BEFORE THE IMPARTIAL ARBITRATOR ALEXANDER COHN IN THE MATTER OF THE ARBITRATION BETWEEN: ) STATE OF CALIFORNIA ) AND ) VOLUME II CALIFORNIA ASSOCIATION OF ADMINISTRATIVE ) LAW JUDGES, ATTORNEYS AND HEARING OFFICERS ) IN STATE EMPLOYMENT ) ) ____________________________________________) 10 RIVER PARK PLACE EAST FRESNO, CALIFORNIA MAY 03, 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 HOWARD GOODMAN 7 Direct Examination 8 Cross Examination 9 Redirect Examination 10 Recross Examination 11 12 WILLIAM LANDSIEDEL 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; TUESDAY, MAY 03, 2005 2 9:01 A.M. 3 -O0O- 4 5 THE ARBITRATOR: Let's go back on the record 6 and show this is day two of the Fresno and statewide 7 cell phone dispute. 8 9 HOWARD GOODMAN, 10 HAVING FIRST BEEN DULY SWORN, WAS 11 EXAMINED AND TESTIFIED AS FOLLOWS: 12 13 THE ARBITRATOR: The next witness for the 14 Union has been called and sworn. 15 And for the record, sir, would you please 16 give us your full name, spelling your last name. 17 THE WITNESS: Howard Goodman, G- double 18 -o-o-d-m-a-n. 19 THE ARBITRATOR: And your position, if any 20 with the State? 21 THE WITNESS: I'm a Workers' Compensation 22 administrative law judge employed by the Department of 23 Industrial Relations, Department of -- Division of 24 Workers' Compensation, Workers' Compensation Appeals 25 Board. R O U G H D R A F T O N L Y 4 1 THE ARBITRATOR: Your witness. 2 3 DIRECT EXAMINATION 4 5 BY MS. MINER: 6 Q Okay. How long have you been an ALJ with 7 the State? 8 A Total of 12 or 13 years. 9 Q Where physically do you work? 10 A I work in Santa Monica, California. 11 Q Is the building that you work in a 12 private building or a public building? 13 A It's a private building. 14 Q Have you worked as an ALJ at any other 15 boards? 16 A I worked at the Ventura office, which is 17 now the Oxnard office, in '89 and '90. And in 1983 18 and '84, I was a hearing officer for the Department of 19 Social Services. 20 Q Okay. How long have you worked for the 21 State? 22 A Total of 14 or 15 years, in about three 23 different positions. 24 Q And what other positions have you worked 25 for for the State? R O U G H D R A F T O N L Y 5 1 A I was a staff attorney at State Fund in 2 '84 for about eight months, and I've been a Work Comp 3 judge, a hearing officer and a State Fund staff 4 attorney. 5 Q And what did you do prior to working for 6 the State? 7 A I was a private defense attorney doing 8 Workers' Comp. 9 Q And what firms were you at? 10 A Okay. I started off with State Fund. I 11 then went to work for a firm called Graves & Roberson. 12 I then -- 13 THE ARBITRATOR: Usual spelling? 14 THE WITNESS: Well, Roberson, 15 R-o-b-e-r-s-o-n. 16 I then went to work for a gentleman named 17 Gary Rosenberg in Century City; and then I was house 18 cousel for Zurich Insurance Company for about three 19 years; and then I did applicant work for six months; 20 and then I became a Work Comp judge for about a year. 21 And then I was -- I worked for Gabriel, 22 Madsen, M-a-d-s-e-n, & Zaks, Z-a-k-s; and then I was 23 managing attorney for Pacific Rim Insurance Company. 24 And then I reinstated as a Work Comp 25 judge in May of '94. R O U G H D R A F T O N L Y 6 1 BY MS. MINER: 2 Q What boards did you used to appear at 3 when you were an attorney? 4 A Virtually every board in Southern 5 California: San Diego, Long Beach, Santa Monica, 6 L.A., Van Nuys. I might have made it to Fresno, but I 7 don't -- I don't specifically recall. 8 Q What year did you become an attorney? 9 A '79. 10 Q And since '79, have you only practiced 11 Workers' Comp, or mainly Workers' Comp? 12 A Primarily Workers' Comp. I did criminal 13 defense for a couple of years. I argued a murder case 14 in front of the State Supreme Court. 15 Q How many hearings on average do you do a 16 week, as an ALJ? 17 A Okay. I'm on calendar four days a 18 week -- 19 THE ARBITRATOR: A little slower. 20 THE WITNESS: Okay. I'm on calendar four 21 days a week. Three -- Monday, Tuesday and Wednesday, 22 I have trials. Thursday, I have Mandatory Settlement 23 Conferences. 24 My average setting -- yesterday was -- 25 was not an average day. I had six regular trials and R O U G H D R A F T O N L Y 7 1 two lien trials. Normally, we're scheduled for five 2 or six trials on our trial days, and on my Thursday 3 MSC day, I have approximately 20 MSCs in the morning 4 and 20 in the afternoon; so between 35 and 40 cases. 5 BY MS. MINER: 6 Q And can you describe the logistics of 7 running a hearing. 8 A Okay. Workers' Comp -- two things: 9 Number one, it's a volume business, but it is a 10 certified specialty. So I essentially -- some of the 11 judges conduct their -- their mediation in their 12 courtroom. I -- essentially, I'm in my office working 13 on my other cases. The attorneys will come in one by 14 one on each case and let me know what the status is. 15 I then inquire as to whether or not we 16 can -- we can settle the case without trial, and, you 17 know, we discuss the issues, and I try and find out 18 what each side's position is. 19 If we're close to settlement, I suggest 20 that one of them call their client or -- well, the 21 applicant will always have his client there. If we're 22 close, then I'll suggest that the defense attorney 23 call his client for settlement authority, if he 24 doesn't have settlement authority; or if they discuss 25 the use of an Agreed Medical Examiner, to call their R O U G H D R A F T O N L Y 8 1 client and see if that's acceptable for them. 2 If the case can be resolved, they'll 3 draft the settlement papers, which I'll approve; if 4 the case can't be resolved, we'll either go to trial, 5 or in some cases, we'll continue it, depending on 6 whether or not I can get -- get to them or whether or 7 not perhaps if they continue it, they might be able to 8 engender a settlement. 9 Q Do you communicate with other judges 10 throughout the State who do Workers' Comp? 11 A Primarily, you know, I lunch with most of 12 my colleagues every day. The only time -- I know 13 judges in various places. The only time I see a lot 14 of other judges is, like, we have a statewide training 15 for two weeks; so every judge in the State is there. 16 And I -- I know some of them, and 17 they'll -- you know, they ask me about, "Well, are you 18 guys going to get us a raise already?" And that's -- 19 that's the primary topic of discussion. 20 THE ARBITRATOR: Excuse me. Is that a yes or 21 a no? 22 THE WITNESS: Yes. It's nonresponsive. I'm 23 sorry. 24 BY MS. MINER: 25 Q Can you describe your position with CASE, R O U G H D R A F T O N L Y 9 1 if any. 2 A I -- I have been on the Board of 3 Directors for approximately five years. I'm -- I've 4 been a board member, treasurer. I'm currently 5 vice-president. I'm also on the Bargaining Team, the 6 Executive Committee and the Budget Committee. I used 7 to be chairman of the PAC too, but I'm not on the PAC 8 anymore. 9 Q So in your capacity as a member of CASE 10 and on the board, do you get to interact with other WC 11 judges? 12 A Oh, yeah. Oh, yeah. 13 Q Okay. 14 A I also periodically attend meetings of 15 the CCWCJ, which is spelled California Conference of 16 Workers' Compensation Judges. They're like an 17 informal professional organization. So I'm on their 18 e-mail list, and, you know, we discuss some other 19 issues. 20 Q To your knowledge, do most Workers' 21 Compensation Appeals Boards operate similar to the way 22 your Board works and how you conduct your hearings? 23 A Pretty much. They do it slightly 24 differently in Northern California. In Southern 25 California, if we -- a case comes on for trial, we try R O U G H D R A F T O N L Y 10 1 it on virtually all the issues. 2 In Northern California, I'm told, they'll 3 try it on maybe one issue, like permanent disability 4 or temporary disability. So it's slightly 5 differently. 6 Q Throughout the State, is it common for 7 the Workers' Comp judges to try to get the parties to 8 settle? 9 A Due to the volume of cases, like in any 10 other litigation system, you have to get the parties 11 to settle because you -- you'd drown. 12 Q Who appears before you at -- during these 13 hearings? 14 A Applicants' attorneys and defense 15 attorneys, either private defense attorneys or State 16 Fund attorneys. 17 Q And do any of the attorneys who appear 18 before you have their clients at the hearing? 19 A The applicants' attorneys virtually 20 always have their clients present; defense attorneys, 21 very seldom. 22 Q Okay. Why is that? 23 A Because -- well, the claims adjusters are 24 at their desk doing whatever claims adjusters do. The 25 applicant has to be there because, number one, if the R O U G H D R A F T O N L Y 11 1 case goes to trial, he has to testify; number two, if 2 there's a settlement, he has to, you know, agree and 3 then sign off on it. 4 Infrequently, a defense attorney will 5 bring their client down. Sometimes it's a special 6 handling case, or sometimes they've never been to the 7 Board, and they want to see what's going on. 8 Q But the defense clients are not required 9 to appear? 10 A They are -- under WCAB Rule 10563, 11 they're either -- they don't have to be present if 12 they're immediately available by telephone with 13 settlement authority. And that's the customary way 14 it's done. 15 Q And I'm going to show you Union Exhibit 16 2. 17 And is this the regulation that you just 18 cited? 19 A Yeah. This is a -- the latest -- I 20 looked at the latest revision. It says "... shall 21 have a person available with settlement authority ... 22 by telephone." 23 THE ARBITRATOR: A little slower, please. 24 THE WITNESS: Okay. Yeah. 25 BY MS. MINER: R O U G H D R A F T O N L Y 12 1 Q All right. And how do attorneys normally 2 get ahold of their clients if the client is not at the 3 Board? 4 A They call them. I'd say virtually -- 5 every defense attorney has a cell phone, virtually. 6 Q Except who doesn't? 7 A Some of the State Fund attorneys. 8 Actually, some of the State Fund attorneys don't -- 9 the State Fund attorneys who do have cell phones 10 apparently use their own personal, private phones. 11 Q To the best of your knowledge, for the 12 attorneys who appear before you, all of the attorneys, 13 who have this -- who use cell phones, who pays for 14 their cell phone, if you know? 15 A It's customary for the employer to pay 16 for it, the defense firm. 17 Q What percentage of attorneys that appear 18 before you are SCIF attorneys? 19 A Okay. Yesterday I had -- of my eight 20 cases, on two cases-in-chief, I had State Fund; and 21 one of them in trials, I had State Fund. So three out 22 of eight yesterday. 23 I'd say between 20 and 40 -- some days, 24 my whole calendar is almost all State Fund; some days, 25 I may not see State Fund. But I'd say between 20 and R O U G H D R A F T O N L Y 13 1 40 percent of the cases have State Fund attorneys. 2 Q And what offices are these State Fund 3 attorneys from? 4 A Primarily from Unit B in Glendale and 5 State Contracts, and I'm not sure where State 6 Contracts has their office. State Contracts 7 represents -- appears on cases where State employees 8 have been injured. 9 Q In your experience both as a former SCIF 10 employee and as an ALJ, how do SCIF attorneys get 11 ahold of their clients? 12 A Either use their personal cell phone or 13 go to the phone booth. 14 Q When you were a SCIF attorney, did you 15 have your own cell phone? 16 A In 1983, cell phones were about as big as 17 this table, so no. 18 Q So how did you get ahold of your clients 19 when you were a SCIF attorney? 