UNION NO. 771,




This is an action by a union member under the Labor-Management Reporting and Disclosure Act of 1959, seeking to enforce his express statutory right under 29 U.S.C. § 481(c) to equal treatment in the use of union lists for the distribution of campaign literature. Although most issues pertaining to union elections may be litigated only in post-election suits by the United States Department of Labor, Congress recognized the exceptional importance of giving candidates a fair opportunity to have their literature disseminated. Accordingly, it expressly authorized candidates to file pre-election suits to compel union leaders to allow them to mail literature to the union electorate, either at their own expense or at union expense if the leaders have used union funds for their own literature.

In this case, the incumbent leader of Teamsters Local 771 mailed to the union membership, at union expense and on union letterhead, a seven-page diatribe that accused plaintiff of misconduct and incompetence, as well as proclaiming the merits of the incumbent himself. Yet defendants have refused to honor plaintiff's request to send his own position paper to the union membership, similarly at union expense.

Lest defendants succeed in giving members the impression that their charges against plaintiff are true, simply by virtue of his inabiilty to answer them, and because no other effective remedy for this injury to his reputation and his candidacy for office is available, plaintiff now asks the Court grant a preliminary injunction ordering defendants to mail his literature to the membership.


Plaintiff James J. Cox is a member of defendant Teamsters Local 771. He is currently the elected President and Business Agent of Local 771. Defendant Lee Via is the Secretary-Treasurer of defendant Local 771; under the local union bylaws, the Secretary-Treasurer is the local's principal executive officer. Defendant Teamsters Local Union No. 771 is a local labor organization, affiliated with the International Brotherhood of Teamsters ("IBT"), and has its office in Lancaster, Pennsylvania. Cox Affidavit, ¶ 2.

Local 771 is governed by a seven-member Executive Board, consisting of the President, Secretary-Treasurer, and five other officers who are elected every three years. Both Cox and Via were elected, as members of the same slate, in 1992. Id. ¶¶ 2-3.

After the current officers were elected, they developed disagreements about how the affairs of the local ought to be conducted. In 1994, Cox told fellow members that he intended to run in the elections that are scheduled to be held in the fall of 1995. Id. ¶ 4.

Then, in mid-February 1995, defendant Via and four political allies on the Executive Board filed a four-page intra-union disciplinary charge against Cox, accusing him of making false statements "for his own personal, political benefit," as well as other alleged acts of misconduct and incompetence. Cox Affidavit, ¶ 5; Exhibit A. Because the majority of the executive board was involved, under the IBT Constitution the charges were required to be heard by Teamsters Joint Council 53. Cox Affidavit, ¶ 6.

On February 19, both the charges themselves, and the positions taken by both Cox and Via on the issues raised in those charges, were reported in the Lancaster Sunday News. Via was quoted as accusing Cox of using the controversy to support his campaign in the upcoming union election. Exhibit B.

Cox then moved to dismiss Via's charges, and the Joint Council dismissed some but not all of the charges on grounds of legal insufficiency. Exhibits D, E. Via also asked IBT President Ron Carey to remove Cox from office until the charges could be heard, Cox Affidavit, ¶ 10, while Cox appealed to Carey to order Via to stop interfering with his ability to perform his duties in office. By letters dated February 23 and March 3, 1995, Carey declined to remove Cox from office pending resolution of the charges, but did order Via to stop interfering with Cox' performance of his duties. Exhibits F, G.

Via was not content to have his members read only a neutral, even-handed newspaper article about the dispute between himself and Cox. Instead, he wrote a three-page, single-spaced cover letter to the union membership setting forth his side of the dispute. Cox Affidavit, ¶ 8; Exhibit C. The letter was written on local union letterhead as an official communication from the union, and was mailed, along with the charges themselves, to every member of the union, using a list of members' addresses maintained by Local 771. In addition to describing the charges, the letter praised the conduct in office of Via and his allies, accused Cox of various acts of misconduct, and reported Via's request to the IBT President Ron Carey to remove Cox from office pending the resolution of the charges. All expenses connected with the letter -- labor, materials, and postage -- were paid by Local 771. Cox Affidavit, ¶ 9.

