1 

IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF TEXAS FT. WORTH DIVISION

ROBERT “BOB” ROSS §

Plaintiff/Counterclaim Defendant §

§

§

§

§

§ Case No. 4:22-CV-00343-Y

§

§

ASSOCIATION OF 

PROFESSIONAL FLIGHT

ATTENDANTS, MCGAUGHEY, 

REBER AND ASSOCIATES, INC., 

JULIE HEDRICK, ERIK HARRIS

§

§ 

§ 

§ 

§ 

§

Defendants/Counterclaim Plaintiff. §

PLAINTIFF’S BRIEF IN SUPPORT OF ITS RESPONSE TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

Pursuant to Fed. R. Civ. P. 53(f)(2), Fed. R. Civ. P. 56(c) and Local Rules 7.1, 7.2, 56.4 

and 56.5, Plaintiff, Robert “Bob” Ross (“Ross”), respectfully submits his brief in support of 

Plaintiff’s, Association of Professional Flight Attendant (“APFA”), Response to Defendant’s 

Motion for Summary Judgment. Defendant filed its Motion for Summary Judgment [PageID 2420; 

Docket No. 42] on September 20, 2022. The Judge-Specific Requirements make entry of a scheduling 

order a precondition to filing a motion summary judgment. No scheduling order has been entered in the 

matter before the court. Defendant motion is untimely filed. For these reasons, Defendant’s Motion for 

Summary Judgment should be denied. Plaintiff respectfully requests that the Court deny Defendant’s 

Motion for Summary Judgment if not based on time-specific requirements, then due to a contested 

issue of material fact. Plaintiff will show the court as follows: 

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TABLE OF CONTENTS

I. DEFENDANTS/COUNTERCLAIM PLAINTIFF.-------------------------------------------- 1

I. INTRODUCTION ----------------------------------------------------------------------------------- 4

II. STATEMENT OF THE CASE-------------------------------------------------------------------- 6

III. ARGUMENTS AND AUTHORITIES--------------------------------------------------------- 8

A. Standards For Summary Judgment-------------------------------------------------------------- 8

B. APFA’s Arbitration is a Disciplinary Procedure -------------Error! Bookmark not defined.

(1) Plaintiff’s causes of action are not subject to arbitration.Error! Bookmark not defined.

C. The Threshold Issue:-----------------------------------------------Error! Bookmark not defined.

D. Disputed Facts: Arbitration in accordance with APFA Constitution. -------------------- 12

1) Charges were brought against Plaintiff in accordance with the APFA Constitution;------ 13

2) The Arbitrator was impartial; ------------------------------------------------------------------------ 14

3) The Arbitrator acted within his jurisdictional authority; ---------------------------------------- 14

4) Internal union charges were filed against Ross alleging serious acts of financial misconduct;

 16

5) APFA was not a party to the arbitration.----------------------------------------------------------- 16

E. Defendant’s Breach of Fiduciary Duty Claims------------------------------------------------ 17

IV. CONCLUSION AND PRAYER --------------------------------------------------------------- 20

TABLE OF AUTHORITES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ...............................................................9 

Burge v. Parisk of St. Tammany, 187 F.3d 452 (5th Cir. 1999). ....................................................9 

Int'l Bhd. of Teamsters Local 651 v. Philbeck, 423 F.Supp.3d 364 (E.D. Ky. 2019)...............17 

Jones v. Blume, 196 S.W.3d 440 (Tex. App. -Dallas 2006, pet. denied). ................................... 18 

Linsdey v. Sears Roebuck & Co., 16 F.3d 616 (5th Cir. 1994)...................................... .....9 

NLRB v Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967)........................................................... 10 

Case 4:22-cv-00343-Y Document 52-1 Filed 11/01/22 Page 2 of 21 PageID 1265
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NLRB v. Boeing Co., 412 U.S. 67 (1973) . ............................................................................... 10 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).....................................9 

Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758 (5th Cir; 1996).. ..............................9 

Taita Chem. Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377 (5th Cir. 2001). ..........................9 

United Ass'n of Journeymen v. Local 334, 452 U.S. 615 (1981). ................................................ 5 

Wooddell v. International Bhd. of Elec. Workers, 502 U.S. 93,116 L.Ed.2d 419 (1991). .....5 

Statutes & Regulations

9 U.S.C. § 6. ............................................................................................................................. 9 

9 U.S.C. § 10. ......................................................................................................................... 12 

29 U.S.C. § 101(a)(5)..................................................................................................................5 

29 U.S.C. § 158......................................................................................................................... 6 

29 U.S.C. § 185.......................................................................................................................... 6 

29 U.S.C. § 401 .......................................................................................................................... 6 

29 U.S.C. § 411...........................................................................................................................6 

29 U.S.C. §501 ......................................................................................................................... 17 

Court Rules

Fed. R. Civ. P. 53(f)(2). .............................................................................................................. 1 

Fed. R. Civ. P. 56(c). .............................................................................................................. 1, 8 

Local Rule 7.1. ........................................................................................................................... 1

Local Rule 7.2. ........................................................................................................................... 1

Local Rule 56.4. ......................................................................................................................... 1

Local Rule 56.5. ......................................................................................................................... 1 

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I. INTRODUCTION

Ross is a member in good standing of the APFA union and the Former National President. 

