[Title 29 CFR 452]
[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 452 - GENERAL STATEMENT CONCERNING THE ELECTION PROVISIONS OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959]
[From the U.S. Government Printing Office]
29LABOR22002-07-012002-07-01falseGENERAL STATEMENT CONCERNING THE ELECTION PROVISIONS OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959452PART 452LABORRegulations Relating to LaborOFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABORLABOR-MANAGEMENT STANDARDS
PART 452--GENERAL STATEMENT CONCERNING THE ELECTION PROVISIONS OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959--Table of Contents
Subpart A--General Considerations
Sec.
452.1 Introductory statement.
452.2 Application of union constitution and bylaws.
452.3 Interpretations of constitution and bylaws.
452.4 Investigatory provision--application.
452.5 Effect of violation on outcome.
452.6 Delegation of enforcement authority.
Subpart B--Other Provisions of the Act Affecting Title IV
452.7 Bill of Rights, title I.
452.8 Trusteeship provisions, title III.
452.9 Prohibition against certain persons holding office; section 504.
452.10 Retaliation for exercising rights.
Subpart C--Coverage of Election Provisions
452.11 Organizations to which election provisions apply.
452.12 Organizations comprised of government employees.
452.13 Extraterritorial application.
452.14 Newly formed or merged labor organizations.
452.15 Effect of trusteeship.
452.16 Offices which must be filled by election.
452.17 Officer.
452.18 Constitutional officers.
452.19 Executive functions.
452.20 Nature of executive functions.
452.21 Members of executive board.
452.22 Delegates to a convention.
Subpart D--Frequency and Kinds of Elections
452.23 Frequency of elections.
452.24 Terms of office.
452.25 Vacancies in office.
452.26 Elections in local labor organizations.
452.27 National, international organizations, and intermediate bodies.
452.28 Unopposed candidates.
452.29 Primary elections.
452.30 Run-off elections.
452.31 One candidate for several offices.
[[Page 167]]
Subpart E--Candidacy for Office; Reasonable Qualifications
452.32 Persons who may be candidates and hold office; secret ballot
elections.
452.33 Persons who may be candidates and hold office; elections at
conventions.
452.34 Application of section 504, LMRDA.
452.35 Qualifications for candidacy.
452.36 Reasonableness of qualifications.
452.37 Types of qualifications.
452.38 Meeting attendance requirements.
452.39 Participation in insurance plan.
452.40 Prior office holding.
452.41 Working at the trade.
452.42 Membership in particular branch or segment of the union.
452.43 Representative categories.
452.44 Dual unionism.
452.45 Multiple office holding.
452.46 Characteristics of candidate.
452.47 Employer or supervisor members.
452.48 Employees of union.
452.49 Other union rules.
452.50 Disqualification as a result of disciplinary action.
452.51 Declaration of candidacy.
452.52 Filing fee.
452.53 Application of qualifications for office.
452.54 Retroactive rules.
Subpart F--Nominations for Office
452.55 Statutory provisions concerning nomination.
452.56 Notice.
452.57 Procedures for nomination.
452.58 Self-nomination.
452.59 Presence of nominee.
452.60 Nominations for national, international, or intermediate body
office.
452.61 Elimination contests--local unions.
452.62 Disqualification of candidates; procedural reasons.
452.63 Nominations at conventions.
452.64 Write-in votes.
452.65 Interval between nominations and election.
Subpart G--Campaign Safeguards
452.66 Statutory provisions.
452.67 Distribution of campaign literature.
452.68 Distribution to less than full membership.
452.69 Expenses of campaign literature.
452.70 Contents of literature.
452.71 Inspection of membership lists.
452.72 Period of inspection.
452.73 Use of union funds.
452.74 Expenditures permitted.
452.75 Union newspapers.
452.76 Campaigning by union officers.
452.77 Permissive use of union funds.
452.78 Expenditures by employers.
452.79 Opportunity to campaign.
452.80 Bona fide candidates.
452.81 Rights in intermediate body elections.
452.82 Reprisal for exercising rights.
452.83 Enforcement of campaign safeguards.
Subpart H--Right to Vote
452.84 General.
452.85 Reasonable qualifications on right to vote.
452.86 Vote conditioned on payment of dues.
452.87 Dues paid by checkoff.
452.88 Resumption of good standing.
452.89 Apprentices.
452.90 Visiting members.
452.91 Voting by employers, supervisors.
452.92 Unemployed members.
452.93 Retired members.
452.94 Reasonable opportunity to vote.
452.95 Absentee ballots.
Subpart I--Election Procedures; Rights of Members
452.96 General.
452.97 Secret ballot.
452.98 Outside agencies.
452.99 Notice of election.
452.100 Use of union newspaper as notice.
452.101 Sample ballots as notice.
452.102 Notice in mail ballot election.
452.103 Primary elections.
452.104 Proximity of notice to election.
452.105 Interference or reprisal.
452.106 Preservation of records.
452.107 Observers.
452.108 Publication of results.
452.109 Constitution of labor organization.
452.110 Adequate safeguards.
452.111 Campaigning in polling places.
452.112 Form of ballot; slate voting.
452.113 Sectional balloting.
452.114 Write-in votes.
452.115 Distribution of ballots.
452.116 Determining validity of ballots.
452.117 Majority of votes not required for election.
452.118 Local union agents in international elections.
452.119 Indirect elections.
452.120 Officers as delegates.
452.121 Limitations on national or international officers serving as
delegates.
452.122 Delegates from intermediate bodies; method of election.
452.123 Elections of intermediate body officers.
452.124 Delegates from units which are not labor organizations.
452.125 Delegates from labor organizations under trusteeship.
452.126 Delegates to conventions which do not elect officers.
452.127 Proportionate representation.
452.128 Under-strength representation.
452.129 Non-discrimination.
[[Page 168]]
452.130 Expenses of delegates.
452.131 Casting of ballots; delegate elections.
452.132 Proxy voting.
452.133 Election of delegates not members of the labor organization.
452.134 Preservation of records.
Subpart J--Special Enforcement Provisions
452.135 Complaints of members.
452.136 Investigation of complaint by Office of Labor-Management
Standards and court action by the Secretary.
Subpart K--Dates and Scope of Application
452.137 Effective dates.
452.138 Application of other laws.
Authority: Secs. 401, 402, 73 Stat. 532, 534 (29 U.S.C. 481, 482);
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.
Source: 38 FR 18324, July 9, 1973, unless otherwise noted.
Subpart A--General Considerations
Sec. 452.1 Introductory statement.
(a) This part discusses the meaning and scope of the provisions of
title IV of the Labor-Management Reporting and Disclosure Act \1\
(hereinafter referred to as the Act), which deal with the election of
officers of labor organizations. These provisions require periodic
election of union officers, and prescribe minimum standards to insure
that such elections will be fairly conducted. Specific provisions are
included to assure the right of union members to participate in
selecting their officers without fear of interference or reprisal, and
to protect the right to nominate candidates, run for office, and vote in
officer elections. Title IV also sets forth the rights of candidates,
provides for secret ballots in appropriate cases, and requires notice of
nominations and elections, preservation of election records, and other
safeguards to insure fair elections. However, the Act does not prescribe
complete, detailed procedures for the nomination and election of union
officers.
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\1\ 73 Stat. 532-535, 29 U.S.C. 481-483.
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(b) Interpretations of the Assistant Secretary with respect to the
election provisions of title IV are set forth in this part to provide
those affected by these provisions of the Act with ``a practical guide *
* * as to how the office representing the public interest in its
enforcement will seek to apply it.'' \2\ The correctness of an
interpretation can be determined finally and authoritatively only by the
courts. It is necessary, however, for the Assistant Secretary to reach
informed conclusions as to the meaning of the law to enable him to carry
out his statutory duties of administration and enforcement. The
interpretations of the Assistant Secretary contained in this part, which
are issued upon the advice of the Solicitor of Labor, indicate the
construction of the law which will guide him in performing his duties
unless and until he is directed otherwise by authoritative rulings of
the courts or unless and until he subsequently announces that a prior
interpretation is incorrect. However, the fact that a particular problem
is not discussed in this part, or in interpretations supplementing it,
should not be taken to indicate the adoption of any position by the
Assistant Secretary with respect to such problem or to constitute an
administrative interpretation or practice.
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\2\ Skidmore v. Swift & Co., 323 U.S. 134 at 138 (1944).
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(c) To the extent that prior opinions and interpretations relating
to the election of officers of labor organizations under the Act are
inconsistent or in conflict with the principles stated in this part,
they are hereby rescinded and withdrawn.
Sec. 452.2 Application of union constitution and bylaws.
Elections required to be held as provided in title IV are to be
conducted in accordance with the validly adopted constitution and bylaws
of the labor organizations insofar as they are not inconsistent with the
provisions of the Act.
[38 FR 18324, July 9, 1973, as amended at 63 FR 33780, June 19, 1998]
Sec. 452.3 Interpretations of constitution and bylaws.
The interpretation consistently placed on a union's constitution by
the responsible union official or governing
[[Page 169]]
body will be accepted unless the interpretation is clearly unreasonable.
\3\
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\3\ English v. Cunningham, 282 F.2d 848 (C.A.D.C. 1960).
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Sec. 452.4 Investigatory provision--application.
The provisions of section 601 of the Act provide general
investigatory authority to investigate alleged violations of the Act
including violations of title IV. However, section 601 in and of itself
provides no remedy, and the section must be read in conjunction with the
remedy and statutory scheme of section 402, i.e., exhaustion of internal
union remedies and a complaint to the Secretary following completion of
the election before suit can be filed. In view of the remedy provided,
an investigation prior to completion of an election may have the effect
of publicizing the activities or unsubstantiated allegations of one
faction to the prejudice of the opposition. To avoid this result, and as
a matter of sound statutory construction, the Department will exercise
its investigatory authority only in circumstances in which the outcome
of the election could not be affected by the investigation. \4\ Thus,
the Department ordinarily will employ its investigatory authority only
where the procedural requirements for a title IV investigation have been
met; but in unusual circumstances or where necessary to collect or
preserve evidence an investigation may be conducted after the conclusion
of balloting.
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\4\ However questions involving the use of force or violence or the
threat of the use of force or violence under circumstances which may
violate section 610 (29 U.S.C. 530) of the Act will be referred promptly
to the Department of Justice for appropriate action.
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Sec. 452.5 Effect of violation on outcome.
Since the remedy under section 402 is contingent upon a finding by
the court, among other things, that the violation ``may have affected
the outcome of an election'' \5\ the Secretary as a matter of policy
will not file suit to enforce the election provisions unless the
violations found are such that the outcome may have been affected. \6\
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\5\ Act, sec. 402(b) (29 U.S.C. 482).
\6\ Dunlop v. Bachowski, 421 U.S. 560, 570 (1975), citing Wirtz v.
Glass Bottle Blowers, 389 U.S. 463, 472 (1968) and Schonfeld v. Wirtz,
285 F. Supp. 705, 707-708 (S.D.N.Y. 1966).
[38 FR 18324, July 9, 1973, as amended at 50 FR 31310, Aug. 1, 1985; 63
FR 33780, June 19, 1998]
Sec. 452.6 Delegation of enforcement authority.
The authority of the Secretary under the Act has been delegated in
part to the Assistant Secretary.
[38 FR 18324, July 9, 1973, as amended at 50 FR 31309, Aug. 1, 1985]
Subpart B--Other Provisions of the Act Affecting Title IV
Sec. 452.7 Bill of Rights, title I.
The provisions of title I, ``Bill of Rights of Members of Labor
Organizations'' \7\ (particularly section 101(a)(1) ``Equal Rights,''
section 101(a)(2) ``Freedom of Speech and Assembly,'' and section
101(a)(5) ``Safeguards against Improper Disciplinary Action'') are
related to the rights pertaining to elections. Direct enforcement of
title I rights, as such, is limited to civil suit in a district court of
the United States by the person whose rights have been infringed. \8\
The exercise of particular rights of members is subject to reasonable
rules and regulations in the labor organization's constitution and
bylaws. \9\
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\7\ 73 Stat. 522, 29 U.S.C. 411.
\8\ But the Secretary may bring suit to enforce section 104 (29
U.S.C. 414).
\9\ Act, sec. 101(a)(1), 101(a)(2), and 101(b) (29 U.S.C. 411).
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Sec. 452.8 Trusteeship provisions, title III.
Placing a labor organization under trusteeship consistent with title
III, may have the effect of suspending the application of title IV to
the trusteed organization (see Sec. 452.15).
Sec. 452.9 Prohibition against certain persons holding office; section 504.
Among the safeguards for labor organizations provided in title V is
a prohibition against the holding of office by
[[Page 170]]
certain classes of persons. \10\ This provision makes it a crime for any
person willfully to serve in certain positions, including as an elected
officer of a labor organization, for a period of three to thirteen years
after conviction or imprisonment for the commission of specified
offenses, including violation of titles II or III of the Act, or
conspiracy or attempt to commit such offenses. It is likewise a crime
for any labor organization or officer knowingly to permit such a person
to serve in such positions. Persons subject to the prohibition
applicable to convicted criminals may serve if their citizenship rights
have been fully restored after being taken away by reason of the
conviction, or if, following the procedures set forth in the Act, it is
determined that their service would not be contrary to the purposes of
the Act.
