Ruck's First Affidavit

AFFIDAVIT

1. My name is Lance E. Ruck and I am employed by the Burlington Northern Santa Fe Railway Company as a switchman in El Paso, Texas. I am over 21 years of age and have never been declared legally incompetent. I was named a New Party Defendant in Case No. 1:94CV0674 when I filed internal charges against United Transportation Union Vice President Robert W. Earley for his actions at PLB 3882.

2. I met Kenneth R. Smoot in Cleveland on or about March 22, 1998 in preparation for his Jury Trial scheduled for March 30, 1998. We traveled to Toledo, Ohio and stayed in his parents home while preparing for trial. We met with his Attorney, Mr. Merritt W. Green for several days (March 26 and 27^th, I believe) trying to agree of the Stipulated Facts, Exhibits, and Witnesses. In late afternoon on March 27^th (Friday) was the first time I remember seeing CSXT=s findings of fact and conclusions of law.

3. Smoot and I spent Saturday in Cleveland and drove to Youngstown on Sunday. Mr. Green arrived at the Holiday Inn around 9 or 10 pm and we then saw the UTU=s Findings of fact and conclusions of law. Mr. Green had little understanding of the law in the case and I prepared a white paper on CSXT=s findings of fact to aid him in the trial and I prepared a copy of my Petition for Writ of Certiorari, complete with highlighting each case with index to address in the Table of Authorities of where to find each germane issue, i.e., intent was a matter for a jury, reasonable expectation of privacy, privacy within the meaning of the act, and the distinction between wire and oral communication.

4. Both Smoot and I repeatedly stated he must object to no jury being present and Mr. Green repeatedly said the Judge has already made that ruling. We said we don=t care about his ruling, you must get it in the record for appeal purposes. Mr. Green never placed it into the record. It is now my opinion, having read FRCVP Rule 39, that Mr. Green stipulated to a summary bench trial on damages without notifying Mr. Smoot. Indeed, Mr. Smoot was advised that he did not need to attend the Status Conference several weeks prior which turned out to be the Pre-Trail, yet no certified record exists except for mention as a docket entry.

5. I have reviewed the transcript of the summary bench trial and I can find no objection made by Mr. Green which was ruled upon and made part of the record in such a way as to be appealable. Mr. Green is an experienced trial attorney who certainly knows how to make a proper objection for the appeal record.

6. Upon leaving Youngstown, Ohio, I appeared before the UTU Board of Directors on April, 6 1998. At that time, I had occasion to ask UTU Assistant President Byron Boyd, in front of a Mr. Sammy Ray Spears, if he received a copy of the transcript of Executive Session of PLB 3882 from Mr. Smoot at the Atlanta Region Meeting. His response was Ano@ that he had received a copy of the El Paso Express at the Atlanta Region Meeting.

I have read the foregoing statement and swear that it is true and correct.

Lance E. Ruck

SWORN TO AND SUBSCRIBED before me, the undersigned authority, by Lance E. Ruck on this the 20th day of August, 1998, in the city of El Paso, County of El Paso, Texas.

My commission expires on .

Notary Public, State of Texas