OFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABOR

[Title 29 CFR IV]
[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]
[From the U.S. Government Printing Office]

29LABOR22002-07-012002-07-01falseOFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABORIVCHAPTER IVLABORRegulations Relating to Labor
CHAPTER IV--OFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABOR

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SUBCHAPTER A--LABOR-MANAGEMENT STANDARDS
Part Page
401 Meaning of terms used in this subchapter.... 137
402 Labor organization information reports...... 139
403 Labor organization annual financial reports. 142
404 Labor organization officer and employee
reports................................. 145
405 Employer reports............................ 147
406 Reporting by labor relations consultants and
other persons, certain agreements with
employers............................... 149
408 Labor organization trusteeship reports...... 152
409 Reports by surety companies................. 154
417 Procedure for removal of local labor
organization officers................... 155
451 Labor organizations as defined in the Labor-
Management Reporting and Disclosure Act
of 1959................................. 161
452 General statement concerning the election
provisions of the Labor-Management
Reporting and Disclosure Act of 1959.... 166
453 General statement concerning the bonding
requirements of the Labor-Management
Reporting and Disclosure Act of 1959.... 198
SUBCHAPTER B--STANDARDS OF CONDUCT
457 General..................................... 209
458 Standards of conduct........................ 211
459 Miscellaneous............................... 224

[[Page 137]]

SUBCHAPTER A--LABOR-MANAGEMENT STANDARDS

PART 401--MEANING OF TERMS USED IN THIS SUBCHAPTER--Table of Contents

Sec.
401.1 Commerce.
401.2 State.
401.3 Industry affecting commerce.
401.4 Person.
401.5 Employer.
401.6 Employee.
401.7 Labor dispute.
401.8 Trusteeship.
401.9 Labor organization.
401.10 Labor organization engaged in an industry affecting commerce.
401.11 Secret ballot.
401.12 Trust in which a labor organization is interested.
401.13 Labor relations consultant.
401.14 Officer.
401.15 Member or member in good standing.
401.16 Secretary.
401.17 Act.
401.18 Office.
401.19 Assistant Secretary.

Authority: Secs. 3, 208, 301, 401, 402, 73 Stat. 520, 529, 530, 532,
534 (29 U.S.C. 402, 438, 461, 481, 482); Secretary's Order No. 5-96, 62
FR 107, January 2, 1997; Sec. 401.4 also issued under sec. 320 of Title
III of the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2678.

Source: 28 FR 14380, Dec. 27, 1963, unless otherwise noted.

Sec. 401.1 Commerce.

Commerce means trade, traffic, commerce, transportation,
transmission, or communication among the several States or between any
State and any place outside thereof.

Sec. 401.2 State.

State includes any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake
Island, the Canal Zone, and Outer Continental Shelf lands defined in the
Outer Continental Shelf Lands Act (43 U.S.C. 1331-1343).

Sec. 401.3 Industry affecting commerce.

Industry affecting commerce means any activity, business, or
industry in commerce or in which a labor dispute would hinder or
obstruct commerce or the free flow of commerce and includes any activity
or industry ``affecting commerce'' within the meaning of the Labor
Management Relations Act, 1947, as amended, or the Railway Labor Act, as
amended.

Sec. 401.4 Person.

Person includes one or more individuals, labor organizations,
partnerships, associations, corporations, legal representatives, mutual
companies, joint-stock companies, trusts, unincorporated organizations,
trustees, trustees in cases under title 11 of the United States Code, or
receivers.

[45 FR 70445, Oct. 24, 1980, as amended at 59 FR 15115, Mar. 31, 1994]

Sec. 401.5 Employer.

Employer means any employer or any group or association of employers
engaged in an industry affecting commerce (a) which is, with respect to
employees engaged in an industry affecting commerce, an employer within
the meaning of any law of the United States relating to the employment
of any employees or (b) which may deal with any labor organization
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work, and includes any person acting
directly or indirectly as an employer or as an agent of an employer in
relation to an employee but does not include the United States or any
corporation wholly owned by the Government of the United States or any
State or political subdivision thereof.

Sec. 401.6 Employee.

Employee means any individual employed by an employer, and includes
any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair
labor practice or because of exclusion or expulsion from a labor
organization in any manner or for any reason inconsistent with the
requirements of this Act.

Sec. 401.7 Labor dispute.

Labor dispute includes any controversy concerning terms, tenure, or

[[Page 138]]

conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining, changing,
or seeking to arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of employer and
employee.

Sec. 401.8 Trusteeship.

Trusteeship means any receivership, trusteeship, or other method of
supervision or control whereby a labor organization suspends the
autonomy otherwise available to a subordinate body under its
constitution or bylaws.

Sec. 401.9 Labor organization.

Labor organization means a labor organization engaged in an industry
affecting commerce and includes any organization of any kind, any
agency, or employee representation committee, group, association, or
plan so engaged in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours, or other terms
or conditions of employment, and any conference, general committee,
joint or system board, or joint council so engaged which is subordinate
to a national or international labor organization, other than a State or
local central body.

Sec. 401.10 Labor organization engaged in an industry affecting commerce.

A labor organization shall be deemed to be engaged in an industry
affecting commerce if it:
(a) Is the certified representative of employees under the
provisions of the National Labor Relations Act, as amended, or the
Railway Labor Act, as amended; or
(b) Although not certified, is a national or international labor
organization or a local labor organization recognized or acting as the
representative of employees of an employer or employers engaged in an
industry affecting commerce; or
(c) Has chartered a local labor organization or subsidiary body
which is representing or actively seeking to represent employees of
employers within the meaning of paragraph (a) or (b) of this section; or
(d) Has been chartered by a labor organization representing or
actively seeking to represent employees within the meaning of paragraph
(a) or (b) of this section as the local or subordinate body through
which such employees may enjoy membership or become affiliated with such
labor organization; or
(e) Is a conference, general committee, joint or system board, or
joint council, subordinate to a national or international labor
organization, which includes a labor organization engaged in an industry
affecting commerce within the meaning of any of the preceding paragraphs
of this section, other than a State or local central body.

Sec. 401.11 Secret ballot.

Secret ballot means the expression by ballot, voting machine, or
otherwise, but in no event by proxy, of a choice with respect to any
election or vote taken upon any matter, which is cast in such a manner
that the person expressing such choice cannot be identified with the
choice expressed.

Sec. 401.12 Trust in which a labor organization is interested.

Trust in which a labor organization is interested means a trust or
other fund or organization (a) which was created or established by a
labor organization, or one or more of the trustees or one or more
members of the governing body of which is selected or appointed by a
labor organization, and (b) a primary purpose of which is to provide
benefits for the members of such labor organization or their
beneficiaries.

Sec. 401.13 Labor relations consultant.

Labor relations consultant means any person who, for compensation,
advises or represents an employer, employer organization, or labor
organization concerning employee organizing, concerted activities, or
collective bargaining activities.

Sec. 401.14 Officer.

Officer means any constitutional officer, any person authorized to
perform

[[Page 139]]

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. 401.15 Member or member in good standing.

Member or member in good standing, when used in reference to a labor
organization, includes any person who has fulfilled the requirements for
membership in such organization, and who neither has voluntarily
withdrawn from membership nor has been expelled or suspended from
membership after appropriate proceedings consistent with lawful
provisions of the constitution and bylaws of such organization.

Sec. 401.16 Secretary.

Secretary means the Secretary of Labor.

Sec. 401.17 Act.

Act means the Labor-Management Reporting and Disclosure Act of 1959.

Sec. 401.18 Office.

Office means the Office of Labor-Management Standards, Employment
Standards Administration, United States Department of Labor.

[62 FR 6092, Feb. 10, 1997]

Sec. 401.19 Assistant Secretary.

Assistant Secretary means the Assistant Secretary of Labor for
Employment Standards, head of the Employment Standards Administration.

[62 FR 6092, Feb. 10, 1997]

PART 402--LABOR ORGANIZATION INFORMATION REPORTS--Table of Contents

Sec.
402.1 Labor organization constitution and bylaws.
402.2 Labor organization initial information report.
402.3 Filing of initial reports.
402.4 Subsequent reports.
402.5 Terminal reports.
402.6 Receipt of reports and documents.
402.7 Effect of acknowledgment and filing by the Office of Labor-
Management Standards.
402.8 Personal responsibility of signatories of reports.
402.9 Maintenance and retention of records.
402.10 Dissemination and verification of reports.
402.11 Attorney-client communications exempted.
402.12 Publication of reports required by this part.
402.13 OMB control number.

Authority: Secs. 201, 207, 208, 73 Stat. 524, 529 (29 U.S.C. 431,
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14381, Dec. 27, 1963, unless otherwise noted.

Sec. 402.1 Labor organization constitution and bylaws.

Every labor organization shall adopt a constitution and bylaws
consistent with the provisions of the Act applicable thereto, within 90
days after the date the labor organization first becomes subject to the
Act. This shall not, however, require the formal readoption by a labor
organization of such a constitution and bylaws which it has previously
adopted and under which it is operating when the report prescribed by
Sec. 402.2 is filed. As used in this part constitution and bylaws means
the basic written rules governing the organization.

[28 FR 14381, Dec. 27, 1963, as amended at 40 FR 58856, Dec. 19, 1975]

Sec. 402.2 Labor organization initial information report.

Every labor organization shall file a report signed by its president
and secretary or corresponding principal officers containing the
information required to be filed by section 201(a) of the Act, and found
necessary to be reported under section 208 thereof by the Assistant
Secretary, on United States Department of Labor Form LM-1 \1\ entitled,
``Labor Organization Information Report''. There shall be attached to
such report and made a part thereof a copy of the constitution and
bylaws adopted by the reporting labor organization.
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\1\ Filed as part of the original document.

[28 FR 14381, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 402.3 Filing of initial reports.

(a) Every labor organization shall file with the Office of Labor-
Management

[[Page 140]]

Standards the report and (subject to the provisions of paragraph (b) of
this section, where applicable) a copy of its constitution and bylaws
required by section 201(a) of the Act and Sec. 402.2, together with one
additional copy of each, within 90 days after the date on which it first
becomes subject to the Act.
(b) A labor organization subject to paragraph (a) of this section
may adopt or may have adopted as its constitution and bylaws (whether by
formal action or by virtue of affiliation with a parent organization) a
constitution and bylaws of a national or international labor
organization which the national or international organization is
required to file under section 201(a) of the Act and this part. In such
a case, a filing by the national or international labor organization of
copies of such constitution and bylaws will be accepted as a filing of
such documents by each such adopting labor organization within the
meaning of section 201(a) of the Act and this part, if the following
conditions are met:
(1) The national or international labor organizations shows in its
report filed under paragraph (a) of this section that copies of its
constitution and bylaws are being filed on behalf of such adopting
organizations as well as on its own behalf, and files such number of
additional copies as the Office of Labor-Management Standards may
request, and
(2) The adopting labor organization shows in its report filed under
paragraph (a) of this section that the national or international
constitution and bylaws are also its constitution and bylaws and that
copies are filed on its behalf by the national or international labor
organization.

If the constitution and bylaws of the adopting labor organization
include other documents, this shall be shown in such report and copies
shall be filed as provided in paragraph (a) of this section.

[28 FR 14381, Dec. 27, 1963, as amended at 35 FR 2990, Feb. 13, 1970; 40
FR 58856, Dec. 19, 1975; 50 FR 31309, Aug. 1, 1985]

Sec. 402.4 Subsequent reports.

(a) Except as noted elsewhere in this paragraph, every labor
organization which revises the most recent constitution and bylaws it
has filed with the Office of Labor-Management Standards shall file two
dated copies of its revised constitution and bylaws at the time it files
its annual financial report as provided in part 403 of this chapter.
However, a labor organization which has as its constitution and bylaws a
uniform constitution and bylaws prescribed by the reporting labor
organization's parent national or international labor organization in
accordance with Sec. 402.3(b) is not required to file copies of a
revised uniform constitution and bylaws if the parent national or
international labor organization files as many copies of the revised
constitution and bylaws with the Office of Labor-Management Standards as
the Office may request.
(b) Every labor organization which changes the practices and
procedures for which separate statements must be filed pursuant to
subsection 201(a)(5) (A) through (M) of the Act shall file with the
Office of Labor-Management Standards two copies of an amended Form LM-1,
signed by its president and secretary or corresponding principal
officers. The amended Form LM-1 shall be filed when the labor
organization files its annual financial report as provided in part 403
of this chapter.

[58 FR 67604, Dec. 21, 1993]

Sec. 402.5 Terminal reports.

(a) Any labor organization required to file reports under the
provisions of this part, which ceases to exist by virtue of dissolution
or any other form of termination of its existence as a labor
organization, or which loses its identity as a reporting labor
organization through merger, consolidation or otherwise, shall file a
report containing a detailed statement of the circumstances and
effective date of such termination or loss of reporting identity, and if
the latter, such report shall also state the name and mailing address of
the labor organization into which it has been consolidated, merged, or
otherwise absorbed. Such report shall be submitted on Form LM-2 in
connection with the terminal financial report required by Sec. 403.5 of
this chapter and shall be signed by the president and treasurer, or
corresponding principal officers, of the

[[Page 141]]

labor organization at the time of its termination or loss of reporting
identity and, together with a copy thereof, shall be filed with the
Office of Labor-Management Standards within 30 days of the effective
date of such termination or loss of reporting identity, as the case may
be.
(b) Labor organizations which qualify to use Form LM-3, the Labor
Organization Annual Report, pursuant to Secs. 403.4 and 403.5 of this
chapter may file the terminal report called for in this section on Form
LM-3. This report must be signed by the president and treasurer, or
corresponding principal officers, of the labor organization.
(c) Labor organizations which qualify to use Form LM-4, the Labor
Organization Annual Report, pursuant to Secs. 403.4 and 403.5 of this
chapter may file the terminal report called for in this section on Form
LM-4. The report must be signed by the president and treasurer, or
corresponding principal officers, of the labor organization.

[28 FR 14381, Dec. 27, 1963, as amended at 62 FR 6092, Feb. 10, 1997]

Sec. 402.6 Receipt of reports and documents.

Upon receipt of all reports and documents submitted for filing under
the provisions of this part, the Office of Labor-Management Standards
shall assign to the initial information report filed by each labor
organization, an identifying number. This number thereafter shall be
entered by the reporting labor organization on all subsequent or
terminal reports and all other documents which it thereafter submits for
filing under this part, as well as on all communications directed to the
Office concerning such reports and documents.

Sec. 402.7 Effect of acknowledgment and filing by the Office of Labor-Management Standards.

Acknowledgment by the Office of Labor-Management Standards of the
receipt of reports and documents submitted for filing under this part,
is intended solely to inform the sender of the receipt thereof by the
Office, and neither such acknowledgment nor the filing of such reports
and documents by the Office constitutes express or implied approval
thereof, or in any manner indicates that the content of any such report
or document fulfills the reporting or other requirements of the Act, or
of the regulations in this chapter, applicable thereto.

Sec. 402.8 Personal responsibility of signatories of reports.

