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November 5, 1982

EDWARD HANSEN, Individually and as President, of Local One Amalgamated Lithographers of America; and LOCAL ONE AMALGAMATED LITHOGRAPHERS OF AMERICA, Defendants

Carter, District Judge.

The opinion of the court was delivered by: CARTER

CARTER, District Judge

This case raises difficult questions regarding where the free speech rights of union members end and their duties to their union begin.

 Plaintiffs Robert Loekle and James Brady, members of Local One of the Amalgamated Lithographers of America, have long been active in the local's politics and have often been at odds with its officials. See, e.g., Loekle v. Swayduck, 94 LRRM 2442 (S.D.N.Y. 1976) (Knapp, J.). Defendant Local One represents approximately 9,000 lithographers in the New York metropolitan area and is affiliated with the International Typographical Union. Defendant Edward Hansen is the local's president.


 The relevant facts in this case begin in November 1980, when Brady, a candidate for trustee of Local One and trustee of the local's pension fund, protested that several incumbents had used union funds to mail campaign letters in violation of federal law. 29 U.S.C. § 481(g). Defendants' Exhibit G, pp. 8-10. On November 28, 1980, Local One officials, in response to the protests, agreed to allow all candidates to send out one mailing paid for by the union treasury. Questioning the good faith of this proposal inasmuch as balloting had already begun, Brady went to the post office on Eighth Avenue between 31st and 33rd Streets on the morning of December 1 to see how many ballots had already been mailed in. Defendants' Exhibit G., pp. 9-10.

 According to Brady, postal clerks there told him that there were seven mailbags of ballots and no "stop order" on them to prevent anyone without due authorization from taking the bags. Brady said the postal clerks had also told him that someone identifying himself as a representative of Local One had removed a mailbag containing ballots earlier that day. Brady Affidavit paras. 6-7. Brady was disturbed by the news because the balloting was not to be completed until December 9.

 Brady reported what the postal clerks had told him to officials of the Department of Labor. Brady also consulted with an attorney who talked to a postal inspector and was told that a mailbag containing ballots had been given to an unknown person. Brady Affidavit paras. 8-10. In addition, Brady told plaintiff Loekle, an active Brady supporter, what he had learned about the mailbag.

 Although Brady met with Local One's secretary-treasurer, Frank Casino, the afternoon of his initial visit to the post office, he did not tell Casino what he had heard about the mailbag. Indeed, at no time between his visit to the post office on December 1 and the end of balloting on December 9 did Brady share what he had learned with any union official. Defendants' Exhibit G, pp. 16-17. Brady was elected to the two offices for which he ran.

 In mid-December, Brady's and Loekle's lawyer told them that a postal inspector had conducted an investigation and had concluded that no mailbag had been taken. Brady Affidavit para. 11. This was confirmed in a conversation that Brady had with the postal inspector around January 1, 1981. Defendants' Exhibit D, p. 19.

 On January 10, 1981, Loekle sent a letter, signed by him alone, but written with Brady, to Local One's Council Board, the local's governing body. In addition to complaining about the use of union funds to mail campaign literature, the letter charged:

On or about Monday, 1 December, a person representing himself to be from Local One appeared at the post office and requested that the ballots be delivered to him. One bag of ballots was delivered to him by the postal clerk. That the union provides no safeguard against delivery to unauthorized people, and that such delivery is alleged to have occurred, violates the secrecy of the ballot provided for in both the Bylaws and Federal law.

 Plaintiffs' Exhibit B. Nowhere in the letter did Loekle state that a subsequent investigation by a postal inspector had failed to establish that a bag had been taken.

 At Loekle's request, his letter was read at Local One's meeting on January 27, 1981. Neither Loekle nor Brady informed the members at the meeting, however, that a postal investigation had concluded that no bag had been taken. Brady Affidavit para. 15.

 Local One's Council Board referred the charges raised in the letter to its Referendum Board, which is responsible for overseeing elections. On April 9, 1981, Brady met with the Referendum Board and explained to it what he had been told about the mailbag and the lack of a "stop order" on the local's postbox. After this meeting, the Referendum Board had the local's attorney contact a postal inspector who told him, first, that an investigation had failed to establish that a mailbag was taken and, second, that the plaintiffs had been apprised of the investigation's results. Casino Affidavit para. 16.

 In the fall of 1981, the chairman and secretary of the Referendum Board brought charges against Loekle and Brady, accusing them of violating the local's bylaws by engaging in conduct "unbecoming a good union member" and conduct "detrimental to the welfare of Local One." In the first charge, they accused Brady alone of having "deliberately concealed" from responsible local officials from December 1 through December 9, 1980, "the information concerning the 'missing' mailbag containing Local One ballots." The charge also stated that "Brother Brady had a duty and obligation both as a union member and a candidate to make such information known to the Local One Referendum Board and/or other appropriate union officials immediately." The charge concluded that "the concealment of such fact for the duration of the election period constituted conduct unbecoming a good union member in violation of Section 13.1(p) of the By-Laws and conduct detrimental to the welfare of Local One in violation of Section 13.2 of the By-Laws." Plaintiffs' Exhibit D.

 The second charge was brought against both Brady and Loekle. It stated that in their January 10 letter, which charged that a mailbag had been taken, and in having the letter read at the January 27 membership meeting, "Brothers Brady and Loekle deliberately withheld from the members the information they then had that upon further investigation by the Postal authorities the final determination . . . was that no such thing had happened. The reading of the charge by Brothers Brady and Loekle with this omission was disruptive in that failure to reveal the Post Office Inspector's conclusion was misleading and deliberately calculated to needlessly alarm the members concerning the integrity of the Local's election procedures." This charge again stated that the disputed conduct was "unbecoming a good union member" and "detrimental to the welfare" of the local. Plaintiffs' Exhibit D.

 On December 14, 1981, Loekle and Brady were sent copies of the charges against them and were advised that they would "be afforded a full and fair hearing" and could be "accompanied and assisted at the trial by a member ...

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