September 30, 2006

Many of you have received checks for 3 months payment as a result of your objection/challenge letter for the 2006/2007 objection period. UPTE owes you for nine more months, they can make monthly, quarterly or full payment in October. Just make sure you get a check and let me know the amount and check number. I like to keep records in case anyone is not paid or shortchanged.

UPTE has sent a letter to those receiving their checks. To some, this sounds ominous but you should treat it as the joke that it is. You have, according to this letter "forfeited membership benefits and rights". You do lose your right to vote for the beloved UPTE leaders, crowning the president and other UPTE officers. You do give up your right to a union credit card and other member benefits such as pet insurance (I'm not kidding, they actually offer it on their web site if you qualify). What you do not lose is your right to get any raises and benefits negotiated by UPTE under the contract.

There will be an arbitration hearing that UPTE is required to pay for. UPTE is required to prove that its allocations and calculations are correct. In other words, they are required to present what evidence and witnesses that they need to prove their case. On the other hand, you are not required to present any evidence, attend the hearing, hire an attorney or even lift a finger for this hearing. Incredibly, UPTE and its lawyers did not show up for the 2003-2004 hearing and suffered no legal consequences. The arbitrator was "very disturbed" that UPTE did not show up but she took the money she was paid for the hearing and got out of town.

I know a number of you have not been paid for the 2006-2007 objection period. Those who have quit the union and filed objection/challenge letters have not been paid as far as I know. I cannot force UPTE to pay you but there is a government agency that can do this. It is the state labor board known as PERB. You can file a complaint with them and ask that they provide justice. You can fill out a simple form and submit a copy of your objection/challenge letter along with proof that UPTE received your letter (I have these in my files). I have contacted all of those who have I have records for on September 30 to see if you have been paid what is due you. You can go on from there.

There are still four arbitration cases involving UPTE that have not yet been finalized. Some have been dragging on for years and the American Arbitration Association seems to be in no hurry to deliver justice.

The 2006/2007 challenge is in its preliminary stages. Close to 1,000 people will someday get a hearing. The wheels of justice will grind on.

The 2003/2004 challenge will soon enter its fourth year. UPTE has sent checks for about $500 to all challengers for that period in an attempt to avoid a hearing. Not surprising since their former accountant, Henry Levy, did not show up for the previous hearing. I doubt that UPTE can produce him voluntarily to testify and if this hearing is actually held, he probably won't show up even if he is subpoenaed.

The 2004/2005 challenge has not yet been finalized. According to my information, a few of the 400 plus people that wrote a challenge have not been paid the requisite $300 to $400. If you are one of the challengers who have not been paid, I would guess that one recourse would be to contact the arbitrator in this case via the case manager, Chris Carmardella. If UPTE has reneged on the settlement by not paying you, my guess is that you would be entitled to a hearing before the arbitrator.

The 2005/2006 challenge hearing date is set for November 8 and 9, 2006 in Oakland at the Oakland Airport Hilton. Arbitrator Norman Brand presiding. UPTE lawyers have asked that I be excluded from the hearing. How many lawyers does it take to exclude me from a hearing? Four ­ three to (fill in the blank) and one to (fill in the blank). It's a joke going around in arbitration circles. If you don't know the punch line, you're not in the loop.

UPTE paid me about $450 to exclude me from the hearing. Excluding only me with payment opens up a can of worms that could be fertile ground for all other challengers. UPTE avoided last years hearing by paying all the objectors/challengers (about 600 people). This year, they want to avoid a hearing by paying only one person (yours truly). One of my friends complained that they are discriminating against him by not also paying him, after all, he among with about 700 others is also a objector/challenger in this hearing. Read PERB Regulation 3571.1(b). If you feel that UPTE is discriminating against you by not paying you $450 like they did me, you can file a complaint, it's up to you.

We all have been invited by Arbitrator Brand via the case manager, Mr. Carmardella, to submit specific objections, questions or pre hearing statements prior to the 2005/2006 hearing. I've never been given an invitation to ask questions before a civil court hearing by a judge although it's nice of Mr. Carmardella to ask. I'll save my questions for the day of the hearing, after all, these questions should be a surprise in our adversarial system, why give a party an open invitation to prepare for the case?

I have plenty of questions for UPTE and its witnesses if they deign to show up. The accountant, Allen Monahan, who allegedly provided documentation of expenses for the hearing, apparently does not work for UPTE anymore. Maybe he cannot show his face at the hearing, same as their prior accountant.

I've asked a lot of questions over the years in the arbitration hearings. I also intend to present a number of documents that I feel would be relevant to this case for the 2005 hearing that is to be held at 10 AM on November 8 and 9, 2006 at the Oakland Airport Hilton. UPTE Hudson notices from 2000 thru 2005, UPTE Newsletters for 2004 and UPTE tax returns where expenses differ from Hudson reports. You can present any or all of these documents and include anything else that you feel that would bolster your case, that's up to you.

This hearing will be held in Oakland at the Oakland Airport Hilton at 10 A.M., room number not provided by AAA. Apparently you are expected to knock on every door of the hotel until you find the hearing room. This affords challengers from the Bay area and even Davis the opportunity see how justice is dispensed in arbitration.

The truth is that UPTE cannot use your money for certain expenses. Your objection/challenge letter forces them and their accountant to justify their representation of what they can charge you for. Can they charge you for political expenditures such as attacks on the governor? No. Can they charge you for supporting strikes by other unions? No. Can they charge you for lobbying the legislature asking them to pass laws that favor them? No.

If they do charge you for these things, what can you do? You can object and challenge them at every turn. Not just in Arbitration where rules and procedures need not necessarily conform according to rules of law and evidence. Arbitration can be, well, arbitrary. Arbitrators can pick and choose precedents that they want to follow. Accept uncorroborated evidence. If an Arbitrator wants to rule for the union, there is always some precedent they can hang their hat on.

The state labor board (PERB) is a shade better, they have to conform to the rule of law but they still can interpret the law as they see it. So far, I have not yet had to resort to the next level to get a measure of justice. But I can and will if need be, you should be prepared to do the same. The objectors/challengers for 2004/2005 received about $160,000 from UPTE without paying a penny for legal representation.

You are essentially on your own, all I can do is to enlighten you. In the words of the Allman Brothers band:

"I ain't no saint, sure as hell ain't no savior

Every other Christmas I would practice good behavior

That was then, this is now

Don't ask me to be Mr. Clean cause baby I don't know how."

Werner