APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 76-1983)
Before Rosenn, Garth and Higginbotham, Circuit Judges.
This appeal requires us to interpret Section 401(b) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481(b) (1976), which provides for the election by Secret ballot of local union officers.*fn1 Unfortunately, section 3(k) of the Act, 29 U.S.C. § 402(k) (1976) which defines "secret ballot" does not provide the answer to all the questions raised by that term, including the question presented by this appeal. In this case, although facilities for a secret ballot were provided, no requirement for their use was imposed by the defendant union. Nevertheless the district court concluded that the union had discharged its obligations under the Act. Because we view the union's obligations differently, we hold that section 401(b) requires a labor organization to do more than just furnish facilities for secret balloting for those voters who desire to vote in secret. Accordingly, we reverse.
On April 27, 1976, the defendant, Local Union 12447, United Steelworkers of America (the "local"), held an election for the offices of President, Vice President and Guide. In that election, Joseph Toltin, a candidate for the Presidency, was defeated by a vote of ninety-nine to fifty-four. Thereafter on May 3, 1976, he filed a protest with the local, alleging that the election had not been conducted in a fair and legal manner. After three months had elapsed without a final decision by the parent organization, Toltin filed a complaint with the Secretary of Labor. Pursuant to section 601 of the Labor-Management Reporting and Disclosure Act (the "Act"), 29 U.S.C. § 521 (1976), the Secretary investigated the complaint and determined that there was probable cause to believe that a violation of the Act had occurred. Accordingly, the Secretary brought this action under 29 U.S.C. § 482(b) (1976) to "set aside the invalid election . . . and to direct the conduct of an election . . . under the supervision of the Secretary . . .." His complaint alleged that the local had violated section 401(b) of the Act, 29 U.S.C. § 481(b) (1976), by failing to elect its officers by a "secret ballot." He further alleged that this violation of the Act "may have affected the outcome" of the election.
At the trial held in the district court, the Secretary called three witnesses, Toltin and two other members of the local who had voted in the election on April 27, 1976. They testified that the election had been held in one room in an American Legion Hall. When a union member entered the room, he received a slip from the teller and then waited in line to be admitted to the area of the same room which was reserved for voting. When his turn came, the member would surrender his slip, receive a ballot in return, and proceed to one of the seven or eight tables in the room. Each of these witnesses testified that he received no instructions from the election officials as to where he should sit while marking his ballot. The tables were only a few feet apart, and each witness indicated that several other people were sitting at his table while voting. These witnesses also testified that there were no barriers on the tables to prevent them from observing how others were voting. Although all three testified that they could have seen their neighbors' ballots, only one testified that he did in fact see how someone else had voted.*fn2
The local called as witnesses the election chairman, two members of the union who had acted as tellers during this election and one who had acted as an observer. Their description of how the election had been conducted varied from that of the Secretary's witnesses in one significant respect: they testified that there ware sixteen cardboard boxes, two taped to each table,*fn3 and arranged so that the voters could mark their ballots by using the boxes to shield their votes if they desired privacy. The election chairman, Cosmo Miranda, also testified that he had admitted to the voting area as many as twenty voters at a time. He stated that he had not informed the union members that, when they voted, they were to use the cardboard boxes to shield their ballots. He assumed that the tellers had instructed each voter that the boxes could be used if desired:
Q. . . . Did everyone vote by making (sic) their ballots in those boxes?
No. Some chose not to use the boxes. They marked alongside or off the table, away from the boxes.
Did people mark their ballots anywhere but on the tables?
A. Oh, I observed one or two persons marking them up ...