2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2006

Knight v. Intl Longshoremen

Precedential or Non-Precedential: Precedential

Docket No. 05-3430

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Recommended Citation

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*

 Hon. Jan E. DuBois, Senior Judge, United States District

Court for the Eastern District of Pennsylvania, sitting by

designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

 

No. 05-3430

 

EDDIE KNIGHT; CHARLES S. MILLER-BEY;

EDDIE MCBRIDE; LEONARD RILEY, JR.,

 Appellants

 v.

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION

 

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 01-cv-00005)

District Judge: Honorable Joseph J. Farnan, Jr.

 

Argued April 21, 2006

Before: SLOVITER, AMBRO, Circuit Judges, and

DuBOIS*

, District Judge

(Filed: August 14, 2006)

 

Michael J. Goldberg (Argued)

Cherry Hill, NJ 08003

Perry F. Goldlust

Wilmington, DE 19899

Attorneys for Appellants
2

Stephen B. Potter

Potter, Carmine Leonard & Aaronson

Wilmington, DE 19899

Ernest L. Mathews, Jr. (Argued)

Gleason & Mathews

New York, NY 10004

Attorneys for Appellee

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

Congress enacted the Labor-Management Reporting and

Disclosure Act of 1959 (“LMRDA”) following a two-year

investigation into allegations of union wrongdoing

by the Senate Select Committee on Improper Activities in the

Labor Management Field. In introducing the LMRDA, Senator

McClellan, Chairman of the Senate Select Committee, stated that

the bill was “designed to provide effective remedies for some of

the perversions of decent unionism and flagrant exploitations

and abuses that have been exposed by more than 1,200 witnesses

who have appeared and testified . . . .” 105 Cong. 

Rec. 6461, 6469 (1959).

Recognizing that if Congress “would give to the

individual members of the unions the tools with which to do it,

they would pretty well clean house themselves,” id. at 6476, the

LMRDA included a “Bill of Rights of Members of Labor

Organizations,” 29 U.S.C. § 411, whose guarantees include

freedom of speech and assembly, the equal rights of all members

to vote in union elections, and freedom from improper

disciplinary action. These provisions were enacted at least in

part, “to protect rank-and-file members of the union and to

insure union democracy by protecting the independence of

elected union officials . . . .” Ross v. Hotel Employees & Rest.

Employees Int’l Union, 266 F.3d 236, 252 (3d Cir. 2001).
3

There is ample reference in the record in this case that

Appellee, the International Longshoremen’s Association

(“ILA”), was one of the unions rife with abuse targeted by the

LMRDA. A group called the Workers’ Coalition was formed to

address issues of concern within the ILA. As set forth in the

Amended Pretrial Order:

The Workers[’] Coalition is a caucus of ILA

members and local officers whose stated mission is to

“address issues of concern within the [ILA] whereby a

forum can be created to foster and develop positive and

new ideas, to improve and enhance the constitution,

bylaws, and legislative procedures to educate every rank

and file member; to create an environment whereby all

concerns may be addressed and identified in a

harmonious manner . . . .” The Workers[’] Coalition has

members in ILA locals in various Atlantic and Gulf Coast

ports, including Wilmington, Delaware; Savannah,

Georgia; Charleston, South Carolina; and New Orleans,

Louisiana. The Coalition is not an official organ of the

ILA and is not approved by the International.

JA at 74.

I.

The four plaintiffs in this case are ILA union members

and members of the Workers’ Coalition who sued the ILA for

numerous violations of the LMRDA. Eddie Knight and Charles

Miller-Bey (referred to at times in the record as “Miller”) are

both active members of ILA Local 1694. Knight was financial

secretary of the union before the events at issue here. Eddie

McBride, a member of ILA Local 1414 in Savannah, Georgia, is

one of the national co-chairs of the Workers’ Coalition. Leonard

Riley, Jr., is a member of ILA Local 1422 in Charleston, South

Carolina.

In early 2000, Knight made a motion at a meeting of 

Local 1694 to host a Workers’ Coalition meeting and to have the

Local contribute $1500 toward that purpose. The motion was

carried. Knight distributed promotional materials for the
1

 In fact, the ILA’s public position is that it disapproves of

the Workers’ Coalition.

4

meeting, which stated that members of the ILA were hosting a

meeting of the Workers’ Coalition. The promotional material

came to the attention of Adam McBride, the Executive Director

of the Diamond State Port Corporation, an employer of ILA

members. Adam McBride (who is no relation to plaintiff Eddie

McBride and to whom we refer by his full name to avoid

confusion) had his employer give an unsolicited $500

contribution to Knight to help fund the meeting. The check was

made payable to the hotel at which the meeting was to be held

and was for the continental breakfasts. Adam McBride also

agreed to speak at the meeting.

After being contacted by ILA Vice-President James

Paylor, who told him the Workers’ Coalition was not affiliated

with the ILA,1

 Adam McBride decided not to speak at the ILA

meeting, though he did not withdraw his financial support. 

Knight and Miller-Bey blamed Paylor for McBride’s decision

not to speak and, believing that Paylor had told McBride that the

Coalition was being investigated for communist affiliation,

brought intra-union charges accusing Paylor of interfering with

the Local’s autonomy and causing harm and division to the ILA.

In response, Paylor filed counter-charges against MillerBey and Knight, accusing them of filing frivolous charges that

were detrimental to the welfare of the ILA in violation of Article

XVIII of the ILA Constitution, and unauthorized use of the ILA

name and logo in violation of Article XXVII of the ILA

Constitution.

