The opinion of the court was delivered by: Wexler, District Judge.
Plaintiff Secretary of the United States Department of Labor
(the "Secretary") brings this action pursuant to section 402(b)
of the Labor-Management Reporting and Disclosure Act of 1959
("LMRDA"), 29 U.S.C. § 482(b), requesting this Court to set
aside the election of certain officials in an election held in
June 1988 by the Federation of Postal Police Officers ("FPPO"),
and to order a new election subject to the Secretary's
supervision. The Secretary alleges that the FPPO violated the
prohibition on union-financed electioneering imposed by section
401(g) of the LMRDA, 29 U.S.C. § 481(g). Presently before the
Court are the Secretary's motion for summary judgment and
defendant's cross-motion for summary judgment. For the reasons
below, both motions are granted in part and denied in part.
A. The FPPO and the June 1988 Election
The material facts not genuinely in dispute as taken from the
papers in support of and in opposition to the respective
motions and the parties' stipulation of uncontested facts can
be summarized briefly. The FPPO represents approximately 1000
members who are employed by the United States Postal Service
providing security at post offices throughout the country.
Union members pay their dues — $13 per month — either directly
to the FPPO or through a payroll deduction system.
The FPPO is broken down into five geographical districts with
the districts further subdivided into thirty-three locals. As
provided in the FPPO constitution, the national officers are
the president, vice-president and secretary-treasurer. Prior to
the June 1988 election, these positions were held by Sebastian
Russo ("Russo"), Willie J. Brock ("Brock"), and William J.
Carlin ("Carlin"), respectively. The constitution provides that
elections of national and district officers are to be held
every three years with nominations commencing and concluding in
January and voting occurring between March 25, when secret
ballots are sent out, and April 16, when the ballots are
An election was scheduled for 1988 to fill thirteen positions:
national president, vice-president and secretary-treasurer;
five district presidents; and five district vice-presidents.
All three incumbent national officers were running for
reelection. Nomination notices, however, were not posted until
sometime in February 1988, and the deadline for filing
nominations was March 14, 1988. As for the voting, separate
ballots for the national offices and district offices were
mailed to the members from Chicago, Illinois on May 25, 1988,
and were received back in Memphis, Tennessee by June 15; 1988,
and counted that same day by the Union's Election Committee.
The Election Committee was chaired by Darryl Bell ("Bell"), who
was elected to that position by the National Executive Council
("Executive Council") at a January 13, 1988 annual meeting in
St. Louis, Missouri. Under the FPPO constitution, the national
officers and the district presidents constitute the Executive
As reported by the Election Committee, the result of the voting
for the office of secretary-treasurer was as follows: Carlin,
188 votes; Clifford Sledge ("Sledge"), 162 votes; and J. Walker
("Walker"), 126 votes.*fn1 The FPPO constitution, however,
requires that to be elected to a national office a candidate
must receive 40% of the votes cast for that office. Because
Carlin needed 190.8 votes to reach the 40% mark, he failed to
be elected by 2.8 votes. Under the constitution, a runoff
election between the two top candidates became necessary.
Thereafter, ballots for the runoff between Carlin and Sledge
were mailed out on June 21, 1988, and counted on July 7, 1988
by the Election Committee. The result: Sledge, 203 votes;
Carlin, 198 votes.
As for the offices of national president and national
vice-president, Russo and Brock were both reelected by
relatively wide margins: Russo defeated challengers Richard
Bailey and Michael Singleton, 286 votes to 125 and 77 votes,
respectively; Brock defeated challengers Raymond Greatorex,
Perry Bautista, and Daniel Maggi, 312 votes to 91, 41, and 39,
All newly-elected officers were installed on July 22, 1988.
B. The Newsletters and the Charges at the Union Level
By letter dated June 13, 1988, from Carlin to Russo and Brock,
Carlin charged Russo and Brock with the improper use of union
funds and union publications for campaign purposes.*fn3 In
the letter, Carlin referred to statements made in four editions
of the FPPO's monthly newsletter, "Communique."
Signed by Russo and Brock, Communique is authored by Brock from
his home in St. Louis, Missouri, and sent to Russo's home in
New York, where Russo reviews its content and prepares it for
distribution. As for the cost of producing and distributing
editions of Communique, though it is typed gratis by Brock's
sister on her own typewriter, Russo makes about fifty copies on
a union-owned copier for distribution to the thirty-three union
locals and to the individual union officials. Although Russo
initially pays the cost of the copy paper, envelopes and
postage, he submits monthly vouchers to the FPPO, which
reimburses him for these costs.
In the June 13 letter, Carlin specifically referred to the
following statements made in the April 21, 1988 Communique:
Our National and District elections will get under way as soon
as the National Secretary/Treasurer, Bill Carlin sends the
funds for the election to the chairman of said committee. These
funds were approved by the National Executive Council in
January of this year at a meeting in St. Louis, Missouri. A
competent Secretary Treasurer [sic] would have released funds
immediately for such an important event.
Attached to the June 13 letter were copies of the May 26, 1987,
February 17, 1988, April 21, 1988, and May 19, 1988
Communiques. In addition to the portion of the April 21
Communique quoted above, the challenged portions of these
newsletters allegedly praising Russo and Brock and criticizing
Carlin read as follows:
1. May 26, 1987 Communique:
IX. BUDGET REPORT, NATIONAL SECRETARY/TREASURER
A. The Secretary/Treasurer reported that the National
Treasury has been operating at a 14.9% deficit since July 5,
1986 through February 28, 1987. Mr. Carlin failed to mention
that these figures included the National Convention
($50,000.00) and more successful arbitrations, each
($4000.00) [sic], Step IV grievances and Labor-Management
meetings than the prior administration had in years! Mr.
Carlin also failed to mention that the National Treasury is