[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
                    H.R. 992, H.R. 993 AND H.R. 994

=======================================================================

                                HEARING

                               before the

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             June 24, 2003

                               __________

                           Serial No. 108-22

                               __________

  Printed for the use of the Committee on Education and the Workforce






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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California
    Chairman                         Dale E. Kildee, Michigan
Cass Ballenger, North Carolina       Major R. Owens, New York
Peter Hoekstra, Michigan             Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon,           Robert E. Andrews, New Jersey
    California                       Lynn C. Woolsey, California
Michael N. Castle, Delaware          Ruben Hinojosa, Texas
Sam Johnson, Texas                   Carolyn McCarthy, New York
James C. Greenwood, Pennsylvania     John F. Tierney, Massachusetts
Charlie Norwood, Georgia             Ron Kind, Wisconsin
Fred Upton, Michigan                 Dennis J. Kucinich, Ohio
Vernon J. Ehlers, Michigan           David Wu, Oregon
Jim DeMint, South Carolina           Rush D. Holt, New Jersey
Johnny Isakson, Georgia              Susan A. Davis, California
Judy Biggert, Illinois               Betty McCollum, Minnesota
Todd Russell Platts, Pennsylvania    Danny K. Davis, Illinois
Patrick J. Tiberi, Ohio              Ed Case, Hawaii
Ric Keller, Florida                  Raul M. Grijalva, Arizona
Tom Osborne, Nebraska                Denise L. Majette, Georgia
Joe Wilson, South Carolina           Chris Van Hollen, Maryland
Tom Cole, Oklahoma                   Tim Ryan, Ohio
Jon C. Porter, Nevada                Timothy H. Bishop, New York
John Kline, Minnesota
John R. Carter, Texas
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
Phil Gingrey, Georgia
Max Burns, Georgia

                    Paula Nowakowski, Staff Director
                 John Lawrence, Minority Staff Director
                                 ------                                

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                      SAM JOHNSON, Texas, Chairman

Jim DeMint, South Carolina, Vice     Robert E. Andrews, New Jersey
    Chairman                         Donald M. Payne, New Jersey
John A. Boehner, Ohio                Carolyn McCarthy, New York
Cass Ballenger, North Carolina       Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon,           John F. Tierney, Massachusetts
    California                       David Wu, Oregon
Todd Russell Platts, Pennsylvania    Rush D. Holt, New Jersey
Patrick J. Tiberi, Ohio              Betty McCollum, Minnesota
Joe Wilson, South Carolina           Ed Case, Hawaii
Tom Cole, Oklahoma                   Raul M. Grijalva, Arizona
John Kline, Minnesota                George Miller, California, ex 
John R. Carter, Texas                    officio
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
                                 ------                                













                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 24, 2003....................................     1

Statement of Members:
    Andrews, Robert E., Ranking Member, Subcommittee on Employer-
      Employee Relations, Committee on Education and the 
      Workforce..................................................     5
    Johnson, Hon, Sam, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the 
      Workforce..................................................     2
        Prepared statement of....................................     3

Statement of Witnesses:
    Huebner, Paul, Takoma Park, MD...............................    11
        Prepared statement of....................................    13
    O'Brien, Robert F., Esq., O'Brien, Belland and Bushinsky, 
      Northfield, NJ.............................................    22
    Rosenzweig, Paul, Senior Legal Research Fellow, Center for 
      Legal and Judicial Studies, Heritage Foundation, 
      Washington, DC.............................................    14
        Prepared statement of....................................    16
    Yud, Lary, Deputy Director, Office of Labor-Management 
      Standards, Employment Standards Administration, U.S. 
      Department of Labor, Washington, DC........................     7
        Prepared statement of....................................     9
        Response to questions submitted for the record...........    35

Additional materials supplied:
    Abrams, Adele L., Esq., on behalf of the Two-Hatters 
      Coalition, statement submitted for the record..............    37
    Fox, Arthur L., II, Law Offices of Lobel, Novins & Lamont, 
      Washington, DC, letter submitted for the record............    58
    Union Members: James Lynch, Phillip Lavallee, Chuck Cannon, 
      Michael Bilello, Robert L. Carlston, Gregg Shotwell, Mike 
      Griffin, Tom Crofton, Darrell J. Zube, Thomas J. Verdone, 
      David Johnson, Jackie Fitzgerald, Martin Conlisk, Michael 
      Livingston, statements submitted for the record............    39
    Union Reporting Rates for Year: 2002 and 2002 Department of 
      Labor Data for Labor Organization Annual Report Filings, 
      charts submitted for the record............................    36















                    H.R. 992, H.R. 993 AND H.R. 994

                              ----------                              


                         Tuesday, June 24, 2003

                     U.S. House of Representatives

               Subcommittee on Employer-Employee Relations

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 2:11 p.m., in 
room 2175, Rayburn House Office Building, Hon. Sam Johnson 
[Chairman of the Subcommittee on Employer-Employee Relations, 
Committee on Education and the Workforce] presiding.
    Present: Representatives Johnson, Ballenger, Tiberi, 
Wilson, Kline, Andrews, Tierney, Wu, and McCollum.
    Staff present: Kevin Frank, Professional Staff Member; 
Parker Hamilton, Communications Coordinator; Jim Paretti, 
Professional Staff Member; Deborah Samantar, Committee Clerk/
Intern Coordinator; Stephen Settle, Professional Staff Member; 
Kathleen Smith, Professional Staff Member; Tylease Fitzgerald, 
Minority Staff Assistant; Margo Hennigan, Minority Legislative 
Assistant/Labor; Peter Rutledge, Minority Senior Legislative 
Associate/Labor.
    Chairman Johnson. Well, as you can see, we are one witness 
short, but we are going to go ahead and not waste your time or 
ours. Quorum being present, the Subcommittee on Employer-
Employee Relations of the Committee on Education and the 
Workforce will come to order.
    We are going to hear testimony on union democracy reforms 
to the Labor Management Reporting and Disclosure Act, H.R. 992, 
The Union Members' Right-to-Know Act, H.R. 993, The Labor-
Management Accountability Act, and H.R. 994, the Union Member 
Information Enforcement Act.
    Under Committee Rule 12(b), opening statements are limited 
to the Chairman and Ranking Minority Member of the 
Subcommittee. Therefore, if other Members have statements, they 
may be included in the hearing record. With that, I ask 
unanimous consent for the hearing record to remain open 14 days 
to allow Members' statements and other extraneous material 
referenced during the hearing to be submitted in the official 
hearing record. Hearing no objection, so ordered.

   STATEMENT OF HON. SAM JOHNSON, CHAIRMAN, SUBCOMMITTEE ON 
  EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE 
                           WORKFORCE

    Well, I am glad to see you all this afternoon, and as Yogi 
Berra once said, ``It's deja vu all over again.'' I'm sure 
that's how some of us feel, sitting here today, as we hold the 
first hearing in this Congress to reform the Labor-Management 
Reporting and Disclosure Act, which is LMRDA.
    It's deja vu, because the bills that have been introduced 
to address certain flaws in LMRDA are not new to most Members 
on this Subcommittee. More troubling, however, is we have been 
here before.
    We have heard about the failure of too many unions and 
employers to file timely financial disclosure forms. We have 
heard about structural flaws in the LMRDA that prevent the 
Department of Labor from enforcing the law, and we have heard 
about glitches that prevent rank and file union members from 
getting timely access to the information to which they are 
legally entitled.
    Indeed, we have heard ample testimony about how LMRDA is 
simply failing to accomplish the goal of union democracy and 
fairness. Unfortunately, a little more than a year later, there 
is little sign that this has changed, which means that 
legislative reforms are needed, more than ever.
    Before we get into the substance of these bills and the 
testimony before us, I think it's important to discuss what 
LMRDA is and why it was created. The cornerstone of union 
member rights in America is LMRDA, also referred to as the 
Landrum-Griffin Act.
    Written by then-Senator John Kennedy, and enacted in 1959, 
the LMRDA was intended to guarantee that rank and file union 
members have a fully, equal, and democratic voice in union 
affairs. It allows for democratic participation by members, and 
requires union financial matters to be publicly disclosed. It 
also protects workers' rights to free speech and assembly, and 
to nominate candidates and vote in union elections. Simply put, 
it ensures freedom and justice for all.
    It is clear that Congress expected through the passage of 
LMRDA to ensure union democracy would be the first line of 
defense against union corruption, and that armed with 
knowledge, union members would elect leaders who work in their 
best interest, and rid themselves of corruption.
    Since 1959, the American workforce has changed. However, 
LMRDA has not. The erosion of union democracy continues to be a 
problem, and should not be taken lightly. A union, after all, 
belongs to its members, and the bottom line for any labor 
organization should be the will of its membership.
    Union members and leaders should respect the law, and the 
U.S. Department of Labor, which is responsible for putting 
teeth into LMRDA, should aggressively enforce it. 
Unfortunately, neither has been the case. Indeed, our own 
Committee, just last week, heard extensive testimony about how 
union leaders profited and enriched themselves at the expense 
of rank and file shareholders and union pension funds in the 
ULLICO scandal.
    It's not my intent to explore the details of that situation 
today, because we would be here all afternoon. But the point is 
noting that union members deserve to know, as both a legal and 
ethical matter, how their hard-earned union dues are spent by 
the union leaders who are supposedly there to represent their 
members' interests. That brings us to today's hearing. And 
again, I think a little historical perspective is important.
    In 2001, my colleagues and I on the Education and Workforce 
Committee began to examine how well union financial disclosure 
requirements are met and enforced by the Department of Labor. 
What the Department reported back to us was less than 
impressive.
    The Department of Labor data from 2002 shows that 43 
percent of unions either file their forms after the deadline or 
not at all, both of which are illegal. It doesn't take a rocket 
scientist to see that there is a problem when more than one-
third of the unions are breaking the law. Can you imagine what 
the IRS would do if one-third of the working Americans didn't 
file their tax forms?
    It is our responsibility to exam the lack of compliance and 
transparency of labor organizations, the lack of information 
for thousands of rank and file union members. Let me be clear. 
I am not suggesting that we should go after the majority of 
law-abiding unions, but shore up loopholes for those one-third 
of union members who are not getting what they are entitled to: 
fair, accurate, and full disclosure of the facts as required 
under law.
    Today's hearings will focus on three pieces of legislation 
which I have sponsored: H.R. 992, the Union Members' Right-to-
Know Act, which would require unions to inform rank and file 
members of their rights guaranteed to them under LMRDA; H.R. 
993, the Labor-Management Accountability Act, which would close 
an important gap in LMRDA's remedial scheme, and for the first 
time, allow the Department of Labor to assess several penalties 
against unions and employers who fail to file the financial 
disclosure forms required; and H.R. 994, The Union Member 
Information Enforcement Act, which would allow the Secretary of 
Labor to bring suit on behalf of union members who are denied 
access to their basic LMRDA rights but may fear to do 
themselves, because of retaliation.
    Finally, I expect we will hear discussion of the proposed 
reforms of the financial reporting forms required under the 
LMRDA, proposals I am pleased to support, and which we heard in 
a ULLICO hearing last week would serve to hold labor 
organizations to similar standards to which we hold large 
public corporations.
    I welcome our witnesses here today, and look forward to 
their testimony, and hope that yours will arrive very shortly. 
With that, I yield to my colleague from New Jersey, a great 
American, Mr. Andrews, for an opening statement, whatever you 
wish to make.
    [The prepared statement of Chairman Johnson follows:]

   Statement of Hon. Sam Johnson, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the Workforce

    Good afternoon.
    As the great Yogi Berra said, ``It's deja vu all over again.''
    I'm sure that's how some of us feel sitting here today, as we hold 
the first hearing in this Congress to reform the Labor-Management 
Reporting and Disclosure Act (LMRDA).
    It's deja vu because the bills I have introduced to address certain 
flaws in the LMRDA are not new to most of the members on this 
Subcommittee.
    More troubling, however, is that we've been here before.
    We've heard about the failure of too many unions and employers to 
file timely financial disclosure forms; we've heard about the 
structural flaws in the LMRDA that prevent the Department of Labor from 
enforcing the law; and we've heard about the glitches preventing rank-
and-file union members from getting timely access to the information to 
which they are legally entitled.
    Indeed, we have heard ample testimony about how LMRDA is simply 
failing to accomplish the goal of union democracy and fairness.
    Unfortunately, a little more than a year later, there is little 
sign that this has changed, which means that legislative reforms are 
needed more than ever.
    Before we get into the substance of these bills and the testimony 
before us, I think it's important to discuss what the LMRDA is, and why 
it was created.
    The cornerstone of union member rights in America is the LMRDA, 
also referred to as the Landrum-Griffin Act.
    Written by then-Senator John F. Kennedy and enacted in 1959, the 
LRMDA was intended to guarantee that rank-and-file union members have a 
full, equal, and democratic voice in union affairs.
    It allows for democratic participation by members and requires that 
union financial matters be publicly disclosed.
    It also protects workers' rights to free speech and assembly, and 
to nominate candidates and vote in union elections.
    Simply put . . . it ensures freedom and justice for all.
    It is clear that Congress expected through the passage of the LMRDA 
to ensure that union democracy would be the first line of defense 
against union corruption, and that, armed with knowledge, union members 
would elect leaders who work in their best interests, and rid 
themselves of corrupt union officials who serve their own interests.
    Since 1959, the American workforce has changed. However, the LMRDA 
has not.
    The erosion of union democracy continues to be a problem and should 
not be taken lightly. A union, after all, belongs to its members, and 
the bottom line for any labor organization should be the will of its 
membership.
    Union leaders should respect the law--and the U.S. Department of 
Labor, which is responsible for putting teeth into the LMRDA, should 
aggressively enforce it.
    Unfortunately, neither has been the case.
    Indeed, our own Committee just last week heard extensive testimony 
about how union leaders profited and enriched themselves at the expense 
of rank-and-file shareholders and union pension funds in the ULLICO 
scandal.
    Now it's not my intent to explore the details of that situation 
today--because we'd be here all afternoon--but the point is worth 
noting that union members deserve to know, as both a legal and ethical 
matter, how their hard-earned union dues are spent by the union leaders 
who are supposedly there to represent their members' interests above 
all others.
    That brings us to today's hearing, and again, I think some 
historical perspective is important. In 2001 my colleagues and I on the 
Education and Workforce Committee began to closely examine how well 
union financial disclosure requirements are met and enforced by the 
Department of Labor.
    What the Department reported back to us was less than impressive: 
DOL data from 2002 shows that 43 percent of unions either filed their 
forms after the deadline or not at all--both of which are illegal.
    It doesn't take a rocket scientist to see that there is a problem 
when more than one-third of the unions are breaking the law. Can you 
imagine what the IRS would do if one-third of working Americans didn't 
file their tax forms?
    It is our responsibility to examine the lack of compliance and 
transparency of labor organizations and the lack of information for 
thousands of rank-and-file union members. Let me be clear: I am not 
suggesting that we should go after the majority of law-abiding unions, 
but shore up loopholes for those one-third of union members who are not 
getting what they are entitled to: fair, accurate, and full disclosure 
of the facts as required by law.
    Today's hearing will focus on three pieces of legislation which I 
have sponsored:
    H.R. 992, the Union Members Right-to-Know Act, which would require 
unions to inform rank-and-file members of their rights guaranteed to 
them under the LMRDA;
    H.R. 993, the Labor-Management Accountability Act, which would 
close an important gap in the LMRDA's remedial scheme, and for the 
first time allow the Department of Labor to assess civil penalties 
against unions and employers who fail to file the financial disclosure 
forms required under the LMRDA; and
    H.R. 994, the Union Member Information Enforcement Act, which would 
allow the Secretary of Labor to bring suit on behalf of union members 
who are denied access to their basic LMRDA rights, but who may fear to 
do so themselves for fear of retaliation.
    Finally, I expect we'll hear discussion of the proposed reforms of 
the financial reporting forms required under the LMRDA--proposals I am 
pleased to support and which, as we heard in the ULLICO hearing last 
week, would serve to hold labor organizations to similar standards to 
which we hold large public corporations under our corporate and 
securities laws.
    I welcome our witnesses here today and look forward to their 
testimony.
                                 ______
                                 

     STATEMENT OF HON. ROBERT E. ANDREWS, RANKING MEMBER, 
   SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON 
                  EDUCATION AND THE WORKFORCE

    Mr. Andrews. Thank you, Mr. Chairman.
    Thanks for your customary kindness, and the opportunity to 
work with you. I appreciate it very much. I appreciate you very 
much.
    I would like to welcome back the witnesses that are 
returning to us, welcome the new witnesses as well, and we 
appreciate hearing what you have to say.
    It is true that a lot of what you said last year you are 
going to repeat, but I am sure there are some new insights and 
new angles that we all can learn from, and we are glad that you 
are back.
    Let me be clear. There is no disagreement over the basic 
principle that unions should be transparent organizations, 
which is to say that any individual with a stake in the 
business of that union--a member of the union, in particular--
ought to be able to ascertain in a clear, prompt way, what is 
going on in his or her union, ought to be able to learn how the 
money is being spent, how decisions are being made, and have 
all of the information necessary to exercise his or her rights 
within a union democracy, so he can run for office, vote for 
the people you support, oppose the people you do not support, 
and so forth. There is no disagreement about this.
    I suspect that there will be continued disagreement over 
two issues, although I am interested in hearing what the 
witnesses have to say.
    The first is the scope and the import of the non-reporting 
problem. We, again, hear this assertion about 43 percent late 
or not filed. I think, again, this year the record will show 
that that is a rather significant exaggeration of the scope of 
the problem when one looks at it more carefully.
    And second, is the import of the late filing, what it 
precludes from being learned by whom, how often, and so forth. 
There is a problem, no question about that. The question is 
what the scope and the import of the problem is.
    The second issue is what is the proper response to the 
problem? More specifically, whether the tools that the law 
presently gives the Department of Labor, and presently gives 
members of unions are adequate to address the problem that 
exists, or whether those tools are inadequate.
    We would not take the position that it is not a serious 
matter for a union not to file a report. We have this in the 
law for a reason. These pieces of data, this information, 
should be available. There is no disagreement about that.
    But before we go off in a direction where we institute a 
new bureaucracy with civil fines and civil penalties, and 
before, as the administration has done in its executive order, 
we go off in a direction of disclosure in incredibly --I think 
stupifyingly--specific degrees, we ought to take a look at what 
the consequences of that would be.
    I am not one who believes in a reflexive answer to public 
problems. When our colleagues on the other side bring us a 
problem and argue that small businesses overburdened by too 
many regulations and too much disclosure, I am not one that 
automatically rejects that argument out of hand.
    Now I am willing to look at ways that we can help small 
businesses spend less in order to do more, which is why I 
supported the Portman-Cardin pension legislation that came 
through the Committee a few years ago--and will probably come 
through again--because that would help small business people 
run pension plans better.
    I think the same standard, though, ought to apply when it 
comes to labor unions. We ought to take a look at whether any 
public gain that is realized by increased reporting 
requirements or by increased disincentives against filing, 
whether any public gain that is realized by that is justified 
in terms of the cost that that imposes upon these labor 
organizations, many of which are very small, many of which do 
not have the employees of any full-time nature, where unions 
are run out of the back of someone's truck or in very small 
numbered members.
    So we want to take a look at the practical impact of what 
these proposed changes would be. And with that, Mr. Chairman, I 
look forward to hearing from the witnesses.
    Chairman Johnson. Thank you, Mr. Andrews. I appreciate 
that. And by the way, he is one of the guys that--he and I can 
talk about these issues without getting upset, and make 
rational decisions, believe it or not.
    Mr. Andrews. I am usually the right one, but--
    Chairman Johnson. I didn't hear that.
    [Laughter.]
    Chairman Johnson. I would like to introduce the witnesses 
at this time. Mr. Lary Yud has served as deputy director of the 
Office of Labor-Management Standards, OLMS, since December 
2001. Mr. Yud administers the Secretary of Labor's 
responsibilities under the Labor-Management Reporting and 
Disclosure Act, and related laws.
    Prior to being selected as deputy director, Mr. Yud served 
in a number of positions with OLMS, including chief of the 
division of enforcement, area administration, Washington, D.C. 
and Los Angeles field offices. Mr. Yud began his career with 
the Department of Labor as a management intern in 1966. Mr. Yud 
received his bachelor of arts and master of business 
administration degrees from Northwestern University.
    A second witness, Mr. Paul Huebner, is a carpenter, a 
member of the union local 1110, United Brotherhood of 
Carpenters and Joiners of America, Washington, D.C. He has 
worked as a carpenter in the Washington area since 1974, served 
in the local's organizing and executive committees, and worked 
as financial secretary and treasurer from 1998 to 2001. Mr. 
Huebner holds a bachelor's degree from the University of 
Maryland at College Park, and has testified before us before. 
Thank you for being back.
    Mr. Paul Rosenzweig is a senior legal research fellow at 
the Heritage Foundation Center for Legal and Judicial Studies. 
In addition to time spent in private practice, Mr. Rosenzweig 
previously served in government as senior practicing counsel to 
the office of the independent counsel as chief investigative 
counsel for the House Transportation and Infrastructure 
Committee, and in the Justice Department's Environmental Crime 
section.
    He received his bachelor's degree from Haverford College, 
his master's degree from the University of California, San 
Diego, and his law degree from the University of Chicago.
    They are all well-qualified witnesses. Before the witnesses 
begin their testimony, I would like to remind Members we will 
ask questions after the entire panel has testified.
    In addition, Committee Rule 2 imposes a 5-minute limit on 
all questions. And I think all of you have been familiar with 
the light system we use here, which--we ask you to try to keep 
your opening statement to 5 minutes, if you would.
    I thank you for joining us today, and Mr. Yud, you may 
begin your testimony.

    STATEMENT OF LARY YUD, DEPUTY DIRECTOR, OFFICE OF LABOR-
MANAGEMENT STANDARDS, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. 
             DEPARTMENT OF LABOR, WASHINGTON, D.C.

    Mr. Yud. Well, thank you, Mr. Chairman. Mr. Chairman, 
Members of the Subcommittee, I am pleased to appear before the 
Committee today to provide a general overview of the Labor-
Management Reporting and Disclosure Act, or LMRDA, which is 
centered on two fundamental goals: promoting union democracy, 
and ensuring union financial integrity.
    The Office of Labor-Management Standards administers and 
enforces the provisions of the LMRDA that are within the 
jurisdiction of the Department of Labor. These include civil 
and criminal provisions that provide standards for union 
democracy, and protect the financial integrity of labor 
organizations that represent private-sector employees.
    OLMS also administers and enforces provisions of the Civil 
Service Reform Act of 1978, and the Foreign Service Act of 
1980, which applies similar standards to Federal sector unions.
    The rights of union members and important union 
responsibilities are set forth in five titles of the LMRDA, and 
I will just briefly touch on those.
    Title I of the LMRDA creates a bill of rights for union 
members. Every union member has an equal right to nominate 
candidates for a union office, to vote in union elections, and 
to attend and participate in union meetings.
    There are other rights specified in Title I, but basically, 
the Department of Labor has enforcement responsibility only for 
one provision of Title I, which deals with the rights of union 
members to get copies of collective bargaining agreements.
    Title II of the LMRDA requires reports from unions, union 
officers and employees, employers, labor relations consultants, 
and surety companies. The Department of Labor has authority to 
enforce these reporting requirements, and the LMRDA provides 
for the public disclosure of the reports.
    Title III of the LMRDA deals with trusteeships.
    Title IV of the LMRDA deals with union elections, and the 
Department of Labor has important enforcement responsibilities 
with respect to investigating and taking action on union 
members that complain about violations of those provisions.
    Finally, Title V of the LMRDA establishes financial 
safeguards for unions. It imposes fiduciary responsibilities on 
labor union officials, a union officer or employee who 
embezzles or otherwise misappropriates union funds or assets, 
commits a Federal crime that is punishable by fine or 
imprisonment.
    In the last five fiscal years, my agency, OLMS, has 
conducted approximately 750 election investigations under Title 
IV, and supervised 173 union elections. We have completed 75 
trusteeship cases, and nearly 2,000 criminal investigations, 
primarily involving embezzlement of union assets and related 
reporting violations.
    During this period, the Department's investigative efforts 
resulted in 726 criminal indictments, and 639 convictions, or 
approximately 11 convictions per month. In addition to these 
enforcement activities, OLMS carries out an extensive program 
of compliance assistance, beginning with offers of assistance 
to all officers of newly formed unions. We publish a wide 
variety of compliance assistance materials, and every one of 
our field offices has an active program of compliance 
assistance seminars. Much of the focus of this assistance is on 
the reporting requirements.
    Many observers believe that OLMS does not have sufficient 
enforcement tools to protect and inform union members. For 
example, a significant number of unions consistently fail to 
comply with the statutory requirements that they file annual 
financial reports with the Department of Labor. These unions 
are either delinquent in providing mandated financial 
information, or even worse, they fail to file all together.
    In report year 2000, 41 percent of required union filers 
were either untimely in filing, or have not filed to date. 
Report year 2001 saw a non-compliance rate of over 61 percent, 
but that may have been affected by the mailing problems due to 
the Anthrax situation. In report year 2002, over 43 percent 
either were late or have yet to file to date.
    I am sorry to say that past strategies have done little to 
improve the timeliness of unions' financial reporting. In an 
effort to get unions to file their reports timely, OLMS 
routinely takes a number of actions, including sending out 
notices, filing reminders, additional notices, and so on, and 
eventually we would send a field investigator around to knock 
on their door. However, very little of these efforts have 
worked well.
    If the union does not file the required report after 
receiving a delinquency notice, OLMS may ask the Department of 
Justice to seek a mandatory injunction, requiring the union to 
file. Of course, OLMS notifies the union that it intends to 
take this action. Time spent by the lawyers within the 
Department of Labor and the Department of Justice reviewing the 
file and preparing the necessary papers is wasted, however, if 
the union finally files the report before a complaint 
requesting injunctive relief is filed in the district court.
    The result is that even though the report may be filed 
months beyond the due date, there is no penalty for the delay.
    To improve compliance, the President's 2004 budget includes 
a proposal to authorize OLMS to impose civil money penalties on 
unions and others that fail to file their required reports on a 
timely basis. The intent is to increase compliance, not 
penalize inadvertent lapses in filing reports.
    On this issue, the administration supports the concepts 
embodied in H.R. 993, The Labor-Management Accountability Act. 
The Department is also closely reviewing the Act to determine 
whether additional authorities would help facilitate compliance 
and protect union members.
    The Department appreciates the interest of the Subcommittee 
in the LMRDA, and looks forward to working with you on this 
issue that is critical to ensuring union democracy and fiscal 
integrity. Thank you again for giving me the opportunity to 
address this important law, and I would be pleased to answer 
your questions.
    [The prepared statement of Mr. Yud follows:]

 Statement of Lary F. Yud, Deputy Director, Office of Labor-Management 
  Standards, Employment Standards Administration, U.S. Department of 
                         Labor, Washington, DC

    Mr. Chairman and Members of the Subcommittee: I am pleased to 
appear before the Committee today to provide a general overview of the 
Labor-Management Reporting and Disclosure Act (LMRDA), which is 
centered on two fundamental goals--promoting union democracy and 
ensuring union financial integrity.
    The Office of Labor-Management Standards (OLMS) administers and 
enforces the provisions of the LMRDA that are within the jurisdiction 
of the Department of Labor. These include civil and criminal provisions 
that provide standards for union democracy and protect the financial 
integrity of labor organizations that represent private sector 
employees. OLMS also administers and enforces provisions of the Civil 
Service Reform Act of 1978 and the Foreign Service Act of 1980, which 
apply similar standards to federal sector unions.
    The rights of union members and important union responsibilities 
are set forth in five Titles of the LMRDA.
    Title I of the LMRDA creates a ``bill of rights'' for union 
members. Every union member has an equal right to nominate candidates 
for union office, to vote in union elections, and to attend and 
participate in union meetings. Title I provides that unions may impose 
assessments and raise dues only by democratic procedures, and contains 
safeguards against improper disciplinary action by unions. Title I also 
requires that every labor organization inform its members about the 
provisions of the LMRDA and establishes the right of members and 
employees to copies of collective bargaining agreements.
    Title II of the LMRDA requires reports from unions, union officers 
and employees, employers, labor relations consultants, and surety 
companies. The Department of Labor has authority to enforce these 
reporting requirements and the LMRDA provides for the public disclosure 
of the reports. In addition, members have the right to examine union 
financial records, but only by demonstrating just cause. Although the 
statute gives a union member the right to sue in federal court to 
enforce that right, neither records nor attorney's fees are available 
if the court does not agree that just cause has been demonstrated.
    Title III of the LMRDA governs trusteeships imposed by a parent 
union over a subordinate body. Under Title III, a parent union may 
impose a trusteeship only for certain, legitimate purposes, for 
example, to correct financial malpractice or to assure the performance 
of a collective bargaining agreement. Title III is enforceable by the 
Department of Labor, on the written complaint of a union member.
    Title IV of the LMRDA governs the election of union officers. It 
requires that elections be held periodically--at least every three 
years for local unions, at least every four years for intermediate 
bodies, and at least every five years for national and international 
unions. It also creates election-related rights and safeguards. For 
example, all members in good standing have the right to vote and be 
candidates, subject only to reasonable rules uniformly imposed. 
Further, subject to certain time limits and a requirement to pursue 
internal remedies first, union members may file complaints with the 
Department protesting violations of any provision of Title IV. The 
Department must investigate such complaints, and take action to remedy 
material violations, within 60 days.
    Finally, Title V of the LMRDA establishes financial safeguards for 
unions. It imposes fiduciary responsibilities on labor union officials. 
A union officer or employee who embezzles or otherwise misappropriates 
union funds or assets commits a federal crime that is punishable by 
fine or imprisonment. Title V establishes bonding requirements for 
union officers and employees, and prohibits persons convicted of 
certain crimes from holding union office or employment for up to 13 
years after conviction or the end of imprisonment.
    In the last five fiscal years (FY 1998 to FY 2002), OLMS has: 
conducted 752 election investigations and supervised 173 elections; 
completed 75 trusteeship cases; and conducted 1,994 criminal 
investigations, primarily involving the embezzlement of union assets 
and related reporting violations. During this period, the Department's 
investigative efforts resulted in 726 criminal indictments and 639 
convictions, or approximately 11 convictions per month.
    In addition to these enforcement activities, OLMS carries out an 
extensive program of compliance assistance, beginning with offers of 
assistance in understanding and complying with the law to all officers 
of newly formed unions. OLMS publishes a wide variety of compliance 
assistance materials,and every OLMS field office has an active program 
of compliance assistance seminars. Much of the focus of this assistance 
is on the statutory reporting requirements.
    Many observers believe that OLMS does not have sufficient 
enforcement tools to protect and inform union members. For example, a 
significant number of unions consistently fail to comply with the 
statutory requirements that they timely file annual reports with DOL 
detailing their finances. These unions are either delinquent in 
providing mandated financial information, or even worse, they fail to 
file altogether. In report year 2000, 41 percent of required union 
filers were either untimely in filing their submissions or have not 
filed a report to date. Report year 2001 saw a noncompliance rate over 
61 percent, due in part to mail delays related to the anthrax 
screening. In report year 2002, over 43 percent either were late or 
have failed to file to date for that year.
    I am sorry to say that past strategies have done little to improve 
the timeliness of unions' financial reporting. In an effort to get 
unions to timely file their reports, OLMS routinely takes a number of 
actions including sending out letters to unions that were delinquent 
filers the prior year and asking that they timely submit for the 
current year; sending out reminder letters to all unions about 30 days 
before their annual financial reports are due; and sending out 
delinquency notice letters to those unions that have not timely filed 
their current report. However, very little of these efforts have 
worked.
    If a union does not file the required report after receiving a 
delinquency notice, OLMS may ask the Department of Justice to seek a 
mandatory injunction requiring the union to file. Of course, OLMS 
notifies the union that it intends to take this action. Time spent by 
lawyers within the Department of Labor and the Department of Justice 
reviewing the file and preparing the necessary papers is wasted, 
however, if the union finally files the report before a complaint 
requesting injunctive relief is filed in district court. Even though 
the report may be filed months beyond the date it is due, the union 
will suffer no penalty for the delay. Obviously, there are no 
significant disincentives inherent in this system that might deter a 
union that is inclined to delay filing until the last possible moment. 
Because the resources required to seek injunctive relief may be 
expended for nothing, such action is generally taken only if a union 
has a history of serious delinquencies. Even then, the additional time 
provided while OLMS warns the union of its intent to seek injunctive 
relief and lawyers prepare the necessary papers may be enough to allow 
the union to act without even incurring the cost of litigation. The end 
result is that unions may ignore the statutorily--imposed deadline, 
filing the report months after it is due, without consequences.
    To improve compliance the President's 2004 Budget includes a 
proposal to authorize OLMS to impose civil money penalties on unions 
and others that fail to file their required reports on a timely basis. 
The intent is to increase compliance, not penalize inadvertent lapses 
in filing reports. On this issue the Administration supports the 
concepts embodied in H.R. 993, the Labor Management Accountability Act. 
The Department is also closely reviewing the Act to determine whether 
additional authorities would help facilitate compliance and protect 
union members.
    The Department of Labor appreciates the interest of the 
Subcommittee in the Landrum-Griffin Act and looks forward to working 
with you on this issue that is critical to ensuring union democracy and 
fiscal integrity. Thank you again for giving me the opportunity to 
address this important law and I would be pleased to answer your 
questions.
                                 ______
                                 
    Chairman Johnson. Thank you for being with us. That is a 
great testimony, and we appreciate it. Mr. Huebner, you may 
begin your testimony now.

           STATEMENT OF PAUL HUEBNER, TAKOMA PARK, MD

    Mr. Huebner. Good afternoon, Mr. Chairman and Members of 
the Committee. I want to thank you very much for the 
opportunity to speak at this hearing. I am a little nervous, so 
if I stumble a bit, please excuse me.
    My name is Paul Huebner, and I am a rank-and-file union 
carpenter of Carpenters' Local 1110 in Washington, D.C. I 
served my local as trustee, as financial secretary, and I am 
now serving as one of the local's two elected delegates to the 
regional council.
    Over the last past several years, I have also networked 
with carpenters and other union members around the country. I 
am a member of Carpenters for a Democratic Union, and we have 
been fortunate to get the assistance of the Association for 
Union Democracy.
    What I want to say this afternoon is based either on 
direct, personal experience, or what I have learned, networking 
with others. While my comments here are focused on the three 
bills you are considering at the moment, the larger part of my 
concern extends beyond these bills to the concrete day-to-day 
impact they would have on the working lives of my union 
brothers and sisters and myself.
    These concerns are also reflected in the written statements 
by other union members that have been, and still may be 
submitted for inclusion in the record.
    The LMRDA is now over 40 years old. From the union member's 
perspective, the LMRDA is absolutely critical. It is the last 
line of defense in keeping our elected union officials honest 
and accountable to us.
    The problem is that in a number of key respects, it is not 
working in the way in which I think it was originally intended. 
If union members would hold their officers accountable to them 
in periodic elections, members need to understand that they 
enjoy a number of rights as union citizens, and that their 
officers have a duty to conduct themselves in accordance with a 
number of standards contained in the LMRDA.
    Many union members are generally aware that their union 
constitution and bylaws give them rights, duties, and 
procedures they must uphold and follow. But only a small 
fraction of the members are aware of their democratic, civil 
rights, and their officers' obligations under the LMRDA.
    This is an absolutely central issue today to the members of 
my local, who are battling, as I speak, to regain the right to 
ratify our own collective bargaining agreement, a right that 
seems to be disappearing within the new restructuring climate 
of the carpenters' union.
    Local 1110 members need to know their rights and the 
recourses they can legally expect under the LMRDA. They need to 
know there is an LMRDA.
    Section 105 says unions are supposed to inform members 
about their rights and their officers' responsibilities under 
the LMRDA. What have union officers done to comply with that 
section? Nothing.
    For the past 43 years, since the law was enacted, union 
officials have simply ignored the provision. The way the law is 
currently written, only union members can sue to enforce an 
LMRDA provision. Several years ago, a few machinists, with help 
from the Association for Union Democracy, were able to bring a 
lawsuit against their union, and win a decision ordering that 
union to take concrete steps to comply with 105. I am referring 
to the Thomas v. Machinists case.
    But how many members of local unions are going to be 
willing and able to sue their unions to make them educate all 
their members about the LMRDA? Precious few. Few union members 
have the resources needed to sue, and very few members feel 
they can weather the harassment, intimidation, economic 
retaliation and formal disciplinary measures that can be 
wielded by union officialdom when they are challenged.
    In fact, I appear before you today with some apprehension. 
Several weeks ago at our June council delegates meeting, right 
after I requested that council delegates be allowed to examine 
the bills of the council, it was mentioned by the CEO/EST, as 
an aside, that someone had testified before members of 
Republican Committee that are not our friends. I presume that 
to be a reference to my testimony last year before this 
Committee. I understood it as an attempt to intimidate me.
    One reason the LMRDA hasn't worked the way it was intended 
is because even union officers, who are entrusted with the 
responsibility for enforcing many of its provisions, don't know 
of its existence. The only way all union members across the 
Nation are going to learn about it will be if the Labor 
Department tells each and every one of the unions exactly what 
they must do to inform their members about the LMRDA, and then 
forces them to do so.
    That's what I understand H.R. 992, The Union Members' 
Right-to-Know, and H.R. 994, The Union Member Information 
Enforcement Act, would make possible. It would correct a major 
oversight. Congress needs to tell the Labor Department that its 
mission is not just to require unions to give their members 
some sort of legal notice of the LMRDA, but to educate union 
members about its provisions in a meaningful, responsible way.
    I am a little less familiar with the rationale underlying 
H.R. 993, Labor-Management Accountability Act, but as a former 
local financial secretary-treasurer, I am familiar with the 
obligations of unions to prepare and file annual LM-2 financial 
statements with the Labor Department.
    When in office, I prepared and filed them in a timely 
manner for my local. I see LM-2 reports not just as paperwork 
filed with some government agency, but as an essential 
financial information about my union that will prevent both me 
and other union members to hold elected officers financially 
accountable.
    For example, right now, I and many other union members of 
local 1110 want to know why our union working dues have doubled 
at the same time that our council officer salaries have tripled 
without disclosure--or a vote, I might add.
    Access to information on union revenues and expenses seem 
to me a necessary and fundamental right for union members 
seeking to monitor the course of their own organization. If the 
SEC can require corporations to submit various filings, why 
shouldn't the Labor Department be given some legislative tool 
to make union officials file their annual LM-2 reports by their 
deadlines. Currently, I understand that the Labor Department 
has no such tool. H.R. 992 would simply remedy that oversight.
    There was one other thing I wanted to add, and that is that 
the current environment has been created by a circumvention of 
the law itself, where our union, in particular, has taken an 
exculpatory phrase about intermediary organizations, and 
entirely reorganized our union, such that the regional council 
with 50 delegates can raise our dues--I have a paycheck in my 
pocket where I paid $780 worth of dues this year with no vote, 
except by 50 delegates who don't know me, my trade, or my 
members, and it is done by a small group of officers.
    And the ultimate legislative relief that we need is going 
to be with this restructuring issue. I hope that this Committee 
and the Congress will deal with that at some later date. And I 
very much appreciate your valuable time, and your thoughts on 
this important issue. Thank you very much.
    [The prepared statement of Mr. Huebner follows:]

               Statement of Paul Huebner, Takoma Park, MD

    Good Afternoon.
    Mr. Chairman, members of the committee, I would like to thank you 
for the opportunity to speak at this hearing.
    My name is Paul Huebner. I am a rank-and-file union member of 
Carpenters' Local 1110, in Washington, D.C. I have served my local as 
trustee, as financial secretary and I am now serving as one of the 
local's two elected delegates to the regional council. Over the past 
several years, I have also networked with carpenters and other union 
members around the country. I am a member of Carpenters for a 
Democratic Union and we have been fortunate to get the assistance of 
the Association for Union Democracy. What I want to say this afternoon 
is based either on direct, personal experience or on what I have 
learned networking with others.
    While my comments here are focused on the three bills you are 
considering at the moment, the larger part of my concern extends beyond 
these bills to the concrete, day-to-day impact they would have on the 
working lives of my union brothers and sisters and myself. These 
concerns are also reflected in the written statements by other union 
members that have been and may still be submitted for inclusion in the 
record.
    The LMRDA is now over 40 years old. From the union member's 
perspective, the LMRDA is absolutely critical. It is the ``last line of 
defense'' in keeping our elected union officials honest and accountable 
to us. The problem is that in a number of key respects, it is not 
working in the way in which I think it was originally intended.
    If union members are to hold their officers accountable to them in 
periodic elections, members need to understand that they enjoy a number 
of rights as ``union citizens,'' and that their officers have a duty to 
conduct themselves in accordance with a number of standards contained 
in the LMRDA. Many union members are generally aware that their union 
constitutions and by-laws give them rights, duties and procedures they 
must uphold and follow. Only a small fraction of the members are aware 
of their democratic, civil rights and their officers' obligations under 
the LMRDA. This is an absolutely, central issue, today, to the members 
of my local union, who are now battling, as I speak to regain the right 
to ratify their own collective bargaining agreement; a right that seems 
to be disappearing within the new ``restructuring'' climate of the 
Carpenters' Union. Local 1110 members need to know their rights and the 
recourses they can legally expect under the LMRDA. They need to know 
there is an LMRDA.
    Section 105 says unions are supposed to inform members about their 
rights and their officers' responsibilities, under the LMRDA. What have 
union officers done to comply with that Section? Nothing. For the past 
forty-three years, since the law was enacted, union officials have 
simply ignored the provision.
    The way the law is currently written, only union members can sue to 
enforce an LMRDA provision. Several years ago, a few Machinists, with 
help from the Association for Union Democracy, were able to bring a 
lawsuit against their union and win a decision ordering that union to 
take concrete steps to comply with Section 105. I'm referring to the 
Thomas v. Machinist case. But how many members of local unions are 
going to be willing and able to sue their unions to make them educate 
all of their members about the LMRDA? Precious few.
    Few union members have the resources needed to sue. And, very few 
members feel they can weather the harassment, intimidation, economic 
retaliation and formal disciplinary measures that can to be wielded by 
union officialdom when they are challenged. In fact, I appear before 
you today, with some apprehension. Several weeks ago at our June 
Council Delegates' Meeting, right after I requested that council 
delegates be allowed to examine the individual bills of the council, it 
was mentioned by the CEO/EST, as an aside, that ``someone,'' had 
testified before members of a Republican committee that are not our 
friends. I presumed that to be in reference to my testimony last year 
before this committee. I understood it as an attempt to intimidate me.
    One reason the LMRDA hasn't worked the way it was intended is 
because even union officers, who are entrusted with the responsibility 
for enforcing many of its provisions, don't know of its existence. The 
only way all union members, across this nation, are going to learn 
about it will be if the Labor Department tells each and every one of 
the unions exactly what they must do to inform their members about the 
LMRDA, and then forces them to do so. That's what I understand H.R. 992 
(Union Members Right-to-Know) and H.R. 994 (Union Member Information 
Enforcement Act) would make possible. They would correct a major 
oversight. Congress needs to tell the Labor Department that its mission 
is not just to require unions to give their members some sort of legal 
notice of the LMRDA, but to educate union members about its provisions 
in a meaningful, responsible way.
    I am less familiar with the rationale underlying H.R. 993 (Labor 
Management Accountability Act). As a former local financial secretary/
treasurer, I am familiar with the obligations of unions to prepare and 
file annual LM-2 financial statements with the Labor Department. When 
in office, I prepared and filed them in a timely manner for my local. I 
see LM-2 reports, not just as paperwork filed with some government 
agency, but as essential financial information about my union, that 
will permit both me and other union members to hold elected union 
officers financially accountable. For example, right now, I and many 
other union members of Local 1110, want to know why our union working 
dues have doubled at the same time that our council officers' salaries 
have tripled (Without disclosure, or a vote, I might add). Access to 
information on union revenues and expenses, seems to me, a necessary 
and fundamental right for union members seeking to monitor the course 
of their own organization.
    If the SEC can require corporations to submit various filings, why 
shouldn't the Labor Department be given some legislative tool to make 
union officials file their annual LM-2 reports by their deadlines. 
Currently, I understand that the Labor Department has no such tool. 
H.R. 993 would simply remedy that oversight.
    That concludes what I have to say. If you have any questions, now 
or later, I'd be happy to answer them.
                                 ______
                                 
    Chairman Johnson. Thank you for your testimony, sir. We 
appreciate that, as well. Mr. Rosenzweig, you may begin your 
testimony.

