# Petition — Chauffeurs, Teamsters & Helpers Local 150 v. Sherrod

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1076

## Text

| FILED

{
.

Supreme Court, UG |
t

DEC 5 1979 1

| MICHABL REBAK, JR., CLERK

In THE

Supreme Court of the United States

OctToBER TERM, 1979

CHAUFFEURS, TEAMSTERS AND Hevpers Locar 150,
Joint Councit or Teamsters No, 38, and GrorcGe

LaBrasca,
Petitioners,
vs.
KENNETH W. SHERROD,
Respondent.

Petition for Writ of Certiorari to the Court of
Appeal of the State of California in and
for the Third Appellate District

Berson, Tayer, Kovacu & SminBERT
Duane B. Besson, Esa,
Patrick J. SzyMANsKI, Esa.

100 Bush Street, Suite 1500
San Francisco, Calif. 94104
Tel.: (415) 986-4060

Attorneys for Petitioners

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

INDEX

Page
Nene ee i cssinasaabidecoocessecsnscens 1
Jurisdiction ................... a ; ee
ES EEE 2
ag . 2
i vcesusenestoasonersesenevese 4
A. The Facts .......... Tak cn oaniesnnins *4
SAT 9
C. Presentation of the Federal Question in Pro-
~ + . . Rana ase : 10
Reasons For Granting the Petition -......0.0.22.22.22..-.---- 11
atic tcentnwnonennn seseeeeccescccnnnsnssets 17
Tn casiswmecnee 19
SLL 38
Neen isn scxesesersnceonsnecesnsaseencesnee 44
Appendix D ‘ ‘ + ee .. 48
Appendix E es ae : <<a oe

AUTHORITIES CITED

CASES

Crogan v. Metz, 47 Cal. 2d 398 (1956) _.......---ccccccesseeeee++ 14

Dingwell v. Amalgamate Street Railway Employees,
6 RR i Fe Ae? Bilkciicbvatcdmnnienes 14

Farmer v. Carpenters Local 25, 480 U.S. 290 (1977) passim
Fletcher v. Western National Insurance Co., 10 Cal.

Be re Oe haematite 14
International Association of Machinists v. Gonzales,

Be A e -SD bedintihcriccnatl en auneanes 14
IBEW v. Foust, ........ <5 eon , 60 L. Ed. 2d 698 (May

BE iii ate caren ucdsisnin esasccdacuaciashieanaiiialanaepieceremoomanion passim

Local 100 Journeymen v. Borden, 373 U.S. 690 (1963) 14

Miranda Fuel Co., 140 N.L.R.B. 181 (1962) -......0022.2.... 13
Motor Coach Employees v. Lockridge, 403 U.S. 274
PRTIED. Ls abaadlas coroshat nese anand sa ambaeeaasautialameinelatse 14
San Diego Building Trades Council v. Garmon, 359
ic ee Se, peennene ne muin ale hategeetatc tasks eel 14
Steele v. Louisville & Nashville R.R., 323 U.S. 192
E:T ENG nN deeper OI ah ILE TOU Wenan NC IY EAD OOO 13
St. Clair v. Local 515 Teamsters, 422 F.2d 128 (6th
i dl ee ee 13

Syres v. Oil Workers Local 23, 350 U.S. 892 (1955) ..... 18
Radio Officers’ Union v. NLRB, 347 U.S. 17 (1954) .... 18
Vaca v. Sipes, 386 U.S. 171 (1967) 2.2. cnc. cecceneceseeee 13

Williams v. Pacific Maritime Association, 421 F.2d
REE Cree Oe Fee ies nemerinrinctiniomnicnnts 13

AUTHORITIES CITED lil

STATUTES

Pages

National Labor Relations Act, as amended 29 U.S.C.,
§§ 151 et seq. ............ 2,3
TIE casts cncpdacesiens 3
OU is ee ATT eee ee 3
I chee cone a ee ra .. oo
Section 8(b)(2), 29 U.S.C. 158(b) (2) un... eeeeececeeee 13, 14
Cn RR TE eR i CA Ue aE ines 4
SE Ere MUI RIE ED wasrecisa cen teasers ciewsenicsndsvonandcnes 2

IN THE
Supreme Court of the United States

OcToBER TERM, 1979

RRS le

CHAUFFEURS, TEAMSTERS AND Hetpers Locau 150,
Joint Councit or Teamsters No. 38, and GrorGe

LaBrasca,
Petitioners,
Vs.
KENNETH W. SHERROD,
Respondent.

Petition for Writ of Certiorari to the Court of
Appeal of the State of California in and
for the Third Appellate District

Petitioners Chauffeurs, Teamsters and Helpers Local
150, Joint Council of Teamsters No. 38, and George La-
Brasca, petition for a Writ of Certiorari to review the
judgment of the Court of Appeal of the State of Cali-
fornia in and for the Third Appellate District in the above-
entitled case.

OPINIONS BELOW

The opinion of the Court of Appeal of the State of
California for the Third Appellate District, hereafter
ealled the District Court of Appeal, is not officially re-
ported. It is reprinted in Appendix A to this Petition.

2
The Supreme Court of California denied a Petition for
Hearing in an order without opinion.

JURISDICTION

The decision of the District Court of Appeal affirming
the trial court’s judginent following a jury verdict was
issued on July 9, 1979. .\ timely Petition for Hearing was
thereafter filed in the Supreme Court of California. The
Petition for Hearing was denied without opinion on
September 6, 1979. The jurisdiction of this Court is
invoked under 28 U.S.C. Section 1257(3).

QUESTIONS PRESENTED
1. Whether the principles of federal preemption in

labor law, as stated in Farmer v. Carpenters Local 235,
430 U.S. 290 (1977), forbid a state court award of general
and punitive damages for the tort of intentional infliction
of emotional distress based solely on union interference
with employment and expulsion from union membership
to discourage active participation in union affairs.

2. Whether the award of punitive damages for viola-
tion of the duty of fair representation of a union member
conflicts with the decision -of this Court in JBEW v.
Foust, ...... US. ......, 60 L. Ed. 2d 698 (May 29, 1979).

STATUTORY PROVISIONS
The questions presented arise in the context of the
comprehensive regulation of labor union activity con-
tained in the National Labor Relations Act, as amended
29 U.S.C. Sections 151, et seg. The provisions of that Act
which have the most significant bearing on the questions
are the following:

Section 1. * * *

It is hereby declared to be the policy of the United
States to eliminate the causes of certain substantial
obstructions to the free flow of commerce and to miti-
gate and eliminate these obstructions when they have
occurred by encouraging the practice and procedure of
collective bargaining and by protecting the exercise by
workers of full freedom of association, self-organiza-
tion, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and
conditions of their employment or other mutual aid or
protection.

Section 7. Employees shall have the right to self-
organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives
of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also

have the right to refrain from any or all such activities
* * *

Section 8 * * *

(b) It shall be an unfair labor practice for a labor
organization or its agents—

(1) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 7: Pro-
vided, That this paragraph shall not impair the right
of a labor organization to prescribe its own rules
with respect to the acquisition or retention of mem-
bership therein; or (B) an employer in the selection
of his representatives for the purposes of collective
bargaining or the adjustment of grievances;

+

(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of sub-
section (a)(3) or to discriminate against an em-
ployee with respect to whom membership in such
organization has been denied or terminated on some
ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership;

Section 9(a) Representatives designated or se-
lected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives
of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment * * *.

STATEMENT OF THE CASE

Respondent, an individual who was a member of Peti-
tioner Local 150, presented two claims to the jury: (1) that
by causing his discharge from employment, and by refus-
ing to arbitrate his grievance based on the discharge, Peti-
tioner violated the duty of fair representation imposed by
the National Labor Relations Act; and (2) that Petitioners
were guilty of intentionally causing respondent emotional
distress in causing his discharge from employment and his
expulsion from union membership. The underlying facts
which the jury could have found in favor of respondent to
support his claims are summarized below.

A. The Facts

Petitioner Local 150 is a labor organization affiliated with
the International Brotherhood of Teamsters and is located
in the Sacramento, California area. During the events in

5
this case its chief executive officer was Secretary-Treasurer
Carl Olsen. Petitioner George LaBrasca was a business
representative of Local 150 who had been elected on a
slate headed by Olsen (R.T. 39-40, 600).?

Petitioner Joint Council No. 38 is an organization com-
prised of local teamster unions inthe Sacramento and San
Joaquin valley areas of California. Delegates to Joint
Council No. 38 are the officers of each affiliated local union.
The Executive Board of the Joint Council is authorized to
hear and determine appeals from local union decisions in
disciplinary cases (Pl. Exh, 44, at pp. 84-88).

Respondent Kenneth Sherrod became a member of Local
150 in 1959, and in 1963 ran for one of the three trustee
positions on the executive board of Local 150, finishing
fourth and losing to the candidates backed by Olsen (R.7T.
8-13). Sherrod attended membership meetings and fre-
quently debated issues with the Union’s leadership; he was
often ruled out of order by Olsen (R.T. 749, 1009-1011).

