When AAUP elections are in the offing, chapters and conferences want to cover the candidates in their newsletters, and rightly so. But they should be aware that they must not spend any Association funds to promote any candidate for AAUP office. Under the AAUP Constitution, incumbent national officers and Council members are allowed to run for re-election. Accordingly, chapters and conferences covering their activities in newsletters need to be aware of the issue of equal treatment.
I. Background: AAUP Election Bylaws and the Landrum-Griffin Act
All AAUP conferences and chapters, advocacy and collective bargaining, as well as staff, are governed by the AAUP’s election bylaws.1 The bylaws provide in pertinent part:
Each candidate shall be afforded the opportunity to prepare a single statement) not to exceed five hundred words for officer candidates and three hundred fifty words for Council candidates) in support of his or her candidacy, which shall be printed and disseminated at the Association’s expense, together with the candidate’s relevant biographical information, the length of which will not exceed three hundred words. Candidates running by petition shall be afforded the same opportunity and all such statements shall be published at the same time. Materials on Council nominees need be distributed only to voters in the respective districts (along with a list of all candidates). No other Association funds shall be expended in support of any candidate. This prohibition against the expenditure of Association funds shall extend to the Association’s chapters and conferences. Chapters and conferences may publish the statements of the candidates in their own newsletters and may solicit and publish additional statements provided that all candidates are afforded an equal opportunity to prepare such additional statements. With respect to candidates for Council, chapters and conferences need publish only the statements of the candidates running in their respective districts. Electioneering on electronic discussion lists or listservs created or maintained by national, state, or local AAUP organizations is prohibited.
Complying with the policy means that no AAUP dues, assessments, or other funds may be spent to promote any candidate for AAUP office.
The Association’s bylaws are voluntarily modeled on a federal statute, the Labor Management Reporting and Disclosure Act (LMRDA), also known as the Landrum-Griffin Act. Under Section 401(g) of that statute, 29 U.S.C. 481(g), all bona fide candidates for union office must be given equal treatment, and no union funds may be used to support their candidacies:
No moneys received by any labor organization by way of dues, assessment or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election. . . . Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.
Furthermore, the Department of Labor (DOL) has promulgated a regulation interpreting this statutory proscription relating to union-financed publications:
[Section 481(g)] prohibit[s] any showing of preference by a labor organization or its officers which is advanced through the use of union funds to criticize or praise any candidate. Thus, a union may neither attack a candidate in a union-financed publication nor urge the nomination or election of a candidate in a union-financed letter to the members. Any such expenditure, regardless of amount, constitutes a violation of [Section 481(g)].
29 CFR Section 452.75. In addition, another DOL regulation provides that election “campaigning must not involve expenditure of funds in violation of section [481(g)]. Accordingly, officers and employees may not . . . use union funds, facilities, equipment, stationery, etc. to assist them in such campaigning.” 29 C.F.R. Section 452.76; see also 29 C.F.R. Section 452.73.
The AAUP voluntarily complies with Landrum-Griffin, without conceding coverage. The Association’s election bylaws embody many of the same concepts and philosophy of the LMRDA.
This memorandum examines cases decided under the LMRDA as guidance about proper coverage of candidates for AAUP office in AAUP publications (hard copy or electronic) at the local, state, and national levels. It considers endorsements, expenditures, coverage of candidates, tone, timing, and content, and the effect of coverage on elections. The memorandum includes some suggestions for chapter and conference newsletters. The memorandum also reviews the legal basis for prohibiting electioneering on AAUP-created or -maintained listservs at this time.
The AAUP election bylaws provide:
AAUP members who hold office in the Association at any level—national, state or local—who wish to list their AAUP positions in an endorsement of candidates for AAUP office are permitted to do so (except members of the Election Committee), but only if an asterisk is placed next to their name with the following statement: “The organizational affiliation is listed for identification purposes only and does not imply any endorsement by the organization.”
