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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2003 Decided December 2, 2003
No. 02-7111
CHARLES CALLIHAN AND
WILBER M. THOMAS,
APPELLANTS
v.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY AND
MARTIN J. MADDALONI, UA GENERAL PRESIDENT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(00cv02988)
Arthur L. Fox, II argued the cause and filed the briefs for
appellants.
Sally M. Tedrow argued the cause for appellees. With her
on the brief was Dinah S. Leventhal.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, RANDOLPH, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: After the decision in Thomas v.
Grand Lodge of Int’l Ass’n of Machinists & Aerospace Work-
ers (‘‘IAM’’), 201 F.3d 517 (4th Cir. 2000), two union members
brought an action against their union, claiming that it had not
complied with § 105 of the Labor-Management Reporting
and Disclosure Act (LMRDA), 29 U.S.C. § 415. Section 105
reads: ‘‘Every labor organization shall inform its members
concerning the provisions of this chapter.’’ The ‘‘provisions’’
set forth the rights of union members and the responsibilities
of union officers. Thomas held that unions had an ongoing
duty to inform their members of the LMRDA. The com-
plaint in this case alleged that the union had provided its
members with information about the LMRDA only once,
when the provisions became law in 1959. While the complaint
was pending, the union undertook several steps to notify its
members of the LMRDA. To the district court, these steps
satisfied § 105. The court therefore entered summary judg-
ment for the union, from which the members appeal.
No one disputes the holding in Thomas that ‘‘members’’ in
§ 105 means current union members. The issue here is the
meaning of ‘‘inform,’’ an issue the court of appeals in Thomas
directed District Judge Messitte to resolve on remand. 201
F.3d at 521. When the case returned, Judge Messitte or-
dered the union to send all new members a copy of the
Department of Labor’s summary of the LMRDA; to publish
the summary in three issues of the union’s journal, the first
within six months of the order, and again in 2004 and 2008;
and to post the summary on the union’s website. Thomas v.
Grand Lodge of Int’l Ass’n of Machinists & Aerospace Work-
ers, Civ. No. PJM 97–2001 (D. Md. Sept. 19, 2000).
The Labor Department’s one-page summary of the
LMRDA describes the union member rights contained in
Title I. Among these are the right to participate equally in
union activities, freedom of speech, and safeguards against
improper discipline. See 29 U.S.C. § 411. The summary also
mentions other LMRDA provisions, some imposing duties on
3
union officers and others giving members the right to receive
copies of collective bargaining agreements and union reports
to the Labor Department; to run for office; to cast secret
ballots in union elections; and to protest the conduct of
elections. At the end of the Labor Department’s summary is
a statement that the full text of the LMRDA may be found in
many public libraries and on the Internet at the Department’s
website — www.dol.gov.
After the complaint was filed in this case, the union —
apparently taking a cue from the district court’s order in
Thomas — published a copy of the Labor Department’s
summary in its journal, agreed to do the same in 2004 and
2008, and modified its welcome letter to new members to
include the summary. The union did not, however, post the
summary on its website. These are the union actions the
district court viewed as sufficient compliance with § 105.
We place to one side the point that the union’s actions, even
if sufficient, did not preclude the district court from issuing
an injunction requiring the union to do what it now promised.
‘‘Voluntary discontinuance of an alleged illegal activity does
not operate to remove the case from the ambit of judicial
power.’’ Walling v. Helmerich & Payne, 323 U.S. 37, 43
(1944). See United States v. W.T. Grant Co., 345 U.S. 629,
632 (1953); Hecht Co. v. Bowles, 321 U.S. 321, 327 (1944).
But in the district court and in this court, the members never
invoked this line of authority as a ground for opposing the
union’s summary judgment motion or as a basis for claiming
that they were entitled to summary judgment.
