YANITY v. BENWARE

HAYS, Circuit Judge:

Plaintiffs, members and former officers of Local 2112 of the defendant International Association of Machinists, appeal from a judgment entered in the United States District Court for the Western District of New York dismissing their complaint in an action to redress alleged violations of Sections 101 (a) (2) and 501(a) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 411(a) (2) and 501(a), and to recover for defendants' negligence and breach of contract. We find no error and affirm the judgment.

Plaintiffs were formerly employed in North Tonawanda, New York by the Durez Plastics Division of the Hooker Chemical Corporation. In October of 1960 a dispute arose concerning the return of three foremen to the bargaining unit at a time when other union members were laid off. The complaint alleges that a representative of the defendant International Association of Machinists advised plaintiffs' local to strike, assuring the members that the International would support them despite the existence of a no-strike clause in the union's collective bargaining agreement with Durez. The ensuing strike, involving approximately 600 employees, ended after three days when the International advised the strikers to return to work. Twenty-seven employees, including the plaintiffs, were discharged by the company for participating in the strike.

The question of the propriety of the discharges was submitted to an arbitration board which directed that certain of the strike participants be reinstated but upheld the discharge of the plaintiffs.

The plaintiffs claimed to have discovered that one of the arbitrators on the tripartite arbitration panel was biased against them and sought to have the award vacated. Since under New York law only a party to the arbitration may attack the award (see New York Civil Practice Act § 1462, now Civil Practice Law and Rules § 7511; In re Soto, 7 N.Y.2d 397, 198 N.Y.S.2d 282, 165 N.E.2d 855 (1960)),1 the plaintiffs asked that defendant Benware, president of their local, institute a state proceeding to vacate the award. He refused and the plaintiffs allege that, acting pursuant to the union constitution, they obtained sufficient signatures on a petition to require the convening of a special meeting of the local to consider their request. Despite the petition Benware refused to call a special meeting.

To prevent the ninety day New York statute of limitations (CPLR § 7511) from running, plaintiffs brought an action to vacate the award in the state Supreme Court. At the next regular meeting of the local, which occurred more than ninety days after the arbitration award had been handed down, plaintiffs attempted to place before the union membership the question whether the union should support them in their state court attack on the award. They allege that Benware refused to allow Yanity, spokesman for the plaintiffs, to speak and thus frustrated plaintiffs' efforts to present their request to the membership. The state proceedings were dismissed for want of a proper party plaintiff and this action for damages was commenced.

Plaintiffs' primary contention is that their complaint states a claim for relief under Section 101(a) (2) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a) (2).2

Plaintiffs argue first that Benware's refusal to call a special meeting of the union membership when requested to do so in accordance with the union constitution violated their right under section 101(a) (2) "to meet and assemble freely with other members." We do not agree.

While the scope of this provision is not entirely clear, its immediate context and its legislative history establish that it was not intended to create a right to call meetings of the union membership. The remarks of Senator McClellan, who was the principal proponent of a bill of rights for union members, indicate that the right of assembly conferred by the statute was intended to enable union members to meet outside their regular union meetings for the purpose of discussing internal union affairs without fear of reprisal by union officials. 105 Cong.Rec. 5812 (daily ed. April 22 1959);3 see 105 Cong.Rec. 14,366 (daily ed. August 12, 1959) (remarks of Rep. Derwinski).

The language of the provision is more appropriately applicable to participation in such rump sessions than it is to a general right to hold meetings. Had Congress intended to establish a right to have meetings it would, presumably, either have specified certain periods within which meetings must be held and the circumstances under which special meetings might be called, or have given the Secretary of Labor the authority to issue regulations on the subject. For example, Title IV of the Act, dealing with the subject of elections, includes a provision directing that elections by local unions be held "not less often than once every three years" and that elections by national or international labor organizations be held "not less often than once every five years." 29 U.S.C. § 481(a) (b).