Each individual required to sign any report under section 201(a) of
the Act and under this part shall be personally responsible for the
filing of such report and for any statement contained therein which he
knows to be false.

Sec. 402.9 Maintenance and retention of records.

Every person required to file any report under this part shall
maintain records on the matters required to be reported which will
provide in sufficient detail the necessary basic information and data
from which the documents filed with the Office of Labor-Management
Standards may be verified, explained or clarified, and checked for
accuracy and completeness, and shall include vouchers, worksheets,
receipts, and applicable resolutions, and shall keep such records
available for examination for a period of not less than five years after
the filing of the documents based on the information which they contain.

Sec. 402.10 Dissemination and verification of reports.

Every labor organization required to submit a report under section
201(a) of the Act and under this part shall make available to all its
members the information required to be contained in such report,
including the copy of the constitution and bylaws required to be filed
therewith, and every such labor organization and its officers shall be
under a duty to permit such member for just cause to examine any books,
records, and accounts necessary to verify such report and constitution
and bylaws.

[28 FR 14381, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 402.11 Attorney-client communications exempted.

Nothing contained in this part shall be construed to require an
attorney

[[Page 142]]

who is a member in good standing of the bar of any State, to include in
any report required to be filed pursuant to the provisions of section
201(a) of the Act, and of this part, any information which was lawfully
communicated to such attorney by any of his clients in the course of a
legitimate attorney-client relationship.

Sec. 402.12 Publication of reports required by this part.

Inspection and examination of any report or other document filed as
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them,
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]

Sec. 402.13 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]

PART 403--LABOR ORGANIZATION ANNUAL FINANCIAL REPORTS--Table of Contents

Sec.
403.1 Fiscal year for reports required by this part.
403.2 Annual financial report.
403.3 Form of annual financial report--detailed report.
403.4 Simplified annual reports for smaller labor organizations.
403.5 Terminal financial report.
403.6 Personal responsibility of signatories of reports.
403.7 Maintenance and retention of records.
403.8 Dissemination and verification of reports.
403.9 Attorney-client communications exempted.
403.10 Publication of reports required by this part.
403.11 OMB control number.

Authority: Secs. 202, 207, 208, 73 Stat. 525, 529 (29 U.S.C. 432,
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14383, Dec. 27, 1963, unless otherwise noted.

Sec. 403.1 Fiscal year for reports required by this part.

(a) As used in this part, unless otherwise defined, the term fiscal
year means the calendar year or other period of 12 consecutive calendar
months, on the basis of which financial accounts are kept by a labor
organization reporting under this part. Where a labor organization
designates a new fiscal year period prior to the expiration of a
previously established fiscal year period, the resultant period of less
than 12 consecutive calendar months, and thereafter the newly
established fiscal year, shall in that order each constitute a fiscal
year for purposes of the report required to be filed by section 201(b)
of the Act, and of the regulations in this part.
(b) A labor organization which is subject to section 201(b) of the
Act for only a portion of its fiscal year because the labor organization
first becomes subject to the Act during such fiscal year, may consider
such portion as the entire fiscal year in making its report under this
part.

[28 FR 14383, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977]

Sec. 403.2 Annual financial report.

(a) Every labor organization shall, as prescribed by the regulations
in this part, file with the Office of Labor-Management Standards within
90 days after the end of each of its fiscal years, a financial report
signed by its president and treasurer, or corresponding principal
officers, together with a true copy thereof.
(b) Every labor organization shall include in its annual financial
report filed as provided in paragraph (a) of this section, in such
detail as may be necessary accurately to disclose its financial
condition and operations for its preceding fiscal year and in such
categories as prescribed by the Assistant Secretary under the provisions
of this part, the information required by section 201(b) of the Act and
found by the Assistant Secretary under section 208 thereof to be
necessary in such report.
(c) If, on the date for filing the annual financial report of a
labor organization required under section 201(b) of

[[Page 143]]

the Act and this section, such labor organization is in trusteeship, the
labor organization which has assumed trusteeship over such labor
organization shall file such report as provided in Sec. 408.5 of this
chapter.

[28 FR 14383, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 403.3 Form of annual financial report--detailed report.

Every labor organization shall, except as expressly provided
otherwise in this part, file an annual financial report as required by
Sec. 403.2, prepared on United States Department of Labor Form LM-2,
``Labor Organization Annual Report,'' in the detail required by the
instructions accompanying the form and constituting a part thereof.
Note: Form LM-2 was revised at 58 FR 67594, December 21, 1993.

[28 FR 14383, Dec. 27, 1963, as amended at 62 FR 6092, Feb. 10, 1997]

Sec. 403.4 Simplified annual reports for smaller labor organizations.

(a)(1) If a labor organization, not in trusteeship, has gross annual
receipts totaling less than $200,000 for its fiscal year, it may elect,
subject to revocation of the privileges as provided in section 208 of
the Act, to file the annual financial report called for in section
201(b) of the Act and Sec. 403.3 of this part on United States
Department of Labor Form LM-3 entitled ``Labor Organization Annual
Report,'' in accordance with the instructions accompanying such form and
constituting a part thereof.
(2) If a labor organization, not in trusteeship, has gross annual
receipts totaling less than $10,000 for its fiscal year, it may elect,
subject to revocation of the privileges as provided in section 208 of
the Act, to file the annual financial report called for in section
201(b) of the Act and Sec. 403.3 on United States Department of Labor
Form LM-4 entitled ``Labor Organization Annual Report'' in accordance
with the instructions accompanying such form and constituting a part
thereof.
(b) A local labor organization not in trusteeship, which has no
assets, no liabilities, no receipts and no disbursements during the
period covered by the annual report of the national organization with
which it is affiliated need not file the annual report required by
Sec. 403.2 if the following conditions are met:
(1) It is governed by a uniform constitution and bylaws filed on its
behalf pursuant to Sec. 402.3(b) of this chapter, and does not have
governing rules of its own;
(2) Its members are subject to uniform fees and dues applicable to
all members of the local labor organizations for which such simplified
reports are submitted;
(3) The national organization with which it is affiliated assumes
responsibility for the accuracy of, and submits with its annual report,
a separate letter-size sheet for each local labor organization
containing the following information with respect to each local
organization in the format illustrated below as part of this regulation:
(i) The name and designation number or other identifying
information;
(ii) The file number which the Office of Labor-Management Standards
has assigned to it;
(iii) The mailing address;
(iv) The beginning and ending date of the reporting period which
must be the same as that of the report for the national organization;
(v) The names and titles of the president and treasurer or
corresponding principal officers as of the end of the reporting period;
(4) At least thirty days prior to first submitting simplified annual
reports in accordance with this section, the national organization
notifies the Office of Labor-Management Standards in writing of its
intent to begin submitting simplified annual reports for affiliated
local labor organizations;
(5) The national organization files the terminal report required by
29 CFR 403.5(a) on Form LM-3 or LM-4, as may be appropriate, clearly
labeled on the form as a terminal report, for any local labor
organization which has lost its identity through merger, consolidation,
or otherwise if the national organization filed a simplified annual
report on behalf of the local labor organization for its last reporting
period; and

[[Page 144]]

(6) The national organization with which it is affiliated assumes
responsibility for the accuracy of, and submits with its annual report
and the simplified annual reports for the affiliated local labor
organizations, the following certification properly completed and signed
by the president and treasurer of the national organization:

Certification

We, the undersigned, duly authorized officers of [name of national
organization], hereby certify that the local labor organizations
individually listed on the attached documents come within the purview of
29 CFR 403.4(b) for the reporting period from [beginning date of
national organization's fiscal year] through [ending date of national
organization's fiscal year], namely:
(1) they are local labor organizations; (2) they are not in
trusteeship; (3) they have no assets, liabilities, receipts, or
disbursements; (4) they are governed by a uniform constitution and
bylaws, and fifty copies of the most recent uniform constitution and
bylaws have been filed with the Office of Labor-Management Standards;
(5) they have no governing rules of their own; and (6) they are subject
to the following uniform schedule of fees and dues: [specify schedule
for dues, initiation fees, fees required from transfer members, and work
permit fees, as applicable].
Each document attached contains the specific information called for
in 29 CFR 403.4(b)(3)(i)-(v), namely: (i) the local labor organization's
name and designation number; (ii) the file number assigned the
organization by the Office of Labor-Management Standards; (iii) the
local labor organization's mailing address; (iv) the beginning and
ending date of the reporting period; and (v) the names and titles of the
president and treasurer or corresponding principal officers of the local
labor organization as of [the ending date of the national organization's
fiscal year].
Furthermore, we certify that the terminal reports required by 29 CFR
403.4(b)(5) and 29 CFR 403.5(a) have been filed for any local labor
organizations which have lost their identity through merger,
consolidation, or otherwise on whose behalf a simplified annual report
was filed for the last reporting period.

(Format for Simplified Annual Reporting)

simplified annual report

Affiliation name:
________________________________________________________________________
Designation name and number:
________________________________________________________________________
Unit name:
________________________________________________________________________
Mailing address:
________________________________________________________________________
Name of person:
________________________________________________________________________
Number and street:
________________________________________________________________________
City, State and zip:
________________________________________________________________________
File number:
________________________________________________________________________
Period covered:
________________________________________________________________________
From Through
________________________________________________________________________
Names and Titles of president and treasurer or corresponding principal
officers
________________________________________________________________________
For certification see NHQ file folder file number:
President_______________________________________________________________
Where signed____________________________________________________________
Date____________________________________________________________________
Treasurer_______________________________________________________________
Where signed____________________________________________________________
Date____________________________________________________________________

[28 FR 14383, Dec. 27, 1963, as amended at 37 FR 10669, May 26, 1972; 41
FR 27318, July 2, 1976; 45 FR 7525, Feb. 1, 1980; 50 FR 31309, Aug. 1,
1985; 50 FR 31310, Aug. 1, 1985; 57 FR 49290, 49357, Oct. 30, 1992; 62
FR 6092, Feb. 10, 1997; 64 FR 71623, Dec. 21, 1999; 65 FR 21141, Apr.
20, 2000]

Sec. 403.5 Terminal financial report.

(a) Any labor organization required to file a report under the
provisions of this part, which during its fiscal year loses its identity
as a reporting labor organization through merger, consolidation, or
otherwise, shall, within 30 days after such loss, file a terminal
financial report, and one copy, with the Office of Labor-Management
Standards, on Form LM-2, LM-3, or LM-4, as may be appropriate, signed by
the president and treasurer or corresponding principal officers of the
labor organization immediately prior to the time of its loss of
reporting identity.
(b) Every labor organization which has assumed trusteeship over a
subordinate labor organization shall file within 90 days after the
termination of such trusteeship on behalf of the subordinate labor
organization a terminal financial report, and one copy, with the Office
of Labor-Management Standards, on Form LM-2 and in conformance with the
requirements of this part.

[[Page 145]]

(c) For purposes of the reports required by paragraphs (a) and (b)
of this section, the period covered thereby shall be the portion of the
labor organization's fiscal year ending on the effective date of its
loss of reporting identity, or the portion of the subordinate labor
organization's fiscal year ending on the effective date of the
termination of trusteeship over such subordinate labor organization, as
the case may be.

[28 FR 14383, Dec. 27, 1963, as amended at 50 FR 31309, 31310, Aug. 1,
1985; 62 FR 6092, Feb. 10, 1997]

Sec. 403.6 Personal responsibility of signatories of reports.

Each individual required to sign a report under section 201(b) of
the Act and under this part shall be personally responsible for the
filing of such report and for any statement contained therein which he
knows to be false.

Sec. 403.7 Maintenance and retention of records.

Sec. 403.8 Dissemination and verification of reports.

Every labor organization required to submit a report under section
201(b) of the Act and under this part shall make available to all its
members the information required to be contained in such reports, and
every such labor organization and its officers shall be under a duty to
permit such member for just cause to examine any books, records, and
accounts necessary to verify such report.

Sec. 403.9 Attorney-client communications exempted.

Nothing contained in this part shall be construed to require an
attorney who is a member in good standing of the bar of any State, to
include in any report required to be filed pursuant to the provisions of
section 201(b) of the Act, and of this part, any information which was
lawfully communicated to such attorney by any of his clients in the
course of a legitimate attorney-client relationship.

Sec. 403.10 Publication of reports required by this part.

[35 FR 2990, Feb. 13, 1970]

Sec. 403.11 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]

PART 404--LABOR ORGANIZATION OFFICER AND EMPLOYEE REPORTS--Table of Contents

Sec.
404.1 Definitions.
404.2 Annual report.
404.3 Form of annual report.
404.4 Special report.
404.5 Attorney-client communications exempted.
404.6 Personal responsibility of signatories of reports.
404.7 Maintenance and retention of records.
404.8 Publication of reports required by this part.
404.9 OMB control number.

Authority: Secs. 202, 207, 208, 73 Stat. 525, 529 (29 U.S.C. 432,
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14384, Dec. 27, 1963, unless otherwise noted.

Sec. 404.1 Definitions.

As used in this part the term:

[[Page 146]]

(a)(1) Fiscal year means the calendar year or other period of 12
consecutive calendar months, on the basis of which financial accounts of
the labor organization officer or employee are kept. Where a labor
organization officer or employee designates a new fiscal year period
prior to the expiration of a previously established fiscal year period,
the resultant period of less than 12 consecutive calendar months, and
thereafter the newly established fiscal year, shall in that order
constitute the fiscal year for purposes of the reports required to be
filed by section 202(a) of the Act and the regulations in this part.
(2) A labor organization officer or employee who is subject to
section 202(a) of the Act for only a portion of his fiscal year because
the labor organization officer or employee first becomes subject to the
Act during such fiscal year, may consider such portion as the entire
fiscal year in making this report under this part.
(b) Labor organization 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.
(c) Labor organization employee means any individual (other than an
individual performing exclusively custodial or clerical services)
employed by a labor organization.
(d) Employer means any employer or any group or association of
employers engaged in an industry affecting commerce (1) which is, with
respect to employees engaged in an industry affecting commerce, an
employer within the meaning of any law of the United States relating to
the employment of any employees or (2) which may deal with any labor
organization concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work, and includes any person
acting directly or indirectly as an employer or as an agent of an
employer in relation to an employee but does not include the United
States or any corporation wholly owned by the Government of the United
States or any State or political subdivision thereof.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985]

Sec. 404.2 Annual report.

Every labor organization officer and employee who in any fiscal year
has been involved in transactions of the type described in section
202(a) of the Act, or who holds or has held any interest in an employer
or a business of the type referred to therein, or who has received any
payments of the type referred to in that section, or who holds or has
held an interest in or derived income or economic benefit with monetary
value from a business any part of which consists of dealing with a trust
in which his labor organization is interested, or whose spouse or minor
child has been involved in such transactions, holds or has held any such
interests, or has received such payments, is required to file with the
Office of Labor-Management Standards, within 90 days after the end of
his fiscal year, a signed report containing the detailed information
required therein by section 202(a) of the Act, and found by the
Assistant Secretary under section 208 thereof to be necessary in such
report.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 404.3 Form of annual report.

