BEFORE THE IMPARTIAL ARBITRATOR ALEXANDER COHN IN THE MATTER OF THE ARBITRATION BETWEEN: ) STATE OF CALIFORNIA ) AND ) VOLUME I CALIFORNIA ASSOCIATION OF ADMINISTRATIVE ) LAW JUDGES, ATTORNEYS AND HEARING OFFICERS ) IN STATE EMPLOYMENT ) ) ____________________________________________) 10 RIVER PARK PLACE EAST FRESNO, CALIFORNIA MAY 02, 2005 REPORTED BY: ANGELA M. HELMS, CSR CERTIFICATE NO. 9561 1 1 A P P E A R A N C E S: 2 3 FOR THE STATE: 4 BARRETT MC INERNEY, Attorney at Law 5 1515 S Street, North Building, Suite 400 6 Sacramento, California 95814 7 8 FOR THE ASSOCIATION: 9 MONICA MINER, Labor Relations Representative 10 2495 Natomas Park Drive, Suite 550 11 Sacramento, California 95833 12 13 ALSO PRESENT: 14 GEOFFREY H. SIMS 15 JEAN ROWAN 16 17 BEFORE: 18 ALEXANDER COHN, Arbitrator 19 Post Office Box 4006 20 Napa, California 94558 21 22 23 24 25 R O U G H D R A F T O N L Y 2 1 I N D E X 2 3 W I T N E S S E S: PAGE 4 5 FOR THE UNION 6 GEOFFREY H. SIMS 7 Direct Examination 8 Cross Examination 9 Redirect Examination 10 Recross Examination 11 12 WILLIAM JORDAN 13 Direct Examination 14 Cross Examination 15 Redirect Examination 16 17 18 19 20 21 22 23 24 25 R O U G H D R A F T O N L Y 3 1 FRESNO, CALIFORNIA; MONDAY, MAY 02, 2005 2 11:09 A.M. 3 -O0O- 4 5 THE ARBITRATOR: Let's go on the record and 6 show this is a labor arbitration between the State of 7 California, represented by DPA Counsel Barrett 8 McInerney, and CASE, C-A-S-E, represented by Staff -- 9 excuse me -- by LR Representative Monica Miner. 10 This is Case Number 04-02-0015. The 11 generic name the arbitrator is putting on this is the 12 cell phone dispute. 13 Before we go forward, may I have a 14 stipulation from the parties that all prior steps in 15 the grievance and arbitration procedures have been met 16 or waived, and the case is ready for final and binding 17 decision? 18 MR. MC INERNEY: Yes. 19 MS. MINER: Yes. 20 MR. MC INERNEY: The case number on the 21 second case, if you want that -- 22 THE ARBITRATOR: Yes, please. 23 MR. MC INERNEY: -- is 05-02-0005. 24 THE ARBITRATOR: Thank you. 25 Let's go off the record one second. R O U G H D R A F T O N L Y 4 1 (Discussion held off record.) 2 THE ARBITRATOR: Any objection to issuance of 3 my decision by first-class mail? 4 MS. MINER: No. 5 MR. MC INERNEY: No. 6 THE ARBITRATOR: Thank you. 7 While we were off the record, I have 8 marked and I will now receive the following joint 9 exhibits: Joint Exhibit 1 is the contract between the 10 parties. Joint Exhibit 2 is the grievance packet 11 relating to what I'm going to now call the Fresno area 12 grievance. 13 Let's go off the record. 14 (Discussion held off record.) 15 THE ARBITRATOR: Joint Exhibit 3, which will 16 come a little bit later in the case, is the grievance 17 packet for what we will now call the statewide cell 18 phone case. 19 And pursuant to our off-the-record 20 discussions, CASE will provide DPA counsel and the 21 arbitrator with the grievance packet in the statewide 22 case before the end of the day. 23 Now, pursuant to our off-the-record 24 discussions, I'm going to ask -- 25 Let's go off the record. R O U G H D R A F T O N L Y 5 1 (Discussion held off record.) 2 THE ARBITRATOR: I'm going to ask Monica to 3 restate for the record the parties' agreement on the 4 three issues in the case. And Barrett, if there's 5 anything you do not agree with, let me know. 6 MR. MC INERNEY: Yes. 7 THE ARBITRATOR: Please. 8 MS. MINER: Did the decision by SCIF to 9 discontinue the use of prepaid cellular telephones 10 violate Sections 3.1, 4.3, 12.1(G)(3) and/or 12.4 of 11 the Unit 2 MOU? 12 Under 12.4, does SCIF have the duty to -- 13 THE ARBITRATOR: Excuse me. Period? 14 MS. MINER: Yes, period. 15 THE ARBITRATOR: Now number two. 16 MR. MC INERNEY: Actually, question mark. 17 THE ARBITRATOR: Correct, question mark. 18 MS. MINER: Under 12.4 of the Unit 2 MOU, 19 does SCIF have a duty to provide cell phones to their 20 attorneys for use for business purposes, question 21 mark? 22 If -- 23 THE ARBITRATOR: And three. 24 MS. MINER: And three, if -- 25 THE ARBITRATOR: Either or both. R O U G H D R A F T O N L Y 6 1 MS. MINER: Either or both are found, what is 2 the appropriate remedy? 3 MR. MC INERNEY: Either one or two are 4 sustained, what shall be the appropriate remedy or 5 remedies. 6 THE ARBITRATOR: So agreed? 7 MR. MC INERNEY: Yes. 8 THE ARBITRATOR: Given the nature -- excuse 9 me. 10 CASE also agrees? 11 MS. MINER: Yes. 12 THE ARBITRATOR: Given the nature of the 13 dispute, I'm going to turn to CASE and ask if it has 14 an opening statement? 15 MS. MINER: Yes, I do. 16 THE ARBITRATOR: The ball's in your court. 17 MS. MINER: Okay. CASE represents Unit 2 18 members who work for the State of California. These 19 are the rank-and-file attorneys, administrative law 20 judges and hearing officers that work for the State. 21 As to the first grievance, this grievance 22 was filed on April 6th of 2004 alleging violations of 23 Section 3.1, 4.3 and 12.1 and 12.4 of the MOU. 24 What SCIF does is that it has policies 25 for Workers' Compensation for both the State and for R O U G H D R A F T O N L Y 7 1 private employers. Our SCIF attorneys adjudicate 2 cases at the Workers' Compensation Appeals Board, or 3 the WCAB. 4 THE ARBITRATOR: Could you just define SCIF 5 for us? 6 MS. MINER: Sure. SCIF is State Compensation 7 Insurance Fund, for the record. 8 THE ARBITRATOR: Please continue. 9 MS. MINER: All right. In sometime around 10 September of 2003, the pay phones at the Hugh Burns 11 State Building were removed by the telephone company. 12 Under Title 8 of the California Code of 13 Regulations 10563, defense attorneys, which SCIF is -- 14 SCIF attorneys are -- must be able to contact their 15 client in order to gain settlement authority when they 16 are making appearances at the Workers' Compensation 17 Appeals Board, or the WCAB. 18 This change was not noticed to CASE at 19 first. CASE had provided notice here to the Fresno 20 management, at which point the management in Fresno 21 came up with a -- cell phones to be used by their 22 attorneys. 23 After about six months of having cell 24 phones available, these were taken away by upper-level 25 management. SCIF attorneys had come to rely on these R O U G H D R A F T O N L Y 8 1 phones. This is a unilateral change in working 2 conditions without notice to CASE or an opportunity to 3 bargain the impact under 3.1 and 4.3. 4 12.1 of the contract is also violated. 5 Upper-level management told SCIF attorneys that they 6 should purchase their own cell phone for SCIF business 7 and then to seek reimbursement. 8 The problem with this is that the cell 9 phone reimbursement policy is cumbersome, tedious and 10 does not provide full reimbursement; and upper-level 11 management even stated that the attorneys should eat 12 the 10 or $20 a month. And testimony is going to show 13 that that is very difficult for some of our attorneys, 14 to provide their own money for SCIF business. 15 12.4 of the contract states that certain 16 departments are to provide their attorneys cell phones 17 for State business. One of those listed is the 18 Department of Industrial Relations. Labor Code 19 Section 56 specifically states that SCIF is a part of 20 DIR; therefore, CASE feels that the grievances should 21 be sustained, both the Fresno grievance and the 22 statewide grievance, and that our requested remedy is 23 to provide cell phones, and the various other remedies 24 listed should be instituted. 25 THE ARBITRATOR: Thank you. R O U G H D R A F T O N L Y 9 1 Does the State have an opener or care to 2 reserve? 3 MR. MC INERNEY: No, I have an opener. 4 Many of the base facts that were 5 discussed in the opening statement are pretty much 6 agreed to. 7 Sometime in September 2003, MCI 8 unilaterally, and at least without a notice that 9 anyone at the Department of General Services knows 10 about, decided to pull all of its pay phones from all 11 of the State buildings everywhere in the State because 12 they felt that the pay phones were not lucrative 13 enough in light of what the expense was of maintaining 14 those pay phones. 15 When the phones were pulled out, the 16 testimony will indicate that Mr. Jordan from this 17 office had, in fact, contacted MCI and the Department 18 of General Services, and MCI said they would not put 19 any phones back in any State buildings until the State 20 reimbursed them about $2000 per phone, plus pay $38 a 21 month, plus MCI received all of the money that came 22 out of the pay phones. And the State declined to put 23 the phones back in all of the State buildings because 24 of the prohibitive costs that it would have involved. 25 As a result, the Fresno office put R O U G H D R A F T O N L Y 10 1 together a pilot program, basically through the 2 initiative of Mr. Jordan where he tried to basically 3 find old cell phones that people had already 4 discarded, put a new SIM card in those old cell phones 5 and link them up to an AT&T prepaid service. 6 Mr. Jordan then, out of his own pocket -- 7 MS. MINER: I'm going to object. He's 8 testifying. 9 THE ARBITRATOR: Respectfully, it's an 10 opening statement. He could say the moon is green. 11 That doesn't make it so. 12 Please continue. 13 MR. MC INERNEY: Mr. Jordan will testify that 14 he, out of his own pocket, went ahead and put together 15 some prepaid calling cards from AT&T and then handed 16 out some of the orphaned cellular phones that he was 17 able to pull together to some of the attorneys in the 18 office so that they would have cell phones for use 19 while they were at the Workers' Compensation Appeals 20 Board. 21 The other options were to either have the 22 adjusters present whenever there were settlement 23 negotiations going on in the court, or to go across 24 the street to one of the other government buildings 25 and use one of the pay phones from a non-State R O U G H D R A F T O N L Y 11 1 building where the phones had not been pulled out. 2 They ran this pilot program for several 3 months, and there was even some inquiry from some of 4 the other Workers' Compensation -- some of the other 5 SCIF offices as to whether or not the program could be 6 duplicated elsewhere. 7 Ultimately, upper management made the 8 decision that aside from reimbursing the attorneys for 9 the use of cell phones, they did not want to start a 10 pattern or a policy where phones would be provided to 11 some or all of the attorneys who were going to court 12 and, as a result, the pilot program in Fresno was 13 discontinued. 14 Secondly, we are taking the position that 15 under the MOU, 12.4(B) or (2) -- I forget how it's 16 numbered there -- 17 THE ARBITRATOR: (B). 18 MR. MC INERNEY: -- (B) is the one that 19 applies to SCIF. Although I haven't seen this 20 particular form of the contract, I believe if you flip 21 back to the signature page, it will indicate that 22 there are signatory lines for the Department of 23 Industrial Relations separate from SCIF; that SCIF 24 historically has always been treated as a separate 25 entity with respect to the bargaining table and to its R O U G H D R A F T O N L Y 12 1 position as a hiring authority; and therefore, the 2 reference to the Department of Industrial Relations 3 does not refer to SCIF, and that was the nature of the 4 negotiations when this and its preceding contracts 5 were developed. And we will have testimony as to the 6 fact that SCIF has always sat as an independent entity 7 separate and apart from the Department of Industrial 8 Relations; and therefore, the reference to the one is 9 not necessarily inclusive of the other. 10 Finally, there is a cell phone 11 reimbursement plan that goes through a relatively 12 uncomplicated mathematical determination that allows 13 attorneys who do use their own cell phones to be 14 reimbursed for calls that are made in the course and 15 scope of business. 16 Ultimately, since SCIF falls within the 17 discretionary use of cell phones for its attorneys 18 under 12.4(B) and they are reimbursed for their actual 19 out-of-pocket costs with respect to calls made in the 20 course and scope of their government business, we 21 believe that SCIF is adhering to the terms of the 22 contract; they are providing reimbursement where 23 appropriate; and the evidence will indicate that there 24 is no further obligation for them to provide cell 25 phones regardless of what happened during the Fresno R O U G H D R A F T O N L Y 13 1 pilot project. 2 THE ARBITRATOR: Thank you. 3 We're going to take just a three-minute 4 break, and then we'll go to our witness. 5 (Recess taken.) 6 7 GEOFFREY H. SIMS, 8 HAVING FIRST BEEN DULY SWORN, WAS 9 EXAMINED AND TESTIFIED AS FOLLOWS: 10 11 THE ARBITRATOR: Let's go back on the record 12 and show the first witness for CASE has been called 13 and sworn. 14 And for the record, sir, would you please 15 give us your full name, spelling your last name. 16 THE WITNESS: Yes. Geoffrey H. Sims, 17 S-i-m-s. 18 THE ARBITRATOR: And your position, if any, 19 with State Fund? 20 THE WITNESS: I am a Staff Counsel III 21 Specialist. 22 THE ARBITRATOR: And your position, if any, 23 with CASE? 24 THE WITNESS: I am an at-large member of the 25 Board of Directors. R O U G H D R A F T O N L Y 14 1 THE ARBITRATOR: Thank you. 2 Your witness. 3 4 DIRECT EXAMINATION 5 6 BY MS. MINER: 7 Q Okay. Geoff, how long have you been a 8 Staff Counsel III? 9 A Since August 1st, 2004. 10 Q And for the record, what office do you 11 work in? 12 A In the Fresno legal office. 13 Q Okay. You stated earlier what your 14 position is with CASE. 15 Can you describe what that entails. 16 A As far as being an at-large board member? 17 Q Yes. 18 A Being a member of the 16 Board of 19 Directors of CASE assigned to various committees. 20 That's about it. 21 Q How long have you worked for the State? 22 A My date of hire was June 1, 2001. 23 Q What other classifications have you held 24 with the State? 25 A I was hired in as a Range B attorney. I R O U G H D R A F T O N L Y 15 1 advanced to Range C and then to Range D and then Staff 2 Counsel III. 3 Q Have you ever worked for any other 4 departments for the State of California? 5 A No, I have not. 6 Q And what did you do prior to working for 7 the State? 8 A Prior to the State of California, I was 9 employed by Laughlin, Falbo, Levy & Moresi, and that's 10 L-a-u-g-h-l-i-n, Falbo, F-a-l-b-o, Levy, L-e-v-y, and 11 Moresi is M-o-r-e-s-i. And that was from 1998 through 12 2001. 13 Prior to that, my attorney career was 14 self-employed from November 22nd, 1994. 15 Q What year did you graduate from law 16 school? 17 A 1993. 18 Q And what year did you become an attorney? 19 A I was sworn in on November 22nd, 1994. 20 Q How long have you been in the Workers' 21 Compensation field? 22 A Since 1998. 23 Q Describe what SCIF's function is. 24 A SCIF is -- State Compensation Insurance 25 Fund is a full-range insurer/provider of Workers' R O U G H D R A F T O N L Y 16 1 Compensation coverage to employers within the State of 2 California. It is -- it is a State agency in that it 3 was chartered by the State of California in 1913. 4 Most of the administrative functions 5 within SCIF run through the State of California. For 6 example, payroll is run through the State through the 7 State Controller's office. State attorneys and other 8 State employees of SCIF have civil service protection. 9 Employees of State Fund, or SCIF, have -- 10 are similarly situated in terms of vacation, benefits 11 such as PERS, Public Employee Retirement System, and 12 also the downside of -- of not being able to collect 13 State disability insurance like you would in the 14 private sector, but instead NDI which is a 15 less-enhanced benefit. 16 Q What is your current caseload? 17 A As of last Thursday, the printout was 324 18 files. 19 Q And can you give us an idea of what the 20 other attorneys in your office carry as far as 21 caseload. 22 A There are 21 attorneys in the Fresno 23 office, 18 of which handle what we call policy cases. 24 State Fund also administers State agency 25 Workers' Compensation cases on behalf of the various R O U G H D R A F T O N L Y 17 1 State agencies, Corrections, Department of Justice, 2 et cetera. There are three attorneys who handle 3 those. Their caseloads are considered to be lower 4 because the -- the typical rule of thumb is that those 5 cases tend to have more tentacles. 6 A policy case tends to be a little bit 7 more straightforward; so the attorneys in this office 8 in the policy side, each attorney is handling 9 somewhere around 300 to 350, as many as 400 files. 10 Q How often would you say you're out of the 11 office on State Fund business? 12 A Three to four days out of the week. 13 Q And what kind of things do you do when 14 you're out of the office? 15 A Most frequently, my time is spent 16 downtown at the Workers' Compensation Appeals Board. 17 There are occasions where I'm out of the office in a 18 deposition or meeting other attorneys in -- in regard 19 to -- to conducting SCIF business. 20 Q And how does your office contact you when 21 you're out of the office? 22 A My personal cell phone. 23 Q Do you pay the cell phone bill yourself? 24 A Yes, I -- well, my wife writes the 25 checks, but yes. R O U G H D R A F T O N L Y 18 1 Q Do you get reimbursed for calls that you 2 make for -- on SCIF business on your personal cell 3 phone? 4 A I have not been submitting for 5 reimbursement, no. 6 Q Have you ever submitted for 7 reimbursement? 