"The Judge was Wrong"

Yes, a most startling admission right out of the gate from CSXT Labor Relations Officer Ms. Patricia Madden when she stated "The Judge was Wrong"!  Very reminiscent to fight'in bob's statement in Executive Session when he stated: "I mean, I raised hell with the Board, but the Board had already ruled and missed it! (Pause). They missed it."  (Of course that was another lie as he requested a meeting with the Board Members in Portland wherein he advised he had a "conflict of interest" in the case and should have removed himself . . . , actually the closest he ever came to regret or accountability albeit he later lied under oath on two occasions that such statement was never was made!).

But of course, the Board of Appeal didn't miss the case and Judge "Petie" did! So while you can't blame Ms. Madden for finally telling the truth, I had to wonder out loud in rebuttal why the UTU and CSXT's attorneys mislead the Judge originally and then failed to mention they disagreed with his ruling before the Sixth Circuit.  Indeed, I even did a "little" pre-hearing written statement so everyone knew how this hearing desperately needed to differ from the previous hearing which lead to the specious  Award #155 of PLB 3882. Perhaps the answer is as simple as a severe lack of ethical conduct in direct violation of the  CSX Corporation Code of Ethics and 29 U.S.C. 401(b)?

With regard to the hearing itself, it was superb; probably because we had the good fortune to have a premier distinguished neutral in Mr. Fishbach. The hearing lasted about 50 minutes wherein I probably used 35 minutes for opening statement and 5 minutes for rebuttal, with Ms. Madden using 5 minutes for opening statement, Mr. Fishbach using approximately 5 minutes for questions, statements, and clarifications, and UTU Vice Presidents Wigent and K. N. Thompson using 0 minutes (Indeed they never spoke an "oral" utterance during the proceeding? In fact, I was quite surprised to see Kim Thompson there given his "association" with the litigation in the Smoot Debacle, i.e., Executive Board Chairman who was sued for 1 million by Earley and then shows up as Earley's witness to testify to the "propriety" of having "Executive Sessions" before the oral hearing of a case at PLB? 

I stated I would like to know what UTU's position is in this case, are they here to support the final and binding substantive award of the Board of appeals or are they here to agree with the Carrier's position again as occurred at PLB 3882? Brothers Wigent and Thompson were silent!  At the very end Mr. Fishbach asked if the UTU had any statement and both Wigent and Thompson nodded their heads "NO" as if they didn't want to even talk just in case the proceeding was being taped?  Quite frankly, since neither had the courage or desire to support the Board of Appeals decision or even defend the UTU for it's previous actions, which I stated flat out on numerous occasions during the hearing were corrupt and a violation of the duty of fair representation, as a delegate, I must vote against them if they run for re-election and someone opposes them! 

There were at least two "oral" statements that were downright hilarious to this representative and I got a great laugh about them after the hearing and they shall remain a great source of humor forever into the future.   The first was when we entered the room,  First Division Carrier Rep Fingerhut introduced everyone present including CSXT Representative Madden.  As Smoot shakes her hand he says it's always nice to finally put a face to a signature!  A hilarious reference to the fact that she was the alleged "Carrier Member" that signed Award #155 of PLB 3882 albeit she was never present at the hearing or in the Executive Session (Howard Emerick was the CSXT's designated Representative to PLB 3882). This fact was also noted by Mr. Fishbach as he checked the Award when I made the statement?

Hence, we always averred in Court that the Award had to be made by the signatures of Cluster and Earley and since Cluster indicated that Earley agreed with the CSXT's position there was NO DISPUTE, i.e., for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order (we ALWAYS had all three!). Based upon the language of the Award, one would understand why Emerick would not want to sign it!  And of course, Earley's attorneys tried to make   light of my complaint that Earley didn't "dissent" to the award but my statement in a former hard copy of the Express was simply "how could Earley dissent an award wherein he had to beg for a denying decision and agree that Cluster could put it in the award"! 

The second hilarious statement came from Ms. Madden relative to my arguments that Cluster is the senior arbitrator at NMB, has written thousands of awards and you probably can't find a handful that leave out the jurisdictional statement that always proceeds the listing of the parties!  Ms. Madden assured this board that it was simply a "typo"!  Hahahahahahah - God, that is the dumbest statement I have ever heard!