Via has never attempted to communicate Cox' side of the dispute to the membership. Nor has he reported to the membership on the dismissal of some of his charges, the denial of his request to have Cox removed from office, or the directive that he stop interfering with Cox' performance of his official duties. Id., ¶ 13. In short, Via cannot claim that his letter to the membership represented simply an attempt to keep them informed on newsworthy events concerning their local.

Cox, however, did try to communicate his side of the dispute by causing Mr. Carey's letters to be posted on bulletin boards at a major Local 771 employer so that members of Local 771 would see them. Id. ¶ 14. However, on April 3, one of Via's allies on the executive board (who is also a union steward) said that he would remove these letter postings from union bulletin boards, and threatened violence against Cox if he continued to tell his side of the dispute to the membership. Id. ¶ 15. On April 5, this local officer did, in fact, remove postings favorable to Cox as he had threatened to do. Id. ¶ 16.

Plaintiff Cox wishes to have his views communicated to the union membership, but he cannot do so without the local's help because Local 771 is in sole possession of the list of names and addresses of union members. The list is maintained on a computerized system called the TITAN, which is capable of printing the list on labels in a form that can be placed on envelopes by machines used by commercial printing and mailing services. Id. ¶¶ 17-18.

Accordingly, by letter dated March 29, 1995, Cox asked Via to allow him to do a mailing of Cox' own materials to the complete union membership. Id. ¶ 19; Exhibit I. Cox' letter further asked that the mailing be done at union expense, inasmuch as Via's attacks had been sent at union expense. Finally, Cox urged Via to pay for both mailings personally, so that the local union would not have to bear the cost of Via's violations of the law.

When Via did not respond to this request, he repeated it on April 14, and then appealed Via's inaction to the Local 771 Executive Board. Exhibits J, K. There has never been a written response to any of these requests; however, at an Executive Board meeting on May 1, the majority of the Board indicated, without ever bringing the matter to a vote, that they were prepared to support Via's position in the matter. Cox Affidavit, ¶¶ 20-22.



Under long-standing Third Circuit law, the issuance of a preliminary injunction depends on the plaintiff's showing that he has a reasonable probability of succeeding on the merits of his claim, and that he will be irreparably injured should the preliminary injunction not issue; the Court is also required to consider whether the injunction would irreparably injure third parties, and whether the public interest favors the relief requested. Eli Lilly & Co. v. Premo Pharm. Labs., 630 F.2d 120, 136 (3d Cir. 1980), quoting Contractors Ass'n v. Krebs, 573 F.2d 811, 814-815 (3d Cir. 1978).

As we show in this memorandum, the law clearly guarantees Cox' right to equal treatment in the use of union resources to reply to Via's politically motivated attack on his performance in office. Moreover, Cox is being irreparably injured by his inability to answer these charges effectively in the crucial period before the election in which alliances are being formed and members are deciding whom to support. In any event when, as here, a statute depends on the issuance of preliminary injunctive relief for its effectiveness, the requirement of irreparable injury is eliminated or significantly reduced. See Third Circuit and other cases discussed infra at 18-19. Finally, because the other factors also militate in favor of granting injunctive relief, plaintiff's motion should be granted.

A. Plaintiff is Likely to Succeed on the Merits.

The first sentence of section 401(c) of the LMRDA, 29 U.S.C. § 481(c), provides as follows (numbers in brackets are inserted for convenience in identifying the separate duties that are imposed):

[E]very local labor organization, and its officers, shall be under a duty, enforceable at the suit of any bona fide candidate for office in such labor organization in the district court of the United States in which such labor organization maintains its principal office, [1] to 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 [2] to refrain from discrimination in favor of or against any candidate with respect to the use of lists of members, and [3] whenever such labor organization or its officers authorize the distribution by mail or otherwise to members of campaign literature on behalf of any candidate or of the labor organization itself with reference to such election, similar distribution at the request of any other bona fide candidate shall be made by such labor organization and its officers, with equal treatment as to the expense of the distribution.