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\10\ Act, sec. 504(a) (29 U.S.C. 504), as amended by the
Comprehensive Crime Control Act of 1984, Public Law 98-473, secs. 229,
235, 803 and 804. See text at footnote 23 for a list of the disabling
crimes.
[50 FR 31310, Aug. 1, 1985]
Sec. 452.10 Retaliation for exercising rights.
Section 609, which prohibits labor organizations or their officials
from disciplining members for exercising their rights under the Act, and
section 610, which makes it a crime for any person to use or threaten
force or violence for the purpose of interfering with or preventing the
exercise of any rights protected under the Act, apply to rights relating
to the election of officers under title IV.
Subpart C--Coverage of Election Provisions
Sec. 452.11 Organizations to which election provisions apply.
Title IV of the Act contains election provisions applicable to
national and international labor organizations, except federations of
such organizations, to intermediate bodies such as general committees,
conferences, system boards, joint boards, or joint councils, certain
districts, district councils and similar organizations and to local
labor organizations. \11\ The provisions do not apply to State and local
central bodies, which are explicitly excluded from the definition of
``labor organization''. \12\ The characterization of a particular
organizational unit as a ``local,'' ``intermediate,'' etc., is
determined by its functions and purposes rather than the formal title by
which it is known or how it classifies itself.
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\11\ For the scope of the term ``labor organization,'' see part 451
of this chapter.
\12\ See Sec. 451.5 of this chapter for a definition of ``State or
local central body.''
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Sec. 452.12 Organizations comprised of government employees.
An organization composed entirely of government employees (other
than employees of the United States Postal Service) is not subject to
the election provisions of the Act. Section 3(e) of the Act, defining
the term ``employer,'' specifically excludes the United States
Government, its wholly owned corporations, and the States and their
political subdivisions from the scope of that term, and section 3(f)
defines an ``employee'' as an individual employed by an ``employer.''
Since a ``labor organization'' is defined in section 3(i) as one in
which ``employees'' participate and which exists in whole or in part for
the purpose of ``dealing with employers,'' an organization composed
entirely of government employees would not be a ``labor organization''
\13\ as that term is defined in the Act. However, section 1209 of the
Postal Reorganization Act provides that organizations of employees of
the United States Postal Service shall be subject to the Labor-
Management Reporting and Disclosure Act. A national, international or
intermediate labor organization which has some locals of government
employees not covered by the Act and other locals which are mixed or are
composed entirely of employees covered by the Act would be subject to
the election requirements of the Act. Its mixed locals
[[Page 171]]
would also be subject to the Act. The requirements would not apply to
locals composed entirely of government employees not covered by the Act,
except with respect to the election of officers of a parent organization
which is subject to those requirements or the election of delegates to a
convention of such parent organization, or to an intermediate body to
which the requirements apply.
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\13\ Most labor organizations composed of Federal Government
employees are subject to the standards of conduct provisions of the
Civil Service Reform Act, 5 U.S.C. 7120, or the Foreign Service Act, 22
U.S.C. 4117. The regulations implementing those statutory provisions are
contained in parts 457-459 of this chapter.
[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985; 63
FR 33780, June 19, 1998]
Sec. 452.13 Extraterritorial application.
Although the application of the Act is limited to the activities of
persons and organizations within the territorial jurisdiction of the
United States, \14\ an international, national or intermediate body is
not exempted from the requirements of the Act by virtue of the
participation of its foreign locals or foreign membership in its
elections. For example, votes received from Canadian members in
referendum elections held by an international must have been cast under
procedures meeting the minimum requirements of the Act, and Canadian
delegates participating at conventions of the international at which
officers are elected must have been elected by secret ballot.
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\14\ See Sec. 451.6 of this chapter.
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Sec. 452.14 Newly formed or merged labor organizations.
The initial selection of officers by newly formed or merged labor
organizations is not subject to the requirements of title IV. \15\ Such
labor organizations may have temporary or provisional officers serve
until a regular election subject to the Act can be scheduled. An
election under all the safeguards prescribed in these regulations must
be held within a reasonable period after the organization begins to
function. What would be a reasonable time for this purpose depends on
the circumstances, but after the formation or consolidation of the labor
organization, a regular election subject to title IV may not be deferred
longer than the statutory period provided for that type of organization.
However, when a pre-existing labor organization changes its affiliation
without substantially altering its basic structure or identity the terms
of its officers may not be extended beyond the maximum period specified
by the Act for the type of labor organization involved.
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\15\ However, the other provisions of the Act are applicable
immediately upon such formation or merger.
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Sec. 452.15 Effect of trusteeship.
Establishment of a valid trusteeship may have the effect of
suspending the operation of the election provisions of the Act. When the
autonomy otherwise available to a subordinate labor organization has
been suspended consistent with the provisions of title III of the Act,
officers of the organization under trusteeship may be relieved of their
duties and temporary officers appointed by the trustee if necessary to
assist him in carrying out the purposes for which the trusteeship was
established. However, when a regular election of officers or an election
for purposes of terminating the trusteeship is being held during the
trusteeship, title IV would apply.
Sec. 452.16 Offices which must be filled by election.
Section 401 of the Act identifies the types of labor organizations
whose officers must be elected and prescribes minimum standards and
procedures for the conduct of such elections. Under that section
officers of national or international labor organizations (except
federations of such organizations), local labor organizations, and
intermediate bodies such as general committees, system boards, joint
boards, joint councils, conferences, certain districts, district
councils and similar organizations must be elected. \16\
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\16\ See Sec. 452.23 for a discussion of the frequency with which
the different types of labor organizations must conduct elections of
officers. See part 451 of this chapter for the scope of the term ``labor
organization.''
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Sec. 452.17 Officer.
Section 3(n) of the Act defines the word ``officer'' and it is this
definition which must be used as a guide in determining what particular
positions in a
[[Page 172]]
labor organization are to be filled in the manner prescribed in the Act.
For purposes of the Act, ``officer'' means ``any constitutional officer,
any person authorized to 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.''
Sec. 452.18 Constitutional officers.
A constitutional officer refers to a person holding a position
identified as an officer by the constitution and bylaws of the labor
organization. Thus, for example, a legislative representative of a labor
organization who performs no executive functions and whose duties are
confined to promoting the interests of members in legislative matters is
nevertheless an officer who is required to be elected where the labor
organization's constitution identifies the holder of such a position as
an officer. On the other hand, legislative representatives who are
required to be elected by the constitution and bylaws of a labor
organization are not considered to be officers within the meaning of the
Act if they are not designated as such by the constitution, are not
members of any executive board or similar governing body, and do not
perform executive functions. As defined in the Act, however, the term
``officer'' is not limited to individuals in positions identified as
such or provided for in the constitution or other organic law of the
labor organization. \17\ The post of Honorary President, President
Emeritus or Past President that is to be assumed by the retiring chief
executive officer of a union would not be an officer position unless it
is designated as an officer position by the union's constitution, or the
holder of the position performs executive functions or serves on an
executive board or similar governing body.
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\17\ Cf. NLRB v. Coca-Cola Bottling Co., 350 U.S. 264 (1956). See
also, Daily Cong. Rec. 5867, Sen., Apr. 23, 1959.
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Sec. 452.19 Executive functions.
The definitional phrase ``a person authorized to perform the
functions of president, vice president, secretary, treasurer, or other
executive functions of a labor organization'' brings within the term
``officer'' any person who in fact has executive or policy-making
authority or responsibility, although he may not occupy a position
identified as an officer under the constitution and bylaws of the
organization. Authorization to perform such functions need not be
contained in any provision of the constitution or bylaws or other
document but may be inferred from actual practices or conduct. On the
other hand, a person is not an officer merely because he performs
ministerial acts for a designated officer who alone has responsibility.
The normal functions performed by business agents and shop stewards,
such as soliciting memberships, presenting or negotiating employee
grievances within the work place, and negotiating contracts are not
``other executive functions'' as that phrase is used in section 3(n) of
the Act. However, a directing business representative or a business
manager usually exercises such a degree of executive authority as to be
considered an officer and, therefore, must be elected. The duties
normally pertaining to membership on a bargaining committee do not come
within the phrase ``other executive functions.'' However, persons
occupying such non-executive positions may be ``officers'' if they are
ex officio members of the organization's executive board (or similar
governing body) or if the constitution or bylaws of the union designate
such positions as officers.
Sec. 452.20 Nature of executive functions.
(a) The functions that will bring a particular position with a title
other than president, vice-president, secretary-treasurer, or executive
board member within the definition of ``officer'' cannot be precisely
defined. They are the functions typically performed by officers holding
these titles in current labor union practice. Decisions in each case
will require a practical judgment. As a general rule, a person will be
regarded as being authorized to perform the functions of president if he
is the chief or principal executive officer of the labor organization.
Similarly, he will be regarded as being authorized to perform the
functions of treasurer if he
[[Page 173]]
has principal responsibility for control and management of the
organization's funds and fiscal operation. A member of any group,
committee, or board which is vested with broad governing or policymaking
authority will be regarded as a member of an ``executive board or
similar governing body.'' The name or title that the labor organization
assigns to the position is not controlling.
(b) The purpose of the election requirement of the Act is to assure
that persons in positions of control in labor organizations will be
responsive to the desires of the members. \18\ Professional and other
staff members of the labor organization who do not determine the
organization's policies or carry on its executive functions and who are
employed merely to implement policy decisions and managerial directives
established by the governing officials of the organization are not
officers and are not required to be elected.
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\18\ See, for example, S. Rept. 187, 86th Cong., 1st sess., p. 7.
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Sec. 452.21 Members of executive board.
The phrase ``a member of its executive board or similar governing
body'' refers to a member of a unit identified as an executive board or
a body, whatever its title, which is vested with functions normally
performed by an executive board. Members of a committee which is
actually the executive board or similar governing body of the union are
considered officers within the meaning of section 3(n) of the Act even
if they are not so designated by the union's constitution and bylaws.
For example, members of an ``Executive-Grievance Committee'' which
exercises real governing powers are officers under the Act. However, it
should be noted that committee membership alone will not ordinarily be
regarded as an indication of officer status, unless the committee or its
members meet the requirements contained in section 3(n) of the Act.
Sec. 452.22 Delegates to a convention.
Under certain circumstances, delegates to a convention of a national
or international labor organization, or to an intermediate body, must be
elected by secret ballot among the members in good standing of the labor
organization they represent even though such delegates are not
``officers'' of the organization. Such election is required by the Act
\19\ when the delegates are to nominate or elect officers of a national
or international labor organization, or of an intermediate body. There
is, of course, no requirement that delegates be elected in accordance
with the provisions of title IV if they do not nominate or elect
officers, unless delegates are designated as ``officers'' in the union's
constitution and bylaws or unless, by virtue of their position, they
serve as members of the executive board or similar governing body of the
union.
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\19\ Act, sec. 401(a) and 401(d) (29 U.S.C. 481).
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Subpart D--Frequency and Kinds of Elections
Sec. 452.23 Frequency of elections.
The Act requires that all national and international labor
organizations (other than federations of such labor organizations) elect
their officers not less often than every five years. Officers of
intermediate bodies, such as general committees, system boards, joint
boards, joint councils, conferences, and certain districts, district
councils and similar organizations, must be elected at least every four
years, and officers of local labor organizations not less often than
every three years.
Sec. 452.24 Terms of office.
The prescribed maximum period of three, four, or five years is
measured from the date of the last election. \20\ It would not be
consistent with these provisions of the Act for officers elected for the
maximum terms allowable under the statute to remain in office after the
expiration of their terms without a new election. Failure to hold an
election for any office after the statutory period has expired
constitutes a continuing violation of the Act, which may be brought to
the attention of the Secretary in the form of
[[Page 174]]
a complaint filed in accordance with the appropriate procedure. Title IV
establishes only maximum time intervals between elections for officers.
Labor organizations covered by these provisions may hold elections of
officers with greater frequency than the specified maximum period. For
example, a local labor organization is required to hold an election of
officers at least once every three years, but it must hold an election
every year if its governing rules so provide. It should be noted,
moreover, that the provisions of title IV apply to all regular elections
of officers in labor organizations subject to the Act. Thus, if a labor
organization chooses to hold elections of officers more frequently than
the statutory maximum intervals, it must observe the minimum standards
set forth in title IV for the conduct of such elections.
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\20\ See Sec. 452.14 for a discussion of the selection of officers
in a new or newly-merged labor organization.
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Sec. 452.25 Vacancies in office.
Title IV governs the regular periodic elections of officers in labor
organizations subject to the Act. No requirements are imposed with
respect to the filling by election or other method of any particular
office which may become vacant between such regular elections. If, for
example, a vacancy in office occurs in a local labor organization, it
may be filled by appointment, by automatic succession, or by a special
election which need not conform to the provisions of title IV. The
provisions of section 504 of the Act, which prohibit certain persons
from holding office, are applicable to such situations. While the
enforcement procedures of section 402 are not available to a member in
connection with the filling of an interim vacancy, remedies may be
available to an aggrieved member under section 102 of the Act or under
any pertinent State or local law.
