[Title 29 CFR 417]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 29 - LABOR]
[Subtitle B - Regulations Relating to Labor]
[Chapter IV - OFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABOR]
[Subchapter A - LABOR-MANAGEMENT STANDARDS]
[Part 417 - PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION OFFICERS]
[From the U.S. Government Printing Office]
29LABOR22002-07-012002-07-01falsePROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION OFFICERS417PART 417LABORRegulations Relating to LaborOFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABORLABOR-MANAGEMENT STANDARDS
PART 417--PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION OFFICERS--Table of Contents
General
Sec.
417.1 Purpose and scope.
417.2 Definitions.
Subpart A--Procedures To Determine Adequacy of Constitution and Bylaws
for Removal of Officers of Local Labor Organizations
417.3 Initiation of proceedings.
417.4 Pre-hearing conference.
417.5 Notice.
417.6 Powers of Administrative Law Judge.
417.7 Transcript.
417.8 Appearances.
417.9 Evidence; contumacious or disorderly conduct.
417.10 Rights of participants.
417.11 Objections to evidence.
417.12 Proposed findings and conclusions.
417.13 Initial decision of Administrative Law Judge.
417.14 Form and time for filing of appeal with the Assistant Secretary.
417.15 Decision of the Assistant Secretary.
Subpart B--Procedures Upon Failure of Union to Take Appropriate Remedial
Action Following Subpart A Procedures
417.16 Initiation of proceedings.
417.17 Investigation of complaint and court action.
417.18 Hearings--removal of officers of local labor organizations.
417.19 Assistant Secretary's representative.
417.20 Notice of hearing.
417.21 Transcript.
417.22 Vote among members of the labor organization.
417.23 Report to the Assistant Secretary.
417.24 Appeal to the Assistant Secretary.
417.25 Certification of results of vote.
Authority: Secs. 401, 402, 73 Stat. 533, 534 (29 U.S.C. 481, 482);
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.
Source: 29 FR 8264, July 1, 1964, unless otherwise noted.
[[Page 156]]
General
Sec. 417.1 Purpose and scope.
Section 401(h) of the Labor-Management Reporting and Disclosure Act
of 1959 (29 U.S.C. 481) provides that if, upon application of any member
of a local labor organization, the Secretary of Labor finds, after
hearing in accordance with the Administrative Procedure Act, that the
constitution and bylaws of such 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. Section 401(i) (29 U.S.C. 481) requires the Secretary to
promulgate rules and regulations prescribing minimum standards and
procedures for determining the adequacy of the removal procedures
referred to in section 401(h). Section 402(a) (29 U.S.C. 482) provides
that a member of a labor organization who has exhausted the available
internal remedies of such organization and of any parent body, or who
has invoked such remedies without obtaining a final decision within
three months, may file a complaint with the Secretary within one month
thereafter alleging violation of section 401 (including violation of the
constitution and bylaws of the labor organization pertaining to the
removal of officers). Section 402(b) (29 U.S.C. 482) provides that upon
suit initiated by the Secretary, a Federal court may direct the conduct
of a hearing and vote upon the removal of officers under the supervision
of the Secretary, and in accordance with such rules and regulations as
the Secretary may prescribe. It is the purpose of this part to implement
those sections by prescribing regulations relating to the procedures and
standards for determining the adequacy of removal procedures and the
procedures for holding elections for the removal of officers.
Sec. 417.2 Definitions.
(a) Chief, DOE means the Chief of the Division of Enforcement within
the Office of Labor-Management Standards, Employment Standards
Administration.
(b) Adequate procedure shall mean any procedure which affords
reasonable and equitable opportunity for (1) trial of an officer(s)
charged with serious misconduct, and (2) removal of such an officer(s)
if found guilty, and which contains the elements set forth in each of
the subparagraphs of this paragraph: Provided, however, That any other
procedure which provides otherwise reasonable and equitable measures for
removal from office may also be considered adequate:
(1) A reasonable opportunity is afforded for filing charges of
serious misconduct against any elected officer(s) without being subject
to retaliatory threats, coercion, or acts of intimidation.
