UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

JAMES J. COX,
Plaintiff,

v.                                                                                          No. 95-3160

LEE VIA and TEAMSTERS LOCAL
UNION NO. 771,
Defendants. 

PLAINTIFF'S PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Introduction

This is an action by a union member under the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), seeking to enforce his express statutory right under section 401(c) of that statute, 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, Lee Via, the incumbent leader of Teamsters Local 771, mailed to the union membership, at union expense and on union letterhead, seven pages of accusations attacking the plaintiff's competence to hold office. Via then refused to honor plaintiff's request to send his own position paper to the union membership, similarly at union expense. The basic question in this case is whether the material mailed to the membership constituted "campaign literature"; if it did, then the refusal of the right of reply clearly violated section 401(c).

Plaintiff originally moved the Court for a preliminary injunction ordering defendants to mail his literature to the membership. Because of delays in scheduling, however, this matter could not be tried until July, 1995, and the need to finish the transcript brings the matter on for decision only two months before the nominations meeting, which is scheduled to be held in November, 1995. Def. Exh. 2, page 15. Moreover, once the election is held, the Court will lose jurisdiction over this private suit; only the Secretary of Labor can overturn the election if it is concluded that the LMRDA was violated. As a practical matter, then, the Court's determination whether to grant injunctive relief will be its only opportunity to rule on the case. Accordingly, the Court has decided to accept the plaintiff's suggestion, to which defendants never objected, that the preliminary injunction issue be consolidated with the merits.

At defendants' insistence, and constrained by cases that tend to favor the holding of a factual hearing before a preliminary injunction is granted, the court heard testimony. However, there were only two factual questions on which there was actual conflict in the testimony, just as there was little conflict in the affidavits. The questions before the Court are essentially ones of law. However, before turning to the legal discussion, we recount the significant evidence, and resolve the two factual issues.

FACTS

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. Pl. Exh. 12, ¶¶ 3, 4.

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. In addition, the local union has two business agents, who are elected to their positions but who are not members of the Executive Board. Both Cox and Via were elected, as members of the same slate, in 1992. Id. ¶¶ 4-6. Other members of the Executive Board were elected on a different slate. Id. ¶ 4. The next election is scheduled to be held in late 1995 -- nominations for office will be made in November, and ballots will be counted in December. Id. ¶ 3.

During their common term in office, Via disagreed strongly with the way Cox that was performing as President and Business Agent. July 17 Tr. 35-53, 55-60. These matters related to his handling of grievances and contract negotiations, the coverage given to Cox in a union newspaper, and a variety of other matters. He repeatedly criticized Cox' conduct, both to Cox himself, e.g., id. 39, 59, 60, to other members of the Executive Board, id. 36, 38, 39, 60; July 18 Tr. 4, and to the rank and file. Id. Tr. 28. On occasion Via overruled Cox' decisions and removed him from direct responsibility for a matter. July 17 Tr. 49.

It is apparent from the testimony at trial that, by the fall of 1994, Via was planning to run for re-election on a slate from which Cox would be excluded. Thus, at a union grievance meeting, Via discussed Cox' faults with Robert Gast, a union steward at Yellow Freight, a company that employs about 30% of Local 771's total membership. See July 18 Tr. 29 (900 to 1000 Yellow Freight members) and id. (total local membership of 2800-3000). Local union members work in a number of different job classifications, and it is important, in putting together a slate, to include workers from different employers and different classifications. Id. 29-30. Both Gast and Cox came from the "road" classification, id. 28-30, while Via came from the "dock" classification. Pl. Exh. 12, ¶ 3. Gast testified -- and Via did not deny in his own testimony -- that Via's discussion of Cox' faults culminated in Via's statement that he was going to need a new road man on his slate. July 18 Tr. 29. Gast understood that he was being implicitly sounded out for his willingness to replace Cox on the Via slate, id. 30, although he agreed that such a slot was never expressly offered. Id. 43.

At about the same time, members at Yellow Freight were beginning to talk about the impending election and the likelihood that Cox and Via would both be running. July 18 Tr. 46-48, 49-50, 51. Some assumed they would be running together, but others recognized that they would be in opposition. Id. Although Yellow Freight is only one of a number of employers of Local 771 members, its disproportionate size increases the significance of testimony about what members there were saying and hearing, and hence in the Court's determination of when the campaign for the 1995 elections was effectively underway.

