Union 1506 Transcript

Case 2:08-cv-02105-SRB Document 62 Filed 06/02/09 Page 1 of 61
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Adobe Drywall, LLC, an Arizona )

limited liability company, )
)
Plaintiff, )
)
vs. ) NO. CIV 08-2105 PHX-SRB
)
United Brotherhood of Carpenters ) Phoenix, Arizona
and Joiners of America, Local ) May 28, 2009
Union No. 1506, et al., ) 9:05 a.m.
)
Defendants. )
)
REPORTER'S TRANSCRIPT OF PROCEEDINGS
(Continued Preliminary Injunction Hearing)
BEFORE THE HONORABLE SUSAN R. BOLTON
Court Reporter: Merilyn A. Sanchez, CRR

Sandra Day O'Connor U.S. Courthouse
401 W. Washington Street SPC-37
Phoenix, Arizona 85003-2118
(602) 322-7250
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription
2
A P P E A R A N C E S
For the Plaintiff: Rick K. Carter, Esq.

Jim Y. Wong, Esq.
Craig Y. Fujii, Esq.
Wong Fujii Carter, P.C.
3003 N. Central Avenue, Suite 1000
Phoenix, Arizona 85012
For the Defendants: Daniel M. Shanley, Esq.

Kathleen M. Jorgenson, Esq.
DeCarlo Connor Shanley, P.C.
533 S. Fremont Avenue, 9th Floor
Los Angeles, California 90071
3
1 I N D E X
2 WITNESS: DIRECT CROSS REDIRECT RECROSS VD
3 THOMAS HARRINGTON
By Ms. Jorgenson 8
4 By Mr. Carter 20
5 JOSE MIRELES
By Ms. Jorgenson 26
6 By Mr. Carter 35
7 JEFF PERDUE
By Ms. Jorgenson 39
8 By Mr. Carter 50
By Ms. Jorgenson 59
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1 P R O C E E D I N G S
3 THE COURT: This is the continuation of the
4 preliminary injunction hearing. And defendants may call their
5 next witness. 09:05:19
6 MS. JORGENSON: Your Honor, if we may first,
7 defendants would like to address the issue of another exhibit.
8 Pursuant to the Court's instructions, defendants have pulled
9 out of the nine volumes of exhibits 100 examples of employees
10 that defendants contend, and that's it -- yes, Your Honor, 09:05:36
11 100-J. And I would like to note, these are examples, not an
12 exhaustive representation of employees that the payroll reports
13 of employees that defendants --
14 THE COURT: What am I supposed to make of these? I
15 mean, there's no explanation of them. And without a witness 09:05:57
16 explaining these to me, they are relatively useless to me
17 because I don't have an explanation. Is one going to be
18 provided by a witness?
19 MS. JORGENSON: Your Honor, witnesses have spoken
20 about some of these records. The remainder of the records 09:06:17
21 defendants intend to explain in the brief with specific
22 references to the page numbers.
23 The payroll records have been explained by the
24 witnesses in terms of what they represent generally. But in
25 terms of an exhaustive employee-by-employee explanation of what 09:06:32

5
1 is represented here --
2 THE COURT: And how many different employees' records
3 are here?
4 MS. JORGENSON: Your Honor, I believe there are
5 approximately 65 employees in that exhibit. 09:06:46
6 THE COURT: And why do I need to look at 65 employees'
7 records?
8 MS. JORGENSON: Well, Your Honor, we wanted to pull a
9 representative sample. In particular, the employees in that
10 exhibit were not making area standards either because they were 09:07:03
11 not progressing, and this is our argument.
12 But to address the Court's question, these employees
13 were not progressing through the wage rates, or --
14 THE COURT: Okay, here's what I'm going to do.
15 Because this is still many more records than I -- I mean, I'm 09:07:20
16 not going to summarize these records, but I will permit you to
17 do that.
18 MS. JORGENSON: Okay.
19 THE COURT: So I am rejecting -- once again, I would
20 note that while Exhibit J all is contained in one volume of a 09:07:36
21 three-inch black binder, while it contains apparently 65
22 records of employees, it is not 65 pages. I don't know how
23 many pages it is, but I would estimate it is approximately 200
24 pages of payroll records. It appears to me that each record on
25 each page is for multiple pay periods. Just looking at one 09:08:15
6
1 page, 67 at random, there are five, what appear to me to be
2 five payroll records. So if I multiply five per page by number
3 of pages here, which is probably over 200, that's more than a
4 thousand records. Nobody's done the math on them.
5 So you may summarize them for me. You may present an 09:08:49
6 exhibit that summarize after -- after the hearing today, that
7 summarizes what it is that you're trying to convey with these
8 records. Because I don't think that it's my responsibility to
9 perform whatever calculation it is that you think needs to be
10 performed so that I could determine what it is that you claim 09:09:11
11 these records show. Because in looking at them, I would have
12 to, with a calculator, go through and try to do that type of
13 summary. And I believe that is the responsibilities of the
14 parties to prepare summaries of voluminous records for the fact
15 finder, who in this case happens to be me. 09:09:36
16 You would never present this information to a jury and
17 expect them to decipher what it is. And I'm not going to do
18 that either.
19 So, you may prepare a summary if you would like.
20 MS. JORGENSON: Okay, yes, Your Honor. And just to 09:09:51
21 address the Court's concern with the volume of that, those were
22 the form that they were produced -- in which they are produced
23 by the plaintiffs. And so that each employees' payroll records
24 are more than one page and that's the reason that we produced
25 them in that format. 09:10:12

7
1 But just so I'm clear about the Court's instructions,
2 this exhibit is not being admitted into evidence, but we are,
3 in lieu of this exhibit, to produce a summary is that --
4 THE COURT: If you want me to consider -- I'll keep
5 Exhibit 100-J. But I am telling you now that I would only look 09:10:29
6 at it if there were some assertion that your summary was
7 inaccurate.
8 Under the rules for the admission of summaries,
9 summaries of voluminous records are to be admitted as long as
10 the underlying records can be checked for accuracy. But I am 09:10:52
11 telling you that in the exact -- in the absence of such a
12 summary, that I will not use Exhibit 100-J for any purpose,
13 because I don't believe that it is appropriate to expect me to
14 do the work to show whatever it is that the defendants intend
15 to show through these records, since whatever it is that you 09:11:16
16 intend to show isn't in the record without additional work
17 being done on the record.
18 MS. JORGENSON: Exactly, Your Honor. And it wasn't
19 defendant's intent to just throw that before the Court and
20 expect the Court to review it. We were going to explain these 09:11:29
21 records in the brief. But if the Court's --
22 THE COURT: There's not going to be enough pages in
23 the brief to prepare a summary of these at least 1,000 payroll
24 records.
25 MS. JORGENSON: Okay, we will provide a separate 09:11:44

THOMAS HARRINGTON - DIRECT EXAMINATION BY MS. JORGENSON 8
1 summary. Thank you, Your Honor.
2 Defendants call Thomas Harrington.
3 THE COURT: Sir, I believe you were previously sworn
4 in this matter. You may take the stand.
5 THE WITNESS: Thank you. 09:12:27
6 Ms. Jorgenson, you may proceed.
7 MS. JORGENSON: Thank you, Your Honor.
9 THOMAS HARRINGTON,
10 called as a witness herein, having been previously duly sworn,
11 was examined and testified as follows:
12
13 DIRECT EXAMINATION
14 BY MS. JORGENSON
15 Q. Good morning, Mr. Harrington. 09:12:40
16 A. Good morning.
17 Q. Mr. Harrington, are you currently employed?
18 A. Yes, I am.
19 Q. By whom are you employed?
20 A. The Southwest Regional Council of Carpenters. 09:12:45
21 Q. And what is your --
22 THE COURT: I need to have you speak more closely into
23 the microphone.
24 THE WITNESS: Thank you.
25 BY MS. JORGENSON: 09:12:56

1 Q. Mr. Harrington, what is your position with the Southwest
2 Regional Council of Carpenters?
3 A. Special representative.
4 Q. And how long have you held that position?
5 A. It was nine years this past March. 09:13:03
6 Q. Mr. Harrington, have you participated in ambulatory
7 picketing against Adobe Drywall?
8 A. Yes, I have.
9 Q. And when have you done that?
10 A. The last time this year was back beginning in February, and 09:13:17
11 then I had done it in prior years, too.
12 Q. Prior to this February, when had you last done it?
13 A. Well, that would have started during 2004, 2005, that
14 period -- time period.
15 Q. And other than the ambulatory picketing in early February 09:13:39
16 of this year, have you participated in any other ambulatory
17 picketing against Adobe Drywall this year?
18 A. No.
19 Q. Please explain for us what the ambulatory picketing is that
20 you participated in. 09:13:57
21 A. Well, we will follow --
22 THE COURT: Do you want to have a specific date,
23 place, year?
24 MS. JORGENSON: Yes, thank you, Your Honor.

