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November 17, 1994

ROBERT B. REICH, Secretary of Labor, United States Department of Labor, Plaintiff, and GENE GIACUMBO, Intervenor-Plaintiff,

The opinion of the court was delivered by: WILLIAM G. BASSLER


 The United States Secretary of Labor ("the Secretary") has filed this action against Local 843, Bottle Beer Drivers, Warehousemen, Bottlers and Helpers ("Local 843"), for its alleged violation of 29 U.S.C. § 481(g). The Secretary seeks an order declaring the election for the office of President, held by Defendant on December 2, 1992, null and void, as well as an order directing Defendant to hold a new election for that office under the Secretary's supervision This Court has jurisdiction over this matter pursuant to 29 U.S.C. § 482(b).

 Before the Court are cross-motions for summary judgment. Plaintiff-Intervenor Giacumbo joins in the Secretary's motion.

 This controversy centers around two publications distributed to members of Local 843 in the final weeks before the December, 1992 election. Supporters of the "New Teamsters" slate of candidates for Local 843 office, which included Plaintiff-Intervenor Giacumbo as the Presidential candidate, issued a campaign newsletter ("newsletter") criticizing Mr. Frederick Potter, President of another union, Local 439. Mr. Potter issued a letter ("Potter letter") in response to the "New Teamsters'" newsletter at Local 439's expense. Plaintiffs allege that the Potter letter promoted Mr. Giacumbo's opponent in violation of 29 U.S.C. § 401(g). Defendant not only denies that a violation occurred, but also contends that Local 843 cannot be ordered to hold a new election on the basis of an alleged violation committed by Local 439 and alternatively, that Plaintiff-Intervenor should not be granted this remedy for a violation provoked by the "New Teamsters'" newsletter.

 For the reasons set forth in this opinion, the Court DENIES the Defendant's motion for summary judgment. The Court GRANTS the Secretary and Plaintiff-Intervenor's motion for summary judgment and declares the election for the office of President, conducted by the Defendant on December 2, 1992, void. The Court GRANTS the Secretary's request to order the defendant to conduct a new election for the office of Local 843 President within 120 days from the date of this Opinion. Plaintiffs' request for an award of the costs of prosecuting this action is DENIED, without prejudice.


 This action arises out of an election held by the Defendant, Local 843, on December 2, 1992. Local 843 is part of the International Brotherhood of Teamsters, Chauffers, Warehousemen, and Helpers of America, AFL-CIO ("the Teamsters"). Virtually all of the members of Local 843 are employees at the Anheuser-Busch brewery in Newark, NJ.

 The election, held on December 2, 1992, involved a contest between two competing factions within Local 843. Each faction had its own slate of candidates for office. One slate, the "New Teamsters", was headed by Plaintiff-Intervenor, Gene Giacumbo, the incumbent President of Local 843. The other slate was headed by Bruce Williams, the only other candidate for President. According to Mr. Giacumbo, "the election campaign was very bitter and acrimonious". Plaintiff-Intervenor's Statement of Uncontested Facts at P 4.

 In mid-November 1992, supporters of Mr. Giacumbo and the "New Teamsters" circulated a newsletter entitled "Local 843 Election News" among members of Local 843. See id. at Appendix A. The newsletter ridiculed Mr. Williams and the members of his slate as well as certain regional leaders of the Teamsters. A cartoon depicted Mr. Williams as a puppet whose strings were being pulled by a pig, labelled "Fat Freddy Potter LU 469" and a man smoking a large cigar, labelled "Frank Cariccino JC 73". Id. Frederick Potter has been the President of another chapter of the Teamsters, Local 469, since 1987. In addition, Mr. Potter was and continues to be the Chairman of the Teamster's Joint Council 73 Political Action Committee, of which Frank Carricino is also a member.

 In addition to the cartoon, the newsletter contained several allegations about Mr. Potter. The newsletter repeatedly accused Mr. Potter of having connections to organized crime, calling Potter a "prat boy" to Mr. Carricino, the alleged "heir to the Porvansano throne", and claiming that Mr. Potter had hired a "mob attorney" to represent Local 469. Id. The newsletter also alleged that the wife of one of the members of the Williams slate worked for Mr. Potter and Local 469. Id. Defendant contends that all of these allegations concerning Mr. Potter are false. Id. at P 3.

 When Mr. Potter found out about the newsletter, he responded with a letter to Mr. Giacumbo, dated November 17, 1992. The letter was typed by Ms. Carroll Caruso, then employed as the office secretary, on Local 469 letterhead. At Mr. Potter's instruction, Ms. Caruso made between one and two hundred copies of the letter. Local 469 paid Ms. Caruso's salary. Moreover, Local 469 owned and purchased the stationery on which the letter was written, as well as copier and paper on which it was duplicated.

 In the letter addressed to Mr. Giacumbo, Mr. Potter denied any connection with the "mob" and claimed that no relatives of members of the Williams slate were working for him. Potter Let. at 1. Mr. Potter told Mr. Giacumbo that the newsletter, "like other publications you've been involved in . . . lacks truth and substance." According to Mr. Potter, he "recognize[d] the importance of local autonomy and had not and would not interfere with any Local Union elections". Mr. Potter expressly stated, however, that he had accepted the offer of certain unnamed "individuals" to distribute this letter responding to the allegations contained in the newsletter because he "[could not] rely upon your [Mr. Giacumbo's] sense of fair play to print a retraction." Finally, Mr. Potter closed his letter to Mr. Giacumbo with the following remarks:

Your hopes for re-election must be very poor for you to resort to this type of bullshit (pardon the language). I would imagine writing about other people will detract from the real issues in your campaign. If these are the tactics of the New Teamsters, I do not want to be part of the "so-called New Teamsters".

