United States Court of Appeals 

For the First Circuit 

No. 17-1666 

R. ALEXANDER ACOSTA, Secretary of Labor, 

United States Department of Labor, 

Plaintiff, Appellant, 

v. 

LOCAL UNION 26, UNITE HERE, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. George A. O’Toole, Jr., U.S. District Judge] 

Before 

Thompson, Circuit Judge, 

Souter, Associate Justice, 

and Selya, Circuit Judge. 

Casen B. Ross, Attorney, Appellate Staff, Civil Division, 

with whom Chad A. Readler, Acting Assistant Attorney General, 

Andrew E. Lelling, United States Attorney, William D. Weinreb, 

Acting United States Attorney, Mark B. Stern, Attorney, 

Appellate Staff, Civil Division, Nicholas C. Geale, Acting 

Solicitor of Labor, Beverly Dankowitz, Associate Solicitor, 

Civil Rights and Labor-Management Division, Clinton Wolcott, 

Counsel for Labor-Management Programs, and Anna Laura Bennett, 

Attorney, Department of Labor, were on brief, for appellant. 

 

 Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
Richard G. McCracken, with whom Paul L. More and McCracken, 

Stemerman & Holsberry LLP, were on brief, for appellee. 

July 11, 2018 

 
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SOUTER, Associate Justice. In this suit brought 

against defendant Local Union 26, UNITE HERE, the Secretary of 

Labor claims that the union violated § 104 of the LaborManagement Reporting and Disclosure Act of 1959 (the "LMRDA") 

when it refused to allow one of its members to take notes while 

inspecting its collective bargaining agreements ("CBAs") with 

other employers. The district court held that the member's 

statutory right to "inspect" the agreements did not encompass a 

right to take notes while doing so. We affirm. 

The material facts may be stated briefly. Dimie 

Poweigha is a member of Local 26. The union has negotiated more 

than 40 CBAs, including one with Poweigha's employer. Poweigha 

was dissatisfied with the administration of Local 26, and asked 

the union to permit her to review 37 CBAs Local 26 had 

negotiated with employers other than her own. Eventually, once 

the Secretary of Labor got involved, the union offered Poweigha 

opportunities for this purpose, but said that it would not allow 

her to take notes on the CBAs during her inspections. When the 

Secretary learned of the union's position, he filed this suit, 

contending that the limitation on note-taking violated § 104 of 

the LMRDA, 29 U.S.C. § 414, in particular, the union’s 

obligation under § 104 to make such CBAs "available for 
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inspection by any member or by any employee whose rights are 

affected by such agreement[s]."1 

The parties filed dueling motions for judgment on the 

pleadings, and the district court granted judgment for Local 26 

on the issue before us. We review a district court's judgment 

on the pleadings de novo. See Rezende v. Ocwen Loan Servicing, 

LLC, 869 F.3d 40, 42 (1st. Cir. 2017). 

Section 104 reads, in relevant part, as follows: 

It shall be the duty of the secretary or corresponding 

principal officer of each labor organization, in the case 

of a local labor organization, to forward a copy of each 

collective bargaining agreement made by such labor 

organization with any employer to any employee who requests 

such a copy and whose rights as such employee are directly 

affected by such agreement, and in the case of a labor 

organization other than a local labor organization, to 

forward a copy of any such agreement to each constituent 

unit which has members directly affected by such agreement; 

and such officer shall maintain at the principal office of 

the labor organization of which he is an officer copies of 

any such agreement made or received by such labor 

organization, which copies shall be available for 

inspection by any member or by any employee whose rights 

are affected by such agreement. 

29 U.S.C. § 414 (emphasis added).2

 1 Though the Secretary has previously taken this position in 

litigation, the Labor Department has not promulgated a 

regulation addressing the scope of § 104’s inspection right. 

2 Before the district court, Local 26 contended that a union 

member possesses no right even to inspect a CBA under § 104 

unless that member's rights are "affected by such agreement." 

29 U.S.C. § 414. The district court rejected that argument, 

holding that the statutory phrase "whose rights are affected by 

such agreement" modifies "any employee," not "any member." The 

rule of the last antecedent, "according to which a limiting 

clause or phrase . . . should ordinarily be read as modifying 
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In accord with standard definition and common 

understanding, an "inspection" is the "[a]ct or process of 

inspecting," Webster's New International Dictionary 1286 (2d ed. 

