post notice of the nomination meeting at the Merkle Press and at the NBW. Local 2 claims, however, that this lack of notice did not affect the election because everyone who wanted to be nominated for union office was in fact nominated. Local 2 points to an answer filed by the Secretary to one of the defendant's interrogatories, where the Secretary initially conceded that no one who wanted to be nominated was denied the opportunity. Plaintiff's Answers to Defendant's Interrogatories No. 6(a). Gwendolyn Miller, an employee of the NBW, however, indicated in her deposition that she would have nominated someone else for office had she known of the meeting. The defendant attacks Miller's credibility because her deposition was difficult to comprehend and she has appeared uninterested in union affairs. The Court, of course, cannot at this stage of the proceeding resolve the credibility of Ms. Miller, but her lack of articulateness does not make her untrustworthy. Simply put, evidence that additional candidates for union office may have been nominated is uncontested.
As to the election violation, Local 2 requests that the Court excuse its conduct because despite the gap between the number of notices mailed out and the actual number of union members, it acted to the best of its ability. The state of the union's membership records is not a concern for the Court in this proceeding, because the statute clearly and unambiguously requires that notice of the election be sent to the last known home address of each union member. Congress clearly contemplated that unions' memberships will constantly change when it included the provision that notice be sent to the last known home address. The union at the time of the election had 5,022 members and sent out only 4,753 notices. Thus, there are 269 members who have a home address somewhere in the union records who were not mailed notices. The Act does not require that the members receive notice; it only mandates that notice be sent.
The question then arises whether the failure to notify 269 members of the election may have affected its outcome. A simple examination of the election results answers this question. Fifteen members of the Executive Board were to be elected, and the individual who was sixteenth in the balloting fell only six votes short of the fifteenth person, the last to be elected. Under either of the standards proposed to the Court to determine whether a violation may have affected the election's outcome, whether the violation "reasonably may have affected the outcome," see Marshall v. Local 1010, United Steelworkers of America, 498 F. Supp. 368 (N.D.Ind.1980), or whether the violation numerically affected the outcome of the election, see Marshall v. American Postal Workers Union, 486 F. Supp. 79, 82 (D.D.C.1980), it appears clear that the violations aforesaid may have affected the outcome of the election in this case.
Finally, as to the employer money violation, the defendant pleads for a de minimis exemption to the proscription against the use of employer money in a union election. After all, the defendant claims, only $ 6.40 of the employer's resources were utilized. The defendant's argument, however, has been considered and rejected in Shultz v. Local 6799, United Steelworkers of America, 426 F.2d 969 (9th Cir. 1970), aff'd 403 U.S. 333, 91 S. Ct. 1841, 29 L. Ed. 2d 510 (1971). There, the Secretary claimed that $ 13.04 was expended by the union organization in violation of § 481(g), and the Court held that Congress's intent was clear and unambiguous in the statute's language: no money meant no money. See 426 F.2d at 972. The defendant union has produced no evidence that refutes the violation, or the inference that the violation has affected the outcome of the election. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 88 S. Ct. 1743, 20 L. Ed. 2d 763 (1968). Because fourteen of the fifteen candidates endorsed on the flyer won election, an unrefuted inference that the flyer affected the outcome of the election exists.
Thus, it appears that the union violated the LMRDA in failing to post notice of two locations of the nomination meeting of January 3, 1978; in failing to send election notices to all union members; and by one of its members utilizing employer money to promote the candidacy of individuals seeking union office. Local 2 has failed to carry its burden of showing that these violations did not affect the outcome of the election.
The defendant pleaded with the Court at the argument on the motion to consider the reality and totality of circumstances in deciding these motions. Although the union claims that this case transforms a few incidents, one seemingly minor, into a major lawsuit, Congress has spoken, succinctly and unequivocally, directing that all union elections be fair and orderly, clear of any appearance of impropriety, and aimed at maximum participation from union members. The directive of Congress underlies this decision explicitly in the language of the LMRDA, and defendant's pleas for "reality" can be considered only in recognition of the Congressional mandate.
It appearing that summary judgment is appropriate and that violations of the LMRDA may have affected the 1978 election of Local 2, the January 31, 1978 election of Local 2 will be declared null and void, and the union will be directed to proceed with new elections forthwith under supervision of the Secretary pursuant to the terms of the LMRDA.
© 1992-2004 VersusLaw Inc.