Plaintiff was charged with violations of the APFA policy based primarily on alleged overpayments 

discovered by an accounting firm’s review of the union’s payments under Plaintiff’s Transition 

Agreement. Plaintiff prepared and defended himself in the union’s internal dispute procedure 

(“arbitration”) wherein Plaintiff issued subpoenas for documentation and witness testimony from 

the union.1 The internal dispute procedures resulted in Plaintiff being disciplined. Plaintiff was 

found to have violated his fiduciary duty, subsequently banned for life from holding any unionelected position, terminated his position as Board member and Base President, and disciplined in 

the amount of $62,558.75 to be paid to the union.2

Simultaneously, McGaughey, Reber and Associates, Inc. dba Diversified Credit Systems 

(“Diversified Credit Systems”) collected from Plaintiff on the same alleged debt the union 

attempted to collect through its internal arbitration. Diversified filed a suit to collect while the 

arbitration was ongoing. In its Original Complaint, Diversified attached a never-before seen letter 

(“Confidential Memorandum”) from the accounting review cited by the union as the reason to 

bring disciplinary charges against Plaintiff. The Confidential Memorandum states “Please note 

the Bob Ross confidential transition agreement states that he will be paid all of his accrued and 

unused sick and accrued and unused vacation time. This agreement doesn't specify that the 

payments be made in accordance with the policy manual guidelines. Consequently, these 

1 Docket No. 1, Pl. Original Compl. ¶33, PAGEID 13; Ross Subpoenas, [Appendix p. 16-19]. 2 The amount of the award was substantially increased in violation of the APFA Const. against Ex Parte Communications, as 

Plaintiff was never given any copies of the audit performed, and an opportunity to object or respond prior to the arbitrator 

amending his award. The court should note, this is despite requests from Defendant’s Counsel and the parties to the Arbitration

for copies of the audit review. 

Case 4:22-cv-00343-Y Document 52-1 Filed 11/01/22 Page 4 of 21 PageID 1267
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payments appear appropriate and in compliance with the transition agreement.”3

Neither APFA’s National President, Julie Hedrick, nor APFA’s National Treasurer, Erik 

Harris, turned over a copy of the Confidential Memorandum to the Board of Directors, the 

Executive Committee or to the Plaintiff during his internal arbitration. The National Officers 

intentionally deceived and withheld this document and other pertinent facts to acquire a favorable 

arbitration award against Plaintiff, to mar his reputation, and to remove him from his position on 

the APFA Board of Directors. Plaintiff believes this is a result of his public stance against an 

upcoming proposed merger between APFA and the Association of Flight Attendants. Ross 

contended that withholding the Confidential Memorandum from the APFA Board of Directors, 

Executive Committee, and during his arbitration was a violation of, among other things, his right 

to a fair hearing under the Labor Management Reporting and Disclosure Act § 101(a)(5). 

On July 21, 2022, Defendant, APFA, filed a Motion to Dismiss Plaintiff’s Claims for Relief 

and Brief in Support (hereinafter “Motion to Dismiss”). Plaintiff filed an Amended Response to 

the Motion to Dismiss on September 15, 2022 (Docket No. 41). On September 20, 2022, 

Defendant, AFPA, filed a Motion for Summary Judgment and Brief in Support arguing that it’s 

entitled to Summary Judgment to enforce its Arbitration Award (Docket No. 42). APFA argues 

that it’s entitled to Summary Judgment because based on judicial deference to arbitrations 

conducted by employers under a Collective Bargaining Agreement.4

 Defendant fails to establish 

any viable legal basis for granting a summary judgment in its favor to enforce the Arbitration 

3 Docket No. 1, Pl. Original Compl. ¶24, PAGE ID 9; PAGEID 33; Pl.’s Original Petition, Tarrant County Justice Court, 

Precinct Three, JP03-22-D00017757; [Appendix p. 25]. 4 Def. Brief on Mtn. for Summ. J., Section entitled “Summary,” PAGEID 2425 (Defendant asserts that the Union Constitution is 

a labor agreement under 301 LMRA § 185). Wooddell v. International Bhd. of Elec. Workers, 112 S.Ct. 494, 499, 

116 L.Ed.2d 419 (1991); United Ass'n of Journeymen v. Local 334, 452 U.S. 615, 619-27, 101 S.Ct. 2546, 2549-53, 

69 L.Ed.2d 280 (1981) (holds a labor agreement can only be a contract between an employer and the union to benefit the 

employees, or a contract between two unions—the courts have extended federal jurisdiction where there is a contract, or union 

constitution, was between two unions). 

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award. It asserts legal arguments that have no foundation in the annals of labor law and continues 

to ignore all facts related to its fraudulent conduct prior to, during, and after the union’s arbitration. 

I. STATEMENT OF THE CASE

Plaintiff, Robert “Bob” Ross (“Plaintiff”) seeks damages alleging unlawful violations of 

the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411, et seq. (“LMRDA”), the 

Association of Professional Flight Attendants Union Constitution, and Breach of Fiduciary Duty 

as provided for under Texas Common Law by Defendants APFA, Julie Hedrick and Erik Harris

(“hereinafter Defendants”). APFA is a labor organization covered under the LMRDA, 29 U.S.C.

§401 et seq, and 29 U.S.C. § 158, et seq. Plaintiff is a member in good standing of APFA as defined 

under the LMRDA and 29 U.S.C. § 158. On or about January of 2016, the Plaintiff ran for office 

within the APFA local union elections. For clarification, Robert “Bob” Ross ran for National

President Nena Martin ran for National Vice-President, and Eugenio Vargas ran for National 

Treasurer.5

Plaintiff was elected National President, Nena Martin elected Vice-President, and Eugenio 

Vargas Treasurer (“Ross Administration”). The Ross Administration opposed a merger of the 

union with AFA—another multi-airline flight attendants’ union. This created two political

factions within APFA competing for power: Pro-APFA/AFA and Anti-APFA/AFA. Ross 

voluntarily stepped down from his position as National President on March 9, 2018 after 

negotiating and signing a transition agreement with the APFA Board of Directors (”Transition

Agreement”). In 2020, the Hedrick Administration (a Pro-APFA/AFA Administration) was 

5 It should be noted that Chinery-Burns and Lee also filed charges against Nena Martin, the Vice-President during the Ross 

Administration, however as of October 14, 2022, the Arbitrator summarily dismissed all charges against Ms. Martin after finding 

that Chinery-Burns and Lee submitted false evidence to the APFA Executive Committee to procure a finding of validity, 

specificity, and timeliness.

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elected to National Office.

Plaintiff was fined by the union in a deliberate attempt to suppress his dissent of the Hedrick 

Administration and any proposed merger.

6

 The Original Petition filed by Diversified Credit, the 

debt collector that sued Ross in Tarrant County Justice Court, Precinct Three on the debt owed 

under the Transition Agreement.7 Nena Martin, a former Board member, was present at the 

relevant Board of Directors meetings and Executive Committee meetings and attests to the 

statements made to the Board of Directors and the Executive Committee.

