(concurring) :
I concur in the result. I agree with the majority’s general definition of our role in this case — that we should not dictate Local 802’s choice between election by referendum and election at a membership meeting but should only insure that *376the choice i¡? made in a manner which does not violate the rights of individual members under § 101(a) (1) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a) (1). I also share with the majority their conclusion that the plaintiffs have failed to show a violation of their § 101(a) (1) rights in this ease. In proceeding summarily from premise to conclusion, however, I think that my colleagues pass over the difficult question involved in this case.
First, while the majority seems to me unjustly to cast the plaintiffs as villains in a struggle to vindicate democratic principles, I do not read their opinion as suggesting that the Gurton and Roth-stein proposals could not lawfully be adopted; indeed, any such suggestion would go beyond the limits which they have set on our role. It seems to me equally clear that adoption of the proposals was proper under the Local 802 bylaws. The bylaws provide for their own amendment by referendum or by vote at one of several bylaw meetings throughout the year. Since the two methods of amendment are independent of one another, a bylaw adopted by one may be repealed by the other, and this is just what the plaintiffs proposed. Of course, a vote at a membership meeting is likely to be smaller than a referendum vote. I assume, however, that the majority would agree that it is not for this court to say that it is improper for a union thus to conduct its affairs. Many responsible organizations, including the Association of the Bar of the City of New York, require their members to come to the meeting place in order to vote on any proposition.
Second, it is doubtful that the adoption of the proposals was improper under the Federation’s bylaws; at the very least, this was a disputed issue of fact which, if material, could not properly be resolved in the summary proceedings held before Judge Tenney. Article 12, Section-6 — quoted by the majority — by its terms-requires something in the nature of a. “packed” or “controlled” meeting; certainly it contains no suggestion that a vote is improper simply because it was-conducted at a meeting and a different result would have been likely if all absent members had been polled. A union tribunal should be given considerable latitude in interpreting union rules. But if there would be an infringement of a statutory right absent a justifying union rule, we must require that the interpretation of the rule at least be plausible and that its application be supported by some evidence where it depends, as in this case, on a factual premise. No evidence that the May meeting was packed,, controlled or otherwise improperly constituted appears in the district court record.
The other bylaw provision cited by the-International Executive Board was Article 8, Section 12:
“A Local officer or officers may appeal to the International Executive Board from a decision of a Local in any case whatsoever, if in the opinion of such officers, a meeting, for any reason or conditions whatsoever, took a stand in violation of the principles of the Federation. If the-Board sustains the appeal, then it shall correct the situation, and its decision shall be binding upon the-Local.”
In holding the May vote invalid under this section, the Board rested most specifically on the fact that the February referendum provided that it could be amended only by another referendum vote. What the Board appears to have overlooked, however, is that the bylaw approved in the February referendum was not yet effective at the time of the May meeting.1 The meeting thus was conducted under the pre-referendum bylaws, which allow amendment of any bylaw by vote at a bylaw meeting.
*377The Board’s decision, so far as it rests on Article 8, Section 12, thus ultimately must depend on the general proposition that it “violates the principles of the Federation” for a vote at a membership meeting to supersede a larger referendum vote. I do not suggest that a union may not cherish such a principle or that it may not preserve it by application of a general bylaw such as Article 8, Section 12. But, again assuming that the plaintiffs would be entitled to relief if the defendants’ acts were not justified by a union bylaw, we surely must require the Union to offer some evidence that the principle antedates the current controversy or, at least, allow the plaintiffs to show that it does not do so.2
The foregoing excursion through the bylaws of the American Federation of Musicians and its Local 802 was made in an attempt to demonstrate that affirmance, though proper, cannot rest on the simple ground that the defendants acted properly under union rules. The more difficult question presented is whether the equal right to vote guaranteed by § 101(a) (1) is infringed if union officers, acting without justification from the union bylaws, void the result of a properly-conducted vote. This question cannot be answered by reference to the statutory bar on private post-election remedies found in § 403 of the Act, 29 U.S.C. § 483, for that section does not apply where the vote is not part of a union election. For the same reason, the recent decision of the Supreme Court in Calhoon v. Harvey, 375 U.S. 991, 84 S.Ct. 633, 11 L.Ed.2d 478 (1964), reversing 324 F.2d 486 (2 Cir. 1963), at least does not directly control; the apparent rationale of that decision is that the specific guarantees of § 401, 29 U.S.C. § 481, with respect to union elections preclude the inference of similar rights in § 101 (a) (1).
It would be disingenuous, however, not to find in Calhoon v. Harvey, the more general principle that § 101(a) (1) protects the right to vote only against relatively direct attack. I reluctantly conclude, therefore, that the more indirect attack involved in this case — arbitrarily voiding the result of a vote after it is taken — does not infringe the rights of the plaintiffs under § 101(a) (1).
. Under the Local bylaws, an amendment approved in a referendum does not become effective until after the following bylaw meeting. The next bylaw meeting following the February referendum was the May meeting.
. Cf. N. A. A. C. P. v. Alabama, 357 U. S. 449, 454 — 458, 78 S.Ct. 1163, 2 L.Ed.2d 148S (1958), in which a purported independent and adequate state ground was found not to have appeared in earlier Alabama decisions. Here, as in that case, there is involved a potential conflict between federally-created rights and local automony.