Marshall v. Local 468, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 78-3582

• Decision Date: 30 March 1981
• Docket Number: No. 78-3582,78-3582
• Citation: 643 F.2d 575
• Parties: 107 L.R.R.M. (BNA) 2841, 90 Lab.Cas. P 12,470 Ray MARSHALL, Secretary of Labor, United States, Department of Labor, Plaintiff-Appellant, v. LOCAL 468, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Independent, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 575

643 F.2d 575

107 L.R.R.M. (BNA) 2841, 90 Lab.Cas. P 12,470

Ray MARSHALL, Secretary of Labor, United States, Department

of Labor, Plaintiff-Appellant, v. LOCAL 468, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

Independent, Defendant-Appellee.

No. 78-3582.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 14, 1980.

Decided Dec. 15, 1980.

Rehearing Denied March 16, 1981.

As Amended March 30, 1981.

Wendy M. Keats, Washington, D. C., argued for plaintiff-appellant; Robert E. Kopp, Linda M. Cole, Dept. of Justice, Washington, D. C., on brief.

Kenneth N. Silbert, Brundage, Beeson, Tayer & Kovach, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE and ALARCON, Circuit Judges, and VON DER HEYDT ^*, District Judge.

VON DER HEYDT, District Judge:

The Secretary of Labor appeals from an order granting summary judgment to the defendant, Local 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, charged with a violation of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. We hold that the Union violated 29 U.S.C. § 481(c) ¹ and remand to the District Court for trial on the question of whether the proven violation "may have affected the outcome of an election" and thus requires that the earlier election be voided and that a new supervised election be conducted. 29 U.S.C. § 482(c). ²

Prior to the 1976 election, the candidates for union office were nominated at a special meeting and elected by members casting ballots in person at least thirty days later.

On July 25, 1976, during a special nominating meeting, the Executive Board of the Union first announced an unspecified change in the balloting procedures for the August, 1976 election. On July 30, 1976, ballots were mailed to the membership of the Union. The accompanying instructions informed the members that they could return their ballots at any time within thirty days, but admonished the members to "vote immediately."

The Secretary of Labor brought this action charging that the defendant local had violated the LMRDA by failing to provide "(a)dequate safeguards to insure a fair election," 29 U.S.C. § 481(c), and that the election should be voided and a new supervised election held since the above violations "may have affected the outcome" of the election. 29 U.S.C. § 482(c). The Secretary did not question the fairness of an election by mail-in ballot; rather he urged that the advance notice of the change in balloting procedure was insufficient to enable the candidates to conduct meaningful campaigns.

While there are no statutory requirements establishing the length of campaign periods, the importance of campaigning is statutorily recognized. 29 U.S.C. § 481(c). The abrupt change in balloting procedure constituted a statutory violation.

In past elections, the candidates had customarily enjoyed a thirty day period between the nomination meeting and the balloting in which to campaign. Yet only five days after announcing an unspecified change in balloting procedures the union local mailed ballots to the membership.

The lack of opportunity to send out campaign literature immediately before the election may have severely hampered the challengers' prospects. The incumbents, and their policies and practices, were already known to the Union members. Those wishing to challenge the incumbent office holders might be relatively unknown, for whom the opportunity to make their abilities and views known to the electorate would be crucial to any hope of success. Here, however, the nominees learned of the mailing schedule only by receiving their own ballots in the mail. By that time, circulation of campaign literature would have been a futile act.

The Union argues that under the new system there were at least 30 days between the nomination meeting and the ballot due date, as well as 26 days between the mailing of the ballots and the date by which they had to be returned. The Union contends, therefore, that any change in procedures could not have hampered the campaign efforts of the challengers.

This argument ignores the practical effect of the change. Despite the fact that the intervals noted above existed, the abrupt change in voting procedures effectively deprived the challengers of the opportunity to use this time to reach the voters. Under the previous system, the members could not cast their vote until the 30th day following nominations. Under the new system, the...