(2) The charges of serious misconduct are communicated to the
accused officer(s), and reasonable notice is given the members of the
organization, reasonably in advance of the time for hearing thereon.
(3) Subject to reasonable restrictions, a fair and open hearing upon
such charges is held after adequate notice and adequate opportunity is
afforded for testimony or the submission of evidence in support of or in
opposition to such charges. Within a reasonable time following such
hearing, a decision is reached as to the guilt or innocence of the
accused.
(4) If the hearing upon such charges is held before a trial
committee or other duly authorized body, reasonable notice of such
body's findings is given to the membership of the organization promptly.
(5) If such accused officer(s) is found guilty, he may be removed by
a procedure which includes:
(i) A secret ballot vote of the members at an appropriately called
meeting, or
(ii) A vote of a trial committee or other duly authorized body,
subject to appeal and review by the members voting by a secret ballot at
an appropriately called meeting.
(6) Within a reasonable time after the charges of serious misconduct
are filed with the labor organization final disposition (including
appellate procedures) is made of the charges.
(c) Elected officer means any constitutional officer, any person
authorized to
[[Page 157]]
perform the functions of president, vice-president, secretary,
treasurer, or other executive functions of a labor organization, and any
member of its executive board or similar governing body.
(d) Cause shown means substantial evidence of serious misconduct.
(e) Interested person means any person or organization whose
interests are or may be affected by a proceeding.
(f) Court means the district court of the United States in the
district in which the labor organization in question maintains its
principal office.
[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964; 29 FR
9537, July 14, 1964; 50 FR 31310, Aug. 1, 1985; 62 FR 6093, Feb. 10,
1997; 63 FR 33779, June 19, 1998]
Subpart A--Procedures To Determine Adequacy of Constitution and Bylaws
for Removal of Officers of Local Labor Organizations
Sec. 417.3 Initiation of proceedings.
(a) Any member of a local labor organization who has reason to
believe that:
(1) An elected officer(s) of such organization has been guilty of
serious misconduct, and
(2) The constitution and bylaws of his organization do not provide
an adequate procedure for the removal of such officer(s), may file with
the Office of Labor-Management Standards a written application, which
may be in the form of a letter, for initiation of proceedings under
section 401(h) of the Act.
(b) An application filed under paragraph (a) of this section shall
set forth the facts upon which it is based including a statement of the
basis for the charge that an elected officer(s) is guilty of serious
misconduct; and shall contain:
(1) Information identifying the labor organization and the officer
or officers involved, and
(2) Any data such member desires the Office of Labor-Management
Standards to consider in connection with his application.
Sec. 417.4 Pre-hearing conference.
(a) Upon receipt of an application filed under Sec. 417.3, the
Chief, DOE shall cause an investigation to be conducted of the
allegations contained therein, and if he finds probable cause to believe
that the constitution and bylaws of the labor organization do not
provide an adequate procedure for the removal of an elected officer(s)
guilty of serious misconduct he shall:
(1) Advise the labor organization of his findings and
(2) Afford such labor organization the opportunity for a conference
to be set not earlier than 10 days thereafter except where all
interested persons elect to confer at an earlier time. Any such
conference shall be conducted for the purpose of hearing the views of
interested persons and attempting to achieve a settlement of the issue
without formal proceedings.
(b)(1) If:
(i) The labor organization declines the opportunity to confer
afforded under paragraph (a) of this section, and fails to undertake
compliance with the provisions of section 401(h) of the Act, or if
(ii) After consideration of any views presented by the labor
organization the Chief, DOE still finds probable cause to believe that
the removal procedures are not adequate and if agreement for the
adoption of adequate procedures for removal has not been achieved and
the labor organization refuses to enter into a stipulation to comply
with the provisions of section 401(h) of the Act, the Chief, DOE shall
submit his findings and recommendations to the Assistant Secretary.
