FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERVICES EMPLOYEES

INTERNATIONAL UNION; DAVID

REGAN; ELISEO MEDINA, as Trustees

for SEIU United Healthcare

Workers-West and fiduciaries of the

SEIU United Healthcare WorkersWest and Joint Employer Education

Fund; SEIU UNITED HEALTHCARE

WORKERS-WEST, an unincorporated

association and fiduciary of the

SEIU United Healthcare WorkersWest and Joint Employer Education

Fund; REBECCA COLLINS, as a

participant in the SEIU United

Healthcare Workers-West and Joint

Employer Education Fund,

Plaintiffs-Appellees,

v.

NATIONAL UNION OF HEALTHCARE

WORKERS; JOHN BORSOS; SAL

ROSSELLI; JOHN VELLARDITA;

RALPH CORNEJO; MARTI GARZA;

GLENN GOLDSTEIN; JASON JOHNSON;

MARK KIPFER; GABE KRISTAL;

JORGE RODRIGUEZ; FRED SEAVEY;

PHYLLIS WILLETT,

Defendants-Appellants.

No. 10-16549

D.C. No.

3:09-cv-00404-

WHA

OPINION
2 SEIU V. NUHW

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued June 13, 2012

Submitted March 26, 2013

San Francisco, California

Filed March 26, 2013

Before: Ronald M. Gould, Richard C. Tallman,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Tallman

SUMMARY

*

Labor Law

The panel affirmed the district court’s judgment, after a

jury trial, in an action under § 501 of the Labor Management

Reporting and Disclosure Act against local union officials

who diverted union resources in an attempt to establish a new

competing local union.

The panel held that § 501 creates a fiduciary duty to the

union as an organization, not merely to the union’s rank-andfile members. The panel held that in actively attempting to

obstruct the international union executive committee’s
SEIU V. NUHW 3

decision to consolidate all of its California unionized longterm healthcare workers from three different local unions into

one, the local union officials breached the fiduciary duty they

owed their own union as an organization. This breach

involved a pattern of conduct of engaging in dual unionism

that was not protected speech. Because this breach

contravened the union’s constitution, it could not have been

authorized.

The panel also held that the district court did not err in

excluding evidence, nor in issuing a permanent injunction. In

addition, the district court did not err in reading the verdict to

impose several liability, and not joint-and-several liability, on

the defendants.

COUNSEL

Dan Siegel, Siegel & Yee, Oakland, California, for

Defendants-Appellants.

Jeffrey B. Demain & Jonathan Weissglass, Altshuler Berzon

LLP, San Francisco, California; Robert M. Weinberg,

W. Gary Kohlmann, Leon Dayan, and Ramya Ravindran,

Bredhoff & Kaiser, PLLC, Washington, D.C.; Glenn Rothner,

Rothner, Segall & Greenstone, Pasadena, California, for

Plaintiffs-Appellees.
4 SEIU V. NUHW

 Because a jury heard three weeks’ worth of evidence before rendering 1

its finding that the defendants were liable, we recite the facts and all

reasonable inferences therefrom in the light most favorable to the verdict.

See Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009).

OPINION

TALLMAN, Circuit Judge:

This appeal presents a classic union power struggle. We

must resolve whether § 501 of the Labor Management

Reporting and Disclosure Act creates a fiduciary duty to the

union as an organization, not merelythe union’s rank-and-file

members. We hold that it does.

The defendants, who by jury verdict were determined to 1

be rogue local union officials who diverted union resources

in an attempt to establish a new competing local union,

breached this duty. The international union’s executive

committee had decided to consolidate all of its California

unionized long-term healthcare workers from three different

local unions into one. The defendants actively attempted to

obstruct this consolidation, breaching the fiduciary duty they

owed their own union as an organization. This breach

involved a pattern of conduct of engaging in dual unionism

that is not protected speech. Because this breach contravened

the union’s constitution, it could not have been authorized.

We affirm the jury’s verdict and uphold its award of

damages.

I

The Services Employees International Union (“SEIU”)

consists of 2.2 million members who work in healthcare,
SEIU V. NUHW 5

public services, and property services. United Health

Workers (“UHW”) is one of many “local” unions affiliated

with SEIU. At the time its dispute with the international

union arose, UHW represented approximately 150,000

healthcare workers in California.

The SEIU constitution, which is binding on UHW,

defines the relationship between SEIU and UHW. The SEIU

constitution vests SEIU’s International Executive Board with

authority regarding alignment and jurisdiction of local unions

like UHW. For at least the last decade, SEIU has regularly

merged and realigned local unions.