In early 1995, defendant Via heard that Cox had accused him of sexual misconduct with a union office employee, and that Cox had, for reasons that have not yet been explained, tried to induce Edmond Zarycki, the office employee's boyfriend, to call Via's wife to urge her to put a stop to the shenanigans. July 17 Tr. 23, 28, 31. According to his testimony, Via appears to have learned about these events because Zarycki, in violation of Pennsylvania law, tape recorded two telephone conversations on the subject without Cox' consent. July 18 Tr. 7. Via compounded the felony by playing the tape to other members of the union, even though he was aware that the taping was illegal. Id.(1)

These events apparently confirmed Via in his view that he could not have Cox on his slate in the upcoming election. Indeed, he believed at this point that Cox was maneuvering to replace him in the upcoming local union election, July 17 Tr. 118, 119, Pl. Exh. 4,(2) and he decided that, rather than yielding to Cox' efforts, he would fight fire with fire.

Via persuaded four of the five other members of the local union executive board that Cox no longer deserved to hold union office, and that he should be forced out of office if he could not be coerced into resigning. July 17 Tr. 23, 27, 35; Pl. Exh. 12, ¶ 12. Accordingly, he obtained the services of Robert Baptiste, Esquire, a Washington, D.C. lawyer who does not represent Local 771 regularly, but who has been representing the defendants in this case, to draft a set of intra-union charges against Cox, based on the telephone conversations as well as the various other complaints about Cox' conduct in office that Via had developed over the past two years. July 17 Tr. 4-5. The charges ran four pages, accusing Cox of making false statements "for his own personal, political benefit," as well as other alleged acts of misconduct and incompetence. Pl. Exh. 5. Because a majority of the executive board was involved in the charges, union rules required them to be filed with the next higher level in the union, Joint Council 53. Pl. Exh. 12, ¶ 16.

On Sunday, February 12, Via called a special caucus of all members of the Executive Board except Cox, at which he laid out his complaints against Cox (as noted above, he had discussed many of these matters with the members previously), and four of the five members present, in addition to Via himself, signed the charges. July 17 Tr. 21. They agreed that Cox would be given an opportunity to resign, and that if he did so there would be no need to file the charges or to air their complaints against Cox before the membership. Pl. Exh. 12 ¶ 12.

At the Executive Board meeting held immediately after the caucus, Cox refused to resign, and accordingly Via told Cox that he would have to take the charges before the membership meeting that morning. July 17 Tr. 61. Cox denied the charges, and then Via told the membership that he had the tape recording, which he proceeded to play -- itself a felony under Pennsylvania law -- after taking a membership vote about whether to play it. Id. 63.

The presentation of the charges and the playing of the tape had the effect that Via had apparently desired. Many members expressed their anger about what they had heard, id. 68, Cox said that he was not after Via's job, id. 68-69, and Cox indicated after the meeting that he wanted to resign from office later in the week. Id. 22-23. Accordingly, the five members of the Executive Board refrained from filing the charges at that time.

During the week, however, as members discussed what they had heard about events occurring at the local union's membership meeting, Cox considered matters further, and decided that he would fight to keep his office. Pl. Exh. 4. Cox complained about the playing of the tape recording to the Manheim Township police, who began an investigation after seizing the tape recording from Via under a search warrant. Pl. Exh. 4; Def. Exh. 1; July 17 Tr. 74-76. Moreover, Cox told Via that he was not going to resign after all. Id. 76.

At that point, Via sent the charges drafted by Mr. Baptiste to the Joint Council by telecopier, July 17 Tr. 6, 8, 76; Pl. Exh. 3, along with a cover letter stating that the charges were being filed by members of the local union executive board. Id. 6, Pl. Exh. 1. There was conflicting testimony -- all by Via himself -- about the number of signatures on the charges as they were sent to the Joint Council. At some point, the two elected business agents added their signatures to the charges, and there were seven signatures on the set of charges that were mailed to the union membership the following week, July 17 Tr. 14 and Pl. Exh. 5, along with the cover letter that stated that the charges had been signed by five officers and two business agents. July 17 Tr. 14 and Pl. Exh. 5. Via specifically agreed that, as mailed to the membership, the charges contained "two additional signatures to the . . . charges as originally faxed to the Joint Council." July 17 Tr. Tr. 14.