Further support for the view that the right to assemble does not have the broad content that plaintiffs ascribe to it may be found in the limited area to which the related right "to express any views, arguments, or opinions" guaranteed by Section 101(a) (2) is applicable. It is clear that the latter clause was intended only to safeguard the right of free speech outside union meetings, both because a separate clause of Section 101 (a) (2) defines and limits the right of free speech at union meetings, and because Senator Kuchel, whose amended version of the bill of rights is embodied in section 101 of the Act, and Senator McClellan agreed that this was the purpose of the clause. 105 Cong.Rec. 6021 (daily ed. April 25, 1959). There is no indication that the right of assembly was intended to be broader in scope.

We conclude, therefore, that the failure to hold a special meeting in the circumstances alleged does not give rise to a federal claim. Congress made clear in the 1959 Act that certain matters were to be left subject to state law (see, e. g., 29 U.S.C. §§ 413, 523(a)) and this is apparently one of them.

Plaintiffs next contend that the refusal to allow Yanity to bring before the union meeting their request that the union seek to vacate the arbitration award violated their right under Section 101(a) (2) "to express at meetings of the labor organization [their] views * * * upon any business properly before the meeting." We need not decide the extent to which this provision creates a federal right to bring any appropriate business before a union meeting and have a vote upon it. Even assuming that plaintiffs could have persuaded their fellow union members to prosecute this claim in the state court, the meeting occurred after the ninety day period for vacating the award had expired and plaintiffs have not shown that they would have been able to avoid the statute of limitations bar even if the union had belatedly determined to attack the award. The connection between defendant's alleged wrongful act and the injury to plaintiffs is therefore speculative and too remote as a matter of law to permit an award of damages.

Plaintiffs' other claims may be dealt with summarily.

They argue that the International Union violated its fiduciary obligation under Section 501(a) of the Act, 29 U. S.C. § 501(a),4 by inducing them to participate in the strike against Durez. However, we have held that Section 501 (a) "applies to fiduciary responsibility with respect to the money and property of the union and that it is not a catch-all provision under which union officials can be sued on any ground of misconduct with which the plaintiffs choose to charge them." Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964) (footnote omitted). In any event, plaintiffs' claim is foreclosed by their failure to comply with the procedural requirements of Section 501(b).5

Since all of plaintiffs' federal claims were properly dismissed at the pleading stage, the district court did not err by refusing to hear their nonfederal claims. See, e. g., United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497, 501 (1st Cir. 1950) citing Strachman v. Palmer, 177 F.2d 427, 431-34 (1st Cir. 1949) (concurring opinion); Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Colum.L.Rev. 1018, 1025-26 (1962).6

The judgment dismissing plaintiffs' complaint is affirmed.

LUMBARD, Chief Judge (dissenting).

I dissent. In my opinion, both of plaintiffs' claims under the Bill of Rights, section 101, of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 522 (1959), 29 U.S.C. § 411, are legally sufficient.

I.

I believe that plaintiffs' allegation that defendants refused, in violation of the union constitution, to call a special meeting requested by a petition signed by the required number of members of the local for the purpose of considering an attempt to vacate the arbitration award as to plaintiffs states a claim upon which relief can be granted under section 101 (a) (2) of the LMRDA, 73 Stat. 522 (1959), 29 U.S.C. § 411(a) (2). This question, which is one of first impression, was apparently not explicitly considered either in the congressional debates leading to the enactment of the Bill of Rights of the LMRDA, which because of the circumstances of its introduction and adoption were very short,1 or by commentators, who concentrated their attention upon the advisability of regulating admission and expulsion of members, elections, and trusteeships.2 Absent any direct indication of congressional intent, we must determine whether section 101 (a) (2) confers a right to have held the meetings required by the union constitution and bylaws by considering the purpose of the Bill of Rights and the rights specifically protected by section 101(a) (2). This the majority, by inquiring only whether such a right is discussed in the sparse legislative history of the Bill of Rights or is safeguarded as explicitly as the right to speak at union meetings or to vote for union officers, has failed to do.

