under union's constitution and bylaws without obtaining a
decision within three months may file complaint with Secretary
within one month thereafter). Upon investigating Carlin's
complaint, the Secretary found probable cause to believe that a
violation of the LMRDA had occurred, and commenced this action
on December 5, 1988. See 29 U.S.C. § 482(b).
A. Summary Judgment Standard
A motion for summary judgment may be granted only when "there
is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Donahue v.
Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.
1987). The burden is upon the moving party to clearly establish
the absence of a genuine issue as to any material fact, and "a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party." Donahue, 834 F.2d at
57. Since the presence of only a genuine and material issue of
fact precludes the entry of summary judgment, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986), the summary judgment procedure allows a
court to determine whether a trial is necessary. Further, on a
motion for summary judgment, a court must be mindful that its
role is not to try issues of fact, but to determine whether
there are issues to be tried. Donahue, 834 F.2d at 58.
As noted above, both parties have moved for summary judgment.
The Court is mindful that on cross-motions for summary
judgment, neither motion can be granted unless the moving party
is entitled to judgment as a matter of law upon genuinely
undisputed facts. Bank of Am. Nat'l Trust & Savs. Ass'n v.
Gillaizeau, 766 F.2d 709, 715 (2d Cir. 1985); McLaughlin v.
American Fed. of Musicians, 700 F. Supp. 726, 732 (S.D.N Y
1988); Cottone v. Blum, 571 F. Supp. 437, 441 (W.D.N.Y. 1983).
Indeed, the fact that both sides move for summary judgment
"does not make it more readily available." Home Ins. Co. v.
Aetna Cas. & Sur. Co., 528 F.2d 1388, 1390 (2d Cir. 1976).
In a case dealing with alleged violations of § 481(g), where
the material facts are not in dispute, summary judgment is
appropriate as to the question of whether there has been a
violation of the statute and whether such violation may have
affected the outcome of the election. American Fed. of
Musicians, 700 F. Supp. at 732; see Donovan v. National
Alliance of Postal & Fed. Employees, 566 F. Supp. 529, 533
(D.D.C. 1983), appeal dismissed, 740 F.2d 58 (D.C.Cir. 1984),
Donovan v. Local 719, United Auto., Aerospace & Agric.
Implement Workers, 561 F. Supp. 54, 60 (N.D. Ill. 1982); Usery
v. International Org. of Masters, Mates & Pilots, 422 F. Supp. 1221,
1227-30 (S.D.N.Y.), aff'd in part, modified in part,
538 F.2d 946 (2d Cir. 1976). With the above principles in mind,
the Court turns to address the motions.
B. Applicable Statutes and Interpretive Regulations
The purpose of Title IV of the LMRDA is "to insure free and
democratic union elections." Wirtz v. Local Union No. 125,
Laborers' Int'l Union, 389 U.S. 477, 483, 88 S.Ct. 639, 642,
19 L.Ed.2d 716 (1968); Wirtz v. Local 153, Glass Bottle
Blowers Ass'n, 389 U.S. 463, 470, 88 S.Ct. 643, 647, 19
L.Ed.2d 705 (1986). "The LMRDA is expressly designed `to
prevent, discourage, and make unprofitable, improper conduct on
the part of union officials, employers and their
representatives.'" American Fed. of Musicians, 700 F. Supp. at
732 (quoting S.Rep. No. 187, 86th Cong., 1st Sess., reprinted
in 1959 U.S.Code Cong. & Admin.News 2318, 2321).
As noted above, the Secretary alleges violations of 29 U.S.C. § 481(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 subchapter. 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.
This proscription clearly and unambiguously bars the spending
of even seemingly trivial amounts of union funds for
electioneering. See, e.g., Donovan v. Metropolitan Dist.
Council of Carpenters,