Sec. 452.26 Elections in local labor organizations.
Local labor organizations must conduct their regular elections of
officers by secret ballot among the members in good standing. All
members in good standing of the local labor organization must be given
an opportunity to vote directly for candidates to fill the offices that
serve them. Indirect election of officers of a local labor organization
would violate section 401(b) of the Act. For example, a procedure
whereby the local's membership elects an executive board or some similar
body by secret ballot which in turn selects (either from among its own
membership or from the local's membership at large) the persons to fill
specific offices would not comply with the Act. \21\ Similarly, the
election of a chief steward by the shop stewards would violate the Act
if the chief steward, by virtue of that position, also serves as a
member of the executive board, since members of the executive board must
be elected directly by secret ballot among the members in good standing.
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\21\ Wirtz v. Independent Petroleum Workers of America, 75 LRRM
2340, 63 L.C. [para]11,190 (N.D. Ind. 1970).
---------------------------------------------------------------------------
Sec. 452.27 National, international organizations, and intermediate bodies.
The officers of a national or international labor organization or of
an intermediate body must be elected either directly by secret ballot
among the members in good standing or indirectly by persons acting in a
representative capacity who have been elected by secret ballot among all
members in good standing. \22\
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\22\ See Sec. 452.119 and following for discussion of indirect
elections.
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Sec. 452.28 Unopposed candidates.
An election of officers or delegates that would otherwise be
required by the Act to be held by secret ballot need not be held by
secret ballot when all candidates are unopposed and the following
conditions are met: (a) The union provides a reasonable opportunity for
nominations; (b) write-in votes are not permitted, as evidenced by
provisions in the constitution and bylaws, by an official interpretation
fairly placed on such documents, or by established union practice; and
(c) the union complies with all other provisions of title IV.
Sec. 452.29 Primary elections.
Where a union holds primary elections or similar procedures for
eliminating candidates prior to the final
[[Page 175]]
vote in connection with regular elections subject to these provisions,
the primary election or other procedure must be conducted in accordance
with the same standards required under the Act for the final election.
Sec. 452.30 Run-off elections.
A run-off election must meet the standards set forth in title IV if
the original election was subject to the requirements of the Act. For
example, if the run-off is to be held at the same meeting as the
original election, the original notice of election must have so stated
and all records pertaining to the run-off must be retained.
Sec. 452.31 One candidate for several offices.
Where a union constitution or other validly adopted rule provides
that a single elected officer will perform the functions of more than
one office, a separate election need not be held for each office.
Subpart E--Candidacy for Office; Reasonable Qualifications
Sec. 452.32 Persons who may be candidates and hold office; secret ballot elections.
Section 401(e) provides that in any election of officers required by
the Act which is held by secret ballot, every member in good standing
with the exceptions explained in sections following shall be eligible to
be a candidate and to hold office. This provision is applicable not only
to the election of officers in local labor organizations, but also to
elections of officers in national or international and intermediate
labor organizations where those elections are held by secret ballot
referendum among the members, and to the election of delegates to
conventions at which officers will be elected.
Sec. 452.33 Persons who may be candidates and hold office; elections at conventions.
Where elections of national or international labor organizations or
of intermediate bodies are held at a convention of delegates elected by
secret ballot, protection of the right to be a candidate and to hold
office is afforded by the requirement in section 401(f) that the
convention be conducted in accordance with the constitution and bylaws
of the labor organization insofar as they are not inconsistent with the
provisions of title IV. If members in good standing are denied the right
to be candidates by the imposition of unreasonable qualifications on
eligibility for office such qualifications would be inconsistent with
the provisions of title IV.
Sec. 452.34 Application of section 504, LMRDA.
The eligibility of members of labor organizations to be candidates
and to hold office in such organizations is subject only to the
provisions of section 504(a), which bars individuals convicted of
certain crimes from holding office in labor organizations \23\ and to
reasonable qualifications uniformly imposed. A person who is barred from
serving in union office by section 504(a) is not eligible to be a
candidate. However, a labor organization may permit a person who is
barred from holding union office by section 504(a) to be a candidate for
office if the section 504 disability will terminate by the customary
date for the installation of officers. A labor organization may within
reasonable limits adopt stricter standards than those contained in
section
[[Page 176]]
504(a) by extending the period of disability or by barring from union
office persons who have been convicted of crimes other than those
specified.
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\23\ The disabling crimes set forth in the Act, sec. 504(a), as
amended by sec. 803 of the Comprehensive Crime Control Act of 1984,
Public Law 98-473, (29 U.S.C. 504) are robbery, bribery, extortion,
embezzlement, grand larceny, burglary, arson, violation of narcotics
laws, murder, rape, assault with intent to kill, assault which inflicts
grievous bodily injury, or a violation of title II or III of this Act,
any felony involving abuse or misuse of a position or employment in a
labor organization or employee benefit plan to seek or obtain an illegal
gain at the expense of the members of the labor organization or the
beneficiaries of the employee benefit plan, or conspiracy to commit any
such crimes or attempt to commit any such crimes or a crime in which any
of the foregoing crimes is an element.''
Note: The U.S. Supreme Court, on June 7, 1965, held unconsitutional
as a bill of attainder the section 504 provision which imposes criminal
sanctions on Communist Party members for holding union office; U.S. v.
Brown, 381 U.S. 437.
[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985]
Sec. 452.35 Qualifications for candidacy.
It is recognized that labor organizations may have a legitimate
institutional interest in prescribing minimum standards for candidacy
and officeholding in the organization. On the other hand, a dominant
purpose of the Act is to ensure the right of members to participate
fully in governing their union and to make its officers responsive to
the members. A basic assumption underlying the concept of ``free and
democratic elections,'' is that voters will exercise common sense and
good judgment in casting their ballots. In union elections as in
political elections, the good judgment of the members in casting their
votes should be the primary determinant of whether a candidate is
qualified to hold office. Therefore, restrictions placed on the right of
members to be candidates must be closely scrutinized to determine
whether they serve union purposes of such importance, in terms of
protecting the union as an institution, as to justify subordinating the
right of the individual member to seek office and the interest of the
membership in a free, democratic choice of leaders.
Sec. 452.36 Reasonableness of qualifications.
(a) The question of whether a qualification is reasonable is a
matter which is not susceptible of precise definition, and will
ordinarily turn on the facts in each case. However, court decisions in
deciding particular cases have furnished some general guidelines. The
Supreme Court in Wirtz v. Hotel, Motel and Club Employees Union, Local
6, 391 U.S. 492 at 499 (1968) held that:
Congress plainly did not intend that the authorization in section
401(e) of `reasonable qualifications uniformly imposed' should be given
a broad reach. The contrary is implicit in the legislative history of
the section and in its wording that `every member in good standing shall
be eligible to be a candidate and to hold office * * *.' This conclusion
is buttressed by other provisions of the Act which stress freedom of
members to nominate candidates for Office. Unduly restrictive candidacy
qualifications can result in the abuses of entrenched leadership that
the LMRDA was expressly enacted to curb. The check of democratic
elections as a preventive measure is seriously impaired by candidacy
qualifications which substantially deplete the ranks of those who might
run in opposition to incumbents.
Union qualifications for office should not be based on assumptions that
certain experience or qualifications are necessary. Rather it must be
assumed that the labor organization members will exercise common sense
and judgment in casting their ballots. ``Congress' model of democratic
elections was political elections in this country'' (Wirtz v. Local 6,
391 U.S. at 502) and a qualification may not be required without a
showing that citizens assumed to make discriminating judgments in public
elections cannot be relied on to make such judgments when voting as
union members.
(b) Some factors to be considered, therefore, in assessing the
reasonableness of a qualification for union office are:
(1) The relationship of the qualification to the legitimate needs
and interests of the union;
(2) The relationship of the qualification to the demands of union
office;
(3) The impact of the qualification, in the light of the
Congressional purpose of fostering the broadest possible participation
in union affairs;
(4) A comparison of the particular qualification with the
requirements for holding office generally prescribed by other labor
organizations; and
(5) The degree of difficulty in meeting a qualification by union
members.
Sec. 452.37 Types of qualifications.
Ordinarily the following types of requirements may be considered
reasonable, depending on the circumstances in which they are applied and
the effect of their application:
(a) Period of prior membership. It would ordinarily be reasonable
for a local union to require a candidate to have been a member of the
organization for a reasonable period of time, not exceeding two years,
before the election. However, if a member is involuntarily compelled to
transfer from
[[Page 177]]
one local to another, such a requirement would not be reasonable if he
is not given credit for his prior period of membership.
(b) Continuity of good standing. A requirement of continuous good
standing based on punctual payment of dues will be considered a
reasonable qualification only if (1) it provides a reasonable grace
period during which members may make up missed payments without loss of
eligibility for office, \24\ and (2) the period of time involved is
reasonable. What are reasonable periods of time for these purposes will
depend upon the circumstances. Section 401(e) of the Act provides that a
member whose dues have been withheld by the employer for payment to the
labor organization pursuant to his voluntary authorization provided for
in a collective bargaining agreement may not be declared ineligible to
vote or be a candidate for office by reason of alleged delay or default
in the payment of dues. If during the period allowed for payment of dues
in order to remain in good standing, a member on a dues checkoff system
has no earnings from which dues can be withheld, section 401(e) does not
relieve the member of the responsibility of paying his dues in order to
remain in good standing.
---------------------------------------------------------------------------
\24\ In Goldberg v. Amarillo General Drivers, Teamsters Local 577,
214 F. Supp. 74 (N.D. Tex. 1963), the disqualification of five nominees
for union office for failure to satisfy a constitutional provision
requiring candidates for office to have maintained continuous good
standing for two years by paying their dues on or before the first
business day of the current month, in advance, was held to be
unreasonable. See also Wirtz v. Local Unions No. 9, 9-A and 9-B,
International Union of Operating Engineers, 254 F. Supp. 980 (D. Colo.
1965), aff'd. 366 F. 2d 911 (CA 10 1966), vacated as moot 387 U.S. 96
(1967).
---------------------------------------------------------------------------
Sec. 452.38 Meeting attendance requirements.
(a) It may be reasonable for a labor organization to establish a
requirement of attendance at a specified number of its regular meetings
during the period immediately preceding an election, in order to insure
that candidates have a demonstrated interest in and familiarity with the
affairs of the organization. In the past, it was ordinarily considered
reasonable to require attendance at no more than 50 percent of the
meetings over a period not exceeding two years. Experience has
demonstrated that it is not feasible to establish arbitrary guidelines
for judging the reasonableness of such a qualification. Its
reasonableness must be gauged in the light of all the circumstances of
the particular case, including not only the frequency of meetings, the
number of meetings which must be attended and the period of time over
which the requirement extends, but also such factors as the nature,
availability and extent of excuse provisions, whether all or most
members have the opportunity to attend meetings, and the impact of the
rule, i.e., the number or percentage of members who would be rendered
ineligible by its application. \25\
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\25\ If a meeting attendance requirement disqualifies a large
portion of members from candidacy, that large antidemocratic effect
alone may be sufficient to render the requirement unreasonable. In Doyle
v. Brock, 821 F.2d 778 (D.C. Circuit 1987), the court held that the
impact of a meeting attendance requirement which disqualified 97% of the
union's membership from candidacy was by itself sufficient to make the
requirement unreasonable notwithstanding any of the other factors set
forth in 29 CFR 452.38(a).
---------------------------------------------------------------------------
(a--1) In Steelworkers, Local 3489 v. Usery, 429 U.S. 305, 94 LRRM
2203, 79 L.C. [para] 11,806 (1977), the Supreme Court found that this
standard for determining validity of meeting attendance qualifications
was the type of flexible result that Congress contemplated when it used
the word ``reasonable.'' The Court concluded that Congress, in
guaranteeing every union member the opportunity to hold office, subject
only to ``reasonable qualifications,'' disabled unions from establishing
eligibility qualifications as sharply restrictive of the openness of the
union political process as the Steelworkers' attendance rule. The rule
required attendance at fifty percent of the meetings for three years
preceding the election unless prevented by union activities or working
hours, with the result that 96.5 percent of the members were ineligible.
(b) Other guidance is furnished by lower court decisions which have
held
[[Page 178]]
particular meeting attendance requirements to be unreasonable under the
following circumstances: One meeting during each quarter for the three
years preceding nomination, where the effect was to disqualify 99
percent of the membership (Wirtz v. Independent Workers Union of
Florida, 65 LRRM 2104, 55 L.C. par. 11,857 (M.D. Fla., 1967)); 75
percent of the meetings held over a two-year period, with absence
excused only for work or illness, where over 97 percent of the members
were ineligible (Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 244 F.