A

The UHW itself was formed as the result of SEIU’s

merger of two local healthcare unions in California in 2005.

Harmony between the international and its newly created

local union was short-lived. Shortly after UHW’s creation,

UHW officials began to spar with SEIU leadership over

SEIU’s jurisdictional plan for long-term care workers in

California. The international union intended to move 150,000

long-term care workers from three separate unions, including

some 65,000 from UHW, into a new local union chartered by

SEIU.

The controversy began to heat up in 2008. In January of

that year, an SEIU executive vice president issued a report

concluding that long-term care workers would be better

served if they had a union of their own. On January 25, 2008,

the UHW Executive Board passed a resolution instructing

UHW officers “to take any and all appropriate measures” to

protect the ability of UHW long-term care workers to vote on

any plans to split them into a new union. For good measure,
6 SEIU V. NUHW

the UHW Executive Board passed an additional, similarly

worded measure in March 2008.

SEIU decided to appoint a “hearing officer” in early 2008

to further analyze the long-term care workers issue. In

August 2008, the hearing officer released his findings,

endorsing the creation of a new SEIU union of long-term care

workers. Based on this recommendation and other findings,

SEIU’s International Executive Board issued a written

resolution on January 9, 2009, directing consolidation of

long-term care workers into a new California union.

B

As the long-term care worker realignment controversy

accelerated and tensions escalated between officials of the

international union and UHW, SEIU began to consider

placing UHW into “trusteeship.” The SEIU constitution

grants SEIU the authority to place a local union into

trusteeship “to protect the interests of the membership” from

local union malfeasance. Instituting a trusteeship allows

SEIU to appoint new officers to “take charge and control of

the affairs of a Local Union” with the “effect of removing the

officers of the Local Union.” Essentially, a trusteeship allows

the parent union to replace the existing local union leadership.

In August 2008, while SEIU’s appointed hearing officer

was recommending the realignment of UHW’s long-term care

workers, SEIU convened a hearing to discuss whether to

place UHW in trusteeship. Former United States Secretary of

Labor Ray Marshall presided over the trusteeship hearing.

Secretary Marshall eventually issued his report on January

21, 2009, twelve days after SEIU had adopted its realignment

plan. The report recommended that UHW be placed into
SEIU V. NUHW 7

trusteeship if it “refuse[d] to abide by and cooperate with”

SEIU’s realignment decision regarding long-term care

workers. Secretary Marshall suggested that UHW be given

five days to accept the long-term care decision or face

trusteeship.

The SEIU International Executive Board approved

Secretary Marshall’s recommendations on January 22, 2009,

giving UHW until January 27, 2009, to confirm in writing

that it would not oppose the creation of the new long-term

care workers union. The UHW would not so promise, and

SEIU placed UHW into trusteeship on January 27, 2009.

C

The jury found that the defendants did not take these

developments kindly. Before the controversy reached its

climax, the defendants, local UHW officials, took a number

of actions that SEIU proved at trial violated the officials’

fiduciary duties to UHW. The jury, by its verdict, found that

defendants, while still employed as UHW officers, engaged

in action designed to weaken UHW in the event of a

trusteeship while acting to form and promote a rival union.

The evidence at trial showed that UHW officials sought

to create an ungovernable situation for trustees appointed to

administer UHW by: (1) blocking access to UHW buildings

to prevent the SEIU-appointed trustees from entering; (2)

removing UHW property from UHW buildings, including

office equipment, computers, and employee grievance files;

(3) instructing lower-level UHW officials and rank-and-file

members not to recognize the authority of the trustees; (4)

harassing SEIU staff by storming SEIU’s Alameda,
8 SEIU V. NUHW

California, office; and (5) terminating UHW collective

bargaining agreements with California employers.

At the same time, the defendants, while still on the UHW

payroll, began to create and promote the new union. The

evidence showed that the defendants: (1) searched and

prioritized office space for the new union in December 2008

and January 2009; (2) instructed staff to collect signatures on

a “disaffiliation” petition in an attempt to disaffiliate UHW

from SEIU; (3) researched the “decertification” of UHW,

which would have terminated UHW’s role as collective

bargaining agent for its members, thus allowing a new union

to become the bargaining representative of those members;

(4) announced to members three days before the trusteeship

was imposed that members could decertify and join a “new,

independent, democratic, progressive union;” (5) created an

off-line database of member contact information before the

trusteeship was imposed for use after the trusteeship went

into effect, at least in part to solicit UHW members to join the

new union; and (6) registered the domain NUHW.org and

drafted a press release announcing the new union on January

27, 2009, the day the UHW trusteeship was imposed.