Sherrod worked in the construction industry, and ob-
tained employment out of Local 150’s hiring hall. In June,
1965, Sherrod was dispatched from the hiring hall to
Kuckenberg Construction Company as a water truck
driver. While on the job, he made a number of complaints
to the Company about the safety of equipment and about
violations of the collective bargaining agreement (R.T. 21,
22, 24, 25, 301).

In July 1965, Business Representative LaBrasca talked
to the superintendent of Kuckenberg about having Sherrod
removed from his job (R.T. 634-635, 638-639). LaBrasca
described Sherrod as a troublemaker who wanted to run

1. References to R.T. are to the reporter’s transcript of the
proceedings at trial; C.T. references are to the clerk’s transcript
of pleadings; and Pl. Exh. and Def. Exh. references are to the
exhibits submitted by respondent Sherrod and the Petitioners at
trial.

6

against him in the next election. LaBrasea said Sherrod
would probably win and suggested that the superintendent
lay off Sherrod on the pretext that there was not enough
work for him (R.T. 630-639). LaBrasea told another member
of Local 150 to remain available to work at the Kuckenberg
job because there would be a layoff there “any day” (R.T.
42). Kuckenberg called the hiring hall that same day and
asked for another water truck driver to start the following
Monday, July 26 (R.T. 829-830). In these circumstances,
the inion customarily redispatched the laid off worker, but
LaBrasca instructed the Local 150 dispatcher to forget
about Sherrod and sent the next person on the hiring hall
list (R.T. 829-830, 833). The next driver worked on the job
until the fall of 1965 (R.T. 603, 605).

On July 23, 1965, Sherrod filed a grievance against the
Kuckenberg Construction Company, alleging that the Com-
pany had discharged him because of his complaints con-
cerning safety and improper assignment of work (R.T.
49-51). Under the grievance procedure, Sherrod’s grievance
was referred to the Board of Adjustment, a joint labor-
management committee composed of two management and
two union representatives (R.T. 52). The Board deadlocked
and Secretary-Treasurer Olsen, exercising his authority
under the Local 150 Bylaws and acting with the advice of
counsel, declined to take Sherrod’s grievance to arbitration
(R.T. 334, 352).

On December 13, 1965, Sherrod met with George Mock,
Vice President of the International Brotherhood of Team-
sters, and Local 150 Secretary-Treasurer Olsen at the In-
ternational’s office in Sacramento. Sherrod asked Mock and
Olsen to investigate his discharge from Kuckenberg and
see whether LaBrasca was involved. Sherrod was never
informed that any investigation had been conducted (R.T.
58-60, 62, 64-67).

7

On the same day, Sherrod filed internal union charges
against Secretary-Treasurer Olsen, challenging Olsen’s
refusal to take Sherrod’s grievance to arbitration. The
charge was ultimately scheduled for hearing on April 18,
1966, before a Local 150 Trial Board (R.T. 69-70). The
hearing was held in Sherrod’s absence, the Trial Board
denying his request for a postponement because of a con-
flicting meeting Sherrod had scheduled with National Labor
Relations Board personnel. The Trial Board found against
Sherrod and commended Olsen for not wasting the Local’s
funds by taking Sherrod’s grievance to arbitration (R.T.
69-72). Sherrod appealed this decision to Joint Council No.
38, which affirmed (R.T. 75).

In February 1966, Sherrod filed a charge against Local
150 with the National Labor Relations Board. Sherrod
alleged that Local 150 had violated that National Labor
Relations Act both by requesting his discharge from Kuck-
enberg and by failing to take his grievance to arbitration
(Def. Exh. K). After investigating Sherrod’s charge, the
Labor Board’s Regional Director refused to issue a com-
plaint. The Regional Director found (1) that the investiga-
tion “did not establish that the Union’s refusal to process
your grievance through arbitration was based on con-
siderations which are violations of the Act,” and (2) that
any complaint regarding Sherrod’s discharge was barred
because the discharge occurred more than six months before
the charge was filed (Def. Exh. L). The dismissal was
affirmed on appeal to the office of the Board’s General
Counsel (Def. Exh. N).? ;

2. The communication advising Sherrod of the denial of his
appeal, explained the decision as follows (Def. Exh. N) :

“Under all of the circumstances, including the evidence that

the Union had processed your grievance and obtained a pro-

posed $900 settlement which you rejected, and the evidence

8

Eight days after Sherrod filed the Labor Board charge,
Petitioner LaBrasca filed an internal union charge against
Sherrod. The charge alleged that Sherrod had falsely
accused LaBrasca of collusion with Kuckenberg Consruc-
tion Company in obtaining the discharge of Sherrod (R.T.
615). Another business representaiive had advised La-
Brasca to file the charges, indicating that Olsen had wanted
them filed (R.T. 618-619). On March 10, 1966, Sherrod filed
a counter charge against LaBrasca, expressly accusing La-
Brasca of involvement in the termination of his employ-
ment (R.T. 76).

The two charges were scheduled for hearing before a
Trial Board substantially similar in makeup to the Board
which had nine days earlier upheld Olsen’s refusal to take
Sherrod’s grievance to arbitration. Sherrod requested a
continuance of the hearing on two occasions, and was
granted the first but not the second. Sherrod was granted
an extension of time to submit post hearing written state-
ments of witnesses who could not attend the hearing, but
failed to meet the deadline (R.T. 83-86). He submitted two
of the three statements on May 24, 1966, but learned a day
later that a decision had been made by the Trial Board on
May 18. The decision found LaBrasca not guilty and Sher-
rod guilty, and Sherrod was expelled from Local 150 (R.T.
87-88).

Sherrod appealed his expulsion to Joint Council No. 38.
The Joint Council Executive Board heard Sherrod’s case
de novo on July 25, 1966 (Def. Exh. W). In a written deci-
sion, the Board upheld Sherrod’s suspension (PI. Exh. 27).

that the Union had acted on the advice of its counsel that
the case would be lost if it went to arbitration, insufficient
basis existed for a finding that the Union’s decision to drop
the grievance was attributable to any consideration other than
its good faith belief that it could not prevail before an
arbitrator.”

9
The Board agreed with Olsen’s decision not to arbitrate
Sherrod’s grievance, relying in part on the Labor Board’s
dismissal of the unfair labor practice charge.

Although the decision of the Executive Board of Joint
Council No. 38 indicated all members concurred, one of the
members neither participated in the Board’s deliberations
nor voted on the case. Prior to issuance of the decision, the
Board wrote this member that it would be assumed he
concurred in the decision unless he responded by a given
date, and he did not respond (R.T. 467-474, 890-899).

Sherrod appealed his expulsion to the International
Brotherhood of Teamsters, and the case was heard before
a special three member trial panel. The panel thereafter
recommended that the expulsion be sustained, but the
International Executive Board decided to take no further
action on the recommendation when, in the interim, Sherrod
was reinstated to membership in Local 150 in April 1968
(R.T. 118, 116).

There is evidence that on two occasions in 1966 Sherrod
was denied employment because a business agent of Local
150 had intereeded in job offers (R.T. 132-135, 127-132). He
was dispatched, however, from Local 150’s hiring hall to
short term jobs during 1966, and on one occasion worked
for three months for the same employer (R.T. 204-206).
Sherrod had steady employment when the complaint in this
case was filed.

B. Proceeding Below

Sherrod filed this action in May 1967 in the California
Superior Court for Sacramento County. Trial before a jury
was conducted on fourteen days in March and April 1973.
As pointed out by the District Court of Appeal, there were
originally five causes of action pleaded, but the case was

10

submitted to the jury upon instructions which presented
two claims: one for infliction of emotional distress, and the
other based upon a violution of the duty of fair represen-
tation (Apv.A, p. 19). The relevant jury instructions are
quoted in the decision of the District Court of Appeal (App.
A, pp. 19-22). The jury awarded Sherrod $50,000.00 in gen-
eral damages, and $125,000.00 in punitive damages against
the three petitioners, jointly and severally. Petitioner’s mo-
tion for a new trial was denied on June 14, 1973 (App.E).

Notice of appeal to the District Court of Appeal was
timely filed on June 27, 1973, but decision was not issued by
that Court until July 9, 1979. The Court upheld the verdict
rendered against defendants, finding that the case had gone
“to the jury on a valid legal theory without error” (App.
A, p. 34). In particular, the Court held that no part of plain-
tiff’s cause of action was preempted by federal labor law,
that the jury was properly allowed to award punitive dam-
ages, and that the evidence was sufficient to support a find-
ing that defendants had committed the tort of intentional
infliction of emotional distress (ibid.)