All of the charges and counter-charges were heard in

August 2000 by a Committee convened pursuant to the ILA

Constitution. Before the hearings plaintiffs requested

specification of the charges against them, but that request was

denied. In September, the Committee exonerated Paylor and

Miller-Bey and recommended that the Executive Council of the

union suspend Knight from his local office and fine him $500,

the amount of the contribution made by the Diamond State Port
2

 Section 411(a)(5) provides: “No member of any labor

organization may be fined, suspended, expelled, or otherwise

disciplined except for nonpayment of dues by such organization or

by any officer thereof unless such member has been (A) served

with written specific charges; (B) given a reasonable time to

prepare his defense; (C) afforded a full and fair hearing.”

3

 Section 411(a)(2) provides: “Every member of any labor

organization shall have the right to meet and assemble freely with

5

Corporation, and that he be directed to repay that amount. In

October, this recommendation was adopted by the ILA’s

Executive Council.

The Committee found that Adam McBride had been

misled by Knight into believing that the Workers’ Coalition was

endorsed by the ILA. The Committee also found that Knight’s

acceptance of Adam McBride’s donation violated § 302 of the

Labor-Management Relations Act, which proscribes gifts from

employers to employees who are union representatives. See 29

U.S.C. § 186. The Committee Report “notes that . . . the

Worker’s Coalition had no right to use the ILA logo or the Local

1964 in connection with the solicitation of funds to an employer

of ILA labor in the port.” JA at 394. 

Several months after Knight was disciplined, plaintiffs

initiated this lawsuit, claiming that the ILA violated various

provisions of the LMRDA. In their complaint for injunctive

relief and damages, plaintiffs asserted four claims: (1) that the

ILA violated their rights to procedural safeguards in an internal

disciplinary proceeding protected by §§ 101(a)(5) and 609 of the

LMRDA, 29 U.S.C. § 411(a)(5),2

 by denying Knight and MillerBey sufficient notice and a reasonable time to prepare their

defenses, refusing Knight permission to record the proceedings

of the disciplinary hearing, forcing Knight to appear before a

biased hearing committee, and finding that he had committed

offenses of which there was no evidence; (2) that the ILA

violated their right to free speech by retaliating against them for

exercising that right as union members pursuant to §§ 101(a)(2)

and 609 of the the LMRDA, 29 U.S.C. §§ 411(a)(2),3

 and 529,4
other members; and to express any views, arguments, or opinions;

and to express at meetings of the labor organization his views,

upon candidates in an election of the labor organization or upon

any business properly before the meeting, subject to the

organization's established and reasonable rules pertaining to the

conduct of meetings: Provided, That nothing herein shall be

construed to impair the right of a labor organization to adopt and

enforce reasonable rules as to the responsibility of every member

toward the organization as an institution and to his refraining from

conduct that would interfere with its performance of its legal or

contractual obligations.”

4

Section § 529 provides: “It shall be unlawful for any labor

organization, or any officer, agent, shop steward, or other

representative of a labor organization, or employee thereof to fine,

suspend, expel, or otherwise discipline any of its members for

exercising any right to which he is entitled under the provisions of

this chapter.”

5

The District Court granted summary judgment for the ILA

on Knight’s claim that the union had disciplined him in order to

6

when it brought charges against Knight and Miller Bey and fined

Knight; (3) for interfering with their free speech rights through

Article XXVII and XXVIII (conduct detrimental to the ILA) of

the ILA Constitution; and (4) the ILA violated § 105 of the

LMRDA, 29 U.S.C. § 415, by failing to adequately inform ILA

members of the provisions of the LMRDA. The defendants

raised various counter-claims which they later withdrew.

The District Court granted summary judgment for the

ILA on all claims except the claim that the ILA had violated the

LMRDA’s due process provision, § 411(a)(5), by failing to give

Knight time to develop a response to the charges, and whether

the ILA fined Knight in violation of § 529 for exercising his

right to speak freely. With regard to the other claims, the

District Court found that Miller did not have standing to raise a

due process claim against the ILA because he was not punished,

and the ILA had not violated § 105 of the LMRDA. The District

Court abstained from deciding whether Article XXVII of the

ILA Constitution violated the LMRDA free speech provisions.5
silence his speech in violation of § 411(a)(2) and then, due to a

clerical error, addressed this claim again after the bench trial.

6

The District Court had jurisdiction pursuant to 28 U.S.C. §

1331 and 29 U.S.C. § 412. This court has jurisdiction pursuant to

28 U.S.C. § 1291.

7

After a bench trial on the remaining claims, the District

Court concluded that the ILA had given Knight and Miller-Bey

time to respond to the charges and that the ILA had not fined

Knight in violation of § 529, but rather because he improperly

accepted funds from an employer, in violation of the ILA

Constitution and § 302 of the Labor-Management Relations Act. 

Plaintiffs now appeal.6

On appeal, plaintiffs contend that: (1) the District Court

erred in abstaining from ruling on their claim that Article XXVII

of the ILA Constitution is overbroad and thus violates their free

speech rights; (2) the District Court erred in holding that the ILA

had not violated the LMRDA’s due process requirement by

compelling Knight to appear before a biased hearing committee

and by denying his request to tape-record the hearing; and (3)

the District Court erred in finding that the ILA was in

compliance with § 105 of the LMRDA, which requires that

union members be made aware of the provisions of the LMRDA. 

We consider each of these claims in turn.

II.

A. Free Speech Claim

This court has held that § 101(a)(2) of the LMRDA gives

unions the right to provide reasonable rules in three situations:

“(1) for conducting union meetings; (2) for insuring individual

responsibility to the union as an institution; and (3) for

preventing any interference with the union's performance of its

legal or contractual obligations.” Semancik v. United Mine

Workers Union of Am. District #5, 466 F.2d 144, 153 (3d Cir.