(2) Upon consideration of the Chief, DOE's recommendations, the
Assistant Secretary may order a hearing to be conducted before an
Administrative Law Judge duly assigned by him to receive evidence and
arguments (i) on the applicability of section 401(h) of the Act to the
labor organization involved, and (ii) on the question of whether its
constitution and bylaws provide an adequate procedure for the removal of
an elected union officer guilty of serious misconduct.
[29 FR 8264, July 1, 1964, as amended at 50 FR 31310, Aug. 1, 1985; 62
FR 6093, Feb. 10, 1997]
[[Page 158]]
Sec. 417.5 Notice.
Notice of hearing shall be given not less than 10 days before such
hearing is held unless the parties agree to a shorter notice period.
Such notice shall be transmitted to the labor organization and the
officer(s) accused of misconduct and other interested persons, insofar
as they are known, and shall inform them of:
(a) The time, place, and nature of the hearings;
(b) The legal authority and jurisdiction under which the hearing is
to be held; and
(c) The matters of fact and law asserted.
The Labor organization shall inform its members of the provisions of the
notice and copies of the notice shall be made available for inspection
at the offices of the labor organization.
Sec. 417.6 Powers of Administrative Law Judge.
The designated Administrative Law Judge shall have authority:
(a) To give notice concerning and to conduct hearings;
(b) To administer oaths and affirmations;
(c) To issue subpoenas;
(d) To rule upon offers of proof and receive relevant evidence;
(e) To take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(f) To regulate the course of the hearing;
(g) To hold conferences for the settlement or simplification of the
issues by consent of the parties;
(h) To dispose of procedural requests or other matters;
(i) To limit the number of witnesses at hearings, or limit or
exclude evidence or testimony which may be irrelevant, immaterial, or
cumulative;
(j) If appropriate or necessary to exclude persons or counsel from
participation in hearings for refusing any proper request for
information or documentary evidence, or for contumacious conduct;
(k) To grant continuances or reschedule hearings for good cause
shown;
(l) To consider and decide procedural matters;
(m) To take any other actions authorized by the regulations in this
part.
The Administrative Law Judge's authority in the case shall terminate
upon his filing of the record and his initial decision with the
Assistant Secretary, or when he shall have withdrawn from the case upon
considering himself disqualified, or upon termination of his authority
by the Assistant Secretary for good cause stated. However, the
Administrative Law Judge's authority may be reinstated upon referral of
some or all the issues by the Assistant Secretary for rehearing. This
authority will terminate upon certification of the rehearing record to
the Assistant Secretary.
Sec. 417.7 Transcript.
An official reporter shall make the only official transcript of the
proceedings. Copies of the official transcript shall be made available
upon request addressed to the Assistant Secretary in accordance with the
provisions of part 70 of this title.
[50 FR 31310, Aug. 1, 1985, as amended at 63 FR 33779, June 19, 1998]
Sec. 417.8 Appearances.
The Department of Labor does not maintain a register of persons or
attorneys who may participate at hearings. Any interested person may
appear and be heard in person or be represented by counsel.
Sec. 417.9 Evidence; contumacious or disorderly conduct.
(a) Formal rules of evidence or procedure in use in courts of law or
equity shall not obtain. Rules of evidence are to be within the
discretion of the Administrative Law Judge. However, it shall be the
policy to exclude testimony or matter which is irrelevant, immaterial,
or unduly repetitious.
(b) Contumacious or disorderly conduct at a hearing may be ground
for exclusion therefrom. The refusal of a witness at any hearing to
answer any questions which have been ruled to be proper shall, in the
discretion of the Administrative Law Judge be ground for striking all
testimony previously
[[Page 159]]
given by such witness on related matter.
