2. Sec. 501(b) provides that no such proceeding shall be brought "except upon leave of the court obtained upon verified application and for good cause shown . . .".
This record shows no such application made or leave granted. Such leave is a condition precedent to the bringing of such suit. Addison v. Grand Lodge, 318 F.2d 504 (9th Cir. 1963); Coleman v. Brotherhood, 340 F.2d 206 (2d Cir. 1965); Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F. Supp. 608 (E.D. Pa. 1960); Purcell v. Keane, 406 F.2d 1195 (3d Cir. 1969); Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966).
A factor in the showing of good cause requirement can be the extent to which plaintiffs have utilized or exhausted their internal union remedies. Coleman v. Brotherhood, supra; and Purcell v. Keane, supra.
3. Sec. 501(a) imposes the duties upon union officers "to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder, . . .".
The complaint contains no allegations of failure to hold money or property for the benefit of the organization nor of any expenditure not authorized by the Constitution or bylaws or resolutions.
Numerous cases have held that Sec. 501(b) remedies are available only on a cause of action dealing with the fiduciary responsibility with respect to the money or property of the union. Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964); Coleman v. Brotherhood, 340 F.2d 206 (2d Cir. 1965); Holton v. McFarland, 215 F. Supp. 372 (D. Alaska 1963); Richardson v. Tyler, 309 F. Supp. 1020 (N.D. Ill. 1970); Aho v. Bintz, 290 F. Supp. 577 (D. Minn. 1968).
Plaintiffs have cited the broad application of the term fiduciary duties as such duties are set forth in 29 USCA § 501, particularly in the case of Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963). The language of Johnson is broad, but the case actually involved the refusal of certain union officers to pay monies as directed by a resolution of the local.
We can find no support for plaintiffs in either Gartner v. Soloner, 384 F.2d 348 (3d Cir. 1967), or Purcell v. Keane, 406 F.2d 1195 (3d Cir. 1969). Both cases concerned the expenditure of union funds. Both concerned the power of the court to award legal fees as part of their power of relief, the question at issue in Johnson v. Nelson, supra. Neither applied Sec. 501(b) relief to anything but a problem involving expenditures of union funds. Gartner, supra, was a proceeding under 29 USCA § 412 and Purcell, supra, was solely concerned with the "exhaustion of remedies" question in Sec. 501 cases.
Also Highway Truck Drivers v. Cohen, 182 F. Supp. 608 (E.D. Pa.), affd., per curiam, 284 F.2d 162 (3d Cir. 1960), although using broad language, enjoined union officers from paying legal fees from the union treasury for the defense of those officers in criminal proceedings against them arising out of the alleged misuse of union funds. Nor is Falcone v. Dantinne, 420 F.2d 1157 (3d Cir. 1969), at all pertinent to our issue.
In summary, we have found no Sec. 501(b) action arising out of any other circumstance than the use of union funds. None of the other citations of plaintiffs are pertinent to this question of the scope of Sec. 501. In fact few deal with Sec. 501 causes of action.
4. Another procedural requirement to jurisdiction is lacking here. Sec. 501 requires a prior seeking of internal remedies.
It is particularly noted that the letter of request addressed to Defendant Budzanoski as President of District 5, UMWA, by counsel for plaintiffs does not address itself to fiduciary violation under Sec. 501, but rather to the alleged violation of the International and District 5 Constitution in allowing the alleged illegal unions to continue in existence.
A similar letter to W. A. Boyle, President of Defendant United Mine Workers of America, International Union makes an identical complaint. Boyle is not a party-defendant here.
The pertinent requirement of prior administrative or internal relief before commencing the action is that any member of a labor organization may request a labor organization, or its governing board of officers to sue or recover damages, or secure an accounting or other appropriate relief, and upon their refusal or failure to do so within a reasonable time after being requested to do so, such member may sue such officer, agent, shop steward or representative to recover damages or other appropriate relief for the benefit of the labor organization.
The cases have required a strict adherence to the Congressional requirements:
"The Act was not 'intended by Congress to constitute an invitation to the courts to intervene at will in the internal affairs of unions'; rather, there was an underlying 'general congressional policy to allow unions great latitude in resolving their own internal controversies'. That policy is best subserved by close adherence to the words Congress chose to use in prescribing the conditions under which judicial resolution of such a controversy might occur. Particularly is this so where, as here, a statute which confers a new right as a matter of federal law also utilizes restrictive language in specifying the remedy for its infringement." International Brotherhood of Teamsters v. Hoffa, 242 F. Supp. 246 (D.D.C. 1965).
Thus it has been held that a member must assert the breach of obligation by some officer, agent, shop steward or representative and request suit, and, after failure or refusal of the labor organization or its officers to sue, such member (i.e. the one making the request) only may then sue the alleged offending officer, agent, shop steward or representative. 29 USCA § 501(b). See also: Persico v. Daley, 239 F. Supp. 629 (S.D.N.Y. 1965).
While we find that the procedural prerequisites to our jurisdiction are lacking here, which require dismissal, even under the federal doctrine of notice pleading we hold that the present Complaint fails to set forth a violation of the specific duties which Sec. 501 imposes on officers which must be shown to give the court jurisdiction:
"A simple reading of that section 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." Gurton v. Arons, 339 F.2d 371, 375 (2d Cir. 1964).