A basic purpose of the LMRDA, and particularly of its Bill of Rights, is to assure "full and active participation by the rank and file in the affairs of the union." American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-183, 85 S.Ct. 300, 307, 13 L.Ed.2d 214 (1964). That this purpose comprehends guaranteeing the rights of union members to attempt to influence the actions and policies of their union to the full extent permitted by its constitution and bylaws is made clear by section 101(a) (1), 73 Stat. 522 (1959), 29 U.S.C. § 411 (a) (1), which assures each member of a labor organization

This broad reading of congressional purpose is supported by the meager legislative history of the Bill of Rights. For example, Senator McClellan declared when introducing it on the floor of the Senate, "I believe that if you would give to the individual members of the union the tools with which to do it, they would pretty well clean house themselves." 105 Cong.Rec. 5810 (daily ed. April 22, 1959), reprinted in 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 1102 (1959) (hereafter Leg.Hist.).3

In view of the broad purpose of safeguarding union democracy which underlies the Bill of Rights, the majority's holding that section 101(a) (2) protects the right to speak at union meetings only if the union leadership chooses to hold the meetings required by the union's constitution and bylaws is anomalous. A union leadership can stifle attempts by members to influence union policy as effectively by refusing to hold required meetings as by refusing the floor to members of opposing views. This is especially true where prompt action at a special meeting is essential, as plaintiffs allege it was here. Only by construing the right, conferred by section 101(a) (2) upon each member of a labor organization,

as presupposing and including the right to have such meetings held when required by the organization's constitution and bylaws can such obvious circumvention of the congressional purpose be prevented.

Such a construction would not, as the court below feared,

Any such possibility may be avoided by quorum and notice requirements, which would seem clearly to be "reasonable rules" permitted by the proviso of section 101(a) (2). Nor would the requirement that the meetings mandated by a union's constitution and bylaws actually be held be difficult to apply, or involve federal courts in the technical niceties of union government. Whether a meeting was required by the union constitution or bylaws would generally be a much easier issue to determine than whether a member was improperly denied a chance to speak.4 As against these considerations, the majority fails to suggest any reason why Congress should have wished to assure the right to speak at union meetings, but to leave the right to have meetings held at all to the uncertain protection of state law. In particular, the majority does not suggest that the right to have union meetings held has been effectively protected by New York or any other state.5

For these reasons, I would hold that the plaintiffs' allegation that the defendants refused to call a special meeting required by the union constitution, if substantiated, would establish a violation of section 101(a) (2).

II.

Plaintiffs' allegation that defendants refused to allow plaintiff Yanity to speak at the regular meeting in order to seek to persuade the local to join plaintiffs' action to vacate the arbitration award clearly states a claim upon which relief can be granted under section 101 (a) (2). Defendants argue that the complaint is insufficient because it does not specifically allege that the other plaintiffs were also prevented from speaking, or that plaintiffs' request was not in any manner presented to the meeting. The complaint is certainly sufficient under Fed.R.Civ.P. 8(a) (2), which requires only "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); see Nagler v. Admiral Corp., 248 F.2d 319, 322-325 (2 Cir. 1957). Defendants rely upon the holding of the Seventh Circuit in Scovile v. Watson, supra note 4, which seems to me clearly distinguishable even if correct on its facts. The plaintiff in that case failed to allege that the motion she was prevented from making was in order, while plaintiffs here have alleged that Yanity attempted to speak at the proper time for the presentation of new business and defendants have not alleged that plaintiffs' request could not have been acted on by the membership of the local.6

III.