Within a week after the trusteeship was announced, the

individually named defendants had created the National

Union of Healthcare Workers (“NUHW”) and had filed

petitions to have UHW removed as the bargaining

representative for its current members.

D

Litigation began in March 2009 when SEIU sought a

temporary restraining order (“TRO”) from the United States

District Court for the Northern District of California requiring
SEIU V. NUHW 9

the return of all UHW property possessed by the defendants.

The defendantsresisted the TRO on the grounds that they did

not possess any UHW property. The defendants argued that,

because they did not possess any property, a TRO would be

“an exercise in futility.” Still, SEIU prevailed, a TRO issued,

and the defendants appealed. We previously upheld the

issuance of injunctive relief on appeal. Serv. Emps. Int’l

Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061,

1072 (9th Cir. 2010).

Notwithstanding counsel’s representations that the

defendants possessed no UHW property, the defendants

eventually returned scores of boxes of records belonging to

UHW. SEIU claimed that not all missing property had been

returned, and the district court granted a permanent injunction

extending the TRO’s requirement that the defendants return

all UHW property.

 The case proceeded to trial on SEIU’s claims for breach

of fiduciary duties under § 501 of the LMRDA and damages.

In the spring of 2010, the case was tried before a jury, which

found in favor of SEIU. The jury returned a verdict awarding

damages against the individual defendants in various

amounts, and the district court entered judgment against the

defendants for varying amounts awarded by the jury. The

individual judgments ranged from $31,400 to $77,850, and

NUHW was assessed damages of $724,000.

Although the jury instructions allowed the jury to impose

either individual or joint-and-several liability, the special

verdict form contained no place for the jury to indicate which

they had chosen. The verdict form required the jury to list

damages under four different columns: “Salary and

Benefits,” “Diversion of Resources,” “Increased Security,”
10 SEIU V. NUHW

and “Lost Dues.” On the form, the jury entered specific

amounts for each defendant in each of the four categories.

The final column of the form asked the jury to indicate the

total liability of each defendant. The district court interpreted

the form to impose several liability on each defendant for the

amount in the final column.

The defendants moved: (1) for judgment as a matter of

law; (2) for new trial; and (3) to alter the damages awards.

The district court denied these respective motions, and the

defendants timely appealed. We have jurisdiction under

28 U.S.C. § 1291.

II

We must first resolve what duty federal law imposes on

local union officials who act to subvert the directives of a

parent union in contravention of their own union’s

constitution.

Under § 501 of the Labor Management Reporting and

Disclosure Act (“LMRDA”), officers of labor unions are held

to the highest standards of responsibility and ethical conduct

in administering the affairs of the union. 29 U.S.C. § 501.

What makes this case unusual, and one of first impression for

us, is that usually a union member, not a parent organization

like SEIU, asserts a § 501 claim against union officers. See,

e.g., Kerr v. Shanks, 466 F.2d 1271, 1274 (9th Cir. 1972);

Stelling v. Int’l Bhd. of Elec. Workers, Local Union No. 1547,

587 F.2d 1379, 1381 (9th Cir. 1978). In this case, however,

the international union asserts that the defendants violated

their duty to UHW, their own organization. The question

before us, one that underpins the majority of the defendants’
SEIU V. NUHW 11

claims on appeal, is exactly to whom union officials owe that

fiduciary duty.

The UHW defendants posit that they owed this duty to

only the rank-and-file members of their local union. Because

they subjectively believed their actions assisted those

members by establishing a more democratic union with

localized control, they maintain they have done no wrong

under § 501. Their argument ignores the fact that they

diverted union resources to weaken their own union and form

a rival union merely because they did not agree with the

constitutionally permissible decision of the international

union. Because no construction of the LMRDA allows such

conduct based merely on the defendants’ subjective motives,

we reject the defendants’ argument.

The SEIU Executive Committee, under the authority

given to it by both its constitution and the UHW constitution,

carefully considered and adopted a measure it believed would

better serve its members. The UHW officers disagreed,

which they may do, and they voiced their opposition, which

they also may do. See 29 U.S.C. § 411 (protecting union

officials’ speech). What they may not do under the law is use

their union’s resources to actively obstruct implementation of

the final decision.

The international union has the authority, under its

constitution, to place a local union into trusteeship. The facts

adduced at trial show that SEIU did not take this decision

lightly; it appointed a respected former Department of Labor

Secretary to preside over a fact-finding hearing and

considered the issue for six months. Based on the

recommendation from this hearing and the defendants’

refusal to accept SEIU’s decision to create a new
12 SEIU V. NUHW

consolidated local union under SEIU control, the international

placed UHW into trusteeship.