As the Supreme Court stated in IOMMP v. Brown, 498 U.S. 466, 476 (1991), section 401(c) gives the right to distribute campaign literature a special status among all election rights, and "[a] broad interpretation of the candidate's right to distribute literature . . . is consistent with the statute's basic purpose." The special role played by section 401(c) rights was explained in more detail by the court of appeals in IOMMP v. Brown, supra, sub nom. Brown v. Lowen, 889 F.2d 58 (4th Cir. 1989) (en banc), adopting panel opinion at 857 F.2d 216, 218 (4th Cir. 1988).

In this case, plaintiff is asserting two separate rights under section 401(c): his right under the first clause of section 401(c) to have Local 771 comply with his request to distribute his campaign literature in response to defendant Via's attack on him, and his right under the third clause to be treated equally with respect to the expense of the distribution.

Defendants apparently argue that, because nominations will not be held until fall, 1995, neither Cox nor Via were "candidates," and so section 401(c) did not apply at all. However, Labor Department regulations provide that members may become candidates even before they are formally nominated, 29 C.F.R. § 452.80. Moreover, in IOMMP v. Brown, 498 U.S. 466 (1991), the Supreme Court applied section 401(c) in favor of a mailing request by a candidate several months before the nominating convention. In other cases, members have been held to be candidates entitled to rights under section 401(c) eight months, or even years, before the elections were held. Camarata v. Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff'd mem., 108 LRRM 2924 (D.C. Cir. 1980) (court considered campaign content in union publications beginning April 1977, where quinquennial convention was to be held in June 1981); Cotter v. Helmer, 692 F. Supp. 313, 316-317 (S.D.N.Y. 1988) (member was a bona fide candidate, entitled to distribute literature, eight months before election). Moreover, as the court recognized in Murphy v. Operating Engineers Local 18, 99 LRRM 2074, 2122 (N.D. Ohio 1978), aff'd in relevant part, 774 F.2d 114 (6th Cir. 1985), "incumbent officers must always be recognized as potential candidates for re-election."

Clearly, at the time Via mailed his letter and Cox asked for the right to reply, both were bona fide candidates in the upcoming election. First, as early as the fall of 1994, both Cox and Via were telling their fellow members that they were planning to run for union office in opposition to each other, and attempting to recruit members for their respective slates. Cox Affidavit, ¶ 4; Gast Affidavit, ¶¶ 3-4; Colvin Affidavit, ¶¶ 3. Second, the fact that Cox and Via were going to be on opposite sides in the coming election was already a matter of common discussion among the membership. Colvin Affidavit, ¶¶ 4-5. Third, Via's request to IBT President Carey that Cox be removed from office, the charges themselves, and Via's letter to the members announcing that Cox could not be trusted to hold union office, plainly show that Via intended to defeat Cox' efforts to secure re-election. Fourth, both Via's statement to the Lancaster Sunday News that Cox was engaging in political maneuvering against him in connection with the upcoming election, as well as a similar reference in the charges to Cox' alleged lies "for his own personal, political benefit," show that Via was perfectly aware that Cox would be opposing him in that election. Fifth, the very fact that Via's mailing to the membership is so plainly election-oriented, as we discuss below at pages 10 to 14, shows that he was treating Cox as a candidate for election. At least where the incumbents treat one of their members as a candidate, that member is entitled to assert his rights as a candidate under section 401(c).

Nor can there be any serious doubt that Via's mailing of the charges and his cover letter constituted campaign literature within the meaning of Title IV. There have been many cases where courts have treated intra-union propaganda as election-oriented, even though it did not expressly endorse one side or was purportedly directed at some other, contemporaneous, non-electoral controversy.(1)

Under these cases, whether such materials are campaign literature depends on consideration of their overall tone, timing, and content, as well as whether, in context, the documents reflect a legitimate effort to report on and discuss the activities of an incumbent. E.g., Reich v. Teamsters Local 843, 869 F. Supp. 1142, 1148-1149 (D.N.J. 1994). In deciding whether a document should be considered to be campaign literature, it is the document's impact, rather than the subjective intentions of its authors, that governs. Donovan v. UAW Local 719, 561 F. Supp. 54, 57 (N.D. Ill. 1982). These factors point uniformly toward a finding that Via's mailing was campaign literature.