1957), and to "inspect" does not mean to take notes, but rather 

"[t]o look upon; to view closely and critically, esp. so as to 

ascertain quality or state, to detect errors, etc.; to 

scrutinize," id. Taking the plain meaning of the word as its 

statutory meaning is buttressed by two features of the LMRDA 

that convince us that Congress did not intend the relevant 

clause to give union members a right to take notes while 

inspecting other employers' CBAs.3 

First, the LMRDA uses the term "inspect" elsewhere, 

and the drafting and legislative history of that neighboring 

provision makes clear that Congress did not intend the term to 

include a right to take notes. Section 401(c) of the LMRDA, 

enacted at the same time as § 104, provides that: 

Every bona fide candidate shall have the right, once within 

30 days prior to an election of a labor organization in 

 

only the noun or phrase that it immediately follows," supports 

the district court's construction. Barnhart v. Thomas, 540 U.S. 

20, 26 (2003). But because the union does not reprise this 

particular argument on appeal, we need not resolve the issue 

conclusively. Instead, we may assume that Poweigha had a right 

to inspect the CBAs in issue. 

3 The Secretary requests "some measure of deference" if we 

find the scope of the inspection right to be unclear. Because 

we do not, we have no occasion to grant him any. 
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which he is a candidate, to inspect a list containing the 

names and last known addresses of all members of the labor 

organization who are subject to a collective bargaining 

agreement requiring membership therein as a condition of 

employment, which list shall be maintained and kept at the 

principal office of such labor organization by a designated 

official thereof. 

29 U.S.C. § 481(c) (emphasis added). 

Critically, earlier drafts of this provision provided 

candidates not merely with a right to "inspect" membership 

lists, but with a right to "inspect and copy" such lists. See 

H.R. 8400, 86th Cong. § 401(b) (1959). But Congress dropped the 

words "and copy" from the final version of the LMRDA. 

"Few principles of statutory construction are more 

compelling than the proposition that Congress does not 

intend sub silentio to enact statutory language that it has 

earlier discarded in favor of other language." I.N.S. v. 

Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (internal quotation 

marks omitted). And the legislative history confirms the 

application of this common-sense principle here. See H.R. Rep. 

No. 86-1147, at 34 (1959) (stating that the words "and copy" 

were eliminated to "deny candidates the right to copy membership 

lists"); see also Garcia v. United States, 469 U.S. 70, 76 

(1984) ("In surveying legislative history we have repeatedly 

stated that the authoritative source for finding the 

Legislature's intent lies in the Committee Reports on the bill, 

which represent the considered and collective understanding of 
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those Congressmen involved in drafting and studying proposed 

legislation." (internal quotation marks and alteration 

omitted)).4 In other words, under § 401(c) of the LMRDA, 

Congress plainly did not intend the right to "inspect" to 

include the right to copy. Not surprisingly, the Secretary has 

issued a regulation reaching this same conclusion. See 29 

C.F.R. § 452.71 (the right to inspect a membership list under 

§ 401(c) "does not include the right to copy the [membership] 

list"). And no distinction can be drawn from the difference 

between "copying" then and "note-taking" now, because in 1959, 

the year of enactment, a right to "copy" would, as a practical 

matter, have been exercised by handwritten note-taking. "Office 

copying as we know it didn’t arrive until 1960." David Owen, 

Copies in Seconds 10 (2004). 

