Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 77-C-64 -- Phil M. McNagny, Jr., Judge .
Before Swygert and Sprecher, Circuit Judges, and Marshall, District Judge.*fn*
Plaintiff appeals an order of the district court granting defendant's motion for summary judgment. We hold that the district court had remedial discretion to deny the new election sought by the Secretary in this case and affirm.
This is a suit brought by the Secretary of Labor alleging violations of the election rules of Title IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. ("LMRDA"), during the April 8, 1976 election of officers of defendant, Local 1010 of the United Steelworkers. The LMRDA directs the district court, if it finds that such violations occurred and if such violations "may have affected the outcome of an election", to declare the challenged election void and direct the conduct of a new election under the supervision of the Secretary. 29 U.S.C. § 482(c)(2).
The district court found that the April 8, 1976 election was held in "blatant" defiance of the LMRDA election rules in two respects. First, unused ballots were burned the day after the election although the statute requires all records pertaining to the election be preserved for one year and second, the voting did not proceed by secret ballot as required by the LMRDA. The district court found, however, that neither violation "may have affected" the election outcome, which is a prerequisite to granting relief under § 482(c), and that, in any event, the court was not required to order a rerun election in the exceptional circumstances of this case in which an incumbent union faction intentionally violated the LMRDA election rules, lost the election, and then complained to the Secretary in an effort to undo the election results.
The Secretary does not appeal the district court's conclusion that the premature destruction of the unused ballots could not have affected the election outcome. The Secretary does appeal the district court's conclusion that the failure to conduct the 1976 election by secret ballot could not have affected the election outcome. The Secretary also urges that the district court was required to reorder a rerun election in this case regardless of who was responsible for the violation of the election rules. The undisputed facts follow.
At the time of the 1976 election there were two rival factions within the defendant local. The incumbent faction was the Official Combined Caucus led by president Henry Lopez. An insurgent faction was the Rank-and-File Caucus led by James Balanoff. Lopez had defeated Balanoff for the presidency of the local in 1970 and again, in a relatively close election, in 1973. Balanoff and Lopez were again the candidates for the presidency in 1976. Rank-and-File Caucus and Official Combined Caucus ran a full slate of candidates in the 1976 election.
Official Combined Caucus under the leadership of Lopez was in charge of the 1976 election and was responsible for the violations which occurred. An election committee of 87 members was chosen by a group of officials dominated by the top officers of Local 1010, all of whom were aligned with the Official Combined Caucus. Only seven members of the 87 members of the election committee were supporters of the Rank-and-File Caucus. Three officers were elected to run the election committee, all of whom were supporters of the Official Combined Caucus. Martin Connelly, Chairman of the Election Committee, had been a candidate on the Official Combined Caucus slate in 1970 and in 1973. He took full charge of the election, personally appointing election captains for each polling site, all of whom were loyal to the Official Combined Caucus.
On April 5, 1976, three days before the challenged election there was a meeting of the election committee officers and the voting site captains. No members of the Rank-and-File Caucus were present at that meeting. Those present at that April 5 meeting determined that only one voting booth would be provided at each of the eleven or fourteen*fn1 voting sites, although this was totally inadequate to accommodate the approximately 17,000 members of Local 1010. Because there were insufficient voting booths members voted at tables which permitted voters to look at each other's ballots as they voted. At the time of the 1976 election both Connelly and Lopez knew that federal law required voting to proceed by secret ballot. In fact, the failure to provide private compartments at the polling sites was one reason the February, 1973 election for the Director of District 31, the district of which Local 1010 was a part, had been successfully challenged by the Secretary.
At approximately 1:00 p.m. on election day, April 8, Dale Bronson, a polling site captain, told Balanoff that Balanoff would win the election but added:
Jim, you ain't going to be installed. The election is all screwed up already. We already have plans to go to the Labor Department. A new election is guaranteed.
Later that day Henry Lopez told Balanoff that Balanoff would never sit in the president's chair. Still later that day, Raymond Lopez, the secretary-treasurer of the election committee and Henry Lopez's brother, told Balanoff, "You might get in, but you will be out. This election is going to be out."
After the election all election materials were stored with Brink's personnel overnight. The next day ballots were processed initially by union members supervised by the election committee and then delivered to an enterprise with which the Local had contracted to use a computer to count the ballots. The Local's personnel separated the unused ballots from the used ballots and Connelly, who had conferred with Henry Lopez several times on the morning of April 9, 1976, personally made the decision to burn the unused ballots.
Balanoff defeated Lopez by a margin of almost two to one and a number of other candidates running on the Rank-and-File slate defeated Official Combined Caucus candidates.
John Hurley, the complainant in this case, had been a member of the Official Combined Caucus for many years and ran for re-election to the Vice-Chairmanship of the Grievance Committee in 1976. When he was defeated in the April 8 election Hurley consulted Joseph Festa, a staff representative of the United Steelworkers of America, who advised Hurley to express his complaint at the Local's regular meeting. At that meeting on April 15, 1976 Hurley stated that he believed the April 8 election was conducted in violation of federal law. After that meeting Festa drafted a letter which Hurley signed and sent to the Secretary-Treasurer of the United Steelworkers of America. This was in accordance with 29 U.S.C. § 482(a) which requires a member of a labor organization to exhaust his union remedies before filing a complaint with the Secretary of Labor. A second protest letter was sent to the Secretary-Treasurer by the outgoing members of the Local's executive board ...