April 9, 1999
Mr. C. L. Little
President, United Transportation Union
14600 Detroit Avenue
Cleveland, OH 44107
Re: Response to mine of
March 30, 1999 dated March 31, 1999. Notice of Intent to Sue. Certified Mail - RRR - P 502
926 088. Via Facsimile - (216) 228-0411 and (216) 228-5755.
Dear Sir:
I am in receipt of your
letter referenced above wherein you claim I have returned with "increased
volubility, but with no more clarity". While I shall certainly try to clarify my position to
the Board of Directors in this letter, you have deliberately tried to trivialize my
requests for information to the extent that you have not addressed them whatsoever.
Accordingly, I must assume I will not be receiving the itemized billing records from
Guerrieri, Edmond & Clayman this date per my request and therefore it is now
unnecessary for me to appear before the Board of Directors. Simply stated, I have never
prevailed in any case before the Board of Directors and I cannot prevail here unless the
Board of Directors understands the significant expenses you are authorizing to maintain a
corrupt system of arbitration. The approximately $1200 it would have cost to come to
Cleveland and present my case will be better spent towards an attorney to gain this
information pursuant to federal labor law.
Obviously, I can get the
LM-2 report from the DOL in Washington and the job benefit records through discovery, "volubility" not an issue. You and the Board of Directors should
review 29 ' 501 (a), (b), and (c).
Before I "clarify"
my position to the Board of Directors, let me clarify my position on the itemized records
since September 1, 1998 of Guerrieri, Edmond & Clayman. Without these records in my
possession by close of business on April 9, 1999, I will not be coming to Cleveland, Ohio
to appear before the Board of Directors. Certainly, in my absence, you make argue that you
would have provided them to me first thing Monday morning, April 12 as you previously did,
immediately before the BoD meeting, with the alleged Earley "expenses".
While I consider that too late, please feel free to supply the Board of Directors a copy
and mail one to me on April 12, 1999. As I will not be present, perhaps you can put a
positive spin on the $100,000 + we have paid to this Washington law firm to prosecute a
former member.
Now, let me clarify my
appeal, "volubility" aside, to the Board of
Directors as has been stated at least twice: "I wish the Board of Directors to
determine if this Union should spend further money, including appellant costs, to
prosecute Kenneth R. Smoot for his alleged violation of the Federal Wiretap Act". I
always assumed you kept the Board of Directors informed of everything that was going on
within the union, both good and bad. I assumed you advised them of matters wherein we
(UTU) might assume significant liability. Unfortunately, I now know that is incorrect. I
had the stark reality of Mr. Paul Thompson's response at the GCA Quadrennial
meeting concerning how much UTU has borrowed from the JBI Fund, i.e., he wasn't sure
of the amount but he thought we (UTU) had repaid 15 to 30 million! It would appear that
the Board of Directors, while clearly authorizing use of the JBI Trust fund in violation
of trust law, doesn't have a clue of the statutory violations they are
involved in nor what you and your "Washington attorneys"
have gotten us (UTU) into! Allow me to "clarify" the situation.
Board of Appeals decision
Case No. 307, File 8-8-297 speaks for itself. PLB 3882, Case No. 155 speaks for itself.
The transcript of the Executive Session of PLB 3882, Case No. 155 and 156 speaks for
itself. All certified docket records in Cases Nos. 1:94CV0485, 1:94CV0597, and 1:94CV0674
are a matter of record and available to the Public. The alleged, illegal "Settlement
Agreement and Release", approved by the Board of Directors over this member's
appeal, is a matter of record. Absent any record of the excessive fees paid (or owed) to
Guerrieri, Edmond & Clayman, a brief history is necessary to advise the Board of
Directors of what is going on in this case.
