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June 23, 1983


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


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 claim.

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 ...

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