On and after the effective date of this section, every labor
organization officer and employee required to file an annual report
under Sec. 404.2 shall file such report on United States Department of
Labor Form LM-30 entitled ``Labor Organization Officer and Employee
Report,'' together with a true copy thereof, in the detail required by
the instructions accompanying such form and constituting a part thereof.

Sec. 404.4 Special report.

In addition to the report on Form LM-30, the Office of Labor-
Management Standards may require from union officers and employees
subject to the Act the submission of special reports of pertinent
information including, but not necessarily confined to, reports with
respect to matters referred

[[Page 147]]

to in items (ii) and (iv) of the Instructions relating to part A of the
form and items (ii) and (iii) of the Instructions relating to part C of
the form.

Sec. 404.5 Attorney-client communications exempted.

Nothing contained in this part shall be construed to require an
attorney who is a member in good standing of the bar of any State, to
include in any report required to be filed pursuant to the provisions of
section 202(a) of the Act and of this part any information which was
lawfully communicated to such attorney by any of his clients in the
course of a legitimate attorney-client relationship.

Sec. 404.6 Personal responsibility of signatories of reports.

Every labor organization officer or employee required to file a
report under section 202(a) of the Act and under this part shall be
personally responsible for the filing of such report and for any
statement contained therein which he knows to be false.

Sec. 404.7 Maintenance and retention of records.

Sec. 404.8 Publication of reports required by this part.

[35 FR 2990, Feb. 13, 1970]

Sec. 404.9 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]

PART 405--EMPLOYER REPORTS--Table of Contents

Sec.
405.1 Definitions.
405.2 Annual report.
405.3 Form of annual report.
405.4 Terminal report.
405.5 Special reports.
405.6 Exceptions from the filing requirements of Sec. 405.2.
405.7 Relation of section 8(c) of the National Labor Relations Act, as
amended, to the reporting requirements of Sec. 405.2.
405.8 Personal responsibility of signatories of reports.
405.9 Maintenance and retention of records.
405.10 Publication of reports required by this part.
405.11 OMB control number.

Authority: Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433,
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14384, Dec. 27, 1963, unless otherwise noted.

Sec. 405.1 Definitions.

As used in this part the term:
(a) Fiscal year means the calendar year or other period of 12
consecutive calendar months, on the basis of which financial accounts
are kept by an employer. Where an employer designates a new fiscal year
period prior to the expiration of a previously established fiscal year
period, the resultant period of less than 12 consecutive calendar
months, and thereafter the newly established fiscal year, shall in that
order constitute the fiscal year for purposes of the reports required to
be filed by section 203(a) of the Act and of the regulations in this
part.
(b) Corresponding principal officers shall include any person or
persons performing or authorized to perform principal executive
functions corresponding to those of president and treasurer, of any
employer engaged in whole or in part in the performance of

[[Page 148]]

the activities described in section 203(a) of the Act.

[28 FR 14384, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977]

Sec. 405.2 Annual report.

Every employer who in any fiscal year has made any payment, loan,
promise, agreement, arrangement or expenditure of the kind described and
required by section 203(a) of the Act to be reported, shall, as
prescribed by the regulations in this part, file with the Office of
Labor-Management Standards, within 90 days after the end of each of its
fiscal years, a report signed by its president and treasurer, or
corresponding principal officers, together with a true copy thereof,
containing the detailed information required therein by section 203(a)
of the Act and found by the Assistant Secretary under section 208
thereof to be necessary in such report.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 405.3 Form of annual report.

On and after the effective date of this section, every employer
required to file an annual report by section 203(a) of the Act and
Sec. 405.2 shall file such report on the United States Department of
Labor Form LM-10 entitled, ``Employer Report'' \1\ in the detail
required by the instructions \1\ accompanying such form and constituting
a part thereof.
---------------------------------------------------------------------------

\1\ Filed as part of the original document.

[28 FR 14384, Dec. 27, 1963, as amended at 38 FR 10715, May 1, 1973; 42
FR 59070, Nov. 15, 1977]

Sec. 405.4 Terminal report.

(a) Every employer required to file a report under the provisions of
this part, who during its fiscal year loses its identity as a reporting
employer through merger, consolidation, dissolution, or otherwise,
shall, within 30 days of the effective date thereof, file a terminal
employer report, and one copy, with the Office of Labor-Management
Standards on Form LM-10 signed by the president and treasurer or
corresponding principal officers of such employer immediately prior to
the time of the employer's loss of reporting identity, together with a
statement of the effective date of such termination or loss of reporting
identity, and if the latter, the name and mailing address of the
employer entity into which it has been merged, consolidated or otherwise
absorbed.
(b) For purposes of the report required by paragraph (a) of this
section, the period covered thereby shall be the portion of the
employer's fiscal year ending on the effective date of the employer's
termination or loss of reporting identity.

Sec. 405.5 Special reports.

In addition to the report on Form LM-10, the Office of Labor-
Management Standards may require from employers subject to the Act the
submission of special reports on pertinent information, including but
not necessarily confined to reports with respect to specifically
identified personnel on the matters referred to in the second paragraph
under the instructions for Question 8A of Form LM-10.

[42 FR 59070, Nov. 15, 1977]

Sec. 405.6 Exceptions from the filing requirements of Sec. 405.2.

Nothing contained in this part shall be construed to require:
(a) An employer to file a report unless said employer has made an
expenditure, payment, loan, agreement, or arrangement of the kind
described in section 203(a) of the Act;
(b) Any employer to file a report covering the services of any
person by reason of his (1) giving or agreeing to give advice to such
employer or (2) representing or agreeing to represent such employer
before any court, administrative agency, or tribunal of arbitration or
(3) engaging or agreeing to engage in collective bargaining on behalf of
such employer with respect to wages, hours, or other terms or conditions
of employment or the negotiation of an agreement or any question arising
thereunder;
(c) Any employer to file a report covering expenditures made to any
regular officer, supervisor, or employee of an employer as compensation
for service as a regular officer, supervisor, or employee of such
employer;

[[Page 149]]

(d) An attorney who is a member in good standing of the bar of any
State, to include in any report required to be filed pursuant to the
provisions of this part any information which was lawfully communicated
to such attorney by any of his clients in the course of a legitimate
attorney-client relationship.

Sec. 405.7 Relation of section 8(c) of the National Labor Relations Act, as amended, to the reporting requirements of Sec. 405.2.

While nothing contained in section 203 of the Act shall be construed
as an amendment to, or modification of the rights protected by section
8(c) of the National Labor Relations Act, as amended, activities
protected by such section of the said Act are not for that reason
exempted from the reporting requirements of section 203(a) of the Labor-
Management Reporting and Disclosure Act of 1959 and Sec. 405.2, and, if
otherwise subject to such reporting requirements, are required to be
reported if they have been engaged in during the course of the reporting
fiscal year. However, the information required to be reported in
Question 8C of Form LM-10 does not include matters protected by section
8(c) of the National Labor Relations Act, as amended, because the
definition in section 203(g) of the term ``interfere with, restrain, or
coerce'', which is used in Question 8C does not cover such matters.

[42 FR 59070, Nov. 15, 1977]

Sec. 405.8 Personal responsibility of signatories of reports.

Each individual required to sign a report under section 203(a) of
the Act and under this part shall be personally responsible for the
filing of such report and for any statement contained therein which he
knows to be false.

Sec. 405.9 Maintenance and retention of records.

Sec. 405.10 Publication of reports required by this part.

[35 FR 2990, Feb. 13, 1970]

Sec. 405.11 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]

PART 406--REPORTING BY LABOR RELATIONS CONSULTANTS AND OTHER PERSONS, CERTAIN AGREEMENTS WITH EMPLOYERS--Table of Contents

Sec.
406.1 Definitions.
406.2 Agreement and activities report.
406.3 Receipts and disbursements report.
406.4 Terminal report.
406.5 Persons excepted from filing reports.
406.6 Relation of section 8(c) of the National Labor Relations Act to
this part.
406.7 Personal responsibility of signatories of reports.
406.8 Maintenance and retention of records.
406.9 Publication of reports required by this part.
406.10 OMB control number.

Authority: Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433,
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14385, Dec. 27, 1963, unless otherwise noted.

Sec. 406.1 Definitions.

As used in this part, the term:

[[Page 150]]

(a) Corresponding principal officers means any person or persons
performing or authorized to perform, principal executive functions
corresponding to those of president and treasurer of any entity engaged
in whole or in part in the performance of the activities described in
section 203(b) of the Labor-Management Reporting and Disclosure Act of
1959.
(b) Fiscal year means the calendar year or other period of 12
consecutive calendar months, on the basis of which financial accounts
are kept by a person. Where a person designates a new fiscal year prior
to the expiration of a previously established fiscal year period, the
resultant period of less than 12 consecutive calendar months, and
thereafter the newly established fiscal year, shall in that order
constitute the fiscal years.
(c) Undertake means not only the performing of activities, but also
the agreeing to perform them or to have them performed.
(d) A direct or indirect party to an agreement or arrangement
includes persons who have secured the services of another or of others
in connection with an agreement or arrangement of the type referred to
in Sec. 406.2 as well as persons who have undertaken activities at the
behest of another or of others with knowledge or reason to believe that
they are undertaken as a result of an agreement or arrangement between
an employer and any other person, except bona fide regular officers,
supervisors or employees of their employer to the extent to which they
undertook to perform services as such bona fide regular officers,
supervisors or employees of their employer.

[28 FR 14385, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977;
63 FR 33779, June 19, 1998]

Sec. 406.2 Agreement and activities report.

(a) Every person who as a direct or indirect party to any agreement
or arrangement with an employer undertakes, pursuant to such agreement
or arrangement, any activities where an object thereof is, directly or
indirectly, (1) to persuade employees to exercise or not to exercise, or
to persuade employees as to the manner of exercising, the right to
organize and bargain collectively through representatives of their own
choosing; or, (2) to supply an employer with information concerning the
activities of employees or a labor organization in connection with a
labor dispute involving such employer, except information for use solely
in conjunction with an administrative or arbitral proceeding or a
criminal or civil judicial proceeding; shall, as prescribed by the
regulations in this part, file a report with the Office of Labor-
Management Standards, and one copy thereof, on Form LM-20 \1\ entitled
``Agreement and Activities Report (required of persons, including labor
relations consultants and other individuals and organizations)'' in the
detail required by such form and the instructions accompanying such form
and constituting a part thereof. The report shall be filed within 30
days after entering into an agreement or arrangement of the type
described in this section. If there is any change in the information
reported (other than that required by Item C, 10, (c) of the Form), it
must be filed in a report clearly marked ``Amended Report'' within 30
days of the change.
---------------------------------------------------------------------------

\1\ Filed as part of the original document.
---------------------------------------------------------------------------

(b) The report shall be signed by the president and treasurer or
corresponding principal officers of the reporting person. If the report
is filed by an individual in his own behalf, it need only bear his
signature.

[28 FR 14385, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 406.3 Receipts and disbursements report.

(a) Every person who, as a direct or indirect party to any agreement
or arrangement, undertakes any activities of the type described in
Sec. 406.2 pursuant to such agreement or arrangement and who, as a
result of such agreement or arrangement made or received any payment
during his fiscal year, shall, as prescribed by the regulations in this
part, file a report and one copy thereof, with the Office of Labor-
Management Standards, on Form LM-21 \1\ entitled ``Receipts and
Disbursements Report (required of persons, including labor relations
consultants, other individuals

[[Page 151]]

and organizations)'', in the detail required by such form and the
instructions accompanying such form and constituting a part thereof. The
report shall be filed within 90 days after the end of such person's
fiscal year during which payments were made or received as a result of
such an agreement or arrangement.
(b) The report shall be signed by the president and treasurer or
corresponding principal officers of the reporting person. If the report
is filed by an individual in his own behalf, it need only bear his
signature.

[28 FR 14385, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985]

Sec. 406.4 Terminal report.

(a) Every person required to file a report pursuant to the
provisions of this part who during his fiscal year loses his identity as
a reporting entity through merger, consolidation, dissolution, or
otherwise shall within 30 days of the effective date thereof or of the
effective date of this section, whichever is later, file a terminal
report, and one copy thereof, with the Office of Labor-Management
Standards, on Form LM-21 signed by the president and treasurer or
corresponding principal officers immediately prior to the time of the
person's loss of reporting identity (or by the person himself if he is
an individual), together with a statement of the effective date of
termination or loss of reporting identity, and if the latter, the name
and mailing address of the entity into which the person reporting has
been merged, consolidated or otherwise absorbed.
(b) For purposes of the report referred to in paragraph (a) of this
section, the period covered thereby shall be the portion of the
reporting person's fiscal year ending on the effective date of the
termination or loss of identity.

[28 FR 14385, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985]

Sec. 406.5 Persons excepted from filing reports.

Nothing contained in this part shall be construed to require:
(a) Any person to file a report under this part unless he was a
direct or indirect party to an agreement or arrangement of the kind
described in Sec. 406.2;
(b) Any person to file a report covering the services of such person
by reason of his (1) giving or agreeing to give advice to an employer;
or (2) representing or agreeing to represent an employer before any
court, administrative agency, or tribunal of arbitration; or (3)
engaging or agreeing to engage in collective bargaining on behalf of an
employer with respect to wages, hours, or other terms or conditions of
employment or the negotiation of an agreement or any question arising
thereunder;
(c) Any regular officer, or employee of an employer to file a report
in connection with services rendered as such regular officer, supervisor
or employee to such employer;
(d) An attorney who is a member in good standing of the bar of any
State, to include in any report required to be filed pursuant to the
provisions of this part any information which was lawfully communicated
to such attorney by any of his clients in the course of a legitimate
attorney-client relationship.

Sec. 406.6 Relation of section 8(c) of the National Labor Relations Act to this part.

While nothing contained in section 203 of the Act shall be construed
as an amendment to, or modification of the rights protected by, section
8(c) of the National Labor Relations Act, as amended (61 Stat. 142; 29
U.S.C. 158 (c)), activities protected by such section of the said Act
are not for that reason exempted from the reporting requirements of this
part and, if otherwise subject to such reporting requirements, are
required to be reported. Consequently, information required to be
included in Forms LM-20 and 21 must be reported regardless of whether
that information relates to activities which are protected by section
8(c) of the National Labor Relations Act, as amended.

Sec. 406.7 Personal responsibility of signatories of reports.

Each individual required to file a report under this part shall be
personally responsible for the filing of such report

[[Page 152]]

and for any statement contained therein which he knows to be false.

Sec. 406.8 Maintenance and retention of records.

Every person required to file any report under this part shall
maintain records on the matters required to be reported which will
provide in sufficient detail the necessary basic information and data
from which the documents filed with the Office of Labor-Management
Standards may be verified, explained or clarified, and checked for
accuracy and completeness, and shall include vouchers, worksheets,
receipts and applicable resolutions, and shall keep such records
available for examination for a period of not less than five years after
the filing of the documents based on the information which they contain.