An AAUP officer’s actual endorsement, or a statement supporting one of the candidates for an office, is prohibited by the LMRDA and by the Association’s bylaws. Note that the Association uses the terms “office” and “officer” to include any elected position at the national, state, or local level.
Courts have held that it is lawful to air candidates’ views, even presentations by the candidates themselves, so long as the presentation is carried out in a nondiscriminatory way. In fact, the LMRDA protects and encourages objective news reporting. Yablonsky v. United Mine Workers, 305 F. Supp. 876 (D.D.C. 1969).
But it is unlawful to run articles in a union newsletter supporting one candidate or criticizing the other. Violations have been found where articles support an incumbent officer, attack a challenger, and vice-versa. Hodgson v. Liquor Salesmen’s Union, 334 F. Supp. 1369 (S.D.N.Y.), aff’d, 444 F.2d 1344 (2d Cir. 1971); McLaughlin v. American Federation of Musicians, 700 F. Supp. 726 (S.D.N.Y. 1988).
Also prohibited is constructive endorsement or indirect support for one candidate. To avoid the requirement for equal treatment, one union published what it called “officers’ reports.” In these reports, a president recommended the election of certain persons. The federal appellate court determined this tactic to be unlawful. Dunlop v. Stove, Furnace and Allied Appliance Workers International Union, 411 F. Supp. 801 (E.D. Mo. 1976), aff’d in part, vacated in part by Usery v. Stove Furnace and Allied Appliance Workers International Union, 547 F.2d 1043 (8th Cir. 1977).
In another case, a union violated the LMRDA by paying for a special newsletter containing remarks by the president of another union, the International Longshoremen’s Association. Those remarks praised the incumbent and criticized his opponent, perhaps affecting the outcome of the election. Usery v. International Organization of Masters, Mates and Pilots, 538 F.2d 946 (2d Cir. 1976).
Excessive coverage may constitute a “constructive” (or implicit) endorsement. Usually no problem exists if the newsletter carries stories and pictures about a candidate who is an officer of the association, so long as the candidate is going about his or her business as an officer of the association, and the coverage focuses on that function. But not always. For example, a court found that a union had impermissibly published an article written by the incumbent president that criticized his opponent “in the context of negotiating a new collective bargaining agreement.” The court reasoned that the “tone and content” of the newspaper article “smacked” of electioneering. In the article the incumbent president accused the dissident slate of “electioneering” by criticizing the contract negotiations and creating “an issue to run on later this year.” The incumbent president also labeled the opposing slate as “political opportunists.” The court held that, even though contract negotiations were a newsworthy topic, the results of which were crucial to the local, such contract negotiations “have always been a major issue in . . . elections.” In the end, the court found that the content of the president’s article, “[b]y repeatedly referring to the upcoming elections,” was “conspicuously political in nature.” New Directions v. Seda, 867 F. Supp. 242, 244-45 (S.D.N.Y. 1994).
In conclusion, explicit and implicit endorsements of candidates for office in newsletters, electronic or hard copy, are prohibited under the LMRDA and the Association’s election bylaws.
III. Expenditures of Association or Employer Funds
Any expenditure of association funds, regardless of amount, to support a candidate violates the law. The LMRDA “clearly and unambiguously bars the spending of even seemingly trivial amounts of union funds for electioneering.” Dole v. Federation of Postal Police Officers, Inc., 744 F. Supp. 413, 418 (E.D.N.Y. 1990). For example, a union violated the Act by donating materials, secretarial help, and the use of its facilities to print leaflets, even though the expense was minimal--$13.04. Schultz v. United Steelworkers of America, 426 F.2d 969 (9th Cir. 1970), aff’d sub. nom., Hodgson v. United Steelworkers of America 6799, 403 U.S. 333 (1971). As one court noted, the amount of money spent is not a test of the validity of the expenditure, and the fact that an expenditure is minimal does not make the action any less a violation. No cash outlay is necessary. Even the use of logos and secretarial time may be unlawful. Brennan v. Sindicato Empleados de Equipo, Construccion y Ramas Anexas, Inc., 370 F. Supp. 872 (D.P.R. 1974). Another court found that a union president broke the law by using a secretary’s time and a copying machine for electioneering. Brock v. International Union of Operating Engineers, 790 F.2d 508 (6th Cir. 1986).