C. Presentation of the Federal Question in Proceeding Below

The question of whether the state courts had jurisdiction
to adjudicate this case was initially raised by Demurrer to
the original complaint (C.T. p. 13, attached to this Peti-
tion as Appendix B). The same question was raised again
by Demurrer to the First Amended Complaint (C.T. 47,
attached to this Petition as Appendix C). The trial court
sustained the first demurrer on unrelated grounds, with
leave to amend, and denied the demurrer to the First
Amended Complaint, without opinion (C.T. 59, attached to
this Petition as Appendix D). Petitioners again raised the
federal question in support of a motion for a new trial,

11
and the trial court rejected the contention in a short writ-
ten decision (C.T. 228, attached to this Petition as Appendix
I). As shown in the opinion of the District Court of Appeal,
the question of federal preemption was the principal issue
presented and decided on appeal.

The question of whether punitive damages could properly
be awarded was raised by proposed jury instructions, but
not on the ground that punitive damages are unavailable
under federal law principles governing suits for unfair
representation. The latter question was presented on mo-
tion for a new trial, and was rejected by the trial judge.’
Although the question of punitive damages was presented
to and dealt with by the District Court of Appeal, the briefs
did not diseuss this Court’s decision in IBEW v. Foust, ......
USS. ....... 60 L. Ed. 2d 698, which was decided on May 29,
1979. The latter decision was not called to the attention of
the District Court of Appeal.

REASONS FOR GRANTING THE PETITION

1. In Farmer v. Carpenters Local 25, 480 U.S. 290
(1977), this Court defined an area of conduct—‘outrageous
conduct causing the plaintiff to sustain mental distress”
(430 U.S. at 304)—for which state courts mights award
damages even though it occurred in the context of labor
activities which are exclusively regulated by federal labor
law. The decision recognizes that there exists “some risk
that the state cause of action for infliction of emotional
distress will touch an area of primary federal concern,”
and emphasizes “that concurrent state court jurisdiction

3. Pages 4 and 5 of Petitioners’ memorandum in support of the
motion for a new trial, where the question of punitive damages is
discussed, are attached to this Petition as Appendix F. The trial
court’s denial of the motion for new trial is attached to this Peti-
tion as Appendix E.

12

cannot be permitted where there is a realistic threat of
interference with the federal regulatory scheme.” 430 U.S.
at 303, 305. The balance struck by the Court between the
interest of the state in administering tort law and the inter-
est in maintaining the exclusiveness of federal regulation
of labor union activity, is a delicate one. Continuing super-
vision by this Court in the development of the law in this
area is appropriate and necessary if the exception to the
doctrine of federal preemption recognized in I’armer is not
to swallow the rule.

In the instant case, as we show more fully infra, the state
judgment appears to rest exclusively on labor law con-
siderations which the decision in Farmer holds to be im-
permissible in state court adjudication. This is accordingly
a proper case to clarify the line between state and federal
jurisdiction in the sensitive area dealt with in Farmer,
and to prevent the wrongful encroachment of state tort law
into the federally preempted area.

The second question presented-—whether the award of
punitive damages can stand—involves a simple application
of the ruling in JBEW vw. Foust, ........ Sen , 60 L. Ed.
2d 698 (May 29, 1979), that punitive damages may not be
granted for violations of a union’s duty of fair represen-
tation. The decision of the District Court of Appeal does
not refer to Foust, and it may be assumed that the Court
was unaware of this Court’s ruling, which was issued a
little more than one month prior to the decision below.
The upshot is that the decision below appears to be in direct
conflict with this Court’s holding in Foust, and it is there-
fore appropriate to correct it. We add that the sizeable
award of punitive damages made in this case constitutes
the kind of hardship of which this Court has taken note
both in Foust and Farmer. This factor also makes it appro-
priate to grant the Petition.

13

2. The evidence adduced by Sherrod in support of his
claims relates to five “wrongs” suffered by him: (1) his
discharge from his job at Kuckenberg Construction Com-
pany, (2) Local 150’s refusal to arbitrate his grievance,
(3) his expulsion from membership by Local 150, (4) the
failure of Joint Council No. 38 to restore his membership,
and (5) interference by Local 150 business agents in his
job opportunities. Each of these wrongs is governed in
whole or in part by federal labor law.

The first “wrong” is a breach oi Section 8(b)(2) of the
National Labor Relations Act, 29 U.S.C. 158(b) (2), because
LaBrasea, acting as an agent of Local 150, caused Sher-
rod’s discharge because of Sherrod’s activities within the
Union. See Radio Officers’ Union v. NLRB, 347 U.S. 17
(1954). It may also be a breach of Local 150’s duty of fair
representation because Local 150’s action in having Sher-
rod discharged was discriminatory and in bad faith. Sce
Vaca v. Sipes, 386 U.S. 171 (1967). In these circumstances
Sherrod could either file a charge with the Labor Board
(which he did, although too late) or sue Local 150 in either
state or federal court. Miranda Fuel Co., 140 N.L.R.B. 181
(1962), enforcement denied, 326 F.2d 172 (2d. Cir. 1963)
(Labor Board charge) ; Syres v. Oil Workers Local 23, 350
U.S. 892 (1955) (federal court); Steele v. Louisville &
Nashville R.R., 323 U.S. 192 (1944) (state court). In either
case Sherrod would be limited to a remedy of back pav.
See IBEW v. Foust, supra; Williams v. Pacific Maritime
Ass’n, 421 F.2d 1287 (9th Cir. 1970); St. Clair v. Local
515, Teamsters, 422 F.2d 128 (6th Cir. 1969} (back pay).

The second wrong gives rise to a classic unfair repre-
sentation ease. See Vaca v. Sipes, 386 U.S. 171 (1967) (fail-
ure to arbitrate grievance). Such a claim arises under the
National Labor Relations Act.

14

The third wrong is a breach by Local 150 of the mem-
bership contract between it and Sherrod. See International
Ass’n of Machinists v. Gonzales, 365 U.S. 617 (1958) ; Ding-
well v. Amalgamated Street Railway Employees, 4 Cal.
App. 565 (1906). Despite contrary language in Gonzales,
356 U.S. at 620-623, it is now clear that under federal labor
law damages for loss of employment resulting from lack of
union membership may not be awarded as the result of a
suit for breach of the membership contract. Motor Coach
Employees v. Lockridge, 403 U.S. 274 (1971); Local 100,
Journeymen v. Borden, 373 U.S. 690 (1963). These cases
clearly establish the proposition that interference with em-
ployment on the basis of union membership is subject to
the exclusive jurisdiction of the Labor Board. Indeed Sher-
rod went to the Labor Board on two occasions in 1966 for
claims of just this sort. Nor, under state law, are punitive
damages recoverable for breach of the membership con-
tract. Crogan v. Metz, 47 Cal. 2d 398 (1956); Fletcher v.
Western Nat'l Life Ins. Co., 10 Cal. App. 3d 376, 400 (1970).

The fourth wrong states an identical cause of action
against Joint Council 38 for breaching its membership con-
tract by failing to reinstate Sherrod to membership. The
same limitations on damages apply, and Sherrod could on
this claim recover neither punitive damages nor damages
for lost employment against Joint Council 38 in a state
court suit.

The fifth wrong is within the exclusive jurisdiction of
the Labor Board because it is interference by Local 150 in
Sherrod’s employment contrary to Section 8(b)(2) of the
National Labor Relations Act, 29 U.S.C. § 158(b) (2). Wo-
tor Coach Employees v, Lockridge, 403 U.S. 274 (1971);
San Diego Building Trades Council v. Garmon, 359 U.S.
236, 244-245 (1959). |

15

From the foregoing, it is apparent that the incidents
which constitute the basis of the infliction of emotional
distress are employment discrimination, bad faith in the
handling of a grievance, and wrongful expulsion from
membership. These are considerations which this Court
has held in Farmer v. Carpenters Local 25, supra, cannot
be the ingredients of a judgment for the tort of intentional
infliction of emotional distress. As summarized in Farmer,
430 U.S. at 305 (emphasis added; footnote omitted) :

“(We reiterate that state court jurisdiction cannot
be permitted where there is a realistic threat of inter-
ference with the federal regulatory scheme. Union dis-
crimination in employment opportunities cannot itself
form the underlying “outrageous” conduct on which
the state court tort action is based; to hold otherwise
would undermine the pre-emption principle. Nor can
threats of such discrimination suffice to sustain state
court jurisdiction. It may well be that the threat,. or
actuality, of employment discrimination will cause a
union member considerable emotional distress and
anxiety. But something more is required before concur-
rent state court jurisdiction can be permitted. Simply
stated, it is-essential that the state tort be either unre-
lated to employment discrimination or a function of
the particularly abusive manner in which the discrim-
ination is accomplished or threatened rather than a
function of the actual or threatened discrimination
itself.”

Sherrod offered no evidence at trial that the mistreat-
ment of which he complains was administered in an “abu-
sive manner.” The record shows no examples of personal
abuse other than the events themselves. Nor can the five
alleged wrongs be considered in combination to form the
basis of the kind of outrageous conduct or of a “partic-

16

ularly abusive manner” cf administering union action over
which states may assert jurisdiction. To permit the tort
found by the jury to stand because of a concentration of
several individual incidents, each of which is totally reg-
ulated by federal labor law, presents as much or more
danger of upsetting the balance struck in Parmer as does
basing the tort on any one incident.