1972). The union’s ability to adopt reasonable rules is limited

by 29 U.S.C. § 411(b), which provides that “[a]ny provision of
8

the constitution and bylaws of any labor organization which is

inconsistent with the provisions of this section shall be of no

force or effect.”

 Article XXVII of the ILA Constitution, the article at

issue here, provides:

Section 1. No individual member, local union, district

council or any other affiliated group or individual may

use the name “International Longshoreman’s

Association”, or its abbreviation, “I.L.A.,”, its emblem or

trademark, for any advertising purposes whatsoever,

without the written authority to do so from the

International Executive officers.

Section 2. The Executive Council or the International

Executive officers may grant to any local of district

council . . . the authority to use the name “International

Longshoremen’s Association” or it abbreviation, “I.L.A.”,

its emblem or trademark, whenever such use is to be

solely in connection with advertising and printing of

programs for balls, or other social or civic affairs for the

benefit of such local or district council, and only in the

event that the funds derived in connection with the use of

such name or emblem or trademark shall revert in full to

the benefit of the local or district council to whom such

privilege was granted.

Section 3. No member or group of members may use the

name “International Longshoremen’s Association”, or its

abbreviation, “I.L.A.,” its emblem or trademark or a

name, abbreviation, emblem or trademark calculated to

simulate the name, abbreviation, emblem or trademark of

the ILA in connection with any printing, publication or

otherwise, unless authorized in writing by the

International Executive officers.

JA at 112-13.

The District Court abstained from considering plaintiffs’

claim that this provision violates the free speech rights of union
7

Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941).

9

members protected under § 101(a)(2) of the LMRDA. The

Court, after referring generally to abstention under the Pullman

doctrine,7 gave as its basis for abstaining that “in the instant case,

only one allegedly violative use of the ILA constitution is

asserted. Further, it is unclear from the facts whether protected

speech-related activity was punished and whether the

Defendant’s use of the provisions of its constitution is too

broad.” JA at 27. Thus, the District Court “conclude[d] there is

insufficient evidence to warrant the Court’s involvement in

examining the general adequacy of the union’s constitutional

provisions . . . .” JA at 27.

We have stated that “‘[a] district court has little or no

discretion to abstain in a case that does not meet traditional

abstention requirements . . . . Within these constraints,

determination whether the exceptional circumstances required

for abstention exist is left to the district court, and will be set

aside on review only if the district court has abused its

discretion.’” Univ. of Md. at Balt. v. Peat Marwick Main & Co.,

923 F.2d 265, 270 (3d Cir. 1991) (quoting United Services Auto.

Ass’n v. Muir, 792 F.2d 356, 361 (3d Cir. 1986)) (emphasis

added). “An abuse of discretion occurs when a district court's

decision rests upon a clearly erroneous finding of fact, an errant

conclusion of law, or an improper application of law to fact.” 

P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.

2006) (quotation marks omitted), petition for cert. filed, 75

U.S.L.W. 3009 (U.S. June 29, 2006) (No. 06-7).

In choosing to abstain, the District Court purported to

follow the language of this court’s decision in Semancik. In that 

case, we stated,

[I]t might be appropriate for a federal court sitting in

equity to give consideration to the LMRDA’s wish to

foster internal union self-government and to refuse to

grant a permanent injunction based on the vagueness of

Section 10. In those instances, the proper course might be

to permit the union through its decisionmaking process to
10

attempt to delineate and redefine a vague provision to

bring it into conformity with the dictates of Section

101(a) (2). Such a discussion would be analogous to the

abstention doctrine of Railroad Comm'n. v. Pullman Co.,

312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

466 F.2d at 154. Significantly, however, the Semancik court did

not abstain but instead proceeded to evaluate the

constitutionality of a provision in the United Mine Workers’

constitution. Id.

The Court of Appeals for the Sixth Circuit followed

Semancik in Kuebler v. Cleveland Lithographers &

Photoengravers Union Local 24-P, 473 F.2d 359 (6th Cir. 1973). 

There, the court refused to hold the procedural provisions of the

union’s constitution void because it did not appear that the union

had repeatedly engaged in violations of members’ due process

rights. The court stated, however, that “a consistent policy of

illegal application of its constitutional procedures by the Union

would require such a holding by the court. . . . [W]hen freedom

of speech is unreasonably affected by such a provision, either on

its face, or by its application, it must be declared void.” Id. at

364.

Abstention is generally inappropriate in cases involving

facial challenges to laws or provisions that curtail free speech. 

See Chez Sez III Corp. v. Township of Union, 945 F.3d 628, 633

(3d Cir. 1991). The Supreme Court has stated that it is

“particularly reluctant to abstain in cases involving facial

challenges based on the First Amendment.” City of Houston,

Tex. v. Hill, 482 U.S. 451, 467 (1987). While the free speech

provisions of the LMRDA sweep less broadly than the First

Amendment, United Steelworkers of Am. v. Sadlowski, 457

U.S. 102, 111 (1982), this court has interpreted those provisions

broadly and “reiterated in broad and expansive terms the need

for the courts to entertain, and enjoin, union exercise of power

that chills speech protected by the LMRDA.” Ruocchio v.

United Transp. Union, Local 60, 181 F.3d 376, 387 (3d Cir.

1999); see also Mallick v. International Broth. of Elec. Workers,

644 F.2d 228, 235 (3d Cir. 1981) (“[T]he power of unions to

adopt rules of conduct is construed narrowly, and the members'
8

While the District Court’s opinion in Caldwell does not

refer to Article XXVII, a copy of the letter charging Miller and

other ILA members with violating the ILA constitution is included

in the record of that case. Those charges explicitly allege a

violation of Article XXVII. See Complaint, Exh. B, D. Del. Civ.