During his examination as an adverse witness by plaintiff, Via identified Plaintiffs' Exhibit 3, a copy of the charges with only five signatures, as the set of charges that were faxed to the Joint Council. Id. 8. Exhibit 3 bears a fax line at the top, showing that between 11:45 and 11:47 on February 17, 1995, it was sent by the "TEAMSTERS LANC PA" to a telephone number that was identified at trial at the telecopier number for Joint Council 53. Compare Pl. Exh. 3 with Pl. Exh. 2. In this regard, the Court takes judicial notice of the fact that a telecopier commonly imprints, at the top of each page that it transmits, a line that states the name or telephone number of the transmitter, the date and time of the transmission, the telephone number to which it is transmitting, and the number of the page under transmission.

Via testified under examination by his own counsel that the charges bore seven signatures when they were sent to the Joint Council, July 17 Tr. 76, but under redirect questioning by plaintiff, he again confirmed that Exhibit 3 (i.e., the document with only five signatures) was the set of charges that had been sent to the Joint Council. July 18 Tr. 18. Under the Best Evidence Rule, the document itself is the best evidence of its contents, and so Exhibit 3, together with the fax line at the top of Exhibit 3 and the cover letter identifying only members of the Executive Board as signatories persuade the Court that, when transmitted to the Joint Council, the charges had only five signatures. (The relevance of this finding is discussed infra at pages 30-31).

The Court now turns to the other major factual dispute at trial. The only witness at the trial who is not a member of Local 771, and who thus has no apparent interest in the outcome of this action, is Daniel Guido, who testified under subpoena for the plaintiff. July 17 Tr. 54. An anonymous source told Guido, then a newspaper reporter for the Lancaster Sunday News with sixteen years of experience as a reporter (Tr. 128), of the events of the past week, July 17 Tr. 121-122. On February 17, Guido called both Via and Cox on to obtain their versions of the events. Both Via and Cox talked to Guido, although Cox was apparently reluctant to do so at first, until Guido reminded him that, if he did not speak, only Via, who had willingly spoken to Guido, would get his side of the story published. Id. 129.

During his conversation with Guido, Via told Guido that, in his opinion, Cox had tried to smear Via, hoping that Cox could take over Via's position in the local union elections that were scheduled to be held late in the year. Tr. 117-119. As it appeared in the Lancaster Sunday News on February 19, 1995, the story stated as follows:

Via said Cox tried to "smear" Via and get Via to resign, so that Cox could "take over the top job" in elections later this year. The position Via holds is ranked higher than the presidency Cox has.

Pl. Exh. 4.

The sharpest conflict in testimony at the trial was over what Via told Guido during this telephone conversation. Via denied ever referring to the local union elections, July 17 Tr. 80, but Guido insisted that he did. Id. 119. For a number of reasons, the Court is persuaded that, in speaking to Guido, Via did attribute an electoral motive to Cox.

First, Guido was the only witness to testify who does not have a stake in the outcome of the case. Nor did he have any stake in the outcome of the case when he originally printed the story in February. Indeed, the reference to an electoral motive did not become legally significant until a few days after the article appeared, when Via chose to send a mailing attacking Cox. It seems highly unlikely, therefore, that Guido would have attributed this statement to Via, either in the newspaper or in his testimony, for any reason other than his belief that this is what Via said.(3)

Second, Guido's testimony on this point was firm and direct. At first, it was unclear whether Guido was testifying based only on the fact that he had printed a story attributing a discussion of elections to Via, or based on a present recollection of their conversation. If this were all that was said, the statement would still be admissible to establish what Via said as a recorded recollection, under Rule 803(5) of the Federal Rules of Evidence (there was no objection to the admission of the article itself). Indeed, because the newspaper story was printed on February 19 and written on February 17 or 18, when the conversation was fresh in Guido's mind, and also supported by contemporaneous notes of the conversation, Id. 119, under this analysis the probative value of the evidence would be strong indeed. In any event, under cross-examination by defendant, the distinction between testimony under present recollection and testimony based only on assumptions was stressed to Guido, and he confirmed that he understood that he was obligated to testify based on actual recollection. Id. 127.