Yo . . . Patty . . . did CSXT write the award? Methinks  . . . NO!  But it does allow the Express to address another "practice" of the rail arbitration system wherein the "winning side" gets to do a rough draft for the referee to cut down on the amount of work he has to do, i.e., the referee then edits the rough draft with any changes he wishes to make and issues "his" award?  In the instant award, there is no doubt Cluster wrote it given the line of questioning Cluster gave Earley concerning his position and there is no doubt that Emerick, after reading the award, didn't want his signature on it! 

Indeed, Patty, a "typo" would have been a brilliant excuse for leaving out the word "train" between the words "active" and "service" in the original agreement (which CSXT typed) but nobody ever thought of it until after the horses left the barn ( UTU and CSX then subsequently inserted the word in a "modified" agreement).  But arguing that the Referee's failure to place a paragraph in his award stating he had jurisdiction was a "typo"  is like . . .  ah . . . , well . . . , it's like "I meant Monday but we said Tuesday" (R. Cluster at page 22 of Exhibit D of Smoot's First Division Submission)!

Basically, the only averment that could be the basis of the original award was the "extrinsic" evidence on "intent of the negotiators".  I did point the errors relative to that; Earley and Emerick were not the negotiators of the agreement and while Elswick was, he told all his locals they would receive the ESOP distribution if the qualified for a trainman's vacation. Of course, this was addressed by Cluster when he said "Yeah, but Virgil ain't going to say that that's what it means. Virgil is telling me it means something else." In fact, I even gave a copy of the most telling document in the board of appeals case as an exhibit albeit I don't know that Mr. Fishbach will accept it? Of course that was the sworn and notarized statement from two members of Smoot's local that confirmed what Elswick promised in order to get it ratified.  Also another reason Elswick couldn't vote the matter in a referendum vote as Dubose proposed rather than let them go to the Board of Appeals.   Elswick fought that to the Board of Directors rather than let all the locals know he was now reneging  on his pre-ratification promise.

Yep . . ., I wasted another grand on the Smoot Debacle but it was worth every penny of it.  To hear the CSXT admit that Judge "Petie" was WRONG was an admission that he always had jurisdiction, even when UTU and CSXT's attorneys were misleading him and failing to argue for well established law.  Indeed, Ms. Madden offered the "definitive" legal case that was identical to the instant case addressing the requirement of 153(q) and prohibiting a collateral attack at the NRAB when the case had already been heard at the PLB.  Would have been particularly valuable if it occurred after UTU and CSXT accepted the benefits (summary judgment of Smoot's hybrid 301 case) of the bad law made by the District Court, upheld by the Sixth Circuit, and denied Certiorari by the Supreme Court. Unfortunately, it was from 1984 wherein "competent" attorneys for both UTU and CSXT would have been aware that the Judge's decision for summary judgment on both 153(q) and his DFR case were contrary to fact, reason, and well established law.

Let me be clear here relative to both UTU/CSXT's attorneys and the Honorable Judge Peter C. Economus with regard to the determinations of his Memorandum Opinion and Order - either they were totally incompetent or they were corrupt?  Obviously, the frequent usage of the term "Judge Petie" tells the informed reader that I have determined the latter is the correct one!

I had a great time in Chicago and always relish an opportunity to eat at the Chop House!  I want to thank Ken Smoot for his patience and assistant representative/observer Ms. L. Wade for her presence!  Last but not least, I want to thank whoever assigned Mr. Fishbach to hear this case as it was my first trip in 4 that the proceeding went smoothly without undue influence from the First Division Carrier Representative.  While I expect a ruling of no jurisdiction per res judicata which is why we went, it would be nice if Mr. Fishbach gave them a "little" taste of their own medicine, i.e., ruled he had jurisdiction and gavd Smoot his 30 shares of stock, thus forcing the CSX to take the matter to Court and open up the entire proceedings again! 

Yo Rambo, Mr. Lewis . . . , how's that brief coming for January 31st . . . going to need a "little" extension because you have only had our brief for 25 days? 

Below (theoretically) from Left to Right are Claimant Ken Smoot, Assistant Representative/Observer Ms. L. Wade, and CEOEPE/Representative Lanny Ruck just before we headed to the Chop House to celebrate our good fortune of finally having a "full and fair" hearing!

Hang in there, have a nice day, and never give up if you are positive you are right!  CEOEPE