1 Q. Mr. Harrington, was it on or about February 3rd of this
2 year that you engaged --
3 A. Yes, it was.
4 Q. -- in such activity? Thank you.
5 And on this date, what specifically did you do? 09:14:18
6 A. Well, we -- we drove over to Adobe's office to the street
7 that leads into the cul-de-sac where they are at. And we
8 parked there. And then our supervisor would call and tell us
9 which vehicle to follow.
10 Q. Now, when you say "we drove over," who are you referring 09:14:41
11 to?
12 A. The entire staff participates in this.
13 Q. And --
14 THE COURT: Well, I'm talking about on February 3rd,
15 2009, who are the "we" that you are talking about, not by 09:14:52
16 entire staff, but by name.
17 THE WITNESS: Okay. Well, I was driving my car with a
18 representative Chuy Vi Ying. There was representative Daniel
19 Ton, and he had staff member Lorenzo with him. There would be
20 Jose Mireles, he would be driving a car. Jeff Perdue, Ed 09:15:18
21 Kaprisky, Johnny Herrera, Jerry Luson, Tom Dumat, Brad Howard.
22 So it's all -- it's all -- Your Honor, it's all the -- all the
23 staff here in Phoenix participates.
24 THE COURT: And so on that day, all the people that
25 you mentioned were waiting in separate cars to follow people as 09:15:46

1 they left Adobe Drywall?
2 THE WITNESS: Some -- we always have two staff in a
3 vehicle. And so one person would be driving and then another
4 staff member is a passenger.
5 THE COURT: So how many cars were there that day? 09:16:05
6 THE WITNESS: Probably -- probably -- and we go as
7 pairs, one -- we don't do just one car following. We have a
8 backup car as a witness. So I would say six to eight vehicles.
9 BY MS. JORGENSON:
10 Q. And so Mr. Harrington, these six to eight vehicles, were 09:16:32
11 they waiting outside of Adobe Drywall's main office?
12 A. Yes. On the road that leads down to their building.
13 Q. And you made reference to your supervisor being there. Is
14 that Alan Cahill?
15 A. Yes, it is. 09:16:46
16 Q. And would you explain again what Mr. Cahill was doing?
17 A. Well, he will observe the vehicles coming out of Adobe's
18 compound, their office. And then he will decide which one
19 would be followed. And he would call on our cell phone and
20 assign vehicles to follow, in particular, an Adobe vehicle. 09:17:04
21 Q. Mr. Harrington, do you have an understanding of the purpose
22 for following these vehicles?
23 A. Yes, I do.
24 Q. What is your understanding?
25 A. For us to do our ambulatory picketing. We do that so when 09:17:18

1 we do a public demonstration in front of a job site, Adobe has
2 to be on the job at the time working. And so we will follow
3 them to see which jobs they are working at that day.
4 Q. And if you follow them, if you follow an Adobe employee to
5 a job site, do you then begin picketing? 09:17:37
6 A. Well, when we get to the location, we will call our
7 supervisor and say they are at this particular location. And
8 everybody calls a supervisor so that he knows which jobs and
9 then he decides which one we will do a demonstration.
10 Q. So on or about February 3rd, when you engaged in this 09:17:54
11 ambulatory picketing, I believe you indicated you were in one
12 car with another representative?
13 A. Yes, I was.
14 Q. And there was another car driving with you; is that
15 correct? 09:18:09
16 A. Yes, there was.
17 Q. About -- and you -- did you follow any employees that day?
18 A. Yes, we did.
19 Q. How many employees did you follow?
20 A. It was one truck. 09:18:19
21 Q. And how many employees were in that truck?
22 A. One.
23 Q. And how many cars followed that truck with you?
24 A. Myself and then the second vehicle was with me.
25 Q. And approximately what time did you -- 09:18:32

1 THE COURT: So a total of four men in two cars?
2 THE WITNESS: Yes, Your Honor.
3 BY MS. JORGENSON
4 Q. Approximately what time did you begin following the truck?
5 A. Well, it was early morning. It was still dark, so it was 09:18:43
6 probably around 5:30, 6:00.
7 Q. And when you began following the truck, where did it go?
8 A. When it left Adobe's office, it drove north. It went to a
9 lumber yard on 7th Street.
10 Q. And I apologize if I asked you this already, but were you 09:19:05
11 driving your vehicle?
12 A. Yes, I was.
13 Q. And of the two vehicles following this truck, which vehicle
14 was closer to the truck?
15 A. That would be me. 09:19:15
16 Q. And so when the truck arrived at the lumber yard, what
17 happened?
18 A. Well, at that lumber yard, he pulled in between two
19 buildings, which takes you back to like their loading yard. So
20 he pulled in there. And I parked on the side street to the 09:19:28
21 north of the lumber yard. And my -- the backup vehicle parked
22 on the side street to the south of the lumber yard.
23 Q. And between the Adobe office and this lumber yard, did
24 you -- how closely did you follow the vehicle?
25 A. I stayed two or three car lengths behind. 09:19:52

1 Q. Were you speeding at any time between the facility and the
2 lumber yard?
3 A. No. No, not at all.
4 Q. Was the driver of the truck speeding?
5 A. No, he was driving carefully. 09:20:04
6 Q. And did the driver of the truck run any red lights?
7 A. Oh, no. No.
8 Q. Did you run any red lights?
9 A. No.
10 Q. Did you see the car behind you run any red lights? 09:20:14
11 A. No.
12 Q. And so you indicated that the truck parked at the -- at the
13 lumber yard. And did anything else happen at the lumber yard?
14 A. Well, while we were waiting, the driver came out the front
15 door of the lumber yard with a couple of other people who I 09:20:32
16 thought at the time they were probably like lumber yard
17 employees. And the driver first pointed, like across the
18 parking lot in my direction. Then he turned and pointed at the
19 other council's vehicle parked at the other side street. And
20 then they went back inside. And after a little while he drove 09:20:53
21 out in between the two buildings where he went in.
22 Q. At this point in time, had any words been exchanged between
23 you and the driver of this vehicle?
24 A. No.
25 Q. How about between any of the representatives there with you 09:21:05
1 and the --
2 A. No.
3 Q. -- driver of that vehicle?
4 A. No.
5 Q. And after leaving the lumber yard, where did the driver go? 09:21:11
6 A. Well, he went -- he turned south on 7th Street and stayed
7 on side roads. Then he got on I-10 westbound, went west. And
8 I believe he got off on 83rd Avenue, went south about a mile,
9 and then another mile west and went up 91st. And when he got
10 back up by the I-10, he pulled into like a gas station 09:21:41
11 convenience store.
12 Q. And during that time frame between the lumber yard and the
13 convenience store, how closely did you follow this truck?
14 A. Well, on the side streets, I would be, because we were
15 going like 30 miles per hour, I would have been several car 09:22:01
16 lengths behind him. And then on the interstate, I stayed
17 farther behind because we were driving at higher speeds, the
18 speed limit.
19 Q. Did you ever intentionally drive in the driver's blind
20 spot? 09:22:16
21 A. No.
22 Q. Was the driver speeding at any time between the lumber yard
23 and the --
24 A. No, he was driving slow and obeying all the traffic laws.
25 Q. And did you do so as well? 09:22:27

1 A. Yes.
2 Q. How about the other car that was with you, did that car
3 obey the traffic laws?
4 A. Yes, he was behind me and behind the Adobe truck.
5 Q. Did you witness the driver of this truck driving recklessly 09:22:39
6 at any time?
7 A. No. I don't remember him driving recklessly.
8 Q. Did you drive recklessly at any time?
9 A. No.
10 Q. Did the car behind you drive recklessly at any time that 09:22:49
11 you could see?
12 A. No.
13 Q. What happened after the car arrived at the convenience
14 store, the truck?
15 A. Well, he pulled up like right by the front doors of the 09:23:03
16 convenience store part of it. I parked off to one side of the
17 parking lot. And our other council vehicle parked over on the
18 other side of the parking lot. And he sat in his truck quite a
19 while. It looked like he was talking on his cell phone. After
20 a while he went in the store. He was in there for quite a 09:23:28
21 while. And then he came out, looked like he was eating and
22 drinking something, just was doing that for quite a long time.
23 And it was during that time that I got a call from the
24 supervisor that it was time to call off the ambulatory
25 picketing. And literally seconds after that call, the driver 09:23:53
1 started backing up from the convenience store and turned and
2 drove in front of me and he was waving at me like this. But we
3 had already gotten a call that, you know, we were through with
4 that for the day.
5 Q. Now, so the record is clear, when you're waving you're 09:24:17
6 waving your hand like this?
7 A. He was like come on, come on.
8 Q. I am --
9 THE COURT: I'm not sure, why do you refer to what you
10 were doing that day as ambulatory picketing? 09:24:30
11 THE WITNESS: I believe that's a legal definition.
12 It's what we refer to it when, again, when we do one of our
13 public demonstrations in front of a job site, Adobe has to be
14 on the job at the time, so we carry --
15 THE COURT: What you were doing that day was following 09:24:56
16 a car. Ambulatory sounds like walking to me. And picketing
17 sounds like carrying signs. But you just said you were told to
18 call off the ambulatory picketing for that day. I wanted to
19 know why you referred to what you were doing that morning as
20 ambulatory picketing. 09:25:14
21 THE WITNESS: Well, we carry --
22 THE COURT: Or what you call ambulatory -- what your
23 definition of ambulatory picketing is.
24 THE WITNESS: We carry -- I don't call it picketing,
25 because that's different than what the public demonstrations we 09:25:28

