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AppIN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT “BOB” ROSS AND 

EUGENIO VARGAS

Plaintiffs/Counterclaim Defendants,

v.

ASSOCIATION OF PROFESSIONAL FLIGHT 

ATTENDANTS, et al., 

Defendants/Counterclaim Plaintiffs.

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Civil Action No. 4:22-cv-343-Y 

Consolidated with 

Civil Action No. 4:22-cv-430-Y 

Judge Terry R. Means

BRIEF IN SUPPORT OF PLAINTIFFS’ RESPONSE AND OBJECTIONS TO DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT

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Table of Contents

I. Introduction ........................................................................................................................................................... 1

II. Plaintiffs Object to Defendants’ Inadmissible Summary Judgment Evidence........................................................ 2

A. Hal O’Neil’s Declaration, Accounting Review and Cornwall Jackson Accounting Review are summations of 

evidence based on inadmissible evidence by witness not designated as experts...................................................10

III. Facts..............................................................................................................................................................12

1) Ross’ Administration’s Arbitration Hearings: .............................................................................................21

IV. As a matter of law, the plaintiffs assert that the defendants’ motion for Summary Judgment against Ross 

and Vargas for Breach of Fiduciary Duty should be denied. ........................................................................................17

A. Defendants have no evidence Plaintiffs violated their fiduciary duty. ............................................................19

B. Defendants claim that the union suffered no damages between 2018-2022. ................................................21

C. Defendants fail to prove the equitable doctrine of laches applies to their breach of fiduciary duty claims.....25

V. Ross has a valid claim for breach of Contract against APFA. .............................................................................26

A. The plain language within the four corners of the Transition Agreement does not incorporate the APFA 

Constitution and Policy. ...........................................................................................................................................26

VI. Plaintiffs Breach of Union Constitution claims substantiate violations of their due process rights. ................29

VII. Plaintiffs assert valid claims under LMRDA §§ 411(a)(2), 411(a)(5), and 529 against APFA. .......................31

A. 29 U.S.C. § 529 Retaliation or Otherwise Disciplined:...................................................................................31

B. LMRDA: Due Process Violation and Breach of Union Constitution: ..............................................................32

1) APFA Constitution and Policy: We allege that the Article VII Disciplinary Arbitration provisions have been 

violated................................................................................................................................................................33

2) Defendants Altered Evidence by Withholding parts of An Accounting Document That Refuted 

Defendant’s Disciplinary Accusations..................................................................................................................34

3) The Plaintiffs, including Mr. Ross, were deprived of proportionate time. ..................................................35

4) The Plaintiffs, including Mr. Ross, were prevented from presenting evidence and from cross-examining 

witnesses. ...........................................................................................................................................................36

C. Plaintiffs’ Rights Under the LMRDA of Free Speech were Violated...............................................................38

5) Facts showing defendants stifled Free Speech ........................................................................................40

VIII. Plaintiffs can substantiate claims for Common Law Fraud and Defamation ..................................................41

1) Vargas is entitled to recover for common law fraud from APFA, Julie Hedrick, and Erik Harris, jointly and 

severally. .............................................................................................................................................................41

2) Ross is entitled to recover for defamation against APFA, Julie Hedrick, and Erik Harris, jointly and 

severally. .............................................................................................................................................................44

IX. Conclusion and Prayer ..................................................................................................................................47

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Table of Authorities

Cases

Federal

(Stewart v. Int'l Ass'n of Machinists & Aerospace Workers, 16 F.Supp.3d 783 (S.D. Tex. 2014)...............25

Adams-Lundy v. APFA, 731 F.2d 1154 (5th Cir.1984)................................................................31,39 

Adams-Lundy v. A.P.F.A, 792 F.2d 1368 (5th Cir. 1986) .................................................................18 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)................................................... ...........19

Boggan v. Data Systems Network Corp., 969 F.2d 149-153 (5th Cir. 1992) ............................... .........41

Booker v. Real Homes, Inc., 103 S.W.3d 487, 492 (Tex.App. — San Antonio 2003, pet. denied) ............ 28

Carr v. ALPA, 866 F. 3d 597, 603 (5th Cir. 2017) .........................................................................29

Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 ..........................................................25 

Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex. 1941) .................................................27 

DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005) ............................................................2 

Encompass Office Solutions, Inc. v. Ingenix, Inc., 775 F. Supp. 2d 938 (E.D. Tex. 2011).......................45

Frye v. United Steelworkers, 767 F.2d 1216 (7th Cir 1985)...............................................................33

Hoffman v. Kramer, 362 F.3d 308 (5th Cir. 2004)................................................. ........................ 32

IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016)..........................29

In re Bank of America, N.A., 278 S.W.3d 342, 346 (Tex.2009). ......................................................27 

In re Bank of America, N.A., 278 S.W.3d 342, 346 (Tex.2009). .......................................................27 

Int’l Bhd. of Boilermakers v. Hardeman, 401 U.S. 233 (1971)............................................ ..............27

Jenkins v. C.R.E.S. Mgmt., LLC, 881 F.3d 753, 756 (5th Cir. 2016)....................................................19

JP Morgan Chase Bank, N.A. v. Classic Home Fin., Inc., No. 12-20363 (5th Cir. Dec 09, 2013).............. 3 

Laughlin Prods., Inc. v. ETS, Inc., 257 F.Supp.2d 863, 866 (N.D. Tex. 2002) ......................................17 

Loc. 911 v. United Food $ Com. Workers Int'l, 301 F.3d 468, 475 (6th Cir.2002))

..............................................32

Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 509 1015, 121 S.Ct. 1724, 149 L.Ed.2d 740 

(2001).................. ..................................................................................................................6 

Case 4:22-cv-00343-Y Document 246 Filed 05/24/24 Page 3 of 54 PageID 7758
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Mallick v. International Broth. of Elec. Workers, 749 F.2d 771 (D.C. Cir. 1984)).................................29 

Martin v. Loc. 556, Transp. Workers Union (N.D. Tex. May 19, 2016)......................................27, 33, 38

Martin v. Loc. 556, Transp. Workers Union of Am., 206 F.Supp.3d 1227.................................... .........14 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986) .................................17 

Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 470-71 (5th Cir. 2006) ..........................................23

Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 470-71 (5th Cir. 2006) (citing 15 U.S.C. § 1681h(e)) ...45

Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 596 (5th Cir. 2007)..........................................28 

Newell v. IBEW, 789 F.2d 1186, 1189 (5th Cir. 1986) ...................................................................29 

O’Neil v. ALPA, 939 F. 2d 1199, 1206 (5th Cir. 1991)....................................................................29 

PNC Bank v. Ruiz, 22-50584, p. 6-7 (5th Cir. May 10, 2023).................................. ...........................2 

Ray v. Young, 753 F.2d 386 (5th Cir.1985)..............................................................................19, 21 

Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L, 8 (N.D. Tex. Feb 17, 2016) ...........44

State Booker v. Real Homes, Inc., 103 S.W.3d 487 (Tex.App. — San Antonio 2003, pet. denied) ...........27

Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960).................................................27

Sullivan v. Smith, 110 S.W.3d 545, 546 (Tex. App. – Beaumont 2003, no pet.) ...................................26 

Taita Chem. Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001). ...........................17 

Tex. Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F. 3d 644, 650 (5th Cir. 2001)................................41

United Food & Com. Workers Int’l Union Loc. 911 v. 

United Food & Com. Workers Int’l, 301 F.3d 468 (6th Cir

(2002).......................................................33 

United Paperworkers Internat'l v. Misco, 484 U.S. 29 (1987)........................................................ 1, 6

United States v. Box, 50 F.3d 345, 356 (5th Cir. 1995) ....................................................................2 

United States v. Int'l Bhd. of Teamsters, 247 F.3d 370 (2d Cir. 2001).................................................33 

United Steel Workers Loc. 12-369 v. United Steel Workers Int’l, 728 F3d 1107 (9th Cir. 2013) .............. 31

Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988).......................................................................27 

Wilmington Sav. Fund Soc'y FSB v. Hutchins, 21-2094 (10th Cir. Apr 12, 2022).....................................1

Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991). ....................................................3 

Wooddell v. International Brotherhood of Electrical Workers, Local 71, 502 U.S. 93, 112 S.Ct. 494, 116 

L.Ed.2d 419 (1991)................................................................................................................44

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Wooddell v. International Brotherhood of Electrical Workers, Local 71, 502 U.S. 

93(1991).............................29

Wooddell v. International Brotherhood of Electrical Workers, Local 71, 502 U.S. 93

(1991)................................30

Statutes

Federal

29 U.S.C. §101(a)(5)................................................................................................................... 23, 27, 28

29 U.S.C. § 401..........................................................................................................................................23

29 U.S.C. § 402 (i))....................................................................................................................................23 

29 U.S.C. § 402 (j))...................................................................................................................................23 

29 U.S.C. § 411(a)(2).........................................................................................................1, 23, 32, 35, 42

29 U.S.C. § 411(a)(5)...................................................................................................................23, 26, 42

29 U.S.C. § 412...................................................................................................................................24, 31

29 U.S.C. § 431........................................................................................................................................ 14

29 U.S.C. § 501............................................................................................................................11, 12, 15

Fed. R. Civ. P. § 37(c)(1)............................................. .........................................................11

Fed. R. Civ. Proc. § 8(c) .........................................................................................................28

Fed. R. Evid. § 602..................................................................................................................3 

Fed. R. Evid. § 801............................................................................................................2, 3, 7

Fed. R. Evid. § 802................................................................................................................2, 7

Fed. R. Evid. § 803....................................................................................................2, 4, 7, 9, 11

Fed. R. Evid. § 803(6) ................................................................................................2, 4, 7, 9, 11

Fed. R. of Evid. § 804...............................................................................................................6 

Fed. R. Evid. § 805...............................................................................................................3, 5

Fed. R. of Evid. § 1006...................................................................................................9, 10, 11 

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State 

Tex. Civ. Prac. & Rem. Code § 16.004...................................................................................................15 

Rules

Federal

Fed. R. Civ. P. 56.................................................................................................................................1, 10 

Fed. R. Civ. P. 166a(i)...............................................................................................................................1 

Fed. R. Evid. 37(1).....................................................................................................................................11

Fed. R. Evid. 803 ......................................................................................................................................11 

Fed. R. Evid. 1006...................................................................................................................................... 

Local

LR. 7.1.......................................................................................................................................................1

LR 7.2.........................................................................................................................................................1

LR 56.2.......................................................................................................................................................1

LR 56.3 ......................................................................................................................................................1

LR 56.5.......................................................................................................................................................1

LR 56.6...................................................................................................................................................1

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Plaintiffs, ROBERT (BOB) ROSS (“Ross”) and EUGENIO VARGAS (“Vargas”), hereby file this their

Brief in Support of Plaintiffs’ Response and Objection to Defendants’ Motion for Summary Judgment (Doc. 

234) and show the Court as follows:

I. INTRODUCTION

Plaintiffs, Robert “Bob” Ross (“Ross”) and Eugenio Vargas (“Vargas”) (collectively hereinafter 

referred to as “Plaintiffs”) pursue claims for violations of the Labor Management Reporting and Disclosure Act 

(“LMRDA”), 29 U.S.C. § 411(a)(2) (free speech and association), § 411(a)(5) (due process) et seq. and § 529

(retaliation) against the Association of Professional Flight Attendants (hereinafter “APFA” or the “Union”). 

Ross asserts additional claims against the APFA for Breach of Contract, and against the APFA, Julie Hedrick, 

and Erik Harris for Breach of the Union Constitution, Defamation, Breach of Fiduciary Duty, Fair Credit 

Reporting Act, and Intentional Interference with a Contract under Texas Common Law. Vargas asserts 

additional claims against APFA, Julie Hedrick and Erik Harris for Fraud, and Breach of Fiduciary Duty. 

Defendants pursue a final claim for breach of fiduciary duty under 29 U.S.C. § 501 and rely on the 

facts, evidence, and a final determination from their self-designated Article VII Arbitrator. Defendants ignore 

the obvious problems to their final surviving claim before this Court—a resounding lack of jurisdiction and 

authority. Defendants file a claim under federal law and argue for this court to render a final determination on

the merits of this claim based on APFA’s disciplinary hearing administered by their non-attorney arbitrator 

under APFA’s form of due process. 

“. . . [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; 

he does not sit to dispense his own brand of industrial justice. He may of course look for guidance 

from many sources, yet his award is legitimate only so long as it draws its essence from the collective 

bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts 

have no choice but to refuse enforcement of the award.” 

(Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 596-597, 599 (1960); see also, United 

Paperworkers Internat'l v. Misco, 484 U.S. 29, 36 108 S.Ct. 364, 370, 98 L.Ed.2d 286] (1987)). The law is 

clear—it is a grant of congressional authority and jurisdiction which empowers this Court to interpret and 

administer claims under federal law—and that jurisdiction is exclusive to the federal courts—not a labor union, 

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and certainly not APFA. (28 U.S.C. § 1331). 

II. PLAINTIFFS OBJECTIONS TO DEFENDANTS’ INADMISSIBLE SUMMARY JUDGMENT

EVIDENCE. 

Plaintiffs respectfully object to Defendants’ evidence submitted in support of their Motion for Summary 

Judgment, on the following grounds:

1. HEARSAY: Plaintiffs object to Defendants’ use of statements contained within documents and 

Declarations that have not been authenticated and are offered for the truth of the matter asserted, absent any 

applicable exception to the hearsay rule under Federal Rules of Evidence 801 through 807. The Federal Rules 

of Evidence exception § 803(6) allows for hearsay documents that fall within those regularly maintained as 

business records may be admissible on record. (Fed. R. Evid. §§801, 802). To fall within the business records 

exception, Defendants carry the burden to establish through business records testimony that “. . . the records 

were (A) made around the time of the events at issue, (B) kept in the course of a regularly conducted business 

activity, and (C) made as a regular practice of that activity. Wilmington Sav. Fund Soc'y FSB v. Hutchins, 21-

2094 at 9 (10th Cir. Apr 12, 2022) (quoting Fed. R. Evid. 803(6)(A)-(C)). A business records affidavit will allow 

the hearsay evidence into record unless “(E) the opponent does not show that the source of information or the 

method or circumstances of preparation indicate a lack of trustworthiness.” (Fed. R. Evid. §803(6)(E)). 

To qualify as a witness, the declarant must be able to "explain the record keeping system of the 

organization and vouch that the requirements of Rule 803(6) are met." PNC Bank v. Ruiz, 22-50584, p. 6-7 

(5th Cir. May 10, 2023) (quoting Fed.R.Evid. §803(6)(D); see also United States v. Box, 50 F.3d 345, 356 (5th 

Cir. 1995) (noting authentication requirement under Rule 803(6)); DIRECTV, Inc. v. Budden, 420 F.3d 521, 

530 (5th Cir. 2005)). A witness that testifies to admitting records on behalf of a business must have a business 

records custodian testify to the true and correct nature of the document submitted, as compared to the 

document maintained in the business records in the regular course of business. (Fed. R. Evid § 803(6)). 