Supp. 745 (W.D. Pa., 1965), order vacating decision as moot, 372 F. 2d
86 (C.A. 3 1966), reversed 389 U.S. 463; decision on remand, 405 F.2d
176 (C.A. 3 1968)); Wirtz v. Local 262, Glass bottle Blowers Ass'n., 290
F. Supp. 965 (N.D. Cal., 1968)); attendance at each of eight meetings in
the two months between nomination and election, where the meetings were
held at widely scattered locations within the State (Hodgson v. Local
Union No. 624 A-B, International Union of Operating Engineers, 80 LRRM
3049, 68 L.C. par. 12,816 (S.D. Miss. Feb. 19, 1972)); attendance at not
less than six regular meetings each year during the twenty-four months
prior to an election which has the effect of requiring attendance for a
period that must begin no later than eighteen months before a biennial
election (Usery v. Local Division 1205, Amalgamated Transit Union, 545
F. 2d 1300 (C.A. 1, 1976)).
[38 FR 18324, July 3, 1973; as amended at 42 FR 39105, Aug. 2, 1977; 42
FR 41280, Aug. 16, 1977; 42 FR 45306, Sept. 9, 1977; 50 FR 31311, Aug.
1, 1985; 60 FR 57178, Nov. 14, 1995]
Sec. 452.39 Participation in insurance plan.
In certain circumstances, in which the duties of a particular office
require supervision of an insurance plan in more than the formal sense,
a union may require candidates for such office to belong to the plan.
Sec. 452.40 Prior office holding.
A requirement that candidates for office have some prior service in
a lower office is not considered reasonable. \26\
---------------------------------------------------------------------------
\26\ Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391
U.S. 492 at 504. The Court stated that the union, in applying such a
rule, ``* * * assumes that rank and file union members are unable to
distinguish qualified from unqualified candidates for particular offices
without a demonstration of a candidate's performance in other offices.
But Congress' model of democratic elections was political elections in
this Country, and they are not based on any such assumption. Rather, in
those elections the assumption is that voters will exercise common sense
and judgment in casting their ballots. Local 6 made no showing that
citizens assumed to make discriminating judgments in public elections
cannot be relied on to make such judgments when, voting as union members
* * *.''
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Sec. 452.41 Working at the trade.
(a) It would ordinarily be reasonable for a union to require
candidates to be employed at the trade or even to have been so employed
for a reasonable period. In applying such a rule an unemployed member is
considered to be working at the trade if he is actively seeking such
employment. Such a requirement should not be so inflexible as to
disqualify those members who are familiar with the trade but who because
of illness, economic conditions, or other good reasons are temporarily
not working.
(b) It would be unreasonable for a union to prevent a person from
continuing his membership rights on the basis of failure to meet a
qualification which the union itself arbitrarily prevents the member
from satisfying. If a member is willing and able to pay his union dues
to maintain his good standing and his right to run for office, it would
be unreasonable for the union to refuse to accept such dues merely
because the person is temporarily unemployed. Where a union constitution
requires applicants for membership to be actively employed in the
industry served by the union, a person who becomes a member would not be
considered to forfeit his membership in the union or any of the
attendant rights of membership merely because he is discharged or laid
off.
(c) Ordinarily members working part-time at the trade may not for
that reason alone be denied the right to run for office.
[[Page 179]]
(d) A labor organization may postpone the right to run for office of
members enrolled in a bona fide apprenticeship program until such
members complete their apprenticeship.
Sec. 452.42 Membership in particular branch or segment of the union.
A labor organization may not limit eligibility for office to
particular branches or segments of the union where such restriction has
the effect of depriving those members who are not in such branch or
segment of the right to become officers of the union. \27\
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\27\ Hodgson v. Local Unions No. 18, etc., IUOE, 440 F. 2d 485 (C.A.
6), cert. den. 404 U.S. 852 (1971); Hodgson v. Local 610, Unit. Elec.
Radio & Mach. Work. of Am., 342 F. Supp. 1344 (W.D. Pa. 1972).
---------------------------------------------------------------------------
Sec. 452.43 Representative categories.
In the case of a position which is representative of a unit defined
on a geographic, craft, shift, or similar basis, a labor organization
may by its constitution or bylaws limit eligibility for candidacy and
for holding office to members of the represented unit. For example, a
national or international labor organization may establish regional
vice-presidencies and require that each vice-president be a member of
his respective region. This kind of limitation would not be considered
reasonable, however, if applied to general officers such as the
president, vice-president, recording secretary, financial secretary, and
treasurer. If eligibility of delegates to a convention which will elect
general officers is limited to special categories of members, all such
categories within the organization must be represented.
Sec. 452.44 Dual unionism.
While the Act does not prohibit a person from maintaining membership
or holding office in more than one labor organization, it would be
considered reasonable for a union to bar from candidacy for office
persons who hold membership in a rival labor organization.
Sec. 452.45 Multiple office holding.
An officer may hold more than one office in a labor organization so
long as this is consistent with the constitution and bylaws of the
organization.
Sec. 452.46 Characteristics of candidate.
A labor organization may establish certain restrictions on the right
to be a candidate on the basis of personal characteristics which have a
direct bearing on fitness for union office. A union may, for example,
require a minimum age for candidacy. However, a union may not establish
such rules if they would be inconsistent with any other Federal law.
Thus, it ordinarily may not limit eligibility for office to persons of a
particular race, color, religion, sex, or national origin since this
would be inconsistent with the Civil Rights Act of 1964. \28\ Nor may it
establish a general compulsory retirement age or comparable age
restriction on candidacy since this would be inconsistent with the Age
Discrimination in Employment Act of 1967, as amended. A union may not
require candidates for office to be registered voters and to have voted
in public elections during the year preceding their nominations. Nor may
it require that candidates have voted in the previous union election to
be eligible. Such restrictions may not be said to be relevant to the
members' fitness for office.
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\28\ Shultz v. Local 1291, International Longshoremen's Association,
338 F. Supp. 1204 (E.D. Pa.), aff'd, 461 F.2d 1262 (C.A. 3 1972).
[53 FR 8751, Mar. 17, 1988, as amended at 53 FR 23233, June 21, 1988]
Sec. 452.47 Employer or supervisor members.
Inasmuch as it is an unfair labor practice under the Labor
Management Relations Act (LMRA) for any employer (including persons
acting in that capacity) to dominate or interfere with the
administration of any labor organization, it follows that employers,
while they may be members, may not be candidates for office or serve as
officers. Thus, while it is recognized that in some industries,
particularly construction, members who become supervisors, or
contractors traditionally keep their union membership as a form of job
security or as a means of retaining union benefits, such persons may
[[Page 180]]
not be candidates for or hold office. \29\ Whether a restriction on
officeholding by members who are group leaders or others performing some
supervisory duties is reasonable depends on the particular
circumstances. For instance, if such persons might be considered
``supervisors'' \30\ under the LMRA, their right to be candidates under
the Act may be limited. Another factor in determining the reasonableness
of a ban on such persons is the position (if any) of the NLRB on the
status of the particular employees involved. If, for example, the NLRB
has determined that certain group leaders are part of the bargaining
unit, it might be unreasonable for the union to prohibit them from
running for office. An overall consideration in determining whether a
member may fairly be denied the right to be a candidate for union office
as an employer or supervisor is whether there is a reasonable basis for
assuming that the person involved would be subject to a conflict of
interest in carrying out his representative duties for employees and
rank and file union members.
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\29\ See Nassau and Suffolk Contractors' Association, 118 NLRB No.
19 (1957). See also Local 636, Plumbers v. NLRB, 287 F.2d 354 (C.A. D.C.
1961).
\30\ Under section 2(11) of the Labor Management Relations Act,
supervisors include individuals ``having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibly
to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.''
[38 FR 18324, July 3, 1973, as amended at 39 FR 37360, Oct. 21, 1974]
Sec. 452.48 Employees of union.
A labor organization may in its constitution and bylaws prohibit
members who are also its full-time non-elective employees from being
candidates for union office, because of the potential conflict of
interest arising from the employment relationship which could be
detrimental to the union as an institution.
Sec. 452.49 Other union rules.
(a) Unions may establish such other reasonable rules as are
necessary to protect the members against leaders who may have committed
serious offenses against the union. For example, a union may, after
appropriate proceedings, bar from office persons who have
misappropriated union funds, even if such persons were never indicted
and convicted in a court of law for their offenses. Of course, the union
would have to provide reasonable precautions to insure that no member is
made ineligible to hold office on the basis of unsupported allegations
and that any rights guaranteed him by the constitution and bylaws are
protected. Similarly, a union may require an elected officer to sign an
affidavit averring that he is not barred from serving as an officer by
the provisions of section 504 of the Act since the union and its
officers may not permit a person to serve as an officer if he is so
barred (see footnote 23).
(b) It would not violate the Act for a union to prohibit successive
terms in office or to limit the number of years an officer may serve.
Such rules are intended to encourage as many members as possible to seek
positions of leadership in the organization.
Sec. 452.50 Disqualification as a result of disciplinary action.
Section 401(e) was not intended to limit the right of a labor
organization to take disciplinary action against members guilty of
misconduct. So long as such action is conducted in accordance with
section 101(a)(5), a union may, for example, if its constitution and
bylaws so provide, bar from office for a period of time any member who
is guilty of specific acts, such as strikebreaking, detrimental to the
union as an institution. However, if a union has improperly disciplined
a member and barred him from candidacy, the Secretary may, in an
appropriate case, treat him as a member in good standing entitled to all
of the rights of members guaranteed by title IV.
Sec. 452.51 Declaration of candidacy.
A union may not adopt rules which in their effect discourage or
paralyze any opposition to the incumbent officers.
[[Page 181]]
Therefore, it would not be a reasonable qualification to require members
to file a declaration of candidacy several months in advance of the
nomination meeting since such a requirement would have such effect and
``serves no reasonable purpose which cannot otherwise be satisfied
without resort to this procedure.'' \31\
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\31\ Wirtz v. Local 30, IUOE, 242 F. Supp. 631 (S.D. N.Y. 1965)
reversed as moot 366 F.2d 438 (C.A. 2, 1966), reh. den. 366 F.2d 438.
---------------------------------------------------------------------------
Sec. 452.52 Filing fee.
It would be unreasonable to require candidates for office to pay a
filing fee because a fee limits the right of members to a reasonable
opportunity to nominate the candidates of their choice and there is no
objective relationship between the requirement and the ability to
perform the duties of the office.
Sec. 452.53 Application of qualifications for office.
Qualifications for office which may seem reasonable on their face
may not be proper if they are applied in an unreasonable manner or if
they are not applied in a uniform way. An essential element of
reasonableness is adequate advance notice to the membership of the
precise terms of the requirement. A qualification which is not part of
the constitution and bylaws or other duly enacted rules of the
organization may not be the basis for denial of the right to run for
office, unless required by Federal or State law. \32\ Qualifications
must be specific and objective. They must contain specific standards of
eligibility by which any member can determine in advance whether or not
he is qualified to be a candidate. For example, a constitutional
provision which states that ``a candidate shall not be eligible to run
for office who intends to use his office as a cloak to effect purposes
inimical to the scope and policies of the union'' would not be a
reasonable qualification within the meaning of section 401(e) because it
is so general as to preclude a candidate from ascertaining whether he is
eligible and would permit determinations of eligibility based on
subjective judgments. Further, such a requirement is by its nature not
capable of being uniformly imposed as required by section 401(e).
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\32\ Wirtz v. Local Union 559, United Brotherhood of Carpenters and
Joiners of America, 61 LRRM 2618, 53 L.C. [para]11.044 (W.D. Ky. 1966);
Hodgson v. Longshoremen's Local 1655 New Orleans Dray Clerks, 79 LRRM
2893, 67 L.C. [para]12,466 (E.D. La. January 5, 1972).
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Sec. 452.54 Retroactive rules.
(a) The reasonableness of applying a newly adopted restriction on
candidacy retroactively depends in part upon the nature of the
requirement. It would be unreasonable for a labor organization to
enforce eligibility requirements which the members had no opportunity to
satisfy. For example, it would not be reasonable for a union to apply a
newly adopted meeting attendance requirement retroactively since members
would have no opportunity to comply with such requirement prior to its
effective date. \33\ When such a rule is in effect the membership is
entitled to advance notice of the requirements of the rule and of the
means to be used in verifying attendance. It would not be unreasonable,
however, for a union to adopt and enforce a rule disqualifying persons
convicted of a felony from being candidates or holding office.
---------------------------------------------------------------------------
\33\ Hodgson v. Longshoremen's Local 1655, New Orleans Dray Clerks,
79 LRRM 2893, 67 L.C. [para]12,466 (E.D. La. January 5, 1972)
---------------------------------------------------------------------------
(b) It would not be proper for a labor organization to amend its
constitution after an election to make eligible a person who had been
elected but who was not eligible at the time of the election.
Subpart F--Nominations for Office
Sec. 452.55 Statutory provisions concerning nomination.
In elections subject to the provisions of title IV a reasonable
opportunity must be afforded for the nomination of candidates. Although
the Act does not prescribe particular forms of nomination procedures, it
does require that the procedures employed be reasonable and that they
conform to the provisions of the labor organization's constitution and
bylaws insofar as they are not inconsistent with the provisions of title
IV.