20 A My customary practice was to talk to 21 claims like the day before the hearing and tell them 22 if I could settle the case, that I'd be calling them. 23 At that time, State Fund attorneys had a 24 certain amount of their own settlement authority. I'm 25 not sure if they still do. So if I got together with R O U G H D R A F T O N L Y 14 1 the adjuster, I could get a certain amount of 2 settlement authority. And so, you know, I had some 3 autonomy. 4 On the bigger cases, and as a new 5 attorney, I'd have to -- I'd have to call them. And 6 back then, they had a really weird setup. My managing 7 attorney told me, even with my own authority, I had to 8 get claims concurrence. He was very territorial about 9 where I got my authority from. 10 THE ARBITRATOR: A little slower. 11 THE WITNESS: Okay. Sometimes I could get 12 authority through him; sometimes I couldn't. It was 13 weird. 14 On some cases, I'd tell the claims 15 people, "I can settle for such and such a dollar; 16 however, due to my boss's policy, you have to sign off 17 on the settlement." 18 So I think that sort of -- 19 (Interruption in proceedings.) 20 THE ARBITRATOR: Let's go off the record. 21 (Pause in proceedings.) 22 BY MS. MINER: 23 Q When you worked for a private firm, how 24 did you get ahold of your clients? 25 A Usually -- okay. Well, in the '80s, the R O U G H D R A F T O N L Y 15 1 cell phones weren't common so you'd call from a phone 2 booth. As cell phones became more common -- I had my 3 first cell phone in '93 when I was working for Pacific 4 Rim as managing attorney; but that was when, as I 5 recall, 80 minutes of air time was $69. So you were 6 very -- you used your cell phone very sparingly. 7 Q Have you ever had to allow a SCIF 8 attorney to use a WCAB phone? 9 A I may have a couple of times, once I was 10 sure it was not a toll call. I really don't feel 11 comfortable letting anybody use my office phone. It's 12 State property. 13 Q Even though they're a State attorney? 14 A Right. 15 Q Okay. I'm going to show you Joint 16 Exhibit 2 and Joint Exhibit 3. And these are the two 17 grievances and letters through the various -- through 18 the various elevation process. 19 Joint Exhibit 2 is the Fresno cell phone 20 grievance, and Joint Exhibit 3 is the statewide cell 21 phone grievance. 22 MS. MINER: Can we go off the record and 23 allow him -- 24 THE ARBITRATOR: Off the record. 25 (Pause in proceedings.) R O U G H D R A F T O N L Y 16 1 BY MS. MINER: 2 Q I'm going to ask you some questions about 3 the contract sections that were referenced in these 4 two grievances. 5 A Okay. 6 Q In the first grievance, Joint 7 Exhibit 2 -- 8 THE ARBITRATOR: Can I interrupt one second? 9 I know you're not going to ask him, what 10 does this clause mean because that's my job. 11 Now, if he was in bargaining -- 12 MS. MINER: Yes. 13 THE ARBITRATOR: -- you might want to say who 14 said what to who across the table. 15 MS. MINER: Okay. 16 THE ARBITRATOR: That's appropriate. 17 Please continue. 18 BY MS. MINER: 19 Q Okay. In the Fresno cell phone 20 grievance, there is an allegation that 3.1 of the MOU 21 was violated. 22 Were you part of this contract that's 23 currently in place? 24 A I was on the Bargaining Team and 25 negotiated the '01 to '03 agreement, MOU. R O U G H D R A F T O N L Y 17 1 Q And to your knowledge, was there any 2 change from the prior -- 3 A This was probably a rollover from the 4 prior contract. 5 Q And I'm going to show you Article 3.1 of 6 the prior contract. 7 THE ARBITRATOR: Would you like this marked? 8 MS. MINER: Please. 9 THE ARBITRATOR: For identification only at 10 this time, it would be Union Exhibit 12 [sic]. This 11 is an excerpt from the predecessor contract, 12 specifically 3.1, State rights. 13 (The aforementioned document was 14 marked as Union Exhibit 13 by the 15 Arbitrator for identification only.) 16 BY MS. MINER: 17 Q And if you can recall, what was the 18 purpose of rolling that over or any changes, that you 19 can recall? 20 A This is probably language that's been 21 in -- in the MOU for several contracts, and it was 22 fairly much boilerplate, and, you know, to the best of 23 my recollection, we just rolled it over as is. 24 I don't have any specific recollection of 25 the day we rolled it over or TA'd it, but that's R O U G H D R A F T O N L Y 18 1 probably what happened. 2 THE ARBITRATOR: Any objection? 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 13 8 was received into evidence by the 9 Arbitrator.) 10 BY MS. MINER: 11 Q And then, in the Fresno cell phone 12 grievance, there is an allegation that Section 4.3 of 13 the contract -- of the current contract was violated. 14 A Okay. 15 Q That's Joint Exhibit 2. 16 A Okay. 17 Q And do you recall any specific discussion 18 at the table about 4.3? 19 THE ARBITRATOR: Excuse me. Let me interrupt 20 for a second. I forgot that the very last thing we 21 did yesterday was to put in the map, which is 22 Joint 12. 23 MR. MC INERNEY: Union 12. 24 THE ARBITRATOR: Excuse me. Union 12. So 25 this is Union 13. Sorry about that. R O U G H D R A F T O N L Y 19 1 BY MS. MINER: 2 Q Let me show you the contract section from 3 4.3 from the prior contract. 4 MS. MINER: I'd like this marked, please. 5 THE ARBITRATOR: Thank you. 6 For identification only at this time, 7 Union Exhibit 14, which is Article 4. Specifically, 8 we're looking at 4.3 from the predecessor contract. 9 MR. MC INERNEY: Since this is from the DPA 10 website, we consider that the same as coming down from 11 from Mount Sinai. We'll stipulate to admissability. 12 THE ARBITRATOR: Thank you. 13 Union 14 is received. 14 (The aforementioned document was 15 marked as Union Exhibit 14 for 16 identification and received into 17 evidence by the Arbitrator.) 18 BY MS. MINER: 19 Q Do you recall any discussion at the table 20 about 4.3 in the settlement agreement? 21 A Well, I think the main difference that I 22 recall is, in the '99-'01 contract, we were known as 23 ACSA then. 24 Q Okay. 25 A And then in the interim, we became CASE. R O U G H D R A F T O N L Y 20 1 So the main difference -- in fact, the only difference 2 is that ACSA has changed to CASE. 3 And I'm going to -- you know, again, I 4 don't have any independent recollection of what 5 happened on that specific date, but it was probably a 6 rollover. I don't see any differences in the 7 language. Again, this is pretty much boilerplate. 8 Q Okay. And then, in the Fresno cell phone 9 grievance, there's a charge that 12.1 of the contract 10 has been violated. 11 Do you have any independent knowledge of 12 discussion about 12.1 of the current contract? 13 A Okay. Yeah, 12.1. We had been trying to 14 get the State to up the per diem regarding the meals 15 and give us more realistic rates regarding hotels. 16 And there's a very strange procedure 17 where, in Orange County, if you need to exceed the 18 State rate, you have to make three phone calls and get 19 your supervisor's approval and -- 20 Q Well, let me show you -- direct you to 21 12.1(G)(3). 22 A In the current MOU? 23 Q In the current MOU. 24 A Okay. 25 Q And let me show to you the prior section R O U G H D R A F T O N L Y 21 1 of the contract. 2 MS. MINER: I'm requesting this for 3 identification. 4 THE ARBITRATOR: Okay. Union Exhibit 15 for 5 identification only at this time. 6 MR. MC INERNEY: Stipulate to admissibility. 7 THE ARBITRATOR: Thank you. 8 It's received, from Mount Sinai. 9 This is the predecessor contract on fees 10 and allowances. 11 (The aforementioned document was 12 marked as Union Exhibit 15 for 13 identification and received into 14 evidence by the Arbitrator.) 15 THE WITNESS: Okay. The difference I see -- 16 I'm sorry. 17 BY MS. MINER: 18 Q Let me direct you specifically to 19 Section (G)(3) about phone reimbursement. 20 A Okay. You'll see in the '99-'01, it goes 21 (1), (2), (4) and (5). In the '90 -- '01-'03, it's 22 (1), (2), (3), (4), (5). And I'm not sure why the 23 discrepancy in the numbers, but essentially, the 24 language that the telephone -- the language is the 25 same, though; just the numbering is slightly R O U G H D R A F T O N L Y 22 1 different. 2 Q And do you recall why the Bargaining Team 3 chose to accept the language of not needing a receipt 4 for anything of $5 or less? 5 A It was probably, at the time -- we've 6 tried to renegotiate this section, every Bargaining 7 Team I've been on. This is probably, at the time, the 8 best we felt we could do. 9 Q As a member of the Bargaining Team, do 10 you feel that it is important for the Unit 2 members 11 to be reimbursed for business expenses? 12 A Definitely. Based upon our being 30 to 13 40 percent behind even other public attorneys, yeah. 14 We work for unrealistically low wages. It's 15 unreasonable to make us put out any money out of our 16 pockets in furtherance of State business. 17 Q In your capacity as a Workers' Comp 18 administrative law judge, have you heard any 19 complaints from the SCIF attorneys that appear before 20 you? 21 THE ARBITRATOR: I can take administrative -- 22 and I'm not trying to be flippant. I'm just trying to 23 move this along. I'll take administrative notice that 24 neither the arbitrator, nor anybody in this room, for 25 business purposes, wants to take money out of their R O U G H D R A F T O N L Y 23 1 own pocket for their employer. 2 So would that be helpful? 3 MS. MINER: That's fine. Okay. 4 MR. MC INERNEY: It's a universal truth. 5 THE WITNESS: Are you asking me if State Fund 6 attorneys are happy campers? 7 BY MS. MINER: 8 Q Have you heard from State Fund attorneys 9 if they have problems with reimbursement for their 10 cell phones? 11 MR. MC INERNEY: Objection; hearsay, but I 12 understand. 13 THE ARBITRATOR: Overruled. The issue goes 14 to the weight, not the admissibility. 15 THE WITNESS: Okay. I actually -- over the 16 last couple of weeks, I've asked several State Fund 17 attorneys from different units how -- you know, how do 18 they get reimbursed for their cell phones; do they get 19 reimbursed for their cell phones. 20 Attorneys with State contracts, 21 apparently, there's no provision. If you're going to 22 use your own cell phone, you're going to pay for it. 23 Apparently, if you have -- say, you have 24 a plan with -- with 500 included minutes. Even if you 25 use your cell phone for State Fund business, if you R O U G H D R A F T O N L Y 24 1 don't go over your 500 minutes, in some units, you 2 don't get reimbursed. You're expected to -- you have 3 a cell phone anyhow; well, it's nice that you can use 4 it for us; you haven't incurred any additional expense 5 so, you know, there's no reimbursement. 6 Some of the units apparently get 7 reimbursed based on some formula, that none of us seem 8 to understand, for -- for minutes they use. 9 BY MS. MINER: 10 Q Do you have any independent recollection 11 of 12.4 of the current contract? 12 A Yes. That, I do. 13 Q And what do you recall from the 14 bargaining sessions about that? 15 A Essentially, we wanted to get cell phones 16 for -- 17 MR. MC INERNEY: I'm going to object. Are we 18 going to be talking about what happened at the table 19 or what happened in the session? 20 THE ARBITRATOR: No, at the table. And in a 21 minute, she's going to ask him who was at the table, 22 about what year was it, et cetera. That way, you 23 won't say there's no foundation. 24 THE WITNESS: We started off by passing a 25 proposal for digital, state-of-the-art phones for our R O U G H D R A F T O N L Y 25 1 attorneys, essentially contemplating the ones who were 2 engaged in litigation who would need to call their 3 clients for court. 4 BY MS. MINER: 5 Q And in your capacity as a Bargaining Team 6 member, why was that so important, that the Unit 2 7 attorneys now have some sort of a phone -- a cell 8 phone? 