8

 

A quick comparison of the Confidential Memo and the letter from Erik Harris (current 

APFA National Treasurer) illustrates APFA’s fraudulent conduct.9

 The Martin Affidavit and letter 

from Erik Harris states: 

“. . . we discussed the finding of the APFA Board of Directors that you were 

overpaid in the amount of $5,436.47 in 2018. The Board’s finding was based on 

the results of a review from an independent accounting firm which determined 

that the formula used to determine the daily rate for your sick and vacation payout 

was incorrect.”10

 

Whereas the Confidential Memo clearly states that the payments made to Ross “appear appropriate 

and in compliance with the transition agreement.”11 These two documents illustrate that the

National Officers deliberately concealed the Confidential Memo so that Ross and Vargas could be 

disciplined and portrayed as having breached their fiduciary duties. The letter from Erik Harris 

asserts fraudulent statements relied on by the APFA Board of Directors, the APFA Executive 

6 Docket No. 1, Pl. Original Compl. ¶¶31-33, PAGEID 12-13. 7 Docket No. 1, Pl. Original Compl. ¶¶ 24-25, 31-33, PAGEID 10-13, 33; Certified Copy of Pl.’s Original Petition, Tarrant 

County Justice Court, Precinct Three, JP03-22-D00017757; [Appendix p. 20-23]. 8 Docket No. 1, Pl. Original Compl. ¶¶28-29, PAGEID 11-12; Certified Copy of Pl.’s Original Petition, Tarrant County Justice 

Court, Precinct Three, JP03-22-D00017757; [Appendix p. 20-23]; Aff. of Nena Martin, Email from Erik Harris to Board of 

Directors and Executive Committee [Appendix p. 31-32]. 9 Docket No. 1, Pl. Original Compl. ¶¶22-28, PAGEID 8-10; Aff. of Nena Martin, Email from Erik Harris to Board of Directors 

and Executive Committee [Appendix p. 35]; Pl.’s Original Petition, Tarrant County Justice Court, Precinct Three, JP03-22-

D00017757; [Appendix p. 29]. 10 Docket No. 1, Pl. Original Compl. ¶¶28-29, PAGEID 11-12; Aff. of Nena Martin, Email from Erik Harris to Board of 

Directors and Executive Committee [Appendix p. 35-37]. 11 Docket No. 1, Pl. Original Compl. ¶¶22-27, PAGEID 8-10; Pl.’s Original Petition, Tarrant County Justice Court, Precinct 

Three, JP03-22-D00017757; [Appendix p. 29]. 

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Committee, as well as the arbitrator to issue the award against Ross and Vargas.

12 

APFA’s arbitration hearing denied Ross a fair opportunity to review and contest the 

evidence, to question accusers and witnesses, to object to unreliable and inadmissible evidence, 

and to a fair opportunity to present his case. Consequently, the arbitration resulted in the union’s 

favorable disciplinary award. 

Plaintiff was not provided the safeguards against improper disciplinary action guaranteed

under the LMRDA. Withholding documentation and misrepresenting the factsis an unconscionable

violation to Plaintiff’s right to a fair hearing and goes beyond any rational explanation that could 

meet a reasonableness standard. The result of this conduct is that Plaintiff has been fined, suffered 

reputational damage, credit report damaged, removed from his position on the Board of Directors 

as Base President, and suspended from holding any official APFA position for the remainder of his 

life. Plaintiff seeks to have the disciplinary award vacated, and damages recovered. 

II. ARGUMENTS AND AUTHORITIES

A. Standards For Summary Judgment

Federal Rule of Civil Procedure 56 requires summary judgment be granted only upon 

demonstration by the movant that no dispute exists as to any genuine issue of material fact. Movant

is entitled to judgment as a matter of law when no clear dispute exists.

13 Movant must use the 

documents on record with the court to demonstrate the lack of any genuine issue of material fact.14

When the moving parties argues for summary judgment on an issue for which it carries the burden 

12 Docket No. 1, Pl. Original Compl. ¶¶22-27, PAGEID 8-10; Pl. Original Compl. ¶¶28-29, PAGEID 11-12; Pl.’s Original 

Petition, Tarrant County Justice Court, Precinct Three, JP03-22-DC00017757; [Appendix p. 29]; Aff. of Nena Martin, Email from 

Erik Harris to Board of Directors and Executive Committee [Appendix p. 34-35]. 13 Hunt v. Cromartie, 526 U.S. 541, 552 (1999); Fed. R. Civ. P. 56(c). 14 Celotex Corp., 477 U.S. at 323; Fed. R. Civ. P. 56(c).

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of proof at trial, no material fact dispute as to that issue can exist for the moving party to triumph.

15 

If not, the motion for summary judgment must be denied.

16 In this case at issue, the Defendant, 

APFA, must establish that a valid arbitration agreement existed between the parties to the contract

waiving their right to litigate its claims.

17 

The Court must evaluate a motion for summary judgment through the lens of the nonmoving party by accepting all evidence and assuming all conclusions in the non-moving party’s 

favor.18 In other words, the Court must give credence to evidence favoring the non-moving party 

and require the moving party’s offer unquestionably reliable evidence. 

B. The Threshold Issue: 

Timeline of Important Events

Date Union Conduct

9/24/2019 - 1st Charges against Eugenio Vargas

10/22/2020 Email from APFA Accountant Hal O’Neil to APFA National 

Treasurer Erik Harris with Confidential Memo: Erik Harris 

receives email and Confidential Memo that absolves Ross from any 

over-payment of wages under the Transition Agreement.

11/24/2020 - 2nd Charges against Eugenio Vargas

12/1/2020 - Harris conceals Confidential Memo but presents APFA 

accountant’s spreadsheets of Ross Administration’s 

overpayments to the Executive Committee. 

- Executive Committee reviews and votes in favor of charges 

against Ross and Vargas, without ever seeing concealed

Confidential Memo. 