[[Page 182]]
Sec. 452.56 Notice.
(a) To meet this requirement, the labor organization must give
timely notice reasonably calculated to inform all members of the offices
to be filled in the election as well as the time, place, and form for
submitting nominations. Such notice should be distinguished from the
notice of election, discussed in Sec. 452.99. Notice of nominations need
not necessarily be given at least 15 days before nominations are held,
nor is it required to be given by mail. In an election which is to be
held by secret ballot, accordingly, notice of nominations may be given
in any manner reasonably calculated to reach all members in good
standing and in sufficient time to permit such members to nominate the
candidates of their choice, so long as it is in accordance with the
provisions of the labor organization's constitution or bylaws. Mailing
such notice to the last known address of each member within a reasonable
time prior to the date for making nominations would satisfy this
requirement. Likewise, timely publication in the union newspaper with
sufficient prominence to be seen by all members would be adequate
notice. The method of making nominations, whether by mail, petition, or
at meetings, could affect the determination of the timeliness of the
notice. The nomination notice may be combined with the election notice
if the requirements of both are met. Posting of a nomination notice may
satisfy the requirement of a reasonable opportunity for making
nominations if such posting is reasonably calculated to inform all
members in good standing in sufficient time to permit such members to
nominate the candidates of their choice.
(b) The requirement of a reasonable opportunity for the nomination
of candidates has been met only when the members of a labor organization
are fully informed of the proper method of making such nominations.
Sec. 452.57 Procedures for nomination.
(a) Since the Act does not prescribe particular procedures for the
nomination of candidates, the labor organization is free to employ any
method that will provide a reasonable opportunity for making
nominations. There are various methods which, if properly and fairly
employed, would be considered reasonable under the Act. For example,
nominations may be by petition, or from the floor at a nomination
meeting.
(b) Whether a particular procedure is sufficient to satisfy the
requirements of the Act is a question which will depend upon the
particular facts in each case. While a particular procedure may not on
its face violate the requirements of the Act, its application in a given
instance may make nomination so difficult as to deny the members a
reasonable opportunity to nominate.
Sec. 452.58 Self-nomination.
A system of self-nomination, if this is the only method for making
nominations, deprives union members of a reasonable opportunity to
nominate candidates and thus is inconsistent with the provisions of
title IV. \34\ Self-nomination is permissible only if the members are
afforded additional methods whereby they may nominate the candidates of
their choice.
---------------------------------------------------------------------------
\34\ See Wirtz v. National Maritime Union of America, 399 F.2d 544
(C.A. 2 1968).
---------------------------------------------------------------------------
Sec. 452.59 Presence of nominee.
A requirement that members must be present at the nomination meeting
in order to be nominated for office might be considered unreasonable in
certain circumstances; for example, in the absence of a provision for an
alternative method under which a member who is unavoidably absent from
the nomination meeting may be nominated, such a restriction might be
regarded as inconsistent with the requirement in section 401(e) that
there be a reasonable opportunity to nominate and to be a candidate.
Sec. 452.60 Nominations for national, international or intermediate body office.
(a) When officers of a national or international labor organization
or of an intermediate body are to be elected by secret ballot among the
members of the constituent local unions, it is not unreasonable for the
organization to employ a nominating procedure whereby each local may
nominate only one
[[Page 183]]
candidate for each office. When such a procedure is employed the
organization may require that each candidate be nominated by a certain
number of locals before his name will appear on the ballot. The
reasonableness of the number of local union nominations or endorsements
required depends upon the size and dispersion of the organization.
(b) Nominations for national, international or intermediate body
office by locals or other subordinate organizations differ from primary
elections in that they are not subject to all the technical requirements
of secret ballot elections. \35\ However, where nominations are made by
locals or other subordinate organizations fundamental safeguards must be
observed including the right of members to vote for and support the
candidates of their choice without improper interference.
---------------------------------------------------------------------------
\35\ In Hodgson v. United Mine Workers of America, the Court
directed that the nomination proceedings within the local unions be
conducted by secret ballot and in accordance with the provisions of
title IV. [80 LRRM 3451, 68 L.C. [para]12,786 (D.D.C. June 15, 1972)].
This Order indicates that the use of secret ballot nominating procedures
may be an appropriate remedial measure in a supervised election.
---------------------------------------------------------------------------
Sec. 452.61 Elimination contests--local unions.
(a) A procedure in a local under which nominees compete in an
elimination process to reduce the number of candidates in the final
balloting is also part of the election process and must be conducted by
secret ballot.
(b) When such an elimination process is used it would be
unreasonable for some nominees, such as those selected by a nominating
committee, to be exempt from the process since they would thus be given
an unfair advantage over other nominees.
Sec. 452.62 Disqualification of candidates; procedural reasons.
A candidate who is otherwise eligible for office may not be
disqualified because of the failure of a union officer to perform his
duties which are beyond the candidate's control. For example, the
failure of a local recording secretary to perform his duty to complete
and forward a candidate's nomination certificate to the district may not
be used as the basis for disqualifying the candidate.
Sec. 452.63 Nominations at conventions.
In elections at conventions at which nominations are also made,
delegates who have been elected by secret ballot must be given ample
opportunity to nominate candidates on behalf of themselves or the
members they represent. A union may adopt a rule limiting access to the
convention floor to delegates. However, once the candidates have been
nominated, they must be accorded equal opportunity to campaign. \36\
Where delegates are instructed by locals to nominate candidates, the
constitution of the organization or the convention rules should provide
a specific procedure for the implementation of nominating instructions
issued by any local to its delegate.
---------------------------------------------------------------------------
\36\ See Sec. 452.79.
---------------------------------------------------------------------------
Sec. 452.64 Write-in votes.
The Act neither requires nor prohibits write-in candidacy or write-
in votes. These matters are governed by appropriate provisions of the
union's constitution and bylaws, applicable resolutions, or the
established practice of the union.
Sec. 452.65 Interval between nominations and election.
The Act specifies no time interval between nominations and election.
Thus, both may be scheduled to be held at the same meeting if, during a
reasonable period prior to such nomination-election meeting, every
member eligible to hold office who intends to run for office is afforded
the protection provided in section 401(c), including sufficient
opportunity to campaign for office.
Subpart G--Campaign Safeguards
Sec. 452.66 Statutory provisions.
The opportunity for members to have a free, fair, and informed
expression of
[[Page 184]]
their choices among candidates seeking union office is a prime objective
of title IV of the Act. Voters can best be assured opportunity for an
informed choice if certain campaign rights are guaranteed to candidates
and their supporters. To this end, the statute provides that adequate
safeguards to insure a fair election shall be provided, and states
certain specific safeguards. These safeguards apply not only to
candidates for officer positions as defined in the Act but also to
candidates for delegate posts, if the delegates are to nominate or elect
officers.
Sec. 452.67 Distribution of campaign literature.
The Act imposes the duty on the union and its officers to comply
with all reasonable requests of any candidate to distribute his campaign
literature to the membership at his expense. When the organization or
its officers authorize distribution of campaign literature on behalf of
any candidate, similar distribution under the same conditions must be
made for any other candidate, if he requests it. In order to avoid
charges of disparity of treatment among candidates, it is advised that a
union inform all candidates in advance of the conditions under which
distribution will be made and promptly advise them of any change in
those conditions.
Sec. 452.68 Distribution to less than full membership.
Although section 401(c) specifies distribution to ``all members in
good standing,'' a labor organization must also honor requests for
distribution of literature to only a portion of the membership if such
distribution is practicable. Each candidate may choose his own ways of
campaigning for election according to his own ingenuity and resources.
For example, some candidates for national or international union office
may desire to limit distribution to delegates, but others may want to
appeal directly to the membership or parts thereof in an effort to
influence particular constituencies to choose delegates favorable to
their candidacy.
Sec. 452.69 Expenses of campaign literature.
Each candidate must be treated equally with respect to the expense
of such distribution. Thus, a union and its officers must honor a
candidate's request for distribution where the candidate is willing and
able to bear the expense of such distribution. However, should the
candidate be unable to bear such expense, there is no requirement that
the union distribute the literature of the candidate free of charge. In
the event the union distributes any candidate's literature without
charge, however, all other candidates are entitled to have their
literature distributed on the same basis. Since labor organizations have
an affirmative duty to comply with all reasonable requests of any
candidate to distribute campaign literature (at the candidate's
expense), a union rule refusing all such distributions would not be
proper, even though applied in a nondiscriminatory fashion. In view of
the fact that expenses of distribution are to be borne by the candidate
a labor organization may not refuse to distribute campaign literature
merely because it may have a small staff which cannot handle such
distribution for all candidates. If this is the case, the organization
may employ additional temporary staff or contract the job to a
professional mailer and charge the expense incurred to the candidates
for whom the service is being rendered. The organization may require
candidates to tender in advance the estimated costs of distributing
their literature, if such requirement is applied uniformly.
Sec. 452.70 Contents of literature.
The Act does not and unions may not regulate the contents of
campaign literature which candidates may wish to have distributed by the
union. This is left to the discretion of each candidate. The labor
organization may not require that it be permitted to read a copy of the
literature before it is sent out, nor may it censor the statements of
the candidates in any way, even though the statement may include
derogatory remarks about other candidates. Furthermore, a union's
contention that mailing of certain campaign literature may constitute
libel for which it may
[[Page 185]]
be sued has been held not to justify its refusal to distribute the
literature, since the union is under a statutory duty to distribute the
material. \37\
---------------------------------------------------------------------------
\37\ See Philo v. Stellato, (E.D. Mich. Civil No. 21244, May 24,
1961); Ansley v. Fulco, (Calif. Ct. of Appeal, First App. District, Div.
Three, 1 Civil No. 29483, May 31, 1972).
---------------------------------------------------------------------------
Sec. 452.71 Inspection of membership lists.
(a) Each bona fide candidate for office has a right, once within 30
days prior to any election in which he is a candidate, to inspect a list
containing the names and last known addresses of all members of the
labor organization who are subject to a collective bargaining agreement
requiring membership therein as a condition of employment. The right of
inspection does not include the right to copy the list but does include
the right to compare it with a personal list of members. It is the
intent of the Act that such membership lists be made available for
inspection at the candidates' option any time within the 30-day period.
The list is not required to be maintained continuously and may be
compiled immediately before each election. The form in which the list is
to be maintained is not specified by the Act. Thus, a card index system
may satisfy the requirements of the Act. The list may be organized
alphabetically or geographically, or by local in a national or
international labor organization.
(b) It is the duty of the labor organization and its officers to
refrain from discrimination in favor of or against any candidate with
respect to the use of lists of members. Thus, if a union permits any
candidate to use such lists in any way other than the right of
inspection granted by the Act, it must inform all candidates of the
availability of the list for that purpose and accord the same privilege
to all candidates who request it. Such privileges may include permitting
inspection of the list where members are not subject to a collective
bargaining agreement requiring membership as a condition of employment,
inspecting the list more than once, or copying the list.
[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985]
Sec. 452.72 Period of inspection.
The Act specifies the maximum period during which the right of
inspection of membership lists is to be granted. The opportunity to
inspect the lists must be granted once during the 30-day period prior to
the casting of ballots in the election. Thus, where a mail ballot system
is employed under which ballots are returnable as soon as received by
members, the right to inspect must be accorded within the 30-day period
prior to the mailing of the ballots to members. It would be an
unreasonable restriction to permit inspection of lists only after the
ballots have been mailed or the balloting has commenced.
Sec. 452.73 Use of union funds.
In the interest of fair union elections, section 401(g) of the Act
places two limitations upon the use of labor organization funds derived
from dues, assessments, or similar levy. These limitations are:
(a) No such funds may be contributed or applied to promote the
candidacy of any person in an election subject to title IV, either in an
election within the organization expending the funds or in any other
labor organization; and
(b) No such funds may be used for issuing statements involving
candidates in the election.
This section is not intended to prohibit a union from assuming the cost
of distributing to the membership on an equal basis campaign literature
submitted to the union by the candidates pursuant to the rights granted
by section 401(c), as previously discussed, nor does it prohibit the
expenditure of such funds for notices, factual statements of issues not
involving candidates, and other expenses necessary for the holding of
the election.
Sec. 452.74 Expenditures permitted.
The Act does not prohibit impartial publication of election
information. Thus, it would not be improper for a union to sponsor a
debate at which all candidates for a particular office are afforded
equal opportunity to express their views to the membership prior to an
election. Similarly, a union may issue information sheets containing
biographical data on all candidates so
[[Page 186]]
long as all candidates are given equal opportunity to submit such data.
Sec. 452.75 Union newspapers.
The provisions of section 401(g) prohibit any showing of preference
by a labor organization or its officers which is advanced through the
use of union funds to criticize or praise any candidate. Thus, a union
may neither attack a candidate in a union-financed publication nor urge
the nomination or election of a candidate in a union-financed letter to
the members. Any such expenditure regardless of the amount, constitutes
a violation of section 401(g). \38\
---------------------------------------------------------------------------
\38\ Hodgson v. Liquor Salesmen's Union, Local No. 2, 334 F.Supp.