9 A Okay. We have attorneys -- the 10 Department of Justice is our largest unit, about a 11 third of our -- largest subsection, about a third of 12 our unit. The ones that appear in civil court, civil 13 court has more draconian requirements about having 14 authority available; so we felt they needed it. 15 State Fund attorneys are in court every 16 day. They probably handle more actual litigated cases 17 per attorney than anybody -- than any of the other 18 members of our unit; so we felt they needed cell 19 phones. 20 Social Services is in there. The only 21 reason I can think of that we put Social Services in 22 is because one of the members of the Bargaining Team 23 was with Social Services. I'm don't really -- I'm not 24 familiar with their duties, even though I used to work 25 for them. I imagine some of them -- R O U G H D R A F T O N L Y 26 1 THE ARBITRATOR: A little slower, please. 2 THE WITNESS: -- some of them appear on 3 litigated cases where they need authority of some 4 kind. 5 BY MS. MINER: 6 Q I'm going to hand you a packet here of 7 the various proposals that were passed. 8 MS. MINER: And instead of labeling each one 9 separately, I suggest labeling it as one exhibit, and 10 allow the witness an opportunity to review them before 11 I question him. 12 THE ARBITRATOR: Okay. This will be 13 Union 16. 14 And let's go off the record just for one 15 second. 16 (Pause in proceedings.) 17 THE ARBITRATOR: For identification only at 18 this time, this is Union Exhibit 16, made up of five 19 pages, and I've numbered, from the first, pages 1 20 through 5. So in case there's a need to argue later, 21 you can refer to it. 22 (The aforementioned document was 23 marked as Union Exhibit 16 by the 24 Arbitrator for identification only.) 25 BY MS. MINER: R O U G H D R A F T O N L Y 27 1 Q Okay. I'm going to refer you to the 2 first page that has the date 4-19-01. 3 A Okay. 4 Q Okay. And who first passed this 5 proposal? 6 A I believe CASE did. As a matter of fact, 7 it says "Union Proposal," so yes. 8 Q What was the reaction by the State to 9 this proposal? 10 A I guess they initially probably said, 11 "We'll get back to you on that," and they weren't very 12 receptive of it. It was a cost item, and any cost 13 items, they're not very receptive to. 14 Q And let's go to the next page, and it's 15 dated 5-25-01. 16 Was there any changes -- how did we get 17 from April 19th to May 25th? 18 A We may have -- -- I don't think -- I 19 don't have any real recollection of whether or not the 20 State passed another proposal. In the beginning, we 21 may have -- in response to the first one, we may have 22 caucused and decided that perhaps this language was a 23 little bit easier to sell. 24 Q And let's go to the third page -- 25 A Right. R O U G H D R A F T O N L Y 28 1 Q -- dated June 23rd, '01. 2 A I'm not sure if this one was ever passed. 3 It was a draft. Oh, State. Oh, okay. This may well 4 have been a counter since it says "State Proposal." 5 Q And how does this counter different from 6 what the Union passed? 7 A It includes -- excludes everybody but the 8 AG's Office, the Attorney General's Office. 9 Q Okay. 10 A And it says "... while traveling or away 11 from the office on State business." 12 Q And then I'm going to the next one dated 13 September 10th of '01. 14 And can you tell me how this changed. 15 A Okay. This is -- this is the State 16 proposal. I'm not sure what happened between the last 17 one and this one, but this one includes -- this looks 18 like probably the current incarnation and essentially 19 includes the AG and Cal Trans. 20 Q And then I'm going to flip to the next 21 page. 22 And could you tell me what this marking 23 up here means next to 1-16-02. 24 A Okay. TA means tentative agreement. On 25 January 16th, '02, the parties agreed to this R O U G H D R A F T O N L Y 29 1 proposal. A TA means once they final -- if a final 2 contract is negotiated, this would be part of the 3 final contract. It's a TA, tentative agreement, 4 because if a final contract is not negotiated, then 5 it's not binding on the other side. 6 Also, theoretically, if we reach impasse 7 and the State unilaterally imposes their last, best 8 and final offer, this theoretically becomes part of 9 that. 10 Q Going back to the first State counnter 11 that only had the Attorney General's Office, why did 12 the team not accept that proposal? 13 A I believe it's because it didn't include 14 a significant portion of our unit that made 15 appearances on litigated cases that needed to have 16 cell phones to have authority -- to obtain authority. 17 THE ARBITRATOR: I'm sorry to interrupt, but 18 just once again, I want to make it clear. 19 This is what you told the State across 20 the table; this wasn't what you guys caucused? 21 THE WITNESS: Right. In other words, we 22 would caucus and decide where we wanted to go, and 23 then our chief negotiator would tell the State this is 24 what's going on, yes. 25 BY MS. MINER: R O U G H D R A F T O N L Y 30 1 Q Okay. And what was TA'd, is that what is 2 in the current contract? 3 A I believe it is. I have looked at this. 4 Q And is that a yes? 5 A Yeah. Give me one more second. Yes. 6 MR. MC INERNEY: Joint Exhibit 1 will tell us 7 whether or not that's the language in the contract, 8 rather than having him try to memorize both. 9 THE WITNESS: Joint Exhibit 1 being the MOU 10 itself? 11 MS. MINER: Yes. 12 THE WITNESS: Okay. 13 THE ARBITRATOR: Any objection to 16? 14 MR. MC INERNEY: No objection. 15 THE ARBITRATOR: Thank you. 16 It's received. 17 (The aforementioned document which was 18 previously marked Union Exhibit 16 19 was received into evidence by the 20 Arbitrator.) 21 MR. MC INERNEY: That's no objection with 22 respect to the typed language. I can't read the 23 handwriting on the first page. 24 MS. MINER: I can't read it either, and I 25 don't want to -- R O U G H D R A F T O N L Y 31 1 THE ARBITRATOR: It will be ignored. 2 BY MS. MINER: 3 Q What was your intent -- the Bargaining 4 Team's intent to put in the Department of Industrial 5 Relations? 6 THE ARBITRATOR: I just want to make it 7 clear. As expressed at the table to the employer. 8 BY MS. MINER: 9 Q As expressed at the table to the 10 employer. 11 A We wanted to cover all members of our 12 unit who needed cell phones -- who went to -- made 13 court appearances where they would need to obtain 14 authority. 15 Q And other than -- excuse me. Let me 16 rephrase that. 17 Who at DIR in Unit 2 has to be out of the 18 office a lot on business? 19 A Primarily, State Fund. We have -- we 20 have something called the OD/Legal, the Offices of the 21 Director/Legal. They -- they represent the Uninsured 22 Employers Fund in my court; so they need to get 23 authority. 24 Who else at DIR? I'm not sure if our 25 Deputy Labor Commissioners -- you know, they're out in R O U G H D R A F T O N L Y 32 1 the field; so yeah, they would probably -- cell phones 2 would probably be needed when they're out in the 3 field, perhaps, making appointments. You know, some 4 of them are engaged in inspecting job sites so -- you 5 know, make appointments to inspect job sites. They 6 would probably need it. 7 State Fund is -- by far is the second 8 biggest group within our unit, and they're the ones 9 who are, you know, litigating virtually every day. 10 Q And I'm going to show you Union 11 Exhibit 6, and I'm going to refer you to Labor Code 12 Section 56. 13 Are you familiar with that section? 14 A Yes. 15 Q And at the table, do you recall if this 16 was the Union's intent, to include these departments 17 within the Department of Industrial Relations within 18 12.4? 19 MR. MC INERNEY: Objection; irrelevant. 20 THE ARBITRATOR: Overruled. 21 But how about leading? 22 MR. MC INERNEY: Well, leading and the fact 23 that we're looking for the intent, not necessarily the 24 expressed intent. 25 THE ARBITRATOR: Now, as I understand it, the R O U G H D R A F T O N L Y 33 1 thrust of the question is: When you were at the 2 bargaining table and there was a discussion of Labor 3 Code Section 56, you folks told the employer team, 4 what, if anything? 5 THE WITNESS: I don't -- I can't honestly 6 recollect whether or not we specifically said Labor 7 Code -- you know, Labor Code Section 56 was 8 specifically expressed. 9 It was our intention to include all of 10 our Unit 2 members in DIR, and State Fund is part of 11 DIR; so it was our intention. Did we specifically say 12 to DPA's team, under Labor Code Section 56, the State 13 Fund attorneys are part of DIR, no, I have no 14 independent recollection as to whether or not we 15 specifically said that. It was our intent. You know, 16 I don't recall. That was several years ago. 17 BY MS. MINER: 18 Q And do you recall who was on the 19 Bargaining Team for CASE at the time? 20 A If I can refer to the signature page of 21 this, I can tell you. 22 Q Sure. 23 THE ARBITRATOR: Please. 24 THE WITNESS: Okay. Okay. Gary Messing, an 25 attorney from Caroll, Burdick, B-u-r-d-i-c-k, & R O U G H D R A F T O N L Y 34 1 McDonough, -D-o-n-o-u-g-h, was the chief negotiator. 2 MR. MC INERNEY: Objection. Are you reading 3 that, or are you using it to refresh your 4 recollection? 5 THE WITNESS: It's refreshing my 6 recollection, but I was reading it for the court 7 reporter's sake. 8 MR. MC INERNEY: Well, if you're going to 9 read it, the document speaks for itself. 10 THE WITNESS: Okay. 11 THE ARBITRATOR: So do I understand that the 12 folks who signed that were on the team? 13 THE WITNESS: Yes. Yes, sir. 14 THE ARBITRATOR: Let's go off the record. 15 (Discussion held off record.) 16 MS. MINER: I have no further questions. 17 THE ARBITRATOR: Do you need a couple 18 minutes, or are you ready to go? 19 MR. MC INERNEY: I'm ready. 20 THE ARBITRATOR: Excuse me. Let's take five. 21 (Recess taken.) 22 THE ARBITRATOR: Let's go back on the record. 23 And I'll ask if there's any cross? 24 MR. MC INERNEY: There is. 25 R O U G H D R A F T O N L Y 35 1 CROSS EXAMINATION 2 3 BY MR. MC INERNEY: 4 Q Mr. Goodman, let's begin with the last of 5 the -- of your testimony. 6 You indicated, as I understand it, that 7 the language "Department of Industrial Relations and 8 Social Services," in what eventually became 12.4(A) of 9 the new contract, that language was intended to 10 include SCIF? 11 A Yes. 12 Q And was there ever anything said at the 13 bargaining table that the CASE representatives 14 intended that language to include SCIF? 15 A I have no independent recollection. It 16 was our intent. Did we say, under Labor Code 17 Section 56, we include SCIF, I can't say we did; I 18 can't say we didn't. 19 Q Are you aware of any of the bargaining 20 notes maintained by CASE indicating that at the table, 21 there was any expression by any CASE representative 22 that the "Department of Industrial Relations" language 23 was supposed to include SCIF? 24 A I briefly looked through them over the 25 weekend -- they're about this thick (indicating) -- R O U G H D R A F T O N L Y 36 1 and I didn't -- I didn't specifically see anything one 2 way or the other. I may have missed something. I 3 didn't specifically see anything. 4 Q The most recent contract took place at -- 5 on what date? 6 A Okay. It covers the period July '01 to 7 July '03. It was signed off by the participants in 8 the negotiation, it looks like, March 5th, '02; and it 9 was subsequently submitted to our membership for 10 ratification, and I believe -- it was ratified in May, 11 I believe. 12 Q So May of '02? 13 A Yeah. Roughly, yeah. 14 Q So it's your understanding that as of 15 May '02 -- May '02, it was the CASE position that 16 under 12.4(A), all of the SCIF attorneys were supposed 17 to have cell phones made available to them? 18 A Right. Yes. 19 Q And as far as you know, were all of the 20 SCIF attorneys given cell phones in March [sic] '02? 