McLaughlin v. American Federation of Musicians

Decision Date23 November 1988
Docket NumberNo. 88 Civ. 1540 (RJW).,88 Civ. 1540 (RJW).
PartiesAnn McLAUGHLIN, Secretary of Labor, United States Department of Labor, Plaintiff, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, AFL-CIO, Defendant.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for plaintiff; Allan N. Taffet, of counsel.

Bredhoff & Kaiser, Washington, D.C., George H. Cohen, Michael H. Gottesman, Patricia Polach, of counsel; Vladeck, Waldman, Elias & Engelhard, P.C., New York City, Sheldon Engelhard, of counsel; Henry Kaiser, General Counsel, American Federation of Musicians, Washington, D.C., for defendant.

ROBERT J. WARD, District Judge.

The Secretary of Labor, United States Department of Labor, (the "Secretary") filed this action to set aside the June 17, 1987 union election conducted by the American Federation of Musicians of the United States and Canada, AFL-CIO ("AFM"), pursuant to section 402 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 482. The Secretary requests that the court order a new election, subject to her supervision. Both parties have moved for summary judgment.

The crux of the complaint is that union moneys and assets were used to promote the candidacy of J. Martin Emerson ("Emerson") for President of AFM, in violation of section 401(g) of the LMRDA, 29 U.S.C. § 481(g). Specifically, the government challenges a number of articles which were published in the official newspapers of certain local unions of AFM in the months preceding the election. These articles were either critical of incumbent AFM President Victor Fuentealba ("Fuentealba") or supportive of the challenger for that office, Emerson. The Secretary also argues that the use of the logo of AFM and the logo of Local 802 on campaign letters written by a local union official in the months preceding the election violated section 401(g).

Defendant maintains that all but one of the challenged articles were permissible since they reported on newsworthy events concerning the union. One article is conceded to be a violation, but defendant argues that the violation was de minimis, and in no way affected the outcome of the election. Defendant also claims that the use of union logos on the campaign letters did not amount to the use of union moneys in violation of section 401(g). Finally, defendant seeks summary judgment on the claim which alleges that employer moneys were contributed to promote Emerson's candidacy in violation of section 401(g). That claim is not part of the Secretary's motion for summary judgment. For the reasons that follow, the Secretary's motion for summary judgment is granted and defendant's motion for summary judgment is denied.

BACKGROUND

The AFM is an international labor organization composed of approximately 465 chartered local labor organizations with approximately 200,000 members throughout the United States and Canada.

From November 1986 through January 1987, collective bargaining took place between AFM and the phonograph record manufacturers (the "manufacturers"). Fuentealba, as President of AFM, entered into a tentative agreement with the manufacturers which, among other things, avoided a strike by the union, but also reduced the amount of money the manufacturers were to contribute to certain Funds which benefited union members. The tentative agreement was fiercely opposed by officers of some of the local unions and an Advisory Committee to President Fuentealba. This disagreement was evident in a number of union newspapers published during the winter of 1987. Certain local union newspapers urged the membership to reject the tentative agreement with the manufacturers, while President Fuentealba urged its acceptance in the AFM national newspaper, the "International Musician". These articles are not challenged by the Secretary. Despite the opposition, in March 1987, the agreement was approved by a vote of 1153-844 in a membership ratification referendum.

The aforementioned negotiations apparently resulted in a rift between President Fuentealba and the leaders of certain local unions over the structure of the decision making process in AFM. In March 1987, Local 802 and Local 47 co-sponsored proposed amendments to the AFM Bylaws. Certain of these amendments sought to alter the ratification process for collective bargaining agreements and make the American Arbitration Association responsible for conducting and certifying the election of AFM officers at the national convention election. The amendments, to be voted on at the June election, were opposed by Fuentealba. In April, the President of Local 47, Bernie Fleischer, as well as the President of another local union, were removed by Fuentealba from their positions on national union committees. Several of the articles challenged by the Secretary refer, at least in part, to these occurrences.