1369 (S.D. N.Y.) aff'd 444 F.2d 1344 (C.A. 2 1971); Shultz v. Local
Union 6799, United Steelworkers, 426 F.2d 969 (C.A. 9 1970).
---------------------------------------------------------------------------
Sec. 452.76 Campaigning by union officers.
Unless restricted by constitutional provisions to the contrary,
union officers and employes retain their rights as members to
participate in the affairs of the union, including campaigning
activities on behalf of either faction in an election. However, such
campaigning must not involve the expenditure of funds in violation of
section 401(g). Accordingly, officers and employees may not campaign on
time that is paid for by the union, nor use union funds, facilities,
equipment, stationery, etc., to assist them in such campaigning.
Campaigning incidental to regular union business would not be a
violation.
Sec. 452.77 Permissible use of union funds.
Certain uses of union funds are considered permissible under section
401(g). For example, a court ruled that money of a subordinate union may
be contributed to a committee formed to challenge the results of a
national union election under title IV when such contributions are
properly authorized by the members in an effort to pursue election
remedies both within and outside the union. In holding such activity to
be outside the prohibitions of section 401(g), although the committee
was formed by defeated candidates and their supporters, the court stated
that ``* * * It does not promote the candidacy of any person if an
election is declared invalid by a court under title IV's procedure
despite the fact that in the rerun election the candidates may be
identical. Neither the winner nor the loser of the disputed election
gains votes by the setting aside of the election. Such action is not a
vote-getting device but merely returns the parties to their pre-election
status; it does not place any candidate into office.'' \39\
---------------------------------------------------------------------------
\39\ Retail Clerks Union, Local 648 v. Retail Clerks International
Association, 299 F.Supp. 1012, 1024 (D.D.C. 1969).
[38 FR 18324, July 9, 1973, as amended at 63 FR 33780, June 19, 1998]
Sec. 452.78 Expenditures by employers.
(a) As an additional safeguard, section 401(g) provides that no
money of an employer is to be contributed or applied to promote the
candidacy of any person in an election subject to the provisions of
title IV. This includes indirect as well as direct expenditures. Thus,
for example, campaigning by union stewards on company time with the
approval of the employer would violate section 401(g) unless it can be
shown that they are on legitimate work assignments, and that their
campaign activities are only incidental to the performance of their
assigned task and do not interfere with its performance. This
prohibition against the use of employer money includes any costs
incurred by an employer, or anything of value contributed by an
employer, in order to support the candidacy of any individual in an
election. It would not, however, extend to ordinary business practices
which result in conferring a benefit, such as, for example, a discount
on the cost of printing campaign literature which is made available on
the same terms to other customers.
(b) The prohibition against the use of employer money to support the
candidacy of a person in any election subject to the provisions of title
IV is not restricted to employers who employ members of the labor
organization in which the election is being conducted,
[[Page 187]]
or who have any business or contractual relationship with the labor
organization.
Sec. 452.79 Opportunity to campaign.
There must be a reasonable period prior to the election during which
office-seekers and their supporters may engage in the campaigning that
the Act contemplates and guarantees. What is a reasonable period of time
would depend upon the circumstances, including the method of nomination
and the size of the union holding the election, both in terms of the
number of members and the geographic area in which it operates. For
example, a candidate for office in a local labor organization was
improperly disqualified and then appealed to the international union
which directed that his name be placed on the ballot. A complaint was
considered properly filed alleging election violations because the
candidate's name was restored to the ballot two days prior to the
election so that he was denied an equal opportunity to campaign.
Similarly, in a mail ballot election a union's delay in the distribution
of campaign literature until after the ballots have been distributed and
some have been cast would not satisfy the requirement to distribute such
literature in compliance with a reasonable request. \40\ Such a delay
would deny the candidate a reasonable opportunity to campaign prior to
the election and would thus not meet the requirement for adequate
safeguards to insure a fair election. Where access to the convention
floor is limited exclusively to delegates at a convention at which
officers are to be elected, there must, nevertheless, be equal
opportunity for all nominees to campaign. Thus, if the privilege of
addressing the convention is accorded to any of the nominees, it must be
accorded to all nominees who request it, whether they are delegates or
not.
---------------------------------------------------------------------------
\40\ Wirtz v. American Guild of Variety Artists, 267 F. Supp. 527
(S.D.N.Y. 1967).
---------------------------------------------------------------------------
Sec. 452.80 Bona fide candidates.
A person need not be formally nominated in order to be a bona fide
candidate entitled to exercise the rights mentioned in Secs. 452.67 and
452.71. \41\ Thus, any qualified member seeking to be nominated and
elected at a convention would be able to take advantage of the
distribution rights even before the convention meets and thus attempt to
influence members to select delegates favorable to his candidacy or to
persuade the delegates to support his candidacy. A union may reasonably
require that a person be nominated in order to be elected, but may not
prevent a member who actively seeks office and is otherwise qualified
from taking advantage of the campaign safeguards in the Act in an effort
to gain the support necessary to be nominated.
---------------------------------------------------------------------------
\41\ Yablonski v. United Mine Workers, 71 LRRM 2606, 60 L.C. 10,204
(D.D.C. 1969).
---------------------------------------------------------------------------
Sec. 452.81 Rights in intermediate body elections.
While the literal language in section 401(c) relating to
distribution of campaign literature and to discrimination with respect
to the use of membership lists would seem to apply only to national,
international and local labor organizations, two United States District
Courts have held that these provisions also apply to intermediate
bodies. \42\ The Department of Labor considers these rulings to be
consistent with the intent of Congress and, therefore, has adopted this
position.
---------------------------------------------------------------------------
\42\ Antal v. UMW District 5, 64 LRRM 2222, 54 L.C. 11,621 (W.D. Pa.
1966); Schonfeld v. Rarback, 49 L.C. 19,039 (S.D.N.Y. 1964).
---------------------------------------------------------------------------
Sec. 452.82 Reprisal for exercising rights.
A member has a right to support the candidate of his choice without
being subject to penalty, discipline, or improper interference or
reprisal of any kind by the labor organization conducting the election
or any member thereof.
Sec. 452.83 Enforcement of campaign safeguards.
Certain of the safeguards of section 401(c) are enforceable at the
suit of any bona fide candidate. This special statutory right to sue is
limited to the distribution of campaign literature by the labor
organization and the forbearance of such organization from
discrimination among candidates with respect to
[[Page 188]]
the use of membership lists. Of course, all title IV safeguards,
including those discussed in this paragraph, are subject to enforcement
as provided in section 402. It should be noted that the right of a bona
fide candidate to sue in the circumstances described herein is limited
to the period prior to election. After the election, the only remedy
would be through a suit by the Secretary under section 402.
Subpart H--Right to Vote
Sec. 452.84 General.
Under the provisions of section 401(e), every member in good
standing is entitled to vote in elections required under title IV which
are to be held by secret ballot. The phrase ``member in good standing''
includes any person who has fulfilled the requirements for membership
and who neither has withdrawn from membership nor has been expelled or
suspended from membership after appropriate proceedings consistent with
lawful provisions of the constitution and bylaws of the organization.
\43\
---------------------------------------------------------------------------
\43\ Act, sec. 3(o).
---------------------------------------------------------------------------
Sec. 452.85 Reasonable qualifications on right to vote.
The basic right of members to vote in elections of the labor
organization may be qualified by reasonable rules and regulations in its
constitution and bylaws. \44\
---------------------------------------------------------------------------
\44\ Act, sec. 101(a)(1).
---------------------------------------------------------------------------
Sec. 452.86 Vote conditioned on payment of dues.
A labor organization may condition the exercise of the right to vote
upon the payment of dues, which is a basic obligation of membership.
Such a rule must be applied uniformly. If a member has not paid his dues
as required by the labor organization's constitution or bylaws he may
not be allowed to vote. Thus, a rule which suspends a member's right to
vote in an election of officers while the member is laid off and is not
paying dues would not, in ordinary circumstances, be considered
unreasonable, so long as it is applied in a nondiscriminatory manner.
However, members must be afforded a reasonable opportunity to pay dues,
including a grace period during which dues may be paid without any loss
of rights. In the case where a member is laid off but desires to
maintain his good standing and thus his membership rights by continuing
to pay dues, it would be clearly unreasonable for the labor organization
to refuse to accept his payment.
Sec. 452.87 Dues paid by checkoff.
A member in good standing whose dues are checked off by his employer
pursuant to his voluntary authorization provided for in a collective
bargaining agreement may not be disqualified from voting by reason of
alleged delay or default in the payment of dues. For example, the
constitution and bylaws of a labor organization call for suspension of
members whose dues are three months in arrears. Dues to be paid directly
by a member are two months in arrears when the union changes to a
checkoff system. The member may not be denied the right to vote merely
because the employer is late in submitting the checked off dues for the
first month. It would not be inconsistent with the Act, however, for a
union to require a new member who executes a checkoff authorization to
pay one month's dues in advance on the date he becomes a member in order
to be in good standing for the current month.
Sec. 452.88 Resumption of good standing.
While it is permissible for a labor organization to deny the right
to vote to those delinquent in paying their dues (with the exceptions
noted) or to those who have been suspended or disciplined in accordance
with section 101(a)(5) of the Act, a provision under which such persons
are disqualified from voting for an extended period of time after
payment of back dues or after reinstatement would not be considered
reasonable. After a member has resumed his good-standing status, it
would be unreasonable to continue to deprive him of his right to vote
for a period longer than that for a new member. A new member may
reasonably be required to establish a relationship with the union by
remaining in good standing for a continuous period of time, e.g., 6
[[Page 189]]
months or a year, before being permitted to vote in an election of
officers. However, while the right to vote may be deferred within
reasonable limits, a union may not create special classes of nonvoting
members.
Sec. 452.89 Apprentices.
A labor organization may condition the right to vote upon completion
of a bona fide program of apprenticeship training which is designed to
produce competent tradesmen in the industry the union serves.
Sec. 452.90 Visiting members.
A decision about the voting rights of visiting members is properly
one for resolution by the union in accordance with the organization's
constitution and bylaws or applicable resolutions. For purposes of the
Act, a person is ordinarily considered to be a member of the local to
which he pays his dues.
Sec. 452.91 Voting by employers, supervisors.
Voting in union elections by employers, self-employed persons,
supervisors or other persons who are considered to be part of management
is not precluded by title IV of the Act even if they are not required to
maintain union membership as a condition of employment. However, as
mentioned in the discussion of qualifications for candidacy (see
Sec. 452.47), such persons may not dominate or interfere with the
administration of any labor organization.
Sec. 452.92 Unemployed members.
Members who are otherwise qualified to vote may not be disqualified
from voting merely because they are currently unemployed or are employed
on a part-time basis in the industry served by the union, provided, of
course, that such members are paying dues.
Sec. 452.93 Retired members.
The right of retirees to vote may be restricted to the extent
provided by the constitution and bylaws of the labor organization.
Sec. 452.94 Reasonable opportunity to vote.
The statutory protection of the right to vote implies that there
must be a reasonable opportunity to vote. Thus, there is an obligation
on the labor organization to conduct its periodic election of officers
in such a way as to afford all its members a reasonable opportunity to
cast ballots. A union may meet this obligation in a variety of ways,
depending on factors such as the distance between the members' work site
or homes and the polling place, the means of transportation available,
the nature of the members' occupations, and their hours of work. A
reasonable opportunity to vote may require establishing multiple polling
places or the use of a mail ballot referendum when the members are
widely dispersed. It would also be reasonable for the time period for
voting to be extended to accommodate members who might otherwise be
prevented from voting due to conflicting work schedules. Shortening the
voting period by a late opening of the polls would not, in itself, be
improper unless the intent or practical effect of such action is to
deprive members of their right to vote.
Sec. 452.95 Absentee ballots.
Where the union knows in advance that a substantial number or a
particular segment of the members will not be able to exercise their
right to vote in person, as, for example, when access to a polling place
is impracticable for many members because of shipping assignments,
absentee ballots or other means of voting must be made available. \45\
In the event absentee ballots are necessary the organization must give
its members reasonable notice of the availability of such ballots. \46\
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\45\ Goldberg v. Marine Cooks and Stewards Union, 204 F. Supp. 844
(N.D. Cal. 1962).
\46\ Wirtz v. Local Union 262, Glass Bottle Blowers Association, 290
F. Supp. 965 (N.D. Calif. 1968).
---------------------------------------------------------------------------
Subpart I--Election Procedures; Rights of Members
Sec. 452.96 General.
The Act safeguards democratic processes by prescribing, in section
401, minimum standards for the regular periodic election of officers in
labor organizations subject to its provisions. It
[[Page 190]]
does not, however, prescribe in detail election procedures which must be
followed. Labor organizations are free to establish procedures for
elections as long as they are fair to all members and are consistent
with lawful provisions of the organization's constitution and bylaws and
with section 401. The rights granted to members in section 401(e) refer
to individuals, not labor organizations. For example, while locals may
be members of an intermediate body, they are not entitled to the rights
granted ``members'' in section 401(e).
