Something you never had the chance to say?

As kindly pointed out by the wonderful blogger Stern Burger with fries, you can text a parting message to Andy Stern (well, to an SEIU staffer or some database somewhere, but it still sounds like fun) by texting "ANDY" and your message to 787753!

Have fun with it!

"Don't cry because it's over!"

I won't!

I wish I had something profound to say about this moment, but all I can think is "he's so orange!"

The end of an era!

Andy Stern in happier times with his son, who (so far as Perez knows), is NOT slated to inherit SEIU's 2.2 million members

So it looks like it's really true! Andy Stern is on his way out the door! Not "within hours" perhaps, but most likely at the Executive Committee meeting Perez hears is set for Wednesday. (Update: SEIU's statement says he will "address" the issue at the meeting)

Why now? Perez isn't exactly sure, but it's interesting timing with the failure of the lawsuit, isn't it? Was Andy telling the locals that he wouldn't be asking for yet more staff and money to fight Kaiser workers this summer because the lawsuit would kill NUHW? And did it also become clear this week that the UNITE HERE negotiations are going nowhere because SEIU has no power in the situation, as Perez hears? So is there now a block of people within SEIU with enough independence to realize that Stern's strategy is a suicide mission, and enough power to do something about it, or is Andy just embarrassed beyond recovery?

Let's hope there's no (real) political job in the works for Andy - the way this news has come out it doesn't look like it.

The best information Perez has right now says that Anna Burger will take over for a 90 day period, during or after which there will be an election. If Andy still has any sway, Burger will be the new permanent president. Perez hears though that there's a small group of top officials who swore years ago that they would never let Burger control SEIU (even going so far as to make an emergency plan) and that as Perez predicted last year, Mary Kay Henry is pushing for the job. Can they all stop fighting everyone else for long enough to fight each other?

For sure it's too much to dream that this means a shift back to democracy or even to real organizing - it's certain that whoever takes over will be one of the team who took SEIU down its sorry path. Maybe though it's just possible that the new CEO will get that fighting losing battles against multiple other unions while trying to stomp out dissent in your own union is just plain bad business sense!

Whatever comes next, I'm glad I was able to play my tiny, tiny, tiny, little part in making this happen!

Andy Stern to resign within hours?

Perez will believe it when he sees it, and maybe not even then, knowing Andy (some kind of Vladimir Putin deal maybe?).

I'll keep you posted as always.

Well that was random!

And a total mess!

It's pretty clear that everyone on both sides of this trial is shocked by the verdict today.

Jury trials are great and important, but it's hard to see this as anything but a big fail! The jury handed the court a grid with numbers scrawled in, and it makes no sense. There's apparently no way to clarify the jury's reasoning, or how the numbers are supposed to work - from what Perez understands, all we get is this grid of names, charges, and penalties. There's about $20,000 in increased security costs against a couple of defendants, about the same for lost dues, and then there's the entire January salaries of all but a few of the defendants, and substantial amounts against the same defendants and NUHW for "diversion of resources". The total amount is unclear because it's unclear how the judgments are supposed to work, but it's way less than SEIU has hoped for, just a tiny portion of their legal costs.

And Perez doesn't see any way at all for these numbers to come out of the minimal evidence presented. There are actually plenty of things both sides agree the defendants did (like requesting a disaffiliation vote) so it was always possible the court would find against a few of the defendants on a couple of points, because in the drawn-out struggle to try to save UHW from trusteeship, it's likely SEIU's constitution wasn't always followed to the letter. Perez is just fine with that, and I know most of my readers are too.

(Bluntly, so long as decisions were honestly and democratically made, Perez is fine with more than that. Big good things don't always happen strictly within the limits of an anti-worker legal system. Remind Perez to tell you about Capital Strategies some other time... But that's not even an issue here, as these charges were all about the SEIU constitution and the structure of the union.)

Although it would have been ridiculous for this silly case to go on any longer, one obvious major problem is that the defense team had only 18 hours to present all their witnesses and cross examine the plaintiff's witnesses. 1080 minutes to adequately respond to multiple charges against 27 people! The defense obviously followed the only sensible strategy of presenting the defendants who made major and strategic decisions. But what seems to have happened is that many of the minor defendants who didn't testify were found liable, when they most likely could have cleared their names with five minutes on the stand! Perez can't find any logic in who the jury gave judgments against - organizer Peter Tappeiner liable for $30,000, and directors Michael Krivosh and Paul Kumar liable for nothing? How bizarre!

This thing makes no sense, and I'm not just talking about my view of SEIU's failed arguments and evidence. Sure I think it's unfair, but you know, I can imagine a judgment that would have had me shrugging my shoulders and saying (as I said above) that not everything worth doing can be done within the SEIU constitution. What I think is that it isn't legally sound! How the hell can NUHW be responsible for lost dues from nursing home contracts when it wasn't created when the contracts were canceled? How can Emily Gordon have diverted resources from a union she wasn't employed by or a member of? I think it's a mess, and I think it's going to keep on being an expensive waste-of-dues (although not NUHW members' dues) mess when it goes to the appeal courts. This wasn't a good case, and Judge Alsup was right when he said it was going to be a nasty surprise for one of the parties and he didn't know which. After SEIU's sorry performance though, no one had really expected it to be a nasty surprise for the defendants. You can count Perez as "nastily surprised" by it!

The legal and financial stuff will come out in the wash, worst comes to worst it's just money. The thing that's really frustrating and concerning is how this lets SEIU run wild with more of the same PR bullshit this whole case has been in the service of. "Guilty"? Purrrleeese! This wasn't a criminal trial! (I'll be talking more about how this cynical rhetoric works tomorrow). It is nothing but a distraction and a bait-and-switch, because that's all SEIU can do with what they have. Everyone who wants democracy within and outside of SEIU needs to hold their heads high, roll their eyes at it all, and get on with doing what needs to be done this summer!

The final day - Rules and consequences, bowels and tentacles!

First, just a little note to SEIU “member blogger” Erica Boddie - Do you know who you sat next to all day in court on Tuesday? That man with the gray mustache was Henry Telfian, a lawyer for Kindred - some of the worst nursing home bosses in the state. Did you have a pleasant conversation?

