*1 Dist., Sept. Div. One. No. 45315. First 1980.] [Civ. MALONE, and as Personal Individually Representative,

CAROLYN etc., Plaintiff and Appellant, TRUST, PENSION

WESTERN CONFERENCE OF TEAMSTERS Defendant and Respondent.

Counsel Malone, Jr., and Appellant. for Plaintiff

Clifford B. K. Sutro, Bromley Dennis Noble K. Gregory, & Madison Pillsbury, Respondent. Defendant and and Robert A. Gordon Opinion During his lifetime, Malone com-

ELKINGTON, P. J. Acting *4 of the Western Conference menced a court action superior against (the Trust) other among Trust seeking thereby, Teamsters Pension under a disability pension to establish his to things, right (the Plan) the action Gaylord administered the Trust. plan by Pending widow, died, Carolyn it continued in the name of his Malone and was Malone, as his re- personal as to her derivative and rights individually of in favor The court thereafter entered presentative. superior judgment the Trust. Malone, and repre- in her individual present plaintiff, Carolyn from the appealed judgment.

sentative has capacities, Plan, under is the which was established Our concern on the appeal Rela- of the federal Labor Management of section 302 authority amended, as, more which is known and tions Act of 1947 as better in, We shall States Code section 186. found 29 United conveniently as Section 186. hereafter refer to the statute Plan, at least as it was applied

The issue of the is whether the appeal Malone, And since we are and capricious. to was arbitrary evidence, of a interpretation and the concerned with uncontroverted offered, evidence was instrument in aid of which no extrinsic written law, superior by findings issue is for us one of unaffected (1965) (See 62 Cal.2d Parsons v. Bristol Co. Development court. 839].) 402 P.2d Cal.Rptr. 865-866 [44 corruption prevent penalize

Section 186 was to designed members. union employee of expense affairs at union-employer etc., 497, 501; (D.C.Cir. 1970) Bricklayers, (Roark v. Boyle U.15, Co., Plaster. Inc. 1975) Fla. Stuart R. 1024-1025; Mine Workers Am. W. & Fund Collins v. United of of (D.D.C. It 494].) [affd. loan, or other proscribes money payment, delivery “any thing his employ “representative any value” by employer But it then ees” and criminal sanctions for its violation. provides have far more judici establishes which obtained “exceptions,” appear al expressed principal attention than the purpose. (c)(5), is its subdivision which exceptions Section 186’s

Among under which an permits agreements employer collective bargaining retirement, a trust fund for his welfare or employees’ contribute the sole and exclusive shall used contributions be benefit “/or (italics added), and their families such employer" held in trust trustees made dependents. payments up Such are If the contributions are and union equally employer representatives. be used for pensions for the cannot employees’ they made payment other any purpose. excep- above described

The Trust and Plan were founded under the *5 of Section 186. proscription tion the as that over actions such jurisdiction is now settled that

It the courts of the federal and state lies with before us concurrently 855, (1959) 861 52 Cal.2d Court (See Superior Cox [346 nation. 2, Inc. Plastering, v. Paramount etc. Local No. 15]; P.2d (9 83 den., 944 L.Ed.2d 372 U.S. 1962) 183 [cert. A.2d v. White (1968) N.J.Super. Branch 935)]; [239 S.Ct. 1228, 1231-1232.) (N.D.Ill. 665]; Insley Joyce between Plan, noted, bargaining from collective resulted The Union) (hereafter the of Teamsters Western Conference unions the 1956. As around It was created members. the of their employers Trustees) (the it its trustees amended by and as established originally relevant, following. the as here provided, based substan- will be benefit retirement disability

An employee’s employment of his length ratio.” his “contribution part tial on will, to math- according his contributions total of employer’s thus the his entitlement. formula, amount determine ematical Re- “An shall be Employee eligible Disability here [as relevant] .(b) he at 15 years tirement Benefit.. has had least Unbroken .if.. Service, (d) he is disabled and Insurance receiving Disability [and] (As Act,...” seen, Social will be Security Benefits under Federal princi- words which we have have created emphasized appeal’s issue.) pal

The material the case are facts of uncontroverted.

