Dole v. Federation of Postal Police Officers

• Decision Date: 29 June 1990
• Docket Number: No. CV 88-3786.,CV 88-3786.
• Citation: 744 F. Supp. 413
• Parties: Elizabeth DOLE, Secretary of Labor, United States Department of Labor, Plaintiff, v. FEDERATION OF POSTAL POLICE OFFICERS, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

744 F. Supp. 413

Elizabeth DOLE, Secretary of Labor, United States Department of Labor, Plaintiff, v. FEDERATION OF POSTAL POLICE OFFICERS, INC., Defendant.

No. CV 88-3786.

United States District Court, E.D. New York.

June 29, 1990.

Andrew J. Maloney, U.S. Atty. by Bruce H. Nims, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff.

Phillips, Cappiello, Kalban, Hofmann & Katz, P.C. by Ned R. Phillips, New York City, for defendant.

MEMORANDUM AND ORDER

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.

I. BACKGROUND

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 counted.

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, Ilinois 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 Council.

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.¹ 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, respectively.²

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.³ 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 equal or greater than the amount that was turned over to us by our past President and past Secretary/Treasurer.

B. Mr. Carlin submitted new proposed guidelines for reporting and limiting certain expenses. This proposal was unanimously rejected by the Council.

. . . . .

XII. UNION BOOKKEEPER

A. The union pays a bookkeeper $75.00 a month to assist Mr. Carlin as Secretary/Treasurer. The union has retained this person since Mr. Carlin became Secretary/Treasurer for a short period of time until Mr. Carlin can function as Secretary/Treasurer without any help from others. The Council voted six votes to retain the bookkeeper and one to dismiss the bookkeeper. The National President did not vote and the National Vice-President voted to dismiss the bookkeeper. (Emphasis in original).

2. February 17, 1988 Communique:

This is the first time the Federation has ever sought a court injunction against Management and argued this issue in the presence of an Arbitrator. National President, Russo and National Vice-President, Brock were successful in obtaining the court injunction and were the Federation's primary witnesses during the arbitration.

. . . . .

In July of 1986, Mr. Russo became our National President and in October, 1986, I became our National Vice President. Since that time, we have won 75% of all our arbitrations when the National average of success rates are 24%. We have won over 80% of all step IV grievances.

3. April 21, 1988 Communique:

The Federation has chosen the law firm of Wunder and Diefenderfer of Washington, D.C. to lobby for our Twenty Year Retirement. The law firm has informed us that they, "Do have optimism that we can win this Twenty Year Retirement status according to law." If things go as planned, we will have achieved our goal by the end of the current National Agreement, if Mr. Russo and I are still in office.

4. May 19, 1988 Communique:

On June 8, 1988, Mr. Russo and I have scheduled a meeting with Congressman William D. Ford, Chairman of the House Committee on Post Office and Civil Service concerning our Twenty Year Retirement Plan. Our Lobbyist, Mr. William M. Diefenderder, will also attend this meeting.

Congressman Ford's Committee will hold a hearing on our Twenty Year Retirement Plan on Friday, June 24, 1988 in Washington, D.C. I am scheduled to testify at these hearings on the opening day. (Emphasis in original).

By letter dated June 27, 1988, to the "National Officers, National Executive Council," Carlin filed charges against Russo and Brock alleging irregularities in the conduct of the protested elections. Soon thereafter, Carlin demanded a recount of the June 15 election and the July 7 runoff in a July 18, 1988 letter to Election Committee chairman Bell. By letter dated July 25, 1988, Russo informed Carlin that his June 13, June 27 and July 18 letters and any charges therein were being referred to the Executive Council for its recommendation. In an August 6, 1988 letter to Russo, Carlin objected...