Sec. 406.9 Publication of reports required by this part.

[35 FR 2990, Feb. 13, 1970]

Sec. 406.10 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15116, Mar. 31, 1994 as amended at 63 FR 46888, Sept. 3, 1998]

PART 408--LABOR ORGANIZATION TRUSTEESHIP REPORTS--Table of Contents

Sec.
408.1 Definitions.
408.2 Initial trusteeship report.
408.3 Form of initial report.
408.4 Semiannual trusteeship report.
408.5 Annual financial report.
408.6 Amendments to the Labor Organization Information Report filed by
or on behalf of the subordinate labor organization.
408.7 Terminal trusteeship financial report.
408.8 Terminal trusteeship information report.
408.9 Personal responsibility of signatories of reports.
408.10 Maintenance and retention of records.
408.11 Dissemination and verification of reports.
408.12 Publication of reports required by this part.
408.13 OMB control number.

Authority: Secs. 201, 207, 208, 301, 73 Stat. 524, 529, 530 (29
U.S.C. 431, 437, 438, 461); Secretary's Order No. 5-96, 62 FR 107,
January 2, 1997.

Source: 28 FR 14387, Dec. 27, 1963, unless otherwise noted.

Sec. 408.1 Definitions.

(a) Corresponding principal officers shall include any person or
persons performing or authorized to perform principal executive
functions corresponding to those of president and treasurer, of any
labor organization which has assumed or imposed a trusteeship over a
labor organization within the meaning of section 301(a) of the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Trusteeship means any receivership, trusteeship, or other method
of supervision or control whereby a labor organization suspends the
autonomy otherwise available to a subordinate body under its
constitution or bylaws.
(c) Policy determining body means any body which is convened by the
parent labor organization or other labor organization which is composed
of delegates from labor organizations and which formulates policy on
such matters as wages, hours, or other conditions of employment or
recommends or takes any action in the name of the participating labor
organizations. Such a body includes, for example, a district council,
area conference or joint board.

Sec. 408.2 Initial trusteeship report.

Every labor organization which has or assumes trusteeship over any
subordinate labor organization shall file with the Office of Labor-
Management Standards within 30 days after the imposition of any such
trusteeship, a trusteeship report, pursuant to Sec. 408.3, together with
a true copy thereof, signed by its president and treasurer, or
corresponding principal officers, as

[[Page 153]]

well as by the trustees of such subordinate labor organization.

[28 FR 14387, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 408.3 Form of initial report.

On and after the effective date of this section, every labor
organization required to file an initial report under Sec. 408.2 shall
file such report on United States Department of Labor Form LM-15
entitled ``Trusteeship Report'' in the detail required by the
instructions accompanying such form and constituting a part thereof.

[28 FR 14387, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977]

Sec. 408.4 Semiannual trusteeship report.

Every labor organization required to file an initial report under
Sec. 408.2 shall thereafter during the continuance of trusteeship over
the subordinate labor organization, file with the said Office of Labor-
Management Standards semiannually, and not later than six months after
the due date of the initial trusteeship report, a semiannual trusteeship
report on Form LM-15 containing the information required by that form
except for the Statement of Assets and Liabilities. If in answer to Item
9 of Form LM-15, there was (a) a convention or other policy determining
body to which the subordinate organization sent delegates or would have
sent delegates if not in trusteeship or (b) an election of officers of
the labor organization assuming trusteeship, Form LM-15A should be used
to report the required information with respect thereto.

[42 FR 59070, Nov. 15, 1977]

Sec. 408.5 Annual financial report.

During the continuance of a trusteeship, the labor organization
which has assumed trusteeship over a subordinate labor organization,
shall file with the Office of Labor-Management Standards on behalf of
the subordinate labor organization the annual financial report required
by part 403 of this chapter, signed by the president and treasurer or
corresponding principal officers of the labor organization which has
assumed such trusteeship, and the trustees of the subordinate labor
organization on Form LM-2, together with one true copy thereof.

Sec. 408.6 Amendments to the Labor Organization Information Report filed by or on behalf of the subordinate labor organization.

[63 FR 33779, June 19, 1998]

Sec. 408.7 Terminal trusteeship financial report.

Each labor organization which has assumed trusteeship over a
subordinate labor organization shall file within 90 days after the
termination of such trusteeship on behalf of the subordinate labor
organization a terminal financial report, and one copy, with the Office
of Labor-Management Standards, on Form LM-2 and in conformance with the
requirements of part 403 of this chapter.

Sec. 408.8 Terminal trusteeship information report.

There shall be filed at the same time that the terminal trusteeship
financial report is filed a terminal trusteeship information report on
Form LM-16. If in answer to Item 6 of Form LM-16, there was (a) a
convention or other policy determining body to which the subordinate
organization sent delegates or would have sent delegates if not in
trusteeship or (b) an election of officers of the labor organization
assuming trusteeship, Form LM-15A should be used to report the required
information with respect thereto.

[40 FR 58856, Dec. 19, 1975]

Sec. 408.9 Personal responsibility of signatories of reports.

Each individual required to sign a report under this part shall be
personally responsible for the filing of such report and for any
statement contained therein which he knows to be false.

[[Page 154]]

Sec. 408.10 Maintenance and retention of records.

Sec. 408.11 Dissemination and verification of reports.

Every labor organization required to submit a report shall make
available the information required to be contained in such report to all
of its members, and every such labor organization and its officers shall
be under a duty to permit such member for just cause to examine any
books, records, and accounts necessary to verify such report.

Sec. 408.12 Publication of reports required by this part.

[35 FR 2990, Feb. 13, 1970]

Sec. 408.13 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 46888, Sept. 3, 1998]

PART 409--REPORTS BY SURETY COMPANIES--Table of Contents

Sec.
409.1 Definitions.
409.2 Annual report.
409.3 Time for filing annual report.
409.4 Personal responsibility for filing of reports.
409.5 Maintenance and retention of records.
409.6 Publication of reports required by this part.
409.7 OMB control number.

Authority: Secs. 207, 208, 211; 79 Stat. 888; 88 Stat. 852 (29
U.S.C. 437, 438, 441); Secretary's Order No. 5-96, 62 FR 107, January 2,
1997.

Source: 31 FR 11177, Aug. 24, 1966, unless otherwise noted.

Sec. 409.1 Definitions.

As used in this part, the term:
(a) Fiscal year means the calendar year, or other period of 12
consecutive calendar months. Once reported on one basis, a change in the
reporting year shall be effected only upon prior approval by the Office
of Labor-Management Standards.
(b) Corresponding principal officers shall include any person or
persons performing or authorized to perform principal executive
functions corresponding to those of president and treasurer of any
surety underwriting a bond for which reports are required under section
211 of the Labor-Management Reporting and Disclosure Act of 1959.

Sec. 409.2 Annual report.

Each surety company having in force any bond required by section 502
of the Labor-Management Reporting and Disclosure Act of 1959 or section
412 of the Employee Retirement Income Security Act during the fiscal
year, shall file with the Office of Labor-Management Standards a report,
on U.S. Department of Labor Form S-1 entitled ``Surety Company Annual
Report'' \1\ signed by the president and treasurer or corresponding
principal officers, in the detail required by the instructions
accompanying such form and constituting a part thereof.
---------------------------------------------------------------------------

\1\ Filed as part of the original document.

[42 FR 59070, Nov. 15, 1977, as amended at 50 FR 31309, Aug. 1, 1985; 50
FR 31310, Aug. 1, 1985]

Sec. 409.3 Time for filing annual report.

Each surety company required to file an annual report by section 211
of the

[[Page 155]]

Labor-Management Reporting and Disclosure Act of 1959 and Sec. 409.2
shall file such report within 150 days after the end of the fiscal year.
The period of 150 days within which reports must be filed is stipulated
in lieu of the statutory period of 90 days (sec. 207(b), 73 Stat. 529,
29 U.S.C. 437(b) as amended by 79 Stat. 888) pursuant to a finding under
section 211 (79 Stat. 888) of the Act that information required to be
reported cannot be practicably ascertained within 90 days of the end of
the fiscal year.

[31 FR 11177, Aug. 24, 1966, as amended at 50 FR 31310, Aug. 1, 1985]

Sec. 409.4 Personal responsibility for filing of reports.

Each individual required to file a report under section 211 of the
Labor-Management Reporting and Disclosure Act of 1959, shall be
personally responsible for the filing of such reports and for the
accuracy of the information contained therein.

Sec. 409.5 Maintenance and retention of records.

Each surety required to file any report under this part shall
maintain records on the matters required to be reported which will
provide in sufficient detail the necessary basic information and data
from which the reports filed with the Office of Labor-Management
Standards may be verified, explained or clarified and checked for
accuracy and completeness, and shall keep such records available for
examination for a period of not less than 5 years after the filing of
the reports based on the information which they contain.

Sec. 409.6 Publication of reports required by this part.

Part 70 of this title shall govern inspection and examination of any
report or other document filed as required by this part, and the
furnishing by the Office of Labor-Management Standards of copies thereof
to any person requesting them.

[35 FR 2990, Feb. 13, 1970]

Sec. 409.7 OMB control number.

The collecting of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB control
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]

PART 417--PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION OFFICERS--Table of Contents

General

Sec.
417.1 Purpose and scope.
417.2 Definitions.

Subpart A--Procedures To Determine Adequacy of Constitution and Bylaws
for Removal of Officers of Local Labor Organizations

417.3 Initiation of proceedings.
417.4 Pre-hearing conference.
417.5 Notice.
417.6 Powers of Administrative Law Judge.
417.7 Transcript.
417.8 Appearances.
417.9 Evidence; contumacious or disorderly conduct.
417.10 Rights of participants.
417.11 Objections to evidence.
417.12 Proposed findings and conclusions.
417.13 Initial decision of Administrative Law Judge.
417.14 Form and time for filing of appeal with the Assistant Secretary.
417.15 Decision of the Assistant Secretary.

Subpart B--Procedures Upon Failure of Union to Take Appropriate Remedial
Action Following Subpart A Procedures

417.16 Initiation of proceedings.
417.17 Investigation of complaint and court action.
417.18 Hearings--removal of officers of local labor organizations.
417.19 Assistant Secretary's representative.
417.20 Notice of hearing.
417.21 Transcript.
417.22 Vote among members of the labor organization.
417.23 Report to the Assistant Secretary.
417.24 Appeal to the Assistant Secretary.
417.25 Certification of results of vote.

Authority: Secs. 401, 402, 73 Stat. 533, 534 (29 U.S.C. 481, 482);
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 29 FR 8264, July 1, 1964, unless otherwise noted.

[[Page 156]]

General

Sec. 417.1 Purpose and scope.

Section 401(h) of the Labor-Management Reporting and Disclosure Act
of 1959 (29 U.S.C. 481) provides that if, upon application of any member
of a local labor organization, the Secretary of Labor finds, after
hearing in accordance with the Administrative Procedure Act, that the
constitution and bylaws of such labor organization do not provide an
adequate procedure for the removal of an elected officer guilty of
serious misconduct, such officer may be removed for cause shown and
after notice and hearing, by the members in good standing voting in a
secret ballot. Section 401(i) (29 U.S.C. 481) requires the Secretary to
promulgate rules and regulations prescribing minimum standards and
procedures for determining the adequacy of the removal procedures
referred to in section 401(h). Section 402(a) (29 U.S.C. 482) provides
that a member of a labor organization who has exhausted the available
internal remedies of such organization and of any parent body, or who
has invoked such remedies without obtaining a final decision within
three months, may file a complaint with the Secretary within one month
thereafter alleging violation of section 401 (including violation of the
constitution and bylaws of the labor organization pertaining to the
removal of officers). Section 402(b) (29 U.S.C. 482) provides that upon
suit initiated by the Secretary, a Federal court may direct the conduct
of a hearing and vote upon the removal of officers under the supervision
of the Secretary, and in accordance with such rules and regulations as
the Secretary may prescribe. It is the purpose of this part to implement
those sections by prescribing regulations relating to the procedures and
standards for determining the adequacy of removal procedures and the
procedures for holding elections for the removal of officers.

Sec. 417.2 Definitions.

(a) Chief, DOE means the Chief of the Division of Enforcement within
the Office of Labor-Management Standards, Employment Standards
Administration.
(b) Adequate procedure shall mean any procedure which affords
reasonable and equitable opportunity for (1) trial of an officer(s)
charged with serious misconduct, and (2) removal of such an officer(s)
if found guilty, and which contains the elements set forth in each of
the subparagraphs of this paragraph: Provided, however, That any other
procedure which provides otherwise reasonable and equitable measures for
removal from office may also be considered adequate:
(1) A reasonable opportunity is afforded for filing charges of
serious misconduct against any elected officer(s) without being subject
to retaliatory threats, coercion, or acts of intimidation.
(2) The charges of serious misconduct are communicated to the
accused officer(s), and reasonable notice is given the members of the
organization, reasonably in advance of the time for hearing thereon.
(3) Subject to reasonable restrictions, a fair and open hearing upon
such charges is held after adequate notice and adequate opportunity is
afforded for testimony or the submission of evidence in support of or in
opposition to such charges. Within a reasonable time following such
hearing, a decision is reached as to the guilt or innocence of the
accused.
(4) If the hearing upon such charges is held before a trial
committee or other duly authorized body, reasonable notice of such
body's findings is given to the membership of the organization promptly.
(5) If such accused officer(s) is found guilty, he may be removed by
a procedure which includes:
(i) A secret ballot vote of the members at an appropriately called
meeting, or
(ii) A vote of a trial committee or other duly authorized body,
subject to appeal and review by the members voting by a secret ballot at
an appropriately called meeting.
(6) Within a reasonable time after the charges of serious misconduct
are filed with the labor organization final disposition (including
appellate procedures) is made of the charges.
(c) Elected officer means any constitutional officer, any person
authorized to

[[Page 157]]

perform the functions of president, vice-president, secretary,
treasurer, or other executive functions of a labor organization, and any
member of its executive board or similar governing body.
(d) Cause shown means substantial evidence of serious misconduct.
(e) Interested person means any person or organization whose
interests are or may be affected by a proceeding.
(f) Court means the district court of the United States in the
district in which the labor organization in question maintains its
principal office.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964; 29 FR
9537, July 14, 1964; 50 FR 31310, Aug. 1, 1985; 62 FR 6093, Feb. 10,
1997; 63 FR 33779, June 19, 1998]

Subpart A--Procedures To Determine Adequacy of Constitution and Bylaws
for Removal of Officers of Local Labor Organizations

Sec. 417.3 Initiation of proceedings.

(a) Any member of a local labor organization who has reason to
believe that:
(1) An elected officer(s) of such organization has been guilty of
serious misconduct, and
(2) The constitution and bylaws of his organization do not provide
an adequate procedure for the removal of such officer(s), may file with
the Office of Labor-Management Standards a written application, which
may be in the form of a letter, for initiation of proceedings under
section 401(h) of the Act.
(b) An application filed under paragraph (a) of this section shall
set forth the facts upon which it is based including a statement of the
basis for the charge that an elected officer(s) is guilty of serious
misconduct; and shall contain:
(1) Information identifying the labor organization and the officer
or officers involved, and
(2) Any data such member desires the Office of Labor-Management
Standards to consider in connection with his application.