No. 83-00828.

11

right of free speech is given an expansive protection.”).

The District Court’s decision to abstain here is

troublesome, not only because the plaintiffs allege that an overly

broad constitutional provision violates their LMRDA right to

free speech, but also because the decision to abstain is based on

a mistake of fact. Unlike the provision at issue in Kuebler, the

provision at issue here has been used to discipline union

members at least twice. As the District Court itself noted,

“[g]enerally, the repeated use of a controversial provision will

preclude abstention by courts.” JA at 27.

In his affidavit, plaintiff Miller averred that he had been

expelled from the ILA “back in 1983 for allegedly violating

Article XXVII, the same constitutional provision . . . invoked

against [him] and . . . Knight in July of 2000.” JA at 260. The

union charged him and other ILA members with violating

Article XXVII by “improperly and without any authorization

whatsoever, us[ing] the name and initials of the International

Longshoremen’s Association (I.L.A.) in connection with [their]

efforts to cause dissension with this Local, and to publicize and

spread false reports concerning members of this Local to the

general public.” See Caldwell v. Int’l Longshoremen’s Ass’n

Local 1694, 696 F.Supp. 132, 135 (D. Del. 1988).8 Miller sued

the union for wrongful interference with his free speech rights in

response to being charged under Article XXVIII. Id. at 137. 

The ILA’s Atlantic Coast District Council eventually overturned

the local union’s disciplinary action. Id.

More recently, plaintiffs McBride and Riley received a

letter from the President of the ILA, John Bowers, notifying

them that their distribution of a letter notifying ILA members of

a meeting of the Workers’ Coalition violated Article XXVII. 
12

The letter that purportedly violated Article XXVII was written

on stationery headed “Workers’ Coalition,” and in smaller type

listed Eddie McBride, Co-Chairman, I.L.A. Local 1414 (and his

address) and Kenneth Riley, Co-Chairman, I.L.A. Local 1422

(and his address), and read as follows:

February 5, 2000

Dear Brethren:

The International Longshoremen’s Association Local

1694 will be hosting the Workers’ Coalition Summit on

April 7-8, 2000 at the Wyndham Garden Hotels, 700

King Street, Wilmington, Delaware.

The schedule is as follows:

Friday, April 7, the Steering Committee will meet at 10

a.m. in Salon C.

Saturday, April 8, the General Session will commence

at 10 a.m. in Salon C.

Saturday evening, a reception will be held from 6 p.m.

to 8 p.m. in Salon D.

A continental breakfast will be available on Friday and

Saturday mornings.

A block of fifty (50) rooms has been reserved for

Thursday, April 6 through Saturday, April 8, 2000. To

make reservations, please call the hotel at (302) 655-0400

and reference the Workers’ Coalition. The room rate is

$85 per night single or double occupancy, plus tax. Cutoff date for reservations is March 13, 2000. After March

13, all rooms will be at the prevailing rate. Please note

that check-in is 3 p.m. and check-out is 12 noon.

If you have any questions please do not hesitate to contact

Eddie McBride or Kenneth Riley.
9

Herman Benson has been an observer of the internal affairs

of many labor unions for over 40 years. He is the author of two

books, Democratic Rights for Union Members: A Guide to Internal

Union Democracy (1979); Rebels, Reformers and Racketeers:

How Insurgents Transformed the Labor Movement (2004), and

three chapters in studies of the American labor movement edited by

respected academicians. He is the author of hundreds of news

articles and editorials on union democracy and internal affairs and

has testified at least twice before Congress.

13

We look forward to seeing you in Delaware.

JA at 229.

Based on this letter, Bowers wrote to plaintiffs informing

them that “neither the ‘Workers’ Coalition’ nor the ‘Longshore

Workers’ Coalition’ has been authorized to use the ILA logo . . .

in connection with the activities of any such organizations.” JA

at 246. Thus, Article XXVII appears to have served as the basis

for curtailing union members speech at least twice. The District

Court offered no discussion of these facts, and its conclusion that

Article XXVII has not been invoked before is clearly erroneous.

The chilling effect of Article XXVII was discussed in the

affidavit and testimony of plaintiffs’ expert witness, Herman

Benson, a long-time observer and commentator on the American

labor scene.9

 Benson stated that, in his experience, “few if any

other major American unions have in their constitutions

provisions like the ILA’s Article XXVII.” JA at 208. He stated

that candidates for union office routinely mention the union in

which they are running and say something about the union and

that union officials or activists who participate in public affairs

or on charity boards commonly identify the union bodies to

which they belong. Id. Benson also testified that it was

unreasonable to require those who may be critical of the union to

seek advance permission for use of the union’s name in their

activity, “especially in the union where as I believe there’s been

a climate of fear.” JA at 227-227A. In asking for such

permission, independents would mark themselves as

troublemakers and subject themselves to possible retaliation. Id.
14

at 227A.

Moreover, we note also that plaintiff McBride submitted

an affidavit stating that the union’s charges against Knight and

Miller pursuant to Article XXVII have “had a significant chilling

effect on the willingness of ILA members to join or openly

support the Workers’ Coalition.” McBride Aff. at 7. As noted

earlier, this court has “reiterated in broad and expansive terms

the need for the courts to entertain, and enjoin, union exercise of

power that chills speech protected by the LMRDA.” Ruocchio,

181 F.3d at 387.

The ILA argues that it seeks to prevent use of its name to

endorse products or causes that it does not support. That is, of

course, permissible. However, our examination of the letter that

incurred the wrath of the ILA officials (set forth in full supra)

discloses that the ILA names and abbreviation were used in the

letter merely as identification. Because Article XXVII can be

construed and used to prohibit such innocuous references to the

ILA, it is unreasonable on its face.

