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April 6, 1995


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

 HAIGHT, District Judge:

 This opinion emanates from a Consent Decree entered into by the United States (the "Government") and the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America ("District Council"), settling a civil RICO action brought by the Government against the union and certain of its officers in September of 1990. In that action, the Government alleged, in substance, that certain former officers and representatives of the District Council and its constituent locals (collectively, the "Union") had engaged in a variety of forms of labor racketeering. The Government also alleged that the operations of the Union had been infected by a criminal element, specifically, La Cosa Nostra *fn1" , and that the existence of this criminal influence had resulted in the Union being maintained and run in a corrupt and undemocratic manner.

 One month into trial, the parties reached the settlement manifested in the Consent Decree. In the preamble to that document, the parties agreed on the following: that former officers and representatives of the District Council and certain of its constituent locals had been convicted of labor racketeering; that there should be no criminal element or La Cosa Nostra corruption of any part of union operations or activities; and that one of the purposes of the Consent Decree was to ensure that the Union be maintained and run democratically, and without unlawful influence from outside its membership. As part of the settlement, all current and future officers, employees, and members of the Union were permanently enjoined from continuing any racketeering activity, from knowingly associating with any member of any La Cosa Nostra crime family or other criminal group, and from obstructing or otherwise improperly interfering with the implementation of the Consent Decree. Consent Decree, P2.

 One of the key mechanisms for effectuating the purposes of the Consent Decree was the temporary appointment of an Investigations and Review Officer ("IRO"), who was endowed by the Consent Decree with a variety of specific and general powers designed to enable him and his staff to implement the terms of the Consent Decree. *fn2" P4. The present opinion is prompted by disputes regarding the lawful scope of the IRO's powers, and the merits of certain decisions made by the IRO in exercise of those powers. While the parties have had prior disputes over this general topic, the present disputes revolve around the IRO's exercise of his powers with regard to the conduct of the upcoming election of District Council officers.

 That election, according to the Consent Decree, was scheduled for June of 1995, and it is clear from the Consent Decree and the events leading up to it that the parties believed a fair and democratic election was a critical component of the overall effort to reform the Union. There is evidence that past elections have not always been fair and democratic *fn3" , and the IRO's appointment and election responsibilities were designed not only to ensure that those elected obtain their positions fairly, but that the rank-and-file members have restored to them the sense that the Union was operated democratically, and that those holding office were their representatives in the truest sense of the word.

 Under the Consent Decree, the IRO is given the power to "supervise" all phases of the upcoming election. P4(i)(1). He is also directed to draft rules for the conduct of such election, setting out procedures for the nomination of candidates, dissemination of information about nominated candidates to the membership, and the conduct of the final secret ballot election. P4(i)(3). These draft rules are disseminated to the membership for comments, and the IRO is then to submit final rules to the Court. Upon approval by the Court, those rules become the final rules for the election, and are incorporated into the By-Laws of the District Council. Id.

 The IRO disseminated the draft rules to the membership and forwarded the received comments to both the Court and the District Council. *fn4" The IRO then submitted the proposed Final Election Rules ("FERs") to the Court for its approval. In reviewing the proposed FERs, the Court is aided by the IRO's explanations of why he crafted the rules as he did, the District Council's objections to those rules, and the comments from the membership received by the IRO and forwarded to the Court. *fn5"

 Most of the objections to the FERs are based on claims that the IRO has exceeded his authority under the Consent Decree, and that even when he has acted within his authority, he has abused his discretion in making injudicious decisions. The most contentious dispute, however, relates to the timing of the election, and I do not view this Court's reviewing responsibility with regard to this issue to be purely a matter of judging the propriety of the IRO's view on the matter. I will consider this issue first.

 I. The Timing of the Election

 The Consent Decree provides that the IRO is to supervise all phases of a secret ballot election "scheduled for June 1995." While drafting the rules, the IRO's office received comments to the effect that the election should be put off until September, so as to allow opposition candidates sufficient time to mount a meaningful campaign in compliance with the election rules. This objection was particularly emphasized by counsel for Local 608 of the District Council, who wrote:

"Mounting a district-wide campaign requires a candidate with experience and sophistication; novices stand no chance of success. The pool of potential candidates with these prerequisites is limited, consisting primarily of the business agents of the various locals, who are already elected by direct vote. Even with these prerequisites, however, any challenger can at best be considered no more than a longshot against an incumbent with the extensive resources available to Frederick Devine ("Devine"). As a result, against these odds, no one from this limited pool is likely to jeopardize his local position as business agent to run against Devine. The current timetable, however, forces a business agent to do exactly that to challenge him.
First, any business agent who wants to oppose Devine will be forced to run two campaigns simultaneously, as all seventeen locals within the District Council will be conducting their elections for business agent in June, with nominations in May. The current timetable therefore compels any likely challenger to Devine to divide his resources--which will probably be limited--between two campaigns, while leaving him vulnerable to the charge that he is not serious about one or the other of the two offices that he is seeking, instantaneously creating a likely "lose/lose" situation. Boxed this way from the outset, few, if any, business agents will undertake a campaign for District office.
The current timetable, therefore, virtually precludes a viable candidate from running against Devine."

