CSXT Repent!
Not likely is it? Nope, CSXT will pull out all the stops to insure Ken Smoot and those similiarly situated NEVER get their 30 shares of stock they were entitled to under the labor agreement! Hell, for all practical purposes, it is doubtful at this late date that any other employee from that time frame could possibly have a claim alive, albeit some lawyer extracted a lot of money from various claimants to handle their cases?
Why hell, it's doubtful Ken will EVER get the 30 shares of stock he was entitled to under the clear and unambigious language of the agreement or the concise "substantive" ruling of the Board of Appeals that was summarily gutted by the actions of GC Virgil Elswick, VP Robert W. Earley, Labor Relations officer Howard Emrick, and NBM Nuetral Referee Raymond Cluster. Of course, we have never blamed Cluster as he got fed up with the situation and turned the parties in pursuant to the language or omission of language of Award # 155, PLB 3882! We looked into filing "ethical" and other charges against Cluster pursuant to federal abritration guidelines and realized while he didn't have the balls to buck the system of corruption used by the union and the carriers, he got pissed enough to turn them in big time! Way to go Raymond, I still respect you!
Doubtful ? Methinks NO . . . impossible! But . . . , let's review what is at stake here on thisTuesday morning (January 14th) other than 30 shares of stock; the credibility of representatives within the meaning of RLA, the credibility of the arbitration system within the railroad industry (also RLA), and the credibility of the United States Judicial System and it's appeallant procedures! Make no mistake about it, the Smoot Debacle will be with us for decades to come, mainly depending on how often the parties (Rail Unions and Rail Carriers) try to cite the bad law they have created in the 4th and 6th Circuits relative to 153(q), DFR, Title III (Federal Wiretap Act), and Bankruptcy Law and how successful are attempts to take this to the "Court of Last Resort", i.e., the public consciousness! In fact, this is an example of the realization that why wait for the First Division to rule before placing the facts in front of the "Public"; what difference could it possibly make?
The Ex Parte filing was previously placed but here it is in pdf: Ex Parte Filing to the First Division! This thing sat idle for some 16 months before the First Division issued a the above referenced hearing letter? While they stated that we had to wait our turn, we are aware that cases filed after this one were handled before it; indeed, there was never any intent on the parties to ever handle this, much like Monty Hall's De Facto TRO and "little" pressure was even exerted here as was done in the de fact tro? Yet out of the clear blue, in approximately the same 16 months it took the 6th Circuit to determine Smoot's appeal of the punitive damages would be heard "in forma pauperis", Smoot gets notice that his First Division Case will be heard and his appeal will be heard?
Coincidence? Hell, 16 months ain't long when you consider it took about THREE RUCKING YEARS for Fed.Jud. Petie to rule on UTU (filed in violation of case management rules) and CSXT's Motions for Summary Judgment!!! Ah . . ., probably not important? So let's take a look at the "Submissions" that will be the alleged basis for the decision that emanates eventually from the "neutral referee" at the First Division, to wit:
Smoot's Filing
NATIONAL RAILROAD ADJUSTMENT BOARD
FIRST DIVISION
PARTIES TO DISPUTE
Mr. Kennth R. Smoot, Engineer Qualified Trainman
&
CSX Transportation, Inc.
STATEMENT OF CLAIM Claim of Engineer Qualified Trainman Kenneth R. Smoot, ID No. 076959, that a contribution of thirty (30) shares of CSX common stock plus interest since 1991 be paid to Kenneth R. Smoot pursuant to the provisions of Attachment 4 or CSXT Labor Agreemetn T-140-89.
STATEMENT OF FACTS
Mr. Kenneth R. Smoot applied for 30 shares of CSXT Common Stock pursuant to his Collective Bargaining Ageement and was denied by the CSX. His General Chairman refused to handle his claim and Smoot appealed to the United Transportation Union’s Board of Appeals. Smoot received a sustaining decision which is herein attached as Exhibit A.