Guido's certainty about his recollection contrasts with Via's uncertainty on the subject. Although Via did testify, without qualification, that he did not refer to elections, id. 80, he was more equivocal on the point before the trial. Apparently, after plaintiff's counsel Mr. Levy left a message asking to speak to Guido, Guido, under the mistaken impression that it was Via's lawyer who was calling, called Via before returning Mr. Levy's telephone call. He and Via then had a conversation in which Via suggested that he had not used the word elections during the conversation. During this conversation, which occurred a few weeks before trial, at a time when Via had apparently not discussed his testimony with his lawyer, Via was not firm in his denial; he acknowledged to Guido that his (Via's) recollection might be mistaken. Id. 128, 130. Via agreed that he acknowledged to Guido, with respect to use of the word "smear," that he didn't remember, and "if you said I said it, I did"; he denied, however, even discussing the use of the word "elections" in this conversation.Id. 108-109.(4)

The final point relative to this credibility issue is that it is hard to imagine who, other than Via, would have attributed electoral motives to Cox. Apart from a brief conversation with the union member who alerted him to the controversy, Guido's sources for the story were Cox and Via. Moreover, he began in complete ignorance about Local 771, not having covered it previously. Id. 125-126. Logically, then, either Cox or Via had to have been the one who made the attribution of electoral motives. It does not seem very likely that Cox would accuse himself of violating union rules in a maneuver to take over the top job in elections later in the year, although, oddly enough, to the extent that this testimonial dispute is relevant because defendants deny that Cox was a candidate at the time, Cox's description of himself as a candidate in a conversation with a newspaper reporter might well be sufficient to make him a candidate for section 401(c) purposes. In any event, however, Via is the only likely source for this statement, and so, in combination with the other reasons stated above, the Court concludes that Via did, as Guido testified, make the statements attributed to him in the article.

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. July 17 Tr. 14-16, and Pl. Exh. 6. Via also asked IBT President Ron Carey to remove Cox from office until the charges could be heard, while Cox appealed to Carey to order Via to stop interfering with his ability to perform his duties in office. July 18 Tr. 13; Pl. Exh. 11; Pl. Exh. 12 ¶ 20. By letter dated March 3, 1995, Carey declined to remove Cox from office pending resolution of the charges. July 17 Tr. 16, Pl. Exh. 7. By a separate letter, issued before the March 3 letter, Carey directed Via to stop interfering with Cox' performance of his duties in office. July 17 Tr. 88-89.

Via was not content to present his charges at a meeting attended by one hundred members, and to have his other members read only a neutral, even-handed newspaper article about the dispute between himself and Cox. Instead, with the assistance of his attorney, Mr. Baptiste, he wrote a three-page, single-spaced cover letter, to the union membership setting forth his side of the dispute. July 17 Tr. 12-14; Pl. Exh. 5. The letter, dated February 21, 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. July 17 Tr. 14.

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. July 17 Tr. 16. 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 desires an equal opportunity to communicate his side of the dispute to the membership. One of defendant's own witnesses admitted that, because union members work so many different shifts and in different places, the mails are the only effective way to communicate with the entire membership. It was the most effective way for Via to communicate his side of the story, and it is the only effective way for Cox to tell his side. July 18 Tr. 71.

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. July 17 Tr. 17; Pl. Exh. 8. 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. Via did not respond to this request, Tr. 17; he explained in his affidavit that his refusal to respond was deliberate, based on his belief that he had done nothing wrong. Pl. Exh. 12, ¶ 23.

When Via did not respond to this request, Cox repeated it on April 14, and then appealed Via's inaction to the Local 771 Executive Board. July 17 Tr. 17-8; July 18 Tr. 21-22; Pl. Exh. 9, 10, 16. There has never been a written response to any of these requests; July 17 Tr. 18, 97; 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. July 18 Tr. 21-22.

PLAINTIFF'S IS ENTITLED TO THE REQUESTED INJUNCTIVE RELIEF.

 

As intimated at the beginning of this opinion, the processing of this case has delayed disposition until only two months before the nominations meeting is scheduled to be held. As a practical matter, the outcome of the hearing that was held in July, 1995, will determine plaintiff's ability to obtain any injunctive relief. Accordingly, the Court has decided to consolidate the motion for a preliminary injunction, and preliminary injunction standards need not be satisfied for the Court to grant relief.

If such standards must be met, Cox is still entitled to prevail.(5) He will be 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 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.

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). This case involves plaintiff's assertion of his right under the third clause of section 401(c) to be treated equally with respect to the expense of the distribution.

1. Cox Was a "Candidate" When Via's Letter and the Charges Against Cox Were Mailed to the Membership.

Defendants argue that, because nominations will not be held until November 1995, neither Cox nor Via were "candidates," and so section 401(c) did not apply at all. The evidence and the caselaw, however, point decidedly in the other direction.