Local unions are not completely at the mercy of their

international unions. The trusteeship must be respected only

if SEIU imposed it properly. If the international union takes

action that violates its own fiduciary duties under federal law,

or if the international union improperly impresses a

trusteeship contrary to its constitution or federal laws

regarding trusteeship, see 29 U.S.C. §§ 462–64, the local

union can challenge the international union’s decision. See,

e.g., Navarro v. Gannon, 385 F.2d 512, 519 (2d Cir. 1967)

(allowing a local union to bring an action under § 501 against

the international union when the international did not follow

the LMRDA’s trusteeship provisions or its own constitution).

The defendants considered such a legal challenge, but they

were told by their counsel that their chances of success were

“nil.” The international union had followed the law.

The defendants were left with no legal right to stand in

the way of the implementation of SEIU’s consolidation

decision. Instead, they opted for an extensive, extra-legal

challenge with one mission: to discard the charred remains

of a weakened UHW while simultaneously starting a new

competing local union of their own.

Now, after engaging in a pattern of conduct aimed at

weakening the very union they represented, the defendants

assert that, under the plain language of § 501, this extra-legal

strategy nonetheless deserves the law’s protection. They

argue that Congress intended that the LMRDA ensure that

unions are “internally democratic,” and yet they also seek
SEIU V. NUHW 13

 We note that Secretary Marshall, when recommending that SEIU 2

impose a trusteeship on UHW, properly observed, “no democratic labor

organization can permit local unions to nullify international decisions

reached through the democratic processes specified in their Constitution

and Bylaws.” (emphasis added).

judicial exoneration for their decidedly anarchistic methods

of opposition.2

Their argument that the fiduciary duty of § 501 is owed

only to the rank-and-file members of their local union fails.

The plain language of the statute demonstrates that union

officers owe this duty to the organization as a whole, not

merely to the rank and file. Inherent in this duty is a

requirement that officials spend union money “solely for the

benefit of the organization and its members . . . in accordance

with its constitution and bylaws.” 29 U.S.C. §501(a). Using

union resources to weaken the union itself constitutes a

breach of this duty, even when the officers believe they are

acting in the best interest of the rank-and-file members.

A

To determine § 501’s scope, we look first to the text.

“[S]tatutory interpretation begins with the statutory text. If

the statutory language is unambiguous and the statutory

scheme is coherent and consistent, judicial inquiry must

cease.” Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.

2012) (citation and internal quotation marks omitted). The

text of § 501 provides:

The officers . . . of a labor organization

occupy positions of trust in relation to such

organization and its members as a group. It is,
14 SEIU V. NUHW

therefore, the duty of each such person . . . to

hold its money and property solely for the

benefit of the organization and its members

and to manage, invest and expend the same in

accordance with its constitution and bylaws

and any resolutions of the governing bodies

adopted thereunder.

29 U.S.C. § 501(a) (emphasis added). The statutory language

explicitly highlights the duty of union officers to the

organization itself, not merely the union’s members.

Even if the defendants believed they were acting in the

best interest of the union’s members, they needed to consider

their actions in relation to the interests of the union as an

institution. The UHW constitution “shall at all times be

subordinate to” the SEIU constitution, which prohibits local

union officers from engaging in dual unionism or assisting in

efforts to disaffiliate. The defendants’ actions directly

contravened the constitutional provisions of the union they

represented. “Expenditures by union officers that violate the

union’s constitutions represent the classic case of breach of

fiduciary duty under section 501.” Guzman v. Bevona,

90 F.3d 641, 647 (2d Cir. 1996). We find no reason to

change course merely because the union officers believed

their actions indirectly benefitted rank-and-file members.

The text of the LMRDA does not suggest a defense of “Trust

us, we know what’s best for our members.”

Otherwise, the LMRDA would essentially provide an

unmitigated avenue for rebellious local officers to circumvent

the constitutional hierarchy of an organization like UHW.

The UHW, at its founding, adopted the SEIU constitution and

recognized its authority; that authority is meaningless if local
SEIU V. NUHW 15

 The defendants have made Operative Plasterers the lynchpin of their 3

case. It is not binding authority, and we find it unpersuasive for several

reasons. Most significantly, the Operative Plasterers court did not

interpret the statute according to its plain language when it held that the

defendant only owed his § 501 duty to the membership, and not to the

organization. See Operative Plasterers, 843 F. Supp. at 1274.

Additionally, the court was all too willing to characterize its case as one

between the local members and the international union, instead of between

the defendant and the organization he was entrusted to represent. See id.

