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!