  STATEMENT OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW, 
  CENTER FOR LEGAL AND JUDICIAL STUDIES, HERITAGE FOUNDATION, 
                         WASHINGTON, DC

    Mr. Rosenzweig. Thank you, Mr. Chairman, for again inviting 
me to talk with you today. As I begin all of these I note that, 
though I work for the Heritage Foundation, I testify as an 
individual, and the Heritage Foundation has no corporate 
position on any of these issues.
    The humorous part of me wants--well, I see Mr. O'Brien is 
here. The humorous part of me was going to ask whether or not 
civil penalties might have brought him here sooner, since that 
is the question before us, because, clearly, nobody would--
    Mr. Andrews. Maybe Amtrak would have brought him here 
sooner.
    Mr. Rosenzweig. Clearly, nobody would have put him in jail 
for failing to show today. But I would like to take seriously 
Congressman Andrews's questions about the effectiveness of the 
current LMRDA reporting requirements, with a specific focus on 
H.R. 993.
    And you asked two questions about the scope of the problem, 
and whether the costs of the new proposed reinforcement regime 
would give us the right sorts of gains. And I thought that, 
rather than talk about philosophy and, you know, the concept of 
graded punishments, we could really actually use this time to 
talk on a more effectiveness goal.
    You're right, that combining late filers with non-filers is 
putting two different numbers together. To my mind, late filing 
is equally a problem, in that it delays--and in many instances, 
obscures--the reporting. But the core problem is non-filing.
    And in that regard, the number of unions that are non-
filers, according to the latest Labor information, is 14.8 
percent for last year, 2002. To give you a scope, that's 
approximately 10 times more than the non-filing amongst 
individual taxpayers that the IRS reports, at least that I can 
pull off their website. And this is all stuff that I found, 
just looking through the IRS.gov.
    That strikes me as asserting that there is some scope to 
the problem, since I think the individual taxpayer compliance 
rate gives us a particularly useful baseline of what we can 
expect of the average American.
    The non-reporting--the non-filing number for large unions, 
unions making more than $1 million, that we would hope would be 
the group that would be most in compliance, is 3.3 percent, 
which is roughly double the individual taxpayer rate. So that 
suggests to me that there is some room for improvement, and 
that the fact of non-filing is larger, for some reason, in the 
union context, than it is in the individual taxpayer context.
    By contrast, just, you know, to be fair, over in the 
political action committee context, the non-filing rate that 
the FEC reported about 3 years ago was 18 percent, which is 
about the same as the unions. It has dropped to 15 percent in 
the last 3 years, and that is in part, I think, because they 
have adopted a new administrative fines program, a kind of 
modest fines program that acts through the administrative 
process, not even through the civil process that H.R. 993 would 
bring forward.
    When you ask about whether or not that kind of gain--and I 
think 3 percent is an improvement, and it's a brand-new 
program, so we will have to see how it takes effect in the FEC 
as it goes along--when you ask whether or not that kind of gain 
is worth the cost, you start asking questions about cost of 
compliance in small unions, particularly.
    There are two things about the FEC program that I think 
merit the attention of the Committee. One is that the program 
expressly contains graded penalties, and they fine smaller PACs 
and campaign committees less than they do big ones. That would 
be something I would commend to either the Committee in 
legislation, or the Department of Labor and Regulation, when 
and if this ever became implemented.
    But the other thing is that if you review the enforcement 
actions that are taken at the FEC, it seems that they are 
mostly directed at very modest levels, at very small PACs, and 
campaign committees.
    I pulled off the list of the most recent group, Witkowski 
for Senate, a $4,000 civil penalty for being late. Maximus 
Political Action Committee, a $650 penalty for being late. The 
City Political Action Committee, $900 for not filing at all. 
The Hudson Valley Political Action Committee, $1,300 for not 
filing. A Montana for Johnson, $2,000 for not filing.
    Mr. Andrews. Not this Johnson.
    Mr. Rosenzweig. Oh, no, no. Montana for Johnson. I mean, 
unless it's--Keyes 2000, $900--
    Chairman Johnson. We don't do that in Texas.
    [Laughter.]
    Mr. Rosenzweig. Of that list, I mean, the only one I 
recognize--and I am not totally with it--is Alan Keyes's name. 
The rest of them seem like pretty small organizations. And the 
fines are pretty modest. The average fine at the FEC runs about 
$1,400 per non-filing or late filing.
    And it strikes me that if that proves to be an effective 
response, that's a good model. That gives them a new tool that 
is useful, where the gains seem to be coming, and the costs, in 
terms of--you know, the direct costs are relatively modest, and 
I would suspect that the direct cost to the organizations that 
are actually complying with the laws are fairly comparable to 
the LM-2 reporting requirements.
    We can talk more about these. My time has already run out, 
but I think it is a good, useful idea to ask that question, and 
I think that the comparisons that you can find in other areas 
are instructive.
    [The prepared statement of Mr. Rosenzweig follows:]

Statement of Paul Rosenzweig, Senior Legal Research Fellow, Center for 
  Legal and Judicial Studies, The Heritage Foundation, Washington, DC

    Good morning Mr. Chairman and Members of the Subcommittee. Thank 
you for again giving me the opportunity to testify before you today on 
the topic of Union Reporting and Disclosure Requirements and, 
particularly, the utility of adding civil penalties to the Labor-
Management Reporting and Disclosure Act (``LMRDA'').
    For the record, I am a Senior Legal Research Fellow in the Center 
for Legal and Judicial Studies at The Heritage Foundation, an 
independent, nonpartisan research and educational organization. I am 
also an Adjunct Professor of Law at George Mason University where I 
teach Criminal Procedure and an advanced seminar on White Collar and 
Corporate Crime. I am a graduate of the University of Chicago Law 
School and a former law clerk to Judge Anderson of the U.S. Court of 
Appeals for the Eleventh Circuit. For much of the past 15 years I have 
served as a prosecutor in the Department of Justice and elsewhere. 
During the two years immediately prior to joining The Heritage 
Foundation, I was in private practice representing criminal defendants. 
I have been at The Heritage Foundation since April 2002.
    I should note, at the outset, that I had the pleasure of testifying 
regarding H.R. 4054 almost exactly one year ago, when the Subcommittee 
was considering that bill during the 107th Congress. While I certainly 
enjoy the pleasure of appearing here, I do hope that it will not become 
an annual event. As I testified last year, the current proposal in H.R. 
993, which is virtually identical to the one we discussed last year, 
is, in my judgment, well thought out and deserving of your 
consideration. Nothing has changed in the past year to modify my 
conclusion in that regard. Therefore, with your permission, I am 
constrained to say that the Members of the Subcommittee may find my 
testimony somewhat repetitive--I can only hope that familiarity does 
not breed boredom.
    As the Subcommittee will recognize, my perspective on the proposed 
legislation is different than that typically brought to the 
Subcommittee. I understand and appreciate the values of labor democracy 
and managerial transparency that animate the LMRDA. Certainly knowledge 
and information are among the most powerful tools in a democracy and 
union members are entitled to information about the activities of the 
organization to which they belong--just as the American public is 
entitled to information about Congress and shareholders are entitled to 
information about a corporation. But whether the particular substance 
and form of the reporting requirements of the LMRDA are good policy or 
not is a question I am, candidly, not qualified to answer.
    The question I can answer, from the perspective of a former 
prosecutor and one who writes and teaches regularly on the criminal 
law, is the one that is the focus of today's hearing: Assuming that 
current (or proposed) LMRDA reporting and disclosure requirements are 
appropriate, what is the best means of enforcing those requirements and 
ensuring that labor unions and others obliged to report under the law 
comply with the law's requirements? That question is both normative and 
utilitarian--it asks both what is a just, or proper, method of 
enforcement for this type of law and also what method of enforcement 
will work most effectively. On both grounds the current structure of 
the LMRDA is wanting.
         ``just desert'' and the concept of criminal punishment
    The LMRDA is unusual (and, as far as I can tell, unique) in its 
enforcement structure--it authorizes the Secretary of Labor to seek 
civil injunctive relief or to refer matters for criminal prosecution 
(pursuant to section 209 of the Act, (29 U.S.C. Sec. 439)) but it does 
not, presently, contain any provision authorizing the imposition of 
civil monetary damages (either in federal court or administratively) 
for violations of the Act.
    With this structure, the LMRDA is different from virtually every 
other regulatory statute. Typically, regulatory statutes have a 
graduated enforcement scheme that provides for administrative 
enforcement by the regulatory agency, civil enforcement actions in 
federal district court, and, for the most egregious offenses, criminal 
prosecution. Thus, the Occupational Health and Safety Act provides for 
both civil and criminal penalties, as do all of the environmental 
statutes, the antitrust laws, and the other regulatory statutes that 
have become common in American governance. Indeed, though it is always 
difficult to prove a negative, in the time I have had to conduct 
research on the question I have found no other regulatory statute with 
criminal enforcement provisions that does not also contain civil 
enforcement penalty provisions. In other words, the LMRDA is 
exceedingly unusual--and frankly, one can offer no rational explanation 
for the structure.
    As a matter of theory the current structure of the LMRDA is 
normatively objectionable. Put most succinctly, government properly 
imposes criminal liability only on those who commit acts of misconduct 
with bad intent, and not on those merely accused of negligence or 
mistake. This is the fundamental moral component of the criminal law--
the ``just deserts'' aspect of punishment--and it is trivialized when 
the criminal law is used to address conduct that is not intentionally 
wrongful. The criminal law in a free society must be carefully crafted 
to target wrongful conduct, and not be used simply to ameliorate 
adverse consequences attributable to non-criminal conduct. The public 
interest is vindicated not based on successful prosecutions, but on 
successful administration of justice. Criminal sentencing should 
reflect society's collective judgment about the kind of conduct that 
warrants the most severe condemnation, seizure of property, and loss of 
liberty and life.
    The LMRDA's criminalization of an essentially regulatory scheme is, 
in one sense, part of broad pattern diverging from this model of 
criminal sanctions. Increasingly, we are seeing across the spectrum of 
federal regulatory systems prosecutions for offenses that are better 
handled as civil matters. In modern America, as the regulatory state 
has grown, the number of such criminal offenses has grown apace. These 
types of criminal offenses are different from the classic frauds and 
personal wrongs that ought to be the focus of criminal law. This new 
type of offense involves the criminalization of conduct that, in most 
instances, is not inherently wrongful in the same way that fraud and 
bribery are. The growth in this form of regulatory criminal offense is, 
as Professor John Coffee has said, the ``technicalization'' of crime.
    Consider: In 1999, the ABA Task Force on the Federalization of 
Criminal Law noted that there were now more than 3,500 federal criminal 
offenses. Those offenses incorporate either directly or by reference 
prohibitions contained in more than 10,000 separate regulations. 
Remarkably, nobody knows the exact number either of criminal statutes 
or criminal regulations. They are so diverse and so widely scattered 
throughout the federal code that they are literally uncollectable. I am 
told that, when it was recently asked to undertake the project, the 
Congressional Research Service said that the task was virtually 
impossible. This, too, breeds disrespect for the law and disaffection 
from the judicial system: When those who make the laws cannot 
themselves identify all the laws they have made, it borders on the 
arbitrary and capricious to allow prosecutors to select from among 
those laws and to criminalize conduct that, in the eyes of others, 
might warrant only civil sanctions.
    This trend is exacerbated in the context of the LMRDA. The failure 
to timely file a required disclosure report is precisely this sort of 
technicalized offense and is inappropriately treated as a crime. The 
reporting requirements of the LMRDA, while certainly of great 
significance and importance to union democracy and the efficacy of the 
Act, are not the sort of requirement for which criminal sanctions are 
typically thought necessary. With the exception of situations in which 
a union official, for example, willfully and deliberately violates his 
known legal duty to report society ought not impose criminal sanctions.
    The current LMRDA criminal provisions are not, however, completely 
objectionable. In one important sense section 209(a) is consistent with 
the general principle of criminal law. It punishes only those who act 
willfully. And, as the Second Circuit construed the statute more than 
25 years ago, in United States v. Ottley, 509 F.2d 456 (2d Cir. 1975), 
an act in violation of the statute is done willfully only if it is done 
with a wrongful purpose--that is, if the defendant knew what the law 
required and failed to comply with it or was willfully blind to its 
requirements.
    It is useful to note, parenthetically, that as a practical matter 
this standard is difficult for a prosecutor to prove--and deliberately 
so. It reflects a judgment (in my view a correct one) that the criminal 
sanctions should be rarely imposed and only on those who deliberately 
and willfully refuse to conform their conduct to societal norms.
    But this does not, of course, exhaust the scope of appropriate 
governmental sanctions. Social behavior in a free society is governed 
by governmental norms that broadly distinguish between two kinds of 
wrongful acts: Crimes, which typically require such elements as 
malicious intent and harm, and deal with offenses against the state 
rather than merely against an individual; and civil wrongs, which are 
torts against persons or property, or violations of regulatory 
requirements, which are more loosely defined, typically carry lesser 
penalties or no penalties, and are adjudicated under less-rigorous 
procedural rules.
    In the absence of applicable civil penalties, the LMRDA's structure 
leaves the latter category of wrongful conduct unaddressed. Just as it 
is inappropriate to criminalize conduct for which there is no 
deliberate wrongful act, it is equally inappropriate for the civil law 
to ignore the wrongful act and the civil harm that flows from the act 
in those situations where the wrongful act is the product of mistake, 
accident, neglect of a legal duty or otherwise non-willful conduct. 
Imagine a world in which there were only criminal law and no tort 
system to redress civil wrong. Surely we would not think that structure 
well designed--yet that is precisely how the LMRDA works.
    During testimony and hearings last year on H.R. 4054, some 
objections to the provision of civil penalties were raised. The most 
salient of these were ones offered by Mr. Robert O'Brien: He argued 
that the provision of possible civil penalties would discourage 
individuals from holding positions of trust withina union. In his view, 
the possibility that civil fines might be imposed would deter 
individuals from participating in union democracy for fear of being 
held liable for an inadvertent mistake and might also require the 
development of a new insurance system, akin to director and officer 
polices in corporations, that would increase the costs of holding 
office. He also argued the imposing civil liability on the union 
directly would impose costs on the union and divert resources from 
union functions hurting members who have done nothing wrong.
    It is fair to say that these concerns are realistic--but it is also 
fair to say that they are not a sufficient ground for opposing this 
legislation. First, and most prominently, the exact same arguments can 
be made for virtually every other entity participating in the American 
economic system--including small business practitioners who have 
equally limited budgets, and small private partnerships whose members 
are equally effected financially by the errors of a few within the 
group. Not to mention the far heavier reporting burdens (accompanied by 
the threat of civil penalty) that apply to every American taxpayer. The 
proposition that union officials should be exempt from the same 
enforcement regime that applies to small businesses, taxpayers, and all 
other participants in the economy is, in my view little more than a 
version of special interest pleading. I know of no normative theory 
that suggests that the same enforcement incentives act differently in 
the context of unions than in the context of any other economic actor--
to the contrary all economic theory suggests that it does not. Thus, 
absent some argument convincingly distinguishing unions from, say, 
small businesses, I can see no reason why on the same analysis, those 
supporting this position would not also support elimination of civil 
tax penalties for individuals or civil fines for small businesses that 
fail to report minor housing code violations.
    Second, I wonder at the seeming inconsistency inherent in the 
assessment of the magnitude of the problem by those opposing civil 
penalty provisions. On the one hand, they argue that the current 
enforcement system works and there is little need to change it--but if 
this is so, then the addition of civil penalties will have little, if 
any, effect on union officer recruitment since the current set of 
``good practices'' will serve to conclusively insulate officers and 
unions from civil liability. On the other hand if the addition of civil 
penalties to the statute results in a significant number of new civil 
cases that ultimately result in the imposition of significant civil 
fines, then the underlying premise of opposition to changes in the 
enforcement system--that is, the premise that all is well and no change 
is needed--will have been proven demonstrably false. In either case, I 
see little normative basis for opposing the use of less severe 
sanctions when more severe criminal sanctions already are on the books.
    In sum, as a matter of just deserts the current structure of the 
LMRDA is simply flawed. It is necessary to recapture the balance 
between criminal and civil law by providing an alternate civil sanction 
in those situations where enforcement is necessary but criminal 
prosecution is simply inappropriate.
                          effective deterrence
    Now, I turn to the second aspect of the inquiry in today's 
hearing--the question of effectiveness. As Horace Mann said, ``The 
object of punishment is the prevention of evil.'' We might tolerate an 
oddly structured enforcement system, however philosophically 
objectionable, if it were effective. But--contrary to the seeming 
premise I've just identified--it seems to me evident that the present 
enforcement regime is not as effective as it ought to be.
    In report year 2002, the most recent year for which data are 
available from the Department of Labor, 43% of all unions either filed 
their LM-2s late or failed to file them. Over 4,000 unions (4,238) 
failed to file at all--that is 14.8% of the total number of filers 
(29,178). Even if one focuses on only the large unions--that is unions 
with receipts greater than $1,000,000--where one would expect 
compliance to be more complete, the numbers are still poor. Thirty six 
percent file late or not at all, and of that number 3.3% (65 out of 
1947) don't file.
    Moreover, the problem seems to be getting worse. If, for example, 
we look at filing year 2000, the overall late and/or fail to file rate 
was 34%. The comparable rate of 43% today is a 26% increase in just two 
years.
    Imagine if 43% of all corporations failed to file their SEC 
disclosure forms timely (or at all). Or if 43% of production plants in 
America didn't file their pollution monitoring reports on time. In 
those contexts that rate of noncompliance would be a scandal. The only 
explanation for this rate of noncompliance that one can posit is that 
the absence of a sure and certain enforcement regime causes a failure 
in deterrence and thus a lack of incentive to comply.
    This is not pure supposition--the limited data available support 
the conclusion. Because of their draconian nature, the criminal 
sanctions of the Act are rarely utilized. As the GAO reported in 2000, 
Department of Justice officials are (appropriately) reluctant to 
prosecute cases criminally where reporting violations are the only 
basis for the case. An electronic database search reveals approximately 
50 cases in the last 43 years prosecuted under section 209 of the Act. 
And of these, the vast majority of the reported cases were prosecutions 
for knowing false statements on required forms--that is deliberate 
willful lies. Typically these frauds were in service a larger criminal 
enterprise--they were, for example, used for the purpose of concealing 
some other substantive crime (e.g. embezzlement of union funds).
    Indeed, my research disclosed only one case--United States v. 
Spignola, 464 F.2d 909 (7th Cir. 1972)--involving a pure willful 
``failure to file'' case, without any indicia of personal benefit to 
the union official or union who failed to file the requisite forms. And 
that case resulted in a reversal of the conviction.
    Plainly this search may understate the instances of criminal 
enforcement of the Act under section 209--not all criminal cases 
brought are reported in the electronic databases. But I think it is 
fair to say that the criminal enforcement authority of section 209 is 
rarely used. And this is understandable--the criminal sanction is the 
societal blunderbuss reflecting, as I've already noted, a high degree 
of moral opprobrium. Criminal penalties are not appropriate in most 
failure to file cases and the Departments of Labor and Justice are 
rightly hesitant to seek criminal penalties for such conduct.
    But in the absence of alternative civil sanctions, as the GAO 
noted, when criminal penalties are not appropriate the Secretary is 
reduced to hoping for the voluntary compliance of unions with their 
LMRDA reporting obligations. There is no middle ground sanction to be 
applied between the blunderbuss of criminal law and the paring knife of 
voluntary compliance. In effect, the substantial and serious penalties 
attending criminal sanctions make them effectively unusable for the 
run-of-the-mill case where a reporting requirement is not met.
              comparing regulatory enforcement structures
    It is also useful I think to offer some comparisons to other 
regulatory agencies on a practical level. So I asked a question--how 
does the LMRDA enforcement structure compare with other regulatory 
programs? Given the limits of data availability, I chose three 
comparisons--the IRS' individual taxpayer program; the FEC's political 
committee reporting program; and another program within Labor involving 
pension fund ERISA reporting--for comparison. I also chose these 
because all three involve areas where there are some large participants 
but where there are also a significant number of small participants 
(individual taxpayers, small PACs, and small businesses) who would, 
presumably, be subject to many of the same incentives and have many of 
the same concerns regarding the use of civil enforcement that small 
unions might have.
    IRS--Here is what my inquiry discovered for tax year 2002 for the 
IRS:
          Number of individual tax returns filed 130,904,889
          Number of Non-filers 1,963,000
          Rate of Non-filing 1.5%
    [The number of non-filers is taken from the IRS non-filer program 
in which the IRS uses information from third parties to create 
substitute returns for the purpose of assessing taxes.]
    While, admittedly, a somewhat indefinite number, this rough 
analysis suggests that the non-filing rate among even the largest 
unions is more than twice as large as that for the smallest individual 
taxpayers. And if we include (as I believe is a more valid comparison) 
all unions, then the non-filing rate is roughly 10 times greater for 
unions than for individual taxpayers. In other words Teamster-size 
unions are twice as bad at reporting as Ma and Pa Taxpayer, while the 
small unions are 10 times as bad.
    It is, obviously, almost impossible to be certain why this is so--
far more data would be necessary for a statistically valid regression 
analysis. But I found it notable that the mix of civil and criminal 
enforcement is vastly different at the IRS than at Labor. In 2002, the 
IRS initiated just over 1000 criminal investigations and, ultimately, 
just fewer than 500 indictments and informations (472) were returned. 
Of these, 144 cases were charges against ``non-filers.'' By contrast, 
the IRS assessed civil penalties in just over 18 million cases.
    Perhaps of more significance to the question presented in this 
legislation, the IRS assessed civil penalties against over 2 million 
individual tax filers who were delinquent in their filing (that is, 
either late or failed to file altogether). The disparity between the 
number of civil and criminal actions is stunning. Though, as I said, 
proof of a connection is not conclusively possible on this record, my 
understanding of the concepts of deterrence reinforces my instinct that 
the significant use of civil sanctions is the driving force behind the 
lower rate of non-filing exhibited by the IRS statistics.
    FEC--Recent changes at the FEC are also somewhat instructive in 
assessing the merits of the proposed legislation. Prior to 2000, the 
FEC lacked a significant administrative civil penalty program--to 
secure fines for late filing the FEC was obliged to proceed by way 
civil complaint. In other words the FEC stood in relation to political 
committees that filed late or not at all almost exactly as the 
Department of Labor would stand with respect to unions who file LM-2s 
if H.R. 993 becomes law. It, in effect, had the civil authority that 
H.R. 993 would give Labor. Yet even that modest enforcement mechanism 
was found too cumbersome and too significant a drain on FEC resources.
    As a consequence, with Congressional authorization, in 2000 the FEC 
began an administrative fine program that routinely, and almost 
mechanically, imposes civil administrative financial penalties on 
campaign committees and PACs (many of whom are quite small) that fail 
to file or file their requireddisclosure forms late. The FEC 
administrative mechanism is particularly instructive because among the 
factors taken into account by the FEC in assessing the civil fine is 
the size of the entity whose failure is at issue--political committees 
with less than $50,000 in activity are fined as lower rates than larger 
organizations. Since the program was initiated in 2000, the FEC has 
imposed administrative fines in 602 cases. Fine amounts are modest--the 
total amount collected is $838,000, or roughly $1,400 per case.
    There is some evidence that this new administrative program has 
influenced the timely filing of FEC reports. In 1999-2000, 36,568 
reports were filed with 6,684 or 18% late- or non-filings. In 2001-
2002, the first year after the new program went into effect, 34,472 
reports were filed with 5,129 or 15% late- or non- filing. According to 
the FEC, the number of late or non-filers continues to decline in the 
current cycle, though no data is yet available.
    ERISA--Under the Employee Retirement Income Security Act (ERISA) 
the Department of Labor receives approximately 1.3 million Form 5500 
and Form 5500-EZ filings per year. The Department has statutory 
authority to assess civil penalties up to $1,000 per day (now $1,100 
with inflation adjustment) against plan administrators who fail to file 
complete and timely annual reports.
    The Employee Benefits Security Administration (EBSA) and its 
predecessor agency have used their authority to administratively reduce 
penalties in a variety of initiatives designed to provide incentives 
for compliance with the filing requirements. These initiatives seem to 
have been quite successful. For example, during the Clinton 
Administration a March 1992 ``grace'' period resulted in the filing of 
40,000 Form 5500 and Form 5500-EZ reports and the collection of 
approximately 40 million dollars.
    In March of 1995 DOL established the Delinquent Filer Voluntary 
Compliance Program (DFVC). This program resulted in approximately 1,000 
new filers per month. To promote voluntary compliance this program 
administratively reduces fines so that the most a DFVC late-filer is 
fined is $4,000. EBSA of course retains the discretion to seek stronger 
enforcement for those who it deems worthy of more significant 
punishment.
    The EBSA experience is not directly applicable to the LM-2 question 
before you, as EBSA has the civil authority that the LMRDA enforcement 
branch lacks. Still, it seems to me that the EBSA program is evidence 
of the converse proposition: that an agency with an enforcement 
structure including strong statutory civil fining authority may be 
empowered, thereby, to implement a program of lesser fines and 
sanctions as an incentive to obtain compliance with filing 
requirements. The combination of power to impose a large fine and 
administrative ability to impose lesser sanctions appears to provide an 
agency with the greatest capacity to craft incentives to insure timely 
filing--which, after all, is the true goal
    The lack of such authority in the LM-2 filing context is palpable: 
With no fear of the blunderbuss that is never used and no other 
incentive for voluntary compliance, unions have no reason to act 
vigorously to ensure compliance with the LMRDA. The civil sanctions 
proposed in H.R. 993 are tools appropriate to the enforcement task and 
commensurate with the scope of the regulatory injuries they seek to 
address.
                                h.r. 993
    Finally, let me turn to the text of the bill before you. In general 
it is a salutary effort to remedy the flaws in the current enforcement 
structure of the LMRDA. By giving the Secretary of Labor civil 
authority to secure monetary penalties from delinquent or deficient 
unions the legislation will give the Secretary an important, indeed, 
essential tool for achieving compliance with the reporting requirements 
of the Act.
    It is highly likely that the imposition of civil penalties will 
have a deterrent effect of precisely the sort that is necessary. The 
structure for the administrative penalties chosen is both moderate and 
measured. The bill requires the Secretary to take into account the 
nature of the violations involved; the revenues of the violator; and 
the violator's prior enforcement history. Thus, it focuses accurately 
on questions of the magnitude of the harm and recidivism that are 
commonly understood as the appropriate metrics for calibrating 
punishment.
    If I could offer one suggestion concerning this bill it would it 
would be to explicitly incorporate a graduated civil sanction based 
upon the intentional nature or scienter of the conduct in question--
accidental violations or those arising through neglect ought to result 
in fines less severe that those arising from gross negligence or 
deliberate but non-willful conduct. Perhaps that is what the bill 
intends to capture by specifying that the Secretary take account of the 
``nature of the violations involved'' but greater clarity on the issue 
would be welcome. Such a modification would also address the concerns 
of some that penalties for an ``inadvertent mistake'' would potentially 
bankrupt a union.
    Mr. Chairman, thank you for the opportunity to testify before the 
Subcommittee. I look forward to answering any questions you might have.
                                 ______
                                 
    Chairman Johnson. Thank you very much. Since Amtrak was 
late, our other witness is from Mr. Andrews's district. Would 
you care to introduce him?
    Mr. Andrews. I would. I would like to welcome Mr. O'Brien 
back to the hearing. Same subject as we had last year. Mr. 
O'Brien has extensive experience in representing labor unions, 
labor organizations. He has negotiated collective bargaining 
agreements, counseled labor unions through both good times and 
bad, and I suspect deals with this issues every day of his 
practice.
    I know him to be a person of not only great insight, but 
great integrity, and I welcome him here to the Committee today.