(“[I]t would be contrary to the intent of the LMRDA to apply § 501(a) as

a tool of insuring local officials’ compliance with the wishes of the

International leadership.”). SEIU does not seek to use § 501(a) as a tool

to ensure compliance with its directives; it seeks to use § 501(a) to regain

the resources the defendants spent to undermine their own union. Finally,

the Operative Plasterers court decided only that it could not grant

summary judgment against the local official because “the record is silent

officers can attempt to scuttle the ship on the union’s dime

merely by invoking the putative interest of their members.

The defendants propose that despite this misconduct,

SEIU may pursue only one remedy: injunctive relief under

§ 301 of the Labor Management Relations Act. See

29 U.S.C. § 185. But in a case such as this, where a

malcontent officer has already resigned, the organization

would have no remedy for those financial resources that the

officer skimmed to assist the rebellion. We do not believe

Congress intended to write such a blank check for internal

insurrection.

We do not decide whether § 501 imposes a duty owed to

the international union itself. But see Operative Plasterers &

Cement Masons v. Benjamin, 843 F. Supp. 1267, 1274 (N.D.

Ind. 1993) (“When the interests of a local and its International

conflict, a local union officials’ fiduciary duty under § 501

attaches primarily to the local union, not the International.”).3
16 SEIU V. NUHW

as to the effect of [the defendant’s] action on Local 101 or its members’

interest.” Id. Our trial record is replete with evidence that the defendants

used union resources to attempt to weaken UHW.

We decide only that § 501 imposes a duty to the local union

as an organization. Under § 501, the defendants owed a duty

to spend UHW resources in accordance with its constitution,

which “shall at all times be subordinate to the International

Constitution.” Any expenditure that violates the SEIU

constitution—including “[g]ross disloyalty,” “[f]inancial

malpractice,” and “engaging in dual unionism”—would

violate this duty. The mere subjective belief that any of these

overarching violations would nonetheless be justified as

benefitting the rank-and-file membership does not absolve the

defendants of liability.

B

We turn now to the district court’s jury instruction

defining this duty, which we review de novo for statements

of law and under abuse of discretion for its formulation.

Hunter v. County of Sacramento, 652 F.3d 1225, 1232 (9th

Cir. 2011). We repeatedly have held that “[j]ury instructions

must fairly and adequately cover the issues presented, must

correctly state the law, and must not be misleading.” Id.

(quoting Dang v. Cross, 422 F.3d 800, 804 (9th Cir. 2005)).

A party is entitled to an instruction on its theory of the case

only if it is supported by law and has foundation in the

evidence. Id.
SEIU V. NUHW 17

 The instruction stated: 4

The officers, agents, shop stewards and other

representatives of a labor organization occupy positions

of trust in relation to such organization and its members

as a group. It is, therefore, the duty of each such

person, taking into account the special problems and

functions of a labor organization, to hold its money and

property solely for the benefit of the organization and

its members and to manage, invest, and expend the

same in accordance with its constitution and bylaws

and any resolutions of the governing bodies adopted

thereunder, to refrain from dealing with such

organization as an adverse party or in behalf of an

adverse party in any matter connected with his duties

and from holding or acquiring any pecuniary or

personal interest which conflicts with the interests of

such organization, and to account to the organization

for any profit received by him in whatever capacity in

connection with transactions conducted by him or under

his direction on behalf of the organization.

When instructing the jury on the defendants’ duty to

UHW under § 501, the district court repeated the entirety of

§ 501, except for the statute’s inapplicable final sentence,

verbatim. The instruction did not tell the jury that the

defendants owed any duty specifically to the international

union. It instructed only that, as § 501 states, the defendants 4

had a duty “to hold its money and property solely for the

benefit of the organization and its members . . . in accordance

with its constitution and bylaws.” 29 U.S.C. § 501. Because

we hold that § 501, by its plain language, created a duty that

the defendants owed to their own union, the instruction did

not misstate the law.
18 SEIU V. NUHW

C

The defendants propose that even if § 501 creates a

fiduciary duty to the organization, another provision of the

LMRDA shields them from any liability because their actions

constituted protected free-speech activities. See 29 U.S.C.

§ 411.

Whether the LMRDA protects the defendants’ conduct is

reviewed de novo; whether the court properly formulated its

instructions on this protection is reviewed for abuse of

discretion. Hunter, 652 F.3d at 1232. Because our precedent

demonstrates that the defendants engaged in conduct, not

merely speech, we affirm the district court’s application of

law and its formulation of the instructions.