Sec. 417.4 Pre-hearing conference.

(a) Upon receipt of an application filed under Sec. 417.3, the
Chief, DOE shall cause an investigation to be conducted of the
allegations contained therein, and if he finds probable cause to believe
that the constitution and bylaws of the labor organization do not
provide an adequate procedure for the removal of an elected officer(s)
guilty of serious misconduct he shall:
(1) Advise the labor organization of his findings and
(2) Afford such labor organization the opportunity for a conference
to be set not earlier than 10 days thereafter except where all
interested persons elect to confer at an earlier time. Any such
conference shall be conducted for the purpose of hearing the views of
interested persons and attempting to achieve a settlement of the issue
without formal proceedings.
(b)(1) If:
(i) The labor organization declines the opportunity to confer
afforded under paragraph (a) of this section, and fails to undertake
compliance with the provisions of section 401(h) of the Act, or if
(ii) After consideration of any views presented by the labor
organization the Chief, DOE still finds probable cause to believe that
the removal procedures are not adequate and if agreement for the
adoption of adequate procedures for removal has not been achieved and
the labor organization refuses to enter into a stipulation to comply
with the provisions of section 401(h) of the Act, the Chief, DOE shall
submit his findings and recommendations to the Assistant Secretary.
(2) Upon consideration of the Chief, DOE's recommendations, the
Assistant Secretary may order a hearing to be conducted before an
Administrative Law Judge duly assigned by him to receive evidence and
arguments (i) on the applicability of section 401(h) of the Act to the
labor organization involved, and (ii) on the question of whether its
constitution and bylaws provide an adequate procedure for the removal of
an elected union officer guilty of serious misconduct.

[29 FR 8264, July 1, 1964, as amended at 50 FR 31310, Aug. 1, 1985; 62
FR 6093, Feb. 10, 1997]

[[Page 158]]

Sec. 417.5 Notice.

Notice of hearing shall be given not less than 10 days before such
hearing is held unless the parties agree to a shorter notice period.
Such notice shall be transmitted to the labor organization and the
officer(s) accused of misconduct and other interested persons, insofar
as they are known, and shall inform them of:
(a) The time, place, and nature of the hearings;
(b) The legal authority and jurisdiction under which the hearing is
to be held; and
(c) The matters of fact and law asserted.

The Labor organization shall inform its members of the provisions of the
notice and copies of the notice shall be made available for inspection
at the offices of the labor organization.

Sec. 417.6 Powers of Administrative Law Judge.

The designated Administrative Law Judge shall have authority:
(a) To give notice concerning and to conduct hearings;
(b) To administer oaths and affirmations;
(c) To issue subpoenas;
(d) To rule upon offers of proof and receive relevant evidence;
(e) To take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(f) To regulate the course of the hearing;
(g) To hold conferences for the settlement or simplification of the
issues by consent of the parties;
(h) To dispose of procedural requests or other matters;
(i) To limit the number of witnesses at hearings, or limit or
exclude evidence or testimony which may be irrelevant, immaterial, or
cumulative;
(j) If appropriate or necessary to exclude persons or counsel from
participation in hearings for refusing any proper request for
information or documentary evidence, or for contumacious conduct;
(k) To grant continuances or reschedule hearings for good cause
shown;
(l) To consider and decide procedural matters;
(m) To take any other actions authorized by the regulations in this
part.

The Administrative Law Judge's authority in the case shall terminate
upon his filing of the record and his initial decision with the
Assistant Secretary, or when he shall have withdrawn from the case upon
considering himself disqualified, or upon termination of his authority
by the Assistant Secretary for good cause stated. However, the
Administrative Law Judge's authority may be reinstated upon referral of
some or all the issues by the Assistant Secretary for rehearing. This
authority will terminate upon certification of the rehearing record to
the Assistant Secretary.

Sec. 417.7 Transcript.

An official reporter shall make the only official transcript of the
proceedings. Copies of the official transcript shall be made available
upon request addressed to the Assistant Secretary in accordance with the
provisions of part 70 of this title.

[50 FR 31310, Aug. 1, 1985, as amended at 63 FR 33779, June 19, 1998]

Sec. 417.8 Appearances.

The Department of Labor does not maintain a register of persons or
attorneys who may participate at hearings. Any interested person may
appear and be heard in person or be represented by counsel.

Sec. 417.9 Evidence; contumacious or disorderly conduct.

(a) Formal rules of evidence or procedure in use in courts of law or
equity shall not obtain. Rules of evidence are to be within the
discretion of the Administrative Law Judge. However, it shall be the
policy to exclude testimony or matter which is irrelevant, immaterial,
or unduly repetitious.
(b) Contumacious or disorderly conduct at a hearing may be ground
for exclusion therefrom. The refusal of a witness at any hearing to
answer any questions which have been ruled to be proper shall, in the
discretion of the Administrative Law Judge be ground for striking all
testimony previously

[[Page 159]]

given by such witness on related matter.
(c) At any stage of the hearing the Administrative Law Judge may
call for further evidence or testimony on any matter. After the hearing
has been closed, no further information shall be received on any matter,
except where provision shall have been made for it at the hearing, or
except as the Administrative Law Judge or Assistant Secretary may direct
by reopening the hearing.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]

Sec. 417.10 Rights of participants.

Every interested person shall have the right to present oral or
documentary evidence, to submit evidence in rebuttal, and to conduct
such examination or cross-examination as may be required for a full and
true disclosure of the facts (subject to the rulings of the
Administrative Law Judge), and to object to admissions or exclusions of
evidence. The Department of Labor, through its officers and attorneys
shall have all rights accorded interested persons by the provisions of
this subpart A.

Sec. 417.11 Objections to evidence.

Objections to the admission or exclusion of evidence may be made
orally or in writing, but shall be in short form, stating the grounds
for such objection. The transcript shall not include argument or debate
thereon except as required by the Administrative Law Judge. Rulings on
such objections shall be a part of the transcript. No such objections
shall be deemed waived by further participation in the hearing. Formal
exceptions are unnecessary and will not be taken to rulings on
objections.

Sec. 417.12 Proposed findings and conclusions.

Within 10 days following the close of hearings, interested persons
may submit proposed findings and conclusions to the Administrative Law
Judge, together with supporting reasons therefor, which shall become a
part of the record.

Sec. 417.13 Initial decision of Administrative Law Judge.

Within 25 days following the period for submitting proposed findings
and conclusions, the Administrative Law Judge shall consider the whole
record, file an initial decision as to the adequacy of the constitution
and bylaws for the purpose of removing officers with the Assistant
Secretary, and forward a copy to each party participating in the
hearing. His decision shall become a part of the record and shall
include a statement of his findings and conclusions, as well as the
reasons or basis therefor, upon all material issues.

Sec. 417.14 Form and time for filing of appeal with the Assistant Secretary.

(a) An interested person may appeal from the Administrative Law
Judge's initial decision by filing written exceptions with the Assistant
Secretary within 15 days of the issuance of the Administrative Law
Judge's initial decision (or such additional time as the Assistant
Secretary may allow), together with supporting reasons for such
exceptions. Blanket appeals shall not be received. Impertinent or
scandalous matter may be stricken by the Assistant Secretary, or an
appeal containing such matter or lacking in specification of exceptions
may be dismissed.
(b) In the absence of either an appeal to the Assistant Secretary or
review of the Administrative Law Judge's initial decision by the
Assistant Secretary on his own motion, such initial decision shall
become the decision of the Assistant Secretary.

Sec. 417.15 Decision of the Assistant Secretary.

Upon appeal filed with the Assistant Secretary pursuant to
Sec. 417.14, or within his discretion upon his own motion, the complete
record of the proceedings shall be certified to him; he shall notify all
interested persons who participated in the proceedings; and he shall
review the record, the exceptions filed and supporting reasons, and
shall issue a decision as to the adequacy of the constitution and bylaws
for the purpose of removing officers, or shall order such further
proceedings as he

[[Page 160]]

deems appropriate. His decision shall become a part of the record and
shall include a statement of his findings and conclusions, as well as
the reasons or basis therefor, upon all material issues.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]

Subpart B--Procedures Upon Failure of Union to Take Appropriate Remedial
Action Following Subpart A Procedures

Sec. 417.16 Initiation of proceedings.

(a) Any member of a local labor organization may file a complaint
with the Office of Labor-Management Standards alleging that following a
finding by the Assistant Secretary pursuant to subpart A that the
constitution and bylaws of the labor organization pertaining to the
removal of officers are inadequate, or a stipulation of compliance with
the provisions of section 401(h) of the Act reached with the Chief, DOE
in connection with a prior charge of the inadequacy of a union's
constitution and bylaws to remove officers, as provided in subpart A of
this part, the labor organization (1) has failed to act within a
reasonable time, or (2) has violated the procedures agreed to with the
Chief, DOE, or (3) has violated the principles governing adequate
removal procedures under Sec. 417.2(b).
(b) The complaint must be filed pursuant to section 402(a) of the
Act within one calendar month after one of the two following conditions
has been met:
(1) The member has exhausted the remedies available to him under the
constitution and bylaws of the organization, or
(2) The member has invoked such remedies without obtaining a final
decision within three calendar months after invoking them.

[59 FR 65716, Dec. 21, 1994, as amended at 62 FR 6093, Feb. 10, 1997]

Sec. 417.17 Investigation of complaint and court action.

The Office of Labor-Management Standards shall investigate such
complaint, and if upon such investigation the Secretary finds probable
cause to believe that a violation of section 401(h) of the Act has
occurred and has not been remedied, the Secretary shall within 60 days
after the filing of such complaint, bring a civil action against the
labor organization in the district court of the United States for the
district in which such labor organization maintains its principal
office, to direct the conduct of a hearing and vote upon the removal of
officer(s) under the supervision of the Assistant Secretary as provided
in section 402(b) of the Act.

[59 FR 65717, Dec. 21, 1994]

Sec. 417.18 Hearings--removal of officers of local labor organizations.

Hearings pursuant to order of the court and concerning the removal
of officers under section 402(b) of the Act shall be for the purpose of
introducing testimony and evidence showing why an officer or officers
accused of serious misconduct should or should not be removed. Hearings
shall be conducted by the officers of the labor organization (subject to
Sec. 417.19) in accordance with the constitution and bylaws of the labor
organization insofar as they are not inconsistent with title IV of the
Act, or with the provisions of this part 417: Provided, however, That no
officer(s) accused of serious misconduct shall participate in such
hearings in any capacity except as witness or counsel.

Sec. 417.19 Assistant Secretary's representative.

The Assistant Secretary shall appoint a representative or
representatives whose functions shall be to supervise the hearing and
vote. Such representative(s) shall have final authority to issue such
rulings as shall be appropriate or necessary to insure a full and fair
hearing and vote. Upon his own motion or upon consideration of the
petition of any interested person the Assistant Secretary's
Representative may disqualify any officer(s) or member(s) of the union
from participation in the conduct of the hearing (except in the capacity
of witness or counsel).

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]

[[Page 161]]

Sec. 417.20 Notice of hearing.

Notice of hearing, not less than 10 days in advance of the date set
for such hearing, shall be transmitted to the officer or officers
accused of serious misconduct and other interested persons, insofar as
they are known, and shall inform them of (a) the time, place, and nature
of the hearing; (b) the legal authority and jurisdiction under which the
hearing is to be held; (c) the matters of fact and law asserted; and (d)
their rights to challenge the appointment of certain of, or all of, the
officers of the union to conduct the hearing in accordance with this
subpart. The labor organization shall promptly inform its members of the
provisions of the notice. Copies of the notice shall be made available
for inspection at the office of the labor organization.

Sec. 417.21 Transcript.

It shall be within the discretion of the Assistant Secretary to
require an official reporter to make an official transcript of the
hearings. In the event he does so require, copies of the official
transcript shall be made available upon request addressed to the
Assistant Secretary in accordance with the provisions of part 70 of this
title.

[50 FR 31310, Aug. 1, 1985, as amended at 63 FR 33779, June 19, 1998]

Sec. 417.22 Vote among members of the labor organization.

Within a reasonable time after completion of the hearing, and after
proper notice thereof, a secret ballot vote shall be conducted among the
members of the labor organization in good standing on the issue of
whether the accused officer or officers shall be removed from office.
The vote shall be in accordance with the constitution and bylaws of the
labor organization insofar as they are not inconsistent with the
provisions of the Act or this part 417. The presiding officer or
officers at the taking of such vote shall entertai objections or
suggestions as to the rules for conducting the vote, eligibility of
voters, and such other matters as may be pertinent; and shall rule on
such questions, shall establish procedures for the conduct of the vote,
and for tabulation of the ballots; and shall appoint observers and
compile a list of eligible voters. All rulings of the presiding officer
or officers shall be subject to the provisions of Sec. 417.19.

Sec. 417.23 Report to the Assistant Secretary.

Following completion of the hearing and vote, the Assistant
Secretary's Representative shall file a report with the Assistant
Secretary setting out the results of the balloting; and pertinent
details of the hearing and vote. Notice thereof shall be given to the
membership of such labor organization promptly and copies shall be
furnished to all interested parties.

Sec. 417.24 Appeal to the Assistant Secretary.

(a) Within 15 days after mailing of the report of the Assistant
Secretary's Representative, any interested party may appeal the conduct
of the hearing or vote or both by filing written exceptions with the
Assistant Secretary. Blanket appeals shall not be received. Impertinent
or scandalous matter may be stricken by the Assistant Secretary, or an
appeal containing such matter or lacking in specifications may be
dismissed.
(b) Upon review of the whole record, the Assistant Secretary shall
issue a decision or may order further hearing, a new vote, or such
further proceedings as he deems appropriate.

[29 FR 8264, July 1, 1964, as amended at 50 FR 31310, Aug. 1, 1985]

Sec. 417.25 Certification of results of vote.

Upon receipt of the report of the Assistant Secretary's
Representative on the hearing and vote on removal, the Assistant
Secretary shall certify the results of the vote to the court as required
by section 402(c) of the Act.

PART 451--LABOR ORGANIZATIONS AS DEFINED IN THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959--Table of Contents

Sec.
451.1 Introductory statement.
451.2 General.
451.3 Requirements of section 3(i).
451.4 Labor organizations under section 3(j).

[[Page 162]]

451.5 ``State or local central body.''
451.6 Extraterritorial application.

Authority: Secs. 3, 208, 401, 73 Stat. 520, 529, 532 (29 U.S.C. 402,
438, 481); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14388, Dec. 27, 1963, unless otherwise noted.

Sec. 451.1 Introductory statement.

