[Federal Register Volume 59, Number 244 (Wednesday, December 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31293]
[[Page Unknown]]
[Federal Register: December 21, 1994]
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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]
BILLING CODE 4510-86-P
