The opinion of the court was delivered by: MOTLEY
Findings of Fact and Conclusions of Law
This is an action by the Secretary of Labor to set aside the January 9, 1970 election of officers held by defendant, Liquor Salesmen's Union, Local No. 2, (the Union) and for an order directing defendant to hold a new election under the Secretary's supervision. 29 U.S.C. § 482(b), (c).
The action was commenced on June 12, 1970. This was within 60 days of the filing of a complaint on April 13, 1970 by Union members with the Secretary, complaining of violations of § 481(g) in the conduct of the election. 29 U.S.C. § 482(b). The action was filed after an investigation of the complaint by the Secretary and a finding by him of probable cause to believe that a violation of § 481(g) had occurred. 29 U.S.C. § 482(b).
The Secretary charges that Section 481(g) of Title 29, United States Code was violated in the conduct of the challenged election in two particulars:
1) The Union applied money received by way of dues, assessments or similar levy to promote the candidacy of certain persons in that it used the Union financed publication, the Journal, specifically, the December, 1969 and January, 1970 issues, to praise the incumbents and to criticize the opposition;
2) Money of an employer was applied to promote the candidacy of certain persons in that an employer, Anthony Magliocco, expressed his preference for the incumbents at a joint salesmen's meeting, a meeting held at the employer's expense.
The controversy here arises from the near successful efforts of a large group of dissident union members to depose long entrenched incumbents and the response of the incumbents to those efforts.
The Union is composed of approximately 1600 members. They are employed as salesmen by wholesalers, distillers and distributors of alcoholic beverages in the New York Metropolitan area. The Union is chartered by the Distillery, Rectifying, Wine and Allied Worker's International Union, AFL-CIO (the International). It was organized in 1937. Since that time Mortimer Brandenburg has been president. He is also the president of the International.
The insurgent group, known as the Joint Salesmen's Committee (JSC), was formed sometime in 1967 as a forum for discussion of the liquor industry and Union conditions. The activities of JSC beginning in 1968, and continuing through 1969, consisted largely of interviewing Local 2 members to ascertain their views, and of publishing a monthly newsletter, for which publication, funds were solicited. In 1969, JSC also filed two law suits against Local 2. One suit sought to recover some $960,000 in back commissions allegedly owed to Local 2 members. The other suit challenged the Union's pension plan.
Around July, 1969, JSC decided to run a slate of candidates against Local 2's incumbents. It began contacting Union members to gather support for the upcoming January, 1970 election. The battle lines between insurgents and incumbents were thus drawn, and the bitterness which usually attends such contests, as reflected in the literature of both sides, was not absent here.
In December, 1969, the acts of which the Secretary complains took place. At that time the Union sent out the December issue of its house organ, the Journal. The feature article in the issue, which, significantly, was received by the membership of Local 2 in the latter part of December, was written by the incumbent president, Mortimer Brandenburg. Much of the content of the article and, indeed, of the issue as a whole, was dedicated to criticism of JSC and the lawsuits which JSC had filed. The incumbent Brandenburg stated in the article among other things:
"I am presenting this report on the state of our Union in the hope that the members of Local 2 will be better able, as a consequence, to assess our stewardship and to chart a course for the future.
This is our Union -- yours and mine. The Union is the membership. It is deceit and artifice to separate Local 2 from the hopes and aspirations of its 1600 members. Yet there are elements and individuals who are trying to do just that -- to create a chasm between the members and those who are privileged to serve them. These individuals cast aspersions upon the Union, dismissing it as only a vehicle for its officers and creating the impression that without a Union the liquor salesmen would be better off. They have even gone to the extent of filing a suit against the Union and its members, hoping that they can at one fell swoop collect close to a million dollars and destroy Local 2.
Well, I have news for these worthies. I did not become the head of Local 2 to preside over its liquidation. I am a trade unionist from the top of my head to the bottom of my feet. And for 35 years I have held fast to the conviction that the cause we are all bound together in Local 2 -- the cause of the liquor salesman -- is worth our hearts and our minds and, yes, our knees, our elbows and our claws."
Mr. Brandenburg continued by stating that JSC action in filing a complaint with the New York District Attorney's Office regarding certain acknowledged irregularities between "the correlation of membership lists with records of payment of initiation fees" was "shafting" the Union to "gain political capital." "With savage vindictiveness they [press] . . . for blood . . ." the article said. (p. 3, cols. 1-2).
At another point, it said, "their (JSC's) concern (is) with what is politically expedient for them, not what is good for our Union." (Id. col. 2). At still another place, he said, "in these individuals human degradation reached a new low." (p. 4, col. 2).
The December as well as the January issue of the Journal excerpted testimony taken by the Union's lawyer upon the pre-trial depositions of certain of the leaders of JSC in the suit brought by them to recover alleged unpaid commissions. These excerpts were followed by editorial comments unfavorable to the JSC leaders.
In the January Journal incumbent Brandenburg wrote another article entitled, The Choice Is Yours, which reads as follows:
"On January 9 -- next Friday, between the hours of 2 and 6 PM -- you will be called upon to make an important decision with regard to your future and and [sic] that of your Union.
Though I am a candidate for office, I do not propose to do any electioneering in this column, for as an official organ of Local 2 the Journal is above partisan, politics. There is the added consideration that having been elected unanimously to the post I have held for the past 32 years in every election to date, I do not feel that it is necessary to enlarge on my record. All I can say is that this Union of ours -- yours and mine -- has been my life, that I have given the best years of my life to it, that I have received my reward in the satisfaction of accomplishments in behalf of my liquor salesmen and that I look forward to serving them in the future as I have had in the past.
Whatever differences I may have with my opponents, I am sure that even they will agree with me that between our respective slates there are two varying views of trade unionism. There is a view which I and those associated with me hold -- the view that trade unionism is a challenge constantly renewed, beckoning us toward a destiny where the meaning of our lives matches the efforts we put forth to strengthen Local 2 as the instrument for the realization of the hopes and aspirations of its members. And then there is the view that trade unionism is irrelevant to the problems of the liquor salesmen -- a view set forth in theory and practice by the two leaders on the opposition slate.
My fellow members of Local 2: When you go to the polls, you will have to decide not only who will lead you for the period ahead but also what will lead you -- what kind of philosophy and practise (sic). I would not want you to vote for me and my associates unless you cast your ballot in favor of a trade union approach to the problems of Local 2. If you don't want a Union, or if you want a Union that cannot stand up to your employers, you should vote accordingly. But if you want a Union, and a Union capable of facing up to ...