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Court of Appeal, First District, Division 1, California.

Karin SERITIS and Terri DeLoache, Plaintiffs and Respondents, v. HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS UNION, LOCAL 28, Defendant and Appellant.

A014245, A024497.

Decided: April 22, 1985

Karen E. Ford, Littler, Mendelson, Fastiff & Tichy, San Francisco, James Newton, Wilhoit, III, National Right to Work Legal Defense Foundation, Inc., Springfield, Va., for plaintiffs and respondents: John A. Slezak, Iverson, Yoakum, Papiano & Hatch, Los Angeles, J. Thomas Bowen, Davis, Cowell & Bowe, San Francisco, for defendant and appellant:

Defendant Hotel and Restaurant Employees and Bartenders Union, Local 28 (hereafter Local 28), appeals from a judgment entered in the action of plaintiffs Karin Seritis (Karin) and Terri DeLoache (Terri), against Local 28 and one Ray Lane for damages for “intentional infliction of emotional distress” and breach of “the statutory duty of fair representation” imposed upon unions by the National Labor Relations Act, 29 U.S.C., section 185.

The superior court had concluded that Karin's claim of damages for intentional infliction of emotional distress was barred by the statute of limitations.   The judgment, as entered, awarded each of the plaintiffs, Karin and Terri, against Ray Lane and Local 28, $25,000 in general compensatory damages, and $50,000 in punitive damages for breach of the duty of fair representation.   Terri alone was awarded, against both defendants, an additional $50,000 in punitive damages for intentional infliction of emotional distress.

Both of the defendants thereupon moved for a new trial.   Ray Lane's motion was denied, and that of Local 28 granted, on the single issue of “the relationship between its financial condition, and the amount of the punitive damage award.”   Ray Lane then appealed from the entire judgment, and Local 28 appealed from the judgment, except that part as to which the new trial had been granted.

The appeals were assigned to this division of our court.   Pending the appeals and on the parties' stipulation and request, we “stayed” the appeal of Local 28.   Thereafter, by an unpublished, and now final, opinion, we affirmed the superior court's judgment as to Ray Lane.

The superior court has now retried the case's issue as to the amount of punitive damages, if any, to be awarded against Local 28.   It has iterated, adopted, and confirmed its earlier judgment.   Pending before, and now decided by, us are Local 28's earlier appeal, and its appeal from the superior court's more recent determination.

Having read and considered the record, and the briefs of the respective parties, we shall also affirm the judgment against Local 28.   Our reasons follow.

In its appellate briefs, Local 28 selects evidence deemed favorable to itself, while completely disregarding all that is contrary.   It becomes necessary to again state the substantial evidence rule by which Local 28, and we, are bound.

“Evidence, to be ‘substantial’ must be of ponderable legal significance ․ reasonable in nature, credible, and of solid value.”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.)   And, when a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.   It is of no consequence that the trial court believing other evidence, or drawing other inferences, might have reached a contrary conclusion.   (Grainger v. Antoyan (1957) 48 Cal.2d 805, 807, 313 P.2d 848;  and see People v. Johnson, supra, 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)

We state the facts of the case as they were presumably found true by the superior court.

Karin and Terri were at the here relevant times 18-year-old girls, fresh out of high school.   They “had to find a job,” and, as stated by Terri, “the only thing I knew how to do was to be a waitress.”

Local 28 was and is a San Francisco Bay area trade union which, under collective bargaining agreements, had become the exclusive bargaining representative of waitresses, and other occupations, within its jurisdiction.   And under the agreements, waitresses generally were employed directly through Local 28.   Karin, and later, Terri, applied for memberships in Local 28.   They were accepted as, and became, members of the union.