(a) This part discusses the meaning and scope of sections 3(i) and
3(j) of the Labor-Management Reporting and Disclosure Act of 1959 \1\
(hereinafter referred to as the Act). These provisions define the terms
``labor organization'' and ``labor organization * * * in an industry
affecting commerce'' for purposes of the Act.\2\
---------------------------------------------------------------------------

\1\ 73 Stat. 520, 521, 29 U.S.C. 402.
\2\ It should be noted that the definition of the term ``labor
organization,'' as well as other terms, in section 3 are for purposes of
those portions of the Act included in titles I, II, III, IV, V (except
section 505) and VI. They do not apply to title VII, which contains
amendments of the National Labor Relations Act, as amended, nor to
section 505 of title V, which amends section 302 (a), (b), and (c) of
the Labor Management Relations Act, 1947, as amended. The terms used in
title VII and section 505 of title V have the same meaning as they have
under the National Labor Relations Act, as amended, and the Labor
Management Relations Act, 1947, as amended.
---------------------------------------------------------------------------

(b) The Act imposes on labor organizations various obligations and
prohibitions relating generally, among other things, to the reporting of
information and election and removal of officers. Requirements are also
imposed on the officers, representatives, and employees of labor
organizations. In addition, certain rights are guaranteed the members
thereof. It thus becomes a matter of importance to determine what
organizations are included within the applicability of the Act.
(c) The provisions of the Act, other than title I and amendments to
other statutes contained in section 505 and title VII, are subject to
the general investigatory authority of the Secretary of Labor embodied
in section 601 \3\ (and delegated by him to the Assistant Secretary),
which empowers him to investigate whenever he believes it necessary in
order to determine whether any person has violated or is about to
violate such provisions. The correctness of an interpretation of these
provisions 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 decides that a prior
interpretation is incorrect. However, the omission to discuss a
particular problem 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. Interpretations of the
Assistant Secretary with respect to the meaning of the terms ``labor
organization'' and ``labor organization * * * in an industry affecting
commerce,'' as used in the Act, are set forth in this part to provide
those affected by the 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.'' \4\
---------------------------------------------------------------------------

\3\ Sec. 601, 73 Stat. 539, 29 U.S.C. 521.
\4\Skidmore v. Swift & Co., 323 U.S. 134, 138.
---------------------------------------------------------------------------

(d) To the extent that prior opinions and interpretations relating
to the meaning of ``labor organization'' and ``labor organization * * *
in an industry affecting commerce'' are inconsistent or in conflict with
the principles stated in this part, they are hereby rescinded and
withdrawn.

[28 FR 14388, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Sec. 451.2 General.

A ``labor organization'' under the Act must qualify under section
3(i). It must also be engaged in an industry affecting commerce. In
accordance with the broad language used and the manifest congressional
intent, the language will be construed broadly to include all

[[Page 163]]

labor organizations of any kind other than those clearly shown to be
outside the scope of the Act.

Sec. 451.3 Requirements of section 3(i).

(a) Organizations which deal with employers. (1) The term ``labor
organization'' includes ``any organization of any kind, any agency, or
employee representation committee, group, association, or plan * * * in
which employees participate and which exists for the purpose, in whole
or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours, or other terms or conditions of
employment, * * *.'' The quoted language is deemed sufficiently broad to
encompass any labor organization irrespective of size or formal
attributes. While it is necessary for employees to participate therein,
such participating employees need not necessarily be the employees of
the employer with whom the organization deals. In determining who are
``employees'' for purposes of this provision, resort must be had to the
broad definition of ``employee'' contained in section 3(f) of the
Act.\5\ It will be noted that the term includes employees whose work has
ceased for certain specified reasons, including any current labor
dispute.
---------------------------------------------------------------------------

\5\ Sec. 3(f) reads: `` `Employee' means any individual employed by
an employer, and includes any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or
because of any unfair labor practice or because of exclusion or
expulsion from a labor organization in any manner or for any reason
inconsistent with the requirements of this Act.''
---------------------------------------------------------------------------

(2) To come within the quoted language in section 3(i) the
organization must exist for the purpose, in whole or in part, of dealing
with employers concerning grievances, etc. In determining whether a
given organization exists wholly or partially for such purpose,
consideration will be given not only to formal documents, such as its
constitution or bylaws, but the actual functions and practices of the
organization as well. Thus, employee committees which regularly meet
with management to discuss problems of mutual interest and handle
grievances are ``labor organizations'', even though they have no formal
organizational structure.\6\
---------------------------------------------------------------------------

\6\ National Labor Relations Board v. Cabot Carbon Co., 360 U.S.
203.
---------------------------------------------------------------------------

(3) Since the types of labor organizations described in subparagraph
(2) of this paragraph are those which deal with employers, it is
necessary to consider the definition of ``employer'' contained in
section 3(e) of the Act in determining the scope of the language under
consideration.\7\ The term ``employer'' is broadly defined to include
``any employer or any group or association of employers engaged in an
industry affecting commerce'' which is ``an employer within the meaning
of any law of the United States relating to the employment of any
employees * * *.'' Such laws would include, among others, the Railway
Labor Act, as amended, the Fair Labor Standards Act, as amended, the
Labor Management Relations Act, as amended, and the Internal Revenue
Code. The fact that employers may be excluded from the application of
any of the foregoing acts would not preclude their qualification as
employers for purposes of this Act. For example, employers of
agricultural labor who are excluded from the application of the Labor
Management Relations Act, as amended, would appear to be employers
within the meaning of this Act.
---------------------------------------------------------------------------

\7\ Sec. 3(e) reads: `` `Employer' means any employer or any group
or association of employers engaged in an industry affecting commerce,
(1) which is, with respect to employees engaged in an industry affecting
commerce, an employer within the meaning of any law of the United States
relating to the employment of any employees or (2) which may deal with
any labor organization concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work, and includes
any person acting directly or indirectly as an employer or as an agent
of an employer in relation to an employee but does not include the
United States or any corporation wholly owned by the Government of the
United States or any State or political subdivision thereof.''
---------------------------------------------------------------------------

(4) In defining ``employer,'' section 3(e) expressly excludes the
``United States or any corporation wholly owned by the Government of the
United States or any State or political

[[Page 164]]

subdivision thereof.'' The term ``political subdivision'' includes,
among others, counties and municipal governments. A labor organization
composed entirely of employees of the governmental entities excluded by
section 3(e) would not be a labor organization for the purposes of the
Act with the exception of a labor organization composed of employees of
the United States Postal Service which is subject to the Act by virtue
of the Postal Reorganization Act of 1970. (Organizations composed of
Federal government employees that meet the definition of ``labor
organization'' in the Civil Service Reform Act or the Foreign Service
Act are subject to the standards of conduct requirements of those Acts,
5 U.S.C. 7120 and 22 U.S.C. 4117, respectively. In addition, labor
organizations subject to the Congressional Accountability Act of 1995
are subject to the standards of conduct provisions of the Civil Service
Reform Act pursuant to 2 U.S.C. 1351(a)(1). The regulations implementing
the standards of conduct requirements are contained in parts 457--459 of
this title.) However, in the case of a national, international or
intermediate labor organization composed both of government locals and
non-government or mixed locals, the parent organization as well as its
mixed and non-government locals would be ``labor organizations'' and
subject to the Act. In such case, the locals which are composed entirely
of government employees would not be subject to the Act, although
elections in which they participate for national officers or delegates
would be so subject.\8\
---------------------------------------------------------------------------

\8\ See also, Sec. 452.12 of this chapter which discusses the
election provisions of the Act.
---------------------------------------------------------------------------

(b) Organizations which may or may not deal with employers.
Regardless of whether it deals with employers concerning terms and
conditions of employment and regardless of whether it is composed of
employees, any conference, general committee, joint or system board, or
joint council engaged in an industry affecting commerce and which is
subordinate to a national or international labor organization is a
``labor organization'' for purposes of the Act. Included are the area
conferences and the joint councils of the International Brotherhood of
Teamsters and similar units of other national and international labor
organizations.

[28 FR 14388, Dec. 27, 1963, as amended at 42 FR 59071, Nov. 15, 1977;
50 FR 31310, Aug. 1, 1985; 62 FR 6093, Feb. 10, 1997]

Sec. 451.4 Labor organizations under section 3(j).

(a) General. Section 3(j) sets forth five categories of labor
organizations which ``shall be deemed to be engaged in an industry
affecting commerce'' within the meaning of the Act. Any organization
which qualifies under section 3(i) and falls within any one of these
categories listed in section 3(j) is subject to the requirements of the
Act.
(b) Certified employee representatives. This category includes all
organizations certified as employee representatives under the Railway
Labor Act, as amended, or under the National Labor Relations Act, as
amended.
(c) Labor organizations recognized or acting as employee
representatives though not certified. This category includes local,
national, or international labor organizations which, though not
formally certified, are recognized or acting as the representatives of
employees of an employer engaged in an industry affecting commerce.
Federations, such as the American Federation of Labor and Congress of
Industrial Organizations, are included in this category,\9\ although
expressly excepted from the election provisions of the Act.\10\
---------------------------------------------------------------------------

\9\ See National Labor Relations Board v. Highland Park Mfg. Co.,
341 U.S. 322. See also paragraph (d) of this section.
\10\ Act, sec. 401(a).
---------------------------------------------------------------------------

(d) Organizations which have chartered local or subsidiary bodies.
This category includes any labor organization that has chartered a local
labor organization or subsidiary body which is within either of the
categories discussed in paragraph (b) or (c) of this section. Under this
provision, a labor organization not otherwise subject to the Act, such
as one composed of Government employees, would appear to be ``engaged in
an industry affecting commerce'' and, therefore, subject to the Act if
it charters one or more local

[[Page 165]]

labor organizations which deal with an ``employer'' as defined in
section 3(c).\11\ This category includes, among others, a federation of
national or international organizations which directly charters local
bodies.\12\
---------------------------------------------------------------------------

\11\ See Sec. 451.3(a).
\12\ See also paragraph (c) of this section.
---------------------------------------------------------------------------

(e) Local or subordinate bodies which have been chartered by a labor
organization. This category includes any labor organization that has
been chartered by an organization within either of the categories
discussed in paragraph (b) or (c) of this section as the local or
subordinate body through which such employees may enjoy membership or
become affiliated with the chartering organization.
(f) Intermediate bodies. Included in this category is any
conference, general committee, joint or system board, or joint council,
subordinate to a national or international labor organization, which
includes a labor organization engaged in an industry affecting commerce
within the categories discussed in paragraphs (b), (c), (d) and (e) of
this section. Excluded from this definition, however, are State or local
central bodies.\13\ (It should be noted that the above listing is
included in the Act as words of illustration, not of limitation.) The
following is a description of typical intermediate bodies:
---------------------------------------------------------------------------

\13\ For discussion of State and local central bodies see
Sec. 451.5.
---------------------------------------------------------------------------

(1) Conference. A conference is an organic body within a national or
international labor organization formed on a geographical area, trade
division, employer-wide or similar basis and composed of affiliate
locals of the parent national or international organization. The various
conferences of the International Brotherhood of Teamsters, for example,
are in this category.
(2) General committees. Typical of those bodies are the general
committees of the railroad labor organizations. The term includes any
subordinate unit of a national railroad labor organization, regardless
of the title or designation of such unit, which under the constitution
and bylaws of the organization of which it is a unit, is authorized to
represent that organization on a particular railroad or portion thereof
in negotiating with respect to wages and working conditions.\14\ General
committees are sometimes known as system boards of adjustment, general
grievance committees, and general committees of adjustment. They are to
be distinguished from system boards of adjustment established under the
Railway Labor Act, which are composed of management and labor members.
These joint labor-management boards are not included within the
definition of a labor organization under the Act.
---------------------------------------------------------------------------

\14\ See definition of term ``General Committee'' under Railroad
Retirement Act in 20 CFR 201.1(k).
---------------------------------------------------------------------------

(3) Joint or system boards. As mentioned above, in connection with
railroad labor organizations the term ``general committee'' includes
system boards. However, as used here the term has a broader meaning and
includes, among others, boards which have members from more than one
labor organization.
(4) Joint councils. A joint council is composed of locals not
necessarily of the same national or international labor organization
located in a particular area, such as a city or county. These bodies are
sometimes called joint boards, joint executive boards, joint councils,
or district councils. Included, for example, are councils of building
and construction trades labor organizations.

[28 FR 14388, Dec. 27, 1963, as amended at 42 FR 59071, Nov. 15, 1977]

Sec. 451.5 ``State or local central body.''

(a) The definition of ``labor organization'' in section 3(i) and the
examples of labor organizations deemed to be engaged in an industry
affecting commerce in section 3(j)(5) both except from the term ``labor
organization'' a ``State or local central body.'' As used in these two
sections, the phrase State or local central body means an organization
that:
(1) Is chartered by a federation of national or international
unions; and
(2) Admits to membership local unions and subordinate bodies of
national or international unions that are affiliated with the chartering
federation within the State or local central body's territory and any
local unions

[[Page 166]]

or subordinate bodies directly affiliated with the federation in such
territory; and
(3) Exists primarily to carry on educational, legislative and
coordinating activities.
(b) The term does not include organizations of local unions or
subordinate bodies (1) of a single national or international union; or
(2) of a particular department of a federation or similar association of
national or international unions.

[29 FR 8060, June 25, 1964]

Sec. 451.6 Extraterritorial application.

(a) It is not the purpose of the Act to impose on foreign labor
organizations any regulation of the activities they carry on under the
laws of the countries in which they are domiciled or have their
principal place of business. The applicability of the Act is limited to
the activities of persons or organizations within the territorial
jurisdiction of the United States. The foregoing would be applicable,
for example, to Canadian locals affiliated with international labor
organizations organized within the United States.
(b) On the other hand, labor organizations otherwise subject to the
Act are not relieved of the requirements imposed upon them with respect
to actions taken by them in the United States or which will have effect
in the United States, by virtue of the fact that they have foreign
members or affiliates that participate in these actions. For example, a
national or international labor organization which conducts its required
election of officers by referendum or at a convention of delegates must
comply with the election provisions of the Act, \16\ even though members
of foreign locals participate in the balloting, or delegates of foreign
locals participate in the election at the convention.
---------------------------------------------------------------------------

\15\ [Reserved]
\16\ See Sec. 452.13 of this chapter.
---------------------------------------------------------------------------

(c) Similarly, the provisions of the Act with respect to imposition
of trusteeships \17\ are applicable to United States national or
international labor organizations subject to this Act even though the
action of the United States organization is taken with respect to a
foreign local.
---------------------------------------------------------------------------

\17\ See title III of the Act.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\1\ 73 Stat. 532-535, 29 U.S.C. 481-483.
---------------------------------------------------------------------------

(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.
---------------------------------------------------------------------------

\2\ Skidmore v. Swift & Co., 323 U.S. 134 at 138 (1944).
---------------------------------------------------------------------------

(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\
---------------------------------------------------------------------------

\3\ English v. Cunningham, 282 F.2d 848 (C.A.D.C. 1960).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\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.''
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\14\ See Sec. 451.6 of this chapter.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\15\ However, the other provisions of the Act are applicable
immediately upon such formation or merger.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.''
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\17\ Cf. NLRB v. Coca-Cola Bottling Co., 350 U.S. 264 (1956). See
also, Daily Cong. Rec. 5867, Sen., Apr. 23, 1959.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\18\ See, for example, S. Rept. 187, 86th Cong., 1st sess., p. 7.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\19\ Act, sec. 401(a) and 401(d) (29 U.S.C. 481).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\20\ See Sec. 452.14 for a discussion of the selection of officers
in a new or newly-merged labor organization.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\22\ See Sec. 452.119 and following for discussion of indirect
elections.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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
* * *.''
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------

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]

PART 453--GENERAL STATEMENT CONCERNING THE BONDING REQUIREMENTS OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959--Table of Contents

Introduction

Sec.
453.1 Scope and significance of this part.