2. HEARSAY WITHIN HEARSAY: Plaintiffs respectfully object to Defendants’ use of statements within 

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statements contained within documents and affidavits that have not been properly authenticated and are 

offered for the truth of the matter asserted, absent any applicable exception to the hearsay rule under Federal 

Rules of Evidence 801 through 807. Specifically, Plaintiffs object to any instances where a statement by one 

individual, an argument or a document is relayed by another individual within a document or affidavit, as this 

constitutes hearsay within hearsay, or double hearsay, which is inadmissible unless both layers of hearsay 

fall within an exception to the hearsay rule as outlined in Fed. R. Evid. 805. "Double hearsay in the context of 

a business record exists when the record is prepared by an employee with information supplied by another 

person." Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991). See also JP Morgan Chase 

Bank, N.A. v. Classic Home Fin., Inc., No. 12-20363 (5th Cir. Dec 09, 2013). Without proper authentication

that each layer of hearsay satisfies an applicable exception, such evidence cannot be considered reliable or 

admissible under the Federal Rules of Evidence and should be excluded from consideration in Defendants’ 

Motion for Summary Judgment. 

3. LACK OF PERSONAL KNOWLEDGE: Plaintiffs additionally object to any statements, affidavits, or 

declarations submitted by Defendants that are based on information and belief, rather than direct, personal 

knowledge as required under Federal Rule of Civil Procedure 56(c)(4). Under Federal Rule of Evidence 602, 

a witness may not testify to a matter unless evidence is introduced to support that the witness has personal 

knowledge of the matter. (Fed. R. Evid. §602). Evidence or statements offered by Defendants that are based 

on speculative, second-hand knowledge, or assumptions, rather than direct, personal observation or 

involvement, fail to meet the threshold of admissibility required under this rule. 

Harris testified as the business records custodian in both of Plaintiffs’ hearings that the state of the 

business records are not well maintained. (Doc. 239-6, PAGEID 6948; 239-8, PAGEID 7063; App. pp. 156-

197). Harris also testified that an entire box of documents requested by Parties went missing during the Article 

VII Hearings and he was unable to fully comply with the subpoena requests as a result. (Doc. 239-6, PAGEID 

6948; App. pp. 156-197). He read a letter into record during his testimony that he wrote to parties during the 

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Chinery v. Vargas hearing admitting this fact. (Doc. 239-6, PAGEID 6948 Plaintiffs object to the admission of 

any and all of APFA’s financial records as they are not properly maintained and are therefore unreliable 

inadmissible hearsay evidence. Plaintiffs further object to all documents submitted before this court which 

incorporate APFA’s financial documents as hearsay within hearsay in which the underline hearsay statements 

must be excluded. 

More specifically, any and all documents put forth containing statements or summations of evidence

based upon the financial records of APFA that originated from the APFA archives are unreliable hearsay and 

Plaintiffs hereby object to their admissibility based thereon. 

JOSH BLACK APFA NATIONAL TREASURER’S DECLARATION: In Defendants’ Motion for Summary 

Judgment evidence, Black testifies that his position is the National Secretary of APFA since April 2020, and 

that in that capacity “I am familiar with the records kept by the Union.” (Doc. 236-1, PAGEID 5948). Black fails 

to testify as to the business practices of the union in creating the documents attached at or near the time of 

the events at issue; he fails to testify how the union embarks on regular business practices and activities to 

ensure their business records are regularly maintained; and he fails to testify about how these records as a 

regular part of the union’s activity. Therefore, Black’s declaration fails to meet the elements necessary to 

substantiate the business records exception to the hearsay rule for any of the documents attached to the Black 

declaration. (Fed. R. Evid. 803(6)(E)). Furthermore, APFA’s records are not well-maintained in the regular 

course of business, therefore the attached Exhibits to the Black Declaration are subject to exclusion as 

unreliable hearsay—in particular Exhibit O, R, S, T, U, V, W, X, Y, Z. (Doc.236-1; PAGEID 5948-6453).

Additionally, multiple exhibits attached to the Black Declaration contain hearsay within hearsay and 

are submitted for the truth of the facts and statements contained therein. 

Furthermore, Exhibit O, and Exhibits R, S, T, U, V, W, X, Y, Z should all be excluded for statements 

of unreliable financial documentation from APFA’s records and double hearsay statements. As previously 

stated, double hearsay exists whenever a business record is created based on information from another 

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source. This would include the Plaintiffs’ Post-Hearing Briefs, prepared using the documents and evidence 

produced during the Article VII Disciplinary hearings and marked as Exhibit O and Exhibit V. (Doc.236-1; 

PAGEID 5948-6453). 

These briefs include statements and arguments addressing documents and evidence that has not 

been established as being admissible before this court. (Fed. R. Evid. § 805). Additionally, the Arbitrator’s

Decisions in Ross and Vargas, marked as Exhibits, R, T, W, X, and Z includes multiple out-of-court statements 

which are not sufficiently established as admissible evidence—the Arbitrator summarizes the evidence and 

testimony from the hearing. (Doc.236-1; PAGEID 5948-6453). Most importantly, financial records form the 

basis of the charges, the testimony, and the evidence used to draft and ultimately achieve the Disciplinary

Decisions marked as Exhibits R, T, W, X, and Z. (Doc.236-1; PAGEID 5948-6453). Each of these Disciplinary 

Awards reference various inadmissible out-of-court statements. Attached hereto in Plaintiffs’ Appendix is a list 

of examples of hearsay statements contained within these Exhibits attached to the Black Affidavit hearsay 

documents. (App. 596-599; Doc. 236-1).

Exhibit U attached to the Black Declaration, includes prior statements in the form of disciplinary 

hearing transcripts from both Disciplinary Hearings. The admissibility of these transcripts should be evaluated 

based on their status as official records of proceedings. These are transcripts from a disciplinary hearing 

conducted by flight attendants—not even the arbitrator is a lawyer—so examination and cross-examination of 

the witnesses was not given to both sides in the present case. Plaintiffs were denied due process throughout 

the Disciplinary hearings from the union concealing documents, denial of adequate time, inability to present 

evidence, inability to cross-examine witnesses, even the Arbitrator conducted numerous off record discussions 

about the merits of the evidence, issues, objections and the charges where the Arbitrator coerced Ross to 

waive objections to the admission of unreliable documents (App. pp. 156-197). Defendants acknowledge that 

they withheld documents, that Plaintiffs were given much less time to present their case thereby denying

Plaintiffs a fair platform to present their case. (Doc. 236-3, PAGEID 6471 Harris Decl). Despite these actions, 

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Defendants argue that the union met the minimum standard in conducting its disciplinary hearings. (Doc. 235, 

PAGEID 5921). This raises serious concerns about the fairness and integrity of the proceedings and potential 

violations of due process. Defendants argue they met the minimum standard to comply with LMRDA due 

process requirements—however this is not the full panoply of due process rights provided under federal law.

(ECF. No. 235, PAGEID 5892). To rely on the union’s administration of due process denies Plaintiffs’ due 

process under the law. Therefore, these transcripts do not meet federal requirements for admissibility as the 

Disciplinary Hearing transcripts are not prior court hearing transcripts to be considered under the Fed. R. of 

Evid. § 804(b)(1). 

Additionally, Plaintiff hereby objects to any legal conclusions contained in the Disciplinary Arbitration 

Decisions marked as Exhibits R, T, W, X, and Z as factual assertions. The Arbitrator does not hold a license 

to practice law in Texas. The Arbitrator never heard a case under union self-governing rules which applies the

LMRDA. (App. pp. 600-602). He had neither the qualifications, nor the authority, to make legal conclusions

regarding claims of fiduciary duty. The weight and validity of the legal conclusions in the arbitration decisions

are in serious question based on these facts. (See Stolt-Nielsen S.A. v. Animal feeds Int'l Corp., 559 U.S. 662, 

130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (“It is only when [an] arbitrator strays from interpretation and 

application of the agreement and effectively ‘dispense[s] his own brand of industrial justice’ that his decision 

may be unenforceable.”). See also, Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 509 1015, 

121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (per curiam) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 

363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)). Therefore, any statements within these exhibits 

purporting to resolve questions of law are beyond the arbitrator's competence and authority, rendering them 

invalid and unenforceable. As such, these conclusory statements must be stricken from the record and given 

no weight or consideration by this Court.

ERIK HARRIS, APFA NATIONAL TREASURER’S DECLARATION: Erik Harris, APFA National Treasurer, 

admitted in both Plaintiffs’ Article VII Disciplinary Hearings that APFA’s record-keeping system is not reliable. 

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This calls into question the credibility of any documents presented by the APFA in this case and could weaken 

their case. It is necessary to provide additional evidence to support the validity of the documents submitted to 

substantiate the union’s claims of breach of fiduciary duty. Significantly, Harris testified during the Arbitration 

hearings that a box of documents relevant to the charges against Plaintiffs had recently gone missing and 

therefore could not be produced. (Doc. 239-6, PAGEID 6948). This raises serious concerns about the APFA's 

document management and the potential impact on the fairness of the arbitration hearings, as well as the 

credibility of the APFA's case. APFA does not properly maintain its documents and records in good working 

condition on a regular routine basis. (Doc. 239-6, PAGEID 6948; 239-8, PAGEID 7063; App. pp. 156-197). As 

a result, the documents within APFA’s possession are unreliable documents and require additional evidence 

to substantiate the credibility of the documents submitted by a party with personal knowledge of the facts. (Fed. 

R. Evid. 801, 802). 

Harris, while testifying to business records, does not state that he is the business records custodian. 

Furthermore, his declaration does not explain the methods by which APFA maintains its records, APFA’s 

record-keeping practices, or that APFA’s documents are routinely kept as a business practice. This raises 

serious concerns about the validity and reliability of the documents submitted by the APFA. (Doc. 236-3; 

PAGEID 6468-75). Harris also fails to testify that the documents attached are true and correct copies of the 

documents maintained within APFA’s business records therefore are not properly authenticated. (Doc. 236-3; 

PAGEID 6468-75). The Harris and the Black Declarations attached to the Defendants’ Motion for Summary 

Judgment, and the documents attached thereto fail to satisfy the requirements of the business records 

exception laid out in Fed. R. Evid. § 803(6). (Doc.236-1; PAGEID 5948-55; 236-3; PAGEID 6468-75).

Harris lacks personal knowledge regarding the documents attached to his declaration. Exhibit A to the 

Harris Declaration is a letter to which Harris was not a party. (ECF No. 236-1, PAGEID 6468-79). Plaintiff 

objects to submission of these documents as inadmissible hearsay evidence and Harris lacks personal 

knowledge of this document. (Doc. 236-3; PAGEID 6468-79).

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Paragraphs 4, 6, 7, 8, 9,10, 11, 12, 13 from the Harris Declaration and attached Exhibit A and must 

also be stricken from the record. (Doc. 236-3; PAGEID 6468-79). Harris improperly testifies on behalf of the 

APFA National Officers in Paragraphs 4 and 6 for which he lacks personal knowledge to testify to the beliefs

and mental impressions of the other National Officers. (Doc. 236-3; PAGEID 6468-79). Harris testifies on behalf 

of the BOD and their actions in paragraph 6, 7, 8. (Doc. 236-3; PAGEID 6468-79). Harris has no personal 

knowledge of the beliefs and mental impressions of the National Officers, the BOD, therefore Plaintiffs object

for lack of personal knowledge. 

In Paragraph 7, 8 and 9 Harris testifies as to “business records for the APFA” without the proper 

foundation or elements of record-keeping practices by the union. (Doc. 236-3; PAGEID 6470-71). Furthermore, 

he previously testified that the business records are not well maintained. (Doc. 239-6, PAGEID 6948; 239-8, 

PAGEID 7063; App. pp.185-197). Therefore, Plaintiff objects to this information as unreliable hearsay evidence. 

Plaintiffs object to Paragraph 16 for lack of proper foundation and hearsay within hearsay with third 

parties identified as “Board members” meaning the APFA Board of Directors (hereinafter sometimes referred 

to as “BOD”) which is the governing entity of the APFA. Harris states “I had been asked by Board members to 

provide the results of Mr. O’Neil’s analysis.” (Doc. 236-3, PAGEID 6473). Yet this references conversations 

with unidentified people and the APFA Board of Directors is part of the entity APFA. There is no evidence to 

support a conversation with the governing body of APFA as there is no resolution on the matter and the APFA 

Constitution requires the Board of Directors to have a quorum present to vote on any action taken within a 

resolution. (APFA Const. Art. III, Sec. 3F-H; 236-1; PAGEID 5964). There is no resolution passed or evidence 

attached suggesting this fact is true. Plaintiff objections based on a lack of foundation. 

Plaintiffs object to Paragraphs 10, 11, 12, 18, 20 and 22 as these statements address matters for which 

Harris has no basis to assert personal knowledge. (Doc 236-3, PAGEID 6468-75). Harris has no personal 

knowledge of matters that occurred prior to him taking office as National Treasurer and cannot testify to it 

unless he establishes his personal knowledge to those facts relating to charges, and whether they were 

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withdrawn. He also cannot testify as to “his administrations’ interpretation of the APFA Constitution and Policy 

Manual as he lacks personal knowledge and is not the business records custodian (Doc 236-3, PAGEID 6471-

75). Paragraph 18 is not properly founded, as Harris has no personal knowledge of these matters about 

“repayment from Mr. Ross in the same manner as the overpayments to Mr. Vargas and the other former officers 

had been sought.” (Doc 236-3, PAGEID 6474-75). As he has no personal knowledge and was not in office as 

National Treasurer when this occurred. Paragraph 20, 22, is a summation of the APFA records and yet there 

is no foundation for the records to be admitted under the Fed. R. Evid. § 803(6). (Doc 236-3, PAGEID 6474-

75). Harris is not qualified to do so and has testified that the financial records are not properly maintained by 

the APFA. Doc. 239-6, PAGEID 6948; 239-8, PAGEID 7063; App. pp. 156-197). 

Plaintiffs object to any testimony submitted from Josh Black, Erik Harris, and Julie Hedrick, as to the 

conduct, testimony, or evidence submitted during the Plaintiffs’ Article VII Disciplinary Hearings outside of the 

witness’s personal knowledge and experiences (App. pp. 529-531; 600-602). The business records have not 

been maintained, and not one of these affiants attended either of Plaintiffs’ Article VII Disciplinary Hearings.

The submission of the O’Neil “accounting review,” the O’Neil Declaration and conclusions contained 

therein regarding payments made and owed to Ross are an improper summation of evidence that relies on

inadmissible hearsay evidence not found on record. (Fed. R. of Evid. 1006). Plaintiff hereby objects to its 

submission as relying on hearsay evidence. 