Defendants next contend that both claims under the LMRDA Bill of Rights must be dismissed because plaintiffs' complaint fails to allege that they exhausted all internal union remedies reasonably available within a four-month period. See Thompson v. New York Central R. Co., 250 F.Supp. 175 (S.D. N.Y.), aff'd on other grounds, 361 F.2d 137, 145 (2 Cir. 1966). However, defendants have failed to allege by answer or affidavit in the record that any such remedies existed. The burden of alleging the availability of unexhausted internal remedies in an action under the LMRDA should be upon the defendant, both because the imposition of a requirement of exhaustion of internal remedies is permitted only by a proviso to the act's general guarantee of the right to sue, section 101(a) (4), 73 Stat. 522 (1959), 29 U.S.C. § 411(a) (4), cf., e. g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 92 L.Ed. 1196 (1948), and because the proviso states that a prospective plaintiff may be required to exhaust any "reasonable hearing procedures" available within four months, but does not require that meaningful remedies be made available. Therefore we cannot assume that any remedies existed.

Even if defendants had alleged that internal remedies existed which plaintiffs failed to exhaust, they would not have been entitled to summary judgment. Exhaustion is not required where "conceded facts show a serious violation of a fundamental right," Libutti v. DiBrizzi, 337 F.2d 216, 219 (2 Cir. 1964), and defendants have not yet denied the allegation that they refused to call a special meeting required by the union constitution. Moreover, plaintiffs may not have been advised of the availability of internal remedies. See Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2 Cir.), cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961). Or any available remedies may have been too cumbersome to serve as an effective review of the refusal to call a special meeting during the limited time available to plaintiffs, and may not have provided for an award of damages. See Summers, supra note 5, at 1088-89. Any such ineffectual remedies would not seem to constitute the "reasonable hearing procedures" required by the proviso of section 101(a) (4) which permits imposition of a requirement of exhaustion. Compare Vorenberg, Exhaustion of Intraunion Remedies, 2 Lab.L.J. 487, 490 (1951). For these reasons and other possible reasons, plaintiffs may well be entitled to relief despite their asserted failure to exhaust internal remedies.

IV.

Finally, defendants argue that plaintiffs' claims under the LMRDA Bill of Rights are too speculative as a matter of law to permit an award of damages. This argument in effect seeks a summary judgment, which we should grant only with great caution, as the record does not show that summary judgment was sought below on this ground, at least as to the claim based upon the alleged failure to call a special meeting. See Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971 (1949).

Plaintiffs assert in their brief on appeal that both union members of the tripartite arbitration panel had sought to have plaintiff Hartung expelled from the union, and that one had threatened to "get" plaintiff Yanity. If, as seems clear in retrospect, federal law governed the validity of the arbitral award, see Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), it seems likely that the award could have been vacated at least if the union violated its duty of fair representation of the plaintiffs. Cf. Vaca v. Sipes, 386 U.S. 171, 183-195, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hiller v. Liquor Salesmen's Union, 338 F.2d 778 (2 Cir. 1964). If New York law governed, I strongly doubt that the case which nearly a year after the rendition of the award in this case established the validity of tripartite arbitration under New York law, Astoria Medical Group v. Health Ins. Plan, 11 N.Y.2d 128, 227 N.Y.S.2d 401, 182 N.E.2d 85 (1962), would be extended to a case where the union arbitrator on a tripartite panel was biased against the member whose grievance was being arbitrated. Thus it cannot be held on this record that plaintiffs are foreclosed as a matter of law from recovering damages if their allegations are sustained.7

V.

Since I would hold that plaintiffs' claims under the LMRDA Bill of Rights were improperly dismissed, I would allow the trial court to pass on whether to accept pendent jurisdiction over plaintiffs' state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-727, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). I would also permit the trial court to determine in the first instance whether to permit an amended claim relying explicitly upon the duty of fair representation.

I agree with the majority that plaintiffs' claim of violation of the fiduciary duty imposed by section 501 of the LMRDA, 73 Stat. 535 (1959), 29 U.S.C. § 501, was properly dismissed, and that the court below lacked jurisdiction of plaintiffs' attempted class action.