Ray Lane, although classified as its secretary-treasurer, was the chief executive of Local 28.   He characterized himself at the trial as having “the most powerful position in the union,” with duties “to oversee” its entire operation.   He also declared “that he was a very powerful person, and he was the head of the union.”   Waitresses were allowed to work, and were placed in and removed from their jobs, at the discretion of Ray Lane.   He boasted about his “underworld connections” and “that he could step on anybody.”   A recent vice-president of Local 28, who was “doing clerical work in the office,” testified that Ray Lane directed him to “pull” waitresses “off the job.”

And Ray Lane, as had others in Local 28, made known to Karin and Terri his authority and position of power in the union.

Soon after Karin had joined Local 28 in 1974, she spoke to Ray Lane about a grievance with her employer, and her need for a waitress job.   He asked if she would be interested in other “well-paying jobs.”   Karin, of course, was interested. The jobs he then offered were “jobs [that] had to do with my having sex with men, women, and animals.”

Karin declined the jobs, but Ray Lane persisted in his efforts to have her take one.

“[H]e proceeded to lay forth these job offers that he had in mind․  There was one arrangement with two gentlemen that needed a live-in sexual playmate.   There was a monthly salary attached to that.   There [were] ․ fun trains to Reno.   I was supposed to be a sexual playmate of business associates of his that would charter the car or the train․  He wanted to set me up in an apartment where I would be available for parties which he would occasionally have and friends he would bring over, my sexual services would be available.   He would pay for the apartment․  Yes, he asked me to have sex with a dog.   He said there was a dog up in Reno, or up in Nevada that performed copulation on stage with the women and he said that friends of his that he brought up, women he brought up couldn't wait to get their hands on and said he would love to see me making love to that dog․”

Karin responded:  “․ I said that those weren't really the kind of jobs I had in mind․  He said he didn't have anything available as far as waitressing was concerned at the time, but he did have a lot of other jobs such as the ones I mentioned․”

On her own accord, however, Karin was able to obtain a job as waitress.   But she was soon “fired”;  and a business agent of Local 28 told her:  “I've heard that you were pulled off your job ․ by Mr. Lane personally.”   He (the business agent) testified:  “I didn't know that she had been pulled off the job until she came down to the union hall, and then I was informed by Mr. Perluss [her erstwhile employer] that [Ray Lane] had taken her off the job.”   Although she continued to seek such employment, and other waitresses were employed through the union, Karin never again was employed through Local 28.

A year or two after the above incidents concerning Karin, Terri similarly found herself with an employer grievance, and the loss of her job.   She went to the union hall where she met Ray Lane.   Told about her misfortune, he said he would get her a better job, and suggested they meet in a nearby coffee shop the following day.

Upon so meeting, he complimented her on the size of her breasts, asked, “did I swing,” and then said:  “I don't know why you want to work as a waitress, ․ with a body like yours you could make a lot of money․  The first job he offered me was waitressing topless on a bus to Reno once a month․  He said I would make $500 to waitress topless on this bus once a month and I would make more money if I wanted to do more․  [And] he wanted me to go on a convention to Washington, D.C. in March of that year and I would work as a prostitute at the convention and make $300 plus all my expenses․  He said he had a friend, a woman friend who was a lesbian who lived in Hawaii, that if I would live with her over there that she would get me a job in the best restaurant on the Island.  [And:]  He wanted me to go to Las Vegas and perform sex with a dog on the stage.”

Terri kept saying:  “No, I can't do that.   Don't you have something?   All I want to do is to be a waitress.”   Ray Lane said there were no waitress jobs.

Terri thereafter filled out a union referral card indicating she needed a waitress job.   But while others over the years were regularly referred to such jobs Terri, with one exception, was not.   The exception was a known “hangout” for prostitutes, which she declined.   And during her many visits to the union hall hoping for a job, she was repeatedly asked by Ray Lane if she was “ready to swing.”   Terri lived with a roommate who was employed as a waitress through Local 28.   The roommate was called “everyday” by Local 28 with job offers.   “She'd say, ‘Well, that's really not what I'm interested in, but can I send my roommate [Terri]?’ ”  But Terri was not acceptable, and she never again received job offers from or through Local 28.