Accordingly, Plaintiffs request that the Court exclude any and all statements, declarations, affidavits, 

or other evidentiary submissions presented by Defendants in their Motion for Summary Judgment that are not 

supported by direct, personal knowledge of the events, transactions, or occurrences to which they purport to 

testify. Such evidence cannot form the basis of a genuine dispute of material fact sufficient to overcome 

summary judgment, as it does not satisfy the foundational requirement of personal knowledge mandated by 

the Federal Rules of Evidence. 

This objection is made to preserve the integrity of the evidentiary standards and to ensure that the 

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Court's consideration is limited to evidence that is legally capable of establishing a genuine issue of material 

fact for trial.

A. Hal O’Neil’s Declaration, Accounting Review and Cornwall Jackson Accounting Review

are summations of evidence based on inadmissible evidence by witness not designated

as experts. 

Any evidence that is a summary of other evidence falls under the Federal Rules of Evidence 1006. 

(Fed. R. Evid. §1006). The 5th Circuit held that Rule 1006 admission of summaries of other evidence when “(1) 

the evidence previously admitted is voluminous, and (2) review by the jury would be inconvenient. A summary 

may include only evidence favoring one party, so long as the witness does not represent to the jury that he is 

summarizing all the evidence in the case. Summary evidence must have an adequate foundation in evidence 

that is already admitted, and should be accompanied by a cautionary jury instruction. Full cross-examination 

and admonitions to the jury minimize the risk of prejudice.” U.S. v. Whitfield, 590 F.3d 325 at 364-65(5th Cir. 

2009) (citing United States v. Bishop, 264 F.3d 535, 547 (5th Cir.2001) (internal citations omitted)). 

O’Neil’s Declaration submits testimony of his accounting review and audit as a summation of the total 

of evidence of payments made to Ross under the TA. O’Neil is APFA’s long-time outside accountant that is 

currently represented by the same Counsel as the Defendants in this case. (Doc. 236-4). The underline

financial documents of APFA—as discussed above—are not adequately maintained and therefore 

inadmissible. Furthermore, the underline financial documents relied upon to create this report were not turned 

over to Plaintiffs to give Plaintiff the opportunity to conduct their own financial audit and submit testimony to 

counter this expert’s report and is therefore inadmissible by Defendants. (Doc. 113, PAGEID 2335-36). If the 

defendants have failed to provide the plaintiffs with necessary documents, it could be a violation of procedural 

fairness and due process.

HAL O’NEIL DECLARATION, EXHIBIT A “ACCOUNTING REVIEW” – The accounting review and testimony of 

O’Neil’s Declaration may not be asserted for the truth of the matters contained therein. O’Neil’s testimony, the

“accounting review,” and the conclusions regarding his opinion about Ross’s overpayment calculation and per 

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diem determination may not be asserted for the purposes of establishing that Ross was overpaid or that the 

incorrect per diem as used to calculate Ross’s payments. Plaintiffs object to a summation of evidence, or 

expert testimony may not be asserted based on inadmissible evidence. (Fed. R. Evid. § 1006). Payments made 

and owed to Ross are an improper summation of evidence based on the financial documents held and 

maintained by APFA—which are inadmissible as business records. (Fed. R. Evid. 803(6)). Plaintiffs’ object to 

expert witness testimony without Defendants having timely designated an expert witness within the Court 

ordered timeframe. (Fed. R. Civ. P. 37(c)(1). APFA’s financial documents are unreliable and inadmissible

hearsay evidence. These documents were sought out and not produced, disclosed or delivered, as reflected 

on record in Plaintiffs’ Motion to Compel (Doc. 113) in violation of Fed. R. of Evid. 1006. Plaintiff hereby objects 

to its submission as relying on inadmissible evidence. 

Plaintiffs object to the use and submission of the Cornwall Jackson “financial review” on the same 

grounds as those objections outlined for the O’Neil “accounting review.” (App. pp. 156-197). Plaintiffs object 

to a summation of evidence based on inadmissible unreliable financial evidence; Defendants failed to designate 

a witness to testify on their behalf in a timely manner; Defendants failed to produce all documents delivered to 

Cornwall Jackson when requested by Plaintiffs. (Fed. R. Evid. 1006). 

Defendant’s summary judgment arguments rely on a substantial amount of double hearsay documents

incorporating APFA’s unreliable financial documents to argue that Plaintiffs violated their fiduciary duty. 

Plaintiffs request that the Court sustain their objections specifically regarding hearsay, lack of personal 

knowledge, legal conclusions, summations of evidence, and excludes such evidence from consideration on 

Defendants’ Motion for Summary Judgment. Additionally, this Court ordered Defendants meet the elements of 

the doctrine of laches to overcome Plaintiffs’ statute of limitation defense against its LMRDA § 501 breach of 

fiduciary duty claim. (Doc. 72, PAGEID 1733). Defendants’ Motion for Summary Judgment fails to address 

this equitable defense and submit evidence of Plaintiffs’ wrongdoing that contributed to any unreasonable delay 

of its claim. The consequence thereof is that dismissal of Defendant’s breach of fiduciary duty claim is proper. 

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III. FACTS

In 2016, Robert “Bob” Ross was elected National President; Nena Martin (“Martin”), followed as the 

National Vice-President, Marcy Dunaway, (“Dunaway”) as National Secretary, and Vargas as National 

Treasurer (“Vargas”) of their union, the APFA (“Ross Administration”) . (Doc. 239-8 PAGEID 7064: 386-96).

The Ross Administration opposed any merger of their independent union to the Association of Flight 

Attendants (“AFA”) and—APFA—which created strife between two political groups fighting for power within 

the union. Ross became the target of Melissa Chinery-Burns a flight attendant now married to General Counsel 

of AFA, Joe Burns. The political infighting led the APFA BOD to offer Ross a Transition Agreement for his 

resignation as National President in March of 2018. (“TA”) (Doc. 239, PAGEID 6679: 1-10). 

On July 1, 2018, the Bassani Administration took office.1 Martin was elected to the APFA BOD in 

2019 to the St. Louis Base. During this period, Chinery-Burns pursued targeted investigations of the Ross 

Administration’s expenses, and demanded audits of the Ross Administration’s expenses, paystubs, 401k 

contributions and other financials. (Doc. 239-6, PAGEID 6964: 286-292). In response to Chinery-Burns’s 

demands, an outside accountant audited the end-of-term payouts for Martin, Dunaway, and Vargas, which led 

to APFA’s claims of a miscalculation and demands for repayment (Doc. 239-4, PAGEID 6865: 187). 

Once notified of the miscalculation, and after meeting with the National Treasurer and Hal O’Neil, 

APFA’s Accountant, Martin, Dunaway, and Vargas—faced with threats of legal action by the APFA BOD—the 

officers agreed to repay the monies for the release of liability by the union. (Doc. 239-4, PAGEID 6892: 214-16). 

APFA’s Motion (Doc. 235) lays out an incendiary factual depiction of Plaintiffs’ Arbitrations, charges, 

and alleged facts that are simply untrue. Defendants, relying on uncredible evidence and testimony, claim 

1 The Court should note that the National Treasurer, Craig Gunter, who previously pursued Vargas, Martin, and Dunaway for the 

alleged overpayment miscalculation, now testifies on behalf of the Ross Administration. Cheryl Elizabeth Geiss, former APFA

National Vice-President under the Bassani Administration, and Michael Truan, former APFA BOD member—who both previously 

pursued Vargas, Martin, and Dunaway for the alleged overpayment miscalculation—have filed suit on May 1, 2024 against APFA 

for claims of Harassment, Assault and Defamation based on the actions of APFA National Treasurer—Erik Harris in Tarrant 

County District Court, cause no. 017-352392-24; Geiss, et al v. APFA. Plaintiffs’ allegations of misconduct against Harris and 

Hedrick in this petition are substantially similar to those allegations asserted by the Bassani Administration officers. 

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Ross took a Grand Canyon Family Vacation, rented an apartment frivolously, took furniture, charged the union 

for rental cars. (Doc. 235, PAGEID 5904-10). The Court should disregard such facts about a Grand Canyon 

Family vacation, furniture, unapproved lease costs, meal expenses and the like. Though Defendants are rather 

inventive story-tellers, this is nothing more than speculation and conjecture that subverts from the legal issues 

at the heart of this case. 

These factual contentions rely on unreliable hearsay documents and evidence—none of these facts 

are true and all are unsupported by the evidence. Ross paid for the furniture himself, but APFA’s records are 

too disorganized for the union to determine this. They retain all records prohibit members to retain copies per 

policy, however when disciplinary charges are pursued—the member bears the burden of proving their 

innocence without evidence. Attached are copies of the receipts for the furniture in question: the first showing 

the purchase made for $3637.92, the second and hand written notations show the return of several items 

APFA resold and credit for $331.28 for a balance of $3306.64. (App. pp. 140-144) Thereafter are two of Ross’s 

paystubs showing two payment made to APFA accounts receivable for $1653.32. (App. pp. 140-144). 

Attached is also a social media post made by Melissa Chinery on April 26, 2021 wherein she lays out these 

facts to everyone—but the Arbitrator. (App. pp. 145-147). Afterall, claiming the former National President 

charged the union for his “Grand Canyon Family Vacation” gets a lot more attention than the truth, or that the 

National President charged the union for a rental car for six months when he lived in Dallas, rather than explain 

that cars were rented under department head’s names for budgetary purposes or his family stopped at a hotel 

one night and ate a meal while moving down to Texas. The vehicles rented under National President’s 

department were not usually for him but representatives in Dallas conducting union work with his office.

The Motion’s descriptions of Vargas’ alleged misconduct are limited comparatively, however Vargas 

admitted he approved miscalculations made by APFA senior accountants to himself, Martin, and Dunaway 

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and the officers repaid it. Vargas Arbitration Decision—the same used in Ross2—stated that “The arbitrator 

finds Vargas failed to prepare an inventory list. This arbitrator is of the Opinion that all of the Ashley furniture 

has been fully explained and accounted for.” (Doc. 239-2, PAGEID 7020; 343). This contradicts the finding 

that in the Ross Arbitration Decision that Ross wrongfully took the Ashley’s furniture and moved it into his 

house. (Doc. 239-3, PAGEID 6864 ). Vargas maintained inventory lists; the “findings” in Vargas’ Arbitration

Decision are erroneous. (Doc. 239-6, PAGEID 6964). The Arbitrator’s decision also “found” Vargas misplaced 

the box of 2017 documents despite Harris testified he misplaced it. (Doc. 239-8, PAGEID 7063). Vargas did 

not have the opportunity to take any documents he did not review documents at APFA headquarters—Chinery 

and Lee did. The truth is, these erroneous results are due to prohibition on Plaintiffs submission of evidence

at the hearings. 

On April 1, 2020, the Hedrick Administration took office, consisting of Julie Hedrick as National 

President (“Hedrick”), Larry Salas as National Vice-President, Josh Black as National Secretary, and Erik 

Harris as National Treasurer (“Harris”). In May, 2020 Hedrick received a copy of Ross’s Confidential TA; June

1, 2020 Hedrick hired Bill Osborne as APFA outside counsel; on June 11, 2020 former APFA counsel Mark 

Richards emailed a copy of the Ross TA to Bill Osborne; on July 9, 2020 Harris emails Hal O’Neil requesting 

a meeting between Harris, O’Neil and Hedrick to discuss the National Officers payout from 2018; and on

August 3, 2020, Hedrick informed Ross that she planned to disclose his confidential TA to APFA members

based on Osborne’s legal advice. (Doc. 239-9, PAGEID 7102: 424). In August of 2020, Melissa Chinery-Burns 

posted an altered version of the TA on social media. (App. p. 386-96). On September 7, 2020, Harris and 

emails O’Neil to set up a meeting at APFA headquarters on September 17, 2020 with APFA General Counsel 

2 Note: Defendants argue Arbitrator Armendariz is well-known, however Bartos—Defendants’ Counsel—submitted the attached 

Amicus Brief against Nena Martin after filing counter-charges against Melissa Chinery-Burns—“rank-and-file member of APFA” 

coincidentally married to General Counsel of AFA, Joe Burns. Ironically, Defendants’ Counsel represents APFA in this Brief 

asserting arguments on behalf of Ms. Chinery-Burns; APFA is supposed to remain neutral throughout the Article VII Arbitration 

Process, bur they keep hiring attorneys to advocate for this particular “rank-and-file member.” (App. pp. 532-536).

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and the National Officers to review the Ross TA and discuss the “accounting review” of the payments made 

under the Ross TA to assist Chinery and Lee. (Doc. 239-3; PAGEID 6820-24: 142-146); (Doc.239-4; PAGEID

6863-77: 185-199); (Doc 239-8; PAGEID 7066-67:. 388-389); (Doc. 10; PAGEID 7123-2610: 445-448). Harris 

notes that the due date for the Accounting Review is September 24, 2020—60 days3 prior to the week of 

Thanksgiving and just before the December 1, 2020 EC meeting. (Doc. 239-8, PAGEID 7066-67: 388-389).

ACCOUNTING REVIEW: Hal O’Neil, APFA’s outside accountant, (“O’Neil”) sent documents asserting 

Ross was overpaid with a cover letter spelling out his findings and opinion on his accounting review. (Doc. 

239-3; PAGEID 6820-24: 142-146); (Doc.239-4; PAGEID 6863-77: 185-199); (Doc 239-8; PAGEID 7066-67;

388-389); (Doc. 10; PAGEID 7123-2610: 445-448). (“Confidential Memo”). The Confidential Memo 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 shall specify that the payments be made 

in accordance with the policy manual guidelines. Consequently, these payments appear appropriate and in 

compliance with the transition agreement. This agreement also specifies reimbursement payments to him of 

up to $10,000 in actual moving expenses. His moving expense reimbursement payments did not exceed this 

amount.” (Doc. 239-4, PAGEID 6865: 187). 

The same day that Harris received the Confidential Memo, he forwarded the documents to the other three 

National Officers, and APFA’s Counsel. (Doc. 239-3, PAGEID 6820-24: 142-46); (Doc.239-4; PAGEID 6863-

77: 185-213).

BOARD OF DIRECTOR’S MEETING: On October 28, 2020, the National Officers presented the BOD

the “accounting review” documents stating Ross owed APFA for an overpayment. However, the Meeting 

Minutes inaccurately refer to this review as an “audit.” (Doc. 239-5, PAGEID 6895-903: 217-25). This is a 

substantial difference considering the Confidential Memo was withheld explaining that the “accounting review” 

is substantially different than an “audit” as it does not reflect any formal opinion on the matters (Doc. 239-5, 

PAGEID 6895-903: 217-25) The same language appears in the Cornwall Jackson documentation as well. The 

APFA BOD made no finding and passed no resolution relating to Ross at this meeting. (App. pp. 117-122). 

3 Note: APFA Const. Art. VII Sec. 2D Requires charges to be filed within 60 days of discovery of the facts that gave rise to the 

charges. 

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On November 10, 2020, Harris called Ross to discuss the overpayment he owed to APFA and sent a letter to 

confirm the conversation and demand repayment. (Doc. 239, PAGEID 6679-68: 89-94). Harris told Ross in 

the letter: 

“During our call, 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.” (“Overpayment of Wages Letter”) (Doc. 239, PAGEID 6689). 