 Potter Let. at 1.

 Consistent with Mr. Potter's claims, certain unknown persons came to the Local 469's office and picked up the one to two hundred extra copies of the letter addressed to Mr. Giacumbo. These letters were then distributed to the members of Local 843 at the Newark brewery.

 On December 2, 1992, Local 843 conducted an election by mail-in-ballot, which was subject to the requirements of Title IV of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. §§ 481 et seq. Mr. Williams, the challenger, ousted Mr. Giacumbo, the incumbent President, by a vote of 176 to 125. By letter dated December 4, 1992, Mr. Giacumbo protested the election to Teamster's Joint Council 73, which later denied his protest. Mr. Giacumbo appealed the Joint Council's denial to the Union International. Mr. Giacumbo then filed a timely complaint with the Secretary of Labor pursuant to 29 U.S.C. § 482(a)(2).

 After conducting an investigation, the Secretary found probable cause to believe that a violation of the LMRDA, specifically 29 U.S.C. §§ 481-483 occurred when Mr. Potter issued his letter criticizing Mr. Giacumbo at Local 439's expense. As a result, the Plaintiff requests this Court to declare Local 843's election for the office of President void and to order the defendant to conduct a new election under the Secretary's supervision.

 Since the Secretary commenced this action, Mr. Giacumbo has been fired by Anheuser-Busch. Mr. Giacumbo's termination was upheld by an arbitrator's decision dated July 5, 1994. The parties contest the impact of Mr. Giacumbo's termination on his membership status in defendant, Local 843. Defendant contends that he is no longer a member, while plaintiffs assert that Mr. Giacumbo is an officer of the International, and as such remains a member in good standing of Local 843.


 A. The Summary Judgment Standard

 The same legal standard applies to each of the parties' cross-motions for summary judgment. Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Whether a fact is material is determined by the applicable substantive law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue involving a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989).

 The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the moving party satisfies this requirement, the burden shifts to the nonmoving party to present evidence that there is a genuine issue for trial. Id. at 324. Once the moving party has carried its burden of establishing the absence of genuine issues of material fact, the nonmoving party "may not rest upon mere allegations or denials" of its pleading, Federal Rule of Civil Procedure 56(e), but must produce sufficient evidence to reasonably support a jury verdict in its favor, Anderson, 477 U.S. at 249, and not just "some metaphysical doubt as to material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 In determining whether any genuine issues of material fact exist, the Court must resolve "all inferences, doubts, and issues of credibility . . . against the moving party." Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dism'd., 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984) (citing Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)).

 Since a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party who opposes such a motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, in order to defeat a properly supported motion for summary judgment, a party may not merely restate the allegations of his complaint. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D.Pa. 1988). Moreover, a party cannot rely upon self-serving conclusions, unsupported by specific facts in the record. Celotex Corp. v. Catrett, 477 U.S. at 322- 23. A non-moving party must point to concrete evidence in the record which supports each essential element of his case. Id. If the party fails to provide such evidence, then he is not entitled to a trial and the moving-party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(e).

B. No Dispute Exists Regarding the Material Fact that Local 489 Bore the Expense of Issuing and Copying the Potter Letter Distributed to Members of Local 843.

 Plaintiff alleges that distribution of Mr. Potter's letter violated LMRDA § 401(g), which provides that:

No moneys received by any labor organization by way of dues, assessment or similar levy . . . shall be contributed or applied to promote the candidacy of any person in an election subject to the provisions of this subchapter.

 29 U.S.C. § 481(g). Under this provision, the origin of the money allegedly used to promote a particular candidate is a highly material fact. See Anderson, 477 U.S. at 248.

 The parties do not dispute that resources from Local 843 were expended by Mr. Potter in drafting his letter and making copies for distribution. Defendant concedes that Local 469 paid the salary of Ms. Caruso, who typed the letter. In addition, Defendant acknowledges that the stationery upon which the letter was typed was bought and paid for by Local 469. Finally, Defendant admits that both the photocopier and the paper on which the one to two hundred additional copies of the Potter letter were made belonged to and were paid for by Local 469.

 Therefore, there is no issue as to whether union funds were expended in creating and copying the Potter letter. The principal points of contention between the parties are whether: the Potter letter promoted a candidacy within the meaning of § 401; the First Amendment to the United States Constitution precludes a finding that the Potter letter violated § 401(g); Defendant, Local 843, can be ordered to hold a new election based upon alleged violations of § 401 committed by Mr. Potter, an officer of Local 439; and the New Teamsters' dissemination of alleged misinformation about Mr. Potter in their newsletter constitutes "unclean hands", which preclude this Court from ordering a new election. Since all of these issues are essentially legal questions, they are appropriate for resolution on summary judgment. See Fed. R. Civ. P. 56(e).

C. Potter Letter Promoted a Candidate in Violation of LMRDA § 401(g).

 As the basis for the parties' summary judgment motions, they offer opposing interpretations of what constitutes promotion of a candidacy in violation of LMRDA § 401(g). Plaintiffs rely upon administrative regulations, which interpret § 401(g) as creating two limitations on the use of labor union funds:

(a) No such funds may be contributed or applied to promote the candidacy of any person in an election subject to title IV, either in an election within the organization expending the ...

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