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April 19, 1994


The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD



 Following trial in this sex discrimination case, the Court permanently enjoined Lehigh Valley Carpenters Local Union No. 600 ("Defendant") from creating a work environment hostile to women because of their sex. By Order dated January 13, 1994, the Court further ordered Defendant to adopt a statement of policy and procedures for the control of sexual harassment ("Policy").

 Defendant subsequently appealed and filed a motion, pursuant to Fed. R. Civ. P. 62(c), to suspend the policy and procedures Order pending the appeal. The Third Circuit Court of Appeals has stayed the appeal pending determination of Defendant's motion.

 At Oral argument held on April 7, 1994 the parties agreed that Defendant's motion may be treated as a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). As the motion was timely filed under Fed. R. Civ. P. 59(b) and the alleged judicial errors appear to be clerical *fn1" , the Court will amend the Policy to the extent stated below.


 Defendant challenges the Court's policy and procedures Order on two grounds. First, in its brief Defendant argues that "there is no precedent for a finding of liability against a local union for creating a hostile work environment by its distribution of calendars where the complainant was an employee of a third party employer and the employer's supervisory personnel displayed the calendars." The Court rejects this novel argument. The court is bound by precedent, not the lack of precedent. This is particularly the case in evolving fields of law including the law governing sexual discrimination in the work place.

 Defendant's second argument, that the Policy requires it to violate section 101(a)(5) of the Labor Management Reporting and Disclosure Act of 1959 ("Section 101(a)(5)"), 29 U.S.C. ┬ž 411(a)(5), has more merit. Section 101(a)(5) provides:

No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

 (emphasis supplied).

 In particular, Defendant argues that the Policy mandates the summary discipline of union members and officers in violation of their due process rights. Although the Policy provides for the complainant's right to notice, hearing and appeal, the Policy does not specifically safeguard the alleged offending party's due process rights. The Court never intended to deprive the alleged offending party of due process and, for the sake of clarity, amends the Policy to this extent.

 Part V of the Policy requires Defendant to host annual seminars on sexual harassment for all union members commencing within 90 days of adoption of the Policy. The seminars must be conducted by the Philadelphia Bar Association at a cost to Defendant of $ 500.

 Defendant argues that the seminars constitute "discipline" of union members in violation of Section 101(a)(5). The Court does not agree. First, the Court imposed the Policy and, thus, punishment is not "by the organization." Second, "discipline" comprises conduct that "directly penalizes [the member] in a way which separates him from comparable members in good standing." Miller v. Holden, 535 F.2d 912, 915 (5th Cir. 1976). "The rule that discipline under the Act must entail singling out a union member (or a group of members) for punishment and its corollary, that the uniform application of a reasonable union regulation is not discipline finds support in most of the Circuits that have considered the question." Macaulay v. Boston Typographical Union, 692 F.2d 201, 204 (1st Cir. 1982); see also Dept. of Labor v. Alum. Brick & Glass Wkrs., 941 F.2d 1172, 1180 (11th Cir. 1991); Caldwell v. Int. Longshoremen's Association Local 1694, 696 F. Supp. 132, 139 (D. Del. 1988).

 Nevertheless, the Court is persuaded by Defendant's arguments that, as stated, the Policy may impose an undue burden on some union members and officers. Many people, because of distance, disability or unforeseen circumstances may sustain undue hardship in attending the seminars. Further, education of retired members is not likely to effect conduct in the work place. Accordingly, the Policy should require only that active members attend and should give Defendant a limited discretion to exempt attendance in cases of undue hardship.


 For the foregoing reasons, the Policy shall be amended. An appropriate Order follows.

 Daniel H. Huyett, 3rd, ...

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