Thus, the tone of both the charges and the cover letter is entirely negative toward Cox and complimentary toward Via. The charges contain only negative factual allegations about Cox, coupled with unfavorable adjectives and conclusory statements about alleged violations of the union constitution and the federal criminal statutes, and insist that Cox was trying to undermine fellow elected officials "for his own personal, political benefit." The letter, in turn, is far from a dispassionate or factual account of important membership issues. Rather, it is replete with opinion, speculation, and self-serving characterizations of Via's own conduct. For example, the letter

expresses Via's belief that he and others were obligated by their oath of office to file the charges against Cox;

denies that Via had invented the charges, and asserts that there are witnesses to support the allegations;

claims that he had tried hard to work with Cox;

repeatedly asserts that Cox lied, both to the IBT in Washington, to the executive board, to Via himself, and to the membership, and further that Cox admitted that he had lied;

alleges that Cox "intruded maliciously into a Member and Officer of Local 771's family and home life with a vicious lie";

suggests that Cox had threatened to sue Via;

claims that he had an audiotape that was "devastating" to Cox and that the members present at a union meeting were "outraged" when they heard it;

says that Cox' presence in office is so disruptive that IBT president Carey has been asked to remove Cox from office pending a decision on the charges;

explains that he wants members to understand why he filed the charges against Cox.

The facts here present a remarkable resemblance to the Third Circuit's decision in Donovan v. Metropolitan District Council of Carpenters, 797 F.2d 140, 146 (1986). In that case, a candidate for union office had filed, and lost, a lawsuit over intra-union issues, and had been convicted of violating union rules in connection with the subject of the suit. These facts were noted at a union meeting, and the minutes contained three sentences reporting these statements. This Court (per Judge VanArtsdalen) held that brief mention of the allegations, in the course of a truthful set of minutes, did not constitute improper campaigning, and the Third Circuit affirmed that ruling. But the union also distributed a corrected set of minutes, six times as long as the original, which both emphasized the charges against the candidate, contained strong rhetoric denouncing him, and attached a letter from the victim of the candidate's misconduct. Even though that misconduct had been found in the intra-union trial, the Court of Appeals held that this second distribution amounted to "use of the minutes as a 'campaign tool,'" not simply reporting on union functions. Id. at 146.(2)

Via's mailing was even more egregious than the violation found in Carpenters. Here, the charges had only been filed, not decided, and indeed there was no finding by any impartial person that Cox did anything wrong. Here the allegations against Cox were not merely three sentences, reporting a final decision, buried in the midst of lengthy minutes that were disseminated pursuant to long-standing practice; rather, the charges were reproduced in full and mailed along with a strident diatribe against Cox.

Third, the context also strongly suggests that the mailing of the letter and the charges was related to the campaign. Thus, Via himself acknowledged, in his conversation with the Lancaster Sunday News, that the dispute between himself and Cox had an obvious bearing on whether each of them would continue in office, and he accused Cox of attempting to unseat him in the upcoming election. Because the letter mailed with the charges refers specifically to the newspaper article, and attempts to respond to it, it is a fair inference that Via was using the letter to support his own side in the electoral struggle.

Moreover, the mailing of the letter and charges cannot be defended as merely neutral reporting on the functions of the union, unlike the newspaper article. Via was simply unwilling to allow matters to rest with an article prepared by an impartial outsider, but wanted to give the members his version of the dispute. Nor is there a history of supplying members with mailed accounts of intra-union disputes of this sort, as, in Carpenters, there was a long history of sending out meeting minutes. And even more important, when Via began to receive rulings from higher union bodies that were adverse to his position, he did not take steps to call those ruling to the members' attention. He did not notify the membership that his charges had been dismissed in large part; he did not write to the members to be sure they knew that IBT President Carey had rejected his contention that Cox' presence was so disruptive as to warrant removal from office; and he did not tell the members that, to the contrary, Carey had ordered him to stop interfering with Cox' performance of his duties in office. Indeed, one of his political allies, fellow officer Krause, affirmatively interfered with Cox' efforts to tell the membership about these rulings, and even went so far as to threaten violence if Cox continued to communicate with the members. Thus, the context strongly supports Cox' claim that the mailing of the charges and the letter constituted campaigning with union funds.

