Procedure for Removal of Local Labor Organization Officers

DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 417

RIN 1294-AA10

Procedure for Removal of Local Labor Organization Officers

AGENCY: Office of Labor-Management Standards. Office of the American

Workplace, Labor.

ACTION: Final rule.

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SUMMARY: This final rule amends subpart B of 29 CFR part 417, 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. The amendment 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

brings the regulation into conformity with a court of appeals decision

that held that the Secretary lacks such authority.

EFFECTIVE DATE: January 20, 1995.

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:

I. Background and Overview

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 had previously 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, on June 16,

1994, published a proposed rule in the Federal Register, 59 FR 31056,

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.

II. Comments On the Proposal and the Department's Responses and

Decision

Six comments were received from the public; four from labor

organizations and two from other organizations.

The following national and international labor organizations

commented on the proposed rule:

--Fire Fighters

--Food and Commercial Workers

--Clothing and Textile Workers

--Laborers

The other organizations which commented on the proposed rule are:

--Acuna, Casas & Araiza

--Association for Union Democracy, Inc.

The Department has carefully reviewed and considered all statements

made in the comments in developing this final rule. The following is a

summary of the comments and the Department's responses.

A. Discussion of the Comments

All four labor organizations supported the amendment. Each

organization addressed why they believed the amendment is necessary,

arguing generally that the court in Local 19 was correct in its

interpretation of the officer removal provision as not granting the

Secretary authority to file suit against a union for not following its

concededly adequate officer removal procedure and, therefore, the

Department should amend its regulatory language to reflect the court's

decision.

The Clothing and Textile Workers referenced the legislative history

of the LMRDA presented by the court in Local 19 to demonstrate that the

Secretary is not authorized to bring civil action against a union for

not following its adequate officer removal procedure.

The Clothing and Textile Workers also indicated that the Local 19

decision is buttressed by the general proposition that Congress

intended that unions should govern their own internal affairs as

expressed by the Supreme Court:

In drafting Titles II through Title VI, Congress was guided by the

general principle that unions should be left free to ``operate their

own affairs as far as possible.'' S. Rep. No. 1684, 85th Cong., 2d

Sess. 4-5 (1958) * * * Given certain minimum standards, ``individual

members are fully competent to regulate union affairs.'' Steelworkers

v. Sadlowski, 457 U.S. 102, 117 (1982).

The Laborers also noted that the legislative history of the LMRDA

indicates that Congress did not intend the Secretary's authority to

include suits to compel union compliance with adequate removal

procedures. In addition, the Laborers noted that the amendment does not

leave aggrieved members without a remedy, because any member who

believes his union has failed to comply with its constitutional

procedures may bring a contract enforcement action in federal court and

most union members may bring internal union charges against union

officers who fail to carry out their constitutional duties.

The Fire Fighters noted that it is important for the Department to

file suit if a union does not have an adequate officer removal

procedure ``to ensure that a fair democratic procedure be followed,''

but the Department should not interfere with a union's adequate officer

removal procedures.

The Food and Commercial Workers support the amendment but also

suggested the following three additional changes to the regulations in

order to bring subpart B more closely into conformity with Local 19:

(1) Delete ``, or (3) has violated the principles governing

adequate removal procedures under Sec. 417.2(b)'' at the end of

proposed Sec. 417.16(a). Any member alleging that the local union does

not have adequate procedures for the removal of officers guilty of

serious misconduct must follow the procedures of subpart A of 29 CFR

part 417. Therefore, the international argued that this language is

merely a duplication of subpart A procedures for determining whether

the union's officer removal procedures are adequate.

(2) Change the language in proposed Sec. 417.16(a) which reads

``(2) has violated the procedures agreed to with the Director'' to the

following: ``(2) with respect to the case which was the subject of the

prior application filed with the Office of Labor-Management Standards

charging inadequate procedures, has failed to implement the provisions

agreed to with the Director.'' The international indicated that this

change would clarify that the limits of the authority of the Department

in officer removal cases are set by the substantive procedure of

section 401(h) of the LMRDA.

(3) Change ``Title IV'' in the first sentence of Sec. 417.17 to

``section 401(h).'' The international believes that this modification

would clarify the scope of the regulation because Title IV is

``certainly inexact and potentially misleading.''

Both of the other commenters opposed the amendment. The firm of

Acuna, Casas & Araiza argued that the amendment is ambiguous as written

because it fails to state any steps the Secretary will take after a

member has exhausted internal union procedures. They further argued

that Local 19 is the only judicial decision interpreting the officer

removal regulation and, therefore, is not definitive.

The Association for Union Democracy, Inc. generally argued that the

court's reasoning in Local 19 is unpersuasive and the Department should

not amend its regulation based on a single court decision. The

Association disagreed with the court's reliance on Senate Report No.

187 and the Supreme Court's opinion in United Steelworkers v. Sadlowski

for the proposition that Congress did not intend for courts to

``interfere'' in internal union affairs. In summary, this organization

argued that an analysis of other judicial decisions, the language of

Title IV governing the minimum standards for election procedures, the

overall purpose of the LMRDA as well as the way in which some unions

operate reveal that Congress intended the Secretary to have the

authority to compel a union to follow its adequate officer removal

procedure.