Seven other young women were witnesses at the trial.   All testified to similar conduct by Ray Lane.   One Mary who rejected his suggestions, despite repeated requests for jobs never received one.   One Nancy, who turned down “prostitution” and “pornography” jobs, was warned not to tell anyone about Ray Lane's proposals;  he said “there were ways he could quiet people.”   One Joni was told she would “never work in Oakland as a waitress.”   And some kept their jobs by going along with Ray Lane's suggestions.   But one girl, after a time, refused to “go along with what Lane wanted her to do”;  she was assigned to a different job with most unpleasant duties.   Another “agreed to have sex with Ray Lane himself,” but quit when he asked her to do other things to which she could not agree;  her job future thereafter does not appear.*

We observe at this point that many terms are used by the courts in describing the legal basis of punitive damages.   Others were used by the superior court and plaintiffs Karin and Terri, in describing the conduct of Ray Lane.   The terms are “oppressive,” “malicious,” “outrageous,” “despicable,” “arbitrary,” “in bad faith,” “discriminatory,” “abusive,” “criminal,” and “wanton.”   Each, in our opinion, was supported by substantial evidence at the trial.

 We now consider the several appellate contentions of Local 28.

I. Contention:  Pervading Local 28's appellate briefs, appear arguments that there was no substantial evidence of malicious, oppressive, or outrageous conduct of Ray Lane, its chief executive officer.   Under the evidence we have narrated, and the authority of People v. Johnson, supra, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  Grainger v. Antoyan, supra, 48 Cal.2d 805, 807, 313 P.2d 848, and Estate of Teed, supra, 112 Cal.App.2d 638, 644, 247 P.2d 54, the arguments are patently invalid.

II. Contention:  “[Terri] DeLoache's action for infliction of emotional distress was based on Local 28's alleged discrimination in employment opportunities and therefore is preempted by the National Labor Relations Act.”

The contention is contrary to established law.

In Farmer v. Carpenters (1977) 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338, the issue also was whether, by the National Labor Relations Act, “Congress intended exclusive jurisdiction to lie in the Board” in an action against a union for “intentional infliction of emotional distress.”   A union member had complained in “count two” of his California action that the union, in discriminating against him in employment opportunities, had “intentionally engaged in outrageous conduct, threats, and intimidation, and had thereby caused him to suffer grievous emotional distress.”   The court held that ordinarily complaints of discrimination in the accommodation of the special interests of unions and members in the hiring hall context, lay in the exclusive domain of the National Labor Relations Board.   But, said the court, where the tort is essentially “the particularly abusive [or ‘outrageous'] manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself,” a state action will lie.   The union member was held to have stated a cause of action against the union defendant by count two of his complaint.

And, confronted with a similar contention to that here posed, the high court in San Diego Buildings Trades Council v. Garmon (1959) 359 U.S. 236, 243–244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775, stated:  “[D]ue regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act․  Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”

Under this authority we find the instant contention of Local 28 invalid.

III. Contention:  “The judgments in favor of Seritis and DeLoache for Local 28's alleged breach of its duty of fair representation are not supported by the evidence and should be reversed.”

Insofar as the contention is that neither malice, nor oppression, nor outrageous conduct was shown, as we have pointed out, it is palpably meritless.

But it embraces two other arguments.

The first is that “Local 28 was legally entitled to cause Seritis' discharge from employment for her nonpayment of dues and initiation fees.”

 It is observed that Local 28 concedes in its briefs that as to both Karin and Terri, each was a “member of Local 28 at various times material to this action.”

And the claimed nonpayment of dues resulted during and after Karin's employment, from which she was “pulled” by Ray Lane, and left without income.   Moreover, before she was pulled off the job, her employer had asked Local 28's business agent for an extension of time for such payment;  the business agent testified:  “I told him that was fine with me.”   Under such circumstances the equitable doctrine of estoppel will reasonably apply.