If the right to "inspect" in § 401(c) of the LMRDA 

does not provide a right to take notes, it would be at odds with 

another well-established canon of statutory interpretation to 

read "inspect" in § 104 of the same Act to confer that same 

right. That canon teaches that "identical words and phrases 

within the same statute should normally be given the same 

meaning." Powerex Corp. v. Reliant Energy Servs., Inc., 551 

 4 The Secretary concedes the point. See Reply Brief for 

Appellant 2 ("The legislative history of section 401(c) 

indicates that it does not include a right to copy membership 

lists . . . ."). 
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U.S. 224, 232 (2007). After all, it would assume a certain 

whimsy on the part of Congress to conclude that it used the term 

"inspect" in two different senses within the same statute.5 

Though the rule, like most, admits of exceptions, there is no 

apparent reason to question its applicability here.6 

The second feature of the statute that persuades us of 

our reading is that when Congress wished to provide individuals 

with a right to a "copy" of a CBA, it said so expressly. In 

particular, § 104 entitles "any employee . . . whose rights as 

such employee are directly affected by [a CBA]" to a copy of 

that CBA. 29 U.S.C. § 414. If Congress had intended to entitle 

union members to copies of every CBA a union negotiates, it 

needed only to say so. Cf. Knight v. C.I.R., 552 U.S. 181, 188 

(2008) ("If Congress had intended the Court of Appeals' reading, 

it easily could have replaced 'would' in the statute with 

'could,' and presumably would have. The fact that it did not 

adopt this readily available and apparent alternative strongly 

 5 The Secretary observes that §§ 104 and 401(c) were enacted 

in separate Titles of the LMRDA. But the canon is not limited 

to terms enacted in the same statutory title. See Antonin 

Scalia & Bryan A. Garner, Reading Law 172 ("The presumption of 

consistent usage applies also when different sections of an act 

or code are at issue."). The Secretary cites no authority to 

the contrary. 

6 The Secretary tries to avoid application of this canon by 

suggesting that membership lists are more sensitive than CBAs 

and therefore entitled to greater protection. But these 

concerns are not apparent on the face of the statute, and the 

Secretary cites no legislative history in support of the point. 
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supports rejecting the Court of Appeals' reading."). But 

Congress did not say so. To be sure, what Poweigha claims is 

not a right to obtain a copy but, in effect, a right to make one 

herself. We doubt, however, that the distinction matters. It 

would be passing strange, if not downright mean, for Congress to 

have intended to withhold a right to receive a copy, while 

simultaneously conferring a right on members to create 

handwritten copies themselves. 

The Secretary's remaining counterarguments need not 

detain us long. First, the Secretary asserts that the 

inspection right would "be nullified without the ability to take 

notes." See Reply Brief for Appellant 5. But as the Secretary 

himself acknowledges, "the purpose behind section 104" is to 

"give[] union members . . . 'ideas'" that they may "put forward 

to the union’s negotiators." Id. at 6. One need not be 

permitted to take notes in real time to come away with ideas 

from the review of a CBA; a working memory will do. Second, the 

Secretary suggests that his interpretation is the better one 

because it is more supportive of the LMRDA’s purposes of 

protecting union members and promoting democratic selfgovernment within unions. But Congress was undoubtedly 

balancing competing interests in enacting the LMRDA, and, in any 

case, "no legislation pursues its purposes at all 

costs." Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) 
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(per curiam); cf. Calhoon v. Harvey, 379 U.S. 134, 140 (1964) 

(noting, in construing the LMRDA, "the general congressional 

policy to allow unions great latitude in resolving their own 

internal controversies"). Third, the Secretary points to 

another provision of the LMRDA, permitting members "for just 

cause to examine any books, records, and accounts necessary to 

verify" the union's annual financial reports, 29 U.S.C. 

§ 431(c), which some courts have interpreted to permit notetaking, see, e.g., Conley v. United Steelworkers of Am., Local 

Union No. 1014, 549 F.2d 1122, 1123-24 (7th Cir. 1977). Whether 

that interpretation is correct or not, the meaning of the word 

"examine" in a separate provision of the LMRDA has little, if 

any, bearing on the meaning of the word "inspection" in § 104 of 

the Act. That is particularly apparent in light of the "just 

cause" requirement that "protect[s] . . . unions from 

harassment" when it comes to the exercise of the examination 

right, a protection that unions do not enjoy when a member 

wishes to inspect a union's CBAs with other employers. Conley, 

549 F.2d at 1124. 

For these reasons, we hold that, in conferring a right 

on union members to "inspect[]" CBAs under § 104 of the LMRDA, 

Congress did not also invest the members with a right to take 

notes. Unions are free to permit note-taking, of course, or to 
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provide copies of such CBAs. But Congress has not commanded 

them to do so. 

Affirmed.