Chapters and conferences should also be aware that an employer’s resources—in the AAUP context, those of a college or university administration—cannot be spent on a candidate, even if the employer is not directly affected by an election. Marshall v. International Brotherhood of Teamsters, 611 F.2d 645 (6th Cir. 1979). Some non-newsletter examples may be instructive. In one case, using an employer’s trailers as billboards for campaign posters, when the use was uncompensated, violated the law, even though the employer did not know about the use. Donovan v. Local 70, International Brotherhood of Teamsters, 661 F. 2d 1199 (9th Cir. 1981).
On the issue of expenditures, a court has observed: “The LMRDA only comes into play . . . when moneys which members may have contributed as a condition of membership are used to … promote one candidate over another. Accordingly, the Act does not bar union members and officials from using their private resources to campaign for themselves or other candidates.” McLaughlin v. American Federation of Musicians, 700 F. Supp. 726 (S.D.N.Y. 1988) (emphasis in original). In the case of the AAUP, newsletters are funded by Association resources and may not be used to endorse candidates. Similarly, listservs that are maintained by the AAUP may not be used to endorse candidates.
“Good intentions,” it should be noted, do not excuse a violation. Donovan v. National Alliance of Postal and Federal Employees, 566 F. Supp. 529 (D.D.C. 1983), appeal dismissed without opinion, 740 F.2d 58 (D.C. Cir. 1984); Reich v. Local 843, Bottle Beer Drivers, 869 F. Supp. 1142, 1149 (D.N.J. 1994) (“[C]ases interpreting LMRDA §401(g) have universally held that motive is irrelevant in determining whether a violation has occurred.”) Even a mistake can lead to an overturned election. For example, a candidate’s campaign statement was left out, perhaps inadvertently and perhaps not, of an August issue of a union publication. When the statement appeared in the September issue, the office for which he was running was mislabeled. As a result, a court decided that he did not enjoy a “fair election” or “similar distribution” of campaign literature. He lost by 172 votes out of 3,800 votes cast, and the court vacated the election. Marshall v. American Postal Workers Union, 486 F. Supp. 79 (D.D.C. 1980).
A. Coverage of Candidates in Newsletters
How do you cover in a regular or electronic AAUP newsletter the legitimate and newsworthy activities of an Association official (local, state, or national) and not cross the line into impermissible electioneering? One court opined:
It is a fine line as to when the coverage of the newsworthy activities of an incumbent official by a union publication becomes so excessive column-wise or pictorially in relation to the other matters covered by the publication so as to render it campaign literature on behalf of the incumbent. So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re-election, there is no violation. . . .
Camarata v. International Brotherhood of Teamsters, 478 F. Supp. 321 (D.D.C. 1979), aff’d without opinion, 108 L.R.R.M. 2924 (D.C. Cir. 1981) (internal citations omitted).
“[A]s a practical matter, incumbent officials must carry on business even in the midst of a heated election, including reporting to the membership on issues of general concern.” Donovan v. Metropolitan District Council of Carpenters, 797 F.2d 140 (3rd Cir. 1986). And so, union publications and listservs may continue to inform the membership, but they may not “exceed the bounds of permissible reportage on union matters.” Dole v. Drywall Tapers and Finishers, 733 F. Supp. 864, 867 (D.N.J. 1990). Accordingly, even coverage of an incumbent’s newsworthy activities may become so excessive that it is transformed into impermissible campaign literature. Dole v. Federation of Postal Police Officers, 744 F. Supp. 413 (E.D.N.Y. 1990).
