The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
This action was brought by Raymond Donovan, Secretary of
Labor, pursuant to Title IV of the Labor Management Reporting
and Disclosure Act of 1959 ("LMRDA"). In the complaint,
plaintiff alleges that, during the course of its May, 1980
election of officers, defendant union, Local 719 of the UAW,
violated Section 401(g) of the LMRDA, 29 U.S.C. § 481(g).
Accordingly, plaintiff asks that this court void the 1980
election of officers and order a new election subject to the
supervision of the Secretary of Labor.
This matter is before the court on cross motions of the
parties. Defendant union has moved to bifurcate the issues
presented, namely, whether defendant violated section 401(g)
of the LMRDA, and whether that violation may have affected the
outcome of the election. Plaintiff is opposed to bifurcation
and has further moved for summary judgment.
The facts upon which the Secretary bases his complaint can
be briefly summarized. At the time of the election in
question, Local 719 represented approximately 10,000 employees
of the Electro-Motive Division of General Motors Corporation
at two plants located in Chicago and LaGrange, Illinois. On
May 4, 1980, defendant conducted nominations of candidates for
various union offices.*fn1 On May 8, the company delivered to
the union offices copies of the contract which had been
negotiated and ratified by the union in October, 1979. This
contract was supplemental to the national collective
bargaining agreement as it governed wages, health and safety
factors, shift changes and other matters specific to the
Chicago and LaGrange plants. Copies of the supplemental
agreement were distributed to union members at all plant gates
on May 8.
On May 10 or 11, members of the "United Locomotive Workers"
caucus ("ULW"), a group opposing the incumbent slate of
candidates, the "Solidarity With New Interested 719" caucus,
distributed a leaflet to union members alleging that the
supplemental agreement did not include many rights the workers
were told had been incorporated into the agreement. On or
about May 12, George Dakuras, Chairman of defendant's shop
committee, prepared a reply to this leaflet. This reply was
approved by Larry Espinosa, the incumbent president and
candidate for re-election to that office. The reply consisted
of a one page leaflet: on one side was a copy of the material
distributed by the ULW slate with the word "LIES" stamped on
each paragraph, and on the other side was a written response
signed by Dakuras and Espinosa and a letter from an employer
representative. The May 12 reply was printed by union
with union equipment and paper, and 10,000 copies were
distributed at all gates to the two plants on May 12-14. On
May 20-22, the election took place and the ULW caucus did not
win any positions.
Title IV of the LMRDA is designed to insure "free and
democratic" union elections through a set of substantive and
procedural rules. Wirtz v. Local 153, Glass Bottle Blower's
Association, 389 U.S. 463, 470, 88 S.Ct. 643, 647, 19 L.Ed.2d
705 (1968). The specific provision of Title IV at issue here is
Section 401(g), 29 U.S.C. § 481(g), which provides as follows:
"(g) No moneys received by any labor
organization by way of dues, assessment, or
similar levy, and no moneys of an employer shall
be contributed or applied to promote the
candidacy of any person in an election subject to
the provisions of this title. Such moneys of a
labor organization may be utilized for notices,
factual statements of issues not involving
candidates, and other expenses necessary for the
holding of an election."
The language of Section 401(g) is thus clear and
unambiguous. It provides that "no moneys" received by a union
can be expended to promote the candidacy of any individual in
a union election. Shultz v. Local 6799, United Steelworkers of
America, 426 F.2d 969, 972 (9th Cir. 1970), aff'd on other
grounds, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971).
Section 401(g) also prohibits the use of union facilities
equipment and materials in support of any candidacy.*fn2
Moreover, the fact that an expenditure is "de minimis" does not
make it any less a violation.
Section 401(g) thus proscribes the showing of any preference
for any candidate for union office through a union-financed
publication.*fn3 Expenditures for factual notices or
statements of interest to the membership, however, are
permitted. It is indeed often a fine line when the coverage of
newsworthy activities of an incumbent official by a union
publication becomes so excessive so as to "render it campaign
literature on behalf of the incumbent." Camarata v.
