Moderators have advised me I cannot post the information that follows on the NATCA BBS and that I will be banned for life if I do. I cannot post this there as the BBS Censorship Policy calls for the suppression of all factual discussion not put out directly by the NEB as advised by legal counsel. Through the moderators the NEB has also effectively suppressed opinion which differs from their own on this matter. In fact, I have been informed that posting the NEB's own widely disseminated position statements, available elsewhere on the BBS itself, is a violation on the BBS Censorship Policy.
I do not dispute anyone's recollection of what they remember of the convention, only their later conclusions and suppositions. I am simply pointing out the gross error in believing that the second motion or another motion could have been crafted in some sort of way that would have had different results. In fact, I am only restating for the masses what the NEB's stated and published position is. If they (the NEB) had considered it, the second motion, and decided not to pass on the funds people's statements about the delegations failure would have merit . Any beef would be either with the NEB for not acting as one wished even as they complied with the letter of the law or the body for giving them a nudge but leaving wiggle room when they had demonstrated they were against it. That is not what happened.
After the Osborne presentation, the NEB unanimously decided the second motion was unlawful as any motion channeling dues money to Carr/Marks would be found unlawful or suspect enough to bring further litigation. So politically, they avoided the whole conundrum of the second motion. They never considered the motion one way or the other. I am growing weary with people believing or stating there was some other route open to the convention body that was not taken that would have had Carr/Marks supported with NATCA funds. There was not.
Pat Forrey, Paul Rinaldi and Phil Barbarello have all confirmed that my understanding is correct.
Labor is Entitled to All it Creates,
Mike Esau
Here's the skinny:
People's take on the results of motions passed by the membership at the Miami convention are often misleading, sometimes purposely so.
Victor Santore did make a speech. Big whup.
Legal counsel at the convention gave feedback that the two motions we passed allowed the NEB, if they decided to, to legally pass the money set aside from the first motion to Bob and John for their legal fees. Later, legal counsel reversed itself and determined that there was no legal way to funnel dues money to Carr/Marks. This is important. This reversal in counsel makes what people post about a "better motion" moot and worthless. It means legal counsel changed their minds and reversed themselves on the advice we had to drag out of her over a two day period. You (other posters on the BBS) are not the first to misstate the facts, nor will you be the last. This response hopefully clears up any confusion, but more importantly clarifies the situation for others that may have been misled by incorrect conclusions in other BBS posts.
I request, but do not expect, you (people that post that poppycock) to delete your posts. It gives the impression that the governing body had some sort of control over NATCA funds being expended on John/Bob when in fact we did not. We thought we did for a couple of days but that ended up being smoke and mirrors.
If you disagree with that assessment then your argument is not with me, it is with the NEB because that is what they said after the fact and it is well documented that this is their latest and current position.
- We gave the NEB a choice-they refused to make one.
- If we had passed a motion "To give the money to John/Bob", the NEB would have refused.
- If we passed a motion to buy The Main Bang, the NEB would have refused.
- If we tried to have a cookie sale for raising PRIVATE monies but advertised on the BBS, the NEB would and did shut it down.
- If a local tried to purchase paraphernalia from Carr/Marks or donate from their own dues money and the NEB was made aware, the NEB would and did shut it down.
- If a job came open (Barry Krasner) in NATCA and Bob and/or John were found to be qualified in every other way the NEB would refuse to hire them because of ongoing litigation.
- If Bob/John were available for legitamate consulting jobs, the NEB would refuse to hire them.
Bob and John have in every way possible, except for the payment of lip service and empty promises, been abandoned by NATCA. In fact, as is widely publicized by the easily available white paper prepared and distributed by the NEB at the Miami convention, they are being used as part of the strategy to defend the other NATCA officers named in the suit including our current president, Pat Forrey.
THE NEB HAS DETERMINED THAT IT IS AGAINST THE LAW TO FUNNEL DUES MONEY, NO MATTER THE VEHICLE, TO BOB OR JOHN FOR THEIR DEFENSE AND THAT THE CONVENTION BODY CANNOT AND WILL NOT FORCE THEM TO BREAK THE LAW
This is my email to my RVP, Phil Barbarello, and he confirmed by email and on the phone that I had a clear and correct understanding. Pat and Paul have both confirmed/acknowledged the same-that my general grasp of NATCA's position evolving to this after several metamorphoses from the beginning until just after Pat was named just after the convention is correct.
Phil,
Thanks for taking the time. Please make available any written opinion Mr. Osborne or any other lawyerly opinion the NEB is using including the case law they used. I prefer that to an NEB interpretation of what they thought they heard. Thanks.Just to reiterate. Please correct any inaccuracies or add any points you think might help me understand better. I plan to post on the BBS at some point; a well thought out post, instead of just shooting my mouth off.