21 A I -- I have no knowledge of that. 22 Q Were they all given cell phones by 23 March '03? 24 A I have no -- no idea. I have no idea. 25 Q Were they all given cell phones by R O U G H D R A F T O N L Y 37 1 March '04? 2 A Probably not. Probably not because I 3 think that's when those that had cell phones, I 4 believe, had them taken back. I don't know the exact 5 time lines. I wasn't directly involved in that. 6 So... 7 Q Since CASE was of the impression, as of 8 March '01 -- or March '02, that all of the SCIF 9 attorneys were entitled to cell phones, and for two 10 years after the contract was signed did not receive 11 cell phones, do you know why no action was taken to 12 inform management that they were in violation of the 13 contract? 14 A Okay. Number one, I don't know whether 15 or not they had them; number two, CASE would only know 16 if an attorney called the office or one of our labor 17 reps and said, you know, "I asked for a cell phone, 18 and they didn't give it to me." So I don't know the 19 time lines in that respect. 20 I have no idea when the attorneys were or 21 were not given cell phones and when CASE was made 22 aware of apparent violations in the MOU. 23 Q Aside from the statewide grievance that 24 was initially filed on February 18th, 2005, are you 25 aware of any communication from CASE to SCIF that SCIF R O U G H D R A F T O N L Y 38 1 was in violation of the terms of the contract under 2 12.4(A)? 3 A I'm not aware of any specifics, but that 4 doesn't mean there wasn't. To my own knowledge, no, I 5 don't know. I don't know of any of the specifics in 6 this regard. 7 Q Has CASE reached separate side agreements 8 with SCIF concerning its attorneys? 9 A In the current MOU, if I could look 10 through it to refresh my recollection? May I? 11 THE ARBITRATOR: Please. 12 THE WITNESS: The contract does have side 13 letters. I don't believe there are any specifically 14 for SCIF attorneys. 15 BY MR. MC INERNEY: 16 Q So aside from the contract, you're not 17 aware of any agreements that have been reached 18 specifically between CASE and SCIF? 19 A No, not to my personal knowledge. Again, 20 that doesn't mean there aren't any. But... 21 Q At the bargaining table that you were 22 sitting at, were there representatives -- separate 23 representatives from both SCIF and the Department of 24 Industrial Relations? 25 A Yes. R O U G H D R A F T O N L Y 39 1 Q Based upon your knowledge, what 2 administrative control does the Department of 3 Industrial Relations exert over the operations of 4 SCIF? 5 A I believe it's minimal. I believe it's 6 minimal. The -- SCIF is -- is under the umbrella of 7 DIR; they run themselves like a quasi private 8 insurance company. 9 Q To the best of your knowledge, does the 10 Department of Industrial Relations establish hiring as 11 a hiring authority for SCIF? 12 A They're not, but let me -- in response to 13 your prior question, I believe the director of DIR is 14 on the SCIF board, or somebody from DIR, one or more 15 people from DIR are on the SCIF governing board. 16 Q But the SCIF governing board is 17 independent of the Department of Industrial Relations 18 in terms of making operational decisions for SCIF; 19 correct? 20 A I believe so. I don't specifically know. 21 I believe so. 22 Q Aside from some representative from the 23 Department of Industrial Relations sitting on the 24 board of SCIF, are you aware of any other aspect in 25 which the Department of Industrial Relations controls R O U G H D R A F T O N L Y 40 1 the administration of SCIF? 2 A Not specifically. Again, that doesn't 3 mean there isn't. Within my realm of knowledge, no. 4 Q Do you have any idea of how many 5 attorneys there are at SCIF? 6 A Around -- that are Unit 2 members, I'm 7 going to say around 200, plus or minus 20. I know 8 they've done a lot of hiring lately; so it may be far 9 more. It's at least 200, maybe 300, maybe more. I 10 know they've done a lot of hiring; so I don't really 11 specifically know. But I do know that they are -- 12 traditionally, they are the second largest subgroup in 13 CASE. 14 Q And in terms of the number of SCIF 15 attorneys in the Department of Industrial Relations, 16 is it safe to say that they are the predominant 17 attorney factor compared to non-SCIF attorneys in the 18 Department of Industrial Relations? 19 A Oh, overwhelmingly, yes; many, many more 20 SCIF attorneys than DIR attorneys. 21 Q Was there any discussion at the 22 bargaining table why SCIF was not mentioned 23 specifically in 12.4(A) as opposed to using the 24 generic "Department of Industrial Relations"? 25 A I have no independent recollection of R O U G H D R A F T O N L Y 41 1 whether or not that discussion took place. 2 Q So there is nothing that you recall from 3 the management side of the table indicating that 4 management was aware that by using the phrase 5 "Department of Industrial Relations," they were now 6 adding cell phones for all of the SCIF attorneys? 7 A I -- I do recall that management didn't 8 say -- that the SCIF representative didn't say, "We 9 don't want this to include SCIF." I don't recall 10 management ever saying, "We don't want to include SCIF 11 in this." We said "DIR," and they were silent as 12 to -- as to whether or not it did. 13 Q And when you said, "We said 'DIR'" -- 14 A In our proposal, yes. 15 Q -- was there any further statement made 16 that the phrase "DIR" would include SCIF attorneys as 17 well as non-SCIF attorneys who worked directly for the 18 Department of Industrial Relations? 19 A I have no independent recollection of any 20 language; that it was said or that it wasn't said, I 21 don't specifically recall. 22 Q Are you aware of any information that 23 passed in either direction at the table that you 24 believe would have put management on notice that the 25 phrase "Department of Industrial Relations" in 12.4(A) R O U G H D R A F T O N L Y 42 1 included all of SCIF? 2 MS. MINER: Objection; asked and answered. 3 THE ARBITRATOR: Overruled. 4 I'll hear it again. 5 THE WITNESS: The proposal said "DIR." The 6 Labor Code says that SCIF is part of DIR. It's 7 self-evident; it speaks for itself. DIR includes 8 SCIF. 9 When we say DIR, we mean -- the WCAB is 10 part of DIR, and in the same Labor Code section that 11 talks about SCIF having its independent management, it 12 talks about the WCAB, I believe, having similar 13 independent management. If WCAB attorneys -- and 14 there are some -- needed cell phones, then that would 15 have been inclusive of them too. 16 MR. MC INERNEY: Okay. 17 THE WITNESS: I think it speaks for itself. 18 BY MR. MC INERNEY: 19 Q Aside from it speaking for itself, just 20 so we're clear, the words were never passed at the 21 table that DIR included SCIF? 22 A Not that I recall. I don't recall -- I 23 have no independent recollection as to whether it was 24 said or was not said. 25 Q And you're aware of no bargaining notes R O U G H D R A F T O N L Y 43 1 that would evidence that fact? 2 A Not that I saw when I briefly reviewed 3 the three-inch stack of bargaining notes. 4 Q On the new contract, there are separate 5 signature lines for the Department of Industrial 6 Relations and SCIF. 7 Do you know why each entity signed 8 separately? 9 A I assume because -- I can't say what was 10 in the State's mind. I assume because State Fund had 11 a representative, and DIR had their LRR; however, if 12 you look at the parties who signed for CASE, I signed 13 as being from DIR, even though I work for DWC. Mike 14 Villeneuve, who worked for DLSE, signed as being part 15 of DIR. 16 THE ARBITRATOR: Respectfully, sir, is your 17 answer "I don't know"? 18 THE WITNESS: I don't know. I have no 19 specific knowledge. 20 BY MR. MC INERNEY: 21 Q Are you aware, aside from 12.4(A), of any 22 other written materials -- well, aside from Labor 23 Code 56 and 12.4(A), are you aware of any other 24 written materials where the Department of Industrial 25 Relations and SCIF are used interchangeably? R O U G H D R A F T O N L Y 44 1 A Not to my knowledge, no. 2 Q In your administration of your courtroom 3 at the WCAB, do you put time limits on attorneys, in 4 order to gain the authority or to secure a settlement? 5 A I expect them to go call their client and 6 come right back. I have one -- I have a pending 7 matter of sanctions against a State Fund attorney who 8 I suggested go call his client and didn't come back 9 for several hours. 10 Yeah, they need to -- you know, we 11 have -- because of the way we're calendared, we have 12 several people who want to go to trial; we have 13 injured workers without benefits; and we have 14 insurance companies holding reserves on cases where 15 the injured worker shouldn't get benefits. So time is 16 of the essence. 17 THE ARBITRATOR: Excuse me. I'm confused. 18 THE WITNESS: Yeah. 19 THE ARBITRATOR: Question: Do you put time 20 limits on the attorneys? 21 Answer: Yes or no? 22 THE WITNESS: Specifically, no; within 23 reason, yes. I expect them to come back within a 24 reasonable period of time. 25 BY MR. MC INERNEY: R O U G H D R A F T O N L Y 45 1 Q And the Workers' Compensation Appeal 2 Board has never required attorneys appearing before it 3 to have cell phones at their disposal; correct? 4 A No, just have settlement authority there 5 or available by -- by phone. 6 Q So that as long as they have the ability 7 to get to a telephone, that satisfies the Workers' 8 Compensation rule; correct? 9 A Yes. 10 Q And Workers' Compensation has never made 11 cell phones a mandatory feature in practicing before 12 the Board? 13 A No. I don't think we could. 14 Q Now, from 1979 through 1993, you were 15 practicing Workers' Comp law without a cell phone; 16 correct? 17 A I started practicing Workers' Comp in '84 18 to '93. I was admitted in '79, and I did various -- I 19 didn't go to work for the State Fund until, I believe, 20 the latter part of '84. 21 So, no, cell phones were not -- you know, 22 not practical technology. At that point, they were 23 prohibitively expensive, and there were a lot more pay 24 phones available. Every board had plenty of pay 25 phones. Sometimes you had to stand in line, but that R O U G H D R A F T O N L Y 46 1 was -- that was the only solution. 2 Q Aside from the convenience factor, during 3 that period of time, would you say that you conducted 4 yourself competently as a Workers' Compensation 5 defense attorney or claimant's attorney without the 6 use of a cell phone? 7 A To the best of my ability. Sometimes I 8 was disadvantaged if there was a great deal on the 9 table and I couldn't get ahold of my client or my 10 client couldn't call me back to give me authority. 11 So, yeah, it was somewhat of a disadvantage. Cell 12 phones have made it easier to do this. 13 Q And do you think that caused you to 14 practice below the standard of care as a result of not 15 having a cell phone during that period of time? 16 A No. I practiced within the standard of 17 care applicable to those prehistoric times. 18 MR. MC INERNEY: Nothing further. 19 THE ARBITRATOR: Any redirect? 20 MS. MINER: Yes. 21 22 REDIRECT EXAMINATION 23 24 BY MS. MINER: 25 Q How has the work atmosphere changed in R O U G H D R A F T O N L Y 47 1 Workers' Comp since you first started until now? 2 MR. MC INERNEY: Objection; irrelevant. 3 THE ARBITRATOR: I'll hear it. 4 THE WITNESS: Well, you know, it's -- I think 5 the volume has increased. Every year, they seem to 6 try to reform it. It's very confusing. We have a 7 reform bill now that nobody knows what the heck is 8 going on. 9 Q How have things changed, from the time 10 that you first started Workers' Comp until now, for 11 people to get -- for defense attorneys to get ahold of 12 their clients? 