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February 21, 1980

RAY MARSHALL, Secretary of Labor, Plaintiff,

The opinion of the court was delivered by: FLANNERY


This case arises under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C.A. §§ 401-531 (1975). Section 481 of Title 29 imposes various requirements for elections within labor unions, and section 482 authorizes the Secretary of Labor (Secretary) to investigate such elections and to sue to have them set aside if he finds "probable cause" to believe a violation of section 481 has occurred. With respect to suits brought by the Secretary, section 482 provides that if a court finds "upon a preponderance of the evidence" that a violation of section 481 "may have affected" the outcome of an election, the court "shall declare the election . . . to be void and direct the conduct of a new election under the supervision of the Secretary. . . ."

 Here the Secretary sues to set aside fourteen elections for positions in the American Postal Workers Union (APWU), alleging violations of various parts of section 481 and of APWU's constitution. He moves for summary judgment. The court finds that summary judgment should be granted with respect to all of the challenged elections.


 The fourteen elections may be divided into two groups, the first involving Carl Taylor's candidacy for the Administrative Vice-Presidency of the Motor Vehicle Division, one of five craft divisions within APWU, and the second involving thirteen other elections that were flawed by both the defendant's failure to send ballots to some union members who were eligible to vote and the wrongful mailing of ballots to persons ineligible to vote.

 1. Carl Taylor's campaign statement was the only statement left out of the August 1978 issue of The American Postal Worker, which was distributed to all union members. The publication printed his statement in the next issue, which came out in September, but then it mislabelled the office for which he was running, listing him as a candidate for office in the Maintenance Division rather than the Motor Vehicle Division. Taylor lost by 172 votes out of 3,800 votes cast.

 The key statutory provision is subsection 481(c), which mandates the provision of "adequate safeguards to insure a fair election." That subsection also provides that whenever a labor organization or its officers "authorize the distribution by mail or otherwise to members of campaign literature on behalf of any candidate or of the labor organization itself . . ., similar distribution at the request of any other bona fide candidate shall be made by such labor organization . . . ." The court is persuaded that under the circumstances here Taylor did not enjoy either a "fair election" or "similar distribution" of his campaign literature.

 Moreover, the court is persuaded that these violations "may have" affected the outcome of the election. Clearly, because Taylor was known personally by only a tiny fraction of the persons eligible to vote for that office, the proper dissemination of his campaign statement was vital to his candidacy. Also, because the statements of all the other candidates appeared in the August issue, that issue no doubt became a sort of voting manual for union members. Finally, when the position for which Taylor was running was mislabelled in the September issue, members of Taylor's craft division had no reason to suspect an error had occurred. In view of these factors, the court is required to declare the election void.

 2. The key statutory provision with respect to the other thirteen elections is subsection 481(e), which provides that "(e)ach member in good standing shall be entitled to one vote." Subsection 481(e) also provides that elections "shall be conducted in accordance with the constitution" of the union. The relevant constitutional provision to which the latter refers provides that one is eligible to vote if he is "in good standing according to the official records of the union on August 29 of the election year." Article X, section 5. The Secretary contends that the elections involved violations of section 481 and the APWU constitution, because members in good standing were denied votes to which they were entitled and because persons who were not members in good standing received ballots and voted. The defendant concedes that such violations occurred. It contends, however, that the number of persons in each category was comparatively small and therefore that these violations did not affect the outcome of the elections. Thus, the dispute is essentially one of numbers.

 At the outset it is necessary to resolve a basic dispute regarding how to determine whether a violation may have affected the outcome of an election. Both sides agree that if the sum of the number of eligible voters who did not receive ballots and the number of ineligible voters who did receive ballots is less than the margin of victory in a given decision, then the violations could not have affected the outcome. But the defendant challenges the plaintiff's contention that if the sum of these two numbers is greater than the margin of victory, then the court should necessarily assume that the violation may have affected the outcome. Rejecting this theory of the "maximum theoretical possibility" in favor of a theory of "reasonable probability," the defendant contends that the court should determine statistically what percentage of those who received ballots actually voted and adjust the gross figures accordingly.

 To be sure, the theory of the maximum theoretical possibility is imperfect, because it assumes that all those who could have voted would have voted and that those who would have voted would have voted unanimously. Nevertheless, the liberal "may have affected" standard set forth in section 482 appears to call for application of this theory, and this is the theory consistently applied by the courts. See, e.g., Wirtz v. Local Union No. 125, 270 F. Supp. 12, 20 (N.D.Ohio 1966); Wirtz v. Local Union 169, 246 F. Supp. 741, 754 (D.C.Nevada 1965). See also Wirtz v. Hotel, Motel and Club Employees Union, 391 U.S. 492, 88 S. Ct. 1743, 1752, 20 L. Ed. 2d 763 (1968) (holding that a proven violation of the LMRDA establishes a prima facie case that the outcome of the election may have been affected). Thus, the defendant's position on this issue must be rejected.

 In support of his position that the defendant wrongfully denied members in good standing the right to vote, the plaintiff argues that APWU failed to send ballots to approximately 2,500 voters who had signed dues checkoff forms and delivered those forms to their local unions by August 29, 1978. The defendant agrees that the dues checkoff forms are critical, but it says that one is not a member and one's name therefore does not go on the master voting list until he signs that form and it travels from the local office to the national headquarters and is there accepted and recorded.

 At present this process of having one's name recorded on the master voting list at the national headquarters often involves a number of delays. For example, as the defendant admits, "Local union officers . . . often do not forward (the 1187 dues checkoff forms) to headquarters promptly. Some make a practice of accumulating 1187's till a batch have collected and are sent together." Defendant's Opposition, p. 7. This court is not convinced that such administrative failings are compatible with the mandate of the LMRDA or the APWU constitution. Article X, Section 5 of that constitution affords the right to vote to members "in good standing according to the official records of the union. . . ." There is no reason to think local union records are not "official records of the union" within the meaning of that provision, so it follows that persons whose dues checkoff forms are accepted by the local offices are union members entitled to vote. Also weighing in favor of the plaintiff's position is the fact that the APWU constitution provides that dues shall not be deducted until one is a member in good standing, and it is the practice of APWU to deduct persons' dues as soon as the 1187 forms are processed by the local offices. Although the court recognizes the difficulties involved in keeping current the voting lists for an organization as large as APWU, it is nevertheless persuaded that the defendant's failure to send ballots to those persons violated section 481.

 With respect to the Secretary's charge regarding a significant number of ineligibles who received ballots, the defendant virtually concedes that over 600 persons fall into this category. Defendant's Opposition, pp. 14, 19. Again, however, APWU cites the administrative difficulties of maintaining more accurate voting lists for a union of its numbers and geographic diversity. As before, the court rejects this argument. Although it would be unreasonable to construe the statute as requiring perfection, under the circumstances here it is clear that a violation of section 481 has occurred, and the court is persuaded that this violation may have affected the outcome of the elections.

 The defendant makes the general argument that its duty is not to ensure flawless elections but only ones that are reasonably fair. It points out that thousands of names are added to and deleted from the master mailing lists each month, so perfect records are administratively impracticable. It says that the number of ballots sent to ineligibles represents only .5% of the total ballots mailed, and every member in good standing who did not receive a ballot could have requested one, as in fact many did. In support of this latter point, the defendant cites Hodgson v. Local Union 582, 350 F. Supp. 16 ...

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