And a second little note – Judge Alsup’s court was in session on Wednesday, but with no jury and a vastly reduced audience. The judge will decide on the question of who the officers of the UHW Education Fund (nothing to do with the Patient Education Fund) should be, rather than the jury, as there are no damages requested. The fund is managed by representatives of the employers who contribute to the fund, together with representatives of the unions whose members benefit from it, and right now the union trustees include some of the former UHW officers who SEIU is suing. SEIU is asking that they be made to leave their posts so that SEIU can appoint their own people. Today the judge asked both sides to file documents for him to look over, and he plans on making a decision by April 13.


On to our great big last day in court report! This report is long, but Perez thought many readers would want to hear about every single moment. I’ve tried to tell the story as it was told to me, and this post is built out of notes and quotes sent by some amazingly diligent readers. It is not a verbatim eyewitness account or anything like it, just my best shot at conveying what my readers saw. Please let me know if I have anything out of order, or I missed something important…

Tuesday started out, as so many have before, with the lawyers arguing with each other and Judge Alsup about what can be shown or told to the jury. I’m going to come back to some of this discussion later on, but for now I’ll mention that SEIU wanted to move 95 documents into evidence without showing them to the court first, and that the SEIU lawyer readers are now calling “The Dork” had more objections to the jury instructions, but it wasn’t clear what they were. Judge Alsup seemed excited to reach the last day of the case, interested to hear how the sides handled their closing arguments, and irritated at the mounting evidence that SEIU has been wasting everyone’s time.

“This is where the rubber meets the road!” Alsup declared, and called the jury in.

The plaintiff’s closing argument came first. Both sides had two hours to use for closing arguments (essentially a speech from the best lawyer they have), and because the burden of proof is on the plaintiffs, they are allowed to divide their time into an initial argument and then a shorter rebuttal to respond to the defense’s closing argument.

Gary Kohlman took the floor for SEIU, and tried on the role of the old-fashioned strict father, who doesn’t want to administer a spanking, but has no other choice! “It’s about rules and it’s about consequences” he lectured, “about a group of individuals who knew what the rules were and made a decision years ago that they were not going to abide by the rules!” “The society that you and I enjoy… we have the ability to construct rules that protect each and every one of us. “

The rules Kohlman was referring to of course, were from the SEIU constitution. Not a document known for its strength in protecting each and every member! But just because you don’t give a crap about protecting members doesn’t mean you can’t invoke them to prove your point, even if you aren’t really sure who they are!

“The janitors and porters and doormen, that those people can join a union and draft language like that… think about a society… 2.2 million members put this into their constitution! The members said that the final word would be reposed with the international executive board!”

With even the judge raising his eyebrows, Kohlman moved deftly on to connect the dots…

“Now the defendants will tell you that they had an obligation to their members, that they’re bigger than The Rules, but you can’t have a structure where officers, individuals decide whether they’re going to follow The Rules… it would be chaos!”

And then Kohlman tried to humanize himself to the jury a little - “I’m a big fan of Charles Dickens, especially A Christmas Carol. Now it makes no sense unless you realize Jacob Marley is dead! This makes no sense unless you realize the defendants were never going to give up the healthcare workers!” Indeed. Although honestly, Perez prefers Dickens’s Bleak House!

Despite whatever it was he was trying to say, readers say Kohlman gave a compelling performance - mostly because he had such tight and exaggerated control of his voice and movements. He would stride around the room, and then lean in close to the jury, he would raise his voice, and then whisper for long stretches, forcing everyone in the room to strain to hear him. At this point in the speech he moved into a sort of outraged staccato to describe what it was the defendants did...

Instead of leaving SEIU honorably, said Kohlman, the defendants “chose a 4th option” That option was the option to move “data offshore” and their “modus operandi was to make money off the books and lie to the members about it” Of course, he clarified, “It’s not that the PEF was itself illegal, it’s just the first example.”

The second example never came up though, nor did the third! What came up was a lot of Dickensian imagery, as Kohlman tried to create a dark and creepy little world for the jurors, in which the defendants “knew they were playing with fire!” and did various things “around corners” and “down in the bowels of the various facilities” while also being in a tunnel afraid of “the trusteeship train and the jurisdiction train” (the little jurisdiction engine that couldn’t?).

Kohlman finished up on the process by calling Ray Marshall “The secretary of labor” to make the trusteeship hearings sound like a government process, and reminding the jury that moving the homecare workers was all about the members, because (no matter what members said) “members decided that they didn’t want any one particular local to be able to veto it”

Then he switched to the unfairness of it all, and how mean everyone was to SEIU and their staff! The defendants planned to create a hostile environment, he said, and “Did they ever play the hostile environment well!” (well not really, but some other people did…). Poor Rashida Anthony came up again, now Kohlman’s story is not just that she was bent over a desk, moved into a hotel, and happens to be a mother, but that “she barely gets to the hotel with her kids!”

It was all just so unfair and un-American!

“Here’s the beauty of what happened, there’s few things we enjoy more than fair competition, such as between two racing cars! The American way would have been for them to compete with UHW at this point in time” If you believe Gary Kohlman, the trusteeship was just like “Two people about to have a fair race, when one picks up a handful of sand, and throws it in the eyes of the other!”

And who was left to pick up the pieces, but the most sympathetic characters Kohlman could think of… “Hal Ruddick, Lisa Gude, Cass Gualvez, these good decent people had the responsibility of servicing 100,000 members!”

Dear Gary - could you please, please, stop talking about “servicing the members”? You’ve said it over and over in this case, and aside from being a horrible way of talking about what unions (should) do, it makes everyone giggle at you.

Just in case the jury hadn’t gotten the point by now, Kohlman produced a copy of the purple union constitution pamphlet and waved it in the air, yelling “It’s the members! They want the constitution!”

And now moving to closing the sale with his marks, Kohlman moved to the damages SEIU hopes to collect. He’d like the jury to pick from the grid SEIU’s expert witness brought to court last week, using textbook car salesman speak, he’d like them to find “A figure you’re comfortable with.”