EXECUTIVE COMMITTEE MEETING: In November of 2020, Melissa Chinery (“Chinery”) and Sandra 

Lee (“Lee”) filed APFA Disciplinary Charges against Ross and Vargas. (Doc. 236-1, PAGEID 5951) On 

December 1, 2020, the APFA Executive Committee (sometimes hereinafter referred to as “EC”) held its annual

meeting. The nine EC members reviewed the Disciplinary Charges filed against Plaintiffs. The nine EC 

members—which includes the four National Offices—voted on whether the charges were (1) valid, (2) specific, 

and (3) timely. (Doc. 236-1, PAGEID 5978). Per APFA Constitution, if a majority of the EC members vote that

the charges are (1) filed timely—within sixty days of learning of the facts that gave rise to the charges, (2) 

valid, and (3) specific, then the Article VII Charges against Plaintiffs proceed to a Disciplinary Hearing. (Doc. 

236-1, PAGEID 5978-79). All four National Officers voted yes to the disciplinary charges filed against Plaintiffs

at the December 2020 EC Meeting. Yet all four National Officers received a copy of the Confidential Memo. 

(Doc. 236-1, PAGEID 6037-6044). The four National Officers concealed the Confidential Memo at the October

28, 2020 BOD Meeting and at the December 1, 2020 EC Meeting. (Doc. 239-5, PAGEID 6895-903; 217-225)-

need to check not sure it’s this AFF The National Officers voted that the charges against Plaintiffs were (1) 

valid, (2) specific, and (3) timely because Chinery learned of the O’Neil’s audit on September 24, 2020 and 

filed charges against before November 24, 2020—within 60 days of discovering the facts that gave rise to 

those charges per APFA Const. Art. VII Sec. 2D. (Doc. 236-1, PAGEID 5978). 

DEBT COLLECTION: In January 2021, the alleged overpayment claimed to be owed by Ross was 

assigned to a third-party debt collector, McGaughey, Reber and Associates, Inc, (“Diversified”) (App. pp. 43-

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68 ). Diversified published the alleged overpayment to Ross’s credit report after Harris provided Ross’s social 

security number, the TA, and the “accounting review” to Diversified as well as Ross’s former Texas address. 

(Doc. 239, PAGEID 6679:1-6; 52-62). Simultaneously with pursuit of disciplinary charges and pursuit of debt 

collection efforts in-house with APFA, Diversified continued collection efforts through telephone calls to him.

(App. pp. 43-68). APFA Board Members and National Treasurer antagonized and harassed Ross in their debt 

collection efforts and publicized it to APFA members who shared the information on social media. (Doc. 239, 

PAGEID 6679; App. pp. 156-197). 

IV. AS A MATTER OF LAW, IT IS THE PLAINTIFFS’ POSITION THAT THE DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT AGAINST ROSS AND VARGAS FOR BREACH OF FIDUCIARY

DUTY MUST BE DENIED. 

Summary judgment is only appropriate when the record shows "that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a). Jenkins v. C.R.E.S. 

Mgmt., LLC, 881 F.3d 753, 756 (5th Cir. 2016). An issue is considered "genuine" if "it is real and substantial 

as opposed to merely formal, pretended, or a sham." Laughlin Prods., Inc. v. ETS, Inc., 257 F.Supp.2d 863, 

866 (N.D. Tex. 2002). Facts are "material" if they "might affect the outcome of the suit under governing law." 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

The Court must evaluate a motion for summary judgment through the lens of the non-moving party 

by accepting all evidence and assuming all conclusions in the non-moving party’s favor. (Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); See also, Taita Chem. Co., Ltd. v. Westlake 

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

A. Defendant’s § 501(a) Counterclaim: Plaintiffs followed procedures and received approval 

by the union for all charges and expenditures Defendant claims violates the LMRDA § 501.

In Ray v. Young, the 5th Circuit Appellate Court reviews expenses that the Plaintiff in that case argues 

violated LMRDA § 501. (Ray v. Young, 753 F.2d 386, 391-92 (5th Cir. 1985). The Ray Court differentiates 

between those expenses incurred by the union where (1) the union benefits as does the officer receive an 

indirect personal benefit, or (2) the officer receives a direct personal benefit, but no benefit is incurred by the 

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union 29 U.S.C. 501. (Id.). The 5th Circuit states that "[w]here. . . there is only an indirect personal benefit to 

a union officer, and the union itself has benefited, authorization by the union need only be technically correct 

under the rules of union procedure; we will not inquire into its substance." (Id. at 391-92.) However, where 

the union receives no benefit, but the officer receives a direct personal benefit, “the defendant union officer 

must prove, first, that the funds or property were obtained with the valid authorization of the union after 

adequate disclosure and, second, that the expenditure was not manifestly unreasonable.” (Id. at 389-90). 

All charges that the Defendant alleges the Plaintiffs made in violation of APFA Policy were, in fact, 

submitted in accordance with the APFA procedures in place at the time and were approved. This is a fact that 

is not in dispute. (Doc. 119) APFA maintains procedures to review and approve expenses that are covered by 

the APFA Constitution and Policy—including approval by two National Officers and a review by the in-house 

APFA senior accountants. It is undisputed that expenses and payments made with union funds during the 

Ross Administration followed APFA procedures. This is the only material fact in which the Court needs to 

concern itself to evaluate Defendant’s §501 Breach of Fiduciary Duty claims against Plaintiffs. (Id. at 391-92.) 

The union’s Disciplinary Hearing is moot as the Arbitration Award may be unenforceable in federal court, 

subject to a determination by this court. (Adams-Lundy v. A.P.F.A, 792 F.2d 1368 (5th Cir. 1986)). Neither the 

Arbitrator, nor APFA, have authority to interpret and enforce 29 U.S.C. § 501.

Plaintiffs contests all facts contained in the Arbitrations Decisions as none of these factual contentions 

have been, nor can be, substantiated with any evidence. Defendants’ Counsel asserts that the APFA 

Disciplinary Arbitration is final and binding. (See Doc. 235, PAGEID 5926). 

APFA argues Plaintiffs breached their duty for charges and expenses that violated APFA Constitution 

and Policy. (22-cv-00343; See Doc. 134, PAGEID 2660; 22-cv-00430; Doc. 108-1 PAGEID 3708). This, APFA 

contends, forms the basis of Defendants’ alleged breach of fiduciary duty. It is not disputed that the Plaintiffs 

adhered to APFA procedures for submitting and approving all business expenses. (22-cv-00343; See Doc. 

134, PAGEID 2660; 22-cv-00430; Doc. 108-1). The TA payments for sick and vacation leave were calculated 

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and made after Ross resigned as National President therefore, he no longer held a fiduciary duty after March 

1, 2018. (Doc. 239-8, PAGEID 7064: 388). 

The “miscalculations” of the end-of-term payouts came on the heels of countless complaints, 

investigations, and threats to sue APFA leadership by Melissa Chinery if the Ross Administration was not 

pursued for fraud and embezzlement (App. pp. 117-122). Between 2018-2019, APFA demanded repayment 

from the Ross Administration for legitimate business expenses incurred while in office, including furniture and

rental car costs. When APFA threatened to sue for an alleged overpayment of the end-of-term payout, Vargas, 

Martin, and Dunaway acquiesced. Vargas agreed to repay the alleged miscalculation of the end-of-term 

payouts if the union released him of liability to stop the harassment. (Doc. 239, PAGEID 6992). 

A. Defendants have no evidence Plaintiffs violated their fiduciary duty. 

In Ray v. Young, the 5th Circuit Court reviews a union officer’s expenses for possible violations of 

LMRDA § 501. The Ray Court differentiates between those expenses incurred by the union where (1) the 

union benefits as does the officer who receive an indirect personal benefit, and those expenses where (2) the 

officer receives a direct personal benefit, but no benefit is incurred by the union 29 U.S.C. § 501. (See Ray v. 

Young, 753 F.2d 386, 389-90 (5th Cir.1985)). The 5th Circuit states that "[w]here. . . there is only an indirect 

personal benefit to a union officer, and the union itself has benefited, authorization by the union need only be 

technically correct under the rules of union procedure; we will not inquire into its substance." (Ray v. Young, 

753 F.2d at 391-92). However, where the union receives no benefit, but the officer receives a direct personal 

benefit, “the defendant union officer must prove, first, that the funds or property were obtained with the valid 

authorization of the union after adequate disclosure and, second, that the expenditure was not manifestly 

unreasonable.” (Ray v. Young, 753 F.2d at 389-90). 

Defendants asserts that “Mr. Vargas breached his duty and failed to manage and expend APFA’s 

money in accordance with its Constitution and Policy Manual. . . Mr. Vargas allegedly breached his duty by 

purportedly manipulating the formula used to pay others in his administration, resulting in a supposed

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unauthorized overpayment to former APFA National President Bob Ross which APFA claims has yet to be 

recovered, and allegedly incurring over $13,000 in what APFA considers inappropriate credit card charges 

related to meals. In so doing, APFA alleges that Mr. Ross violated the fiduciary duty provisions of 29 U.S.C. 

§ 501(a).” (22-cv-00430; Doc. 108-1, PAGEID 3717). 

Defendant asserts that “Mr. Ross breached his duty by, among other things: [1] using the APFA credit 

card for personal expenses; [2] claiming personal meals as business; [3] expenses for reimbursement; [4] 

refusing to repay the overpayment of sick leave and vacation pay; and [5] wasting APFA funds to lease an 

apartment which he had no intention of occupying. In so doing, Mr. Ross violated the fiduciary duty provisions 

of 29 U.S.C. § 501(a).” (22-cv-00343; See Doc. 134, PAGEID 2672). 

All expenses or purchases that Defendant, APFA, contend were improper were made, submitted, and 

approved via APFA procedures. This is an undisputed fact. 

Payments under the Ross TA had prior authorization as evidenced by the signatures of the 2018 

APFA BOD on the Ross TA and the lack of any reference to APFA policy for calculating payments made 

thereunder. Furthermore, the use of a daily rate of pay based on W-2 income is reasonable to calculate sick 

and vacation pay. The same calculation method was used to pay out the prior APFA National President, 

Laura Glading, under a similar agreement signed in 2015. 

The TA payments for sick and vacation leave were calculated and made to Ross after the TA was 

signed on or about March of 2018—upon Ross’s resignation from office—without Ross’s input or influence. 

Ross no longer owed a duty to the union at this time. Rene Berthelot was a Senior Accountant with APFA 

who calculated payments made under the Glading Transition Agreement and calculated the payments under 

the Ross TA. (Doc. 239-6, PAGEID 6964: 286-92). Both Glading and Ross were former National Presidents 

paid under similar agreements using similar daily rates-of-pay calculations. (Doc. 239-6, PAGEID 6964: 286-

92). The “miscalculations” of the Ross TA were subject to Rene Berthelot’s oversight and were consistent with 

his prior experience calculating Glading’s exit payments. It was Berthelot that made the calculations of Ross’s 

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per diem, and it was Berthelot that created the spreadsheet used to calculate his payouts. (Doc. 239-6, 

PAGEID 6964:288).

Moreover, APFA procedures require all calculations are made in conjunction with in-house 

accountants, reviewed and approved by two APFA officers and approved by two additional APFA accounting 

personnel for accuracy of calculation, budgeting purposes, and issuance of payment. ((Doc. 239-6, PAGEID 

6964: 286-92)). Vargas always complied with APFA procedures. (Doc. 239-3, PAGEID 6817:139-141; 286-

92). Additionally, when APFA asserted there were overpayments to Vargas, Martin and Dunaway, the APFA 

BOD threatened to sue Vargas for the miscalculation. (Doc. 239-4, PAGEID 6892: 214-16; Doc. 239-4, 

PAGEID 6965: 286-92). To avoid a dispute, Vargas agreed to repay it, signed a promissory note, and made 

all payments so that he could avoid being sued and stop the union’s harassment because of Chinery’s 

investigations. (Doc. 239-4, PAGEID 6892: 214-16); (Doc. 239-4, PAGEID 6965: 286-92). Importantly, the 

U.S. Department of Labor conducted its own independent investigation of the alleged overpayments. This 

investigation cleared the Ross Administration officers of all charges of misappropriation and embezzlement. 

(Doc. 239-4, PAGEID 6965: 286-92; Doc. 239-8, PAGEID 7064: 286-96).

1) ROSS ADMINISTRATION’S ARBITRATION HEARINGS:

In Vargas’ disciplinary hearing, the Confidential Memo was not disclosed. (Doc. 239-6, PAGEID 6964

: 286-292). Additionally, evidence of APFA harassment and intimidation of witnesses were excluded from the 

hearing. (Doc. 239-6, PAGEID 6964:286-92; 294-96). The Arbitrator expedited the proceedings with Vargas 

and his representatives, resulting in a substantial amount of evidence not being submitted. (App. pp. 539-

531). Documents went missing during this arbitration hearing, evidence of the TA could not be introduced, the 

arbitrator rushed the hearings to catch a flight, disallowed presentation of evidence on key issues like charges, 

expenses, calculations, etc. Harris testified that the union did not properly maintain records prior to 2020, and 

that a substantial number of documents contained in a particular box from 2017 were not produced by the 

union as they “went missing.” (Doc. 239, PAGEID 6933: 255-262). Additionally, the APFA BOD agreed to 

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release Vargas for the miscalculation if he repaid the amount owed. (Doc. 239-5, PAGEID 6892-6894). 

In Ross’ disciplinary hearing, the Confidential Memo remained concealed, despite a subpoena issued 

by the Arbitrator. (Doc. 239-2, PAGEID 6779-6792). Evidence of APFA harassment and intimidation of 

witnesses remained excluded from the hearing, as did evidence of the TA, evidence of calculations owed 

thereunder, evidence of negotiations, calculations, previous administration charges, social media posts, 

evidence of payments made by Ross for furniture, lack of a lease agreement, evidence of a vacation, rental 

cars, etc. All never addressed by the Arbitrator not to mention the Arbitrator allowed unreliable hearsay 

evidence in despite informing Ross it would not be relied upon for the truth of the facts asserted therein. (Doc. 

239-2, PAGEID 6779-6792). Harris testified that the union did not properly maintain its records. (Doc. 239-2, 

PAGEID 6779-6792). Additionally, the charging parties received over nine hours to present their case, while 

Ross received less than three hours to present his case. (Doc. 239-2, PAGEID 6779-6792). 

Furthermore, Ross was unable to call most of his witnesses to testify. (Doc. 239-2, PAGEID 6779-

6792). He could not call Eugenio Vargas or Nena Martin as witnesses on his behalf. (Doc. 239-2, PAGEID 

6779-6792). He was denied the chance to question and properly cross-examine witnesses like Erik Harris, the 

National Treasurer, by the Arbitrator. ((Doc. 239-2, PAGEID 6779-6792). 