1 put on. But it is commonly referring to -- if anybody saw it,
2 they would say, well, they are picketing something. We carried
3 the picket signs in our trunk so that if need be, right when we
4 pulled up to the job where they are working, we can start the
5 picket line and then the other staff will come and join us on 09:25:50
6 that picket line.
7 THE COURT: So --
8 THE WITNESS: And to me ambulatory just means, you
9 know, we are moving and going to what will be the picket site.
10 THE COURT: So was your intention that day, if he went 09:26:09
11 to a job site, to then start picketing with the four of you?
12 THE WITNESS: Well, we can --
13 THE COURT: No, I want to know not what you can do,
14 but what was it that you were doing that day besides -- what
15 was -- what was your instruction that day besides follow this 09:26:26
16 truck?
17 THE WITNESS: Well, again, when we get to the job
18 site --
19 THE COURT: No. No. I want to know what you were
20 told to do on the morning of February 3rd. 09:26:42
21 THE WITNESS: Okay.
22 THE COURT: When Mr. Cahill communicated something to
23 you as this truck was leaving Adobe.
24 THE WITNESS: Yes. It's follow him to the job site
25 and then call Mr. Cahill and let him know where the job site 09:26:56
1 is.
2 THE COURT: Okay. Thank you.
3 THE WITNESS: You're welcome.
4 BY MS. JORGENSON:
5 Q. Mr. Harrington, this employee didn't actually arrive at a 09:27:03
6 job site, did he?
7 A. No, he didn't.
8 Q. Well, let me back up and finish up.
9 When you -- when you said at the convenience store
10 that the employee waved you on and drove out, did you follow 09:27:14
11 the employee?
12 A. No, he turned back south, when he left the parking area,
13 the gas station, he went back south on 91st Avenue. And I
14 turned the other way to go to the I-10 ramp to get on the I-10.
15 Q. And did the other union representatives in the other car 09:27:37
16 follow you?
17 A. Yes.
18 Q. Now, so this employee did not actually arrive at a job site
19 on the morning of February 3rd when you were following him; is
20 that right? 09:27:49
21 A. That's correct.
22 THE COURT: You don't know whether he did after that
23 though?
24 THE WITNESS: No, I'm just referring to the time that
25 I was following him. 09:27:54

THOMAS HARRINGTON - CROSS-EXAMINATION BY MR. CARTER 20
1 BY MS. JORGENSON:
2 Q. So why did you keep following him if he wasn't -- if he
3 didn't arrive at a job site?
4 A. Well, there are times when it takes somebody a long time to
5 get to a job. And so it's not uncommon to follow somebody. 09:28:07
6 Phoenix is a huge town. And so sometimes you follow somebody
7 for a long, long time before they finally do get to a job. And
8 then he spent an awful lot of time at the lumber yard and then
9 at that convenience store. And so we just stayed with him
10 thinking that he was going to a job out on the west side there 09:28:39
11 somewhere.
12 MS. JORGENSON: I have no further questions for this
13 witness.
14 THE COURT: Mr. Carter.
15 MR. CARTER: Thank you. 09:28:54
16
17 CROSS-EXAMINATION
18 BY MR. CARTER:
19 Q. Good morning, Mr. Harrington.
20 A. Good morning, sir. 09:28:58
21 Q. Let me see if I understand what you're saying. There are
22 typically, when you're following individuals such as you did on
23 the morning of February 3rd, there are two cars and two people
24 in each car?
25 A. That's correct, sir. 09:29:12

1 Q. But you also suggested that the purpose of following them
2 was to determine whether -- where Adobe's job sites are?
3 A. Yes.
4 Q. That was the primary focus, correct?
5 A. Yes. 09:29:26
6 Q. Okay. So if -- what is the purpose of the passenger in the
7 first vehicle?
8 A. Well, he will carry a small camera so that if anything
9 happened, he would be able to film it. He's there as a
10 witness. 09:29:42
11 Q. A witness to what?
12 A. In case anything happened.
13 Q. Like what?
14 THE COURT: Give us an example of what he is taking
15 pictures of when you've ridden with him before. 09:29:54
16 THE WITNESS: It wasn't an Adobe employee, but at
17 another time when I was following a vehicle, he pulled into a
18 parking lot, got out of his truck, opened up his tool box, and
19 pulled out a big drywall hatchet and was -- came running
20 towards my vehicle. And my passenger got out with the camera 09:30:14
21 and started filming. And then the guy stopped immediately.
22 BY MR. CARTER:
23 Q. So you've had incidents in the past where there's been
24 violent altercations?
25 MS. JORGENSON: Objection. 09:30:32

1 THE COURT: I wouldn't call that violence, I would
2 call that a potential threat of violence.
3 MR. CARTER: Yes, Your Honor, I agree.
4 BY MR. CARTER:
5 Q. Do you agree with that? 09:30:40
6 A. Yes, that was a threat of violence.
7 Q. So the passenger is there to document when there are such
8 instances?
9 A. Yes, as a witness.
10 Q. Okay. And then what is the purpose of the two individuals 09:30:48
11 in the second car?
12 A. Well, if for some reason, traffic or whatever, if I lost
13 track of the vehicle I was following, then the backup vehicle
14 would follow him.
15 Q. Okay. So same purpose, follow the vehicle, find the job 09:31:12
16 site, and a witness just in case there's a situation?
17 A. Yes, yes, sir.
18 THE COURT: I thought you said on direct examination
19 that the second car was a witness.
20 THE WITNESS: Well, they are behind me watching 09:31:26
21 everything. But if -- if we are on a busy road, he was driving
22 real slow. But there's times where in heavy traffic the
23 vehicle might change lanes and I wouldn't be able to change
24 lanes. And so the car that's behind me will then just follow
25 him. 09:31:52
1 BY MR. CARTER:
2 Q. You've been a special representative for nine years. Can
3 you tell me what the standard procedure is for advising
4 individuals that you are following prior to beginning the
5 surveillance? Do you -- in other words, is there a standard 09:32:17
6 procedure that you either advise them, hey, we need to follow
7 you, you know, don't be worried, we are from the carpenter's
8 union, or do you not advise them?
9 A. No, we don't talk to them beforehand.
10 Q. Why not? 09:32:34
11 A. That's not our procedure.
12 Q. Okay. But do you -- is there a reason to your knowledge
13 why that is in fact the procedure? Isn't it true that you
14 don't want them to know who you are so they will not avoid
15 going to the job site? 09:32:51
16 A. Oh, no, they -- they know who we were. We are not trying
17 to hide or be sneaky or anything.
18 Q. So in some way you communicate to these individuals that
19 you're from the carpenter's union and you will be following
20 them that day? 09:33:07
21 A. Well, we all drive Crown Vics and we've parked in front of
22 Adobe's office so many times, they know us as well as they know
23 anybody.
24 Q. So you're just assuming that because of the type of car you
25 drive and where you park, that they are going to know you're 09:33:18
1 from the carpenter's union and you are surveilling them that
2 day?
3 A. Yes.
4 Q. Do you give any consideration to the possibility while
5 you're surveilling these individuals, that they may not know 09:33:29
6 who you are? They may become scared, and they may react in
7 some way that might be dangerous?
8 MS. JORGENSON: Objection, relevance as to the
9 possibility of --
10 THE COURT: Sustained. 09:33:42
11 MR. CARTER: Okay.
12 BY MR. CARTER:
13 Q. You're on -- you have regular cell phone communication with
14 your supervisor, correct?
15 A. Yes. 09:33:50
16 Q. You described on this date, February 3rd, the gentleman
17 driving, if I understood your directions, in all sorts of
18 different directions with no apparent purpose.
19 A. Yeah, he wasn't -- to me it didn't seem like he was taking
20 a direct route when he -- he was -- he was going down the 10, I 09:34:09
21 thought he would be going to a job out on the west side. But
22 when he turned south on 83rd, went down about a mile, and then
23 came back up 91st, I thought perhaps he had just called the
24 police and he was just stalling, waiting for the police to show
25 up. 09:34:33
1 Q. Okay. And let's get back to the question I asked you
2 earlier. You just testified that you thought he might be
3 calling the police. Did that give you a concern that he may
4 not have known who you were?
5 A. No. 09:34:45
6 Q. What did you think his potentially calling the police was
7 signaling to you?
8 MS. JORGENSON: Objection, seeks speculation.
9 THE COURT: Overruled. I want to know what was in
10 your mind that caused you to think that maybe he was calling 09:34:56
11 the police?
12 THE WITNESS: That happens. A contractor will do
13 that, harass us to have the police stop us so that we can't
14 follow the -- the person to the job site.
15 BY MR. CARTER: 09:35:12
16 Q. Do you ever consider the possibility that the person might
17 think he's being followed by someone other than the carpenter's
18 union?
19 A. No.
20 Q. That never crosses your mind? 09:35:23
21 A. No.
22 MR. CARTER: Nothing further, Your Honor.
23 THE COURT: Any redirect?
24 MS. JORGENSON: No, Your Honor.
25 THE COURT: Thank you, Mr. Harrington. You may step 09:35:30
JOSE MIRELES - DIRECT EXAMINATION BY MS. JORGENSON 26
1 down.
2 THE WITNESS: Thank you.
3 THE COURT: Please call your next witness.
4 MS. JORGENSON: Thank you, Your Honor. The defendants
5 call Jose Mireles. 09:35:39
6 THE COURT: Good morning, sir, I'll remind you that
7 you've already been sworn in this matter.
8 You may proceed, Ms. Jorgenson.
10 Mr. Mireles, you may be seated. 09:36:22
11
12 JOSE MIRELES,
15
17 BY MS. JORGENSON:
18 Q. Mr. Mireles, are you currently employed?
19 A. Yes.
20 Q. By whom are you employed? 09:36:29
21 A. Southwest Regional Council of Carpenters.
22 Q. What is your position?
23 A. A special representative.
24 Q. And for how long have you held that position?
25 A. A little over nine years. 09:36:39