Here’s what SEIU want:

1) The salary and benefit costs of the defendants from January 2009
2) Operating costs of UHW and salaries and benefits of other staff from January 2009
3) Security costs beyond the amount Jerry Bullock says a normal trusteeship costs
4) Lost dues from nursing home workers whose contract extensions were canceled

Throwing in an extra “that dog will not hunt!” he must have had left over, Kohlman closed - “This is about the members they left behind wanting to hold them accountable. This is about whether we have a society that has rules!”

“They left behind way too much paper, and they left behind… their honor!”

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And then lawyer Dan Siegel (who some readers are calling “Picard”) made the closing argument for the defense....

Sigel told the jury how he likes to go out at night and look at the stars (“it seemed corny… until the very end” says a reader) he’s always amazed how the ancient Greeks saw the constellations, because it seems so arbitrary and random to pick a few stars out of thousands to make a picture. And that’s what SEIU is doing with this case - picking a few pieces of data out of thousands to make a picture that’s just not there. “It is a feat of imagination!”

Siegel apparently structured his closing argument by showing and explaining the jury instructions, and tying them in to SEIU’s list of four claims. First, he reminded the jury that the plaintiffs have the burden of proof on all issues, must prove their claims separately against each defendant and must prove the damages caused.

The plaintiffs didn’t keep their promise to bring Andy Stern in to testify, Siegel pointed out “It’s a shame because I’d like Andy Stern to explain why SEIU is a one-party system – is that the American way?” No one has seen Dave Regan in the courtroom at all either, Siegel continued. Why not? Isn’t he the trustee who has been running the union? Who could speak better than him to the state the defendants left UHW in? And neither have the jury seen George Harris, UHW’s lawyer for the trusteeship hearings, who is still UHW’s lawyer under the trustees, and who SEIU claim could testify that UHW put on a false defense against the trusteeship (Perez suggests that Harris didn’t appear because as a lawyer he fully understands the meaning and implication of perjury).

Siegel then talked about the burden of ethical behavior on a lawyer, and asked the jury to consider what it meant for that duty when Gary Kohlman made dramatic allegations against John Vellardita which he would not back up or produce evidence for.

Then showing the page of the jury instructions titled “Defining duties of defendants” Siegel argued that they had an obligation to the members of the local union, and to use resources for the benefit of members of the local. He also drew attention to the section of UHW’s constitution that specified that taking the advice of a lawyer, consultant, or accountant in good faith protected officers against financial misconduct.

He pointed out that SEIU agreed that local unions were free to use resources to campaign on any pending issue, and that after a decision was taken, members and staff still retained the right to hold and express their opinions. The deadline the IEB set for UHW to provide information on the long-term-care workers to assist in their transfer was 5pm on January 27 2009, but the trusteeship was imposed at 2pm, so no one can ever know if the defendants would have complied.

He also reminded the jury that some locals had deals with the international so they could never be trusteed (cough! 1199 New York! cough!).

And then he asked, “So what did the defendants do to obstruct?” They talked about the issues, they told security guards and suppliers that the International might come, and about who owned the buildings, although this information never influenced anything that happened. Members were sleeping in the offices with no violence at all occurring.

There has been no evidence shown that any defendants took files, Siegel argued, but the trustees' plan for the hand-over of the local was terrible - they never tried to get files back, and they never communicated with the defendants. Freya Nelson called three times to try to give her files back. Other defendants only kept files they thought were personal, and then returned those too when they were ordered to. The plaintiffs argued that a security guard watched files be carried from the Sacramento office after the trusteeship, but he didn’t write down the license plate of the van they were taken in, and can’t describe the people who took them. The guard also said in his deposition that it was the plaintiff’s witness and others who took files, although he tried to retract that in court. There is no basis for speculation on who took the files, because it is for the plaintiffs to prove, Siegel concluded.

And then he described how Lisa Gude lied under oath when she said she couldn’t bargain because she didn’t have files – and that makes her testimony on other issues doubtful too. In the weeks before the trusteeship she was talking to bosses and they supplied her with the files she needed. It was also not until May that the new staff tried to do anything about grievances. As was shown by Eliseo Medina’s email to the rest of the IEB, the biggest concern at UHW in February 2009 was that all the staff had left and members would not work with the trustees! It had nothing to do with files, which he did not mention in the email!

“Yes, people did say “throw the bums out”” Siegel said, “just as is often said in any political campaign. The message was “Go back to where you came from! We don’t want you here!””

Then Siegel talked about SEIU's conspiracy claim, asking the jury if they had heard about the conspiracy theories around September 11 2001, or the Kennedy assassinations. Conspiracy theories make sense, he explained, when you hear the evidence that supports them. But the problem is all the evidence that’s left out. And when you consider every piece of evidence, it becomes clear that the conspiracy just can’t be the truth - just as it is in this case.

Siegel explained that attending a meeting is not a conspiracy, brainstorming is not a conspiracy. A conspiracy must be a prior arrangement to commit a wrongful act. It should be clear, he argued, that most of what the defendants planned was actually just about PR strategies.

And now, he said, “let’s look at the evidence SEIU left out. Where’s George Harris, and where’s Bill Sokel too? Sokel was at all the “conspiracy” meetings, and he’s still UHW’s lawyer. Why doesn’t he testify to the “conspiracy” that he saw planned?” (same reason as George Harris, Perez suspects!)

“Yes” Siegel argued, the defendant’s did use non-SEIU email to communicate. It was not illegal, and not part of a conspiracy. UHW was under a monitorship and they had a right to communicate privately. He then explained that (although SEIU are working on the problem) a local is not like a local branch of Bank of America, it’s an independent organization that is affiliated. But SEIU are trying to keep “handcuffs” on local unions with clauses in the constitution like the rule that even seven members of a local can veto a disaffiliation. “How is asking for a disaffiliation vote part of a conspiracy?”he asked. “It’s clear that it was not realistic to have fewer than seven members vote against disaffiliation, and that it was a political point to have members’ concerns be heard.”

Siegel then described how defendant Barbara Lewis’s memo that described making UHW “ungovernable” after a trusteeship was discovered only on her own USB drive (voluntarily handed over to SEIU), and had never been shown to anyone else. Of the 35 devices (like USB and computer drives) SEIU were able to demand the defendants hand over, only Lewis’s contained that draft memo. The plaintiffs say they’ve been able to recover more than 3,000 of John Borsos’s “double deleted” emails, but nothing juicy was apparently in them, and neither was the “implosion” memo. Further, Andy Stern himself told local union staff not to use union resources or communication networks for anything not strictly related to union work!