 The District Council leadership vehemently objects to any postponement of the election. They contend that Local 608's comments are politically motivated and prompted by that local's longstanding feud with the District Council.

 The IRO contends that while Local 608 raises substantive concerns, the election should still go forward in June. He does so for three reasons. First, the IRO notes that Local 608 makes no reference to a specific candidate who will be harmed by a June election, and in fact, an active opposition candidacy is presently being maintained. Second, the IRO argues that there is no reliable evidence to suggest that the ills and deterrents alleged to flow from a June election date are anything but speculative. Finally, the IRO notes that given that both the Consent Decree and the union constitution presume an election in June, the election should go forward at that time in the absence of persuasive evidence militating in favor of an alternative date.

 The Consent Decree is not clear as to whether the date of the election is a decision to be made by the IRO, or whether it is to be gleaned from an interpretation of the Consent Decree. Nonetheless, both the District Council and the IRO appear to agree that it is this Court's responsibility to determine what the election date should be. I will therefore make this determination de novo, based not on a deferential review of the IRO's recommendation, but on my own interpretation of the Consent Decree.

 While the Consent Decree states that the IRO is to conduct an election "scheduled for June 1995", I do not view that clause to be a statement suggesting that June was a particularly significant date to the parties. Rather, the clause appears in a section of the Consent Decree concerned with the IRO's role in supervising the election. The provision of a date for the election appears to do nothing more than express the expectation held by the parties at that time regarding when the election was likely to occur. Given the broad purpose of the Consent Decree to root out corruption, and the vital importance attached to the 1995 election being a fair and democratic one, I am certain it was the intent of the parties to the Consent Decree that this date could be changed if doing so would further the overall purposes of the Consent Decree. The District Council has not suggested any reason to think that June has a special significance *fn6" , and indeed, the District Council concedes that the Court has the power to change the date.

 In addition, I think there is some urgency to holding the election as soon as possible. The IRO's appointment is a temporary one, lasting for a period of 30 months, and scheduled to end around September of 1996. The process of fulfilling the goals of the Consent Decree includes the conduct, study, and evaluation of the 1995 election. The 1995 election will ideally not only be a fair and democratic one, but will also reveal a variety of information about the current state of the union and its practices. The sooner the election can be held and the results studied, the better the sense the IRO will have of the proper focus of the remainder of his tenure.

 That is not the end of my analysis, however, because while the District Council and the IRO both profess a preference for the earlier election date, which they both refer to as "June", the District Council argues that the IRO's election schedule actually entails the election being held in July. The FERs presently provide for a combined mail/in-person election. *fn7" Under the FERs, those members requesting a mail ballot will receive their ballot on June 23, 1995. In-person voting will take place during the five day period from July 20 to July 24, 1995.

 The District Council argues that the proposed schedule entails a July election rather than a June election, and that July is an undesirable time because many members go on vacation. The IRO does not address the fact that in-person voting is to occur in July, but notes that he has proposed a schedule for an election to "commence in June."

 Whether or not the Consent Decree meant for the election to commence in June, or that it be completed in June, is not the issue, for I have already held that that date is not cast in stone. Completion of the process in June is not appropriate. While I noted earlier that there is some detriment to any delay, the rules make it clear that a variety of things must happen before the election can be held in order to insure a vigorous and fair campaign period. As it is, there are about thirteen weeks between now and the end of June. To eliminate the three extra weeks in July would reduce the campaign period by about 20%, in the face of comments that have been received complaining that the date should be extended to September in order to give candidates sufficient time to mount a viable campaign. The District Council has not suggested any steps that could be eliminated or shortened without negatively impacting the campaign period. I decline to make such adjustments on my own when the IRO has already given careful consideration to the time requirements of the various steps.

 As to the contention that members often go on vacation in July and thus will be unlikely to vote, that, if true, is undoubtedly an undesirable effect of the proposed schedule. Nonetheless, a significantly abbreviated campaign schedule would also have a detrimental effect in prohibiting an opposition candidate from mounting a viable candidacy. In the absence of real opposition, the goal of a fair and democratic election is hardly furthered by widespread turnout. Widespread turnout is an important concern, but it is not the only one, and in this particular situation, I find that the potential negative impact on turnout from holding in-person voting in July is outweighed by the need to afford candidates a minimally adequate campaign period.

 If significant numbers of Union members are in fact on vacation in July, that would also impact on a September election by restricting the accessibility of the electorate to the candidates. Holding the election in October would address that problem, but I do not think the process should be delayed that long.