Thus, we conclude that the District Court should not have

abstained on this issue, and remand for further proceedings. On

remand, the District Court can direct a narrowing of Article

XXVII so that it applies only to prevent misuse of the ILA name.

B. Due Process Claim

Section 101(a)(5) of the LMRDA guarantees all members

of labor organizations “a full and fair hearing” before they can

be disciplined (except for nonpayment of dues). See 29 U.S.C. §

411(a)(5). Knight asserts that his right to a fair hearing was

violated because the committee that conducted the hearing

refused him permission to tape-record the hearing and because

the committee was biased.

The issue of whether a union must permit an individual

who has been charged with a violation to record his or her

disciplinary hearing is an issue of first impression for this court. 

It is a question of law over which we exercise plenary review. 

We have stated that “[w]hat constitutes a full and fair hearing in
15

a union disciplinary proceeding must be determined from the

traditional concepts of due process of law, the common law

precepts governing the judicial control of internal union affairs

and the sparse case law since the adoption of the LMRDA.” 

Falcone v. Dantinne, 420 F.2d 1157, 1165 (3d Cir. 1969). 

Here, the District Court did not determine whether

traditional concepts of due process of law include the right to

record a disciplinary hearing. Instead, it held that because

Knight “has not cited any statute, bylaws, or procedural rules

requiring that an official record of the hearing must be allowed, .

. . the absence of a recording is insufficient to constitute a

violation of Mr. Knight’s right to a full and fair hearing under

section 101(a)(5).” JA at 13-14. We find the District Court’s

reasoning unpersuasive. Knight’s failure to cite a statute,

bylaws, or procedural rules requiring that he be allowed to

record his disciplinary hearing is not dispositive of his claim. 

Rather, we must determine whether barring Knight from

recording the hearing is inconsistent with traditional concepts of

due process.

“Due process is flexible and calls for such procedural

protections as the particular situation demands in order to

minimize the risk of error.” Tillman v. Lebanon County Corr.

Facility, 221 F.3d 410, 421 (3d Cir. 2000) (quotation marks and

punctuation omitted). In considering a due process claim against

the government, “we look to the private interest, the

governmental interest, and the value of the available procedure

in safeguarding against an erroneous deprivation.” Id. Here, in

order to address Knight’s claim against the union, we balance

Knight’s interest in recording against the union’s interest in

prohibiting recording, and also consider the value of recording in

safeguarding against errors.

In this case, permitting Knight to record the proceedings

would have served to minimize errors. For example, in its 2003

opinion granting in part the ILA’s motion for summary

judgment, the District Court refers to the disciplinary committee

as having noted that Knight engaged in “solicitation of funds” on

behalf of the Workers’ Coalition in conjunction with the ILA

logo or the Local 1694 name. See Knight v. Int’l
10Deposition of Adam McBride:

Q. Okay. Who initiated the conversations between you and

Mr. Knight?

A. I did.

Q. Okay. And how did you go about initiating those

discussions?

A. I was in 1694’s hiring hall on other business and saw a

flyer, a poster, on their bulletin board regarding a Workers’

Coalition meeting being hosted by the local. And so I

volunteered to assist or support our local, the local, in their

hosting duties.

Q. Okay. Did you initiate that offer?

A. Yes, I did.

Q. Did Mr. Knight solicit your support in any way before

you initiated it?

A. No.

Q. Did you meet with Mr. Knight personally or speak on

the phone with him?

A. My recollection is that I spoke on the phone with him.

Q. Mm-hmm. And do you remember what you said?

16

Longshoremen’s Ass’n, 286 F. Supp. 2d 360, 363 (D. Del.

2003). Because we do not have a transcript of the hearing we do

not know the basis for the committee to have characterized

Knight’s receipt of the donation from Adam McBride

(admittedly improper under the statute) as a “solicitation.” We

do know that Adam McBride’s deposition testimony for

purposes of the trial unequivocally denied that Knight solicited

the $500.10
A. Not specifically, but I was interested in supporting the

local in hosting this group.

JA at 232-33.

11In spite of its conclusion that a union member should be

permitted to record a disciplinary hearing, the district court in

Pawlak concluded that no recording was merited. The plaintiff had

instituted suit against the union prior to exhausting intra-union

measures as required by the union’s constitution. Because the

plaintiff had violated the union constitution, the union brought

disciplinary proceedings against him. The plaintiff did not dispute

that he had filed suit and violated the union constitution; therefore,

the district court found that the recording “would be of little value

to the Court in determining whether Pawlak’s statutory rights

were violated in this case.” Id. at 1271.

17

As the Court of Appeals for the Second Circuit has noted:

Union disciplinary proceedings . . . are comparable in

several important respects to a criminal trial, where

credibility is crucial and secrecy is utterly foreign to our

concepts of fairness. As in criminal trials, witnesses in

union disciplinary proceedings are more likely to testify

truthfully and union boards more likely to conduct

themselves properly if they know that an accurate record

of their testimony can be scrutinized by others than if the

sole record consists of sketchy notes made by a union

official sympathetic to the union management.

Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 605

F.2d 1228, 1242 (2d Cir. 1979). We agree. See Pawlak v.