Brief History
Smoot filed 0485 claiming
DFR (Earley's sellout of his claim and the Board of Appeals decision)
and 45 ' 153 First (q) to overturn the PLB decision on the basis
of fraud and lack of authority. Earley responded with wiretap action in Maryland. TRO
granted and case transferred to Ohio. Union meets with Judge and agrees to hold no hearing
on Earley. Smoot abides by Maryland ruling and withdraws charges. Ruck files charges based
upon language of award. Earley sues Ruck and Union. Executive Board agrees to hear
charges. General Counsel Miller agrees to "De Facto TRO"
which prevents trial for over 9 months. Upon beginning of trial, Judge issues TRO stopping
trial. Case again transferred for third or fourth time to new judge. Pretrial held, jury
trial replaced with "permanent injunction hearing"
and permanent injunction held. Despite testimony of UTU Executive Board Members who never
read the transcript or heard the tape, all defendants (Smoot, Ruck, and all members of the
Executive Board) found guilty of the federal wiretap act. Earley and his attorneys are
quickly paid pursuant to the illegal Settlement Agreement and Release "but
the Executive Board members are not aware of the "SAR"
until payments have been made. Former Executive Board member Arnold makes them change the
language so that the Executive Board does not authorize the payments. Earley withdraws all
his cases against UTU, Smoot, and Ruck to avoid a trial (he can't
win). Same Judge issues summary judgment for UTU and CSXT to dismiss Smoot's 0485
case (laid dormant for over 3 years). Judge keeps alive UTU and CSXT's
counterclaims of illegal wiretap in 0485. UTU and CSXT have status conference with judge
and Smoot's attorney. Settlement not made, Smoot's
attorney, absent knowledge from Smoot, agrees to Summary Bench Trial on Damages. Parties
play "game" to hilt and offer Smoot, before summary bench trial, the
opportunity to forego trial (one half million dollars in damages) if he will withdraw his "appeal"
(the specious summary judgment UTU and CSXT received in 0485). Smoot refuses! Edmond's
emerges from the judge's chambers ready to do cartwheels and high fives; he now
knows he is in for a big pay day! The Summary bench trial is no different from PLB 3882,
Case No. 155, i.e., it is a contrived "dog and pony" show in which the result was
already determined! Smoot's lawyer sells him out lock, stock, and barrel, all on
record similar to Earley's transgression! As UTU's main
focus is to get the appeal withdrawn, UTU, through and by it's
counsel ("Rambo" Edmonds - one tough law firm) begins a designed
prosecution of Mr. Smoot to "execute"
the specious judgment they have received. This "malicious prosecution"
by UTU at your behest is the "rest of the story"!
Of course, Mr. Little,
the "rest of the story" is not really addressed to
you; it is for the Board of Directors, i.e., the mushrooms: "keep
them in the dark and feed them shit". They need to know, whether they will accept it or not,
what the true facts are in the malicious prosecution of Mr. Smoot and his family and what
the final result may be!
Indeed, that is the "rest
of the story"!
The Guerrieri firm had
previously submitted over $60,000 in fees and expenses for their legal expertise wherein
Judge Ecomomus granted those fees and expenses as payable from Smoot. While is might have
made sense to wait for the appeal decision from the Sixth Circuit, UTU and CSXT know they
are doomed here and therefore UTU needed to "keep us in the game"
so they could have something to negotiate away the appeal if their frivolous motions to
dismiss and delay the appeal did not work. Shortly thereafter, they began the malicious
prosecution of Smoot by filing with the court to execute the judgment Absent the records
requested, it is my belief that this firm produced bills of approximately $20 to $30
thousand dollars a month for the next 6 or 7 months to accomplish, but not limited to, the
following: filed numerous individual subpoenas (10 or more) for bank records in three
States which were unnecessary, doctored subpoenas to illegally access Corporate records,
illegally froze Corporate accounts, filed Writ of Attachment against Smoot's wife
and children (ex parte wherein you (Mr. President) had to sign a $100,000 bond), filed
specious motions to dismiss with the 6th circuit, and continue to file specious
motions to attempt to execute a judgment which is not worth the paper it's
written on. All, totally unnecessary, until a determination is made on Smoot's
numerous appeals which are now before the 6th Circuit.
Under the constant
onslaught of motions, discovery requests, motions to compel discovery, garnishment
proceedings, frozen accounts, etc., Smoot was forced to seek bankruptcy protection.
Unfortunately, he did not learn that the FELA settlement he received from CSXT
(approximately $217,000 after all repayments - in exchange for his seniority) was "exempt"
from creditor process under Virginia law. He had transferred that money from Ohio to his
corporate entities to try to provide him a means of making a living for himself and his
family. CSXT then entered the picture in the bankruptcy proceeding, wanting their pound of
flesh, and a trustee was appointed who was apparently a former employee of the largest law
firm in Richmond. The same firm that is representing CSXT in their attempts to execute the
judgment. If that wasn't enough of a conflict of interest, the Trustee hires the
very same firm to represent her actions - more prosecution of Smoot. To make a long story
short, UTU and CSXT are arguing that they are entitled to the "exempt"
injury settlement, or at least what is left of it (see Exhibit 1 indicating less than
$90,000).