1 Q. Mr. Mireles, on or about the morning of February 3rd of
2 this year, did you follow any employees of Adobe Drywall?
3 A. Yes, I did.
4 Q. And what were you doing that for?
5 A. We do ambulatory picketing on Adobe. And we just follow 09:36:58
6 the employees.
7 Q. And on the morning of February 3rd of 2009, how many
8 employees did you follow?
9 A. One.
10 Q. And were you driving a car? 09:37:13
11 A. Yes. I was a driver.
12 Q. You were the driver. And was there anyone in the car with
13 you?
14 A. Yes.
15 Q. Who was in the car with you? 09:37:22
16 A. Harry Baggs, one of my partners.
17 Q. Another union representative?
18 A. Yes.
19 Q. Was any other car following this Adobe employee with you?
20 A. Yes. There was a second vehicle. 09:37:34
21 Q. And was that vehicle also driven by a union representative?
22 A. Yes.
23 Q. And was there anyone else in that vehicle?
24 A. Yes, there was another representative in the -- two
25 representatives per vehicle. 09:37:48

1 Q. The Adobe employee that you were following, was there just
2 one employee in that vehicle?
3 A. Yes.
4 Q. And from where did you begin following this employee?
5 A. From the Adobe office. 09:38:02
6 Q. And about what time did you begin following that employee?
7 A. I think it was around 5:30 in the morning when I start.
8 Q. And of the two union cars following this employee, which
9 one was closer?
10 A. Me. My vehicle, yeah. 09:38:19
11 Q. When you began following the employee, where did he or she
12 go?
13 A. He went north on I think the freeway, I-10, and went around
14 over there, 16th Street and Van Buren and make rounds over
15 there. 09:38:41
16 Q. Now, when you were following the employee, at this time on
17 the 10 and the other route, bits of the route that you just
18 described, how closely were you following the vehicle?
19 A. About a vehicle and a half. I give a space about two cars.
20 Car and a half. 09:38:58
21 Q. The other car that was following the vehicle, you said you
22 were closer?
23 A. Yes.
24 Q. Was the driver speeding at any time when you were following
25 him? 09:39:09
1 A. Yes. And right there by 16th Street, he tried to make one
2 light and he got caught for the red light. He had to stop, he
3 had no choices.
4 Q. So he didn't actually cross the red light?
5 A. No. 09:39:24
6 Q. Now, did you -- well, you were behind him, so you didn't
7 cross the red light either?
8 A. No.
9 Q. So you said the employee drove on the 10 and I think you
10 said 16th Street and then where did the employee go? 09:39:36
11 A. We followed him to like Tempe area, by the University.
12 Make rounds.
13 THE COURT: Let me go back a minute. You said he went
14 to 16th Street and Van Buren and made rounds.
15 THE WITNESS: Yeah. 09:39:51
16 THE COURT: I don't know what you mean by "made
17 rounds."
18 THE WITNESS: He tried drove around between the
19 streets, between 14th Street and 16th Street, Van Buren and
20 that area. 09:40:01
21 THE COURT: So he went through a neighborhood?
22 THE WITNESS: Yes.
23 THE COURT: And then where did he go after that?
24 THE WITNESS: He went to -- towards Tempe. And he did
25 the same thing, try to lose us over there by the streets. 09:40:09
1 THE COURT: So he went down 16th Street to Tempe.
2 THE WITNESS: No, he take Van Buren and we went all
3 the way out.
4 BY MS. JORGENSON:
5 Q. Had the employee made any stops at this point? 09:40:21
6 A. No, really, he just tries to lose us and keep going.
7 Q. Did the employee stop his vehicle at any time?
8 A. He stopped over there in Mesa in a parking lot over there.
9 And we just waiting with him over there.
10 Q. So the employee stopped his vehicle and what happened when 09:40:40
11 the employee stopped his vehicle?
12 A. He was on the phone for a while. And pretty soon, the
13 police officer show up over there. They come straight to me.
14 They asked me for my ID.
15 Q. And you -- did you give the police officer your ID? 09:40:53
16 A. I gave my ID.
17 Q. Did the police officer say anything to you?
18 A. He asked me straight A, what are you doing. And I said,
19 "I'm doing ambulatory picketing against Adobe company. He's
20 employed for Adobe." 09:41:10
21 Q. Did the police officer ask you what ambulatory picketing
22 was?
23 A. No.
24 Q. Did you explain any further for him what ambulatory
25 picketing was? 09:41:18

1 A. No, because as soon as he take my ID, he walked to the
2 Adobe employee.
3 Q. And how far away was the Adobe employee when the police
4 officer was talking to you?
5 A. Like from here to the wall. Over there. 09:41:29
6 Q. Could you hear what was being said between the police
7 officer and the employee?
8 A. No.
9 Q. And then what happened?
10 A. The police officer come back to me and hand my ID back. 09:41:37
11 And I explain what you guys doing and everything and you are
12 free to go.
13 Q. And did the police officer then leave?
14 A. No. That's when the Adobe vehicle left. We make a turn
15 over there in the parking lot and the police officer stayed 09:42:00
16 there, yeah.
17 Q. Were any words exchanged between you and the Adobe
18 employee?
19 A. That Adobe employer is --
20 THE COURT REPORTER: I didn't hear that, Your Honor. 09:42:09
21 THE COURT: I didn't hear it either.
23 Q. Could you repeat?
24 A. The Adobe employer, he says, "Hey, you waste your time. I
25 don't work today." 09:42:25

1 And I say, "Don't worry, I have all day."
2 Q. Now, when the employee told you that he wasn't working that
3 day, did you stop following him?
4 A. No.
5 Q. Why not? 09:42:36
6 A. I don't believe him.
7 Q. Why didn't you believe him?
8 A. Because in my experience in the nine years of working here,
9 you know, a lot of the employers, they lie.
10 Q. Meaning that they -- what do you mean, they lie? 09:42:51
11 A. Well, they lie, like on example, sometimes I told that
12 worker or they told with me, they told me they don't work that
13 day and pretty soon you checking more jobs and you find him at
14 another place, you know. And that is the reason I don't
15 believe him, because too many people lie. 09:43:09
16 Q. So after the employee said this and you responded how you
17 testified that you responded, then what happened?
18 A. He going east in the University. We ended up over there
19 by Apache Junction in a gas station.
20 Q. And between Mesa and the gas station, did the employee 09:43:29
21 drive recklessly?
22 A. No. No.
23 Q. Did you drive recklessly?
24 A. No.
25 Q. How closely were you driving to the car? 09:43:39

