the winner's margin of victory, and treats the result as if the winner and the challenger had obtained an equal number of votes; in other words "as if the election had never taken place in that local."
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 manner how an individual voter had voted.
Any violation of the right to secrecy either at the time of voting or by subsequent procedures of handling the ballots constitutes a substantive and material infringement of the voter's rights, and also of the candidates' rights to a fair and honest competition for the suffrages of the union members.
As plaintiff's counsel points out "secrecy and safeguards are for the benefit of the challenger and the absence of secrecy and safeguards can only benefit the incumbent who controls the machinery of the union and can affect votes through fear or hope of favor" (p. 2 of brief).
Such substantive violations of a type which may affect how a voter votes are to be distinguished from merely technical violations of a procedural character. For example if "ballots were handed out by an unauthorized individual rather than official election tellers" (Supplemental Statement, p. 6), but such de facto election officers could not observe how the voters voted or subsequently learn how they had voted, the violation would be technical and of little or no importance in affecting the outcome.
But it appears contrary to the intent of Congress, and indeed irrational, to consider as technical violations those which affect secrecy of the ballot and potentially may influence or affect how a voter votes. These are vital and substantive infringements of the Congressionally guaranteed right to a free and fair election.
The Court is not satisfied, therefore, with the rationality of the double standard applied by the Secretary.
To treat the candidates as equally dividing the votes "as if the election had never taken place in that local" would seem to be more logical as a remedy where the violation in fact consisted of complete failure to hold the election than where the violation consisted of failure to provide secrecy or safeguards making it impossible for persons other than the voter to know how he voted.
The mere fact that the number of voters who failed to vote can be readily counted when no election was held is no rational justification for using the total electorate in that case, but only the margin of victory where the important right of secrecy has been infringed.
In our judgment the Secretary should undertake a "recount," applying "equal protection" principles, and using the same standard of total rejection instead of margin in instances where he finds that violations have occurred of a character which infringe the right of secrecy by enabling other persons to ascertain (either at the time of voting or subsequently) how a voter votes. Technical violations, not capable of influencing the voter's choice, or not interfering with an honest count and tabulation, may be disregarded; but lack of secrecy can not be countenanced in the light of the clear intent expressed by Congress.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WALTER BACHOWSKI Plaintiff, v. PETER BRENNAN, [now JOHN T. DUNLOP], Secretary of Labor and UNITED STEEL WORKERS OF AMERICA, Defendants.
Civil Action No. 73-0954
AND NOW, this 7 day of May, 1976, for the reasons set forth in the foregoing opinion,
IT IS ORDERED, ADJUDGED, DECREED, AND FINALLY DETERMINED, that the statement of the Secretary of Labor (as supplemented by his Supplemental Statement), without more, evinces that his decision is so irrational as to be arbitrary and capricious; and the cause is remanded to the Secretary for appropriate further proceedings.
United States District Judge