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May 7, 1976

Walter BACHOWSKI, Plaintiff,
Peter BRENNAN [now John T. Dunlop], Secretary of Labor and United Steel Workers of America, Defendants

The opinion of the court was delivered by: DUMBAULD

 The Secretary of Labor filed on March 30, 1976, the Supplemental Statement called for by this Court's opinion in Bachowski v. Brennan, 405 F. Supp. 1227, 1234 (W.D.Pa. 1975), particularly inviting explanation why only the margin of plaintiff's opponent's vote was used in some cases, *fn1" rather than the total infected vote. Counsel have now commented on the Supplemental Statement in additional briefs invited by the Court.

 There is now full disclosure of the Secretary's reasons; it remains only to assess their sufficiency (see 405 F. Supp. at 1234, n. 27).

 The gist of his reasoning appears in the following passage:

The first . . . method computed impact within a particular local as the margin of votes between Bachowski and Kluz when there was a violation in which it was impossible to determine effect with any certainty. Violations of secrecy of the ballot or of inadequate safeguards are within this category.
With this type of violation it is impossible to prove one way or the other if any voters were actually intimidated by such violations. On one end of the spectrum, to assume that only those who voted for Kluz were effected is unrealistic. The violations which occurred may have tainted or affected votes of not only Kluz but other candidates as well. Similarly to assume that everyone who would have voted, but for the violations, would have voted for Bachowski is also unfair. The Secretary therefore used a middle ground in estimating the effect on outcome. Kluz's margin of victory over Bachowski was taken from Kluz in any local in which the integrity of the balloting was compromised by inadequate procedural safeguards, thus disallowing Kluz any advantage in the tainted local. As an example, if Bachowski had received two votes . . . and Kluz five, the Secretary disregarded the 3-vote margin and, in effect, credited Bachowski and Kluz each with two votes; that is, put them on an equal footing and made it appear as if the election had never taken place in that local . . . .
The second method . . . was to credit Bachowski with all votes when the impact on such votes was directly affected by a violation and the number of such votes could be measured with some certainty. For example, when a union failed to hold an election, failed to notify members of the election or failed to report the results, Bachowski was credited with all votes. Thus, in Item 2 of the Secretary's initial Statement, no election was held in Local 2789. The total membership of that local is 249 and in estimating effect, the maximum number of possible votes was credited to Bachowski. It was further assumed that all of those 249 voters would have voted in the election, even though there is rarely 100 percent participation in elections of this kind. Nevertheless it was assumed that 249 members were potentially denied the right to vote, all would have voted and all would have voted for Bachowski. (pp. 3-5 of Supplemental Statement).

 The essence of the Secretary's method of determining the maximum impact or effect of violations upon outcome is to distinguish between cases where the number of votes affected can be ascertained with some certainty, and cases where it can not.

 As illustrations of the former situation, the Secretary enumerates failure to hold the election or to notify members of the election or failure to report the results of the voting. As examples of the latter situation, the Secretary gives violations of secrecy of the voting and inadequate safeguards [to ensure secrecy, an honest count, and the like]. The Secretary believes that the methods used give the complainant "the maximum benefit for which there is a reasonable probability" (p. 8 of Supplemental Statement).

 The Secretary's task in ascertaining whether violations may have affected the outcome of a union election is two-fold: to ensure a fair and honest election which genuinely expresses the will of the voters, and to interfere as little as possible with the normal lawful functioning of union machinery. If there is no probability that the outcome of the election was affected by violations, the election should be allowed to stand.

 Congress intended to protect the genuine expression of the will of the voters by requiring secrecy and other safeguards (29 U.S.C. § 481).

 The requirement of secrecy would seem to include not only the right to vote in secret (without "kibitzers" or observation how a voter marks his ballot) but also the right to secrecy after the ballots are cast. Any post-voting device by which it can be determined how a particular voter voted would be a violation of secrecy (such as signatures or other identifying marks on the ballot, or extracting each ballot from the ballot box and examining it immediately after it has been cast).

 By imposing the requirement of secrecy Congress meant to eliminate any form of potential coercion or intimidation which might occur if it could be learned in any ...

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