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, Cox was a bona fide candidates in the upcoming election. First, under the case law, the mere fact that Cox was an incumbent officer made him presumptively a candidate in the next election, Murphy v. Operating Engineers Local 18, 99 LRRM 2072, 2122 (N.D. Ohio 1978), aff'd in rel. part, 774 F.2d 114 (6th Cir. 1985).(6) In this regard, it does not matter whether, when Via attacked Cox, Cox was a candidate for election against Via or merely a candidate for re-election to his own position. In either event, section 401(c) required equal treatment of any candidate if Via used union funds for literature for or against that candidate.(7)

Second, as early as the fall of 1994, Via was discussing his plans to run for office, describing his dissatisfaction with Cox's performance in office, and suggesting that he would be replacing Cox on his slate. July 18 Tr. 27-29. By late 1994 and early 1995 (before the letter was mailed to the membership), there was active discussion among the members at Yellow Freight about the likelihood that both Cox and Via would be running in the elections in the fall of 1995. July 18 Tr. 30, 46-48, 49-50.

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, Via's statement to the Lancaster Sunday News that Cox was engaging in political maneuvering against him with a view to replacing him in the upcoming election supports a finding that Cox was, in fact, a candidate. Indeed, it is an admission by Via that the Court would be loath to disregard absent strong evidence that Cox was not, in fact, a candidate. No probative evidence of non-candidacy was presented, however.(8)

Indeed, even if the Court had not decided to credit Guido over Via on the factual question whether, in the interview, Via attributed electoral motives to Cox, Via's concession that he had accused Cox of trying to force him to resign so that Cox could replace him, July 17 Tr. 10, 108-109, implicitly concedes that Via knew that Cox would be running for that same position in the fall election. Similarly, the reference in the charges to Cox' alleged lies "for his own personal, political benefit," Pl. Exh. 3, page 1, show that Via was perfectly aware that Cox would be running for his position in that election.

Fifth, the very fact that Via's mailing to the membership is so plainly election-oriented, as discussed later in this Opinion, shows that he was treating Cox as a candidate for election. At least where incumbents treat one of their members as a candidate, that member is entitled to assert his rights as a candidate under section 401(c).

Via also argues that, whether or not Cox was a candidate, Via himself was not planning to run for re-election at the time he sent his letter to the membership, but rather was planning to retire, Tr. 80, and that he only changed his mind about running in May 1995. Given the undisputed testimony that he told Robert Gast in the fall of 1994 that he was running, and would need a new road driver on his slate, July 18 Tr. 28-29, the claim that he had different plans only for the short period surrounding the mailing of the membership letter and the union's consideration of Cox' request for a reply is not credible. In any event, the ultimate question is not whether Via was a candidate, but whether Cox was a candidate, because even a non-candidate may not use union funds for literature attacking a candidate. See Reich v. Teamsters Local 843, 869 F. Supp. 1142, 1148-1149 (D.N.J. 1994). Accordingly, the steps that Via took toward forming a slate against Cox before the letter was mailed are probative of whether the campaigns were generally getting under way, and Via's claim that a temporary change of heart made him not a candidate for a later period does not negate that fact.

Defendants have also argued that Cox cannot be considered to have been a bona fide candidate because, when he demanded the right to send a counter-mailing, Pl. Exh. 8, he had not filed a formal declaration of candidacy. No case supports this argument. Although such declarations have been cited as evidence for the plaintiffs in some cases, in other cases union publications were held to violate Title IV by their descriptions of union members without any indication that the members had made any declaration of candidacy, and no case makes a formal declaration a requirement.

For example, in New Directions v. Seda, 867 F. Supp. 242 (S.D.N.Y. 1994), plaintiff Schermerhorn had not declared his candidacy, but wrote a letter very similar to plaintiff Cox' letter in this case, which described the union's publication as campaign literature and asked for the right to respond; the Court treated Schermerhorn as a candidate based on the fact that he had run for office in the two previous elections. Similarly, McLaughlin v. Musicians, 700 F. Supp. 726, 730 (S.D.N.Y. 1988), found a violation based on attacks on the incumbent president in the months before an election, without any suggestion that he had formally declared his candidacy. And in Murphy v. Operating Engineers Local 18, supra, at 2122, the Court deemed praise of incumbent officers to be sufficiently related to candidacy to invoke section 401(c) (although ultimately it found no violation), without any suggestion that such candidacies had been declared, but simply because, as incumbents, they could be presumed to be candidates in the next election. Accordingly, defendants' proposed "declaration of candidacy" requirement simply does not exist under Title IV. See also 29 C.F.R. § 452.51 (barring declaration of candidacy requirement to run for office).