In sum, the decision below conflicts with this Court’s
ruling in Farmer, and constitutes the kind of interference
with federal regulatory scheme which cannot be permitted
to stand.

3. The verdict returned in this case does not specify
that puntive damages were awarded for violation of the
duty of fair representation, but neither does it specify that
such damages were based solely on the infliction of emo-
tional distress. The jury instructions did not distinguish
between the evidence which would be separately relevant to
each of the two claims. The instructions suffer from the
same imprecision and confusion which prompted this
Court’s criticism of the jury instructions in Farmer, supra,
at 306-307. The consequence is that the jury was allowed
to award punitive damages based on evidence of a breach
of the duty of fair representation. This result is in direct
conflict with IBEW v. Foust, ...... US. ......, 60 L. Ed. 2d
698 (May 29, 1979).

17
CONCLUSION

For all of the foregoing reasons it is respectfully sub-
mitted that the Petition for Writ of Certiorari should be
granted.

December 1979.

3xrEson, Tayer, Kovacn & SitBert
Duane B. Besson, Esa.,
Patrick J. SzyMAnskI, Esq.

Attorneys for Petitioners

19
Appendix A

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COPY

In The Court of Appeal of the State of California
Inand for the Third Appellate District

(Sacramento)

KENNETH W. SHERROD,
Plaintiff and Respondent,

me 3 Civ. 14347

(Super.Ct.

CHAUFFEURS, TEAMSTERS AND HELPERS No. 175600)
Locau 150, Jornr Counc or TEAM-

sters No. 38 and Grorce LaBrasca, July 9, 1979

Defendants and Appellants.

Plaintiff is a construction Teamster. Until his expulsion
in May 1966 he was a member of Chauffeurs, Teamsters
and Helpers Local Union No. 150 (hereinafter Local 150
or Union), a defendant in this action. In June 1965 plaintiff
was terminated from a construction job with Kuckenberg
Construction Company (Kuckenberg) under circumstances
which led him to believe he had grounds for a grievance
against his erstwhile employer. The Union, however, re-
fused to arbitrate his grievance, and the National Labor
Relations Board (NLRB) declined jurisdiction of plain-
tiff’s charges against the Union based upon that refusal.
Subsequently, plaintiff was expelled from the Union after
a Union trial board sustained charges that he had falsely
accused defendant George LaBrasca, a Union business
agent, of arranging the Kuckenberg discharge.

20 Appendix A

No longer a Union member, plaintiff was disadvantaged
in securing employment. His wages were reduced from
their former level and on occasion he was financially im-
poverished.

In May 1967 plaintiff commenced this action for damages
against Local 150, Joint Council of Teamsters No. 38
(Council), LaBrasca and others (against whom judgment
was not taken). His first amended complaint, on which he
proceeded to trial, sets forth five counts or causes of action,
which he designates and refers to as wrongful expulsion,
refusal to restore to Union membership, wrongful inter-
ference with the right to work, prevention of exercise of
the right to be a candidate for Union office (business
agent), and conspiracy to do all the foregoing. The detailed
factual allegations (which are substantially included in
our summary of the evidence hereinafter set forth) are
sufficient to support the tort of intentional infliction of
emotional distress, even though none of the counts are so
designated. Compensatory and punitive damages were
sought. A jury awarded plaintiff $50,000 compensatory and
$125,000 punitive damages. Defendants appeal, contending
principally that state court jurisdiction over the contro-
versy is preempted by the National Labor Relations Act
(NLRA).

Despite the five causes of action pleaded, the case was
submitted to the jury primarily on an emotional distress
theory. Arguably, it also went to the jury on the theory
of the Union’s duty of fair representation. (Vaca v. Sipes
(1967) 386 U.S. 171, 177; Miranda Fuel Company, Inc., 140
N.L.R.B. 181 (1962).) We here set forth all the substantive
law instructions given to the jury:

1.1 “In this action, the plaintiff has the burden of estab-
lishing by a preponderance of the evidence all of the facts

1. The numbering is our own for purposes of easy reference
throughout this opinion.

Appendix A 21
necessary to prove the following issues: 1. That the de-
fendants or some of them intentionally by outrageous con-
duct inflicted upon plaintiff severe emotional distress. 2.
That said conduct proximately caused injury and damage
to plaintiff. 3. The nature and extent of said injury and
damage and the amount thereof.”

2. “Before a plaintiff may recover for the infliction of
severe emotional distress, the cause of it must proximately
result from intentional outrageous conduct on the part of
the defendants. Outrageous conduct is that behavior which
is completely unreasonable and without justification in the
handling of business or personal relationships.”

3. “Two of the factors which may be considered by you
in determining the severity of the plaintiff’s emotional
distress, if any, is the duration the plaintiff’s shame, humili-
ation, worry and anxiety persisted and the intensity of it.
‘Severe’ means, in this context, substantial or enduring, as
distinguished from trivial or transitory. It must be of such
substantial quantity or enduring quality that no reasonable
man in a civilized society should be expected to endure it.
Liability does not extend to mere insults, indignities, an-
noyances, petty oppressions or trivialities [s7zc].”

4. “‘Severe emotional distress’ as will permit you to
find for a plaintiff, must in fact exist and it must be severe.
It may consist of any highly unpleasant mental reaction
such as fright, grief, shame, humiliation, embarrassment,
anger, chagrin, disappointment or worry.”

5. “A breach of the union’s duty of fair representation
occurs only when the union’s conduct toward a member of
the collective bargaining unit is arbitrary, discriminatory,
or in bad faith. Mere negligence or bad judgment on the
part of the union or its representatives does not constitute
a breach of duty of fair representation.”

24 Appendix A

job. He later told Waddell to remain available to work at
the Kuckenberg job because there would be a layoff there
“any day.”

On July 22, 1965, plaintiff was laid off due to a reduction
in foree. He visited the job site a few days later and dis-
covered that all water trucks were operating and another
teamster had been hired in his place. It was the Union’s
custom in reduction-in-force circumstances to redispatch
to the same job any person laid off if a person of the same
skill was again needed within 30 days. Contrary to that
custom, LaBrasca instructed the Local 150 dispatcher not
to send plaintiff back to the job when Kuckenberg called
for another water truck driver.

During the short time plaintiff was employed by Kucken-
berg, he lodged several complaints with the foreman and
job superintendent with reference to misassignment of
work and equipment safety violations. Believing he had
lost his job due to these complaints, plaintiff filed a griev-
ance to get his job back. The matter was considered by a
grievance committee comprised of two persons represent-
ing the Union and two persons representing the employer.
The committee deadlocked over whether plaintiff should
be restored to his job.

Plaintiff’s next remedy was arbitration. The two Union
members of the grievance committee voted to submit the
dispute to arbitration. Plaintiff requested of Carl Olsen,
Local 150’s secretary-treasurer and chief executive officer,
that the matter be submitted to arbitration but Olsen re-
fused.

Plaintiff filed internal Union charges agaist Secretary-
Treasurer Olsen to challenge his refusal to arbitrate. A
meeting of the Union trial board was set for April 18 to
consider the charges. Plaintiff notified the trial board that
he would be unable to appear because he was preparing for

<_— rr

Appendix A 25
a National Labor Relations Board trial the following morn-
ing. The Union trial was held in his absence with the trial
board finding against plaintiff and in favor of Secretary-
Treasurer Olsen.

Thereafter one of the Union members on the grievance
committee informed plaintiff that he had been told by a
Union official that Business Agent LaBrasca had precipi-
tated plaintiff’s discharge. Plaintiff then went to Interna-
tional Teamster headquarters and talked to Vice-President
George Mock. Plaintiff told Mock he was informed that
LaBrasca was illegally involved with his discharge from
Kuckenberg and asked him to ascertain the truth of the
matter. To plaintiff’s knowledge, no action was ever taken.

Plaintiff filed an unfair labor practice charge with the
NLRB based upon the Union’s failure to arbitrate his dis-
charge by Kuckenberg, alleging that Olsen and LaBrasca
had conspired to engineer his discharge by Kuckenherg.
The NLRB refused jurisdiction after being informed by
counsel for the Union that arbitration had been denied
because in his legal opinion the Union had a less than even
chance to win. Eight days after plaintiff filed the NLRB
proceeding, LaBrasea filed internal Union charges against
plainti# citing him for accusing LaBrasca of illegally ob-
taining plaintiff’s discharge. Jack Grady, another union
business agent, instructed LaBrasca to file the charges,
indicating that Olsen had directed the move. Plaintiff re-
sponded by filing internal Union charges against LaBrasca
alleging LaBrasca’s involvement in his discharge by Kuck-
enberg.

All charges were set for hearing before a Union trial
board on April 27, 1966. LaBrasca was unable to attend
and so informed the trial board. The hearing was continued
despite plaintiff’s objection and the further fact that under
the Union’s constitution, failure of the charging party to

26 Appendix A

appear in person or present evidence before a trial or
appellate body on the date set for trial mandates dismissal
of the charges and precludes retrial of the same charges.

