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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0857%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 926

## Text

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

praia

i

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
I hie ae & oo eee 08 6 048 0
Great Northern R. Co. v. SunBurst
Oil & Refining Co., 287 U.S.
2. 3 | ae ee
In re: Arbitration American
Car & Foundry, 11 LRRM 2582

2. 0 BINARIES ee eo ee ee
Pattern Makers’ League v. NLRB,
Se a ee, SWE LaPOSP oc ase eee
Scofield v. NLRB, 394 U.S. 423
Ae
Tepper v. Campo, 398 Ill. 496,
Se Maes £26 S90 (1967)... ccc cece
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).

‘? » 7 >

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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”

Sr

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0857%3A3. Public record. Not legal advice.