It is unknown what the
result of the bankruptcy proceeding will be as there is little case law on file, i.e.,
generally speaking, no trustee ever goes after exempt money. Every personal injury
attorney in Virginia is watching this case and there will undoubtedly be numerous amicus
briefs should this judge determine Smoot's injury settlement if subject to creditor process. Of
course, if UTU and CSXT lose, they will also appeal as money if no object to them. That
fact becomes painfully evident when you realize since UTU and CSXT learned what was left
of Smoot's estate, they have spent more money than they stand to
receive if they ever receive anything!
The downside for UTU is
that Smoot's wife, son, daughter, and the Corporation now have
counterclaims against UTU. F&M bank and UTU will be sued for illegally accessing
corporate records and the subsequent damage done to the Corporation. The bottom line is
the UTU's aggressive, if not improper or illegal, attempt to
execute a flawed judgment has ruined Smoot's business, placed him into
unwanted or unneeded bankruptcy, and has him on the verge of divorce. All to protect one
misbehaving union officer and a corrupt arbitration system. In essence, UTU wants to be
able to go behind closed doors ("executive session") to agree with the Carrier's
position and then deny the screwed member(s) access to the district court. The high dollar
Rambo Washington firm has entered appearance in the appeal and will be wasting the member's
monies to argue that an aggrieved employee doesn't have the right to challenge his
award pursuant to 45 U.S.C. ' 153 First (q). It is unknown if they will also be wasting
our money to try to persuade the court that a violation of the wiretap act actually
occurred. Hell, even an alleged world's greatest labor attorney knows or should know that there
was no violation of the Federal Wiretap Act, albeit he never produced the proper case law
to truly protect the Executive Board members. That is also a matter of public record.
In fact, I recall that
General Counsel Miller put out a "privileged and confidential"
document some 6 or 7 years ago outlining all pending legal actions and estimating the
potential liability of each case. He estimated Case No. 0485 could not cost UTU more than
$10,000 "even if we lost"! And that scenario was if we
admitted Earley's actions were outside the scope of his authority, tried
him internally, and went to the bonding company for any loss. Of course, UTU didn't and
UTU's new President determined our present course of action, i.e., UTU is winning and
we have spent over $200,000 so far (not counting the $200,000 we spent in the consolidated
cases "to avoid the costs of further litigation",
i.e., lets not win the case). As soon as the Sixth Circuit rules, UTU will begin the "losing"
phase and face jury trial on Smoot's DFR claim. Unfortunately, it won't be
as simple as saying UTU admits Mr. Smoot wasn't properly represented and CSXT has
a check for his 30 shares of stock plus interest. Indeed, expect Smoot to have a very high
powered lawyer and expect him to go after punitive damages. The $400,000+ spent so far is
just the tip of the iceberg.
I seriously doubt the
Board of Directors has the authority or desire to stop this malicious prosecution of Smoot
and the financial costs associated with this ill fated attempt to execute a frivolous "judgment".
From past experience, it would seem that many members of the Board, even though they know
right from wrong, are inextricably tied to your position. If there is justice in this
world, they are tied to deck chairs on the Titanic and there is an iceberg waiting for you
and them in Miami this August. While I know you will delay every legal action as long as
possible to get by "one more convention",
this letter and the Smoot actions will soon be on the internet for all to see. By fax copy
to GS&T Griffeth, I wish this document made available to the Board of Directors and
read into the record of the proceeding. I would do it myself had you complied with my
request for the billing records. Suffice to say I am not concerned with their decision, I
already know it. Please consider this my notice of intent to sue. I anticipate seeking
injunctive and declaratory relief to overturn the SAR, prevent further use of the Job
Benefit Fund, and stop the use of the member's money to argue positions that are
not in the best interest of the members. Certainly none of the member's
monies should be used to argue they are not entitled to avail themselves of federal law,
i.e., 45 U.S.C. ' 153 First (q).
Relative to that issue,
the United States Attorney for Ohio representing the NRAB in 0485 clearly argued that the
district court had jurisdiction over, Smoot, UTU and CSXT, but not the NRAB. Yet a federal
judge then determines he has no jurisdiction and makes ruling that are not based upon
fact, reason, and law? Mr. Little, is UTU using their political chips to protect a
misbehaving union officer and a corrupt arbitration system rather than the members?
Fraternally yours,
Lance E. Ruck
Appellant
Member, UTU
Enclosures
cc: Mr. R. D. Griffeth, GS&T
Did I win one for the
members? Hell, No, O for 8 or 9 now before the esteemed Board of Directors. My
thanks to Mr. Jack Arnold who presented my case when I was unable to appear before the
Board. Of course, I received the standard form letter under the rubber stamp signature of
the GS&T that my case was denied. But, it wasn't unanimous so there is a least
one Board member who can distinguish right from wrong.