13 A Virtually every defense attorney has a 14 cell phone. The important thing -- let's assume that 15 there were a million pay phones in the office and 16 everybody could walk to a pay phone and call their 17 client. How is their client going to call them back? 18 Are they going to stand by the pay phone, where you 19 probably can't get incoming calls anyhow because of 20 drug dealers, to get authority? 21 So it's a two-way thing. You don't 22 always -- you know, sometimes you'll call your client; 23 you'll get their voice mail; they'll be in a meeting, 24 or they'll have to contact their supervisor to get a 25 higher level of authority; so they need to get back to R O U G H D R A F T O N L Y 48 1 you. And unless you have a cell phone for them to 2 call you back, then you have to go to the pay phone 3 yet again and make a phone call. 4 Q In your opinion, of all the attorneys 5 that appear in front of you, would any one -- any one 6 attorney be at a disadvantage in conducting their 7 business if they do not have a cell phone? 8 A I believe they would be. 9 Q And why is that? 10 A Let me give you a for instance. Even if 11 you talked to your client, and you've gotten, you 12 know, some settlement authority or marching orders to 13 try a case, sometimes the -- you'll have an applicant 14 who is so desperate for money, he'll settle the case 15 for far less than its -- its value. 16 Well, if you can't get ahold of your 17 adjuster to get approval for that settlement, you may 18 be forced to go to trial on a case you could have 19 settled, and he may wind up getting a big findings and 20 award against you on a case that you could have gotten 21 dirt cheap because time was of the essence. 22 Q Have you ever sanctioned an attorney for 23 being unable to get ahold of their client? 24 A I have -- no, I personally have not; 25 however, there's -- one of my colleagues in Santa R O U G H D R A F T O N L Y 49 1 Monica sanctions attorneys right and left for showing 2 up without authority. 3 Q And why do you choose not -- or why do 4 you not sanction? 5 A Because it raises my blood pressure. I 6 mean, I've started some contempt and sanction 7 hearings, and essentially, you know, it raises my 8 blood pressure, and I just asoon take the easy way out 9 and, you know, admonish them; and, you know, usually 10 people won't do the same thing twice. 11 But again, there are some judges who -- 12 one of the best reasons for being a judge is, I don't 13 have to appear in front of these people because if you 14 don't show up prepared with authority or authority 15 immediately available, they're going to sanction you, 16 or they may even hold you in contempt; and even if 17 they don't hold you in contempt and do perhaps a 18 contempt hearing, you know, you don't look great to 19 your managing attorney when there's some judge who's 20 trying to hold you in contempt. 21 THE ARBITRATOR: Anything further? 22 MS. MINER: I'm formulating my question. 23 Just a moment. 24 (Pause in proceedings.) 25 BY MS. MINER: R O U G H D R A F T O N L Y 50 1 Q You stated in your prior testimony that 2 you work in a private building? 3 A Right. 4 Q Are there pay phones in that building? 5 A Yes, there are. There are five or six. 6 Q Of the attorneys that appear in front of 7 you, can you approximate how many attorneys use a pay 8 phone as opposed to a cell phone. 9 A Virtually none. Virtually none of them 10 use pay phones. The pay phones are almost always 11 empty, unless there's the occasional attorney in 12 there. 13 Q If those pay phones were taken out, how 14 would an attorney without a cell phone be able to 15 conduct their job? 16 MR. MC INERNEY: Objection; calls for 17 speculation. 18 THE ARBITRATOR: If you know. 19 THE WITNESS: They'd have to walk down the 20 street. There's one pay phone outside the building, 21 and I don't even know where the other ones -- if 22 there's any others around there. 23 BY MS. MINER: 24 Q In your capacity as a Bargaining Team 25 member, do you feel that it is a change in working R O U G H D R A F T O N L Y 51 1 conditions to have had the pay phones -- to not have 2 pay phones available for State Fund attorneys? 3 A When they were previously available? 4 Q Yes. 5 A Yes, certainly. 6 Q And why is that? 7 A Because if there is a pay phone in the 8 lobby of the WCAB office -- 9 THE ARBITRATOR: A little slower. 10 THE WITNESS: -- they have access to it; if 11 there's none, then they may have a hard time finding a 12 phone within -- to use to call for authority. 13 And in my office, there's just one pay 14 phone outside. I mean, there could be a line around 15 the block. There used to -- actually used to be, 16 when -- before cell phones, there used to be lines at 17 the pay phones. I believe at the Van Nuys WCAB, there 18 were lines. I understand there's no pay phones at the 19 Fresno WCAB anymore. 20 MS. MINER: No further questions. 21 THE ARBITRATOR: Any further cross? 22 MR. MC INERNEY: Just very briefly. 23 24 RECROSS EXAMINATION 25 R O U G H D R A F T O N L Y 52 1 BY MR. MC INERNEY: 2 Q With resepct to the language that went 3 into the final agreement, putting aside Section A, the 4 Department of Industrial Relations language, do we 5 agree that with respect to "other departments," in B, 6 providing cell phones is entirely discretionary? 7 A "At their discretion." Discretion means 8 discretion, yes. 9 Q Okay. And therefore, the B provision is 10 a discretionary provision; whereas, the A provision is 11 an obligatory provision; correct? 12 A A is mandatory. 13 Q Okay. Now, you had said you read through 14 the grievance package that we've marked as Joint 2 in 15 the original grievance; is that correct? 16 A Yes. 17 Q And did you see anything in there 18 indicating that the Department had a mandatory 19 obligation to provide cell phones under 12.4(A)? 20 MS. MINER: It's in the Statement of Facts. 21 THE ARBITRATOR: Let's let the witness 22 testify. 23 BY MR. MC INERNEY: 24 Q I'll give you a hint. Go to the second 25 paragraph from the bottom, because that's where the R O U G H D R A F T O N L Y 53 1 next question is coming. 2 A Okay. I'm looking at that. "The Unit 2 3 MOU provides that departments may at their discretion 4 make cell phones available." 5 Q Is that true for SCIF? 6 A The way I read the MOU, for SCIF, under 7 Paragraph A, it's mandatory. 8 Q So this assertion in the grievance that 9 the departments may at their discretion make cell 10 phones available, it's your opinion that doesn't apply 11 to SCIF? 12 A I had no part in drafting this grievance. 13 I don't think I'm qualified to interpret what the 14 import or weight of this paragraph means; so I don't 15 think I can answer your question. 16 Q How is the decision made at CASE whether 17 to pursue a particular grievance? 18 A Normally, the executive director and the 19 labor reps will bring it to the Executive Committee, 20 and the Executive Committee will vote on whether or 21 not to pursue the grievance. 22 Q Are you on the Executive Committee? 23 A Yes, I am. 24 Q Were you involved when this grievance was 25 approved? R O U G H D R A F T O N L Y 54 1 A I probably was. I wasn't involved in -- 2 I probably was involved in the approval. I wasn't 3 involved in the drafting of it. 4 Q Are you aware if anybody read them before 5 they approved them? 6 A We may or may not have. Normally -- 7 normally, we have a once-a-week conference call and, 8 you know, agree that you have the authority to file a 9 grievance on behalf of State -- or against State Fund 10 or against this or that. That would be on the agenda. 11 This was drafted by Raquel Silva. Apparently -- she's 12 now our executive director. At that time, I believe 13 she was a labor rep. 14 Q And the language indicating that the 15 Unit 2 MOU is discretionary with respect to SCIF, that 16 didn't jump out at anybody? 17 A Not to my knowledge. You know, I don't 18 even recall if I -- if I read the grievance statement. 19 The idea is, based on custom and practice, the staff 20 would have asked for authority to file a grievance, 21 and we would have either voted it up or down and 22 relied upon their professional expertise for the 23 specifics. 24 Q And your position is, based upon your 25 memory of what wasn't said at the bargaining table, R O U G H D R A F T O N L Y 55 1 that the comment about discretionary is inaccurate? 2 A That's really hard to quantify. I mean, 3 it's an either/or; so I can't really answer, you know, 4 that in a valid way. 5 THE ARBITRATOR: Anything further? 6 MR. MC INERNEY: Nothing further. 7 THE ARBITRATOR: Anything further? 8 MS. MINER: One further question. 9 10 FURTHER REDIRECT EXAMINATION 11 12 BY MS. MINER: 13 Q On this document -- 14 THE ARBITRATOR: Can you tell us what "this" 15 is? 16 BY MS. MINER: 17 Q -- Joint Exhibit 2, the first -- it says 18 "Employee Contract Grievance." 19 A Uh-huh. Yes. 20 Q In the middle here under specific 21 articles that are alleged to be violated, what 22 sections are listed? 23 MR. MC INERNEY: The document speaks for 24 itself. 25 THE ARBITRATOR: I agree. R O U G H D R A F T O N L Y 56 1 MS. MINER: Okay. No further questions. 2 THE ARBITRATOR: Anything further? 3 MR. MC INERNEY: Nothing further. 4 THE ARBITRATOR: I just have one or two, sir. 5 6 EXAMINATION 7 8 BY THE ARBITRATOR: 9 Q I'm a little confused with your 10 bargaining history testimony about Union Exhibit 16. 11 I'd like to clear it up so at least, in my mind, I 12 have an understanding. 13 I understood your testimony to be that 14 the inclusion of DIR in 12.4, in general -- these are 15 my words and maybe not yours exactly -- was a Union 16 proposal. 17 As I look at the documents before me, the 18 first appearance of DIR is on September 10, '01, and 19 it says "State Proposal." 20 So if you can recall, did anything happen 21 between June 23, when apparently the State agreed to a 22 proposal to make cell phones available to the AG's 23 Office under certain conditions, and about three 24 months later when it was expanded to Cal Trans, DIR 25 and Social Services? R O U G H D R A F T O N L Y 57 1 I guess my question is: Do you remember 2 if, in fact, it was the State that proposed this -- 3 the DIR inclusion -- or was it you folks? 4 A I'm wondering if there is something -- if 5 there was a Union proposal between the June 23, '01 6 and September 10th, '01 where they -- where we 7 countered to their proposal just to the AG's Office 8 and added -- it would be logical to me there would be 9 something in between June and September. 10 I don't know, if fact, there was, but it 11 would seem -- that's the only way I can see that we 12 would have gotten from just the Attorney General's 13 Office to all the -- to the enumerated departments, 14 because we started off saying any Unit 2 employee, and 15 then there was apparently a counter by the State 16 saying DOJ, the Attorney General, and then it went 17 back to the one, two -- four departments. 18 Q Let me see if I can put this in my bus 19 driver language. Do I understand your testimony to 20 be, separate and apart from these proposals, your best 21 recollection is that CASE proposed including DIR and 22 the other departments, separate and apart from AG? 23 A That must be the way it happened. I 24 can't see any other way it would have gone from the 25 June -- or when the State makes a proposal, the State R O U G H D R A F T O N L Y 58 1 doesn't make a proposal and then usually revise it. 2 I'm assuming -- and I don't have any 3 independent recollection without -- without something 4 to refresh it -- that between June and September, that 5 CASE probably made a counter including these 6 departments. 