In after more than 16 consecutive as a years employment (i.e., driver), Union, teamster a truck em- membership and of his ployer contributions on behalf from about the time of Plan’s creation, Malone, record, for some reason undisclosed by the ato different kind of He thus changed had established “at employment. least 15 unbroken” as a “covered years employment employee” Plan. to that Up point his had made the con- employers always required later, tributions on his to the account Trust. About four he resumed his as a teamster and his in the occupation membership Union, thus his status as a covered regaining for whom his employee, resumed employer contributions to the Trust. In he suffered dis- for which ability he received benefits under the federal Social Security Act.

Gaylord Malone’s application to the Trust for retirement disability benefits was rejected for reason that he had had not “at least 15 years of unbroken service” immediately his preceding application.

The instant action followed.

In the superior court the Trust contended that the Plan’s above noted provision, that a disability retirement applicant must have had at least service, years unbroken must be construed to mean 15 such service immediately (We, preceding disability. but arguendo so only, construe the Plan for the purpose appeal.) others, agreed, court made the among following findings: Malone a that term is defined “Gaylord incurred break in service—as De- (‘Plan’)—on the Western of Teamsters Pension Plan Conference 31, cember 1967. Plan, service credits prior Malone’s terms of the

“... Under clear his break in service. when he incurred forfeited were canceled and Retirement eligible Disability was never . Malone Gaylord for a Survivor is not eligible was and Benefit and Malone Carolyn the Plan.... Benefit under in bad faith or arbitrarily, capriciously, act

“... did not Defendant for benefits.” Malone’s claim handling trust, and relation fiduciary, preliminarily

We note and administered who promulgated the Trustees ship existed between (See 29 Plan, Malone. Gaylord situated as was and employees Co., U.15, etc., 186; Fla. v. Stuart Plaster. Bricklayers, U.S.C. § Inc., 1025; 1971) 453 1017, Lee v. Nesbitt F.2d supra, 425, 1968) 427- 1311; (D.C.Cir. 401 F.2d Roark v. Lewis F.2d 1228, 1234.) The Plan will 428; F.Supp. v. Joyce, Insley supra, of such a requirements well-known light be construed properly relationship. interfere with a bargained-for will not ordinarily

While courts it, they or discretion under trustees’ acts Section 186 or with the plan, unlawful, to be or the other found will nevertheless do so where one Nesbitt, 1309, 1311; 453 F.2d v. (Lee supra, or arbitrary, capricious Lewis, 497, 501; v. supra, Roark Roark v. Boyle, supra, 1234; 427; Collins v. Joyce, supra, Insley 298 F. supra, Am. W. & R. Fund v. Mine Workers United (Teston (D.C.Cir. 964, 968), Carey or not and equitable Supp. fair Nesbitt, 765, 769), (Lee or unreasonable 501). 1311; p. v. Boyle, supra, Roark p. as made on under the Plan such were contributions

Employer earned employ- constitute benefits account of Malone income which the portion They ees. are “seen quasi-salary, so union, deferred as to his chooses to have employee, through acting *7 (Italics added; Roark v. income.” or retirement provide supplement for 497, 504.) said And: “Tt is only just, Congress, Boyle, to make a employer that the whose hour’s work required employee of that the benefit reaping to the trust fund be assured payment... (E.D.Pa. 357, 1973) 357 F.Supp. v. Cianciulli payment.’” (Crawford 373.)

545 For contribu- employer administrative simplification, “pooling” it key employee’s pension tions is permitted, making unnecessary to the contributions made on his account. But such rights precise rights will nevertheless to a substantial contributions depend degree upon that such funds” “pooled has earned. contention employee Against be used to or exclusion of an for whose might partial employee total made, it “A fund is portion pooled account a of them was was held: one fund contributed to a number of instead simply large by employers, one employer. smaller funds each contributed to For many by only of administration and reduction of overall simplicity expense, Congress, seems, 302(c) (5) it that portion parenthe- allowed employers, by ses, to use funds. But it is con- pooled employers clear surely fund are so for the benefit of their tributing any pension doing only own The fact fund as a whole the com- employees. that the benefits by of all contributions does not overcome the mingling employer presump- extent, tion that are to an in the employers acting, overwhelming interests of their own when only respective employees contributing (E.D.Pa. 1966) pooled pension (Raymond funds.” Hoffmann 596, 601, omitted; fn. and see Roark v. Boyle, supra, 497, 502.) And neither the nor the under patently, employer employee trustees, trust, such a plan that a or its contemplated might respect some, other, pension rights those of reject whose accounts substantial contributions had been made.

