INJUNCTION?

   Will an injunction be issued in the matter of the current vote to create a "new union"?  If yes, what effect could it have?  Why do I believe the whole thing is suspect?  Is it a double edged sword as I have previously stated?   Inquiring minds want to know?

    Suffice to say that Smalkin's dismissal for improper jurisdiction will result in the Motion being filed in Cleveland today I assume!  Ah . . . , and if Clint has his way it will probably be transferred over to Youngstown and Judge Peter C. to insure the results they want! (haha) But what are those results? Simply stated: NO injunction if it is going to pass (with one reservation*) and grant the injunction if it is going to fail, i.e., to keep that fact from the memberships and go back to the drawing board with all the facts and figures from the failed election!  One must assume that the ballots favored the election at the time (9-5-01)  Guerrieri, Jr. offered to share the information albeit that could change by final count.

    What was suspect?  Having a hearing 1 hour before final votes are due at the AAA (12:01 PM) rather than an immediate hearing. Does anybody believe because Monty has written a letter to the AAA not to divulge any more running counts that the count won't continue to run and that they can't access the information through an "informant" in AAA whenever they want? 

    First and foremost, having a running count is improper if not illegal!  I know, because I saw what happens when the running count indicates a "proposal" is going to be defeated, i.e., the SRB wherein modifications to the agreement were made during the balloting!  In the instant case, having the information allows the International to step up propaganda and even identify those that have not voted for personal "one on one" meetings to stimulate the proper vote (hey, like to be a special rep next year?)!  I protested the change in the agreement during balloting, it was voided, KC Yardmen were given an "incentive" to vote yes, and it passed on the second ballot, thus doing away with our productivity and saving the BNSF between 200 and 300 million dollars!   Financially speaking, the amount members may lose ultimately from one union in it's current form are probably going to be similar if not greater over a similar time frame (approximately 22 years)!

     As a practical matter, knowing the vote should be of no concern to any federal judge who rules on this Motion as one of the basic premises is that the vote did not allow time for opposition opinion and an "informed vote" which can't actually be overcome with the facts outlined in the Memorandum!  Clint and the boys will easily over come the dues increase by "standing by" with a letter of agreement signed by Boyd and Dubroski that "guarantees" no BLE member will pay any increase in Legislative dues in any state without a majority of  members voting to do so in secret ballot (hell, who cares since the UAC gives unlimited right to raise dues and all money is in the same account)!   Remember, when we are one union (after January 1, 2002), we can vote all members in Maryland to change the Legislative Assessment from $16.50 to $14.50.   Think any UTU member won't vote for that and then the extra BLE members paying $14.50 will result in more money per month to the Maryland Legislative Board. 

    So what's the problem?   Well, the BLE has a Convention  9 days after the announcement is due!  My thinking here (and I believe it is shared by many) is if the Merger passes, the BLE hierarchy will be devastated in the elections.  Of course, many of the older ones (like Dubroski) may not care based upon the windfall they shall receive from the UTU pension fund!  And it does not follow that if a majority of members vote for the merger then a majority of delegates will support the current hierarchy because the delegates main complaint is that their Constitution was violated by the vote, i.e., only the delegates could allow a merger!

    Solution - * Enter an injunction and take the matter under advisement or enter an injunction and schedule a full hearing for later in October?  Now BLE officers get to go to Convention without the stigma of an "approved merger" albeit I think they may still have an uphill battle!  So if the vote isn't fixed and it passes, the judge concludes that no interference is necessary, the impounded ballots can be counted, and the results will be official.   In my view this brings in additional opportunities to fabricate a passing vote if necessary as it is known that the Government, the Carriers, and the Unions want this "new company union"!

    Before you conclude these are the cynical rantings of a person intent on destroying the "union" who has no credibility, consider the following:  I have been involved in TRO proceedings for some 7 years with the Smoot case and I know how badly the process can be abused by a Judge when he has attorneys cutting deals in his chambers! For that matter, Judge Frederic N. Smalkin probably understood this case better than any other federal judge who ever dealt with it (other than perhaps Matia) and he has always had my respect based upon his Memorandum Opinion and Order in the Smoot TRO!  You must understand that Smoot's attorney was there to "agree" that a TRO would not be harmful to his client and never brought up pertinent wiretap law dealing with the difference between a  wiretap and the interception of a "oral" conversation.  Indeed, he had a wiretap expect lawyer there but that was to protect him, not Smoot!