The defendants tried, Siegel said, to change the SEIU constitution. They went to the 2008 convention in Puerto Rico with amendments to make the union more democratic, but they were not even allowed to discuss them. “Let’s have Andy Stern come in and explain about the convention!”

About the “offshore info” – “It’s true, and it has nothing to do with this case!” Sigel described how emails from back in 2005 show how defendants planned to strengthen steward networks and worksites using the same methods they’re accused of using as a conspiracy to start a new union. It was always the policy of the local, and part of why members loved it so much, he said. The distribution of lists also makes sense, because - as members testified - they were UHW lists collected by workers over the years, and some more recent lists given out by SEIU staff employed by the trustees.

Why was the long term care jurisdiction such a rush? Why did SEIU need to give an ultimatum? They still haven’t moved the workers. And are we really expected to believe that the defendants were so cunning that they paid lawyers and planned and sought advice about how to stay out of trusteeship all the way through January, while they also secretly wanted to bring on a trusteeship so they could start NUHW?

Even though Leon Chow testified for the plaintiffs, Siegel described how he was a very important witness. He was part of the core group of planners at UHW right up until the trusteeship, and even after. He was the second highest ranking official in the group, and he is now the highest ranking official to have stayed at UHW to work for the trustees. If there had been a plan, Chow would know about it, but he testified that there was no conspiracy, and that at the time he believed that everything the group did was right and legal.

Moving on to SEIU’s claim for security costs, Siegel reminded the jury that “the burden is on the plaintiff to prove what portion of the security costs were necessary and appropriate, and they haven’t proven it.” He asked the jurors to look through the fat stack of invoices from contractor Jerry Bullock, arguing that they make no sense and don’t describe what work was done. “You would have to take his word whole, and that would be a bad idea because he has been dishonest on other issues.” For example, in his initial 1pm report on the “violent” event in the SEIU Los Angeles office, Bullock described how he had pictures and video, and said the UHW group did not gain access to the administrative area. But in another report at 2pm, he described how the office was attacked by 40 to 50 “total UHW personnel. A large, organized, criminal attack on personnel” with four to five people injured. What does that inconsistency, as well as his email about using the Richard Rubio-Bowley incident as a “highlight” for the media, say about his reliability as a witness? asked Siegel. And Nancy Stengel - also a plaintiff witness, told a very different story, one about how members were prevented from leaving and were injured, and about how they only wanted to tell SEIU they didn’t want a trusteeship.

On SEIU’s claim for damages for lost dues from the canceled contract extensions, Siegel argued that the plaintiffs had not proven why the contracts were canceled, while the defense witnesses explained pattern bargaining clearly, and SEIU had not contradicted their account. SEIU had also not proven damages, contract extensions can be reinstated and contracts can be backdated, but SEIU showed no evidence about their efforts to collect dues.

And then in closing, Dan Siegel talked about his confidence that the “members of the community” on the jury would reach a good decision, and said it was an honor to present the case to them. He asked them to consider why SEIU brought the case to court, “Did something horrible happen?” he asked... “I view it as an act of revenge, of retaliation, of punishment, risk for their livelihoods. The crime of my clients was to insist that UHW members had a right to vote.”

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When Gary Kohlman came back up to deliver his rebuttal, he was mad! Unlike his contrived whispering earlier in the day, this was a red faced accusatory performance that seemed either out of control or designed to intimidate the jury.

“This case has never been about freedom! This case has always been about rules!” he hissed! He seemed to be taking it all personally - “Do I put my pants on one leg at a time? Yes!” (Perez could have done without the mental image!) “I wasn’t the one who tried to change what this is about! It is a case about rules of law!”

Trying to resuscitate his original points, he sounded less like a strict father, more like someone powerless who feels personally aggrieved.

“Did the defendants because they could not bring themselves to accept the constitution, did they take steps to make a conspiracy?” “There’s nothing in the constitution except the fact that the members have the constitution!”

Then he went after what he claimed were Dan Siegel’s omissions… “He doesn’t want to talk about Rashida Anthony barely making it to a hotel with her little daughters… he doesn’t want to talk about Barbara Lewis driving members to the office and then driving them back again!”

By this point, readers say whenever Kohlman had his back to the jury he would take a deep gasping breath! The judge and several jurors were covering their mouths, raising their eyebrows, alternately looking up to the ceiling and down at their laps. One reader tells Perez that a juror was biting on a pencil to keep from laughing, as Kohlman slid into a kaleidoscope of bizarre analogies and clichés, mostly aimed at Siegel…

“Brought to the dance… punch line… Dog won’t hunt… He wants to sponsor Leon Chow? That’s fine!... This attorney wants to try to hoodwink you!... He brought them to the dance! Let’s just take little baby steps here…”

And then Kohlman started to mime his case! - “I can hear (fake phone held to ear) Mr Harris’s voice in this trial”

It seemed inexplicable to Gary Kohlman that when the defendants “had the Kinko’s lined up!” (with paper already in the copiers, perhaps?) the jury could find them anything but liable. Positioning himself as the jurors’ opponent, here to force them to reach a verdict they obviously would not want to reach, he asked them to decide “Whether you’re going to follow your oath”

And then he lost it altogether! Readers say there was open laughter in the room as Kohlman ranted about “tentacles that went out into the facilities” (into the bowels of the facilities? Has Mr Kohlman been watching too much shokushu goukan?)

“That’s the way the system works! Someone has to be in charge! That’s the beauty of it frankly!” he claimed, to little support or sympathy. The jury must find the defendants liable, “Not because Andy Stern is a big fatty fat fatty, but because the members want the constitution enforced!”

And with that, the jury went to lunch, and SEIU’s case went down the toilet!

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Except that I left one big thing until the end of this story for the sake of both clarity and drama! First thing in the morning, with the jury still out of the courtroom, there was a big blow up over a document SEIU wanted to show the jury in a heavily redacted version. It turned out though, that through an error, they had already introduced an un-redacted version into evidence, although it hadn’t been shown or used in court. SEIU tried to get the redacted version swapped in, but the judge wasn’t having it, telling SEIU, “This is the end Mr Kohlman, not more argument! Don’t start fooling around with redactions, I see the way you do things!”

