stating that “the exhaustion of intraunion remedies doctrine cannot apply unless there is available from the union a remedy which is neither uncertain nor futile. Inherent in this proposition is the idea that to invoke the exhaustion principle the union must show that there was a procedure available to the members within the union structure reasonably calculated to redress the particular grievance complained of.”
How later courts described this case
- stating that “the exhaustion of intraunion remedies doctrine cannot apply unless there is available from the union a remedy which is neither uncertain nor futile. Inherent in this proposition is the idea that to invoke the exhaustion principle the union must show that there was a procedure available to the members within the union structure reasonably calculated to redress the particular grievance complained of.”
- concluding that the 27 union’s conduct—ignoring a demand to inspect documents—effectively waived the “right 28 the union had to be forewarned of the just cause for inspection” (emphasis added)
- “the exhaustion of intraunion remedies doctrine cannot apply unless there is available from the union a remedy which is neither uncertain nor futile”
- “[W]e can rely upon 10 the general rule that the burden is upon the person seeking to enforce a right to show that 11 all of the prerequisites and conditions precedent have been met.”
Written by the judges who cited it.
The opinion
DUNIWAY, Circuit Judge.
I concur in the decision, but not in all of its reasoning.
1. The demand.
As the opinion of my Brother Barnes points out, the statute does not require any demand. I agree, and I conclude from this that the suit could have been filed without the making of any demand. The suit itself is a demand. In such a suit, the plaintiffs would have to allege, as they do here, and they would have the burden of proving, that they had just cause. That is the only protection against harassment that Congress has given the union. Although there are many exceptions, particularly in the field of contracts, the general rule is that if A has a cause of action against B, he need not first make a demand *747 upon B that B perform before he can sue B. He can simply file suit if he chooses to proceed in that way. Yet we know that a lawyer who is retained by A to sue B will usually first communicate with B, or with B’s lawyer if he is known to have one, to see whether the matter can be disposed of without suit. Presumably, that will occur in most cases arising under section 431(c). But the decision as to whether or not to communicate with a prospective defendant before suit is filed is normally left by the law to the judgment of the plaintiff and his lawyer; it is not usually a condition to the right to sue. I would not impose such a condition here, when Congress has not done so.
I therefore express no opinion as to the sufficiency of the demand, because 1 think that none is required. I thus agree with my Brother Barnes in disapproving of the decisions in Zastrow v. Teamsters and Henderson v. Sarle, cited by him. I also disapprove of the decisions in International Brotherhood of Teamsters, etc. v. Wirtz and Coratella v. Roberto, also cited by my Brother Barnes, insofar as they suggest that a demand is a condition precedent to the right to sue.
2 & 3. Just Cause and Exhaustion of Remedies.
I agree with my Brother Barnes that just cause has been shown, and that the doctrine of exhaustion of internal union remedies is not applicable under the facts shown here. If there were an adequate intra-union remedy, the result might be different.
4. The Washington Statute of Limitations.
I would hold that the Washington statute of limitations does not apply, because Congress has provided for a time during which records, such as are here involved, must be kept and be available for examination. Section 206 of the Act (29 U.S. C. § 436) reads:
“Every person required to file any report under this subchapter shall maintain records on the matters required to be reported which will provide in sufficient detail the necessary basic information and data from which the documents filed with the Secretary may be verified, explained or clarified, and checked for accuracy and completeness, and shall include vouchers, worksheets, receipts, and applicable resolutions, and shall keep such records available for examination for a period of not less than five years after the filing of the documents based on the information which they contain.” [Emphasis added.]
To me, this language indicates that Congress wanted to preserve the right of examination, by requiring preservation of the records for at least 5 years. Appellants point to one bit of legislative history that, they claim, shows that the section has a narrower purpose — to preserve the records for use in prosecutions for perjury. They rely upon a statement by Senator Goldwater, a portion of which is:
“The Senate Bill as passed merely required the preservation of these basic records under conditions and for periods of time prescribed by the Secretary. The Landrum-Griffin bill, as well as the conference report, eliminate this discretionary authority of the Secretary and lay down a flat and unequivocal order, which permits of no exceptions, that they be kept available for at least 5 years. The 5-year period coincides with the length of the statue [sic] of limitations for criminally prosecuting acts of perjury under Federal law.” [Legislative History of the Labor Management Reporting and Disclosure Act of 1959, Titles I-VI, p. 625.]
It may well be that the five year period was chosen for the reason stated by the Senator. But the language of the section is far broader than that. I think that one of its purposes is to safeguard the union members’ right of examination under section 431(c). The value of this safeguard can be drastically curtailed if state statutes of limitations, providing for a shorter period than five years (here *748 the Washington statute provides for two years), are applied to those rights. I would not thus curtail them.
I express no opinion as to whether such a suit as this could be commenced more than five years after the filing of the pertinent LM-2 report.
I concur in the judgment.