04/20/2022 - Robert “Bob” Ross files lawsuit against Julie Hedrick, Erik 

Harris, and APFA.

- Harris Forwards Hal O’Neil’s email containing concealed 

Confidential Memo to the National Officers and Margot 

Nikitas (APFA in-house counsel)

03/24/2022 - APFA releases email Hotline to the entire APFA 

membership announcing Ross and Vargas’s awards for the 

first time in union history, congratulating Chinery and Lee 

for their pursuits.

15 Rizzo v. Children's World Learning Ctrs., Inc., 84 F.3d 758, 762 (5th Cir. 1996); Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 

618 (5th Cir. 1994).

16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Burge v. Parish of St. Tammany, 187 F.3d 452, 465 (5th Cir. 1999). 17 9 U.S.C. § 6. 18 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Taita Chem. Co., Ltd. v. Westlake Styrene 

Corp., 246 F.3d 377, 385 (5th Cir. 2001).

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The threshold issue related to those claims asserted by either Plaintiff or Defendant rest on 

one question: Does the National Treasurer’s concealment of the Confidential Memo from either 

the Executive Committee reviewing Plaintiff’s charges, or the Arbitrator in Plaintiff’s Disciplinary 

Hearing violate Plaintiff’s due process rights? Plaintiff is guaranteed the right to due process under 

the APFA Const. II, Sec. 3D, like federal law.19 Plaintiff contends that his due process rights have 

been violated based on misrepresentations by Erik Harris, APFA National Treasurer. This denial 

of due process is a breach of the union constitution. Consequently, enforcement of an ill-gotten 

disciplinary award is not appropriate. 

C. APFA’s Arbitration is a Disciplinary Procedure—wherein fraudulent statements 

were made to procure the votes to discipline Plaintiff. 

(1) Defendant’s causes of action are not subject to enforcement due to coercion and fraud.

Defendant agrees that the Union Constitution is considered a collective bargaining 

agreement for which arbitration should be enforced and granted judicial deference.20 The Supreme 

Court has traditionally held that where members conduct gives rise to fines or discipline, the courts 

will not enforce the fines if the members felt coerced or restrained in their conduct.21 

Here, Plaintiff was coerced in light of the misrepresentations portrayed to the Plaintiff and 

the union.22 The email from Hal O’Neil (APFA Accountant) to Erik Harris (APFA National 

Treasurer) shows imputed notice to the union through delivery of documents to a union national 

19 APFA Const. Art. II Sec. 3D [:Appendix p. 43]. 20 45 USC Ch. 8, Sec. 157. 21 The Supreme Court held that the use of NLRA § 8(b)(1)(A) to impose union fines may not “restrain or coerce” the fined 

worker in regards to the meaning within the Act. NLRB v. Allis-Chalmers Mfg. Co., 388 US 175 (1967). Thereafter, the Supreme 

Court explained that “. . .. the basis of its holding in Allis-Chalmers was that Section 8(b)(1)(A) was ‘not intended by Congress to 

apply to the imposition by the union of fines not affecting the employer-employee relationship and not otherwise prohibited by 

the Act." National Labor Relations Board v. Boeing Co., 412 U.S. 67, 73, 93 S.Ct. 1952, 1956, 36 L.Ed.2d 752. Where, as here, 

Congress granted express protection to the employer-representative relationship it cannot be said that Congress intended to leave 

the union as free to discipline its members as it did in enacting Section 8(b)(1)(A). 22 See Email from Hal O’Neil to Erik Harris on October 22, 2020, [Appendix p. 1-15]; Martin’s Affidavit [Appendix p. 31-39]. 

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officer. The Confidential Memo from Hal O’Neil was delivered to Erik Harris on October 22, 

2020. Thereafter, APFA continued to assert that Ross was overpaid under the Transition 

Agreement but simply refused to pay it back.23 Harris was present at the Executive Committee 

meeting on December 1, 2020 where the Ross and Vargas charges were reviewed by the Executive 

Committee in compliance to the APFA Const. Art. VII Sec. 3A and B.

24 The Martin Affidavit 

shows that the National Treasurer never disclosed the Confidential Memo at either Ross’s or 

Vargas’s review of charges and the Executive Committee resolutions show that Harris was present, 

seconded the resolution, and voted in favor of pursing disciplinary proceedings.25 

Plaintiff’s motion to vacate the arbitration award was in compliance with the union 

disciplinary procedures outlined in the APFA Const. Art. VII. The American Arbitration 

Association’s guidance on challenging an arbitration award states “If a party to an arbitration 

wishes to challenge an award for any reason, they need to make an application [or motion] to a 

court. . .”26 As previously recognized by Defendants, APFA Arbitration procedures in the APFA 

Cosnt. Art. VII complies with the AAA’s arbitration standards; therefore Plaintiff followed the 

guidance of the AAA and filed a motion to vacate the arbitration award due to the due process 

violations outlined in the Federal Arbitration Act, 9 U.S.C. § 10.27

Plaintiff’s attempt to enforce the union’s fine directly conflicts AAA guidance and violates 

the APFA Const. for due process as the National Treasurer misrepresented the facts to the APFA 

Board of Director’s and the APFA Executive Committee which caused many to vote for that these 

23 See Email from Hal O’Neil to Erik Harris on October 22, 2020, [Appendix p. 1-2]; Martin’s Affidavit [Appendix p. 31-39]. 24 See APFA Executive Committee Resolutions December 1-2, 2020, [Appendix p. 118-123]. 25 See APFA Executive Committee Resolutions December 1-2, 2020, [Appendix p. 118-123]. 26 American Arbitration Association; Challenges to an Arbitration Award; [Appendix p. 55]. 27 Def. Answer and Counterclaims filed as Docket No. 8, ¶20, PAGEID 113, on Case No. 4:22-cv-00343-Y case, and AAA, 

Challenges to an Arbitration Award; [Appendix p. 55]. 

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charges were valid, timely, and specific.

28 In reality, Plaintiff’s due process rights were violated 

under the APFA Const. Art. II, Sec. 3D, and that the votes by the Executive Committee were 

illegally procured.