7 THE ARBITRATOR: Anything further for this 8 witness? 9 MS. MINER: No. 10 THE ARBITRATOR: Thank you very much for your 11 testimony. You're excused. 12 Let's go off the record and take five. 13 (Recess taken.) 14 15 WILLIAM LANDSIEDEL, 16 HAVING FIRST BEEN DULY SWORN, WAS 17 EXAMINED AND TESTIFIED AS FOLLOWS: 18 19 THE ARBITRATOR: Let's go back on the record 20 and show the next witness has been called and sworn. 21 And for the record, sir, would you please 22 give us your full name, spelling your last name. 23 THE WITNESS: William Landsiedel, L-a-n-d-s-, 24 as in Sam, -i-e-d-, as in David, -e-l. 25 THE ARBITRATOR: And your position, if any -- R O U G H D R A F T O N L Y 59 1 THE WITNESS: Assistant Chief Counsel. 2 THE ARBITRATOR: -- with State Fund? 3 THE WITNESS: With State Compensation 4 Insurance Fund. 5 THE ARBITRATOR: Your witness. 6 7 DIRECT EXAMINATION 8 9 BY MS. MINER: 10 Q How long have you been in the 11 classification of Assistant Chief Counsel? 12 A Good question. About eight years. 13 Q How many? 14 A About eight. 15 Q And who do you report to? 16 A I report to the chief counsel. 17 Q And who does the chief counsel report to? 18 A Chief counsel reports to the executive 19 vice-president in charge of legal. 20 Q Who do you supervise? 21 A I have a fairly large span of control. 22 I'm responsible for being a secondary supervisor, in 23 essence, for the Santa Ana Legal Department, the Long 24 Beach Legal Department, the South Orange Legal 25 Department, the San Bernardino Legal Department, the R O U G H D R A F T O N L Y 60 1 Riverside Legal Department and the San Luis Obispo 2 Legal Department. 3 Q At any time, have you been the supervisor 4 or assistant chief counsel assigned to the Fresno 5 office? 6 A Yes. 7 Q And when was that? 8 A I don't remember the period. 9 Q And how long was that period for? 10 A It was not a long period. I can't tell 11 you. I really don't recall. It may have been six 12 months or a year. 13 Q Where do you physically have an office 14 at? 15 A In Santa Ana. 16 Q Do you have offices anywhere else? 17 A For myself? 18 Q Yes. 19 A No. 20 Q How long have you worked for State 21 Compensation Insurance Fund? 22 A 26 years. 23 Q How long have you worked for the State? 24 A 26 years. 25 Q Any other classifications during your R O U G H D R A F T O N L Y 61 1 tenure of State service? 2 A Well, I started as a Staff Counsel A, and 3 I worked my way up through the classifications. 4 Q Have you worked in any other departments 5 for the State? 6 A Other than legal? 7 Q Other than SCIF. 8 A No. 9 Q Okay. Where did you work prior to 10 working for the State? 11 A Briefly worked for a private law firm. 12 Q And what firm was that? 13 A The Law Office of Emanuel Gyler. 14 Q Do you recall what year that was? 15 A No. 16 Q What year did you become an attorney? 17 A '78, I believe. 18 Q And how long have you been in the 19 Workers' Compensation field? 20 A Ever since I began with State Fund, which 21 was about April of '79. 22 Q Had you been made aware that there were 23 pay phones that were taken out of the State buildings 24 where the Workers' Compensation Appeals Board -- 25 Boards are housed? R O U G H D R A F T O N L Y 62 1 A That's a tough question to answer that, 2 as asked. Back whenever I was in charge of the Fresno 3 office, somebody at some point made me aware that some 4 of the phones had been taken out of some of the WCABs. 5 That's my recollection. 6 Q But you don't recall who told you that? 7 A Don't recall. 8 Q Do you recall if SCIF was notified at all 9 of the removal of the phones? 10 A I have no idea. 11 Q Did you do anything, in your supervisory 12 capacity, to lessen the effect on your attorneys of 13 the removal? 14 A I had nothing to do with the removal. 15 Q But my question is: Did you have any 16 understanding of the difficulty that your attorneys 17 had in conducting business because of those -- that 18 removal? 19 A I was told about that. 20 Q Did you do anything regarding the 21 difficulty for your attorneys to conduct their job at 22 the WCAB? 23 A The attorneys have always had calling 24 cards which they can use, and I suggested they use 25 their calling cards whenever they could. R O U G H D R A F T O N L Y 63 1 Q And how were they expected to use their 2 calling cards without a pay phone? 3 A Well, they had several choices. They 4 could go to the nearest pay phone, or they could use a 5 cell phone, that was their own cell phone, and seek 6 reimbursement. 7 Q Here in Fresno, do you know how far away 8 the nearest pay phone is from the WCAB? 9 A No, I don't. 10 Q After you found out that the pay phones 11 were removed from the Fresno WCAB, had you addressed 12 this issue at all with your colleagues, the other 13 assistant chief counsel or the chief counsel? 14 A It was discussed. 15 Q And do you recall when that was 16 discussed? 17 A No. 18 Q Was there any discussion at the annual -- 19 the SCIF annual conference that year? 20 A Between who? 21 Q Between you and your colleagues or the 22 chief counsel -- 23 A I don't recall. 24 Q -- and/or the chief -- 25 Okay. How did you become aware of the R O U G H D R A F T O N L Y 64 1 cell phones being made available to the SCIF attorneys 2 in Fresno? 3 A I don't specifically recall, to be honest 4 with you. Someone made me aware of it, but I don't 5 know who the person was. I don't want to, you know, 6 guess. So... 7 Q Okay. What was your response to finding 8 out that there were cell phones made available to the 9 attorneys? 10 A Well, I think at some point, Bill Jordan 11 and I had a conversation about it, and he informed me 12 of the program that he had set up here. 13 Q Okay. And can you describe that program 14 at all, if you recall. 15 A I don't recall much about it. Somehow 16 they had gotten some old cell phones and used prepaid 17 minutes to use them. It was something like that. 18 Q Okay. I'm going to show you Union 19 Exhibit 5, and it's a series of e-mails. 20 If we could go off the record and give 21 the witness an opportunity to review them. 22 THE ARBITRATOR: Off the record. 23 (Pause in proceedings.) 24 BY MS. MINER: 25 Q The first question I'm going to ask you R O U G H D R A F T O N L Y 65 1 is in regards to the March 29th, '04, 1:52 p.m. 2 e-mail. And it states there that the project needed 3 to be terminated. 4 Do you recall telling Mr. Jordan that? 5 A To terminate the project? 6 Q Yes. 7 A Oh, yes. 8 Q And why is that? 9 A It was in violation of what the 10 management wanted for State Fund attorneys. 11 Q You refer to something about an 12 "agreement with executive." 13 Is that a written agreement? 14 A There's no executive agreement, that I'm 15 aware of. 16 Q Okay. In -- just a moment. 17 (Pause in proceedings.) 18 BY MS. MINER: 19 Q In the e-mail chain, on March 29th at 20 10:42 a.m., you stated that there is a -- "This 21 program is in violation of legal management policy." 22 Again, is that a written policy? 23 A No. 24 Q Describe what that policy is. 25 A We told the attorneys we cannot provide R O U G H D R A F T O N L Y 66 1 cell phones. 2 Q And why is that? 3 A I don't know. 4 Q Do you know who does know? 5 A You'd probably need to talk to somebody 6 on the Executive Committee or the Board of Directors. 7 Q Do you know if there is one particular 8 person who has that authority to grant cell phones or 9 discuss the legal management policy you referred to? 10 A You need to talk to the Board of 11 Directors or the Executive Committee. That's all I 12 can tell you. 13 Q Did you ever inquire from Mr. Jordan how 14 the project was working? 15 A Yes. 16 Q And what were his comments? 17 A He was highly in favor of doing it. 18 Q Did you inquire from him the details of 19 the project? 20 A We discussed the details, yes. 21 Q And do you recall what those details 22 were, if you recall? 23 A The best I can tell you is, they that had 24 found some -- they had gone around to somewhere -- I 25 think it was Business Services and to Claims -- and R O U G H D R A F T O N L Y 67 1 they had gotten some old cell phones. Again, this is 2 best of my recollection. I could be wrong on this. 3 They had bought some prepaid minutes -- I 4 don't know how that was accomplished -- and I believe 5 he had submitted 594s to get reimbursed for these 6 prepaid minutes. It was something to that -- that was 7 the nature of it. 8 Q Do you recall having to sign off on any 9 reimbursement forms for prepaid minutes? 10 A I don't recall ever signing off of it. I 11 don't recall being told about it until I found out 12 about it. 13 Q Had you ever spoken to the attorneys in 14 the Fresno office about the project and the cell 15 phones that were available? 16 A I don't recall if I had a specif 17 conversation with any individual or not. I may have, 18 but I don't recall. 19 Q Had you notified CASE of your decision to 20 terminate the project? 21 A No. 22 Q Are you aware if anyone at SCIF notified 23 CASE of the change? 24 A I don't think so. 25 Q Do you have a cell phone that SCIF pays R O U G H D R A F T O N L Y 68 1 for? 2 A I do. 3 Q Do you use the reimbursement procedure? 4 A I have a company-issued cell phone. 5 THE ARBITRATOR: When you say "company," you 6 mean SCIF? 7 THE WITNESS: SCIF. 8 THE ARBITRATOR: Thank you. 9 BY MS. MINER: 10 Q Have you ever had to use the Cellular 11 Reimbursement Rates Procedure? 12 A No. 13 Q Are you familiar with the procedure at 14 all? 15 A You know, I've read through it, and I'm 16 sure you've read through it. It's exceedingly 17 complex, and I know it exists, and I know it's 18 complex. And I know some of the vague details, but 19 that's it. 20 Q I'm going to show you Union Exhibit 1, 21 and I'll just give you a moment to review it. 22 A Yeah, I've looked at this many times. I 23 still don't understand it now, to be honest with you. 24 I could read it all day and wouldn't understand it. 25 Q Do you ever have to sign any R O U G H D R A F T O N L Y 69 1 reimbursement forms based on this procedure? 2 A Yes, I probably do, but, you know what, I 3 may not. Let me just -- since we're being casual 4 here, there's a form process for reimbursement. 5 Things don't come to me at my level unless it's over a 6 certain amount. So I may not sign those. Somebody 7 else would sign those, but I know they're signed by 8 somebody. 9 Q I want to ask you some further questions 10 about Union 5, the top part of the e-mail chain 11 regarding the 3:08 p.m. e-mail that you sent out. 12 Do you recall why you sent that e-mail 13 out? 14 A Why I sent it out? 15 Q Yes. 16 A I'll go back and read it again really 17 quick. 18 Oh, yes. I'm not sure who I was talking 19 to here. Yeah, there was an inquiry from the staff, 20 and there was a controversy about whether they should 21 have cell phones or not. And I know the staff felt 22 that their feelings were ruffled that they didn't have 23 the cell phones, and I was trying to, in my own way, 24 explain to them that, you know, there was a 25 possibility up there of a way to work through this R O U G H D R A F T O N L Y 70 1 without having to -- you know, I don't know how to 2 explain that, but I was trying to give them some ideas 3 as to what they might be able to do. 4 Q Do you know how much your attorneys make 5 who are rank-and-file attorneys? 6 A I have a vague idea, but I couldn't -- it 7 varies. 8 Q Okay. Do you think that 10 or $20 is too 9 much money for some people to pay out? 10 A No. 11 Q Do you pay student loans? 12 A Do I pay student loans? I have. I 13 worked as a staff counsel aide and paid student loans, 14 absolutely. 15 Q Do you know how much the attorneys who 16 you supervise pay out in student loans. 