 For the reasons stated above, I conclude that the 1995 election for the District Council Executive Board should go forward according to the schedule proposed by the IRO in the FERs.

 II. The Election Rules: Power

 The arguments of the District Council relating to the IRO's promulgation of the election rules fall broadly into two categories: (1) Certain of the FERs involve the IRO engaging in acts that are unlawful, i.e. beyond the scope of the authority given to him under the Consent Decree; and (2) A number of the FERs, even if authorized by the Consent Decree, are unwise, and should not be approved by the Court.

 The first category of these objections relates to the IRO's power, and depends ultimately on the terms of the Consent Decree and the intent of the parties thereto. The second category of objections is subject to the review provided for by Paragraph 6 of the Consent Decree. That provision explicitly requires this Court to review the IRO's proposed FERs. The provision further provides that in reviewing the FERs, the Court shall apply "the same standard of review applicable to review of final agency action under the Administrative Procedure Act." *fn8" P6.

 The District Council challenges the IRO's power with regard to two areas: (1) Those FERs that entail the IRO conducting the election himself; and (2) FER 3.3 which entitles a nominated candidate to obtain a current list of the union members' names and addresses. I will consider each of these in turn.

 A. Does the IRO Have the Power to Issue the Proposed FERs That Entail Him Conducting the Election?

 As noted above, Paragraph 4(i)(1) empowers the IRO to "supervise" all phases of the election. That Paragraph goes on to say that "'supervise' as used herein shall have the meaning ascribed to it in cases arising under Title IV of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481 et seq."

 The District Council objects to certain of the FERs on the basis that they involve the IRO "conducting" various aspects of the election as opposed to merely "supervising." A few of the examples cited by the District Council include: the IRO prepares the Notice of Nominations; Nominating Petitions are provided by the. IRO; Nominating Petitions are obtained from the IRO exclusively; at the nomination meeting, the IRO personally announces the candidates; the IRO determines each candidate's ballot position; and the nominated candidate must file with the IRO all campaign, contribution and expenditure disclosure statements. There are numerous other examples of the IRO's active involvement in the election process. The District Council contends that the District Council should run the election, and the IRO may only supervise it:

"The Rules should provide that the conduct of the election in every respect is carried out by members of the Union. Clearly, the IRO could be present every step of the way and may review every act of the Union to ensure adherence to the Rules. The IRO's role is that of a supervisor, i.e., an overseer, rather than the engineer at the throttle." District Council Letter to the Court, March 10, 1995, at p. 11.

 Judge Edelstein agreed with the Election Officer that "supervise" should be interpreted broadly to allow the Election Officer to exercise his powers in the proposed manner. United States v. International Brotherhood of Teamsters, 723 F. Supp. 203, 206 (S.D.N.Y. 1989). He based this on a variety of considerations, including the broad meaning of "supervise" in the dictionary, the intent of the parties, and the spirit of the Consent Decree. Id. He also found that it had been the parties' intent to define "supervise" as a term of art used in labor law, and that the jurisprudence construing the term had defined it broadly. Id.

 The Government argues that during the negotiations over the Consent Decree, it was the intention of the parties that the broad meaning of "supervise" embraced in the Teamsters case be incorporated into the present Consent Decree. Apparently, the attorneys representing the District Council during the negotiations also represented the Teamsters, and according to the Government, were well aware of the Teamsters precedent regarding the meaning of "supervise". Thus, the Government argues it was clearly the intent of the parties that "supervise" be defined broadly to give the IRO the power manifested in the FERs.

 The IRO's and the Government's second argument is that even if the intentions of the parties were not clear, the meaning of "supervise" under the Labor Management Reporting and Disclosure Act ("LMRDA") is as broad as that argued for here by the IRO. The two parties cite several cases which they argue support their position.

 The District Council argues that the Teamsters precedent does not control here. In that case, it is argued, the Consent Decree did not provide any guidance as to the meaning of the word "supervise". The Court's opinion is thus not binding in this case, where the Consent Decree refers to a specific body of law for the determination of the meaning of the term.

 It is further argued that in concluding that labor law defined "supervise" broadly, Judge Edelstein referred not only to the LMRDA, but to the Labor Management Relations Act and the Landum-Griffith Act. The District Council concedes that cases under these latter statutes define "supervise" broadly, but contends that the one LMRDA case cited by Judge Edelstein does not support such a reading, nor do the additional cases put forward here by the Government and the IRO. Rather, according to the District Council, cases under the LMRDA emphasize that unions should conduct their own elections.


 I begin my analysis by noting that to the extent that the parties thought the manner in which they defined "supervise" in the Consent Decree would provide a clear answer to this foreseeable dispute, they were mistaken. As will be discussed in greater detail below, the case law interpreting the LMRDA is not as clear as either party suggests, nor is the analogy to the supervisory powers of the Secretary of Labor under the LMRDA an easily workable one. Nonetheless, I find that the terms of the Consent ...

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