How can you tell when coverage of a candidate for AAUP office is becoming excessive or pushing the “bounds of permissible reportage”? Here is one example. In five issues of a newspaper over a three-month period of an election campaign, the union printed in its newsletter no editorials directly endorsing an incumbent candidate. During that time, however, the union printed 166 references to the incumbent and 16 pictures of him, with no mention of the challenger. The union paper printed accounts of the incumbent’s activities, speeches, and even his convention song (“Hello, Tony,” to the tune of “Hello, Dolly”). The union rejected the challenger’s request to announce in its publication the opponent’s candidacy or report on the challenger’s union activities. A court found the union had violated the LMRDA. Hodgson v. United Mine Workers, 344 F. Supp. 17 (D.D.C. 1972).
In other cases, however, courts have found no violations. One court noted: “It is not unusual for [a] publication to publish pictures of incumbent officers in the performance of their related activities. This is not ‘excessive coverage. . . .’” Sheldon v. O’Callaghan, 335 F. Supp. 325 (S.D.N.Y 1971), aff’d without opinion, 538 F.2d 313 (2d Cir. 1976). Another court stated that “elected union officials are entitled to use union publications to express their views and to have their union activities reported. . . .” Camarata v. International Brotherhood of Teamsters, 478 F. Supp. 321 (D.D.C. 1979), aff’d without opinion, 108 L.R.R.M. 2924 (D.C. Cir. 1981).
In another case, the court found that a union had not improperly used its newspaper to promote the incumbents’ candidacy. The newsletter had covered the activities of the incumbents in meetings with the mayor and the attorney general, actions concerning the murders of two members, and the like. These activities were clearly newsworthy. The union newsletter also ran smaller items, including articles or photo displays, concerning local workshops and seminars, and union scholarship awards. The court also found these items newsworthy. Further, the incumbents were co-authors of a regular editorial column, expressing their views as union executives on economic and political issues of interest to the members. The court ruled this column to be acceptable.
The challengers made no claim that the items were not newsworthy. Rather, they claimed that the cumulative effect had an impact on the election. The court rejected the challenge: “It is clear that the newspaper coverage of the defendant officers is addressed to their regular activities and duties as officers and not as candidates for re-election.” (Emphasis added). The court noted that the union’s reporting was “not a paragon of objective journalism,” because it was uncritical and implied that the incumbents were diligently discharging their union responsibilities. Nevertheless, the incumbent president had not used the paper to publish severe criticism of the opponents or to lavish campaign promises on his own behalf. There were no ad hominem attacks on the opposition. New Watch-Dog Committee v. New York City Taxi Drivers Union, 438 F. Supp. 1242 (S.D.N.Y. 1977); but see New Directions v. Seda, 867 F. Supp. 242, 245 (S.D.N.Y 1994) (ruling that union violated LMRDA when incumbent president attacked challengers in newspaper).
AAUP bylaws are best implemented by even-handed and fair coverage of all candidates during an election.
B. Tone, Timing, and Content in Newsletters
Three criteria exist by which courts determine whether organizations have violated the LMRDA in their newsletters: the overall tone, timing, and content. Usery v. International Organization of Masters, Mates and Pilots, 538 F.2d 946 (2d Cir. 1976); New Directions v. Seda, 867 F. Supp. 242 (S.D.N.Y. 1994); Reich v. Local 843, Bottle Beer Drivers, 869 F. Supp. 1142 (D.N.J. 1994); Guzman v. Local 32B-32J, 151 L.R.R.M. 2006, 2007 (S.D.N.Y. 1995) aff’d, 151 F.3d 86 (2d Cir. 1998). In addition, courts often consider “the circumstances surrounding the challenged publications.” McLaughlin v. American Federation of Musicians, 700 F. Supp. 726, 734 (S.D.N.Y. 1988); Chao v. North Jersey Area Local Postal Workers, 211 F. Supp. 2d 543, 557 (D.N.J. 2002).