8 A There were -- 9 THE ARBITRATOR: Is that a yes or no? The 10 question was: Have you ever submitted a bill -- 11 THE WITNESS: Yes. 12 THE ARBITRATOR: -- for reimbursement? 13 Now you can explain. It's just more 14 probative for the arbitrator to hear a yes or a no 15 first. 16 THE WITNESS: And as we discussed off the 17 record, it's entirely different with me being in the 18 witness chair as opposed to asking a question. 19 Previously I have submitted a few -- few 20 months' worth of expense reports, typically just 21 putting down .50 for a phone call that -- that was at 22 a pay phone. 23 MS. MINER: I'd like to show the witness 24 "State Fund Cellular Reimbursement Rates Procedure." 25 THE ARBITRATOR: Off the record. R O U G H D R A F T O N L Y 19 1 (Discussion held off record.) 2 THE ARBITRATOR: For identification only at 3 this time, Union Exhibit 1. This is the State Fund's 4 Cellular Reimbursement Rates Procedure. 5 MR. MC INERNEY: We'll stipulate to 6 admissibility. 7 THE ARBITRATOR: Thank you. 8 It's received. 9 (The aforementioned document was 10 marked as Union Exhibit 1 for 11 identification and received into 12 evidence by the Arbitrator.) 13 BY MS. MINER: 14 Q Are you familiar with this -- 15 A Yes, I am. 16 Q -- policy? 17 A I'm sorry. Yes, I have seen this 18 document. 19 Q Describe the reimbursement procedure that 20 State Fund has. 21 A The way this -- this reimbursement rate 22 structure is put together, the way I understand it, is 23 that State Fund is taking credit for the free minutes 24 that are provided in -- within someone's standard 25 plan, whether it be Cingular, Verizon or what have R O U G H D R A F T O N L Y 20 1 you. 2 There are probably about eight or nine 3 providers that are listed here. This document is as 4 it was presented to me back in 2003; and, of course, 5 as time has gone on, some of these providers have 6 been -- ceased operation or been absorbed by other 7 companies. 8 So it's my understanding that State Fund 9 takes credit for the free minutes, and what is 10 actually reimbursed to you is at a reduced rate off 11 the back end of your plan. 12 Q So if you do not use State Fund's 13 reimbursement plan, do you write your cell phone off 14 on your taxes? 15 A I was informed by my personal accountant 16 that I would not be able to write off anything as a 17 personal business expense until I reached a point 18 where that business expense exceeded ten percent of -- 19 of my family's gross income. 20 Q Okay. Are you required to be reachable 21 when you are away from the office? 22 A Yes. The judges at the WCAB have an 23 expectation -- and there is also a provision in the -- 24 in the California Code of Regulations -- that 25 attorneys or representatives be able to contact those R O U G H D R A F T O N L Y 21 1 individuals who have settlement authority. 2 Q Okay. I'm going to show you Title 8 of 3 the California Code of Regulation, Section 10563. And 4 I'd like to -- 5 THE ARBITRATOR: Union 2 for identification. 6 Do you have a copy for Barrett? 7 MS. MINER: Yes. 8 THE ARBITRATOR: As described by the 9 advocate, Title 8. 10 MR. MC INERNEY: We'll stipulate to 11 admissibility. 12 THE ARBITRATOR: Thank you. 13 It's received. 14 (The aforementioned document was 15 marked as Union Exhibit 2 for 16 identification and received into 17 evidence by the Arbitrator.) 18 THE WITNESS: Yes, I have it in front of me. 19 BY MS. MINER: 20 Q Okay. And this states in writing under 21 the CCR what you just stated? 22 A Yes, it does. 23 Q Okay. And have you ever been at the WCAB 24 and had an issue in regards to this section of the 25 CCR? R O U G H D R A F T O N L Y 22 1 A In -- in regard to someone not being able 2 to contact their client? 3 Q Yes. 4 A There was one incident that I recall in 5 particular where one of our particular attorneys was 6 actually cited by one of the judges for his inability 7 to reach his client because he didn't have a phone in 8 the building. 9 And actually, my recollection is, he 10 didn't actually have his -- his cell phone with him. 11 He had mistakenly forgotten to bring it that day, and 12 the judge issued an order to show cause re sanctions 13 in that respect. 14 Q And what happened in that situation? 15 A The hearing went forward in November of 16 2003. I attended, my supervisor -- my supervising 17 attorney in charge, William Jordan, also attended, and 18 we explained to the judge that we had in place a 19 system whereby these, for lack of a better phrase, 20 pay-as-you-go cellular telephones were available to 21 each work group within the office. 22 Q Okay. Next I'm going to hand you a 23 document -- an e-mail. Let me -- 24 THE ARBITRATOR: For identification only at 25 this time, Union Exhibit 3. This is an e-mail dated R O U G H D R A F T O N L Y 23 1 November 3, 2003 from William Jordan to Clinton A. 2 Cummins, C-u-m-m-i-n-s, the witness and a number of 3 other folks. 4 MS. MINER: And that's Union 3? 5 THE ARBITRATOR: Yes. And the subject is 6 phones at WCAB. 7 (The aforementioned document was 8 marked as Union Exhibit 3 by the 9 Arbitrator for identification only.) 10 THE WITNESS: I can amplify on the 11 addressees, if you like. 12 THE ARBITRATOR: I'll let the advocate ask 13 you the questions. 14 MS. MINER: Did I provide you a copy? 15 MR. MC INERNEY: No, you didn't. Looking at 16 it upside down, I think I know what it is though. 17 MS. MINER: Just one moment, if we could go 18 off the record? 19 THE ARBITRATOR: Okay. Off the record. 20 (Discussion held off record.) 21 BY MS. MINER: 22 Q Do you recall receiving this e-mail? 23 A Yes, I do. 24 Q And what does this e-mail describe? 25 MR. MC INERNEY: Objection; the document R O U G H D R A F T O N L Y 24 1 speaks for itself. 2 THE ARBITRATOR: I agree. 3 BY MS. MINER: 4 Q Describe the issue about the pay phones 5 at the Workers' Compensation Appeals Board that's 6 described in the e-mail. 7 A Okay. Prior to September 3rd, 2003, the 8 Hugh Burns State Building in downtown Fresno had a 9 considerable number of pay phones that were available 10 for use by anyone working there in the building, 11 whether they be SCIF lawyers or attorneys employed by 12 private firms or even the general public. 13 Specifically, each floor had one to two 14 cell phones -- I'm sorry -- pay phones per floor, and 15 then on the first floor, there was what they called 16 the communications suite which had six pay phones 17 with -- they were similar to library carrels, if you 18 are familiar with those from our distant past, where 19 the pay phone was located there; you had a work area; 20 and there was some measure of -- of privacy around 21 you. 22 On September 3rd, 2003, without notice to 23 the WCAB or any other State agency that I know of 24 other than the Department of General Services, MCI 25 came in and pulled those pay phones out of the R O U G H D R A F T O N L Y 25 1 building. 2 As a result of that, and in response to 3 that, my supervising attorney in charge, William 4 Jordan, put together a plan to provide each work group 5 within this office with a cellular telephone that had 6 preprogrammed minutes on it that you would start with 7 500 minutes. As you continued to use the -- the 8 phone, the minutes would decline until it was 9 exhausted. Then you would get another card and call 10 in to -- to have the phone programmed for the 11 additional time. 12 It was my understanding that that plan 13 was authorized by State Fund upper management. And 14 this e-mail memo outlines the plan and that I was 15 essentially the -- the point person within the office 16 who would coordinate the phones, provide the cards 17 when -- when the phones were running low, et cetera. 18 Q Did you do anything in your capacity as a 19 CASE representative about this issue? 20 A I submitted to Mr. Jordan, the day after 21 the phones were taken out, several proposals in a way 22 to -- to get the situation rectified so that we could 23 communicate with our clients. 24 Q Okay. Next I'm going to hand you a 25 memo -- R O U G H D R A F T O N L Y 26 1 THE ARBITRATOR: For identification only at 2 this time, Union Exhibit 4. This is a memo from the 3 witness to William Jordan concerning telephone usage 4 at the Fresno WCAB, and it's dated September 4, '03. 5 MR. MC INERNEY: I'll stipulate to the 6 admissibility of 3 and 4. 7 THE ARBITRATOR: Thank you. 8 They are received. 9 (The aforementioned document which was 10 previously marked Union Exhibit 3 11 was received into evidence by the 12 Arbitrator.) 13 (The aforementioned document was 14 marked as Union Exhibit 4 for 15 identification and received into 16 evidence by the Arbitrator.) 17 Let's go off the record. 18 (Discussion held off record.) 19 THE ARBITRATOR: Union 4 is admitted. 20 BY MS. MINER: 21 Q Did you write this memo? 22 A Yes, I did. 23 Q And can you describe how this memo came 24 to be written. 25 A This memo was written basically in my R O U G H D R A F T O N L Y 27 1 capacity as the CASE local representative for the 2 Fresno staff counsel office in an effort to apprise 3 management of the problems and also to suggest some 4 options in terms of -- of how we can get around the 5 fact that the -- the Board no longer had pay phones. 6 Q Okay. And why did you feel that it was 7 important in your capacity as the local rep that this 8 issue be addressed? 9 A Well, it was in an effort to -- to work 10 with SCIF management to try and rectify a problem 11 essentially before it really became a problem. 12 Q And how many cell phones were there again 13 that were available? 14 A Do you mean pay phones? 15 Q Let's move on to the actual cell phones? 16 A Oh, okay. 17 Q And how many cell phones were there? 18 MR. MC INERNEY: Objection as to what point 19 in time. I think the number varied. 20 THE WITNESS: I mean, I think I can kind of 21 answer that and kind of provide a time line as we go, 22 if that's all right with you. 23 Initially, Mr. Jordan brought in a 24 cellular telephone of his own that was -- that was one 25 that he had become -- it had become obsolete for him, R O U G H D R A F T O N L Y 28 1 and then one of the other attorneys in the office 2 managed to -- to find one. So we had two initially. 3 Shortly thereafter, we received a box 4 from home office -- from the IT people, the 5 intellectual technology people, with, I believe, four 6 cellular phones and charger units -- wall charger 7 units for phones that had been turned in by other SCIF 8 employees and were made obsolete that we could use in 9 the program. 10 At that point in time, there were five 11 work groups organized within the office because there 12 were five Staff Counsel IIIs, each with or two 13 attorneys working within their group. And so the idea 14 was, each work group of three would get a cell phone, 15 and the Staff Counsel IIIs would coordinate: 16 So-and-so is going to the Board this morning; he or 17 she has the phone; if you need to use the phone, you 18 need to see them, kind of thing. 19 BY MS. MINER: 20 Q When did this -- the cell phones, when 21 were they first distributed? 22 A I don't have an exact date. I believe it 23 was sometime in October. 24 Q Of what year? 25 A Of -- I'm sorry. Of 2003. R O U G H D R A F T O N L Y 29 1 Q To the best of your knowledge, did the 2 SCIF attorneys like to be able to use these cell 3 phones? 4 MR. MC INERNEY: Objection; calls for 5 speculation. 6 THE ARBITRATOR: Let's start with him. 7 BY MS. MINER: 8 Q Did you like the cell phones to be 9 available to you, as a SCIF attorney? 10 A As opposed to using my own personal cell 11 phone, yes. 12 Q And what did other attorneys say to you 13 about the use of these cell phones being available? 14 MR. MC INERNEY: Objection; hearsay. 15 THE ARBITRATOR: Hearsay is admissible. The 16 issue goes to the weight, not the admissibility. So 17 I'll hear it. 18 THE WITNESS: Okay. 19 THE ARBITRATOR: You can argue its weight at 20 the end of the proceeding. 21 THE WITNESS: Some of the reactions that I 22 received was that it was -- it was awkward and 23 cumbersome that they had to go out and seek out 24 someone who had the -- you know, the SCIF phones is 25 what we ended up starting to call it. R O U G H D R A F T O N L Y 30 1 But by and large, I felt that the overall 2 reaction was this is -- this is better than having to 3 rely on our own cell phones and pay for things out of 4 our own pocket or try and go through the reimbursement 5 procedure. 6 BY MS. MINER: 7 Q How did the project work out overall? 8 A I felt that it was -- it was working 9 well. I was able to -- to get feedback from -- from 10 people throughout the office that as -- as an 11 alternative plan, it was -- it was functioning. 12 Q What happened to the project? 13 A It was terminated, I believe, on 14 March 29th, 2004. 15 Q Do you know by who? 16 A My understanding was, in a copy of an 17 e-mail sent by my supervising attorney in charge, 18 William Jordan, it was terminated by William 19 Landsiedel, L-a-n-d-s-e-i-d-e-l, who was at that time 20 Mr. Jordan's assistant chief counsel, in other words, 21 my boss's boss. 22 Q To the best of your knowledge, during the 23 project were SCIF attorneys using their cell phones -- 24 personal cell phones less, more or about the same? 25 A While the project was in place? R O U G H D R A F T O N L Y 31 1 Q Yes. 2 A Less. 3 MS. MINER: I have another set of e-mails 4 that I'd like to -- 5 THE ARBITRATOR: For identification only at 6 this time, Union Exhibit 5 is an e-mail dated 7 March 29, '04 from William Landsiedel -- 8 How do you say his name? 9 THE WITNESS: Landsiedel. 10 THE ARBITRATOR: Landsiedel -- to the 11 witness, et al., concerning phones at the Fresno WCAB. 12 Have you seen this before, Barrett? 13 MR. MC INERNEY: Yes. 14 THE ARBITRATOR: Any objection? 15 MR. MC INERNEY: No. 16 THE ARBITRATOR: Thank you. 17 Union 5 admitted. 18 (The aforementioned document was 19 marked as Union Exhibit 5 for 20 identification and received into 21 evidence by the Arbitrator.) 22 THE ARBITRATOR: Please continue. 23 BY MS. MINER: 24 Q Do you recall -- this is actually a 25 series of e-mails. R O U G H D R A F T O N L Y 32 1 Do you recall receiving this series of 2 e-mails? 3 A Yes, I do. 4 Q Let's go to the one that starts off the 5 chain. 6 THE ARBITRATOR: It goes from the bottom up. 7 THE WITNESS: These are in reverse 8 chronological order. 9 MS. MINER: Yes. And I am starting with -- 10 THE ARBITRATOR: March 29th, 10:42 a.m.? 11 MS. MINER: Yes. And we're also going to be 12 discussing the March 29th, 2004, 11:27 a.m. from 13 Mr. Jordan to various SCIF attorneys. 14 Q So starting with the first one from 15 Mr. Landsiedel to Mr. Jordan, 10:42, do you recall 16 receiving a copy of that e-mail in this chain? 17 A Yes. That was -- that was sent as an 18 attachment to Mr. Jordan's 11:27 a.m. e-mail. 19 Q Okay. And then Mr. Jordan, what did he 20 do with the information that Mr. Landsiedel provided 21 to him? 22 A He instructed me to gather all the 23 project cell phones and -- as a part of the project 24 termination. 25 Q In one of the e-mails, Mr. Jordan refers R O U G H D R A F T O N L Y 33 1 to "... a disruption in how we all handle calling from 2 the Fresno WCAB to the SCIF claims staff throughout 3 the State." 4 Do you know what he is referring to? 5 A I believe what he's referring to there is 6 our ability to contact our -- our client, the claims 7 client for settlement negotiations that are ongoing. 8 MR. MC INERNEY: Are we referring to a 9 particular place in Union 5? 10 THE WITNESS: It's the 11:27 e-mail, first 11 paragraph. 12 MS. MINER: Yes. 13 MR. MC INERNEY: Okay. 14 BY MS. MINER: 15 Q Have the attorneys in your office had a 16 hard time getting ahold of their adjusters on their 17 cases? 18 A There's always somewhat of a problem 19 getting ahold of -- 20 THE ARBITRATOR: Is that a yes? 21 THE WITNESS: Yes. 22 THE ARBITRATOR: Now, I don't mean to be, you 23 know, interrupting you all the time. It's just -- and 24 I mean this respectfully. I say this to a lot of 25 witnesses. It's just more probative if you start with R O U G H D R A F T O N L Y 34 1 a yes or no and then your explanation. That way, at 2 the end, I don't have to say, "Was that a yes or a 3 no?" 4 I'm sorry to interrupt. I won't do it 5 anymore. 6 Please continue. 7 THE WITNESS: That's okay. 8 BY MS. MINER: 9 Q Have the attorneys in your office had a 10 hard time getting ahold of the adjusters on their 11 cases? 12 A Yes. 13 Q And are you aware of any steps that SCIF 14 management has undertaken to remedy that situation? 15 A In terms of legal management or other 16 departments? 17 Q Any SCIF management. 18 A Okay. As a response to the way I 19 understand it, yes -- the answer is yes. As a 20 response to the September 3rd removal of the pay 21 phones, the Claims Department at the Fresno district 22 office instituted a procedure where they have a -- a 23 portable phone where if you call, you get bounced back 24 to the operator. The operator can give the portable 25 phone to another employee who can run on to the claims R O U G H D R A F T O N L Y 35 1 floor and basically try and track -- track down the -- 2 the claims adjuster. 3 Q In your experience, has that worked? 4 A It -- yes. It's -- it has ameliorated 5 some of the problems. 6 Q What problems haven't been alleviated? 7 A There's always a logistical problem that 8 you're down at the Workers' Comp Board transacting 9 business, and it's 10:00 o'clock in the morning, and 10 you pick up the telephone trying to get ahold of your 11 adjuster who said, "I'll be there," but they get other 12 phone calls or they have to go on break or something 13 along those lines. 