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December 18, 1997

ALEXIS HERMAN, Secretary of Labor, Plaintiff,

The opinion of the court was delivered by: SULLIVAN

 This case is before the Court on cross-motions for summary judgment. This lawsuit was commenced by the Department of Labor ( "DOL") against the American Postal Workers Union ("APWU") alleging violations of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"). See LMRDA § 401, codified at 29 U.S.C. § 481.

 Plaintiff seeks court orders declaring this election null and void and requiring the APWU to hold a new election under the Secretary's supervision. Defendant requests the Court to uphold the election and the subsequent appointment of a replacement for Chandler.


 The facts of this case are essentially uncontroverted. On April 18, 1995, Chandler was indicted on a charge of aggravated assault for attacking his estranged wife with a hammer. In June 1995, Chandler was nominated for the position of National Business Agent "B", Special Delivery Messenger Division, Southern Region in the 1995 APWU Election. At the time of his nomination, the APWU was of the opinion that Chandler was a member in good standing of the union.

 On August 28, 1995, Chandler pled guilty to the charge of aggravated assault and he was sentenced on September 7, 1995 to fifteen years in jail. Chandler began serving his sentence that day. Ralph Brown, the president of Chandler's local union, testified on Chandler's behalf at the sentencing hearing. Mr. Brown contacted the national union office ("National") on the afternoon of September 11, 1995 to inform the National that Chandler had pled guilty to an offense in Georgia. This was the first communication of Chandler's criminal conduct to any National officer.

 The ballots for the Agent B, Special Delivery Messenger Division, Southern Region had already been prepared, printed, and placed in envelopes by the time Mr. Brown called the National. *fn1" The day after Mr. Brown's call, September 12, 1995, more than 250,000 ballots were sent out to APWU members across the country. On October 5, 1995, Chandler won his election.

 The LMRDA prohibits any person convicted of certain enumerated crimes from holding union office for a period of thirteen years after any period of incarceration. See 29 U.S.C. § 504(a). The enumerated crimes are: robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violations of narcotic laws, murder, rape, assault with intent to kill and assault which inflicts grievous bodily injury. Id. Aggravated assault, the offense for which Chandler was convicted, is not specifically included in this list but section 504 crimes have been held to include crimes which are equivalent to one of the enumerated offenses. See Berman v. Local 107, International Brotherhood of Teamsters, 237 F. Supp. 767, 771 (E.D. Pa. 1964); Illario v. Frawley, 426 F. Supp. 1132, 1139-40 (D.N.J. 1977). The Department of Justice ("DOJ"), the agency charged with enforcing section 504, has since concluded that the aggravated assault to which Chandler pled guilty is the equivalent of assault which inflicts grievous bodily injury. Thus, Chandler's crime precludes him from holding a union office for thirteen years after his incarceration.


 As the Supreme Court has noted, "no right is more precious in a free country than that of having a voice in the election of those who make the laws under which . . . we must live. Other rights . . . are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481, 84 S. Ct. 526 (1964). The LMRDA was enacted in order to guarantee "'free and democratic' union elections modeled on 'political elections in this country.'" Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 309, 50 L. Ed. 2d 502, 97 S. Ct. 611 (1977)(citation omitted). The objective of Congress was to "protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government and, through the election process, to keep the union leadership responsive to the membership." Id.

 A. Violation of LMRDA Section 401(c)

 The law in this area is well-settled. Under section 401(c), plaintiff must show that the APWU failed to provide adequate safeguards to insure a fair election. See 29 U.S.C. § 481(c).

 Plaintiff argues that the union knew that Chandler had been convicted of aggravated assault before the ballots were mailed out. Plaintiff cites as analogous a case in which a candidate died three days before the election and the union failed to remove the decedent's name from the ...

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