Defendants will apparently argue that the timing of the letter shows that it was not a form of campaigning, on the theory that a letter sent nine months before the election cannot possibly constitute campaign literature. In fact, however, other cases have considered union publications issued several months before the election to constitute campaign literature. For example, in Bliss v. Holmes, 721 F.2d 156, 158 (6th Cir. 1983), the incumbent used the May issue of the union newspaper to announce his candidacy for re-election in November, and the court considered the extent of coverage of the activities of the incumbent in that issue, and each of the succeeding issues, in deciding that the union had violated section 401(c). Similarly, in Yablonski v. UMW, 305 F. Supp. 868, 874 (D.D.C. 1969), an insurgent announced in May 1969 that he would be a candidate in an election to be held in December 1969, and the Court decided, upon consideration of all issues of the union's magazine distributed to the union membership list after the May announcement, that the magazine had been used as a form of campaign literature in violation of section 401(c). A similar scenario led to a finding of violation in New Directions v. Seda, 148 LRRM 2101 (S.D.N.Y. 1994). There, a May union newspaper article attacking the dissident group on a non-election related issue was held to warrant giving a dissident group, that was planning to run in the election in November and December, the right to reply at union expense. See also Cotter v. Helmer, 692 F. Supp. 313, 316-317 (S.D. N.Y. 1988) (section 401(c) right to send mailing at candidate's own expense recognized eight months before election).(3)

Although the interval between the February 21, 1995 mailing and the election in early December, 1995, is slightly longer than in Bliss, Yablonski, and New Directions, the record shows that, by the time the mailing was sent, both Cox and Via had told other members that they were running for office, both had been trying to build support among other members, and both were quite conscious that their election campaigns had begun and that the controversy from which the February mailing arose would have an important bearing on the outcomes of their respective candidacies. In other words, the mailing was sent at a time when the campaigns for election in this Local had obviously already begun.

In those circumstances, the timing, as well as the other factors, strongly supports plaintiff's contention that it constituted campaign literature within the meaning of section 401(c).

B. To the Extent That a Balancing of the Equities is Required, It Is Plainly Shown in This Case.

Cox will suffer severe and irreparable injury if his motion for a preliminary injunction is not granted. The law makes no provision for Cox to recover damages or other monetary relief for violations of section 401(c); a libel suit is not a practical possibility given the intra-union context, e.g., Jean v. Dugan, 814 F. Supp. 1401, 1410 (N.D. Ind. 1993), aff'd, 20 F.3d 255 (7th Cir. 1994) (New York Times standard applies to intra-union libels), and in any event an award of damages would not restore Cox' reputation, let alone substitute for election to union office.

Thus, the only fair remedy for harmful speech is to faciliate Cox' counterspeech. Cox can obtain either a preliminary injunction enforcing his rights before the election, or an order overturning the election by a post-election complaint. We have no doubt that a post-election action would succeed, because the law presumes that the votes of members who did not received a piece of campaign literature that should have been delivered were affected by the violation. Usery v. Masters Mates & Pilots, 538 F.2d 946, 949 (2d Cir. 1087); Marshall v. Laborers Local 478, 461 F. Supp. 185, 192 (S.D. Fla. 1978). However, given the times required to exhaust internal union and administrative procedures set forth in section 402(a) and (b) of the LMRDA, post-election suits are typically not brought until at least six months after the election ended (three months of intra-union exhaustion, plus one month to complain to the Secretary, and two months for the Secretary to sue). Moreover, the statute has been construed to forbid preliminary injunctions in post-election suits. Brennan v. Variety Artists, 87 LRRM 2607 (S.D.N.Y. 1974). As a result, it is normally two years before the post-election suit can be decided, and under section 402(a) the victors in the election under challenge remain in office during this period. Moreover, a successful post-election suit would simply give Cox the right to run for office all over again, repeating all his efforts in a second election campaign when his savings have likely been depleted.(4)