29 

D. Disputed Facts: Arbitration in accordance with APFA Constitution. 

Despite this obvious problem with Defendant’s summary judgment motion, the union 

framed many factual contentions as “undisputed,” that were, and continue to be, contested by the 

Plaintiff. Plaintiff contests Defendant’s assertion of the following material facts. 

(1) Charges were brought against Plaintiff in accordance with the APFA Constitution;30

(2) The Arbitrator was impartial;31

(3) The Arbitrator acted within his jurisdictional authority;32 

(4) Internal union charges were filed against Ross alleging serious acts of financial 

misconduct;33 

(5) APFA was not a party to the arbitration.34 

Defendant fails to address Plaintiff’s primary allegation—Defendants fraudulent 

misrepresented evidence to the APFA Board of Directors, APFA Executive Committee, and 

interfered throughout the union disciplinary hearings which violated Plaintiff’s due process 

rights.35 Defendant fails to address Harris’s actions, witness intimidation, and defiance of legally 

28 45 USC Ch. 8, Sec. 157. 29 APFA Const. Art. VII, [Appendix p. 43]. 30 Docket No. 43, Def. Br. in Support of Mot. for Summ. J., PAGEID 1085. 31 Docket No. 43, Def. Br. in Support of Mot. for Summ. J., PAGEID 1085. 32 Docket No. 43, Def. Br. in Support of Mot. for Summ. J., PAGEID 1085. 33 Docket No. 43, Def. Br. in Support of Mot. for Summ. J., PAGEID 1085. 34 Docket No. 43, Def. Br. in Support of Mot. for Summ. J., PAGEID 1085. 35 Docket No. 1, Pl. Original Compl, ¶ 37-44 PAGEID 9-10,; Docket No. 41; Pl. 2cd Am. Resp. to Def. Mtn to Dismiss, 

PAGEID 2551; See Email from Hal O’Neil to Erik Harris on October 22, 2020, [Appendix p. 1-15]; Martin’s Affidavit 

[Appendix p. 31-39]. 

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issued subpoenas.36 Fraud is not tolerated in union disciplinary actions—so without addressing the 

Plaintiff’s claims of fraud, Defendant’s summary judgment arguments are moot. 

1) Disputed Fact: Charges were brought against Plaintiff in accordance with the APFA 

Constitution. 

Defendant asserts that the charges for financial misconduct were bought against Plaintiff 

in accordance with APFA Constitution. However, the charges brought against the Plaintiff were 

well outside the 60-day window as required by the APFA Const. Art. VII Sect. 2(D)(1).37 The 

evidence illustrates that Melissa Chinery had gained access and viewed the Plaintiff’s financial 

documents as early as July 11, 2019, well before the September, 2020 date asserted as the date she 

discovered the financial documents.38 Furthermore, charges brought in violation of the APFA 

Const. Art. VII, Section 3 (B) should be dismissed without appeal. 39

The timing is quite revealing: two differences exist between the Executive Committee’s 

review of the first set of charges and the second charges against Plaintiff. First, a new leadership 

was voted into office as of April, 2020. Second, Hal O’Neil emailed the spreadsheets and the 

36 Docket No. 1, Pl. Original Compl, ¶ 37-44 PAGEID 9-10,; Docket No. 41; Pl. 2cd Am. Resp. to Def. Mtn to Dismiss, 

PAGEID 2551; See Email from Hal O’Neil to Erik Harris on October 22, 2020, [Appendix p. 1-15]; Martin’s Affidavit 

[Appendix p. 31-39]. 37 Docket No. 1, Pl. Original Compl. ¶ 18, 39-42, 66, pg ID 6-7,16-18, 20; Chinery-Burns Correspondence, Appendix p. 71-73. 

The Correspondence clearly shows Chinery-Burns and Lee knew about the alleged conduct of the Ross Administration as early 

as July 21, 2019 when she was posting about this online. 38 Docket No. 1, Pl. Original Compl. ¶ 18, 39-42, 66, PAGEID 6-7,16-18, 20; Transcript of Ross Arbitration, Appendix p. 63-70; 

(These transcripts clearly lay out the disorderly state of the APFA financial records, and Bob Ross’s objections to admission of 

these documents based on inaccuracy. The Arbitrator lied to him by saying that the documents were not admitted for the truth of 

the matter asserted, rather admitted to illustrate Harris’s document response to the subpoena—a direct misrepresentation of the 

purpose of admitting these records). Chinery-Burns Correspondence, Appendix p. 76-100; APFA Const. Art. 7, Sec. 3(B), 

[Appendix p. 52-53]. (It should be noted that on prior to April 1, 2020, Lori Bassani’s Administration held office: Craig Gunter 

was the APFA Treasurer. In the emails, Melissa Chinery is seen inundating the union with demands for confidential pay 

information, and her email is melchinery@XXX.com; Mark Richards is the former APFA counsel that negotiated the Ross 

Transition Agreement, Michelle Hussard works for the Department of Labor) (these documents clearly illustrate that ChineryBurns and Lee clearly knew or should have known of the facts and information well over the 60-day time limit as required by the 

APFA Const. Art. 7 Sec. 3(B).). 39 Docket No. 1, Pl. Original Compl. ¶ 38-42, 66, PAGEID 6-7, 13-14, 16-18, 20; APFA Const. Art. 7, Sec. 3(B); Appendix p. 

52-53. This was plead in the original petition—the charges were untimely as outlined in Art. 7 Sec. 2(D), and this issue was 

asserted multiple times, however due to his inability to appear at the APFA Executive Committee hearing on his charges for lack 

of proper notice, and the Arbitrator, who overruled and found the charges as timely filed—this matter was unappealable under the 

APFA Const. Art. 7, Sec. 3(B)). Technically, any charges untimely filed are to be dismissed without appeal under Art. 7 Sec. 

3(B). 

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Confidential Memo to Erik Harris on October 22, 2020 spreadsheets were procured by Erik Harris, 

and he used these to convince the Executive Committee to vote for the charges. This evidences 

the APFA Const. Art. II, Sec. 3D violations in the procedures followed to pursue discipline of

Plaintiff. 