It will be so also seen that of an deprival employee’s rights him imposition earned constitutes effect a legal forfeiture, law, “The law tradition- is abhorrent to our and to equity. disfavors forfeitures and statutes them ally imposing contracts] [and (1971) are Ins. Co. Bonding to be construed.” v. United strictly (People Irwin v. 1385]; 5 Cal.3d 489 P.2d and see Cal.Rptr. [98 (1977) “Of two or Cal.Rptr. 9].) Irwin Cal.App.3d [138 forfeiture constructions, which avoids a more ‘the construction possible Stores, (1954) Inc. should be favored.’” v. Andrew Williams (Flagg of such a And the 294].) inequity P.2d Cal.App.2d [273 when occasioned by must be deemed compounded forfeiture reasonably to another. relationship trust the act of one bearing fiduciary which ap- We consider of federal courts now authoritative holdings under Section 186 are to be the tribunals in which issues pear principal thereto.) (See 29 186 and Annots. litigated. U.S.C.A. § *8 worker, A pension provided Section 186 that a of his plan regardless contributions, of or the amount of his was employment employers’ its been ineligible for benefits unless he had so his employed during fi- nal (No year a exists substantial difference by contributing employer. us; a case for- provision between such and that of the before each would feit the the earned benefits employee’s previously upon fortuity a to of his by contributing day noncontinuous the employment employer retirement.) At times plan least five that disability provision unreasonable, was found and therefore judicially arbitrary, capricious, in quote unlawful. We from those authorities the following paragraph: in the have the final perpetuated year manner which Trustees “[T]he fair equita- service for a is not and employer requirement... signatory (Teston ble;. 765, 769.) a . .” v. 464 F.2d “‘To exact Carey, supra, that number he have been the requirement irrespective years may mines, done the employed very in such he must have likewise during unreasonable, in arbi- last of his the coal is year industry, employment (Roark 497, 501.) Boyle, supra, trary and v. capricious.’” worked for contribut- applicant is. . .clear that the an has longer “[I]t his labor the direct connection there is between ing more employers, If the pur- his behalf. ... Fund’s paid the sums to the trustees on (whose to pose pay contributing employers’ employees is to benefits a contributions), is to see how such work it difficult generated ap- makes like these It requirement promotes purpose. because worked they valid claim pellants pension sacrifice otherwise The contributions non-contributing operators. a short time for relatively as a their did not evaporate made on behalf operators signatory Lewis, (Roark non-signatories.” result their later with employment last 425, 428.) arbitrariness of signatory “The facts, and, from the apparent stipulated is employment requirement therefore, arbitrary, capricious, is requirement that the Court holds America W. (Patterson Mine Workers United and unreasonable.” 11, 15.) “The & R. (E.D.Tenn. 1971) unfairness Fund plaintiff, such this person, is respect requirement patent mine, but during coal who worked many years signatory circumstances was constrained last his work in the year industry hand, a person the other non-union mine. On in a accept employment mines and yet his career in non-union could have worked entire during mine a union if secure managed employment receive a he his par- although his retirement preceding year immediately single results Such negligible. of the Fund would be in the creation ticipation absurd, The Court on border are unfair and unreasonable and [if] capricious, arbitrary in question concludes that requirement *9 meets all plaintiff invalid. Since the be set aside and held and should (Collins a v. United pension.” he is entitled to the other requirements, 1950, 964, 298 F.Supp. supra, Am. W. & R. Fund Mine Workers 970.) Nesbitt, 186 pension