The matter was tried on May 6. A crucial witness for
plaintiff had appeared on the originally scheduled trial
date but did not appear on May 6. Plaintiff asked for a
postponement until that witness could attend and also to
secure the testimony of another witness. The trial board
denied a continuance, but offered plaintiff until May 16 to
file with the board his evidence. Plaintiff was unable to
obtain the witness’ statements by the 16th and by letter
requested additional time until 5 p.m., May 24, 1966. The
statements were delivered to the Union’s office before May
24. However, the Union notified plaintiff by letter dated
May 23 that the trial board had exonerated LaBrasea and
found plaintiff guilty upon LaBrasca’s charges and expelled
him from the Union. The Union trial board had met and
reached this decision on May 18.

Plaintiff appealed the expulsion decision to defendant
Joint Council 38. A de novo hearing was held on July 25,
1966, after which the Council upheld plaintiff’s expulsion.
Secretary-Treasurer Olsen normally sat as a Council mem-
ber vut on this occasion was replaced by Benny Juarez.
The evidence was not discussed by the Council in Juarez’
presence nor was he given the opportunity to vote on plain-
tiff’s guilt or innocence. Juarez did not sign the decision
expelling plaintiff; moreover, it was not presented to him
for his signature even though it purported to be signed by
him.

Juarez received a letter from the Joint Council informing
him that it would be assumed he would coneur with the
decision unless he responded by a date which had already
passed. Juarez did not know what penalty was imposed
until several months later when he talked with LaBrasea

Appendix A 27
who thanked him, stating that it was “either him [plaintiff]
or [”.

Plaintiff appealed his expulsion to the International
Union. Their hearing was held but no decision was ever
rendered because in the interim plaintiff was reinstated by
the Union. On one occasion LaBrasca stated that plaintiff
was reinstated because in the opinion of the leadership he
would prevail in a court action.

After his expulsion plaintiff worked intermittently for
both Union and nonunion employers. The irregular nature
of his work is explained in part by its seasonal nature.
Plaintiff drove a water truck and the normal annual period
of such employment is May 1 to November 1. He obtained
some employment under the “five-year letter” provision
whereby a person with a minimum of 240 hours work in
each of the preceding five years could arrange employment
without first being on the Union dispatch list. Plaintiff also
signed the “out-of-work” list at the hiring hall each month,
as did unemployed Union members.

The evidence disclosed an effort by Union officials to
limit plaintiff’s job opportunities. On one occasion he sought
employment with the Wendt Construction Company which
was building an airport near his home. Although told that
a job would become available, he was not hired. He ascer-
tained that a Union business agent had told an employer
not to hire him. Plaintiff filed unfair labor practice charges
against the local with the NLRB and was awarded three
days’ back pay. Plaintiff also sought employment with the
McKeown Transportation Company, but was told by a
McKeown representative that a Union business agent had
told the company not to hire him. He filed charges against
the Union with the NLRB which were dismissed because
they had not been filed within the statutory period.

28 Appendiz A

Plaintiff's earnings suggest a loss in employment oppor-
tunities during his expulsion. In 1964 he earned $8,566; in
1965 he earned $3,120; in 1966 — $4,174; in 1967 — $5,868 ;
and in 1968 — $7,154. During that period it became neces-
sary for plaintiff to refinance his house in order to maintain
the mortgage payments. His wife returned to work in order
to obtain insurance. Although plaintiff was afraid that all
his family medical bills would not be paid by the Teamster
insurance, those fears proved largely unfounded. However,
plaintiff did have to request a reduction in the adoption fee
for the child which he and his wife adopted in 1966. It is
conceded that there could well be a relationship between
the small volume of the work available during the winter
of 1966 and 1967 and the fact that plaintiff was not obtain-
ing work.

Plaintiff testified that he was emotionally affected by his
dismissal from the Union. He felt shame and humiliation,
and thought that his former Union colleagues were no
longer friendly toward him. Persons were no longer as
helpful in assisting him to find work. Companies were aware
of plaintiff’s expulsion and were not as willing to hire him.
Some Union members thought that plaintiff should not be
allowed to work since he was no longer a Union member.
Plaintiff felt shame and humiliation when asking about
employment from persons he knew. He always was con-
cerned that the fact of his expulsion would be brought up.
He was aware on many occasions that the fact of his expul-
sion was known to persons with whom he was talking. He
found that he was unable to sleep as before and would have
to get up at night.

B. Preemption
The United States Supreme Court has on frequent occa-
sions described the preemption doctrine in the context of

Appendix A 29
the federal labor law: “The constitutional principles of
pre-emption, in whatever particular field of law they
operate, are designed with a common end in view: to avoid
conflicting regulation of conduct by various official bodies
which might have some authority over the subject matter.
... L§] The course of events that eventuated in the enact-
ment of a comprehensive national labor law, entrusted for
its administration and development to a centralized, expert
agency, as well as the very fact of that enactment itself,
reveals that a primary factor in this development was the
perceived incapacity of common-law courts and state legis-
latures, acting alone, to provide an informed and coherent
basis for stabilizing labor relations conflict and for equit-
ably and delicately structuring the balance of power among
competing forces so as to further the common good....

“!NJothing could serve more fully to defeat the congres-
sional goals underlying the Act than to subject, without
limitation, the relationships it seeks to create to the con-
current jurisdiction of state and federal courts free to apph
the general local law. Nor would an approach suffice that
sought merely to avoid disparity in the content of proserip-
tive behavior rules... . Congress in establishing overriding
federal supervision of labor law ‘did not merely lay down
a substantive rule of law to be enforeed by any tribunal
competent to apply law generally to the parties. It went
on to confide primary interpretation and application of its
rules to a specific and specially constituted tribunal and
prescribed a particular procedure .... Congress evidently
considered that centralized administration of specially de-
signed procedures was necessary to obtain uniform appli-
cation of its substantive rules and to avoid those diversities
and conflicts likely to result from a variety of local proce-
dures and attitudes toward labor controversies. ... A mul-
tiplicity of tribunals and a diversity of procedures are quite

4

30 Appendix A

as apt to produce incompatible or conflicting adjudications
as are different rules of substantive law.’” (Fn. omitted;
Motor Coach Employees v. Lockridge (1971) 403 U.S. 274
[29 L.Ed.2d 473, 482-483].)

“The doctrine of pre-emption in labor law has been shaped
primarily by two competing interests. On the one hand...
{the Supreme Court] has recognized that ‘the broad powers
conferred by Congress upon the National Labor Relations
Board to interpret and to enforce the complex Labor Man-
agement Relations Act ... necessarily imply that poten-
tially conflicting “rules of law, of remedy, and of adminis-
tration” cannot be permitted to operate.’ [Citations.] On
the other hand, because Congress has refrained from pro-
viding specific directions with respect to the scope of pre-
empted state regulation, the [Supreme] Court has been
unwilling to ‘declare pre-empted all local regulations that
touches or concerns in any way the complex interrelation-
ships between employees, employers, and unions... .’
[Citation.] Judicial experience with numerous approaches
to the pre-emption problem in the labor law area eventually
led to the general rule set forth in [San Diego Bldg. Trades
Council v. Garmon (1959) 359 U.S. 236 [3 L.Ed.2d 775] ...:

““When it is clear or may fairly be assumed that the
activities which a State purports to regulate are protected
by §7 of the National Labor Relations Act, or constitute
an unfair labor practice under § 8, due regard for the fed-
eral enactment requires that state jurisdiction must yield.
To leave the States free to regulate conduct so plainly
within the central aim of federal regulation involves too
great a danger of conflict between power asserted by Con-
gress and requirements imposed by state law.’ [3 L.Fd.2d
at p. 782.]

“But the same considerations that underlie the Garmon
rule have led the [Supreme Court] to recognize exceptions

Appendix A . 81
in appropriate classes of cases. We have refused to apply
the pre-emption doctrine to activity that otherwise would
fall within the scope of Garmon if that activity ‘was a
merely peripheral concern of the Labor Management Rela-
tions Act ... [or] touched interests so deeply rooted in
local feeling and responsibility that, in the absence of com-
pelling congressional direction, we could not infer that
Congress had deprived the States of the power to act.’”
(Fns. omitted; Farmer v. Carpenters (1977) 430 U.S. 290
[51 L.Ed.2d 338, 347-348].)