  STATEMENT OF ROBERT F. O'BRIEN, ESQ., O'BRIEN, BELLAND, AND 
                   BUSHINSKY, NORTHFIELD, NJ

    Mr. O'Brien. We dialoged the last time at some length, I 
think, Mr. Johnson. You and I talked about the Landrum-Griffin 
Act back in 1959, when Bobby Kennedy and the Select Committee 
on Improper Activities in the labor-management field 
recommended passage of the statute.
    And the last time we talked about it, I think I opined that 
it was a statute that was working very, very well, and I would 
be loathe to make any amendments to that statute, or change the 
statutory scheme in any way, simply because the provisions in 
there, particularly the union democracy provisions and other 
provisions seem like, as a Federal statute over the last, what, 
43 years, have been working fairly well.
    A year has elapsed since we last talked together. 
Interesting things happening, at least from a local 
practitioner's point of view. We are seeing an uptake in the 
last 12 months in Labor Department activity, relative to timely 
filing of LM reports.
    A number of unions we represent have gotten communications 
where prior to the last 12 months they have not gotten 
communications from the DOL, talking about what's in the LM, 
about timely filing of the LMs, and things of that nature.
    As the AFL-CIO points out, the problem is somewhat limited, 
and the problem seems like it's one that is more proportionate 
to smaller unions.
    Many of the unions, as we again talked about last year, 
many of the unions that we represent are small labor 
organizations. Contrary to the idea of monolithic full-time 
employees with large salaries, many of the unions that I 
represent and that exist in the country are smaller unions with 
part-time officers who work for various employers.
    What concerns me is the scheme which--the statutory 
scheme--which would be put into effect, which would require 
that civil penalties be imposed on certain filers of a late or 
a non-filing nature.
    Again, the problem remains the same as it has been for 
many, many years in labor unions, trying to get the very best 
people to run for office. I am very concerned that if we pass 
legislation which is going to put some more burdens on being a 
local union office, or being a local union secretary-treasurer, 
that, indeed, we have taken people out of the area of running 
for local union office who don't want to have these kinds of 
strictures put on them.
    I believe the DOL in the last year--and I would be 
interested to see their 2002/2003 statistics on late filers and 
non-filers. As the Committee knows, there is not that many 
international unions anymore. I think we're down to 70 or so. 
And as the AFL-CIO has pointed out, of the 30,000 labor unions 
that need to file reports, only 5,400 of those have more than 
$200,000 in income.
    I think that is very, very relevant. We find ourselves 
often times counseling local union secretary-treasurers how to 
fill out the LM form, what to put in, what to put out, what 
needs to be said, what needs not to be said. And as you know, 
there is legislation and changes afoot to substantially amend 
that LM form.
    The question becomes more disclosure is good in many 
instances. We have talked about--last year, we talked about the 
SEC requirements which now must be personally signed off by a 
number of corporate officers.
    The question is, however, this is not a publicly--they are 
not publicly traded companies, in many instances, they are 
small organizations which, essentially, have come into 
existence over many, many years, and the paramount idea here is 
when the folks passed Landrum-Griffin, when John Kennedy and 
the others passed Landrum-Griffin, they put strong, strong 
language in that statute that said labor unions should be left 
to administer their own affairs as far as statutorily possible.
    And they really stressed that labor unions are best left 
alone. The legislation they did pass put into effect the LMs, 
put into effect and resolved the worst abuses. And the Labor 
Department, I think--particularly the agency--the Office of 
Labor-Management Standards--charged with enforcing the statute, 
has done--actually, even in the last year--a pretty decent job 
of making sure the late filers and the non-filers get 
corrected.
    But to tinker with this statute 40 years out is something 
that I think we should best leave it alone. Again, the idea of 
not encouraging people to run, putting more statutory schemes 
on people who work full-time elsewhere and are part-time union 
officers, in the 25,000 labor unions that have less than 
$200,000 a year in income is really ill-advised. Thank you for 
hearing me.
    Chairman Johnson. Thank you. I am glad you made it.
    Mr. Rosenzweig, I would like to ask you, you know, last 
year you summarized the problem that we are here to address 
today as one of being late without an excuse, kind of like kids 
going to school and the principal finds they are tardy, they do 
not kick them out of school, but they do punish them in some 
way. And we have no punishment device. And the one you 
suggested is actually what our bill does, in effect.
    But I like unions, you know, and I think we ought to 
protect them, and especially the smaller ones. So the purpose 
of the Department of Labor--and I think all of us in the 
Congress--is to make sure that it functions properly.
    And your suggestion of an IRS enforcement model, I think, 
is a good one. I wonder if you could help us understand those 
comparisons a little better.
    I might add that, Mr. O'Brien, the small unions are not the 
whole problem. The large unions are, too. And as a matter of 
fact, just in 2002, there were over 400 small unions--actually 
300--large unions, excuse me. The LM-2 form, in other words, 
that were not filed.
    And I would like to make the distinction that the law says 
you file on a certain time. And filing late is not filing on 
time. And taxpayers get penalized for that, and there isn't any 
reason that, you know, you say everything is working rosy, but 
if they are not filing when they are supposed to, it's not 
rosy.
    Mr. Rosenzweig, would you care to comment on that?
    Mr. Rosenzweig. Well, I certainly think your analogy to 
children in school has some instruction. I mean, plainly, we do 
not kick students out for tardiness.
    What that embodies is the sensible realization that the 
punishment ought to fit the crime, or the offense, and that is 
a principle that we have used in every other regulatory regime 
that I am aware of. I hesitate to say there are no others, 
because that purports to be comprehensive knowledge. But every 
other one of our regulatory regimes has systems that involve 
both administrative, civil, and criminal sanctions.
    I kind of draw two lessons from that, or two different 
things. The first is that I think that the incentive structure 
that Mr. O'Brien is talking about, about discouraging union 
member participation probably is a realistic one, but it is not 
unique to unions. It is--it happens in every regulated 
structure, small businesses, large businesses.
    I mean, we have certainly seen lots of people bailing out 
of director and officer positions after Sarbanes-Oxley for the 
very real reason that they now fear going to jail. So there is 
absolutely no denying that the incentive structures that you 
put in place affect behavior.
    But I have yet to hear an argument either from the 
economics or from the structure, about why that set of 
incentives operates differently in the union environment than 
it would anywhere else.
    The other--the flip side of that is that when we look at 
other areas--and the one that I chose here, particularly, was 
the IRS--we see that, in general, there is a heavy reliance on 
civil sanctions and administrative sanctions, in preference to 
criminal sanctions, for the act of non-filing, for the very 
good reason that we recognize that the act of non-filing is a 
lot less significant than the act of filing a false report, or 
lying, hiding money, stealing.
    The IRS brought 144--I think that's the number I cited in 
my testimony--criminal prosecutions for non-filing last year, 
and took more than 2,000,000 civil and administrative actions 
against late, or delinquent, filers who were late or non-
filing. They do not split it up, so I cannot tell. That strikes 
me as a hallmark of an effective regime.
    And the last point I would make is that to the extent that 
you worry about the authority being used to discourage people, 
we have seen models where the presence of the authority, 
combined with forgiveness, delinquent filer programs and the 
such, is what achieves what we're all actually going for, which 
is compliance. We want the student to come to school; we don't 
want to punish him.
    Chairman Johnson. Yes, thank you. Mr. Yud, it is not often 
we have the administration here, and I would like you to 
comment, if you care to, on his comments.
    Mr. Yud. Well, I think we agree in a lot of respects. The 
purpose of the LMRDA, as has been mentioned here, was to allow 
union members, basically, to govern their unions, to encourage 
self-governance, to encourage transparency. And if union 
members can't get the information they need in a timely 
fashion, then that information is of no use to them.
    I mean, the law allows the union currently 90 days from the 
close of its fiscal year to file its reports. So there is a 90-
day period built in there. And then as months pass after that, 
the information gets, of course, dated, and it becomes much 
less useful.
    And as I say, we have tried for--we have had 40 years of 
experience in trying to get through a variety of means to 
encourage and get these reports filed on time. And I have to 
tell you that we have not achieved great success.
    Chairman Johnson. Thank you, sir. Mr. Andrews?
    Mr. Andrews. Thank you. Mr. Yud, last year--am I 
pronouncing your name correctly?
    Mr. Yud. Yes.
    Mr. Andrews. Thank you. Last year, we had the Deputy 
Secretary of Labor Findlay testify on this subject. And as we 
went through the testimony, we established that for reports 
that had to be filed in the year 2001 by March 31st, deadline 
of March 31st, of the 30,000 or so filers, by August 15th, 
there were 4,025 filers that had not yet filed. So, in other 
words, if you take all the unions that should have filed by 
March 31, 2001--about 30,000 and some--that by August 15, 2001, 
all but 4,025 of them had filed.
    Now, this hearing took place in April of 2002. Just to 
refresh the timelines again, the reports were due March 31, 
2001, the letter that was written to the Committee by the 
Secretary was as of August 15th, and the hearing took place in 
April of 2002.
    In April of 2002, I asked Mr. Findlay how many of those 
4,025 unions had filed by April of 2002. He didn't have the 
answer at that time, and I asked him if he would supplement the 
record by answering that question in writing, which, to my 
knowledge, in looking at the record of the hearing, he did not.
    I would renew the--I don't expect you to know the answer on 
the top of your head--but I renew the request today. Of the 
4,025 organizations that were supposed to file in 2001 who had 
not filed by August 15, 2001, how many of them have since filed 
for 2001? Do you know?
    Mr. Yud. You are correct, that I do not have the answer 
with me here, Congressman. But do I understand, you are talking 
about the labor organizations that had a report --or a fiscal 
year ending in 2001, and what was the status as of August 2002?
    Mr. Andrews. No, these are reports that were due for the 
2001 year as of 3/31/2001.
    Mr. Yud. Right.
    Mr. Andrews. And we went through this testimony, and Mr. 
Findlay's testimony was there were 4,025 delinquent filers as 
of August 15th, meaning 8 months or so after the deadline.
    I asked him how many of those 4,000 were still delinquent 
as of April of 2002. He didn't know, and promised to supplement 
the record.
    The reason I bring that up is to get to the scope of the 
problem again. In your testimony, you--on page four--you say in 
the report year 2002, over 43 percent were either late or 
failed to file for that year. How many failed to file?
    Mr. Yud. I don't have that figure. I would have to look 
that up and provide it for the record, sir.
    Mr. Andrews. Well, with all due respect, don't you think 
that that runs the risk of being a bit misleading? Because what 
we found out in 2001--and we can quibble, we can argue over the 
importance of a late filing, and I think it does have some 
significance--but to lump together, as Mr. Rosenzweig said, to 
lump together the late filers with the no filers is kind of 
misleading.
    What we found out in 2001 was that we were told, I think, 
that 42 percent did not file, or were late, but the truth was 
that about 14 percent had not filed as of August, about 28 
percent had filed late, and the remainder had filed on time. Do 
you know what that number is for 2002?
    Mr. Yud. I don't think I can provide that right now, sir. 
But I would like to respond--
    Chairman Johnson. Well, let me interrupt.
    Mr. Yud. Because--
    Chairman Johnson. Let me interrupt.
    Mr. Andrews. Well--
    Chairman Johnson. I am going to give you a copy of the 
existing numbers. We wrote those percentages in there--that is 
2 days old--for 2002.
    Mr. Andrews. Well, I would ask the source of this 
document--did the Department choose to share it with the 
Minority as well as the Majority, or--
    Chairman Johnson. I just got it myself, today.
    Mr. Andrews. OK. I appreciate the point. Here is the point 
that I want to make. We can use statistics to make any point 
that we want. And to consistently say that something like over 
40 percent are not complying with this law, I think, is a 
misleading statement.
    What would be more accurate would be to say that a certain 
percentage file on time, a certain percentage file tardy, and 
then we can have a discussion as to the costs and consequences 
of that tardy filing--and I think there are some--and then 
another percentage don't file at all.
    But it is rather compelling that an administration that 
supports this legislation because there is such a non-
compliance problem can't tell us what the non-compliance 
problem is. Right?
    Mr. Yud. Well, I am looking at figures, I guess, that were 
just furnished to you, and I think these figures do provide 
some of the answers--
    Mr. Andrews. Well, what is the answer to my question about 
2001?
    Mr. Yud. Well, Congressman Andrews, you use a lot of 
numbers, but some of the numbers don't square with what I 
understand. First of all--
    Mr. Andrews. They are from the Secretary's testimony.
    Mr. Yud. Yes, they are, but I don't think you are 
interpreting them correctly.
    Mr. Andrews. No, they are literally--I can read you the 
Secretary's testimony. It is his testimony from 2002.
    Mr. Yud. I understand, sir, but again, I would respectfully 
disagree with some of the statements you are making. You refer 
to 30,000 filers. That is all of the unions that have to file 
during a year. All those reports are not due by March 31st the 
following year. Some of those reports--
    Mr. Andrews. No, these were the ones that were due some 
period in the 12 months leading up to that.
    Mr. Yud. Well, but what that means is that by August, some 
of those might be over a year--
    Mr. Andrews. You should quarrel with Secretary Findlay, 
since I am using his words and his numbers. I am just curious 
as to why it took--it has taken 14 months for the Department to 
answer a question I submitted in writing at the last hearing. 
Is there a reason for that?
    Mr. Yud. Well, Congressman Andrews, I will apologize for 
that. As far as I know, we made an effort to respond to every 
question that we were asked. And if for some reason--
    Mr. Andrews. Now, if you would like to see the record of 
the hearing, the Secretary--Mr. Findlay's comments--here is the 
entire record, included the appendices submitted after the 
hearing. It is not in here.
    Mr. Yud. Well, I am sure we would like to correct that and 
provide an answer.
    Mr. Andrews. When would we get the answer by, Mr. Yud?
    Mr. Yud. As soon as I could get it out. Now, I am not 
totally in control of getting that answer out, but I would say 
to you that I think, you know, if you have a question that--
    Chairman Johnson. Can you give us an answer in less than 30 
days?
    Mr. Yud. Mr. Chairman, I can certainly try--
    Mr. Andrews. I assume the Department would have had it in 
April of 2002, when we had the hearing. It is not a--
    Chairman Johnson. His point is well taken, though, Mr. 
Andrews. The times for unions vary around the year, and they 
have got 90 after the--
    Mr. Andrews. I think Mr. Findlay's testimony accounted for 
that. It doesn't account for the fact that it has taken 15 
months to answer a question.
    Chairman Johnson. Well, this is a point in time right here, 
that I just gave you. It is not--you know, so--
    Mr. Andrews. Well, I look forward to reading it for the 
first time. Thank you.
    Chairman Johnson. Well, they are just a bunch of 
statistics, but the numbers, I think, are compelling, because 
29 percent are late filers. And if you look at that, 1,700 of 
them were $200,000 or more, and only 298 are--which is a number 
I quoted you a minute ago--are not received at all.
    Mr. Andrews. Well, Chairman, not received, what is the date 
of this chart? It is as of June 24, 2003?
    Chairman Johnson. Yes. I ought to have a date on it; it 
does not.
    Mr. Andrews. OK.
    Chairman Johnson. You want to--
    Mr. Andrews. My time is up.
    Chairman Johnson. Thank you. The Chair recognizes Mr. 
Wilson for 5 minutes.
    Mr. Wilson. Thank you, Mr. Chairman, and Mr. Yud, I want to 
thank you for working with the Congressman from New Jersey.
    I think part of the confusion has to be about the failure 
to comply, the 42 percent, the 28 percent late, the 14 percent 
that hadn't filed. If there just were compliance--and my 
interest is the LM forms themselves. Are they difficult to fill 
in?
    Mr. Yud. Congressman Wilson, I would say that the forms 
themselves are, in my opinion, not particularly difficult.
    I mean, for 80 percent of the unions, there is a more or 
less simplified report. For unions with 10,000 and less in 
receipts, it is basically a front and back of one page, and you 
only have to put in four or five total figures of assets, 
liabilities, receipts, and disbursements.
    So, I would say that the forms--for 80 percent of the 
unions that have to file them, the forms are fairly simple. The 
LM-2, which is the larger form for the 20 percent that are over 
$200,000, is somewhat longer, but I would contend that it's not 
a particularly complicated form.
    Mr. Wilson. And it has been pointed out that this has been 
in place for 40 years. And so could it possibly be that people 
not understand they need to fill the form in, or have it filed?
    Mr. Yud. Well, I think the great, great majority of union 
officials are familiar with the form. We engage in a lot of 
compliance assistance, we work with internationals to try to 
help them advise their affiliates.
    So I would say that, you know, it is certainly possible 
that a new union official out there, an isolated minority, 
might not immediately know, but they will soon know about it.
    Mr. Wilson. And then is there any way that this could be 
made enforceable by regulation, rather than additional 
legislation?
    Mr. Yud. No, sir. I think the statute does not give the 
Secretary of Labor authority to impose fines. And my belief is 
that it cannot be done without legislation.
    Mr. Wilson. And Mr. Huebner, in your testimony, you touched 
on something that troubles me a great deal. You mentioned that 
when you requested to examine the bills of your council, that 
you felt that there was an effort to intimidate, or even 
threaten you, and that other of your rank and file brothers 
similarly feel harassment, intimidation, economic retaliation, 
and formal disciplinary action when they seek to exercise their 
rights.
    As the sponsor of legislation designed to--which is in 
addition to the bills before us today--to address the threats 
of union violence, I am very concerned that what we are hearing 
here is that union members who try to exercise their democratic 
rights are subject to harassment, retaliation, maybe even 
threats of violence.
    Can you tell us more about what happened to you, and what 
you know of what has happened to others? Are we really hearing 
that union members are being subject to threats and 
intimidation?
    Mr. Huebner. First of all, a number of years ago, probably 
1998, the recording secretary of our local was passing out 
copies of the labor bill of rights in the workplace, and he was 
threatened--he was removed from the workplace, and he was also 
physically threatened. He subsequently, within a year, left the 
union, and is a successful entrepreneur right now. That is one 
example.
    Another example would be the issue that he and I went 
through at the same time. There were approximately five of us 
on the executive committee on our local when they started the 
restructuring at the district council level before they went to 
a four-state council.
    Because we would not comply with their wishes to change our 
bylaws that gave the financial control to the council over our 
$250,000 local, they had us removed as shop stewards, the five 
of us, and my income went from $42,000 that year to $17,000 the 
next year. Two of the other brothers could not sustain the kind 
of economic loss, and left the industry.
    In terms of physical intimidation, at that time there was a 
business agent, notorious to this day, who did physically 
threaten people. He has been subsequently removed, but I 
believe that the union now is being run by a more sophisticated 
group of individuals.
    The reason this came up at the council meeting was the 
council bylaws--which I have a copy here--say that they have 
to--that the EST--he calls himself the CEO, because he is the 
chief executive officer--he is the ruler of the land. He--it 
says the EST will submit the bills to the trustees for review, 
and they should be submitted to the delegates for approval.
    So, I asked to see the bills. I said, ``In 2 years and 
eight meetings, we have never seen the bills. I would like to 
see the bills.'' ``Well, they are way too cumbersome, they are 
as thick as a phone book. They take hours.'' I said, ``I got 
time.'' You know?
    So then, he said he didn't want to release them because if 
they were to go out to the members, that there were people that 
were using this information and taking it to--and I quote--
``working with Republican committees who are not our friends.''
    To me, it could be no more direct. My fellow delegate is 
here, and he was sitting as far as you and I are, and he got 
the same impression. This was a definitive reference to my 
testimony before the Congress, and I will not yield or bend on 
my rights as an American citizen, no matter what they say.
    Mr. Wilson. And one final question, Mr. Chairman, and that 
is that you indicated concern about your dues being increased 
precipitously, and also about the pay for the union officials 
increasing at an even greater rate.
    Is there any provision for you, as a member, to petition 
for a general meeting to review this situation?
    Mr. Huebner. Our local union made a written request as per 
constitution, for a special meeting with the executive 
secretary-treasurer, who negotiated our contract, promised us 
continuously we would have the right to vote on it, and then 
pulled the rug out from under us on a Saturday morning after 
lobbying the people that were on his payroll to vote against 
me.
    I spoke in Williamsburg and said that Jefferson would be 
turning over in his grave when they took the right of 
ratification away from our members.
    They passed it, and he has, to this date, not replied to 
the membership about this call for a special meeting about our 
contract.
    In terms of executive compensation, the levels of 
compensation have never been voted on in council. I was asked 
to run, and ran as a delegate, because I know now that this is 
where the money is--$15 million strong for 12,000 members with 
50 delegates, half of whom are on the payroll of the regional 
council, and work directly at the behest of this CEO/EST.
    They are so far beyond our control, the absolutely opposite 
of what the general present statement to this Committee years 
ago was, that it is preposterous. I won't belabor the point too 
much, but we can speak volumes to this issue.
    Our members are incensed. We have circulated and have 
petitions signed by over 500 members out of 700, demanding our 
right to ratify. They sit here, coming from work, sacrificing 
their time and their money, as do I, to say that they double 
our dues--I paid $780 in dues--and this guy makes $166,000 in 9 
months. He is untouchable. I am sorry, I don't mean to--
    Mr. Wilson. No, well, I think we got the message, and we 
appreciate your providing the information.
    Chairman Johnson. The gentleman's time has expired. The 
Chair recognizes the gentlelady from Minnesota, Ms. McCollum.
    Ms. McCollum. Thank you, Mr. Chair. To the gentleman from 
the carpenter's local, your statements reflect that of your 
carpenter's local 1110 in Washington, D.C., and you're not 
speaking on behalf of the carpenters from Minnesota, or 
anything, you're just speaking about your local?
    Mr. Huebner. I wouldn't presume to speak as directly for 
them, though I have met with them often.
    Ms. McCollum. I meet with them often.
    Mr. Huebner. There is a guy named Tom Crofton who is a 
carpenter in Wisconsin.
    Ms. McCollum. Sir, I said Minnesota. And you are speaking 
of the actions in your local.
    Mr. Huebner. No, in terms of--no, I would just beg to 
differ with you. I can cite numerous circumstances in Atlanta, 
where--
    Ms. McCollum. Sir, I asked you if you were speaking on 
behalf--I didn't ask you to cite circumstances. You are 
speaking on behalf of your--the experiences you directly had in 
your local, correct?
    Mr. Huebner. And experiences that have been conveyed to 
me--
    Ms. McCollum. Thank you.
    Mr. Huebner.--by other union members.
    Ms. McCollum. Thank you. Mr. Chair, I am going to make more 
of a comment than I really have a question.
    This was really strange. As I was reading through this 
testimony--and I did step out of the room for a few minutes, 
there is a hearing going on in International Relations, and I 
wanted to hear the president, who came all the way from Mali, 
Africa--about not timely filings, people not being able to have 
their day in court.
    Boy, it sounded like a lot of people I work with back in 
Minnesota and here in Congress, when dealing with the EPA with 
pollution, when dealing with OSHA standards. No timely 
investigation, no open reporting, no civil penalties, no 
penalties taken.
    If this is a model that we are going to be looking at 
seriously here, then I think it is a model that I would like to 
look at for OSHA, and for the EPA, because what I am hearing 
here is the same thing as I have heard in testimony from groups 
in environmental hearings and the rest.
    So, I want to know if the administration is looking forward 
to being as enforcing on corporate polluters as the potential 
problem that they think that they might have uncovered with 
some of the unions with late filings. Mr. Chair, that is all I 
have to say.
    Chairman Johnson. Thank you, ma'am, for your comments. The 
Chair recognizes Mr. Kline for 5 minutes.
    Mr. Kline. Thank you, Mr. Chairman, and thank you, 
gentlemen, for being with us today.
    I think I would like to--I am new to Congress and to this 
Committee, and so I don't have the advantages of previous 
Congress's hearings and discussions.
    We are looking at a way to give union members more 
visibility into the actions of the union, and make sure that 
their rights are being protected. And as I understand, what we 
are doing here today--and we have three pieces of legislation, 
H.R. 992, 993, and 994--and I think the question would be to 
Mr. Rosenzweig.
    You, obviously, are familiar with these pieces of 
legislation. Can you tell us--tell me, help me better 
understand--why we need the three pieces, and how that will 
better accomplish what we are trying to do here?
    Mr. Rosenzweig. Congressman, I am going to focus on 993, 
which is the one that I know best about. H.R. 992 and 994 are a 
little out of my area of expertise, though I can speak to them 
just a bit.
    With respect to 993--and I think it's actually a useful 
sort of response to the observations of Ms. McCollum --that is 
going to be giving the Secretary of Labor tools that the 
administrator of EPA already has, in terms of civil 
enforcement. It is intended to give the Secretary of Labor 
tools that she already has, in terms of enforcing OSHA.
    Now, it may be that she doesn't--that they don't use those 
tools effectively yet--though my own experience in the 
environmental area, for example, is that the instances of non-
filing are less--I confess I looked and couldn't find any 
statistics on the EPA website, so I offer that only as an 
anecdote, not as any concrete--and perhaps that is a useful 
comparison you ought to ask about.
    But clearly, the Environmental Protection Agency and OSHA 
have a very active civil program. There is an entire section of 
the Department of Justice that civilly enforces the law. So 
this is giving the Secretary of Labor, in this context, a tool 
that the other regulatory agencies all have already.
    And to my mind, there is--I have yet to hear a reason why 
the same incentive structure would not function as well in this 
context as in others. H.R. 992 and 994--well, I think I will 
defer to someone else on those who knows them better than I.
    Mr. Kline. All right, thank you. Mr. Yud, would you like to 
take that? We are looking at three separate pieces of 
legislation here, and I am trying to understand why--what we 
gain out of the three separate pieces.
    Mr. Yud. Well, sir, the administration has only taken a 
position with respect to one of those, and that is the same one 
Mr. Rosenzweig was talking about, which is the Labor-Management 
Accountability Act.
    And the President, in the 2004 budget, did include a 
proposal to--for civil monetary penalties, so that some effort 
and enforcement action could be taken to ensure that the 
reports that the Act requires are filed in a timely fashion.
    Mr. Kline. OK.
    Mr. Yud. I am taking a position with respect to the other 
proposals.
    Mr. Kline. Well, it is clear to me that Mr. Huebner has a 
concern about the members' right to know. Would you like to 
address that in 992 and 994?
    Mr. Yud. Well, as I said, there is no formal position that 
the administration has taken on those particular proposals.
    Mr. Kline. No, I meant--I am sorry, I thought I was 
shifting my--
    Mr. Yud. Oh, I am sorry.
    Mr. Kline.--my focus, if you will, to Mr. Huebner. We have 
had pretty good responses on 993. Can you talk to 992 and 994 
for just a minute?
    Mr. Huebner. In terms of 992, informing the members of 
their rights, I think that the strength in that one is the 
statement that says--and I have a website download, you know, 
that's the best I could do--it says to periodically --``labor 
organization shall provide such information periodically to all 
members in a manner which the Secretary of Labor determines 
will promote a fuller understanding.''
    I have in my hand a folder that is currently being passed 
out by our counsel. And in this folder that's given out to new 
members, there is a brief history of the union, there is an 
organizational chart, the officers of the council, even five 
statements called a bill of rights. But there is not one 
reference to the LMRDA.
    This is the perfect place for it. Put their rights in here. 
Put a copy of the law in here. Put the bylaws in here. We don't 
even know the rules. The Secretary could potentially 
determine--and I'm not a lawyer, so I don't want to get into 
the minutiae of it--the secretary could determine that since 
they are to be filed with the Secretary of Labor, they should 
also be given out to members.
    We present sit here, 4 months after a contract was ratified 
by 50 delegates at regional council outside of our control, and 
we have no contract. Nobody has even seen it. We don't even 
have a contract yet. That is in the law, that they have to do 
it. What are we supposed to do? By the time we beat down 
Labor's door, they will have typed something off, merged our 
local, and gotten rid of me.
    Mr. Kline. OK. Thank you very much. And I see my time has 
expired, and we are being called to vote. I yield back.
    Chairman Johnson. Yes, the gentleman's time has expired. I 
propose that we break for a vote and come back, unless you want 
to ask a quick question, Mr. Tierney.
    Mr. Tierney. Mr. Chairman, I would like to do my 5 minutes, 
if I could. I have another Committee meeting going on that I 
have been waiting patiently here to get my turn so I could go 
to that Committee--
    Chairman Johnson. Mr. Tierney, you are recognized.
    Mr. Tierney. Thank you very much. I appreciate the 
courtesy.
    Now, Mr. Yud, back in 1998, Congress asked the Department 
to post the LM-2 reports online. In April of 2002, Labor 
officials told us that they hope to have those online by June 
of that year. My understanding is we are still waiting. Is that 
correct?
    Mr. Yud. No, sir, Congressman Tierney. Those--there is a 
disclosure site, and I think in June--at least since June of 
2002--we have been publishing the LM reports on that site.
    Mr. Tierney. And are people able to get most of the 
information that they need under your new regulations on that 
site?
    Mr. Yud. I am not sure what you mean by the new 
regulations. There are no regulations--I mean, that site is up 
and running, and when we get an LM report, we post it on that 
site.
    So, instead of having to come in for a paper copy, they can 
go into that site. And assuming the report has been received, 
they can go to that site to view it.
    Mr. Tierney. And that has been up since what date, now?
    Mr. Yud. June of 2002.
    Mr. Tierney. OK.
    Mr. Yud. Reports which aren't received, of course, are not 
on that site.
    Mr. Tierney. That is pretty obvious.
    Mr. Yud. Yes, sir.
    Mr. Tierney. Thank you for that. Now, back--a while back in 
2001, Don Todd, who was then the deputy assistant secretary, 
told us that, ``Since few of the recordkeeping violations are 
considered intentional, however, the Department uses its audits 
and compliance assistance programs to educate union officers 
about their recordkeeping obligations, and thereby enhance 
compliance. Civil litigation is also available for 
unintentional violations of the recordkeeping requirements, and 
willful violations are also subject to criminal prosecution.''
    Mr. O'Brien, has it been your experience that that 
progression is a fairly effective way to approach this problem?
    Mr. O'Brien. I think it is, Congressman. I might say this 
to you quickly.
    The injunctive provisions in Landrum-Griffin allow the 
Secretary of Labor to go after a union that doesn't file. They 
have injunctive relief already. The labor-management, or the 
labor community, is a fairly tight knit one. I, frankly, do not 
know of non-filers. And if, indeed, the Secretary of Labor is 
interested in making an example out of someone, they simply 
need go in and obtain an injunction.
    Mr. Tierney. Well, I spent a lot of time on one of my other 
Committees dealing with people that were interested in the 
Small Business Paper Reduction Act. And I see an analogy here, 
whatever. I mean, I don't think we want to burden unions any 
more than we want to burden small businesses with this. So the 
Internet is one good way to deal with this. The other is to try 
and give businesses or unions an opportunity to rectify 
something that is unintentional.
    So, it seems to make sense to me that the first thing is to 
educate them for compliance assistance, and to move on with the 
unintentional one, and then to proceed up the line, either with 
a fine through a civil action, or if it's a willful action, to 
take a criminal action on that.
    I am a little troubled with the concept of a department 
that is apparently overburdened and unable to do the number of 
audits that they need to make these determinations, is now 
going to be able to just simply make a fine. You agree with 
that point?
    Mr. O'Brien. Fines are totally unnecessary. Considering the 
tools they already have, particularly injunctions--we're trying 
to compel compliance, as Congressman Johnson pointed out, we're 
not trying to punish people here.
    You can compel compliance with an injunction action which 
is already in the statute. You want to make an example out of 
somebody who doesn't file year after year, all you need do is 
sue them in the Federal district court. You will get their 
attention, yet, the Labor Department doesn't seem like it uses 
that remedy.
    Mr. Tierney. To your knowledge, Mr. O'Brien, is the Labor 
Department still having difficulty having the number of people 
working with them doing audits to keep up with their work load?
    Mr. O'Brien. As you point out, Congressman, they have a 
right to randomly look at these unions. The number of 
investigators seems like it is less and less actually coming in 
to do the investigations, at least in our geographic area.
    Mr. Tierney. OK. Well, I don't think I need to belabor 
this, Mr. Chairman. It seems to me that we are--I think 
everybody wants the members, the rank and file, to have the 
information they need. And hopefully, the Internet is going to 
move in that direction.
    In terms of getting these things filed, it is important to 
know how many are willful and how many aren't, and why the 
Department of Labor isn't exercising the tools that are 
available to it now to get people to file on time and to take 
whatever actions are there.
    I think giving them more responsibility when they can't 
keep up with their current load is an open invitation for some 
arbitrary action. I would rather seem them go through the 
deliberative process they have to go through now and have a 
modicum of fairness, than to assume they're going to be 
understaffed and just start slapping fines, willy nilly.
    Mr. Andrews. Will the gentleman yield?
    Mr. Tierney. I will be happy to.
    Mr. Andrews. I just wanted to supplement. The document the 
Chairman handed me a few minutes ago about 2002 indicates that 
for unions with receipts equal or greater than $1 million a 
year, there is a 3.3 percent delinquency rate, which I think 
Mr. Rosenzweig made reference to earlier. And for all LM-2s, it 
is 5.5 percent.
    I would like to ask the Department if they can supplement 
later the record by telling us how delinquent each of these 
reports is under the not-received-to-date category, how many 
days delinquent it is. And I would yield back to Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman. I will yield back. 
And thank you again for the courtesy.
    Chairman Johnson. Thank you. I think there is no further 
questions on either side, and I would like to, at this time, 
just tell you that the--that we did receive a letter from 
Cameron Findlay, Deputy Secretary of Labor, and he presented a 
chart with data in it.
    Mr. Andrews says it didn't totally answer his question, 
so--
    Mr. Andrews. If the Chairman would yield?
    Chairman Johnson. Yes.
    Mr. Andrews. With all due respect, it doesn't answer my 
question at all. And I have read the letter, and I appreciate 
the effort, but it is not responsive to the question.
    Chairman Johnson. Well, but earlier, we indicated there was 
no response at all, and there was a response. So, if you would 
help us, Mr. Yud, in that regard, I would appreciate it.
    Mr. Yud. Thank you, Mr. Chairman.
    Chairman Johnson. And I thank the witnesses, all of you, 
for being here. We sometimes sound like we are grousing, but we 
are not. We are all on the same team. And I thank you for your 
valuable time and participation.
    If there is no further business, the Committee stands 
adjourned.
    [Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

 SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN SAM JOHNSON, FROM DEPUTY 
 DIRECTOR LARY YUD, ``RESPONSES TO QUESTIONS FROM CONGRESSMAN ANDREWS 
             AND CONGRESSMAN TIERNEY'', SEPTEMBER 23, 2003

                          U.S. Department of Labor,
                      Office of Labor-Management Standards,
                                Washington, DC, September 23, 2003.
Hon. Sam Johnson,
Chairman, Subcommittee on Employer-Employee Relations, Education and 
        the Workforce Committee, U.S. House of Representatives 
        Washington, DC.
    Dear Chairman Johnson: Thank you for the opportunity to testify 
before the Subcommittee on Employer-Employee Relations on July 24, 
2003, to discuss the Department of Labor's enforcement of the Labor 
Management Reporting and Disclosure Act of 1959 (LMRDA).
    Enclosed for the record are my responses to questions posed by 
Subcommittee members at the hearing. Please do not hesitate to contact 
me at (202) 693-1265 if you have any further questions or need 
additional information.
            Sincerely,
                                                  Lary Yud,
                                                   Deputy Director.
    Enclosure.

Responses to Questions From Congressman Andrews and Congressman Tierney

    Question from Congressman Andrews: [From the Hearing transcript] 
Congressman Andrews: Thank you. Last year, we had the Deputy Secretary 
of Labor Findlay testify on this subject. And as we went through the 
testimony, we established that for reports that had to be filed in the 
year 2001 by March 31st, deadline of March 31st, of the 30,000 or so 
filers, by August 15th, there were 4,025 filers that had not yet filed.
          * * * * * * *
    In April of 2002, I asked Mr. Findlay how many of those 4,025 
unions had filed by April of 2002. He didn't have the answer at this 
time, and I asked him if he would supplement the record by answering 
that question in writing, which, to my knowledge, in looking at the 
record of the hearing, he did not.
    I would renew this--I don't expect you to know the answer on the 
top of your head--but I would renew the request today. Of the 4,025 
organizations that were supposed to file in 2001 that had not filed by 
August 15, 2001, how many of them have since filed for 2001? Do you 
know?
    Answer: This question was answered in May 17, 2002 letters from 
Deputy Secretary Findlay to Subcommittee Chairmen Congressman Sam 
Johnson and Congressman Charles Norwood. That letter contained the 
following question and answer:

          How many of the 4,025 delinquent filers for FY 2000 have now 
        filed?
          A total of 1,872 unions are still considered delinquent for 
        FY 2000 reports. At the time of the Department's August 15, 
        2001 letter, a total of 4,025 filers were considered 
        delinquent. Many of those unions have since filed reports, 
        however, the figure has also been adjusted to correct 
        processing errors. Further, the total number of filers was 
        understated in the August 15 letter because information for 
        unions that terminated subsequent to that year was not 
        included.

    I would also note that as of September 10, 2003, 1064 unions are 
still considered delinquent for FY 2000 reports.
    Questions from Congressman Tierney. Mr. Tierney: Mr. Yud, I 
understand that unions currently have the option of filing their LM 
forms with the Department of Labor either by paper or on-line through 
the Department's website.
    Question. Since the on-line filing system became available, 
approximately what percentage of unions have switched to that option 
and have begun filing their forms electronically?
    Answer. Approximately 76% of unions filing Form LM-2 have used the 
electronic forms software to complete their FY 2002 reports. To date, 
64 electronic signatures have been purchased by union officials and two 
unions have filed reports electronically.
    Question. What is the average turn around time between the time 
unions submit paper forms and the on-line posting of the paper forms?
    Answer. The turn-around time for posting copies of paper reports on 
the OLMS Website varies based on the volume of reports to be processed 
(approximately 66% of all unions have fiscal year ending dates of 
December 31 and OLMS, therefore, receives the largest volume of reports 
in late March). Currently, OLMS is posting Form LM-2 reports received 
during the month of June 2003 on the Website. Prior to posting paper 
reports on the OLMS Website, OLMS must prepare the reports to be sent 
to an offsite contractor for electronic imaging and keypunching and 
conduct a quality control review of the electronic data prior to 
posting the report images and data on the Website. Reports that are 
submitted to OLMS electronically are posted within three to five days 
of receipt by OLMS.
                                 ______
                                 

SUBMITTED FOR THE RECORD, ``UNION REPORTING RATES FOR YEAR: 2002'', AND 
 ``2002 DEPARTMENT OF LABOR DATA FOR LABOR ORGANIZATION ANNUAL REPORT 
                               FILINGS''

                                      UNION REPORTING RATES FOR YEAR: 2002
----------------------------------------------------------------------------------------------------------------
                                                                                                      % Received
                                                       Received      Late         Not        Total      Late or
                     Filer Type                         On Time     Filers     Received     Filers      Not to
                                                                                To Date                  Date
----------------------------------------------------------------------------------------------------------------
                                         REPORTING RATES FOR ALL UNIONS

LM-2 ($200,000 or more).............................       3,379       1,713         298       5,390       37.31
LM-3 ($10,000 -$199,999)............................       6,604       3,867       1,794      12,265       46.16
LM-4 (Less than $10,000)............................       4,815       2,585       1,939       9,339       48.44
Simplified..........................................       1,711         266         207       2,184       21.66
                                                     -----------------------------------------------------------
      Totals........................................      16,509       8,431       4,238      29,178       43.42

                              UNIONS WITH RECEIPTS EQUAL OR GREATER THAN $1,000,000

$1,000,000 or More..................................       1,238         644          65       1,947       36.41

                         REPORTING RATES FOR UNIONS WITH FISCAL YEAR ENDING IN DECEMBER

LM-2 ($200,000 or more).............................       2,577         939         261       3,777       31.77
LM-3 ($10,000 -$199,999)............................       5,236       2,445       1,575       9,256       43.43
LM-4 (Less than $10,000)............................       2,889       1,514       1,504       5,907       51.09
Simplified..........................................         335         266          92         693       51.66
                                                     -----------------------------------------------------------
      Totals........................................      11,037       5,164       3,432      19,633       43.78
----------------------------------------------------------------------------------------------------------------


                   2002 DEPARTMENT OF LABOR DATA FOR LABOR ORGANIZATION ANNUAL REPORT FILINGS
                                               [Report Year 2002]
----------------------------------------------------------------------------------------------------------------
                                                                                                      % Received
                      Form Type                        Received      Late         Not        Total      Late or
                                                        on Time     Filers     Received     Filers    Not at All
----------------------------------------------------------------------------------------------------------------
LM-2................................................       3,379       1,713         298       5,390       37.31
LM-3................................................       6,604       3,867       1,794      12,265       46.16
LM-4................................................       4,815       2,585       1,939       9,339       48.44
Simplified..........................................       1,711         266         207       2,184       21.66
                                                     -----------------------------------------------------------
      Total.........................................      16,509       8,431       4,238      29,178       43.42
----------------------------------------------------------------------------------------------------------------

                                 ______
                                 

 SUBMITTED FOR THE RECORD, STATEMENT CONCERNING H.R. 992, 993 AND 994, 
SUBMITTED ON BEHALF OF THE ``TWO-HATTERS COALITION'', ADELE L. ABRAMS, 
                          ESQ., JUNE 24, 2003

    Chairman Johnson and members of the committee: This statement is 
being submitted for the record of the June 24, 2003, hearing on H.R. 
992, 993 and 994, various legislation dealing with the rights of union 
members and relations between unions and management. We represent the 
``Two-Hatters Coalition'' (``THC'' or ``Coalition''). The THC is a 
group of men and women who are paid union firefighters in their full-
time jobs, and who volunteer as unpaid firefighters in their local 
communities during their days off from work. The members of the 
Coalition provide critical emergency services at a time when local fire 
departments and paramedic teams are vastly underfunded.
    We believe that there is a significant issue concerning the First 
Amendment rights of union members to provide volunteer services, which 
also has public safety and homeland security implications. Although 
this issue is not specifically addressed in your legislation, we hope 
that you will consider the need for congressional intervention and 
perhaps hold an oversight issue to ensure that the safety and health of 
the American public is not sacrificed in order to advance the self-
interests of unions.
    As Congress looks for solutions to the crisis in emergency 
response, we wish to point out current developments that serve only to 
exacerbate this problem. In certain areas including, but not limited 
to, the Washington, DC metropolitan area, Rochester, NY, and Michigan, 
these ``Two-Hatters'' are being brought up on charges by their unions 
because of their unpaid volunteer activities at local volunteer fire 
departments (``VFDs'').
    In the Washington area, Two-Hatters currently face trial board 
charges in Washington, DC, Arlington, VA, Montgomery County, MD, and 
other jurisdictions. These Two-Hatters face expulsion from the union 
unless they agree to cease their volunteer firefighter activities. The 
International Association of Firefighters, and some of its locals, have 
deemed volunteer fire departments to be ``rival'' labor organizations. 
As the IAFF noted, in correspondence to its members on this issue:

          The IAFF Constitution makes it clear that IAFF members can be 
        subject to charges and internal discipline if they serve as 
        volunteers.* * * all too often, jurisdictions rely upon the 
        services of volunteers to undermine the efforts of our own 
        members to obtain the resources necessary to support a properly 
        staffed and adequately equipped full time career fire 
        department. As a union representing the interests of paid 
        professional fire fighters, we can and must promote the 
        interests of our members by strongly advocating career fire 
        departments across North America.\1\
---------------------------------------------------------------------------
    \1\ September 20, 2002, letter to IAFF Affiliate Presidents from 
Harold A. Schaitberger IAFF General President.

    There are economic consequences for the Two-Hatters, regardless of 
whether they opt to ``walk the plank'' by leaving the union or 
resigning as volunteer firefighters. But,more critically, there are 
public safety consequences arising from this attempt to deplete the 
ranks of volunteer fire departments in order to protect union 
interests.
    Local communities depend heavily on volunteer firefighters, and can 
ill-afford to create paid firefighter positions to replace those Two-
Hatters who may be forced to withdraw from participation in these VFDs. 
Some of the Two-Hatters now being brought before trial boards are the 
same individuals who were involved in rescue operations at the Pentagon 
and who, as volunteers, provide emergency support to departments in 
Prince George's County, MD,\2\ that serve as backup for emergencies on 
Capitol Hill and the federal agencies in Washington. Following the 
September 11, 2001, events at the World Trade Center, hundreds of 
volunteer firefighters and volunteer fire chiefs worked alongside of 
and supported career firefighters in New York City. It is incredible 
that these same individuals are now being viewed as ``the enemy'' by 
their own unions simply because of their volunteer activities.
---------------------------------------------------------------------------
    \2\ About 200 volunteer firefighters in Prince George's County, MD, 
are ``Two-Hatters'' and, therefore, the ranks would be depleted by this 
number of individuals if the firefighter union is successful in forcing 
out these individuals under threat of financial sanctions and/or union 
expulsion.
---------------------------------------------------------------------------
    Today, nearly 50 percent of some VFDs' firefighters are ``Two-
Hatters'' and in most cases, these volunteers serve the VFDs during key 
evening and weekend shifts, while paid firefighters work a more regular 
weekday schedule. These volunteers are extremely skilled, well-trained 
and physically fit.\3\ How quickly such VFDs could find and train 
comparable replacement volunteers who are not career firefighters and 
who are willing and available to work these less-desirable shifts (much 
less find the revenue to fund such positions) is unknown. But, given 
our current state of alert, it is not a risk worth taking for our 
communities. A selection of recent news reports on this issue can be 
found at http://www.twohatters.org. In addition, this issue was also 
addressed recently by the House Science Committee, in its June 4, 2003, 
hearing concerning H.R. 1118.
---------------------------------------------------------------------------
    \3\ The resume of one of the ``Two-Hatters'' who is currently faced 
with union trial board charges because of his volunteer firefighter 
activities, is attached as an illustration of the qualifications that 
will be lost to our communities if such discrimination against Two-
Hatters is permitted to continue.
---------------------------------------------------------------------------
    Action to prohibit continuation of volunteer services by Two-
Hatters is occurring across the United States because the International 
Association of Firefighters is condoning such action. The rationale is 
that if these ``two hatters'' are forced to stop volunteering, more 
``paid'' positions will be created by the counties and municipalities. 
To fund that, there will be an increase in taxes to pay for the newly 
hired firemen and emergency medical staff. But the harsh truth is that 
there is no money to create new paid positions. Thus, the end result 
will be a reduction in force at volunteer departments and a diminution 
of public safety and ability to respond to emergencies. Moreover, those 
Two-Hatters who have refused to bow to union pressure face on-the-job 
harassment, disparagement, threats--all of which raise concerns about 
their own personal safety in the event that they need backup from those 
union members who oppose Two-Hatters.
    As was noted in a recent Bowie (MD) Blade editorial: ``It is beyond 
comprehension why the International Association of Fire Fighters would 
severely penalize a member of its union for unselfishly volunteering 
his services, during his off work hours from a fire department in 
Virginia, to the Bowie Volunteer Fire Department. This draconian action 
by the national firefighters union also lays the groundwork for 
substantial damage to local firefighter organizations.'' \4\
---------------------------------------------------------------------------
    \4\ Bowie Blade editorial, March 27, 2003.
---------------------------------------------------------------------------
    The International Association of Fire Chiefs has estimated that 
two-thirds of American fire departments do not meet minimum staffing 
requirements. We agree. The IAFC has noted that 75,000 new firefighters 
are needed to bring these departments into compliance. We agree. We 
respectfully suggest that the United States needs more, not fewer, 
volunteers to maximize our homeland security efforts. The 
discrimination in employment against individuals who are union members 
BY their own unions, simply because they elect to answer President 
Bush's call to serve their country as volunteers, must end.
    The IAFF's war on volunteer firefighters also impermissibly 
interferes with these union members' First Amendment rights of Freedom 
of Association and should be deemed unconstitutional. Whatever their 
full-time job, no one should be adversely treated on-the-job or face 
financial penalties because they choose to volunteer their services in 
protection of their community.
    As a solution to this issue, and in support of strengthening 
emergency response teams, we propose that Congress consider legislation 
to ensure that persons who volunteer as emergency service providers 
will not be subject to adverse employment action as a consequence of 
their volunteer activities.
    Thank you for your consideration of our concerns.
                                 ______
                                 

 SUBMITTED FOR THE RECORD, WRITTEN STATEMENTS OF UNION MEMBERS: JAMES 
   LYNCH, PHILIP LAVALLEE, CHUCK CANNON, MICHAEL BILELLO, ROBERT L. 
 CARLSTON, GREGG SHOTWELL, MIKE GRIFFIN, TOM CROFTON, DARRELL J. ZUBE, 
 THOMAS J. VERDONE, DAVID JOHNSON, JACKIE FITZGERALD, MARTIN CONLISK, 
                           MICHAEL LIVINGSTON

    Statement of James Lynch, Dock Builders Local 1456, New York, NY

    I have been a member of Dock builders Local 1456, NYC, NY (United 
Brotherhood of Carpenters) for 29 years. I am currently retired.
    In New York, Union Carpenters (as in the rest of the United States 
and Canada) face many problems. In the past 11 years we have had a 
court appointed monitor, a court appointed Investigation and Review 
Officer, a Trusteeship by our International Union, and an introduction 
to the Brave New World of Corporate Unionism.
    The monitor was a New York lawyer charged with identifying and 
rooting out corruption. In three plus years he and his staff billed our 
District Council several million dollars, removed one business agent 
for corruption, and failed to preserve the promised anonymity of 
complaining members.
    The IRO was a retired Federal judge, appointed as part of a Consent 
Decree which settled a RICO suit. He and his staff were paid over 
$1,000,000 a year of members money. He served 63 months of what was to 
be a 30 month tenure, and he also managed to remove one business agent.
    The Trusteeship which under the LMRDA must last no longer than 18 
months lasted 43 months. It began when a NONUNION security firm was 
paid several million dollars to seize our Council at gunpoint and 
maintain a one week siege. During the Trusteeship money Managers were 
hired and paid exorbitant fees, while managing to little more than 
break even during the best stock market and economic boom in the 
nations history, members were virtually stripped of effective 
democratic rights, and our leaders became accountable to the UBC and 
not the members.
    Under the Trusteeship, the Welfare Fund Trustees (headed by General 
President Douglas McCarron) declared that our Welfare Fund was nearing 
insolvency and retired members must now pay part of their health 
Benefit costs. These benefits had been unofficially guaranteed to 
retirees and were traditionally considered part of their retirement 
package.
    A group called MACOUT (a retirees advocacy group, of which I am an 
Executive Committee member) was formed and instituted a lawsuit to 
regain free health benefits for retirees.
    During the course of the suit it was revealed that the Fund was 
more than adequately funded. It was also discovered that the actuaries 
had ``mistakenly'' undervalued the fund by $7,000,000.
    Although they denied the lawsuit had anything do with their 
decision, the Trustees restored free medical coverage to all retirees.
    This is what our Union has become; an undemocratic, corporate 
philosophy minded entity, led by people totally out of touch with 
working members; whose members are forced to sue their own Union to 
gain what is rightfully theirs.
    As long as human beings run unions, the temptation to abuse power 
will exist. What Union members need are strong labor laws guaranteeing 
democracy. What any proposed change to the LMRDA needs is a focus on 
the democratic rights of the rank and file.
    However, laws without enforcement are meaningless. Stronger 
enforcement, along with the budget and manpower to make it viable are 
urgently needed. The Labor Department is woefully understaffed and 
under-funded. To effect meaningful change, this issue must be 
addressed. Thank you.

 Statement of Philip Lavallee, Carpenters Local 225, Atlanta, GA, Vice 
       President, Carpenters for a Democratic Union International

    Currently, the LMRDA does not have enough bite in it for the 
changing society of today. The DOL should have more authority to 
enforce provisions for the filing of forms as some unions seem to feel 
that they are above the law.
    Locally, in Atlanta, Ga., Carpenters Local 225 was put in 
trusteeship and the law requires that a form LM-15 be filed within 30 
days of establishment of a trusteeship. The UBC did not file the form 
for almost 60 days. This left a large number of members without a clue 
why the trusteeship had been imposed and, with the loss of autonomy, 
unable to get answers, and without the means to challenge the 
trusteeship. Yet the membership was still responsible for the payment 
of dues.
    The law must be amended such that union leaders are held 
accountable to the membership.
    In particular, the LMRDA should be amended to include a requirement 
that a parent union demonstrate it to be valid with a preponderance of 
evidence either before imposing it, or in the case of an emergency 
trusteeship, within 90 days--not 18 months later. Also, the only to 
assure a fair hearing would be to have a genuine neutral, such as a DOL 
representative, participate in any hearing to determine whether to 
impose or continue a trusteeship. This will show rank and file members 
that there will be some impartiality on the hearing committee.
    And, the elected officers of the local put in trusteeship who have 
not had charges filed against them should be reinstated to finish their 
term if the term has not expired. After all, they were duly elected by 
the membership.
    Also, in the Carpenters union, the right to vote on collective 
bargaining agreements has been taken away from the rank and file 
members. This I feel is a monstrous injustice. We pay dues for a say in 
our livelihood and in the workplace. Therefore all collective 
bargaining agreements should be voted by the affected members in good 
standing in a secret ballot referendum. In turn, any union official who 
negotiates or enforces our labor agreements should be elected by the 
same process.
    I hope you look into these issues and make the necessary changes to 
ensure a fairness to all working Americans.

Statement of Chuck Cannon, Retired 50-Year UBC Member, UBC Pile Drivers 
                                Local 34

    I write to share some information and my concerns about the UBC.
    People whom I refer to as the ``business-unionism partners'' have, 
in my opinion, taken over the Carpenters Union to satisfy their own 
brand of corporate greed; from an insurance company's plan to increase 
its Taft-Hartley plan market share, to satisfying contractors' desires 
for cheap skilled workers. They are high-level labor officials, 
executives of pension fund administration firms, investment houses, 
construction businesses, and financial organizations with 
interconnecting interests. They are all employers of building trades 
workers and have combined all of their political expertise and power to 
dominate union workers.
    In the world of Wall Street, taking over a targeted business can 
cost hundreds of millions of dollars. The shareholders of the targeted 
company are legally entitled to receive fair value for their equity and 
they dance all the way to the bank.
    Taking over a labor union with billions in assets is a much cheaper 
operation. Even though the members are the creators and the rightful 
owners of billions of dollars in equity, they don't legally own any 
claim to a damn thing. No one has ever converted the value of union 
equity into shares of stock or some other form of legal ownership. 
Instead of mounting an expensive proxy war, all the wellplaced predator 
has to do is to trick the members into political disenfranchisement to 
install his own hired managers. The business-union is then 
functionally, if not literally, his. As long as he can keep the members 
thinking that his acts are concerned with organizing and other 
traditional labor concerns, the majority will never wake up to the fact 
that the union is a valuable financial asset and has been stolen for 
that reason. The piracy is perfectly legal if the members cannot 
prevent it.
    The predator is almost always a highly-paid union official whose 
job it is to protect and represent the members. His method of 
usurpation is invariably the same: employ every tricky device possible 
to deny the rank-and-file member an effective means of self-defense and 
democratic remedy. Unfortunately, labor has a long history of endemic 
corruption. Laws that encourage the application of democratic 
principles and practices must be supported.
    Amendments to the UBC Constitution (similar to those in boldface 
text throughout) to enhance democracy in the Carpenters Union were 
officially proposed to the 2000 Chicago United Brotherhood of 
Carpenters' General Convention. None were adopted.