The remaining argument of the instant contention is that:  “There was insufficient evidence that Local 28 failed to accord either Seritis or DeLoache the same job placement services it gave others similarly situated.”   The argument is found frivolous.

As sort of an unrelated and otherwise unstated or argued addendum to the instant contention, Local 28 says only:  “Moreover, any DFR claims based upon Seritis' first application in September, 1974 and DeLoache's in February, 1976 were barred by the six-month statute of limitations set forth at Title 29, U.S.C. § 160(b).   See Del Costello v. Int'l Brotherhood of Teamsters [462 U.S. 151, 103 S.Ct. 2281], 76 L.Ed.2d 476 (1983).”

 We observe first that Local 28's answer, upon which the trial's issues were drawn, alleged only that:  “The causes of action alleged by the second amended complaint are barred by applicable statutes of limitations.”  Code of Civil Procedure section 458, providing that—“In a pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section—(giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure;”—was wholly ignored.

 Secondly, as to the instant argument we observe, contrary to the long existent requirements of rule 15(a), California Rules of Court, neither a “concise heading generally descriptive of the subject matter covered,” nor “appropriate reference to the record,” establishing that the point was raised in the trial court.   Where such headings are absent the appeal is subject to dismissal.  (Wallace v. La Vine (1940) 36 Cal.App.2d 450, 452, 97 P.2d 879;  Milano v. Bulleri (1932) 125 Cal.App. 72, 73–74, 13 P.2d 521.)   And where there is no record reference establishing lower court error, we are not obliged to consider the point.  (Harbor Ins. Co. v. Resolute Ins. Co. (1972) 23 Cal.App.3d 190, 197, 99 Cal.Rptr. 916;  Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199, 214 P.2d 603.)

Nor does our reading of the single cited authority, Del Costello v. Int'l Brotherhood of Teamsters, lend aid to the otherwise unsupported argument.

 We consider the point no further.

IV. Contention:  “The judgments in favor of plaintiffs Seritis and DeLoache on their claims for breach of the duty of fair representation must be reversed because there is insufficient evidence to support the findings that it would have been futile for them to have attempted to exhaust their internal union remedies.”

Here we note first, that Karin complained of the problems raised by Ray Lane and Local 28, to the National Labor Relations Board, and to a Mr. Hanley, the president of the Hotel and Restaurant International Union.   The Board said it “couldn't go that far,” and Mr. Hanley did not reply to her letter.

The trial court found that, with Ray Lane as Local 28's chief executive officer, it would have been futile for Karin and Terri to seek internal relief through Local 28.   Under the evidence of the case that finding was certainly reasonable and proper.

Responding to a similar contention, the nation's high court in Clayton v. Automobile Workers (1981) 451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed.2d 538, stated:  “[C]ourts have discretion to decide whether to require exhaustion of internal union procedures.   In exercising this discretion, at least three factors should be relevant:  first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim;  second, whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks ․;  and third, whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim.   If any of these factors are found to exist, the court may properly excuse the employee's failure to exhaust.”  (Emphasis added.)

V. Contention:  “The trial court committed reversible error by refusing to specify the elements of the general damages awards of $25,000 each on plaintiffs Seritis' and DeLoache's claims for breach of the duty of fair representation.”

 From their very nature, the damages of Karin and Terri were, as argued by Local 28, “indefinite and uncertain” and therefore difficult of ascertainment.   But beyond any doubt, the girls had been damaged substantially by Ray Lane's and Local 28's conduct.

“[I]t appears to be the general rule that while a plaintiff must show with reasonable certainty that he has suffered damages by reason of the wrongful act of defendant, once the cause and existence of damages have been so established, recovery will not be denied because the damages are difficult of ascertainment․  The law only requires that the best evidence be adduced of which the nature of the case is capable․  [A]nd the defendant whose wrongful act gave rise to the injury will not be heard to complain that the amount thereof cannot be determined with mathematical precision.”  (Dallman v. Southern Heater Co. (1968) 262 Cal.App.2d 582, 594, 68 Cal.Rptr. 873, and see authority there collected.)

