The opinion of the court was delivered by: COHILL
In September of 1976, plaintiffs, Paul Woods and Charles Leitsch, petitioned this court for an ex parte application for permission to institute suit against the above-named defendants. This was done pursuant to the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501(b) ("the Act"). Plaintiffs alleged that, in violation of the Act, the defendants were dissipating union funds by collecting dues from the production workers of Local No. 12 in an amount substantially less than what the dues by-laws required. On September 27, 1976 this court authorized plaintiffs to institute suit. Jurisdiction is invoked pursuant to 29 U.S.C. § 501(b).
Plaintiffs filed a complaint and served the defendants on November 1, 1976. On November 18, 1976, pursuant to Fed. R. Civ. P. 60, defendants filed a motion for relief from the September 27 court order authorizing this action. Oral arguments were heard, and we postponed ruling until all parties had filed memoranda regarding the issues.
During the hearing defendants asserted that these same plaintiffs had filed a complaint under the Act against defendant, Local #12, and the Sheet Metal Workers International Association in March of 1975 at Civil Action No. 75-266. That case had been assigned to Judge Edward Dumbauld and was dismissed by stipulation of all parties. When the plaintiffs filed their section 501(b) application here, they neglected to list their prior case as a "related case" on the court's Case Cover Sheet, which normally would have caused it to be assigned to Judge Dumbauld.
At the hearing, we ruled that the present case is related to Civil Action No. 75-266, previously filed by the plaintiffs, but that we would retain jurisdiction, since the other case had already been disposed of.
Plaintiffs' counsel stated on the record at the hearing that plaintiffs would agree to withdraw the suit against the defendant Local #12 and proceed only against the named individual defendants.
Plaintiffs are relying on a statutory right to bring their action in this court and therefore must meet all of the mandates of the Act. Section 501(b) authorizes any union member to bring a suit in a federal district court or state court against union officials for alleged violations of section 501(a) if
". . . the labor organization or its governing board of officers refuse to fail to sue or
recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization . . ."
Defendants argue that plaintiffs cannot bring this action because they did not request the appropriate officers of the defendant union to sue for the alleged loss of funds or property, as is required by the Act.
There is no doubt that a request of the union officers to take action is a condition precedent to suit by a union member. Purcell v. Keane, 406 F.2d 1195 (3d Cir. 1969).
Plaintiffs stated in their ex parte application that on or about February 20, 1976, via union procedure, they had charged the defendants with collecting dues in an amount less than what was provided for by the due by-laws. A copy of the charge letter which was sent to the defendants was attached to the complaint as Exhibit 3. Plaintiffs argue that this letter, and the absence ...