                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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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                                                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


      *
         Hon. Jan E. DuBois, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
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).

                               2
      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

                               3
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 Miller-
Bey 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


       1
       In fact, the ILA’s public position is that it disapproves of
the Workers’ Coalition.

                                4
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 Miller-
Bey 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


       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
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


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
       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



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
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

                                 8
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


       7
        Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941).

                                  9
       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'

                                10
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.


       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
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. Cut-
      off 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.


                              12
       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.


       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
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

                                 14
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

                                15
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


      10
        Deposition 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
       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



       A. Not specifically, but I was interested in supporting the
       local in hosting this group.

JA at 232-33.
       11
          In 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
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


       12
         The 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
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


       13
         Although 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
        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


                               20
            ....

          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.


                                 21
       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


       14
        We 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
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



       15
         In 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
       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

                               24
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

                                25
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

                              26
       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.




                               27