1 A. About two cars, you know.
2 Q. Did you ever intentionally drive in the employee's blind
3 spot?
4 A. No.
5 Q. Did you see the other union vehicle that was with you 09:43:52
6 driving recklessly at any time?
7 A. No.
8 Q. And were you still the closest car to the Adobe vehicle
9 between the stop in Mesa and the gas station?
10 A. Yes. 09:44:06
11 Q. So then when you arrived at this gas station, what
12 happened?
13 A. He went straight to the store and he buy something, I don't
14 know actually what he buy. You know, and he come back, fill up
15 his vehicle. And that's it. He left again. 09:44:20
16 Q. Were there any words exchanged between this employee and
17 you or any other representatives at the gas station?
18 A. No, not really, no. He just keep looking at us and tried
19 to say something. But we -- my partner, Harry Baggs, just told
20 him, "Hey, don't take personal." And that's it. 09:44:42
21 Q. Did the employee respond to that statement by Mr. Baggs?
22 A. No.
23 Q. So then what happened after the gas station?
24 A. We went north. As a matter of fact, I was thinking that we
25 go to Payson. We ended up by the Saguaro Lake over there. He 09:44:58

1 makes a U-turn. And he ended up going through the dirt road
2 right there.
3 Q. The dirt road?
4 A. Yes.
5 Q. And did you continue following him? 09:45:17
6 A. I follow him for like maybe 50 yards or so, you know. And
7 I notice shotgun shells right there. And I told my partner
8 Harry: Hey, Harry, I don't feel safe, maybe there's a shooting
9 range right here, I don't know. I make a U-turn. My partner,
10 the other vehicle that follow us, too, they do the same thing. 09:45:40
11 I call them on the radio. I told them: Hey, look, I saw this.
12 I don't feel good. We went back closer to the main road over
13 there and called my supervisor and let him know what happened.
14 Q. Now, when you say you saw shotgun shells, where did you see
15 shells? 09:46:00
16 A. In the flooring, you know, in the area next to the dirt
17 road in the --
18 Q. On the ground?
19 A. Yeah, on the north side.
20 Q. And did you -- did you see the employee stop his vehicle? 09:46:08
21 A. No. No. He keep going. And like I'm saying, make a
22 U-turn. And we don't see from there.
23 Q. Did you hear any gunshots?
24 A. No.
25 Q. Did you see the employee with a gun? 09:46:24

JOSE MIRELES - CROSS-EXAMINATION BY MR. CARTER 35
1 A. No.
2 Q. So you -- you went back and called your supervisor; is that
3 what you said?
4 A. Yes.
5 Q. And then what happened? 09:46:34
6 A. I report him what happened. And that I was instructed to
7 wait a little bit right there. We wait like 15, 20 minutes,
8 something like that. We don't saw him come back or nothing.
9 And we just give another call and we were instructed to leave
10 and we left from there. 09:46:54
11 Q. Did you follow any other Adobe employees that day?
12 A. No.
13 MS. JORGENSON: I have nothing further of this
14 witness.
15 THE COURT: Mr. Carter? 09:47:02
16
17 CROSS-EXAMINATION
18 BY MR. CARTER:
19 Q. Good morning.
20 A. Good morning. 09:47:09
21 Q. After this individual told you, as you testified, that he
22 wasn't working that day, did you really believe he was going to
23 lead you to an Adobe job site?
24 A. Yes.
25 Q. Why? 09:47:24
1 A. Why? Because I say in my experience, people lie to me a
2 few times. And I have a feeling that he's lying, you know.
3 And before I told the guys, I'm doing picketing, too. I leave.
4 After we leave, we find out later on they are on a job on that
5 same day. 09:47:51
6 Q. So do I understand you, irrespective of him telling you he
7 wasn't working that day, your intention was to follow him all
8 day?
9 A. I told him, yes, I have all day.
10 Q. Okay. And in order to go from Apache Junction to lower 09:48:02
11 Sycamore Creek, the dirt road, you have to go up the Beeline
12 for several miles, correct?
13 A. Yes.
14 Q. During your travel up the Beeline, did you call your
15 supervisor and say: Hey, he's going up the Beeline? 09:48:22
16 A. No.
17 Q. Why not?
18 A. Because I don't have to report that. I have to report
19 whether I find a job or not.
20 Q. So while you were driving several miles up the Beeline, you 09:48:35
21 thought he was potentially going to a job site?
22 A. Yes, he go towards Payson, somewhere else, you know. I
23 follow other vehicles, they go to Casa Grande, Maricopa,
24 Prescott, you know.
25 Q. I happen to live up in that area and in order to get into 09:48:52

1 Sycamore Creek, you have to turn off on the Bush Highway, don't
2 you?
3 A. Yes.
4 Q. So as he turned off on the Bush Highway from Highway 86,
5 did you still think he was potentially leading you to an Adobe 09:49:02
6 job site?
7 A. Yes.
8 Q. Why?
9 A. Because maybe he tried to lose me or something, you know,
10 he stop, and I go to the job, you know. 09:49:12
11 Q. And then from the Bush Highway, you have to turn onto a
12 dirt road, which is lower Sycamore Creek, correct?
13 A. I don't know that area.
14 Q. But you turned off to a dirt road --
15 A. Yes. 09:49:24
16 Q. -- from Bush Highway?
17 How far down the dirt road did you go?
18 A. About 50 yards.
19 Q. Okay. And that's when you radioed in or telephoned in for
20 instructions? 09:49:36
21 A. Yes.
22 Q. Were both vehicles still following at that time?
23 A. Yes.
24 Q. To your knowledge, was anyone in your group armed?
25 A. No. 09:49:47
1 Q. You don't carry weapons?
2 A. No.
3 Q. Are you a resident of Arizona?
4 A. Yes.
5 Q. What time of day was it when you broke off the 09:49:56
6 surveillance?
7 A. I can't remember, to tell you the truth.
8 THE COURT: Was it still before noon?
9 THE WITNESS: Yes.
10 BY MR. CARTER: 09:50:06
11 Q. But you started at 5:30?
12 A. Yes.
13 Q. So you followed this gentleman for several hours?
14 A. Yes.
15 Q. Did he stop at any location to you that appeared to be a 09:50:13
16 job site?
17 A. Like I say, he went to different areas, you know, Phoenix,
18 Tempe, Mesa, Apache Junction, could have been jobs there.
19 THE COURT: Did he stop, though, at any place that
20 appeared to be a job site? 09:50:28
21 THE WITNESS: No, he didn't.
22 MR. CARTER: Nothing further.
23 THE COURT: Any redirect?
24 MS. JORGENSON: No, Your Honor.
25 THE COURT: Thank you, Mr. Mireles, you may step down. 09:50:37
JEFF PERDUE - DIRECT EXAMINATION BY MS. JORGENSON 39
1 MS. JORGENSON: Your Honor, the union calls Jeff
2 Perdue.
3 THE COURT: Yes, please sit down, Mr. Perdue, you've
4 already been sworn in this matter.
5 Ms. Jorgenson, you may proceed. 09:51:19
8 JEFF PERDUE,
11
14 Q. Mr. Perdue, are you currently employed?
15 A. Yes. 09:51:25
16 Q. By whom?
17 A. Southwest Regional Council of Carpenters.
18 Q. And what is your position?
19 A. Special representative.
20 THE COURT: Could you tell me, what are the job duties 09:51:32
21 of a special representative?
22 THE WITNESS: Quite a few things. We gather
23 information, market shares, talk to workers, inform them of
24 fair wages, benefits and things like that.