                Title I--Bill of Rights of Union Members

    Location in Official Constitution: BOARD OF TRUSTEES
    Page #23 Paragraph E Section: 15
Reasons for inclusion to Amendments
    To make new provisions for the management and control of the 
Headquarters and real estate of the United Brotherhood of Carpenters 
and Joiners of America in the City of Washington D.C. and elsewhere. 
The intent is to re-structure the Carpenters' Union into a democratic 
members' union, by the creation of an Asset Trust under which all 
vested members would be direct owners/beneficiaries in their own names 
by implication, of the tangible assets of the United Brotherhood of 
Carpenters. This is the membership's takeover of the International 
Union.
    The Asset Trust shall hold all property, real estate, and other 
tangible assets for the sole purpose of assigning the advantages, 
benefits, and responsibilities of ownership of the assets to the union 
members and to their direct control. This amendment would make the 
union's members, whose investment of money and labor created the 
union's wealth, the true legal owners of their international union's 
assets. The value of Carpenter real estate, including a new 
headquarters building in Washington D.C., which alone will generate 
millions of dollars annually in rent and lease revenues, can be 
measured in the billions of dollars.
Original, official text as amended January 1, 1996
          E Section 15. The title of the Headquarters and real estate 
        now held by this United Brotherhood, or which may be hereafter 
        acquired, shall be vested by proper conveyance in said Board of 
        Trustees and their successors in office, to be held by said 
        Board of Trustees in trust for the sole use, benefit and behalf 
        of this United Brotherhood of Carpenters and Joiners of 
        America.
(NEW) proposed amended text
          E Section 15. The title of the Headquarters and real estate 
        now held by this United Brotherhood, or which may be hereafter 
        acquired, shall be vested by proper conveyance in THE UNITED 
        BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA BENEFICIAL 
        REAL ESTATE, PROPERTY AND ASSETS TRUST, a non-profit trust, to 
        be managed by said Board of Trustees in trust for the sole 
        purpose of inuring a beneficial interest in all said real 
        estate, property and other tangible assets to the members of 
        the United Brotherhood of Carpenters and Joiners of America. 
        THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 
        BENEFICIAL REAL ESTATE, PROPERTY AND ASSETS TRUST (hereafter 
        referred to as the ``Asset Trust''), is the entity which holds 
        the common assets of the persons named in the membership rolls 
        who have been members in good standing for five cumulative 
        years of the United Brotherhood of Carpenters and Joiners of 
        America (hereafter referred to as the ``Members''), and who are 
        in fact, the titular and beneficial owners of the Asset Trust, 
        by necessary implication. Said Members shall be the vested, 
        beneficial owners-in-common of all its assets. This beneficial 
        ownership shall be computed upon the total number of 
        accumulated years of membership, plus a fraction of any year 
        exceeding a 0.25 fraction of any partial year of membership. 
        The ownership rights shall not be voided or otherwise lost by a 
        lapse in membership subsequent to becoming a vested Member. 
        There shall be three classes of beneficial ownership: Class A 
        Members (as defined above), in good standing shall have voting 
        rights. Class B Owners (Members not in good standing and former 
        Members of the Carpenters Union), shall have no voting rights. 
        Class C Successors (those persons who have received a 
        beneficial interest by bequest or gift), shall have no voting 
        rights. Each Member shall have the right to bequeath or convey 
        his/her ownership rights to a Successor. This right of 
        ownership shall be transferable by bequest or gift only by the 
        Member and the Owner, and not by any Successor in title; 
        except, that the Successor may sell his/her interest to the 
        Asset Trust. The Member, Owner, and Successor may each sell or 
        encumber by way of loan for consideration, but only to the 
        Asset Trust. Rights of ownership shall not otherwise be 
        transferable. Unclaimed and expired rights of ownership shall 
        revert to the Asset Trust. An account separate from the General 
        Fund account shall be established in the Asset Trust's name 
        which shall be the repository of all revenues deriving from 
        rents, leases, sales, and all receivable due the Asset Trust. 
        The Asset Trust may receive funds from other United Brotherhood 
        accounts and resources. However, the Asset Trust accounts and 
        funds shall not otherwise be co-mingled with any other accounts 
        or funds of the United Brotherhood of Carpenters and Joiners of 
        America. The Trustees shall within 60 days of the adoption of 
        this amendment proceed to put its provisions into effect. The 
        Trustees shall submit all subsequent transactions which require 
        a change of title or deed to a Members vote. This vote shall be 
        decided by a majority union membership vote, by secret ballot. 
        The Trustees shall engage the services of an independent 
        auditor to distribute, receive, count, and report on all ballot 
        votes by the Members on matters which involve the Asset Trust. 
        (end of E___ Section 15)
          The exercise of freedom of speech, or of the right to 
        publish, or of the right of members to peaceably assemble, or 
        to form political caucuses or political slates which may 
        express ideas, positions, or philosophies contrary to official 
        union policies; shall not be the subject to, or cause for 
        censorship, or penalties. Further, members shall enjoy the 
        right to post documents, handbills or other such informational 
        materials upon union property, in a prominent place which shall 
        be provided for such purposes.
          The affected Rank-and-File members represented by and 
        subordinate to the contract negotiating authority, whether it 
        be a Local Union, District Council, State Council, Regional 
        Council or Provisional Council, shall have the unrestricted 
        right to ratify all contracts and contract changes by secret 
        ballot. The right to vote to approve all Bylaws, Bylaw changes, 
        dues or other monetary assessments by secret ballot shall be 
        inviolable.

                    Title II--Reporting Requirements

    We are members of a labor union. But our pension plans transform 
our unions into much, much more. Pension funds are, in reality, mutual 
funds. Money is deposited into an account established for us in our 
names to be invested for our benefit at retirement. Union pension fund 
participants are denied most of the rights and privileges afforded 
regular mutual fund participants, such as monthly or quarterly account 
statements, quarterly investment manager's reports, annual reports, 
annual stockholder's meetings, and the right to vote directly for 
officers and directors of the fund. We are as dispossessed in this 
regard as we are unrepresented as union members.
    In addition to being shareholders in union mutual funds and being 
institutional investors, union pension fund participants are, unknown 
to them, also members of a very elite club of merchant bankers. Many 
mutual funds are, in fact, merchant banks, or function as merchant 
banks through their investments in the real estate markets, venture 
capital investments and other money-lending practices.
    Our pension fund/merchant banks have introduced a new layer of 
complexity into their operations that are the outgrowth of business-
unionism's Private Equity investments. We now have gatekeepers, general 
partners, limited partners, and advisors who advise advisors. Pension 
fund operations are a daunting challenge for even a financial expert to 
clearly understand, and hopeless for the average union member to 
understand, yet this is precisely the area that is readily open to 
opportunistic pension fund abuse. Congress must guarantee that the sun 
shines on this issue and all of its operations.

                        Title III--Trusteeships

    In early 1997 Local 34 received a letter instructing it selected 
officials to resign their local union positions and become paid 
appointed employees of the RegionalCouncil. Many local unions all over 
America must have received similar letters. These messages were the 
precursors of a carefully hatched plot to eliminate and transfer the 
historical power base of the union to the office of General President 
from its business agents and other locally-elected officials. This 
action, directed by GP Douglas McCarron, was supposedly based upon 
constitutionally, mandated Bylaws. An examination of the Carpenters 
constitution discloses no such Bylaws. Using this fictionally 
constructed code, McCarron created the Northern California Carpenters 
Regional Council (NCCRC) and other councils by fiat. The NCCRC then 
invited GP McCarron to intervene and annul all democratic rights held 
by the Council's union members and to institute a complete 
dictatorship. Pile Drivers Local Union 34 vigorously resisted McCarron 
and was placed under a court-approved trusteeship later the same year.
    Prior to instituting the trusteeship a hearing was conducted for 
the stated purpose to ``determine why Local Union 34 should not be 
placed in trusteeship.'' UBC International Representatives strongly 
attempted to elicit testimony from members pertaining to knowledge of 
malfeasance by officials of Local 34. No member presented testimony 
alleging improper conduct.
    The International's agents' first attempt to seize our union hall 
was thwarted by courageous local officials and members who prevented 
their entry into the hall. Had the seizure been successful there is 
good reason to believe that the ``books would have been cooked'' to 
fraudulently manufacture evidence of malfeasance that the International 
sought to find in its fishing expedition during the hearing.
    Any new amendments to this section of law should contain due 
process language that establishes protection against the possible 
abuses mentioned above, such as:
    The taking possession of said records by the Trustee or his 
deputies shall not occur until said records have been first sealed in a 
manner according to civil law, under the observance of a legal Notary 
Public, or other similarly recognized Official, who shall witness the 
taking possession of said records, and shall deliver to the 
representative of the Local Union, District Council, State Council or 
Provincial Council a signed receipt for all documents and records 
seized. Representatives of the Local Union, District Council, State 
Council or Provincial Council being trusteed shall be permitted to be 
present when the records are sealed and unsealed, in the presence of a 
Notary Public or other similar Official, and may make and take 
possession of copies, photographs, or other forms of duplicate records, 
for the purpose of protecting the interest of all parties. The General 
president or his representative shall bear the expense of this seizure 
until the Local Union, District Council, State Council or Provincial 
Council is found guilty of violating civil or federal laws or of 
violations of the Constitution of the United Brotherhood; upon the 
establishment of guilt, the Trustee may recover the costs from the 
appropriate source(s).
    The presumption of validity of a trusteeship during the period of 
eighteen months from the date of its establishment shall not apply to 
any trusteeship established in whole or in part to directly enforce, 
compel, or accomplish a merger, affiliation, or takeover of the labor 
organization under trusteeship with or by another labor organization 
unless such organizational change has been approved in a secret ballot 
vote by the members of the trusteed labor organization. If a 
trusteeship is established for such purposes without the approval of 
the membership, it shall be presumed invalid in any proceeding 
challenging the trusteeship and its discontinuance shall be decreed 
unless the labor organization imposing trusteeship shall show by clear 
and convincing evidence that the trusteeship is necessary for a purpose 
allowable under section 462 [29 USC:462] of Title III.

                          Title IV--Elections

    McCarron's disenfranchisement of union members' voting rights 
through the gimmick of transferring power to regional councils from 
local union members, is a deft piece of smoke and mirror magic 
calculated to fool members and to provide a plausible excuse for 
Department of Labor complicity. But, thanks to the Harrington vs. Chao 
(DOL) case, it may not work according to plan and may force the DOL to 
adhere to its own precedents.
    Has the U.S. Department of Labor (DOL) become a covert player in an 
endeavor to deregulate laws protecting union democracy that prevent 
labor union privatization? Is the DOL a knowing participant carrying 
out undeclared policies or an unwitting dupe involved through 
McCarron's political connections? Either way, the DOL's original 
finding for the UBC International can be construed as deregulation of 
the laws protecting the democratic rights of union members.
    Harrington vs. UBC http://laws.findlaw.com/1st/1011577.html: 
``Thomas Harrington, a member of the United Brotherhood of Carpenters 
and Joiners of America, alleges that the functions and purposes 
traditionally accorded to local unions in the New England Region of the 
UBC are now served by the New England Regional Council. That Council, 
he says, must be treated as a local union and not as an intermediary 
body. Consequently, Harrington argues, the officers of that Council 
must be elected in the manner that the LMRDA prescribes for local 
unions, that is, by direct election by secret ballot among the union 
members rather than by vote of delegates who are elected from the local 
unions, as the UBC has chosen to do for the Council. Id. ? 481(b), (d) 
(1994). Harrington filed a complaint with the Secretary of Labor asking 
her to require the Council to hold a new election as a local union. The 
Secretary declined for reasons stated in a brief Statement of Reasons.
    ``Harrington sued under the LMRDA. On motion by the Secretary, the 
district court dismissed his suit. See Harrington v. Herman, 138F. 
Supp. 2d 232 (D. Mass. 2001). Because the Statement of Reasons is 
insufficient to permit meaningful judicial review, we reverse the 
district court, vacate the Secretary's Statement of Reasons and remand 
the case to the district court with instructionsto remand to the 
Secretary. We do not now decide whether any refusal by the Secretary to 
bring suit as sought by Harrington would be arbitrary or capricious.''
    In reversing and vacating the DOL's and the lower court's decision 
and remanding it back to the DOL, Judge Lynch writes for the majority: 
``We are confronted here with a different problem than was faced in 
Bachowski, created by what appears to be an inconsistency between the 
Secretary's approach and her regulation and prior decisions, which may 
represent an about-face by the Secretary. And, ``The Secretary denies 
there has been any change in interpretation or policy, but it is far 
from evident that this is so, and the Statement of Reasons does not 
adequately address this topic.'' In other words, Judge Lynch is saying, 
What's going on here?
    In fact, Judge Torruella for the minority, in stronger language, 
concurs, ``we should set aside her decision as `arbitrary and 
capricious' '' and, ``the secretary has stated her present 
interpretation of the Act with reasonable clarity and her present 
interpretation does not gibe with the readily discernible past policy 
and practice.''
    He also says, ``Since my view does not command a majority of this 
panel, I must await, with morbid curiosity, a persuasive clarification 
of the reasons for the Secretary's decision that could not be 
articulated in the original Statement of Reasons, the Secretary's 
thirty-one page brief, or the fifteen page submission of the amicus 
union.''
    I would like to think that the Harringtons case will reverse the 
UBC's attempted end-run around the LMRDA. However, I doubt that it will 
succeed without Congressional intervention. Union members simply must 
be on guard against other attempts, and further must actively lobby for 
the direct increased oversight, expansion of regulation and enforcement 
by the DOL of the laws pertaining to union democracy.
    All union labor organizations, including International Unions, 
State or Provincial Councils, Regional Councils, District Councils, and 
Local Unions, shall elect their officers by direct secret ballot vote. 
(One person, one vote.)

      Title V--Safeguards For Labor Organizations (Pension Funds)

    In 1959, when the Labor Management Reporting and Disclosure Act 
became law, only a few financial visionaries might have conceived of 
labor unions becoming merchant banks. Very few union members know what 
a merchant bank is and they are presently unaware of the tremendous 
potential of their pension funds. Even though the term business-
unionism is increasingly being used when describing restructuring and 
changes in labor organizations, most of us still don't understand what 
it is.
    What is business-unionism?
    Leo Gerard, International President, United Steelworkers of America 
states in the foreword of WORKING CAPITAL: The Power of Labor's 
Pensions. ``The use of worker's capital is one of the key challenges 
facing the labor movement today. Our deferred wages underpin capital 
markets in the United States and around the world. Although we have 
paper ownership of $7 trillion of deferred wages in the form of U.S. 
pension fund assets, this fact has not altered financial markets in any 
significant way. All too often, investments made with our savings yield 
only short-term gains at the expense of working Americans and their 
families. Destructive investment practices that rely on layoffs, 
mergers and acquisitions, plant closures, and off-shore job flight can 
create quick profits and short-term stock price increases, but over 
time these practices erode America's wealth. The challenge for labor is 
to find ways that align workers' savings with workers' values. We need 
to invest our deferred wages in companies that provide good jobs in 
stable, strong communities. We want to reward companies that value all 
stake-holders in the enterprise, not just their shareholders. Our 
capital is patient and long term, and our challenge is to develop a 
capital strategy that moves our savings beyond the quick saccharine 
highs of destructive corporate behavior. . . .''
    http://www.heartlandnetwork.org/links.htm (contains chapters of 
Working Capital) Chapter [V] page 93 ``Building On Success Labor 
Friendly Investment Vehicles and the Power of Private Equity'' by 
Michael Calabrese: a series of papers presented by scholars and 
academics on the subject of ``creating conceptual, financial, and 
educational tools for capital strategies that will advance labor's 
agenda in the twenty-first century.'' The book makes the case for and 
describes in essence what business-unionism is, in relation to labor's 
pension fund investments, the financial markets and the expected social 
benefits.
    However, the book does not expound on the inevitable conflicts of 
interest and potential abuses that are inherent in the developing 
partnerships. Working Capital also does not illuminate the obvious, 
that the failure of labor's advocacy for union jobs has led to an 
attempt to buy, through the lending of pension funds to employers, what 
it could not obtain through the diminished status of the unions.
    The creative uses of Private Equity and Economically Targeted 
Investments (ETIs) as sources of union jobs, pose the risk of reliance 
on their uses as acceptable adjuncts of or substitutes for traditional 
organizing efforts. The business partners attempt to create an illusion 
in the minds of members that the pension fund fiduciaries and 
gatekeepers who manage the investments are doing the members a great 
service, and maybe some are. But, in reality, pension fund management 
and gate-keeping are very lucrative businesses beyond the revenue 
earned from management fees. Some pension funds' fiduciary-managers 
wear multiple hats, giving rise to the potential for conflict of 
interest, corruption and possibly illegal abuses. Testimony to this 
fact can be gleaned from the Enron and ULLICO/Global Crossing scandals 
that are referred to in theCommittee on Education and the Workforce's 
own introduction to ``Suggested Reforms to Title II of the LMRDA'' by 
Phillip B. Wilson, Esq.
    Ralph Nader asks in an article in Business Week, ``Is Wall Street 
Corrupt?'' Inside, the reporters showed the answer to be ``yes, yes, 
yes!''
    The business-unionism concept establishes an alarmingly attractive 
and friendly environment for the propagation of corrupt abuses and 
corporate greed. If Mr. Gerard's vision for ethical investing of 
labor's assets is to stand a chance of succeeding, vigorous regulation 
and oversight of all forms of pension fund investments is necessary. 
LMRDA must be amended and strengthened to take into account 
institutions and practices that were not previously anticipated. 
Provisions must be enacted that guarantee a paper trail traceable to 
every entity that is involved in the flow of assets, identifying the 
owners of any assets produced through use of the funds. This 
information must be accessible to any person who wants to research the 
investment trail.
    There is a correlation between the easing in 1994 of ERISA rules, 
the establishment of pension investment funds dedicated to Private 
Equity and ETI investments, the undemocratic takeover and restructuring 
of the Carpenters Union, and to ULLICO and its investments. We live in 
an age where deregulation and privatization are capitalist mantras, a 
panacea for all that ails world economies. With membership in American 
unions in a free-fall, one must suspect that privatization of unions is 
on somebody's mind, not far behind Social Security.
    The ex-President of the AFL-CIO, Robert Georgine, and the business 
interests of the company that he now heads, ULLICO, formerly Union 
Labor Life Insurance Company, have vital interests in maintaining the 
continuance of pension funds. If the decline in union membership is 
threatening to the vitality of the AFL-CIO, then the membership decline 
must really unsettle executives whose businesses are built upon an 
organized union member base. They could be expected to employ all of 
the usual business strategies to turn their situation around.
    ULLICO has been maneuvering for a number of years to increase its 
share of the Taft-Hartley plan market. Some sources estimate its 
current share at \1/3\ or more of the Taft-Hartley plan market (*1999 
Best's Insurance Reports--Life/Health; and 1999 Best's Insurance 
Reports--Property--Casualty).
    McCarron has been and may still be a member of ULLICO's board as 
well as the boards of Perini Corp (Ron Tutor), and PB Capital (Richard 
Blum). To suspect the exercise of its influence and concomitant 
conflict of interest in UBC politics is reasonable. The company may 
possibly have been a helping architect of the 1994 ERISA prudent 
investment rule changes and the Carpenters Union's authoritarian 
takeover by McCarron. If McCarron is the horse, could ULLICO be a 
rider? If it is, it's not bragging about it, but it certainly has 
expertise and some urgent motives. McCarron's Carpenter Union takeover 
and similar takeovers of other unions could also be ULLICO's ticket to 
a much greater share of the Taft-Hartley plan market.
    Restructuring the union will concentrate diverse Carpenter pension 
funds into fewer, but bigger, investment funds sponsored by Regional or 
Super-Regional Councils, that under McCarron's control someday may 
become one big megafund. The many and diverse northeastern states' 
Carpenter pension funds now are reportedly being coalesced into fewer, 
larger units. Bigger investment units may be desirable, but the methods 
being used to accomplish the mergers gives rise to a concern for their 
safety and future security.
    Since the 2000 Chicago Carpenters' General Convention, rank-and-
filers have narrowly won back two Regional Councils. But their control 
over the Councils is indirect, i.e., through their elected delegates 
who may eventually become, yet again, politically and financially 
beholden to the new leadership which, without democratic accountability 
checks, may drift into an autocratic state. Other Carpenter locals have 
been placed in trusteeship because of their opposition to McCarron and 
his actions. It is imperative that labor law is amended to favor the 
growth of union democracy and that rank-and-file union members are 
provided with an effective means of defense against the potential for 
business-unionism abuses and Wall Street corruption.

    Statement of Michael Bilello, Carpenters Local 157, New York, NY

    My name is Michael Bilello, I am a member of Carpenters Local 157, 
in New York City. Local 157 is part of the New York District Council of 
Carpenters. The following is one example of why changes to the LMRDA 
are needed.
    The New York District Council of Carpenters was put into 
trusteeship in June of 1996 by the United Brotherhood of Carpenters and 
Joiners of America (UBC). The trusteeship was lifted in January of 
2000. When the UBC pulled out, they had put in place uniform bylaws to 
govern the New York District Council, as well as other councils around 
the country.
    One section of the New York District Council Bylaws relevant to the 
LMRDA is Section 21C: ``The Council may establish monthly dues or 
increase working dues payable to the Council by a majority vote of the 
Delegates voting at a Special Convention of the Council held upon not 
less than 30 days written notice to the principle office of each Local 
Union.''
    This language was written into the Bylaws to impose monetary 
assessments on the membership, without a rank and file vote, while 
supposedly satisfying the requirements of Section 101(a)(3)(B)(i) of 
the LMRDA. The so-called ``special convention'' was merely a regular 
monthly meeting of delegates with the exception of a letter that was 
sent to each delegate, titling the meeting a ``special convention'' and 
informing them that a vote will be taken to impose the assessment.
    Anyone familiar with the Carpenters Union knows the term 
``convention'' refers to the ``General Convention'' which is held every 
five years, and that we specially elect delegates to attend that 
convention, and vote for General Officers and on various issues. The 
delegates are elected solely to attend that one single convention. I 
have been a member since 1975 and have only seen a ``Special 
Convention'' held once, in 1995, when the Department of Labor ordered 
an election overturned, and there had to be a new election (and 
therefore a new election of local delegates to attend). The language in 
21C was purposely written into the Bylaws to circumvent the LMRDA.
    The rank and file were not aware of the impending assessment prior 
to the vote and they had no way politically to weigh in on the subject. 
They were not given the opportunity to advise their delegates of their 
views or to instruct them how to vote.
    The delegates voting on the assessment were by and large, full-
time, appointed, paid staff of the District Council who were 
politically and financially beholden to the Council leadership that 
wanted the assessment. Any opposition to the wishes of the 
administration could result in the termination of the delegates full-
time (and lucrative) appointed position. The vote was not by secret 
ballot. Several full-time staff people who were not ``team players'' 
had been fired since elected, full-time, salaried positions, were 
changed to appointed positions. The majority of the remainder, were 
unpaid delegates, who thought they stood a chance to be hired on staff, 
with the additional monies brought in by the assessment.
    The majority of the membership did not find out about the 
assessment until they received their vacation fund check (the mechanism 
used to collect the money from the member) six months later. There is 
no bylaw or federal law in place to prevent the same delegate body from 
increasing the assessment at any given time.

 Statement of Robert L. Carlston, Member, UBC Local 1977, Las Vegas, NV

    My name is Robert L. Carlston. I have been a member of the Las 
Vegas, NV UBC local(s) for 30 years. I served three terms as Trustee 
for Local 1780 and one term for Local 719, now defunct. I was a charter 
delegate to the Silver State District Council (defunct) and served one 
term & one year as a charter delegate to the Southern California--
Nevada Regional Council (now Southwest Regional Council).
    I write to share with the reader a saga of political manipulation 
by the UBC, and what I consider to be blatant abuse of trusteeship 
power in order to prevent politically independent persons from coming 
to power even though they had the democratic support of the membership.
    Prior to 1994, there was one independent Carpenter's local in Las 
Vegas, Local 1780. In March of 1993, the International Brotherhood of 
Carpenters and Joiners of America (UBC) imposed a trusteeship over 
Local 1780, allegedly to correct political unrest caused by the actions 
of an inexperienced elected Business Representative. The membership 
repeatedly pointed out that the regular election, scheduled to be held 
in just three months, would correct any problem. All members and 
officers pleaded with the UBC to allow the elections to proceed but 
they were rebuffed. After imposition of the trusteeship, all officers 
and representatives of the Local were removed from office (with one 
exception) and the operation of the Local was placed in the hands of 
two International Representatives (Wright & Dunford). All membership 
meetings were suspended and membership participation in the local was 
forbidden despite language in the UBC constitution to protect the 
rights of the membership. The trustees unilaterally signed and modified 
labor agreements, fired secretarial staff, attempted to deny one 
secretary (Bernadine Montoya) earned pension benefits, and threatened 
the employment of members who dared protest.
    After 18 months, steps were initiated to lift the trusteeship; an 
executive committee was appointed for the Local and tightly controlled 
membership meetings were allowed; however, Wright & Dunford remained in 
total control. After two months it was announced that the UBC was 
forming the Silver State District Council of Carpenters and that Local 
1780 would be broken into four small locals (Local 719, Local 817, 
Local 857, & Local 1780). These small locals along with Local 971 
(Reno) and Local 1827 (millwrights) would form the new District 
Council. Dana Wiggens, who had been appointed Business Representative 
for Local 971, was appointed Executive Secretary/Treasurer (EST). The 
Executive committees of the various locals were likewise appointed, as 
were the delegates to the Council (I represented Local 917). While the 
small locals were forced to hold meetings in small rented warehouses, 
the hiring hall remained at Local 1780, as did all other activities. 
Wright and Dunford were retained to supervise the District Council, 
though no Trusteeship officially existed.
    During this period, it was discovered that approximately $350,000 
in funds were unaccounted for and every member had lost \1/2\ to 1 
pension credit. The members protested the changes to the UBC General 
Executive Board (GEB); three members were selected to present the case 
(myself, Roger Tufaro, & Richard Russo). General President Lucassen 
told us that he had the power to do anything he wished and that we 
wouldn't have a union in Las Vegas if he so decreed. The only member of 
the GEB to oppose Lucassen was 2nd Vice-President McCarron who stated 
that he saw no reason for such extreme action. Wright & Dunford 
testified that the break-up was necessary because the ``activist 
element'' in Las Vegas couldn't be controlled otherwise. They further 
stated that the lost pension credits were caused by embezzlement by a 
Trust fund secretary; to this day the funds have never been accounted 
for, no charges ofembezzlement were ever brought, and as far as I know 
no claim was ever made against the bonding company to recover the 
money.
    Soon afterwards the Department of Labor decided that General 
President Lucassen had violated Federal law during the prior convention 
and set aside his election. A new convention was ordered; it was held 
in Las Vegas. Wright & Dunford first tried to prevent the Las Vegas 
locals from conducting delegate elections and attempted to appoint 
delegates. Both attempts were forbidden by the Department of Labor 
which had to step in, order and supervise elections of officers and 
executive committees for the new Las Vegas locals. Despite D.O.L. 
supervision several questionable practices were allowed to take place 
(officers with keys to the ballot box, unaccounted for ballots, and 
counts conducted by involved parties). Protests were turned aside 
because, we were told, if they were upheld, given the time constraints, 
the Las Vegas locals would have no representation at the convention. 
The D.O.L. also decreed that EST Wiggens must stand election by the 
entire membership before the end of the year.
    Douglas McCarron was selected the new General President and soon 
after met with delegates from Locals 719 and 817 who requested that 
they be allowed to return to Local 1780. General President McCarron 
denied the request on the grounds that Local 1780's Executive Committee 
didn't want to have to face election by the entire Las Vegas 
membership. In November, General President McCarron and several 
International Representatives entered the union hall and forcibly 
removed EST Wiggens. The membership was told that Wiggens had attempted 
to use pension fund monies to buy doctor's accounts receivables and 
pocket $1.8 million in finder's fees.
    Rick Whilkening, who was the only Business Representative retained 
when the trusteeship was originally imposed, was appointed EST and 
elections were cancelled.
    Three months later Herman Bernsen, president of the Southern 
California District Council was the featured speaker at a pin party 
held to honor long-time members. Bernsen's speech was an announcement 
that General President McCarron was combining Locals 719 and 817 into a 
new local (Local 1977), dissolving the Silver State District Council 
and forming the Southern California--Nevada Regional Council. Marc 
Furman (former head of organizing for the International) was named 
Administrative Assistant and given sole and absolute control over the 
Nevada Carpenters. All of this was done without notice to or 
consultation with either the membership or delegates.
    I was appointed a delegate to the Council representing Local 1977; 
one of our first duties as delegates was to approve bylaws for the 
Council. The Nevada Delegates were instructed by the membership to 
oppose several clauses in the bylaws. At the meeting all delegates who 
also held staff positions stated that it would cost their jobs to 
oppose the provisions. It was left to the six rank and file delegates 
to vote nay (we were joined by the five delegates from the Pile-drivers 
local). Those eleven of us who had voted nay were forced to stand in 
order to vote. During the 4\1/2\ years I served as a delegate, we were 
never called on to approve one item of business. Mr. McCarron claims 
that the delegates operate similar to Congress, but I can vouch that 
that is not the case. The delegates meet every three months, minutes of 
the Executive Board meetings and a list of political contributions are 
read; there is no discussion and no vote. All decisions are made by the 
EST, approved by the Executive Board, and merely read to the delegates.
    I'm bringing this to your attention because the Southern 
California--Nevada Regional Council of Carpenters was the prototype for 
the Regional Councils the UBC has formed across the country. The modus 
operandi has been similar in every case I'm aware of; trusteeship, 
denial of membership participation, followed by unilateral imposition 
of a Regional Council with appointed officers and the authority to 
perform the representational functions previously performed by Locals 
headed by officers actually elected by the members. I might add that 
the term or entity, ``Regional Council,'' was not even added to the UBC 
Constitution until five years after the first one was formed.
    The clearest example I can give of the effects of General President 
McCarron's actions is that of local elections. Prior to the 
trusteeship, 50% to 75% of the Local 1780 members voted in elections. 
In the last election conducted before the trusteeship, 890 of 1500 
members voted in an off-year election to fill a relatively 
insignificant position--trustee (I won over two other candidates by 687 
votes). Similarly, the last contract ratification vote saw over 90% 
participation by the membership. Local 1977 recently held an off-year 
election for trustee, two delegate positions, and two executive 
committee positions (two Executive Committee member/delegates had 
resigned after the last election). I chaired the election committee; of 
a total eligible membership of 3575, only 107 voted.
    Thank You.

         Statement of Gregg Shotwell, Delegate, UAW Local 2151

    I attended the UAW 33rd Constitutional Convention in Las Vegas, 
June 3-6, as an elected delegate. It was held at the MGM--but Circus 
Circus would have been more appropriate. According to our constitution, 
delegates are theoretically ``the highest tribunal in the UAW'' but we 
were treated like a captive audience andbrowbeaten with speeches by 
politicians and dignitaries with no connection to the UAW other than 
the stipends they received. Delegates were given very limited 
opportunities to debate issues relevant to our union, controversial 
topics were cut short, and Robert's Rules of Order were honored at the 
whim of the ruling party. In a word, the Convention was totally 
``engineered.''
    The power of the incumbent administration in a one-party democracy 
is such that all International officials were elected by a voice vote 
of acclamation. There was only one snafu when the delegates from Region 
2 rubber-stamped the wrong guy. The Administration Caucus was so 
incensed that they retaliated with a constitutional amendment to 
dissolve Region 2. You can well imagine the power implicit in 
retroactive redistricting. It would be as if Democrats upset about the 
election results in Florida resolved to dismember the state by giving 
the panhandle to Alabama, the northern trunk to Georgia, and the toe to 
Puerto Rico.
    Rather than raise our dues, the Administration Caucus absconded 
with $75 million from our strike fund by passing a constitutional 
amendment. And you thought you knew something about fast track.
    UAW International leaders do not feel accountable to the members 
because the members do not elect them in a one member/one vote, secret 
ballot election. All members of the UAW's ruling caucus are initially 
appointed and they are accountable only to those who appointed them, 
not the members they are supposed to represent. Americans take one 
member/one vote secret ballot elections for granted. We consider it an 
inalienable right, but we are denied this right by the ruling party of 
our union which behaves like a dictatorship. We need direct election of 
all International officials who represent us by one member/one vote 
secret ballot elections.
    I understand that you are interested in making unions more 
accountable by enforcing stricter adherence to LM-2 reports. The UAW is 
way ahead of you.
    Nineteen cents for each hour worked is deposited in a fund 
administered by a separate non-profit, tax deductible corporation. 
International UAW officers, and corporate officials sit on the board 
and control all expenditures. There is no accountability to the members 
and no requirement to report on an LM-2. This is in effect a dues 
assessment, and de facto taxation without representation. These funds 
also enable the International to appoint members in local unions to 
sinecures, thus securing their influence at the local level as well. In 
a one party state the power to appoint trumps the power to elect.

                 Statement of Mike Griffin, Decatur, IL

                 carpenter dictatorship out of control
    For the hundreds of thousands of Carpenters and Millwrights who 
make up the UBC [United Brotherhood of Carpenters and Joiners of 
America], democracy and fundamental union values, are but fleeting 
segments of the union that once was. Systematically stripped of the 
right to elect who represents them, to vote on contracts, and any 
credible voice over union affairs, many are left shaking their heads in 
disbelief. Much in the style of Corporate America, the international 
union has used, District and Regional Councils as Storm Troopers to 
consolidate locals, seize local membership funds, and initiate 
questionable trusteeships to intimidate locals who dare resist. All of 
these actions continue to alienate the rank and file and in some cases, 
force members to travel hundreds of miles to attend local union 
meetings.
    Under the pretext of ``representative democracy'', delegates attend 
District Council meetings where the dictates of the Secretary Treasurer 
are thrown out for a vote that has never been placed before any 
membership tribunal. Many of the delegates are Business Agents who are 
employed by the District Council and can be fired by the council 
Secretary Treasurer. That is mirrored in conventions as well, and as a 
result of that dictatorial forum, UBC International President Douglas 
McCarron, without consulting rank and file members, pulled the UBC out 
of the AFL-CIO.
    Amid a barrage of smoke and mirrors from the UBC headquarters, the 
truth behind McCarron's actions are revealed in letters exchanged 
between McCarron and John Sweeney, President of the AFL-CIO. McCarron's 
demands center on suspending provisions of the AFL-CIO constitution 
concerning jurisdiction. Under the guise of dissatisfaction with 
organizing, McCarron is demanding the right to raid work under other 
union's jurisdiction and in Nevada, that theory is tested by the 
existence of a new UBC contract laying out the pay and conditions for a 
``Concrete Specialist and Helper''.
    Just as disturbing, is what McCarron has to say before his 
Contractor Friends. In Hawaii, before the National Erectors 
Association, McCarron said, ``You need the freedom to assign the work 
based on what makes sense, what makes us competitive on the job. If 
there is a dispute, let the owner settle it. It's his job and his 
money''. That outrageous response represents a far cry from basic union 
representation and respecting the jurisdiction of other unions, and in 
fact, calls for violating the AFL-CIO constitution. McCarron goes on to 
tout his views as similar to Jack Welch, former CEO of General 
Electric, and refers to union members as ``strong product''.
    In an L.A Times interview, McCarron called those in the UBC who 
oppose his dictatorship, ``selfish bureaucrats, deranged loners and 
communists''. ``God bless them, they are very hateful people''. I 
suppose this author will have to re-think his position on democracy. I 
never understood until McCarron pointed it out, that standing against 
tyranny, dictatorship, and struggling for democracy were communist 
ideals. Thanks to McCarron, I now understand that the overwhelming 
majority of UBC members, who want the right to vote and elect their 
representatives, are communists, deranged loners, and hateful people.
    It was that same description that was applied to UBC members in 
British Columbia. So upset by McCarron's attempt to apply his 
dictatorship in that Canadian province, B.C. carpenters walked out of 
their hall and turned out the lights, leaving a rejected McCarron 
sitting alone in the dark. BC leaders polled their members and with 
overwhelming support, pulled out of the UBC. McCarron, after calling 
them brothers for years, called them communists. Is it really McCarron, 
or McCarthy?
    McCarron's obsession with power has moved far beyond his 
dictatorship of the UBC, with the stakes much higher and far more 
damaging to an already struggling labor movement. Another of McCarron's 
demands for UBC re-affiliation, is the resignation of the current 
President of the Building Trades and dismantling that division of the 
AFL-CIO. McCarron's demands would weaken the Building Trades and make 
it ineffective and unable to deal with the nation's hostile employers. 
Employers, who McCarron views as his friends and whose business style 
he has eagerly sought to imitate. Another principle demand is that 
voting in the Trades be conducted based on the size of the affiliated 
union, guaranteeing the UBC even greater power to influence how the 
Trades function; a possibility that could have disastrous consequences. 
McCarron's far right, business union mentality could destroy smaller 
unions and distance greater numbers of current union members who 
believe in fundamental union values. McCarron is not alone in his 
efforts. Several other Trades unions are poised to join his efforts and 
the fear of permanently damaging the union movement is most certainly 
on the minds of AFL-CIO leaders who have laboriously negotiated to 
settle the issues and bring the UBC back into the fold. Unfortunately, 
giving into McCarron's demands will not resolve McCarron's thirst for 
power and will not work in the interest of union members or of the 
movement as a whole. It is no accident that business publications are 
praising McCarron for his antics and his ``business acumen''. It is 
unfortunate for union members who work for a living, there are many in 
union leadership positions that mirror McCarron and have the same 
regard for members and member's rights.
    To add insult to injury, McCarron and soul mate James Hoffa Jr., 
have been publicly wallowing with labor's most ardent enemy, George 
Bush. Bush, who has spent more time bashing workers rights than 
starting wars, has seized the opportunity to use McCarron and Hoffa to 
drive a wedge into the house of labor. One theory is that Hoffa and 
McCarron have a common agenda by sucking up to the Bush administration. 
Hoffa wants rid of federal oversight and McCarron wants assurances the 
labor department won't interfere with his plans to gut members' rights 
in the UBC. Both unions are rampant with corruption.
    For AFL-CIO leadership, the loss the hefty per capita payments once 
paid by the UBC and the power of such a huge membership, have proven to 
be a stunning loss. At a time when regaining control of the House of 
Representatives for Democrats, McCarron's open defection could not be 
more damaging. Just as damaging, McCarron's willingness to openly 
divide not only the Building Trades, but also the entire labor 
movement, has made the process of unification difficult, and for some 
AFL-CIO Executive Board members, impossible. A few board members are 
speaking out, but in limited circles and with few details on McCarron's 
thirst for power and pro-business agenda. It is past time to take the 
gloves off and deal with McCarron, but that will not happen.
    Make no mistake, it is the business union model based on 
cooperation with employers, top down control of nearly all present day 
unions, and the denial of union democracy, that has brought the house 
of labor to its current level of relevancy. While the political climate 
and increasingly hostile employers have contributed, it is undemocratic 
and corrupt leadership that has done the most damage.
    McCarron's rise to power was supplemented by lawsuits centered on 
Carpenter pension funds and the lack of fiduciary responsibility by UBC 
bureaucrats in southern California. Ron Tutor, owner of Tutor-Saliba 
Construction and fellow trustee of the fund, aided his efforts. After 
catapulting himself to power on the heels of Sig Lucassen, former 
President of the UBC in what the labor department determined was a 
rigged election, McCarron's handling of the funds proved to be just as 
inept and questionable. Heavy investments in Perini Construction cost 
the fund 22 Million in a single day loss when Perini stock took a 
nosedive as Perini prepared for bankruptcy. McCarron held a paid board 
seat on Perini. That activity sparked a lawsuit by retirees, led by 
Horacio Grana, who has recently died. Questions raised by the suit are 
not only the losses, but also fees charged by investor and McCarron 
crony, Richard Blum; husband of Senator Diane Feinstein. Blum took 54 
million for himself on investments that earned 459 million; Blum 
handled only a small part of that fund.
    Currently, McCarron is among those being investigated in the ULLICO 
[Union Labor Life Insurance Company] scandal. It is alleged that 
McCarron and other ULLICO board members profited personally while 
membership retirement funds did not fare as well. With the 
consolidation of hundreds of locals into Regional councils, UBC members 
should have new fears. What happens to local pension funds and who 
oversees them? With billions in UBC pension funds, can this 
dictatorship be trusted? There are currently, many retired members who 
have lost all they worked most of their lives for.
    More questions are raised by the Mayoral election in Los Angeles. 
Without rank and file approval, tens of thousands of dues dollars were 
given to the election of James Hahn. Why would UBC members in Illinois, 
Michigan and eastern states care about the Mayor of Los Angeles? They 
don't! Through the Carpenters Contractors Cooperation Committee, the 
money was funneled to the Hahn campaign. Ron Tutor is a member of the 
executive board and its' Executive Director is listed as Bill Luddy, 
McCarron's 129,000 dollar a year assistant. According to the LA Times, 
When Hahn became mayor; he assumed the role of the most powerful member 
of the Metropolitan Transportation Authority Board [MTA]. With Hahn's 
election, four members of that board are about to change.
    Tutor-Saliba was charged by the MTA with filing false claims and 
fraudulently billing for work on a massive subway project. Tutor-Saliba 
has been barred from bidding on future public works projects, which 
makes up the bulk of Tutor-Salibacontracts. According to the Times, the 
walls of the tunnel built by Tutor-Saliba were thinner than required 
and two of the three workers killed on the project were Tutor-Saliba 
employees. Tutor spent more than a hundred thousand dollars on the 
election. Tutor remains a member of the executive board of the 
Carpenter pension fund.
    Inside the UBC, fear and intimidation reign. For working Carpenters 
and Millwrights, speaking out can be hazardous to your health; being 
starved into submission is common. With a wink and a nod from the 
Business Agent (BA) to some contractors, you can find yourself 
unemployed. ``Piss off your BA and see the USA'' is a common term, 
which means you will have to travel far and wide to find work. When you 
refuse to accept the intimidation, charges are filed and your 
membership will be taken. Contractors will refuse to hire you in some 
cases. In some areas, the threat is much more physical. The second 
phrase heard is, ``I just want to make it to retirement and get out of 
this mess''.
    In this ``Brotherhood'' nepotism and corruption are rampant. Out of 
work lists are only for show for the Department of Labor. It is 
difficult to envision a Brotherhood where some members make 75,000 
dollars a year and others make 10,000; where members fear their own 
leaders and have no voice. A Brotherhood where members are increasingly 
assigned to perform the work of other crafts and work for 90% or less 
of scale. A Brotherhood where organized breaks have been negotiated 
away and where representation of the membership is non-existent. The 
Steward and supervisor positions often are rewards for representing the 
contractor and union hall, rather than the membership. When Stewards do 
attempt to represent the members, they run up against a brick wall and 
find themselves replaced. It is a Brotherhood where contractors can 
hire and fire at will for no reason. A Brotherhood that refuses to 
honor picket lines and dispatches its members to replace striking and 
locked out workers. A Brotherhood based on an incestuous relationship.
    We have asked hundreds of UBC members across the country, ``What 
kind of union do you have when you fear your own leadership and you 
have no voice''?
    The answer is always the same; ``there is no union, it is gone''. 
That disillusionment is the norm in the UBC, but it is not spoken in 
union meetings or in front of leadership where retaliation is certain 
and out on the jobsites, it is spoken cautiously. That fear became a 
reality for John Reimman, a California carpenter involved in a wildcat 
strike involving Tutor-Saliba and in opposition to a contract members 
were refused the right to vote on. Reimman was ultimately expelled from 
the UBC in spite of the fact the strike forced another vote and 
thousands of union members joined the protest.
    McCarron has boasted the hiring of 600 organizers and bringing in 
thousands of new members, but even there smoke and mirrors prevails. 
From our experience locally and those we have contacted nationally, the 
thrust of organizing has consisted of swaying employees of non-union 
contractors to join the UBC without bringing in the contractor. The 
result has been to divide up what little work we have among members and 
often the new members are worked ahead of longterm members to keep them 
interested. Ultimately, many of them go back nonunion to earn a living. 
The UBC controls the information and Carpenter magazine is nothing more 
than the voice of McCarron, who has little credibility in or out of the 
UBC. When you do the math, the cost of 600 organizers versus the 
figures on new members, the cost is prohibitive. In a letter to the 
entire membership, McCarron denied he was building UBC Inc., a wall-to-
wall agency that mirrors nonunion shops, but experience indicates that 
is the direction of the UBC.
    A few bright spots have developed where members have shown the 
courage to fight back, in spite of overwhelming odds. CDUI (Carpenters 
for a Democratic Union International) has formed as national caucus and 
a few locals have fought back against illegal trusteeships. In Boston, 
a Business Agent fired for supporting the right to elect leadership, is 
now the Secretary Treasurer of the District Council. In Atlanta, 
members who elected a rank and file leadership in opposition to 
McCarron have successfully fought back against the illegal trusteeship 
imposed by McCarron.
    CDUI national organizer, Ken Little, of Seattle, has felt the wrath 
of the UBC. While touring the country building support for one member 
one vote, Little stopped off at the Carpenter's hall in St Louis Mo. He 
was ordered to stop giving flyers to fellow members and when he stood 
for his rights, the local BA called the police and had him escorted 
from the hall. Members and delegates to the last convention fared no 
better. When they arrived at the convention, they were met by dozens of 
Chicago police. Though eventually allowed into the convention, they 
were refused the right to pass out literature supporting the right to 
vote and ``Goons'' were assigned to follow caucus members. Controlling 
the UBC membership is such a high priority of the current dictatorship, 
members rights have been obliterated.
    Strangely enough, what was once one of America's biggest unions, 
solidarity, democracy, and representation have been destroyed. Nearly 
all of the actions of current leadership mirror our corporate enemies 
and can only be viewed as antiunion. We can only hope the AFL-CIO 
leadership will recognize the futility of giving into McCarron's 
demands and show the testicle fortitude it takes to put the house of 
labor in order. In the UBC, it is the responsibility of the members to 
take their union back and replace all their top leadership.

