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
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,  United Steelworkers of America,
403 U.S. 333 [91 S.Ct. 1841, 29 L.Ed.2d 510]
(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).
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
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
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
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 ...