Reich v. District Lodge 720, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO

Decision Date16 December 1993
Docket NumberD,AFL-CI,No. 92-55154,92-55154
Parties145 L.R.R.M. (BNA) 2001, 62 USLW 2396, 127 Lab.Cas. P 10,972 Robert REICH, * Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. DISTRICT LODGE 720, INTERNATIONAL ASSOCIATION OF MACHINISTS and AEROSPACE WORKERS,efendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Mary A. Sedgwick, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.

Robert A. Bush, Taylor, Roth, Bush & Geffner, Burbank, CA, for defendant-appellee.

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

Before: WOOD, Jr., ** REINHARDT, and RYMER, Circuit Judges

REINHARDT, Circuit Judge:

The primary question before us is what a union must do to comply with the provision of section 401(e) of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA") that requires unions to give notice of union elections to their members. Here we consider the rules that apply when notice is given by mailing the union newspaper to the membership. There is little case law on point.

I. Facts and Proceedings

On July 19, 1989, District 720, International Association of Machinists and Aerospace Workers, AFL-CIO ("District 720" or "the union") conducted elections for President and Secretary-Treasurer that were subject to Title IV of the LMRDA, 29 U.S.C. section 481 et seq. The union notified its membership of the elections by means of its monthly newsletter. The newsletter was timely mailed to about 6200 union members but was not sent to more than 2000 other members for whom the union had no addresses or believed it had incorrect addresses. The incumbent candidates won re-election for the two union offices in dispute here by the following margins:

                Office                  Votes              Percentage
                             Incumbent  Challeng.  Diff.  Inc.  Chall
                President    1608       1165       443    57    42
                Sec.Treas.   1634       1123       511    59    40
                

Several union members protested the election and, after exhausting their internal remedies, filed a complaint with the Department of Labor. 29 U.S.C. Sec. 482(a). The Secretary of Labor ("the Secretary") conducted an investigation and brought this action to have the election set aside and a new election conducted under his supervision. 29 U.S.C. Sec. 482(b). After significant pre-trial proceedings, the district court denied the Secretary's motion for summary judgment and granted District 720's. The Secretary appeals. We have jurisdiction under 28 U.S.C. section 1291. We reverse and remand.

II. Statutory and Regulatory Framework

The purpose of Title IV is to insure free and democratic union elections and offset some of the inherent advantages that incumbents enjoy over rank and file members. International Org. of Masters, Mates, & Pilots v. Brown, 498 U.S. 466, 476, 111 S.Ct. 880, 887, 112 L.Ed.2d 991 (1991). However, as we have often stated, Congress meant to further this basic policy with a minimum of governmental inference in the internal affairs of unions. E.g. Brock v. Writers Guild of Am., 762 F.2d 1349, 1355 (9th Cir.1985). Section 401(e) of the LMRDA, 29 U.S.C. section 481(e), inter alia requires that "[n]ot less than fifteen days prior to the election notice thereof shall be mailed to each member at his last known home address" by the union. A Labor Department regulation implementing this provision permits a union to comply by publishing the notice in its newspaper and mailing it to the members in a timely fashion. 29 C.F.R. Sec. 452.100. The regulation requires that "a reasonable effort must be made to keep the mailing list of the publication current." Sec. 452.100(d).

The Secretary has the exclusive authority to seek a post-election judicial remedy for breaches of Title IV. 29 U.S.C. Sec. 483. Before filing a complaint, the Secretary must find probable cause to believe that a violation "infecting" the election has occurred. Dunlop v. Bachowski, 421 U.S. 560, 570, 95 S.Ct. 1851, 1859, 44 L.Ed.2d 377 (1975); Shelley v. Brock, 793 F.2d 1368, 1372-73 (D.C.Cir.1986). LMRDA section 402, 29 U.S.C. Sec. 482(c)(2), establishes the procedural framework for an enforcement action by the Secretary:

If, upon a preponderance of the evidence after a trial upon the merits, the court finds--

. . . . .

(2) that the violation of section 481 of this title may have affected the outcome of an election,

the court shall declare the election, if any, to be void, and direct the conduct of a new election under the supervision of the Secretary and, so far as practicable, in conformity with the constitution and bylaws of the labor organization.