14 Q To the best of your knowledge, are SCIF 15 adjusters trained in understanding Title 8 of the 16 California Code of Regulations, Section 10563 and the 17 importance of being available? 18 A I don't know that specifically, no. 19 Q Describe how cell phones would help 20 alleviate the problems with reaching adjusters or 21 someone else. 22 A The negotiation process down at the WCAB 23 is a very fluid matter. It's -- typically, in the 24 best case scenario, an attorney goes down with a 25 settlement range; however, because it's fluid, other R O U G H D R A F T O N L Y 36 1 issues crop up, and so it becomes very necessary to 2 have the person who has the pursestrings, for lack of 3 a better phrase, available to provide you with updated 4 or changed settlement authority. 5 The biggest problem that presents itself 6 is, it's not just a matter of picking up a phone and 7 making a single phone call and actually speaking with 8 someone. There are times when you have to call, and 9 you have to wait while that person is found; or you 10 have to wait while you have a substitute who is trying 11 to help you while they get the file and try and bring 12 themselves up to speed; or you -- you have to wait for 13 someone to call you back. 14 And then on top of it, you have these 15 multiple calls where, well, the idea was 20,000; how 16 about 21? So there's a lot of back-and-forth play 17 that -- where if -- if we're required to or we have no 18 other alternative but to use the pay phones, it 19 creates -- it creates a problem when we have to be 20 away from the WCAB that long. 21 Q To the best of your knowledge, how have 22 the SCIF attorneys in your office coped with the 23 disruption of having the pay phones taken out and also 24 the cell phone program being terminated? 25 A To the best of my knowledge, coping with R O U G H D R A F T O N L Y 37 1 it, they're using their own personal cellular 2 telephones. 3 Q You had mentioned Assistant Chief Counsel 4 Fred DaSilva a few minutes ago. 5 Could you explain again who he is. 6 A Fred DaSilva was the assistant chief 7 counsel who was a direct supervisor of my attorney in 8 charge here in the Fresno office. So he was 9 responsible for the overall operation of the Fresno 10 office, in addition to several other offices 11 throughout -- throughout the State, or perhaps just in 12 the central valley region. I couldn't tell you which 13 offices Mr. DaSilva was specifically responsible for. 14 Q And could you explain what his 15 involvement is with the Fresno cell phone issue. 16 A My understanding from Mr. Jordan was that 17 on Mr. DaSilva's authority, the pilot project was 18 commenced. 19 Q Could you please state your chain of 20 command. 21 A There's two levels within -- within the 22 Fresno office. Each -- each Staff Counsel III has two 23 attorneys working with them in work groups; so there's 24 an informal chain of command there. However, everyone 25 still is responsible or answers to the attorney in R O U G H D R A F T O N L Y 38 1 charge here within the office. That would be 2 Mr. Jordan. 3 In terms of going up the ladder from 4 there, each attorney in charge answers to the 5 assistant chief counsel who is assigned to that 6 particular district office. The assistant chief 7 counsel, as a group, are responsible to answer to 8 Robert Danieri, D-a-n-i-e-r-i, who is the chief 9 counsel for State Compensation Insurance Fund. 10 Q And who is your current assistant chief 11 counsel? 12 A Current assistant chief counsel for the 13 Fresno office is James Fischer, F-i-s-c-h-e-r. 14 Q And then, if Mr. Fischer is your 15 assistant chief counsel, how is it that Mr. Landsiedel 16 was the assistant chief counsel that took away the 17 project? 18 A Mr. DaSilva retired effective January 1, 19 2004. There was an interim period of time where 20 Mr. Landsiedel, who is actually headquartered in 21 Southern California, was the assistant chief counsel 22 responsible for Fresno as well. Then there was some 23 type of internal restructuring of the chain of 24 command, and Mr. Fischer became our ACC. And I 25 apologize, I couldn't quote you a date on that. R O U G H D R A F T O N L Y 39 1 Q In one of Mr. Landsiedel's responses on 2 Exhibit -- Union Exhibit 5, he talks about a legal 3 management policy. 4 Do you know what he is referring to? 5 MR. MC INERNEY: Objection; calls for 6 speculation. 7 THE ARBITRATOR: Comma, if you know. 8 BY MS. MINER: 9 Q If you know. 10 A Are you talking about the 3:08 e-mail 11 from Mr. Landsiedel? 12 Q The March 29th, '04, 1:52 p.m., right 13 here (indicating.) 14 THE ARBITRATOR: Quote: "No, we are not 15 allowed to use prepaid minutes in legal per our 16 agreement with executive Bill Landsiedel." 17 Is that what you're talking about? 18 MS. MINER: Yes. 19 THE ARBITRATOR: And the question is? I 20 apologize. 21 BY MS. MINER: 22 Q Do you know what policy Mr. Landsiedel is 23 referring to there by that e-mail? 24 MR. MC INERNEY: Objection; misstating the 25 evidence. It doesn't say "policy." It says R O U G H D R A F T O N L Y 40 1 "agreement." 2 MS. MINER: If it's a SCIF policy, I have a 3 SCIF employee here who is subject to that policy, and 4 I'm trying to question him as to whether he's familiar 5 with it. 6 THE ARBITRATOR: What Barrett is saying is 7 the words say "agreement" as opposed to "policy." 8 So whether it's a policy or an agreement, 9 what is your knowledge of that? 10 THE WITNESS: My understanding is -- is the 11 policy or agreement is that cell phones will not be 12 provided to attorneys in the individual district 13 offices. 14 THE ARBITRATOR: All right. Now I'm 15 confused. I apologize. And I'd rather you think I'm 16 confused here at the hearing than when you get my 17 decision. 18 The inference from the use of the word 19 "agreement" is that CASE agreed to that. Are you 20 telling me that CASE agreed not to allow use of 21 prepaid minutes in legal? 22 THE WITNESS: No. My understanding of the 23 statement here is it's the agreement of the Legal 24 Department with the Executive Board of State 25 Compensation Insurance. R O U G H D R A F T O N L Y 41 1 THE ARBITRATOR: Thank you for clearing it 2 up. 3 Let's move on. 4 BY MS. MINER: 5 Q In that same chain of e-mails, there are 6 some alternatives that are described, and one is about 7 attorneys using their personal cell phones. 8 A Uh-huh. 9 Q To the best of your knowledge, how many 10 SCIF attorneys use their personal cell phones? 11 A I -- I would -- I can really only speak 12 to this office. Of the 21 attorneys within this 13 office, I know that 20 of them have personal cell 14 phones that they use. There's only one attorney who 15 has a State Fund-issued cellular telephone. 16 Q And do you know the reason why that 17 person has a State-issued cell phone? 18 A My understanding is that it's a medical 19 accommodation. 20 Q Of the attorneys in your office who use 21 their cell phones -- personal cell phones, do you have 22 an idea how many seek reimbursement under SCIF's 23 policies? 24 MR. MC INERNEY: Lack of foundation; 25 objection. R O U G H D R A F T O N L Y 42 1 THE ARBITRATOR: Excuse me. Wasn't the 2 question "if you know"? 3 BY MS. MINER: 4 Q If you know. 5 THE ARBITRATOR: Okay. 6 THE WITNESS: I -- I don't have any personal 7 knowledge. I would guesstimate that -- 8 THE ARBITRATOR: We don't need your guess. 9 THE WITNESS: Yeah, you're right. It's my 10 belief that probably a quarter to a half, at most, 11 seek actual reimbursement, one way or the other. 12 MR. MC INERNEY: Objection; irrelevant. 13 THE ARBITRATOR: I'll leave it in the record. 14 Let's move on. 15 BY MS. MINER: 16 Q If you know, how many attorneys encounter 17 problems with the reimbursement procedure? 18 A Can you be more descriptive as to what 19 you mean by "problems"? 20 Q Do the attorneys receive a full 21 reimbursement? 22 A I don't have any personal knowledge. If 23 they are receiving reimbursement, I'm assuming that it 24 would be under the procedure as outlined in Union 25 Exhibit 1. R O U G H D R A F T O N L Y 43 1 MR. MC INERNEY: Motion to strike the last 2 half. 3 THE ARBITRATOR: Well, I won't strike it, but 4 as I understand the state of the record, one, you, 5 yourself, don't put in for reimbursement; correct? 6 THE WITNESS: Correct. 7 THE ARBITRATOR: Number two, by word of 8 mouth, even you're not clear on whether -- 9 THE WITNESS: Correct. 10 THE ARBITRATOR: -- those who put in for 11 reimbursement get every jot and tittle of their 12 request -- 13 THE WITNESS: Correct. 14 THE ARBITRATOR: -- or their filing? 15 THE WITNESS: Correct. 16 THE ARBITRATOR: So let's move on. 17 BY MS. MINER: 18 Q In your capacity as a CASE 19 representative, have you received any complaints about 20 the SCIF reimbursement policy for cell phones? 21 A Yes. 22 Q And what is the nature of the complaint? 23 A Primarily, the fact -- 24 MR. MC INERNEY: Objection; vague and 25 ambiguous as to which complaint we're talking about. R O U G H D R A F T O N L Y 44 1 THE ARBITRATOR: Overruled. 2 I think you understand the nature of the 3 question. 4 THE WITNESS: Yes, I do. 5 THE ARBITRATOR: Okay. 6 THE WITNESS: Primarily, the -- the members 7 of this office are not happy with the convoluted way 8 in which the procedure is written, nor are they happy 9 about the fact that the way it's written, State Fund 10 actually takes credit for free minutes for a cell 11 phone that is being used for personal as well as -- as 12 well as business time. 13 THE ARBITRATOR: I apologize, and I just want 14 to make sure I'm getting this. 15 Is the complaint, then, not that the 16 State has failed to reimburse them, but within the 17 reimbursement, the State is also taking credit for 18 these free minutes? Is that what you're saying? 19 THE WITNESS: I don't have any personal 20 knowledge of anyone saying -- 21 THE ARBITRATOR: Stop. 22 Please continue. 23 THE WITNESS: I'm sorry. 24 BY MS. MINER: 25 Q Okay. You are familiar with the contents R O U G H D R A F T O N L Y 45 1 of the Cellular Reimbursement Rates Procedure marked 2 as Exhibit -- Union Exhibit 1; correct? 3 A Yes, I am. 4 Q In your reading of this procedure, do you 5 feel that SCIF attorneys are reimbursed for their free 6 minutes? 7 MR. MC INERNEY: Objection; the document 8 speaks for itself. 9 THE ARBITRATOR: Well, overruled. 10 We'll hear the answer. 11 THE WITNESS: My understanding is that they 12 are not. 13 BY MS. MINER: 14 Q Going back to the e-mail sequence of 15 3-29-04 marked as Exhibit 5, did you use the 16 calling-card option that Mr. Jordan had referred to? 17 I believe it's on the last page. 18 A That's in his e-mail timed 11:27 a.m., 19 yes. 20 Q Okay. And to the best of your knowledge, 21 if you know, do your colleagues utilize the phone 22 cards? 23 A Those that have cards, yes. I know that 24 there are some attorneys in the office who do not 25 actually have the cards. R O U G H D R A F T O N L Y 46 1 Q And why do they not have the cards, if 2 you know? 3 A I don't know why they were never issued 4 to them. 5 Q Are people using prepaid cards at this 6 time, to your knowledge? 7 A Let me clarify. The card that I believe 8 Mr. Jordan is referring to here is an MCI credit card 9 where you dial a 1-800 number and using a code, you 10 can call. So it's not on a -- a prepaid type of plan; 11 instead, it's more like a -- more like a telephone 12 credit card. 13 Q And could you use your personal cell 14 phone for that with this card? 15 A Yes, you can. 16 Q And can you use a pay phone -- a public 17 pay phone with this card also? 18 A Yes, you can. 19 Q To the best of your knowledge, do you 20 know if your colleagues use pay phones at the other 21 buildings? 22 A I -- to my knowledge, everyone is using 23 their own cell phone. 24 Q And again, I'm going to refer you to the 25 e-mail chain marked as Union Exhibit 5. I believe R O U G H D R A F T O N L Y 47 1 it's on the last page where Mr. Jordan describes where 2 pay phones are available. 3 Do you remember that? 4 A Yes, I do. 5 Q Okay. If you have the knowledge, could 6 you tell me how far the Fresno City Hall is from the 7 Workers' Comp -- Compensation Appeals Board here in 8 Fresno. 9 A My estimate is it's between 150 to 200 10 yards. 11 Q Is it difficult to get to? 12 A Well, for -- it's not difficult to get 13 to. Number one, it's time-consuming; Number two, you 14 have to cross a fairly busy street. P Street is a -- 15 is a fairly busy one-way street in downtown Fresno, 16 and it requires an individual who's in a courtroom on 17 the fourth floor to go to the elevator bays or the 18 stairwell, go down four flights, walk out of the State 19 Building, going north to City Hall across the street, 20 as one example. 21 Q Are there any safety issues to get to the 22 Fresno City Hall? 23 A In regard to crossing the street, sure. 24 Q Is there a crosswalk? 25 A There are two crosswalks for City Hall, R O U G H D R A F T O N L Y 48 1 yes. 2 Q And are there the signals there that tell 3 you when to walk, or is it just a crosswalk? 4 A Just a crosswalk. 5 Q No signals? 6 A No signals. 7 Q The e-mail also mentions the public 8 library. 9 How far is the public library from the 10 WCAB? 11 A It's about equidistant for -- for the 12 library and City Hall, so probably between 150 to 200 13 yards. 14 Q Is it difficult to get to? 15 A No. It's a matter of -- it's a matter of 16 walking. So again, it's time-consuming, and again, 17 you have to cross the street. This time you have to 18 cross O Street, which is another fairly busy street, 19 and this one runs -- this street runs both ways. 20 Q Any safety issues regarding getting to 21 the public library? 22 A There is a crosswalk at the west end of 23 that intersection; however, the State Building is on 24 the east end of the intersection. So the natural 25 tendency would be to cross at that point because it R O U G H D R A F T O N L Y 49 1 puts you closest to the library as opposed to going 2 and using the crosswalk which also does not have any 3 type of crosswalk signal. 4 Q Okay. How far is the Federal Building? 5 A The Federal Building is probably the 6 closest. It's probably -- it's between 100 and 150 7 yards. It's within what I like to call the quadrangle 8 of buildings. There's the State Building, kind of an 9 open quad area, and then the Federal Building to the 10 west of that. 11 One of the problems with the Federal 12 Building is, particularly since 9-11, it's a lot more 13 difficult to get into a federal building. You have to 14 go through pretty tight security. 15 Q Have you had to go into any of these 16 buildings to make a phone call for State Fund 17 business? 18 A I have used City Hall -- 19 THE ARBITRATOR: Is that a yes? 20 THE WITNESS: Yes. Sorry. 21 BY MS. MINER: 22 Q And which buildings have you gone to? 23 A City Hall. 24 Q What do you do with your files when you 25 go to the building -- or when you went to City Hall? R O U G H D R A F T O N L Y 50 1 A Can I back up and kind of explain a 2 little bit about the atmosphere at the WCAB? 3 Q That's fine. 4 THE ARBITRATOR: Let's go off the record one 5 second. 6 (Discussion held off record.) 7 THE ARBITRATOR: Please continue. 8 THE WITNESS: It's a very collegial 9 atmosphere at the WCAB. Most everyone knows everyone. 10 Most business at the Fresno Workers' Compensation 11 Appeals Board is transacted on the fourth floor where 12 all the courtrooms are. 13 There's also a large cafeteria area with 14 tables and chairs. Applicants, their attorneys, 15 defense counsel, their witnesses kind of all tend to 16 congregate there; so it's usually not a problem, and 17 it's fairly universally known that, you know, you can 18 leave your file there and walk away from it. 19 I know that there have been some problems 20 with people having -- having purses or other personal 21 belongings taken. I know that someone had a set of 22 DVDs that were taken recently from the Board here in 23 town; but as a general rule, there's no problem with 24 leaving your files there. 25 The problem in having to go out of the R O U G H D R A F T O N L Y 51 1 building, though, on business involving the file is 2 you're better off actually having the file with you so 3 that as you're discussing it with the adjuster and 4 they make reference to a letter or a document within 5 the file, that you actually have your own file that 6 you can actually flip to and look at. 7 BY MS. MINER: 8 Q Have you ever witnessed any of your 9 coworkers go into any of these buildings to make a 10 phone call? 11 A Not to my recollection, no. 12 Q Have you heard of anyone leaving the 13 State Building to go to one of these other buildings 14 and had any issues with leaving their files, if you 15 know? 16 A No, not that I know of. 17 Q How big would you say a file can be or 18 get? 19 A A file that we handle here in the office 20 can range anywhere from a very small, single-sided or 21 dual-sided file folder with several pages to -- 22 Q Approximately how thick would you say 23 that is? 24 A A quarter inch -- 25 Q Okay. R O U G H D R A F T O N L Y 52 1 A -- or less; can be as much as two or 2 three -- or sometimes I've seen them in even four -- 3 Bankers Boxes full of medical records and other 4 documents that are needed in the file. 5 Q Let's go back to Exhibit 5. Mr. Jordan 6 made a comment about attorneys not being able to reach 7 claims. 