dissenting:
I agree that summary judgment may be granted in an action brought by the Secretary pursuant to section 402(c) of the Act (29 U.S.C. § 482(c)); but I think summary judgment was not appropriate in this case.
The district judge based his order upon a violation of section 401(e) of the Act (29 U.S.C. § 481(e)). Although at the hearing on the motion for summary judgment he observed “there isn’t any question about the fact that there are many disputed issues of fact in this case” (Tr. 38) he found that the Union had mailed notices of the 1972 election to only 2,700 of its 6,487 members, and in his order he concluded “as a matter of law that this failure to mail notice to 58% of the members of Local Union 639 justifies an irrebuttable conclusion that this violation of the statute may have affected the outcome of the election.”
In my judgment the district judge was mistaken in concluding that the violation of the statute produced or justified an “irrebuttable conclusion” that the outcome of the election may have been affected; and I think he was wrong in granting summary judgment upon that mistaken premise.
A proved violation of section 401 establishes a prima facie case that the violation “may have affected” the outcome of an election; but this prima facie case “may of course be met by evidence which supports a finding that the violation did not affect the result.” Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 506, 507, 88 S.Ct. 1743, 1752, 20 L.Ed.2d 763 (1968).
By affidavits the Union represented that over the years it had experienced great difficulty in obtaining the home addresses of members, despite repeated and persistent efforts to secure them. According to the Union many members maintained that their home addresses were none of the Union’s business and refused to disclose them. Also, said the Union, many members were transients, having no fixed addresses; and other members gave only incomplete addresses. The good faith attempts of the Union to secure addresses were recounted. The Union further represented, by affidavits of more than eighty shop stewards, that substantially every member of the Union received actual written notice of the election. According to the shop stewards they personally distributed official notices of the election to the members of Local 639 at their places of employment. The record disclosed also that of the *182members voting at the election 83% had received no mailed notice, but had received notice by personal service; that of those who received mailed notices only 10% voted, but 29% of those receiving the notices by personal service voted. The percentage of members voting was the highest in the history of the Union.
Without attempting to forecast the result of a trial I think the Union’s affidavits at least raised a genuine issue of fact as to the possible effect of the statutory violation on the outcome of the election. Summary judgment was therefore inappropriate.
Also, I do not find adequate support in the record for the District Court’s order forbidding the Union to enforce any meeting attendance requirements in the new election. Under section 401(e) of the Act (29 U.S.C. § 481(e)) the Union was entitled to impose reasonable meeting attendance requirements upon candidates. See Brennan v. Local 5724, United Steelworkers of America, 489 F.2d 884 (6th Cir. 1973). The court made no finding that justified the order depriving the Union of this right.
I respectfully dissent.