(concurring) :
I concur. The proposition that, when Congress enacted section 303 (29 U.S.C. § 187), that statute created a liability, is to me so obvious as scarcely to be worth arguing. Subsection (a) makes it unlawful “for purposes of this section only,” for a labor organization to engage in certain unfair labor practices. Subsection (b) gives a right of action to anyone “injured in his business or property by reason or [sic — of] any violation of subsection (a).” Nevertheless, I have some difficulty in reconciling the result that we reach with the rationale of the Supreme Court’s opinion in International Union, United Automobile, etc. Workers v. Hoosier Cardinal Corporation, 1966, 383 U.S. 696, 703-708, 86 S.Ct. 1107, 16 L.Ed.2d 192, or with the rationale of our decision in Smith v. Cremins, 9 Cir., 1962, 308 F.2d 187, 189-190, in the light of the Oregon case of Shelton v. Paris, 1953, 199 Or. 365, 261 P.2d 856, or with the deference we usually extend to the views of a District Judge as to the law of the state in which he sits.
My reason for writing a separate opinion is not to state doubts as to whether my Brother Byrne’s opinion is correct. Rather, I write to protest the fact that we must decide the question at all. We are in this judicial morass for one reason only; the Congress failed to do a complete job when it enacted section 303. It is clear that the purpose was to create federal duties and rights, which are the same in all states and which displace state law, at least in cases involving peaceful union activities. Local 20 Teamsters etc. Union v. Morton, 1964, 377 U.S. 252, 261, 84 S. Ct. 1253, 12 L.Ed.2d 280, quoted in my Brother Byrne’s opinion. It matters not whether the action be filed in a federal court or in a state court. What possible reason, then, can there be for having the time within which an action under the statute must be brought vary according to the law of the state in which it is filed ?
Even if it were held that, in every state having a special statute of limitation for actions upon a liability created by statute, such statute controls, there would be no uniformity. According to Blume & George, there were in 1951 only twenty-four such states, and their periods of limitation varied from one to twenty years. (Blume & George, Limitations and the Federal Courts, 49 Mich. L.Rev. 937, 967, n. 115 (1951).) What of the long periods? Is the state statute to be rejected in such states because the long period is inconsistent with the policy discerned in United Automobile Workers, supra, 383 U.S. at 707, 86 S. Ct. 1107, favoring relatively rapid disposition of labor disputes? There the court applied a six-year statute. How many more years is too many? And what of the other twenty-six states ? As Blume & George show, the periods of limitation, whatever rubric be adopted, vary enormously among the states (id. at 966-74). What of tolling? Again, the variations among state laws are great (id. at 974 //). Nor are these the only variables, as the cited article demonstrates. Moreover, there is another problem contributing to uncertainty: what state law governs, that of the forum state, that of the state where the events occurred, or some other? What of mul-tistate transactions?
The courts have had to struggle with these problems, under various Acts of Congress, for years, and there is a formidable body of case law, the production of which has cost an enormous amount of time and effort and expense to litigants, their counsel, and the courts. It has produced a great body of ratiocination, full of subtleties and fine distinctions. See, for example, in addition to United Automobile Workers, supra; Moviecolor Ltd. v. Eastman Kodak Co., 2 Cir., 1961, 228 F.2d 80; Bertha Build*1125ing Corp. v. National Theatres Corp., 2 Cir., 1959, 269 F.2d 785; Banana Distributors, Inc. v. United Fruit Co., 2 Cir., 1959, 269 F.2d 790; United Mine Workers v. Meadow Creek Coal Co., 6 Cir., 1959, 263 F.2d 52; Powell v. St. Louis Dairy Co., 8 Cir., 1960, 276 F.2d 464. See also Note, Federal Statutes Without Limitations Provisions, 53 Colum.L.Rev. 68 (1953); Note, A Limitation on Actions for Deprivation of Federal Rights, 68 Colum.L.Rev. 763 (1968); Comment, 76 Harv.L.Rev. 1306 (1963).
The federal courts are confronted by an ever-increasing workload. During the nearly 9 years that I have been a member of this court, our workload has increased by nearly 400%, our personnel by 44%. During the same period, Congress has created more than one new federal cause of action. And the number of cases based upon congressionally created causes of action-/ old and new, is growing geometrically. Yet there are few such congressional statutes that embody a statute of limitations. Every one that does not is a source of uncertainty as to what the applicable state law (if any) may be. Every one can be a producer of confusion, unnecessary work, and possible grave injustice to clients whose counsel made the wrong guess. Ideally, Congress should make a study of all federally created causes of action, and enact a comprehensive statute of limitations applicable to them. At the least, it should enact such a statute applicable to cases arising under sections 301 and 303 of the Labor Management Relations Act (29 U.S.C. §§ 185, 187). It took Congress forty years to get around to adopting a uniform statute of limitations for suits under section 4 of the Clayton Act (15 U.S.C. § 15) by the enactment of § 4B (15 U.S.C. § 15b). One has only to examine the annotations to 15 U.S.C.A. § 15b to see what a mess the law was in during those years. I fervently hope that Congress will now decide that the 23 years that have passed since the enactment of sections 301 and 303 of the Labor Management Relations Act are enough.