 LRRM 1635

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Culbertson v. Shaw, 18 U.S. 584

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Great Northern R. Co. v. SunBurst

Oil & Refining Co., 287 U.S.

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In re: Arbitration American

Car & Foundry, 11 LRRM 2582

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Pattern Makers’ League v. NLRB,

Se a ee, SWE LaPOSP oc ase eee

Scofield v. NLRB, 394 U.S. 423

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Tepper v. Campo, 398 Ill. 496,

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MISCELLANEOUS

29 Am Jur 2d Evidence

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Black’s Law Dictionary, 5th Ed,

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7

NO. 87-369

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

STEVEN R. O’DONNELL, Petitioner

Vv.

LOCAL 165, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, AFL-CIO

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

FIRST JUDICIAL DISTRICT

REPLY BRIEF OF PETITIONER

ARGUMENT IN REPLY

|

THE RESPONDENT HAS COMPLETELY

MISINTERPRETED THE DECISION OF THE

APPELLATE COURT

The respondent’s reading of the

opinion below is simply wrong. The union

confuses the two distinct meanings of the

term "burden of proof." In one sense, it

denotes the duty of establishing a

proposition by such a quantum of evidence

that the law demands. In another sense,

it designates the obligation resting upon

a party to go forward with evidence to

meet a prima facie case created against

him. See 29 Am Jur 2d Evidence sections

123, 124.

The Appellate Court did not find that

Mr. O’Donnell failed to make out a prima

facie case and consequently failed to

shift the burden of evidence to the union.

The Appellate Court, based on matters not

in evidence and testimony petitioner never

had the opportunity to cross-examine,

found on its own motion that Mr. O’Donnell

failed to meet his burden of persuasion

that union steward Motal received actual

notice of his resignation. Petition

Appendix p. 14a-15a. This argument was

not made by the union; it was a conclusion

the court reached sua sponte. It is this

lack of opportunity to cross-examine and

this use of matters not in evidence to

reverse the decision of the trial court

that constitutes the blatant denial of due

process of law that Mr. O’Donnell suffered

unexpectedly at the hands of the Aprellate

Court.

Mr. O’Donnell established a prima

facie case of actual notice to the union

of his resignation when both he and Jim

Bennett testified that he gave his union

card to former union steward Ryan to give

to current union steward Motal along with

the message that he was out of the union.

Petition Appendix p. 4a, 1l2a-15a. The act

of tendering a union card back to the

union is a valid resignation.

Communication Workers Local 6135, 188 NLRB

an

-

144, 76 LRRM 1635 (1971).

By making out this prima facie case,

Mr. O’Donnell shifted the burden of going

forward with evidence to meet that case to

the union. See 29 Am Jur 2d Evidence

sections 124, 126. When the union failed

to put either Ryan or Motal on the stand,

the two witnesses within their control who

had personal knowledge of the events, the

trial court properly interrupted the

proceedings to ask the relevancy of the

testimony of Mr. Cheeseman, the union’s

only witness. Petition Appendix p. l6a.

When it became apparent that Mr.

Cheeseman was not present at the time the

events occurred, it was entirely within

the discretion of the trial court as fact

finder to infer that the testimony of the

missing Ryan and Motal would be

unfavorable to the union. Culbertson v.

Shaw, 18 U.S. 584, 588 (1855); Tepper v.

Campo, 398 Ill. 496 (1947). See 29 Am Jur

2d Evidence section 180. The trial court

at that time awarded judgment to Mr.

O’Donnell. There was never an opportunity

to cross-examine the only witness brought

against Mr. O’Donnell and it was a denial

of due process for the Appellate Court to

reverse the decision below on the basis of

that short testimony and an offer of proof

which is not even evidence.

This Court has found the opportunity

to cross-examine to be a fundamental and

Substantial due process right. This

deprivation of due process occurred as a

result of the unexpected decision of the

Appellate Court and petitioner immediately

raised this issue in his subsequent

petition for rehearing and his petition

for leave to appeal before the Illinois

Supreme Court. As such, petitioner has

properly raised this substantial federal

question below. Great Northern R. Co. v.

SunBurst Oil & Refining Co., 287 U.S. 358,

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366-67 (1932); Brinkerhoff-Faris Co. v.

Bill, 2861 U.&. 673, 677-78 (1929).