The Association for Union Democracy stated,

Our primary concern about the Department's proposal to concede

lack of authority in this area stems from our knowledge that union

constitutions often do not mean what they say; or they mean only

what the union officers say they mean. Indeed there is a whole body

of judicial precedent, beginning with English v. Cunningham, 284

F.2d 283 (D.C. Cir. 1980), that accords judicial deference to the

interpretation of union constitutions by union officials. Moreover,

by virtue of their effective control over the implementation of

constitutional process, union officers can often subvert that

process and render facially adequate removal procedures meaningless,

and thus inadequate in reality.

B. The Department's Responses and Decision

After considering the comments, the Department has decided to amend

the regulations governing the officer removal procedures of local labor

organizations as proposed at 59 FR 31056 with slight revisions as

discussed below.

We agree with the comments by the labor organizations which support

the court's interpretation in Local 19 of the Act's officer removal

provision as limiting the Secretary's authority to file suit against a

union to cases in which the union's officer removal procedure has been

determined to be inadequate by the Department.

After carefully considering the comments of the Association for

Union Democracy and Acuna, Casas and Araiza opposing the amendment and

questioning the court's reasoning in Local 19, the Department has

concluded that their arguments are not as persuasive as those of the

court which clearly demonstrate through a thorough analysis of relevant

legislative history, prior judicial decisions, and the language of the

Act, that Congress did not intend section 401(h) to grant the Secretary

the authority to file suit against a union for failure to follow its

concededly adequate officer removal procedures. Furthermore, a union

member is not without a legal remedy if his organization fails to

follow its adequate removal procedure. Any union member, as referenced

in the comments of the Laborers, may sue his or her labor organization

for failure to comply with those provisions of its constitution and

bylaws governing officer removal procedures. In response to Acuna,

Casas and Araiza's argument that the amendment fails to state any steps

the Secretary will take after a member has exhausted internal union

procedures, we note that this matter is set forth in 29 CFR 417.17.

In response to the United Food and Commercial Workers' suggestion

of additional changes to the officer removal regulations, the

Department has concluded the following:

(1) The language of 29 CFR 417.16(a)(3) is not duplicative of

subpart A because each provision addresses different aspects of the

Department's officer removal regulatory process. Subpart A of 29 CFR

part 417 prescribes rules for determining the adequacy of a union's

constitution and bylaws for the removal of officers of a local labor

organization. If the Department determines that a union's officer

removal provision is inadequate, the union may resolve this matter by

conducting a secret ballot vote by the members in good standing after

notice and hearing, as prescribed by section 401(h) of the Act. 29 CFR

417.16(a)(3) provides that a member may file a complaint with the

Department if the union's implementation of this subsequent remedial

measure of notice, hearing, and secret ballot vote is not conducted in

accordance with the principles governing adequate removal procedures as

defined by Sec. 417.2(b). Hence, the language of 29 CFR 417.16(a)(3)

does not duplicate that of subpart A. It references the adequacy of

remedial action taken after a subpart A procedure. The Department,

therefore, is not deleting any language of 29 CFR 417.16(3). However,

in order to clarify that subpart B covers the failure of a union to act

appropriately after a subpart A procedure the heading will be changed

to read: Procedures Upon Failure of Union to Take Appropriate Remedial

Action Following Subpart A Procedures.

(2) The Department believes that the proposed language in

Sec. 417.16(a) is clear and is consistent with the Local 19 decision.

When a union has entered into a stipulation with the Director to comply

with the provisions of section 401(h) and thereafter violates the

procedures agreed to in that stipulation, subpart B action is

appropriate. The proposed language in Sec. 417.16(a) addresses this

situation and the Department does not believe that any amendment to the

language is necessary or desirable.

(3) The Department agrees that amending certain language in 29 CFR

417.17 would assist in defining the scope of the regulation. Therefore

the Department will amend the language of Sec. 417.17 by replacing the

words ``Title IV'' with ``section 401(h)''.

Administrative Requirements

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 rule will not have a

significant impact on a substantial number of small entities as defined

in the Regulatory Flexibility Act. The 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 Final Rule

In consideration of the foregoing, the Department of Labor hereby

amends subpart B of part 417 of Title 29, Code of Federal Regulations,

as follows:

Part 417--PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION

OFFICERS

1. 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's Order No. 2-93 (58 FR 42578).

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

follows:

Subpart B--Procedures Upon Failure of Union to Take Appropriate

Remedial Action Following Subpart A Procedures

3. 29 CFR 417.16 and 417.17 are 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 filed 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.

Sec. 417.17 Investigation of complaint and court action.

The Office of Labor-Management Standards shall investigate such

complaint, and if upon such investigation the Secretary finds probable

cause to believe that a violation of section 401(h) of the Act has

occurred and has not been remedied, the Secretary shall within 60 days

after the filing of such complaint, bring a civil action against the

labor organization in the district court of the United States for the

district in which such labor organization maintains its principal

office, to direct the conduct of a hearing and vote upon the removal of

officer(s) under the supervision of the Assistant Secretary as provided

in section 402(b) of the Act.

Signed in Washington, DC, this 14th day of December, 1994.

Charles L. Smith,

Special Assistant.

[FR Doc. 94-31293 Filed 12-20-94; 8:45 am]

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