The “peripheral concern” exception in Garmon resulted
from the Supreme Court decision in International Asso.
Machinists v. Gonzales (1958) 356 U.S. 617 [2 L.Ed.2d
1018], wherein the court allowed an expelled union member
to sue his union for reinstatement and wage loss. The court
concluded that the matter was not pre-empted because the
federal labor law had not undertaken to protect union mem-
bers against arbitrary union conduct and the state court
remedy should be utilized to “fill up” the limited remedy
available to the discharged member under the NLRA. The
effect of Gonzales, which seemingly permits state court
jurisdiction of any suit by a member against his union was
blunted by two subsequent cases, Association of Journey-
men v. Borden (1963) 373 U.S. 690 [10 L.Ed.2d 638], and
Tron Workers Union v. Perko (1963) 373 U.S. 701 [10
L.Ed.2d 646]. In both Perko and Borden, the plaintiffs
sought damages for their unions’ interference with their
right to seek employment opportunities. The Supreme Court
stressed that the crux of the lawsuits was not directed at
internal union matters, but rather, at alleged interference
with existing or anticipated employment relations which
arguably comes within the Board’s jurisdiction. (See
Borden, supra, 373 U.S. at p. 694, and Perko, supra, at p.

32 Appendix A

705.) The court noted further that since plaintiffs were not
seeking reinstatement, there was “no permissible state
remedy to which the award of consequential damages for
loss of earnings might be subordinated.” (Perko, supra,
373 U.S. at p. 705.)

Nonetheless, in certain instances the nature of the con-
duct to be regulated is of paramount local concern and will
not be preempted without compelling congressional direc-
tion. Cases falling within this exception have involved tort
actions for the recovery of compensatory and punitive
damages. (International Union, U.A., A.& A.I.W. v. Rus-
sell (1958) 356 U.S. 634 [2 L.Ed.2d 1030] (mass picketing
and threats of violence); United Constr. W. v. Laburnum
‘Constr. Corp. (1954) 347 U.S. 656 [98 L.Ed. 1025] (mass
picketing, threats of violence, loss of business); Linn v.
United Plant Guard Workers (1966) 383 U.S. 53 [15 L.Ed.
2d 582] (malicious libel); Farmer v. Carpenters, supra,
430 U.S. 290 [51 L.Ed.2d 338] (intentional infliction of
emotional distress).) The cases have not been subjected to
the preemption doctrine because the underlying conduct is
not protected by the act, the state has an overriding inter-
est in protecting its citizens against the conduct complained
of and the matters at issue in the state suit would not be
relevant to the Board’s determinations and vice versa
(Farmer, supra, [51 L.Ed.2d at p. 349]).

In Farmer v. Carpenters, supra, plaintiff’s decedent was
the victim of employment discrimination allegedly result-
ing from internal political struggles accompanied by per-
sonal abuse and harrassment. His action for damages was
couched in several counts. He sought recovery for emo-
tional distress and in other counts, for employment dis-
crimination, breach of the collective bargaining agreement
and his membership contract. A demurrer was sustained to

Appendix A 33
all but the emotional distress count upon which plaintiff
proceeded to trial and was awarded $7,500 actual and
$175,000 punitive damages against the Union, the District
Council, and the business agent. The award was reversed
by the California Court of Appeal predicated upon its con-
clusion that Garmon, supra, Perko, supra, and Borden,
supra, controlled in that the essence of the action involved
employment relations. The Supreme Court focused upon
the elements of the cause of action for intentional infliction
of emotional distress and noted that the conduct embraced
therein is not protected by the NLRA; that although in the
context of the other allegations of discrimination and hir-
ing hall referrals, the conduct might constitute unfair labor
practice within the jurisdiction of the Board, the state has
a substantial interest in protecting its citizens; and that
the tort aspects of the conduct could be litigated with min-
imal potential for interference with the federal labor law
scheme. (Farmer, supra, 430 U.S. 290 [51 L.Ed.2d at pp.
351-352].) ;

The Farmer court concluded by cautioning that the doc-
trine of preemption must not be undermined by allowing
union discrimination in employment opportunities itself to
constitute the “outrageous” conduct upon which the state
tort action is based. “It may well be that the threat, or
actuality, of employment discrimination will cause a union
member considerable emotional distress and anxiety. But
something more is required before concurrent state court
jurisdiction can be permitted. Simply stated, it is essential
that the state tort be either unrelated to employment dis-
crimination or a function of the particularly abusive man-
ner in which the discrimination is accomplished or threat-
ened rather than a function of the actual or threatened
discrimination itself.” (430 U.S. 290 [51 L./d.2d at p. 353].)
The court additionally emphasized that recovery could not

34 Appendix A

be predicated “on the type of robust language and clash of
strong personalities that may be commonplace in various
labor contexts” and admonished the state trial courts of
their duty to assure that damage awards are not excessive.
({Id., at pp. 353-354]. )

Evaluating this case under the foregoing principles and
authorities, we observe immediately that it fits squarely
within the confines of the state action permitted by the
Farmer case. The case went to the jury on an emotional
distress theory, as shown by instructions Nos. 1, 2, 3 and 4.
The jury was limited to the requirement of outrageous
conduct, as stressed by Farmer v. Carpenters, supra, 430
U.S. 290 [51 L.Ed.2d at p. 353]; it was not permitted to
award damages for interference with plaintiff’s employ-
ment opportunities (see Instr. No. 10, supra), as cautioned
by Farmer (cbid.). It almost appears that the trial court
foresaw the Supreme Court’s decision in Farmer, for it
structured its submission to the jury very much in accord
therewith.

Instruction No. 5 deals with Local 150’s duty of fair rep-
resentation, an area also not preempted by the NLRA (see
Vaca v. Sipes, supra, 386 U.S. 171 [17 L.Ed.2d 842]; Farmer
v. Carpenters, supra, 430 U.S. 290 [51 L.Ed.2d at p. 348];
Bryson, A Matter of Wooden Logic: Labor Law Preemption
and Individual Rights (1973) 51 Texas L.Rev. 1037, 1063).
While that duty was placed before the jury, the latter was
not, strictly speaking, authorized to find liability based
upon it in view of the limitation of Instruction No. 1, but in
any case recovery on that theory was certainly permissible.

Instructions Nos. 6, 7, 8 and 9 only furnished guidance to
the jury; they did not permit it to award damages on any
theory other than intentional infliction of emotional distress,

Appendix A 35
and possibly the duty of fair representation. Indeed these
were limiting instructions generally more favorable to the
defense than to the plaintiff.

Thus the case went to the jury on a valid legal theory
without error. The preemption argument cannot be sus-
tained.

C. Punitive Damages.

Defendants claim that the court erred in permitting the
jury to consider and ultimately award punitive damages.
The primary thrust of this argument is that punitive dam-
ages may not be awarded for breach of contract (Civ. Code,
§$ 3294) and any duty breached by defendants is based upon
contract.

As above noted, the case went to the jury on a tort theory,
intentional infliction of emotional distress, for which puni-
tive damages are not proscribed (Fletcher v. Western Natl.
Life Ins. Co. (1970) 10 Cal.App.3d 376, 400-401). Civil Code
section 3294 provides that “. . . where the defendant has
been guilty of oppression, fraud, or malice, express or im-
plied, the plaintiff, in addition to the actual damages, may
recover damages for the sake of example and by way of
punishing the defendant.” The evidence, as above sum-
marized, supports the jury determination that the conduct
of defendants was such as to justify a punitive damage
award.

D. Sufficiency of Evidence.

Defendants claim that no defendant committed the tort
of intentional infliction of emotional distress, arguing that
there was no outrageous conduct, no intent, no severe or
extreme distress, and no proximate cause. In effect this is
a sufficiency of evidence argument upon which we need not
dwell. As outlined above, the evidence was more than suf-
ficient.

36 Appendix A
Ki. Compensatory Damages.

Next defendants claim that the evidence does not support
the amount of $50,000 for compensatory damages. In gen-
eral, the power of a reviewing court to declare excessive an
award of damages exists only when it can be econeluded from
the entire record that the award was the result of passion
or prejudice. (Ilorn v. Guaranty Chevrolet Motors (1969)
270 Cal App.2d 477, 484.) All presumptions are in favor of
the verdict and judgment. When the trial court has indi-
cated its approval of an award by failing to reduce it, the
reviewing eourt will hesitate to declare the amount exces-
sive? (Finney v. Lockhart (1950) 85 Cal.2d 161, 164; Harris
v. Lampert (1955) 131 Cal. App.2d 751, 752-753).

Herein, as the trial court stated, the evidence supporting
the sizeable award of compensatory damages was adequate
even though not overwhelming. Plaintiff testified as to his
embarrassment and humiliation on repeated occasions; his
extreme and protracted mental anguish, his diffieulty in
obtaining other work, his grave concern and worry over a
long period of time and his severe apprehension. Further
the jury was entitled to consider the numerous hearings
which were required due to the defendants’ conduct. The
compensatory damage award must be sustained.

F. Punitive Damages.

We rejec! a similar challenge to the claimed exeessiveness
of the punitive damage award. Considering the evidence
presented, the jury determination will not be disturbed.
(See Alterauge v. Los Angeles Turf Club (1950) 97 Cal.
App.2d 735.)

2. The trial court denied a new trial motion predicated on
excessive damages.

Appendix A 37
G. Other Contentions.

Other contentions are made by defendants which we do
not expressly discuss. They are included either directly or
indirectly within our comments or lack suflicient merit to
warrant individual treatment.