On February 18, 2022, Vargas’s Disciplinary Arbitration Award was issued banning him from holding 

union elected office for life and fining him a total of $30,963.03. (Doc. 239-7, PAGEID 6987: 309-350). . On 

March 19, 2021, Ross’s Disciplinary Arbitration Award was issued. (Doc. 239-2, PAGEID 6793: 115-138). 

Ross was banned from holding union leadership office for life, removed from his current position on the APFA 

BOD, and fined a total of $62,558.75. (Doc. 239-2, PAGEID 6793 115-138). It is unprecedented for APFA to 

ban its members from holding union offices, and, for the first time, a Presidential Hotline was released 

announcing the resulting Arbitration Awards issued against APFA Members. (Doc. 239-7, PAGEID 6975 

297-301 and 305-308). These penalties appear disproportionate, especially considering the procedural 

irregularities and potential violation of rights during the Disciplinary Hearing. 

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After the filing of the current matters pending before this court, Nena Martin attended her Disciplinary 

Arbitration hearing wherein all charges were summarily dismissed for lack of reliable evidence.4 (Doc. 239, 

PAGEID 6904-6906). The arbitration hearings results were inconsistent despite the same evidence leading 

to the same charges. 

B. Defendants reported that the union suffered no losses between 2018-2022. 

Defendant asserts a breach of fiduciary duty claim wherein there are no damages proximately caused 

by any alleged breach of Ross’s fiduciary duty. The 5th Circuit stated that “[t]he rights adjudicated by the 

arbitrator were thus not LMRDA rights, but a type of contractual rights provided for union officers in an 

agreement between the union and its members, the constitution of the APFA. A union’s violation of its own 

constitution is not per se a violation of the LMRDA, and a federal court has no jurisdiction to enforce union 

constitutions and by-laws as such.” Adams-Lundy II, 792 F.2d at 1373; Martin v. Loc. 556, Transp. Workers 

Union of Am., 206 F.Supp.3d 1227 (N.D. Tex. 2016). 

There are no damages suffered due to a breach of fiduciary duty by Plaintiffs. Hal O’Neil conducts 

annual audits of all expenditures made with APFA funds. (Doc. 239-4, PAGEID 6965: 286-92; Doc. 239-8, 

PAGEID 7064: 286-96).

The final audit report is submitted to the four National Officers, who submit it to the APFA BOD for a 

final review and approval. This annual audit is used to draft the LM-2 Report. (Doc. 239-4, PAGEID 6965:

286-92; Doc. 239-8, PAGEID 7064: 286-96).

. The U.S Department of Labor requires the LM-2 Financial Report to indicate any loss of union assets 

or funds each year and to date no such report has been made. (App. pp. 198-506). The LM-2 Financial 

4 In particular, credit card charges and receipts were asserted as Martin’s credit card charges. After verifying the majority of the 

charges were not, in fact the result of Ms. Martin’s charges, but that the charging party believed they were belonged to Martin 

because her name was written on the receipt, Martin filed a Summary Dismissal. The Arbitrator dismissed the charges based on

a lack of evidence. 

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Report is signed under penalty of perjury by Hedrick and Harris. 

Hal O’Neil’s declaration in support Defendants’ Motion for Summary Judgment testifies to his intent 

in drafting the concealed Confidential Memo, which accompanied his “accounting review.” (Doc. 236-4, 

PAGEID 6492-6506). O’Neil’s justifies the contradiction—and liability—between his accounting review and 

attached Confidential Memo by stating that he did not mean what he said when he wrote: 

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

sick, and accrued an unused vacation time. This agreement doesn't specify that the payments be made in 

accordance with the policy manual guidelines. Consequently, these payments appear appropriate and in compliance 

with the transition agreement.” 

O'Neil testifies that his statement “. . . these payments appear appropriate and in compliance with the transition 

agreement” actually meant that the payments to Ross were incorrect. (Doc. 236-4, PAGEID 6492-93). There 

are several holes in this argument. 

First, Harris asked O’Neil for a cover letter, allegedly on behalf of the BOD, prior to ever presenting 

the “accounting reviews” to the BOD on October 28, 2020. (App. pp. 27-33). Secondly, O’Neil wrote the 

letter to the BOD and EC who were not privy to any conversations between O’Neil and Harris. (Doc. 236-4, 

PAGEID 6492-93). Therefore, O’Neil’s explanation wholly fails to explain why he communicated that Ross 

was paid properly, when he actually meant that Ross had been overpaid. (Doc. 236-4, PAGEID 6492-6506).

This is nonsensical. Third, O’Neil emailed the Confidential Memo to Harris stating to “Please get back to me 

if this memo looks OK.” (App. pp. 71-94; at 92). There is no evidence anywhere that Harris, or any one of 

the National Officers, responded to O’Neil’s email addressing this discrepancy between O’Neil’s Confidential 

Memo and what the National Officers represented to the union, the Arbitrator, and the Plaintiffs. Rather, the 

four National Officers, the General Counsel for APFA, and the Outside newly-hired Counsel, William Osborne

all failed to object to the language in this letter. Fourth, and most obviously, the Confidential Memo states 

the exact opposite of what this alleged newly developed “understanding” was between the two parties. If 

O’Neil meant that he determined Ross was overpaid, why did he not say this in his Confidential Memo? If 

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this is what Harris understood the Confidential Memo to say, why did Harris not ask him to rephrase the letter

to reflect this? Additionally, why was the letter not presented to the BOD, EC, Arbitrator Armendariz, Ross 

or Vargas? Why, instead, was it concealed from all these people?

O’Neil conducts the annual accounting audits used to create the LM-2’s submitted to the U.S. 

Department of Labor. (App. pp. 198-506). If O’Neil determined Ross was overpaid as he contends, then it 

should be reflected on the LM-2’s in accordance with O’Neil’s professional audit opinions submitted to APFA

that year—and yet it is not. (App. pp. 198-506). The LM-2’s from 2020-2022 do not list any loss suffered by 

the union. (App. pp. 198-506). The LM-2s are signed under oath by Hedrick and Harris as true and correct

assessment of APFA’s financial records, and Woods, Stephens and O’Neil are cited as conducting an audit 

for the purposes of drafting the LM-2s. (App. pp. 198-506). Finally, it seems O’Neil’s testimony would suggest 

that this lawsuit is the result of a mere misunderstanding between the parties. Yet O’Neil waits for four years 

after the date of the Confidential Memo—more than two years after the initial filing of this lawsuit—to set the 

record straight with testimony that directly conflicts an audit he conducted and sworn testimony submitted by 

Defendants to the U.S. Department of Labor—based on O'Neil’s financial audits. It is our contention that 

there are substantial credibility issues with both Harris’ and O’Neil’s testimony. 

C. Defendants fail to prove the equitable doctrine of laches applies to their breach of

fiduciary duty claims. 

Defendant’s counterclaim under LMRDA § 501 for breach of fiduciary duty counterclaims is legal in 

nature and therefore governed by the Tex. Civ. Prac. & Rem.Code § 16.004, which applies a four-year statute 

of limitations to bring claims after the action occurred. (Stewart v. Int'l Ass'n of Machinists & Aerospace 

Workers, 16 F.Supp.3d 783 (S.D. Tex. 2014)). Defendant has asserted the doctrine of laches as a defense. 

The U.S. Supreme Court held that proving the doctrine of laches requires "(1) lack of diligence by the party 

against whom the defense is asserted, and (2) prejudice to the party asserting the defense." (Costello v. 

United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961)). Defendant cannot prevail on its breach 

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of fiduciary duty as it is unable to present evidence that will establish a doctrine of laches defense. The claim 

is time-barred. In assessing the pleadings, the court decided that the doctrine of laches governed whether 

the claim might be time-barred in its Order Partially Granting Motion to Dismiss Counterclaims. (Doc. 72). 

On the pleadings, the court could not reach the conclusion that laches time-barred the claim. Based on the 

evidence presented with this motion, the court should now determine that the claim is barred by the doctrine 

of laches as there is no evidence to support this assertion. 

Therefore, judgment against Defendant’s counterclaim for breach of fiduciary duty is proper as 

Defendant has no evidence to support the defense of laches.

V. ROSS HAS A VALID CLAIM FOR BREACH OF CONTRACT AGAINST APFA. 

APFA breached Ross’s TA based on the conduct of the National Officers. Under Texas State Law, 

the elements of a breach of contract cause of action include (1) the existence of a valid contract; (2) the 

plaintiff’s performance or tendered performance; (3) the Defendant’s breach of the contract; and (4) damages 

from the breach. (Sullivan v. Smith, 110 S.W.3d 545, 546 (Tex. App. – Beaumont 2003, no pet.)).

A. The plain language within the four corners of the Transition Agreement does not

incorporate the APFA Constitution and Policy. 

The crux of the argument between the Parties stems out of relationships created between the parties 

from two separate and distinct contracts: (1) the APFA Constitution and Policy which governs the relationship 

between APFA, as a labor union, and its members, and (2) the Ross TA, a resignation agreement negotiated 

and signed between the APFA governing BOD and Plaintiff, Bob Ross. Applying the terms from one contract 

to another without a clear basis or justification can violate the canons of contract interpretation both under 

federal law and state law. To read the APFA Constitution and Policy into the Ross TA without clear language 

within the four corners of that document as of the date the Parties entered into the Ross TA is improper under 

standard canons of contract interpretation. Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex. 

1941). When the parties reduced the terms of their agreement to a written instrument, the Texas Courts—

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and the Federal Courts—give deference to the plain meaning of the parties’ intent to those terms contained 

within the four corners of the document. Id. Texas Courts should not, and do not, read additional provisions 

into the instrument unless this is necessary to effectuate the intent of the parties. Id. 

A binding arbitration clause effectuates a waiver of one’s right to exercise their judicial remedies under 

a contract. See also In re Bank of America, N.A., 278 S.W.3d 342, 346 (Tex.2009). cannot require Ross to 

waive his right to a jury trial and enforce an arbitration clause under the law. Additionally, 29 U.S.C. § 411(a)(4) 

states that “[n]o labor organization shall limit the right of any member thereof to institute an action in any court. 

. . .” (29 U.S.C. §411(a)(4)). Furthermore 29 U.S.C. §411(b) states that “[a]ny provision of the constitution and 

bylaws of any labor organization which is inconsistent with the provisions of this section shall be of no force 

or effect.” (29 U.S.C. §411(b)). Therefore, unions cannot force members to waive their right to trial in lieu of a 

mandatory contractual arbitration clause—whether in the TA or within APFA’s Constitution—the arbitration is 

voluntary. (29 U.S.C. §411(a)(4)). The Union argues that confidentiality and non-disparagement would infringe 

on union member’s rights to free speech under LMRDA §101(a)(2) and LMRDA § 431, however APFA is not 

allowed to credit report and pass resolutions claiming Ross defrauded the membership—this is not protected 

by LMRDA 101(a)(2). The members have the right to free speech, not leadership and certainly not APFA. 

(Martin v. Loc. 556, Transp. Workers Union of Am., No. 3:14-CV-0500-D, slip op. at 21 (N.D. Tex. May 19, 

2016). Additionally, the clause voiding the arbitration term for illegality would be severed as the TA contains 

a term preserving the remaining provisions despite invalidation of a singular term in the contract. 

Robert "Bob" Ross (hereinafter referred to as "Ross") and APFA entered the TA on March 1, 2018. 

(Doc. 239, PAGEID 6679 7-10). Per Texas law a contract for employment does not accrue a cause of action 

until the final payment is made "[i]f the parties' agreement contemplates a continuing contract for performance, 

the limitations period does not usually commence until the contract is fully performed.'..." IDA Eng'g, Inc. v. 

PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016). Final payment was made to Ross in

December, 2019 (App. pp. 507). Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988) (citation omitted). See 

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also Booker v. Real Homes, Inc., 103 S.W.3d 487, 492 (Tex.App. — San Antonio 2003, pet. denied) ("[A]ll

that is required to commence the running of the limitations period is the discovery of an injury and its general 

cause, not the exact cause in fact and the specific parties responsible."). Therefore, Ross brought his claims 

in a timely manner. Furthermore, Fed. R. Civ. Proc. §8(c) requires the affirmative defense of statute of 

limitations to be asserted in Defendants’ responsive pleading, which Defendants failed to assert this defense. 

ACCRUED AND UNUSED SICK AND VACATION DAYS: Under the terms of the Ross TA, Ross 

should have received all of his accrued and unused sick and vacation time, from April 1, 2016 through July 

31, 2018 and “agreed that Ross will continue to receive from APFA his current full salary and benefits, including 

full insurance coverage, through July 31, 2018.” (Doc. 239-8, PAGEID 7064:386-96; 433-448). O’Neil states 

that he determined that Ross was paid the correct number of days under the TA, however according to his 

calculation Ross was only paid for twelve days of sick leave in 2016 and twelve days of sick leave in 2017. 

(App. pp. 34-35). Ross accrued eighteen days of sick leave in 2016 and another eighteen days in 2017

according to documentation produced by Hal O’Neil. (App. pp. 34-35). Therefore, this statement is inaccurate.

END-OF-TERM PAYOUT PER APFA POLICY: If Ross had been paid with full APFA policy benefits 

he would have been entitled to (1) an additional payment of five sick days for his end-of-term sick bank pay—

payment made to National Officers for the transition period to assist new National Officers into office—and (2) 

his 2018 Cash Incentive benefit of $1,328.93. (App. pp. 5-26). O’Neil’s accounting review does not 

demonstrate that Ross received payment for this amount in 2018. (App. pp. 5-26).

CONFIDENTIALITY AND NON-DISPARAGEMENT CLAUSES: The TA mandates complete 

confidentiality of the contract terms and prohibits any disparagement of the parties involved, including Ross. 

(Doc 239, PAGEID 6685-88; App. pp. 6; 577-595). APFA admits it disclosed the TA to APFA members Melissa 

Chinery-Burns and Sandra Lee. (Doc 239-5, PAGEID 6933-40; App. pp. 541-576; 577-595). APFA claims 

that the LMRDA requires disclosure of the TA because LMRDA 431(b) and (c) require disclosure of officer’s 

compensation, and its terms to its membership. However, what Ross was paid under the TA was disclosed 

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in the LM-2s. The terms of Ross TA did not require disclosure under LMRDA 431(b) and (c) in a separate, 

only officers’ compensation. (Mallick v. International Broth. of Elec. Workers, 749 F.2d 771 (D.C. Cir. 1984))

(“P]olitical opposition to union officials, unaccompanied by any specific concern with transactions summarized 

on the LM-2 report, does not constitute just cause for rummaging through all the union records”). Another 

APFA Article VII Arbitration was held on issues of the Ross TA and whether it could be confidential and was

valid. (App. pp. App. pp. 541-576; 577-595). The Arbitrator determined that the Ross TA and its confidentiality

and non-disparagement provisions of were valid under the APFA Constitution. (App. pp. 541-576; 577-595).