2) Disputed Fact: The Arbitrator was impartial. 

Defendant further contend that the Arbitration was impartial and unbiased upon being 

chosen to preside of Plaintiff’s case. The same arbitrator that presided over Eugenio Vargas’s 

internal dispute proceedings also presided over the Plaintiffs internal dispute proceedings. Thus, 

he has viewed and ruled on other related matters and seen evidence that would not otherwise have 

been submitted in this hearing. The Arbitrator further demanded witnesses testify in person—a 

move particularly concerning during the rise of the COVID-19 Delta Variant. The Arbitrator has 

relationships with other individuals within and outside the union that would illustrate that he could 

be partial based on the contacts he has. Finally, a review of the hearing transcripts will show the 

conduct of the Arbitrator was grossly partial in favor of the charging party.40 Plaintiff received 

only 2 hours and 51 minutes to present his evidence and witnesses, whereas the charging party 

received 9 hours and 23 minutes. 41 The disparity is clear.42 

3) Disputed Fact: The Arbitrator acted within his jurisdictional authority. 

Defendant also contends that Plaintiff does not dispute the Arbitrator acted within his 

authority—this is not accurate. The Arbitrator’s award states that the Plaintiff “breached his 

40 Transcript of Ross Arbitration, [Appendix p. 56-59, 70-74] (The disciplinary hearings all began promptly at 8:00am each 

morning. The Records here reflect the time periods that Chinery-Burns and Lee received their time to present their case: from 

8:00am until 9:53am on day 1; from 8:00am until 4:22pm on day 2; and 8:00am until 10:08am on day 3). 41 Docket No. 1, Pl. Original Compl. ¶ 38-42, 66, PAGEID 6-7, 13-14, 16-18, 20; Transcript of Ross Arbitration, [Appendix p. 

56-59, 70-74]. 42Transcript of Ross Arbitration, [Appendix p. 56-59, 70-74]. 

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fiduciary duty. . . “ however the charges asserted are only those under APFA Const. Art. 7, Sec. 

2(F) for a willful violation of the Constitution and/or Policy.43 From there the charging party lists 

off one section of the Constitution, and multiple policies that Plaintiff allegedly violated.44 The

Arbitrator frames the question posed to him in the award: “Did Bob Ross, the Defendent [sic] 

herein violate the APFA Policy Manual and the APFA Constitution by engaging in malfeasance, 

fraud, misappropriation of funds while he was in office during the term of April 1, 2016 to March 

2, 2018. If so, what shall be the appropriate remedy?”45 The Arbitrator is not allowed to find a 

breach of a fiduciary duty as this is a civil claim that the Plaintiff caused the Union to violate its 

legal obligations, and thus must be pursued in court.

46 

Furthermore, the charges were brought beyond the 60-day timeliness requirement under 

APFA’s Constitution.

47 Failing to dismiss these claims based on the expiration of the timeliness 

requirement means the Arbitrator did not have authority to hear these charges. The Defendant 

utilizes Plaintiff’s Arbitration Brief to support this contention, however this Plaintiff drafted and 

submitted the Arbitration Brief well before the award was issued, and the fraud was uncovered. 

The arbitration award went well beyond the scope of the Arbitrator’s authority.

The arbitration award further states that “[t]he arbitrator finds that throughout this 

proceeding, Defendant Ross intentionally and willfully ignored the provisions of the APFA Policy 

Manual and thus, violated and abused his fiduciary duty entrusted to him by the APFA 

membership.”48 

43 Docket No. 1, Pl. Original Compl. ¶ 38-42, 66, PAGEID 6-7, 13-14, 16-18, 20; APFA Const. Art. 7, Sec. 3(B); [Appendix p. 

52-53]. 44 Docket No. 1, Pl. Original Compl. ¶ 38-42, 66, PAGEID 6-7, 13-14, 16-18, 20; APFA Const. Art. 7, Sec. 3(B); [Appendix p. 

52-53]. 45 Docket No. 1, Pl. Original Compl. Paragraph “The Issues”, PAGE ID 36; Ross Arbitration Award, Issued March 19, 2022. 46 APFA Const. Art. VII, Section 2(D)(2) [Appendix p. 51-54]. 47 Docket No. 1, Pl. Original Compl. ¶ 39-42, 66, pg ID 6-7, 13-14, 16-18, 20; APFA Const. Art. 7, Sec. 3(B); [Appendix p. 51-

53]. 48 Docket No. 1, Pl. Original Compl. ¶ 33-36, PAGEID 13-15; Ross Arbitration Award, Issued March 19, 2022. 

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4) Disputed Fact: Internal union charges were filed against Ross alleging serious acts 

of financial misconduct. 

Defendant states that there is no contested issue regarding the union charges against 

Plaintiff for serious acts of financial misconduct. This, again, improperly phrases the charges 

asserted in the arbitration. The arbitration charges only assert that Plaintiff willfully violated the 

Union Constitution and Policy.

49 Therefore, any claim that Plaintiff violated his breach of 

fiduciary duty, misappropriated funds, stole, committed acts of financial misconduct is well 

outside the scope of the charges asserted. 

5) Disputed Fact: APFA was not a party to the arbitration.

Finally, Defendant states that the Union was not a party to the arbitration hearing. In fact, 

Plaintiff asserted in its original complaint that Melissa Chinery and Sandra Lee acted on behalf of 

the union, as a whole and in a representative capacity.

50 Furthermore, Plaintiff argued that APFA 

conducted the arbitration, as is the responsibility of the National Secretary and the National 

Treasurer.51 

Finally, this is not conduct isolated to only Chinery and Lee, as evidenced by the email 

received by Erik Harris. It is undeniable that he received this email on October 22, 2020, and 

clearly failed to forward this email until two years later to the rest of the union.52 This indicates a 

national officer concealed these documents to achieve the votes on the Executive Committee 

49 Docket No. 1, Pl. Original Compl. ¶ 33-36, PAGEID 13-15; Chinery-Burns and Lee Charges, [Appendix p. 86-87]. This

indicates the charges were filed November 24, 2020—which means any information discovered 60 days prior to this date are 

subject to arbitration and filing charges—however the email exchange clearly shows she had this information over a year prior to 

this date. 