The claim was handled to PLB 3882 and his General Chairman and UTU Vice-President agreed with the position of the Carrier that Claimant was not entitled to the stock contribution pursuant the the CBA and the Board of Appeals decision. Said Award is attached as Exhibit B. Smoot filed legal action pursuant to 45 U.S. C. § 153 (q) and a Federal Judge declined that he had jurisdiction and remanded the case back to the NRAB for rehearing. Appeal of this decision was denied by the Sixth Circuit Court of Appeals and currently sits before the United States Supreme Court.
Procedural Issues
While this claimant has sought guidance from the National Mediation Board as to whether the First Division has jurisdiction to hear his claim, no response has been forthcoming to his letter of September 13, 2001 herein attached as Exhibit C.
An additional fax of that letter to Mr. Roland Watkins on October 4, 2001 has also yeilded no response to this representative.
POSITION OF EMPLOYEES
This is a simple case of a Claimant being entitled to 30 shares of stock pursuant to the unambigious language of the Collective Bargaining Agreement. Labor Relations added an additional "interpretation" to the requirements of the labor agreement and in fact both the Carrier and Organization changed the langauge of the agreement after the fact to include "train" between the original words "active service". It is undisputed Claimant Smoot met the condidtions of the previous agreement and was in active service on November 30 as a engineer based upon the 1985 UTU National Agreement.The best argument was made by Neutral Member Raymond Cluster duing the Executive Session wherein the UTU Vice-President sold out Smoot’s claim and the "final and binding" decision of the Board of Appeals. Those avements are herein attached as Exhibit D.
CONCLUSION
It is undisputed that Smoot met the qualifications of the CBA and was entitled to his thirty shares of stock. The only reason he has yet to receive them has been the colusion of the Organization and CSX to abuse the process of the Railway Labor Act and the Courts in order to deny Smoot, and those similarly situated, their rightful entitlement(s).
Respectfully Submitted,
Lance E. Ruck
Representative for Mr. Smoot
CSXT Submission! Of course, throughout the process we attempted to get "guidance" from the NMB but unfortunately, it was never forthcoming: Mansfield Letter Watkins Response So there "U" have it, most of the file on Smoot's alleged "Second Bite of the Apple" account Judge "Petie" denied jurisdiction of a 153(q) case that met all three of the provisions of the narrowest scope of law! Based upon timing and the fact they are even going to hear it at all, I'd say it will most probably be another "castigation" of the perpetrators, particularly this representative! I don't really care whether it is his "first bite" of the apple or his "second bite" of the apple, I just want to know if the APPLE is POISON AGAIN, i.e, another "corrupt" railroad arbitration wherein the "merits" of the case will not be addressed in any manner whatsoever! Hell, as long as this was decided before we ever got there, we should have made this part of the annual winter junket to Phoenix; at least we could have played a "little" golf? So what will be UTU's (VP Wigent?) position in this? Support the final and binding Board of Appeals decision again (haha)? Will he even speak or will Fingerhut (Carrier's Representative) control the whole proceeding as he always does in the "usual manner"? Inquiring Minds Want to Know? Stay tuned as the "enlightening award" will be placed below as soon as we get it? Ah . . . , I'm guessing in about . . . . 16 months? Opppps. . . ., I almost forgot the most important document (actually did last night!), i.e., my letter to Senior Director Labor Relations Heil. Seems I got a "little" miffed when I saw the averment of "res judicata". Reminded my of that old movie (maybe "double jeapordy" ?) with Charles Laughton and Tyrone Power where he asks the wife something to the effect of: "Are you lying now or were you lying then . . ., in fact Madam, aren't you a habitual liar"! Hell if the CSXT's representative wants to admit they deliberatly"misrepresented" the law in the District Court and the 6th Circuit and place that language in this Award, I have no problem with them winning on "res judicata"? Letter to Heil Smoot Award II?