[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14541]
[[Page Unknown]]
[Federal Register: June 16, 1994]
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Part VI
Department of Labor
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Office of Labor-Management Standards
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29 CFR Part 417
Local Labor Organization Officers; Procedure for Removal; Proposed Rule
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: Proposed rule.
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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]
BILLING CODE 4510-86-M