(c) At any stage of the hearing the Administrative Law Judge may
call for further evidence or testimony on any matter. After the hearing
has been closed, no further information shall be received on any matter,
except where provision shall have been made for it at the hearing, or
except as the Administrative Law Judge or Assistant Secretary may direct
by reopening the hearing.
[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]
Sec. 417.10 Rights of participants.
Every interested person shall have the right to present oral or
documentary evidence, to submit evidence in rebuttal, and to conduct
such examination or cross-examination as may be required for a full and
true disclosure of the facts (subject to the rulings of the
Administrative Law Judge), and to object to admissions or exclusions of
evidence. The Department of Labor, through its officers and attorneys
shall have all rights accorded interested persons by the provisions of
this subpart A.
Sec. 417.11 Objections to evidence.
Objections to the admission or exclusion of evidence may be made
orally or in writing, but shall be in short form, stating the grounds
for such objection. The transcript shall not include argument or debate
thereon except as required by the Administrative Law Judge. Rulings on
such objections shall be a part of the transcript. No such objections
shall be deemed waived by further participation in the hearing. Formal
exceptions are unnecessary and will not be taken to rulings on
objections.
Sec. 417.12 Proposed findings and conclusions.
Within 10 days following the close of hearings, interested persons
may submit proposed findings and conclusions to the Administrative Law
Judge, together with supporting reasons therefor, which shall become a
part of the record.
Sec. 417.13 Initial decision of Administrative Law Judge.
Within 25 days following the period for submitting proposed findings
and conclusions, the Administrative Law Judge shall consider the whole
record, file an initial decision as to the adequacy of the constitution
and bylaws for the purpose of removing officers with the Assistant
Secretary, and forward a copy to each party participating in the
hearing. His decision shall become a part of the record and shall
include a statement of his findings and conclusions, as well as the
reasons or basis therefor, upon all material issues.
Sec. 417.14 Form and time for filing of appeal with the Assistant Secretary.
(a) An interested person may appeal from the Administrative Law
Judge's initial decision by filing written exceptions with the Assistant
Secretary within 15 days of the issuance of the Administrative Law
Judge's initial decision (or such additional time as the Assistant
Secretary may allow), together with supporting reasons for such
exceptions. Blanket appeals shall not be received. Impertinent or
scandalous matter may be stricken by the Assistant Secretary, or an
appeal containing such matter or lacking in specification of exceptions
may be dismissed.
(b) In the absence of either an appeal to the Assistant Secretary or
review of the Administrative Law Judge's initial decision by the
Assistant Secretary on his own motion, such initial decision shall
become the decision of the Assistant Secretary.
Sec. 417.15 Decision of the Assistant Secretary.
Upon appeal filed with the Assistant Secretary pursuant to
Sec. 417.14, or within his discretion upon his own motion, the complete
record of the proceedings shall be certified to him; he shall notify all
interested persons who participated in the proceedings; and he shall
review the record, the exceptions filed and supporting reasons, and
shall issue a decision as to the adequacy of the constitution and bylaws
for the purpose of removing officers, or shall order such further
proceedings as he
[[Page 160]]
deems appropriate. His decision shall become a part of the record and
shall include a statement of his findings and conclusions, as well as
the reasons or basis therefor, upon all material issues.
[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]
Subpart B--Procedures Upon Failure of Union to Take Appropriate Remedial
Action Following Subpart A Procedures
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 Chief, DOE
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
Chief, DOE, 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.
[59 FR 65716, Dec. 21, 1994, as amended at 62 FR 6093, Feb. 10, 1997]
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.
[59 FR 65717, Dec. 21, 1994]
Sec. 417.18 Hearings--removal of officers of local labor organizations.
Hearings pursuant to order of the court and concerning the removal
of officers under section 402(b) of the Act shall be for the purpose of
introducing testimony and evidence showing why an officer or officers
accused of serious misconduct should or should not be removed. Hearings
shall be conducted by the officers of the labor organization (subject to
Sec. 417.19) in accordance with the constitution and bylaws of the labor
organization insofar as they are not inconsistent with title IV of the
Act, or with the provisions of this part 417: Provided, however, That no
officer(s) accused of serious misconduct shall participate in such
hearings in any capacity except as witness or counsel.