One commentator recently opined:
Experience has taught that in evaluating claims that a union’s publication promotes incumbents or other candidates, the Department of Labor will look to several factors, including the following: an increase in the number of references to or photographs of individuals who are or will be candidates; the addition of new features or improved positioning of established features close to the election; photographs which are larger than previously published and show individuals who are or will be candidates; articles calling attention to past achievements of the union; articles unnecessarily praising the individuals who are or will be candidates; and statements which are future-oriented and sound as if they could have been lifted from a campaign speech (e.g., “I look forward to working with you in the future” or “I will not remain content with this recent success but will continue to do even better in the future”). The Department, with some support from the courts, appears to be moving increasingly in the direction of contending that any self-laudatory or future-oriented rhetoric in a union publication in the period reasonably close to the election is campaigning, regardless of whether such “pablum and puffery” is normal in that union’s publication or other unions’ publications for the type of article in which the language in question appears.
Jonathan S. Jay, “A Guide for Union Attorneys to Prohibited Union and Employer Expenditures in Union Elections of Officers” 17-18 (UFCW, October 2002).
Tone is fairly easy to evaluate. Newsletters that the courts have found violate the LMRDA make AAUP newsletters look pallid indeed. Here is an example, quoted by a court:
[A candidate] is speaking out . . . through his flunkies, character assassins, racists, and finks who pollute the waterfront . . . with mindless, libelous, anti-labor trash. . . Groups and cliques who spread the garbage suck the curdled milk from the mother wolf who inspires the wolf-pack.
Sheldon v. O’Callaghan, 335 F. Supp. 325 (S.D.N.Y. 1971). Probably our newsletters will never accuse anyone of sucking “the curdled milk from the mother wolf.” But milder expressions may violate the LMRDA. One court found that a union had improperly used its newsletter for campaign purposes by carrying an incumbent’s “expansive praise” of his own record while severely criticizing the challenger. Hodgson v. Liquor Salesmen’s Union, 334 F. Supp. 1369 (S.D.N.Y.), aff’d, 444 F.2d 1344 (2d Cir. 1971).
Even if tone is generally not an issue for AAUP newsletters, timing may be a source of concern. Timing has to do with the proximity of the questionable newsletter to the election. A court may consider the proximity to the election date in determining whether a union has made impermissible campaign use of a union paper. New Watch-Dog Committee v. New York City Taxi Drivers Union, 438 F. Supp. 1242 (S.D.N.Y. 1977). For example, a union election took place from August to November. A newsletter praising an incumbent and criticizing his opponent appeared in mid-August. Although the trial court ordered the union to send out corrective literature from the challenger, the material was not mailed until November, when members had already cast 3,000 to 4,000 ballots. As a result, the court overturned the election. Usery v. International Organization of Masters, Mates and Pilots, 538 F.2d 946 (2d Cir. 1976).
Another example involved a newsletter criticizing a dissident slate of candidates by an incumbent president in a union-funded publication. The court ruled that the circulation of the newsletter six months before the election and five months before nomination ballots were circulated was improper, because the newsletter was distributed too close to the election. New Directions v. Seda, 867 F. Supp. 242, 245 (S.D.N.Y. 1994); see also Dole v. Federation of Postal Police Officers, 744 F. Supp. 413, 420-21 (E.D.N.Y. 1990) (newsletter distributed two months before election constituted improper campaign literature; newsletter distributed nine months before nominations submitted did not.)
In another case, a court considering a challenge to a union’s newspaper found that only one edition of the paper raised an issue of propriety. In announcing a new lawsuit against a city’s taxi commission, the union ran a banner headline and photographs in its paper. The problem was the timing: the edition came out in August, after the pre-election period had begun. But the court decided that the union had not violated the LMRDA, because after that edition, the newspaper reduced the entire coverage of all incumbents, regardless of the nature of their activities as officials. New Watch-Dog Committee v. New York City Taxi Drivers Union, 438 F. Supp. 1242 (S.D.N.Y. 1977).
