Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.
At its annual convention in May 1963, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees adopted a resolution designated as Resolution No. 611, the effect of which was to create the office of "Chief Executive" of the Union, to empower the Chief Executive to exercise the same powers as the Grand President, and to fix the salary of the Chief Executive at $60,000 a year.*fn1
The next day after the convention had adopted Resolution No. 611 the regular election of officers took place. George M. Harrison was the only person nominated for the office of Chief Executive. He was elected to that office by 1704 votes out of a total of 1803.
Plaintiffs allege that Resolution No. 611 is a nullity because, though effectively amending the constitution, it was not adopted in accordance with the procedure provided for amendment of that instrument but instead was adopted without due notice or full disclosure.
Plaintiffs brought this action under Titles I*fn2 and V*fn3 of the Labor Manage ment Reporting and Disclosure Act, seeking a declaratory judgment of the invalidity of Resolution No. 611 and an injunction against its taking effect. The district court dismissed the complaint. We affirm the decision of the district court.
Though the plaintiffs have briefed their claim under Title I, in their oral argument they did not mention that part of the statute. Presumably they were moved by the intervening decision of the Supreme Court in Calhoon v. Harvey, 33 U.S.L. Week 4039 (U.S. Dec. 7, 1964), to abandon their reliance on Title I. That reliance was based upon the allegation that the delegates to the convention "were not accorded with respect to Resolution No. 611 the same opportunities and advantages which they enjoyed with respect to all of the other proposed amendments . . ." That this type of irregularity does not come within the reach of Title I is made clear in the opinion in Calhoon v. Harvey, supra . See also Robins v. Rarback, 325 F.2d 929 (2d Cir. 1963). There is no claim that any delegate was denied an equal right to vote or participate. There is nothing in Title I which purports to guarantee that all proposed amendments to the union constitution will be accorded the same procedural treatment.
Plaintiffs' principal resort is to Title V of the Act. But plaintiffs' reliance on Title V is defeated at the outset by failure to comply with the procedural requirements of Section 501(b). Under that Section plaintiffs can bring an action only if "the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so . . ." We hold that this provision of the statute is mandatory and that its requirements cannot be met by anything short of an actual request.An allegation of the futility of such a request will not suffice. Together with the further requirement of a showing of good cause and of securing court permission to proceed, the provision requiring a request is clearly designed to protect union officials from unjust harassment. If it is to serve the purpose for which it was included, it must be given full effect. Since the plaintiffs do not allege that they have made the prescribed request, they are not in a position to bring the present action.
What we have said is sufficient to defeat the action and to support the result reached in the district court. However, the defense which we have sustained to the claim under Title V is in the nature of a defense in abatement. The plaintiffs could now make the request as provided by Section 501(b) and if no action was taken within a reasonable time, they could, in effect, reinstitute the present suit.Since it is clear to us that the plaintiffs have no valid claim for relief under Title V, we prefer to rest our decision on the broader basis which will constitute a complete bar to any action under that Title.
The supposed violations of Title V are set forth in the complaint as follows:
"In all of the circumstances herein described defendants and some members of the Grand Executive Council violated their duty as fiduciaries under Section 501(a), Title V, of the Act of 1959 in that (i) they and defendants deliberately suppressed needed information and knowledge respecting Resolution No. 611 before it was voted upon; and (ii) they rushed the Resolution through in disregard of custom and of Article 13, Section 27, of the defendant's Constitution; and (iii) defendant George Harrison notably lacked that candor and honesty and that respect for his duty as trustee which the Statute imposes and which the Brotherhood members had a right to expect from a person so benefited at Union expense and so advantaged by respected and controlling Union office."
In the very recent case of Gurton v. Arons, 339 F.2d 371, 2d Cir., 1964, we said:
"A simple reading of Section 501 . . . shows that it 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."
In support of our view as to the coverage of Section 501 we called attention to the legislative history and to the law review articles cited in Guarnaccia v. Kenin, 234 F. Supp. 429, 442-43 (S.D.N.Y. 1964), aff'd ...