The opinion of the court was delivered by: VANARTSDALEN
This action was brought by the Secretary of Labor (Secretary), United States Department of Labor, alleging violations of Title IV of the Labor Management and Disclosure Act of 1959, 29 U.S.C. § 481 (the Act), in connection with an election for the presidency of the defendant labor organization, Metropolitan District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Council). The Secretary sought to have the election declared null and void and have a new election conducted under the Secretary's supervision. After a full trial, I entered judgment in favor of the Council, finding there had been no violation of either section 401(c) or 401(g) of the Act, 29 U.S.C. § 481 (c), (g). On appeal, the Court of Appeals for the Third Circuit affirmed the decision that no violation of section 401(c) had occurred but reversed the decision as to the section 401(g) violation and remanded the case "to enable the district court to determine the effect of this violation on the election." Donovan v. Metropolitan District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 797 F.2d 140 (3d Cir. 1986).
The section 401(g) violation, as defined by the court of appeals, involved a "correction" to a set of minutes of a Council delegates' meeting which contained statements unfavorable to losing presidential candidate, John McCloskey. The "correction" and an accompanying letter by Max Levine, the president of a printers' union, was distributed to members of the District Council and the recording secretaries of each of the local unions at union expense. In finding a violation of 401(g), the court of appeals stated:
It is plain that the Lavine [sic] letter served neither of the purposes of ordinary Council minutes: it did not record the Council's deliberations, and therefore did not inform the membership of what had transpired at the meeting. It is equally plain that the corrected version of Dooley's remarks, while accurate, unjustifiably highlighted those remarks with the intent of hindering McCloskey's candidacy. The use of union money to distribute those documents accordingly violated section 401(g). The mere fact that these documents were distributed in response to McCloskey's demand for a correction of the minutes does not excuse this violation, since what was distributed went far beyond the asked-for correction.
The issue therefore is whether the "correction" and accompanying letter may have affected the outcome of the election. Section 402(c) of the Act, 29 U.S.C. § 482(c), provides:
(2) that the violation of section 481 of this title may have affected the outcome of an election the court shall declare the election, if any, to be void and direct the conduct of a new election under the supervision of the Secretary . . . .
In Wirtz v. Hotel Employees Union, Local 6, 391 U.S. 492, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968), the Supreme Court established guidelines for determining when a Section 401 violation "may have affected the outcome of an election," which requires a finding made upon a preponderance of the evidence. Specifically, the Court ascribed to a proved violation of section 401 the effect of establishing a prima facie case that the violation "may have affected" the outcome. Id. at 506-7. The Court ruled that to overcome the prima facie case, the union must produce evidence, not pure conjecture, "which supports a finding that the violation did not affect the result." Id. at 507-8.
The Council contends that it has presented sufficient "tangible" evidence to rebut the Secretary's prima facie case and that it has met its burden of proof, which the Council argues is analogous to the relative burdens involved in Title VII cases in that the ultimate burden of persuasion remains with the Secretary. The tangible evidence submitted by the Council is that (1) the defeated candidate, John McCloskey, issued a rebuttal to the offending "correction" of the minutes prior to the election; (2) McCloskey made four campaign mailings after the violation occurred and in the last three mailings did not even mention the matter; and (3) the violation occurred two and one-half months before the election.
There is no direct evidence as to the effect the "correction" and accompanying letter had on the Union membership or the voting of the members in the contested mail ballot election. However, the vote for the presidency was quite close. The three candidates for president were incumbent president, Edward Coryell, John McCloskey, and William McGugan. The tallied votes were as follows:
Edward Coryell 2,828
John McCloskey 2,684
William McGugan 1,143
Total votes for President 6,655
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