Procedure for Removal of Local Labor Organization Officers

SUMMARY: The Department of Labor is proposing to amend the regulation

pertaining to the procedure for removal of local labor organization

officers pursuant to section 401(h) of the Labor-Management Reporting

and Disclosure Act of 1959, as amended (LMRDA). Section 417.16

presently gives the Secretary of Labor the authority to bring suit

against a union after a member has filed a complaint with the Secretary

alleging that the local labor organization has failed to follow the

officer removal procedures contained in the organization's constitution

and bylaws. This proposed rule deletes that language, which purports to

give the Secretary general authority to bring suit against a union for

failing to follow its officer removal procedures even if the inadequacy

of the procedure has not been established. This change will bring the

regulation into conformity with a court of appeals decision that held

that the Secretary lacks such authority.

DATES: Interested parties may submit written comments on this proposal.

All comments must be submitted by August 15, 1994.

ADDRESSES: Written comments should be submitted to Edmundo Gonzales,

Deputy Assistant Secretary for Labor-Management Standards, Office of

the American Workplace, U.S. Department of Labor, 200 Constitution

Avenue, NW., room N-5605, Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT:

Kay H. Oshel, Chief, Division of Interpretations and Standards, Office

of Labor-Management Standards, Office of the American Workplace, U.S.

Department of Labor, 200 Constitution Avenue, NW., room N-5605,

Washington, DC 20210; (202) 219-7373. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: Title IV of the Labor-Management Reporting

and Disclosure Act of 1959, as amended (LMRDA), governs the election

and removal of labor organization officers. Section 401(h) of the LMRDA

(29 U.S.C. 481(h)) provides that if the Secretary of Labor, upon

application of a member of a local labor organization, finds after a

hearing in accordance with the Administrative Procedure Act, that the

constitution and bylaws of the labor organization do not provide an

adequate procedure for the removal of an elected officer guilty of

serious misconduct, such officer may be removed for cause shown and

after notice and hearing, by the members in good standing voting in a

secret ballot conducted by the officers of such labor organization in

accordance with its constitution and bylaws insofar as they are not

inconsistent with the provisions of Title IV of the LMRDA.

The Department has interpreted section 401(h); when read in

conjunction with section 402(a), as additionally granting the Secretary

of Labor the authority to file suit against a union for failure to

follow removal procedures whose adequacy has not been challenged.

Section 402(a) states in part that ``(a) a member of a labor

organization: (1) Who has exhausted the remedies available under the

constitution and bylaws of such organization and of any parent body, or

(2) who has invoked such available remedies without obtaining a final

decision within three calendar months after their invocation, may file

a complaint with the Secretary within one calendar month thereafter

alleging the violation of any provision of section 401 (including

violation of the constitution and bylaws of the labor organization

pertaining to the election and removal of officers) (emphasis added) *

* *.'' Subpart B of 29 CFR part 417 implements this interpretation.

In Donovan v. Hotel, Motel & Restaurant Employees Local 19, 700

F.2d 539 (9th Cir. 1983), however, the court held, after examining the

legislative history of the Act, that the LMRDA does not authorize the

Secretary to bring civil action against a union for failure to follow

its concededly adequate officer removal procedure. Local 19 rejected

the Secretary's reliance on section 402(a) as a basis for extending his

authority under section 401(h) to intervene in officer removal

proceedings where an adequate removal procedure exists. The court

concluded that those regulations found in subpart B of 29 CFR part 417

which purport to give the Secretary general authority to intervene in

union affairs upon a finding that a union has failed to follow its

adequate removal procedures are void for lack of statutory authority.

Local 19 is the only judicial decision that addresses this issue,

and the Department has determined, upon review, that the holding of the

court in Local 19 is correct. The Department therefore proposes to

delete the language in subpart B of 29 CFR part 417 granting the

Secretary authority to file suit against a union for failure to follow

its adequate officer removal procedures.

Administrative Notices

A. Executive Order 12866

The Department of Labor has determined that this rule is not a

significant regulatory action as defined in section 3(f) of Executive

Order 12866 in that it will not: (1) Have an annual effect on the

economy of $100 million or more, or adversely affect in a material way

the economy, a sector of the economy, productivity, competition, jobs,

the environment, public health or safety, or State, local, or tribal

governments or communities, (2) create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency,

(3) materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of recipients

thereof, or (4) raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

Executive Order 12866.

B. Regulatory Flexibility Act

The Agency Head has certified that this proposed rule, if issued,

will not have a significant impact on a substantial number of small

entities as defined in the Regulatory Flexibility Act. The proposed

rule will only apply to local labor organizations and would decrease

the regulation of such labor organizations. However, the Department has

determined that labor organizations regulated pursuant to the statutory

authority granted under the LMRDA do not constitute small entities.

Therefore, a regulatory flexibility analysis is not required.

C. Paperwork Reduction Act

This rule contains no information collection requirements.

Therefore, the Paperwork Reduction Act of 1980, as amended, is not

applicable.

List of Subjects in 29 CFR Part 417

Labor unions

Text of Proposed Rule

In consideration of the foregoing, the Department of Labor proposes

that subpart B of part 417 of title 29, Code of Federal Regulations, be

amended as follows:

PART 417--PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION

OFFICERS

In the authority citation for part 417 continues to read as

follows:

Authority: Secs. 401, 402, 73 Stat. 533, 534 (29 U.S.C. 481,

482); Secretary Order No. 2-93 (58 FR 42578).

2. The heading part 417, subpart B, is revised to read as follows:

Subpart B--Procedures Upon Failure of Union to Act Following

Subpart A Procedures

3. 29 CFR 417.16 is revised to read as follows:

Sec. 417.16 Initiation of proceedings.

(a) Any member of a local labor organization may file a complaint

with the Office of Labor-Management Standards alleging that following a

finding by the Assistant Secretary pursuant to Subpart A that the

constitution and bylaws of the labor organization pertaining to the

removal of officers are inadequate, or a stipulation of compliance with

the provisions of section 401(h) of the Act reached with the Director

in connection with a prior charge of the inadequacy of a union's

constitution and bylaws to remove officers, as provided in subpart A of

this part, the labor organization: (1) Has failed to act within a

reasonable time, or (2) has violated the procedures agreed to with the

Director, or (3) has violated the principles governing adequate removal

procedures under Sec. 417.2(b)

(b) The complaint must be field pursuant to section 402(a) of the

Act within one calendar month after one of the two following conditions

has been met: (1) The member has exhausted the remedies available to

him under the constitution and bylaws of the organization, or (2) the

member has invoked such remedies without obtaining a final decision

within three calendar months after invoking them.

Signed in Washington, DC this 9th day of June, 1994.

Martin Manley,

Assistant Secretary for the American Workplace.

[FR Doc. 94-14541 Filed 6-15-94; 8:45 am]

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