not reflect 'the highest standards of responsibility' because of the lack of clarity involved. It would have been far clearer to substitute for the first sentence at the bottom of the ballot language such as 'To increase dues by a reduction of the monthly charge from.$ 7.00 to $ 5.00 and add the payment of 10 cents per hour of employment.' However, this is a relatively small local with a membership of less than 300 persons and there is no showing of intent to deceive or confuse in the language used. Also, there is no evidence that any member was misled by the language on the ballot. In addition, it is noted that the definition of 'secret ballot' in 29 U.S.C.A. § 402(k) places the emphasis on the expression of a choice 'which is cast in such a manner that the person expressing the choice cannot be identified with the choice expressed,' and there is no complaint of violation of the quoted language.
Since none of the five plaintiffs bothered to vote or promptly protest the language on the ballot, this Motion could be decided on the ground that they were estopped to complain for the first time over a month after the vote had been implemented that the increase was not authorized due to improper wording on the ballot.
The other objections raised are also rejected as follows:
A. The failure to implement the vote for almost four months is not fatal in view of the negotiations and strike taking place during this period. Congress clearly did not contemplate that a vote to increase the dues could be held and the union put it in effect at any time they wanted in the future, but the delay in this case was justified by the circumstances.
B. The action of the union in increasing the dues by only 5 cents an hour, instead of 10 cents, is within the spirit, if not the letter, of the Congressional language, where there is no showing of an intent or plan to have an increase different from that stated on the ballot at the time the vote was held and there was a subsequent failure to secure the wages desired in the new contract executed after the vote.
For the advice of respondent, the hearing judge will state that, in his opinion, no further increase in dues should be made without another vote under 29 U.S.C.A. § 411(a)(3)(A).
C. Plaintiffs' contention that the increase of 10 cents per hour was only authorized if at least a 95 cents per hour increase over a three-year period was secured in the new contract is not supported by the record. The only mention of 95 cents per hour in relation to the dues was in Mr. Cahill's and Mr. Hofer's testimony of a discussion at a meeting in late April, more than a month after the secret ballot vote.
The Motion to Strike evidence made by respondent's counsel at the conclusion of plaintiff' evidence is denied. All exhibits offered, except P-4, have been considered as in evidence, even though some have slight relevancy.
In view of the hearing judge's decision that plaintiffs have not sustained their burden of proving a violation of 29 U.S.C.A. § 411(a)(3)(A), it is not necessary to determine whether the following language of 29 U.S.C.A. § 411(a)(4) should be applied on the basis of this record:
'Provided, That any such member may be required to exhaust reasononable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof: * * *.'
And now, September 20, 1960, it is ordered that this action is Dismissed with prejudice.