The NEB has now determined that NATCA can in no way be perceived to give dues money to Carr and Marks as this is a violation of the law; a violation of the law (probably the RICO act and racketeering laws) that could lead to prosecution of its officers, severe financial penalties and desertification of the union. No resolution could have passed at the convention that would have convinced this NEB to break that law/laws as presented by Mr. Osbourne.
The NEB has also determined that any of the several ideas to pay Carr/Marks as consultants or for services rendered would be exposed as a ruse to achieve the same ends and therefore will not consider them as viable alternatives to pass along dues money to Carr/Marks for them to spend as they see fit. This is new and different from the NEB's original reasons denying help to Carr/Marks.
The liability insurance company agreed that Johnson and Palmer, the PHX FACREPs, are covered by its policy with NATCA under the rules that allow NATCA to indemnify its officers in lawsuits that arise out of events while said officers were acting on behalf of NATCA in their role as officers of the union. The insurance company wants to settle out of court without NATCA admitting any wrong doing. NATCA has decided to reject the insurance carrier's plan and press ahead with its own monies in the case. The insurance company will no longer pay in the event Gilding is awarded damages on any front with the exception of NATCA itself.
In addition, it continues to be the NEB's stance to distance themselves from the lawsuit as far as Carr and Marks are concerned so that a court does not come after NATCA to pay any damages awarded by the court to Gilding/Pearson if it finds against either Carr or Marks. The NEB has now officially stated, for the first time, its contention that this is a frivolous lawsuit. NEB further believes that these actions taken by Carr/Marks (the blog post) were not related to their times in office or at the request of current NATCA elected representatives. That is to say they acted on their own as non-officers without NATCA's permission.
NATCA has been named in the suit. The NEB originally did not want to give dues money to Carr/Marks unless they could do so while minimizing their exposure financially. The fear was the NEB being perceived as giving dues money to Carr/Marks would give Gilding an opportunity for a windfall at our expense.
The Supreme Body addressed that concern by creating the fund. The NEB has since decided after listening to Osbourn that there is no way to funnel dues monies to Carr/Marks without breaking the law. The NEB wants to give money to Carr/Marks (is that true of the NEB or they doing it more because they think that's what the members want-asked another way; In your opinion if it was just the NEB and Carr/Marks without member input would you guys still want to help them financially?) and has decided the way to do that is to set up a fund that people can chip in to directly. They are researching if locals can contribute.
To sum up. It's yours and the NEB's official position that you want to help, and have wanted to all along but are unable to due to legal hazards as presented by NATCA lawyers.
Do I have it right?
MikeTHE LAST TIME I CHECKED, THE NEB HAS NETTED $900.00 AFTER ALMOST TWO YEARS OF VIGOROUS FUNDRAISING IN A 20,000 MEMBER UNION WHEN YOU INCLUDE RECENT RETIREES
The mailers/emails below are widely disseminated and available to anyone that looks for them. The NEB's position changed several times during the year. It has not changed, to my knowledge, since these emails came out.
ALL,
As many of you know, the NEB met in executive session at the National Office on October 1 in order to address two questions: the establishment of the legal defense fund that was passed by the delegates at the Miami Convention, and the requests for financial assistance from the new legal defense fund that were submitted by former President John Carr and former Western Pacific RVP Bob Marks immediately after the close of Convention. We accomplished the first of those projectsbut cannot proceed with the second for the following reasons :
In doing the research necessary to stand up the legal defense fund with the appropriate legal structure and bank accounts and to make the initial deposit of Union funds required by the Convention delegates, the General Counsel’s office consulted with NATCA’s outside labor counsel and outside auditors in order to ensure compliance with all relevant federal labor, tax, and benefit laws and regulations. As a result of these consultations and after due deliberation, it was determined that NATCA can establish a legal defense fund and deposit Union money into the legal defense fund, but cannot lawfully use Union money from the fund to assist in the legal defense of the former officers who had submitted applications for assistance.The governing law is Section 501(a) of the Labor-Management Reporting and Disclosure Act of 1959, a federal law whose sole function is to govern the internal operations of labor unions and which imposes a civil fiduciary duty on the officers of a union who have responsibility for handling and spending Union money. That civil fiduciary duty mandates that Union funds be spent for the benefit of the Union and its members.Given the particular circumstances of the Arizona lawsuit in which both John and Bob are defendants, it was determined that a disbursement of Union money from the legal defense fund for the purpose of assisting with their legal defense would not be for the benefit of the Union – as neither was a Union officer nor acting at the behest of the Union at the time of the July 2007 blog that is the subject of the lawsuit – and would actually be to the detriment of the Union.The legal problems created by the application for assistance by John and Bob were compounded on