8 Do you know what is meant by that? 9 A You're referring to his comment in his 10 11:27 [sic] -- 11 Q Yes. 12 A -- the last paragraph? 13 I don't, personally. 14 Q Okay. He also -- 15 MR. MC INERNEY: Are you talking about the 16 one on page 3 -- the last paragraph on page 3? 17 THE WITNESS: Yes. 18 BY MS. MINER: 19 Q Okay. Do you know what he meant by 20 subjecting SCIF to contempt or sanction motions? 21 MR. MC INERNEY: Well, if you know, because 22 otherwise, I'm going to object that there's no 23 foundation. 24 BY MS. MINER: 25 Q If you know. R O U G H D R A F T O N L Y 53 1 A He -- I believe he's referring to the 2 incident that occurred in October. 3 Q Is that what you had testified to 4 earlier? 5 A Yes. 6 Q If you know, have any attorneys here in 7 the Fresno office ever been sanctioned for being 8 unable to reach someone? 9 A Not sanctioned, no. 10 Q Have they faced any other repercussions 11 for not being able to get ahold of an adjuster? 12 A There is a threat that the judge can 13 issue, that the judge can say, "I'm going to issue 14 sanctions if you can't -- if you have no way of 15 getting ahold of your client. You need to find a 16 way." 17 Q Who do SCIF attorneys have to call from 18 the Fresno WCAB? 19 A Claims Departments up and down the State; 20 other attorneys; on instances where it's a State case, 21 they may have to call the return-to-work coordinators 22 at the agency involved; lien claimants are probably 23 the most multitudinous contacts that -- that we have 24 to make, it seems. 25 Q How long can these calls take? R O U G H D R A F T O N L Y 54 1 A They can be as short as a 30-second phone 2 call to 10 to 15 minutes. 3 Q What is the longest phone call you have 4 had to make from the Board on your cell phone for 5 State business? 6 A In a -- in a case that I was handling 7 where the attorney for one of the decedents didn't 8 show up and was on the phone standby in Orange County, 9 I used my personal cell phone set on speaker for the 10 judge in a hearing that took -- it was about 25 to 30 11 minutes. 12 Q If you know, how long do your colleagues 13 have to be on their cell phones when they're at the 14 Board? How long do their calls take? 15 A I would have to think that their calls 16 average the same as mine. 17 Q What is the longest amount of time that 18 you've heard of someone having to be on the phone 19 with -- with either an adjuster or a lien claimant 20 while they were at the WCAB? 21 A 10 or 15 minutes, 20 minutes. 22 Q In your opinion, why do these calls take 23 so long? 24 A There's a variety of reasons. If we're 25 not able to reach the -- the adjuster who knows the R O U G H D R A F T O N L Y 55 1 file, then we have to get hooked up with a substitute 2 adjuster which can take some time, in and of itself. 3 That substitute adjuster needs to be brought up to 4 speed on the various legal issues that are there at 5 play in the case. 6 If it's a lien claimant, I know that 7 there's a lot of time spent making 411 calls trying to 8 actually track down the phone number of the lien 9 claimant because they don't list those on 10 their -- their Notice of Liens that they file with the 11 Board. 12 So there's a variety of reasons of why it 13 would take -- take so long, but it all -- it all 14 centers around conducting the business. 15 Q I refer you back to Union Exhibit 5 -- 16 A Uh-huh. 17 Q -- the top part of the e-mail chain, 18 which is an e-mail from Bill Landsiedel -- 19 A Correct. 20 Q -- at 3:08 p.m., and I have some 21 questions about that e-mail. 22 You do recall receiving that e-mail; 23 correct? 24 A Yes, I do. 25 Q Okay. And the first paragraph, did you R O U G H D R A F T O N L Y 56 1 get your own cell phone, according to Mr. Landsiedel's 2 suggestion? 3 A No. I had my personal cell phone prior 4 to this. 5 Q To the best of your knowledge, are you 6 aware of any of your coworkers who purchased a cell 7 phone or a cell phone plan specifically to do State 8 Fund business? 9 A Yes, I know of one attorney in this 10 office who did not have a cell phone prior to this 11 instance; and as a result, she went out and got 12 herself her own cellular telephone. 13 Q What is her name? 14 A Her name is Ann Roberts. 15 Q I believe the last -- I think it's the 16 last paragraph -- the second paragraph -- excuse me -- 17 refers to paying about 10 or $20 a month. 18 If you know, is that a burden to any of 19 your coworkers or to you? 20 A I don't consider it to be a burden to me 21 personally; however, and quite frankly, I took offense 22 to -- to the flippant nature of the comment. 23 THE ARBITRATOR: Respectfully, the question 24 was: Do you know if it's a burden to any of your 25 colleagues with 15 children or supporting their aged R O U G H D R A F T O N L Y 57 1 grandparents? 2 I'm not trying to be flippant, but that's 3 the nature of her question. 4 THE WITNESS: Right. I don't have any 5 personal knowledge, no. 6 BY MS. MINER: 7 Q Would you consider purchasing a cell 8 phone an investment in your career? 9 A For State Fund? 10 Q For State Fund. 11 A No. 12 Q Did the attorneys in your office come to 13 rely on the cell phones? 14 A The project cell phones? 15 Q Yes. 16 A Yes, I feel as if they did. 17 Q Did you do anything, in your capacity as 18 a CASE representative, about that issue? 19 A When the project was terminated? 20 Q Yes. 21 A Yes. I caused this grievance to be 22 filed. 23 Q And I would like you to look at Joint 24 Exhibit 2. 25 A (Witness complies.) R O U G H D R A F T O N L Y 58 1 Q And this is the grievance package, and 2 I'm referring you to the -- 3 THE ARBITRATOR: Could I interrupt one 4 second. And I apologize that I keep doing that when I 5 said I wouldn't, but can we go back to, on Union 5, 6 the last paragraph of the Landsiedel e-mail. 7 In the penultimate sentence, it says, 8 "Executive was kind to give us 100 new attorney 9 positions this year. In exchange for that, we gave 10 up ..." 11 Can you just tell me who the "we" is? 12 MS. MINER: I would like to -- I don't know 13 if Mr. Sims can testify to that. It might be 14 something we would have to save for Mr. Landsiedel. 15 THE ARBITRATOR: I'm just trying to 16 understand. Is "we" CASE, or is "we" SCIF? 17 MS. MINER: "We" is SCIF. 18 THE ARBITRATOR: I'm going to try my best to 19 be quiet. 20 Keep going. 21 BY MS. MINER: 22 Q I'm sorry. We're back at Joint Exhibit 23 2. And this is -- we're on -- it's a State of 24 California form entitled "Employee Contract 25 Grievance." It is two pages; and then there's a R O U G H D R A F T O N L Y 59 1 grievance statement which is also two pages; and 2 there's various other documents attached behind that, 3 one dated October 23, 2003, which was sent from CASE 4 to Labor Relations at State Fund that was attached to 5 the grievance in a series of e-mails. 6 Is this the grievance that was filed for 7 your office by CASE on your -- on the attorneys' 8 behalf? 9 A Yes. 10 Q And have you looked over the Statement of 11 Facts? 12 A Yes, I have. 13 Q Okay. And everything there seems true 14 and correct, to the best of your recollection? 15 A I believe it's a fairly good 16 representation of the facts. 17 Q Okay. In your professional opinion, how 18 do you feel about cell phones being provided in order 19 to carry out the function of your job? 20 A It's -- it's a necessary tool of the 21 trade. We're under legal mandate to be able to 22 contract -- contact our client at the drop of a hat. 23 And to me, it's -- it goes hand in hand with having a 24 lap-top or a car; in order to do our job, we need cell 25 phones. R O U G H D R A F T O N L Y 60 1 Q How do private defense attorneys at the 2 WCAB get ahold of their clients? 3 MR. MC INERNEY: Objection; irrelevant. 4 THE ARBITRATOR: Overruled. 5 THE WITNESS: Everyone I see uses a cell 6 phone. 7 BY MS. MINER: 8 Q And do you have any knowledge if these 9 are provided by their firms? 10 A When I was -- 11 MR. MC INERNEY: Objection; irrelevant. 12 THE ARBITRATOR: I'll give you a standing 13 objection in this area. 14 Please continue. 15 THE WITNESS: When I was employed in the 16 private capacity and I made appearances at the WCAB, I 17 was not provided with a cell phone. I used my -- my 18 own but billed back against the -- billed back to the 19 carrier for -- for my time spent on my cell phone. 20 BY MS. MINER: 21 Q When you were hired by State Fund, were 22 you informed that you were required to -- that you 23 were required to have a personal cell phone for State 24 business? 25 A No. R O U G H D R A F T O N L Y 61 1 Q In your professional opinion, is it 2 industry practice for defense attorneys at the WCAB to 3 have cell phones? 4 A Defense and applicants' attorneys, yes. 5 Q What department in the State of 6 California does SCIF belong to? 7 A SCIF is a subdivision of the Department 8 of Industrial Relations. 9 Q And what are you basing that on? 10 A Labor Code Section 56. 11 MS. MINER: And I'm handing the witness a 12 copy of California Code -- Labor Code Section -- it's 13 actually 50 through 64 which talks about the 14 Department of Industrial Relations. 15 THE ARBITRATOR: Union Exhibit 6 for 16 identification. 17 Any objection? 18 MR. MC INERNEY: No objection. 19 THE ARBITRATOR: Thank you. But we'll limit 20 the document to Labor Code 56 unless there's anything 21 else that comes up. 22 (The aforementioned document was 23 marked as Union Exhibit 6 for 24 identification and received into 25 evidence by the Arbitrator.) R O U G H D R A F T O N L Y 62 1 THE WITNESS: Page 3. 2 THE ARBITRATOR: Thank you. 3 BY MS. MINER: 4 Q And I refer you to Labor Code Section 56. 5 Could you please read that. 6 THE ARBITRATOR: To himself. 7 BY MS. MINER: 8 Q If you could please read it out loud for 9 the record. 10 THE ARBITRATOR: We don't need him to read it 11 out loud. I have it here. I'll certainly read it. 12 But if you want to ask him questions about it, you can 13 ask him to read it to himself so he refreshes his 14 recollection. 15 BY MS. MINER: 16 Q Okay. Does it state there that SCIF is a 17 part of the Department of Industrial Relations? 18 MR. MC INERNEY: Objection; it speaks for 19 itself. 20 THE ARBITRATOR: I agree. 21 MS. MINER: I have no further questions. 22 THE ARBITRATOR: Let's go off the record. 23 (Discussion held off record.) 24 THE ARBITRATOR: Let's go back on the record. 25 I'll ask if there's any cross? R O U G H D R A F T O N L Y 63 1 MR. MC INERNEY: Yes. 2 3 CROSS EXAMINATION 4 5 BY MR. MC INERNEY: 6 Q Mr. Sims, going to Union 4, which is the 7 memo that you wrote up, on page 2 there's a section 8 under "Direct Reimbursement" indicating that the State 9 will reimburse for business charges relating to 10 telephone, telegraph of $5 or less without a receipt. 11 Now, you indicated that the typical 12 telephone call that you were making for SCIF purposes 13 at the Workers' Compensation Board was around 10 14 minutes? 15 A For rough purposes, that sounds about 16 right. 17 Q Okay. And as far as you're aware, is the 18 $5-dollar charge limitation for a period of time in 19 which $5 is incurred or for the individual instance 20 where a charge is incurred? 21 A My understanding is it's an individual 22 instance. 23 Q So presuming, as we have in your memo, 24 that the rate that someone was paying on their 25 personal cell phone was .40 per minute, a 10-minute R O U G H D R A F T O N L Y 64 1 phone call -- they promised me there would be no math 2 in this job -- but I believe that would add up to $4; 3 correct? 4 A That sounds correct. 5 Q And that you can request reimbursement 6 for that projected $4-dollar expense without any 7 receipts or bill verifications at all; correct? 8 A Correct. 9 Q Now, in the reimbursement policy that we 10 have marked as Union 1, it goes through the manner in 11 which they would like to establish the reimbursement 12 rate for phone calls beyond the included minutes; 13 correct? 14 A Correct. 15 Q Now, with these two reimbursement 16 policies in mind, the one that allows you to charge up 17 to $5 for a phone call without any receipts or 18 reimbursements, and the one that determines how you're 19 going to be repaid with respect to actual charges 20 beyond your hundred minutes, can you give me an 21 instance where an attorney would be using his or her 22 cell phone at the Workers' Compensation Board for a 23 series of ten-minute phone calls where they would not 24 be compensated for their actual out-of-pocket 25 expense through accommodation of either the R O U G H D R A F T O N L Y 65 1 $5-dollar-per-phone-call charge that requires no 2 substantiation and/or the reimbursement rate for the 3 minutes beyond your free calling? 4 A Would you rephrase that? 5 Q I'm trying to find the gap in coverage on 6 reimbursement that you're concerned about by being 7 able to charge up to $5 per phone call without 8 verification and receiving reimbursement for the 9 minute rates. Where do they fall through the gap? 10 A The problem that I see in the -- the 11 State's procedure is that it does not take into 12 account, in any way, shape or form, that cellular 13 telephone companies charge at a static rate; and once 14 you exceed your allotted minutes per month, you go to 15 a higher rate, sometimes .35 a minute, sometimes more. 16 And in essence, by taking advantage of 17 the free minutes that come with your plan, State Fund 18 takes advantage of those and takes the credit. That's 19 actually taking money out of the individual's pocket. 20 Q Now, is there something in Union 1 21 indicating that phone calls made on your private 22 phone -- let's take Union 1, page 2. We'll just use 23 the AT&T one. 24 A Okay. 25 Q You pay 19.99 a month, and you get 20 R O U G H D R A F T O N L Y 66 1 included minutes. 2 A Uh-huh. 3 Q And let's presume you make -- of that 20 4 minutes, you make two calls of 10 minutes each, which, 5 if you billed out at $5 per call, under the 6 unreimbursed portion of the reimbursement policy, 7 would come out to $10; correct? 8 A Okay. 9 Q Okay. If you made four five-minute phone 10 calls, you could bill that out at up to $20; correct? 11 A All right. 12 Q Now, how many times, where you have 13 included minutes, have you experienced situations 14 where there has been a gap between what you could be 15 reimbursed at the minimum rate -- we'll go with the 16 certification -- up to $5 and before the State began 17 reimbursing you for the minutes above 20 minutes? 18 A Are you asking me how many times my plan 19 has exceeded the free minutes allotted per month in 20 the cost plan? 21 Q If your plan exceeds the free minutes, 22 the State reimburses those free minutes at the rates 23 that you're paying for; right? 24 A No. 25 Q Okay. If you have 20 free minutes and R O U G H D R A F T O N L Y 67 1 you go to 20 -- if you go to 30 minutes, you're paying 2 extra for 10 minutes; correct? 3 A Correct. 4 Q And the extra that you're paying for the 5 10 minutes, the State pays back; correct? 6 A But not at the rate charged by the 7 cellular telephone company. 8 Q And that's because you choose to seek 9 reimbursement by using the Cellular Reimbursement 10 Procedure; correct? 11 A Correct. 12 Q You also have the option of seeking 13 reimbursement under the Direct Reimbursement Procedure 14 that you outlined in your memo of September 4th; 15 correct? 16 A Which was rejected by management. 17 THE ARBITRATOR: Excuse me. Is that a yes? 18 THE WITNESS: That's a yes. 19 BY MR. MC INERNEY: 20 Q So the portion that indicates "Telephone, 21 telegraph, tax, or other business charges related to 22 State business of $5 or less," that was rejected by 23 management? 24 A I was informed that this was the plan 25 from which we would be reimbursed. R O U G H D R A F T O N L Y 68 1 THE ARBITRATOR: Just for the record, "this" 2 being Union 1? 3 THE WITNESS: Union 1. I apologize. 4 BY MR. MC INERNEY: 5 Q And was that somewhere in writing 6 where they said that Union 1 would supplant 7 Subsection (G)(3) with respect to telephone charges? 8 A I was informed of that. I do not have 9 any recollection of anything in writing to that 10 effect. 11 Q Who told you that? 12 A Mr. Jordan. 13 Q And you know, with respect to all these 14 e-mails going back and forth, there is some reference 15 that (G)(3) was suspended in lieu of the Cellular 16 Reimbursement Rates Procedure? 17 A I would refer you to Mr. Landsiedel's 18 March 29th, 2004, 3:08 p.m. e-mail in which he 19 specifically discusses the reimbursement plan and does 20 not discuss at all any ability to submit under 21 12.1(G)(3). 22 Q Now, that note of March 29th at 3:08, a 23 portion or portions of that was subsequently retracted 24 by Mr. Landsiedel; right? 25 A There was only one portion that was R O U G H D R A F T O N L Y 69 1 retracted. 2 Q The latter portion about the cell phones 3 in exchange for positions? 4 A Correct. 5 Q And aside from the absence of a specific 6 reference to 12.1(G)(3) in this Landsiedel e-mail, are 7 you aware of anything else that has been written that 8 the Cellular Reimbursement Rates Procedure supplanted 9 Section 12.1(G)(3) in the contract? 10 A I am not familiar with anything else in 11 writing, no. 12 Q Are you aware of anyone submitting 13 reimbursement for their cellular phone bills, pursuant 14 to 12.1(G)(3), where those reimbursements were turned 15 down? 16 A I am not familiar with that, no. 17 Q So aside from what you believe was an 18 absence of a reference in Mr. Landsiedel's March 29th, 19 2004 e-mail to Section 12.1(G)(3), you're not aware of 20 any reason why if there was a gap in reimbursement, it 21 couldn't otherwise be supplanted by submitting for 22 reimbursement under 12.1(G)(3)? 