The judgment is affirmed.

PUGLIA, P. J.
We concur:
REGAN, J.

IKVANS, J.

38

Appendix B
FILED
Aug 8, 1969

W. N. Durley, Clerk
By H. Farmer
Deputy

LE PROHN & LE PROHN
315 Montgomery Street

San Francisco, California 94104
Telephone: 981-0430

Attorneys for Defendants

Superior Court of the State of California
County of Sacramento

Kenneth W. Sherrod,
Plaintiff,
v.

Chauffers, Teamsters, and Helpers, Local
Union No. 150, of Sacramento, Califor-
nia, Joint Council of Teamsters No. 38,
a Joint Council of the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of Ameri-
ca, Carl J. Olsen, George M. LaBrasca,
Richard Henry, Howard Yaeger, Doe
I, Doe II, Doe ITI, Doe IV, Doe V, Doe
VI, Doe VII, Doe VIII, Doe IX, Doe X,
Doe XI, Doe XII, Doe XIII, Doe XIV,
Doe XV, Doe XVI, Doe XVII, Doe
XVIII, Doe XIX, and Doe XX,

Defendants.

No. 175 600

DEMURRER TO COMPLAINT
| a

Defendants CHAUFFEURS, TEAMSTERS AND
HELPERS LOCAL UNION NO. 150; JOINT COUNCIL
OF TEAMSTERS NO. 38; CARL J. OLSEN; GEORGE
M. LABRASCA, RICHARD HENRY and HOWARD

Appendix B 39
YAEGER demur to the First Cause of Action in the Com-
plaint in this action on each of the following grounds:

(1) The Court has no jurisdiction of the subject matter
of the First Cause of Action in that the subject matter of
said cause of action has been preempted by federal labor
law.

(2) The Court has no jurisdiction of the subject matter
of this cause of action under the law of the State of Cali-
fornia.

(3) The First Cause of Action does not state facts suffi-
cient to constitute a cause of action against these demur-
ring defendants or any of said defendants.

(4) The First Cause of Action is uncertain in that it
cannot be ascertained therefrom:

(a) What is meant by the phrase “rights and privi-
leges of such membership” as that phrase is used in
paragraph VII, line 17, page 3 of the First Cause of
Action;

(b) Whether the right to work under collective bar-
gaining agreements alleged in paragraph VII, lines 18
and 19, page 3 of the First Cause of Action is a written
or oral right of membership ;

(c) Whether or not the hearings alleged in para-
graph X, lines 13-16, page 4 of the First Cause of
Action were hearings held on charges made against
plaintiff by defendant LABRASCA ;

(d) Whether or not plaintiff received notice of the
hearings alleged at paragraph X, lines 13-16, page 4
of the First Cause of Action;

(e) Whether or not plaintiff was permitted to pre-
sent evidence on his own behalf at the hearings alleged

+0 Appendix B
in paragraph X, lines 13-16, page 4 of the First Cause
of Action;

(f) Whether or not plaintiff was given the oppor-
tunity to confront and cross-examine his accusers at
the hearings alleged at paragraph X, lines 13-16, page
4 of the First Cause of Action;

(g) Whether or not plaintiff was given the oppor-
tunity to confront and cross-examine adverse wit-
nesses at the hearings alleged at paragraph X, lines
13-16, page 4 of the First Cause of Action;

(h) Whether or not each individually named de-
fendant is alleged to have done the acts set forth in
the First Cause of Action in his individual capacity
or in his capacity as an agent of defendant Local 150;

(i) The meaning of the word “Teamster” as that
word is used in paragraph XII, line 1, page 5 oi the
First Cause of Action;

(j) Whether or not plaintiff is alleging that mem-
bership in defendant Local 150 is a condition prece-
dent to employment as a ““Teamster”.

(5) It cannot be ascertained from the First Cause of
‘Action whether the Constitution or By-laws of defendant
Local 150 referred to in paragraph VIII, line 2, page 4 of
the First Cause of Action are written or oral.

Il.

These demurring defendants, and each of them, demur
to the Second Cause of Action in the Complaint in this
action on the following grounds:

(1) These demurring defendants demur to the Second
Cause of Action on each of the grounds heretofore set
forth with respect to the First Cause of Action and incor-

Appendix B 41
porate the grounds set forth therein in their demurrer to
the Second Cause of Action.

TIT.

These demurring defendants, and each of them, demur
to the Third Cause of Action in the Complaint in this action
on the following grounds:

(1) These demurring defendants demur to the Third
Cause of Action on each of the grounds heretofore set
forth with respect to the First Cause of Action and Incor-
porate the grounds set forth therein in their demurrer to
the Third Cause of Action.

IV.

These demurring defendants, and each of them, demur to
the Fourth Cause of Action in the Complaint in this action
on the following grounds:

(1) These demurring defendants demur to the Fourth
Cause of Action on each of the grounds heretofore set forth
with respect to the First Cause of Action and incorporate
the grounds set forth therein in their demurrer to the Fourth
Cause of Action.

V.

These demurring defendants, and each of them, demur
to the Fifth Cause of Action in the Complaint in this action
on the following grounds:

(1) These demurring defendants demur to the Fifth
Cause of Action on each of the grounds heretofore set forth
with respect to the First Cause of Action and incorporate
the grounds set forth therein in their demurrer to the Fifth
Cause of Action.

42 Appendix B

(2) In addition to the grounds for demurrer set forth
above, these demurring defendants demur to the Fifth
Cause of Action on the grounds that said cause of action is
uncertain in the following additional respects:

(a) Whether or not Kaiser Engineers to which ref-
erence is made in paragraph II, line 32, page 9 of the
Fifth Cause of Action is an “employer” engaged in
“commerce” or in an industry “affecting commerce”
within the meaning of those terms as used in the Na-
tional Labor Relations Act;

(b) Whether or not Kuckenberg Construction Com-
pany to which reference is made in paragraph II, line
4, page 10 of the Fifth Cause of Action is an “employer”
engaged in “commerce” or in an industry “affecting
commerce” within the meaning of those terms as used
in the National Labor Relations Act;

(c) Whether or not American River Constructors to
which reference is made in paragraph II, line 7, page
10 of the Fifth Cause of Action is an “employer” en-
gaged in “commerce” or in an industry “affecting com-
merce” within the meaning of those terms as used in
the National Labor Relations Act;

(d) Whether or not McKeown Trucking Company
to which reference is made in paragraph II, line 15,
page 10 of the Fifth Cause of Action is an “employer”
engaged in “commerce” or an industry “affecting com-
merce” within the meaning of those terms used in the
National Labor Relations Act;

(e) Whether or not Wendt Construction Company
to which reference is made in paragraph IT, lines 20-21,
page 10 of the Fifth Cause of Action is an “employer”
engaged in “commerce” or in an industry “affecting
commerce” within the meaning of those terms as used
in the National Labor Relations Act.

Appendix B 43
WHEREFORE, these demurring defendants pray that:
1. This demurrer be sustained;
2. Plaintiff take nothing by his Complaint;
3. Defendant have judgment for his costs of suit;
4. Other relief be granted that the Court considers
proper.

Dated: August 6, 1969.

LE PROHN & LE PROHN
By Rosert Le Proun
Robert Le Prohn

Appendix C

FILED

Feb 7 1972

W.N. Durley, Clerk
By H. Rush, Deputy

LE PROHN & LE PROHN

315 Montgomery Street

San Francisco, California 94104
Tel: (415) 981-0430

Attorneys for Defendants.

Superior Court of the State of California
County of Sacramento

Kenneth W. Sherrod,
Plaintiff,
vs.

Chauffeurs, Teamsters and Helpers Local
Union No. 150, of Sacramento, Califor-
nia, Joint Council of Teamsters No. 38, ) No. 175 600
a Joint Council of the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of Amer-
ica, Carl J. Olsen, George M. LaBrasca,
Richard Henry, Howard Yaeger, et al.

Defendants.

DEMURRER TO FIRST AMENDED COMPLAINT
I.

Defendants CHAUFFEURS, TEAMSTERS AND
HELPERS LOCAL UNION NO. 150; JOINT COUNCIL
OF TEAMSTERS NO. 38; CARL J. OLSEN; GEORGE
M. LABRASCA; RICHARD HENRY and HOWARD
YAEGER demur to the First Cause of Action in the
Amended Complaint in this action on each of the following
grounds:

Appendix C 45

(1) The Court has no jurisdiction of the subject matter
of the First Cause of Action in that the subject matter of
said cause of action has been preempted by Federal labor
law.

(2) The First Cause of Action is uncertain in that it
cannot be ascertained therefrom:

(a) Whether or not it is contended that defendant
LaBraseca was a member of the Executive Board of Local
150;

(b) Whether or not George Overton was present at the
hearing held May 6, 1966, and if not what is meant by the
term “available for testimony” as used at lines 19 and 20,
page 5, of the Amended Complaint.

(c) Whether or not plaintiff requested and was refused
the opportunity to have George Overton appear at another
time to offer testimony.

