Statement of Paul Alan Levy, Attorney, Public Citizen

Note: In this case, Public Citizen represented three members of the American Postal Workers Union who are running for union leadership positions.

In a win for the principles of union democracy, incumbent officers of the American Postal Workers Union (APWU) must allow challengers running for union leadership positions to use the organization’s database of member email addresses to send out campaign literature, a judge ruled late yesterday in the U.S. District Court for the District of Columbia.
This case is the first in which a court has addressed the issue whether the right to distribute campaign literature by email is included in a union candidate’s right to distribute campaign literature at his or her own expense, and the judge got it right. U.S. District Judge Colleen Kollar-Kotelly’s decision sets an important precedent for union members because it enables a relatively inexpensive means of campaigning that helps new rank-and-file candidates to even the playing field, which is what section 401(c) of the Labor-Management Reporting and Disclosure Act (LMRDA) is all about.

The judge found that this request was reasonable.

The plaintiffs in the case, Mark Dimondstein, Tony McKinnon and Violetta Ward, running on an APWU Members First slate against incumbents for APWU president, national industrial relations director and secretary-treasurer respectively, had been illegally denied the use of the union’s 27,000-person email list, leaving the more exppensive postal mail as their only mode of distribution with elections fast approaching in September. One postal mailing can cost candidates more than $100,000. Now the candidates will be able to communicate their platform at a greatly reduced cost. The court’s ruling thus enables union elections to be decided by fair, merit-based competition rather than allowing incumbent candidates to prevail just because they have greater resources.

This decision also brings a statute that was enacted in 1959 into the 21st century by holding that, even though Congress passed this law with postal mail in mind as the principal means of distribution, the clause “by mail or otherwise” allows the statute to have continued relevance in the Internet age.

The union’s main argument against having to comply with this legal requirement was that, as a union of postal workers, it was ideologically opposed to using email instead of postal mail. The judge ruled, however, that the union’s philosophical position was overruled by the law and that, in any event, the union’s claimed view was “disingenuous” because the union itself distributes two weekly newsletters by email to lists of members drawn from the database of emails.

The election ballots go out by postal mail on Sept. 12 and 13, and experience shows that most of the ballots in a mail ballot election are voted within a few days of being received. The candidates will be sending out emails as soon as they can.

The judge’s memorandum opinion and order granting preliminary injunction, as well as other documents in the case, are available here

From: APWU Election Committee
Date: September 3, 2013
Subject: Distribution of Campaign Literature via E-mail

Please be advised that a court ruling has ordered the American Postal Workers Union, AFL-CIO to make available e-mail addresses of all members that are on file with the APWU for the 2013 Election of National Officers. Information regarding sending campaign literature by e-mail is listed below and in the attached Addendum to the Rules and Regulations Governing 2013 APWU National Elections.

Members will have the choice to opt-out and not receive any further communication from any candidate(s) regarding the election. If a member chooses to unsubscribe, no further e-mails will be sent to that e-mail address, regardless of the sender.

All e-mail campaign literature will be handled by Kelly Press. If you wish to send campaign literature via email, you must contact Stacie Rudy at (301) 386-8286, Monday through Friday, 9:00 am to 5:00 pm EST. Kelly Press is requiring a 24 hour advance notice for set-up, preparing, and formatting e-mail campaign literature.

Kelly Press charges a one-time set-up fee of $440.00 for preparing and formatting e-mail campaign literature and $0.02 per e-mail address per transmittance. An additional set-up fee will be charged for any changes to the original e-mail submission and/or to a different set of e-mail recipients. Please contact Kelly Press for additional pricing information.

The requirements for sending e-mail campaign literature are as follows:

1. All e-mails must contain a physical address for the sender.
2. The sender must provide a sending e-mail address and “from” name.
3. The subject line for all e-mail campaign literature will be “2013 APWU National Officer Elections.”
4. The body of the e-mail may contain images and text formatting. Additional charges may apply.
5. Kelly Press will review e-mails for spam compliance, but will not guarantee delivery. Please note that many factors can interrupt e-mail delivery, including spam filters and Kelly Press will not be held responsible for factors such as these that are outside of their control.
6. At no time will the e-mail addresses be released to any candidate.

Any questions should be addressed to the APWU Election Committee at apwuelectioncommittee@apwu.org

VI. DISTRIBUTION OF CAMPAIGN LITERATURE
B. ELECTION COMMITTEE RULE:
1. All e-mail campaign literature will be handled by Kelly Press. Any candidate(s), at his/her own expense, wishing to send e-mail campaign literature must contact Stacie Rudy at Kelly Press, Monday through Friday, 9:00am to 5:00pm EST, at (301) 386-8286.
2. The subject line for all e-mail campaign literature will be “2013 APWU National Officer Elections.”
3. All e-mails must contain a sender e-mail address, a “from” name, and a physical address.
C. ELECTION COMMITTEE RULE
1. Kelly Press will determine the cost of e-mail campaign literature. Payments must be in the form of United States Postal Service Money Order or certified check prior to e-mail transmittance. Kelly Press is requiring a 24 hour advance notice for set-up, preparing, and formatting e-mail campaign literature.