23 A No. 24 Q You had indicated that there was 25 sometimes problems contacting a SCIF adjuster and that R O U G H D R A F T O N L Y 70 1 SCIF was using a portable phone in order to try and 2 track people down. 3 That wouldn't be -- that's the same 4 problem whether or not you have a cell phone; correct? 5 A Correct. 6 Q Now, you had referred to Mr. Jordan's 7 project -- I think you had referred to it as a pilot 8 project -- about bringing in these cell phones. 9 Were you aware that Mr. Jordan was 10 bringing in orphaned cell phones for reimbursement? 11 A Yes, I was. 12 Q And aside from this pilot project in the 13 Fresno office, were you aware of any other similar 14 pilot project in any of the other SCIF offices? 15 A It was my understanding, Fresno was the 16 only one. 17 Q At the time that the decision was made to 18 discontinue the pilot project in the Fresno office, 19 were you involved in any discussions with management 20 at SCIF concerning that decision? 21 A No, I was not. 22 Q Subsequent to filing the grievance, were 23 you involved in any conferences with SCIF management 24 personnel regarding the discontinuation of the pilot 25 project? R O U G H D R A F T O N L Y 71 1 A No, I was not. 2 Q We had marked, as Union 6, a document 3 which included a copy of Labor Code Section 56. 4 A Correct. 5 Q And are you familiar with the -- the 6 Unit 2 contract that we've marked as Joint Exhibit 1? 7 A You're referring to the contract that 8 expired July 2nd, 2003? 9 Q Yes, the one that we're using. 10 A Yes. 11 Q Do you recall whether or not the Division 12 of Workers' Compensation signed off as an individual 13 entity on the Unit 2 contract? 14 A I was not a member of that bargaining 15 team; so I can't speak to it as being there at the 16 time. It's my understanding -- well, let me look. 17 It's my understanding that an individual 18 for State Compensation Insurance Fund signed on the 19 signature page, which is marked on page 118 of that 20 contract. 21 Q And is it also your understanding that 22 none of the other divisions identified in Labor Code 23 Section 56 signed off as separate entities? 24 A Again, I was not a member of that 25 bargaining team; so I can't speak to that. R O U G H D R A F T O N L Y 72 1 Q Do you know why it is that an entity 2 signs off on a bargaining unit contract as opposed to 3 not signing off? 4 A I do not have any knowledge of that, no. 5 Q You indicated that there are pay phones 6 available within some walking distance of the Workers' 7 Compensation Appeals Board offices or courtrooms, at 8 the library, the Federal Building and City Hall? 9 A Yes. And I should also mention that 10 there is an additional pay phone located outside 11 Employment Development Department as part of the Hugh 12 Burns Building, probably a distance of about 30 or 40 13 feet from the building. It's an exposed public pay 14 phone. 15 Q Aside from the extra time it would take 16 to leave the immediate area on the fourth floor where 17 the WCAB courtrooms are located and go to the pay 18 phones, are there any other impediments that would 19 keep an attorney from using the pay phones? 20 A The fact that there's no privacy. You're 21 in a different building where we're discussing 22 constantly issues that are -- that can be extremely 23 sensitive; we have HIPAA requirements that we have 24 to -- to be aware of in discussing medical provisions, 25 and that kind of thing, that we need to discuss with R O U G H D R A F T O N L Y 73 1 our clients. 2 By going to another building and using a 3 pay phone, there's also an issue where we don't have 4 desks where we can sit down and work; so you're 5 constantly trying to balance things on your knee while 6 keeping the pay phone in the crook of your shoulder. 7 In addition to that, there are issues 8 where you're talking to the adjuster; you're on the 9 pay phone; they have to go to their supervisors who 10 sometimes has to go to their supervisor for authority. 11 So then you have to wait around and wait for a call 12 back, and then you've got the problem with the public 13 coming up and wanting to use that -- that pay phone, 14 and you have to, you know, stand your ground that you 15 have proprietary rights to that phone, so to speak. 16 Q Prior to September 2003 when MCI had pay 17 phones in the Hugh Burns Building, how were those pay 18 phones any different in terms of your issues of 19 privacy and desks and convenience than the ones in the 20 other locations? 21 A Primarily having to do with convenience 22 and the desk situation, as practitioners, we 23 understand that there's -- that there are times where 24 I'm going to be sitting at a desk discussing a case, 25 and somebody is going to be fairly near to me, and so R O U G H D R A F T O N L Y 74 1 there's -- there's kind of a professional courtesy 2 given for privacy; however, when we're dealing in an 3 area that we're surrounded by people from the public 4 sector, we can't expect that. 5 Downstairs on the first floor in the 6 communications suite, there were work areas where 7 could you actually sit down at a -- at a work surface 8 and actually open up your file and go through things; 9 and in addition to the fact you were in the same 10 building; so you're not away from the courtroom for a 11 greater length of time than is reasonable. 12 Q So the primary problem is one of time and 13 convenience of the attorneys, in that it takes longer 14 if you're going to access the other pay phones? 15 A That's -- that's a critical issue. 16 Q For an attorney to cross the street in a 17 crosswalk, do you see that as a realistic safety 18 issue? 19 A Certainly in terms -- in terms of 20 extending liability, I think that the company has a 21 strong policy issue that it should be concerned about 22 putting its people out into unnecessary risk. It's 23 certainly possible that somebody could get hit by a 24 car. There's other issues, though, in terms of having 25 to go out in the fog or out in the rain or in cold R O U G H D R A F T O N L Y 75 1 weather. 2 Q But you're not asking for anything like 3 crossing guards for attorneys? 4 A Absolutely not. It would be nice, but it 5 wouldn't make sense. 6 Q Are you aware of anything indicating that 7 the pilot project using these orphaned cell phones at 8 the Fresno office was adopted by SCIF as a policy of 9 SCIF statewide? 10 A No. As I said before, my understanding 11 was that it was a pilot only in Fresno. 12 Q And are you aware of anything within the 13 Unit 2 contract indicating that if management adopts a 14 discretionary pilot project in one particular 15 location, that the discretionary discontinuance of 16 that program requires a meet and confer with the 17 Union? 18 A I'd have to review the contract to be 19 certain. So I couldn't answer that unless I had an 20 opportunity to review it. 21 Q In your mind, and based upon your 22 experience working with the Union, what is the 23 distinction between a statewide policy or program and 24 a pilot project? 25 A Just using the common sense answer, it R O U G H D R A F T O N L Y 76 1 would -- a pilot project would be limited scope or 2 application as opposed to company-wide, 3 all-encompassing. 4 Q Is it also your understanding that as 5 well as the limited scope and application, that it 6 would be for a limited duration to enable an 7 evaluation to determine whether or not it should be 8 continued? 9 A At the outset of the project, I was not 10 informed or given any impression that this was of 11 limited duration. This was a workaround situation, a 12 means of getting around a problem that occurred at the 13 Board that was outside -- outside everyone's control 14 except DGS and MCI. 15 Q So your understanding was that this was 16 an immediate response to a particular problem that had 17 come up; but it was your understanding it was being 18 tried in the Fresno office? 19 A Yes. 20 Q And that at some point, it would be 21 evaluated by management to determine whether or not to 22 proceed? 23 A I was not informed of that, but that -- 24 that would be a reasonable expectation. 25 THE ARBITRATOR: Let's go off the record one R O U G H D R A F T O N L Y 77 1 minute. 2 (Discussion held off record.) 3 MR. MC INERNEY: I don't have anything 4 further. 5 THE ARBITRATOR: Any redirect? 6 MS. MINER: Just a few questions. 7 THE ARBITRATOR: Please. 8 9 REDIRECT EXAMINATION 10 11 BY MS. MINER: 12 Q What's the weather like in Fresno? 13 A Today is unseasonable. Typically, I 14 always refer to Fresno as having about two or three 15 days of fall and two or three days of spring, and in 16 between time, there's fog and rain, and the other 17 time, it's 110-plus. It's a little bit of an 18 exaggeration, but Fresno typically is -- it's a 19 hot-weather town. 20 Q Can you estimate how many days of 21 100-plus-degree weather you have in a calendar year? 22 MR. MC INERNEY: Objection; no foundation. 23 THE ARBITRATOR: Just what is your 24 meteorologist guess? 25 MR. MC INERNEY: Doesn't he have to have R O U G H D R A F T O N L Y 78 1 Doppler radar or something? 2 THE WITNESS: Probably between 40 and 60 3 days. 4 BY MS. MINER: 5 Q How cold does it get? 6 A Rarely gets below -- below 32 to 35. 7 Q How many months is it really cold? 8 A Typically, November to February or so. 9 Q When the pay phones were taken out of the 10 State Building, do you know if any notice was given to 11 CASE about that change? 12 A To CASE? 13 Q Yes. 14 A No, not until after the fact. 15 Q And when the cell phone program was 16 terminated here in Fresno, do you recall if any notice 17 was given to CASE? 18 A My understanding was the March 29th, 2004 19 memo from Mr. Landsiedel was first notice to everyone. 20 Q In your capacity as a CASE 21 representative, do you know if the issues that you 22 have here in the Fresno office regarding pay phones 23 and cell phones affects your coworkers throughout the 24 State in other SCIF offices? 25 A Yes. It's my understanding that the pay R O U G H D R A F T O N L Y 79 1 phones around the State were taken out of each and 2 every State building with notice by MCI to DGS, but to 3 no one else. 4 Q And how do you know that MCI gave notice 5 to DGS? 6 A I had a discussion with then-Presiding 7 Judge Stephen Webster of the Fresno Board, and what he 8 informed me was, a letter was sent by MCI probably 9 about six months before this occurred. It went to 10 someone in San Diego to the Department of General 11 Services, sat in a stack on their desk; and in this 12 letter, it said, "We're going to pull the pay phones 13 out because we're not making any money on them unless 14 you want to do something different." No action was 15 taken; so MCI came in and pulled the phones. 16 MS. MINER: I have no further questions. 17 THE ARBITRATOR: Further cross, if any? 18 19 RECROSS EXAMINATION 20 21 BY MR. MC INERNEY: 22 Q It's clear, MCI made the decision to pull 23 the phones; correct? 24 A Yes. 25 Q And as far as you're aware, SCIF knew R O U G H D R A F T O N L Y 80 1 nothing of it until after the fact? 2 A I believe SCIF was caught off guard just 3 as well as the WCAB. 4 MR. MC INERNEY: Nothing further. 5 THE ARBITRATOR: Anything further? 6 MS. MINER: No. 7 THE ARBITRATOR: Thank you very much for your 8 testimony. You're excused. 9 We'll break for our luncheon repast and 10 be back at 2:05 sharp. 11 Let's go off the record. 12 (At 1:05 p.m., the proceedings were 13 adjourned for noon recess.) 14 /// /// 15 16 17 18 19 20 21 22 23 24 25 R O U G H D R A F T O N L Y 81 1 FRESNO, CALIFORNIA; MONDAY, MAY 02, 2005 2 2:26 P.M. 3 -O0O- 4 5 WILLIAM JORDAN, 6 HAVING FIRST BEEN DULY SWORN, WAS 7 EXAMINED AND TESTIFIED AS FOLLOWS: 8 9 THE ARBITRATOR: Let's go back on the record 10 and show we've returned from our luncheon repast. The 11 next witness for the Union has been called and sworn. 12 And for the record, sir, would you please 13 give us your full name, spelling your last name. 14 THE WITNESS: My name is William Jordan, 15 J-o-r-d-a-n. I prefer to go by Bill. 16 And you've said "witness for the Union." 17 I would say "witness called by the Union." I don't 18 consider myself as either for or against either side 19 here. 20 THE ARBITRATOR: Respectfully, sir, you've 21 been called by the Union; so you're the Union's next 22 witness. 23 THE WITNESS: Very good. 24 THE ARBITRATOR: You may be an adverse. I 25 don't know, but right now, you're the Union's witness. R O U G H D R A F T O N L Y 82 1 Now, your position, if any, with SCIF? 2 THE WITNESS: I am a Staff Counsel III 3 Supervisor, and the working title is Attorney in 4 Charge, and that is for the Fresno State Fund legal 5 office, which is where we are right now. 6 THE ARBITRATOR: Thank you. 7 Your witness. 8 9 DIRECT EXAMINATION 10 11 BY MS. MINER: 12 Q Could you tell me who your chain of 13 command is. 14 A Do you want me to start with who I 15 supervise, or do you want me to go upward from there? 16 Q Why don't you start with going upward. 17 A Okay. Currently or before? 18 Q Currently. 19 A Okay. Currently, my direct supervisor is 20 Assistant Chief Counsel Jim Fischer, and he's 21 headquartered in Sacramento; and his boss is our chief 22 counsel, who is Bob Danieri; and he has a 23 vice-president that he reports to, and normally, I 24 know that name. I think it's Jim Neary, but it could 25 be one of the other vice-presidents. Periodically, R O U G H D R A F T O N L Y 83 1 they rotate who the vice-president is; and of course, 2 above the vice-president, there is the president of 3 the Fund, who right now is the acting president, and 4 that's Jim Tudor. 5 Q How long have you been in your current 6 classification? 7 A About 17 years, a little more, a little 8 less. I know I was appointed in September, but I 9 can't remember whether that was this coming September 10 or last September that it would have been 17 years 11 ago. I'd have to go back and look at my personnel 12 file probably. 13 Q How long have you worked for the State, 14 17 years? 15 A Oh, no. No. No. I've worked for the 16 State Compensation Insurance Fund for 27 years as of 17 March -- this past March. 18 And before that, I have some State 19 service, having worked as a graduate student assistant 20 for the State Department of Agriculture, having worked 21 as a paid legislative intern assistant for Senator 22 Alfred Alquist for a year and having worked for the 23 California State University System as a teaching 24 assistant and technical assistant for the Radio and 25 Television News Center at San Jose State University. R O U G H D R A F T O N L Y 84 1 Q Where did you work prior to coming to 2 work for the State? 3 A Oh, prior to coming to work for State 4 Fund? 5 Q For the State. Did you ever work in 6 private practice? 7 A In private practice, as an attorney at 8 law, no. As a certified legal intern or law student, 9 yes; and then, I worked for the firm of Kroloff, 10 Belcher, Smart, Perry & Christopherson in Stockton, 11 which is a personal injury defense firm. I worked for 12 them for about a year, my last year of law school. 13 But if you're asking about before I ever 14 had any State service at all, that would have been 15 when I was a television production assistant for KCOY 16 Channel 12, which at that time was the NBC affiliate, 17 but it's now the CBS affiliate in Santa Maria, 18 California. 19 Q What year did you graduate from law 20 school? 21 A From law school, 1977. 22 Q And what year did you become an attorney? 23 A December of '77. 24 Q How long have you been in the Workers' 25 Compensation field? R O U G H D R A F T O N L Y 85 1 A Since the 1st of March of 1978. 2 Q When was the last time that you made an 3 appearance before the Workers' Compensation Appeals 4 Board? 5 A Oh, gosh, an appearance before the WCAB, 6 I don't think that I've made an appearance before the 7 WCAB in the past year. 8 The one that most immediately comes to 9 mind before that is an appearance that was made before 10 the Fresno Workers' Compensation Appeals Board on a 11 case involving actually an issue of sanctions and 12 contempt for the fact that one of my attorneys was not 13 able to use a cell phone to contact the claims 14 adjuster in the case. 15 And I believe in the various documents 16 that you have, that you have the name of that case, 17 the judge's order ordering me to appear and the letter 18 that I presented to the judge in response to that 19 order to appear. And I presented that letter to the 20 judge, and I went down on that case. There's also a 21 copy of the hearing report involved in that, where I 22 had a discussion with the judge concerning that 23 matter. 24 And ultimately, he dropped the sanctions 25 issue because we did, indeed, have the ability to have R O U G H D R A F T O N L Y 86 1 the attorney involved call and discuss the matter of 2 the case with the adjuster. It's just that the 3 particular cell phone the fellow was using, which 4 happened to be my own personal cell phone, the battery 5 went kerflooey on it. 6 Q Is that the case of Barbara Romano v. 7 Twin Oaks Assisted Living? 8 A If you say so. It would be whatever 9 document involves the case. I don't remember the 10 specific -- 11 Q Let me show you the minutes from that 12 hearing, and if you can take a look at that. And then 13 there's an order there. 