The free-speech provision of the LMRDA provides that

“[e]very member of any labor organization shall have the

right to meet and assemble freely with other members; and to

express any views, arguments, or opinions.” 29 U.S.C.

§ 411(a)(2). This section, while broad, does not provide

blanket protection for all union activities a member wishes to

characterize as free speech. The statute preserves the union’s

right to “adopt and enforce reasonable rules as to the

responsibility of every member toward the organization as an

institution and . . . conduct that would interfere with its

performance of its legal or contractual obligations.” Id.

(emphasis added).

Our case law distinguishes between speech critical of a

union—which § 411 protects—and “conduct designed to

impair the union’s ability to function”—which § 411 does not

protect. Ferguson v. Int’l Ass’n of Bridge, Structural &

Ornamental Iron Workers, 854 F.2d 1169, 1174 (9th Cir.
SEIU V. NUHW 19

1988). In Ferguson, officers of a local union actively

opposed the imposition of a trusteeship by their parent union.

After the parent union imposed the trusteeship, the local

officers formed a rival union and urged members of the local

union to join. Id. at 1171. When the trustees filed internal

misconduct charges, the officers brought an action arguing

that § 411 protected their activities. Id. at 1172.

We rejected their argument. We explained that “a union

[that] has disciplined union members who established a rival

union, became its leaders and promoted it, and interfered

directly with the union’s efforts to function as an institution”

has not punished the members for protected free speech. Id.

at 1175. The officers’ conduct was not free speech; it was

“part of a pattern of conduct designed to destroy the union

and to interfere with the performance of its legal obligations.”

Id. at 1174. The conduct was not protected by the LMRDA.

We find no reason to distinguish Ferguson from the case

at hand. The defendants, faced with trusteeship, wrongfully

engaged in a pattern of conduct designed to weaken the local

union while simultaneously setting up a rival union to

compete as the local union’s collective bargaining agent. The

defendants’ portrayal of these obstructionist activities—

which included actively blocking the trustees’ access to UHW

facilities and instructing employees to “[t]ake everything out

of the office”—as “symbolic slumber parties” goes beyond

the pale. Under Ferguson, § 411 does not shield from

liability those who engage in subversive conduct.

The LMRDA does protect some of the defendants’

activities, such as simply speaking out in their individual

member capacities. The district court carefully formulated its

instructions to ensure that “defendants were free to make their
20 SEIU V. NUHW

case within the system” and were “free to express their

opinions as unionmembers on the jurisdiction and trusteeship

decisions.” But the district court also instructed the jury,

consistent with Ferguson, that defendants “owed a duty to

UHW and SEIU to refrain from obstructing or frustrating any

formal decision made by SEIU or UHW.” The instructions

adequately explained that speech alone was not the type of

conduct that could constitute “obstructing or frustrating,” but

the defendants did not have a right “while employed by

UHW, to plan for the creation of a union or to undermine the

ability of UHW to function after their departure.”

The instructions adequately protected defendants from

punishment for voicing their dissenting opinions while

retaining a proper explanation of defendants’ liability for

their acts undermining UHW’s ability to function and for

establishing a new union. The district court did not abuse its

discretion in formulating a correct statement of the law to be

applied once the jury had decided on the relevant facts.

D

Before we can declare that ample evidence at trial

supported the jury’s verdict, we must finally consider the

defendants’ proposed authorization defense. Because no

union can authorize expenditures in violation of its

constitution, the district court did not err in excluding this

defense in its final charge to the jury. We review the district

court’s decision de novo. Dang v. Cross, 422 F.3d 800, 804

(9th Cir. 2005).
SEIU V. NUHW 21

1

The defense of authorization derives from a general rule

that “[c]ourts are reluctant to substitute their judgment for

that of union officials in the interpretation of the union’s”

governing documents. Stelling, 587 F.2d at 1388 (quoting

Vestal v. Hoffa, 451 F.2d 706, 709 (9th Cir. 1971)) (internal

quotation marks omitted). Often, if a union official’s act has

been authorized by constitution, bylaw, resolution, or by a

vote of the membership, liability under § 501 attaches only if:

(1) the officer benefitted personally from the act; or (2) the

act is patently unreasonable or taken in bad faith. See

Guzman, 90 F.3d at 647; Local No. 48, United Bhd. of

Carpenters & Joiners v. United Bhd. of Carpenters &

Joiners, 920 F.2d 1047, 1052 (1st Cir. 1990).

Against this backdrop of judicial reluctance to intervene

in union affairs, however, stands § 501 of the LMRDA and a

union’s constitution. Section 501 requires that union funds be

spent only for the benefit of the organization and its members

in accordance with the union constitution. See 29 U.S.C.