Sec. 417.19 Assistant Secretary's representative.
The Assistant Secretary shall appoint a representative or
representatives whose functions shall be to supervise the hearing and
vote. Such representative(s) shall have final authority to issue such
rulings as shall be appropriate or necessary to insure a full and fair
hearing and vote. Upon his own motion or upon consideration of the
petition of any interested person the Assistant Secretary's
Representative may disqualify any officer(s) or member(s) of the union
from participation in the conduct of the hearing (except in the capacity
of witness or counsel).
[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]
[[Page 161]]
Sec. 417.20 Notice of hearing.
Notice of hearing, not less than 10 days in advance of the date set
for such hearing, shall be transmitted to the officer or officers
accused of serious misconduct and other interested persons, insofar as
they are known, and shall inform them of (a) the time, place, and nature
of the hearing; (b) the legal authority and jurisdiction under which the
hearing is to be held; (c) the matters of fact and law asserted; and (d)
their rights to challenge the appointment of certain of, or all of, the
officers of the union to conduct the hearing in accordance with this
subpart. The labor organization shall promptly inform its members of the
provisions of the notice. Copies of the notice shall be made available
for inspection at the office of the labor organization.
Sec. 417.21 Transcript.
It shall be within the discretion of the Assistant Secretary to
require an official reporter to make an official transcript of the
hearings. In the event he does so require, copies of the official
transcript shall be made available upon request addressed to the
Assistant Secretary in accordance with the provisions of part 70 of this
title.
[50 FR 31310, Aug. 1, 1985, as amended at 63 FR 33779, June 19, 1998]
Sec. 417.22 Vote among members of the labor organization.
Within a reasonable time after completion of the hearing, and after
proper notice thereof, a secret ballot vote shall be conducted among the
members of the labor organization in good standing on the issue of
whether the accused officer or officers shall be removed from office.
The vote shall be in accordance with the constitution and bylaws of the
labor organization insofar as they are not inconsistent with the
provisions of the Act or this part 417. The presiding officer or
officers at the taking of such vote shall entertai objections or
suggestions as to the rules for conducting the vote, eligibility of
voters, and such other matters as may be pertinent; and shall rule on
such questions, shall establish procedures for the conduct of the vote,
and for tabulation of the ballots; and shall appoint observers and
compile a list of eligible voters. All rulings of the presiding officer
or officers shall be subject to the provisions of Sec. 417.19.
Sec. 417.23 Report to the Assistant Secretary.
Following completion of the hearing and vote, the Assistant
Secretary's Representative shall file a report with the Assistant
Secretary setting out the results of the balloting; and pertinent
details of the hearing and vote. Notice thereof shall be given to the
membership of such labor organization promptly and copies shall be
furnished to all interested parties.
Sec. 417.24 Appeal to the Assistant Secretary.
(a) Within 15 days after mailing of the report of the Assistant
Secretary's Representative, any interested party may appeal the conduct
of the hearing or vote or both by filing written exceptions with the
Assistant Secretary. Blanket appeals shall not be received. Impertinent
or scandalous matter may be stricken by the Assistant Secretary, or an
appeal containing such matter or lacking in specifications may be
dismissed.
(b) Upon review of the whole record, the Assistant Secretary shall
issue a decision or may order further hearing, a new vote, or such
further proceedings as he deems appropriate.
[29 FR 8264, July 1, 1964, as amended at 50 FR 31310, Aug. 1, 1985]
Sec. 417.25 Certification of results of vote.
Upon receipt of the report of the Assistant Secretary's
Representative on the hearing and vote on removal, the Assistant
Secretary shall certify the results of the vote to the court as required
by section 402(c) of the Act.