No error is seen.

VI. Contention:  “The trial court's conclusion that Local 28 ratified the malicious acts of defendant Lane and the portions of the judgment that award the plaintiffs punitive damages totalling $150,000 against Local 28 are unsupported by the findings and must be reversed.”

 The contention is a broad challenge to the trial court's conclusion that Local 28 was liable for the torts perpetrated on Karin and Terri by Ray Lane.   Such liability does not exist, the union argues, unless the record shows that it “ratified ” the conduct of Ray Lane.

Local 28 misapprehends the law.

Ray Lane, as heretofore noted, was the “chief executive ” of Local 28;  i.e., he held “the most powerful position in the union.”   And a labor union, in situations such as this, will be treated as a “corporation,” in that “it acts through and is bound by the acts of its officers.”  (Coats v. Construction & Gen. Laborers Local No. 185 (1971) 15 Cal.App.3d 908, 914, 93 Cal.Rptr. 639.)   And:  “The trade union has grown from the early loose craft union into an institution comparable to a corporation or public utility․  This court has recently recognized the contemporaneous social responsibility of these organizations and the resultant legal amenability․  [W]e rejected as to labor unions the longstanding general rule that a member of an unincorporated association could not recover against the association for personal injuries sustained as a result of the association's negligence.   The old approach regarded all members of the union as principals and agents or partners;  hence, the negligence of any member would be attributable to any other member suffering injury.   After analyzing the emerging entity status of a labor union, we concluded that the old rule could no longer be applied to unions.   We also held that any judgment recovered from the union could be satisfied from the funds and property of the union alone.”  (Daniels v. Sanitarium Assn., Inc. (1963) 59 Cal.2d 602, 604–605, 30 Cal.Rptr. 828, 381 P.2d 652.)

Ray Lane's conduct, within the scope of his authority, whether or not in violation of his duties became the act of the union.  (Schumann-Heink & Co. v. U.S. Nat. Bank (1930) 108 Cal.App. 223, 232, 291 P. 684, 292 P. 547.)   Such a chief executive officer is “more than an agent.”  “He acts and speaks for the [union] in furthering its express objects.”  (Moore v. Phillips (1959) 176 Cal.App.2d 702, 709, 1 Cal.Rptr. 508, and see Halbert v. Berlinger (1954) 127 Cal.App.2d 6, 17, 273 P.2d 274;  Herring v. Fisher (1952) 110 Cal.App.2d 322, 330, 242 P.2d 963.)   And for the tort of such a chief executive officer, within the scope of his authority, “a member of a labor union ․ may successfully maintain an action” against the union.   (Inglis v. Operating Engineers Local Union No. 12 (1962) 58 Cal.2d 269, 270, 23 Cal.Rptr. 403, 373 P.2d 467, and see Coats v. Construction & Gen. Laborers Local No. 185, supra, 15 Cal.App.3d 908, 915, 93 Cal.Rptr. 639.)   Patently, where as here, there was no higher Local 28 authority, no need or opportunity for ratification existed.

Moreover, Ray Lane's tortious conduct, among other things, attended Karin's and Terri's interviews with him concerning union-related jobs, and grievances against their employers.   Such matters were manifestly within the scope of his duties as Local 28's chief executive officer.

 And were we, arguendo, to find a need for Local 28's ratification of Ray Lane's conduct, it would be reasonably concluded that such a ratification had occurred.   Here Local 28's officers generally were aware of Ray Lane's complained of conduct, and he was nevertheless continued in office.   As said in Coats v. Construction & Gen. Laborers Local No. 185, supra, 15 Cal.App.3d at page 913, 93 Cal.Rptr. 639:  “( [P]laintiff was assaulted by both [union agents] Rose and Andreoff on the Union premises, only being prevented from striking him by the intervention of others.)   The evidence discloses that the Union by its conduct ratified the actions while having full knowledge thereof.   Although informed of the actions of Rose and Andreoff, the Union did not repudiate them, in spite of the desire of the president to do so by discharging the two men.   A reasonable inference is that the officers of the Union ratified the actions of Rose and Andreoff.”  (Our emphasis.)