50 Docket No. 1, Pl. Original Compl. ¶ 17-18, PAGE ID 6-7; Docket No. 41, Pl. Am. Response to Def. Mtn to Dismiss, PAGE ID 

1045-1046. 

51 Docket No. 1, Pl. Original Compl. ¶ 60-66, PAGE ID 19-20; Docket No. 41, Pl. Am. Response to Def. Mtn to Dismiss, PAGE 

ID 1045-1046. 52 Email to and from Erik Harris, [Appendix p. 1-15] (in particular, the court should note that the concealed documents were 

emailed directly to the APFA Treasurer over a month prior to charges being filed against Plaintiff, and that these documents are 

shown to have been sent to all union officers and the former counsel of record for the union—Margot Nikitas. 

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necessary to discipline the Plaintiff.53 

E. Defendant’s Breach of Fiduciary Duty Claims

Defendant asserts claims for breach of fiduciary duty under both LMRDA § 501 as well as 

under Texas Common Law. Though Defendant did not file its motion for summary judgment as 

a partial summary judgment, Plaintiff will address the deficiencies with the Fiduciary Duty claims 

regardless. Defendant failed to adequately substantiate the “good cause” requirement in its initial 

pleading list the elements of these claims within the Brief filed in support of the summary 

judgment. Plaintiff will address both claims as a result. 

 The claim for a breach of fiduciary duty under LMRDA § 501(b) provides only a claim 

on behalf of the members and not the union54, nor can Defendant recover on both claims, as they 

are duplicative in nature—recovery can only be obtained under the Texas common law claim for 

breach of fiduciary duty.55 Furthermore, the “good claim” requirement is not substantiated in the 

initial counterclaim.56 Therefore, Plaintiff will isolate its arguments to only Defendant’s common 

law cause of action for breach of fiduciary duty. 

53 Email to and from Erik Harris, [Appendix p. 1-15] (in particular, the court should note that the concealed documents were 

emailed directly to the APFA Treasurer over a month prior to charges being filed against Plaintiff, and that these documents are 

shown to have been sent to all union officers and the former counsel of record for the union—Margot Nikitas. 54 Int'l Bhd. of Teamsters Local 651 v. Philbeck, 423 F.Supp.3d 364 (E.D. Ky. 2019) (“There is a circuit split regarding whether § 

501 of the LMRDA provides a union with a federal cause of action against a union official for breach of a fiduciary duty). 

(Compare Building Material and Dump Truck Drivers, Local 420 v. Traweek, 867 F.2d 500 (9th Cir. 1989) (finding no implied 

cause of action), with International Union Pacific Operating Eng. v. Ward, 563 F.3d 276 (7th Cir. 2009); International Union of 

Electronic, Electrical, Salaried, Machine & Furniture Workers, AFL-CIO v. Statham , 97 F.3d 1416 (11th Cir. 1996) (finding an 

implied cause of action); Int'l Union, Sec. Police & Fire Professionals of Am. v. Faye , 828 F.3d 969, 975 (D.C. Cir. 

2016). (concluding that the union is a proper plaintiff under § 501 ). (The Supreme Court has acknowledged the split of authority 

but declined to resolve the issue. . . . The Ninth Circuit interpreted § 501 to mean that suits are available to individual members of 

the union, not the union itself. Traweek , 867 F.2d at 506-07. The court explained that federal jurisdictional statutes should be 

construed narrowly and there is a "federal policy of noninterference in the internal affairs of unions and labor matters.") 55 See Kovach v. Serv. Pers. & Emps. of the Dairy Indus., 58 F.Supp.3d 469 (W.D. Pa. 2014); Hoffman v. Kramer, 362 F.3d 308 

(5th Cir. 2004). 56 See Hoffman v. Kramer, 362 F.3d 308 at 319; (5th Cir. Held that “in order to establish good cause, we have today held that a 

plaintiff must: First, allege misconduct that directly implicates the fiduciary duties enumerated in § 501(a); second, show that the 

remedies sought would realistically benefit the union and/or the membership of the union; third, plausibly allege facts supporting 

a conclusion that the breaches of § 501 were presented to the union; fourth, make a showing that the union's refusal to act was 

objectively unreasonable in the ways we have described; and, finally, convince the court that some evidence exists, disputed or 

not, that will support the claims of a breach of fiduciary duties under § 501(a)”.)

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Under Texas law, the elements of a claim for breach of fiduciary duty are: 1) there is 

fiduciary relationship between the plaintiff and defendant; 2) the defendant breached his fiduciary 

duty to the plaintiff; and 3) the defendant's breach proximately caused injury to the plaintiff or 

benefit to the defendant.57 

Plaintiff was charged and disciplinary hearings were conducted in which the evidence was 

concealed and falsified.58 The falsified documents from the accounting firm, and are all 

inadmissible evidence to support a finding that Plaintiff breached his fiduciary duty.59 

Furthermore, Plaintiff was not entitled to question the most pertinent witness to his case—the 

APFA National Treasurer—due to the interruption and interference of the Arbitrator.60 

Consequently, denial of the motion for summary judgment should be granted based upon the fact 

that no evidence was admitted to support the charges. 

(1) Plaintiff owed no fiduciary duty after the date of April 2, 2018 

 

Plaintiff’s Transition Agreement was signed on March 1, 2018, and his last day in office 

was on April 2, 2018.

61 Consequently any payments made under the Transition Agreement would 

have been outside the time-period that Ross owed a fiduciary duty to the union.