The Association’s election may be considered to begin when the Nominating Committee prepares its slate of candidates in the early fall, although the slate is not published until the November-December issue of Academe. The election runs through the ballot-return date. This time period is particularly sensitive. Even before that time, however, any activity related to an election—for instance, someone’s formal announcement of a campaign—can also trigger the election period that carries with it these constraints.
As for content, as noted in Section II of this memorandum, explicit and constructive endorsements constitute impermissible campaigning.
In sum, when a newsletter or electronic listserv directly endorses a candidate, or does so indirectly, perhaps through excessive coverage, or if the tone is too adulatory toward an incumbent or too hostile toward an opponent, or the timing is during the election period—this is likely to be considered a violation of the LMRDA and may void an election.
C. Suggestions for Newsletters
In sum, we suggest the following considerations be taken into account in covering candidates in an AAUP election:
1. CAN A NEWSLETTER ENDORSE A CANDIDATE? No, not in its news columns, or editorially, or in any other way–-directly or indirectly.
2. CAN A NEWSLETTER RUN A CANDIDATE’S PHOTOGRAPH AND CAMPAIGN STATEMENT? Yes, if it also runs his or her opponent’s photograph and campaign statement, in equal space and similar location. It should not run one on the front page and the other in the personals.
3. CAN A NEWSLETTER COVER THE ACTIVITIES OF A CANDIDATE WHO IS ALSO AN INCUMBENT OFFICER? Yes, if the coverage is directed to the functions, policies, and activities of his or her position as an officer. But too much coverage of an incumbent officer should not be published, especially during a pre-election period.
4. CAN A NEWSLETTER RUN A COLUMN BY A CANDIDATE WHO IS AN INCUMBENT? Yes, if the column is a regular feature, and if it does not discuss the candidacy.
5. CAN A NEWSLETTER MENTION ONLY ONE CANDIDATE WHEN REFERRING TO AN ELECTION? No, even though the newsletter is not actually expressing support for that candidate.
6. WHAT ABOUT PAID ADS FOR A CANDIDATE? Paid advertisements supporting a candidate are all right, so long as the newsletter ordinarily accepts paid ads. In addition, both candidates should have timely notice that advertising is available, at the same price for all candidates. The ads must, of course, be financed by non-Association funds.
7. CAN A NEWSLETTER USE COMMENTS FROM ONLY ONE CANDIDATE? There must be fair play in seeking comments. It is not fair to seek a comment at the last minute, fail to reach a candidate, and then say that the candidate did not comment or even that he or she was not available for comment.
8. WHAT ABOUT INCLUDING CROWD RESPONSES TO SPEECHES? This, too, may be a means of constructive endorsement and therefore should be avoided.
EXAMPLE: Suppose the national treasurer were running for national president. Statements by both candidates, in similar format and location, are newsworthy. The officer’s activities in his or her regular functions as treasurer are newsworthy, but this coverage should not be excessive in the pre-election period. A regular column, if it does not discuss the candidacy, is acceptable. Even paid advertising is acceptable, if the newsletter usually carries ads and both candidates know in time that advertising is available, at the same price. But “manufactured” news or “photo ops” are not all right. Endorsements of the candidate, or attacks on the opponent, are never acceptable.
Some examples of newsletter coverage:
BOTH CANDIDATES PRESENT PLATFORMS (OK)
NATIONAL TREASURER RELEASES BUDGET (OK)
NATIONAL TREASURER PLANS FINANCIAL WORKSHOPS (OK)
“THE NUMBERS RACKET” (regular column) (OK)
CHAPTER ENDORSES TREASURER FOR PRESIDENT (No)
BALLOTS DUE MONDAY; NATIONAL TREASURER IS RUNNING (No)
“VIVE LE TREASURER,” SHOUTS WILDLY CHEERING THRONG (No)
NATIONAL TREASURER HANDS OUT FUDGE AT CHILDREN’S DENTAL CLINIC (No)
In the end, of course, not only the headlines are relevant in determining whether an organization’s newsletter coverage of an election is impermissible, but the content of the articles as well.