14 A It would be that I appeared pursuant to 15 this order where Judge Marcelli, M-a-r-c-e-l-l-i, says 16 that "... sanctions and costs pursuant to Labor Code 17 Section 5813 and Regulation Section 10561. It is 18 further ordered that Mr. William Jordan and Mr. John 19 Putnam be personally present at said hearing." And in 20 that order, it said that the hearing would be on 21 11-19-03 at 8:30 a.m. 22 Q Okay. 23 A And so when you said when did I last 24 appear, not from any recollection about it, but 25 looking at this document, it would have been 11-19-03, R O U G H D R A F T O N L Y 87 1 sometime at or after 8:30 in the morning. 2 Q Okay. And I'm showing you a letter here 3 dated November 10th of 2003 on State Fund letterhead. 4 A Yes. 5 Q Is this the letter that you sent to the 6 judge in this case? 7 MR. MC INERNEY: Are we going to mark this? 8 MS. MINER: And I'd like to get it marked as 9 Union -- I don't have copies. 10 THE WITNESS: Yes, that is, indeed, the 11 letter that I sent. 12 THE ARBITRATOR: For identification only at 13 this time, Union Exhibit 7, which is the November 10, 14 2003 letter being discussed from the witness to 15 Marcelli. 16 Showing it to the witness. 17 (The aforementioned document was 18 marked as Union Exhibit 7 by the 19 Arbitrator for identification only.) 20 THE WITNESS: Yeah, that's the letter. And I 21 hope I said 11-19-03 was the date of the hearing. 22 Right. Yes. 23 MS. MINER: And can we also mark for 24 identification the minutes and the order. If we can 25 make that a packet, that probably would be easier. R O U G H D R A F T O N L Y 88 1 THE ARBITRATOR: Okay. Union Exhibit 8 for 2 identification is the handwritten minutes and order in 3 the Romano case, with the attachment we've been 4 discussing, and some illegible material. 5 Showing it again to the witness. 6 Any objection to 7 or 8? 7 MR. MC INERNEY: No objection. 8 THE ARBITRATOR: Thank you. They're 9 received. 10 (The aforementioned document which was 11 previously marked Union Exhibit 7 12 was received into evidence by the 13 Arbitrator.) 14 (The aforementioned document was 15 marked as Union Exhibit 8 for 16 identification and received into 17 evidence by the Arbitrator.) 18 THE WITNESS: And again, this is the last 19 time -- oh, oh, oh, I stand corrected, in having 20 thought about it a little further. 21 The last time I appeared at the WCAB -- 22 and I do not know the date -- was another case after 23 this one that had to do with an interpreting service 24 called ABC Interpreting who has a bunch of liens 25 against State Fund for a dispute concerning how much R O U G H D R A F T O N L Y 89 1 we paid them for interpreting services. And that was 2 not before Judge Marcelli. That was before 3 Judge Perlingieri. And that's an ongoing piece of 4 litigation that I periodically appear on. 5 I've recalled that since, but it doesn't 6 have to do with this -- the cell phones, which I 7 gather is the subject of this arbitration. 8 MS. MINER: I'd like to move these two into 9 evidence. 10 THE ARBITRATOR: They've already been 11 received. 12 MS. MINER: And if I could make copies of 13 those when we take a break. 14 THE ARBITRATOR: Let the record show that 15 I've returned Union 7 and 8 to the advocate. 16 Please continue. 17 MR. MC INERNEY: I already have copies so you 18 just have to make them for yourself. 19 THE ARBITRATOR: Please continue. 20 BY MS. MINER: 21 Q When was the last time you held a 22 caseload? 23 A You'd have to define what you mean by 24 "held a caseload." 25 Q When was the last time that you had cases R O U G H D R A F T O N L Y 90 1 that you routinely worked on outside of your 2 supervisor capacity, as an attorney making appearances 3 before the Board, working a case towards settlement or 4 towards resolution, instead of just supervising? 5 A Other than the ABC Interpreting case, 6 holding a caseload of the equivalent of half a load of 7 what my full-time, full-load attorneys handle, 8 probably 12-plus years ago at a time when I was a 9 certified specialist in Workers' Compensation. 10 Since that time, I dropped the certified 11 specialist classification because, primarily, my job 12 is more administrative and supervisory; but I do 13 occasionally appear at the Board on a case and am 14 involved in the negotiations and am involved in the 15 settlement and occasionally involved in the legal 16 drafting of -- of documents and settlement documents. 17 But the last time I have been the trial attorney on 18 the case is probably about 12 years ago, maybe a 19 little more. 20 Q And what did you mean by "certified 21 specialist"? 22 A Certified by the State Bar of California. 23 Q In the area of Workers' Compensation? 24 A In the area of Workers' Compensation. 25 Q Is that required of you in your R O U G H D R A F T O N L Y 91 1 capacity -- 2 A No. No, not at all. 3 Q Was it required of you in your capacity 4 as a trial attorney with State Fund -- 5 A No. 6 Q -- before you had -- 7 A It's something I did on my own. 8 THE ARBITRATOR: Let's go off the record just 9 one second. 10 (Discussion held off record.) 11 BY MS. MINER: 12 Q Would you say that you're familiar with 13 the procedures of the WCAB? 14 A Somewhat. 15 Q And what do you mean by "somewhat"? 16 A Well, there have been a lot of changes 17 over the last 10, 12 years. I keep up with them in 18 terms of reading them. 19 Q Are there any requirements that attorneys 20 appearing before the WCAB need to be able to reach 21 their clients? 22 A Yes. 23 Q And I'm going to show you Union Exhibit 2 24 which is Title 8 of the California Code of Regulation, 25 Section 10563. R O U G H D R A F T O N L Y 92 1 Are you familiar with that code section? 2 A Not by number. 3 Q But you understand what it means; 4 correct? 5 A I understand the English language. I 6 understand the printed words in front of me, and I 7 understand what it says. 8 Q Okay. And in your judgment as a 9 supervisor of State Fund rank-and-file attorneys, is 10 it your understanding that they have to go to the 11 Board with -- and be able to have -- have someone 12 available by phone for settlement authority? 13 A There should be someone either present at 14 the WCAB or available by telephone with settlement 15 authority, if they're representing State Fund as an 16 insurance carrier. 17 If they're representing State Fund as the 18 adjusting agent for the State of California, which is 19 some of our other cases, that being a government 20 entity, there should be a person available with 21 settlement authority to the fullest extent allowed by 22 law, according to what this document appears to say. 23 Q Do you know if any of the attorneys who 24 you supervise have had a hard time getting ahold of 25 their adjusters? R O U G H D R A F T O N L Y 93 1 A Do I know or do I believe? 2 THE ARBITRATOR: "Do you know" is the 3 question. 4 BY MS. MINER: 5 Q Do you know? 6 A Some have claimed that. 7 Q Okay. How many attorneys do you 8 supervise? 9 A Currently, 21. 10 Q In the last year, could you estimate how 11 many attorneys have told you they've been having 12 trouble reaching the adjusters on their cases? 13 A Oh, in the last year, none. 14 Q Okay. Prior to that, say, the last three 15 years, have there been issues with trying to contact 16 the adjusters? 17 A Every now and then, there are issues if 18 the adjuster is not present at their desk. 19 Q And has SCIF management undertaken 20 anything to help the attorneys be able to contact the 21 adjuster while they're at the Board? 22 A You would have to define what you mean by 23 "SCIF management." 24 Q Anyone who's considered a supervisor with 25 SCIF. R O U G H D R A F T O N L Y 94 1 A A supervisor or above? 2 Q Yes. 3 A Okay. 4 Q Whether in legal or a supervisor 5 elsewhere in the organization, the adjuster's 6 supervisor. 7 A Oh, certainly. For example, here, 8 sometimes attorneys will call in -- from my 9 understanding, from what I've been told, sometimes 10 attorneys will call in, and they'll get a particular 11 adjuster's voice mail, and they can hit zero, and they 12 will get the operator. Previous to when MCI took the 13 pay phones out of the State Building, the operator 14 would send them back to the claims adjuster's voice 15 mail or to a claims adjuster who sat near the claims 16 adjuster they were trying to get to, and that would be 17 it. 18 Since the pay phones are no longer in the 19 State Building -- and I realize this isn't -- doesn't 20 sound like a direct connection, but in a way, it is -- 21 I made our claims manager here in Fresno aware of the 22 fact that our attorneys were sometimes calling from -- 23 through facilities other than pay phones and may be 24 charged by the minute; and therefore, if we could 25 figure out a better way for them to get ahold of the R O U G H D R A F T O N L Y 95 1 claims adjuster in a shorter period of time, that 2 would -- that would be a good thing. 3 And so our claims manager here in Fresno 4 arranged for one of the office-assistant-type people 5 to be available so the operator can connect the person 6 with that -- with that office assisting person, youth 7 aide or whatever, and they can go look for the claims 8 adjuster. 9 That would be an example of things that 10 have been done by someone in management, yes. 11 Q If you know, do you know -- to the best 12 of your knowledge, are SCIF adjusters trained on 13 Title 8, Section 10563? 14 A I have no idea. 15 Q Currently, what's the normal procedure 16 for one of the attorneys you supervise to get ahold of 17 their adjuster? 18 A At what point in time? 19 Q Currently. Currently. 20 A No, I mean -- 21 MR. MC INERNEY: Under what circumstances? 22 THE WITNESS: -- get ahold of their adjuster 23 at what point in time? 24 BY MS. MINER: 25 Q Oh, I'm sorry. When they're at the WCAB. R O U G H D R A F T O N L Y 96 1 A Well, there are a couple of different 2 things they can do: One of them is that they could 3 leave the fourth floor where the WCAB is, take the 4 elevator or the stairs, go downstairs, walk out into 5 the plaza, find a pay phone in the plaza, of which 6 last time I looked a year or so ago, there was one, 7 and stick in two quarters and make a phone call; or go 8 to one of the other phones that's nearby, one in the 9 Federal Building behind the metal detector, one on the 10 loading dock of the public library across the street 11 to the -- I believe that's to the west, and the other 12 would be to go to the City Hall which is across the 13 street to the east and go to either the first floor 14 across from where you pay your gas -- your garbage and 15 water bill or go to the second floor or the fourth 16 floor or the fifth floor and use a pay phone. 17 Q Are there any dangers, that you know of, 18 in trying to get to these buildings, any concerns like 19 crossing a street during busy traffic, anything like 20 that? 21 A No more danger than other -- any other 22 pedestrian would have crossing streets where there are 23 red and green signals at the intersections, unless 24 they decide they're going to jaywalk, of course; then 25 you have the hazards of being a jaywalker. R O U G H D R A F T O N L Y 97 1 Q Do any of the attorneys that you 2 supervise have any sort of reasonable accommodation 3 that prevent them from going to these other buildings? 4 A I do have one, but I do have a question 5 to ask the arbitrator on this issue. 6 THE ARBITRATOR: Let's go off the record. 7 (Discussion held off record.) 8 THE ARBITRATOR: We're talking about 9 Employee A. Everybody understand? 10 Now, as to Employee A, is there an answer 11 to the question? 12 THE WITNESS: Yes, there is. I have an 13 employee who to -- of whom you're referring to as 14 Employee A right now, who has had the entire amount of 15 cartilage removed from one of his knee joints. His 16 doctor has -- has -- and that was because of a 17 Workers' Compensation injury. 18 MS. MINER: Okay. 19 THE WITNESS: Okay. His doctor has informed 20 him that if he walks up and down the stairs a bunch, 21 he's going to wear his knee out sooner than if he can 22 limit his movement up and down the stairs; and the 23 less walking he does, the longer it will be before he 24 has to have his knee replaced; the more walking he 25 does, the sooner he's going to have to have a total R O U G H D R A F T O N L Y 98 1 knee replacement. 2 Because of that and because of his 3 doctor's medical statements and the like, as a part of 4 his Workers' Compensation case, that particular 5 attorney has a cell phone which has been issued to him 6 through his Workers' Compensation claim and for which 7 his Workers' Compensation claim pays his monthly bill. 8 I would call that a reasonable accommodation. 9 BY MS. MINER: 10 Q Are there any other attorneys who have 11 some sort of accommodation issues when they're 12 appearing before the Fresno WCAB, that you are aware 13 of? 14 A Not that I can recall. 15 Q Okay. 16 A I accommodate that attorney as well on 17 another matter, and that is the Information and 18 Assistance Officer for the Workers' Compensation 19 Appeals Board is on a different floor than the WCAB 20 judges are on; and for example, I try to have those 21 cases where someone would be going to an Information 22 and Assistance Officer not be cases that that 23 particular attorney is assigned to, again, because it 24 requires additional walking. 25 Q Okay. R O U G H D R A F T O N L Y 99 1 A And sometimes stairs -- 2 Q Prior -- 3 A -- to climb. 4 Q Prior to the removal of the pay phones -- 5 A Yes. 6 Q -- at the Fresno WCAB, what was the 7 procedure, or how did your attorneys that you 8 supervise normally get ahold of their adjusters? 9 A They would use one of the several pay 10 phones in the Hugh Burns State Building. That's the 11 name of the State Building here in Fresno. Senator 12 Hugh Burns, it got named after. 13 Q Do you know how many pay phones were in 14 that building? 15 A Oh, gosh, depending on the year, because 16 sometimes it moved as to which floors had pay phones 17 and which floors didn't, but just picking a typical 18 year, one year, the fifth floor had a pay phone; the 19 fourth floor, which is where the Board was, didn't; 20 the third floor had a pay phone; the second floor 21 didn't; the first floor had one, one year, but then 22 later, they put in a phone room that had a bank of 23 about four or five pay phones in it; and then another 24 year, they took the fifth floor pay phone and put it 25 on the fourth floor. R O U G H D R A F T O N L Y 100 1 THE ARBITRATOR: So is that a "yes" answer? 2 THE WITNESS: Do you mean at its peak? 3 MS. MINER: The arbitrator had a question. 4 THE ARBITRATOR: Is that a "yes" answer to 5 her question? 6 THE WITNESS: Her question was? 7 MR. MC INERNEY: "Do you know"? 8 THE WITNESS: Do I know? 9 BY MS. MINER: 10 Q How did people get ahold of their 11 adjusters prior to the removal of the pay phones? 12 A By pay phone in the State Building. 13 Q How did they get ahold of their -- they 14 got ahold of their adjuster by using a pay phone? 15 A Correct. 16 Q And when the phones were actually 17 removed -- 18 A Yes. 19 Q -- do you recall how many total were in 20 that building? 21 A It would be an estimate. 22 Q Okay. What's your estimate? 23 A Six or seven. 24 Q Okay. When the pay phones were removed, 25 did you do anything, in your capacity as the R O U G H D R A F T O N L Y 101 1 supervisor, to try to remedy the situation? 2 A Oh, yes. 3 Q And what was that? 4 A I talked to the building manager for the 5 State Building who's an employee of the Department of 6 General Services. 7 Q And who was that person? 8 A I don't recall, but it is mentioned in 9 one of the pieces of correspondence somewhere around 10 here. 11 Q Okay. And did you do anything 12 specifically for your attorneys to try to help them 13 out when they were at the Board? 14 A Well, first, I tried to get the pay 15 phones back. 16 Q Okay. 17 THE ARBITRATOR: So that's a yes? 18 THE WITNESS: Yes. 19 BY MS. MINER: 20 Q And were you able to get the pay phones 21 back? 22 A No. 23 Q So what did you do next? 24 A Tried to figure out an alternative to the 25 pay phones. R O U G H D R A F T O N L Y 102 1 Q Okay. I am going to show you Union 2 Exhibit 4. It's a memo from Geoff Sims to you about 3 the issue regarding the removal of the pay phones. 4 Do you recall receiving this from Geoff? 5 A I didn't recall it specifically until I 6 happened to click on it on my computer this morning. 7 But I remember having received something like this, 8 yes. 9 Q Okay. What did you do in response to 10 receiving this memo from Geoff? 11 A I attached it to an e-mail that I sent to 12 my assistant chief counsel at the time. 13 Q Okay. Did you happen to talk to your 14 fellow attorney -- attorneys in charge about the issue 15 of the removal of the pay phones? 16 A Not at this (indicating) particular time. 17 Q Okay. Did you attend the annual 18 conference, that SCIF has every year, that year, right 19 after the pay phones were removed? 20 A I don't remember it being right after the 21 pay phones were removed, but yes, I attended the 22 annual conference in 2003. 23 Q Do you recall if this issue was brought 24 up at any meetings you attended? 25 A Yes. R O U G H D R A F T O N L Y 103 1 Q And were there any suggestions on how to 2 alleviate the problem? 3 A No. 4 MS. MINER: Did we admit Union 4 already? 5 THE ARBITRATOR: Yes. Everything is in so 6 far. 7 MS. MINER: Okay. I was just 8 double-checking. 