                        Statement of Tom Crofton

    The UBC intervened in a contract negotiation in Madison, WI, in 
1999. After a 2-1 vote of the membership to reject the first proposal, 
the local officers, and District Council Staff did not follow through 
on their responsibility to give management a five day notice of a 
possible strike. We later learned that the management representatives 
called the International, and asked them to intervene. The 
International reps told the District Council to wait a few weeks. The 
members used this time to spend their vacation funds on their planned 
purchases, instead of saving them for apossible strike fund. Almost a 
month with no negotiations ended with a new vote, on the same contract. 
This vote occurred after the most intimidating and contentious meeting 
witnessed up to that time. The union staffers did not allow members to 
speak for their constitutionally promised 5 minutes. Every paid staffer 
spoke for the contract. Questions from the floor were not answered. The 
fact that the contract was already signed was not denied. Later, we 
found out that the union left 25 cents an hour on the table, proving 
that they were out to show they could control the members. We started a 
rank and file caucus as a result. In connecting with other caucuses 
around the continent, we discovered similar problems in other areas. 
Many others had long experienced International meddling in their 
affairs. One result of connecting was to join an effort to pass a 
constitutional amendment that would allow direct election of the top 
officers of the UBC, by the rank and file. This was called the Christie 
Amendment, after the pseudonym of the author. In attempting to follow 
the letter of the law, I personally tried to get a special meeting set, 
to consider this proposal. Positive votes at special meetings, in a 
specified number of local would insure that the resolution would be 
considered at the upcoming election. My local voted 66-1 to have a 
special meeting for this purpose. The officers of our local, in 
conjunction with the District Council (some positions overlapping) did 
not send out the required notice. When the time for receiving notice 
had elapsed, I filed a grievance with the General President, as 
required by the Constitution. I never received acknowledgment of that 
grievance. At the next regular meeting, the officers explained that 
they thought it was an advisory motion, and they decided not to do it. 
They then had minutes passed to reflect their changing history. Near 
the end of the meeting, I officially withdrew my grievance, as the 
basis for proving it correct had evaporated. At the next meeting, I 
attempted to bring up a motion to approve the amendment, without a 
special meeting, and was ruled out of order. This was illegal, because 
I was in order.
    I was elected to witness the Convention 2000, in Chicago, where 
approximately 10 million dollars of the members' funds were spent to 
further reduce their rights in running the organization. I witnessed 
the most corrupt political machine in my experience spend a week 
intimidating the handful of serious rank and file reformers present. 
Our speeches are available if you are interested in seeing where we 
stood on the issues. Following the convention, every reformer was 
attacked as retribution for standing up. Some locals who had won their 
offices where put under supervision. Some individuals were not given 
work assignments. The three locals in the lower half of Wisconsin were 
merged into one, and joined into the Northern Wisconsin Regional 
Council of Carpenters without any member involvement. Our monthly local 
meetings were canceled. Our dues were raised. Our delegate count was 
reduced. A member was threatened with violence for resisting. The 
driving time for our delegates to attend meetings went up from an hour 
average to three hour average. The delegate meetings are held during 
the day, requiring delegates to take two days off to attend. Few 
employers can accept that. Only the union can afford to let its people 
take off that much time, which disenfranchises the ranks that much 
more.
    In short, a corrupt political machine has installed itself in the 
place where brother/sisterhood is supposed to feel safe, to work for 
common good. Collective bargaining is replaced by high paid agents 
forcing contracts on disenfranchised dues payers. Our local covers 
25,000 square miles and has 2,000 members. Direct elections and votes 
on issues by the members, have been replaced by rubber stamping, all 
expense paid staffers, who elect their boss, so he can hire them back.
    The working people of this society need unions, but they need to 
retain real, functional control of them.
    This synopsis can be documented, and fleshed out in greater detail. 
Please feel free to ask for more.

  Statement of Darrell J. Zube, United Brotherhood of Carpenters and 
                                Joiners

    Given the recent examples of corporate misdeeds in the financial 
arena, can we reasonably expect full time employees in supervisory 
positions to stand up to the highest levels of management for what is 
right and honest?
    Where are any checks and balances for the ``CEO's'' and ``Boards of 
Directors'' of labor unions, should they ever lead their organization 
astray?
    Will there ever be any protection at all for the whistleblowers, 
that almost everyone hopes would come forward and tell of the misdeeds 
and misuse of power and position?
    Will there ever be true accountability to the full membership that 
finances these organizations? Members who only ask that their concerns 
get addressed and not just to be dragged down a path that that the 
clear majority disagrees with, but the minority upper echelon want to 
go.
    I am a member of The United Brotherhood of Carpenters and Joiners 
(UBC), and I believe this organization has taken this misuse of power 
to new depths, and I for one am not afraid to speak out about it.
    At the Carpenters General Convention in 2000 (where the incumbents 
set the rules that governed the process and procedures for that 
convention) the Constitution and the rules for the Subordinate Bodies 
(i.e. Locals and Regional Councils) were drastically changed. And rules 
that had been in effect for more than one hundred years were changed, 
without prior notification of the membership, or providing the 
opportunity for a referendum vote. Changes altering the basic structure 
of the organization were never voted on by the full membership. None of 
this was done to further empower the membership, but rather gave 
grossly disproportionate power to the incumbents. (Note: The US Court 
of Appeals for the First Circuit is waiting for a reply from the Secy. 
of Labor on why suit was not brought against the UBC for some of this)
    All of the changes were voted for by delegates largely (estimates 
of 65% to 70%) consisting of full-time Regional or International 
employees, or those who owed their employment to the power brokers. 
These delegates that are employees are not elected by the membership, 
but ``appointed'' by Regional or International operations. Did any 
full-time employees like these prevent the disasters at ENRON, World-
Com, Xerox, or even Arthur Anderson? And what happened to any 
unfortunates that did speak up?
    Other Delegates to this Convention, even if coming from the rank 
and file, can be highly influenced by the ``appointed'' 
representatives. This is because the appointed employee can influence 
the job assignments and opportunities of independently elected member-
delegates. In a labor force that works from one short job to the next, 
these assignments determine how much work and what kinds of work any 
other delegates are likely to receive. So there is a perceived, and 
frequently real, threat to their ability to earn a livelihood and 
support their families.
    The voting membership, which pays all of the full-time salaries, 
currently has no direct, even by recall vote, of influencing the 
``appointed'' officials imposed on them, or even the elected 
representatives--until the next election. You should also be aware that 
the ``appointed'' official has power over the access of work of anyone 
who would dare speak against the current system.
    The full membership of my local union, by a large margin, elected 
delegates who they trusted would speak out against the sweeping changes 
that were being proposed. All four delegates ran, and were elected, on 
this platform. The International immediately contested this election 
and made the local union hold it again. The results were that the same 
four delegates were elected by an even wider margin of victory.
    I was one of those delegates, and spoke out at each Caucus at the 
August 2000 convention, and at the Main Speakers platform. I believe my 
dissension was duly noted. But at this Convention, the incumbents held 
the stage, set the rules and controlled the microphones, so equal time 
for discussion was not granted.
    Our delegates were informed in private that our local union would 
probably face trusteeship (imposed supervision by the International 
organization) when we returned.
    Upon returning, The Executive Board, of which I was President, 
contacted the Dept. of Labor requesting classes and instructions on our 
rights and how best to avoid meeting the criteria for supervision, 
which is the imposition of trusteeship by the UBC International. Our 
Executive Board was given a training session by a Mr. Chuck Logan of 
the Dept. of Labor. The Board informed Mr. Logan then (Sept. 2000) that 
we believed the International was soon going to try to put us under 
supervision. A hearing (which our legal counsel was barred from 
attending) was held in February 2001, and in March, we were placed 
under trusteeship, approximately six months after standing up for the 
voices of the rank and file members at the Convention.
    We appealed to the Dept. of Labor, which investigated but came to 
no conclusion. I was informed that the courts routinely allow eighteen 
months trusteeship, but was told at a meeting at the Wash. D.C. office 
of Dept. of Labor, to call them after eighteen months and one day had 
passed, and possibly something could be done then. Phillip Lavallee and 
myself attended this meeting, as he was also on the local Executive 
Board, and had been a Delegate to the General Convention also.
    While in Wash. DC at this same time, Mr. Lavallee, and myself met 
with representatives of the Education and Workforce Committee. We both 
gave information on how unfair the current system in our union was to 
rank and file members, and how unlikely it was that the International 
would willingly give back any of it's newly gained power and control. 
Upon returning to Atlanta, immediately before attending our next union 
meeting, we were both asked by an International supervision employee 
``how our trip to Washington was''. It was obvious to us both, even 
though we shared the information of our trip with very few people that 
the International union had found out about our meeting.
    And now, as no surprise to anyone, with the imposed trusteeship 
coming on the seventeenth and eighteenth month, charges have been 
brought against Mr. Lavallee and for myself for actions taken under the 
last two Executive Boards. The charges brought against us have been 
placed by an International Vice-president, which means only full-time 
employees of the International will be on the Trial Committee. And if 
the current affairs in the financial world are any indication at all, 
You can bet any full-time employee is not going to stand up to upper 
management when their job may be on the line.
    Now just so you don't think this is some small coincidence, out of 
the possible eighteen people on the last two Executive Boards, only Mr. 
Lavallee and myself were the only ones brought up on charges.
    This Committee will not be able to do anything to help protect Mr. 
Lavallee or myself, and once again, we will probably be barred from 
having our counsel present. A ``fair'' trial will be the one where only 
full-time employees of the International, behind closed doors, with no 
outside witnesses, can come to the determination that both of us can be 
expelled for life, and the appeals process only goes to more full-time 
employees. Not to any impartial and qualified judge or jury, which most 
Americans would assume we would have a right to.
    But possibly, in the near future, safeguards can be put in place. 
Where maybe some other two people can come before this committee, tell 
of injustices within their own organizations, and then have some 
protections against risking their whole livelihoods, for stating their 
opinions and standing up for what they know is right.
    Thank You.

Statement of Thomas J. Verdone, Former Recording Secretary, Millwright 
                        Local 1693, Chicago, IL

    My name is Thomas J. Verdone.
    I was, up until this month, the Recording Secretary of Millwright 
Local 1693 which is one of an estimated 30+ union locals that make up 
the Chicago and Northeast Illinois District Council of Carpenters which 
in turn is a subordinate body of the United Brotherhood of Carpenter's 
and Jointers of America. I was elected by members looking for some 
accountability and democracy which has been in short supply in local 
1693. I started my term off by basically observing the operations of 
the local executive board and to my surprise and dismay I found that 
the EB led by full time staffers of the district council in the 
capacity of appointed business representatives and organizer were 
consistently involved in widespread malfeasance and fraud. These same 
individuals (at staff salaries paying in the area of $100,000.00 per 
yr.) also double as part time President, Vice President, and Financial 
Secretary/Treasurer collecting from the local approximately $2500./year 
for serving on the Local's Executive Board.
    I made an inquiry into the lack of financial reporting by the 
Financial Secretary/Treasurer and trustees. According to the U.B.C. 
constitution, they were in clear violation of their responsibilities by 
not reporting to the members the numerical and financial status of the 
local etc. My inquiry was met with mostly ambiguous rhetoric, double 
talk, and obstinate silence at that executive board meeting. In my 
capacity as recording secretary I brought this issue to light at the 
following monthly meeting by reading the minutes as my position 
requires. As a result, I was brought up on fraudulent charges of 
causing dissension which have up until this point been supported by the 
governing district council despite my consistent inquires for any proof 
of wrong doing. I believe from my research the money is being funneled 
from the local in what I believe is a scheme to draw as much money from 
the local as possible without the members' knowledge.
    In discussing this issue in great detail with the Department of 
Labor, they've stated that they can only pursue this issue if it's a 
matter embezzlement for personal gain and that diverting money from one 
organization to another, be it improper, is not a crime.
    Also there has been, with our most recent election, a plethora of 
procedural violations pertaining to election guideline also as outlined 
in the UBC Constitution:
    Members making nominations who were on the Ultra list* who should 
not have been on the Ultra list (violating Section 31)
    Members making nominations who were not on the Ultra list 
(violating Section 31)
    Retires appointed to serve on election committees (violating 
Section 31, Paragraph D)
    A candidate on a ballot who served on the election committee 
counting ballots (violating Section 31, Paragraph G)
    The Financial Secretary/Treasurer campaigning instead of tending to 
the books (violating Section 31, Paragraph G)
    Campaign literature containing false and misleading instructions in 
regards to voting requirements
    Campaign literature that falsely and maliciously singles out 
individuals and a specific contractor implying collusion (section 51A-
1)
    Contractor members on the Ultra list of members able to vote, be 
nominated, and run for office who should not be on the list (violating 
section 44, paragraph G)
    Contractor members voting in the election (violating section 44, 
paragraph G)
    The improper removal of a candidate three days before the election. 
In approaching the Department of Labor on these blatant violations, 
their response was less than enthusiastic due to the stringent 
guidelines they have to follow and the very limited powers allowed them 
in intervening during such corrupt situations. It is my hope and that 
of many union persons around the country that the U.S. Government step 
in and help the average worker from being exploited by the same 
organization which was established to protect them in their livelihood.
    We need laws to help us reform labor organizations that have gotten 
completely out of control.

 Statement of David Johnson, Carpenter's Union Local 44, Champaign, IL

    My name is David Johnson. I have been a member of Carpenters Union 
44 in Champaign, Illinois since 1977.
    For those of you who are not familiar with what a union is SUPPOSED 
to be, a union is a voluntary association of people of the same 
occupation or who work in the same industry. The members of a voluntary 
association, or union, pay dues money to support the functioning of 
their organization and to hire people to; represent them, and to 
perform clerical and administrative functions to support the 
organization. The members of a union are very similar to shareholders 
of a company, who decide who their executive officers and management 
are, and what policies and actions should be done to further their 
interests.
    What has happened in the Carpenter's union during the last several 
years has been an almost complete disenfranchisement of the dues paying 
membership in deciding; who our representatives are, what policies and 
actions should be done, how our pension fund monies and health 
insurance should be administered, and in many local unions, the right 
to decide what our working contract should contain and the right to 
approve it.
    By using loopholes in the current laws, and at times flagrantly 
disregarding the law, the bureaucrats of the Carpenters union have 
achieved this disenfranchisement and in addition have pursued a policy 
of intimidation, slander, interfering with the ability of Carpenters to 
obtain employment, and at times even used the threat of physical 
violence against individual Carpenters who have questioned and/or 
criticized actions and policies of the ``leadership''. Union officials 
who are paid with OUR dues money to represent us (and under the current 
law, required to represent us), have often times persuaded contractor 
employers to not hire critics and/or political opponents by slandering 
our abilities as craftsmen and/or have stated to management personnel 
that we are ``troublemakers'', implying that we will cause problems on 
jobsites.
    In my particular case, I began publishing a newsletter for working 
Carpenters in February 2000, and in August 2000, ran as a candidate 
against an incumbent vice president of our international union at the 
Carpenter's convention. Since then I have only worked an average of two 
to three months a year, when in the past I worked six to eight months a 
year on average.
    Fellows Carpenters who have witnessed the collusion between 
officials of the Carpenters union and management personnel of 
contractors, in preventing many Carpenters from being hired by various 
contractors, are frightened to come forward as witnesses and signing 
depositions out of fear of losing their current jobs and suffering a 
similar fate of long-term harassment and denial of future employment.
    When large numbers of Carpenters have attempted to make changes at 
their union meetings, the will of the majority has been totally 
disregarded, Roberts rules of order ignored, and the meeting adjourned 
against the vote of the majority of members present.
    When elected representatives of the membership have questioned 
policy and certain expenditures of funds at regional council meetings, 
they have been routinely shouted down and insulted by paid staff 
members of the council.
    Many of us Carpenters fear that with the current situation of 
unaccountability of union officials to the membership, that it is only 
a matter of time until we will lose our pension fund monies and become 
another ENRON scandal. A situation that would be devastating to 
hundreds of thousands of hardworking tax-paying carpenters, who do not 
want to end up dependent upon public aid, but instead proud self-
sufficient retirees.
    In conclusion, I would like to urge the committee in the best 
interests of fairness and a free democratic society, to increase the 
enforcement and penalties of current laws and enact new laws to enable 
all union members to hold their leadership and staff people accountable 
to the membership and to allow us the ability to govern ourselves 
without fear of reprisals and intimidation.
    Thank you.

           Statement of Jackie Fitzgerald, UTU Railway Worker

    I have worked for the railroad for 4 years, and I have never been 
able to vote for officials. Railroading is a 24/7 type business, and 
you can only elect officials when you attend meetings. The meetings 
have been held during times that are only accessible to older workers, 
thus creating an imbalance of power which favors the older worker.
    Recently, after having read the LMRDA, I found my union was 
conducting elections illegally and were keeping the younger railroaders 
from voting. I had discovered the LMRDA on the internet, and so I 
challenged my union. I immediately began telling all of my coworkers 
about our rights as workers, and found that they were very unaware of 
their LMRDA rights. I was able to cite the law to the international and 
it forced my local to change the way they handle elections. 
Unfortunately, the way the elections have been handled had hurt the 
younger worker severely.
    I also feel that union officials should have to be accountable for 
every day they lay off for union business. Too many officials take 
advantage of their positions for personal agendas.
    I also feel that my labor union in particular (UTU) has gotten into 
the practice of bargaining for groups of workers and not the whole. We 
will never be democratic if our elected officials continue to bargain 
on behalf of one group, while leaving out the other. This had truly 
divided railroaders against one another, thus leaving more power to the 
carriers. As a rank and file member of the UTU, I truly feel that they 
have lost their cause. We should be able to bring charges against our 
unions for lack of representation. I also feel that an employer should 
be able to ask a labor union to divide it's workforce. It is 
discrimination based on age.
    If you want more inputs, I could go on forever. The struggle I have 
been through with my union has encouraged me to pursue a law degree in 
labor. Workers have rights, and we need more lawyers on the workers 
side.

               Statement of Martin Conlisk, IBEW No. 134

    I am a 23-year member of the International Brotherhood of 
Electrical Workers, a journeyman wireman by trade in the construction 
industry. I am also a registered Democrat, vote for their candidates in 
every election. Only Allah knows why, since they won't even back their 
own candidates. Bush stole the election. Period.
    I am going to sign my name to this even though it will put me on 
another blacklist. I've been dogged by mysterious removals from the 
jobsite for many years. I am not a paranoid slacker, but I am a vocal 
proponent of democratic action and worker control. This same government 
of ours threw people like me in jail--remember the Palmer Raids? Well, 
many good citizens are suffering through the Ashcroft raids. I wouldn't 
doubt you'd advance my name to Homeland Security. Put me on another 
list, what the hell.
    So do I really think appealing to a bunch of millionaires to change 
the Law is going to help the average drone? Your bank accounts are full 
because of exploited labor. To see a group complain that they are 
exploited by their Boss AND their ``union'' has got to set you off 
rolling in the aisles with laughter. No, I don't expect anything from 
you.
    I stand with the men and women who came forward because that is 
where Right is. They are as lost and delusional as the rest of America, 
thinking that the government belongs to them. That may be a rough 
statement directed at my cocomplainers, but the fact that their hearts 
and minds continue to struggle for justice makes me want to help. Many 
tactics and battles have to be joined to achieve success. This is just 
the most distasteful to me personally. They are men and women with 
guts, willing to fight, no matter the odds. They are the light bearers 
in the dark world of organized labor. People like this are my friends. 
That is why I'm entering this statement, foolish or not.
    Currently, there is a civil lawsuit that has passed the 5 1/2 year 
mark with definitive proof my so-called ``leaders'' took over 411,000 
dollars from employers (Chathas v. Local 134, NE Illinois, Case No. 99C 
0400, Judge Zagel). They will not release 16 months of records, so the 
number is much higher. The case is still grinding away until the time 
is right to let them go. I have no faith in the judicial system. The 
suit was filed under Section 501 of the LMRDA. If you make the laws 
enforce them because during this time our hard fought legacy of over 
100 years has been sold, stepped on, been thrown out the window. My 
inalienable civil rights were taken away by these people when a group 
called ``the Alliance'' something they joined me to, makes me give them 
my body fluids on demand or face unemployment (with continuing dues 
payments, of course). I'm sure a judge somewhere will back them up, 
too. The lawyers get rich, the workingman loses. I forget, most of you 
are lawyers--another funny joke. And my Business Manager is a 
lawyer!!!--it's all just so down right hilarious. I get most of my mail 
from another group I never joined, an IBEW/NECA--becoming partners with 
the businessman, this is what is considered unionism today. I must be 
cracking you up, I know.
    I hold no illusions that however you twist the verbiage of this 
legislation it is somehow going to help working people in this country. 
They have to do it themselves and, more than likely, they are going to 
collide with the forces of the government you represent. I know what 
side of the police line you will be on. I will be with my friends 
there, too, looking at you.

 Statement of Michael Livingston, United Brotherhood of Carpenters and 
               Joiners of America Local 157, New York, NY

    Good day honorable committee members.
    My name is Michael Livingston. I am a carpenter out of Local Union 
157 United Brotherhood of Carpenters and Joiners of America. My Local 
operates in Manhattan, New York.
    I am making this statement because I believe that it is of extreme 
importance to amend the LMRDA and restore democracy to the members of 
all local unions. Recently our members, U.S. and Canada, have been 
restructured into a smaller group of district and regional council's 
throughout our countries. Our General President Douglas McCarron has 
appointed his people to head these councils, many of them to appointed 
paid staff positions and delegate spots. The People appointed by 
McCarron in New York are at best questionable. Before I tell you about 
them, I would like to refer back to the Statement of Douglas McCarron 
before the Subcommittee on Employer-Employee Relations U.S. House of 
Representatives on Thursday June 25, 1998.
    In this 36 page statement McCarron goes into detail about the need 
to restructure our union and eradicate corruption. McCarron uses New 
York in particular to emphasize how pervasive the corruption and 
organized crime influence is in New York. He goes on to make examples 
of all the different crime families that had a grip on union carpentry 
and the steps needed to cleanup the union. Much of McCarrons testimony 
is true. However, He handed over the New York City District Council to 
many of the same people that he claimed he needed to remove. McCarron 
fired honest people and kept the corrupt. He did this to further his 
own agenda knowing he couldn't be stopped because the membership could 
not elect their own Business agents and organizing personnel. See 
related articles marked exhibit A-D. Getting back to the questionable 
appointments that I referred to earlier, I would like to start with 
Mike Forde. Forde was appointed Business Agent by McCarron despite 
McCarron's knowledge of his involvement with organized crime. McCarron 
refused to intervene even after Forde was indicted in September of 2000 
on charges of enterprise corruption. Forde is currently the elected EST 
of the NYC District Council of Carpenters in NY and still awaiting 
trial. Martin Devereaux was another BA appointed by McCarron. Devereaux 
and Forde were both involved in the same conspiracy to defraud the UBC. 
Devereaux was charged and found guilty by the court appointed Internal 
Review officer but McCarron refused to take disciplinary action. Martin 
Devereaux is still a paid Business agent. I ask this committee to 
consider why McCarron refused to impose a trusteeship on NY in light of 
the corrupt circumstances while he indiscriminately imposed a 
trusteeship on Local 225 in Atlanta after two failed attempts to 
install his own people? See testimony of Phillip Lavallee and Darrel 
Zube. In closing McCarron stated that he believed there was no need to 
amend the LMRDA sugar coating his methods while basically 
disenfranchising the members. He has complete control over the hiring 
and firing of Business Agents, Organizers and Labor Management staff, 
the majority of whom decide what happens to our union. I could tell you 
many stories of the corruption in New York, I have documented many 
cases. I have provided a copy of the Statement of Doug McCarron and 
news articles regarding some of the corruption that still exists. 
Please remember McCarron controls our political contributions but he 
can't control our vote. Thank you for taking the time to read this 
statement.
                                 ______
                                 

 SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN SAM JOHNSON, FROM ARTHUR 
L. FOX II, LAW OFFICES OF LOBEL, NOVINS & LAMONT, WASHINGTON, DC, JUNE 
                                24, 2003

                     Law Offices of Lobel, Novins & Lamont,
                                     Washington, DC, June 24, 2003.
Hon. Sam Johnson,
House of Representatives,
Rayburn Office Building, Washington, DC.

Re H.R. Nos. 992, 994.

    Dear Congressman: I write to furnish background information 
concerning Section 105 of the Labor Management Reporting and Disclosure 
Act of 1959 (``LMRDA'') with which to assess the need to amend existing 
law.
    First, so as to enable you to assess my own bona fides and ability 
to speak knowledgeably on the subject, I should explain that I have 
been practicing public interest labor law in Washington, D.C., for 35 
years, 4 years with the Office of General Counsel of the National Labor 
Relations Board, 19 years with the Public Citizen Litigation Group, and 
the past 12 years in ``private'' practice, primarily representing 
``dissident'' union members and caucuses attempting to reform and 
democratize their unions. I am one of a scant handful of lawyers in the 
nation who has extensive experience litigating under, and attempting to 
breathe life into, the LMRDA.
    During most of my career, I have served on the Board of Directors 
of the Association for Union Democracy (``AUD''), whose principles and 
objectives mirror my own. I believe that a strong, healthy, and robust 
union movement enhances not only the economic welfare of its members 
and working men and women more broadly, but also the health of our 
nations' democracy by helping to give voice to a major and very 
important segment of our society.
    After many years of attempting to educate union members about their 
rights, and their union officers' responsibilities, under the LMRDA, 
and realizing that most union members were totally unaware of this 
statute, due in part to their unions' utter failure to comply with the 
Section 105 duty to inform their members about it, AUD launched a 
campaign to obtain union compliance with that duty in the mid-1990's.
    In fairness to unions, while Section 105 requires them ``to inform 
[their] members concerning the provisions of [the LMRDA],'' Congress 
provided no guidelines; it failed to specify ``when,'' ``where,'' or 
``how'' unions would be expected to fulfill their duty to inform. 
Indeed, immediately after enactment of the LMRDA in 1959, there was 
much discussion and inconclusive debate as to what would constitute 
compliance. A number of unions reproduced the text of the entire Act in 
their membership newspapers. Thereafter however, over the next 40 
years, no union took any additional steps to inform its members about 
their rights under the LMRDA.
    The primary reason for this hiatus--apart from the statute's 
vagueness--lies with the fact that the Section 105 duty to inform is 
part of Title I, a hastily drafted portion of the statute which was 
appended to the Senate Bill at the 11th hour, as a floor amendment that 
was subsequently adopted pro forma by the House. And, with one minor 
exception, union members were assigned the exclusive right, and 
responsibility, for enforcing virtually all of Title I, including 
Section 105, by filing individual lawsuits in federal courts against 
their unions to remedy infractions. This enforcement scheme prompted 
Professor Archibald Cox, counsel to the Senate Committee, to express 
concern:

          The effectiveness of the new law will depend largely upon the 
        initiative and energy of union members. * * * [T]here is the 
        danger, often expressed in the past, that individual employee's 
        suits are neither an effective sanction nor a practical remedy. 
        Workers are unfamiliar with the law and hesitate to become 
        involved in legal proceedings. The cost is likely to be heavy, 
        and they have little money with which to post bonds, pay 
        lawyer's fees and print voluminous records. * * * Even if the 
        suit is successful, there are relative few situations in which 
        the plaintiff or his attorney can reap financial advantage. 
        Most men are reluctant to incur financial cost in order to 
        vindicate intangible rights.

Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 
1959, 58 Mich. L. Rev. 819, 852-53 (1960).
    This prophecy certainly held true insofar as Section 105 was 
concerned. It was not until the late 1990's that a Machinist by the 
name of Keith Thomas, aided by AUD and a pro bono attorney with a large 
New York law firm, filed the very first lawsuit against a union seeking 
to compel it to comply with the Section 105 duty to inform. See Thomas 
v. IAM, 201 F.3d 517 (4th Cir. 2000). As that 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 granted them. Moreover, section 105 mandates 
        notification not only of the provisions of Title I, but of all 
        the rights found in the LMRDA.
          Section 105, in addition to informing union members of their 
        substantive rights under the LMRDA, also notifies them of 
        provisions authorizing causes of action against unions for 
        infringements of these substantive rights.

201 F.3d at 520. The appellate court remanded the case to the district 
court which ultimately entered an order (attached as Addendum A), 
negotiated by the parties, requiring the Machinist Union to publish a 
one-page outline of the LMRDA in its magazine, to furnish new members 
with a copy of that outline, and to post it on its website.
    Subsequently, given that Thomas is binding only on the IAM, most 
other unions have continued to ignore the Section 105 duty to inform 
their members about the LMRDA. Only when a member, most often with my 
assistance, sends his or her union a ``demand letter'' insisting that 
the union comply with the duty to inform, has a union done anything, 
and then only begrudgingly. Indeed, AUD recently compiled a Section 105 
union-compliance ``score card'' which I am attaching as Addendum B.
    Only one other court has issued a decision interpreting Section 
105. In Callihan v. United Assn Plumbers, another district court 
rejected the plaintiffs' argument that furnishing members with a 1-page 
outline at a single point in their lifetime as a union member failed to 
inform them of their rights under the LMRDA since the odds were that 
few members would have much interest in the subject they encountered 
some difficulty, e.g., running for office, voting, discovering some new 
dues exaction, or defending against internal disciplinary charges. The 
plaintiffs demonstrated with a wealth of expert testimony that, at a 
bare minimum, unions should append a summary of the LMRDA at the rear 
of their constitutions which serve as the members' ``Bible'' which they 
must consult to become informed of their rights and duties as members, 
and the procedures which must be followed to secure those rights. That 
decision (Addendum C) is currently on appeal before the U.S. Court of 
Appeals for the District of Columbia. Copies of the parties Briefs, but 
not the lengthy Appendix including expert testimony, are attached as 
Addendum D-F.
    Whatever the ultimate outcome of the Callihan case, while it may 
provide ``guidance'' to other unions headquartered in Washington, D.C., 
it will be binding on just one more union, the Plumbers and 
Pipefitters, in a universe that includes hundreds of national unions, 
and thousands of other union entities. If experience is a guide, many, 
if not most of these unions will do nothing to comply with Section 105 
until it becomes enforceable, in a practical sense. As Professor Cox 
noted, union members simply cannot be expected to file hundreds of 
lawsuits. Moreover, there exists the potential in the relatively few 
lawsuits that do get filed for other courts, located elsewhere in the 
country, to render still other, possibly inconsistent, interpretations 
of the Section 105 duty to inform in those relatively rare instances 
where members are able to obtain competent legal counsel to sue unions 
headquartered elsewhere to obtain compliance with the duty.
    This ``state of affairs'' does not, in my view, serve the public 
interest, the interest of union members, and not even the legitimate 
interests of unions, themselves. There needs to be a single, uniform, 
set of standards, guidelines, or procedures setting forth specifically 
what unions must do, when, where, and how, to fulfill their Section 105 
duty to inform their members about their rights, and their officers' 
duties, under the LMRDA, and how to enforce those rights and duties. 
While Congress could attempt to agree upon, and then to enact a statute 
prescribing standards and procedures, I submit that a wiser and more 
expedient course for filling the Section 105 statutory void would be to 
delegate that responsibility, via rulemaking, to the Department of 
Labor, and to confer upon it the right to initiate legal actions to 
exact compliance with its rules. And that is precisely what H.R. 992 
and 994 are intended to accomplish; no more, and no less.
    Thank you for making this submission a part of the hearing record 
on these two important bills. If you or any other Member should have 
any questions or desire additional information, I would be happy to be 
of assistance.
            Respectfully,
                                                 Arthur L. Fox, II.
    Attachments A-F.

                               ADDENDUM A

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH THOMAS, et al., Plaintiffs, v. THE GRAND LODGE OF THE 
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al., 
Defendants.

Civil No. PJM 97-2001
                              final order
    Upon consideration of the parties' written proposals and the 
hearing held August 28, 2000, on the notification to be made by 
Defendants to comply with Sec. 105 of the Labor-Management Reporting 
and Disclosure Act of 1959 (the ``LMRDA''), 29 U.S.C. 415, it is
    ORDERED that the summary of the LMRDA annexed as Attachment 1 to 
Defendants' letter to the Court dated May 26, 2000 (the ``LMRDA 
Summary''), is, with the following revisions, hereby deemed adequate 
information concerning the provisions of the LMRDA: (1) the third and 
last sentence of the first paragraph (``For more information contact 
the nearest OLMS field office listed on the reverse.'') shall be 
deleted; and (2) the name and address of the U.S. Department of Labor 
at the bottom of the Attachment shall be replaced by the following: 
``The above is only a summary of the LMRDA. The full text of the Act, 
which comprises Sections 401-531 of Title 29 of the United States Code, 
may be found in many public libraries, by writing the U.S. Department 
of Labor, Office of Labor-Management Standards, 200 Constitution Ave., 
N.W., Rm. N-5616, Washington, DC 20210, or on the Internet at 
www.dol.gov.'' The IAM may, if it chooses, state on the LMRDA Summary 
that the Summary is being published pursuant to the Court's order, that 
the Summary is not the editorial product of the IAM, or words to 
similar effect. In each instance where the IAM publishes the LMRDA 
Summary pursuant to this Order, the format of the LMRDA Summary shall, 
except where expressly noted in this Order, be substantially identical 
to the abovementioned Attachment 1; and it is further
    ORDERED that each new member of Defendant Grand Lodge of the 
International Association of Machinists and Aerospace Workers (the 
``IAM'' or ``union'') shall receive a copy of the LMRDA Summary as part 
of the ``IAM Owners Manual'' annexed in draft form as Exhibit A to 
Defendants' letter to the Court dated July 31, 2000. The LMRDA Summary 
shall be as similar as practicable in format to Defendants' Attachment 
1 to their letter of May 26, 2000, allowing that the IAM Owners Manual 
may be printed in a format with pages smaller than 8.5 x 11 inches. The 
LMRDA Summary shall be listed in the Table of Contents to the IAM 
Owners Manual in a manner similar to the listings for its other 
sections or parts; and it is further
    ORDERED that the IAM shall publish the LMRDA Summary in three 
issues of the IAM Journal, to wit, one issue each to be published (i) 
within six months of the date of this Order, (ii) in the calendar year 
2004, and (iii) in the calendar year 2008, but such publication shall 
not be made in an issue that also includes the IAM's notice pursuant to 
Beck v. Communications Workers of America, 487 U.S. 735 (1988). Each 
such notice shall be listed in the Table of Contents to the IAM Journal 
in a manner similar to the listing for other articles or items 
published in the same issue; and it is further
    ORDERED that the IAM shall post the LMRDA Summary continuously on 
the home page of its website on the Internet/World Wide Web under the 
title ``Union Member Rights and Officer Responsibilities Under the 
LMRDA.'' Said posting shall be in a typeface and style no less 
prominent than any other optional link.
                                         Peter J. Messitte,
                                      United States District Judge,
                                                September 19, 2000.

                               ADDENDUM B

       Is Your Union in Compliance With Section 105 of the LMRDA?

    Unions covered by the Labor Management Reporting and Disclosure Act 
(LMRDA) are required to notify members of their rights under the law. 
Section 105 of the LMRDA states: ``Every labor organization shall 
inform its members concerning the provisions of this Act.''
                    section 105 compliance scorecard
    When the LMRDA was first adopted in 1959, a few unions--very few--
took a limited one-time step to comply. Forty years pass. An old 
generation of unionists is replaced by a new one. Unions ignore the 
law. With one minor exception, there is no compliance until September 
2000 when two machinists are successful in their federal lawsuit to 
compel their union to comply.
    On this scoreboard, to be updated from time to time, AUD will 
record the story of Section 105 compliance--or evasion. To get your own 
national or international union on the list, you must begin by formally 
requesting it to comply. For further information, contact AUD. We are 
currently assisting members of a number of unions with Section 105 
cases.
    Compliance:
     MMP. Masters, Mates, and Pilots: An exceptional case. 
Several years ago, when Arthur Holdeman was MMP vice president for the 
Gulf, he reprinted the Act and distributed copies to all licensed deck 
officers in his constituency at his own expense. Some years later, even 
before the court's decision in the IAM case, the MMP national office 
published a summary of the Act in its newsletter.
     IAMAW. International Association of Machinists: After 
losing a lawsuit in federal court, the union agreed to permanently post 
a summary of the Act on its website, to distribute a copy to new 
members, and to publish it in the IAM Journal in the years 2000, 2004, 
and 2008.
    Partial Compliance:
     UAW. United Auto Workers: In December 2002, seemingly on 
its own in initiative, it posted the full text of the Act on its 
website with a prominent paragraph on its home page directing readers 
to it. No publication or other distribution of the summary, however.
     UA. United Association of Plumbers and Pipefitters: Faced 
with a lawsuit filed by two members, the UA agreed to publish a summary 
of the Act in its Journal in 2001, 2004, and 2008 and to distribute the 
summary to new members. When the district court ruled that these 
actions constituted sufficient compliance, attorney Arthur Fox appealed 
and asked the Federal Circuit Court to go beyond the Machinist standard 
and require the UA to append the summary at the rear of its 
constitution booklet as well as to post it on its website.
     HERE. Hotel Employees and Restaurant Employees: In a 
February, 2002 letter to Arthur Fox, HERE President John Wilhelm 
promised to publish the full text of the Act in its magazine once every 
year in order to avoid a threatened lawsuit.
     SIU. Seafarers' International Union: In response to a 
threatened lawsuit, it began publishing a summary of the Act as part of 
the President's ``Know Your Rights'' column that appears in every issue 
of its newspaper.
    Limited and Evasive Compliance:
     Ironworkers Union: After being threatened with a lawsuit, 
it published the summary in the June, 2001 issue of the Iron Worker 
magazine. Nothing More.
     UTU. United Transportation Union: After being threatened 
with a lawsuit, it promised to abide by the Machinist decision and 
promptly posted the summary on its website and published it once in its 
magazine. However, it subsequently removed the website notice, thereby 
casting doubt on its readiness to remain in continuing compliance.
     UBCJ. United Brotherhood of Carpenters: In an apparent 
effort to forestall a threatened lawsuit, it printed a summary of the 
Act in an issue of its Journal on dark blue paper which cannot be 
photocopied. Nothing more.
     NALC. National Association of Letter Carriers: In response 
to a member's demand and a threatened lawsuit, it published a summary 
of the Act in the February, 2002 Postal Record. Nothing more.
    Non-Compliance:
     IATSE. International Alliance of Theatrical and Stage 
Employees: At its 2001 convention, a group of delegates introduced a 
motion to require the union to post a summary of the Act on its 
website. Motion defeated.
     NTEU. National Treasury Employees Union: In rejecting a 
member's demand in 2001, NTEU President Colleen Kelley asserted that 
because her union represented government employees, it was exempt from 
any duty to inform its members about their statutory, democratic 
protections.
     US DOL. United States Department of Labor: it does not 
have authority to compel unions to comply with Section 105, one reason 
unions have been able to ignore their duty to inform members about 
their rights under the LMRDA for the past 40-plus years. (A bill is 
pending in Congress to give the DOL enforcement authority.) However, 
the DOL does have responsibility under the Civil Service Reform Act of 
1978 for protecting the rights of federal unionists, rights that 
parallel those in the LMRDA. And, for the past 25 years, the DOL has 
failed to compel federal unions (including NTEU) to inform their 
members about their democratic rights. In the Spring of 2002, AUD 
petitioned the DOL to promulgate a new rule that would mimic section 
105 and require unions representing federal workers to inform their 
members about their rights (see below). DOL has not responded to the 
petition.