The Supreme Court has interpreted the statute as providing that once a violation of section 481 is established, the union has the burden of showing that it did not affect the outcome of the election. See Wirtz v. Hotel Employees Union Local 6, 391 U.S. 492, 506-07, 88 S.Ct. 1743, 1751-52, 20 L.Ed.2d 763 (1968); Marshall v. Local 458 Int'l Bhd. of Teamsters, 643 F.2d 575, 577-78 (9th Cir.1980).

III. The District Court Erred in Resolving this Case on Summary Judgment
A. Overview

The parties agree that 6229 union members were mailed copies of the edition of District 720's newsletter that contained the election notice. The newsletter qualifies as a newspaper under the regulations. The Secretary claims that 2061 members were omitted from the mailing list. Of these, 2014 names appeared on what the union calls its "morgue list", i.e., bad address list. The union argues that the morgue list figure of 2014 represents the total number of members who were not mailed notice of the election. In other words, a 47-member difference exists between the union's and the Secretary's calculations of District 720's total membership. The district court concluded that this genuine factual dispute was immaterial for purposes of summary judgment. We agree with that conclusion, although not necessarily for the same reasons. What is material for purposes of this appeal is the undisputed fact that in excess of 2000 union members were not mailed election notices.

The numbers game can be simplified further for present purposes. The Secretary does not controvert District 720's contentions that 452 of the 2014 persons whose names appeared on the morgue list actually voted, 290 more were ineligible to vote, 1 9 were dead, and 1 had transferred, and that the failure to mail notice to these 750 members was of no consequence. Thus, there were somewhat more than 1250 non-voting members who were eligible to vote, did not vote, and did not receive a notice of the election. These members fall into two categories. The first consists of 400-odd members for whom the union claims it never possessed any home addresses. The second comprises approximately 850 members for whom District 720 had home addresses that it believed to be no longer valid. The issue we must consider in this appeal is whether District 720 breached its duty to mail election notices to members of these two groups and, if so, whether the union's actions affected the outcome of the election. 2

B. The District Court Erred By Permitting Inquiry into How Union Members Who Were Not Notified Would Have Voted

Preliminarily we should note that in addition to excluding the 750 members as to whom the failure to mail the election notice concededly worked no harm, the district court subtracted from the initial group of 2000 more than 500 members who claimed that they would have voted for the incumbents. 3 The issue of how the union members who were not notified of the election would have voted was raised by the court, not the union. To prevent a lengthy inquiry that he correctly thought to be both irrelevant and inconsistent with the LMRDA's secret ballot requirements, the Secretary stipulated, without waiving his vigorous objection to the inquiry, that over 500 union members would testify that they would have voted for the incumbents.

On appeal, neither party defends the propriety of the district court's action in excluding these 500-odd members, and we need address the issue only briefly. We agree with the Secretary that permitting union members to testify as to how they would have voted is inconsistent with the secret ballot requirements of the LMRDA. 29 U.S.C. Sec. 481(d). A secret ballot election is one in which it is intended that the choices made by voters will remain secret. While an individual is free to disclose his vote, the LMRDA's secrecy mandate extends not only to the actual casting of ballots but also to any post-voting procedure designed to determine how individual union members voted or would have voted. See Donovan v. CSEA Local Union 1000, 594 F.Supp. 188, 196 (N.D.N.Y.1984), aff'd in part and rev'd in part, 761 F.2d 870 (2d Cir.1985); Bachowski v. Brennan, 413 F.Supp. 147, 150 (W.D.Pa.), appeal dismissed, 545 F.2d 363 (3d Cir.1976).

After the fact statements about how individuals voted are in any event notoriously unreliable. Polls taken after presidential elections show that an overwhelming majority of eligible citizens claim to have voted for the winner, even when the successful candidate was elected by a slim margin or by a plurality vote. There is even more reason to doubt the accuracy of post-election statements in union elections. Members are likely to feel that they will be treated better by their officers if the officers believe that they voted for them. The officers whose election is being challenged continue to hold office pending the completion of legal proceedings, see 29 U.S.C. section 482(a), and the litigation frequently lasts longer than the term of office at issue. Under the circumstances, the temptation to say that one voted for the challenged officeholder is great. Moreover, one of the primary purposes of the secret ballot is to prevent recrimination against persons who vote for losing candidates. Federal Election Comm'n v....

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