In 453 F.2d a Section Lee v. supra, in Em- 1311): “If a does not work Covered person plan provided (p. of three consecutive period for at least 200 ployment days any .., calendar it shall constitute a break in and his years. employment (Here the “break in previous pension credits shall be cancelled.’” again is found from the employment” provision reasonably indistinguishable bench.) at the pro- “unbroken service” case requirement Finding face,” 1311-1312): vision (pp. “unreasonable on its the court stated “Section 302 that a trust be ‘for the sole and exclusive requires trust, benefit of The trustees of such a while employees.’ possessing measure of large discretion in conditions of prescribing eligibility benefits, owe a to the neither fiduciary duty employees impose unreasonable conditions of nor act arbitrarily eligibility determining who is Lee eligible.... had earned and was entitled to at least 15 years credits, worked to that time He having prior interruption. without was date, thus eligible pension on that save for the fact that he had not reached the age retirement.” Cianciulli, concerned a Section

Crawford which would divest an of his plan pension rights upon employee “break” in accredited service of its or the regardless length, employer contributions made thereunder. The court there concluded that under Section 186 “an need have some employee only history contributory 370), and that “‘standards... are met employment” (p. statute’s when benefits are restricted to who are or who have been cov- persons ered active This is the employees. employee group constituting (Italics added; 375.) “sole” p. beneficiaries.’”

Other on the issue under review follows: authority “Only employees who are to a employers lawfully contributing former union pension trust fund as beneficiaries of a Section 302 may qualify (Italics added; (2d 1968) trust.” Cir. Moglia Geoghegan den., (22 394 U.S. 919 89 S.Ct. 1193)].) L.Ed.2d [cert. “The standards sec. .are met when benefits are restricted to 186],. [of (Italics who are or who have been covered active persons employees.” added; 58, 70.) Blassie v. Kroger Company architect of the sec. principal legislation [i.e., 186], explained “[A] fund the welfare is that the provision ‘the purpose the debates *10 that each shall be its purposes that fund, be a perfectly shall definite to, and enforce to court go can he is entitled what can know employee therefore, dis in the sole be, not it shall fund, and that in the his rights purpose any usable leaders and the union union or cretion of the for the employee.’ of the union advantage is to the think may which they U.15, etc., v. Stuart Fla. (1947)....” (Bricklayers, 4876 93 Cong.Rec. 1017, 1025.) Co., Inc., 512 F.2d supra, Plaster. reason, that the foregoing principles

We are of the and opinion Plan, a conclusion that the judicial authority, interpret- mandate Malone, capri- was applied arbitrary, ed the Trust and as Gaylord cious, unreasonable, The court superior and unlawful. judgment will be reversed. accordingly the Trust princi-

We have failed to consider which authority upon not (9th So. Cal. v. Board Sheet Metal Workers relies: Giler pally 848; F. 1975) v. Tr. Pens. Tr. Burroughs Cir. Board (affd. (N.D.Cal. 1975) For 398 168 Engrs. Op. 1113]); S.Ct. Thurber v. cert. den. 429 U.S. 1096 L.Ed.2d 97 [51 1106; (9th 1976) 542 F.2d Pens. Plan Cir. Western Teamsters Conf. of Trustees, F.2d etc. 1299. v. Board Wilson Cal., In v. Board Sheet Metal Workers So. supra, Giler F.2d court “break-in-service” of a provision pension found a of pension valid where Giler did not have plan “required years (Here have the credits” the break. Malone did required before break.) It was held the trustees had “broad years before that Lewis, rules,” Roark v. setting discretion eligibility citing supra, Nesbitt, we 453 F.2d 1309. But as have and Lee out, 428): which held is. . .clear (p. it was Roark Lewis pointed “[I]t for contributing that the has worked longer applicant employers, there is his labor and the sums paid more direct connection between his If the Fund’s is to benefits to purpose pay trustees on behalf.... (whose work the contribu- contributing generated employers’ employees a tions), promotes it to see how such requirement difficult an otherwise It makes like these sacrifice purpose. employees appellants time for valid claim because worked a short they relatively pension operators operators. signatory contributions noti-contributing did as a result of their later evaporate made on their behalf not Nesbitt, it Lee v. finding with And was employment non-signatories.” face,” its which held “break-in-service” “unreasonable on provision 1311-1312): “Section 302 that a trust be 'for the (pp. requires pension trust, sole and exclusive benefit of The trustees of such a employees.’ while conditions measure of discretion possessing large prescribing benefits, owe a to the eligibility fiduciary duty neither unreasonable conditions of nor act impose eligibility who is . . Lee had earned and was arbitrarily determining eligible.. credits, entitled to at least 15 to that time prior worked having date, without He was thus on that interruption. eligible *11 save for the fact that he not the had reached of retirement.” age In Burroughs Board Tr. Pens. Tr. F. For Engrs., Op. supra, of 398 F.Supp. issue before only the court concerned the trustees’ failure to of the notify Burroughs break-in-service rule “until over two years after the Rule to cut off his began operating accrued pension 175). (See rights” (p. also v. Bd. Trustees Burroughs Pension Trust, 1976) 1128, 1130.) etc. The issue of the rule’s court, was not before validity the court. The without apparently argu- consideration, ment or other recited that “the Break-in-Employment face, Rule... is reasonable on its and its adoption the Board of by 175), Trustees was not or capricious” and then ruled that arbitrary (p. the administration of the pension plan was and arbitrary capricious It is Burroughs. axiomatic that statements judicial of law on points not “raised or considered” or “disputed lack argued” preceden- (6 Witkin, (2d tial or authoritative value. Cal. Procedure ed.