Moreover, although the demand letter did not contain the words "declare" and "candidacy", it made crystal clear that Cox regarded himself as an electoral opponent of Via in the upcoming election. Defendants conceded in their pre-hearing brief, at 22, that, when Cox invoked the statutory rule barring union-funded attacks on a "potential electoral oppone[n]t," he was referring to himself as the electoral opponent. Cox' letter similarly invoked the Third Circuit's Carpenters decision concerning attacks on a "political opponent," which just as obviously referred to Cox himself. It was, therefore, perfectly clear to defendants that Cox was invoking his rights as a candidate, and the Supreme Court has expressly condemned the sort of persnickety reading of internal union complaints on which defendants rely here. Hodgson v. Steelworkers Local 6799, 403 U.S. 333, 340-341 (1971).

In sum, the Court finds and concludes that, both when Cox was attacked by the membership mailing, and when he asked for the right to respond, he was a candidate for election who enjoyed the protection of section 401(c).

2. The Letter and Charges Mailed to the Union Membership Were "Campaign Literature."

Both sides agree that the determination of whether union-funded 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.

a. Content and Tone.

In this regard, it must first be noted that the absence of any express denunciation of Cox' candidacy, or an express statement urging members to vote one way or another in the upcoming election, does not in any way negate Cox' claim that the mailing was electoral in nature. There have been many cases where courts have treated intra-union propaganda as election-oriented, even though the publications did not expressly endorse one side or were purportedly directed at another, contemporaneous, non-electoral controversy.(9) Indeed, there was no express reference to the election in Donovan v. Metropolitan District Council of Carpenters, 797 F.2d 140, 146 (3d Cir. 1986), but the Court of Appeals still found a violation. Similarly, in the leading case of Yablonski v. UMW, 305 F. Supp. 868 (D.D.C. 1969), there was no express mention of the election. The very point of the decision is that routine puffery of an incumbent, placing his name and picture repeatedly before the members in connection with non-newsworthy events, is a form of campaigning that cannot be done with union funds. In sum, the absence of express discussions of the election only requires application of the tone, content, context and timing analysis -- it does not decide that question.(10)

Considering the factors in turn, 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 the union convicted him 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. The Court 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. 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 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.

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.

Defendants do not contend that the facts about the tone, content, context, and timing of the mailing in this case are any weaker than the facts that produced a finding of a violation in Carpenters. Instead, they seek to distinguish the case on the ground that it involved a post-election complaint by the Secretary of Labor under section 401(g) of the LMRDA.

The Court is persuaded, however, that there is no genuine difference between the requirements of section 401(c) and section 401(g) as they apply to claims that union funds have been used improperly to disseminate communications to the union membership that have a tendency to affect electoral contests, when the union defends on the ground that the communication was an entirely proper exercise of its right to communicate with the membership about non-electoral affairs. As the Second Circuit found in Usery v. IOMMP, 538 F.2d 946, 949 (1976), subsection (g) is violated by a union publication that has, when the union refuses to allow another candidate to effect a similar distribution, been found to violate subsection (c) was violated. Several reasons support the conclusion that the Second Circuit was correct in this regard.

First, both subsections require the court to decide whether a communication amounts to "campaign literature" in that it advances a candidacy in a way that exceeds the bounds of proper non-electoral discussion. Under both subsections, therefore, the issue is whether union assets were used in an improper manner. Under both subsections, courts apply the very same four-factor test of content, tone, context, and timing. E.g., New Directions v. Seda, 867 F. Supp. 242, 245 (S.D.N.Y. 1994) (subsection c); Reich v. Teamsters Local 843, 869 F. Supp. 1142, 1148 (D.N.J. 1994) (subsection g); Donovan v. NAPFE, 566 F. Supp. 530, 532 (D.D.C. 1983) (subsection g); McLaughlin v. Musicians, 700 F. Supp. 726, 732-733 (S.D. N.Y. 1988) (subsection g).(11)

Perhaps more significantly, courts applying section 401(c) in pre-election suits routinely cite opinions in section 401(g) post-election suits in determining whether union publications were abused, and vice versa. E.g., Bliss v. Holmes, 721 F.2d 156, 158 (6th Cir. 1983); New Directions v. Seda, 148 LRRM 2102, 2104 (S.D. N.Y. 1994); Donovan v. NAPFE, 566 F. Supp. 530, 532 (D.D.C. 1983); Camarata v. Teamsters, 478 F. Supp. 321, 330-331 (D.D.C. 1979). In Carpenters itself, the Third Circuit based its finding that subsection (g) was violated on an analysis that considered subsection (c) cases along with other subsection (g) cases. 797 F.2d 140, 145 (3d Cir. 1986). Because defendants' attempt to explain Carpenters away on legal grounds fails, their failure to distinguish it factually condemns their defense of this case.

b. Context.

