STALEY, Circuit Judge.
This appeal requires us to determine whether Title I ("bill of rights") of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 73 Stat. 519, 29 U.S.C.A. § 401 et seq., regulates the conduct of private individuals not acting as agents or representatives of any labor organization.
Tomko, appellant, commenced an action under the bill-of-rights section of the LMRDA for damages and an injunction, alleging that Hilbert and Kreheley, appellees, libeled and assaulted him, and that by means of threats, force and disorderly conduct, unlawfully interfered with his rights as a member and officer of Local 1408, an affiliate of the United Steelworkers of America ("USW"). The action was brought against appellees in their individual capacites, although both are officials of District 15 of the USW. Appellant does not allege that any labor organization or any officer or agent thereof acting in an official capacity has violated his rights under the bill of rights.
The district court dismissed the action because of the appellant's failure to exhaust the remedies provided for by the USW's constitution. This, appellant contends, was reversible error. We need not reach this question, however, for it is our conclusion that the LMRDA does not provide
The need for and purpose of enacting the LMRDA is clearly set forth in subsection 2(a), 29 U.S.C.A. § 401(a), of the preamble, which states that in order to realize a free flow of commerce, "it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations, particularly as they affect labor-management relations." Subsection 2(b), 29 U.S.C.A. § 401(b), shows that Congress concluded that as a result of certain investigations that had been conducted in the labor-management field, further and supplementary legislation was necessary to protect the rights and "interest of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives." In subsection 2(c), 29 U.S.C.A. § 401(c), Congress declared "that the enactment of this Act is necessary to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants, and their officers and representatives * * *."
The provisions with which we are chiefly concerned are contained in Title I. Under subsection 101(a) (1), 29 U.S. C.A. § 411(a) (1) every union member has equal rights and privileges of participation in the internal affairs of the union subject to reasonable rules and regulations of the union's constitution or bylaws. Subsection 101(a) (2), 29 U.S. C.A. § 411(a) (2) guarantees a union member the right of free speech and assembly as regards union activities, subject again, however, to any reasonable rules and regulations that a union may adopt to protect itself as an institution. Procedures for increasing dues, initiation fees, and levying assessments by the union are meticulously spelled out in subsection 101(a) (3), 29 U.S.C.A. § 411(a) (3), while subsections 101(a) (4) and (5), 29 U.S.C.A. §§ 411(a) (4) and (5), protect the member's right to sue the union and provide procedural safeguards for improper disciplinary action by the union. Sections 104 and 105, 29 U.S. C.A. §§ 414 and 415, require the union to provide its members with copies of the collective bargaining agreement and information concerning the provisions of the LMRDA. The civil enforcement provisions of the bill of rights, section 102, 29 U.S.C.A. § 412, provides that "Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located." There is no indication here that the substantive provisions of the bill of rights can be enforced against any person as that term is defined in subsection 3(d), 29 U.S.C.A. § 402(d).
A recapitulation of other pertinent provisions of the LMRDA clearly shows that its operation is narrowly focused on protecting the union-member relationship. Title II specifies certain reports that must be prepared and distributed by labor organizations, their officers, and employees, and employers.
A chronological review of the LMR DA's legislative history begins with the Kennedy-Ervin bill. It did not contain a bill-of-rights section.
During debate on the amendment that he proposed and that the Senate passed,
While the amended Kennedy-Ervin bill was still in the Senate, the so-called Kuchel substitute was offered for the McClellan bill of rights, the substantive provisions of which were, however, in the main retained.
The House of Representatives in enacting the Landrum-Griffin bill as a substitute for the Senate bill retained the bill-of-rights provisions of the Senate bill with minor modification.