APFA Counsel sought review of the Confidential provisions within the TA from the U.S. Department of Labor, 

and no requirement was imposed to disclose the Ross TA to members. (App. pp. 541-576; 577-595).

Furthermore, deference to a union’s internal governing decision as to the internal interpretation and application 

of its own rules. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953); Carr v. ALPA, 866 F. 3d 597, 603 (5th 

Cir. 2017) (the union’s interpretation of its constitution is entitled to judicial deference “unless it is patently 

unreasonable.”); O’Neil v. ALPA, 939 F. 2d 1199, 1206 (5th Cir. 1991); Newell v. IBEW, 789 F.2d 1186, 1189 

(5th Cir. 1986). 

Rank-and-file union member, Melissa Chinery-Burns, who is married to Joe Burns (General Counsel 

for AFA and currently "on loan" to APFA as a negotiating attorney), posted the details and a hand-written 

altered copy of the TA on social media, which is a breach of the TA's confidentiality clause. (App. pp. 508-521).

She then filed Disciplinary Charges against Ross and Vargas based on this TA, and disparaged both Plaintiffs 

in a savage attack of their characters that bears thousands of pages of public statements, emails, and 

complaints claiming embezzlement and fraud. (Doc 239, PAGEID 6679-84; Doc 239-1, PAGEID 6720-70;. 

Doc 239-8, PAGEID 7064-74; App. pp. 55-58; 97-100; 145-147). These attacks continue to this day, causing 

devastating effects on Ross, who has since been diagnosed with depression and anxiety, and sought help for 

concerns of self-harm. Regrettably, these facts are not in dispute. 

VI. PLAINTIFFS BREACH OF UNION CONSTITUTION CLAIMS SUBSTANTIATE VIOLATIONS OF

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THEIR DUE PROCESS RIGHTS UNDER THE LMRDA.

The APFA is an independent labor organization representing flight attendants employed by American 

Airlines under the Railway Labor Act. Defendants corrected the record from their previous position that 

Plaintiffs’ claim for Breach of a Union Constitution, as a collective bargaining agreement, falls within the scope 

of 301a of the LMRA as a breach of a contract between labor organizations and the officers are exempt 

thereunder per 29 LMRA § 185 in Footnote 25 of their Motion. (Doc. 235). APFA’s previous position led this 

Court to enter an order in error finding that the APFA Constitution is a contract between two labor 

organizations—a factual inaccuracy. (Doc. 235; PAGEID 5926-27).5 APFA’s Constitution is a contract 

between the union and its membership, and this is one of the facts Defendants counsel corrects on record 

from prior counsel’s misrepresentations by conceding that state law applies to a breach of APFA’s 

Constitution. (Doc. 236, PAGEID 5893). Defendants’ breach of APFA’s Constitution forms the basis for 

Plaintiffs’ violations of the LMRDA as the LMRDA requires unions to follow their own rules. Plaintiffs does not 

assert a 301a claim, and federally protected rights to exemption for a union officer’s conduct under 29 LMRA 

§ 185 does not apply to APFA union officers under the Railway Labor Act—this is the reason Plaintiffs did not 

assert the affirmative defense—it was neither honest nor accurate and a violation of the Texas R. of Ethics 

3.03. 

Defendants argue Plaintiffs have not exhausted their internal remedies on the one hand and maintain 

that their disciplinary award is “final and binding.” Plaintiffs argue the disciplinary award is based on egregious 

violations of the APFA Constitution and Policy and thereby a violation of the LMRDA. Either Defendants can 

5 “Section 301(a) states: "Suits for violation of contracts between an employer and a labor organization representing employees 

in an industry affecting commerce as defined in the Act, or between any such labor organizations, may be brought in any district 

court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the 

citizenship of the parties." 29 U.S.C. § 185(a). . . . The § 301 issue is stated as follows by both petitioner and respondents: ‘Does 

section 301 of the Labor-Management Relations Act create a federal cause of action under which a union member may sue his 

union for a violation of the union constitution?‘ As the text makes clear, the answer to that question is in the affirmative but only if 

it is charged that the breach alleged violates a contract between two labor organizations.” Wooddell v. International Brotherhood 

of Electrical Workers, Local 71, 502 U.S. 93, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991).

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assert that their Disciplinary Arbitration is “final and binding” and there is no means to appeal, which means 

Plaintiffs exhausted their internal remedies—or they can provide Plaintiffs a remedy for such an overt 

manipulation of the APFA Constitution. Plaintiffs pursued their claims precisely because they had exhausted 

their internal remedies. Plaintiffs offered to re-arbitrate these issues at the Settlement Conference—

Defendants filed a Settlement Conference update stating that federal law requires Plaintiffs to pursue these 

claims. (22—00430; Vargas v. APFA, Doc. 81). 

VII. PLAINTIFFS ASSERT VALID CLAIMS UNDER LMRDA §§ 411(A)(2), 411(A)(5), AND 529

AGAINST APFA. 

The LMRDA protects union member’s right to §§411(a)(2) free speech and assembly; 411(a)(5) due process

and notice; and 529 against improper disciplinary actions and retaliation. (29 U.S.C. §§ 411(a)(2), (a)(5); and 

529). A member may pursue a violation of either the individual rights or any wrongful discipline upon 

exercising those rights protected by the Act. (29 U.S.C. § 529). 

A. 29 U.S.C. § 529 Retaliation or Otherwise Disciplined: 

§529 and §412 both provide a claim to a member based on an unlawful restriction on their membership 

rights, however §529 is the proper claim to bring when the punishment is imposed in retaliation for exercising 

a protected right. (Martin v. Loc. 556, 3:14-CV-0500-D, (N.D. Tex. Sep. 3, 2014)). Additionally, the Martin Case 

held that this Court will “. . . assume that a ban against running for union office is a form of discipline that is 

actionable under § 411(a)(5). (Id.) (citing Adams-Lundy I v. APFA, 731 F.2d 1154, 1156).

Plaintiffs were fined, removed from office, and banned from holding union elected positions for life by 

APFA. (App. pp. 95-96; 97-100). As stated in Martin, a complete ban on a member’s right to run for elected 

positions within the union falls within the scope of §529 discipline requiring the union to comport with due 

process requirements under §101(a)(5).

The APFA Constitution Art. VII, Sec. 2B states: 

The National Secretary shall cause a copy of the charges to be served upon the accused and the accuser within 

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seven (7) days following receipt of the charges. Such notification shall be by registered mail, return receipt requested 

to their last known addresses, and shall furnish the accused and the accuser a description of all relevant procedures. 

(Def. MSJ App. pp. 30-31).

APFA admits that it removed Ross from his elected position on the BOD. APFA also admits that 

Plaintiffs have been banned from ever running for office. APFA failed to give Plaintiffs’ proper notice of the 

original charges filed against them as provided under APFA’s Constitution as seen in the summary judgment 

evidence filed and attached to Defendants’ Motion marked as Tab 1 the Black Affidavit: 

• Exhibit C – Original Ross Charges filed on November 18, 2020; 

• Exhibit D – Original Vargas Charges filed on November 20, 2020; 

• Exhibit E – Notice of the Original Ross charges dated November 19, 2020 without any attachments included; 

• Exhibit F – “Amended” Ross Charges filed on November 24, 2020; 

• Exhibit G – “Amended” Vargas Charges filed on November 24, 2020; 

• Exhibit H – Notice of “Amended” Ross Charges filed on November 24, 2020; 

• Exhibit I – Notice of “Amended” Vargas Charges filed on November 24, 2020; 

• Exhibit J – Executive Committee Votes on Original Ross Charges filed on November 18, 2020 as valid, specific, and 

timely. 

• Exhibit K - Executive Committee Votes on Original Vargas filed on November 20, 2020 as valid, specific, and 

timely. (Doc.236-1; PAGEID 5948-55). 

In Plaintiffs’ Motion for Summary Judgment, Ross included a copy of the notice of charges he received

for the November 18, 2020, and he only received the first page of charges filed against him. (239-2 PAGEID 

6775-6776, App. pp. 97-98) 

B. LMRDA: Due Process Violation and Breach of Union Constitution: 

The LMRDA "is not meant as a vehicle for judicial oversight of union activity, but only as a means of 

addressing unreasonable and arbitrary actions by union officials. The federal courts do not sit as a `superreview' board of internal union grievances unless there is evidence of impropriety in the proceedings."

(emphasis added) (Hoffman v. Kramer, 362 F.3d 308, 316 (5th Cir. 2004) (quoting United Food & Com. 

Workers Int'l Union Loc. 911 v. United Food $ Com. Workers Int'l, 301 F.3d 468, 475 (6th Cir.2002)). 

"Not all of the due process protections available in the federal courts apply to union disciplinary 

proceedings. . . . [a] violation of a procedural provision of a union's constitution is actionable only if the violation 

deprived the party of a full and fair hearing under the LMRDA." Martin v. Loc. 556, Transp. Workers Union of 

Am., No. 3:14-CV-0500-D (N.D. Tex. May 19, 2016) (quoting Int’l Bhd of Teamsters, 247 F.3d at 385, 387). 

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Additionally, “[t]he LMRDA [§ 411 (a)(5)] gives plaintiffs the right to present evidence and to cross-examine 

witnesses. . . .’” (emphasis added) Martin v. Loc. 556, Transp. Workers Union of Am., No. 3:14-CV-0500-D 

(N.D. Tex. Sep. 3, 2014 (quoting Frye v. United Steelworkers, 767 F.2d 1216, 1224 (7th Cir. 1985). Therefore, 

a claim under §411(a)(5), Plaintiffs must show that APFA’s conduct either (1) violated the APFA Constitution 

or Policy which resulted in Plaintiffs’ loss of a full and fair hearing; or (2) infringed on Plaintiffs’ right to present 

evidence or cross-examine witnesses.

1) APFA CONSTITUTION AND POLICY: ARTICLE VII DISCIPLINARY ARBITRATION

PROVISIONS HAVE BEEN VIOLATED. 

Article II of the APFA Constitution grants members a Bill of Rights. The applicable section states: 

Section 3. BILL OF RIGHTS OF MEMBERS: 

A. All members of the APFA shall have the right of free speech, freedom of assembly and freedom to 

dissent. 

B. All members of the APFA shall have access to all administrative and financial reports and 

records except as provided in Section 5.B(1) of this Article II [inactive members]. 

C. All members of the APFA shall have the right to individual privacy. 

D. All members of the APFA shall have the right to due process and equal representation. (APFA Const. 

Art. II, Sec. 3 et. seq.). (Doc. 236-1, PAGEID 5961) 

All APFA union members are entitled to financial reports and records if you are an active member of 

the union. Article VII of the APFA Constitution provides for disciplinary proceedings to be taken if a member 

commits a defined stipulated violation of the APFA Constitution and Policy or violates the law. Not turning 

over the Confidential Memo violated APFA Constitution, Art. II, Section 3(B). 

APFA Policy Manual, Section 17 entitled “Article VII Administrative Policies and Procedures” more 

particularly defines the Article VII Disciplinary Hearing proceedings and provides that: 

 K. ORDER OF PROCEEDINGS

2. The Arbitrator shall afford each party a full opportunity for the presentation of relevant proof. 

(APFA Policy, Sec. 17K). 

N. EVIDENCE 

1. The parties may offer such evidence as they desire and shall produce such additional 

evidence as the Arbitrator may deem necessary to an understanding and determination of the 

dispute. (APFA Policy, Sec. 17N). (Doc. 236-1, PAGEID 6011-6012). 

Plaintiffs’ rights to due process under LMRDA § 101(a)(5) were violated because they were deprived 

of their rights to receive, request, or inspect all relevant documents and financial reports and records as 

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required by APFA’s Constitution. “[T]he fundamental due process rights guaranteed under the LMRDA include: 

(1) the existence of "some evidence" to support the charges made, (2) an impartial tribunal, (3) an opportunity 

to confront pertinent witnesses, and (4) an opportunity to present evidence. . . .” (International Bhd. of 

Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 617, 28 L.E d.2d 10 (1971). Plaintiffs were 

denied the right to present the evidence they desired under APFA Policy Section 17 (N) (1). 

2) DEFENDANTS ALTERED EVIDENCE BY WITHHOLDING PARTS OF AN 

ACCOUNTING DOCUMENT THAT REFUTED DEFENDANT’S DISCIPLINARY 

ACCUSATIONS.

To be subject to a disciplinary proceeding, there must be “some evidence” to support charges that 

would subject a person to discipline and satisfy the due process requirements under LMRDA § 411(a)(5). 

Court review of the disciplinary arbitration is appropriate here because “there is evidence of impropriety in 

the proceedings.“ (Martin v. Loc. 556, No. 3:14-CV-0500-D (N.D. Tex. Sep. 3, 2014). Plaintiffs do not ask 

the court to act as a “’super-review’ board of internal union disciplinary hearings.” (Ibid.). 

In the present case, documents were sought out and presented citing that they were from a statelicensed CPA. But those documents were tainted because they were not accompanied by the Confidential 

Memo, which disavowed the assertion. The Confidential Memo was never presented to the APFA BOD or the 

APFA Executive Committee, or the APFA Article VII Arbitrator, or initial to McGaughey Reber & Associates, 

Inc. d/b/a Diversified Credit Systems (“Diversified Credit”) (Doc. 239, PAGEID 6820-23; Doc. 239-3, PAGEID

6863-6891; Doc. 239-5; PAGEID 6895--6903). Removing the Confidential Memo from the original document 

delivered by the CPA and citing his credentials as a CPA constitutes to fraudulent misrepresentation made to 

the governing bodies of the union charged with review and oversight of the union’s disciplinary proceedings. 

(Doc. 239-5; PAGEID 6895--6903). Only valid, timely, and specific disciplinary charges should proceed to 

arbitration hearings. However, the concealment of the Confidential Memo compromised the due process of 

the Executive Committee’s review and vote on whether the disciplinary charges met APFA Constitutional 

standards. Furthermore, the submission of fraudulent misrepresentations during the discovery process and 

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hearing deprived the Plaintiffs, including Mr. Ross, of their right to inspect the documents, question witnesses, 

and properly mount a defense based on the evidence. It is a clear violation of the APFA Constitutional 

provision Art. II, Sec. 3B which grants all active members the right to all financial reports and records. 

Referencing the “accounting review” while concealing the Confidential Memo is an attempt to mislead 

the audience in order to make them believe it is an audit—the Arbitrator had notice of this accounting audit 

from the evidence submitted before him as well. (Doc. 239, PAGEID 6793-6816). There is also evidence that 

the National Officers referred to the accounting review as an “audit” rather than an “accounting review” which 

would constitute a material misrepresentation of the nature of the documents and the underline determinations 

by Hal O’Neil. (App. pp.71-94). Presenting the miscalculations to the union’s governing body, while withholding 

the Confidential Memo which explains the distinction from the licensed and certified public accountant who 

issued the calculations and opinion is misleading. (App. pp. 71-94; Doc. 239-5; PAGEID 6895--6903). The 

union argues it was not a party to the Disciplinary hearing, however it conducted the disciplinary proceedings. 