17 A Some of them have horrendous student 18 loans. 19 Q Do you know how much private attorneys 20 make in the Workers' Compensation field these days? 21 A I have a pretty good idea. 22 Q Do you know how much that is, on average? 23 A Well, it varies widely. 24 Q A starting attorney? 25 A Really low sometimes, all the way up to R O U G H D R A F T O N L Y 71 1 really high; less than State Fund in some cases, more 2 in others. 3 Q I'm going to refer you to the comment 4 about "... we gave up the cell phone issue ..." for 5 more attorneys. 6 Do you recall that? 7 A Well, that's probably a misstatement. 8 Q Okay. And I am going to show you Union 9 Exhibit 11 in just one moment. 10 Take a moment to review that. 11 A (Witness complies.) 12 Well, I sort of made a misstatement in 13 that memo, and then I retracted it. 14 Q So are you stating that Union Exhibit 11 15 was a retraction of the statements in the Union 16 Exhibit 5, specifically the 3:08 p.m. e-mail? 17 A Not all of the statements. 18 Q Okay. The statements in regards to what? 19 A Giving up positions for cell phones. 20 That actually never happened. 21 Q Okay. Could you describe for me what you 22 consider to be an investment in your career? 23 A Yes. I believe that every attorney, 24 every professional, has an obligation to invest a 25 certain amount of their own money in their career. R O U G H D R A F T O N L Y 72 1 As an example, when I was a young 2 attorney, I would buy books that were not paid for by 3 State Fund. I would go to courses. In some cases, 4 some were paid for by State Fund, and some were not. 5 And I always have believed, as a personal 6 philosophy -- this is my philosophy, not State 7 Fund's -- ome that you need to invest some money in 8 your career, and that's a part of being a 9 professional. A professional should do that. That's 10 what I was trying to say. 11 Q When was the last time you appeared at a 12 Workers' Comp Board? 13 A It's been a couple years ago, at least. 14 Q Was that as a trial attorney conducting a 15 trial or a Mandatory Settlement Conference? 16 A I don't recall. 17 Q Okay. 18 A It was a hearing. 19 Q When was the last time you had a 20 caseload? 21 A Actual caseload? Well, it depends on how 22 you define a caseload. 23 Q Okay. Cases that you had to personally 24 manage. 25 A Well, when I was an attorney in charge, I R O U G H D R A F T O N L Y 73 1 still managed some cases. So it might have been -- 2 you know, there was even cases that I handled when I 3 was the assistant chief. It's really hard to say. A 4 caseload -- a regular caseload, not since I left being 5 an at-line attorney, but I've always handled some 6 things. 7 Q What boards did you appear at when you 8 were -- before you became a supervisory attorney? 9 A I did Federal and State Workers' 10 Compensation. I appeared in long shore cases at the 11 Department of Labor all over the State. I appeared 12 all over the State, virtually most boards, because I 13 was a long shore attorney at one time. So I would go 14 to State boards and Federal boards; so I've been to 15 most of the southern boards and some of the northern 16 boards. 17 Q Have you ever had to use a personal cell 18 phone for State Fund business? 19 A No. 20 Q When were you issued your SCIF phone? 21 A When I became Assistant Chief Counsel. 22 Q And I'm sorry. How long ago was that? 23 A Again, five to eight years. I don't 24 recall. Somewhere back there. 25 Q Do you know if any of the attorneys that R O U G H D R A F T O N L Y 74 1 you supervise are having problems with seeking 2 reimbursement for their cell phones? 3 A I have never been told that anybody has a 4 problem seeking reimbursement. 5 Q Do you know if any of the attorneys took 6 your suggestion and purchased their own cell phone for 7 State Fund business? 8 A Not to my knowledge. 9 Q When you used to practice at the Board, 10 what was the practice for SCIF attorneys in order to 11 get ahold of, say, a client, a lien claimant or 12 someone else while they were at the Board? 13 A Go to the pay phone. 14 Q Did people used to seek reimbursement for 15 putting money into the pay phone? 16 A You don't have to. We've always had an 17 AT&T card for using the cell phone -- or the pay 18 phones. 19 Q Are you aware of any of the current 20 practice among private defense attorneys on how they 21 get ahold of their clients when they're at the WCAB? 22 A Oh, sure. Candidly, most of them have 23 cell phones. 24 Q Did you ever have to go to another 25 building to use the pay phone when you used to appear R O U G H D R A F T O N L Y 75 1 before the Board? 2 A I did. 3 Q Do you recall what boards those were that 4 you were at? 5 A No, not at all. 6 Q Do you recall how far you had to work -- 7 or walk -- excuse me -- to go to those pay phones? 8 A I went to the nearest phone. I don't 9 recall. 10 Q Have you ever had a problem finding a pay 11 phone when you used to appear? 12 A No. 13 Q How often do you meet with the 14 rank-and-file attorneys that you supervise? 15 THE ARBITRATOR: I'm a little confused. 16 Each one individually or in groups? 17 MS. MINER: In groups. 18 Q Well, do you meet with anyone on an 19 individual basis? 20 A You know, it's a very hard question to 21 answer. I meet with the attorneys in charge. I'll 22 meet with people here and there. The only time 23 there's a formal meeting between -- it's not even a 24 formal meeting. We have an annual training seminar 25 where I see some of -- we have about 550 attorneys, R O U G H D R A F T O N L Y 76 1 you understand. 2 Q Right. 3 A I supervise about 150. I don't meet with 4 individual people that often. It's not because I 5 don't want to. It's a volume issue. 6 Q Do you ever go around to the various 7 offices that you supervise to meet with the attorneys 8 in charge and the rank-and-file attorneys? 9 A Sure. Absolutely. 10 Q Okay. Are you able to do that on a 11 regular basis? 12 A Yes, I would say so. 13 Q Would you say it's an annual basis, a 14 quarterly basis? 15 A It depends on the office. The ones that 16 are in the building that I'm sitting in, I'm in daily, 17 my outer lying offices would be quarterly maybe. 18 Q And whenever you go to these meetings, 19 what is the format of the meeting? Is it a set 20 agenda? Is it an open forum? 21 A Well, you're assuming it's more formal. 22 Generally, we're having lunch or goofing around 23 together. We're all friends, you know, mostly. 24 Q I'm going to show you Union Exhibit 2. 25 This is Title 8 of the California Code of Regulations, R O U G H D R A F T O N L Y 77 1 and that's Section 10563. 2 Are you familiar with this code? 3 A You know, I've read this, so yes, I am 4 vaguely familiar with it. 5 Q Would you say that it's SCIF's 6 responsibility, when their attorneys go to the WCAB, 7 to be able to get ahold of their clients? 8 A Oh, of course, yes. 9 Q Okay. Are you aware of any problems that 10 your attorneys that you supervise have with getting 11 ahold of their clients? 12 A No. 13 Q To the best of your knowledge, do you 14 know if SCIF's adjusters are trained in this code 15 section? 16 A I don't have personal knowledge. I don't 17 want to say I do, but I've got to assume they know it, 18 but I don't have personal knowledge. 19 Q And then I'm going to refer you to 20 Union 6. And this is the Labor Code section regarding 21 the Department of Industrial Relations. 22 A Uh-huh. 23 Q And I'm going to refer you to Labor Code 24 Section 56. 25 A Five-six? R O U G H D R A F T O N L Y 78 1 Q Yes. 2 THE ARBITRATOR: Page 3. 3 MS. MINER: Take a moment to review it. 4 (Witness complies.) 5 THE WITNESS: Okay. I've read it. 6 BY MS. MINER: 7 Q What department does State Fund belong to 8 in State government? 9 A Well, under that reading, they are looped 10 together historically as part of the Department of 11 Industrial Relations under that section. 12 MS. MINER: I have no further questions right 13 now. 14 THE ARBITRATOR: Let's go off the record. 15 (Discussion held off record.) 16 THE ARBITRATOR: We'll have cross. 17 18 CROSS EXAMINATION 19 20 BY MR. MC INERNEY: 21 Q Mr. Landsiedel, were you involved in any 22 studies conducted at the direction of SCIF concerning 23 the use of cell phones by SCIF attorneys? 24 A Yes, I have been involved. 25 Q More than one study? R O U G H D R A F T O N L Y 79 1 A On two different occasions, I've done 2 formal studies. 3 Q Do you know approximately when those 4 studies were done? 5 A Well, the first one was done at the time 6 of the Los Angeles reorganization, approximately eight 7 years ago, and then there was a subsequent study. I'm 8 really foggy on when that was done, but it was maybe 9 four years or so later. 10 Q In the course of that study, what sort of 11 protocol did you go through to determine the 12 feasibility of using cell phones for SCIF attorneys? 13 A In the first study, I was asked to look 14 at the issue as part of the organization -- the 15 reorganization of the Los Angeles basin. And this was 16 about eight years ago. So at that time, there were 17 some series issues about the efficacy of using a cell 18 phone in some areas. They worked well in the central 19 city where there are many cells or pods or whatever 20 they use. They didn't work as well in outlying areas. 21 So part of the study had to do with 22 whether it could be used throughout the State and in 23 more rural areas as opposed to in cities. And part of 24 it had to do with the cost benefit analysis with 25 respect to whether it would be a cost effective thing R O U G H D R A F T O N L Y 80 1 to do and so on. 2 Q With respect to the second study, what 3 was the protocol there? 4 A The cost benefit analysis? 5 Q Yes. 6 A To find out what it would cost for State 7 Fund to implement the program. 8 Q You indicated earlier, in response to a 9 question, a certain number of attorneys at SCIF? 10 A About 550 total at this time. 11 Q With respect to the studies that you 12 conducted in both instances, did you reach any 13 conclusion as to the necessity of a SCIF attorney 14 having access to a cell phone? 15 A Well, we concluded that it wasn't 16 necessary. It would be a nice thing if they had it. 17 It certainly is something that is -- it would be 18 beneficial if you had it. It would be a nice thing to 19 have. I consider it a luxury, personally. You know, 20 what can I say? It's like so many things. 21 Q And subsequent to those studies, did you 22 advance to the SCIF Executive Committee the proposal 23 about giving cell phones to the SCIF attorneys? 24 A I did. On two occasions, I recommended 25 that they have cell phones be given to the attorneys. R O U G H D R A F T O N L Y 81 1 Q And what was the decision by the 2 Executive Committee? 3 A Well, I'm not sure, by the way, it was 4 the Executive Committee in isolation; but the 5 management decision, at whatever level, was no, they 6 didn't want to do it. 7 Q And do you recall the last time that 8 management expressed its intent not to issue cell 9 phones for the SCIF attorneys? 10 A I do. 11 Q When was that? 12 A Probably about in the last year or so, I 13 had a conversation with the then-chief counsel, Rich 14 Krimen, who made it fairly clear to me that it wasn't 15 going to be happening at this time. 16 Q Did Mr. Krimen ever say anything to you 17 about how SCIF had agreed at the last round of 18 contract negotiations to provide phones for all the 19 SCIF attorneys? 20 A My understanding is, SCIF has never 21 agreed. In fact, the contract says it may agree, if 22 it wishes to. That's what the Union contract says. 23 And I also understand, the Union did not 24 negotiate with State Fund with respect -- or didn't 25 effectively negotiate, but it didn't happen, at any R O U G H D R A F T O N L Y 82 1 rate. 2 Q Are you aware of any agreements between 3 SCIF and its attorneys, independent of the Department 4 of Industrial Relations or any other entity? 