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May 18, 1994

ROBERT R. REICH, Secretary of Labor, United States Department of Labor, Plaintiff,


The opinion of the court was delivered by: MORRIS E. LASKER


 The Secretary of Labor brings this action to set aside the March 1993 election of the officers and council members of the Federation of Catholic Teachers. The Secretary contends that the election was conducted in violation of Title IV of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 481 et seq. (1985).

 The Federation of Catholic Teachers ("FCT") is a labor union representing approximately 2,100 teachers and other professionals employed at elementary and high schools run by the Archdiocese of New York. On March 31, 1993, the FCT conducted a mail ballot election for President, Secretary, Treasurer, and eight Executive Council Member-at-Large positions.

 The Secretary's complaint alleges that the FCT conducted an "unfair" election in violation of the LMRDA by (1) "using the official ballot to promote the candidacy of the incumbent slate of officers," and (2) "allowing a candidate for office, the incumbent President, to become improperly involved in the election process." The ballot was "unfair" within the meaning of 29 U.S.C. § 481(c), the Secretary contends, because it "designated the incumbent slate as 'The Action Team' while listing the challenging slate simply as 'The Opposition.'"

 The FCT denies both allegations and argues also that the second allegation -- relating to the conduct of the incumbent president Margaret Menard -- was not raised by the original complainant, Michele Cody, in her protest letter to the FCT, and that her failure to exhaust internal union remedies bars the Secretary from pressing that claim.

 The case was tried to the bench.


 The facts relevant to my disposition of the issues are as follows. The FCT holds elections for union officers every three years. For 18 years prior to the 1993 election, no election had been contested, that is, no opposition slates ran in those elections. The incumbent president, Margaret Menard, has held the post for 10 years and, in the 10 years prior, was the union's Secretary. Menard works for the union full time, on salary. For its March 1993 election, Menard appointed Marilyn Slattery and Elizabeth O'Keefe to the Nomination and Election Committee ("Committee"), pursuant to the union's bylaws (Joint Ex. 20, p. 6).

 In its February 1993 union newsletter, the FCT informed the membership that a regularly-scheduled election of union officers would be held in March (Joint Ex. 1). Members were advised that nominations should be addressed to the Committee at a designated post office box, and requests for mailing lists were to be sent to the union.

 Michele Cody, a teacher at St. Charles Elementary School on Staten Island, as well as several other teachers who were dissatisfied with the management of the union, formed an opposition slate to run against the incumbents. The opposition slate named itself "Candidates for Change."

 By two letters, both dated February 16, 1993, Cody submitted her nomination petition for the office of president (Joint Ex. 30) and made two requests of the Committee: (i) to obtain, no later than March 5, a membership list with addresses for campaign mailings, and (ii) to be present at the counting of the ballots on March 31, 1993 (Joint Ex. 4).

 Cody testified that she addressed both letters to Slattery rather than to the union office because she wanted the Committee to handle her queries rather than the incumbent president Menard, whom she was seeking to unseat. Cody said she could not reach Slattery other than through mail sent to the post office box because she did not know Slattery's home address or the school where Slattery was employed. When Cody did not hear from the Committee after several days, she sent the same two requests in a letter dated February 22, 1993 to Menard at the union office (Joint Ex. 6).

 The FCT Secretary, John Schaut, responded to Cody's letter on behalf of Menard, who was away on vacation but had kept in touch with Schaut by telephone. Schaut scheduled a March 3 appointment for the opposition candidates to come to the union's Manhattan office to obtain the membership list.

 On March 4, the Committee met at the union office to certify the nominations. At no time, however, did the Committee ever notify the candidates that their nominations had been approved. The Committee drew up a handwritten ballot that designated the incumbent slate as "Team A" and the opposition slate as "Team B," and simply listed the names of the candidates under the respective slates (Joint Ex. 2).

 Slattery testified that although she had served on the Committee in prior elections, she had never presided over a contested election nor had she read the Department ...

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