Greenawalt, 464 F.Supp. 1265, 1271 (M.D. Pa. 1979) (“[I]n the

usual case, a party should not be denied the opportunity to record

proceedings which might result in sanctions being imposed

against him by his union.”);11 cf. Flaim v. Med. Coll. of Ohio,

418 F.3d 629, 636 (6th Cir. 2005) (“While due process may not

impose upon the university the requirement to produce a record

in all cases, fundamental fairness counsels that if the university

will not provide some sort of record, it ought to permit the
12The ILA contends that the offer of adjournment would

have been made before any recording began. The basis for this

assertion is entirely unclear and thus we reject it. Moreover, even

if the ILA’s post-hoc rationalization is correct, it does not

undermine our holding that permitting a recording of the procedure

is required by due process.

18

accused to record the proceedings if desired.”).

 In addition, a full record of disciplinary proceedings

would be useful for courts reviewing claims regarding those

proceedings. The ILA does not offer any explanation of its

interest in prohibiting such a recording. Given the value of a

recording in establishing key facts and thus minimizing error on

review, and the fact that the ILA has offered no compelling

reasons for prohibiting recording of union disciplinary

proceedings, we hold that in such situations the due process

provisions of the LMRDA require that a party subject to union

disciplinary hearings be permitted to record those hearings at his

or her own expense in a nonintrusive manner when the union

itself produces no official recording. This is, at most, a

minimum intrusion on internal union procedure, as we do not

hold that unions must expend their own resources on recording

their disciplinary hearings.

The ILA raises numerous arguments urging us to affirm

the District Court’s decision. We find these arguments

unconvincing. We have already rejected the ILA’s contention

that the District Court was correct because Knight cites to no

statute or bylaw that requires recording. The ILA also argues

that because there are no issues of disputed fact, no recording

was necessary. This contention clearly lacks merit. Not only is

there a dispute as to whether Knight “solicited” funds from

Adam McBride, but the parties dispute whether the ILA offered

Knight an adjournment to prepare his defense. This issue was

tried and the District Court found the ILA witnesses more

credible and therefore found that Knight had been offered an

adjournment to prepare his defense. It was on the basis of this

finding that the District Court dismissed Knight’s claim that his

right to a fair hearing was violated.12 However, the record on
13Although there may be some disciplinary hearings at

which there is no factual dispute, see note 10 supra, it is difficult to

predict whether that is likely to occur before the hearing. It follows

that when a union or union member seeks to record, and is willing

to bear the cost, there is no reason not to allow it.

19

appeal does not contain the background material necessary for

appeal of this issue.

The ILA cites numerous cases holding that a refusal to

record a disciplinary hearing does not violate due process. See,

e.g., Jewett v. Comm’r of Internal Revenue, 292 F. Supp. 2d

962, 966 (N.D. Ohio 2003); Eaton v. Comm’r of Internal

Revenue, 43 T.C.M. (CCH) 217, 1981 WL11111 (T.C. 1981);

King v. Town of Hanover, 959 F. Supp. 62 (D.N.H. 1996), aff’d,

116 F.3d 965 (1st Cir. 1997). Jewett and Eaton are inapposite

because they involved IRS collection due process proceedings. 

These proceedings “are informal in nature and do not require the

Appeals officer or employee and the taxpayer, or the taxpayer's

representative, to hold a face-to-face meeting.” Jewett, 292 F.

Supp. 2d at 966; see also Eaton, 1981 WL 11111 (noting that

“recordation generally has an adverse [e]ffect on the informal

setting of such meetings and may inhibit the free exchange of

information and opinions”).

Informal IRS-taxpayer meetings where there may be valid

confidentiality concerns are distinguishable from a formal

disciplinary proceeding, which is at issue in this case. Article

XVIII of the ILA Constitution provides for a trial of union

members who are charged with violations. It states, “The

accused shall be afforded a full and fair hearing and shall have

the right to appear at such hearing, produce and cross-examine

witnesses, file statements, and be represented by any member of

the I.L.A. in good standing. Decisions shall be rendered after

the close of the hearing and shall be in writing.” JA at 109. 

Article XIX provides the right to appeal.

It follows that the ILA’s refusal to permit Knight to

record his disciplinary hearing violated the due process provision

of the LMRDA.13
20

Plaintiffs also challenge the District Court’s conclusion

that the disciplinary hearing committee was not biased. The

LMRDA’s due process guarantee includes the right to a hearing

before an unbiased committee. See Falcone, 420 F.2d at 1166

(“The statutory ‘full and fair hearing’ language appears to be

without ambiguity and therefore requires no in depth analysis of

legislative history to determine the congressional intent. An

essential element of a fair hearing within the concept of due

process of law is the impartiality, i.e., openmindedness, of the

trial body.”) (footnote omitted); see also Goodman v. Laborers’

Int’l Union of N. Am., 742 F.2d 780, 783 (3d Cir. 1984) (“An

essential element of a fair hearing is an impartial

decisionmaker.”).

Knight contends his right to a full and fair hearing

pursuant to LMRDA § 101, 29 U.S.C. § 411(a)(5), was violated

by inclusion on the hearing committee of an ILA vice-president

who was biased against Knight based on his negative feelings

about the Workers’ Coalition. The District Court rejected this

claim, finding that “[b]efore the hearing, none of the Committee

members had any knowledge of the facts underlying the charges

and received no instructions form [sic] the ILA as to how the

matter should be decided.” JA at 8A. It further found that

“[e]ach of the Committee members testified that Mr. Knight’s

membership in the Workers’ Coalition had no effect on his

decision.” Id. at 14. The Court concluded that “[i]n these

circumstances, something more, such as a statement of bias or

other conduct evidencing actual bias, is necessary.” Id.

According to Knight, the District Court committed clear

error in concluding that the committee was unbiased. We agree. 

