The opinion of the court was delivered by: MCCUNE
On July 23, 1971, the Secretary of Labor filed a complaint under Title IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq., seeking to set aside the December 8, 1970 election of United Mine Workers officers in District No. 5 of the United Mine Workers (hereinafter UMW) and obtain a new election under the supervision of the Secretary of Labor.
After refusing to grant summary judgment for the government by our opinion of May 25, 1972, in which we ruled that a trial on the merits would be required we tried the case non-jury in July and August of 1972.
For the reasons set forth hereinafter we now set aside the election in District No. 5 of the UMW which was held in December of 1970 and order a new election in that District under the supervision of the Secretary of Labor.
The election of officers in District No. 5 was ill fated from the beginning because of the wording of the District 5 constitution with respect to absentee ballots and in fact, with respect to the entire election process, and although the men who wrote the constitution no doubt thought it was sufficient for their purposes at the time it was written, intervening events caused a deep division within the union which placed the officers of District 5 in an untenable position as they tried to carry out the election of 1970 and demonstrated the invalidity of the constitution. It is unnecessary to review here the causes of the division within the union because they have been reviewed frequently in other proceedings. Suffice it to say that as the 1970 elections approached there were two slates of candidates in the field seeking election, one representing the incumbent candidates (on which the incumbents were running to succeed themselves) and an opposing group called the Miners for Democracy (hereinafter MFD). The bitterness between the two slates and their adherents cannot be overemphasized.
It had been provided in the constitution of District 5 adopted May 7, 1970, at Pittsburgh that the Secretary-Treasurer of the District should be in charge of mailing applications for absentee ballots and of receiving absentee ballots and maintaining custody of them while awaiting the counting of ballots by the official tellers. In the election in question, bitterly contested we repeat, the Secretary-Treasurer who had charge of the absentee ballots was himself a candidate running to succeed himself. And the President of District 5 was an incumbent candidate running to succeed himself. He was in charge of the District Office and his office was adjacent to the office of the Secretary-Treasurer of District 5. These facts alone made the MFD slate and all of its adherents highly suspicious of the Secretary-Treasurer and the President of District 5, who was known to be in favor with the International officers in Washington, D.C.
The situation created by the constitution placed the tellers in an equally impossible position. They were elected officers of the District also and the three official tellers were running for office and would be counting their own votes. Two of the tellers were running to succeed themselves. The third was running for Secretary-Treasurer against the incumbent Secretary-Treasurer, John Seddon.
To make matters worse, one of the tellers (Daniels, who was running for Secretary-Treasurer) was a candidate on the MFD slate and the two others were candidates on the incumbent slate. Needless to say, they could agree on nothing.
As will be observed later on the MFD people invaded the District Office to check on the Secretary-Treasurer and they did find absentee ballots piled on the desk of the Secretary-Treasurer which had not been placed in the supposedly locked ballot box designed to receive them. They were enraged by what they saw and their suspicions increased. (There was no proof that the Secretary-Treasurer was picking and choosing the absentee ballots he would deposit in the absentee ballot box and we are inclined to the view that he was not dishonest but his procedures were so poorly designed that there is no wonder that he was under suspicion. He was in an impossible position.)
The District tellers were assigned the duty to investigate and decide all local election contests. It was virtually impossible for them to investigate local complaints for many reasons. They were under suspicion from both sides. Local union members were unruly, acting in many cases in disorder and disarray, refusing to be rational. And the tellers having divided loyalty disagreed on the procedure they would employ in investigating reports of irregularity at the local level. Persons who were asked to testify were shouted down. In some cases a tape recorder was brought into the hearings creating an impasse when witnesses refused to be taped. Witnesses refused to appear and ignored the tellers.
The District tellers who met to perform their duties in District headquarters and in the field were confronted by mobs of men. Police had to be called to prevent open warfare upon occasion. The District Officers and the MFD sought the intervention of representatives of the Secretary of Labor in Pittsburgh who took custody of the absentee ballot boxes. (Custody was taken after election day and retained by the Labor Department until long after the election but this did not serve to cool tempers. Prior to the election (on ...