9 Q Next I want to show you an e-mail from 10 you to Geoff, and I'd like to -- 11 THE ARBITRATOR: Union 9 for identification 12 only at this time. This is a May 28, 2004 memo from 13 Landsiedel to the witness. 14 THE WITNESS: That's not what I have. 15 MS. MINER: I'm sorry. 16 THE ARBITRATOR: Off the record. 17 (Pause in proceedings.) 18 THE ARBITRATOR: Union 9 for identification 19 is an e-mail from the witness to Sims concerning T, 20 slash, C at WCAB, and this is September 19, 2003. 21 Showing it to the witness. 22 (The aforementioned document was 23 marked as Union Exhibit 9 by the 24 Arbitrator for identification only.) 25 THE WITNESS: Thank you. R O U G H D R A F T O N L Y 104 1 BY MS. MINER: 2 Q Do you recall receiving -- excuse me -- 3 sending this e-mail to Geoff Sims? 4 A No, I don't recall having sent it. 5 Q Okay. Could you tell me how you got from 6 not having pay phones available at the WCAB to getting 7 cell phones available to your attorneys? 8 THE ARBITRATOR: If you recall. 9 THE WITNESS: At what point do you want me to 10 start? 11 BY MS. MINER: 12 Q How did you go about coming up with the 13 idea to get cell phones for your attorneys? 14 Was this a suggestion by Geoff? Was this 15 a suggestion by someone else that you pursued? 16 A To get cell phones? 17 Q Yes. 18 THE ARBITRATOR: Let's jog his memory a 19 little. 20 Do you recall, sir, that there was a 21 pilot program here? 22 THE WITNESS: I recall -- I recall what I did 23 when I found out that the cell phones -- pardon me. I 24 recall what I did when the pay phones were removed 25 from the Hugh Burns State Building. R O U G H D R A F T O N L Y 105 1 BY MS. MINER: 2 Q And what was that? 3 A I went home and looked in my junk door, 4 and I found a phone that was on the AT&T service years 5 before that I was not using. And so I brought it to 6 work. 7 Q And did you reactivate the phone, or did 8 you purchase a phone card for your attorneys to use? 9 How did that cell phone come to be used by the 10 attorneys? 11 A Oh, my Legal Support Supervisor, Linda 12 Hickman, reminded me that when we had been doing the 13 2004 budget process, there was a page about 14 reimbursement for prepaid cell phone cards in the 15 budget planning packet that suggested that we could be 16 reimbursed for those attorneys who didn't want to turn 17 in their personal cell phone bills to go through the 18 State Fund cell phone reimbursement procedure to 19 reimburse people for use of cell phones, provided 20 those prepaid cell phone cards were used only for 21 business-purpose calls. 22 Q Now, having thought -- telling us that, 23 does this e-mail -- do you recall sending this e-mail 24 now? 25 A I don't recall sending it. I'm sure that R O U G H D R A F T O N L Y 106 1 I did, but I don't recall sending it. 2 THE ARBITRATOR: Just for the record, we're 3 talking about Union 9. 4 MS. MINER: Yes. 5 Q Do you recall purchasing AT&T cards for 6 the phones? 7 A Oh, yes. 8 Q Okay. And did you go to the store 9 yourself and purchase those cards? 10 A I went to Vons Supermarket and bought one 11 cell phone card for $75, which I placed on my American 12 Express card, and I recall specifically having 13 purchased that one and at least one other, although 14 my -- my AT&T -- my American Express card shows that I 15 purchased three. I recall specifically purchasing 16 two, one and then another one, and then apparently, I 17 purchased a third one. 18 And I recall that because, for some 19 reason, the checkers at Vons recorded the purchase of 20 those cell phone prepaid minute cards as groceries and 21 did not charge me tax on them, and so they are for $75 22 even. 23 Q Do you recall reminding Mr. Sims of 24 SCIF's reimbursement policy for cell phone usage? 25 MR. MC INERNEY: Objection as to time. R O U G H D R A F T O N L Y 107 1 THE ARBITRATOR: About this period of time. 2 BY MS. MINER: 3 Q About this period of time, or in this 4 period of time. 5 A Oh, absolutely. I think I even gave him 6 a copy of the cell phone reimbursement policy which I 7 got from someone in Business Services, as I recall. 8 Q And the phone that you are talking about, 9 who was in charge of making sure that phone was 10 available to the attorneys? 11 A I think I gave it to Mr. Sims. 12 MS. MINER: I'd like to move Union Exhibit 9 13 into evidence. 14 THE ARBITRATOR: Any objection? 15 MR. MC INERNEY: No objection. 16 THE ARBITRATOR: Thank you. 17 It's received. 18 (The aforementioned document which was 19 previously marked Union Exhibit 9 20 was received into evidence by the 21 Arbitrator.) 22 THE WITNESS: He's one of my Staff III lead 23 attorneys. That's why I gave him that phone. 24 THE ARBITRATOR: Let's go off the record. 25 (Discussion held off record.) R O U G H D R A F T O N L Y 108 1 THE ARBITRATOR: Union 10 for identification 2 only at this time. This is -- appears to be another 3 e-mail dated October 9, 2003 from the witness to Bryan 4 Townsend concerning spare cell phones. 5 (The aforementioned document was 6 marked as Union Exhibit 10 by the 7 Arbitrator for identification only.) 8 BY MS. MINER: 9 Q And who is Bryan Townsend? 10 A I believe he's somebody in the 11 telecommunications section of our State Fund Business 12 Services Department. 13 Q And why were you communicating with him 14 about this issue? 15 A Well, when I paid for the $75 from Vons 16 for my phone, it got used up pretty quick in terms of 17 the minutes because it was only one phone. So I had 18 asked if any of the other attorneys had phones they 19 could donate so we could use cards, and one of my 20 other attorneys came up with a card -- or a phone, and 21 I bought a card for her phone. 22 And as I said, the minutes on my phone 23 had run out; so I bought another card. That's the 24 three at Vons. 25 And that didn't seem to meet the need in R O U G H D R A F T O N L Y 109 1 terms of how quickly the card minutes were being used 2 up by -- I think I had 15 attorneys down at the Board 3 at the time. So I was looking for more phones. 4 Q And was Mr. Townsend able to provide 5 phones for you? 6 A Well, there's an earlier e-mail to 7 Mr. Townsend, earlier further on -- earlier back than 8 October 8th where I was asking does State Fund have 9 any -- any cell phones that are, you know, abandoned 10 junk phones that are not in service, not being used 11 for anything else that maybe I could borrow. 12 And so at the bottom of this exhibit, 13 there's a note where, on October 8th, I said to -- 14 Bryan Townsend sent a note to Christina Cheng, who, I 15 guess, works for him, saying, "Do we still have any 16 AT&T used spare cell phones?" 17 And this Christina Cheng said to Bryan 18 Townsend, "I have two Nokia 5165 and several 6160, so 19 what model are you looking for?" 20 And Mr. Townsend, on October 9th -- 21 MR. MC INERNEY: I'll stipulate to the 22 admission of 10. 23 THE ARBITRATOR: Thank you. 24 It's received. 25 (The aforementioned document which was R O U G H D R A F T O N L Y 110 1 previously marked Union Exhibit 10 2 was received into evidence by the 3 Arbitrator.) 4 THE WITNESS: -- said, "How many would you 5 like?" 6 And so I said, "Great news." 7 MR. MC INERNEY: Objection; the document 8 speaks for itself at this point. 9 THE ARBITRATOR: I agree. 10 BY MS. MINER: 11 Q In the end, when you had the full number 12 of cell phones at the -- I guess we'll call it the 13 height of this project, how many cell phones were 14 available to your attorneys to be checked out? 15 A To be checked out, I believe at one 16 point, I had a total of seven phones that had come 17 into my possession from Mr. Townsend; the number to 18 the -- the number that my attorneys were using at any 19 one time was five. 20 I gave one to each of my Staff 21 Counsel III Specialists for their work unit since they 22 were the lead attorneys for each work unit. And then 23 we had the others, in case one of them went dead or 24 broke. 25 Q How do you know that SCIF had phones -- R O U G H D R A F T O N L Y 111 1 AT&T phones? Do you know what their purpose was? 2 A I don't understand your question. 3 Q When you contacted corporate and inquired 4 about any old AT&T phones that might be available, 5 what was the purpose of corporate having those cell 6 phones? 7 A I contacted Business Services, yes. 8 Q Okay. And did they tell you that they 9 had cell phones available? 10 A The exhibit shows that they did. 11 Q Okay. And do you know what those cell 12 phones were used for? 13 A Well, we used them for our attorneys down 14 at the Comp Board with the prepaid cards. 15 Q But why did they have them prior to 16 sending them to you here in Fresno? 17 A My belief is they were in the bottom of 18 somebody's drawer, not being used. 19 Q But you don't know why corporate had cell 20 phones at one point or what they had originally been 21 purchased for? 22 A I do not know. 23 Q Okay. Is your phone your personal cell 24 phone, or is that a SCIF phone? 25 A Which of my phones? R O U G H D R A F T O N L Y 112 1 Q Either one or both. 2 Do you have a personal phone and a SCIF 3 phone? 4 A No. 5 Q Okay. Do you seek reimbursement from 6 SCIF for the use of your cell phone? 7 A Generally, no. 8 Q Okay. Is that because you're not making 9 calls regarding SCIF business on your personal cell 10 phone -- 11 A No. 12 Q -- or you just don't -- 13 A That's not correct. 14 Q Okay. Then why do you not seek 15 reimbursement? 16 A That gets into my personal opinion and my 17 personal preference. 18 Q Okay. Let me go back to the cell phone 19 project. Okay? 20 At the height of this, when you had the 21 seven phones -- 22 A You called it a project. 23 Q We've been referring to it as a cell 24 phone project. Okay? So -- 25 A Or pilot or -- was it pilot or project? R O U G H D R A F T O N L Y 113 1 THE ARBITRATOR: A pilot project, we've been 2 talking about. 3 THE WITNESS: Oh, okay. 4 BY MS. MINER: 5 Q When you had the seven phones -- 6 A Yeah. 7 Q -- other than Mr. Sims, who else was in 8 charge of handing out those phones for your attorneys' 9 use? 10 THE ARBITRATOR: He just said he gave one to 11 each lead attorney. 12 MS. MINER: Oh, okay. 13 THE WITNESS: Yes. 14 BY MS. MINER: 15 Q Do you know if the attorneys that you 16 supervised liked to use those cell phones? 17 A They seemed to feel that they worked 18 okay. 19 Q What happened with this project with the 20 cell phones? 21 A My assistant chief counsel, Fred DaSilva, 22 retired. 23 Q Okay. Did he put an end to this project? 24 A No. 25 Q Okay. Who did? R O U G H D R A F T O N L Y 114 1 A Bill Landsiedel. 2 Q Okay. I'm going to show you Union 3 Exhibit 5, which is a chain of e-mails between you and 4 the attorneys in your office and Bill Landsiedel. So 5 I'll give you a moment to look that over. 6 THE ARBITRATOR: Let's go off the record. 7 (Pause in proceedings.) 8 THE ARBITRATOR: Let's go back on the record. 9 And I'll ask if there's any further 10 direct? 11 MS. MINER: Yes. 12 Q You have in front of you Union Exhibit 5? 13 A Yes. 14 Q It's a series of e-mails from March 29th, 15 '04. 16 Have you had a chance to review those? 17 A I've had a chance to look them over a 18 bit. 19 Q To your knowledge, did the attorneys in 20 your office come to rely on the cell phones that you 21 had provided during this project -- this pilot 22 project? 23 A I don't know. 24 Q In this series of e-mails, you listed 25 several alternatives that your attorneys could use to R O U G H D R A F T O N L Y 115 1 get ahold of their adjusters? 2 A Yes. 3 Q To the best of your knowledge, did any of 4 the attorneys that you supervised go and purchase 5 their own cell phone? 6 A No. 7 Q Okay. At the time that this e-mail was 8 sent, do you know how many attorneys that you 9 supervised had their own cell phone? 10 A During this series of e-mails, no. 11 Q Currently, how many of your attorneys 12 that you supervise have their own cell phones? 13 A I have no idea. 14 Q Okay. Do you know how many of your 15 attorneys, who use their cell phones currently for 16 SCIF business, seek reimbursement. 17 (Interruption in proceedings.) 18 THE ARBITRATOR: Off the record. 19 (Pause in proceedings.) 20 THE ARBITRATOR: Back on the record. 21 BY MS. MINER: 22 Q I'm sorry. Did you answer the question? 23 A No, I did not. 24 Q Okay. The question was: To your 25 knowledge, do the attorneys that you supervise seek R O U G H D R A F T O N L Y 116 1 reimbursement for their personal cell phones for SCIF 2 business? 3 A I've not seen anyone hand me a 4 reimbursement claim pursuant to the State Fund 5 reimbursement policy which would require them to put 6 their own personal cell phone bill with the request 7 for reimbursement. 8 I do have some attorneys who give me 9 travel claims for their parking meter money and also 10 for phone calls made at .50 a call on business which 11 is the amount that I know that the pay phones down at 12 the Fresno downtown area take to make a local call. 13 Q Okay. And then I'm going to show you 14 Union Exhibit 1, which is the State Fund's Cellular 15 Reimbursement Procedure. 16 A Yes. 17 Q Are you familiar with that procedure? 18 A I know that this is the procedure. To 19 say that I'm familiar with it would be a stretch. 20 Q Okay. 21 A That would mean I had some understanding 22 and knowledge of it, and I would not consider myself, 23 in any way, an expert on this. 24 Q Have you submitted a claim for 25 reimbursement under this procedure? R O U G H D R A F T O N L Y 117 1 A Oh, no. 2 Q No? Okay. 3 Do you use your personal cell phone for 4 State Fund business? 5 A Sometimes. 6 Q Sometimes. How often, would you say? 7 A Since I don't regularly appear down at 8 the Workers' Compensation Appeals Board, not that 9 often. 10 Q Do your attorneys that you supervise call 11 you on your cell phone when they are at the Board for 12 various reasons? 13 A I'm normally here at the office; so most 14 of the time, I do not get calls from them that would 15 come to my cell phone. They would come to my desk 16 phone. 17 Q Do your attorneys that you supervise have 18 your personal cell phone number? 19 A No. 20 Q Do you ever give that out to your 21 attorneys for -- for any reason? 22 A Very rarely. Actually, my particular 23 cell phone also receives text messaging, receives 24 e-mail and receives AOL Instant Messenger. So if they 25 send me an e-mail from a computer, I can read it on my R O U G H D R A F T O N L Y 118 1 cell phone. 2 Q Okay. 3 A Or if they phone the number here and I'm 4 not here and the receptionist puts a note in the 5 e-mail, I get it. 6 Q Okay. How big are the files that your 7 attorneys have when they go to the Board? 8 A Well, they're about a little larger than 9 eight and a half by eleven, and then however thick 10 they are. 11 Q Do you know any that have to carry 12 voluminous boxes to the Board? 13 A Voluminous, no. 14 Q Is it common for a case to become -- 15 gather so much information, that it's going to fill up 16 a box or more? 17 A Common to me would be more than 50 18 percent of the time, and I would say no -- 19 Q Okay. 20 A -- for one case. 21 Q When you used to appear before the Fresno 22 WCAB, did you ever have to go to another building to 23 make a phone call? 24 A No. At that time, there were pay phones 25 on various floors, as I previously testified to. R O U G H D R A F T O N L Y 119 1 Q There was never a time when all of the 2 phones were being used and you had to leave the 3 building? 4 A There were times when all of the phones 5 were being used. There were times when all of the 6 phones were being used by private attorneys for other 7 carriers. You waited in line. 8 Q Okay. Who do your attorneys have to call 9 when they're at the Fresno WCAB? 10 A That depends on the case. 11 Q Okay. In general, who would they 12 normally have to get ahold of? 13 A A claims adjuster. 14 Q Is there anyone else? 15 A Usually, no. 16 Q But are there times when there is someone 17 else besides a claims adjuster? 18 A Now and then, an attorney will call me. 19 Q Okay. 20 A Sometimes they might call another State 21 Fund attorney. 22 Q And what about lien reps? Do they have 23 to call lien claimants? 24 A I believe at times, they have called lien 25 claimants. R O U G H D R A F T O N L Y 120 1 Q On average, how many lien claimants could 2 there be on a file? 3 A That's so variable by file, I really 4 couldn't give an answer to that. 5 Q Okay. What's the most number of lien 6 claimants you've encountered being on any one file? 7 A I don't recall. 8 Q Okay. Currently, could you estimate an 9 average of lien claimants? 10 A No. 11 Q Okay. Is there ever a need when your 12 attorneys are at the WCAB to call an applicant's 13 attorney? 14 A There shouldn't be. The applicant's 15 attorney should be present, and sometimes the lien 16 claimants have a representative present. 17 Q Is there ever a time when they have to be 18 able to get ahold of an applicant that's in pro per? 19 A Again, the applicant should be present if 20 there's a hearing. 21 Q Has there ever been a time, say, in the 22 last few years, that an applicant in pro per has not 23 been present and the attorney has had to call them, 24 that you are aware of? 25 A I don't recall specifically. I'm sure R O U G H D R A F T O N L Y 121 1 that has happened on occasion. 2 Q Do you know how long calls take from your 3 attorneys to the adjusters on average? 4 A I have no idea. I'm sure they take 5 longer than my attorneys would like them to take. 6 Q When the pay phones were taken out of the 7 State Building here in Fresno, do you know if SCIF 8 management ever notified CASE of this situation? 