Court Ruling Evens Playing Field in Union Elections, Granting Equal Access to Email Lists for Challenger Candidates

August 30, 2013

Court Ruling Evens Playing Field in Union Elections, Granting Equal Access to Email Lists for Challenger Candidates

Statement of Paul Alan Levy, Attorney, Public Citizen

Note: In this case, Public Citizen represented three members of the American Postal Workers Union who are running for union leadership positions.

In a win for the principles of union democracy, incumbent officers of the American Postal Workers Union (APWU) must allow challengers running for union leadership positions to use the organization’s database of member email addresses to send out campaign literature, a judge ruled late yesterday in the U.S. District Court for the District of Columbia.

This case is the first in which a court has addressed the issue whether the right to distribute campaign literature by email is included in a union candidate’s right to distribute campaign literature at his or her own expense, and the judge got it right. U.S. District Judge Colleen Kollar-Kotelly’s decision sets an important precedent for union members because it enables a relatively inexpensive means of campaigning that helps new rank-and-file candidates to even the playing field, which is what section 401(c) of the Labor-Management Reporting and Disclosure Act (LMRDA) is all about.

Section 401(c) says unions must “comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate’s expense campaign literature in aid of such person’s candidacy to all members in good standing of such labor organization and to refrain from discrimination in favor of or against any candidate with respect to the use of lists of members.”

The website of the U.S. Department of Labor’s Office of Labor-Management Standards (OLMS) confirms, “Generally, if the candidate’s request for an alternative method of distributing literature is a reasonable one, the union is required to make the distribution. Accordingly, OLMS advises unions to comply with a candidate’s reasonable request to distribute campaign literature to the membership through email if the union uses email to disseminate information to its members.”

The judge found that this request was reasonable.

The plaintiffs in the case, Mark Dimondstein, Tony McKinnon and Violetta Ward, running on an APWU Members First slate against incumbents for APWU president, national industrial relations director and secretary-treasurer respectively, had been illegally denied the use of the union’s 27,000-person email list, leaving the more expensive postal mail as their only mode of distribution with elections fast approaching in September. One postal mailing can cost candidates more than $100,000. Now the candidates will be able to communicate their platform at a greatly reduced cost. The court’s ruling thus enables union elections to be decided by fair, merit-based competition rather than allowing incumbent candidates to prevail just because they have greater resources.

This decision also brings a statute that was enacted in 1959 into the 21st century by holding that, even though Congress passed this law with postal mail in mind as the principal means of distribution, the clause “by mail or otherwise” allows the statute to have continued relevance in the Internet age.

The union’s main argument against having to comply with this legal requirement was that, as a union of postal workers, it was ideologically opposed to using email instead of postal mail. The judge ruled, however, that the union’s philosophical position was overruled by the law and that, in any event, the union’s claimed view was “disingenuous” because the union itself distributes two weekly newsletters by email to lists of members drawn from the database of emails.

The election ballots go out by postal mail on Sept. 12 and 13, and experience shows that most of the ballots in a mail ballot election are voted within a few days of being received. The candidates will be sending out emails as soon as they can.

The judge’s memorandum opinion and order granting preliminary injunction, as well as other documents in the case, are available here.

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