Biggs, Freedman and Stahl, Circuit Judges. Biggs, C. J., concurring. Freedman, C. J., concurring.
James S. Falcone brought this action below,*fn1 under the authority of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq., to enjoin the imposition of disciplinary measures against him by his union, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 802, one of the appellees herein. Appellant Falcone was suspended from the union for a period of five years*fn2 for allegedly encouraging 1,100 union members not to return to work at the Sun Shipbuilding and Dry Dock Company in Chester, Pennsylvania, after the union's officials reported that they had reached a tentative (rather than a firm) accord with management on a collective bargaining agreement. Falcone justified his action on the basis that the membership had mandated a strike unless a firm agreement was reached. Falcone was also accused of speaking derogatorily of some of the union officials and physically threatening members seeking to return to work.*fn3
The thrust of appellant's attack on the union's imposition of disciplinary punishment against him is that at least one of the members of the Trial Body, the finder of fact and "sentencing" organ under the union's constitution, had prejudged the case, thus denying Falcone "a full and fair hearing" as guaranteed under the statute, § 101, 29 U.S.C. § 411(a)(5):
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or 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.
The three members of the Trial Body which conducted appellant's hearing were: the chairman, Philip News, Executive Secretary of the Union and its Business Manager; Roosevelt Glass, Inspector and Chief Steward of the Union; and Frank Brooks, Recording Secretary. Prior to the formal hearing by the Trial Body on February 22, 1967, the three members had attended and participated, with other union officials, in an informal proceeding, specifically provided for in the union's constitution,*fn4 where an unsuccessful attempt to work out the differences between the parties was made. The informal hearing was held on January 27, 1967.
In their brief and at oral argument appellees have argued that an adverse decision here may jeopardize the utility of this informal means of dispute settlement. Nothing in this opinion should be construed as disapproving of this informal type of settlement procedure. Indeed, we perceive this to be a valuable tool in the resolution of intra-union disputes. Nor do we see any inherent impropriety in having a union officer who attends and participates in the informal meeting subsequently sit as a member of the Trial Body and as a finder of fact at a formal hearing*fn5 provided there is no element of bias or prejudgment, as we find to be the case here.
What we find offensive, as shown below, is that at least one member of the Trial Body in this case, by his own admission, had made up his mind about Falcone's "guilt" at or prior to the informal proceeding, thus depriving appellant at a full and fair hearing, free of prejudgment, as mandated by the Act.
Philip News, chairman of the Trial Body, testified in the court below as to what transpired at the January 1967 informal hearing. In response to a question by counsel for appellant, Mr. News said:
From this we conclude that when he sat later as a member of the Trial Board, News did not have an open mind concerning the charges brought against appellant. He had determined that Falcone was "guilty" of the charges at least as early as the January 27, 1967, informal hearing.
Other testimony by News further supports this conclusion. On redirect examination by appellant's counsel, the following colloquy took place:
Q. Did you not tell him that in view of the evidence some penalty seemed appropriate?
Q. And you told him that on the [January 27, 1967, the date of the informal hearing]?
Q. Now, did you not tell him this after concluding that he had been guilty in some measure?
A. As the evidence at that point indicated, yes.
Q. So you had made up your mind at that point?
A. At that point, yes. (App. 57.)
Upon questioning by appellees' counsel, Mr. News said:
Upon subsequent examination by appellant's counsel, News attempted to justify ...