The opinion of the court was delivered by: PRATT
On August 26, 1969, plaintiff filed a complaint, the gravamen of which is that defendant Boyle, President of the United Mine Workers of America (UMW) and defendant McCarthy, Editor of the UMW Journal (Journal) are using the Journal as a propaganda organ to advance defendant Boyles's candidacy for reelection as President of the UMW. This is alleged to be in violation of several provisions of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). Jurisdiction is claimed under Section 401(c) and Section 501 of said Act (29 U.S.C. 481(c) and 501). On August 28, 1969, and after a hearing, Judge Waddy of this Court issued a temporary restraining order holding that a prima facie case had been made by plaintiff and enjoining defendants "from using the membership lists of the defendant United Mine Workers to discriminate against plaintiff by the utilization of the United Mine Workers Journal as a campaign instrument in favor of defendant Boyle." Defendants appealed promptly and the United States Court of Appeals for the District of Columbia affirmed the grant by Judge Waddy of the temporary restraining order.
This matter is now before this Court upon plaintiff's motion for a preliminary injunction directing that the defendants:
(1) provide plaintiff Yablonski with sufficient space in future issues of the Journal to present his positions and actions to the membership until such prosentations neutralizes the alleged previous presentations of defendant Boyle's positions and actions;
(2) provide equal space and treatment for plaintiff Yablonski in future issues of the Journal until the election takes place;
(4) provide plaintiff Yablonski with final proof of each forthcoming edition 72 hours prior to printing.
Several criteria must be met to establish jurisdiction to issue a preliminary injunction. Virginia Petroleum Jobbers Assn. v. F.P.C., 104 U.S. App. D.C. 106, 110; 259 F.2d 921, 935 (1958); see also A Quaker Action Group v. Hickel, U.S. App. D.C. (slip opinion, June 24, 1969). The first is whether the plaintiff can establish, by a preponderance of the evidence, that he is likely to suceed ultimately when the case is tried on its merits. This, in turn is dependent on whether (1) defendants have beeen shown to have used the Journal as a campaign instrument in behalf of the candidacy of defendant Boyle and thereby discriminated in the use of said membership lists to distribute said Journal, and (2) assuming that such has been demonstrated, whether there is relief which can be granted by the Court.
After hearing testimony and upon examination of numerous exhibits, some of considerable volume, we find that the defendants have used the Journal as a campaign instrument in favor of defendant Boyle. This is a judgment decision which is made with full appreciation of the character of the Journal and similiar publications of other national unions. We are aware that defendant Boyle, as the President of the union running reelection, will in the nature of things be an important participant in many matters of interest to the membership and be more likely to have his participation in these matters the subject of inclusion in any report to the membership through the Journal. A line must be drawn between the use of the Journal to report the activities of defendant Boyle as President, which is permissible, and the use of the Journal, in such a way in reporting such activites, as to promote the candidacy of said defendant. We find that this line has been breached and that the Journal in many respects has been used as a campaign instrument to promote defendant Boyle's candidacy.
In support of this conclusion, we cite specifically the excessive coverage, column-wise and pictorially, given to defendant Boyle, in relation to the coverage of other matters contained in the Journal; and the failure since May 29, 1969, to make any reference to plaintiff's activities as an Acting Director of Labor's Non-Partisan League, to his candidacy for President, and, except for the report on nominations (Journal, August 15, 1969, page 3) to even mention plaintiff by name. It is no answer to say that the format and style of the Journal have always been the same and have not changed since May 29, 1969, or that such format and style are not much different than those of other union publications. The fact is that, in the context of a bitterly contested election, the contents and emphasis of a union periodical such as the Journal must be judged in the light of the Landrum-Griffin Act. It should be understood that this Court is not attempting to tell the Journal what it can and cannot print; this would violate the First Amendment and is beyond our statutory authority. Irrespective of the question of remedy, it is our conclusion that the conduct of defendants is in violation of Section 401(c) of the LMRDA and that plaintiff has made a strong showing that he is likely to prevail on the merits.
The LMRDA, the Landrum-Griffin Act of 1959, amended the Taft-Hartley Act of 1947 and was designed to eliminate certain improper practices on the part of labor unions and employers, including officers and representatives, which interfere with the holding of fair union elections. It attempted to combine a reluctance to interfere in the internal affairs of unions and its philosophy of furthering democratic procedures in union elections through the divice of giving much of its enforcement procedure to the Secretary of Labor, acting upon a complaint after an election has been held. This is true with respect to Title IV of the Act, which includes Sections 401, 402, and 403 (29 U.S.C. Sections 481, 482, and 483). Section 402(c) permits a direct suit by a candidate to enjoin certain violations, but the balance of the provisions of Section 401 are to be enforceable through a complaint with the Secretary of Labor. Calhoon v. Harvey, 379 U.S. 134, 57 LRRM 2561 (1964).
With this brief background of the purpose of the legislation, it is clear that the specific injunctive relief requested by the plaintiff (see page 2 hereof) cannot be granted by this Court for several reasons:
(1) the relief requested would in effect require defendants to print certain material supplied by plaintiff. As desirable as this might be from a public interest and union viewpoint, such requirement would be a clear violation of the First Amendment insofar as it relates to the freedom of the press. Citation of cases should be unnecessary.
(2) This Court lacks the statutory authority to compel this action. Section 401(c), which permits suits by candidates to achieve certain results, does not authorize this type of relief.
(3) Section 401(g), which prohibits the use of union funds to promote the candidacy of any person and therefore would make unlawful the use of union funds to support publication of the Journal when used as a campaign instrument, does not confer this authority. This is because actions for violations of Section 401(g) are enforceable only through suit by the Secretary of Labor under Section 402. Wirtz v. Independent Workers Union of Florida, 272 F. Supp. 31, 65 LRRM 2924 (1967); see also Wirtz v. Hotel, Motel and Club Emp. Union, Local No. 6, 391 U.S. 492, 68 LRRM 2305 (1964).
(4) To grant the injunctive relief requested by plaintiff might be to compel defendants to commit further violations of Section 401(g).
The "fairness doctrine" of the Red Lion case is not applicable. The airwaves are part of the public domain and the Federal Communications Commission in granting a private monopoly to a broadcasting station may properly condition such a grant. A union newspaper or ...