"a candidacy limitation which renders 93% of union members ineligible for office can hardly be a 'reasonable qualification.'" Id. at 502.
The reasoning of the court is equally applicable with regard to the office holding rule in the case sub judice. Assessment of the qualifications of candidates for Chief Steward is best left to the general membership voting in the election, for such is the model of union democracy envisaged by Congress. As the Supreme Court has stated, Congress' main concern was with the procedure of union elections and their adherence to the principles of democracy. Thus, the reasonableness of qualifications for office depends to a great degree on the extent to which members are not prevented from running for office and the extent to which the membership can make a free electoral decision. If a rule requiring prior office holding is unduly restrictive, surely a rule requiring current office holding is even more restrictive, for it further limits the number of eligible candidates.
As in Hotel Employees, here too the overwhelming majority of Local members are precluded from election to a particular office because of their failure to hold a different union office, for only the 52 members holding the office of Steward were eligible to run for Chief Steward. Thus 96.4% were ineligible.
Having determined that both of the rules at issue here violate § 401(e), we consider next whether the violation "may have affected" the outcome of the election. As recognized in Wirtz v. Hotel Employees, 391 U.S. at 506-08, a proved violation of § 401 establishes a rebuttable prima facie case that the violation may have affected the outcome. The Supreme Court found that the prima facie case established by the violation was not met by evidence showing that the result was not affected. The court held that there was no tangible evidence against the reasonable possibility that the wholesale exclusion of members did not affect the outcome. Neither the substantial defeat of candidates of the same party as those disqualified nor the lack of evidence that the disqualified nominees were proven vote-getters were considerations which constituted proof that the election result was not affected. Id. at 508.
As in Hotel Employees, any suggestion here that the results of an election in which nominees were disqualified were not affected is but pure conjecture. Merely because Lacy was not affiliated with any party or slate but sought office as an independent does not mean that the election outcome was not affected by his ineligibility. Similarly, just because the election for Chief Steward was won by the Candidate of a slate opposed to the slate with which Kelley was affiliated does not show that the outcome was not affected by Kelley's ineligibility. Indeed, Kelley's proven vote-getting ability is demonstrated by his election to the positions from which he had to resign when he was transferred. Of course, we cannot know for sure how the elections for Sectional Board Member and Chief Steward might have been affected by the rules challenged by the Secretary, but there is no evidentiary support for a finding that the prima facie showing that they were affected has been successfully rebutted.
Accordingly, since the § 401 violation may have affected the outcome of the elections for Sectional Board Member representing Section 7, and for Chief Steward, pursuant to § 402(c) of the Act this court declares the 1981 election for those two positions void. We therefore order a new election for those offices, to be conducted under the Secretary's supervision, within 120 days. We take this action with full awareness of the financial situation of the Local, but as we shall explain, we do not believe that the Local need be put to any large additional expense as a result of our decision.
Several Courts of Appeals have recognized that a suit under Section 402 of the Act seeking to set aside a union election is governed by equitable principles and subject to the flexibility and practicality that characterizes equity jurisprudence. Marshall v. Local 1010, United Steelworkers of America, 664 F.2d 144, 149 (7th Cir. 1981); Usery v. International Organization of Masters, Mates and Pilots, 538 F.2d 946 (2nd Cir. 1976); Kupau v. Yamamoto, 622 F.2d 449 (9th Cir. 1980). Furthermore, as provided in § 402(b), the court may take such action as is proper to preserve the assets of the Local, and at least one court has expressed its concern with the possibility of unnecessary expense to union members due to a new election. Usery v. International Organization of Masters, Mates and Pilots, 538 F.2d at 951.
In the case sub judice, the Local urges us to apply equitable principles, and after taking into account the expense of a new election to a union already in financial difficulty, refrain from ordering a new election supervised by the Secretary. We have seriously considered this argument, and had we been convinced that the Local would indeed be forced to hold a separate special election at a cost of five or six thousand dollars, we would have hesitated before ordering such a new election. However, the Local has available to it a means to avoid such expense, for every December, the members elect Stewards. By scheduling the new election for Chief Steward and Section Board Member in conjunction with and to be held concurrently with the regularly scheduled election for Stewards, much of the cost of holding a separate new election would surely be saved. As always, the December election would of course be held anyway, and the cost of such a regular election borne by the Local despite its current financial condition. Thus, though additional cost will no doubt be involved, even with such a procedure, the Local will itself thereby be able to preserve its own assets, while complying with the law enacted by Congress. However, we do not require that the new supervised election be held concurrently with the regular December election, in order to permit the Local to retain sufficient flexibility to conduct its affairs free from unnecessary governmental interference, as was the intent of Congress. In any event, a new election, supervised by the Secretary, for the positions of Chief Steward and Sectional Board Member representing Section 7, shall be held within 120 days.
Judgment is entered in favor of the plaintiff and against the defendant. In accordance with the attached Opinion, a new election, supervised by the Secretary of Labor, for the offices of Chief Steward and Sectional Board Member for Section 7, is to be held within 120 days of the date of this Order.
IT IS SO ORDERED.