Committee Member Horace Alston clearly had antipathy

towards the Workers’ Coalition. Alston wrote a letter to ILA

President Bowers on April 17, 2000 (four months before

Knight’s hearing) in which he stated (quoted as it appears in the

original):

I have received several letters, with reference to a

meeting of ILA members, who have named themselves

the WORKERS COALITION
21

 . . . . 

I am not a member of this group, workers coalition. I

hope this group, will not achieve success in what ever

their goal are. If it is to separate this union. We must

never divide this union. Our enemy are looking for a way

to keep us in fighting among our selves. We have came

to far together. We are strong. We shall never let

someone or any one separate this union.

JA at 267-68.

Alston reaffirmed his dislike for the Workers’ Coalition at

trial. On cross- examination, the following exchange occurred:

Q: Had you heard about [the Workers’ Coalition]

before you wrote the letter?

A: I just heard there was a group of people that were

starting . . . an association . . . within the ILA

Q: And that is a bad thing?

A: I believe that it was bad.

JA at 199.

Even more disturbing, Alston admitted at trial that his

negative impression of the Workers’ Coalition affected his

judgment in Knight’s case. On direct examination, the following

exchange between Alston and the ILA’s lawyer occurred:

Q: In the course of [the disciplinary hearing], did

[Knight] appear to know what was going on?

A: Yes.

Q: Mr. Knight?

A: Yes.
14We note that the District Court’s finding that “none of the

Committee members had any knowledge of the facts underlying the

charges and received no instructions form [sic] the ILA as to how

the matter should be decided” is also clearly erroneous. JA at 8A.

Before any charges against Knight were filed, hearing committee

members all received a copy of a letter from Paylor (who

eventually filed charges against Knight) to the president of the

South Atlantic and Gulf Coast Division (SAGCD). This letter,

which attempted to “clarify” an apparent “misunderstanding” about

whether the “S.A.G.C.D. is involved with the Workers’

Coalition,” discussed the conduct underlying the charges against

Knight in some detail. JA at 263.

22

Q: And that Mr. Knight was a member of an

organization called the Workers’ Coalition?

A: It appeared he w[as].

Q: Did that have any affect [sic] on your decision to

discipline him?

A: Yes, it did.

JA at 192-93 (emphasis added).

“The prejudgment by a single decisionmaker in a tribunal

of limited size [here a committee of three] is sufficient to taint

the proceedings and constitute a denial of the right to a full and

fair hearing under the LMRDA.” Goodman, 742 F.2d at 784. 

Alston’s prejudgment of Knight’s case clearly violated Knight’s

due process rights.14 The ILA’s failure to provide Knight with

an impartial hearing committee constitutes a violation of §

101(a)(5) of the LMRDA.

C. Section 105 of the LMRDA

LMRDA § 105 provides that “[e]very labor organization

shall inform its members concerning the provisions of this

chapter.” 29 U.S.C. § 415. The ILA had been out of compliance

with § 105 until July 2001 when, several months after plaintiffs
15In addition, ILA claims that because union members are

required to exhaust intraunion remedies before bringing suit, and

that plaintiffs failed to do so here, this claim is barred. Because the

ILA failed to raise exhaustion in its Answer, this affirmative

defense is waived. See, e.g., McCoy v. Board of Trustees of

Laborers’ Int’l Union, Local No. 222 Pension Plan 188 F. Supp. 2d

461, 467 (D.N.J. 2002) (“Failure to exhaust administrative

remedies is generally an affirmative defense subject to waiver.”),

aff’d, 60 Fed. Appx. 396 (3d Cir. March 25, 2003).

23

in this case amended their complaint to include a § 105 claim, it

took its initial steps to come into compliance. ILA President

Bowers sent a copy of a United States Department of Labor

(“DOL”) summary of the LMRDA to each ILA local, with

instructions to post the summary in union and hiring hall

bulletins. The letter also stated that locals could take additional

steps to disseminate the DOL summaries.

In considering plaintiffs’ claim that the ILA’s compliance

with the requirements of § 105 was still inadequate, the District

Court noted that “[t]here has been little guidance on what

methods of informing union members of their LMRDA rights

are sufficient under LMRDA § 105.” JA at 27. Based on its

interpretation of the small body of existing case law, the District

Court concluded that the ILA’s distribution of “Department of

Labor summaries of the LMRDA to its locals and instruct[ion to]

the locals to post the summaries in their offices and hiring halls

and to otherwise disseminate the summaries to union members,”

id., met the requirements of § 105.

Plaintiffs contend that the ILA’s attempt to comply with §

105 is deficient. They argue that when the ILA really wants to

get information to its members, it “sends the communication in

bulk to locals with instructions to mail a copy to every member .

. . [.] it includes the communication in its quarterly newsletter,

which is mailed to every member.” Appellant’s Br. at 27. The

ILA argues that posting the summaries of the LMRDA is an

adequate means of notifying members of the ILA of the

LMRDA.15
24

There are only a few reported decisions interpreting § 105

of the LMRDA. In Thomas v. Grand Lodge of Int’l Ass’n of

Machinists & Aerospace Workers, 201 F.3d 517 (4th Cir. 2000),

the Court of Appeals for the Fourth Circuit held that a single

notice of the LMRDA, which was issued in 1959, was

insufficient to meet the requirement of § 105. In reaching its

conclusion, the Court noted:

The LMRDA’s protections are meaningless . . . if

members do not know of their existence. Simply put, if a

member does not know of his rights, he cannot exercise

them. This is where section 105 kicks in. Section 105 is

the statute’s informational lynchpin, requiring labor

organizations to inform members what rights Congress

has granted them.

Id. at 520. On remand, the district court ordered the union to

send all new members a copy of the Department of Labor’s

summary of the LMRDA as part of the union’s manual, to

publish the summary in three issues of the union’s journal, and

to post the summary on the union’s website. Thomas v. Grand

Lodge of Int’l Ass’n of Machinists & Aerospace Workers, Civ.

