Lumbard, Chief Judge, Friendly, and Hays, Circuit Judges. Lumbard, Chief Judge (dissenting).
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, 165 N.E. 2d 855, 198 N.Y.S. 2d 282 (1960),*fn1 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).*fn2
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);*fn3 see 105 Cong. Rec. 14,366 (daily ed. August 12, 1959) (remarks by 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 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 ...