The evidence was controlled by, presented by, testified to, and delivered by the APFA National Officers. The 

National Officers produced a substantial number of documents the day before Vargas’s Disciplinary hearing, 

and the day of the Ross hearing in violation of APFA’s Policy requiring documents to be submitted 30 days 

prior to the date for the hearing and that “The exchange of documents and witness lists shall be coordinated 

through the Office of the National Secretary.” (Doc. 236-1; PAGEID 6011; 236-1; PAGEID 6013). App. pp. 

156-197) The APFA National Officers requested the accounting review, concealed the Confidential Memo, 

presented the accounting review as an “audit” at the October 2020 BOD meeting, and voted in favor of sending 

Plaintiffs to Article VII hearings at the December 1, 2020 Executive Committee meeting. (App. pp. 1-33; 71-

94; 103-116; 117-122;). In light of these facts, it is easy to see how APFA influenced the Article VII Arbitration 

process to achieve this skewed Arbitration Award. APFA was not a neutral party to this proceeding. 

3) PLAINTIFFS WERE DEPRIVED OF PROPORTIONATE TIME.

Ross received only 2 hours and 51 minutes to present his evidence and witnesses, whereas the 

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charging party received 9 hours and 23 minutes. (Doc. 239-2, PAGEID 6779-97). The disparity is clear. Mr. 

Ross was not given an adequate opportunity to present evidence or properly cross-examine witnesses. (Doc. 

239-2, PAGEID 6779-97). 

4) PLAINTIFFS WERE PREVENTED FROM PRESENTING EVIDENCE AND FROM 

CROSS-EXAMINING WITNESSES. 

Ross was only able to admit eleven exhibits into evidence during his Arbitration whereas ChineryBurns was able to enter forty-eight exhibits into record, all over Ross’s objection to hearsay. Vargas was 

unable to present evidence from witnesses that were intimidated and harassed by the union. Both Plaintiffs 

were denied the opportunity to properly present their case as the Arbitrator rushed both Ross and Vargas 

through the presentation of their evidence, examination of their witness, to a conclusion so he could make a 

flight he had scheduled. (App. pp. 529-531; ). Additionally, since relevant documents were withheld, Plaintiffs 

were not able to properly cross-examine their witnesses. (Doc. 239, PAGEID 6933-6970; 7064-7074; App. 

529-531; 600-602). Harris testified that Ross owed the overpayment under the TA without disclosing anything 

about the Confidential Memo from the O’Neil accounting firm he and the National Officers received over a 

year before testifying in both Vargas’s and Ross’s hearings. (Doc. 239, PAGEID 6933-6970; 7064-7074; App. 

529-531; 600-602). 

Most importantly, neither Mr. Ross nor Mr. Vargas could introduce evidence related to Mr. Ross’s TA. 

(Doc. 239, PAGEID 6933-6970; 7064-7074; App. 529-531; 600-602). This is strange considering the only

charge that met the timeliness standard under APFA’s Const. Art. VII Sec. 2D was an alleged overpayment 

made by Vargas to Ross based on the terms of Ross’s TA. (Doc. 239, PAGEID 6933-6970; 7064-7074; App. 

529-531; 600-602). 

Mr. Vargas was also not allowed to present evidence regarding Mr. Ross’s TA. (Doc. 239, PAGEID 

6933-6970; 7064-7074; App. 529-531; 600-602). This seems counterintuitive considering the only timely

charges brought against Vargas and Ross were the improper calculation of the per diem for payment to Ross 

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under the TA.6 Discussion relating to the TA contract was strictly prohibited from his Arbitration, or anything 

related to Ross’s overpayment. The overpayment allegedly owed under the TA formed the only charge that 

was filed timely per APFA Const. Art. VII, Sec. 2 D (1) “. . .within sixty (60) days after the accuser becomes 

aware, or reasonably should have become aware, of the alleged offense.” (Doc. 236-1, PAGEID 5978).

Finally, Mr. Ross was found guilty regarding the overpayment of these wages, and his refusal to pay 

it as indicated in the Arbitration Award. (Doc. 239, PAGEID 6933-6970; 7064-7074; App. 529-531; 600-602). 

Vargas was found guilty of paying Ross under his TA. (Doc. 239, PAGEID 6933-6970; 7064-7074; App. 529-

531; 600-602).. Whereas a cover letter from the APFA accounting firm was concealed, which absolved Ross 

and Vargas of making overpayments under the Ross TA. (“Confidential Memo”). The Confidential Memo was 

intended for APFA leadership to review. ((Doc. 239, PAGEID 6933-6970; 7064-7074; App. 529-531; 600-

602). Additionally, Ross was not provided any opportunity to introduce or discuss his TA at his Arbitration 

hearing whatsoever, and yet the Arbitration Award rendered him guilty on those issues related to the Ross 

TA. (Doc. 239, PAGEID 6933-6970; 7064-7074; App. 529-531; 600-602).

Evidence and testimony indicate that the union’s records are not properly maintained. (Doc. 239-6, 

PAGEID 6948; 239-8, PAGEID 7063; App. pp. 156-197). Harris admitted to the loss of an entire box of relevant 

documents and receipts from 2017 that misplaced by the union. (Doc. 239-8, PAGEID 7063 App. pp. 156-

197). However, the majority of the documents admitted into record and taken under review to render the 

Arbitration Award were from these same business records, which could potentially be considered unreliable 

hearsay documents. (Doc. 239-6, PAGEID 6948; 239-8, PAGEID 7063; App. pp. 156-197). In both Ross’s 

and Vargas’s Arbitrations, the union deprived the charged parties, the arbitrator, the BOD and the EC the 

6 The Court should note the important dates: Aug. 3, 2020: Email from Hedrick to Ross: disclosure of Transition Agreement to 

members; Sept. 24, 2020: deadline for the O’Neil Accounting Review; Sept. 24, 2020: Chinery and Lee visited and viewed the 

O’Neil Accounting Review; Oct. 28, 2020: the Annual BOD meeting - Resolutions 11, 12, 13, 15 were discussed but postponed 

for a vote – proposed changes for National Officers moving expenses, credit card policies, rental cars, mileage, furniture, 

apartment leases – those items Chinery charges Ross for violations; Nov. 10, 2020 and Nov.24, 2020: APFA demand for 

repayment from Ross; Nov. 18, 2020 and Nov. 20, 2020: Chinery files Article VII charges on Ross and Vargas respectively; 

Dec. 1, 2020: EC Annual Meeting – vote to send Chinery v. Ross and Chinery v. Vargas to Arbitration. 

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proper opportunity to access and to review those documents. (Doc. 239, PAGEID 6820-6824; 6863-6891; 

6895-6909). The four National Officers received the Confidential Memo on October 22, 2020, which states 

that the payments made under the Ross TA appear proper and in compliance with its terms. (Doc. 239, 

PAGEID 6820-6824; 6863-6891; 6895-6909). However, the four National Officers were present at the BOD 

meeting and presented documents about Ross’s alleged overpayment owed to APFA and at the December 

1, 2020 EC meeting and voted on whether the charges met APFA Constitutional requirements. (Doc. 239, 

PAGEID 6820-6824; 6863-6891; 6895-6909). The National Officers were subpoenaed in both Ross’ and 

Vargas’ Arbitration hearings, produced all of the documents submitted at the hearing, were the only party 

allowed to communicate with the Arbitrator, verified all of the documents, Harris testified at both, Black testified 

at the Vargas’ hearing, APFA’s counsel submitted amicus briefs against all three of the Ross Administration’s 

Arbitration Hearings. (Doc. 239, PAGEID 6820-6824; 6863-6891; 6895-6909).

Finally, there were multiple witnesses both Plaintiffs served with a subpoena to testify at their

respective Arbitration hearings, not limited to but including Julie Hedrick and Josh Black, who simply never 

attended, and thus the Plaintiffs were not afforded an opportunity to question these witnesses. (Doc. 239, 

PAGEID 6820-6824; 6863-6891; 6895-6909). This potentially infringes on Plaintiff’s right to present oral 

testimony, may violate the APFA constitution, and could conflict with the rule this court established in the 

Martin v. TWU case. (Martin v. Loc. 556, Transp. Workers Union of Am., No. 3:14-CV-0500-D, slip op. at 21 

(N.D. Tex. May 19, 2016). 

C. Plaintiffs’ Rights Under the LMRDA of Free Speech were Violated. 

“Every member of any labor organization shall have the right to meet and assemble freely with other 

members; and to express any views, arguments, or opinions. . . .” (29 U.S.C. § 411(a)(2)). "The primary 

difference between § 529 and § 412 is that § 529 protects against retaliation for the exercise of any right 

secured under the LMRDA, whereas § 412 only protects rights secured under §§ 411-15." (Martin v. Loc. 

556, Transp. Workers Union of Am., AFL-CIO, Dist. Court, (ND Texas 2016 May 19 2016)) (quoting United 

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Steel Workers Loc. 12-369 v. United Steel Workers Int'l, 728 F.3d 1107, 1115 (9th Cir. 2013)). 

In Martin v. TWU, 

“If a plaintiff can show that the removal from [union] office ‘was part of a scheme to subvert the union's basic 

democratic structure or otherwise directly implicated rights of members,’ the plaintiff can prevail on a claim for relief 

as an officer under § 412. (Martin v. Loc. 556, Transp. Workers Union of Am., No. 3:14-CV-0500-D, slip op. at 13 

(N.D. Tex. Sep. 3, 2016)). (quoting Adams-Lundy v. Ass'n of Prof'l Flight Attendants, 731 F.2d 1154, 1156 (5th Cir. 

1984)). 

If the court decides Plaintiffs plead sufficient facts to reasonably infer that APFA disciplined Plaintiffs 

for exercising his rights to free speech as members rather than as officers, or that Ross’s dismissal from the 

APFA BOD was part of a pattern of intimidation and stifled dissent, then Plaintiffs shall prevail.

The Ross Administration expressed opposition to an affiliation or merger with AFA upon taking office. 

(Doc. 239-6, PAGEID 6964 pp. 286-292; 293; 386-96; 409; 412-423). Since, leaving office, Ross has openly 

and vocally opposed an APFA/AFA merger while in office as National President, Vargas and Martin both 

supported Ross’s position on this matter. (Doc. 239-6, PAGEID 6964 pp. 286-292; 293; 386-96; 409; 412-

423). Ross maintains a membership on a social media group page called “AFA No Way, We Are APFA!” 

where he regularly comments against actions of APFA leadership that seek a merger of the two unions. (Doc. 

(Doc. 239-6, PAGEID 6964 pp. 286-292; 293; 386-96; 409; 412-423). The evidence illustrates the Ross 

Administration opposed any possible AFA/APFA merger. (Doc. 239-6, PAGEID 6964 pp. 286-292; 293; 386-

96; 409; 412-423). Ross regularly speaks of his opposition to the LUS political faction, both on and off the 

BOD seat. Doc. 239-8, PAGEID 7064 pp. 386-96; 409; 412-423). He often opposed LUS candidates for office 

due to their support of a merger between the two unions. Doc. 239-8, PAGEID 7064 pp. 386-96; 409; 412-

423). A pattern of intimidation and harassment from APFA leadership continues to stifle free speech and free 

association of the APFA membership. 

Defendants’ argue that the “but-for” test should apply, however this jurisdiction has not adopted this 

rule, and it disregards retaliation claims for free speech and association, and removal of officers from office 

based on free speech and association rights. This test should not apply to the application of LMRDA 

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§411(a)(2). 

29 U.S.C. § 411(a)(2) protects a union member’s right to free speech and association. Defendant, 

APFA, violated LMRDA § 411(a)(2) by seeking disciplinary charges, achieving an award that sought his 

removal from the APFA BOD, ban him for life from holding union office, and levying fines. There is a pattern 

of intimidation and stifled dissent within the union. 

5) FACTS SHOWING DEFENDANTS STIFLED FREE SPEECH

The facts evidencing these issues are laid out specifically in Plaintiff’s Motion for Summary Judgment 

and detailed therein. (Doc. 239, PAGEID 6964-6897; 7064-7102; App. pp. 522-528).The details include a 

barrage of email demands from Chinery to APFA leaders to pursue the Ross Administration for 

embezzlement and theft (App. pp. 140-147; 117-122; 577-595); release of financial records by APFA for 

various supporters of the Ross Administration (App. pp. 140-147; 117-122; 577-595); release of people’s 

private social security numbers and private financial information (App. pp. 537-540); APFA passed 

Resolutions that claim Ross “defrauded” APFA members (App. pp. 97-100; 140-147; 117-122; 577-595); and

prohibit participation in a lawsuit filed against the union in violation of the LMRDA § 411(a)(4) (App. pp. 123-

124); Cease and Desist letters sent to members that speak out against Joe Burns, General Counsel for AFA

(App. pp. 125-139), threats of lawsuit and social media attacks by various unknown APFA members (App. 

pp. 577-595), anonymous complaints submitted to AA human resources (Doc. 239, PAGEID 7064-7073; 

App. pp. . 97-100; 140-147; 117-122; 577-595). 

The pattern of abuse, harassment, intimidation, and continued threats are undeniable. It is an 

atmosphere of chaos and fear designed to create distrust and internal conflict by those who vocalize 

opposition to the current leadership. The purpose, and more importantly, the effect on the APFA members is 

a culture of suppression to achieve the silent obedience by LAA flight attendants that would otherwise dissent 

to the LUS platform. APFA members that speak out publicly become the victim of anonymous reports made 

against them to AA human resources, receive threats of legal action, disciplinary charges from their union, 

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or financial audits of their past union-related expenses. This conduct is not exhaustive, but evidentiary of a 

growing pattern of behavior by the union intended to silence its opposition and control the rhetoric within the 

union. The looming threat hangs in the air—whoever speaks out next may become the next “Bob Ross.”

VIII. PLAINTIFFS CAN SUBSTANTIATE CLAIMS FOR COMMON LAW FRAUD AND DEFAMATION

1) VARGAS IS ENTITLED TO RECOVER FOR COMMON LAW FRAUD FROM APFA, 

JULIE HEDRICK, AND ERIK HARRIS ARE JOINTLY AND SEVERALLY. 

“Under Texas law, a plaintiff must establish six elements to prove actionable common law fraud: (1) 

the making of a material representation; (2) that was false; (3) that, when the speaker made it, the speaker 

knew was false or made it recklessly without knowledge of its truth and as a positive assertion; (4) that the 

speaker made it with the intent that it should be acted on by the other party; (5) that the other party acted in 

reliance on it; and, (6) that the other party suffered injury thereby.” (Boggan v. Data Systems Network Corp., 

969 F.2d 149-153 (5th Cir. 1992) (citing Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983)). 

"Under Texas law, an agent is someone authorized by a person or entity to transact business or manage 

some affair for that person or entity." Tex. Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F. 3d 644, 650 (5th

Cir. 2001). 