    Per Smalkin: "First, the Court has concluded that the harm to the plaintiff (Earley) without this decree far outweighs the harm to the defendant with such a decree. The plaintiff's standing in the UTU, and perhaps his entire career, are in peril should the tape and transcript of the PLB proceedings be utilized in any fashion, directly or indirectly, to support defendant's contentions that plaintiff breached his duties in connection with his conduct as a member of the PLB in Question. The threatened injury appears, indeed, to be irreparable in damages or otherwise, in that, once the cat is out of the bag, it will be decidedly hard to put it back. That is, there is a considerable question as to whether, even if the tapes are later finally determined to have been made in violation of statute, the UTU would ever be obliged to disregard them, if the charges brought by the defendant were sustained at the March 23 hearing through any use of the tape."

"The Court, then, is of the opiniion that there is a serious question about whether the defendant intentionally recorded the executive session from which he had been excluded; if pressed, the Court would indeed find on the present record that he did intentionally so record it. But, the Court need not make a definitive finding on the question of defendant's intent now. Indeed, this is question that ultimately will be determined by the trier of fact of the merits under the seventh amendment. See Fed. R. Civ. P. 65(a)(2). Instead, the Court need only find, under Direx, that there is a serious question to be adjudicated going to defendant's culpability under the federal statute, which there undoubtedly is." (emphasis mine)

"There is, to be sure, also a public interest in the punishment of misbehaving union officials, but that interest is clearly outweighed by the public interest in protection of those officials from the use of their conversations that have been intercepted in violation of statute."

While the TRO was issued and transferred to Ohio, Smalkin specifically directed Smoot not to make any further use of the tape and transcript in any fashion whatsoever, "save in connection with his defense of this case."   Of course, this has yet to happen as has the "adjudicatory" ruling by the trier of fact unless "U" believe that a person should pay 100's of 1000's of dollars because the evidence was determine "improper, if not illegal"? 

Smalkin Memorandum Opinion & Order

   I regret that the top line on several pages is not available but for those of "U" who take the time to read it, "U" will have a much better grasp of the Smoot Matter.  Of course, once a TRO is issued, the rules require a hearing within 10 days to determine if it will be made permanent or voided.  Even if made permanent, it has to be reviewed from time to time to insure that the enjoined party (ies) are not harmed also, i.e., unless of course you enter an illegal Settlement Agreement and Release and quickly "vacate" the permenant injuction!

What should have happened when Smalkin transferred to case to Ohio?  Well, UTU's General Counsel should have requested and immediate hearing to determine Smoot's rights and the rights of the Executive Board to hear the evidence, particularly in view of the language of 2515 of the Federal Wiretap Act, i.e., there was no specific prohibition for the tape and transcript to be used in an internal union hearing!  Instead, Clint and Earley's attorney went behind closed doors in Judge Well's chambers and cut the deal to "open and close" the hearing wherein the judge wouldn't have to issue a TRO against the Executive Board.  Ah . . ., the first "De Facto" TRO in this case.  Clint would later enter into another that kept the trial from being held for over a year!

So what's going to happen with the current TRO?   My prediction is it will be granted and taken under advisement.  Soon after the BLE Convention, it will be lifted and announced that the Merger is a done deal.   If the vote is fair and it doesn't pass, the TRO will be made permanent, no tallies will be allowed, and the UTU/BLE will have to do it again in the future correcting the flaws the Judge enumerates in the Order!  Hang in there, have a nice day, and always remember, these people have a known record of abuse of process with the Courts! 

How do I rate Federal Judges:  1. Smalkin - complete grasp of the whole matter and documented it well in his own typed Memorandum and Opinion with Order.  2. Judge Matia - understood that the "transcript" was evidence, chewed out Smoot's attorney in telephone conference for attaching it to the original suit, and returned it to him. UTU and CSX promptly misrepresented that it was done because it was illegal and pretended it was then "under seal", as they still do today despite no certified docket showing same nor any federal judge ever making such a ruling.  3. Judge Solomon Oliver, Jr. - stated in chambers that the language of the Award itself entitled Smoot to a new PLB hearing, issued TRO for Earley because he thought the matter could be dealt with at the ballot box (Earley would be defeated in the Chicago Convention), and promptly transferred the Case to another judge when that didn't happen.  4. Judge Wells - gave the parties what they asked for in chambers.  5.   Judge Peter C. Economus - gave and continues to give the parties everything they ask for without any need to even view evidence!

It will be decidedly hard for justice to ignore the recent Supreme Court decision in Bartnicki even though it just reinforces what has always been there in Fultz for years regarding "privacy" and it's relationship to the Wiretap Act.  Of course, it now leaves no doubt whatsoever that any member of the Executive Board, past or current, and I ever violated any use and disclosure under the Act.   Of course, I think that Monty "represented" the Executive Board members in Court(s) just as Bob Earley "represented" Smoot at PLB 3882!   Indeed, it is a matter of  "Public Record"!

Soon, perhaps all railroad operating

employees can receive this same type

"Representation"!