Criteria for Determining Who Must Be Bonded

453.2 Provisions of the statute.
453.3 Labor organizations within the coverage of section 502(a).
453.4 Trusts (in which a labor organization is interested) within the
coverage of section 502(a).
453.5 Officers, agents, shop stewards, or other representatives or
employees of a labor organization.
453.6 Officers, agents, shop stewards or other representatives or
employees of a trust in which a labor organization is
interested.
453.7 ``Funds or other property'' of a labor organization or of a trust
in which a labor organization is interested.
453.8 Personnel who ``handle'' funds or other property.
453.9 ``Handling'' of funds or other property by personnel functioning
as a governing body.

Scope of the Bond

453.10 The statutory provision.
453.11 The nature of the ``duties'' to which the bonding requirement
relates.
453.12 Meaning of fraud or dishonesty.

Amount of Bonds

453.13 The statutory provision.
453.14 The meaning of ``funds''.
453.15 The meaning of funds handled ``during the preceding fiscal
year''.
453.16 Funds handled by more than one person.
453.17 Term of the bond.

Form of Bonds

453.18 Bonds ``individual or schedule in form.''
453.19 The designation of the ``insured'' on bonds.

Qualified Agents, Brokers, and Surety Companies for the Placing of Bonds

453.20 Corporate sureties holding grants of authority from the
Secretary of the Treasury.
453.21 Interests held in agents, brokers, and surety companies.

Miscellaneous Provisions

453.22 Prohibition of certain activities by unbonded persons.
453.23 Persons becoming subject to bonding requirements during fiscal
year.
453.24 Payment of bonding costs.
453.25 Effective date of the bonding requirement.
453.26 Powers of the Secretary of Labor to exempt.

Authority: Sec. 502, 73 Stat. 536; 79 Stat. 888 (29 U.S.C. 502);
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 28 FR 14394, Dec. 27, 1963, unless otherwise noted.

[[Page 199]]

Introduction

Sec. 453.1 Scope and significance of this part.

(a) Functions of the Department of Labor. This part discusses the
meaning and scope of section 502 of the Labor-Management Reporting and
Disclosure Act of 1959 \1\ (hereinafter referred to as the Act), which
requires the bonding of certain officials, representatives, and
employees of labor organizations and of trusts in which labor
organizations are interested. The provisions of section 502 are subject
to the general investigatory authority of the Secretary of Labor,
embodied in section 601 of the Act (and delegated by him to the
Assistant Secretary), which empowers him to investigate whenever he
believes it necessary in order to determine whether any person has
violated or is about to violate any provisions of the Act (except title
I or amendments to other statutes made by section 505 or title VII). The
Department of Labor is also authorized, under the general provisions of
section 607, to forward to the Attorney General, for appropriate action,
any evidence of violations of section 502 developed in such
investigations, as may be found to warrant criminal prosecution under
the Act or other Federal law.
---------------------------------------------------------------------------

\1\ 73 Stat. 536; 29 U.S.C. 502.
---------------------------------------------------------------------------

(b) Purpose and effect of interpretations. Interpretations of the
Assistant Secretary with respect to the bonding provisions 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 decides that a prior interpretation is incorrect. However,
the omission to discuss a particular problem 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.
---------------------------------------------------------------------------

\2\ Skidmore v. Swift & Co., 323 U.S. 134, 138.
---------------------------------------------------------------------------

(c) Earlier interpretations superseded. To the extent that prior
opinions and interpretations under the Act, relating to the bonding of
certain officials, representatives, and employees of labor organizations
and of trusts in which labor organizations are interested, are
inconsistent or in conflict with the principles stated in this part,
they are hereby rescinded and withdrawn.

[28 FR 14394, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

Criteria for Determining Who Must Be Bonded

Sec. 453.2 Provisions of the statute.

(a) Section 502(a) requires that:

Every officer, agent, shop steward, or other representative or
employee of any labor organization (other than a labor organization
whose property and annual financial receipts do not exceed $5,000 in
value), or of a trust in which a labor organization is interested, who
handles funds or other property thereof shall be bonded to provide
protection against loss by reason of acts of fraud or dishonesty on his
part directly or through connivance with others.

(b) This section sets forth, in the above language and in its
further provisions, the minimum requirements regarding the bonding of
the specified personnel. There is no provision in the Act which
precludes the bonding of such personnel in amounts exceeding those
specified in section 502(a). Similarly, the Act contains no provision
precluding the bonding of such personnel as are not required to be
bonded by this section. Such excess coverage may be in any amount and in
any form otherwise lawful and acceptable to the parties to such bonds.

[28 FR 14394, Dec. 27, 1963, as amended at 30 FR 14925, Dec. 2, 1965]

[[Page 200]]

Sec. 453.3 Labor organizations within the coverage of section 502(a).

Any labor organization as defined in sections 3(i) and 3(j) of the
Act \3\ is a labor organization within the coverage of section 502(a)
unless its property and annual financial receipts do not exceed $5,000
in value. The determination as to whether a particular labor
organization is excepted from the application of section 502(a) is to be
made at the beginning of each of its fiscal years on the basis of the
total value of all its property at the beginning of, and its total
financial receipts during, the preceding fiscal year of the
organization.
---------------------------------------------------------------------------

\3\ See part 451 of this chapter.
---------------------------------------------------------------------------

Sec. 453.4 Trusts (in which a labor organization is interested) within the coverage of section 502(a).

Section 3(l) of the Act defines a trust in which a labor
organization is interested as:

* * * a trust or other fund or organization (1) which was created or
established by a labor organization, or one or more of the trustees or
one or more members of the governing body of which is selected or
appointed by a labor organization, and (2) a primary purpose of which is
to provide benefits for the members of such labor organization or their
beneficiaries.

Both the language and the legislative history \4\ make it clear that
this definition covers pension funds, health and welfare funds, profit
sharing funds, vacation funds, apprenticeship and training funds, and
funds or trusts of a similar nature which exist for the purpose of, or
have as a primary purpose, the providing of the benefits specified in
the definition. This is so regardless of whether these trusts, funds, or
organizations are administered solely by labor organizations, or jointly
by labor organizations and employers, or by a corporate trustee, unless
they were neither created or established by a labor organization nor
have any trustee or member of the governing body who was selected or
appointed by a labor organization.
---------------------------------------------------------------------------

\4\ Daily Cong. Rec., pp. 5858-59, Senate, April 23, 1959.
---------------------------------------------------------------------------

Sec. 453.5 Officers, agents, shop stewards, or other representatives or employees of a labor organization.

With respect to labor organizations, the term ``officer, agent, shop
steward, or other representative'' is defined in section 3(q) of the Act
to include ``elected officials and key administrative personnel, whether
elected or appointed (such as business agents, heads of departments or
major units, and organizers who exercise substantial independent
authority)''. Other individuals employed by a labor organization,
including salaried non-supervisory professional staff, stenographic, and
service personnel are ``employees'' and must be bonded if they handle
\5\ funds or other property of the labor organization.
---------------------------------------------------------------------------

\5\ For discussion of ``handle'', see Sec. 453.8.
---------------------------------------------------------------------------

Sec. 453.6 Officers, agents, shop stewards or other representatives or employees of a trust in which a labor organization is interested.

(a) Officers, agents, shop stewards or other representatives. While
the definition of the collective term ``Officer, agent, shop steward, or
other representative'' in section 3(q) of the Act is expressly
applicable only ``when used with respect to a labor organization,'' the
use of this term in connection with trusts in which a labor organization
is interested makes it clear that, in that connection, it refers to
personnel of such trusts in positions similar to those enumerated in the
definition. Thus, the term covers trustees and key administrative
personnel of trusts, such as the administrator of a trust, heads of
departments or major units, and persons in similar positions. It covers
such personnel, including trustees, regardless of whether they are
representatives of or selected by labor organizations, or
representatives of or selected by employers,\6\ and such personnel must
be bonded if they handle

[[Page 201]]

funds or other property of the trust within the meaning of section
502(a).
---------------------------------------------------------------------------

\6\ See the contrast between section 308 of S. 1555 as passed by the
Senate (``All officers, agents, representatives, and employees of any
labor organization engaged in an industry affecting commerce who handle
funds of such organization or of a trust in which such organization is
interested shall be bonded * * *'') and section 502 of the Act as
finally enacted. The change between the two versions originated in the
House Committee on Education and Labor. Prior to the reporting of the
bill (H.R. 8342) by that Committee, a joint subcommittee of that
Committee held extensive hearings, during the course of which witnesses
including President Meany of the AFL-CIO criticized the bonding
provision of the Senate bill on the ground that it required only union
personnel of joint employer-union trusts to be bonded. (See Record of
Hearings before a Joint Subcommittee of the Committee on Education and
Labor, House of Representatives, 86th Congress, 1st Session, on H.R.
3540, H.R. 3302, H.R. 4473 and H.R. 4474, pp. 1493-94, 1979.
---------------------------------------------------------------------------

(b) Independent institutions not included. The analogy to the
definition of the term ``officer, agent, shop steward, or other
representative,'' when used with respect to a labor organization, shows
that banks and other qualified financial institutions in which trust
funds are deposited are not to be considered as ``agents'' or
``representatives'' of trusts within the meaning of section 502 and thus
are not subject to the bonding requirement, even though they may also
have administrative or management responsibilities with respect to such
trusts. Similarly, the bonding requirement does not apply to brokers or
other independent contractors who have contracted with trusts for the
performance of functions which are normally not carried out by officials
or employees of such trusts such as the buying of securities, the
performance of other investment functions, or the transportation of
funds by armored truck.
(c) Employees of a trust in which a labor organization is
interested. As in the case of labor organizations, all individuals
employed by a trust in which a labor organization is interested are
``employees,'' regardless of whether, technically, they are employed by
the trust, by the trustees, by the trust administrator, or by trust
officials in similar positions.

[28 FR 14394, Dec. 27, 1963, as amended at 50 FR 31311, Aug. 1, 1985]

Sec. 453.7 ``Funds or other property'' of a labor organization or of a trust in which a labor organization is interested.

The affirmative requirement for bonding the specified personnel is
applicable only if they handle ``funds or other property'' of the labor
organization or trust concerned. A consideration of the purpose of
section 502 and a reading of the section as a whole, including
provisions for fixing the amount of bonds, suffice to show that the term
``funds or other property'', as used in this section of the Act,
encompasses more than cash alone but that it does not embrace all of the
property of a labor organization or of a trust in which a labor
organization is interested. The term does not include property of a
relatively permanent nature, such as land, buildings, furniture,
fixtures and office and delivery equipment used in the operations of a
labor organization or trust. It does, however, include items in the
nature of quick assets, such as checks and other negotiable instruments,
government obligations and marketable securities, as well as cash, and
other property held, not for use, but for conversion into cash or for
similar purposes making it substantially equivalent to funds.

Sec. 453.8 Personnel who ``handle'' funds or other property.

(a) General considerations. Section 502(a) requires ``every'' person
specified in its bonding requirement ``who handles'' funds or other
property of the labor organization or trust to be bonded. It does not
contain any exemption based on the amount of the funds or other property
handled by particular personnel. Therefore, if the bonding requirement
is otherwise applicable to such persons, the amount of the funds or the
value of the property handled by them does not affect such
applicability. In determining whether a person ``handles'' funds or
other property within the meaning of section 502(a), however, it is
important to consider the term ``handles'' in the light of the basic
purpose which Congress sought to achieve by the bonding requirement and
the language chosen to make that

[[Page 202]]

purpose effective. Thus, while it is clear that section 502(a) should be
considered as representing the minimum requirements which Congress
deemed necessary in order to insure the reasonable protection of the
funds and other property of labor organizations and trusts within the
coverage of the section, it is equally clear from the legislative
history \7\ and the language used that Congress was aware of cost
considerations and did not intend to require unreasonable, unnecessary
or duplicative bonding. In terms of these general considerations, more
specific content may be assigned to the term ``handles'' by reference to
the prohibition in section 502(a) against permitting any person not
covered by an appropriate bond ``to receive, handle, disburse, or
otherwise exercise custody or control'' of the funds or other property
of a labor organization or of a trust in which a labor organization is
interested. The phrase ``receive, handle, disburse, or otherwise
exercise custody or control'' is not to be considered as expanding the
scope of the term ``handles'' but rather as indicating facets of
``handles'' which in a specific prohibition, Congress believed should be
clearly set forth.
---------------------------------------------------------------------------

\7\ House Report No. 1147, 86th Congress, 1st Session, p. 35; Daily
Cong. Record 16419, Senate, Sept. 3, 1959; Hearings Before the
Subcommittee on Labor of the Senate Committee on Labor and Public
Welfare on S. 505, S. 748, S. 76, S. 1002, S. 1137, and S. 1311, 86th
Congress, 1st Session, p. 709.
---------------------------------------------------------------------------

(b) Persons included generally. The basic objective of section
502(a) is to provide reasonable protection of funds or other property
rather than to insure against every conceivable possibility of loss.
Accordingly, a person shall be deemed to be ``handling'' funds or other
property, so as to require bonding under that section, whenever his
duties or activities with respect to given funds or other property are
such that there is a significant risk of loss by reason of fraud or
dishonesty on the part of such person, acting either alone or in
collusion with others.
(c) Physical contact as criterion of ``handling.'' Physical dealing
with funds or other property is, under the principles above stated, not
necessarily a controlling criterion in every case for determining the
persons who ``handle'' within the meaning of section 502(a). Physical
contact with cash, checks or similar property generally constitutes
``handling.'' On the other hand, bonding may not be required for office
personnel who from time to time perform counting, packaging, tabulating
or similar duties which involve physical contact with checks,
securities, or other funds or property but which are performed under
conditions that cannot reasonably be said to give rise to significant
risks with respect to the receipt, safekeeping or disbursement of funds
or property. This may be the case where significant risks of fraud or
dishonesty in the performance of duties of an essentially clerical
character are precluded by the closeness of the supervision provided or
by the nature of the funds or other property handled.
(d) ``Handling'' funds or other property without physical contact.
Personnel who do not physically handle funds or property may
nevertheless ``handle'' within the meaning of section 502(a) where they
have or perform significant duties with respect to the receipt,
safekeeping or disbursement of funds or other property. For example,
persons who have access to a safe deposit box or similar depository for
the purpose of adding to, withdrawing, checking or otherwise dealing
with its contents may be said to ``handle'' these contents within the
meaning of section 502(a) even though they do not at any time during the
year actually secure such access for such purposes. Similarly, those
charged with general responsibility for the safekeeping of funds or
other property such as the treasurer of a labor organization, should be
considered as handling funds or other property. It should also be noted
that the extent of actual authority to deal with funds or property may
be immaterial where custody or other functions have been granted which
create a substantial risk of fraud or dishonesty. Thus, if a bank
account were maintained in the name of a particular officer or employee
whose signature the bank were authorized to honor, it could not be
contended that he did not ``handle'' funds merely because he had been
forbidden by the organization or by his superiors to make deposits or
withdrawals.