Accordingly, the possibility of a post-election suit cannot give Cox nearly the same relief as the preliminary injunction that he is seeking. Indeed, we should think it in the interest of all concerned, the union as well as Cox, and even defendant Via, for the propriety of the February mailing to be determined now, rather than after the election. Thus, far from causing irreparable injury to other parties, a preliminary injunction would obviate the need for relief that would be far more costly both to the union and to third parties. Thus, the factor of harm to other parties strongly favors the granting of preliminary relief here.

Moreover, Cox' affidavit explains in detail why it is crucial that he do a mailing now. Even though the election is still months away, now is the time when more active members are thinking about what slates to form, join or support. The longer that Via's attacks remain unrebutted, the greater the danger that his contentions will take on an air of fact that may be harder to dislodge from members' minds. Cox needs to be able to respond now, and to put out his own program, as well as his criticisms of the Via record now, in order to have a fair chance in the impending election. Cox Affidavit, ¶ 24.

Thus, Cox has been working to put together his own slate, and Via is doing the same. This is the time when the more active members of our union are deciding whom they will support for office, which slates they will join, and even whether there is a need for additional slates. They will make these decisions based both on their perceptions of who would make a good leader for the next three years, and who has what level of support among the membership at large. Because Cox has held office and been able to serve the membership for the past 2-1/2 years, Cox is Via's most serious challenger, and so Via needs to undermine Cox' support and encourage other slates to form in order to split the vote against him. By damaging Cox in this important pre-nominations period, Via's mailing threatens injury that cannot be undone later, and Cox needs to be able to reply immediately in order to have a fair chance to win the election in the fall. Id. ¶ 25.

Indeed, it is questionable whether there is a need for a specific showing of irreparable injury in this case. First, as the Supreme Court has held, deprivations of rights of free speech are presumed to cause severe irreparable injury sufficient to warrant the grant of preliminary relief, Elrod v. Burns, 427 U.S. 347, 373 (1976), and this principle has been held applicable to deprivation of union members' rights under the LMRDA. Hummel v. Brennan, 469 F. Supp. 1180, 1187 (E.D. Pa. 1979); Ostrowski v. Utility Workers Local 1-2, 530 F. Supp. 208, 215 (S.D.N.Y. 1980).

Second, "if a statutory violation is involved and the statute by necessary and inescapable inference requires injunctive relief, the movant is not required to prove the [irreparable] injury and public interest factors." United States v. Federal Deposit Ins. Corp., 881 F.2d 207, 210 (5th Cir. 1989). Accord, United States v. San Francisco, 310 U.S. 16, 30 (1940); Illinois Bell Tel. Co. v. Illinois Commerce Comm., 740 F.2d 566, 571 (7th Cir. 1984); Trailer Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (9th Cir. 1983); Atchison, Topeka & S.F. Ry. Co. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981), and cases cited. This principle has been repeatedly applied by the Court of Appeals for the Third Circuit, which has affirmed injunctions in such cases without considering the balance of the equities. E.g., Virgin Islands Dept. of Conservation v. V.I. Paving, 714 F.2d 283, 286 (1983); United States v. Spectro Foods, 544 F.2d 1175, 1179-1180 (1976); United Postal Service v. Beamish, 466 F.2d 804, 806 (1972).

The rule is fully applicable to section 401(c), because by its very nature it authorizes pre-election suits that must necessarily be decided in a preliminary injunction context. Indeed, the need for temporary injunctive relief in such cases was expressly considered by Congress in 1959, when the statute was first enacted. Under the original proposal adopted on the motion of Senator McClellan, any candidate was entitled to obtain a copy of the list of members to be used in furtherance of his candidacy. 2 NLRB, Legislative History of the LMRDA 1102, 1119 (1959). Because some Senators were concerned that such lists might be misused, Senator Javits proposed an alternative, under which candidates were guaranteed the right to conduct mailings, and were promised protection against discrimination in the use of membership lists, a right that was to be enforceable in district court before the election. Id. 1240. Senators McClellan and Mundt objected that incumbents would have possession of the lists to use at their leisure, and that it was too easy for unions to delay their compliance with their obligations until it was too late for the challenger to do anything about it. Id. 1240-1241. Senator Javits, however, repeatedly assured his colleagues that courts act quickly in election cases; "I know that in political elections, courts often act within 5 hours, because such prompt action is required." Id. 1241. Similarly, under the LMRDA, he was confident that "a court will act, and act in time." Id. Based on these assurances, the Javits amendment was adopted. Id. 1242.

