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BALANOFF v. DONOVAN

February 18, 1983

JAMES BALANOFF, PLAINTIFF,
v.
RAYMOND J. DONOVAN, SECRETARY OF LABOR, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

By prior order, this litigation was remanded to the Secretary of Labor for consideration of plaintiff James Balanoff's assertion that he was a victim of a news "blackout" imposed by the editors of Steelabor, the official journal of the United Steel-workers of America (USWA). Balanoff v. Donovan, 549 F. Supp. 102 (N.D.Ill. 1982) (Balanoff I). Balanoff, a former Director of District 31 of the USWA, lost a reelection bid to Jack Parton on May 28, 1981, and believes that the assertedly impermissible "blackout" was a substantial contributing factor in his defeat. Balanoff sues the Secretary over the latter's refusal to sue District 31 (under the authority of 29 U.S.C. § 482) for an order invalidating the May 28, 1981 election. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975).*fn1

In response to this court's order, the Secretary filed a Supplemental Statement of Reasons addressing the "blackout" issue. The court finds that this Statement fails to disclose a "rational and defensible" basis for rejecting Balanoff's claim, (DeVito v. Shultz, 72 L.R.R.M. 2682, 2683 (D.D.C. 1969)) and consequently orders a second remand for further supplemental proceedings.

The Secretary ruled in the alternative, finding first that Balanoff failed to exhaust his "blackout" claim during internal union proceedings:

  Pursuant to the Court's Order a review was made
  of the facts disclosed during the investigation
  of Mr. Balanoff's complaint. Re-examination of
  these facts disclosed that at no time during the
  pursuit of his internal union remedies did Mr.
  Balanoff object or protest in regard to any
  so-called blackout on the part of the editors of
  Steelabor. . . . Since plaintiff was aware of the
  alleged violation but failed to include a protest
  to the same during the exhaustion of his internal
  union remedies, the Secretary is precluded from
  instituting suit to set aside the election on the
  basis of that alleged violation in accordance
  [with] the Supreme Court's decision in Hodgson v.
  Local 6759, [6799] United Steelworkers of America,
  403 U.S. 333 [91 S.Ct. 1841, 29 L.Ed.2d 510]
  (1971).

(Supplemental Statement of Reasons) This contention rests principally, if not entirely, on the Secretary's factual determination that Balanoff failed to raise the "blackout" issue before the union. For this finding to be upheld as non-arbitrary and non-capricious, sufficient support must appear in the administrative record. Fay v. Marshall, 106 L.R.R.M. 2047, 2048 (D.Nev. 1980); Fletcher v. Dunlop, 91 L.R.R.M. 2113 (N.D.Ill. 1975).

The record, to the extent it pertains to the exhaustion question, consists of "(1) Balanoff's complaints to the union . . .; (2) the transcript of the union hearing at which Balanoff's complaint was considered; (3) the written reports of interviews which were conducted of Balanoff and of other persons during the investigation." (Affidavit of Richard G. Hunsucker, Director of the Office of Labor-Management Standards Enforcement, United States Department of Labor) The transcript referred to above details the hearing Balanoff received on July 31, 1981 before the International Tellers of the USWA. Balanoff appealed the Tellers' adverse decision to the International Executive Board of the USWA. The Board heard Balanoff on August 31, 1981, and rejected his arguments the same day. No transcript of the August 31 hearing was ever prepared.

Admittedly, neither Balanoff's written complaints nor the transcript of July 13 hearing contains a reference to a "blackout" claim. Neither document, however, casts light on whether Balanoff raised the issue orally, as he claims, on August 31. The written interview reports contain the only evidence in the administrative record on this point.

Investigator Kenneth L. Zeeb interviewed Balanoff on October 16, 1981. Zeeb's "Report of Interview" contains the following passage:

  Regarding Balanoff's allegation concerning the
  use of Steelabor as a campaign tool for Parton,
  he stated that the USWA Executive Board
  considered this allegation on August 31, 1981. He
  stated that the past District # 33 Director,
  Lynus Wampler, would back-up this statement, and
  that possibly District # 38 Director Bob Petris
  would also verify his statement.

Zeeb interviewed Wampler by telephone, and learned the following information:

  After the District 30 decision, the Executive
  Board heard the appeal of James Balanoff of
  District 31. As part of his appeal, Balanoff
  protested two articles which featured his
  opponent, Jack Parton, which were contained in
  two consecutive editions of Steelabor in late 1980.

The final document in the record is a memorandum to the files authored by Zeeb concerning an interview between William Kane, a Labor Department official located in Pittsburgh, and James D. English, Associate General Counsel of the USWA. Kane told Zeeb:

  English stated that the Board considered the
  Article of the Local 1014 "McBride Hall"
  Dedication which appeared in the November 1980
  edition of Steelabor. English stated that he could
  not recall if the Board considered the "McBride
  Hall" Dedication ...

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