Fruit and Vegetable Packers and Warehousemen Local 760, and James Farrington v. Terry C. Morley, Vincent Kuntz and Lumina Brownlee

Appellees are members of the appellant union, of which appellant Farrington is secretary-treasurer. As required by 29 U.S.C. § 431 (b), the union, by its secretary-treasurer Farrington, filed financial statements (called LM-2 reports) with the government for the years 1962, 1963 and 1964, copies of which were obtained by appellees. At an open union meeting in 1965 Farrington was asked what his salary was but refused to disclose it. Thereafter the appellees, on July 16, 1965, sent a letter to the union reading as follows:

The letter was received but never responded to in any way. The information requested has not been made available to appellees.

Unsuccessful in their request for the information, appellees filed suit in the district court to compel the union and Farrington to permit examination of the records supporting the LM-2 reports. Jurisdiction below was challenged, it being alleged to rest on 29 U.S.C. § 431 (c):

The court found that it had jurisdiction, entered an order that the examination be permitted and awarded appellees attorney’s fees and costs of the examination. We have jurisdiction of the appeal under 28 U.S.C. § 1291 . 1

Appellants raise five specifications of…

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…

378 F.2d 738 FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN LOCAL 760, and James Farrington, Appellants, v. Terry C. MORLEY, Vincent Kuntz and Lumina Brownlee, Appellees. No. 21327. United States Court of Appeals Ninth Circuit. May 3, 1967. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Richard P. Donaldson, Bassett, Donaldson & Hafer, Seattle, Wash., for appellants. Ronald F. Whitaker, Walters & Whitaker, Yakima, Wash., for appellees. Before MADDEN, Senior Judge, U. S. Court of Claims, * and BARNES and DUNIWAY, Circuit Judges. BARNES, Circuit Judge. 1 Appellees are members of the appellant union, of which appellant Farrington is secretary-treasurer. As required by 29 U.S.C. § 431 (b), the union, by its secretary-treasurer Farrington, filed financial statements (called LM-2 reports) with the government for the years 1962, 1963 and 1964, copies of which were obtained by appellees. At an open union meeting in 1965 Farrington was asked what his salary was but refused to disclose it. Thereafter the appellees, on July 16, 1965, sent a letter to the union reading as follows: 2 "Gentlemen: 3 "We have obtained copies of the LM-2 reports for the years 1962, 1963 and 1964…