VII. Contention:  “The trial court's awards of $100,000 in punitive damages against Local 28 for the alleged breach of its duty of fair representation are contrary to the per se rule of law prohibiting punitive damages and must be reversed.”

 Local 28's reliance, for “the per se rule of law prohibiting punitive damages” against labor unions, is upon International Bro. of Electrical Wkrs. v. Foust (1979) 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698.   That case concerned a union's negligent failure “properly to process [a member's] grievance alleging wrongful discharge by his employer.”   Punitive damages had been awarded the employee member against the union.   The high court held only that, “such [punitive] damages may not be assessed against a union that breaches its duty of fair representation by failing to pursue a grievance.”   (Our emphasis.)

It appears that International Bro. of Electrical Wkrs. v. Foust is uniformly held as authority for no more than its holding.

Thus in Anderson v. United Paperworkers Intern. U., AFL–CIO (1980) 484 F.Supp. 76 (disapproved and remanded on other grounds, (8th Cir.1981) 641 F.2d 574), the court said (p. 85):  “[T]he [Foust ] court limited its holding to only those DFR [duty of fair representation] cases where the Union ‘breaches its duty of fair representation by failing properly to pursue a grievance.’  ․ It would appear that even if the court intended to create a per se rule in Foust, it would apply only where a Union failed to properly pursue a grievance․  In this case, the Union breached its DFR by misrepresenting to its rank and file members the true effect of their severance pay provision;  based upon such misrepresentations, the employees consistently ratified successive collective bargaining agreements with the understanding that, under any circumstances, they would receive their severance pay.   They would not have ratified the agreements had the true nature of the severance pay provision been revealed.   Since this case does not involve a failure to pursue an employee's grievance, this court finds the ruling in Foust instructive, but not specifically controlling․”  The court then followed the pre-Foust rule of Butler v. Local U. 823, Int. Bro. of Teamsters, etc. (8th Cir.1975) 514 F.2d 442, 454, stating:  “[T]he Union must engage in ‘outrageous or extraordinary conduct’ in order to award punitive damages․  This court finds that the jury could reasonably have determined that the Union's conduct constituted an extraordinary breach of the DFR;  the jury's award will not be modified or vacated.   Furthermore, it is precisely this type of Union misconduct that a punitive award is made for;  this extraordinary remedy is necessary to deter the International Union from similar future violations.   Accordingly, the judgment is neither modified nor vacated.”

Shimman v. Frank (6th Cir.1980) 625 F.2d 80, 101, involved a member's beating, authorized or ratified by his union.   Punitive damages had been awarded by the trial court against the union.   The court said:

“As a threshold matter, the defendants argue that punitive damages are unavailable․  This issue is uncertain in light of the Supreme Court's recent decision in International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979).   There, the court ruled that punitive damages could not be awarded against a union which breached its duty of fair representation [in failing to pursue an employee's grievance against his employer.]

“The courts of appeals are unanimous on the issue, however.   In Int'l Brotherhood of Boilermakers v. Braswell, 388 F.2d 193 [ (5th Cir.1968) ] ․ Judge Wisdom wrote that punitive damages are allowable on a showing of ‘actual malice or reckless or wanton indifference’ by a union for the rights of its members.  Id. at 199.   That holding has been endorsed by the second and ninth [our emphasis] circuits.  Morrissey v. National Maritime Union, 544 F.2d 19 [ (2nd Cir.1976) ];  Cooke v. Orange Belt District Council, 529 F.2d 815 [ (9th Cir.1976) ]․