5 A There have been collective bargaining 6 agreements between State Fund as a separate entity. 7 It is a public enterprise body, which is totally 8 separate from DIR. Yes, there's been a couple 9 different agreements. 10 Q Do you recall offhand what any of the 11 subject matter of those agreements have been? 12 A Oh, a recent agreement was on the number 13 of specialists we would have at the State Fund; 14 another one had to do with contracting out. 15 Q And as far as you're aware, those 16 agreements were made between the Union and SCIF, 17 independent of the Department of Industrial Relations? 18 A That's my understanding. It would have 19 to be because of the nature of the agreements. 20 Q Over all of the various offices that you 21 supervise -- I'm not quite sure how San Luis Obispo 22 got in there, but are you aware of any SCIF attorney 23 who has indicated that they have not received 24 reimbursement when they have used their personal cell 25 phone for SCIF purposes and requested reimbursement as R O U G H D R A F T O N L Y 83 1 a result? 2 A I'm not aware of anybody who has not been 3 reimbursed. 4 Q With respect to the need to contact a 5 client when a SCIF attorney goes to the Board, is that 6 something that always occurs on the day and the 7 morning of the hearing, or is the communication 8 something that is supposed to be occurring prior to 9 their arrival at the Board? 10 A Well, the competent and prepared 11 attorneys always prepare prior to going to the Board, 12 and they get their authority prior to going to the 13 Board. 14 It's our policy at State Fund that the 15 attorneys and adjusters communicate. And part of the 16 job responsibility of an attorney is to communicate 17 with that adjuster, to review the file and to get 18 authority before they go to the Board. 19 Having said that, it's not impossible 20 that somebody at the Board would want to call an 21 adjuster. It's possible they would. But most of the 22 time, that doesn't happen. It can happen, and it's 23 possible, but generally speaking, your authority is in 24 place before you go, if you're competent. 25 Q With respect to all the attorneys that R O U G H D R A F T O N L Y 84 1 you manage, have you received any indication that any 2 attorneys have been unable to perform their job as a 3 SCIF attorney as a result of not having access to a 4 SCIF cell phone? 5 A No. That's just not the case. I 6 practiced Workers' Comp 20 years at the Board. I 7 never had a cell phone at the time I practiced. You 8 know, it would be nice to have it. I support it. 9 It's a luxury. If it was up to me, they'd have it, 10 but they don't need it. It's not a need. It's a 11 want. I'm sorry, but that's the way it is. 12 MR. MC INERNEY: Nothing further. 13 THE ARBITRATOR: Any redirect? 14 MS. MINER: Yes. 15 16 REDIRECT EXAMINATION 17 18 BY MS. MINER: 19 Q Are you aware of any of the attorneys 20 that you supervise who have been sanctioned or held in 21 contempt for not having settlement authority? 22 A Could be possible. I'm not aware of it. 23 Q I'm going to show you Union 7 and 24 Union 8. This is something that Mr. Jordan spoke of 25 yesterday. R O U G H D R A F T O N L Y 85 1 Can you take a moment to take a look at 2 these two documents. 3 A (Witness complies.) 4 THE ARBITRATOR: Let's go off the record. 5 (Pause in proceedings.) 6 THE WITNESS: I've seen this before, at some 7 point. 8 BY MS. MINER: 9 Q Did Mr. Jordan make you aware of this 10 situation that he encountered with one of his 11 attorneys? 12 A He did. 13 Q Okay. And can you describe what he told 14 you about this situation. 15 A Basically, the letter sort of speaks for 16 what his position was. I don't really know how to 17 answer that. 18 Q You do not recall any of your attorneys 19 that you supervised -- you personally being made aware 20 that someone was held in contempt or sanctioned for 21 not having authority? 22 A You know what, let's be honest. I think 23 this was a manufactured situation by Mr. Jordan. I 24 don't think it was a real situation. 25 Q Okay. So you're saying that he told R O U G H D R A F T O N L Y 86 1 somebody to go down to the Board without authority? 2 A No. But I think he used it as a 3 platform. And, you know, I don't know what to say 4 about it. It was very frustrating when I saw it, and 5 I thought, okay. I got it. 6 Q Do you know if any other rank-and-file 7 attorneys -- SCIF attorneys in the State are being 8 sanctioned because they're having a difficult time 9 getting ahold of an adjuster? 10 A How could that be? They all know where 11 the phones are. They can all make phone calls. If 12 they're down there and getting sanctioned, you've got 13 to look at each case on a case-by-case basis as to why 14 they're being sanctioned. 15 I'm unaware of anybody being sanctioned 16 for not having a cell phone, if that's what you're 17 trying to drive at. 18 Q Okay. 19 A They can always use a public phone. 20 Q Do you supervise the attorneys who appear 21 at the Santa Monica Board? 22 A No. 23 Q Do you feel that your SCIF phone is a 24 necessity or a luxury? 25 A It's a luxury. R O U G H D R A F T O N L Y 87 1 Q Do you know why you were given a cell 2 phone by SCIF? 3 A Management, for my purposes, wants us to 4 be in contact a lot. 5 Q With who? 6 A Management. 7 Q Okay. Do you give that cell phone out to 8 any of your AICs or any other rank-and-file attorney, 9 in case they need to get ahold of you? 10 A I never even turn it on. I don't like 11 cell phones. It's just personal, nothing to do with 12 this or anything else. I personally don't care for 13 it, but I keep it for emergency. 14 Q Now, you said that you've been an 15 attorney for 26 years; is that correct? 16 A That's correct. 17 Q You stated that you do not understand 18 this State Fund Cellular Reimbursement Rates 19 Procedure, which we have at Union 1; correct? 20 A I've never paid attention to it because I 21 don't use it. It's very complex. If you're going to 22 go ahead and seek reimbursement, you need to read it 23 carefully and then seek reimbursement. I've never had 24 to do that; so I don't want to bother studying it. 25 Q Okay. Now, you've stated that it's R O U G H D R A F T O N L Y 88 1 rather complex. And you -- with 26 years being an 2 attorney, you can understand why a new attorney may 3 find that a document such as this is difficult to -- 4 A No, I cannot. Any competent attorney, 5 who's got enough smarts to pass the California Bar, 6 can read that and file for reimbursement. I mean, get 7 real. No offense but, come on, they're attorneys. 8 It's a two-page letter. 9 Q Do you know if SCIF directs a person who 10 sits at the Unit 2 bargaining table on anything -- on 11 what SCIF wants as far as bargaining is concerned with 12 Unit 2? 13 A I have nothing to do with that. I'm 14 sorry. 15 Q Do you know how much authority the 16 rank-and-file attorneys have before they go to the 17 Board? Like, is there a set amount prior to going to 18 the Board, or does it depend on the individual 19 situation? 20 A The attorneys have no authority. 21 Q Okay. 22 A The adjusters have authority. 23 Q Okay. 24 A So if the attorney wants authority, 25 they've got to contact the adjuster, which is what I R O U G H D R A F T O N L Y 89 1 had done when I was practicing law, discuss the case, 2 preferably meet in person with the adjuster; if it's 3 not possible, discuss it and get the authority. 4 And part of your preparation for any 5 hearing is to have authority. Even when I went to a 6 depo, I had authority. 7 THE ARBITRATOR: A little slower, please. 8 THE WITNESS: I'm sorry. 9 Part of the preparation for any hearing 10 is to get authority. Even when I went to a depo, I 11 had authority. 12 BY MS. MINER: 13 Q When you used to appear before any of the 14 WCABs -- 15 A A good number of them. 16 Q -- did you ever show up the day of an MSC 17 or the day of trial, and the facts or something 18 changed that made you need to go call the adjuster or 19 a lien claimant? 20 A Sure. 21 Q Okay. Was that fairly routine? 22 A No, but it happened. 23 Q Okay. Do you know if it happens to the 24 rank-and-file attorneys who you represent? 25 A I'm sure it has. R O U G H D R A F T O N L Y 90 1 Q Do you know how often? 2 A No. I mean, I can't speculate as to how 3 often. Now and then, things change. You go down to 4 the Board; there's a hearing; a new medical comes in; 5 a new witness pops up, and you need to make a phone 6 call. It happens. 7 Q Isn't it true that at one time, SCIF 8 attorneys used to have their own settlement authority 9 prior to going to the WCAB? 10 A Some did; not all. 11 Q How did they gain that authority? 12 A By delegation from the manager -- or the 13 district manager or through the attorney in charge or 14 the assistant chief counsel. 15 Q And did they have to be an attorney with 16 so many years of experience before they got that kind 17 of settlement authority? 18 A That varied from office to office. 19 Q Okay. Was there ever a set amount, a 20 high amount that they had authority to settle prior to 21 going to the WCAB? 22 A Are you asking was there a limit? 23 Q Yes. 24 A Yes. Absolutely. 25 Q And do you recall what that limit was? R O U G H D R A F T O N L Y 91 1 A It varied from individual to individual. 2 THE ARBITRATOR: Anything further? 3 MS. MINER: I don't have anything further. 4 THE ARBITRATOR: Further cross, if any? 5 MR. MC INERNEY: Nothing further. 6 THE ARBITRATOR: I just have one or two, sir, 7 that I'm confused on. 8 THE WITNESS: Okay. 9 10 EXAMINATION 11 12 BY THE ARBITRATOR: 13 Q Now, when you were put on notice that 14 DaSilva -- 15 A Fred, yeah. 16 Q -- had created this arrangement that's 17 been preferred to as a, quote, "pilot program," 18 unquote, and then apparently Bill Jordan picked it up, 19 when you were put on notice of that, you had it 20 terminated; correct? 21 A Well, I tried to have it terminated. 22 Q Now, here's my question: If you can 23 recall, were you acting on your own authority or -- 24 I'm sorry it's going to be a compound question. They 25 can object -- were you acting on your own authority, R O U G H D R A F T O N L Y 92 1 or the authority as you understood it from discussing 2 matters with Krimen and/or others on the Executive, or 3 three, a directive from your superiors? 4 A A little of two and three. I was acting 5 pursuant to having discussed the matter with the chief 6 counsel. I didn't do anything until I discussed it. 7 So I was acting on -- not on an individual idea that I 8 thought, well, I would do this. Obviously, I talked 9 it over before I ever went to them and said, you know, 10 "Do we need to do something?" The answer was yes, and 11 so we decided to terminate whatever this was -- 12 project. 13 THE ARBITRATOR: Thank you. 14 Anything further for this witness? 15 MR. MC INERNEY: Nothing further. 16 MS. MINER: No. 17 THE ARBITRATOR: Thank you very much for your 18 testimony, sir. You're excused. 19 We're going to break the hearing at this 20 time. We will reconvene most likely in Sacramento on 21 Wednesday, October 12, unless the arbitrator, one, 22 survives his hip surgery coming up; and two, can find 23 an earlier date for the parties. 24 Everybody agree? 25 MS. MINER: Agreed. R O U G H D R A F T O N L Y 93 1 MR. MC INERNEY: Agreed. 2 THE ARBITRATOR: Nice to work with you all. 3 Have a good day. 4 And we are off the record. 5 (At the hour of 11:06 a.m., the 6 proceedings were adjourned.) 7 -O0O- 8 9 10 11 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 94