Balanoff v. Donovan, 82 C 2466.
| Citation | 569 F. Supp. 962 |
| Decision Date | 18 February 1983 |
| Docket Number | No. 82 C 2466.,82 C 2466. |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | James BALANOFF, Plaintiff, v. Raymond J. DONOVAN, Secretary of Labor, Defendant. |
Leon M. Despres, Thomas Geoghegan, Despres, Schwartz & Geoghegan, Chicago, Ill., for plaintiff.
Edward J. Moran, Asst. U.S. Atty., Chicago, Ill., for defendant.
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 Steelworkers 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).1
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 Article which appeared in the December, 1980 edition of Steelabor.
These documents establish, according to the Secretary, that Balanoff complained only about the favorable publicity Parton had received in Steelabor. Because no witness explicitly stated that Balanoff had also complained about a "blackout," the Secretary concludes that no such complaint was in fact registered.
The court finds this reasoning unpersuasive for the simple reason that it is doubtful that the three interviews were conducted with sufficient precision to elicit useful information. Prior to the proceedings conducted on remand, the Secretary had shown no interest whatsoever in Balanoff's "blackout" charge. The allegation had been simply ignored, and, indeed, this was the very reason why the remand was ordered. Balanoff I, 549 F.Supp. at 104-06. The Secretary cannot now rely on the failure of his investigation to generate particular factual information when that information was not relevant to the questions thought to be at issue when the investigation was conducted.2 The reports cited by the Secretary are an insufficient basis for the conclusion he draws.3
In the alternative, the Secretary dismisses Balanoff's "blackout" allegation on the merits:
In the 19 issues of Steelabor published between May 1979 and December 1980 (both inclusive; not including February 1979), Balanoff's name appeared approximately 38 times and his picture appeared 19 times as opposed to 17 and 7, respectively, for Parton. N...
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Balanoff v. Donovan
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