“This court, in McCraw v. United Association of Journeymen & App. of Plumbing, 341 F.2d 705, 706–07 [ (6th Cir.1965) ] ․ strongly suggested that punitive damages were unavailable under § 101.  McCraw, however, has been subject to severe criticism by other courts.  See Feltington v. Moving Picture Machine Operators, 605 F.2d 1251, 1257–1258 n. 4 [ (2nd Cir.1979) ] ․;  Simmons v. Avisco Local 713, 350 F.2d 1012, 1018 [ (4th Cir.1965) ]․  See also Hildebrand v. Bd. of Trustees, 607 F.2d 705, 707, 708 n. 4 [ (6th Cir.1979) ]․

“We need not address McCraw's present viability.   The reason is that the underlying conduct complained of was an assault and battery under Ohio law.   Punitive damages are clearly available under this pendant state claim․  Indeed, punitive damages in such situations have become ‘common-place.’ ”

And in Parker v. Local Union No. 1466, United Steelworkers (5th Cir.1981) 642 F.2d 104, 106–107, it was said:  “[It is] argued however, that these actions did not constitute conduct sufficiently ‘invidious' to justify punitive damages.   We disagree.   In International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193, 199 [ (5th Cir.1968) ] ․ we held that punitive damages were awardable ․ if the union acted with ‘actual malice or reckless or wanton indifference to the rights of the plaintiff.’  ․ The Union's admitted disregard of the rights of its members amounts to reckless or wanton indifference to the rights of the members.   Appellants' argument that the decision of the United States Supreme Court in IBEW v. Foust, 442 U.S. 42 [99 S.Ct. 2121, 60 L.Ed.2d 698], ․ precludes an award of punitive damages is unpersuasive.   In that case the majority specifically declined to decide whether the punitive damages could be awarded under the LMRDA and confined its decision to the Railway Labor Act, 45 U.S.C. § 151 et seq. (1976) 442 U.S. 42, 47 n. 9 [99 S.Ct. 2121, 2125 n. 9]․  Justice Brennan, concurring in the result, noted that our decision in Braswell and those of other circuits have held punitive damages to be appropriate․”

To the same general effect see:  Bise v. International Bro. of Electrical Wkrs. (9th Cir.1979) 618 F.2d 1299, 1305–1306;  Maxwell v. United Auto. Aerospace & Agr. (1980) 489 F.Supp. 745, 753.

No error is observed in the superior court's conclusion that:  “The United States Supreme Court decision in IBEW v. Foust, 442 U.S. 42 [99 S.Ct. 2121, 60 L.Ed.2d 698], does not bar the award of punitive damages in a case such as this, where the court has found reckless, intentional and malicious conduct of a criminal nature.”

VIII. Contention:  “The trial court's awards totalling $150,000 in punitive damages against Local 28 are grossly disproportionate to Local 28's annual net income of less than $10,000 and its net worth of approximately $61,000 and should therefore be reversed.”

 On Local 28's limited new trial the superior court found “on conflicting evidence that defendant Union Local is solvent and has sound financial prospects for the future.”

There was, as indicated by the trial court, much “conflicting evidence as to the net worth of Local 28”.   Some evidence indicated its net worth at around $450,000.   But as we understand its contention, Local 28's liability for future death benefits to its members renders it insolvent, or nearly so.   The death benefits, however, are not funded, and are paid generally from Local 28's current income from dues and initiation fees of its 4,200 members.   There was actuarial evidence “that this union can expect to receive over the time period they will be paying out for ․ this death benefit,” the sum of $39,156,000.   And the liability for death benefits during that period was estimated at $7,182,541.

We discern no error in the superior court's conclusion that Local 28 “is solvent and has sound financial prospects for the future,” or in the amount of punitive damages assessed against it.

Nor do we find merit in Local 28's claim that the superior court failed “to resolve” punitive damage issues, or to “consider” its net worth and current income.

The judgment against defendant Hotel and Restaurant Employees and Bartenders Union, Local 28, is affirmed.


FOOTNOTE.   We are told, without apparent controversy, that since the above-narrated events, Ray Lane has twice been convicted of felonies unrelated to this case.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.

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