Gary Kohlman then tried to have the whole document thrown out, saying he’d also drop the argument he was trying to build around it (that the defendants tried to cover up their actions). Judge Alsup’s response? “The rules count for something, now you’ve created a mess!”

In the end, the document stayed in evidence, to be included in the pack of evidence the jury get to look over in their deliberations, and to be used by either side in their closing arguments however they wanted. But it wasn’t mentioned in either closing statement. It’s understandable why the plaintiffs wanted to try to forget all about it, but many in the courtroom expected defense lawyer Dan Siegel to show it to the jury. By letting it slide however, he not only looked gracious to the judge (and later to the jury), but he prevented Kohlman from having a chance to try to explain it away in his closing rebuttal.

So, a little “ticking time bomb” (as the plaintiffs like to say) went to the jury room, to be discovered by the jury as they consider whether to award damages to SEIU.

What was the document? It was our old friend the implosion memo, from way back in June 2008!

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From: Bill Ragen
Sent: Thursday, June 05, 2008 09:28 AM Eastern Standard Time
To: Thomas Debruin; Stephen Lerner; Denise Poloyac; Kirk Adams; Edgar N. James
Subject: a few thoughts about UHW

Post-convention UHW work

A few thoughts
* Trusteeship would be difficult - it's like Iraq, easy and then to get in and then a slog
* Implosion would be a better outcome but what will it take?

* Loss of LTC means half the local will be in the south, where there are pockets of dissatisfaction
* Local elections are early next year
* Some key senior staff may want to get out of a suicide mission

Issues that will need our attention after the convention include:

Legal
* Education Fund (2 lawsuits)
* DFR's - Possible filing at Kaiser Sunset, elsewhere

Long Term Care jurisdiction

Internal
* complaints about UHW relationship with vendor It's in the Bag
* Kaiser SF stewards - internal appeal and possible DOL filing their dismissal by UHW

Members that have publicly spoken out, organized:
* Kaiser: Sunset, Woodland Hills, Panorama City
* California Hospital - CHW
* Independents: Good Samaritan, Cedars Sinai, Motion Picture
* Christy Brooks - homecare worker in Northern CA (blogger)

UHW Staff
* Going to work for other locals (possible 2 in LA)

Member outreach
* Information about decisions of the convention

Open Contracts
* Nursing Homes - 14,000 (9,000 in UHW)
* Hospitals - about 65,000

Issues to decide
Goals before, after LTC hearing
* Follow up with legal cases (and plaintiffs)
* Response to member complaints (It's in the Bag, DFR's)
* Follow up with members who have taken a public stance

* Communications strategy

* How do we let members know what was decided at the convention
* Do we want to build on the e-mails and other communications from workers, exposing UHW's lack of attention to members' concerns
* Other locals - if this debate continues, it needs to be between UHW and the rest of the division about decisions democratically made at the convention) - and not portrayed as a power struggle between UHW and the International

* Staffing
* Field
* Communication
* Legal

* Overlap with CNA work
* Shoring up CA Public Services locals that will receive mischief from UHW

Bill Ragen
Service Employees International Union
1800 Massachusetts Avenue, NW
Washington, D.C. 20036

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Perez rests!

Tuesday in court - You'll have to wait!

Perez got a great report on the closing statements today - it's practically a transcript! I can't thank the readers who sent it in enough!

It was a great day for the defense, and readers (who know enough to tell when it's been a bad day) think SEIU's case went up in flames! As their lawyer Gary Kohlman would (and did) say, "that dog won't hunt!"

Also in this report, Andy Stern called a "fat fatty fatty fat" and a lesson on how, in our great society, "someone has to be in charge" Perez is not joking!

The catch is that it's a lot of material, and I want to get it all up for readers now and in the future to see. Please have some patience for once, and I should have it up Wednesday evening!

Monday in court - "A big zero!"

With time running down for both parties, today was the the last day for actual evidence (what there is of it!) to be presented in Andy Stern, Mary Kay Henry, Anna Burger, Dave Regan, Eliseo Medina, Leon Chow, Steve Trossman, Rebecca Malberg, and SEIU's case, and the defense rested their case only about an hour into the morning.

After Barbara Lewis's cross examination was completed pretty uneventfully first thing, the defense called former UHW officer and hospital division director John Borsos to testify calmly and lucidly about about how NUHW was formed, and thoroughly impeach ("show to be lying" to us non-lawyers!) Denny Henriquez, who testified for the plaintiffs at the beginning of the trial. Henriquez testified that UHW staff had given him decertification petitions to circulate before the trusteeship was imposed. According to Henriquez, there was no place to write the date on the petitions he used, but this morning the actual petitions were produced, and showed his signature right at the top of the page, his signature again, to show he was responsible for gathering the other names on the sheet, and the date - 1/29/2009 for every signature on the page!

SEIU's lawyer Gary Kohlman (top) - whose near meltdown is one of the best stories Perez has heard today - first tried to say that Henriquez's signature was forged (by pointing out a supposed spelling error that was actually his own misreading) and then argued that the dates must be forged because they were all written in a similar style! It was the desperate tactic of a man with a thin case and only a minute left on the clock, and as one of SEIU's "member bloggers" would say... didn't work! Readers report that they could see Kohlman's hands shaking on the projector screen as he got more and more agitated!

Then with only a few minutes left, the defense called nursing home worker Eloise Reese Burns. Her testimony might have been the shortest of the whole trial. Reese Burns said simply that she had been the elected bargaining chair of her facility for contract negotiations in 2008, and that John Vellardita had asked her to poll the bargaining team (with representatives from the other nursing homes in the chain) on whether they would support canceling their contact extensions as part of a pattern bargaining strategy. Every member of the team wanted to go ahead. In response, Kohlman asked Reese Burns when she knew about the formation of NUHW! January 28th, she responded, and that was that!

