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DONOVAN v. LOCAL 719

October 21, 1982

RAYMOND J. DONOVAN, SECRETARY OF LABOR, PLAINTIFF,
v.
LOCAL 719, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, DEFENDANT.



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 personnel 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 Appliance Workers, 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 ...


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