62 Furthermore, 

57 Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App.- Dallas 2006, pet. denied). 58 Docket No. 1, Pl. Original Compl. ¶ 22-27, 28-29, PAGEID 8-10, 11-12; See Email from Hal O’Neil to Erik Harris on October 

22, 2020, [Appendix p. 1-15]; Martin’s Affidavit [Appendix p. 31-39]; Pl.’s Original Petition, Tarrant County Justice Court, 

Precinct Three, JP03-22-D00017757; [Appendix p. 29]; Email to and from Erik Harris, [Appendix p. 1-15] (in particular, the 

court should note that the concealed documents were emailed directly to the APFA Treasurer over a month prior to charges being 

filed against Plaintiff, and that these documents are shown to have been sent to all union officers and the former counsel of record 

for the union—Margot Nikitas. 59 Docket No. 1, Pl. Original Compl. ¶ 22-27, 28-29, PAGE ID 8-10, 11-12; Affidavit of Nena Martin, Email from Erik Harris to 

Board of Directors and Executive Committee [Appendix p. 31-39]; Pl.’s Original Petition, Tarrant County Justice Court, Precinct 

Three, JP03-22-D00017757; [Appendix p. 29]; Email to and from Erik Harris, [Appendix p. 1-15] (in particular, the court should 

note that the concealed documents were emailed directly to the APFA Treasurer over a month prior to charges being filed against 

Plaintiff, and that these documents are shown to have been sent to all union officers and the former counsel of record for the 

union—Margot Nikitas. 60 Docket No. 1, Pl. Original Compl., ¶ 35, PAGEID 14. 61 Docket No. 1, Pl. Original Compl. ¶ 16, PAGEID 6; Docket No. 8, Def. Answer and Counterclaim, ¶16, PAGEID 81; See 

Email from Hal O’Neil to Erik Harris on October 22, 2020, [Appendix p. 1-15]. 62 Docket No. 1, Pl. Original Compl. ¶ 22-27, 28-29, PAGEID 8-10, 11-12; See Email from Hal O’Neil to Erik Harris on October 

22, 2020, [Appendix p. 1-15]. 

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none of the facts asserted, or evidence attached to Defendant’s Brief in support of its Motion for 

Summary Judgment illustrate a finding that there was a fiduciary duty, that the conduct of Plaintiff 

breached that duty, and caused Defendant to suffer damages. 

 

(2) Defendant asserts that hearsay evidence admitted in the arbitration as indicative of 

Plaintiff’s breach of fiduciary duty.

In fact, the evidence submitted at the arbitration was entirely unreliable.63 The APFA 

Treasurer’s, Erik Harris (“Harris”), testifies that the financial records are disorganized and not 

maintained.

64 Harris states that the financial records were in disarray and that he was not always 

present at the time the charging parties inspected the documents.65 He also testifies there were 

many documents that he could not find amidst the financial records, further indicating the 

unreliability of the documents.

66 Plaintiff objects to the admittance of these records as they are 

unreliable, and the Arbitrator immediately goes off the record.67 When he comes back on the 

record, the Arbitrator coerces Plaintiff to waive his objections by telling Plaintiff:

“I hear your concern, but all we’re—we’re—we’re accepting this for the reason 

that he [Harris]—he complied with the subpoena and that’s what these documents 

are, nothing else. We’re not saying that they’re true, correct or whatever, we’re 

just submitting it in based upon the duces tecum. Okay? Okay. It’s—do you still 

have any objection?”68

Plaintiff reluctantly waives his objections, so as not to offend the Arbitrator and after being 

told the financial documents will not be admitted for the truth of the matter asserted.

69 Whereas 

63 Transcript of Ross Arbitration, [Appendix p. 63-66] (Harris testifies to the fact that the APFA financial records were in 

disarray, thus indicating that these documents were not maintained according to union-policy and standard record-keeping 

methods.) 

64 Transcript of Ross Arbitration, [Appendix p. 63-66]. 65 Transcript of Ross Arbitration, [Appendix p. 64]. (Harris states that he is not present with the charging parties each time they 

inspect the documents, giving them ample opportunity to plant, take, or supplement evidence—as was the case in the Moyer 

arbitration where a false copy of the Transition Agreement was the basis of the charges asserted against the APFA Board of 

Directors for offering Ross his Transition Agreement—charges were dismissed by the arbitrator on this falsified documentation). 66 Transcript of Ross Arbitration, [Appendix p. 64]. 67 Transcript of Ross Arbitration, [Appendix p. 67-69]. 68 Transcript of Ross Arbitration, [Appendix p. 69]. 69 Transcript of Ross Arbitration, [Appendix p. 69]. 

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this is exactly what the Arbitration Award does, it accepts the financial documents as evidence that

the charges were made and valid.

70 This exchange proves that the evidence for which the 

Arbitrator relied on, for which the Defendant’s assert as summary judgment evidence that Plaintiff

breached his duty and proximately caused the damages, is unreliable and inadmissible evidence to 

support the claim asserted. This testimony exemplifies the nature of this “kangaroo court,” the 

clear undeniable unreliability of the evidence, and exposes the Arbitrator’s partial and 

inappropriate conduct—thus illustrating a disputed issue of material fact exists. 

III. CONCLUSION AND PRAYER

For the reasons state herein, Plaintiff requests that the Court deny Defendant’s Motion for 

Summary Judgment and grant Plaintiff’s Claims for Relief.

Respectfully submitted,

K.D. PHILLIPS LAW FIRM, PLLC

By: /s/ Kerri Phillips

Kerri Phillips

Texas Bar No. 24065906 

Phone: (972) 327-5800 

Email: kerri@KDphillipslaw.com

By: /s/ Heather Abreu

Heather Abreu

Texas Bar No. 24122577 

Phone: (972) 327-5800 

Email: heather@KDphillipslaw.com

5700 Tennyson Parkway, Suite 300

Plano, Texas 75024 

Fax: (940) 400-0089

For Service of Filings: 

notice@KDphillipslaw.com

ATTORNEYS FOR PLAINTIFF

70 Docket No. 1, Pl. Original Compl. ¶36, PAGE ID 14-15, 55-57, Ross Arbitration Award, Issued March 19, 2022.

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CERTIFICATE OF SERVICE

I certify that true and correct copy of this document was sent to all counsel of record, 

hereunder listed via ECF Filing on this the 1st day of November 2022. 

William Osborne, Sanford Denison, Michael Rake

/s/Kerri Phillips 

Kerri Phillips

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