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October 9, 2001


The opinion of the court was delivered by: Irenas, District Judge:


Presently before the Court is Plaintiff's Motion for Summary Judgment. The plaintiff Secretary of Labor (the Secretary) instituted this action against Local No. 54 of the Hotel Employees and Restaurant Employees International Union (Local 54) seeking to set aside the results of a mail ballot election held on June 26, 1999 for all union offices based on several violations of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq. The Secretary asserts that Local 54 breached its statutory duty to mail notice of the election to each union member at his last known address at least fifteen days prior to the election. 29 U.S.C. § 481(e). The Secretary further alleges that Local 54 failed to make "reasonable efforts" to maintain a current list of its members' home addresses for purposes of mailing notice of election as required by Labor Department regulations. 29 C.F.R. § 452.100(d). In addition, the Secretary similarly claims that defendant Local 54 denied members in good standing the right to vote guaranteed by Section 401(e) by failing to take the reasonable steps necessary to insure that all members eligible to vote were sent election ballots. Finally, the Secretary alleges that the use of member lists created by union representatives in the course of their employment in conducting a phone bank for the incumbent slate of union officers violated Sections 401(c) and (g), codified at 29 U.S.C. § 481(c) and (g). The Secretary maintains that these violations of the LMRDA may have affected the outcome election and therefore seeks a court order that new elections for all union offices be held immediately under the Secretary's supervision. This Court has jurisdiction over this matter pursuant to 29 U.S.C. § 482(c).

The Court concludes, based on the undisputed material evidentiary facts, that (1) the union's failure to make reasonable efforts to maintain current mailing lists and to correct known invalid addresses, as well as its decision not to mail notice of election to all of its members, constituted violations of LMRDA Section 401(e); (2) the union's failure to undertake reasonable efforts to update and cure known deficiencies in its member address lists prior to the distribution of election ballots unreasonably deprived members in good standing of their statutory right to vote guaranteed by Section 401(c); and (3) the union's improper use of member lists created by union representatives in the course of their employment in partisan political activities without advising other candidates of either the use or availability of these lists violated the nondiscrimination provision of Section 401(c). The court further determines that these violations "may have affected" the outcome of the election and that the Secretary is therefore entitled to an order setting aside the challenged election and directing that a new election be scheduled to be conducted under the Secretary's supervision.

For the reasons set forth below, Plaintiff Secretary of Labor's motion for summary judgment is GRANTED.


"[S]ummary judgment is proper `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 judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).



Section 401(e) of the LMRDA, codified at 29 U.S.C. § 481(e), requires that "not less than fifteen days prior to the election notice thereof shall be mailed [by the union] to each member at his last known address." A Labor Department regulation implementing this provision permits a union to comply by publishing the required statutory notice in its newspaper and mailing a copy of the publication to each of its members within the proscribed time period. 29 C.F.R. § 452.100. The regulation requires that the union, as part of its statutory duty to mail notice of election to each of its members, make "reasonable efforts" to maintain current mailing lists for distribution of the publication. Id. A primary purpose of the election notice provision of the LMRDA and the accompanying regulations is to promote "maximum participation in union elections" and thereby insure the responsiveness of union leadership to rank and file members. See Reich v. District Lodge 720, 11 F.3d 1496, 1498 (9th Cir. 1993).

Defendant Local 54 distributed notice of its June 1999 election to its membership through the union's quarterly newsletter. The union concedes that it did not send statutory notice of election to 1,975 of its existing members (Def.'s Stat. Mat. Facts p. 5). The union argues, however, that its failure to mail election notice to the last known address of every member of the union should be excused because, despite its "reasonable efforts" to maintain a current address list for all of its members, its records contained a significant number of addresses which previous mailings had demonstrated to be invalid.*fn1 The mailing of election notice to members for whom the union possessed only addresses it knew to be invalid, the union argues, would have been a practically futile and administratively expensive effort and, in any case, could not have affected the outcome of the election.

The union's argument, however, fails for two reasons. First, the election notice provision of the LMRDA imposes an absolute duty on unions to mail election notice to the last known address of each union member without regard to the reasonableness of the union's efforts to maintain an accurate and up-to-date list of its members addresses. Second, the uncontested evidence regarding the nature and extent of Local 54's efforts to update its mailing lists and correct known invalid addresses prior to mailing notice of the June election clearly demonstrates that the union failed, as a matter of law, to satisfy its statutory duty to "make reasonable efforts" to keep the mailing list for its publication current.

The language of Section 401 supports a strict application of its notice provisions. In contrast to the qualified language of other provisions of the statute, the election notice provision of Section 481(e) strictly mandates that a labor organization send written notification of an election and the opportunity to nominate candidates to the last known address of each union member. Other provisions of Section 481(e) require that the union provide "[a] reasonable opportunity" for the nomination of candidates and guarantee the right of every union member in good standing to be a candidate subject only to "reasonable qualifications uniformly imposed" by the union (emphasis added). Section 401(c) similarly requires a labor organization to comply with "all reasonable requests of any candidate to distribute by mail or otherwise at the candidates expense campaign literature . . ." 29 U.S.C. § 481(c) (emphasis added). Indeed, as the D.C. Court of Appeals has observed, an earlier version of the election notice provision directed that "`notice of a union election must be given in a manner which is reasonably calculated to inform substantially all of the members eligible to vote of the time and manner of seeking nomination and of the place and date of the election.'" Brennan v. Local Union 639, 494 F.2d 1092, 1097 (D.C.Cir. 1974) (citing Cong. Rec. 15189 (Senate, April 23, 1959)) (emphasis added). However, this language was ultimately replaced by the current language which explicitly instructs that written notice be mailed to all members at their last known address. The use of a reasonableness standard and similar qualifying language in other provisions of Section 481, strongly indicates that had Congress intended to incorporate a degree of flexibility into the election notice provision it would have done so explicitly. See International Organization of Masters, Mates, & Pilots v. Brown, 498 U.S. 466, 476 n. 10, 111 S.Ct. 880, 112 L.Ed.2d 991 (1991) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."); see also, Brock v. American Postal Workers Union South Jersey Area Local 526, 1986 WL 15272 (N.J. 1986) (observing that "it appears likely that where the drafters wished to include a reasonableness standard, they did so explicitly. The fact that no such standard is expressly included in the provisions for mailing notices indicates that no such standard was intended").

The majority of courts to consider this issue have strictly and literally applied Section 401(e)'s election notice requirement, rejecting the argument that the reasonableness of a union's conduct can excuse its failure to mail notice of an election to each member's last known address. See Brennan, 494 F.2d at 1097; Brock, 1986 WL 15272 at *3-4, (N.J. 1986); Dole v. Local 492, Bakery, Confectionery, and Tobacco Workers International Union, 1989 WL 126182, ...

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