Appeal, 4615.) p. § Plan, In Thurber v. Western Teamsters Pens. supra, Conf. of (as did) Thurber did not Gaylord Malone have the required ” of covered before his But he employment “break-in-service. was advised by pension plan’s administrator “that everything ap- 1107), to be in peared order” and (p. that he was entitled to a pension. After some months of the pension was denied him. The issue in delay Thurber was whether the trustees were and equitably the trial estopped, and courts held that appellate were not. they Again validity “break-in-service” rule as with the amount of employee required issue, service for a pension was not at or considered. And it is notable 1108-1109) that the court iterated the rule that: (pp. “‘Only employees and who are to a employers lawfully contributing former union pension trust fund as beneficiaries of a Section 302 may qualify (Italics added.) trust.’” Trustees, etc., In Wilson v. Board us, case did not

employee, again unlike Malone before have before his “break- period “covered necessary employment” in-service” to The court found that as trigger pension. eligibility Wilson, not arbitrary capricious. the break-in-service rule was little aid.

These cases which the Trust relies lend it upon heavily if, we extent, have authority To the are inconsistent with the they the prefer- we that their effect is overcome gathered, persuaded are rationale, fairness and able and the greater weight, equity, contrary authority. that Gaylord

We also considered the Trust’s contention have a “cash termination accepting Malone had waived his pension rights by $433.39,” “there is no the assurance of the Trustees that benefit of upon the time through you can heal break in service from way your we a trustee We have it. Patently, became covered 1969.” again rejected *12 beneficiary furnished a or trust not so benefit from misinformation may trust, pleaded, And although the or unintentional. of whether deliberate court, the have been in pressed superior the defense not to appear does Trust, by the nor made sought by issue were not upon that findings be at the trial will not consid- not raised point fairly the court. Such a Lanes, (See State etc. Co. Golden ered on American Machine appeal. 554].) (1967) Cal.Rptr. Cal.App.2d Inc. [61 which the times events (following We note that in 1974 further the abuse growing Congress, recognizing appeal) are the of this subject we funds, have principles had codified the of Section 186 Trustees, etc., 1053; (See v. Board Wilson followed. 29 U.S.C. § 1302; Sheet Metal Workers Board Giler v. supra, Cal., of such 1.) litigation The massive fn. So. supra, end. be nearing (see appears issues Annots. 29 U.S.C.A. § It concerns consideration. remains for our Yet issue another Through fees. attorney Malone’s Carolyn for plaintiff Trust’s liability be conferred undoubtedly will counsel, substantial benefits the efforts of or his wid- Malone as was others situated upon our by holding reasons, for these that reasonably suggest considerations ow. Equitable of Gaylord vindication expended the time and costs and from and the relationship parties, the trust pension rights, Malone’s resources, representational legal financial and of their disparity obvious high such fees should be allowed. And we discern federal judi- attorney cial that be allowed under they principles equity authority may Trust, v. Bd. Trustees Pension (See Burroughs cases such as this. etc., 1128, 1131-1132.) We follow that au- choose to thority.