Given this legislative history, and the general rule that irreparable injury may be presumed from a statutory violation, it is not surprising that preliminary relief enforcing rights under section 401(c) has been granted without express consideration of the issue of irreparable injury. Bliss v. Holmes, 721 F.2d 156 (6th Cir. 1983); Brown v. Lowen, Civ. No. HAR-88-1994 (July 26, 1988) (copy attached), aff'd, 857 F.2d 216 (4th Cir. 1988), aff'd, 889 F.2d 58 (4th Cir. 1989) (en banc), aff'd sub. nom. IOMMP v. Brown, 498 U.S. 466 (1991). See also New Directions v. Seda, 148 LRRM 2101 (S.D.N.Y. 1994) (motion for preliminary injunction decided as permanent injunction without finding of no adequate remedy at law).

Similarly, the public interest lies in vindicating the principles of union democracy, as plaintiff Cox seeks to do here. Lorangeteli v. Critelli, 853 F.2d 186, 196 (3d Cir. 1988); Bauman v. Presser, 117 LRRM 2393, 2401 (D.D.C. 1984), app. dismissed, 119 LRRM 2247 (D.C. Cir. 1985), and cases cited.(5)


The motion for a preliminary injunction should be granted.

Respectfully submitted,

Paul Alan Levy

Alan B. Morrison

Public Citizen Litigation Group

Judith Brown Chomsky

Attorneys for Plaintiff

May 23, 1995

1. E.g., Usery v. IOMMP, 538 F.2d 946, 948 (2d Cir. 1976); Reich v. Teamsters Local 843, 869 F. Supp. 1142, 1147-1149 (D.N.J. 1994); Brock v. Connecticut U. of Tel. Workers, 703 F. Supp. 202, 206-208 (D. Conn. 1988); Donovan v. UAW Local 719, 561 F. Supp. 54, 56 (N.D. Ill. 1982); Brennan v. Sindicato Empleados de Equipo Pesado, 370 F. Supp. 872, 878 (D.P.R. 1974).

2. Metropolitan District of Carpenters also held that a union did not violate section 401(c) by refusing to allow a candidate to mail his literature four months before the election. This holding was overruled in IOMMP v. Brown, 498 U.S. 466 (1991). It is worthy of note that in Carpenters, as here, both candidates announced their candidacies approximately one year before the election, and began active campaigning six months before that election. This fact supports our contention that Cox and Via were properly considered candidates in February and March, 1995, when the mailing to the membership, and Cox' demand of the right to a reply, were sent.

3. In Camarata v. Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff'd mem., 108 LRRM 2924 (D.C. Cir. 1980), the court considered campaign content in union magazines as early as April 1977, in deciding whether the magazines would influence the outcome of the quinquennial convention in June 1981. Although the court ultimately found no violation of section 401(c), its definition of the relevant period as stretching back so far shows that the obligation not to attack the potential electoral opposition with union funds stretches back much beyond than the months at issue here.

4. The Teamster Constitution does not allow members to retain their membership if they do not secure new employment in the trade. Thus, it is not uncommon for an officer, after losing his office, to be forced out of the union, thus being unable to run in the new election that was forced by the violation of his rights. See Reich v. Teamsters Local 843, 869 F. Supp. 1142, 1153 (D.N.J. 1994).

5. A bond is neither appropriate nor necessary under the circumstances of this case. Crowley v. Teamsters Local 82, 679 F.2d 978, 999-1000 (1st Cir. 1982), rev'd on other grounds, 467 U.S. 526 (1984).