Plaintiff, a member and officer of Rochester Independent Workers Union Local No. 1, sued defendants, who in 1964 were officers, committee chairmen or committee members of Local No. 1, for breach of fiduciary duty to the union, purportedly under Section 501 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501. After trial by the Court, Chief Judge Harold P. Burke presiding, the action was dismissed and plaintiff appeals. We find no error and affirm the judgment dismissing the action.
Plaintiff made demand by letter on the defendants for return to the union of sums of money which he alleged had been received from the union and had been spent against the interests of the union. No demand was ever made that the officers institute suit for these sums on
The court held that plaintiff could not maintain the action because he had not complied with the procedural requirements of § 501(b), and that there could be no recovery for breach of fiduciary responsibility, since the challenged expenditures were for proper union purposes.
We agree that the precedural requirements of § 501(b) have not been met and therefore find it unnecessary to reach the other questions raised by appellant.1 Section 501(b), so far as pertinent here, provides:
When any officer, agent * * * of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization or its governing board or officers refuse or 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, such member may sue such officer, agent * * * in any district court of the United States * * * for the benefit of the labor organization [emphasis added].
Plaintiff claims that a demand for a sum of money is sufficient and that, in any event, a request that defendants sue themselves would be futile. With regal’d to the latter claim, this court has stated:
We hold that this provision of the statute is mandatory and that its requirements cannot be met by anything short of an actual request. An allegation of the futility of such a request will not suffice.
Coleman v. Brotherhood of Ry. & Steamship Clerks, etc., 340 F.2d 206, 208, 15 A.L.R.3d 933 (2d Cir. 1965); see Horner v. Ferron, 362 F.2d 224, 231 (9th Cir.), cert. denied 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305 (1966).
A demand for a sum of money is not sufficient. The statutory language requiring a request that the labor organization “sue or recover” has been construed to mean “sue to recover”; Penuelas v. Moreno, 198 F.Supp. 441
This construction, to which we adhere, is fatal to plaintiff’s claim.
Defendants seek counsel fees, by analogy to cases involving corporate officers and directors acquitted of wrongdoing. This claim, however, would seem to be one to be made, if at all, to the local union, through its governing board and members; see Highway Truck Drivers, etc. v. Cohen, 284 F.2d 162, 164 (3d Cir. 1960); Holdeman v. Sheldon, 311 F.2d 2, 3 (2d Cir. 1962); cf. Milone v. English, 113 U.S.App.D.C. 207, 306 F.2d 814, 817 (1962).
The judgment dismissing the action is affirmed.
1.
Were we to reach the merits, the result would be the same. The Court’s finding No. 34 that no funds of Local No. 1 were diverted to IUE or expended for its use, but were used for legitimate purposes of Local No. 1, is supported by testimony in the record and may not be upset. Until after a membership meeting on May 27, 1964, efforts of the defendants to promote the IUE were quite plainly intended to encourage affiliation of the Local with the International union, a goal which could legitimately be sought by the officers of the local. The May 27 meeting-ended in disorder when efforts were made to allow Carey, the president of IUE to address the meeting, and efforts were made to bring on a vote on affiliation although not on the published agenda of the meeting. Only after this meeting and after an election was sought on June 3, 1964 by IUE were defendants’ efforts on IUE directed against continuation of Local No. 1 as bargaining agent. The only expenditure of local funds in this regard, if any was made, was the expenditure for one “Your President Speaks” leaflet, Exhibit 22, and this may be considered de minimis. Defendants or some of them continued to function as salaried officers of Local No. 1 until replaced by those elected in an interim election in October, 1964. This was, however, necessary to carry on the day to day functions of the Local, such as grievance procedures, and was not for the benefit of IUE.