The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
For yet a third time this court must assess the rationality
of the Secretary of Labor's refusal to institute suit at the
behest of plaintiff James Balanoff. As set out in the court's
previous opinions, Balanoff petitioned the Secretary to sue
District 31 of the United Steelworkers of America (USWA) for
an order overturning the results of an election held on May
31, 1981 for the post of District Director. Balanoff, the
incumbent, lost the election to Jack Parton. At the time of
the balloting, Parton was President of Local 1014, a sub-unit
within the jurisdiction of District 31. See Balanoff v.
Donovan, 549 F. Supp. 102 (N.D.Ill. 1982) (hereafter "Balanoff
I"); Balanoff v. Donovan, 569 F. Supp. 962, No. 82 C 2466
(N.D.Ill. February 18, 1983) (hereafter "Balanoff II").
A brief review of this litigation will highlight the issues
still to be resolved.*fn1 Under federal labor law, only the
Secretary of Labor may file a complaint to set aside a union
election. Balanoff requested that the Secretary take such
action, and submitted several petitions in which he alleged
that numerous irregularities had tainted the 1981 election.
The Secretary disagreed, and issued a Statement of Reasons
explaining why litigation against the union was not, in his
view, warranted. Balanoff then sued the Secretary, alleging
that the Secretary's reasoning was arbitrary and capricious.
See Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44
L.Ed.2d 377 (1975) (authorizing judicial review of such
claims). Cross-motions for summary judgment were filed limited
to a discussion of only two of Balanoff's underlying arguments,
those deemed most meritorious by plaintiff. (Plaintiff has
since informed the court by letter that he will not proceed
further on his remaining claims, but will instead stand on his
two most promising claims).
Balanoff's two claims deal with an alleged misuse of
Steelabor (the official journal of the USWA) and with an
alleged extortion of contributions to the Parton campaign. The
Steelabor charge is two-sided; Balanoff asserts that the
editors of Steelabor ran several articles on the opening of a
union hall in Parton's local solely to afford Parton favorable
publicity; plaintiff further claims that he himself received no
coverage whatsoever during the campaign of his non-partisan,
union activities. (The latter claim is referred to in this
opinion as the "blackout" claim.)
The court held in its initial opinion that the Secretary had
properly rejected the extortion
claim,*fn2 but that he had failed to make any findings or
conclusions with respect to the "blackout" charge. The case
was thus remanded to the Secretary to remedy his failure to
act. The court deferred passing on the Secretary's handling of
the remaining Steelabor allegation.
The Secretary filed a Supplemental Statement of Reasons
addressing the "blackout" charge. The Secretary concluded that
the allegation was not a proper basis for suit because
Balanoff had not raised it while exhausting internal union
appeals, and because the claim failed on the merits. The court
found neither conclusion rational or defensible in light of the
facts cited by the Secretary, and remanded the case a second
time for further action.*fn3
The Secretary responded with the Second Supplemental
Statement of Reasons now before the court. In this document,
the Secretary marshals further evidence in support of his
argument that Balanoff failed to exhaust the "blackout"
charge. The court must therefore reconsider the rationality of
this argument in light of the enhanced factual record the
Secretary has presented. The court's ultimate conclusion will
be that the Secretary's position now appears rational. The
court will then examine the Secretary's rejection of
plaintiff's remaining allegation that the union hall articles
found in Steelabor were improper. Once again, the Secretary
will be upheld.
I. Exhaustion of the "Blackout" Claim
The Secretary of Labor may institute suit to overturn a
union election only if petitioned to bring such an action by
a member of the affected union. The member must in turn have
"(1) . . . exhausted the remedies available under the
constitution and bylaws of such organization and of any parent
body, or (2) [have] . . . invoked such available remedies
without obtaining a final decision within three calendar
months after their invocation." 29 U.S.C. § 482(a).
The relevant chronology is as follows. Soon after the May
28, 1981 election, Balanoff filed a written protest with the
appropriate USWA authorities. A hearing on these charges was
held on July 31, 1981 before the International Tellers of the
USWA. After the Tellers rejected plaintiff's claims, an appeal
was taken to the International Executive Board of the USWA.
The Board heard Balanoff on August 31, 1981 and affirmed the
Tellers' decision the same day.
Balanoff concedes that no allegations pertaining to Steelabor
were raised prior to the August 31 hearing. The Secretary, in
his Supplemental Statement of Reasons, further found that the
"blackout" claim was not mentioned even at that late date.
Citing the reports of several interviews his staff had
conducted during the Department of Labor's initial
investigation of Balanoff's charges, the Secretary concluded
that Balanoff had at most complained about the union hall
articles during the August 31 hearing. For the reasons set out
in Balanoff II, this court could not agree that the scraps of
information contained in the interview reports provided a
rational basis for the inference drawn by the Secretary. The
court's remand order, however, expressly authorized the
Secretary to "investigate the circumstances of the August 31
hearing further in order to find evidence supporting his
position." Balanoff II, at 968 n. 3. The Secretary followed
this suggestion, and obtained a transcript of the August 31
hearing. He now claims that the transcript provides
indisputable evidence that plaintiff failed to exhaust his
Plaintiff concedes, though grudgingly, that the court must
hereafter assume that the transcript accurately reveals all
pertinent statements made on August 31. Plaintiff nevertheless
argues that the Secretary's legal assessment of the
significance of those statements is indefensible, for the
transcript proves that Balanoff raised his "blackout" claim
with sufficient clarity. Plaintiff grounds his entire attack
on the fact that he uttered the following statement before the
Board: "And we're charging that, the use of Steelabor to help
the campaign of Jack Parton." (Transcript of August 31 hearing
at 143-44) Balanoff urges two reasons why this statement must
be deemed sufficient. First, governing precedent teaches that
the exhaustion requirement may not be applied in a strict or
technical manner. "[B]road or imprecise language" is
sufficient so long as it reveals to the union "in some
discernible fashion" the nature of the complainant's charge.
Hodgson v. Local Union 6799, United Steelworkers of America,
403 U.S. 333, 340, 341, 91 S.Ct. 1841, 1846, 1847, 29 L.Ed.2d
510 (1971). There is "a heavy burden [placed] on the union to
show that it could not in any way discern that a member was
complaining of the violation in question." Id. at 341, 91 S.Ct.
at 1846; accord, Wirtz v. Local Union No. 125, Laborers'
International Union of North America, 389 U.S. 477, 88 S.Ct.
639, 19 L.Ed.2d 716 (1968) (exhaustion satisfied so long as
union afforded "fair
opportunity to consider and redress" the asserted violation).
As Judge Will of this Court has summarized:
[I]f the member presented an inartfully drawn
protest to the union which can be said to cover
several violations, the Secretary may litigate
other claims arguably covered by the protest when
the union can be charged with knowledge thereof
under the heavy duty placed upon it by Local 6799
to discern all various violations that a member
might be asserting.
Hodgson v. Local 734, International Brotherhood of Teamsters,
336 F. Supp. 1243, 1248 (N.D.Ill. 1972). Under these decisions,
Balanoff concludes, his ...