It is found to consider other contentions raised unnecessary by parties, including requirement pen- that the Plan’s argument Service,” sion must have at applicant “had least Unbroken construed, Trust, not be may reasonably require contended such unbroken service “immediately to the pension application prior” (2) that a disability, plan provide Section a reasonable period employer contributions before affected en- employee gains titlement to its benefits.

The judgment reversed. court will fix and award superior plaintiff’s reasonable fees for services rendered the action attorney and on this appeal, and thereafter enter such in favor of judgment plaintiff Carolyn Malone as is not with the inconsistent views we have expressed.

Newsom, J., concurred. GRODIN, J., at the Concurring. I arrive same destination as col- my *13 but a leagues, somewhat different route. and the

They, parties, assume implicitly federal law controls matter, (Cf. this and I Rehmar v. Smith (9th 1976) Cir. agree. 1362, 1368-1369.) F.2d I also that is agree there substantial authority for the propositions pre-ERISA1 that as to “sole and disputes exclu the, sive benefit” phrase 302(c)(5) contained within section of the Labor Management 1947, Relations Act of 29 United States Code section 186(c)(5), gives courts jurisdiction determine whether challenged provisions aof fund given pension constitute a “structural defect” in violation of that section (e.g., Burroughs Bd. Trustees Pension v. of of Trust, etc. (9th 1976) 1130); Cir. 542 F.2d and that a “structural defect” exist where the trustees have written unreasonable condi tions of eligibility exclude from arbitrarily benefits Employee 1 The Security Retirement Income Act of 29 United States Code seq., provides complex requirements vesting rights section et for pen of under (See, plans. e.g., 1053(b)(1)(F).) sion party Neither contends that ERISA is § applicable proceeding. to this 930, 935; v. (7th 1976) Cir. F.2d Alvares Johnson v. Botica (e.g., (D.C. 156, 166-167; (9th 1975) 514 F.2d Roark v. Lewis Cir. Erickson 425, 427; 1968) v. Trustees Western Cir. 401 F.2d Souza of Confer ence, (N.D.Cal. 1978) 844-845). etc. reasonable- for determining focuses the criteria upon When attention the court As arbitrariness, however, fuzzy. becomes picture ness or 429; Lewis, court is fully “The page 401 F.2d at in Roark supra, said of the size exerted on the trustees: pressures of the internal cognizant the size by changing achieved only can be is fixed and variations pie on the design part There is no camouflaged or the number of the slices. the trustees discretionary judgments second-guess of the court various rea- trustees, between to choose judges, not .... It for La- Const. (See v. Bd. Trustees also Tomlin sonable alternatives.” 148.) (9th 1978) Cir. 586 F.2d borers rules, of prior pension for cancellation providing

Break-in-service a common are in covered lapse employment, on the basis of credits in a of contexts. have been upheld variety plans, feature of pension (9th Cir. Cal. Workers So. Sheet Metal Giler Board (E.g., 848; Teamsters Pens. Plan 1975) Thurber v. Western Conf. Trustees, (9th 1106; etc. 1976) v. Board Wilson Cir. is, be, rea- 1299.) typically Such a rule may otherwise; and actuarial purpose, fund legitimate related to sonably little to adds as a “forfeiture” providing such a rule to characterize analysis. stan- not addressed the States has Court of the United Supreme defect” under this of “structural sort determining applicable

dards are not en- appeal of the circuit courts and the decisions section v. Trustees Indeed, in Souza Orrick observed Judge consistent. tirely etc., pronounce- even the Ninth Circuit’s Conference, Western *14 (460 to synthesis.” easy “do lend themselves ments in this area not Circuit, of the Ninth the views 843, 846.) are not bound by We (1976) (Debtor Bd. Equalization Inc. State Reorganizers, however 691, my judgment and Cal.Rptr. 64]), 58 696 Cal.App.3d [130 Circuit Court of Columbia is the District that of approach most useful Lewis, under consider- that case had The court in supra. in Roark v. trust that pension Mine Workers the United ation a requirement with a retirement be signa- before regular employment last employees’ makes employees requirement that such a Observing tory operator.

