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Int'l Brotherhood of Elec. Workers v. Zoll

OPINION FILED AUGUST 22, 1985.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 399, PLAINTIFF-APPELLANT,

v.

CLETUS A. ZOLL, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. James P. Fox, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

The plaintiff, International Brotherhood of Electrical Workers (I.B.E.W.), Local No. 399, filed a small claims complaint against defendant Zoll, claiming an indebtedness of $637.80 for an assessment made against him as a member of plaintiff. The action was filed on July 5, 1984. On August 8, 1984, plaintiff filed a motion for summary judgment. After bench trial on August 15, 1984, the court ruled that the plaintiff had not met its burden of proof, inasmuch as (1) the assessment resulted from a disciplinary hearing of which the defendant had not received notice, and (2) plaintiff knew defendant had not received the notice at the time the disciplinary hearing was conducted, since the letter containing the notice had been sent by certified mail and returned to plaintiff marked "refused." The court dismissed the complaint. The plaintiff appeals from the judgment of the circuit court of Sangamon County.

The record indicates that on August 22, 1983, a written charge was preferred against the defendant within the union by Robert G. Wilson, Sr., a union member, alleging that defendant had been observed by Joe Brink, another union member, crossing a picket line and returning to work that date, in violation of article XXVII, section 1(17), of the union constitution; and that defendant had been two hours late for picket duty on August 21, 1983. On August 29, 1983, the union sent notice of the charges and a trial date of September 13, 1983; this notice, sent by certified mail, was returned to the union marked "refused." Nevertheless, the hearing was conducted in defendant's absence.

The record of the union disciplinary hearing shows that the chairman of the trial body stated:

"Also, show that Cletus A. Zoll was notified by certified letter of the charges pending against him, Certified Number 7436187, and this was returned to the Union office. Cletus A. Zoll refused to take receipt of the letter, and according to Article 27, Section 7, we will try him in absentia."

Article XXVII, section 2(7), of the union constitution provided:

"If the accused wilfully fails to stand trial — or attempts to evade trial — the trial board shall proceed to hear and determine the case just as though the accused were present." (I.B.E.W. Const., art. XXVII, sec. 2(7) (1983).)

As our decision herein turns on the lack of notice we need not discuss the fact that the union proceeded to hearing against defendant under that provision.

Article XXVII, section 1(17), of the union constitution, which defendant had been charged of violating, provided:

"Any member may be penalized for committing any one or more of the following offenses:

(17) Working for any individual or company declared in difficulty with a [local union] of the I.B.E.W., in accordance with this Constitution." (I.B.E.W. Const., art. XXVII, sec. 1(17) (1983).)

The record shows that Wilson appeared before the union trial board, and defendant did not. It is silent as to whether Brink was present for the disciplinary hearing. Wilson told the union trial board that defendant appeared to have worked for the picketed employer in 12-hour shifts on August 22 and 23, 1983. The trial board decided to assess defendant an amount equal to the amount of time he worked during the strike plus costs, $637.80, to be paid to the local union office within 45 days; and further suspended him from attending local union meetings or participating in local union affairs until April 1, 1986, and suspended him from holding any local union office until September 13, 1988.

On October 20, 1983, the union advised defendant of the trial board's decision by certified letter, which was returned to the union office marked "refused." A letter of April 17, 1984, the union advised defendant that if the assessment were not paid, the union would initiate legal proceedings. These proceedings were subsequently initiated.

At hearing below, the defendant testified that several weeks into a strike, it was announced on national television that the strike had been settled between the union and operating companies throughout the nation. He said that on that Monday morning, he proceeded to his work location, saw no pickets indicating continuance of a strike, and went in to work. When he left work that evening he saw no pickets. On the following day, he saw no evidence of pickets and again went to work. Defendant testified that he had never seen the letter the union purportedly sent to him notifying him to appear before a trial board. He testified that he had not previously seen the letters or the envelopes which had been returned to the union office marked ...


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