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.

Defendants' principal argument in favor of a finding that the letter was not electoral in impact or motive is that, after the playing of the Zarycki tape at the meeting and the publication of the newspaper article, there were many questions and concerns among the membership that the leadership was justified in answering through a mailing. Defendants introduced a great deal of evidence to show that members' interest had been aroused, and that many stewards thought that Via should send out an explanation. But there was also undisputed testimony that the consensus among the membership was that they wanted to hear Cox' side of the story as well. July 18 Tr. 34.

The members' desire for information might have justified an even-handed account by a dispassionate reporter, or it might have justified allowing both sides to explain their positions at union expense. But the need to give information to the membership does not justify the strident, one-sided, personal political attack that was mailed to the union membership.

Finally, even if a desire to inform the membership might have justified the mailing of the original charges, that is not what happened here. As Via's February 17 cover letter to Joint Council 53 makes clear, the charges filed with the joint council were made "by myself and members of Local No. 771's Executive Board." Pl. Exh. 1. Similarly, when he spoke to the Lancaster Sunday News in preparation for its February 19 article, Via could only report that five executive board members had joined the charge. Pl. Exh. 4, page 1. But when Via was ready to attack Cox in a mailing to the union membership, he needed a stronger display of political solidarity against Cox, and so he obtained the signatures of Local 771's two business agents, who work under his direction, but who did not sign the original charges, and then told the membership that they, too, had filed the charges. Pl. Exh. 5, page 1 of letter (charges filed by executive board "and two (2) Business Agents"), page 4 of charges mailed to membership (showing two additional signatures). As the Court has found, these signatures did not appear on the charges when they faxed to the Joint Council. Supra, pages 8-9.

Thus, 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.(12)

And even more important, as Via began to receive rulings from higher union bodies that were adverse to his position, he took no 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 tell them 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. Thus, the context strongly supports Cox' claim that the mailing of the charges and the letter constituted campaigning with union funds.

Indeed, the Court concludes that a union-funded mailing of mere charges against a candidate (rather than a report on the outcome of a union trial) constitutes campaign literature per se, entitling the charged individual to a mailing in response. Any other holding would have serious adverse practical consequences for union democracy. An incumbent would have a roadmap which, if followed, would allow him to destroy his electoral opponents long before the ballots have been mailed, without any legal remedy. The incumbent could bring charges against such opponents, then mail the charges, refusing even to tell the members when the charges have been dismissed in large part, and acting with complete impunity so long as the incumbent was careful not to expressly refer to the election. Cf. Semancik v. UMW District 5, 466 F.2d 144 (3d Cir. 1972). Such a holding would seriously compromise Congress' objective in enacting section 401(c), of trying to level the playing field so that all candidates have a fair chance to appeal to the union electorate for its support.

Nor, for that matter, does the Court accept defendants' apparent contention that their charges against Cox were true as a proper basis for defending a union publication against Title IV scrutiny. No court has treated that issue as dispositive or even significant, even though, in many of the union publication cases that the parties have cited in their briefs, one side or the other had leveled grave charges at the other relating to non-electoral issues.(13) In none of these cases did the courts decide whether the charges were true or well-motivated, or even discuss them at length. Indeed, in the Third Circuit case of Donovan v. Carpenters, 797 F.2d 140 (1986), an insurgent candidate had been convicted by a union tribunal, and the Court proceeded on the assumption that he was guilty as charged; yet the use of union resources to distribute a rhetorical attack on the candidate was held to have been improper.

There is another reason why the Court cannot permit this case to turn on the truth of Via's allegations against Cox. If truth were the issue in cases such as this, every section 401(c) case would turn into a circus in which the incumbents tried their allegations against their opponents in federal court.

This, in turn, would harm two important federal policies embedded in the Landrum-Griffin Act. First, under long-standing law, the basic determinations of "guilt" or "innocence" of intra-union offenses are left to the union; federal courts cannot even determine whether there was sufficient evidence to convict. Boilermakers v. Hardeman, 401 U.S. 233, 246 (1971). Defendants, in effect, ask the Court to try their charges against Cox, not simply by de novo review, but indeed in the first instance.