Earlier that same day, Representative Arends said:
After the conference committee reported, the Landrum-Griffin bill passed the Senate where during debate additional light was thrown on congressional intent. Senator Mundt made the following observation:
Senator Ervin, a co-sponsor of the original Kennedy-Ervin bill, succinctly summed up the purpose of the LMRDA when he said:
To sum up, the LMRDA gives to the individual union members certain rights which when interfered with by a union, its officials or its agents, can be redressed civilly against them. In addition, there are criminal sanctions imposed
Appellant does not allege that a labor organization or any official or agent acting in its behalf has instigated or performed the acts complained of. The caption of the complaint simply refers to the appellees as "Paul Hilbert and Michael Kreheley, Defendants." Counsel for appellant in attempting to explain the nature of this action said during a colloquy with the district judge: "Now, we have a right to prevent a continuous tort. We have a right to keep you out of the hall or keep you civil when you get in as a guest in our hall. We have a right to protection for we have freedom of speech and freedom of assembly." Shortly thereafter, the district court said to appellant's counsel: "You come in and contend they commit tortuous [sic] acts." In his brief, appellant stated: "The complaint herein does not claim plaintiff was denied rights as a member by his union. Does he, because he is a union member, lose his right as a citizen to apply for equitable relief against continuing torts committed by individual defendants?" Appellant may well have such right, but it is not contained in the bill of rights and cannot be vindicated in a federal court absent diversity. Clearly, there is no diversity among the parties here.
Private misconduct which incidentally may frustrate appellant's rights as a union member does not give rise to an action under the bill-of-rights section. As we have demonstrated above, it certainly was never the intention of Congress to open the federal courts to the adjudication of ordinary tort claims merely because the conduct occurs in a union hall during a union meeting and none, one, or all of the participants are union members. Could a simple assault and battery on a union member arising out of a personal feud be vindicated under the bill-of-rights section merely because it occurs at a union meeting? We think the answer is obvious. The state courts remain open to appellant. Rights and remedies that he may have under state law have not been preempted or affected by passage of the bill-of-rights section of the LMRDA.
Though involving different facts, several recent decisions fully support our interpretation of the limits of the LMRDA. Gross v. Kennedy, D.C.S.D.N.Y. 1960, 183 F.Supp. 750; Jackson v. Martin Co., D.C.Md.1960, 180 F.Supp. 475. See also Smith v. General Truck Drivers Union, Local 467, D.C.S.D.Cal.1960, 181 F.Supp. 14. While holding that the bill-of-rights provision of Title I did not give the federal courts jurisdiction to adjudicate claims arising out of a breach of an employment contract between a business agent and the defendant union, the court in Strauss v. International Brotherhood of Teamsters, D.C.E.D.Pa. 1959, 179 F.Supp. 297, 300, said:
In Allen v. Armored Car Chauffeurs Union, Local 820, D.C.D.N.J.1960, 185 F.Supp. 492, a union member brought an action under the bill-of-rights section against his employer for an allegedly wrongful discharge and against the union for failure to prosecute a grievance. The union moved to dismiss for lack of jurisdiction, contending that the bill-of-rights section applied only to questions concerning the internal political and civil rights that exist between the union and its members. In granting the motion, the court said at 185 F.Supp. 494:
Recently, this court in Hughes v. Local No. 11, 3 Cir., 287 F.2d 810, held that an action did lie under the LMRDA against a union for its refusal to accept a transfer of membership from another local of the same international.
The order of the district court will be affirmed.
HASTIE, Circuit Judge (concurring in result).
The court below entered judgment against the plaintiff because he had not sought administrative redress, which seemed to be available to him within his labor organization, before instituting this action under the Labor Management Reporting and Disclosure Act of 1959. Section 101(a) (4) of the Act, 29 U.S.C.A. § 411(a) (4), provides that any aggrieved union "member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof * * *." Pursuant to this provision the court below concluded that there appeared to be avenues of redress available to the plaintiff within the labor organization which seemed reasonably calculated to correct such a wrong as he alleged. Though, on the present record, the appropriate intra-union procedures are not made as clear as one might wish, I think enough appears to justify the district court's conclusion. For this reason I would affirm the judgment, making it clear that the plaintiff would not be barred from again asking the court for relief, if the union should reject his claim or dispose of it arbitrarily.
This court's basis of affirmance is quite different. It finds that this suit cannot be maintained because the plaintiff does not allege or sufficiently indicate that the defendants, in their wrongful interference with a local union meeting, acted under color of and in abuse of their authority as regional representatives of the International Union. Even though the defendants are described as representatives of the International Union, the complaint is viewed as alleging misconduct unrelated to this official capacity. If this were the only defect in the plaintiff's case, I would at most direct that the complaint be dismissed with leave to plead over.