The opinion of the court was delivered by: GRIESA
This is an action relating to the election of officers in a labor organization. Plaintiff is presently the Executive President of the American Guild of Variety Artists ("AGVA"). Defendant Cory is a contender for the office of Executive President. The other defendants are the Secretary of Labor and the Department of Labor.
On October 13, 1978 I granted plaintiff's application for a temporary restraining order, which had the effect of keeping plaintiff in office and preventing defendant Cory from taking office.
Plaintiff has moved for a preliminary injunction. Defendants have moved to dismiss the action for lack of subject matter jurisdiction.
Plaintiff's motion for a preliminary injunction is denied and the temporary restraining order is vacated. Defendants' motion to dismiss the action is denied.
A regular election of the AGVA was conducted in August or September 1977, as a result of which plaintiff was elected Executive President. Defendant Cory made a complaint about irregularities in the election under 29 U.S.C. § 482(a).
That statute provides, among other things, that a member of a labor organization may file a complaint with the Secretary of Labor challenging an election of officers. The statute provides that the challenged election shall be presumed valid, and the elected officer shall take office, pending the outcome of any proceedings instituted by the Secretary of Labor. Subsection (b) authorizes the Secretary to file suit to obtain an order for a new election. Subsection (c) provides, among other things, that a district court, upon a proper showing, may order a new election under the supervision of the Secretary of Labor, and following such election, upon the certification of the Secretary, shall declare the certified persons to be officers of the labor organization.
The Cory complaint did not result in the carrying out of the full litigation mechanism. Instead, plaintiff entered into an agreement with the Secretary of Labor dated April 10, 1978, under which there would be new nominations and a new election under the supervision of the Department of Labor. This process was to be completed prior to August 31, 1978. The agreement specifically provided:
"The union further agree (sic) that any dispute, arising during the course of the supervised election, as to the legality or practicability of any election procedure will be decided by the representative of the Secretary of Labor."
On June 1, 1978 a conference was held attended by plaintiff and other officers of the union, defendant Cory, and representatives of the Department of Labor. The chairman of the conference was Walda Lee Lyons, Compliance Officer of the Department. The purpose of the conference, according to the minutes, was "to ascertain and establish the procedures, rules, and standards for the conduct of the nominations and election so that they will be held in a fair and orderly manner, consistent with the Constitution and By-Laws of" the AGVA. The minutes of the conference contained a section entitled "Procedures, Rules and Standards for the Conduct of the Nominations and Elections." It was established that eligibility to hold office as an officer would be according to Article X of the AGVA's Constitution I. e., the person must be a senior member of the AGVA for at least three years "immediately prior to his nomination." It was noted that, in order to be elected an officer, the person must qualify under Article XI of the Constitution. Another portion of the minutes is entitled "Nomination Provisions." Duties and procedures for nomination of officers were established at the conference. A section of the minutes entitled "Election Provisions" provided that there could be campaign mailings "by candidates" and that prior to August 4, 1978 ballots would be distributed to members through the American Arbitration Association. It was agreed that ballots, in order to be counted, should be received before 5:00 p.m. August 28, 1978. Article XI of the AGVA Constitution, referred to above, is entitled "Elections for Officers", which provides a procedure for nominating candidates for officer positions.
In early August campaign literature was sent out by both plaintiff's slate and the Cory slate. The Cory slate included, among other persons, Rod McKuen as a candidate for Honorary President and Tony Martin as a candidate for Honorary First Vice President. The Cory material stated that the voters should write in the names of McKuen and Martin. Neither McKuen nor Martin had been nominated.
According to plaintiff's affidavit, plaintiff had a discussion on or about August 9 with Walda Lyons, the Compliance Officer, about the inclusion of Rod McKuen and Tony Martin as write-in candidates on the Cory slate. Plaintiff argued to Ms. Lyons that the AGVA Constitution did not permit write-in votes, and that write-ins had never been permitted in an AGVA election. Plaintiff further contended to Ms. Lyons that it would be unfair to plaintiff to permit the election to go forward with the write-in candidates, because plaintiff's campaign literature had already been printed and distributed and there was no opportunity for further literature of plaintiff to be prepared. Ms. Lyons advised plaintiff that her superiors at the Department of Labor had directed her to rule that write-in votes could be used in the election. This ruling was confirmed in a letter dated September 1, 1978 to plaintiff from Richard G. Hunsucker of the Department of Labor. This letter stated that there was no legal basis for disallowing write-in votes, since the AGVA Constitution did not explicitly prohibit such votes.
The new election was completed on August 29, 1978. Defendant Cory prevailed over plaintiff by a vote of 652 to 475. Rod McKuen was elected Honorary President and Tony Martin was elected Honorary First Vice President. Plaintiff alleges that out of the 652 ballots cast for Cory, 256 included write-in votes for Rod McKuen or Tony Martin or both. Plaintiff contends that these 256 ballots were tainted by the wrongful inclusion of the write-in candidates, and that without these tainted ballots Cory would not have been elected.
Following the tabulation, C. Dartazse Jackson, Supervising Compliance Officer of the Department of Labor, ruled that Tony Martin was ineligible to hold office since he did not comply with the three-year membership requirement of Article X of the AGVA Constitution. However, the problem of the Honorary First Vice President was solved because there was another write-in candidate who had received 1.8% Of the vote. The Department of Labor was agreeable to his installation. Exactly when and how Mr. Jackson (to say nothing of Alon Cory) came to the realization that Tony Martin was ineligible is not yet revealed. Neither one of these persons has submitted an affidavit in connection with the present motions.
Plaintiff urges that there is a serious question as to whether Rod McKuen or Tony Martin ever gave their consent to inclusion on the Cory slate. Plaintiff has submitted an affidavit of one Bernard King, who quotes an alleged conversation with Tony Martin on September 26, 1978 in which Martin is said to have denied giving consent to run for AGVA office on the Cory slate of candidates. However, counsel for defendant Cory have furnished the court with what purport to be consent letters from Rod McKuen and Tony Martin. The circumstances of these documents have not yet been developed in the present action. However, the purported letter of Tony Martin is dated either June 2 or June 4, 1978. If the letter is authentic, it means that it was probably solicited by Cory on or before June 1, 1978, the date of the meeting at which the ground rules for the new election were established. Cory made no mention of his plan for write-in candidates at the June 1 meeting. One problem with the purported letters is that they have identical texts, indicating they were drafted by the same person. Also, they both expressed thanks for invitations to serve as Honorary President.
On September 8, 1978 counsel for plaintiff wrote the Department of Labor complaining of irregularities with respect to the new election. The principal complaints related to the inclusion of the write-in candidates Rod McKuen and Tony Martin.
On October 11, 1978 the Department of Labor wrote counsel for plaintiff, stating that an investigation had been conducted, and that it had been determined that plaintiff's complaint was without merit. The Department stated that no further action would be ...