Well, except for the plaintiff's rebuttal - a brief opportunity to respond to the evidence presented by the defense. For their rebuttal SEIU played a section of the video deposition of former UHW staffer Elizabeth Ortega, and a clip of John Vellardita's deposition about the scheduling of staff meetings that they'd previously "been unable to find" (or could it be that they just wanted to get it in last with no chance for the defense to respond?). There was some debate about allowing the video, but the defense lawyers declared it "not very interesting", and the judge seemed to agree, exclaiming "Is that it?".

And then the judge sent the jury home with another reminder not to "go on the Google!" They'll be back tomorrow to hear closing statements from both sides and the jury instructions, and then to begin their deliberation.

About 50% of the real meat of this case has always come when the jury is out of the room, and today it was apparently about 90%! Two things were up for debate - the "Rule 50" arguments - which are all about what charges and issues should actually make it to the jury for a verdict, and the jury instructions - which are about the parameters and guidelines the jury should be given to help them. This case is so complicated and such a mismatch between what's right, what's legal, and what SEIU want, that the jury instructions are especially important.

There are too many different legal things going on here for me to try to explain for you, or for my readers to explain for me, or even probably for my readers to get their heads around! Readers write that even the judge seems confused (and irritated), resting his head in his hands, and shutting down the lawyers when things get too convoluted. SEIU are relying on several different sets of state and federal laws (as well as the local and international union constitutions) to patch their case together, and it sounds like they try to switch them all around when one approach hits a brick wall!

Some of SEIU's arguments are plain scary. They would like to have the judge tell the jury that if anyone who is employed by an organization spends even five minutes of time outside of work hours on something that organization would not support, then they are violating "faithless servant doctrine" and owe all their salary back to the organization! They claimed today that they had "paid for the loyalty" of UHW officers and staff (wasn't it the members who paid for that?). They also argue that obeying the SEIU constitution in good faith would not be enough, because Andy Stern's interpretation of what it means is the only one that applies! And then they are trying to argue that any breach of the union's constitution is automatically a breach of fiduciary duty even if it doesn't involve money. They would also like the judge to hold that shop stewards can be held liable for damages if they breach their union's constitution!

"Let's just say a local is totally convinced, 100% convinced that the international union is totally corrupt..." asked Judge Alsup today. "They want to get out of the international, maybe join another international. So then the international comes in and says "No, you can't do that, you're violating your fiduciary duty to us. What other remedy would they have?"

SEIU's answer? That (as we all knew) there's basically no remedy within SEIU for a local that recognizes the threat the international poses to union members' rights and freedoms.

But now for the fun part! Today SEIU put up a lawyer readers haven't seen much of before. He's sat quietly for most of the trial, and Perez hears he should have stayed quiet today! First he told Judge Alsup he thought he was violating his oath of office by refusing to make the change to the instructions this lawyer (Perez doesn't know his name) wanted! The judge was clearly annoyed, but told him "You're a young guy (he's not!) you'll live and learn!" But the lawyer kept raising his voice, interrupting, and pushing for changes to the jury instructions, all while bobbing his head and wringing his hands behind his back! Perez hears he smiled at NUHW lawyer Dan Siegel, and Siegel looked at him like he was crazy and edged away! At one point the other lawyers from his own side shushed him! The SEIU lawyer did manage to get a few of his points to stick, but maybe not ones that will help his case - as the judge told him "I think you're going to regret this! Don't complain to me later on if you wind up getting a big zero on this one!"

So readers report that it sounds like the judge will reject many or most of SEIU's arguments, but it won't be clear until the jury instructions and rule 50 decisions are final tomorrow. Judge Alsup was apparently pretty skeptical of SEIU's whole case today, telling them that he only knew who three or four of the defendants were, and he didn't think they had enough evidence to go to the jury on most of them.

"There are too many defendants there, and you ought to be thinking about how to convince the jury that every single one of them ought to pay money to someone!"

And that's a fact!

Friday in court - "Is that it?"

First things first - readers emailed with two corrections to Thursday's post. I'll blame my original correspondents for the oversights! Here's the updated version.

TGIF! I don't generally waste my time rebuffing SEIU spin, but for the sake of novelty and to give some structure to my run-down of this messy day, I am going to address a couple of points from tonight's "Action update". By the way, Perez doesn't see any SEIU "member blogs" online tonight (at least yet). Doesn't SEIU trust them to get it "right" today?

First, let's talk about SEIU's continued insistence that this case has nothing to do with what members wanted! Writing about defendant Barbara Lewis's supposed plan to "get" members to sleep in the UHW offices, they conveniently forgot to write about the testimony of Kaiser Psychotherapist Emily Ryan, who started to cry on the stand today as she described how she and her coworkers wanted to say goodbye to the building they felt was their home, and to let SEIU know the harm they were doing. Despite continued objections of "irrelevant!" from SEIU's lawyer, Ryan testified that she stayed with several other members at an (unusually clean!) Oakland UHW office from Jan 27 to Jan 30 2009, locking the doors for safety because she was afraid of SEIU (and still is), picking up dinner from a local restaurant, and working on grievances until SEIU cut off the phones and computers.

Then, let's address SEIU's claim about the defendant's testimony today that "What they couldn't explain, however, was why they were communicating using a secret, private e-mail network they set up..."

Really? Because what readers tell Perez is that more than one witness has explained quite clearly how some UHW staff took discussions of the conflict with the international to personal email because they were being spied on and knew there would be retaliation for their political views!

And lastly, Perez notes how news about the long-anticipated and finally delivered video testimony of Richard Rubio-Bowley (on whose evidence SEIU's claim for security costs seems to hang) is buried deep in today's email! A more cynical observer than Perez might suggest that SEIU waited until today to show the video in order to taint as much of the trial as possible with anticipation that it would show something shocking, when today the court saw that it just wasn't all that! "Is that it?" asked the judge when the video ended!

Readers say that Rubio-Bowley, an older man who is obviously in poor health, didn't even claim to have been threatened. He testified that he felt scared because he was initially unable to identify two figures on his dark street, and he was then asked by defendant John Vellardita (from his car) "What are you doing Richard?" (to which he responded by taking out his cell phone and threatening to call the police). Vellardita (who Perez guesses had gotten the answer he needed) then called Rubio-Bowley a scab and drove off, along with staffers Gabe Krystal and Mario Santos (who had been the figures on foot). And that's it, except that Rubio-Bowley then called deputy trustee Lisa Gude, and security/media guy Jerry Bullock, who urged him to file a police report. Readers say there was actually no conflict between Rubio-Bowley's testimony and John Vellardita's, except that Vellardita explained that Santos and Krystal were walking because he dropped them off while he went to look for parking, and that Santos was close personal friends with Rubio-Bowley and concerned for him when he didn't answer his phone that day.