§ 501. The resolution of this conflict requires that the

authorization defense apply only when the authorizing

document, as then-Senator John F. Kennedy explained before

§ 501’s passage, is “not in conflict with the [union’s]

constitution and by-laws.” Local No. 92, Int’l Ass’n of

Bridge, Structural & Ornamental Iron Workers v. Norris,

383 F.2d 735, 739 n.13 (5th Cir. 1967) (quoting 105 Daily

Cong. Rec. 16415 (Sept. 3, 1959) (remarks of Senator John

F. Kennedy)). Local union officials cannot assert the

authorization defense when they take actions “in direct

conflict with, and contravention of, provisions of the

constitution of the International Union which remained

applicable to the Local.” Id. at 739.
22 SEIU V. NUHW

The defendants used union resources to undermine and

weaken their own union and promote a rival union. These

actions contravene the SEIU constitution, and, therefore, also

the UHW constitution. Thus, as a matter of law, no bylaw or

board resolution could authorize their actions.

2

Even assuming the defendants had a legal claim to such

an instruction, the UHW Executive Board resolutions could

not, as a matter of fact, authorize the officers’ acts. The

resolutions authorized the officers “to take any and all

appropriate measures to protect our members’ right to vote,

to remain in UHW, by giving nursing home-care workers the

means and time to be able to freely cast their secret ballot to

vote to stay in UHW.” (emphasis added). The resolution

authorizes only “appropriate measures.” The defendants

executed a strategy to weaken UHW, leaving it ungovernable,

while simultaneously planning the creation of a new union to

compete with UHW. These actions expressly violated the

UHW and SEIU constitutions. They cannot be read as

“appropriate measures” that the UHW ExecutiveBoard could

authorize.

E

Once we conclude that § 501 creates a duty that the

defendants owed to UHW and that they could not claim a

defense based on free speech or authorization, the defendants’

appeal of the jury verdict amounts only to a challenge to the

sufficiency of the evidence.

Jury verdicts are reviewed for substantial evidence, which

“is evidence adequate to support the jury’s conclusion, even
SEIU V. NUHW 23

if it is also possible to draw a contrary conclusion from the

same evidence.” Johnson v. Paradise Valley Unified Sch.

Dist., 251 F.3d 1222, 1227 (9th Cir. 2001) (citation and

internal quotation marks omitted).

From our review of the trial record, we are satisfied that

the plaintiffs provided ample evidence that the defendants

diverted union resources to weaken UHW and form a rival

union. We will not rehash the facts here. Because the

defendants were not entitled to an authorization defense, the

record was sufficient in our judgment to support the jury’s

finding that defendants violated their fiduciary duty to UHW

under § 501.

III

The defendants claim that the district court committed

prejudicial error when it excluded evidence that would

question the ethics, motives, and leadership of SEIU. We

review a district court’s exclusion of evidence for abuse of

discretion and will reverse only when an error is prejudicial.

Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir.

2008).

The evidence excluded was irrelevant. The defendants’

fiduciary duty under LMRDA §501 to hold and spend union

funds for the benefit of the organization itself remains

regardless of whether SEIU is a model international union.

Any evidence showing SEIU had questionable leadership and

ethics would not lessen the defendants’ obligation to refrain

from using union resources to weaken their own union and

engage in dual unionism. This evidence could only prove

facts that were not “of consequence in determining the
24 SEIU V. NUHW

action.” Fed. R. Evid. 401(b). The district court did not

abuse its discretion by excluding irrelevant evidence.

IV

The defendants deserve some recognition for their gall.

Having once told the district court that they possessed no

UHW property before later returning substantial amounts of

that property (but not all that remains missing), they now

invite us to trust that they do not possess any property still at

large. We decline the invitation.

The district court issued a permanent injunction that

required the return of all UHW property possessed by the

defendants. The defendants argue “there is no evidence in the

record that they continue to possess any UHW property.” We

review the factual findings underlying a district court’s

decision to issue an injunction for clear error. Scott v.

Pasadena Unified Sch. Dist., 306 F.3d 646, 653 (9th. Cir.

2002).

The first skirmish in this case centered on the issuance of

a temporary restraining order requiring the defendants to

return any and all UHW property to UHW. The defendants

opposed the order, insisting to the district court that they did

not possess any UHW property. After the district court

issued the order and we upheld it, Serv. Emps. Int’l Union,

598 F.3d at 1072, the defendants returned more than sixty

boxes of material to UHW. Then, shortly before trial, the

defendants deposited seventeen more boxes with their

counsel, who turned the property over to UHW.