Furthermore, the lack of opportunity to

cross-examine the only witness brought

against Mr. O’Donnell renders the

testimony elicited unworthy of use in a

court of law and any inferences drawn from

it cannot stand as an adequate and

independent ground of state law in support

of the decision. Petitioner respectfully

requests this honorable Court to issue the

writ of certiorari.

ae

THE APPELLATE COURT’S DECISION INVALIDATES

RESIGNATIONS OF WHICH THE UNION HAS

RECEIVED ACTUAL NOTICE AND AS SUCH

RESTRICTS A UNION MEMBER'S RIGHT TO

RESIGN

The Appellate Court held that a

resignation must be written, communicated

to a union officer, or delivered to the

union’s business office in order to be

effective. Petition Appendix p. 6a. This

was the argument advanced by the union at

trial. Their reasoning was that such a

restriction allows the union to keep track

of its membership. Petition Appendix p.

17a.

The real reason behind this argument

is the punishment of Mr. O’Donnell for

working during the strike. The union

seeks to elevate form over substance

through an unwritten policy in order to

invalidate Mr. O’Donnell’s resignation and

confiscate the wages he earned during the

strike.

Mr. O’Donneli turned his union card

over to former union steward Ryan to give

to present union steward Motal with the

message that he was out of the union. An

independent witness corroborated the fact

that Ryan then went across the street to

confer with Motal.

One would have to be divorced from

reality to believe Ryan did not tell Motal

of Mr. O’Donnell’s resignation.

Furthermore, it would be fantasy to

believe Motal did not tell his superiors

of the resignation. The actions of any

workers who cross picket lines are of

extreme importance to the union hierarchy.

Mr. O’Donnell proved at trial that the

union received actual notice of his

resignation.

The union’s unwritten policy adopted

by the Appellate Court would invalidate

this resignation, a resignation of which

they received actual notice, because it

was not made orally to an officer or

delivered to their business office. All

that is needed for an effective

resignation is actual notice of an act of

renouncement coupled with the intent to

renounce. Black’s Law Dictionary, 5th Ed.

p. 1177. And the tender of a union card

back to the union is a valid act of

resignation. Communication Workers Local

6135, 188 NLRB 144, 76 LRRM 1635 (1971).

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To the extent the Appellate Court’s

decision invalidates this resignation it

restricts Mr. O’Donnell’s federally

protected right to resign. Pattern

Makers’ League v. NLRB, 105 S.Ct. 3064

(1985).

In re: Arbitration American Car &

Foundry, 11 LRRM 2582 (1942) is

inapplicable to this case. The arbitrator

made his decision prior to the passing of

the Taft-Hartley Act in 1947. Prior to

that time, closed shop agreements were

legal and an employee who resigned from

the union would lose his job. See Pattern

Makers’ League v. NLRB, supra. The rule

proposed by the arbitrator served to

protect union members whose views diverged

from those of the union from a charge that

their views were tantamount to

resignation, exposing them to discharge.

With the passage of the Taft-Hartley

Act closed shop agreements were outlawed,

making the protection of this archaic rule

unnecessary. Today the focus of unions is

to restrict resignations and keep workers

from exercising their federally protected

right to refrain from concerted activity

with the threat of confiscatory fines.

The archaic authority of the respondent

should not be used to invade or frustrate

the overriding policy of voluntary

unionism embedded in this nation’s labor

laws. Pattern Makers’, supra; Scofield v.

NLRB, 394 U.S. 423, 429 (1969).

Finally, the union in a footnote

indicates that union "Parliamentary Rules”

prohibit oral resignations. When asked by

the trial court whether there was any

written procedure for resignation within

the union rules the response was negative.

Petition Appendix p. 17a. Thus, the union

has waived this argument. Petitioner

never had the chance at trial to show that

this particular "Parliamentary Rule”

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applies only to high ranking officials at

formal meetings of its legislative bodies

and not to rank and file members. In any

event, the union has argued before this

Court that oral resignations to union

officials are valid, so even they do not

follow their own interpretation of this

provision. Brief in Opposition p. 7.

CONCLUSION

For the reasons above, and those in

the petition, petitioner respectfully

requests this Court to issue the writ of

certiorari.

Respectfully submitted,

Raymond J. Lester

(Counsel of Record)

15029 South 8lst Court

Orland Park, Illinois 60462

312-460-2626

October 12, 1987

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