(d) Whether or not it is alleged that further evidence
was presented at the hearing on May 18, 1966.

(e) Whether or not it is alleged that defendant LaBrasca
was present at the hearing held on May 18, 1966.

(f{) Whether or not it is alleged that defendants, or any
of them, are responsible for George Overton not being pres-
ent at the hearing on May 16, 1966.

(g) Whether or not it is alleged that since 1959 plaintiff
has worked only for employers who were members of the
Associated General Contractors Association.

(h) Whether or not it is alleged that plaintiff has sought
employment only from employers who were members of the
Associated General Contractors Association.

(i) Whether or not it is alleged that employers had a
right to reject plaintiff for employment even if defendant
Local 150 refused him membership.

46 Appendix C
II.

These demurring defendants, and each of them, demur to
the Second Cause of Action in the Amended Complaint in
this action on the following grounds:

(1) These demurring defendants demur to the Second
Cause of Action on each of the grounds heretofore set forth
with respect to the First Cause of Action and incorporate
the grounds set forth therein in their demurrer to the Sec-
ond Cause of Action.

III.

These demurring defendants, and each of them, demur to
the Third Cause of Action in the Amended Complaint in
this action on the following grounds:

(1) These demurring defendants demur to the Third
Cause of Action on each of the grounds heretofore set forth
with respect to the First Cause of Action and incorporate
the grounds set forth therein in their demurrer to the Third
Cause of Action.

IV.

These demurring defendants, and each of them, demur to
the Fourth Cause of Action in the Amended Complaint in
this action on the following grounds:

(1) These demurring defendants demur to the Fourth
Cause of Action on each of the grounds heretofore set forth
with respect to the First Cause of Action and incorporate
the grounds set forth therein in their demurrer to the
Fourth Cause of Action.

V.

These demurring defendants, and each of them, demur
to the Fifth Cause of Action in the Amended Complaint in
this action on the following grounds:

Appendix C 47

(1) These demurring defendants demur to the Fifth
Cause of Action on each of the grounds heretofore set forth
with respect to the First Cause of Action and incorporate
the grounds set forth therein in their demurrer to the Fifth:
Cause of Action.

WHEREFORE, These demurring defendants pray that :

1. This demurrer be sustained.

2. Plaintiff take nothing by his Complaint.

3. Defendant have judgment for his costs of suit; :

4. Other relief be granted that the Court considers

proper.
Dated: December 9, 1971.

LE PROHN & LE PROHN
By Rosert Le Prown
Robert Le Prohn

Appendix D

FILED

Apr 6, 1972

W.N. Durley, Clerk
By Mrroemf, Deputy

JOHN C. WEIDMAN

325 Main Street

Placerville, California 95667
Telephone: (916) 622-5260

Attorney for Plaintiff

In the Superior Court of the State of California
in and for the County of Sacramento

Kenneth W. Sherrod,
Plaintiff,
vs.

No. 175 600
Chauffeurs, Teamsters and Helpers

Local Union No. 150, et al.
Defendants.

ORDER OVERRULING DEMURRER TO FIRST
AMENDED COMPLAINT

The demurrer of defendants to the First Amended Com-
plaint in the above-entitled action came on regularly to be
heard on March 23, 1972. JOHN C. WEIDMAN appeared
as counsel for plaintiff and defendants did not appear in
person or by counsel. After hearing, said demurrer was
submitted to the Court for a ruling and by the Court taken
under advisement, and the Court now having given due
consideration to said matters, and good cause appearing
therefor,

Appendix D 49

IT IS ORDERED that defendant’s Demurrer to First

Amended Complaint be, and is hereby overruled, and de-

fendants are hereby granted twenty (20) days, after notice,
in which to answer.

Dated: April 6, 1972.

Oscar A. Kistle
Judge of the Superior Court

50
Appendix E

Superior Court of the State of California
in and for the
County of Sacramento

Date: June 14, 1973. Court met at oo... ccececeeceeeeee De-
partment No. 10. Present Hon. Frank G. Finnegan, Judge.
H. Allenbach, Deputy Clerk. 0200... eeeeeeceoee Reporter P.
Falge, Bailiff.

Kenneth W. Sherrod | Counsel:

vs. John Weidman &
G. Dana Hobart

Robert LeProhn
(Underline Counsel
Present)

Chauffeurs, Teamsters, et al

Nature of proceedings: Motion for new trial

COURT’S DECISION ON SUBMITTED MATTER

The Motion for New Trial is Denied.

There is no question in my mind from my research that
this court has jurisdiction and the right to award relief in
this action, as pointed out in the Gonzales case and others.
Although the complaint does not in words allege “Out-
rageous conduct”, the facts alleged and proved could well
amount to that and without question the jury so found under
the instructions.

While I probably would not have awarded either as much
actual or exemplary damages, I am not at all shocked or
offended by the jury’s award, and I think the argument of

Appendix D 51
counsel before the jury was much more restrained than mine
would have been had I been the lawyer.

I regret that the last brief was not filed on this motion
until June 12, so with my trial calendar and other prior
commitments I did not have what I consider adequate time
to review the matter.

Frank G. Finnegan
Judge Superior Court

ee: John Weidman
Robert LeProhn

Book 302
Minutes Page 88
This minute order was duly entered in R A and a copy
placed in the file. Attest: W. N. Durley, County Clerk and
Clerk of the Superior Court of the State of California, in
and for the County of Sacramento.
County Clerk M.O. 4. Action 175600. By H. Allenbach,

Deputy.

52
Appendix F

ROBERT LE PROHN LAW CORPORATION
315 Montgomery Sireet

San Francisco, California 94104

Tel: (415) 981-0430

Attorneys for Defendants.

Superior Court of the State of California
County of Sacramento

Kenneth W. Sherrod,
Plaintiff,
vs.

Chauffeurs, Teamsters & Helpers Local
Union No. 150, Joint Council of Team- ) No. 175 600
sters No. 38, Carl J. Olsen, George M.
La Brasca, Richard Henry and Howard
Yeager,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION BY DEFENDANTS
FOR NEW TRIAL

Ill. ERRORS IN LAW.
(A) The Court Erred in Instructing the Jury Regarding
Punitive Damages.

The evidence presented in this case by plaintiff sought
to establish two basic areas of misconduct by defendants:
First, the evidence that defendant LaBrasca caused the
termination of plaintiff’s employment by Kukenberg Con-
struction Co; evidence that this conduct was followed by
defendant Local 150’s wrongful refusal to process plain-

Appendix F 53
tiff’s grievance to arbitration. There is no evidence that
defendant Joint Council 38 was involved in this course of
conduct.

Second, that plaintiff was wrongfully expelled by defend-
ant Local 150 and that defendant Joint Council 38 wrong-
fully failed to reinstate him.

The appropriate body of law spelling out plaintiff’s
rights is found in the cases dealing with a union’s duty of
fair representation and in the cases which have developed
the standards spelling out a member’s rights vis-a-vis his
union in an expulsion ease. It is this body of law which
enunciates plaintiff’s substantive rights and not general
tort law. The court erred in permitting plaintiff to treat
this case as a standard brand tort action.

(1) Breach of Duty of Fair Representation.

A members claim against his union for intentional dis-
crimination or invidious conduct against him involves a
federal right. [Vaca v. Sipes, 386 US 171; Ford Motor Co.
v. Huffman, 345 US 330; Steele v. Louisville N.R.R. 323
US 192, 198-199; Richardson v. Communication Workers
(8th Cir. 1971) F(2) , 77 LRRM 2566]

Punitive damages are not recoverable for a breach of
duty of fair representation. [Williams v. Pacific Maritime
Ass’n. (9th Cir. 1970) 421 F(2) 1287] The court in Wil-
liams went on to state that Congressional policy regarding
the duty of fair representation was intended to be con-
trolling and preempted state law to the contrary. [421 F(2)
1287, 1289]. The state law rejected in Williams was Cali-
fornia law.

Thus the court erred in giving the following instruction
requested by plaintiff.

Appendix F

(a) Punitive Damages—Recovery of and Measure.

If you find that plaintiff has suffered actual damage
as a proximate result of the acts of defendants on
which you base your finding of liability, you may in
your sole discretion award additional damage against
defendants, known as punitive or exemplary damages,
for sake of example and by way of punishing defend-
ants, if, and only if, you find by a preponderance of
the evidence that said defendants have been guilty of
oppression or actual malice.

[“Malice” means a motive and willingness to ves,
harrass, annoy, or injure another person. Malice may
be shown by direct evidence of declarations of hatred

-r ill will or it may be inferred from acts and conduct,

such as by showing that the defendants’ conduct was
wilful, intentional, and done in reckless disregard of
its possible results. ]

The law provides no fixed standard as to the amount
of such punitive damages, but leaves the amount to the
jury’s sound discretion, exercised without passion or
prejudice.

(b) In assessing punitive damages, if any, you may
consider the character of the defendants’ acts,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1342%3A1. Public record. Not legal advice.