1 Q. Mr. Perdue, how long have you been a special
2 representative?
3 A. Six years.
4 Q. And, Mr. Perdue, are you on any medication?
5 A. Yes. 09:51:59
6 Q. What kind of medication are you on?
7 A. Blood pressure.
8 Q. And does that have any effect on you?
9 A. A little bit, yeah.
10 Q. And what is that? 09:52:06
11 A. A little jumpy and turn red.
12 Q. Okay. And if you have any problems, you'll let us know
13 this morning?
14 A. Yes.
15 Q. Mr. Perdue, have you ever been to 3003 North Central 09:52:18
16 Avenue, Suite 1000, in Phoenix?
17 A. Yes.
18 Q. And when have you been there?
19 A. I believe it was middle to the end of January.
20 Q. And why did you go there? 09:52:31
21 A. To check a status on a job.
22 Q. And what do you mean check the status on a job?
23 A. Well, when a construction project starts, it starts from
24 just bare concrete floor and gets built up in stages. So to
25 check a status would be to see what stage that job was in. 09:52:50
1 THE COURT: Were you working on that job?
2 THE WITNESS: No, ma'am.
3 THE COURT: Why were you interested in its status?
4 THE WITNESS: That's what we do is check job status.
5 THE COURT: Who's "we"? 09:53:00
6 THE WITNESS: Special representatives for the
7 carpenters.
8 THE COURT: So one of your job duties in addition to
9 the ones that you already described is to go to construction
10 sites that are unrelated to any work the carpenter's union is 09:53:12
11 doing and check their status?
12 THE WITNESS: Actually all jobs are related to the
13 carpenter's union or carpenter's work. Not so much union, but
14 it is carpenter's work. So, yes. We do check from the
15 concrete up. So if we don't -- if we are not doing anything on 09:53:32
16 that project, we don't go. We look.
17 THE COURT: What do you mean if you aren't doing
18 anything on that project?
19 THE WITNESS: If there's a project that's completed,
20 it's done. So we are not doing anything. 09:53:47
21 THE COURT: So one of the things a special
22 representative has as a job responsibility is to go to every
23 construction site they know of that would involve work of
24 carpenters to check on their status?
25 THE WITNESS: I don't think I understand exactly what 09:54:12

1 that -- what you're getting at.
2 THE COURT: Well, I don't quite understand what --
3 what it is that you do. I mean, do you -- if you see some sign
4 that says so and so construction.
5 THE WITNESS: Um-hmmm. 09:54:29
6 THE COURT: Does that tell you, well, that's someplace
7 I'm going to check?
8 THE WITNESS: Yeah, it could.
9 THE COURT: How do you decide what jobs to check?
10 THE WITNESS: Well, construction is construction. And 09:54:39
11 to get work for carpenters, ourselves, anyone out there, we
12 need to talk to the superintendents, possibly the workers, and
13 maybe offer them a contractor's list and information.
14 THE COURT: So how do you decide what job sites to
15 check? 09:55:03
16 THE WITNESS: Well, I would be given a list of jobs to
17 check.
18 THE COURT: So you don't pick them, somebody gives you
19 a list and says go to these places and check the status?
20 THE WITNESS: Yes. 09:55:21
22 Q. So, Mr. Perdue, on the morning that you went to this
23 office, the address I just listed, Suite 1000, had someone
24 instructed you to go there?
25 A. Yes. 09:55:38
1 Q. Who told you to go there?
2 A. My director of organizing.
3 Q. And who is that?
4 A. Alan Cahill.
5 Q. Did Mr. Cahill tell you why you were supposed to go there? 09:55:43
6 A. Check on job status.
7 THE COURT: Had you ever checked the status before?
8 THE WITNESS: No, Your Honor.
9 BY MS. JORGENSON:
10 Q. You had checked the status of other jobs, though, before? 09:55:56
11 A. Yes.
12 Q. About how many jobs do you check in the average week?
13 A. Week?
14 Q. Yes.
15 A. 50 to 60. 09:56:05
16 Q. And when you go there, what are you looking for?
17 A. See who's doing the work, speak with the superintendents,
18 and possibly the owners.
19 Q. So when you went to 3003 North Central Avenue, what did you
20 do? 09:56:32
21 A. I went to the suite number 1000 and went in the door.
22 Q. Okay. So when you got to Suite 1000, on the door did you
23 see the name Wong Fujii Carter?
24 A. No, not that I recall.
25 THE COURT: Did you recall that there was any writing 09:56:49
1 on the door or next to the door to identify that it was a
2 business of -- a business name?
3 THE WITNESS: It was Suite 1000.
4 THE COURT: So all you recall is that you saw the word
5 suite and the number 1000? 09:57:02
6 THE WITNESS: Didn't even say suite, it said 1000.
7 THE COURT: Okay.
8 BY MS. JORGENSON:
9 Q. So you arrived at Suite 1000. Did you go in the door?
10 A. I did. 09:57:15
12 A. I went to the front desk which is right as you walk into
13 the door. And the receptionist was on the telephone.
14 Q. And was this a man or a woman?
15 A. It was a woman. 09:57:29
16 Q. And what did you do while she was on the phone?
17 A. Grabbed a business card off the counter.
18 Q. And did she then get off the phone?
19 A. Yes.
20 Q. And what happened when she got off the phone? 09:57:42
21 A. She asked -- well, before she got off the phone -- well,
22 when I grabbed the card, somebody walked by.
23 Q. Who walked by?
24 A. I don't know who it was.
25 Q. Was it a man or a woman? 09:57:56

1 A. It was a man.
2 Q. Let me ask you, when you walked into Suite 1000, did this
3 look like a construction site to you?
4 A. Not in that area, no, it was a front reception area.
5 Q. If it didn't look like a construction site, why didn't you 09:58:10
6 leave?
7 A. Well, tenant improvement, an office can be working, there
8 could be a tenant improvement in either corner of this room and
9 it could still be usable as an office. So tenant improvement
10 would be work can be in progress while the office is still in 09:58:26
11 use.
12 Q. So the receptionist got off the phone and then what
13 happened?
14 A. She asked if she could help me.
15 Q. And did you say anything? 09:58:36
16 A. I said yes. I go, "I was wondering if you guys have any
17 construction going on or, you know, have any upcoming."
18 THE COURT: Did you identify yourself before you --
19 THE WITNESS: No.
20 THE COURT: -- said that? 09:58:48
21 THE WITNESS: No.
23 Q. And did she respond?
24 A. She did.
25 Q. What did she say? 09:58:53

1 A. She said not anymore. We -- we just recently finished.
2 Q. And did you say anything in response to that?
3 A. I said, "Oh, was it a hundred percent done so you won't
4 have any more mess or dust," just kind of small talk.
5 Q. And what did she say? 09:59:09
6 A. She said, "I think it is. I know they just painted."
7 Q. And did she or you say anything else?
8 A. She asked if I would like to see it.
9 Q. Did you ask her if you could see it?
10 A. No. 09:59:22
11 Q. She asked you if you wanted to see it?
12 A. Yes.
13 Q. And what did you say?
14 A. I said, "Sure."
15 Q. Why did you say that? 09:59:27
16 A. I wanted to make sure, as a job check, that it is a hundred
17 percent done, and so she offered to see it.
19 A. She walked around her little front desk and there's just a
20 couple steps and a little wall and maybe two or three more 09:59:46
21 steps. And we stopped at the corner there and you could see
22 down the end, there was an office with a glass window and one
23 to the left. So in my experience, it looked like they pretty
24 much just opened a wall and busted it open a little bit to make
25 two offices. 10:00:05

1 Q. And was the receptionist with you when you were back there?
2 A. Oh, yes.
3 Q. What did you do when you were back there?
4 A. When I came around the corner, I said, "Oh, it does smell
5 like paint." 10:00:15
6 And I go, "Well, it looks like it's all done to me."
7 And she goes, "Yeah."
8 And I go, "Hopefully the paint smell will go away
9 soon."
10 And she said, "Yep." 10:00:23
11 Q. When you were back there, did you walk into any of the
12 offices?
13 A. No.
14 Q. Did you notice any papers lying around in this office?
15 A. No. 10:00:31
16 Q. Did you try to look for any papers lying around in this
17 office?
18 A. No.
19 Q. So after you made the comment about the paint, then what
20 happened? 10:00:42
21 A. We turned around and started to walk back.
22 Q. Up until this point, had this receptionist asked you who
23 you were?
24 A. No.
25 Q. Now, you -- you start walking around the front and then 10:00:51
1 what happened?
2 A. The same gentleman that passed by when I was talking with
3 the receptionist came back into the office.
4 Q. And did you or he say anything?
5 A. Yeah, I looked at him and we had eye contact. So I asked 10:01:06
6 him if -- the business card was on there. I read Jim and so I
7 asked if he was Jim.
8 Q. And what did he say?
9 A. He said, "No, I'm not. And who are you?"
10 Q. And what did you say? 10:01:20
11 A. I said, "I'm Jeff with the carpenter's."
12 Q. And did he say anything in response to that?
13 A. Absolutely not.
15 A. I left. 10:01:29
16 Q. Did anybody come after you and say anything?
17 A. No.
18 Q. When you visited this office, were you aware that it was
19 the law firm for Adobe Drywall?
20 A. No. 10:01:44
21 Q. When you --
22 THE COURT: I'm going to go back for a second. When
23 you said, "I'm Jeff from the carpenter's," did you say
24 carpenter's union or just --
25 THE WITNESS: Carpenter's. 10:01:54