The district court found, and the trial record shows, that

some equipment remains missing. The court justly
SEIU V. NUHW 25

 “[O]nly if all attempts at reconciliation fail” can the court order a new 5

trial or resubmit the special verdict to the jury. Id.

considered the defendants’ obvious lack of credibility and

wisely concluded that “there is reason to expect yet more

missing files will turn up. There is still a need for an

injunction.”

Having previously cried wolf in the federal courts before,

only to have their cry exposed, the defendants merit no trust

when they cry again. The district court properly issued the

permanent injunction.

V

Finally, we turn to the defendants’ challenge to the district

court’s interpretation of the verdict form. They contend that

the district court erred when it read the verdict to impose

several liability, and not joint-and-several liability, on the

twenty-four individual defendants and defendant NUHW.

This argument, though, carries a significant burden, one the

defendants have not overcome.

“[W]hen confronted by seemingly inconsistent answers to

the interrogatories of a special verdict, a court has a duty

under the seventh amendment to harmonize those answers, if

such be possible under a fair reading of them.” Floyd v.

Laws, 929 F.2d 1390, 1396 (9th Cir. 1991). We review a 5

trial court’s interpretation of a verdict and its decision to alter

or amend a judgment for abuse of discretion. Id. at 1397–98.

With respect to whether the jury intended joint-and-several

liability or several liability, we must determine whether the

district court’s interpretation was “(1) illogical, (2)

implausible, or (3) without support in inferences that may be
26 SEIU V. NUHW

drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1262 (2009) (en banc) (internal

quotation marks and citation omitted).

The verdict form in this case left much to be desired.

Although the district court instructed the jury to “enter all

amounts for which you find that defendant liable, including

any amounts for which others may also be jointly liable,”

nothing in the instructions nor the verdict form explained

exactly how the jury should demarcate between several and

joint-and-several liability. It comes as little surprise that the

jury returned a verdict open to debate.

The defendants raise several coincidences in the verdict

that joint-and-several liability could possibly explain. Most

glaringly, the amount entered for defendant NUHW under

“Diversion of Resources,” $720,000, totals the exact

combined amount of the remaining defendants, indicating the

possibility that each individual defendant’s liability would be

joint and several to NUHW’s liability. The defendants argue

that the jury also entered identical amounts for some of the

defendants in each category of conduct, which would be a

reasonable way for a jury to express its desire for joint-andseveral liability.

The concern that the amounts entered could possibly

indicate joint-and-several liability, however, leads us astray

from the proper focus of our inquiry. Rather, we must answer

only one question: whether the district court’s interpretation

of the verdict and the jury’s intent was illogical, implausible,

or without support in inferences that may be drawn from facts

in the record. Id. We cannot fairly quarrel with the district

court’s reading in this manner.
SEIU V. NUHW 27

The district court’s reading is both logical and plausible.

On the verdict form, the jury awarded different amounts

against different defendants, granting specific amounts for

each defendant in each of the four categories of possible

damages. This result is consistent with the jury imposing

liability against each defendant in the amount of harm caused

by that particular defendant’s actions. Also, although the

amount assessed against NUHW under “Diversion of

Resources” equaled the exact combined amount of the other

defendants, the jury did not follow the same pattern when

awarding damages under “Lost Dues.” There, the combined

amount of the individual defendants equaled $12,000; yet the

jury only assessed $4,000 against NUHW. These facts

plausibly support the district court’s inference from the

special verdict that the jury intended to reject joint-andseveral liability and instead embraced several liability.

The defendants also gloss over the most significant

column on the verdict form: the final one, in which the jury

entered discrete amounts for each defendant. Ultimately, the

district court did no more than impose the exact liability for

each defendant that the jury had entered on the special verdict

form.

The defendants contend that SEIU has failed to reconcile

the mathematical coincidences they have raised, but that

burden does not fall on SEIU. The defendants cannot meet

their burden by merely proving there may be other plausible

interpretations of the verdict form. They must show that the

district court’s interpretation was implausible. Because we

believe the defendants have not met that burden, we uphold

the district court’s interpretation of the verdict form and its

denial of the defendants’ motion to alter or amend the

judgment.
28 SEIU V. NUHW

VI

The judgment of liability was properly entered when a

correctly instructed jury, on a sufficient factual record, found

the defendants in breach of their fiduciary duties under § 501

of the LMRDA. There was no abuse of discretion in the

district court’s ruling on the challenge to the special verdict

the jury returned.

AFFIRMED.