I'm going to skip over the long list of defendants and witnesses who testified today. I hear they all did a good job, particularly at explaining the long-term commitment to empowering stewards and members at UHW, the haphazard and purely defensive nature of the so-called plot, and the sheer quantity of regular work that got done at UHW in January 2009. SEIU's conspiracy claim is being methodically broken down on almost every point, with possibly some evidence left that a little time was used to plan immediate responses to the trusteeship a day or two before it happened. Highlights were apparently John Vellardita's declaration that "Yes, Eliseo is a class collaborator. He sells out workers!" and UHW rep Gloria Watkins's description of how SEIU spent the first weeks of the trusteeship planning how to "get rid" of strong worker leaders who they saw as trouble. Honestly though, my reports from today mostly fall under "you had to be there", and you can read about it all elsewhere. I think I'll spend your limited attention span talking about some of the legal details...

The plaintiffs now have 17 minutes left (although the judge says he will allow them at least one minute to cross every witness) and the defendants 37. Testimony should finish on Monday, with both sides making two-hour closing statements on Tuesday. "All good things must come to an end at some point!" says Judge Alsup! Perez hears that the judge seemed tired and irritable today and ready for the case to be over. He is still warning both sides repeatedly about how complicated the case is, and how they need to come to agreement over some guidelines to present to the jury. Apparently both those guidelines and motions to dismiss some of SEIU's remaining charges for failure to show evidence will be prepared over the weekend.

So readers seem to feel that today was a solidly successful day for the defense, but (unlike yesterday) also a day that reminded them both of what they lost when UHW was destroyed, and that they were now sitting in a courtroom with a bunch of lawyers and all the inadequacies and ugliness of the legal system.

And finally on that same point - I've also gotten reports on something else that happened today, and no, even though it is Friday, I'm just not going there. But I will say that SEIU's willingness to throw even their most loyal staff under the bus to make the tiniest point in a lawsuit should be a real wake-up call.

Real Thursday in court - "What, me worry?"

Happy April Fool's Day! I thought I'd best keep it simple today, since last year got a little too "War of the Worlds"!

Today actually was a fun day in court for several readers, as testimony from NUHW members and activists took up most of the day, and readers describe the mood in court as "joyful and defiant"!

Activist Andy Reid might have been the sleeper hit of the day. He told the story of how he "panicked a bit" when after he was accused of stealing UHW documents, a box arrived at his home full of the very same paperwork! Readers say Reid kept it simple on the stand, methodically going through how the bargaining and steward structures that kept UHW democratic explained many of SEIU's allegations about the distribution of lists, and how "paying the expenses" of members sleeping in the office just meant ordering them a pizza! But then SEIU lawyer Kohlman tried a dramatic new move we'll call "the surprise swear"! Talking in a near-whisper about an email from Piete Clayton (corrected 4/2), Kohlman suddenly raised his voice to quote: "...stay THE FUCK out of the facilities!" Responding calmly, Reid shot back "Yes, I did think SEIU should stay the FUCK out of the facilities!"

And if Reid was the sleeper hit, Beverly Griffith was the summer blockbuster! Readers say she gave a big smile for the court photographer, and the audience laughed! Griffith told the story of the Alameda office "break-in" in a proud and matter-of-fact way, and noted that she and other members had done exactly the same thing at a hospital years ago with the support of SEIU International, and with Reverend Jesse Jackson at the front of the crowd.

Also on the stand, hospital workers Don Fugate and Tonia Smith-Fryson (a rep until SEIU fired her after the trusteeship), to talk about how SEIU's charges over lists and data are groundless, and about how SEIU destroyed their union. Fugate's hospital isn't even unionized yet! ( Where were the workers to speak for SEIU's case? (Reader correction 4/2: Fugate is an NUHW member! He works at Santa Rosa Memorial Hospital, where workers voted in December 2009 to join NUHW)

The day ended with former UHW secretary-treasurer Joan Emslie, who was actually out on disability during the time for which SEIU are suing her for her salary. She testified that actions SEIU are presenting as part of a conspiracy (charting, information gathering, and keeping money in separate funds) were actually routine parts of running the local. Her testimony will continue tomorrow.

The jury perception problem I described yesterday deepened today, as SEIU objected "Irrelevant!" to every heart-felt witness testimony (Defense lawyer: "Can you tell the court why you wanted a voice in your union?" Plaintiff's lawyer: "Irrelevant!"). Readers say the jury visibly winced at the interruptions. And then there's the way that SEIU's cross-examination of every witness hammers on why they chose to "disobey" SEIU's "rules" - a sort of "if you didn't like it you were free to leave" line. These past couple of days already seem to belong to NUHW in a way that SEIU's case just didn't belong to them. All SEIU have left is the hope of convincing the jury that while the defendants might be more sympathetic, they were still technically in the wrong.

And SEIU know that they're losing. Readers say that in contrast to the packed NUHW benches and laughing members, they sat upright and tight lipped today, and that instead of hanging out in the hallway chatting after proceedings finished, they packed up their things and scuttled away!

And here's part of their email from back on Monday...

How many times in life do we see something that is totally wrong and we wish it was also illegal and are furious to learn it's not? The same is true for this trial.

The former leaders did many terrible things, but only some of them are clear violations of civil law and are subjects of the trial. For example, the former leaders raided $3 million from our strike fund to pay for newspaper ads, catering and legal costs in their self-serving fight against SEIU. They never paid the money back and left the strike fund depleted just as dozens of contracts were expiring. This is morally inexcusable, but technically legal...

...It's frustrating that the trial is not the venue to hold the former leaders accountable for these selfish acts, but we know that the most important jurors are the 150,000 members of UHW. And ultimately we will hold them accountable by getting them out of our worksites once and for all.

Huh? What? Yes, Perez often sees things that should be illegal but aren't (like politically motivated trusteeships and nuisance lawsuits), but it isn't often he pays $10 million in legal fees to find out that he doesn't have a case!