1 THE COURT: Just carpenter's?
2 THE WITNESS: Carpenter's.
3 BY MS. JORGENSON:
4 Q. When you were in the office, did it occur to you through
5 any means that this was the law firm that represented Adobe 10:02:04
6 Drywall?
7 A. No.
8 Q. At that time of this visit, had you seen any of the legal
9 pleadings in this case?
10 A. No. 10:02:17
11 Q. The Complaint or anything like that?
12 A. No.
13 Q. During the time that you were inside the door of Suite
14 1000, anywhere in there, were you ever alone?
15 A. No. 10:02:32
16 Q. Was the receptionist with you at all times?
17 A. Yes.
18 Q. Have you ever returned to Suite 1000?
19 A. No.
20 Q. Do you have any reason to return to Suite 1000? 10:02:45
21 A. No.
22 MS. JORGENSON: I have no further questions for this
23 witness.
24 THE COURT: Mr. Carter?
25 MR. CARTER: Thank you. 10:02:55

JEFF PERDUE - CROSS-EXAMINATION BY MR. CARTER 50
1 CROSS-EXAMINATION
2 BY MR. CARTER:
3 Q. Good morning. Mr. Perdue, have you ever been to 3003
4 before?
5 A. Yes. 10:03:08
6 Q. You understand that in the lobby of 3003, there is a large
7 electronic directory?
8 A. I never noticed.
9 Q. Did you notice a directory there before?
10 A. No. 10:03:20
11 Q. Did you ever look for a directory?
12 A. No.
13 Q. So you can't say whether or not on the directory for Suite
14 1000 it said Wong Fujii Carter on the date you were there?
15 A. No. 10:03:32
16 Q. At 3003 they have two security guards at a desk as you walk
17 in. Do you recall that?
18 A. No.
19 Q. You didn't see the desk with the two security guards
20 sitting there? 10:03:42
21 A. No.
22 Q. Did you ever ask anyone at 3003 who's in Suite 1000?
23 A. No.
24 Q. Did you notice that the Crown West Building Management
25 office is in the lobby as you walk in the door? 10:03:54

1 A. No.
2 Q. Okay. Did you attempt to find out from the building
3 management who was in Suite 1000 before you went there to
4 inspect it?
5 A. No. 10:04:06
6 Q. When you get off the elevator on the tenth floor, did you
7 notice the sign that says Wong Fujii Carter this way?
8 A. No.
9 Q. You didn't see that?
10 A. No. 10:04:17
11 Q. Did you notice on the door a sign that said Wong Fujii
12 Carter, Suite 1000?
13 A. No.
14 Q. When you walked in and saw the receptionist at the work
15 station, I think you already testified that there was a 10:04:27
16 business card that said Jim Wong, right?
17 A. Yeah. Yes.
18 Q. Did you see that card when you first arrived?
19 A. Well, it was right there, yes.
20 Q. So you know at that point that that was the law office of 10:04:37
21 Wong Fujii Carter, correct?
22 A. To be honest with you, if I don't have my glasses on, I
23 could barely read Jim.
24 THE COURT: But you could read Jim?
25 THE WITNESS: Yeah. 10:04:48

1 THE COURT: Didn't you see it said "attorney at law"
2 someplace else on the card?
3 THE WITNESS: No, I did not.
4 THE COURT: You just saw "Jim"?
5 THE WITNESS: Um-hmmm. 10:04:54
6 BY MR. CARTER:
7 Q. And when you initially spoke to the receptionist, did you
8 ask her whose office is this?
9 A. No.
10 Q. Did you ask to speak with the office manager or someone in 10:05:03
11 charge?
12 A. No.
13 Q. She appeared to you to be the receptionist, right?
14 A. Yes.
15 Q. Is there a reason that you did not identify yourself when 10:05:19
16 you first arrived to the receptionist as being with the
17 carpenter's union?
18 A. Is there a reason I did not?
19 Q. Correct.
20 A. I don't really understand what that -- what that's getting 10:05:32
21 at.
22 THE COURT: How about this: Were you -- are you
23 instructed by Mr. Cahill, when you arrive to check a job site,
24 not to identify yourself as with the carpenter's union?
25 THE WITNESS: No. 10:05:51

1 THE COURT: Why don't you then?
2 THE WITNESS: There's no reason to.
3 THE COURT: Why?
4 THE WITNESS: My name is Jeff.
5 THE COURT: So you think that just Jeff gets to walk 10:06:01
6 onto any job site and look around?
7 THE WITNESS: No.
8 THE COURT: Why do you think you get to walk onto any
9 job site and look around?
10 THE WITNESS: I don't think I can. 10:06:12
11 THE COURT: But you do go to all job sites that you
12 are instructed to, to look around?
13 THE WITNESS: I'm instructed to speak with someone.
14 THE COURT: And look around if you can?
15 THE WITNESS: If someone offers me to walk around, 10:06:27
16 then, yes, I do.
17 THE COURT: You don't ask?
18 THE WITNESS: At times I do, yes.
19 THE COURT: And do you ever identify yourself?
20 THE WITNESS: If someone asks me. 10:06:41
21 THE COURT: But if they don't ask you, you don't say
22 who you are or who you represent?
23 THE WITNESS: I'm just Jeff.
24 THE COURT: Is that -- am I correct? You do not
25 identify who you represent? 10:06:53

1 THE WITNESS: Okay, I don't know how to answer that.
2 THE COURT: Well, you're not there as Jeff. You're
3 there on -- as part of the course and scope of your employment,
4 aren't you?
5 THE WITNESS: No, I'm there as Jeff, and I am a 10:07:17
6 representative of the carpenter's union.
7 THE COURT: So you are just doing this on your own,
8 you're not getting paid for it?
9 THE WITNESS: No.
10 THE COURT: Well, why don't you be honest then with 10:07:25
11 me, sir? Are you doing it as part of your job?
13 THE COURT: So you're not doing it as Jeff. You're
14 doing it as a representative of the carpenter's union?
15 THE WITNESS: Yes. 10:07:35
16 THE COURT: Correct?
18 THE COURT: So contrary to what you told me earlier,
19 correct?
20 THE WITNESS: I guess I'm not understanding. We are 10:07:45
21 spinning around.
22 THE COURT: Why don't you -- why do you not identify
23 yourself as Jeff from the carpenter's union when you go up to
24 ask to inspect a job site?
25 THE WITNESS: At times I do. 10:08:05

1 THE COURT: When you don't, why don't you?
2 THE WITNESS: Because I will say, "I'm Jeff."
3 THE COURT: I didn't say -- ask what you would say, I
4 asked why you do not identify yourself.
5 THE WITNESS: It's not a requirement of my job. 10:08:21
6 THE COURT: And who told you that?
7 THE WITNESS: In my opinion, it's not.
8 THE COURT: So you've never been told not to identify
9 yourself?
10 THE WITNESS: No. 10:08:31
11 THE COURT: You've never been told to identify
12 yourself?
13 THE WITNESS: No.
14 THE COURT: You've just taken it upon yourself not to
15 identify yourself when you go to inspect a job site; is that 10:08:38
16 correct?
17 THE WITNESS: No, it's not correct.
18 THE COURT: How do you -- how did you decide then not
19 to identify yourself when you went to this job site?
20 THE WITNESS: If someone asks me, I will. 10:08:51
21 THE COURT: And how did you come upon the decision to
22 go about your business not to identify yourself unless someone
23 asks you?
24 THE WITNESS: I don't feel it's necessary. If I ask
25 someone a question, and they respond to that question, I don't 10:09:07

1 feel I need to tell them absolutely everything.
2 THE COURT: And you're not --
3 THE WITNESS: There's no reason.
4 THE COURT: And you're not doing that pursuant to
5 specific training or instruction from your employer? 10:09:20
6 THE WITNESS: No.
7 THE COURT: That's something you just decided on your
8 own?
9 THE WITNESS: If the occasion is there to -- to ask
10 who I am and what I'm there for or what I'm doing, then, yes. 10:09:37
11 THE COURT: And the occasion would be a question asked
12 by the person?
13 THE WITNESS: Correct.
14 THE COURT: But my question is: Did you just decide
15 on your own that that was how you were going to go about your 10:09:49
16 business?
17 THE WITNESS: No.
18 THE COURT: Who decided then?
19 THE WITNESS: I struck up a conversation with a
20 receptionist, said: Hello. I'm wondering if you have any 10:09:58
21 construction work or remodel work in progress or you're
22 considering having any done.
23 THE COURT: And if she didn't ask you who you were,
24 you weren't going to say?
25 THE WITNESS: No need to. 10:10:12