Sec. 452.97 Secret ballot.
(a) A prime requisite of elections regulated by title IV is that
they be held by secret ballot among the members or in appropriate cases
by representatives who themselves have been elected by secret ballot
among the members. A secret ballot under the Act is ``the expression by
ballot, voting machine, or otherwise, but in no event by proxy, of a
choice * * * cast in such a manner that the person expressing such
choice cannot be identified with the choice expressed.'' \47\ Secrecy
may be assured by the use of voting machines, or, if paper ballots are
used, by providing voting booths, partitions, or other physical
arrangements permitting privacy for the voter while he is marking his
ballot. The ballot must not contain any markings which upon examination
would enable one to identify it with the voter. Balloting by mail
presents special problems in assuring secrecy. Although no particular
method of assuring such secrecy is prescribed, secrecy may be assured by
the use of a double envelope system for return of the voted ballots with
the necessary voter identification appearing only on the outer envelope.
---------------------------------------------------------------------------
\47\ Act, sec. 3(k).
---------------------------------------------------------------------------
(b) Should any voters be challenged as they are casting their
ballots, there should be some means of setting aside the challenged
ballots until a decision regarding their validity is reached without
compromising the secrecy requirement. For example, each such ballot
might be placed in an envelope with the voter's name on the outside. Of
course, it would be a violation of the secrecy requirement to open these
envelopes and count the ballots one at a time in such a way that each
vote could be identified with a voter.
(c) In a mail ballot election, a union may require members to sign
the return envelope if the signatures may be used in determining
eligibility. However, it would be unreasonable for a union to void an
otherwise valid ballot merely because a member printed rather than
signed his name if the union does not use the signatures to determine
voter eligibility.
Sec. 452.98 Outside agencies.
There is nothing in the Act to prevent a union from employing an
independent organization as its agent to handle the printing, mailing,
and counting of ballots in such elections if all the standards of the
Act are met.
Sec. 452.99 Notice of election.
Elections required by title IV to be held by secret ballot must be
preceded by a notice of election mailed to each member at his last known
home address not less than fifteen days prior to the election. \48\ For
purposes of computing the fifteen day period, the day on which the
notices are mailed is not counted whereas the day of the election is
counted. For example, if the election is to be held on the 20th day of
the month, the notices must be mailed no later than the 5th day. The
notice must include a specification of the date, time and place of the
election and of the offices to be filled, and it must be in such form as
to be reasonably calculated to inform the members of the impending
election. Specification of the offices to be filled would not be
necessary if it is a regular, periodic election of all officers and the
notice so indicates. A statement in the union bylaws that an election
will be held at a certain time does not constitute the notice required
by the statute. Since the Act specifies that the notice must be mailed,
other means of transmission such as posting on a bulletin board or hand
delivery will not satisfy the requirement. A notice of election must be
sent to every member as defined in section 3(o) of the Act, not only to
[[Page 191]]
members who are eligible to vote in the election. Where the notice, if
mailed to the last known permanent or legal residence of the member,
would not be likely to reach him because of a known extended absence
from that place, the statutory phrase ``last known home address'' may
reasonably be interpreted to refer to the last known temporary address
of definite duration. A single notice for both nominations and election
may be used if it meets the requirements of both such notices. \49\
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\48\ Act, sec. 401(e).
\49\ See Sec. 452.56 for a discussion of the requirements for
notices of nomination.
[38 FR 18324, July 9, 1973, as amended at 63 FR 33780, June 19, 1998]
Sec. 452.100 Use of union newspaper as notice.
A labor organization may comply with the election notice requirement
by publishing the notice in the organization's newspaper which is mailed
to the last known home address of each member not less than fifteen days
prior to the election. Where this procedure is used (a) the notice
should be conspicuously placed on the front page of the newspaper, or
the front page should have a conspicuous reference to the inside page
where the notice appears, so that the inclusion of the election notice
in a particular issue is readily apparent to each member; (b) the notice
should clearly identify the particular labor organization holding the
election; (c) the notice should specify the time and place of the
election and the offices to be filled; and (d) a reasonable effort must
be made to keep the mailing list of the publication current.
Sec. 452.101 Sample ballots as notice.
Sample ballots together with information as to the time and place of
the election and the offices to be filled, if mailed fifteen days prior
to the election, will fulfill the election notice requirements.
Sec. 452.102 Notice in mail ballot election.
If the election is conducted by mail and no separate notice is
mailed to the members, the ballots must be mailed to the members no
later than fifteen days prior to the date when they must be mailed back
in order to be counted.
Sec. 452.103 Primary elections.
The fifteen-day election notice provision applies to a ``primary
election'' at which nominees are chosen. Likewise, the fifteen-day
election notice requirement applies to any runoff election which may be
held after an inconclusive election. However, a separate notice would
not be necessary if the election notice for the first election advises
the members of the possibility of a runoff election and specifies such
details as the time and place of such runoff election as may be
necessary.
Sec. 452.104 Proximity of notice to election.
(a) The statutory requirement for giving fifteen days' notice of
election is a minimum standard. There is no objection to giving more
notice than is required by law. However, it was clearly the intent of
Congress to have members notified at a time which reasonably precedes
the date of the election. For example, notice in a union publication
which is expected to cover elections to be held six months later would
not be considered reasonable.
(b) Should a union change the date of an election from the date
originally announced in the mail notice to the members, it must mail a
second notice, containing the corrected date, at least fifteen days
before the election.
Sec. 452.105 Interference or reprisal.
Title IV expressly provides for the right of a member to vote for
and otherwise support the candidates of his choice without being subject
to penalty, discipline, or improper interference or reprisal of any kind
by the labor organization conducting the election or any officer or
member thereof. \50\
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\50\ Act, section 401(e). In Wirtz v. Local 1752, ILA, 56 LRRM 2303,
49 L.C. [para]18,998 (S.D. Miss. 1963), the court, under its equitable
jurisdiction, granted a preliminary injunction on the motion of the
Secretary to enjoin a union from taking disciplinary action against a
member. The member had filed a complaint with the Secretary under
section 402(a) that resulted in the Secretary filing suit under 402(b).
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[[Page 192]]
Sec. 452.106 Preservation of records.
In every secret ballot election which is subject to the Act, the
ballots and all other records pertaining to the election must be
preserved for one year. \51\ The responsibility for preserving the
records is that of the election officials designated in the constitution
and bylaws of the labor organization or, if none is so designated, its
secretary. Since the Act specifies that ballots must be retained, all
ballots, marked or unmarked, must be preserved. Independent
certification as to the number and kind of ballots destroyed may not be
substituted for preservation. In addition, ballots which have been
voided, for example, because they were received late or because they
were cast for an ineligible candidate, must also be preserved.
---------------------------------------------------------------------------
\51\ Act, section 401(e).
---------------------------------------------------------------------------
Sec. 452.107 Observers.
(a) Under the provisions of section 401(c), each candidate must be
permitted to have an observer (1) at the polls and (2) at the counting
of the ballots. This right encompasses every phase and level of the
counting and tallying process, including the counting and tallying of
the ballots and the totaling, recording, and reporting of tally sheets.
If there is more than one polling place, the candidate may have an
observer at each location. If ballots are being counted at more than one
location or at more than one table at a single location, a candidate is
entitled to as many observers as necessary to observe the actual
counting of ballots. The observer may note the names of those voting so
that the candidates may be able to ascertain whether unauthorized
persons voted in the election. The observers should be placed so that
they do not compromise, or give the appearance of compromising, the
secrecy of the ballot. The observer is not required to be a member of
the labor organization unless the union's constitution and bylaws
require him to be a member. There is no prohibition on the use of
alternate observers, when necessary, or on a candidate serving as his
own observer. Observers do not have the right to count the ballots.
(b) The right to have an observer at the polls and at the counting
of the ballots extends to all candidates for office in an election
subject to title IV, i.e., this includes elections in intermediate
bodies as well as elections in locals and national and international
labor organizations.
(c) In any secret ballot election which is conducted by mail,
regardless of whether the ballots are returned by members to the labor
organization office, to a mail box, or to an independent agency such as
a firm of certified public accountants, candidates must be permitted to
have an observer present at the preparation and mailing of the ballots,
their receipt by the counting agency and at the opening and counting of
the ballots.
(d) Paying election observers is the responsibility of the candidate
they represent unless the union has a rule providing for the payment of
observers. If the union does have such a rule, it must be uniformly
applied to all candidates.
Sec. 452.108 Publication of results.
In any election which is required by the Act to be held by secret
ballot, the votes cast by members of each local labor organization must
be counted, and the results published, separately. \52\ For example,
where officers of an intermediate body are elected directly by members,
the votes of each local must be tabulated and published separately. The
publishing requirement is to assure that the results of the voting in
each local are made known to all interested members. Thus, the
presentation of the election report at a regular local membership
meeting, and the entry of the report in the minutes, would normally
accomplish this purpose in a local election. Such minutes would have to
be available for inspection by members at reasonable times, unless
copies of the report are made available. In an election that encompasses
more
[[Page 193]]
than one local, publication may be accomplished by posting on
appropriate bulletin boards, or in a union newspaper, or by any
procedure which allows any member to obtain the information without
unusual effort. Of course, the counting and reporting should account for
all ballots cast in the election, although only valid votes will be
counted in determining the successful candidates.
---------------------------------------------------------------------------
\52\ Act, sec. 401(e). See also Senate Report 187, 86th Cong. 1st
sess., p. 47; Daily Cong. Rec. p. 13682, Aug. 3, 1959, and p. A6573,
July 29, 1959.
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Sec. 452.109 Constitution of labor organization.
Elections must be conducted in accordance with the constitution and
bylaws of the organization insofar as they are not inconsistent with the
provisions of title IV. \53\
---------------------------------------------------------------------------
\53\ Act, sec. 401(e). Under 29 CFR 402.10, a labor organization is
required to make available to all members a copy of its constitution and
bylaws.
---------------------------------------------------------------------------
Sec. 452.110 Adequate safeguards.
(a) In addition to the election safeguards discussed in this part,
the Act contains a general mandate in section 401(c), that adequate
safeguards to insure a fair election shall be provided. Such safeguards
are not required to be included in the union's constitution and bylaws,
but they must be observed. A labor organization's wide range of
discretion regarding the conduct of elections is thus circumscribed by a
general rule of fairness. For example, if one candidate is permitted to
have his nickname appear on the ballot, his opponent should enjoy the
same privilege.
(b) A union's failure to provide voters with adequate instructions
for properly casting their ballots may violate the requirement of
adequate safeguards to insure a fair election.
Sec. 452.111 Campaigning in polling places.
There must not be any campaigning within a polling place \54\ and a
union may forbid any campaigning within a specified distance of a
polling place.
---------------------------------------------------------------------------
\54\ See Hodgson v. UMW, 344 F.Supp. 17 (D.D.C. 1972).
---------------------------------------------------------------------------
Sec. 452.112 Form of ballot; slate voting.
The form of the ballot is not prescribed by the Act. Thus, a union
may, if it so desires, include a proposed bylaw change or other similar
proposal on a ballot along with the candidates for office so long as
this is permissible under the union's constitution and bylaws. A
determination as to the position of a candidate's name on the ballot may
be made by the union in any reasonable manner permitted by its
constitution and bylaws, consistent with the requirement of fairness and
the other provisions of the Act. For example, candidates may be listed
according to their affiliation with a particular slate. However, while
``slate voting'' is permissible, the balloting must be consistent with
the right of members to vote for the candidates of their choice. Thus,
there must be provision for the voter to choose among individual
candidates if he does not wish to vote for an entire slate. To avoid any
misunderstanding in this regard, the voting instructions should
specifically inform the voter that he need not vote for an entire slate.
Sec. 452.113 Sectional balloting.
The ballots may be prepared so that the names of candidates for
positions representative of a particular area appear only on the ballots
received by members living in that area.
Sec. 452.114 Write-in votes.
Where write-in votes are permitted in an election subject to title
IV, details of the format of the ballot are left to the discretion of
the union. Ordinarily, the Secretary would become involved in such
matters only in the context of an election complaint under section 402
and then only if the arrangements for write-in votes were so
unreasonable that the outcome of the election may have been affected. Of
course, a union may, in accordance with its constitution and bylaws or
as a matter of stated policy, refuse to permit write-in votes.
Sec. 452.115 Distribution of ballots.
So long as secrecy of the ballot is maintained, there is no
restriction on how the ballots are distributed to the
[[Page 194]]
voters. Any method which actually provides each eligible voter with one
blank ballot would be in conformance with the law.
Sec. 452.116 Determining validity of ballots.
Generally, a labor organization has a right to establish reasonable
rules for determining the validity of ballots cast in an election.
However, where the union has no published guides for determining the
validity of a voted ballot, it must count any ballot voted in such a way
as to indicate fairly the intention of the voter. An entire ballot may
not be voided because of a mistake made in voting for one of the offices
on the ballot.