Also in March 1987, John Glasel, President of Local 802, New York, Bernie Fleischer, President of Local 47, Los Angeles, and Charles Guse, President of Local 10-208, Chicago, began a series of discussions that led to the formation of "Locals All for Marty". That organization was created on or about May 1, 1987 to support the possible candidacy of Emerson at the June election. Charles Guse, the designated treasurer of Locals All For Marty, set up a bank account for the organization and solicited funds from individual union members to be used to promote Emerson's candidacy.

1. The Newspaper Articles

The Secretary has challenged articles published in the three local union newspapers of those local union officials who formed Locals All For Marty. The individual newspapers were the "Allegro", official publication of AFM Local 802 (Glasel President), the "Overture," official publication of AFM Local 47 (Fleischer President) and the "Intermezzo", official publication of AFM Local 10-208 (Guse President). The cost of each of these publications is borne by the individual local union. Each publication is mailed to the members of that particular local union, as well as to the offices of other local unions of AFM. The newspapers were apparently not distributed at the Convention, nor were they sent directly to the delegates. The delegates, however, were mostly local union officials who had ready access to local union offices.

The Secretary has cited five (5) different newspaper editions and seven (7) different articles as violating section 401(g). Summaries of the articles, the newspapers in which they appeared and samples of the passages which criticized Fuentealba or praised Emerson, are listed below:

a. Allegro

1. May 1987: "AFM Prez Plays Politics"
Fuentealba was criticized over his removal of local union officials from national union committees. The article began by stating: "AFM President Victor Fuentealba used the power of his office for political purposes in early April when he sent letters to the presidents of two large locals rescinding their earlier appointments to convention committees...." The article ends by reminding the reader that "AFM's convention is scheduled for June 15-18 at the Tropicana Hotel in Las Vegas, Nevada."
2. June 1987: "AFM Prexy Raps 802 — Plays Politics at Conference"
Fuentealba was criticized over his opposition to election reform and the comments he made in reference to Local 802 and Glasel at a union function. The article contains the subtitles "Fights Election Reform" and "Fosters Division". It also offers a prediction about Fuentealba's actions in the upcoming election.
b. Overture
1. April 1987: "Fuentealba Criticized for Ignoring Locals — Members Call for New Limits on AFM Prexy"
Fuentealba was criticized over his handling of the AFM and his opposition to the proposed Bylaw amendments. The article contains quotes from union members including:
"In professional negotiations, there is give and take. There's no give and take with Victor Fuentealba. He just gives",
and
"Fuentealba remains in power because of current legislative clamps. He's the law that giveth and taketh away."
2. April 1987: "Toward a More Democratic Union"
This column, written by Fleischer, talks about the phonograph record negotiations and the proposed Bylaw amendments and refers to the article in the April 1987 Overture cited above.)
3. May 1987: "Fuentealba Removes Fleischer From Convention Committee as Big Locals Increase Pressure to Reform AFM"
The letter written by Fuentealba notifying Fleischer that he was removed from his position on a national union committee and Fleischer's letter in response, criticizing Fuentealba, are reproduced in this article.
4. May 1987: "AFM Reform Essential With or Without Vic"
Fleischer's column criticizes Fuentealba over his opposition to the proposed AFM reform. In it, Fleischer states that:
"Those of us who insist on reform had hoped to achieve it without major personnel changes at the top. But, if that's what it takes, it won't be the first time that elected officials were turned out in a losing defense of bad policy."
c. Intermezzo
1. June 1987, "A Message From Pres. Charles A Guse — Fuentealba v. Emerson"
This column, written by Guse, advocates Emerson for President of AFM and criticizes Fuentealba. In this article Guse wrote:
"The drafting of Marty Emerson as a presidential candidate has instilled an air of hopeful optimism among all who know and love this man. He has dedicated his life to improving the future of ALL musicians. Clearly, the A.F.M. has reached a crossroads and this convention will be the turning point of ALL musicians."
2. The letters

The Secretary also challenges three letters written by Local 802 President John Glasel on stationary containing either the AFM union logo or the Local 802 union logo. The letters were distributed directly to the delegates at the June election. In these letters, Glasel criticized Fuentealba, put forth his own views on certain union issues, and endorsed the candidacy...

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