1 THE COURT: You may continue, Mr. Carter.
2 MR. CARTER: Thank you, Your Honor.
3 BY MR. CARTER:
4 Q. Did I understand that you're also a special representative?
5 A. Yes. 10:10:20
6 Q. How long have you been that?
7 A. Six years.
8 Q. Six years. Mr. Perdue, have you ever been convicted of a
9 felony?
10 A. No. 10:10:27
11 Q. My understanding, and correct me if I'm wrong, is that you
12 had actually been in our office a previous time in December of
13 2008. Am I correct about that?
14 A. No.
15 Q. You've never been in our office before? 10:10:43
16 A. No.
17 Q. So if --
18 THE COURT: When you said before you had been at 3003
19 North Central, what was the occasion for which you were there?
20 THE WITNESS: There was other work going on. 10:10:54
21 THE COURT: So you were there to inspect some other
22 work being done in some other office suite?
23 THE WITNESS: No, it was actually exterior work being
24 done.
25 THE COURT: You were there to inspect it? 10:11:04

1 THE WITNESS: Not to inspect it, no.
2 THE COURT: Why were you there?
3 THE WITNESS: To see who was doing the work and what
4 the scope of work was.
5 THE COURT: Is that different from what you were 10:11:15
6 trying to do on February -- or in January?
7 THE WITNESS: Same thing.
8 BY MR. CARTER:
9 Q. One last question, Mr. Perdue, have you been involved in
10 these surveillances of vehicles as following Adobe or other 10:11:32
11 companies?
12 A. Ambulatory picketing, yes.
13 Q. Do those -- I'll call them surveillance, do they ever
14 originate from employees' homes?
15 A. Not that I know of. 10:11:52
16 MS. JORGENSON: Objection, relevance and beyond the
17 scope of direct.
18 THE COURT: Overruled. The answer will stand.
19 MR. CARTER: I didn't hear the answer, Your Honor, I'm
20 sorry. 10:12:01
21 THE COURT: He said --
22 THE WITNESS: Not that I know of.
23 MR. CARTER: Nothing further, Your Honor. Thank you.
24 THE COURT: Redirect?
25 MS. JORGENSON: Yes, Your Honor. 10:12:13

JEFF PERDUE - REDIRECT EXAMINATION BY MS. JORGENSON 59
1 REDIRECT EXAMINATION
2 BY MS. JORGENSON:
3 Q. Mr. Perdue, on the day that you arrived at Suite 1000, did
4 you know that Wong Fujii Carter was the law firm that
5 represented Adobe Drywall in this lawsuit? 10:12:26
6 A. No.
7 MS. JORGENSON: I have nothing further.
8 THE COURT: Thank you, sir. You may step down.
9 Ms. Jorgenson, do you have any further witnesses?
10 MS. JORGENSON: No, we do not, Your Honor. 10:12:36
11 THE COURT: Any witnesses on rebuttal?
12 MR. CARTER: No, Your Honor, thank you.
13 THE COURT: Is there any further evidence that either
14 side wishes to present other than the summary that is a
15 precondition to the Court's retaining Exhibit 100-J? 10:12:47
16 MR. SHANLEY: No, Your Honor.
17 THE COURT: When would you like to submit the proposed
18 findings and any further memorandum, Mr. Carter?
19 MR. CARTER: We've conferred on that. We are in
20 agreement, if the Court would be willing, to have a deadline of 10:13:06
21 June 12th for submission of those items.
22 THE COURT: That's fine. Is there any reason why on
23 the -- any memorandum -- now you are not required to submit a
24 memorandum, only if you believe that there's additional
25 briefing beyond what has already been submitted. Is there any 10:13:23
60
1 reason why that additional briefing cannot be completed in ten
2 pages or less?
3 MR. SHANLEY: I would request 15 pages, Your Honor,
4 because we are going to be briefing issues about area
5 standards, prevailing wage laws, defamation laws and the 10:13:39
6 Norris-La Guardia Act.
7 THE COURT: Haven't you already briefed that?
8 MR. SHANLEY: We have not briefed area standards law,
9 the Davis-Bacon law, and there will be additional issues on
10 defamation in light of the evidence that has been presented, 10:13:51
11 Your Honor.
12 THE COURT: Not to exceed 12 pages.
13 MR. SHANLEY: Thank you, Your Honor.
14 THE COURT: And please make sure you've read our local
15 rules with respect to size of type, margins and the like. 10:14:02
16 Don't try to squeeze 15 pages onto 12 by violating the local
17 rules. Not that any of these lawyers here would do that, but
18 lots of lawyers have done that in the past. That's why if you
19 ever got a Ninth Circuit brief, the type is huge, because they
20 got past that problem that way. Footnotes, too, same size 10:14:22
21 type. It's 12 real pages, not 12 especially crammed pages.
22 Then if there's nothing further, this matter will be
23 taken under advisement. The temporary restraining order
24 previously entered is continued until the Court rules on the
25 preliminary injunction issues. 10:14:47

61
1 Court is adjourned.
2 (The court stood in recess.)
3 * * *
5 C E R T I F I C A T E
8 I, MERILYN A. SANCHEZ, do hereby certify that I am
9 duly appointed and qualified to act as Official Court Reporter
10 for the United States District Court for the District of
11 Arizona.
12 I FURTHER CERTIFY that the foregoing pages constitute
13 a full, true, and accurate transcript of all of that portion of
14 the proceedings contained herein, had in the above-entitled
15 cause on the date specified therein, and that said transcript
16 was prepared under my direction and control.
17
18
19 DATED at Phoenix, Arizona, this 1st day of June,
20 2009.
21
22
23 S/Merilyn A. Sanchez
24 MERILYN A. SANCHEZ, CRR
25

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Case 2:08-cv-02105-SRB Document 62 Filed 06/02/09 Page 1 of 61

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Adobe Drywall, LLC, an Arizona )

REPORTER'S TRANSCRIPT OF PROCEEDINGS

(Continued Preliminary Injunction Hearing)

BEFORE THE HONORABLE SUSAN R. BOLTON

Court Reporter: Merilyn A. Sanchez, CRR

Proceedings taken by stenographic court reporter

For the Plaintiff: Rick K. Carter, Esq.

For the Defendants: Daniel M. Shanley, Esq.

2 WITNESS: DIRECT CROSS REDIRECT RECROSS VD

3 THE COURT: This is the continuation of the

4 preliminary injunction hearing. And defendants may call their

5 next witness. 09:05:19

6 MS. JORGENSON: Your Honor, if we may first,

7 defendants would like to address the issue of another exhibit.

8 Pursuant to the Court's instructions, defendants have pulled

9 out of the nine volumes of exhibits 100 examples of employees

10 that defendants contend, and that's it -- yes, Your Honor, 09:05:36

11 100-J. And I would like to note, these are examples, not an

12 exhaustive representation of employees that the payroll reports

13 of employees that defendants --

14 THE COURT: What am I supposed to make of these? I

15 mean, there's no explanation of them. And without a witness 09:05:57

16 explaining these to me, they are relatively useless to me

17 because I don't have an explanation. Is one going to be

19 MS. JORGENSON: Your Honor, witnesses have spoken

20 about some of these records. The remainder of the records 09:06:17

21 defendants intend to explain in the brief with specific

22 references to the page numbers.

23 The payroll records have been explained by the

24 witnesses in terms of what they represent generally. But in

25 terms of an exhaustive employee-by-employee explanation of what 09:06:32

2 THE COURT: And how many different employees' records

4 MS. JORGENSON: Your Honor, I believe there are

5 approximately 65 employees in that exhibit. 09:06:46

6 THE COURT: And why do I need to look at 65 employees'

8 MS. JORGENSON: Well, Your Honor, we wanted to pull a

9 representative sample. In particular, the employees in that

11 not progressing, and this is our argument.

12 But to address the Court's question, these employees

13 were not progressing through the wage rates, or --

14 THE COURT: Okay, here's what I'm going to do.

16 not going to summarize these records, but I will permit you to

18 MS. JORGENSON: Okay.

19 THE COURT: So I am rejecting -- once again, I would

20 note that while Exhibit J all is contained in one volume of a 09:07:36

21 three-inch black binder, while it contains apparently 65

22 records of employees, it is not 65 pages. I don't know how

23 many pages it is, but I would estimate it is approximately 200

24 pages of payroll records. It appears to me that each record on

1 page, 67 at random, there are five, what appear to me to be

2 five payroll records. So if I multiply five per page by number

3 of pages here, which is probably over 200, that's more than a

4 thousand records. Nobody's done the math on them.

6 exhibit that summarize after -- after the hearing today, that

7 summarizes what it is that you're trying to convey with these

8 records. Because I don't think that it's my responsibility to

9 perform whatever calculation it is that you think needs to be

10 performed so that I could determine what it is that you claim 09:09:11

11 these records show. Because in looking at them, I would have

12 to, with a calculator, go through and try to do that type of

13 summary. And I believe that is the responsibilities of the