Vargas asserted the elements of fraud in his original petition filed against APFA, Hedrick and Harris. 

APFA, Harris and Hedrick acting as authorized agents on behalf of APFA, materially misrepresented the facts 

surrounding Ross’s TA. (Doc, 239, PAGEID 6679-6700; App. p. 1-33). Harris and Hedrick alleged Vargas 

overpaid Ross because Vargas’ admitted that he approved miscalculations from APFA Senior Accountant, 

Rene Berthelot, for the end-of-term payouts. (App. pp. 101-102). Misrepresentations were made by the 

National 01-Officers are outlined in a letter from Erik Harris dated November 24, 2020 to Ross in which Harris 

states: 

I am sending this letter to follow-up on our telephone conversation on November 10, 2020. During our call, 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.. 

(Doc. 239, PAGEID 6689). 

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This letter confirms statements made to the APFA BOD, the APFA EC, to the Plaintiffs, to the Article 

VII Arbitrator, and to Diversified by the APFA National Treasurer Erik Harris and APFA National President 

Julie Hedrick on behalf of the union and individually. (App. pp. 103-116). The October 28, 2020 BOD meeting 

minutes confirm this fact as it highlights the reliable on an “audit” by an independent auditor. (App. pp. 71-94;

103-116;). Furthermore, Martin attached an email in which the APFA General Counsel drafts a proposed 

email to Chinery confirming that the APFA BOD held no “finding” at the October 28, 2020 meeting—in direct 

contradiction to the November 24, 2020 letter. (App. pp. 117-122. This misrepresentation was echoed in the 

Verification of Debt letter from Diversified Credit—proving that these statements were made to Diversified 

Credit. (Doc. 239, PAGEID 6679 ). This misrepresentation is even reflected in the Ross Arbitration Decision 

showing this misrepresentation was made to the Arbitrator Armendariz—who rendered decisions on Ross and 

Vargas’s Arbitration Awards. (Doc 239-2, PAGEID 6793); (Doc 239-7, PAGEID 6989 Vargas decision Ross 

decision). Despite Hal O’Neil’s rather confusing testimony in Defendants’ Summary Judgment Motion—the 

misrepresentation that the “overpayment” was made and owed under the TA, was the result of an audit, and 

that the APFA BOD held a “finding” are substantially clear. There is no resolution on record, no reflection of 

a quorum having been met, per APFA Constitution and Policy, no clear record or meeting minutes showing 

the BOD ever made this decision that Ross owed this money, as compared to the BOD Resolution from 2019. 

(App. pp. 101-102, 117-122). 

The Confidential Memo proves that APFA, Harris and Hedrick acting as its authorized agents on its 

behalf, had notice on October 22, 2020 that the overpayment debt was not valid. (App. pp.101-116). The 

Confidential Memo states that the payments to Ross appear proper and in compliance with his Transition 

Agreement. Furthermore, Harris represented the “accounting review” as an audit, claimed the BOD had a 

“finding” that Ross owed the overpayment to APFA, and concealed the Confidential Memo despite Ross’s 

request to review the documents from the independent auditor. (Doc 239, PAGEID 117-122; Ross Aff emails 

to Erik; App. pp. 117-122). 

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The Confidential Memo specifically defines the review as not expressing any form of an opinion about 

the per diem calculation, and that the payments made to Ross “appear appropriate and in compliance with 

the transition agreement.” (App. pp. 103-116). Therefore, Harris, Hedrick, and APFA misrepresented the 

accounting firm’s conclusions that Ross was overpaid. Harris stated that the BOD had a “finding,” whereas 

the APFA BOD never held any formal finding nor had any formal vote. (App. pp. 117-122). Misrepresentations 

were made to the APFA BOD on October 28, 2020 Doc. 239-5, PAGEID 6895-903 pp. 217-25)), to Ross in a 

telephone conversation on November 10, 2020 (App. pp. 103-116), then to Ross in writing on November 24, 

2020 (App. pp. 103-116), again to the APFA BOD in an email on November 25, 2020(Doc. 239-5, PAGEID 

6895-903), and to the APFA EC to vote on the Article VII disciplinary charges against Ross and Vargas on 

December 1, 2020, by Harris and Hedrick to Ross via telephone calls during January of 2021 (App. pp. 103-

116) and at the Article VII hearings against Ross and Vargas. (App. pp. 103-116). 

Harris, Hedrick, all APFA National Officers, and APFA’s Counsel were in receipt of the Confidential 

Memo on October 22, 2020. (App. pp. 103-116). When Nena Martin subpoenaed a copy of all emails 

disseminating th Confidential Memo, Harris re-sent the original email from O’Neil to the National Officers and 

in-house counsel on April 20, 2022 to create an email that displayed a different date in which the National 

Officers had notice of the Confidential Memo. (App. 103-116). This illustrates Harris’s attempt to conceal

evidence that the National Officers had notice of the Confidential Memo prior to these misrepresentations 

being made. 

When Vargas was told that APFA’s outside accountant, Hal O’Neil, determined Ross was overpaid 

under the TA, he believed this misrepresentation to his detriment. (App. pp. 1-33; 103-116). Hal O’Neil is a 

licensed independent accountant. Vargas worked with him as the prior National Treasurer—he was a trusted 

accountant to their union. In 2019, Vargas met at O’Neil’s office, along with Martin and Dunaway, to review 

an audit of their 2018 exit payments. (App. pp. 1-33; 103-116). At this meeting, O’Neil could not adequately 

explain the calculation for the overpayments, but told Vargas, Martin and Dunaway to repay the overpayment 

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to APFA. Thereafter, APFA counsel met with Vargas and the Board of Directors in 2019. The APFA BOD

threatened to sue Vargas for overpayment unless he repaid the overpayment to APFA, however if he agreed 

to repay the monies owed, APFA agreed to release Vargas from liability for his actions. Vargas acquiesced to 

stop the continued harassment. 

When Vargas was informed that an independent accounting firm had determined Ross was overpaid, 

he reasonably believed this assertion, given his previous experience in 2019 with Hal O’Neil’s firm and the 

APFA Board of Director’s demand for repayment from him, Martin and Dunaway (App. pp. 1-33; 103-116)). 

Vargas believed the misrepresentation and did not seek to verify the matter with the accountant, or the APFA 

BOD. This was because APFA had previously pursued the three other Ross Administration officers, thus it 

seemed plausible that the accountant could determine that an incorrect formula was used to pay Ross. Vargas 

accepted this misrepresentation. Consequently, Vargas did not seek additional evidence of overpayment, nor 

introduce evidence to contradict the calculations used in his disciplinary hearing. He accepted the assertion

that Ross owed an overpayment under the Transition Agreement. 

This was precisely the reason that APFA, Harris, and Hedrick used the 2019 formula change to pursue 

Ross for disciplinary charges. (App. pp. 1-33; 103-116). The misrepresentation was put forth precisely 

because Vargas admitted that he approved the payments Berthelot miscalculated using a change in the per 

diem from base pay to taxable income. Therefore, it was an easy misrepresentation to pursue to induce 

conformity with the Article VII Arbitration process, so that APFA and the National Officers could discipline 

Vargas first for changing the formula and Ross for not paying the debt back—the plan was to ban Ross for life

because he posed the greatest risk if he ran for National President—he won by over 70% in 2016. They got 

Vargas to get to Ross.

1) ROSS IS ENTITLED TO RECOVER FOR DEFAMATION AGAINST APFA, JULIE 

HEDRICK, AND ERIK HARRIS, JOINTLY AND SEVERALLY. 

“The elements of a defamation claim under Texas law for a private figure are ‘that the defendant: (1) 

published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting negligently with regard 

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to the truth of the statement.’” Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L, 8 (N.D. Tex. 

Feb 17, 2016) (quoting Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 596 (5th Cir. 2007). "A 

defamatory statement is one in which the words tend to damage a person's reputation, exposing him or her to 

public hatred, contempt, ridicule, or financial injury." Id. at 8 (quoting Encompass Office Solutions, Inc. v. 

Ingenix, Inc., 775 F. Supp. 2d 938, 958 (E.D. Tex. 2011). When defamation is asserted in the context of 

furnishing information to a credit report, i.e. defamation of credit, typically malice or willful intent will overcome 

any defense of preemption asserted. Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 470-71 (5th Cir. 2006) 

(citing 15 U.S.C. § 1681h(e)). 

Harris published misrepresentations claiming that Ross owed APFA due to an overpayment under 

the TA. In particular, the overpayment debt was assigned to Diversified Credit who published it to his credit 

report. (App. pp. 1-33; 103-116). Harris and Hedrick misrepresented the nature of O’Neil’s accounting review 

as an “audit” and despite the Confidential Memo which clearly states the opposite. In particular, Defendants 

called and spoked with Ross multiple times regarding the debt he was being forced to repay. (App. pp. 48-

58). APFA’s meeting minutes from the October 28, 2020 BOD meeting drafted by APFA National Secretary 

state: 

“The agenda item - Former National Officer Payout - pertains to the payout to a former National Officer, the 

documentation and calculations done by APFA, and results of an audit by an outside auditor.” (App. pp. 

346). 

“Diversified admitted in its original petition filed with the Tarrant County Justice Court that it was the 

assignee or servicer of the account owed to APFA, that Ross was overpaid and attached the Confidential 

Memo and the calculations of the overpayments under the TA. (Doc. 239-9, PAGEID 7111-7129). As seen 

above, the defamatory statement Harris made was that Ross owed a debt to APFA of $5,436.47 based on an 

overpayment made under the TA. Doc. 239-10, PAGEID 7111-7129). Harris published this statement, as the 

APFA National Treasurer, verbally from Harris to the APFA BOD on October 28, 2020, from Harris to Ross 

via telephone on November 10, 2020, from Harris to Ross via the Overpayment-of-Wages Letter on November 

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24, 2020, from Harris to the APFA BOD via forwarding the Overpayment of Wages Letter on November 25, 

2020, from Harris to the Article VII Arbitrator through sworn testimony in the Ross and Vargas Arbitrations, 

and finally from Harris to Diversified Credit which was published to Ross’s credit report to the American Airlines 

Federal Credit Union. (App. pp. 62-70). Diversified Credit admits it published this statement to Ross’s credit 

report at the direction of and based on the statements made by Harris, Hedrick, and APFA and even left 

voicemails for Ross to collect the debt. (Doc. 23, PAGEID 168; App. pp. 36-42; 62-70; 97-100; 103-116)). 

Attached hereto are transcriptions for recorded voicemails left to Ross regarding these statements to collect 

the alleged overpayment debt by the Defendants.(App. pp. 36-42).The Court should note that these 

statements were made after both Harris and Hedrick had received notice of the Confidential Memo. (App. pp. 

62-70; 97-100; 103-116). Harris and Hedrick both sent Ross’s account to collections as seen in the voicemails 

left for Ross (App. pp. 36-42). Furthermore, APFA authorized this conduct in a resolution at the APFA BOD 

meeting in March of 2021. When Ross applied for credit with the American Airlines Federal Credit Union in 

June of 2021. (App. pp. 62-70). Harris, Hedrick and APFA’s defamatory statement were published to a third 

party via Ross’s credit report, when he applied for credit. (App. pp. 62-70; 97-100; 103-116). The pinnacle of 

the attack on Ross and Vargas by Defendants is in the APFA Resolutions and APFA Presidential Hotline 

released to the entire APFA Membership. (Doc. 239-6, PAGEID 6975-6986; App. pp. 97-100). In particular, the 

APFA BOD stated in the Resolution #2 Chinery-Lee v. Ross Arbitration Remedy passed on March 24, 2022: 

“BE IT FINALLY RESOLVED, the APFA Leadership hereby condemns the actions Bob Ross took to defraud

the members of APFA during his term as APFA National President.” (App. pp. 97-100).

The Arbitration Decision never claimed that Ross committed fraud. (Doc. 239, PAGEID 6679-6986; 

App. pp. 97-100). The statement that Ross owes the debt, which is reported on his credit report, is false and 

defamatory, as it implies negative credit reporting of a non-existent debt. (App. pp. 62-70; 97-100; 103-116). 

Finally, Harris was not only negligent regarding his statements as to the truth, but rather Harris also acted with 

a willful intent to cause financial harm when he transmitted this statement to Diversified Credit intending it to 

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be published to Ross’s credit report. (App. pp. 43-47; 48-62; 62-70; 97-100; 103-116). Harris gave Diversified 

Ross’s old Texas address with no telephone number when he transferred the account in January of 2021. 

(App. pp. 43-47; 59-61). However, Harris had Ross’s correct California address as of November of 2020 as 

shown on the Overpayment of Wages Letter. Harris knowingly provided Diversified Credit the wrong address 

so that Ross would not receive the initial communication letter Diversified sends out 30 days prior to publishing 

information to a debtor’s credit report per 15 U.S.C 1692g giving the debtor the opportunity to dispute the 

validity of the debt prior to taking any collection activity. (App. pp. 36-42). He additionally warned Diversified 

Credit of Ross by saying “Just a heads up, he is pretty aggressive in his tone and he tends to fabricate. I’m 

sure you will hear many variants of the story.” (App. pp. 48-54; 55-58; 59-61). Diversified reflected this 

statement on their call notes to warn any representatives that spoke to Ross. (App. pp. 59-61). 

IX. CONCLUSION AND PRAYER

As demonstrated herein, the summary judgment evidence in this case, supports Plaintiffs’ position 

that Defendants are not entitled to Summary Judgment, therefore Plaintiffs pray the Court denies Defendants’ 

Motion for Summary Judgment in its entirety. 

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Respectfully submitted,

KD PHILLIPS LAW FIRM, PLLC

 

By: /s/ Kerri Phillips 

Kerri Phillips

Texas Bar No. 24065906

Phone: (972) 327-5800

Email: kerri@KDphillipslaw.com

6010 W. Spring Creek Parkway

Plano, Texas 75024

Fax: (940) 400-0089

ATTORNEY FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I certify that on May 24, 2024 a true and correct copy of the foregoing instrument was served upon 

Defendants’ attorney via the e-file manager and email to the following

/s/ Kerri Phillips

Kerri Phillips 

Jeffrey Bartos

Guerrieri, Bartos, & Roma, P.C. 

1900 M Street, NW, Suite 700

Washington, DC 20036

Tel: (202) 624-7400 

Fax: (202) 624-7420

Email: jbartos@geclaw.com

Charlette Matts

In-House Counsel for APFA

1004 West Euless Blvd

Euless, TX 76040

Tel: (682) 301-8454

Cmatts@apfa.org

James Sanford

4803 Gaston Avenue

Dallas, TX 75249-1020

Tel: (214) 800-5111 

Fax: (214) 838-0001

Email jim@gillespiesanford.com

Email: joe@gillespiesanford.com

Michael Rake

PO Box 1556 

Lake Dallas, TX 75065-1556

Tel: (940) 498-2103 

Fax: (940) 498-2103

Email: mrake1@mrakeattorney.com

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