With so many other great things to be mean about, I try not to focus too much on physical appearance. However, there's a minor debate raging in my inbox about SEIU lawyer Gary Kohlman! When I reported yesterday that one reader felt his ears were his distinguishing feature, another chimed in to argue that his eyebrows deserved at least a mention ("like a pair of fuzzy shelves from some crazy 70s apartment."), and another to say that Mad Magazine mascot Alfred E. Neuman might have been based on a younger Kohlman!

Oh, by the way, Perez was wrong with yesterday's prediction about how the plaintiffs would spend their remaining time (guess that's why I'm a blogger and not a lawyer). With about 100 minutes left at the end of the day (the defendants have about 200), the plaintiffs are still cross-examining all the witnesses, although generally very briefly.

Keep your speculations, look-alikes, and court reports coming to perezstern@gmail.com!

Thursday in court - Coffee and Kool-Aid!

Readers report a much kinder, gentler day in court today, with plaintiffs and defendants tripping over each other in their efforts to apologize and make things right. "No, please, let me pay your legal costs" begged Mary Kay Henry to defendant Joan Emslie, "Believe me, this hasn't been fun for me either!" In the hallway, Amado David and defendant Gabe Krystal were spotted exchanging hugs and sharing an iPod to listen to a little MC Krooked. "Honestly, I just want a nice SEIU local to call my own" sighed Sal Rosselli, "Just give me 221 and a new purple windbreaker, and I'm done! Are you with me Dan?"

To mark the more relaxed mood in the courtroom, Judge Alsup ordered court security officers to bring coffee in for audience members, and turned on the heating. Ironically however, proceedings may now run through April as the parties reverse-negotiate, and SEIU fundraises among its large community of labor allies.

Wednesday in court - Wellspring of the members!

Andy Stern, Mary Kay Henry, Anna Burger, Dave Regan, Eliseo Medina, Leon Chow, Steve Trossman, Rebecca Malberg, and SEIU finally rested their case today in federal court!

Readers tell Perez that while the NUHW area of the courtroom is packed with members, staff, supporters, and journalists, attendance on SEIU’s side is down to a skeleton crew consisting of a few senior staffers (staff lawyer Deedee Fitzpatrick and deputy trustee Debbie Schneider have been regulars), PR staffers Steve Trossman and Matt Browner Hamlin (Michelle Ringuette didn’t come back after the first couple of days), someone’s kid, and the “member bloggers”, along with a huge legal team.

Spotted on those sparse SEIU benches today, Mary Kay Henry looking back at the SEIU side and making faces during Sal Rosselli’s testimony. Spotted in the ladies bathroom, Rebecca Malberg frantically snatching handfuls of paper towel and stuffing it in her purse! Maybe that’s where all the UHW documents went?

The day began with cross-examination of SEIU’s email expert (he only makes $250 an hour while the math guy makes $600?!), and the stunning revelation that “double deleting” emails means deleting them and then emptying your trash can! Then came Debbie ssssSchneider, followed by a paralegal from one of SEIU’s law firms, and a security guard from the Sacramento UHW office, all to talk about boxes and data. Perez didn’t hear anything interesting about any of them or about the defendant deposition videos SEIU played.

And then the plaintiffs finally rested their case with about an hour of the day left, and the defense went straight into calling witnesses with Sal Rosselli. As Sal took the stand, readers say there was a palpable feeling of “this is our turn!” in the room, and the energy changed. The jury literally sat up and took notice too, looking more animated, and writing more notes than at any point in the plaintiffs’ case.

Readers say Sal wasn’t in exuberant rally-speech mode, but gave a very sober and clear history of the actions and decisions that led inevitably to the trusteeship – the 2007 SF Weekly article on the nursing home deals, the 2008 convention, the jurisdiction decisions, the trusteeship hearings, and along with it all, the struggle of UHW members to make their international union acknowledge their existence as something more than dues units. Readers say it just sounded like the straight-up truth.

SEIU lawyer Kohlman (“the one with the big ears”) gambled and lost with his cross examination. Faced with a choice between staying calm and trying to subtly steer Rosselli, or going all-out and trying to intimidate him, Kohlman chose the latter strategy (each has its place, there’s no moral judgment here!), sounded out-of-step, and fell flat, failing to get any real concessions from the witness or trip him up.

It’s tricky for the plaintiffs now, because just about any legal concession they might be able to get from a defense witness - for example that UHW’s officers should have obeyed the IEB and not union members - makes SEIU look terrible to the jury, and the defendants look good. It happened today, as SEIU objected repeatedly to Rosselli’s account of democratic processes at UHW on the grounds that they were “irrelevant”, and then turned around and argued in their cross examination that the undemocratic changes to the SEIU constitution made in Puerto Rico (essentially turning all important decisions over to Andy Stern) were an expression of the members’ will! Judge Alsup might insist that appearances don’t matter, but he does so because they do; especially in a case that’s still so legally ambiguous and messy.

Things are getting messier and messier too in the negotiations that happen between the lawyers and the judge when the jury is out. This morning Perez hears the judge accused SEIU of “larding the record”, and called their case “big law firm practice at its worst!”. However, he also insisted that the former UHW staffers must have spent at least a little time planning to be disloyal on SEIU’s dime, or how else would they all have coordinated to quit on the same day? Not a point that make sense to Perez (has Judge Alsup heard of weekends?), but it shows how tense things are getting, as the judge urges the sides to come to some sort of agreement to clarify things for the jury.

The judge wouldn’t give the minute counts he’s given at the end of every other day, but with 200 left in the morning, the plaintiffs must now be very low on time. Just for fun, Perez is going to make a little prediction – SEIU will spend all, or all but a few minutes cross-examining Sal Rosselli. It’s abundantly clear that they’re going to have a hard time making any charges stick, and spending five minutes crossing every witness would just be useless. The real point of all this time and money is to taint NUHW, and winning nothing at all, or just some random finding against a staffer, won’t do that cause any good! That’s why Perez bets they’ll throw it all at Rosselli (who they’ll say is ultimately responsible for everything that happened) and hope they get something they can use!

Now, does anyone want to pay me $600 an hour for my expertise at making semi-informed guesses?