Sec. 452.117 Majority of votes not required for election.
A labor organization may by its constitution and bylaws provide for
the election of the candidate who receives the greatest number of votes,
although he does not have a majority of all the votes cast.
Alternatively, it may provide that where no candidate receives a
majority of all the votes cast, a run-off election be held between the
two candidates having the highest vote. Similarly, a labor organization
conducting an election to choose five members of an executive board may
designate as elected from among all the nominees the five candidates who
receive the highest vote.
Sec. 452.118 Local unions agents in international elections.
An international union may establish internal rules which require
local or intermediate union officials to act as agents of the
international in conducting designated aspects of the international
referendum election of officers. The consequences of the failure to
perform as directed by such officials will, of course, depend on the
totality of the circumstances involved.
Sec. 452.119 Indirect elections.
National or international labor organizations subject to the Act
have the option of electing officers either directly by secret ballot
among the members in good standing or at a convention of delegates or
other representatives who have been elected by secret ballot among the
members. Intermediate labor organizations subject to the Act have the
option of electing officers either directly by secret ballot among the
members in good standing or by labor organization officers or delegates
elected by secret ballot vote of the members they represent. Local
unions, in contrast, do not have the option of conducting their periodic
elections of officers indirectly through representatives.
Sec. 452.120 Officers as delegates.
Officers of labor organizations who have been elected by secret
ballot vote of their respective memberships may, by virtue of their
election to office, serve as delegates to conventions at which officers
will be elected, if the constitution and bylaws of the labor
organization so provide. In such cases it is advisable to have a
statement to this effect included on the ballots. Persons who have been
appointed to serve unexpired terms of officers who are ex officio
delegates to a convention at which officers will be elected may not vote
for officers in such election.
Sec. 452.121 Limitations on national or international officers serving as delegates.
While officers of national or international labor organizations or
of intermediate bodies who have been elected by a vote of the delegates
to a convention may serve as delegates to conventions of their
respective labor organizations if the constitution and bylaws so
provide, they may not vote in officer elections at such conventions
unless they have also been elected as delegates by a secret ballot vote
of the members they are to represent. Of course, such officers may
participate in the convention, i.e., they may preside over the
convention, be nominated as candidates, or act in other capacities
permitted under the organization's constitution and bylaws.
Sec. 452.122 Delegates from intermediate bodies; method of election.
A delegate from an intermediate body who participates in the
election of officers at a national or international convention must have
been
[[Page 195]]
elected by a secret ballot vote of the individual members of the
constituent units of that body. He may not participate if he was elected
by the delegates who make up the intermediate body. The secret ballot
election required by the Act is an election among the general membership
and not an election of delegates by other delegates.
Sec. 452.123 Elections of intermediate body officers.
Section 401(d) states that officers of intermediate bodies shall be
elected either by secret ballot among the members in good standing or by
labor organization officers representative of such members who have been
elected by secret ballot. The phrase ``officers representative of such
members'' includes delegates who have been elected by secret ballot to
represent labor organizations in intermediate bodies. Such delegates may
therefore participate in the election of officers of intermediate bodies
regardless of whether they are characterized as officers of the labor
organization they represent.
Sec. 452.124 Delegates from units which are not labor organizations.
To the extent that units, such as committees, which do not meet the
definition of a labor organization under the Act \55\ participate in the
election of officers of a national or international labor organization
or an intermediate body, through delegates to the convention or
otherwise, the provisions of title IV are, nevertheless, applicable to
the election of such delegates. The following example is typical in
organizations of railway employees. The chairman of a local grievance
committee, which is not a labor organization under the Act, is not an
officer within the meaning of the Act. If such a local chairman is a
delegate to the general grievance committee, which is considered to be
an intermediate body under the Act, however, he must be elected by
secret ballot vote of the members he represents, if he votes for
officers of the general grievance committee.
---------------------------------------------------------------------------
\55\ Act, sec. 3 (i) and (j) and part 451 of this chapter.
---------------------------------------------------------------------------
Sec. 452.125 Delegates from labor organizations under trusteeship.
It would be unlawful under section 303(a)(1) of the Act to count the
votes of delegates from a labor organization under trusteeship in any
convention or election of officers of the organization imposing the
trusteeship unless such delegates were chosen by secret ballot vote in
an election in which all the members in good standing of the subordinate
organization were eligible to participate.\56\
---------------------------------------------------------------------------
\56\ Section 303(b) of the LMRDA provides criminal penalties for
violation of section 303(a)(1).
---------------------------------------------------------------------------
Sec. 452.126 Delegates to conventions which do not elect officers.
Delegates to conventions need not be elected by secret ballot when
officers of the organization are elected by a secret ballot vote of the
entire membership. However, if the only method of making nominations is
by delegates, then the delegates must be elected by secret ballot.
Sec. 452.127 Proportionate representation.
When officers of a national, international or intermediate labor
organization are elected at a convention of delegates who have been
chosen by secret ballot, the structure of representation of the
membership is a matter for the union to determine in accordance with its
constitution and bylaws. There is no indication that Congress intended,
in enacting title IV of the Act, to require representation in delegate
bodies of labor organizations to reflect the proportionate number of
members in each subordinate labor organization represented in such
bodies. Questions of such proportionate representation are determined in
accordance with the labor organization's constitution and bylaws insofar
as they are not inconsistent with the election provisions of the Act.
Congress did not attempt to specify the organizational structure or the
system of representation which unions must adopt. However, all members
must be represented; the union may not deny representation to locals
below a certain size.
[[Page 196]]
Sec. 452.128 Under-strength representation.
A local union may elect fewer delegates than it is permitted under
the union constitution as long as the local is allowed to determine for
itself whether or not it will send its full quota of delegates to the
union convention. The delegates present from a local may cast the entire
vote allotted to that local if this is permitted by the constitution and
bylaws.
Sec. 452.129 Non-discrimination.
Further, distinctions in representational strength among or within
locals may not be based on arbitrary and unreasonable factors such as
race, sex, or class of membership based on type of employment.
Sec. 452.130 Expenses of delegates.
A local may elect two groups--one which would receive expenses while
the other would be required to pay its own way, provided each member has
an equal opportunity to run for the expense-paid as well as the non-
expense-paid positions.
Sec. 452.131 Casting of ballots; delegate elections.
The manner in which the votes of the representatives are cast in the
convention is not subject to special limitations. For example, the
voting may be by secret ballot, by show of hands, by oral roll call
vote, or if only one candidate is nominated for an office, by
acclamation or by a motion authorizing the convention chairman to cast a
unanimous vote of the delegates present.
Sec. 452.132 Proxy voting.
There is no prohibition on delegates in a convention voting by
proxy, if the constitution and bylaws permit.
Sec. 452.133 Election of delegates not members of the labor organization.
A labor organization's constitution and bylaws may authorize the
election of delegates who are not members of the subordinate labor
organization they represent, provided the members of the subordinate
organization are also eligible to be candidates.
Sec. 452.134 Preservation of records.
The credentials of delegates, and all minutes and other records
pertaining to the election of officers at conventions, must be preserved
for one year by the officials designated in the constitution and bylaws
or by the secretary if no other officer is designated. This requirement
applies not only to conventions of national or international labor
organizations, but also to representative bodies of intermediate labor
organizations.
Subpart J--Special Enforcement Provisions
Sec. 452.135 Complaints of members.
(a) Any member of a labor organization may file a complaint with the
Office of Labor-Management Standards alleging that there have been
violations of requirements of the Act concerning the election of
officers, delegates, and representatives (including violations of
election provisions of the organization's constitution and bylaws that
are not inconsistent with the Act.).\57\ The complaint may not be filed
until one of the two following conditions has been met: (1) The member
must have exhausted the remedies available to him under the constitution
and bylaws of the organization and its parent body, or (2) he must have
invoked such remedies without obtaining a final decision within three
calendar months after invoking them.
---------------------------------------------------------------------------
\57\ Act, sec. 402(a).
---------------------------------------------------------------------------
(b) If the member obtains an unfavorable final decision within three
calendar months after invoking his available remedies, he must file his
complaint within one calendar month after obtaining the decision. If he
has not obtained a final decision within three calendar months, he has
the option of filing his complaint or of waiting until he has exhausted
the available remedies within the organization. In the latter case, if
the final decision is ultimately unfavorable, he will have one month in
which to file his complaint.
[[Page 197]]
Sec. 452.136 Investigation of complaint by Office of Labor-Management Standards, court action by the Secretary.
(a) The Office of Labor-Management Standards is required to
investigate each complaint of a violation filed in accordance with the
requirements of the Act and, if the Secretary finds probable cause to
believe that a violation has occurred and has not been remedied, he is
directed to bring within 60 days after the complaint has been filed a
civil action against the labor organization in a Federal district court.
In any such action brought by the Secretary the statute provides that
if, upon a preponderance of the evidence after a trial upon the merits,
the court finds (1) that an election has not been held within the time
prescribed by the election provisions of the Act or (2) that a violation
of these provisions ``may have affected the outcome of an election'',
the court shall declare the election, if any, to be void and direct the
conduct of an election under the supervision of the Secretary, and, so
far as is lawful and practicable, in conformity with the constitution
and bylaws of the labor organization.
(b) Violations of the election provisions of the Act which occurred
in the conduct of elections held within the prescribed time are not
grounds for setting aside an election unless they ``may have affected
the outcome.'' The Secretary, therefore, will not institute court
proceedings upon the basis of a complaint alleging such violations
unless he finds probable cause to believe that they ``may have affected
the outcome of an election.''
(b-1) The Supreme Court, in Hodgson v. Local Union 6799,
Steelworkers Union of America, 403 U.S. 333, 91 S.Ct. 1841 (1971), ruled
that the Secretary of Labor may not include in his complaint a violation
which was known to the protesting member but was not raised in the
member's protest to the union.
Complaints filed by the Department of Labor will accordingly be limited
by that decision to the matters which may fairly be deemed to be within
the scope of the member's internal protest and those which investigation
discloses he could not have been aware of.
(c) Elections challenged by a member are presumed valid pending a
final decision. The statute provides that until such time, the affairs
of the labor organization shall be conducted by the elected officers or
in such other manner as the union constitution and bylaws provide.
However, after suit is filed by the Secretary the court has power to
take appropriate action to preserve the labor organization's assets.
[38 FR 18324, July 3, 1973, as amended at 39 FR 37360, Oct. 21, 1974]
Subpart K--Dates and Scope of Application
Sec. 452.137 Effective dates.
(a) Section 404 states when the election provisions of the Act
become applicable.\58\ In the case of labor organizations whose
constitution and bylaws can be lawfully modified or amended by action of
the organization's ``constitutional officers or governing body,'' the
election provisions become applicable 90 days after the enactment of the
statute (December 14, 1959). Where the modification of the constitution
and bylaws of a local labor organization requires action by the
membership at a general meeting or by referendum, the general membership
would be a ``governing body'' within the meaning of this provision. In
the cases where any necessary modification of the constitution and
bylaws can be made only by a constitutional convention of the labor
organization, the election provisions become applicable not later than
the next constitutional convention after the enactment of the statute,
or one year after the enactment of the statute, whichever is sooner.
---------------------------------------------------------------------------
\58\ Act, sec. 404.
---------------------------------------------------------------------------
(b) The statute does not require the calling of a special
constitutional convention to make such modifications. However, if no
convention is held within the one-year period, the executive board or
similar governing body that has the power to act for the labor
organization between conventions is empowered by the statute to make
such interim constitutional changes as are necessary to carry out the
provisions
[[Page 198]]
of title IV of the Act. Any election held thereafter would have to
comply with the requirements of the Act.
Sec. 452.138 Application of other laws.
(a) Section 403 \59\ provides that no labor organization shall be
required by law to conduct elections of officers with greater frequency
or in a different form or manner than is required by its own
constitution or bylaws, except as otherwise provided by the election
provisions of the Act.
---------------------------------------------------------------------------
\59\ Act, sec. 403.
---------------------------------------------------------------------------
(b) The remedy \60\ provided in the Act for challenging an election
already conducted is exclusive.\61\ However, existing rights and
remedies to enforce the constitutions and bylaws of such organizations
before an election has been held are unaffected by the election
provisions. Section 603 \62\ which applies to the entire Act, states
that except where explicitly provided to the contrary, nothing in the
Act shall take away any right or bar any remedy of any union member
under other Federal law or law of any State.
---------------------------------------------------------------------------
\60\ Act, sec. 402.
\61\ Act, sec. 403. See Daily Cong. Rec. 86th Cong., 1st sess., p.
9115, June 8, 1959, pp. 13017 and 13090, July 27, 1959. H. Rept. No.
741, p. 17; S. Rept. No. 187, pp. 21-22, 101, 104. Hearings, House Comm.
on Education and Labor, 86th Cong., 1st sess., pt. 1, p. 1611. See also
Furniture Store Drivers Local 82 v. Crowley, 104 S.Ct. 2557 (1984).
\62\ Act, sec. 603.
[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985]