V. Use of Electronic Listservs and E-mail
As noted, the election bylaws provide that “Electioneering on listservs created or maintained by national, state or local AAUP organizations is prohibited.”
The national AAUP has created and maintains a number of listservs, which include, but are not limited to, faculty interested in women’s issues and in HBCUs; the Collective Bargaining Congress (CBC); the “executive directors” listserv on behalf of AAUP’s Assembly of State Conferences (ASC); and AAUP-general.
Listservs are basically bulk e-mail. As one publication has described them, “They are lists of e-mail addresses maintained on a computer that distributes messages among a group of recipients. Users transmit messages to the host computer for distribution to everyone on the list. People can ‘subscribe’ to the list, although the owner or moderator of the listserv may restrict the participants or the message.” Elizabeth Kingsley et al., “E-Advocacy for Nonprofits: The Law of Lobbying and Election-Related Activity on the Net” (The Alliance for Justice, 2000) at 6.
As noted, no organizational funds may be used to support any AAUP candidate.
Persuasive argument could be made that the use of electronic listservs created and maintained by the national AAUP is impermissible because it allows for organizational “funds,” “facilities,” and “equipment” to be used in electioneering, which is prohibited under the AAUP election bylaws, Section 481(g) of the LMRDA, and the relevant U.S. Department of Labor regulations. The LMRDA “clearly and unambiguously bars the spending of even seemingly trivial amounts of union funds for electioneering.” Dole v. Federation of Postal Police Officers, 744 F. Supp. 413, 418 (E.D.N.Y. 1999). Arguably AAUP electronic listservs are similar to other office equipment, such as telephones, copying machines, and facsimile machines, and courts have found the use of such office equipment, no matter how minimal the cost to the organization, violates the LMRDA.
Furthermore, an electronic listserv is an “uncontrolled” publication—it is less like a newsletter that can provide equal space to both candidates to pronounce their positions, and more like letters to the editor submitted either in support of or in opposition to particular candidates after such a piece is published. A listserv is a publication with no limits on space or content and, therefore, if an AAUP organization—national, state or local—sponsors an unmoderated listserv, it cannot ensure balance between and among challengers and incumbents.
The same principles apply to employer-provided listservs and e-mail accounts. The LMRDA also prohibits employer support, whether explicit or implicit, for union candidates. If the AAUP were to allow electioneering on its listservs, a legal issue exists as to whether the AAUP would be violating this employer prohibition were it to allow faculty members to post messages on their employer-provided computers at work. As noted, section 481(g) of the LMRDA provides that no money of an employer is to be contributed or applied to promote the candidacy of any person.” Regulation 452.78 prohibits “indirect as well as direct expenditures.” 29 C.F.R. § 452.78 (“Expenditures by employers”). The regulation allows the use of employer support in union elections only where “it can be shown that they [the employees] are on legitimate work assignments, and that their campaign activities are only incidental to the performance of their assigned task and do not interfere with its performance.” See, e.g., Donovan v. UAW, 575 F. Supp. 52 (D. Md. 1983) (finding that candidate violated prohibition against using employer money for electioneering because he used “employer’s equipment to type and reproduce partisan campaign literature”).
Candidates are not required to alter information on university-sponsored websites that relates only to their position in the university by which they are employed, such as biographical information, professional publications, and syllabi. Recent guidance issued by the Election Committee in 2005 provides:
Candidates may identify themselves as candidates on such websites only after the AAUP Nominating Committee publishes the nominations provided they also link to the AAUP website and post the following prefatory sentence: “Information about the AAUP elections and all candidates for office is available at: http://www.aaup.org/.” Candidates may not, however, use such websites to disseminate campaign-related information, or to otherwise communicate regarding their candidacies.