9 A I have no idea. 10 Q Did you notify CASE? 11 A I do know that CASE notified State Fund. 12 Q Okay. Did you try to deal with Mr. Sims, 13 as the CASE rep, to resolve this issue? 14 A No. 15 Q And how did the attorneys in your office 16 find out that the cell phone pilot project was 17 terminated? 18 A I believe that would take us -- take us 19 to Union Exhibit 5. 20 Q Okay. All right. And you stated 21 earlier, I believe, that Mr. Landsiedel terminated the 22 project? 23 A Yes. 24 Q And do you know why he terminated the 25 project? R O U G H D R A F T O N L Y 122 1 A I believe his reasons are stated in 2 Exhibit 5. 3 Q And for the record, could you tell us 4 what those reasons were -- what your understanding of 5 those reasons are. 6 MR. MC INERNEY: Objection; the document 7 speaks for itself. 8 THE ARBITRATOR: Well, I agree. It says what 9 it says. 10 MS. MINER: Okay. 11 THE ARBITRATOR: But if the question is: 12 Other than what's on the document, did you have 13 conversations with Landsiedel that buttress this, 14 supplement it, et cetera -- is that the thrust of your 15 question? 16 MS. MINER: That will be my question, and 17 then I'll ask another question. 18 THE WITNESS: I do have something I could say 19 that would clarify one thing about the document. 20 MS. MINER: Okay. 21 THE WITNESS: But it's not responsive to your 22 question. 23 THE WITNESS: Please, sir, I know you've been 24 trying to get your page break in there for a while. 25 Where is it? R O U G H D R A F T O N L Y 123 1 THE WITNESS: Between page 2 and page 3. 2 THE ARBITRATOR: Okay. 3 THE WITNESS: The counsel for the Union has 4 asked some questions around this, about what did 5 Mr. Landsiedel say, or whatever. 6 Now, the memo that I sent to my staff 7 Monday, March 29th at 11:27 a.m. starts about halfway 8 down on page 2 and ends at the bottom of page 3; 9 however, included in that memo, I took the memo that 10 William J. Landsiedel sent to me at 10:42 a.m. on 11 Monday, March 29th, and included it. On the screen 12 when this displays, it is in a different color than 13 the memo that is my language, and so it's set out 14 differently. 15 THE ARBITRATOR: Let me just summarize this, 16 as I understand your testimony. 17 At the middle of page 2, the Monday, 18 March 29, 2004, 11:27 a.m. memo -- 19 THE WITNESS: 4-7. 20 THE ARBITRATOR: Excuse me? 21 THE WITNESS: 11:47. 22 MS. MINER: 11:47 a.m. 23 THE ARBITRATOR: So you're looking at the one 24 on top of it? 25 THE WITNESS: Yes. R O U G H D R A F T O N L Y 124 1 THE ARBITRATOR: That says from Karen. 2 THE WITNESS: Oh, wait. Yes, 11:27. I stand 3 corrected. Thank you. 4 THE ARBITRATOR: I'm good. 5 THE WITNESS: Better than I am. 6 THE ARBITRATOR: Anyway, as I understand your 7 testimony, sir, this -- in fact, both pages is one 8 e-mail? 9 THE WITNESS: Correct. 10 THE ARBITRATOR: Which is your e-mail to the 11 staff which incorporated Landsiesel's e-mail of about 12 45 minutes earlier? 13 THE WITNESS: Yes. 14 THE ARBITRATOR: Okay. 15 THE WITNESS: So his memo starts from 16 William J. Landsiedel at the very bottom of page 2 and 17 continues at the top of page 3. Where the quotation 18 mark is "All," and the other quotation is after 19 "Bill," I had inserted those quotation marks. That is 20 his statement stating that: "All cell phones are to 21 be picked up and discontinued immediately. This 22 program is in violation of legal management policy." 23 Those are his words. 24 And the "Bill" referred to is Bill 25 Landsiedel there, as opposed to, I sign my e-mails R O U G H D R A F T O N L Y 125 1 Bill J., where he would be a Bill L. 2 BY MS. MINER: 3 Q The legal management policy that he is 4 referring to, do you know what that is? 5 A No. 6 Q Had you inquired from Mr. Landsiedel what 7 that policy was after this -- after he sent this 8 e-mail? 9 A I'd inquired of him before he even sent 10 this e-mail. 11 Q Okay. Did you know that he was going to 12 be terminating this project before he put it in e-mail 13 form? 14 A Yes. 15 Q And how soon before he terminated this 16 projected via e-mail did you know that he was going -- 17 that he verbally mentioned it to you? 18 A About three weeks before. 19 Q Okay. And why did it take three weeks 20 from the time he verbally told you that it was going 21 to be terminated to the time it was in writing? 22 A Because he verbally told me, and since my 23 previous assistant chief counsel had been 24 communicating to me in writing about this, I told him 25 that I would, of course, terminate it the moment he R O U G H D R A F T O N L Y 126 1 sent me a written instruction to terminate it. 2 Q Okay. And did -- 3 A And when he did, I did. 4 Q Originally, when you started this cell 5 phone program, was -- did Mr. DaSilva authorize it? 6 A He told me in e-mail that if prepaid cell 7 phone cards were used for State Fund business, the 8 persons who purchased them would be reimbursed. 9 Q Okay. 10 A I took that as meaning that it was 11 authorized for me to purchase the cards and have the 12 cards fill the minutes onto the cell phones. 13 Q Going back to Union Exhibit 5, the 14 3:08 p.m. e-mail that's at the top -- 15 A Oh, yes. 16 Q -- do you recall receiving this e-mail 17 from Mr. Landsiedel to you and your staff? 18 A I recall seeing it, yes. 19 Q Okay. Had you ever suggested to your 20 attorneys that they purchase their own cell phone for 21 SCIF business? 22 A I don't recall. 23 Q Okay. Do you believe that it's an 24 investment in your career to purchase a cell phone? 25 A I have no opinion on that. R O U G H D R A F T O N L Y 127 1 Q Okay. Was there any remaining time on 2 the phones that you -- or the phone cards that you had 3 when this project was terminated in writing by 4 Mr. Landsiedel? 5 A Oh, yes. 6 Q How much time was left? 7 A Well, I would imagine or speculate that 8 there was time left on certain of the cell phones that 9 expired within 45 days -- expired 45 days after those 10 cards had been entered into the cell phones per the 11 AT&T prepaid -- whatever it's called -- Free 2 Go, I 12 guess, cell phone plan. 13 But in addition to that, there are, I 14 believe, six prepaid cell phone cards that State Fund 15 still has in its possession that have not been entered 16 into the cell phones. 17 Q Okay. 18 A AT&T Free 2 Go cell phone cards. 19 Q Are you personally owed any money for the 20 purchase or use of those -- those cards for the 21 phones? 22 A I have not submitted a claim for 23 reimbursement; but there are some expenses that were 24 incurred in the process of purchasing cell phone cards 25 for which I have not been reimbursed, yes. R O U G H D R A F T O N L Y 128 1 Q Okay. Do you know of anyone at SCIF who 2 is actually issued a SCIF cell phone other than the 3 one attorney for reasonable accommodation purposes? 4 A Could you explain your question, or read 5 it back or something? 6 Q Does SCIF provide a SCIF cell phone to 7 any of its employees? 8 THE ARBITRATOR: Other than the one getting 9 the accommodation? 10 MS. MINER: Yes. 11 THE ARBITRATOR: If you know. 12 MR. MC INERNEY: Are we talking about legal 13 employees or the whole world? 14 MS. MINER: Anyone at SCIF. 15 Q Is anyone at SCIF routinely -- a 16 classification routinely assigned a phone? 17 A I believe so. 18 Q And what classification would that be? 19 Is it a classification, or is it a particular person? 20 A Again, we're going by my belief. It's my 21 belief that there are auditors, loss control 22 representatives and broker service representatives in 23 Southern California who have been issued cell phones 24 as their telephone extension in the State Fund phone 25 system. R O U G H D R A F T O N L Y 129 1 Q Do you know why they are issued SCIF 2 phones? 3 A I believe that those individuals have 4 been issued SCIF phones because they are considered 5 outside field personnel, are not provided with desk or 6 office space whatsoever in Southern California and 7 are, therefore, traveling about the Los Angeles basin 8 using those phones as folks would use desk sets if 9 they were assigned a desk. 10 Q Do you know if program managers receive 11 cell phones in their capacity? 12 A I don't know if they receive cell phones. 13 I believe those on the Executive Committee and those 14 who are program managers have Blackberrys. 15 Q Do program managers have a desk or an 16 office? 17 A Yes. 18 Q Okay. 19 A Yes, some of them do. I couldn't say for 20 certain that all of them do. I think they do. 21 Q I'm going to hand you another e-mail. 22 And this is -- 23 THE ARBITRATOR: Union 11. For 24 identification only at this time, Union Exhibit 11. 25 This is an e-mail dated May 28, '04 from Landsiedel to R O U G H D R A F T O N L Y 130 1 the witness concerning memo to Fresno legal staff. 2 (The aforementioned document was 3 marked as Union Exhibit 11 by the 4 Arbitrator for identification only.) 5 BY MS. MINER: 6 Q Do you recall receiving this e-mail? 7 A I don't recall specifically receiving it. 8 It's addressed to me. I think I probably did -- 9 Q Okay. 10 A -- receive it. 11 Q And do you know why Mr. Landsiedel sent 12 this e-mail to you? 13 A I have no idea other than that I am the 14 attorney in charge of the Fresno legal staff as the 15 Staff Counsel III Supervisor for the office. And 16 he indicates -- and the memo indicates: "Please 17 forward this to all attorneys in the Fresno Legal 18 Department," which I'm sure I probably did. 19 Q Okay. And why did you forward that 20 e-mail from Mr. Landsiedel to the people in your 21 office? 22 A Because it says for me to do so, and he 23 was my supervisor at that time. 24 Q Okay. And could you describe the 25 clarification that he wanted in this e-mail. R O U G H D R A F T O N L Y 131 1 THE ARBITRATOR: You mean other than what it 2 says? 3 MR. MC INERNEY: No objection. 4 THE ARBITRATOR: Thank you. 5 It's received. 6 (The aforementioned document which was 7 previously marked Union Exhibit 11 8 was received into evidence by the 9 Arbitrator.) 10 THE WITNESS: I was just going to say I think 11 it just kind of speaks for itself, and I can't 12 interpret further than what's there. 13 MS. MINER: I'm sorry. You said that you 14 admitted that exhibit? 15 THE ARBITRATOR: Yes. It's received, 16 Union 11. 17 BY MS. MINER: 18 Q Has SCIF ever provided cell phones to 19 attorneys other than for reasonable accommodations, to 20 your knowledge? 21 MR. MC INERNEY: Aside from the pilot 22 project? 23 MS. MINER: Or aside from the pilot project. 24 THE WITNESS: I don't think so, but I don't 25 know. R O U G H D R A F T O N L Y 132 1 BY MS. MINER: 2 Q Are you familiar with Labor Code 3 Section 56? 4 A You'll have to show me Labor Code 5 Section 56. I'm good at what things say, but I don't 6 remember them by number. There are some attorneys 7 that say, "Oh, yes, Labor Code section blah, blah, 8 blah in Paragraph 6 says this." 9 THE ARBITRATOR: Let's go off the record. 10 (Pause in proceedings.) 11 BY MS. MINER: 12 Q I'm showing the witness Union Exhibit 6. 13 It starts at page -- at Labor Code Section 50, and I 14 would like you to look at Labor Code Section 56. 15 A (Witness complies.) 16 Q Did you find it? 17 A Yes. 18 Q Have you reviewed Labor Code Section 56? 19 A I've just read it. 20 Q Okay. Based on that, could you tell me 21 what department the State Compensation Insurance Fund 22 belongs to in State government? 23 MR. MC INERNEY: Objection; it's vague and 24 ambiguous as to what context. 25 THE ARBITRATOR: Overruled. R O U G H D R A F T O N L Y 133 1 Do you understand the question, sir? 2 THE WITNESS: I believe I do. 3 BY MS. MINER: 4 Q Okay. What department State Compensation 5 Insurance Fund belong to in State government? 6 A Well, I don't like the word "belong to," 7 but it appears from this -- and I think also from one 8 report of the Department of Industrial Relations that 9 I once read and from, I believe, one page on their 10 website that talks about State Compensation Insurance 11 Fund -- that the Department of Industrial Relations 12 considers State Compensation Insurance Fund to somehow 13 be a division of the Department of Industrial 14 Relations. 15 Q I'm sorry. You said something about a 16 memo from the Department of Industrial Relations? 17 A I remember once having read, like, an 18 annual report from them or something years ago where 19 they had a page in it about the Department of 20 Industrial Relations. It was a long time ago. 21 This -- this, however, is a bit confusing 22 to me because there are other things that state that 23 the State Compensation Insurance Fund is a public 24 enterprise fund rather than a subdivision of the 25 Department. R O U G H D R A F T O N L Y 134 1 MS. MINER: I have no further questions at 2 this time. 3 THE ARBITRATOR: Let's go off the record. 4 (Discussion held off record.) 5 THE ARBITRATOR: Let's go back on the record. 6 While we were off the record, I have 7 marked and I will now receive, as Union Exhibit 12, a 8 site map of the area in question, specifically the 9 City Hall area, the Federal Building, the State 10 Building, et cetera. 11 No objection? 12 MR. MC INERNEY: No objection. 13 THE ARBITRATOR: Thank you. 14 It's received. 15 (The aforementioned document was 16 marked as Union Exhibit 12 for 17 identification and received into 18 evidence by the Arbitrator.) 19 THE ARBITRATOR: Any cross? 20 MR. MC INERNEY: Yes. 21 22 CROSS EXAMINATION 23 24 BY MR. MC INERNEY: 25 Q Mr. Jordan, I want to refer you to R O U G H D R A F T O N L Y 135 1 Union 5. That's our string of e-mails. 2 A Yes. 3 Q And on the e-mail that begins on the 4 second page -- 5 A Uh-huh. 6 Q -- where we interpose the line break -- 7 A Uh-huh. 8 Q -- you refer to this -- the program that 9 you developed using the prepaid cell phones as a pilot 10 program? 11 A Uh-huh. 12 Q Is that the phrase that you used from the 13 very beginning when you set the program up? 14 A No. 15 Q And -- 16 A I didn't use a phrase at all. 17 Q In terms of when the program was ended, 18 why did you characterize it as a pilot program? 19 A Well, you start something, you try it 20 out, you see if it works, and if it has difficulties 21 and isn't working the way it's supposed to, you 22 terminate it. 23 Q Was it your understanding from the outset 24 that the use of the cell phones and the prepaid cards 25 was going to be an experimental program? R O U G H D R A F T O N L Y 136 1 A I wouldn't characterize it as 2 experimental. I'd characterize it as a way to cope 3 with a situation that arose without notice and which 4 we needed to solve so that we could serve our clients. 5 Q Was it your understanding that creating 6 the cell phone program was intended to be an interim 7 solution to the unexpected removal of the pay phones 8 from the State Building? 9 A I didn't consider it a permanent 10 solution. I wouldn't have characterized it as an 11 interim solution. I just would have characterized it 12 as a solution. I certainly was hoping something more 13 permanent would evolve along the way. In a sense, 14 something more permanent did. 15 Q And what was that? 16 THE ARBITRATOR: Elimination of the cell 17 phones. 18 THE WITNESS: Yes. 19 BY MR. MC INERNEY: 20 Q Are you aware of any SCIF rule or 21 regulation that requires attorneys to have cell 22 phones? 23 A SCIF rule or regulation, no. 24 MR. MC INERNEY: I don't have anything 25 further. R O U G H D R A F T O N L Y 137 1 THE ARBITRATOR: Any redirect? 2 MS. MINER: Just a moment. 3 THE ARBITRATOR: Let's go off the record. 4 (Pause in proceedings.) 5 MS. MINER: I do have a question. 6 7 REDIRECT EXAMINATION 8 9 BY MS. MINER: 10 Q In your opinion, was this program with 11 the cell phones working for your attorneys? 12 A For the attorneys, it appeared to be 13 working. 14 MS. MINER: I don't have any further 15 questions. 16 THE ARBITRATOR: Anything further on cross? 17 MR. MC INERNEY: Nothing further. 18 THE ARBITRATOR: I just have one or two. 19 Hopefully, I won't open Pandora's box. 20 21 EXAMINATION 22 23 BY THE ARBITRATOR: 24 Q Do you have Union 1 in front of you, sir? 25 A I do now. R O U G H D R A F T O N L Y 138 1 Q The first sentence of the third paragraph 2 says -- 3 MS. MINER: What page? 4 THE ARBITRATOR: I apologize. Page 2. 5 THE WITNESS: Page 2 is the one with the AT&T 6 logo at the top. 7 THE ARBITRATOR: Yes. 8 Q The sentence says: "All business-related 9 minutes that were paid where actual charges are shown 10 on the statement are reimbursable at face value." 11 A Yes. 12 Q Now, the inference to me is that if you 13 can show you put up your money for the cell phone use, 14 you get paid back. 15 I understand, this Union 1 has some ups 16 and downs and ins and outs to it, but would that be a 17 fair reading of that sentence? 18 A I couldn't interpret that. 19 MR. MC INERNEY: I'll object and say the 20 document speaks for itself. 21 THE ARBITRATOR: Anything further for this 22 witness? 23 MR. MC INERNEY: No, nothing. 24 MS. MINER: No. 25 THE ARBITRATOR: Thank you very much for your R O U G H D R A F T O N L Y 139 1 testimony, sir. You're excused. 2 THE WITNESS: Thank you. 3 THE ARBITRATOR: Let's go off the record. 4 (Discussion held off record.) 5 THE ARBITRATOR: Let's go back on the record 6 and show we'll be back at 9:00 a.m. tomorrow. Thank 7 you all for your courtesy. 8 And we're off the record. 9 (At the hour of 4:15 p.m., the 10 proceedings were adjourned.) 11 -O0O- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R O U G H D R A F T O N L Y 140