September 16, 2008 by the filing of a motion to add as a defendant in the lawsuit against John and Bob on the basis of a false allegation that the Union had authorized or ratified the publications in question. If NATCA is dragged into the lawsuit, its defenses will necessarily conflict with the defenses of the former officers, and the use of Union funds to finance a defense that conflicts with the Union’s defense is not permissible under Section 501(a) -- Union officers simply cannot authorize the disbursement of Union funds to litigate against the organization for which they are responsible.On the other hand, there may be circumstances in the future under which the formers officers could receive assistance from the legal defense fund. First, both former officers might be eligible to receive reimbursement from the fund should the suit against them be determined to be without merit and/or if NATCA is unconditionally dismissed from the case thereby removing any possible conflict of defenses between the organization and the other defendants. Second, any contributions to the legal defense fund voluntarily submitted by individuals will be segregated from the Union funds and can be disbursed to the former officers.I know this is a particularly frustrating outcome for the former officers and the Convention delegates who wanted to create a vehicle to assist
them. NATCA and its officers, however, cannot operate outside the boundaries of federal labor law and reject the unanimous and emphatic counsel of the professionals it relies on to prevent the organization and its officers from committing acts which would place the Union and its officers in legal jeopardy. Not one member of the NEB took pleasure in being unable to fulfill what many of the Convention delegates wanted to achieve. Our decision was purely and simply made to protect the organization. NATCA NEBAll.
Yesterday the National Executive Board convened for a special meeting so we could discuss the legal defense fund that the convention body passed in Miami. We are in the process of finalizing the details of this "legal defense fund". This would include the collection of member’s personal monies to be used from this fund.We were also briefed by outside counsel and our own counsel on distributing Union monies, via whatever vehicle (legal defense fund, purchasing web sites, hiring consultants, etc) for the John Carr and Bob Marks lawsuit. The attorneys thoroughly researched whether or not we could use Union funds for this lawsuit. The attorneys emphatically stated that the Union, locally, regionally or nationally couldn’t expend Union funds for this lawsuit. They provided references to law, Department of Labor guidance and conversations with additional attorneys that supported their research. The National Executive Board unanimously agreed with their guidance and we have sent correspondence to John Carr and Bob Marks denying their request for Union funds for this lawsuit.Furthermore, NATCA has recently been named in this lawsuit. NATCA has begun to prepare to defend our Union from this frivolous lawsuit. FACREPs please distribute this message to your member lists. If anyone has any questions, please don’t hesitate to call or email.
Mike Robicheau
NATCA New EnglandRegional Vice President
Hello All,
The letter below (also attached) from the National Executive Board represents our commitment to carrying out the intent of the Miami convention Delegates with respect to providing immediate assistance to Bob Marks and John Carr. While there are differing opinions on distributing Union moneys for this purpose there is no disagreement that the distribution of voluntary contributions is appropriate. I have had the honor to serve this great Union of ours side by side with these men for a great many years. I can state unequivocally that their personal sacrifice and tireless work on behalf of our Union has improved the lives of every one of us. I urge you to donate generously. We have to let those who wish to harm us know that if they pick a fight with one of us then they will have to fight us all.
In Solidarity,
Phil Barbarello
Dear Fellow NATCA Member;
As you are probably aware, the Delegates to the 2008 NATCA Convention in Miami, Florida passed Resolution R08-23 establishing a legal fund, to be administered by the National Executive Board, for the purpose of collection of money and distribution of proceeds such that any active and/or retired member in good standing for whom NATCA is not directly responsible for their defense, may defend themselves from legal action.The Resolution further directed NATCA to make an initial donation of $300,000 to the fund. The NEB has acted to effectuate the Resolution. However, although the Resolution further provided that “[t]he first priority for the distributions of funds shall be given to” defraying the attorneys fees and legal costs of former officers John Carr and Bob Marks in a pending Arizona lawsuit, Gilding v. Carr et al., the NEB has unanimously determined, upon serious deliberation and the advice of its legal counsel, that no moneys contributed by NATCA to the legal fund can be used to pay the legal fees and costs of Mr. Carr and Mr. Marks because their positions in that litigation are contrary to the Union’s interests.Voluntary contributions should be addressed to the: NATCA Legal Defense Fund and will be used for the exclusive purpose of defraying the attorneys fees and costs of Mr. Carr and Mr. Marks in the referenced litigation. We have established an internet deposit capability so that contributions can be expeditiously and easily made; you transmit your contribution electronically to: https://www.paypal.com/ using this email address as the recipient: natcalegaldefensefund@natcadc.org
Your immediate and serious attention to these matters is appreciated.
Fraternally,
National Executive Board