As the case was presented, the union’s liability therefore
depended not on whether it had violated § 105 in the past,
but on whether the measures it had undertaken constituted
present compliance. The argument is that although sending
the LMRDA summary to new members may suffice to inform
them of the provisions, the union’s publication of the sum-
mary in its journal did not adequately inform current mem-
bers. In their brief, the members rely on several affidavits
from experts on labor unions. One expert stated that mem-
bers do not read union journals because these publications
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are ‘‘generally uninteresting.’’ Another stated that union
publications ‘‘range in quality dramatically’’ and that there ‘‘is
no accurate sense as to how widely these are read.’’ Still
another expert stated that there ‘‘is no definitive way for me
to determine what percentage of union members read their
union’s publications,’’ but it was ‘‘my impression that a sub-
stantial number — perhaps the majority — don’t read them
at all.’’
The expert affidavits spoke of unions generally, or, in one
instance, of the Teamsters in particular; none of the affida-
vits dealt specifically with the union in this case — the United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry; and none had anything to say about
the quality of its journal or the extent of its readership.
Perhaps for this reason, the members, in their statement of
material facts not in dispute, did not refer to the affidavits
and said nothing about the readership of the union’s journal.
And in their opposition to the union’s statement of material
facts not in dispute, the members did not file a separate
statement of material facts in dispute, as local Rule 7.1(h)
requires. See Gardels v. CIA, 637 F.2d 770 (D.C. Cir. 1980).
Instead, they filed a memorandum in opposition indicating
that they had offered the affidavits not to contest facts, but
only to guide the court in its exercise of remedial discretion.
The summary judgment papers raised no other genuine
issue of fact. At best, the members’ position focused not so
much on what the union was doing but on what more it could
have done to inform the members. That is also the gist of
their argument on appeal. The members offered two propos-
als, neither of which the district court adopted. The first was
that the court order the union to post the LMRDA summary
on its website. There is nothing to this, whether viewed as a
proposed remedy or as a basis for liability. The members
offered no evidence that the union’s website has widespread
readership. In fact, one of the members’ experts stated in
his affidavit that ‘‘most union members do not own computers
or they lack the surfing skills to find the union’s web page.’’
Another expert stated that although ‘‘substantial numbers of
union members have computers,’’ they will not go to a union’s
5
‘‘website for information.’’ If the idea is that union members
should have some way to gain access to the full text of the
LMRDA, as another of the experts proposed, this may be
accomplished by following the summary’s direction to the
Department of Labor’s website, or by a simple Internet
search for ‘‘LMRDA text.’’
The members’ other proposal was that the court order the
union to append the Labor Department’s summary to the
union’s constitution because members often turn to the consti-
tution during disputes with the union leadership. Some of
the affidavits support this proposition in general. (The par-
ties tell us that members receive a copy of the constitution
only upon request.) But we can perceive no legal principle
derived from § 105 that necessarily requires this measure as
a remedy for a violation. Still less can we see any basis for
interpreting ‘‘inform’’ in § 105 to mean that unions who do
not attach the summary to their constitutions violate the
LMRDA. That this form of notice might result in more
members being informed surely cannot be the legal standard.
Sending a copy of the summary to members each month, or
each week, or even each day might also better inform them of
their rights under the LMRDA, but no one would seriously
contend that a union’s failure to do so violates § 105. In
passing this statute, Congress ‘‘believed 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.’’ United Steelworkers
of Am. v. Sadlowski, 457 U.S. 102, 117 (1982). See also
Carothers v. Presser, 818 F.2d 926, 933–34 (D.C. Cir. 1987).
We therefore refuse 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 mem-
bers through means that enable the members to learn of the
LMRDA’s provisions, § 105 is satisfied, even if more could
have been done. Cf. Nielsen v. Int’l Ass’n of Machinists &
Aerospace Workers, 94 F.3d 1107, 1115 (7th Cir. 1996).
The members, citing Int’l Org. of Masters, Mates & Pilots
v. Brown, 498 U.S. 466 (1991), tell us that union autonomy is
6
of no concern when enforcing § 105. The case is not on
point. The Supreme Court there was addressing a very
different provision in a different title of the LMRDA. In
Carothers, we ruled that courts enforcing Title I should not
interfere with union procedures unless the union violates a
specific statutory proscription. Carothers, 818 F.2d at 933–
34. That is the controlling precedent here.
Affirmed.