                               ADDENDUM C

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES CALLIHAN, et al., Plaintiffs, v. UNITED ASSOCIATION OF 
JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY, 
et al., Defendants.

Civil Action No. 00-2988 (JR)
                               memorandum
    On March 6, 2002, I issued an order declaring Section 199 of the 
Constitution of the United Association of Journeymen and Apprentices of 
the Plumbing and Pipe Fitting Industry inconsistent with 29 U.S.C. 
Sec. 411(a)(2) and therefore invalid, together with a memorandum 
explaining that ruling. On March 14, 2002, I implemented that ruling 
with an order requiring the defendants to publish the March 6 
memorandum and order in the U.A. Journal in no less than 11 point type 
under a specific heading in 22 point bold and to include a reference to 
the memorandum and order in the table of contents. The memorandum and 
order were printed in the June issue of the U.A. Journal, but without 
the heading or the reference in the table of contents. Plaintiff has 
moved to compel full compliance with the March 14 order.
    The Union's position that it ``substantially complied'' with the 
March 14 order is rejected. The order very specifically required a 
heading, in boldface, 22 point type, and a reference in the table of 
contents. The Union will have to do it again, and do it correctly.
    The parties' dispute about Section 199 of the U.A. Constitution was 
only one of two discrete disputes presented by the complaint in this 
case. The other one, which concerns the adequacy of the Union's 
compliance with section 105 of the Labor-Management Reporting and 
Disclosure Act of 1959 (``LMRDA''); 29 U.S.C. Sec. 415, is now ripe for 
decision, having been fully briefed by both parties on cross motions 
for summary judgment.
    Prior to this lawsuit, the Union had promulgated the contents of 
the Landrum-Griffin Act to its membership only once in 42 years--when 
it was first enacted. The plaintiff by his insistent demands has 
succeeded in achieving publication of a one-page summary of union 
member rights and officer responsibilities under the LMRDA in the U.A. 
Journal in March 2001; modification of the welcome letter distributed 
by U.A. locals to new members to include a summary of provisions of the 
Act; and Union agreement to republish the summary in the U.A. Journal 
again in 2004 and 2006. Not satisfied with those concessions, however, 
he prays for injunctive relief.
    Section 105 of the Landrum-Griffin Act provides that ``[e]very 
labor organization shall inform its members concerning the provisions 
of this chapter.'' Plaintiff insists that Union membership is not 
``informed'' by periodic or obscure publications of the Act, or by the 
publication of a summary of the Act prepared by the United States 
Department of Labor. In the record of this case, plaintiff has adduced 
expert testimony (by affidavit) of a number of distinguished scholars, 
union leaders, union newspaper writers, and others for the proposition 
that union members are generally uninformed about the contents and the 
significance of the. Landrum-Griffin Act, and even about its existence. 
The point of this expertise is clear and persuasive--but it is not 
susceptible of a judicial remedy.
    The Department of Labor has never issued regulations implementing 
Sec. 105, and it is undisputed that the Department ``neither possesses 
nor asserts the authority to direct labor unions to use any particular 
means in carrying out their statutory duty to `inform.' '' Def. Mem. at 
p. 7. The only legal (as distinct from scholarly and political) 
authority for plaintiff's position is found in the Fourth Circuit's 
decision in Thomas v. Int'l Assoc. Machinists, 201 F.3d 517 (2000). In 
that decision, the Fourth Circuit held that a one-time notification of 
members in 1959 by the International Association of Machinists ``did 
not inform a large portion of those individuals who by definition are 
`members' of the union'' today, id. at 519. The Fourth Circuit did not 
say how today's union members were to be informed (although it did 
observe that the inclusion of some protections of the Landrum-Griffin 
Act in the union constitution and in a pamphlet was not satisfactory, 
because those IAM materials did not contain all of the Act's 
protections and virtually none of the rights listed by those documents 
were presented as requirements of federal law, id. at 521). Instead, it 
remanded the case for the district court to fashion an appropriate 
remedy. The district court's final order provided, essentially, that 
the Labor Department's summary, revised only to state that the full 
text of the Act is available elsewhere, is adequate information 
concerning the provisions of the LMDRA; that the summary is to be sent 
to new members of the IAM; that the summary is to be published in three 
issues of the IAM Journal, in 2001, 2004 and 2008; and that the summary 
is to be published continuously on the IAM's website. Final order of 9/
19/00, Afft. of Arthur L. Fox, Ex. B.
    Except for website publication, which is a good idea and which 
common sense commends to every union having a website, those provisions 
are virtually identical to what will be done here under the agreement 
that plaintiff has extracted from the Union. Nothing further is 
required to achieve compliance with the command of the statute.
    An appropriate order accompanies this memorandum.
                                           James Robertson,
                                      United States District Judge,
                                            Dated: August 12, 2002.

                               ADDENDUM D

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 02-7111

CHARLES CALLIHAN, et al., Plaintiff-Appellants. v. UNITED ASSOCIATION 
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, 
et al., Defendant-Appellees.
                           appellants' brief
                              jurisdiction
    Plaintiff-appellants are union members seeking to remedy their 
union's 42-year failure to inform its membership about their rights, 
and their officers' responsibilities, under the Labor-Management 
Reporting and Disclosure Act of 1959 (herein, ``LMRDA''), as required 
by Section 105. 29 U.S.C. Sec. 415. Jurisdiction in the District Court 
was predicated on 29 U.S.C. 412, and 28 U.S.C. 1331.
    The District Court denied plaintiff-appellants' motion for summary 
judgment, granted defendant-appellees' cross-motion, and entered a 
final judgment dismissing this action on August 13, 2002. Notice of 
appeal was filed on September 12, 2002. This Court has jurisdiction 
pursuant to 28 U.S.C. Sec. 1291.
                         statement of the issue
    Whether the UA's publication of a one-page summary of the LMRDA in 
the UA Journal, and inclusion in the welcome packet sent to new 
members, satisfies its obligation under Section 105 to inform its 
members concerning the provisions of the Act.
                        statutes and regulations
    Section 105 of the LMRDA provides: ``Every labor organization shall 
inform its members concerning the provisions of this Act.'' 29 U.S.C. 
Sec. 415.
                           standard of review
    Because this appeal is from a decision granting summary judgment, 
review by this Court is de novo. See, e.g., Grilvin v. Fire, 259 F.3d 
749, 756 (D.C. Cir. 2001).
                         statement of the case
Procedural History
    After exhausting intra-union appeals for more than four months and 
obtaining no meaningful relief, plaintiff appellants filed a two-count 
complaint on December 13, 2000, alleging (1) that a provision in the 
constitution. of the United Association of Journeymen and Apprentices 
of the Plumbing and Pipefitting Industry (herein, ``UA'') mandating the 
expulsion of members ``found guilty of sending out circular letters of 
falsehood and misrepresentation'' unlawfully chilled and infringed 
their LMRDA Title I free speech rights, 29 U.S.C. 411(a)(2), and (2) 
that the UA had, for the previous 42 years, failed and refused to 
inform its members about their rights, and their officers' 
responsibilities under the LMRDA, also in violation of Title I of that 
Act, 29 U.S.C. Sec. 415. Docket No. 1.
    On March 6, 2002, the district court entered a memorandum opinion 
and order granting plaintiff-appellants' motion for partial summary 
judgment on their free speech claim, finding the challenged 
constitutional restraint on member speech to be unlawful and ordering 
the UA to remove it from its constitution and to inform its members 
that the provision had been judicially invalidated. Docket Nos. 24, 28.
    Thereafter, at an April 2, 2002 status conference, counsel for the 
UA informed the court that it had recently published a one-page summary 
of the LMRDA in the UA Journal and had begun sending a copy of the 
Summary to new members. Counsel contended that, by these actions, the 
UA had brought itself into full compliance with Sectiou 105. Although 
no discovery had been conducted, no record developed, and no briefs 
filed, the court opined that

        it is not the province of this Court to fine tune [the Section 
        105 duty] so as to decide [that an LMRDA summary] has to be on 
        the [union] website or printed on the back of the constitution 
        [as plaintiffs requested] . . .
          Publication in a journal that is sent to every dues-paying 
        member plus the issuance to every new member of a one-page 
        summary seems to me to be adequate compliance with the bare 
        bones--with the very bare bones statutory provision.
          Now I'll rule that way and put together a very short 
        memorandum, and you can take that up if you want to see if you 
        can get a different ruling from our circuit or a split in the 
        circuits, Mr. Fox; or, if you choose, one side or the other can 
        launch another whole series of motions, and I'll decide them.

JA 108. When plaintiffs' counsel responded that he wanted ``to develop 
[a] record in the form of affidavits at a bare minimum,'' the court 
promptly directed, ``you file your motion for summary judgment since 
the facts are undisputed.'' Id.
    Subsequently, plaintiff appellants filed a motion for summary 
judgment supported, inter alia, by a number of affidavits from labor 
union experts, a PhD thesis examining union official (as opposed to 
member) knowledge and awareness of the LMRDA, and empirical evidence of 
recent actions by other unions to bring themselves into compliance with 
Section 105. True to its word, the court promptly denied the motion, 
dismissed the Section 105 claim, and entered final judgment on August 
13, 2002. In its opinion, the court noted that

        plaintiff has adduced expert testimony (by affidavit) of a 
        number of distinguished scholars, union leaders, union 
        newspaper writers, and others for the proposition that union 
        members are generally uninformed about the contents and the 
        significance of the Landrum-Griffin Act, and even about its 
        existence. The point of this expertise is clear and 
        persuasive--but it is not susceptible of a judicial remedy.

JA 10.\1\ After briefly reviewing the final order issued in the only 
other case of record where a union member sued his union to gain 
compliance with Section 105, the court below held:

    \1\ The experts included: Professor Clyde Summers, who was at Yale 
Law School when he served as an advisor to Senator John F. Kennedy who 
floor-managed the Senate's Bill which became the core of the LMRDA (JA 
38, 40), and who drafted Title 1, see Brown v. Lowen, 857 F.2d 216, 218 
(4th Cir. 1988), aff'd en banc, 889 F.2d 58 (1989), aff'd sub nom, 
Masters, Mates & Pilots v. Brown, 498 U.S. 466 (1991); Herman Benson, 
founder of the Association for Union Democracy, who has worked with 
thousands of unionists, academics, and union officials to promote the 
goals of the LMRDA since it was enacted (JA 44); William Fletcher, who 
has held a number of key organizing and education positions in various 
unions, most recently, Education Director of the AFL-CIO where he also 
served as Special Assistant to President John Sweeney (JA 55-56); 
Martin Fishgold and Andy Zipser, editors of union publications (JA 58, 
62); and Ken Paff, who has been at the center of the movement to reform 
and democratize the Teamsters Union since its inception in the mid-
1970's (JA 64-65).
    Citations to their testimony herein will not only identify the 
appropriate page in the Joint Appendix (``JA''), but also the affiant 
and specific paragraph in his affidavit.

          Except for website publication, which is a good idea and 
        which common sense commends to every union having a website, 
        those provisions are virtually identical to what will be done 
        here under the agreement that plaintiff has extracted from the 
        Union. Nothing further is required to achieve compliance with 
---------------------------------------------------------------------------
        the command of the statute.

JA 11.
Statement of Facts
    The plaintiff-appellants are members of the United Association 
(``UA''). JA 14 (para.para. 1-2). Prior to the filing of this lawsuit 
in December of 2000, the UA had not informed its members, including 
appellants, concerning their rights, and their officers' duties, under 
the LMRDA since October of 1959, when it published the entire text of 
the LMRDA in the UA Journal. JA 14 (para. 3). Thus, during the balance 
of the 20th Century, the UA took no further steps systematically to 
inform its membership concerning the provisions of the LMRDA. JA 14 
(para. 4), 18-19.
    After the Fourth Circuit ruled in. Thomas v. Int'l Ass'n of 
Machinists, 201 F.3d 517 (2000), that the Section 105 duty to inform 
members about the provisions of the LMRDA was a continuing duty, not 
satisfied by a one-time publication of the Act in 1959, plaintiff 
Callihan sent a letter, dated May 24, 2000, to UA General President 
Maddaloni informing him about the Thomas decision and demanding that he 
bring the UA into compliance with Section 105. JA 14 (para. 5), 22 
(para. 5), 25. Four months later, having received no response from 
Maddaloni, Callihan sent a second demand letter, dated September 24, 
2000, in which he requested that Maddaloni furnish him with a response 
no later than October 20, 2000. JA 14 (para. 6), 22 (para. 5), 26-27. 
When Maddaloni still had not replied by December 13, 2000, Callihan 
filed this action, inter alia, to compel. the UA to comply with Section 
105. JA 15 (para. 7), 22 (para. 5).
    Thereafter, in a letter to plaintiffs' counsel dated January 29, 
2001., UA counsel represented that the Union would publish in its 
membership media organ, and distribute to new members, a one-page 
Summary, captioned ``Union Member Rights and Officer Responsibilities 
Under the LMRDA.'' JA 15 (para. 8), 87. That Summary was, in fact, 
published in the March 2001 UA Journal which was sent to all members. 
JA 15 (para. 10). The UA also modified the ``Welcome Letter'' 
distributed to new members to include the following language: 
``Finally, we enclose a summary of provisions of the Labor Management 
Reporting and Disclosure Act.'' JA 15 (para. 11), 98. And, after a 
further exchange of correspondence between counsel, the UA agreed to 
republish the Summary of the LMRDA in the VA Journal again in 2004 and 
2008. JA 15 (para. 12), 94.
    Although plaintiffs' sought to have the UA post the Summary on its 
website and append it at the back of its printed constitution booklet, 
the UA refused to do so absent a court order which was not forthcoming.
                          summary of argument
    When enacting the LMRDA, Congress intended to create within labor 
unions a new regime of individual rights, democratic governance and 
ethical practices. And it assigned to union members a central role not 
only in the governance of their unions, but also in the enforcement of 
the LMRDA. Section 105 is not just an integral part of that scheme, it 
is the cornerstone of the Act. If members are not informed of their 
rights as well as their officers' obligations under the Act, they can 
hardly be expected to play the role Congress assigned to them.
    Perhaps realizing that this case would likely be appealed, whatever 
the outcome, the district court gave it short shrift. In doing so, the 
court construed Section 105 narrowly,ignoring legions of caselaw 
holding that, as a remedial statute, the LMRDA. must be construed 
broadly in order to achieve Congress' overriding, democratic 
objectives.
    UA members did not become informed about the Act upon receipt of 
what amounts to a one-time legal notice. Rather, the Section 105 duty 
to inform members can only be met if the UA furnishes its members, on 
an ongoing basis, with a Summary of their LMRDA rights which is readily 
available to them on those occasions when they have reason both to need 
and to want to learn about their rights, and bow to enforce them. That 
obligation can only be net by appending the Summary to the UA 
Constitution booklet which serves as the members' legal bible, and by 
posting the Summary on the UA website.
                                argument
Introduction
    To understand why the UA's alleged compliance does not fulfill its 
statutory obligation under Section 105, it is first necessary to review 
the political framework Congress established through the LMRDA and the 
role of Section 105 within it. Thereafter, we will consider what 
constitutes compliance with Section 105 and whether, as the district 
court concluded, the Section is merely a ``bare bones,'' legal-notice-
type requirement, or something more useful and informative.
A. The LMRDA Was Intended To Create A New Political Order of Union 
        Democracy, Ethical Practices and Member Enforcement
    Through the LMRDA, Congress created a political order within labor 
unions based on democracy, disclosure, ethical practices, and 
accountability. Congress' ``primary objective'' in passing the Act was 
to ``ensur[e] that unions would be democratically governed and 
responsive to the will of their memberships.'' Finnegan v. Leu, 456 
U.S. 431, 436 (1982). Its enactment followed two years of highly 
publicized hearings on union corruption by the Senate Select Committee 
on Improper Activities in the Labor-Management Field, chaired by 
Senator John McClellan. Wirtz v. Local 153, Glass Bottle Blowers 
Ass'n., 389 U.S. 463, 409-70 (1968). The McClellan Committee heard 
voluminous testimony concerning: union racketeering and the oppression 
of union members by autocratic officials; the misuse of union funds; 
reprisals, including violence, against members for expressing their 
views, seeking union office, or otherwise participating in union 
affairs; the imposition of trusteeships over local unions for the 
purpose of manipulating politics and suppressing dissent; and all sorts 
of electoral chicanery. S. Rep. No. 1417, 85th Cong., 2d Sess. (1958) 
(interim report); S. Rep. No. 1139, 86th Cong., 2d Sess. (1960) (final 
report).
            1. The LMRDA
    The LMRDA established a detailed, albeit limited, scheme to 
regulate labor organizations; it conferred upon members, and sought to 
protect, various democratic rights. Title 1. which contains Section 
105, is captioned the ``Bill of Rights of Members of Labor 
Organizations.'' It guarantees members a right to equal participation 
in union affairs, 29 U.S.C. Sec. 411(a)(1), to free speech and 
assembly, 29 U.S.C. Sec. 411(a)(2), to a democratic voice when raising 
dues and other financial assessments, 29 U.S.C. Sec. 411(a)(3), to seek 
judicial relief, 29 U.S.C. Sec. 411(a)(4), to fundamental due process 
in disciplinary proceedings, 29 U.S.C. Sec. 411(a)(5), to enforce their 
Title I rights through civil actions in federal court, 29 U.S.C. 
Sec. 412, to receive a copy of their collective bargaining agreements, 
29 U.S.C. Sec. 414, and, in Section 105, to be informed by their unions 
concerning the provisions of the entire Act, 29 U.S.C. Sec. 415.
    Although it most directly addresses the entitlements of union 
members, Title I is not the only portion of the Act which secures their 
rights or is otherwise of keen interest to them. For example, Title II 
mandates extensive reports by unions concerning their organization and 
finances, 29 U.S.C. Sec. 431, and their officers' potential conflicts 
of interest, 29 U.S.C. Sec. 432. In particular, it requires unions to 
make their disclosures available to their members, and allows those 
members to seek judicial authorization to examine the books and records 
upon which their union's reports are based. 29 U.S.C. Sec. 431(c).
    Title III prohibits unions from placing local unions or other 
subordinate bodies in. trusteeship in order to suppress democratic 
movements, and allows both the Secretary of Labor and union members to 
enforce this prohibition by civil action in federal court. 29 U.S.C. 
Sec. 4G4(a).
    Title IV sets standards for union officer elections. It requires 
that union elections be held by secret ballot and at certain minimum 
frequencies, 29 U.S.C. Sec. 481(a)(b) & (d), that unions allow members 
reasonable opportunity to run for, and to nominate candidates for, 
union office, 29 U.S.C. Sec. 481(e), and it mandates that campaigns and 
elections be run fairly and democratically, 29 U.S.C. Sec. 481(c), (e) 
& (g). It obliges the Secretary of Labor to seek to overturn elections 
where, after investigating the complaint of an aggrieved union member, 
probable cause of a violation has been found. 29 U.S.C. Sec. 482.
    Title V, ``Safeguards for Labor Organizations,'' creates a 
fiduciary duty for union officers and agents, 29 U.S.C. Sec. 501(a), 
and allows any member to sue for appropriate reliefto remedy fiduciary 
violations where the union, itself, has failed or refused to hold its 
officers accountable for fiduciary violations, 29 U.S.C. Sec. 501(b).
    Title VI bars reprisals against union members for exercising any 
right under the Act, 29 U.S.C. Sec. 529, creates a federal cause of 
action for members injured by such reprisals, and creates criminal 
penalties for using or threatening to use force or violence against any 
member for exercising any right secured by the Act, 29 U.S.C. Sec. 530.
    Thus, the LMRDA, taken as a whole, sets forth a scheme for 
regulating and monitoring unions in the interest of their members and 
the public. Various of its Titles define union members' rights and 
authorize members to sue to enforce those rights; other Titles 
authorize or oblige the Secretary of Labor to act upon member 
complaints, or otherwise to establish regulatory and disclosure 
requirements that express the congressional policy of union democracy 
and ethical practices.
    Importantly, the Title I ``Bill of Rights''--which includes the 
members Section 105 right to be informed about the provisions of the 
entire Act--was offered as a floor amendment by ``legislators [who] 
feared that the [Senate Committee's] bill did not go far enough because 
it did not provide general protection to union members who spoke out 
against the union leadership.'' Sheet Metal Workers' Int'l Ass'n v. 
Lynn, 488 U.S. 347, 352 (1989) (quoting Steelworkers v. Sadlowski, 457 
U.S. 102, 109 (1982)). In offering the first version of Title I on the 
floor of the full Senate, Senator McClellan recalled his prior 
statement to the Committee on Labor and Public Welfare when it first 
began to consider the issues brought to light by his investigative 
committee:

          At that time I made the statement, ``I believe that if you 
        would give to the individual members of the unions the tools 
        with which to do it, they would pretty well clean house 
        themselves.''
          If we want fewer laws--and want to need fewer laws providing 
        regulation in this field, we should start with the basic 
        things. We should give union members their inherent 
        constitutional rights, and we should make those rights apply to 
        union membership as well as to other affairs of life. We should 
        protect the union .members in those rights. By so doing we will 
        be giving them the tools they can use themselves. That is all I 
        am proposing to do by this amendment.

105 Cong. Rec. 6476 (1959), reprinted in II NLRB, Legislative History 
of the Labor Management Reporting and Disclosure Act of 1959 at 1102-03 
(1985) [hereinafter ``Leg. Hist.''].
    By thus empowering union members, Title I's ``pervading premise'' 
was to assure ``full and active participation by the rank and file in 
the affairs of the union.'' American Fed. of Musicians v. Wittstein, 
379 U.S. 171, 182-83 (1964). See also Burroughs v. Operating Engineers 
Local Union No. 3, 686 F.2d 723, 727 (9th Cit. 1982) (``The evident 
purpose of [LMRDA's] bill of rights is to safeguard and preserve actual 
union democracy [and] to shield the union membership from arbitrary, 
autocratic, and despotic control by union officers and leaders'').
            2. Section 105--The Cornerstone for Effectuating the Goals 
                    of the LMRDA
    Because this case presents an issue of statutory construction., we 
begin with the language of the statute:

          Every labor organization shall inform its members concerning 
        the provisions of this Act.

29 U.S.C. Sec. 415. Unfortunately, Congress did not elaborate, or 
specify the manner or means by which unions would be expected to comply 
with this mandate. And, largely because the provision was added at the 
11th hour as part of a floor amendment, there is no specific 
legislative history from which to draw guidance.
    This problem is not, however, unique to Section 105. As the Supreme 
Court observed in Local 82, Furniture Movers v. Crowley, 467 U.S. 526 
(1984), when construing another provision in Title I:

        we have previously ``cautioned against a literal reading'' of 
        the LMRDA. Like much federal labor legislation, the statute was 
        ``the product of conflict and compromise between. strongly held 
        and opposed views, and its proper construction frequently 
        requires consideration of its wording against the background of 
        its legislative history and in light of the general objectives 
        Congress sought to achieve.''

467 U.S. at 541-42, quoting from Wirtz v. Glass Bottle Blowers Ass'n, 
389 U.S. 463, 468 (1968).\2\
---------------------------------------------------------------------------
    \2\ See also Mallick v. IBEW, 749 F.2d 771, 776 (D.C. Cir. 1984); 
Navarro v. Gannon, 385 F.2d 512, 517-18 (2d Cir. 1967), cert. denied, 
390 U.S. 989 (1968) (J. Lombard noted: ``The Bill of Rights that 
appears as Title I of the Act was hastily drafted and included without 
much debate . . ., Without any express indication of congressional 
intent, we must . . . consider the broad purposes of the Bill of 
Rights''); Archibald Cox, Internal Affairs of Labor Unions Under the 
Labor Reform Act of 1959, 58 Mich. L. Rev, 819, 852 (1960) (``The 
[LMRDA] contains more than its share of problems for judicial 
interpretation because much of the bill was written on the floor of the 
Senate or House of Representatives and because many sections contain 
calculated ambiguities or political compromises essential to secure a 
majority. Consequently, in resolving them the courts would be well 
advised to seek out the underlying rationale without placing great 
emphasis upon close construction of the words''), quoted approvingly in 
Glass Bottle Blowers, supra, 389 U.S. at 468 n.6, Sadlowski, supra, 457 
U.S. at 111, and Crowley, supra 467 U.S. at 542 n.17.
---------------------------------------------------------------------------
    Indeed, as we shall see, Section 105 is the cornerstone that 
supports the LMRDA as a whole and gives vitality to the rights of union 
members enumerated in the rest of the Act. Cf. Knox County Local v. 
Natl. Rural Letter Carriers' Assn., 720 F.2d 936, 939 (6th Cir. 1983) 
(recognizing importance of the right of union members ``to receive 
information, without which they would be unable to exercise fully their 
right to participate in deliberations in union affairs'').
    The language of Section 105 is simple, unambiguous and mandatory. 
Section 105's affirmative duty flows directly from the central role 
Congress contemplated for union members in the reform and governance of 
their unions. As we have seen, Congress sought to assure the ``full and 
active participation by the rank and file in the affairs of the[ir] 
union[s].'' It is axiomatic that without knowledge of their rights 
under the LMRDA, and assurance of their protection, union members will 
be reluctant or even incapable of fulfilling that role.
    The importance of Section 105 in achieving democracy within unions, 
as well as the reluctance of unions to honor its mandate, is 
underscored in an insightful article by the draftsman of Title l. See 
n. 1, supra. Professor Clyde Summers has observed that unions generally 
function as ``one-party political states,'' were the incumbent 
leadership has control over a substantial administrative apparatus, 
including appointed union officials, the union press, and the agenda 
and conduct of meetings. Summers, Democracy in a One-Party State: 
Perspectives from Landrum-Griffin, 43 Md. L. Rev. 93, 97-98 (1984). 
Unlike our larger political system, within the union ``state,'' 
competing political parties and the scrutiny of the press are generally 
absent. Id.

          [One] source and instrument of oligarchic control [by the 
        incumbent officers] is domination of the channels of 
        communication. Control over the union journal, with its 
        adulation of incumbent officers, unqualified support of their 
        policies, and exclusion of effective presentation of other 
        positions, is only the most obvious instrument  . . . 
        [Accordingly, t]he function of the law must be to loosen the 
        grip of oligarchy so that those opposed to the incumbents can 
        make their voices heard and the weight of their opposition 
        felt.''

Id. at 97-99. See also Donovan v. CSEA, 761 F.2d 870, 875 (2d Cir. 
1985).
    Unfortunately, precious few union members, in the UA and elsewhere, 
are aware of the LMRDA. One scholarly survey found only meager 
knowledge of the LMRDA, even among union officials. Dennis D. Strouble, 
A Study To Evaluate the Current Attitudes Toward the Effectiveness of 
the Labor Management Reporting and Disclosure Act in Texas (1984) 
(unpublished D.B.A. dissertation, Texas Tech University), JA 73-82. 
More significantly, the union officials surveyed unanimously believed 
that most of their own members were ignorant of the LMRDA's protections 
of individual members' rights. JA 83. Nevertheless, since shortly after 
the LMRDA was enacted, no union surveyed had made, or was planning to 
make, any effort to comply with Section 105. JA 76. The net result of 
these unlawful failures has been that the self-policing regime 
contemplated by the Act has been substantially frustrated. JA 44-46 
(Benson para.para. 4-13), 38 (Summers para. 8).
    Section 105 was intended to make the LMRDA's system of union 
democracy and disclosure effective by engaging the active support and 
involvement of union members who are not only the Act's intended 
beneficiaries but, in very large measure, its indispensable guardians 
as well. In this manner, by obviating the need for the union member 
``to have to read about his rights in the Harvard Law Review,'' Nelson 
v. Johnson, 212 F. Supp. 233, 261 (D. Minn. 1962), Section 105 
strengthens the tendency of labor organizations to be responsive to 
their members. See Mallick v. International Bhd. of Electrical Workers, 
749 F.2d 771, 777 (D.C. Cir. 1984) (finding Title I aims to end 
operation of unions as ``private fiefdoms . . . `by placing the 
ultimate power in the hands of the members, where it rightfully 
belongs, so that they may be ruled by their free consent, [and] may 
bring about a regeneration of union leadership','' (quoting 105 Cong, 
Rec. 6472 (remarks of Sen. McClellan)).
    This remedial view of Section 105 was recently embraced by the 
Fourth Circuit in Thomas v. IAM, 201 F.3d 517 (2000), the first case in 
which the courts were called upon to enforce Section 105:

          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 granted them. Moreover, section 105 mandates 
        notification not only of the provisions of Title 1, but of all 
        the rights found in the LMRDA.
          Section 105, in addition to informing union members of their 
        substantive rights under the LMRDA, also notifies them of 
        provisions authorizing causes of action against unions for 
        infringements of these substantive rights.

201 F.3d at 520. After analyzing the means of enforcing many of the 
Act's provisions, and noting Senator McClellan's observation that by 
giving ``members the tools with which to do it, they would pretty well 
clean house themselves,'' the Court held that, in order for ``members 
to be able to do that job, they must first be made aware of the Act's 
enforceability provisions.'' Members, the court held, are ``not only 
the beneficiaries of the LMRDA but in many instances its sole 
guardians.'' Id. While the court did not resolve the issue before this 
Court concerning ``how . . . union members were to be informed'' of 
their rights, JA. 11, it did observe that

        [m]aintaining honest democratic governance of unions is surely 
        an ongoing effort that would seem perforce to require some 
        ongoing method of notification.

201 F.3d at 520 (emphasis added).\3\
---------------------------------------------------------------------------
    \3\ The circuit court remanded the action to the district court to 
determine ``how'' the Machinist Union could bring itself into 
compliance with Section 105. On remand, rather than develop a record, 
as here, and litigate that issue, the parties negotiated what amounted 
to a consent order. See JA 105.
---------------------------------------------------------------------------
    ``Section 105 is, therefore, a cornerstone of the LMRDA which 
should be read to require labor organizations to take effective steps 
to keep their members informed about their rights under that Act on an 
ongoing basis. Conversely, unions should not be allowed to getaway with 
symbolic acts and empty gestures, posturing compliance with Section 105 
while purposely failing, actually and effectively, to inform their 
members about the provisions of the Act.'' JA 46 (Benson para. 15), 
emphasis in original. See also JA 39 (Summers para. 9).
B. The Authority and Responsibility of the Courts under Section 105
    Section 102 of Title I authorizes courts to grant ``such relief 
(including injunctions) as may be appropriate'' to remedy violations of 
Title I. 29 U.S.C. Sec. 412. Significantly, as the Supreme Court has 
noted, while other LMRDA titles

        deal with narrowly defined problems under the Act, and 
        specifically authorize . . . limited remedies . . . [b]y 
        contrast, Sec. 102 was premised upon the fact that Title I 
        litigation necessarily demands that remedies ``be tailored to 
        fit facts and circumstances admitting an almost infinite 
        variety,'' and Sec. 102 was therefore cast as a broad mandate 
        to the courts to fashion ``appropriate'' relief. Indeed, any 
        attempt on the part of Congress to spell out all the remedies 
        available under Sec. 102 would create the ``danger that those 
        [remedies] not listed might be proscribed with the result that 
        the courts would be fettered in their efforts to `grant relief 
        according to the necessities of the case.' ''