In response to a specific question to the Election Committee in 2005 about setting up a link on a university-sponsored website to a personal campaign related website, the Committee concluded that the DOL likely would consider that to be employer-support as well, because there is no de minimis rule regarding use of employer facilities. This is the case even if the candidate were to reimburse the employer for providing the ability to link. Furthermore, such a link would not be permissible in any event unless such hyperlinkage from the same site is also available on an equal basis to other candidates for the same office. Therefore, such links from university-sponsored websites to a personal campaign website are not allowed.2
The Election Committee further provided:
Insofar as university-sponsored e-mail accounts are concerned, candidates may and should direct campaign related correspondents to contact them at separately-established independent e-mail accounts from which candidates can then respond substantively. Candidates may use their independent accounts to respond to inquiries they receive from any address. Such accounts can be set up at no cost at various internet sites. For example, both Yahoo and Google provide free Web-based e-mail services. To sign up for a Yahoo account, go to their Web page at http://mail.yahoo.com/?.intl=us and click on the link labeled "Don't have a Yahoo! ID? Signing up is easy." On the Google website, go to http://www.google.com/intl/en/options/ and scroll down under "Google Tools" to the link for "Gmail." Numerous other websites offer free e-mail services, and most home Internet Service Providers also provide e-mail accounts as part of their services.
In the end, courts and the DOL have found that even de minimis election support by a labor organization or employer violates Landrum Griffin. Accordingly, the AAUP election bylaws prohibit the use of AAUP electronic listservs for electioneering at this time. Please note that this prohibition does not limit the use of personal websites or listservs created by candidates for AAUP office that do not use links to employer-provided websites.
VI. No First Amendment Violation
Some have expressed concern that the election restrictions imposed by the AAUP Election Bylaws violate the free speech rights of candidates for Association office. Courts have consistently ruled that the LMRDA does not violate the First Amendment rights of candidates for union office to speak out and campaign. Reich v. Local 843, Bottle Beer Drivers, 869 F. Supp. 1142 (D.N.J. 1994); McLaughlin v. American Federation of Musicians, 700 F. Supp. 726, 733-34 (S.D.N.Y. 1988). As one court reasoned:
Congress . . . did not dispute the right of union members, including union officials, to exercise First Amendment rights. . . .The incidental restriction on speech here is no greater than is essential to the furtherance of the government interests. . . . The only thing which is proscribed is the use of union or employer funds to promote the candidacy of any person in an the election. . . .
Hodgson v. Liquor Salesmen’s Union, 334 F. Supp. 1369, 1380 (S.D.N.Y.), aff’d, 444 F.2d 1344 (2d Cir. 1971). Section 481(g) “does not restrict the right of union members and officials to use their private resources to campaign themselves or to support another candidate in any way they see fit.” McLaughlin v. American Federation of Musicians, 700 F. Supp. 726, 734 (S.D.N.Y. 1988).
VII. Effect on Elections
Once a court finds a violation of the LMRDA, that showing establishes a prima facie case that the violation may have affected the outcome of the election. The burden is on the union that published the questionable newsletter to show that the violation did not affect the election. Wirtz v. Hotel, Motel, and Club Employees Union, 391 U.S. 492, 506-07 (1968). The DOL does not have to prove an actual effect on an election, only that a violation may have affected the outcome of the election.
Courts have found consistently that even small expenditures in violation of the LMRDA may affect an election (see Section III) and, once they find a violation, courts have refused to allow the results of the election to stand. Moreover, courts have been especially ready to find the standard violated when an election is decided by a small number of votes. McLaughlin v. American Federation of Musicians, 700 F. Supp. 726 (S.D.N.Y. 1988).
Within the Association, elections are conducted under the supervision of the Election Committee. Flawed AAUP elections are rerun, at considerable expense, inconvenience, and loss of members’ confidence. Other corrective actions may also be necessary, such as reissuing candidate statements or sending out corrective notices to the entire membership.
The potential for violating the AAUP bylaws–-whether intentional or not–-is considerable. The consequences of such violations are significant, including the time and expense of rerunning the election. It is important to stay alert during AAUP elections. All chapters, conferences, members, and staff must abide by the Association’s election bylaws.
Office of AAUP Staff Counsel
December 12, 2006