Even more important, defendants' argument, if accepted, would make it almost impossible for potential 401(c) plaintiffs to secure a preliminary injunction. A trial judge faced with a motion for a section 401(c) injunction would have to schedule a trial of a week or more to allow testimony on the truth of the inevitable charges and countercharges. If the Court were to decide that these issues are relevant, future union defendants will not hesitate to make the plaintiff, rather than the mailing, the basic issue, and every future case will turn on such defenses. The ultimate result will be that the prompt and easy remedy that Senator Javits promised, when he sponsored the substitute amendment on the floor of the Senate that was enacted as section 401(c), 2 NLRB, Legislative History of the LMRDA 1240-1242 (1959), would be rendered wholly ineffective.

Thus, although the nature and reasons for the accusations, and the extent to which the membership was discussing them after the meeting, are relevant insofar as they show the context for Via's mailing, they do not affect the Court's determination of whether Cox should have an opportunity to reply to that mailing. Nor has the Court made any decision on such factual questions as whether Cox solicited Zarycki to make a telephone call to Via's wife (the testimony shows only Zarycki's statement, not under oath, that Cox had done so at some time previous to the recorded conversations), and if so whether there was any justification for what might otherwise appear to be a scurrilous action. And the Court does not pass on whether Cox (or Via, for that matter) has done a good, bad or indifferent job in their terms of office. All of these questions are to be decided by the membership when they cast their ballots this fall, based on whatever facts, reasons and justifications the candidates are able to present to them in the campaign. The only question for the Court to decide is whether Cox should have an opportunity equal to Via's to use union resources to prepare and send his side of the story to the membership.

For the above reasons, the Court concludes that the context factor of the test also supports its conclusion that Via's mailing was campaign literature.

c. Timing.

Defendants have not placed much reliance on the timing factor of the test. Presumably, this is because, even though the mailing was sent approximately nine months before the election, other cases have considered union publications issued many 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).(14)

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, the jostling for position between the rival candidates had begun. Thus, Via was discussing who would run on his slate, the membership was discussing the likely candidacies of both Cox and Via, and Via accused Cox of trying to replace him in the upcoming election. Moreover, the testimony at trial showed that even this February mailing would have a severe impact on the outcome of the election unless Cox could successfully counter it. July 18 Tr. 32-33, 53-54. This is not just because members would consider the charges against Cox and his response in deciding whether to vote for him, id., but also because members whom Cox may want to recruit for his slate will make judgments about whether to run with Cox based on his ability to respond effectively. July 18 Tr. 44-45. And members cast their votes, not just based on the individual candidate, but on the composition of the entire slate, July 18 Tr. 56-57.

Union stewards who testified at trial stated that, based on their experience, the sooner Cox can mail out his response to the charges, the better his chances in the election will be. July 18 Tr. 32-34; 53-54. Thus, for example, having benefited from his mailing against Cox, Via had already succeeded in putting together his slate for the election by the time of the trial. July 18 Tr. 22. Cox, too, needs to be able to assemble his slate, and he should not have to wait any longer to send his counter-mailing that will give him the opportunity to persuade the most attractive possible group of fellow candidates to run with him.

In those circumstances, the timing, as well as the other factors, strongly supports plaintiff's contention that Via's mailing was 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.

Even had the Court not decided to consolidate the motion for a preliminary injunction with the merits, 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 facilitate counterspeech. Cox can obtain either a preliminary injunction enforcing his rights before the election, or an order overturning the election by a post-election suit. A post-election action would likely 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 time required to exhaust intra-union and administrative procedures under section 402(a) and (b) of the LMRDA, post-election suits typically cannot be filed 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 allow Cox to run for office all over again, repeating all his efforts in a second election campaign when his savings have likely been depleted.(15)

Accordingly, the possibility of a post-election suit cannot give Cox nearly the same relief as the preliminary injunction that he is seeking. Indeed, it is in the interest of all concerned, the union as well as Cox, and even defendant Via, for that propriety of the February mailing 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, the testimony at trial showed why it is crucial that Cox be able to do a mailing now. Supra pages 37-38. 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. Because Cox has held office and been able to serve the membership for the past 2-1/2 years, he is Via's most serious challenger.(16) By damaging Cox in the important pre-nominations period, Via's mailing has threatened 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