Hall v. Cole, 412 U.S. 1, 10-11 (1973). See also Knox County Local, 
supra, 720 F.2d at 939 (``The latitude granted to [the courts] by Title 
I . . . clearly permit[s] judicial intervention to protect the right of 
union members to free speech and to receive information.''). Thus, 
Section 102 is an unusually broad mandate for courts to craft 
meaningful and effective remedies for any and all violations of Title 
I, including Section 105.
    The legislative history of the LMRDA supports this view. While the 
predecessor of Section 105, Section 508 of the Kennedy-Ervin bill, 
called for the Secretary of Labor to prescribe the manner and means by 
which unions would be required to inform their members about their 
rights, and officers' duties, under the LMRDA, 105 Cong. Rec. 5981 
(1959), I Leg. Hist. 391, that provision was deleted from later 
versions of the LMRDA introduced in the House and subsequently passed 
both by it and by the Senate. I Leg. Hist. 633, 702. In addition, while 
Senator McClellan's bill of rights would also have assigned to the 
Secretary authority to enforce all of its provisions, 105 Cong. Rec. 
6475 (1959), II Leg. Hist. 1102, Senator Kuchel's substitute amendment, 
proffered to eliminate ``the extremes raised by the [McClellan] 
amendment,'' 105 Cong. Rec. 6722, II Leg. Hist. 1234 (Sen. Cooper), 
removed the Secretary of Labor from the Title I enforcement scheme and 
reassigned that authority, with one exception,\4\ to ``[a)ny person 
whose rights secured by the provisions of this title have been 
infringed.'' 105 Cong. Rec. 6694 (1959), II Leg. Hist. 1220.\5\ The 
Kuchel, substitute was approved by a vote of 77-14, 105 Cong. Rec. 
6727, II Leg. Hist. 1239; shortly thereafter, the ``House bill, which 
contained a `Bill of Rights' identical to that adopted by the Senate, 
was quickly approved.'' United Steelworkers v. Sadlowski, 457 U.S. 102, 
110 (1982).\6\ Accordingly, with the single exception of Section 104, 
Congress assigned to the courts responsibility for construing and 
enforcing Title I which, of course, includes Section 105.
---------------------------------------------------------------------------
    \4\ Section Sec. 104, 29 U.S.C. 414, gives the Secretary power to 
enforce the requirement that unions make copies of collective 
bargaining agreements available to members.
    \5\ See also II Leg. Hist. 1113 (Sen. Kennedy), II Leg. Hist. 1223 
(Sen. Johnston), II Leg. Hist. 1232 (Sen. Kuchel), II Leg. Hist. 1233 
(Sen. Clark: Kuchel Amendment ``takes the Federal bureaucracy out of 
this bill of rights and leaves its enforcement to union members, aided 
by the courts''), and ii Leg. Hist. 1238 (Sen. Kefauver).
    \6\ This modification prompted Professor Archibald Cox, counsel to 
the draftsmen, to express concern: ``The effectiveness of the new law 
will depend largely upon the initiative and energy of union members. * 
* * [T]here is the danger, often expressed in the past, that individual 
employee's suits are neither an effective sanction nor a practical 
remedy. Workers are unfamiliar with the law and hesitate to become 
involved in legal proceedings. The cost is likely to be heavy. . . . * 
* * Most men are reluctant to incur financial cost in order to 
vindicate intangible rights.'' Cox, Internal Affairs of Labor Unions 
Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 852-53 
(1960). The fact that no union member sought to enforce Section 105 for 
more than 40 years would appear to validate Professor Cox's concern.
---------------------------------------------------------------------------
    Indeed, the Department of Labor (``DOL'') has consistently 
subscribed to this view as well. Shortly after the LMRDA's enactment, 
several DOL officials stated that the Secretary lacked the power to 
determine precisely what would constitute compliance with Section 105 
since that responsibility had been assigned to the courts exercising 
jurisdiction over claims brought by members under Section 102. JA 129-
30, 133-34. And in 1989, the Assistant Secretary of Labor principally 
responsible for LMRDA enforcement reaffirmed that Section 105 is only 
enforceable by private suit filed by a union member, leaving the task 
of fashioning appropriate relief to the courts. JA 50 (Benson para. 
14), 52. See also Thomas v. IAM, supra, 201 F.3d at 520, and 29 U.S.C. 
Sec. 521(a).
    While the district court was reluctant to engage in a process it 
may have perceived to be akin to rulemaking, i.e., to flesh out the 
particulars of the Section 105 statutory mandate, Congress nonetheless 
assigned that task to the courts. We respectfully submit that the 
absence of any Congressionally prescribed criteria, manner or means for 
complying with Section 105 constitutes no obstacle to the courts when 
called upon to frame and grant appropriate relief under Section 102. 
But see JA 10, where the district court held below that ``it is not 
susceptible of a judicial remedy.''
    We begin with the proposition: where persons have a right to be 
informed of certain facts, the law generally requires that the person 
under an obligation to furnish information do so in a manner 
``reasonably calculated, under all the circumstances,'' to accomplish 
that end in fact. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 
314-315 (1950). While absoluteassurance that the information has 
actually been received and understood is not required, a ``mere 
gesture'' will not suffice. Id. at 315. The standard should be the 
commonsensical one that the method or methods used are reasonable and 
not substantially less effective than other methods reasonably 
available. Id.
    Congress, state legislatures, and administrative agencies face such 
tasks regularly, and resolve them, in ways tuned to the nature of the 
information to be conveyed and the practical realities of the situation 
at hand. See, e.g., 42 U.S.C. Sec. 2000e-10 and 29 C.F.R. Sec. 1601.30 
(requiring posting of notices of Title VII); 29 U.S.C. Sec. 627 and 29 
C.F.R. Sec. 1627.10 (same as to the Age Discrimination in Employment 
Act); 29 U.S.C. Sec. 1022(a) (requiring trustees of ERISA pension plans 
to furnish participants periodically with summary plan descriptions 
which ``shall be written in a manner calculated to be understood by the 
average plan participant, and shall be sufficiently accurate and 
comprehensive to reasonably apprise such participants and beneficiaries 
of their rights and obligations under the plan'').
    This Court should construe Section 105 broadly in order to give 
effect to Congress' general remedial objective when enacting the LMRDA. 
See Jefferson County Pharmaceutical Assn. v. Abbott Labs., 460 U.S. 
150, 159 (1983). After all, the LMRDA is a remedial statute aimed at 
``afford[ing] necessary protection of the rights and interests of 
employees and the public generally as they relate to the activities of 
labor organizations * * * [and] its proper construction frequently 
requires consideration of . . . the general objectives Congress sought 
to achieve.'' Glass Bottle Blowers, 389 U.S. at 468, 470. See also 
Masters, Mates & Pilots v. Brown, 498 U.S. 466, 476 (1991) (holding 
that ``[a] broad interpretation of the candidate's [LMRDA] right to 
distribute literature is consistent with the statute's basic 
purpose'').\7\
---------------------------------------------------------------------------
    \7\ Lower courts have similarly recognized that, as remedial 
legislation, the LMRDA provisions are entitled to liberal construction 
to effectuate Congress' objectives. See, e.g., McGinnis v. Teamsters 
Local, 710, 774 F.2d 196, 199 (7th Cir. 1985) (``courts have focused on 
the broad remedial purpose of the Act rather than its literal 
language''); Mallick v. IBEW, 749 F.2d at 776 (courts must be ``leery 
of interpreting the LMRDA based on uncertain inferences from word-by-
ward parsing of the statute''); Knox County Local v. NRLCA, 720 F.2d at 
938-39.
---------------------------------------------------------------------------
    For the reasons that follow, we submit that the district court 
erred when concluding that the Section 105 duty is ``bare bones'' and 
static, and that it is met by furnishing members with one single 
notification of their rights under the LMRDA during their working 
lifetime affiliation with the Union.\8\ Rather, the LMRDA's remedial 
scheme can only be furthered if Section 105 is construed to impose an 
ongoing duty on unions to inform their members concerning their rights, 
and their officers' duties, in an effective and meaningful manner. 
Indeed, while the district court found the unanimous and uncontested 
record testimony of appellants' experts supporting the latter view to 
be ``clear and persuasive,'' the court erred when ruling that ``it is 
not susceptible of a judicial remedy.'' The court's cramped and narrow 
construction of both Section 105, and its remedial authority under 
Section 102, is at odds with Congressional intent.
---------------------------------------------------------------------------
    \8\ While the UA did commit to republish the one-page summary again 
in 2004 and 2008, thereafter, notification will be made solely via 
inclusion of that summary in the mailing sent to new members when they 
first join the UA. However, this method of alleged compliance is, as we 
shall see presently, about as likely to inform members of their LMRDA 
rights as would a ``legal notice'' published in the classified section 
of a newspaper.
---------------------------------------------------------------------------
    In fact, appellants demonstrated in the proceeding below, without 
contradiction, that the steps taken by the UA have not, and will not, 
operate to inform the UA membership concerning their rights under the 
LMRDA. Yet, while the UA moved to strike virtually all of this evidence 
and expert opinion, not only did the court not grant its motion, it 
made no attempt to challenge, much less refute, appellants' evidence, 
thus leaving an uncontested record. Accordingly, as we shall now show, 
it cannot be said that the steps taken by the UA constitute ``adequate 
compliance'' with, Section 105.\9\
---------------------------------------------------------------------------
    \9\ To the extent that the court's construction of Section 105 must 
be guided by a factual inquiry concerning the manner and means 
available to the UA to comply with Congress' informational mandate, the 
district court was obliged to evaluate the record evidence in the light 
most favorable to the plaintiff-appellants inasmuch as they were the 
non-moving party in the summary judgment motion which the court 
granted. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). This, the 
district court most assuredly did not do; rather, it simply overlooked 
or ignored the evidence.
---------------------------------------------------------------------------
C. The UA's Conduct Does Not Constitute Compliance With Section 105
    As appellants demonstrated below, the UA's failure to comply with 
Section 105 for more than 40 years has undermined their efforts to 
participate actively in their Union, a Clear Congressional objective. 
Most UA members are unaware of the provisions of the LMRDA and the 
system of union democracy it was designed to assure, event after the 
UA's one-time publication of the one-page LMRDA Summary in the UA 
Journal in the Spring of 2001. JA 22 (Callihan para.para. 4, 6, 8). The 
lack of such information and understanding is a significant cause of 
the apathy among their fellow members and of their reticence to become 
more actively involved in the democratic process of the UA. JA 22 
(Callihan para. 8), 38 (Summers para.para. 7-8), 46 (Benson para.para. 
13, 16), 65 (Paff para.para. 8-11), 53-54, 59 (Zipser para. 9).\10\
---------------------------------------------------------------------------
    \10\ See also Callihan's First Aff. para.para. 9-10 and Moore Aff. 
para.para. 5-6 (.Docket No. 6).
---------------------------------------------------------------------------
    Appellants' interest in a democratic, open, vigorous union depends 
on their fellow members being informed of their rights, and willingness 
to participate in its affairs for theircommon good. See Hall v. Cole, 
412 U.S. 1, 8 (1973) (deeming rights created by Title I ``vital to the 
independence of the membership and the effective and fair operation of 
the union as the representative of its membership'') (internal 
quotation marks omitted). If Section 105 is to achieve Congress' 
objective, if union members are to serve as guardians of democracy and 
officer accountability within their unions, they must actually, not 
symbolically, be informed about their LMRDA rights and the means by 
which. those rights may be enforced.
    Among the means available to the UA for fulfilling its Section 105 
obligation axe: a membership mailing list, the UA Journal published 
monthly and sent to all members, the UA Constitution booklet 
distributed to members upon request, and a website. As we have seen, it 
lies with the courts to fashion appropriate relief utilizing some or 
all of these informational vehicles.\11\
---------------------------------------------------------------------------
    \11\ In an informal letter to the Machinists' Chief Counsel shortly 
after enactment of the LMRDA, the Acting Solicitor of Labor opined that 
``merely posting a copy of the Act on the bulletin board would be 
insufficient [compliance]. If, in addition, the members were notified 
where the copy or copies [of the Act] could be examined, there still 
may be a question of sufficiency . . . [in terms of] getting the 
information to the members. If by this means, together with other 
methods, a union's total program for informing its members concerning 
the provisions of the Act is one that may reasonably be expected to 
succeed in providing them with the necessary information under the 
condition[s] known to exist with respect to the members of the 
particular union, it is possible, in our opinion, that the union's 
program for doing this would be regarded as adequate compliance with 
section 105.'' JA 130-31 (emphasis added).
---------------------------------------------------------------------------
    After this lawsuit was filed, the UA published a one-page Summary 
of the LMRDA in the March, 2001 UA Journal, and it has offered to 
republish it twice again--in 2004 and 2008.\12\ In addition, the UA 
began to furnish a copy of that Summary to new members when they first 
join the Union. The UA contends that these actions constitute full 
compliance with Section 105 and has refused to publish the Summary more 
frequently, to post it on its website, or to append it to its 
constitution. As we have seen, the district court was satisfied that 
the UA's plan to notify each member once in his or her lifetime 
constituted ``adequate compliance'' with the ``bare bones'' requirement 
of Section 105.
---------------------------------------------------------------------------
    \12\ The UA's response may be juxtaposed against the responses of 
other unions. For example, the Seafarers International Union has agreed 
to publish ``the DOL Summary in every issue of its monthly publication, 
the Seafarers Log.'' JA 67 (Fox Aff. para. 4), 85. And the Hotel 
Restaurant Employees Union has agreed to publish ``the full text of the 
LMRDA once each year in the Catering Industry Employee,'' its 
membership media organ. JA 68 (Fox Aff. para. 5), 86.
---------------------------------------------------------------------------
    In fact, the record below contains uncontested testimony by a 
number of prominent experts who were unanimous in their view that most 
union members do not bother to read their union publications which are 
perceived to be little more than propaganda vehicles promoting the 
incumbent leadership. They uniformly discredit national union media 
organs as reliable sources of information, or channels for effective 
member communication. They explain why the typical union member is not 
likely to be interested in, or to pay much attention to, his or her 
union magazine, much less the short Summary of LMRDA rights that might 
be contained therein, before discarding it because, inter alia, not 
only are they filled with puffery and propaganda, they are boring. 
Moreover, and most importantly, members typically have little interest 
in their LMRDA rights except during brief moments in their lifetimes as 
union members, e.g., when, they attempt to run for office, or to defend 
against disciplinary charges and suddenly need to know, and will become 
interested in, and try learn about, their LMRDA rights. JA 47-48 
(Benson para.para. 21-23), 53-54, 59-60 (Zipser para.para. 8-15), 63 
(Fishgold para.para. 115, 7), 38 (Summers para. 9), 56 (Fletcher para. 
9), 66 (Paff para. 14), 22 (Callihan para.para. 6-8). See also Summers, 
43 Md. L. Rev 97-99. And the record testimony uniformly refutes the 
notion that publication of the DOL Summary three times over a seven-
year period, as the UA has proposed to do, will succeed at informing 
the UA membership concerning their rights under the LMRDA; rather, it 
would have to be published at least annually, if not more frequently. 
Id. As Callihan put it, ``the UA is going to have to do a lot more 
informing . . . before . . . the members will become informed.'' JA. 22 
(para. 6).
    The undisputed record testimony supports a requirement that the UA 
post a link to the LMRDA Summary on the home page of its website--an 
undertaking that would cost the Union almost nothing. JA 39 (Summers 
para. 10), 23 (Callihan para.para. 11-12), 48 (Benson para. 25), 56 
(Fletcher para. 10), 60 (Zipser para. 13), 66 (Paff para. 13).\13\
---------------------------------------------------------------------------
    \13\ The Thomas order requires the Machinist Union to post the 
Summary on its website. JA 84. Even though this outreach method is 
likely to be, at least in the near future, of only limited usefulness, 
even the district court below embraced its use ``which common sense 
commends to every union having a website.'' JA 11. A copy of the UA's 
website ``Home Page'' appears at JA 103.
---------------------------------------------------------------------------
    Even more importantly, the uncontested record evidence 
overwhelmingly establishes that it is to the union constitution that 
members look to inform themselves concerning their membership rights; 
and the undisputed consensus of opinion holds that the LMRDA Summary 
must be appended at the rear of the constitution booklet if the UA is 
to succeed at informing its members of their rights under the LMRDA--
the Union's responsibility pursuant to the mandate of Section 105.
    As Professor Summers explained, union constitutions are printed in 
``small booklet format so that members can easily carry them in their 
pockets for ready reference,'' JA 39 (Summers para. 11).\14\ While 
``union journals are readily discarded,'' constitutions are not. Id. 
Moreover, it is not until the member finds himself in some sort of a 
jam with his union that he has any reason to be interested in his legal 
rights as a member, or a frame of reference within which to understand 
and appreciate those rights; and when that occurs, ``the constitution 
becomes the controlling document [for both members and officers], and 
it is to the constitution that they first turn. It is their reference 
manual, their legal bible.'' Id.
---------------------------------------------------------------------------
    \14\ The UA Constitution is published in booklet form; it is 180 
pages in length including a 12-page alphabetized topical index. JA 68 
(Fox Aff. para. 10), 102.
---------------------------------------------------------------------------
    Similarly, Callihan testified that the UA Constitution ``is our 
union bible. Members are led to believe that it is the sole source of 
their rights and that in order to enjoy those rights, they must follow 
the procedures in the Constitution to the letter. So when a member 
wants to know about his membership rights in the UA, and how to secure 
them, he refers to the Constitution. * * * Appending the summary of the 
LMRDA at the back of the UA Constitution would ensure that members 
could become aware not only of their constitutional rights, but also 
their rights and the responsibilities of their officers under the 
LMRDA.'' JA 23 (Callihan para. 9). See also JA 48 (Benson Aff. 
para.para. 24, 26), 65 (Paff Aff. para.para. 11-12), 60 (Zipser Aff. 
para. 13), 56 (Fletcher Aff. para. 11--constitution ``is the most 
logical, and likely to be the most effective means of informing members 
about their rights under the LMRDA'').
    To summarize, the actions which, the UA contends, constitute full 
compliance with its Section 105 duty to inform its membership about 
their rights, and the UA officers' responsibilities, under the LMRDA 
were seemingly calculated to create the appearance of compliance, but 
not the reality--a symbolic, but empty gesture.\15\ They have not, and 
will not, overcome the near total ignorance among the UA membership 
about this critical piece of legislation intended by Congress to result 
in an informed membership participating actively in the internal, 
democratic affairs of their union. ``[After more than 40 years of 
silence, and keeping the UA membership in the dark about their LMRDA 
rights, the UA is going to have to do a lot more informing . . . before 
the message will sink in.'' JA 22 (Callihan para. 6).
---------------------------------------------------------------------------
    \15\ Cf. Retail Clerks Local 648 v. Retail Clerks Intl Ass'n, 299 
F. Supp. 1012, 1020 (D.D.C. 1969) (``Where a union policy and practice 
is promulgated in order, among other things, to place obstacles in the 
way of effective union democracy and appears to have this effect, . . . 
the Court cannot give that policy any recognition as it offends both 
equity and the provisions of the LMRDA'').
---------------------------------------------------------------------------
    The UA's one-time publication of the LMRDA Summary in the March 
2001 issue of the UA Journal simply has not accomplished what Congress 
intended when enacting Section 105. See Callihan para.para. 6-8, JA 22. 
More needs to be done if, in Professor Summers' words, the ``iron grip 
of oligarchy'' within the UA is to be ``loosened, and the democratic 
process strengthened.'' 43 U. Md. L. Rev. at 105. While a UA member 
here, and another there, may be knowledgeable about the LMRDA, ``the 
health of democracy, in unions as elsewhere, depends not on that rare 
bird, but on the average citizen.'' JA 48 (Benson para. 25). Or, as 
Callihan put it, ``Our union will not become democratic, nor will our 
officers be accountable to the membership, if only a couple of 
activists members, myself included, stick out our necks. The entire 
membership needs to know that it is OK, or legally safe, for them to 
begin participating actively in the internal affairs of their union as 
well.'' JA 23 (para. 8).
    In fact, it is in the nature of any democratic polity that the 
level of information, interest, motivation and participation of 
citizen-members generally has a substantial impact on the ability of 
each member to gain an audience among his peers, win adherents to his 
point of view, and thereby influence the direction of his organization, 
community or nation. This self-evident principle is certainly no less 
applicable in the union context, where Congress found substantial and 
widespread problems in observing democratic norms, including 
significant problems with intimidation of, and reprisals against, 
outspoken dissidents. See, e.g., II Leg. Hist. 1096-1104. If members 
are to become ``active participants in the governance of their 
unions,'' as Congress intended, they most assuredly do need to be 
informed that it is ``OK, or legally safe'' for them to do so. The 
ability of appellants to exercise their LMRDA rights depends in no 
small measure on the awareness of other UA members of their rights and 
protections under the LMRDA.
    Accordingly, in order to effectuate the remedial objectives of the 
LMRDA, we respectfully submit that the Court should construe Section 
105 to require the UA to inform its membership about the provisions of 
the LMRDA on an ongoing basis, rather than just once in a member's 
working lifetime. That result can be accomplished if the UA were to 
post the Summary prominently on its website. And, most importantly, the 
UA needs to append the Summary at the rear of its constitution booklet, 
and to reference its key provisions in the General Index.\16\ 
Realistically, UA members will only become informed concerning their 
rights under the LMRDA once they have ready and ongoing access to the 
Summary of their statutory rights in the very same constitution booklet 
where they are accustomed to researching their membership rights, and 
of the procedures they must follow to secure those rights as UA 
members, at that point in time when they are in need of, and interested 
in, learning about their legal rights. Until that occurs, the UA will 
continue to be in violation of Section 105.
---------------------------------------------------------------------------
    \16\ In the meantime, because it is unlikely the UA will be 
reprinting its Constitution prior to its next quinquennial convention 
in 2006, it should republish the Summary in its Journal, at least 
annually, until copies of its constitution booklet with the Summary 
appended become available.
---------------------------------------------------------------------------
                               conclusion
    For the foregoing reasons, we respectfully submit that the district 
court erred by adopting a narrow, ``bare bones,'' or minimalist 
construction of Section 105, and upholding the UA's symbolic compliance 
with the informational mandate of that provision. This Court should, 
accordingly, reverse and remand this case to the district court to 
frame a remedy consistent with this Court's opinion.
            Respectfully submitted,
                             Arthur L. Fox, II (No. 58495),
                   Lobel, Novins & Lamont, Attorney for Appellants,
                                                  January 15, 2003.

                               ADDENDUM E

No. 02-7111

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHARLES CALLIHAN AND WILBUR M. THOMAS, Plaintiffs-Appellants, v. UNITED 
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE 
FITTING INDUSTRY AND MARTIN J. MADDALONI, UA GENERAL PRESIDENT, 
Defendants-Appellees.

On Appeal from the United States District Court for the District of 
Columbia
                           brief of appellees
I. Jurisdictional statement
    The claim at issue in this appeal was brought under Section 105 of 
the Labor-Management Reporting and Disclosure Act of 1959 (``LMRDA''), 
29 U.S.C. Sec. 415. The District Court, therefore, had jurisdiction to 
hear this case pursuant to 29 U.S.C. Sec. 412 and 28 U.S.C. Sec. 1331. 
The District Court denied Plaintiffs' motion for summary judgment, 
granted Defendants' cross-motion for summary judgment and entered a 
final judgment dismissing this action on August 12, 2002. Notice of 
appeal was timely filed on September 12, 2002. Accordingly, this Court 
has jurisdiction to hear this appeal pursuant to 28 U.S.C. Sec. 1291.
II. Statement of the issue
    Whether the Union's publication of a court-approved one-page 
summary of members' LMRDA rights in its magazine sent to all members in 
March 2001, its provision of that summary to every new member joining 
the Union since April 2001, and its commitment to republish the summary 
in the membership magazine in 2004 and 2008, satisfies LMRDA Sec. 105's 
requirement that the Union ``shall inform its members concerning the 
provisions'' of the LMRDA.
III. Statement of the case
    The instant lawsuit was filed in December 2001. The District Court 
granted Plaintiffs' motion for summary judgment on the first count of 
Plaintiffs' complaint on March 6, 2002. The court thereafter indicated, 
at an April 2, 2002 status conference, that it was prepared to rule in 
favor of Defendants on the second count because the actions taken by 
the Defendant Union constituted adequate compliance with Section 105. 
(JA 108.) Counsel for Plaintiffs nonetheless sought leave of court to 
brief the issue, and the court permitted Plaintiffs to file a motion 
for summary judgment, which they did. Defendants then filed a cross 
motion for summary judgment, and the District Court thereafter ruled in 
favor of Defendants on both motions, finding that nothing further than 
the measures taken and committed to by the Union was required in order 
to achieve compliance with the statute. (JA 11.)
IV. Statement of facts
    In 1959, Congress passed the Labor-Management Reporting and 
Disclosure Act (``LMRDA''), 29 U.S.C. Sec. 401, et seq. Section 105 of 
the Act stated that ``[e]very labor organization shall inform its 
members concerning the provisions of this chapter.'' 29 U.S.C. 
Sec. 415. Immediately following the enactment of the LMRDA in October 
1959, the Defendant Union (also referred to as the ``UA'' or the 
``United Association'') \1\ published the entire text of the LMRDA in 
its monthly magazine, the UA Journal. (See JA 14, para. 3.) Most other 
unions apparently took similar steps in response to the mandate of 
Section 105.
---------------------------------------------------------------------------
    \1\ The full name of the Defendant Union is the United Association 
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry 
of the United States and Canada, AFL-CIO. In the record and in the 
court below, it was referred to as the ``UA'' or the ``United 
Association.''
---------------------------------------------------------------------------
    In the ensuing forty years, there were no court decisions 
substantively construing the nature of a union's obligation to 
``inform'' under Section 105.\2\ In particular, no court addressed the 
question of whether Section 105 imposed a duty on unions to republish 
notice of the Act's provisions over time. Apparently (according to 
Plaintiffs), most unions did not republish the Act, but relief on their 
one-time publication in 1959 to satisfy the requirement of Section 105.
---------------------------------------------------------------------------
    \2\ See Thomas v. Grand Lodge of Int'l Ass'n of Machinists, 40 F. 
Supp. 2d 737, 741 & n.2 (D. Md. 1999), rev'd, 201 F.3d 517 (4th Cir. 
2000).
---------------------------------------------------------------------------
    In 1999, in the first case to address the issue, Judge Messitte of 
the United States District Court for the District of Maryland held that 
a union which had published the Act in its entirety upon its enactment 
was not required to republish the material in order to inform new 
members of the Act's provisions. Thomas v. Grand Lodge of Int'l Ass'n 
of Machinists, 40 F. Supp. 2d 737 (D. Md. 1999). The Fourth Circuit 
later reversed Judge Messitte's decision, holding that while ``Section 
105 does not dictate a specific method of compliance,'' the statute 
``require[d] at a minimum that each individual, soon after obtaining 
membership, be informed about the provisions of the LMRDA.'' Thomas v. 
Grand Lodge of Int'l Ass'n of Machinists, 201 F.3d 517, 521 (4th Cir. 
2000). This was the first decision of any court requiring a union to 
update its compliance with Section 105 for the benefit of new members. 
Judge Messitte's final order on remand in Thomas was issued on 
September 19, 2000. (JA 84.)
    On September 24, 2000, Plaintiff Callihan wrote to the Union's 
General President proposing that the Union publish a one-page summary 
of the LMRDA in the UA Journal and that the Union post the text of the 
Act on the Union website.\3\ (JA 26.)
---------------------------------------------------------------------------
    \3\ Earlier, on May 24, 2000, Plaintiff Callihan had sent the 
General President a copy of the Fourth Circuit's Thomas decision (which 
did not specify a specific method of compliance) and inquired ``[w]hen 
does the UA plan to comply with the Act?'' (JA 25.)
---------------------------------------------------------------------------
    The instant lawsuit, including the Plaintiffs' claim that the Union 
was in violation of Section 105, was filed in December 2001. Prior to 
service of the complaint on Defendants, Plaintiffs' counsel was 
notified that the Union's general counsel was undertaking to advise the 
Union concerning actions to be taken in light of the Thomas decision. 
(JA 106-07.) Subsequently, prior to any litigation of the Section 105 
claim in this case, the Union published a comprehensive summary of the 
Act (``LMRDA Summary'' or ``Summary'') in the March 2001 UA Journal, a 
magazine which is sent to all active members and retirees. (JA 15. 
para. 10; see also JA 96-97, 109-10.) Plaintiffs concede that the 
content of the Summary adequately informs members of the provisions of 
the Act. (JA 107.)\4\
---------------------------------------------------------------------------
    \4\ The Summary was originally prepared by the Department of Labor, 
and was specifically approved by Judge Messitte in the Thomas case as 
sufficient in substance to inform members of the provisions of the 
LMRDA. (See JA 84.) This was the same Summary that Plaintiff Callihan 
asked the Union to publish in the UA Journal, in his letter of 
September 24, 2001. (JA 26.)
---------------------------------------------------------------------------
    Since April 2001, the Union has also mailed a personal copy of the 
same comprehensive Summary to each new member, along with a letter 
welcoming the member to the Union and enclosing his or her membership 
card. (JA 98-99, 110.) The Union has also made a commitment to 
republish the LMRDA Summary in the UA Journal in the calendar years 
2004 and 2008. (JA 15, para. 12.)\5\
---------------------------------------------------------------------------
    \5\ The Union has also publicized information concerning the LMRDA 
in other ways. For example, the Union's training seminars, given on a 
regular basis for local union business managers and financial 
secretary-treasurers, include presentations on the obligations of the 
UA and affiliated local unions under the statute. Those seminars occur 
on an annual basis except during Convention years. Copies of the entire 
text of the Act are obtained from the Department of Labor and 
distributed to the individuals attending these training seminars. (JA 
110, para. 7.)
    Moreover, in October 2000, at the request of United Association 
Local Union 286, representatives of the Union conducted a seminar for 
Local 286 members at the UA Local 286 union hall in Austin, Texas. The 
seminar included a detailed presentation regarding rights conferred by 
the LMRDA, along with presentations regarding other statutes and union-
oriented topics such as organizing. (JA 111, para. 8.)
    In addition, numerous provisions of the UA Constitution incorporate 
substantive requirements imposed by the LMRDA. (JA 19, para. 13.)
---------------------------------------------------------------------------
V. Summary of argument
    Section 105 of the LMRDA requires unions to ``inform [their] 
members concerning the provisions of [the] Act,'' but does not specify 
a particular method by which that information is to be conveyed. The 
Union has complied with this requirement by (1) publishing the entire 
text of the Act in its membership magazine, the UA Journal, shortly 
after the Act's passage; (2) publishing the LMRDA Summary in the UA 
Journal in March 2001; (3) commencing in April 2001, sending a copy of 
the LMRDA Summary to each new member; and (4) committing to re-publish 
the Summary in the UA Journal in 2004 and 2008. The Union's actions 
satisfy the plain language of the statute and conform to past 
interpretations of Section 105 by several authoritative sources.
    Plaintiffs' contention that Section 105 further requires all unions 
to post a summary of LMRDA rights on their websites and to append such 
a summary to their constitutions finds no support in the law or in the 
record. The affidavits of Plaintiffs' putative experts, who profess no 
knowledge whatsoever about the particular Union Defendant in this case, 
request the Court to impose on all unions requirements not found in the 
Act itself. It is not the proper function of expert witnesses to advise 
the Court on the meaning of the law, and the views of these individuals 
on what the law should be are even less relevant to this proceeding.
    Plaintiffs stress that the Court possesses broad remedial power 
under the LMRDA. But, because Plaintiffs cannot show a violation of the 
Act, there is no occasion for the Court to exercise that remedial 
power. Accordingly, the Court should affirm the judgment of the 
District Court.
VI. Argument
A. Plaintiffs' Burden of Proof
    Plaintiffs assert in their appeal that the Union is currently in 
violation of Section 105 of Title I of the LMRDA, despite having taken 
the actions described above. (Plaintiffs-Appellants' Brief 
(``Appellants' Br.'') at 20-21.) In Carothers v. Presser, 818 F.2d 926, 
931 (D.C. Cir. 1987), this Court described ``the proper role of a court 
in litigation under Title I of the LMRDA'' as follows:

          First and foremost, the court must determine whether the 
        union's conduct deprived the Plaintiffs of a right specifically 
        enumerated in the statute . . . Once it has made a 
        particularized finding that the union violated a right 
        specifically enumerated in the statute, the court may fashion a 
        remedy tailored to the violation.

Accordingly, a Title I plaintiff must first demonstrate by a 
preponderance of the evidence that the union deprived him of a ``right 
specifically enumerated in the statute.'' Id.; see also Gilvin v. Fire, 
259 F.3d 749, 761 (D.C. Cir. 2001). Only after the court has made a 
particularized finding that the union has violated a specifically 
enumerated right can the court proceed to fashion appropriate relief.
B. Section 105 Imposes a Single Duty; the Duty To Inform
            1. Title I Imposes Specific Requirements on Unions; Courts 
                    Are Not Authorized To Impose Additional 
                    Requirements Simply Because They May Be in 
                    Furtherance of Perceived Notions of Union Democracy
    As Plaintiffs repeatedly emphasize, Congress did indeed enact the 
LMRDA with the objective of ensuring that unions would be 
``democratically governed.'' (Appellants' Br. at 8, quoting Finnegan v. 
Leu, 456 U.S. 431, 436 (1982).) However, as this Court has likewise 
stressed, Congress did not vest the federal courts with open-ended 
discretion to fashion the components of that democratic governance; 
instead, the statute sets forth its own ``specific regulations 
governing internal union affairs.'' Carothers, 818 F.2d at 929. In the 
words of the Court,

        ``democracy'' under the LMRDA is not merely a boundless ideal 
        to be defined by the whim of any dissident voice; rather, the 
        statutory notion of internal union democracy is precisely 
        limited by the scope of the protections codified by Congress in 
        the LMRDA.

Id.
    Congress also fully intended that the goal of democratic governance 
``was to be achieved within `a general philosophy of legislative 
restraint' to avoid unnecessary governmental intrusion into union 
affairs.'' S. Rep. No. 187 in I Leg. Hist. at 403, quoted in Thomas, 40 
F. Supp. 2d at 742. The Act embodies a Congressional recognition of 
``the inadvisability and injustice of compelling unions to conform to a 
uniform statutory rule with respect to unimportant details of 
administration.'' Id.
    As Plaintiffs also stress in their brief, Section 102 of the Act 
confers on the courts considerable discretion to grant appropriate 
relief. See 29 U.S.C. Sec. 412. However, as this Court has emphasized, 
that discretion is triggered only after the violation of a specific 
statutory right has been established. Carothers, 818 F.2d at 929. 
Absent such a finding, the exercise of the Section 102 remedial 
discretion would be inappropriate and ``totally divorced from the 
essential predicate of a statutory violation.'' Id. at 931. See also 
Gilvin v. Fire, 259 F.3d at 760-61 (upholding Rule 12(b)(6) dismissal 
of LMRDA claim for failure to articulate deprivation of specifically 
enumerated right).
    Thus, any review of the claims in this case must be guided by this 
Court's words in Carothers:

          Title I is not a mandate for courts to impose on labor unions 
        whatever procedures or practices they regard as ``democratic.'' 
        Although the enactment of Title I was certainly propelled by a 
        congressional intent to broaden the democratic features of 
        union governance, Congress did not embrace an amorphous and 
        boundless notion of democracy. Rather, it enumerated specific 
        rights designed to ensure that unions adhere to certain basic 
        democratic principles. Those principles must be gleaned from 
        the statute itself; they may not be derived from a court's 
        perception of what internal union procedures are necessary to 
        guarantee [in Carothers] a ``fully informed vote.''

818 F.2d at 934.
            2. Section 105 Requires Only That Unions ``Inform'' Members 
                    Concerning the Provisions of the Act
    Section 105 states in its entirety that ``[e]very labor 
organization shall inform its members concerning the provisions of this 
chapter.'' 29 U.S.C. Sec. 415 (emphasis added). The term ``inform'' 
simply means to give or impart information.\6\ This Court has construed 
a federal agency's statutory duty to inform, for example, as being 
fulfilled by the placing of a communication in the mail.\7\ Town of 
East Hartford v. Harris, 648 F.2d 4, 9 (D.C. Cir. 1980).
---------------------------------------------------------------------------
    \6\ Webster's Dictionary defines ``inform'' as ``1: to impart 
information or knowledge.'' Merriam-Webster's Collegiate Dictionary 
(10th ed. 2001).
    \7\ By sending the LMRDA Summary to each existing member and each 
new member who joins the union at the member's home address, the UA has 
clearly satisfied that construction of its duty.
---------------------------------------------------------------------------
    There are no regulations implementing Section 105. As Plaintiffs 
concede, the Department of Labor neither possesses nor asserts the 
authority to direct labor unions to use any particular means in 
carrying out their statutory duty to ``inform.'' (Appellants' Br. at 
18.)
    Likewise, there is seemingly no legislative history specifying any 
particular method unions must employ to inform members regarding the 
provisions of the Act. See discussion of legislative history in Thomas, 
40 F. Supp. 2d at 741. Contemporaneous commentary by counsel involved 
in drafting the Act and early correspondence from Department of Labor 
officials indicated that unions could comply with Section 105 by 
various means, including publishing the text of the Act in union 
publications distributed or reasonably available to union members,\8\ 
providing members with summaries of the Act's provisions,\9\ posting 
copies of the Act on bulletin boards,\10\ or perhaps simply advising 
members where they could find copies of the Act available for 
examination.\11\ Seemingly, many unions--including the UA--simply 
complied with Section 105 upon its enactment by publishing the text of 
the Act in a union magazine. (JA 14, para. 3.)
---------------------------------------------------------------------------
    \8\ See discussion in Thomas, 40 F. Supp. 2d at 741. See also 
Arthur J. Goldberg, Analysis of Labor-Management Reporting and 
Disclosure Act of 1959, Industrial Union Department, AFL-CIO (1960), at 
10-11. A copy of relevant portions of this analysis, authored by Arthur 
J. Goldberg, then AFL-CIO special counsel and a member of a non-
partisan blue ribbon committee employed as a consultant by the Senate 
Labor Committee, is at JA 112-17. See also Letter from Assistant 
Secretary of Labor to James C. Paradise of 11/9/59 (JA 124-25); Letter 
from Commissioner John L. Holcombe to Walter M. Colleran of 2/13/60. 
(JA 126-27.)
    \9\ See Letter from Assistant Secretary of Labor to James C. 
Paradise of 11/9/59, (JA 124-25.)
    \10\ See National Labor Relations Board, Legislative History of the 
Labor Management Reporting and Disclosure Act of 1959. vol. 11, at 1825 
(comments of Michael J. Bernstein, counsel to the Senate Labor 
Committee involved in drafting the Act). But see Letter from Acting 
Solicitor of Labor to Plato E. Papps of 5/27/60 (JA 130-31) (bulletin 
board posting may not be sufficient).
    \11\ See Letter from Assistant Secretary of Labor to James C. 
Paradise of 11/9/59 (JA 124-25); Letter from Commissioner John L. 
Holcombe to Walter M. Colleran of 2/13/60 (JA 126-27); Letter from 
Commissioner Holcombe to Richard M. Reinke of 5/16/60 (JA 128-29); 
Letter from Acting Solicitor of Labor to Plato E. Papps of 5/27/60 (JA 
130-31); Letter from Acting Solicitor of Labor to S. C. Lippman of 10/
20/60 (JA 132-33).
---------------------------------------------------------------------------
    It was not until 1999, in the Thomas case, that any court had 
occasion to address questions about how a union was supposed to carry 
out its duty to ``inform'' under Section 105 of the Act. The issue 
posed in Thomas was whether a union's one-time publication of the Act 
in 1959 constituted compliance with Section 105, or whether the union, 
was obligated on an ongoing basis to inform new members of the 
provisions of the Act once they joined the union. See Thomas, 40 F. 
Supp. 2d at 740; see also Thomas, 201 F.3d at 518. The District Court 
held that unions were not required to inform new members regarding the 
provisions of the Act; the Fourth Circuit later disagreed and held that 
they were.
    Neither Judge Messitte nor the Fourth Circuit held that any 
particular form of notice was required by the Act. To the contrary, the 
Court of Appeals stated that ``Section 105 does not dictate a specific 
method of compliance.'' 201 F.3d at 521 (emphasis added). All that is 
specifically required by the Fourth Circuit's decision is that ``each 
individual, soon after obtaining membership, be informed about the 
provisions of the LMRDA.'' Id. The Court of Appeals held that, on 
remand, the district court retained discretion with respect to 
implementation of the notice requirement, and it commented, inter alia, 
that publication in a form not known to be widely circulated would not 
suffice. Id. (since ``it is at best unclear'' how widely circulated the 
union constitution is, ``something more'' would be required to satisfy 
Section 105).
    On remand (according to Plaintiffs' counsel herein), Judge Messitte 
expressed reluctance to engage in ``rulemaking'' with regard to the 
implementation of Section 105. (JA 105.) Accordingly, the parties in 
Thomas entered into what was in effect a consent order. (JA 84, 105.) 
In that order, the Machinists Union agreed to provide each new member a 
copy of the LMRDA Summary (the same summary published in the UA Journal 
and now sent to all new UA members); to publish the same Summary in 
three issues of the IAM Journal, the first no later than March 2001, 
the second in calendar year 2004 and the third in calendar year 2008; 
and to post the Summary on the home page of its website. (JA 84.) \12\ 
The order does not state that the Machinists--or any other union--were 
required to take each of these particular steps; as Plaintiffs' counsel 
describes it, and as appears from the face of the order itself, the 
order represents a negotiated resolution of the remedy issue approved 
by the district court as sufficient to comply with Section 105 and the 
Fourth Circuit's opinion.
---------------------------------------------------------------------------
    \12\ Since the Fourth Circuit's decision in Thomas, only one other 
published case appears to have addressed a claim that a union has 
failed to fulfill its Section 105 obligation. In McGovern v. Local 456, 
Int'l Bhd. of Teamsters, 107 F. Supp. 2d 311 (S.D.N.Y. 2000), aff'd, 
2001 U.S. App. LEXIS 28459 (2d Cir. Feb. 14, 2001), the plaintiff 
members claimed that their union had violated Section 105 when it 
failed to respond to their request for copies of documents related to 
negotiation of a concessionary provision in a collective bargaining 
agreement. Id. at 323-24. The plaintiffs argued that the union had 
failed to advise and assist them in protecting their rights, in 
violation of Section 105. Id. The court held that the plaintiffs had 
failed to state a claim under Section 105 inasmuch as the union ``has 
no duty under [S]ection 105 to advise or assist members of the Union.'' 
107 F. Supp. 2d at 324.
---------------------------------------------------------------------------
    In summary, all that can be gleaned from the language of Section 
105, or from any authoritative interpretation thereof, is that unions 
must in some fashion ``inform'' members concerning the Act's 
provisions--Nowhere is it written that unions must force members to 
read the information sent to them, or that unions must train members to 
understand or remember the sections of the LMRDA, or that unions must 
advise or assist members in enforcing their rightsunder the statute. 
See, e.g., McGovern v. Local 456, Int'l Bhd. of Teamsters, 107 F. Supp. 
2d at 324 (Section 105 does not require union to ``advise or assist 
members''), aff'd, 2001 U.S. App. LEXIS 28459 (2d Cir. Feb. 14, 2001). 
Moreover, Section 105 does not state that unions must prominently post 
copies of the Act or maintain and make available information concerning 
the statute, notwithstanding that Congress well knew how to draft and 
impose such requirements. See discussion Section VI(C)(4)(a), infra. No 
more can be read into Section 105 than that a union has a simple duty 
to convey the relevant information to its members.
            3. Plaintiffs' Request That the Court Require All Unions To 
                    Post the LMRDA Summary on Their Websites and To 
                    Append It to Their Constitutions Is Contrary to the 
                    Law of This Circuit
    Significantly, Plaintiffs' brief contains no mention of Carothers 
v. Presser, 818 F.2d 926 (D.C. Cir. 1987), clearly a seminal case in 
this Court's LMRDA jurisprudence. In a reply brief in the court below, 
Plaintiffs argued that Carothers was inapposite because they, unlike 
the Carothers plaintiffs, were not asking the Court to infer or imply a 
right not specifically provided for in the Act, but were rather seeking 
to enforce the `` `specifically enumerated' right to be informed'' 
about the LMRDA. (Reply in Support of Plaintiffs' Motion for Summary 
Judgment, filed June 21, 2002, p. 2.) They also contended that the 
Fourth Circuit in Thomas rejected ``the identical argument.'' (Id.) 
They are wrong on both counts.
    Plaintiffs are not simply seeking to require that the Union inform 
its members of the provisions of the Act, for that the Union has surely 
already done. Rather, Plaintiffs are asking the Court to compel this 
Union--and ultimately all unions--to post the LMRDA Summary on their 
websites and to append the Summary to their constitutions. In that 
quest, Plaintiffs are no longer moored in the actual words of the 
statute but are, by their own admission, seeking to enforce what they 
view as the overarching purpose of the Act. Yet, the Carothers court 
explicitly rejected a ``notion of union `democracy' [that] is cut loose 
from its statutory moorings,'' and warned of the ``mischief that is 
likely to result. . . .'' 818 F.2d at 934.
    Plaintiffs are not seeking to uphold a specifically enumerated 
right. Rather, they are seeking to do precisely what the Thomas court 
expressly rejected, namely, ``involv[ing] the courts in internal union 
management'' by asking the Court to prescribe particular means that 
unions must use to inform their members. 201 F.3d at 521. The Thomas 
court made clear its belief that, while a union's duty to inform under 
Section 105 extends to all members, not just those who belonged to the 
union in 1959, Section 105 ``does not dictate a specific method of 
compliance.'' Id.
    Carothers, and this Court's later decision in Gilvin v. Fire, 259 
F.3d 749 (D.C. Cir. 2001), are clearly on point in this proceeding. In 
Carothers, the plaintiffs contended (and the district court initially 
found) that a right of access to a union's mailing list was embodied in 
the ``equal rights'' provisions of Section 101(a)(1) of the LMRDA and 
the ``freedom of speech and assembly'' provisions of Section 101(a)(2). 
Carothers, 818 F.2d at 927 n.4, citing 29 U.S.C. Sec. Sec. 411(a)(1) 
and (2). In Gilvin, the plaintiff claimed that his suspension and 
removal from office because of his active criticism of the union 
president violated his Section 101(a)(1) right to participate in 
deliberations at membership meetings. Gilvin, 259 F.3d at 760. 
Accordingly, the plaintiffs in Carothers and Gilvin both cited specific 
provisions of the statute which, they contended, should be construed to 
impose certain obligations on their unions.
    In both cases, this Court found that the plaintiffs were attempting 
to obtain, in the guise of interpretation, protections that were not 
embodied in the statute itself. Carothers, 818 F.2d at 929-33; Gilvin, 
259 F.3d at 760-61. The Court specifically declined to infer rights 
based on the general statutory purpose of furthering union democracy, 
when those rights were not specifically enumerated in the statute 
itself. Carothers, 818 F.2d at 933-34.
    Likewise, in the case at bar, Plaintiffs invite the Court to infer 
a right to website postings and appendices to union constitutions from 
the straightforward language of Section 105. As will be discussed in 
later sections of this brief, when Congress has intended to impose 
requirements pertaining to website or other postings, or to the content 
of union constitutions, it has done so in clear and specific terms. 
Under Carothers and Gilvin, and indeed under the Fourth Circuit's 
decision in Thomas, the Plaintiffs' attempt to graft these specific 
obligations onto the unadorned language of Section 105 should be 
rejected.
C. The Undisputed Record Evidence Demonstrates That the Union Has 
        Complied With Section 105
    As previously stated, the Union has published the LMRDA Summary in 
the UA Journal, which was sent to all UA members. (JA 15, para. 10.) It 
is sending and will continue to send a copy of the LMRDA Summary to all 
new members. (JA 98-99; JA 110, para. 4.) And it has agreed to again 
publish the LMRDA Summary in the UA Journal in the calendar years 2004 
and 2008. (JA 15, para. 12.)
    Clearly, by sending a concededly adequate summary of LMRDA rights 
to each current and new member at his or her home address, the Union 
has satisfied the plain language of Section 105's duty to inform.
            1. The Steps Taken by the Union Are Consistent With, and 
                    Fully Satisfy, Longstanding Interpretations of 
                    Section 105 by Authoritative Sources
    The Union's steps to comply with Section 105 are fully consonant 
with the announced understanding of counsel involved in drafting the 
Act. Special Counsel Arthur J. Goldberg (who later became a Justice of 
the Supreme Court) opined--and advised AFL-CIO affiliates--
thatpublication of the Act in a reasonably accessible union publication 
would fulfill the requirements of Section 105. (See JA 117 and note 7, 
supra.) As Mr. Goldberg stated. ``[p]resumably, publication of the text 
of the Act in a union's newspaper or any other publication which is 
reasonably available to all of the union's members will be sufficient 
to satisfy the requirement contained in Section 105.'' (JA 117.) See 
also discussion in Thomas, 40 F. Supp. 2d at 741-42.
    Moreover, the Union's recent actions are exactly the steps 
described as satisfactory in written advice of Department of Labor 
officials to unions immediately following the enactment of the LMRDA. 
(See discussion notes 7-10, supra, and accompanying text.) In those 
letters, sent between November 1959 and October 1960, officials advised 
unions that providing each member with a copy of the Act, or with an 
adequate summary of the Act, would be sufficient to comply with Section 
105. (JA 124-35.) The letters also commented--with seeming approval--
that a number of unions had already taken exactly such steps. (Id.)
    The steps taken by the Union also fall well within the range of the 
Fourth Circuit's opinion in the Thomas case. The sole issue in Thomas 
was whether a union which had complied with Section 105 at the time of 
the LMRDA's passage had to continue to inform new members of the Act as 
they joined the union. Having answered that question in the 
affirmative, the court went on to comment that ``Section 105 does not 
dictate a specific method of compliance'' and that ``[a]ll the LMRDA 
directs is that [a union] afford notice of the LMRDA's provisions to 
any individual who meets the statutory definition of `member.' '' 201 
F.3d at 521. Thus, in the view of the Fourth Circuit, Section 105 
requires, at a minimum, that ``each individual, soon after obtaining 
membership, be informed about the provisions of the LMRDA.'' Id. This 
is exactly what the Union is now doing, and what it has been doing 
since March 2001, six months following entry of the final order in the 
Thomas case.
    The Union's actions prior to the Fourth Circuit's decision in 
Thomas were consistent with the prevailing understanding of the Act's 
requirements, including that of the district court in Thomas. Soon 
after the Fourth Circuit ruled that additional actions were necessary, 
the Union took the additional actions suggested by the court's 
analysis, without waiting to see if that analysis would be adopted by 
the other circuits. As the court below correctly concluded, the steps 
taken by the Union are sufficient to comply with Section 105.
            2. The Court Below Correctly Found Plaintiffs' Affidavit 
                    Evidence To Be Unpersuasive and Immaterial
    Based upon the undisputed facts that the Union has published the 
LMRDA Summary in a union magazine sent to all members, that it has 
promised to repeat this step in 2004 and in 2008, and that it is 
sending a copy of the Summary to each new member upon initiation, the 
district court correctly determined as matter of law that the Union was 
entitled to summary judgment in its favor. Plaintiffs' affidavit 
evidence, consisting primarily of the opinions of union democracy 
advocates, was deemed by the court below to consist of matter ``not 
susceptible of a judicial remedy.'' (JA 10.) In other words, the views 
of the affiants were not material to the central legal question before 
the court: whether the Union had satisfied its Section 105 duty to 
inform.
    This holding was plainly correct. The professed experts whose views 
are pressed upon this Court make no claim to familiarity with the Union 
Defendant herein. (JA 37-39, 55-56, 58-59, 62, 64.) They assert no 
knowledge of the Union's structure, its political processes, its 
Constitution, or the method by which it communicates information to its 
members. (Id.) Indeed, not one of these individuals claims ever to have 
conducted any serious study--scholarly or otherwise--on the methods by 
which unions generally communicate with their membership and/or the 
relative effectiveness of such methods.\13\
---------------------------------------------------------------------------
    \13\ Ironically, the author of the one study cited in Plaintiffs' 
brief reaches an ultimate conclusion which is substantially at odds 
with the contentions pressed by Plaintiffs and their experts on this 
Court. The author of the unpublished dissertation discussed at page 9 
of Plaintiffs' brief studied six unions in Texas in the early 1980s, 
and he did indeed find that ``Generally, the union officers interviewed 
in this survey were not aware of the requirements of Landrum-Griffin.'' 
(JA 139-40,) Significantly, the author went on to state: ``However, 
there were no indications of serious problems in any of the areas 
covered by the Act. This could mean that the Act is accomplishing its 
purpose and has caused the international union to change its rules and 
to monitor the local unions very closely. On the other hand, it could 
mean that the Act was not needed within these particular unions.'' 
(Id.)
    Moreover, according to the author, his findings ``suggested that 
rights of members are being protected (and) that democratic practices 
are being followed,'' whether as a result of the Act or of other forces 
in society. (JA 138.) This is a far cry from the extremist views 
expressed in Plaintiffs' brief and in some of their experts' 
declarations, which would have the reader believe that union abuse of 
democratic procedures was and is widespread and chronic. (See, e.g., 
Appellants' Br. at 13, 26 (espousing the view of Mr. Summers that union 
members are in the ``iron grip of oligarchy'').)
---------------------------------------------------------------------------
    None of these putative experts, moreover, professes to have any 
familiarity with the effects of recent steps taken by this Union and 
others to renew their compliance with Section 105 of the Act in light 
of the Fourth Circuit's holding in Thomas. In short, none of these 
individuals offers specialized knowledge that would in any way assist 
the Court in understanding the evidence in this case or in determining 
any fact in issue. See Fed. R. Evid. 702.\14\ Accordingly, these 
declarations were correctly not deemed persuasive below, and should be 
disregarded by this court.\15\
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    \14\ The Rule states: ``If scientific, technical, or other 
specialized knowledge will assist the trier of fact to understand the 
evidence or to determine a fact in issue, a witness qualified as an 
expert by knowledge, skill, experience, training, or education, may 
testify thereto in the form of an opinion or otherwise, if (1) the 
testimony is based upon sufficient facts or data, (2) the testimony is 
the product of reliable principles and methods, and (3) the witness has 
applied the principles and methods reliably to the facts of the case.'' 
Fed. R. Evid. 702.
    \15\ The Union adequately preserved its position on this issue by 
its detailed objections to the affidavits in the court below. (See 
Defendants' Memorandum of Points and Authorities in Opposition to 
Plaintiffs' Motion for Summary Judgment and in Support of Defendants' 
Cross Motion for Summary Judgment, filed June 13, 2002, pp. 14-21.) See 
Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001) (by making 
detailed objections in court below, defendant preserved right to 
challenge affidavit on appeal).
---------------------------------------------------------------------------
    Several courts of appeal, including this Court, have recognized 
that expert opinion testimony may not be admitted for the purpose of 
advising the Court on the meaning of the law. See, e.g., Burkhart v. 
Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212-14 (D.C. Cir. 
1997) (reversible error to allow an expert in police practices to opine 
on whether police officers' efforts in communicating with a deaf 
plaintiff were enough to satisfy federal disability statutes); Snap-
Drape, Inc. v. Commissioner, 98 F.3d 194, 197-98 (5th Cir. 1996) (trial 
court properly excluded taxpayer's expert reports as containing nothing 
more than legal arguments concerning the tax treatment of certain 
dividends); Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir. 
1994) (finding inadmissible the comments of an expert in police 
practices on the meaning of the legal term ``deliberate indifference'' 
in a civil rights case); Aguilar v. Int'l Longshoreman's Union, Local 
#10, 966 F.2d 443, 447 (9th Cir. 1992) (testimony of purported expert--
that workers reasonably and foreseeably relied on Defendants' 
promises--addressed ``matters of law for the court's determination'' 
that were ``inappropriate subjects for expert testimony''); Specht v. 
Jensen, 853 F.2d 805 (10th Cir. 1988) (en banc) (reversible error to 
allow an expert witness who was an attorney to give his opinions on 
what was required to make consent to a search effective); Adalman v. 
Baker, Watts & Co., 807 F.2d 359, 368 (4th Cir. 1986) (testimony of 
expert regarding legal requirements of disclosure under securities laws 
deemed inadmissible); Marx & Co. v. Diners' Club, Inc., 550 F.2d 505 
(2d Cir. 1977) (securities lawyer, called as an expert, could not 
testify to the legal obligations created under a contract). As the 
Seventh Circuit stated in Minaslan v. Standard Chartered Bank, PLC, 109 
F.3d 1212, 1216 (1997), ``An expert who supplies nothing but a bottom 
line supplies nothing of value to the judicial process.''
    The affidavits relied on by Plaintiffs clearly suffer from the same 
failing: they are an attempt to urge upon the Court a particular 
reading of the law. (See, e.g., JA 39, para. 12; JA 48-49, para. 26; JA 
56-57, para.para. 8-12; JA 60-61, para.para. 13-15; JA 63, para.para. 
4, 6; JA 65-66, para.para. 12-13.) Indeed, the affidavits are a step 
further removed from the ``bottom line'' opinions rejected in the cases 
above. The affiants herein seek to instruct the Court on what the law 
should be,\16\ rather than on what it actually is.\17\ This is of no 
assistance in this proceeding, and the testimony was correctly deemed 
unpersuasive below.
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    \16\ See JA 39 (Summers Aff. para. 12); JA 46-47 (Benson Aff. 
para.para. 14-20, 26); JA 56-57 (Fletcher Aff. para.para. 8-12); JA 60-
61 (Zipser Aff. para.para. 12-13, 15); JA 63 (Fishgold Aff. para.para. 
4-7); JA 65-66 (Paff Aff. para.para. 11-14).
    \17\ Likewise, the six declarations are replete with inadmissible 
hearsay (JA 38-39 (Summers Aff. para.para. 8-9, 11)), conclusory 
assertions for which no adequate factual basis is provided (JA 44-48 
(Benson Aff. para.para. 5, 10, 12, 14, 16-17, 22-24); JA 56-57 
(Fletcher Aff. para.para. 11-12); JA 59-61 (Zipser Aff. para.para. 11, 
15); JA 63 (Fishgold Aff. para.para. 5, 7); JA 65-66 (Paff Aff. 
para.para. 8-12, 14)), and bald speculation and surmise (JA 38-39 
(Summers Aff. para.para. 7-12); JA 44, 46-48 (Benson Aff. para.para. 6, 
12-25); JA 56-57 (Fletcher Aff. para.para. 9-12); JA 38-39 (Summers 
Aff. para.para. 9-10, 12); JA 44, 46-48 (Benson Aff. para.para. 5, 12-
13, 15, 17, 19-22, 24-25); JA 56-57 (Fletcher Aff. para.para. 9-12); JA 
59-60 (Zipser Aff. para.para. 10-14); JA 63 (Fishgold Aff. para.para. 
5-7); JA 65-66 (Paff Aff. para.para. 8-14)). Moreover, significant 
portions of the declarations recite facts about other unions, facts 
that have no bearing whatsoever on any issue now before this Court, 
rendering them inadmissible under Fed. R. Civ. P. 56(e). (JA 38 
(Summers Aff. para. 6); JA 45-48 (Benson Aff. para.para. 7-12. 22-23); 
JA 55-56 (Fletcher Aff. para.para. 3-6).)
---------------------------------------------------------------------------
    The material facts in this proceeding are undisputed, and the 
proffered views of Plaintiffs' experts fail to assist the Court in 
determining those facts. Significantly, Plaintiffs failed to 
incorporate the content of these affidavits in their Local Rule 7.1(h) 
Statement of Material Facts. (JA 14-16.) Defendants agree that the 
affidavits are not material to the resolution of the legal question now 
before this Court, and further submit that the testimony seeks 
improperly to invade the province of the Court.
            3. Even Probative Evidence That Union Members Remain 
                    ``Uninformed'' About Their LMRDA Rights Would Not 
                    Establish That the Union Had Violated Its Section 
                    105 Duty To Inform
    The major thrust of Plaintiffs' argument, and the complaints of 
their experts, is that union members as a group are not sufficiently 
aware of their rights under the Act.\18\ However, a union that has 
taken adequate steps to provide members with information about the 
LMRDA cannot be held responsible for what members thereafter do with 
that information. A union cannot force its members to read or retain 
information on LMRDA rights, not is it required to do so. As long as it 
provides the information to its members, its Section 105 duty is 
satisfied.
---------------------------------------------------------------------------
    \18\ The vast majority of Plaintiffs' affidavit evidence on this 
point pertained to union members at large, and not to members of the 
Defendant Union herein. The primary exception is the bald assertion of 
Plaintiff Callihan that ``as a result of my conversations with other UA 
members, primarily in my local, and my observation of members during 
union meetings, it is clear that no one has any recollection of the 
contents of the one-page Summary of Union Member Rights published in 
the Journal a year ago.'' (JA 22, para. 8.) Mr. Callihan established no 
proper foundation for this broad and conclusory assertion, which rests 
on speculation and inadmissible hearsay. Such testimony would not be 
admissible at trial and fails to comply with Fed. R. Civ. P. 56(e). 
See, e.g., Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) 
(``Statements predicated upon undefined discussions with unnamed 
persons at unspecified times are simply too amorphous to satisfy the 
requirements of Rule 56(e), even when proffered in affidavit form by 
one who claims to have been a participant.'').
---------------------------------------------------------------------------
    Plaintiffs seemingly confuse the verb ``inform'' contained in 
Section 105 with the adjective ``informed.'' \19\ The Act requires 
unions to take a specific, verifiable action: to ``inform,'' i.e., to 
notify, their members of the provisions of the Act. Section 105 does 
not and cannot further hold the unions to the lofty ideal of an 
``informed'' membership that knows the statute chapter and verse.
---------------------------------------------------------------------------
    \19\ ``Informed'' is an adjective meaning ``having or based on much 
information, knowledge or education.'' Webster's New World Dictionary 
693 (3rd ed. 1988).
---------------------------------------------------------------------------
    The Union in this case has taken appropriate and reasonable actions 
that have provided its members with information concerning the 
provisions of the Act. The statute does not require more.
            4. Plaintiffs Have Not Established, and Cannot Establish, 
                    That Website Posting and Attachment to the Union 
                    Constitution Are Mandated by Section 105, or Indeed 
                    That Such Steps Would Have Any Appreciable Effect
    Plaintiffs contend that the Union is in violation of Section 105 
because it has not (1) posted the LMRDA Summary on its website; and (2) 
agreed to publish the LMRDA Summary as an Appendix to the UA 
Constitution.\20\ Notably, they make this argument on the basis of 
Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314-35 (1950). 
(Appellants' Br. at 18-19.) Mullane concerned what form of ``notice'' 
was required before an individual could be denied a property right 
consistent with the due process clause of the Fourteenth Amendment, 
which would seem to be a more stringent requirement than Section 105 of 
the LMRDA. Nevertheless, the Court held in Mullane that the sending of 
the notice to the affected individuals by ``ordinary mail'' to their 
``record addresses'' was sufficient to meet the constitutional 
requirement. Id. This is precisely what the Union has done in 
publishing the LMRDA summary in the UA Journal, which is sent to all 
active members' record addresses by ordinary mail, and in mailing the 
summary to new members with their membership cards. Thus, Mullane 
provides no help to Plaintiffs.
---------------------------------------------------------------------------
    \20\ Plaintiffs also seek annual publication of the LMRDA summary 
in the UA Journal (not just in 2004 and 2008 as the UA has committed to 
do) until 2006 when the UA is next scheduled to re-publish its 
constitution. (Appellants' Br. at 27 n.16.) This demand seems to run 
counter to a main thrust of Plaintiffs' argument that publication in 
the UA Journal is an ``empty gesture'' because the magazine is 
``boring.'' (Appellants' Br. at 23.)
---------------------------------------------------------------------------
    Plaintiffs' arguments in favor of requiring that the LMRDA Summary 
be posted on the Union's website and appended to its Constitution as 
mandatory components of compliance with the Act are unsupported in the 
record or in the law. As has been discussed, the measures sought by 
Plaintiffs are not grounded in the language of the statute.\21\ 
Moreover, the record does not indicate that the measures sought by 
Plaintiffs would operate to communicate LMRDA information to a 
significantly greater number of union members. Finally, the measures 
sought by Plaintiffs could and would have been spelled out in the 
statute itself had Congress meant to require them.
---------------------------------------------------------------------------
    \21\ Absent a violation of Section 105, Plaintiffs' motion for 
summary judgment was properly denied. However, Defendants would further 
stress that even if Plaintiffs had been able to establish a Section 105 
violation, the measures sought by Plaintiffs would not be an 
appropriate exercise of the Court's remedial discretion. See, e.g., 
Local No, 82, Furniture & Piano Movers v. Crowley, 467 U.S. 526, 538 
(1984) (Section 102 ``explicitly limits the relief that may be ordered 
by a district court to that which is `appropriate' to any given 
situation''). The Union herein promptly published the text of the LMRDA 
within a month of its enactment, fulfilling all contemporaneous 
pronouncements regarding the Section 105 obligation, and indeed 
fulfilling the initial pronouncement of the district court in the 
Thomas case. (JA 14, para. 3.) Until the Fourth Circuit's decision in 
Thomas, the Union had every reason to believe it had fully complied 
with the requirements of Section 105. Six months following the consent 
order in Thomas, the Union commenced substantive actions to inform all 
current and new members of the Act's provisions, irrespective of the 
possibility that the Fourth Circuit's view might not find favor in 
other Circuits. The Union has acted reasonably and with due diligence 
and, accordingly, the extraordinary measures proposed by Plaintiffs 
would not be justified even in the exercise of the Court's remedial 
powers.
---------------------------------------------------------------------------
            a. The Failure To Post the LMRDA Summary on the Union's 
                    Website Is Not a Violation of Section 105
    Plaintiffs premise their claim of a Section 105 violation in part 
on the Union's failure to post the LMRDA Summary on its website. Once 
again, it is significant that commentary by a drafter of the Act, and 
contemporaneous opinions of Department of Labor officials, found 
publication of the Act in a union magazine to completely satisfy a 
union's obligation under Section 105.\22\ Needless to say, the 1959 
Congress cannot have intended that website publication be a mandatory 
component of compliance with Section 105.
---------------------------------------------------------------------------
    \22\ Plaintiffs' contention that publication in a union journal, 
standing alone, is insufficient is also belied by decisions regarding 
the sufficiency of a union's efforts to notify employees of their right 
to become agency fee objectors under Communications Workers of Am. v. 
Beck, 487 U.S. 735 (1988). In Nielsen v. Int'l Ass'n of Machinists, 94 
F.3d 1107 (7th Cir. 1996), for example, the plaintiff argued that 
publication of the Beck notice in the union magazine was done ``in a 
manner which discourages employees from actually seeing it.'' Id. at 
1115. The court disagreed, noting, inter alia, that the plaintiff was 
on the magazine's subscription list, that the notice was well-marked, 
listed in the table of contents, and printed in legible type. If 
publication in the union magazine is deemed sufficient to give notice 
to employees of their window period for filing objections to the 
payment of particular fees, it would seem readily to fulfill a union's 
obligation to inform members of the LMRDA.
---------------------------------------------------------------------------
    Plaintiffs apparently feel that the virtue of a website posting 
(which, according to one of Plaintiffs' experts, has been done by only 
a few unions \23\) is that it would provide a readily available source 
of information to members on an ongoing basis. However, Section 105 
does not require unions to make the LMRDA accessible to members on an 
ongoing basis; it simply requires that a union ``inform'' its members 
concerning the provisions of the Act.
---------------------------------------------------------------------------
    \23\ (JA 39) (Summers Aff. para. 10).) The fact that the Machinists 
agreed to such a measure does not make it mandatory under the Act. 
Other unions, according to Plaintiffs' counsel, have not agreed to a 
website posting. (See JA 67-68. 85-86 (Fox Aff. para.para. 4-5 & Exs. 
C-D).)
---------------------------------------------------------------------------
    In arguing for a requirement that unions make LMRDA information 
available on a continuing, or ongoing, basis, Plaintiffs seemingly 
misapprehend the Fourth Circuit's use of the word ``continuous'' in its 
opinion in the Thomas case. The court stated:

          Given the statutory definition of ``member,'' the continuous 
        nature of the notification duty is evident. Union membership is 
        not static--the membership changes as some individuals retire 
        and others join. Many, if not most, of the current members of 
        the IAM were not members in 1959 and thus have never been 
        informed by the IAM of the provisions of the LMRDA. The IAM's 
        single act of notification in 1959 did not inform a large 
        portion of those individuals who by definition are ``members'' 
        of the union. It is therefore clear that the IAM is out of 
        compliance with the mandate of Section 105.

201 F.3d at 519.
    Clearly, the Fourth Circuit's concern was with the ``continuous'' 
flow of new members into the union, an issue the Union herein has now 
addressed by sending the LMRDA summary to all new members commencing in 
April 2001. The Fourth Circuit in Thomas was not announcing a new rule 
of law that required unions to make the LMRDA continuously available to 
members by a posting or some similar means. Indeed, in its comments 
regarding the implementation of the notice requirement on remand, the 
Fourth Circuit expressed no concern about the text of the Act being 
posted or otherwise continuously available.
    Section 105, by its terms, does not require a continuous posting or 
publication of the Act. In contrast, the immediately preceding section 
of the Act requires unions to maintain copies of collective bargaining 
agreements and to make them available for inspection by employees whose 
rights are affected by the agreements. See 29 U.S.C. Sec. 414. 
Likewise, under Section 206 of the Act, unions are required to 
maintain--and keep available for examination--records on which their 
financial reports to the Department of Labor are based. See 29 U.S.C. 
Sec. 436. Clearly, then, when the drafters of the LMRDA intended to 
require unions to maintain documents or information for consultation by 
union members on an ongoing basis, they specified that requirement in 
clear and specific terms.
    Similarly, Congress knew how to draft a statute requiring unions to 
post provisions of law in a prominent place easily accessible to 
members.\24\ In Title VII of the Civil Rights Act of 1964, for example, 
Congress specified that labor organizations

    \24\ Indeed, Congress has demonstrated its ability to draft a 
statute requiring a website posting. See 42 U.S.C. Sec. 13218(b)(3)(A) 
(requiring federal agencies to place certain reports on publicly 
available websites on the Internet).

        shall post and keep posted in conspicuous places on its 
        premises where notices to . . . members are customarily posted 
        a notice to be prepared or approved by the [Equal Employment 
        Opportunity] Commission setting forth excerpts from, or 
        summaries of, the pertinent provisions of this subchapter and 
---------------------------------------------------------------------------
        information pertinent to the filing of a complaint.

42 U.S.C. Sec. 2000e-10(a). As this Court held in similar circumstances 
in Carothers, this is powerful evidence against implying a posting or 
similar requirement in Section 105. See Carothers, 818 F.2d at 930 
(``Where Congress intended to create a right of access to a union's 
mailing list . . . it said so explicitly.'')
    Interestingly, Plaintiffs expressly conceded in the court below 
that website publication ``would only be of limited usefulness.'' 
(Plaintiffs' Memorandum in Support of Motion for Summary Judgment filed 
May 16, 2002, p. 18.) Five of Plaintiffs' affiants concede the same 
point. (JA 39, para. 10; JA 48, para. 26; JA 56, para. 10; JA 60, para. 
14; JA 66, para. 13.) There are undoubtedly many potential mechanisms 
for ``informing'' members that would likewise be only of limited 
utility. The contention that a union's failure to employ such a 
mechanism places it in violation of Section 105 is simply untenable.
            b. The Failure To Append the LMRDA Summary to the UA 
                    Constitution Is Not a Violation of Section 105
    In the most extreme of their arguments, Plaintiffs seek to premise 
a Section 105 violation on the Union's failure to publish the LMRDA 
Summary as an appendix to its Constitution. Neither the comments of the 
drafters of Section 105, the simultaneous advice of Department of Labor 
officials, nor the Fourth Circuit's decision in Thomas lend any support 
to Plaintiffs' claim that appending the LMRDA Summary to the union's 
constitution is a mandatory component of compliance with Section 105. 
Moreover, this was not even mentioned in the consent order resolving 
the Thomas case.
    This is a remarkably intrusive suggestion. The Union's 
Constitution--like that of most labor organizations--comprises the 
internal governing laws of the organization. See, e.g., Stevens v. 
Northwest Ind. Dist. Council, United Bhd. of Carpenters, 20 F.3d 720, 
732 (7th Cir. 1994) (recognizing union constitution as internal 
governing document, which, under doctrine of exhaustion, union should 
be given opportunity to interpret in first instance). Plaintiff 
Callihan characterizes it as the Union's ``Bible.'' (JA 23 (Callihan 
Aff. para. 9).) The UA Constitution, by law, is a contract between the 
International Union and its affiliated Locals. See United Ass'n of 
Journeymen and Apprentices v. Local 334, United Ass'n, 452 U.S. 615, 
619-20 (1981).
    The LMRDA and regulations thereunder leave unions nearly unfettered 
discretion in deciding what topics to cover or not to cover in their 
constitutions. The only requirements imposed by law, in Section 201(a) 
of the LMRDA, are that each union adopt a constitution and that it file 
a copy of its constitution with the Department of Labor, See 29 U.S.C. 
Sec. 431(a). While provisions of the UA Constitution may be suspended 
in the event they are held unlawful by a court of competent 
jurisdiction, (Perno Decl. Ex. C Sec. 220),\25\ it would be highly 
unusual for a court to order this Union--or any union--to add 
particular material to a constitution.\26\ Indeed, such a ruling, if 
applicable, would likely place every single American labor organization 
in instant violation of Section 105. Section 201(a), enacted 
simultaneously with Section 105, imposes no such requirement and it can 
be fairly assumed that Congress--which was well aware in 1959 of the 
existence and significance of union constitutions--did not intend to 
impose one.
---------------------------------------------------------------------------
    \25\ Perno Declaration Exhibit C is the text of the UA Constitution 
which was admitted to the record in the District Court but omitted from 
the Joint Appendix in the interest of brevity.
    \26\ The UA Constitution can be changed only at the Union's 
quinquennial convention, or by referendum vote conducted pursuant to 
extensive and detailed procedures. (Perno Decl. Ex. C, Sec. Sec. 217-
18.)
---------------------------------------------------------------------------
    Moreover, the record suggests that adding the LMRDA Summary to the 
Union's Constitution would not have the effect of more widely 
disseminating the document than does present practice.\27\ Whereas the 
UA Journal is sent to all new members, the UA Constitution is not. 
Copies of the Constitution are provided to members on request (JA 110 
(Perno Decl. para. 5)), which is all that is required by the Act. See 
Donovan v. Local 1235, Int'l Longshoremen's Ass'n, 715 F.2d 70, 75 (3d 
Cir. 1983). Interestingly, Plaintiff Callihan's declaration appears to 
suggest that--if the Court were to order the LMRDA Summary appended to 
the Constitution--Plaintiffs would then make a ``bootstrap'' claim that 
the UA had to send the Constitution to all members because it contained 
the LMRDA Summary. (JA 23 (Callihan Aff. para. 9).) Yet, as the Third 
Circuit held in the Local 1235 case, the law does not impose such an 
obligation on unions. 715 F.2d at 75.
---------------------------------------------------------------------------
    \27\ Indeed, the Thomas court rejected the IAM's post-1959 
inclusion of some LMRDA protections in its constitution as evidence of 
its compliance with Section 105 at least in part because it was ``at 
best unclear how widely circulated'' the IAM Constitution was. 201 F.3d 
at 521.
---------------------------------------------------------------------------
    Significantly, when Plaintiff Callihan wrote to the Union's General 
President, following the final order in the Thomas case, and requested 
that the Union take particular steps to comply with Section 105, he 
sought only a one-time publication of the LMRDA Summary in the UA 
Journal, and a website posting. (JA 26.) Mr. Callihan did not request 
that the Union append the LMRDA Summary to its Constitution, and it 
undoubtedly did not occur to him to do so. In these circumstances, it 
would be grossly unfair to hold the Union in violation of the Act 
because of its failure to initiate such a highly unusual, indeed 
unprecedented, action.
VII. Conclusion
    Plaintiffs have failed to satisfy their burden of establishing that 
a violation of a specifically enumerated LMRDA right has occurred. 
Since there is no violation of the Act, there is no basis for the Court 
to order a remedy. Accordingly, Appellees urge the Court to affirm the 
judgment of the court below.
            Respectfully submitted,
                                   Sally M. Tedrow, DC Bar #938803,
                                   Dinah S. Leventhal, DC Bar #456054,
                                           O'Donoghue & O'Donoghue, 
                                               Washington, DC, 
                                               Attorneys for Appellees,
                                   Dated: February 14. 2003. +

                               ADDENDUM F

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 02-7111

CHARLES CALLIHAN, et al., Plaintiff-Appellants, v. UNITED ASSOCIATION 
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, 
et al., Defendant-Appellees.

On appeal from the United States District Court for the District of 
Columbia
                        appellants' reply brief
    In its Brief, the UA does not take issue with appellants' 
discussion of the legislative history of Title I, or Congress' 
objectives and overriding goals when enacting the LMRDA, or the fact 
that it is a remedial statute which must be interpreted broadly to 
effectuate those goals, or that Congress intended for the courts to 
determine the manner or means by which unions would comply with Section 
105. Nor does the UA inform the Court that it would be impossible, or 
unduly burdensome, or even just difficult, for it to afford any 
component of the relief appellants contend is necessary to remedy the 
UA's 40-plus years of non-compliance with the Section 105 informational 
mandate.
    Rather, the UA's defense of the district court's decision below is 
built almost entirely upon this Court's opinion in Carothers v. 
Presser, 818 F.2d 926 (D.C. Cir. 1987). In that case, union members 
asserted an LMRDA Title I right of access to their union's mailing list 
in order to distribute literature opposing ratification of a collective 
bargaining agreement, a right allegedly ``derived from subsection 
101(a)(1)'' which ``flows from subsection 101(a)(2).'' Id. at 930. The 
Court found no such right ``specifically enumerated in the statute'' 
and refused to infer or imply such a right based upon the ``equal right 
to participate in union affairs,'' conferred by Sec. 101(a)(1), or the 
``free speech right,'' conferred by Sec. 101(a)(2). However, the Court 
did hold that ``access to a union's mailing list may . . . be granted 
in appropriate circumstances as a remedy for an independent violation 
of the statute.'' Id. at 928 (emphasis in original).
    In the case at bar, plaintiff-appellants are asking the Court to 
remedy a violation of Section 105. They are not asking the Court to 
infer or imply a right to be informed by their union about the LMRDA, 
or to create a new substantive right. Section 105 already imposes on 
unions a clear duty to inform their members about the provisions of 
that Act; conversely, members have a ``specifically enumerated'' right 
to be informed concerning their rights, and their officers' 
responsibilities, under the LMRDA.\1\ As a consequence, Carothers is 
inapposite and the Union's legal defense against plaintiffs' summary 
judgment motion accordingly collapses.\2\
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    \1\ We readily concede that Section 105 does not explicitly confer 
on plaintiffs a right to have the entire text of the LMRDA, or just a 
summary, posted on bulletin boards, or published periodically in their 
Union's magazine, or as an appendix to their Union's constitution, or 
on its website, or disseminated by some other means; these are, 
however, means by which the Court may remedy the UA's 40-plus-year 
violation of Section 105.
    \2\ If, as the UA contends, Carothers is so relevant, one would 
think that the district court would at least have referred to it in its 
decision below. Throughout its brief, the UA also cites Gilvin v. 
Fiore, 259 F.3d 749 (D.C. Cir. 2001), in tandem with Carothers. 
However, in Gilvin, this Court merely noted that the plaintiff had 
``failed to articulate how he was deprived of any of the specific 
rights protected by Sec. 101(a)(1) [of the LMRDA]'' while conceding 
that he had, in fact, been allowed to exercise each and every one of 
the rights set forth in that subsection. Accordingly, having failed to 
state a claim, the Court upheld dismissal of this one claim. In doing 
so, the Court happened to cite Carothers, but Gilvin simply does not 
afford any support for the UA's claim that plaintiff-appellants are 
seeking to have this Court infer a member right to be informed that is 
not already contained in Section 105.
    Similarly, the UA's reliance on McGovern v. Teamsters Local 456, 
107 F.Supp. 2d 311 (S.D.N.Y. 2001), is misplaced. In that case, the 
court dismissed a Section 105 claim because the complaint merely 
alleged that the union had failed to furnish requested information 
relevant to contract negotiations, and plaintiffs proffered no evidence 
that the union had failed to advise them of their rights under the 
LMRDA.
---------------------------------------------------------------------------
    Indeed, in Thomas v. IAM, 201 F.3d 517 (4th Cir. 2000), the IAM 
also argued that the plaintiffs were asking the ``court to create 
rights and remedies that Congress never authorized.'' Id. at 520. In 
rejecting the argument, the Fourth Circuit observed:

          The plaintiffs in this case are not asking this court to 
        construct a right out of the penumbras of related provisions. 
        Rather, they are asking the court to perform the most 
        traditional of judicial functions--to give effect to the plain 
        language of section 105.

Id. at 521. Here too, we are asking the Court to give meaning and 
effect to the plain language of Section 105 by crafting an appropriate 
remedy.
    There simply is no dispute that for more than 40 years the UA 
ignored its Section 105 duty to inform its membership about the 
provisions of the Act.\3\ Thus, what is at issue at this stage of the 
proceeding is not whether the UA violated Section 105, but rather what 
relief will function to remedy that violation, i.e., what steps the UA 
must undertake that will operate to inform its members concerning their 
rights, and their officers' duties, under the LMRDA, and how to enforce 
them. Having done so, the Court can then decide if the UA has afforded 
complete relief. In fact, no court has yet to address this issue and 
frame appropriate relief for exacting union compliance with Section 
105's informational mandate.\4\
---------------------------------------------------------------------------
    \3\ See JA 14 para. 4, Plaintiffs' Statement of Material Fact: 
having published the text of the LMRDA in 1959, ``during the balance of 
the 20th century, the UA took no further steps systematically to inform 
its membership concerning the provisions of the LMRDA.'' While the UA 
responded that it had ``given seminars on a regular basis for the 
business managers and financial secretary-treasurers of UA Local 
Unions, including presentations of the obligations of the UA and Local 
Unions under the LMRDA,'' Perno Declaration para. 7, informing only the 
UA's top officers concerning their obligations under the LMRDA is a far 
cry from informing the entire UA membership concerning their rights 
under the LMRDA. See also UA Br. at 4 n.5. There simply is no dispute 
as to this one and essentially only material fact.
    \4\ In the Thomas v. IAM litigation, neither the Fourth Circuit, 
nor the district court, had a record or developed information which 
would have allowed the framing of appropriate relief. Rather, as 
acknowledged by the UA, Br. at 11, the parties effectively negotiated a 
consent order which the district court entered.
---------------------------------------------------------------------------
    Even the UA concedes, as it must, Br. at 7-8, once a violation of 
Section 105 has been found, responsibility for shaping the remedy lies 
within the considered discretion of the Court. And this discretion 
should be exercised in light of the teachings of Hall v. Cole, 412 U.S. 
l, 10-11 (1973), and Masters, Mates & Pilots v. Brown 498 U.S. 466, 476 
(1991).
    While the district court could have framed relief in an 
informational vacuum, plaintiff-appellants thought that the wiser 
course would be to develop a record that would enable the court to 
consider all of the different means available to the UA for meeting its 
Section 105 duty so as to facilitate its framing appropriate relief 
that would promote Congress' objectives. Toward that end, plaintiffs 
adduced helpful information and expert opinion concerning the efficacy 
of various different means by which unions generally, and the UA in 
particular, could``inform'' their members about the LMRDA. The UA chose 
not to challenge the exceptional credentials of, much less any of the 
information or opinion proffered by, plaintiffs' experts. Rather, they 
asked the district court to blind itself by striking virtually all of 
this useful information and opinion. The district court declined to 
grant the UA's motion which the UA has essentially renewed in this 
Court, citing case law to the effect that expert testimony ``may not be 
admitted for the purpose of advising the Court on the meaning of the 
law.'' Br. at 16-20. However, the UA's argument flies wide of its mark 
since plaintiff-appellants' affidavits were offered not to instruct the 
court on the meaning of the law, but rather to assist the court in 
framing appropriate relief.
    Although the UA complains that plaintiffs' experts have not, in its 
view, established their familiarity with the internal workings and 
governing structure of the UA, it does not challenge the applicability 
of their opinions to the UA.\5\ Importantly, the UA does not challenge 
the proposition that few of its members read the UA Journal and thus 
that its 2001 publication of the LMRDA Summary in its Journal 
accomplished little to nothing in terms of informing its membership 
about the LMRDA. Nor does it challenge the axiom that its members are 
generally unconcerned about their LMRDA rights until they actually need 
their protection as a consequence of some unlawful action taken by 
their Union's officers. Nor does the Union take issue with the fact 
that its members are essentially required to, and do typically refer 
to, the UA Constitution when it becomes necessary to learn about their 
rights as members, or citizens of the union state, and particularly how 
to secure or enforce them, i.e., when the Union infringes their 
constitutional or statutory rights.
---------------------------------------------------------------------------
    \5\ Inasmuch as many unions are headquartered in the District of 
Columbia, we acknowledge that the Court's decision in this case will 
provide important guidance, and may have a significant impact on 
compliance with Section 105 by other unions. However, a remedial order 
in this case will not serve to establish, or to enumerate, any specific 
statutory rights applicable to all unions, for all time to come. But 
see UA Br. at 12.
---------------------------------------------------------------------------
    Rather, the UA contends that plaintiff-appellants ``are seeking to 
do precisely what the Thomas court expressly rejected, namely, 
`involv[ing] the courts in internal union management' by asking the 
Court to prescribe particular means that unions must use to inform 
their members.'' Br. at 13. To the contrary, what the Thomas court 
actually said was: ``Granting plaintiffs the relief to which they are 
statutorily entitled need not involve the courts in internal union 
management.'' 291 F.3d at 521.\6\
---------------------------------------------------------------------------
    \6\ While the court did not actually determine what relief would be 
appropriate on remand, it did suggest possible inclusion of the LMRDA 
Summary in the union's constitution as one appropriate form of relief 
but suggested that ``something more will [also] be required.'' 201 F.3d 
at 521. Contrary to the UA's contention, Br. at 10, 15, the court did 
not hold that furnishing a copy of the Summary to new members at the 
time they first join the union would satisfy the Section 105 
informational mandate.
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    In a similar vein, quoting from S. Rep. No. 187, I NLRB Legis. 
Hist. at 403, the UA contends that Congress intended its goal of 
democratic governance ``to be achieved within `a general philosophy of 
legislative restraint' to avoid unnecessary governmental intrusion into 
union affairs.'' Br. at 7. But, the quoted language was merely the 
Committee's explanation, when reporting its bill to the full Senate, 
for having chosen not to regulate unions more extensively. In fact, the 
full Senate did not share, and affirmatively repudiated, its 
Committee's ``philosophy'' when amending the Committee's bill to 
include all of Title I. See Cox, Internal Affairs of Labor Unions Under 
The Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 845 (1960); 
Masters, Mates & Pilots v. Brown, 498 U.S. 466, 477-78 (1991)(``policy 
of avoiding unnecessary intervention in internal union affairs . . . 
reflected in several provisions,'' is ``notably absent in 
Sec. 401(c)''); Wirtz v. Glass Bottle Blowers, 389 U.S. 463, 473 
(1968). Moreover, the Committee's Report was certainly not intended to 
counsel judicial restraint when fashioning relief for violations of 
those incursions into union autonomy which Congress did ultimately 
consider necessary to enact, including Section 105.
    A more accurate and fair statement of the philosophy of the full 
Congress would be that it was careful to avoid undue regulation of 
unions that might compromise their essential independence or autonomy 
as collective bargaining representatives of workers.\7\ However, the 
specific provisions of the LMRDA constitute the exceptions to this 
``hands off'' policy; and where a violation is established, the courts 
must ``interfere'' in order to provide a remedy, so long as that remedy 
does not undermine the union's autonomy. See Brock v. UAW, 682 F.Supp. 
1415, 1421 (E.D.Mi. 1988), vacated on procedural grounds, 889 F.2d 685 
(6th Cir. 1989); Wirtz v. Glass Bottle Blowers, supra, 389 U.S. at 471.
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    \7\ In fact, by closely examining S. Rep. No. 187 p. 7, I Leg. 
Hist. at 403, we discover a more balanced philosophy articulated by the 
Senate Committee:
    ``Given the maintenance of minimum democratic safeguards and 
detailed essential information about the union, the individual members 
are fully competent to regulate union affairs. The committee strongly 
opposes any attempt to prescribe detailed procedures and standards for 
the conduct of union business. Such paternalistic regulation would 
weaken rather than strengthen the labor movement; it would cross over 
into the area of trade union licensing and destroy union 
independence.''
    ``Remedies for the abuses should be direct. Where the law 
prescribes standards, sanctions for their violation should also be 
direct.''
    ``The test of a sound bill in this complex and relatively new 
legislative area is whether it is workable and will produce the desired 
results without destroying valued free institutions.''
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    The UA contends, Br. at 26-27, that plaintiff appellants make a 
``remarkably intrusive suggestion'' that the Court require it ``to add 
particular material to [its] constitution'' since Congress intended to 
give unions ``nearly unfettered discretion in deciding what topics 
tocover or not to cover in their constitutions.'' Suffice it to say, 
plaintiff-appellants are not asking the Court to order the UA to amend 
its organic laws to include the LMRDA Summary within, or to make it 
part of, the UA Constitution. Rather, for the many reasons contained in 
the affidavits filed below, they seek only to have the Union append a 
copy of the Summary at the back of the booklet in which the UA 
Constitution is reproduced.
    The UA's argument, Br. at 12, 22, 24-25, that Congress knew how to 
spell out specific reporting and disclosure requirements as evidenced 
in other LMRDA Titles fails to take into account the fact that the 
other Titles were carefully constructed in committee, while Title I had 
no such deliberative history.\8\ Rather, Title I, which includes 
Section 105, was thrown together at the 11th hour and added as a floor 
amendment during the debate before the full Senate. As a consequence, 
as we demonstrated in our opening Brief, pp. 16-21, Congress granted 
the courts unusually broad discretion to frame appropriate relief for 
violations of Title I, including Section 105.\9\
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    \8\ This UA argument amounts to a claim that since Congress did not 
enumerate specific steps required to comply with Section 105, Congress 
must have intended there to be none. An absurd conclusion.
    \9\ As the Supreme Court explained in Hall v. Cole, 412 U.S. 1, 11 
(1973): ``any attempt on the part of Congress to spell out all of the 
remedies available under [Title I] would [have] create[d] the danger 
that those [remedies] not listed might be proscribed . . ..'' Congress' 
wisdom was prescient given, for example, that the internet and union 
websites did not exist in 1959 when the LMRDA was enacted. In the 21st 
Century, a website posting of the LMRDA Summary, particularly as UA 
members become more sophisticated in surfing the web, will become one 
ideal method by which the UA can inform its members about the LMRDA, as 
required by Section 105.
---------------------------------------------------------------------------
    In essence, the UA contends that Section 105 only requires it to 
furnish its members with the one-page LMRDA Summary once during their 
careers in the plumbing and pipefitting industry. By publishing the 
Summary in the UA Journal, the UA contends that it has informed its 
existing members concerning the Act, and by furnishing a copy to new 
members at the time they join the Union, the UA contends that it will 
satisfy its ongoing Section 105 duty.\10\ We respectfully disagree. The 
Thomas court rejected the notion that Congress ``was perfectly willing 
to let ignorance reign for . . . forty years'' when holding that 
``maintaining honest democratic governance of unions is surely an 
ongoing effort that would seem perforce to require some ongoing method 
of notification.'' 201 F.3d at 520. Contrary to the UA, Br. at 8 n.7, 
10, 15, there is nothing in the Fourth Circuit's opinion to suggest 
that the UA's one-time notification given to members would fully 
discharge its Section 105 informational mandate. To the contrary, the 
Thomas court in 2000, and the Acting Solicitor of Labor in 1960, both 
suggested that a variety of means for informing members might be 
necessary to satisfy the Section 105 informational mandate. 201 F.3d at 
521; JA 130-31.
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    \10\ See, e.g., UA Br. at 14 where the UA contends that ``by 
sending a concededly adequate summary of LMRDA rights to each current 
and new member at his or her home address, the Union has satisfied the 
plain language of Section 105's duty to inform.'' See also Br. at 8 
n.7, 10, 23.
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    For the reasons set forth in our opening brief, pp. 21-28, and more 
fully amplified in affidavits submitted by plaintiff-appellants and 
their experts, JA 21-66, we respectfully submit that the UA must be 
required to undertake additional steps to inform its members concerning 
the provisions of the LMRDA on an ongoing basis if Congress' objective 
of enlisting their active support in enforcing the Act is to be met. UA 
members simply cannot be expected to remember the contents of an 
informational notice they were furnished years or decades earlier when 
they had no interest in its contents. It is only when the member 
suffers an injustice at the hands of his Union officials that the 
member needs access to information concerning his LMRDA rights and how 
to secure them. Of course, it is also at that point in time that his 
Union is most anxious that he be, and remain, ignorant of his rights. 
However, if union members are to function, as Congress intended, ``not 
only [as] the beneficiaries of the LMRDA, but [also] in many instances 
[as] its sole guardians,'' \11\ they need ready access to information 
about the Act on an ongoing basis.\12\
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    \11\ See Thomas, 201 F.3d at 520.
    \12\ In the Beck setting, see UA Br. at 23 n.22, courts and the 
NLRB have, in fact, imposed on unions a continuing or recurring 
obligation to notify non-member fee-payers concerning their expenditure 
of funds for non-collective bargaining purposes as frequently as the 
fee-payers are required by the union affirmatively to ``opt out'' of 
paying full dues, generally on a yearly basis. See e.g., L.D. Kichler 
Co., 335 NLRB No. 106 (2001); Tierney v. City of Toledo, 824 F.2d 1497, 
1506 (6th Cir. 1987).
    In the LMRDA setting, a member's ``need-to-know'' about the 
provisions of the Act generally does not arise when the member first 
joins the union; rather, it arises years or decades later when some 
injustice is imposed on the member by her union officers. As in the 
Beck setting, whenever the union precipitates a need-to-know, it should 
be required contemporaneously to furnish the member with needed 
information.
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                               conclusion
    For the foregoing reasons, we respectfully submit that the UA has 
failed to demonstrate that it has fully remedied its 40-plus years of 
failure to comply with Section 105 and the district court erred by 
summarily denying plaintiff-appellants motion for summary judgment.
            Respectfully submitted,
                              Arthur L. Fox, II, No. 58495.
   Lobel, Novins & Lamont, Washington, DC, Attorney for Appellants.
                         certificate of service
    The undersigned certifies that on this date he served two copies of 
Appellants' Reply Brief by depositing them in the mail, first-class 
postage prepaid, addressed to: Sally M. Tedrow, Esq., O'Donoghue & 
O'Donoghue, 4748 Wisconsin Ave, NW, Washington, DC 20016.
                                         Arthur L. Fox, II,
                                              Dated: March 7, 2003.

                                 
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