553 sacrifice an otherwise valid pension claim because worked a rela- they short time for tively operators, the court concluded that noncontributing the fund applicants had made out a facie to prima case as the require- ment’s unreasonableness. The court did not on that account hold the invalid, Rather, requirement it however. held that the burden shifted to the trustees to come forward with evidence the reasonable- establishing ness of the requirement, (reversing summary judgment had been granted trustees) favor of the it remanded for further proceed- ings to enable such evidence to be presented. fiduciary obligation trustees of a jointly administered pension is, least,

fund in some respects at to analogous of fair duty repre sentation which (See a union owes the members of its unit. bargaining Lewis, 425, Roark v. 427.) That is “at duty least as exacting... as the Constitution imposes upon to legislature give equal protection (Steele the interests of those for whom it legislates.” L. (1944) 192, & N. R Co. 173, 183, 323 U.S. L.Ed. 65 S.Ct. [89 In 226].) the arena of industrial relations and worker expectations to a right well be the may of a equivalent “fundamental inter est” in arena, the constitutional “strict warranting scrutiny” of the Inn, reasons asserted in (Cf. support classification. Sail’er Inc. (1971) 1, v. Kirby 329, 5 Cal.3d 529, Cal.Rptr. P.2d [95 A.L.R.3d 351].) Even the more test, traditional “rational relationship” however, requires formulations, its current if not a showing “‘fair and substantial (Reed relation to the object the legislation’” v. Reed (1971) 404 71, 225, 229, U.S. 75-76 L.Ed.2d 92 S.Ct. Brown 251]; [30 (1973) 855, v. Merlo 8 Cal.3d Cal.Rptr. 506 P.2d [106 66 A.L.R.3d then 505]), at least “‘a serious and genuine judicial inqui ry into the correspondence between the classification and the legisla (Newland tive goals’” (1977) v. Board Governors 19 Cal.3d Thus, Cal.Rptr. 566 P.2d 254]). the Roark v. Lewis view that [139 trustees bear the burden of evidence producing a rule that justify facie prima than, unreasonable no further goes perhaps not even as as, far the analogous equal protection inherent in the principle duty fair representation.

Unlike my I am not colleagues, prepared to that the rule com- say plained of herein is or unreasonable. There be arbitrary reasonable am, however, for its I justification existence. that it is prepared say unreasonable, prima facie in the sense that it disqualifies no appar- ent reason persons who have accumulated the already requisite *15 credit, service so that further evidence would be by way explanation is no and there appear, Since it does not in order to sustain it. required offered, I pur- or conclude claim, was introduced that such evidence for met, has not been proof trustees’ burden of that the this case poses of re- In all other entitled to accordingly judgment. and that was appellant colleagues’ opinion. I concur in spects, my and the on October was denied rehearing A for a petition was then rendered: following opinion the Trust rehearing On its for

ELKINGTON, petition P. J. Acting on a Code of that, was entered since the trial court’s judgment urges “had no opportunity present section 631.8 motion it Civil Procedure for a claim,” must now be remanded the and the cause evidence against continuation of the trial. We disagree. the filed with and handed to

At the Fund the trial’s commencement of the material facts its brief its version delineating trial court trial her trial brief with the time Malone filed plaintiff the case. At the same facts as the facts the controlling court the same stating substantially as to minor and irrelevant case. there was some Although disagreement statements of the material and respective none is found their points, the trial’s evidence in Neither inclusion of dispositive party sought facts. record, trial briefs are so included. parties’ the but both appellate will that the trial’s evidence was not presumed necessary It therefore he (See rule Rules of “to a determination of the on Cal. points appeal.” court, Court.) the on have treated the parties appeal And as the trial of the case. facts of their trial briefs as facts agreed Moreover, the Trust makes no assertion on its for petition rehearing, different, broader, or than those stated by that the material facts were at the trial’s commencement. parties circumstances, not, will under the now be permitted say Fund were, been, and additional facts calling that there have other have reached a result different from that we on case facts of stated it and Malone. plaintiff

Grodin, J., was should be opinion petition granted. was Supreme Court denied Respondent’s petition hearing by December 1980.