International Brotherhood of Teamsters, 478 F. Supp. 321, 330
(D.D.C. 1979). See also Yablonski v. United Mine Workers of
America, 305 F. Supp. 868, 871 (D.D.C. 1969).
In determining upon which side of the line a union
publication falls, courts have prohibited not only explicit
references to candidates but also more subtle means of
support. For example, in Brennan v. Sindicato Empleados de
Equipo Pesado, Construccion Y Ramas Anexas de Puerto Rico,
Inc., 370 F. Supp. 872 (D.P.R. 1974), union funds were used to
distribute handbills accusing the incumbent president's
opponent of repeatedly lying about expenditures of union funds.
While the union also engaged in much more blatant political
activities, the court found that the handbills alone would
constitute a violation of Section 401(g), for their overall
tone and content was to endorse and encourage the re-election
of the incumbent. Id. at 878-79. See also Usery v.
International Organization of Masters, Mates and Pilots,
538 F.2d 946 (2d Cir. 1976); Hodgson v. United Mine Workers of
America, 344 F. Supp. 17 (D.D.C. 1972).
Good intentions on the part of the defendant union are not
sufficient to defeat an alleged violation of Section 401(g).
The Eighth Circuit, in Usery v. Stove, Furnace and Allied
547 F.2d 1043, 1045 (8th Cir. 1977), found a violation of Section
401(g) when a retiring union president endorsed several
candidates in the union's "Officers Report," even though it
was also found that he acted from the "best of motives."
Congress designed Title IV "to curb the possibility of abuse
by benevolent as well as malevolent entrenched leaderships."
Id. (Quoting Wirtz v. Hotel, Motel & Club Employees Union,
391 U.S. 492, 503, 88 S.Ct. 1743, 1750, 20 L.Ed.2d 763 (1968).) See
also Sindicato Empleados, supra, 370 F. Supp. at 878-79.
Thus, in determining whether there has been impermissible
campaign usage of a union publication, the court must consider
both direct and indirect references to candidates. To
establish a violation of Section 401(g), it is not necessary
that the questioned publication be totally or exclusively
committed to endorsing specific candidates or attacking the
opposition. Rather, its overall tone, timing and content must
be evaluated to determine whether there is any blatant or
subtle encouragement of the incumbents.
A review of the undisputed facts in the instant case points
unequivocally to a finding that the leaflet distributed by
defendant on May 12 constitutes prohibited campaign
literature. While the union's leaflet did indicate that there
were typographical errors in the contracts distributed May 8,
it went beyond a purely factual statement involving union
business. Defendant's leaflet consisted on one side of a copy
of the ULW literature stamped with the word "LIES" on each
paragraph; on the other side was a statement signed by
Espinosa, the incumbent president, ending with "[W]e would
like to point out that we feel it is wrong for the members to
lie to you for their own political gain. . . ." The stamping
of "LIES" on each paragraph is certainly an attack on the
credibility of the ULW caucus. Moreover, the above-quoted
statement must be interpreted as a reference to the union
election which was to take place a mere eight days after
distribution of defendant's leaflet. Defendant's use of union
funds and facilities to attack the opposition slate of
candidates, thereby enhancing its own prospects for victory,
is expressly prohibited by the LMRDA.
Defendant contends that the leaflet distributed on May 12 is
not campaign literature, arguing that there was never any
discussion of the campaign or the candidates in the decision
to circulate a response to the ULW leaflet. This contention,
however, is plainly untenable. The Supreme Court, in
Hotel, Motel & Club Employees Union, 391 U.S. at 503, 88 S.Ct.
at 1750, has stated that, under the LMRDA, the intent of union
officials is immaterial. While Dakuras and Espinosa may have
had some legitimate purpose in deciding to circulate a response
to the ULW leaflet, taken as a whole the leaflet enhanced the
candidacy of the incumbent slate and encouraged their
re-election. Furthermore, the union leadership had several far
less politically oriented means of responding to the
challengers' leaflet. They could have simply printed corrected
versions of the agreement, or, if these would not have ...