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September 9, 1982


The opinion of the court was delivered by: Getzendanner, District Judge.


On May 28, 1981 an election was held for the Directorship of District 31, United Steelworkers of America ("USWA"). Plaintiff James Balanoff, the incumbent, lost by a vote of 24,381 to 22,237. The winner was Jack Parton. Parton had previously served as President of Local 1014, a sub-unit within the jurisdiction of District 31.

It is Balanoff's belief that the May 28 election was tainted by numerous violations of federal law. Balanoff alleges that he is a "leader of dissidents within the USWA" and that his re-election bid "was opposed by all the principal" officers of the International USWA. (Complaint, ¶ 6). His substantive charges boil down to the following accusation:

  Determined to eliminate plaintiff as an elected
  official, the International Union directly used
  official union resources and assets to promote the
  candidacy of plaintiff's opponent, Jack Parton, or
  approved their use for that purpose.


Soon after the May 28 ballotting plaintiff invoked internal union remedies by filing an election protest with the appropriate USWA authorities. This protest was denied. Plaintiff then filed a timely complaint with the defendant Secretary of Labor under section 402 of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 482. Plaintiff petitioned the Secretary to initiate suit to void the May 28 election. The Secretary denied plaintiff's request and ruled that no action would be filed. The Secretary's reasoning was spelled out in a thirteen page "Statement of Reasons."

The instant lawsuit challenges the Secretary's refusal to initiate suit. Plaintiff argues that the Secretary's decision is arbitrary and capricious, and amounts to an illegal condonation of serious election irregularities. The Secretary responds with a motion to dismiss, or in the alternative for summary judgment, arguing that he properly rejected each of the numerous allegations Balanoff raised in his administrative complaint. Balanoff's reply consists of a cross-motion for summary judgment in which he challenges the Secretary's disposition of only two of his claims.*fn1 The Court will now rule on the legality of the Secretary's handling of these two charges.

I. Plaintiff's Rights under the LMRDA

The LMRDA does not permit a defeated candidate such as Balanoff to sue directly to overturn the results of the election he lost. Only the Secretary of Labor is empowered to bring such an action. Trbovich v. Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972). Individuals in Balanoff's position can merely file with the Secretary (as Balanoff did here) a complaint requesting that litigation commence. The Secretary's obligations upon receipt of the complaint are two-fold: He "shall investigate" the complaint's allegations and he "shall" file suit against the offending union if his investigation discloses probable cause to believe that a violation of the LMRDA occurred which "may have affected the outcome of the election." 29 U.S.C. § 482 (b); see Wirtz v. Bottle Blowers, Assn., 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968); Howard v. Hodgson, 490 F.2d 1194, 1197 (8th Cir. 1973).

Prior to the Supreme Court's decision in Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), it was unclear whether the courts had jurisdiction to examine a refusal by the Secretary to sue. The Secretary's position was that his decision was unreviewable; any other result, he argued, would undercut the Congressional scheme which places primary reliance on the Secretary's expertise in determining which post-election suits should go forward. The Bachowski Court rejected this claim as overbroad, holding that the Secretary had "failed to make a showing of `clear and convincing evidence' that Congress meant to prohibit all judicial review of his decision." Id. at 568, 95 S.Ct. at 1858.*fn2 The Court agreed, however, that "a congressional purpose narrowly to limit the scope of judicial review of the Secretary's decision can, and should, be inferred in order to carry out congressional objective in enacting the LMRDA." Id.

The Bachowski Court narrowed the allowable "scope of review" in two ways. First, it adopted the deferential "arbitrary and capricious" standard under which the Secretary's action can be set aside only if shown to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A). Second, the Court restricted the form of inquiry which can be made during an examination into the Secretary's behavior:

  Except in what must be the rare case, the court's
  review should be confined to examination of the
  "reasons" statement, and the determination whether the
  statement, without more, evinces that the Secretary's
  decision is so irrational as to constitute the
  decision arbitrary and capricious. Thus, review may
  not extend to cognizance or trial of a complaining
  member's challenge to the factual bases for the
  Secretary's conclusion either that no violation
  occurred or that they did not affect the outcome of
  the election.

Dunlop v. Bachowski, supra, 421 U.S. at 572-73, 95 S.Ct. at 1860-61.

The Court also gave some indication of the type of "rare" case in which a more sweeping ...

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