No. PJM 97-2001 (D. Md. Sept. 19, 2000).

The Court of Appeals for the D.C. Circuit interpreted §

105 more recently, in Callihan v. United Ass’n of Journeyman &

Apprentices of Plumbing & Pipe Fitting Indus., No. Civ. A. 00-

2988, 2002 WL 31250298 (D.D.C. Aug. 13, 2002), aff’d, 349

F.3d 704 (D.C. Cir. 2003). In that case, the district court found

that a union that published a copy of the Labor Department’s

summary of the LMRDA in its journal, agreed to do the same in

2004 and 2008, and modified its welcome letter to new members

to include the summary, had met the requirements of § 105. The

appellants argued the union needed to do more, such as append

the LMRDA summary to the union’s constitution. 349 F.3d at

706-07.

The Court of Appeals rejected the appellants’ arguments,

holding that “only essential standards should be imposed by

legislation, and that in establishing those standards, great care

should be taken not to undermine union self-government.” Id. at
25

707 (quoting United Steelworkers of Am. v. Sadlowski, 457 U.S.

102, 117 (1982)). The court

refuse[d] to transform § 105 into a detailed code of union

conduct. Unions may choose among measures that meet

the minimum criterion of actual notice. So long as the

union makes a good-faith attempt to reach its current

members through means that enable the members to learn

of the LMRDA's provisions, § 105 is satisfied, even if

more could have been done.

Id.

While neither the Fourth Circuit Court of Appeals nor the

Court of Appeals for the D.C. Circuit have held that § 105

requires any specific notification procedures, the procedures

adopted by the unions in those cases provided more notice than

those followed by the ILA. In its decision in this case, the

District Court does not refer to the testimony of plaintiffs’ expert

witness, Herman Benson, that notices in hiring halls and offices

will not ensure that all members of the ILA have notice of the

provisions of the LMRDA. Benson stated:

[T]he idea that the Locals should inform their members

by posting this on the bulletin board is totally

preposterous in a Union which has a long Union history

of infiltration by organized crime, because you are asking

members to go into the Union office and in view of the

officers of the Locals to stand there and read the

provisions of this Act and thereby mocking[sic]

themselves as to what would be, in the view of the

officers, potential troublemakers. That’s preposterous. . . . 

JA at 214-15.

The DOL has recently imposed notification provisions

upon federal sector unions, which are exempt from the LMRDA. 

These unions are instead subject to the Civil Service Reform Act

of 1978 (“CSRA”). The CSRA standards of conduct regulations

make certain provisions of the LMRDA applicable to federal

sector labor organizations but do not incorporate § 105 of the
26

LMRDA. In an order to remedy this omission, the DOL requires

that a union:

inform its members concerning the standards of conduct

provisions of the Acts and the regulations in this

subchapter. Labor organizations shall provide such notice

to members by October 2, 2006 and thereafter to all new

members within 90 days of the time they join and to all

members at least once every three years. Notice must be

provided by hand delivery, U.S. mail or e-mail or a

combination of the three as long as the method is

reasonably calculated to reach all members. Such notice

may be included with the required notice of local union

elections. Where a union newspaper is used to provide

notice, the notice must be conspicuously placed on the

front page of the newspaper, or the front page should

have a conspicuous reference to the inside page where the

notice appears, so that the inclusion of the notice in a

particular issue is readily apparent to each member.

29 C.F.R. § 458.4 (2006).

When the DOL first proposed this regulation, it noted:

In Thomas v. International Ass’n. of Machinists, 201 F.3d

517 (4th Cir. 2000), a labor organization took the position

that a notice provided forty years ago, shortly after the

passage of the LMRDA, satisfied its notice obligations

under the LMRDA. The Court of Appeals rejected this

position, stating that the democratic principles in the

statute “are meaningless * * * if members do not know of

their existence [because] if a member does not know of

his rights, he cannot exercise them.” Machinists, 201

F.3d at 520.

The reasoning set forth above in Machinists, an

LMRDA case, applies with equal force to unions

governed by the CSRA. Furnishing a notice of the CSRA

standards of conduct provisions furthers the fundamental

policies of federal labor law. Union members aware of

these provisions are more likely to monitor their labor
27

organization and act to remedy any breach in the integrity

of that organization. Union members who are not

informed or aware of their rights are less able, or even

likely, to take such action.

Standards of Conduct for Fed. Sector Labor Organizations, 69

Fed. Reg. 64226-01, 64227 (proposed Nov. 3, 2004).

Although we are reluctant to interfere with internal union

operations unless required by the governing statute or particular

circumstances, we find the DOL’s reasoning persuasive. In

order to give substance to union members’ right to be informed

of the provisions of the LMRDA, we hold that the ILA must take

steps to ensure to the extent possible that all new members of the

ILA personally receive a copy of the DOL summary. We leave

to the District Court on remand the details as to how this can

best be accomplished, although we note that the DOL proposals

would appear to satisfy the statutory requirement. Because

“good faith” alone is insufficient, we will reverse the District

Court’s decision holding that the ILA is not in violation

of § 105 of the LMRDA.

III.

In conclusion, we will reverse the decision of the District

Court and remand for further proceedings in accordance with

this opinion. On remand, the District Court should consider, in

conjunction with the parties, the manner in which Article XXVII

can be narrowed. The District Court also should consider the

appropriate remedy to be accorded Knight for the ILA’s

violation of his due process rights. The entire matter is

remanded to the District Court to consider any additional remedy

that will effect the holdings herein.