[[Page 203]]

(e) Disbursement of funds or other property. It is clear from both
the purpose and language of section 502(a) that personnel described in
the section who actually disburse funds or other property, such as
officers or trustees authorized to sign checks or persons who make cash
disbursements, must be considered as handling such funds and property.
Whether others who may influence, authorize or direct disbursements must
also be considered to handle funds or other property can be determined
only by reference to the specific duties or responsibilities of these
persons in a particular labor organization or trust.

[28 FR 14394, Dec. 27, 1963, as amended at 30 FR 14925, Dec. 2, 1965]

Sec. 453.9 ``Handling'' of funds or other property by personnel functioning as a governing body.

(a)(1) General considerations. For many labor organizations and
trusts special problems involving disbursements will be presented by
those who, as trustees or members of an executive board or similar
governing body, are, as a group, charged with general responsibility for
the conduct of the business and affairs of the organization or trust.
Often such bodies may approve contracts, authorize disbursements, audit
accounts and exercise similar responsibilities.
(2) It is difficult to formulate any general rule for such cases.
The mere fact that a board of trustees, executive board or similar
governing body has general supervision of the affairs of a trust or
labor organization, including investment policy and the establishment of
fiscal controls, would not necessarily mean that the members of this
body ``handle'' the funds or other property of the organization. On the
other hand, the facts may indicate that the board or other body
exercises such close, day-to-day supervision of those directly charged
with the handling of funds or other property that it might be
unreasonable to conclude that the members of such board were not, as a
group, also participating in the handling of such funds and property.
\8\ Also, whether or not the members of a particular board of trustees
or executive board handle funds or other property in their capacity as
such, certain of these members may hold other offices or have other
functions involving duties directly related to the receipt, safekeeping
or disbursement of the funds or other property of the organization so
that it would be necessary that they be bonded irrespective of their
board membership.
---------------------------------------------------------------------------

\8\ As to group coverage, see Sec. 453.16.
---------------------------------------------------------------------------

(b) Nature of responsibilities as affecting ``handling.'' With
respect to particular responsibilities of boards of trustees, executive
boards and similar bodies in disbursing funds or other property, much
would depend upon the system of fiscal controls provided in a particular
trust or labor organization. The allocation of funds or authorization of
disbursements for a particular purpose is not necessarily handling of
funds within the meaning of the section. If the allocation or
authorization merely permits expenditures by a disbursing officer who
has responsibility for determining the validity or propriety of
particular expenditures, then the action of the disbursing officer and
not that of the board would constitute handling. But if pursuant to a
direction of the board, the disbursing officer performed only
ministerial acts without responsibility to determine whether the
expenditures were valid or appropriate, then the board's action would
constitute handling. In such a case, the absence of fraud or dishonesty
in the acts of the disbursing officer alone would not necessarily
prevent fraudulent or dishonest disbursements. The person or persons who
are charged with or exercise responsibility for determining whether
specific disbursements are bona fide, regular, and in accordance with
the applicable constitution, trust instrument, resolution or other laws
or documents governing the disbursement of funds or other property
should be considered to handle such funds and property and be bonded
accordingly.

[28 FR 14394, Dec. 27, 1963, as amended at 30 FR 14926, Dec. 2, 1965]

[[Page 204]]

Scope of the Bond

Sec. 453.10 The statutory provision.

The statute requires that every covered person ``shall be bonded to
provide protection against loss by reason of acts of fraud or dishonesty
on his part directly or through connivance with others.''

[30 FR 14926, Dec. 2, 1965]

Sec. 453.11 The nature of the ``duties'' to which the bonding requirement relates.

The bonding requirement in section 502(a) relates only to duties of
the specified personnel in connection with their handling of funds or
other property to which this section refers. It does not have reference
to the special duties imposed upon representatives of labor
organizations by virtue of the positions of trust which they occupy,
which are dealt with in section 501(a), and for which civil remedies for
breach of the duties are provided in section 501(b). The fact that the
bonding requirement is limited to personnel who handle funds or other
property indicates the correctness of these conclusions. They find
further support in the differences between sections 501(a) and 502(a) of
the Act which sufficiently indicate that the scope of the two sections
is not coextensive.

Sec. 453.12 Meaning of fraud or dishonesty.

The term ``fraud or dishonesty'' shall be deemed to encompass all
those risks of loss that might arise through dishonest or fraudulent
acts in handling of funds as delineated in Secs. 453.8 and 453.9. As
such, the bond must provide recovery for loss occasioned by such acts
even though no personal gain accrues to the person committing the act
and the act is not subject to punishment as a crime or misdemeanor,
provided that within the law of the State in which the act is committed,
a court would afford recovery under a bond providing protection against
fraud or dishonesty. As usually applied under State laws, the term
``fraud or dishonesty'' encompasses such matters as larceny, theft,
embezzlement, forgery, misappropriation, wrongful abstraction, wrongful
conversion, willful misapplication or any other fraudulent or dishonest
acts resulting in financial loss.

[30 FR 14926, Dec. 2, 1965]

Amount of Bonds

Sec. 453.13 The statutory provision.

Section 502(a) of the Act requires that the bond of each ``person''
handling ``funds or other property'' who must be bonded be fixed ``at
the beginning of the organization's fiscal year * * * in an amount not
less than 10 percentum of the funds handled by him and his predecessor
or predecessors, if any, during the preceding fiscal year, but in no
case more than $500,000.'' If there is no preceding fiscal year, the
amount of each required bond is set at not less than $1,000 for local
labor organizations and at not less than $10,000 for other labor
organizations or for trusts in which a labor organization is interested.

Sec. 453.14 The meaning of ``funds.''

While the protection of bonds required under the Act must extend to
any actual loss from the acts of fraud or dishonesty in the handling of
``funds or other property'' (Sec. 453.7), the amount of the bond depends
upon the ``funds'' handled by the personnel bonded and their
predecessors, if any. ``Funds'' as here used is not defined in the Act.
As in the case of ``funds or other property'' discussed earlier in
Sec. 453.7, the term would not include property of a relatively
permanent nature such as land, buildings, furniture, fixtures, or
property similarly held for use in the operations of the labor
organization or trust rather than as quick assets. In its normal
meaning, however, ``funds'' would include, in addition to cash, items
such as bills and notes, government obligations and marketable
securities, and in a particular case might well include all the ``funds
or other property'' handled during the year in the positions occupied by
the particular personnel for whom the bonding is required. In any event,
it is clear that bonds fixed in the amount of 10 percent or more of the
total ``funds or other property'' handled by the occupants of such
positions during the preceeding fiscal year would be in

[[Page 205]]

amounts sufficient to meet the statutory requirement. Of course, in
situations where a significant saving in bonding costs might result from
computing separately the amounts of ``funds'' and of ``other property''
handled, criteria for distinguishing particular items to be included in
the quoted terms would prove useful. While the criteria to be applied in
a particular case would depend on all the relevant facts concerning the
specific items handled, it may be assumed as a general principle that at
least those items which may be handled in a manner similar to cash and
which involve a like risk of loss should be included in computing the
amount of ``funds'' handled.

[30 FR 14926, Dec. 2, 1965]

Sec. 453.15 The meaning of funds handled ``during the preceding fiscal year''.

The funds handled by personnel required to be bonded and their
predecessors during the course of a fiscal year would ordinarily include
the total of whatever such funds were on hand at the beginning of the
fiscal year plus any items received or added in the form of funds during
the year for any reason, such as dues, fees and assessments, trust
receipts, or items received as a result of sales, investments,
reinvestments, or otherwise. It would not, however, be necessary to
count the same item twice in arriving at the total funds handled by
personnel during a year. Once an item properly within the category of
``funds'' had been counted as handled by personnel during a year, there
would be no need to count it again should it subsequently be handled by
the same personnel during the same year in some other connection.

Sec. 453.16 Funds handled by more than one person.

The amount of any required bond is determined by the total funds
handled during a fiscal year by each ``person'' bonded, and any
predecessors of such ``person''. The term ``person'', however, is
defined in section 3(d) of the Act to include ``one or more'' of the
various individuals or entities there listed, so that there may be
numerous instances where the bond of a ``person'' may include several
individuals. Wherever this is the case, the amount of the bond for that
``person'' would, of course, be based on the total funds handled by all
who comprise the ``person'' included in the bond, without regard to the
precise extent to which any particular individual might have handled
such funds. This would be the situation, for example, in many cases of
joint or group activity in the performance of a single function. It
would also be true where various individuals performed the same type of
function for an organization, even though they acted independently of
one another. There would, however, be no objection to bonding each
individual separately, and fixing the amount of his bond on the basis of
the total funds which he individually handled during the year.

Sec. 453.17 Term of the bond.

The amount of any required bond must in each instance be based on
funds handled ``during the preceding fiscal year,'' and must be fixed
``at the beginning'' of an organization's fiscal year--that is, as soon
after the date when such year begins as the necessary information from
the preceding fiscal year can practicably be ascertained. This does not
mean, however, that a new bond must be obtained each year. There is
nothing in the Act which prohibits a bond for a term longer than one
year, with whatever advantages such a bond might offer by way of a lower
premium, but at the beginning of each fiscal year during its term the
bond must be in at least the requisite amount. If it is below that level
at that time for any reason, it would then be necessary either to modify
the existing bond to increase it to the proper amount or to obtain a
supplementary bond. In either event, the terms upon which this could
best be done would be left to the parties directly concerned.

Form of Bonds

Sec. 453.18 Bonds ``individual or schedule in form''.

(a) General consideration. In addition to such substantive matters
as the personnel who must be bonded and the scope and the amount of the
prescribed bonds, which have been discussed previously, the form of the
bonds is the

[[Page 206]]

subject of a specific provision of section 502(a). Under this provision,
a bond meeting the substantive requirements of the section may be either
``individual or schedule in form.'' These terms are not specially
defined and could be descriptive of a variety of possible forms of
bonds. According to trade usage, an individual bond is a single bond
covering a single named individual to a designated amount, and bonds
``schedule in form'' may include either name schedule or position
schedule bonds. A name schedule bond is typically a single bond covering
a series or list of named individuals, each of whom is bonded separately
to a designated amount. A position schedule bond is typically a single
bond providing coverage with respect to any occupant or holder of one or
more specified positions during the term of the bond, each office or
position being covered to a designated amount. In a statute relating to
trade or commerce, it is frequently helpful to consider whatever trade
or commercial usages may have developed with respect to the statutory
terms. \9\ References to individual, schedule and position schedule
bonds may be found in other acts of Congress and indicate a clear
awareness of trade usages and terminology in this field. \10\
---------------------------------------------------------------------------

\9\ See 2 Sutherland, Statutory Construction (3d ed. 1943)
Sec. 4919.
\10\ Act of August 24, 1954, 68 Stat. 335, 12 U.S.C. 1766(g); Act of
August 9, 1955, 69 Stat. 618, 6 U.S.C. 14.
---------------------------------------------------------------------------

(b) Particular forms of bonds. If the phrase ``individual or
schedule in form'' is considered in light of the trade usages, section
502(a) at least permits bonds which are individual, name schedule or
position schedule in form. Of course, section 502(a) does not require
any particular type of individual or schedule bonds where different
types exist or may be developed. It could not be said, for example, that
a bond which schedules positions according to similarities in duties,
risks, or required amounts of coverage is not ``schedule in form''
within the meaning of section 502(a) merely because the particular form
of scheduling involved was not employed in bonds current at the time the
section became law. A more specific illustration would be a bond
scheduling shop stewards as a group because of the similar duties they
perform in collecting dues, or members of an executive board as a group
because of the fact that duties are imposed upon the board as such. A
bond of this type would be ``schedule in form'' within the meaning of
section 502(a) and, assuming adequacy of amount and coverage of all
persons whom it is necessary to bond, such a bond would be in conformity
with the statute. Also, a bond scheduling positions or groups of
positions according to amounts of funds handled by occupants of the
positions could be viewed as ``schedule in form.''
(c) Additional bonding. Section 502(a) neither prevents additional
bonding beyond that required by its terms nor prescribes the form in
which such additional coverage may be taken. Thus, so long as a
particular bond is schedule in form as to the personnel required to be
bonded and schedules coverage of these persons in at least the minimum
required amount, additional coverage either as to personnel or amount
may be taken in any form either in the same or in separate bonds. A bond
which provided name or position schedule coverage for all persons
required to be bonded under section 502(a), each scheduled person or
position being bonded in at least the required minimum amount, would
clearly be ``schedule in form'' within the meaning of section 502(a)
regardless of the extent or form of additional schedule or blanket
coverage provided in the same bond.

Sec. 453.19 The designation of the ``insured'' on bonds.

Since section 502 is intended to protect the funds or other property
of labor organizations and trusts in which labor organizations are
interested, bonds under this section should allow for enforcement or
recovery for the benefit of the labor organization or trust concerned by
those ordinarily authorized to act for it in such matters. For example,
in the case of a local labor organization, a bond would not be
appropriate under section 502 if it protected only the interests of a
national or international labor organization with which the local labor
organization is affiliated or if it designated as the

[[Page 207]]

insured only some particular officer of the organization who does not
legally represent it in similar formal instruments.

Qualified Agents, Brokers, and Surety Companies for the Placing of Bonds

Sec. 453.20 Corporate sureties holding grants of authority from the Secretary of the Treasury.

The provisions of section 502(a) require that any surety company
with which a bond is placed pursuant to that section must be a corporate
surety which holds a grant of authority from the Secretary of the
Treasury under the Act of July 30, 1947 (6 U.S.C. 6-13), as an
acceptable surety on Federal bonds. That Act provides, among other
things, that in order for a surety company to be eligible for such grant
of authority, it must be incorporated under the laws of the United
States or of any State and the Secretary of the Treasury shall be
satisfied of certain facts relating to its authority and capitalization.
Such grants of authority are evidenced by Certificates of Authority
which are issued by the Secretary of the Treasury and which expire on
the June 30 following the date of their issuance. A list of the
companies holding such Certificates of Authority is published annually
in the Federal Register, usually in July. Changes in the list, occurring
between July 1 and June 30, either by addition to or removal from the
list of companies, are also published in the Federal Register following
each such change.

[28 FR 14394, Dec. 27, 1963, as amended at 50 FR 31311, Aug. 1, 1985]

Sec. 453.21 Interests held in agents, brokers, and surety companies.

(a) Section 502(a) of the Act prohibits the placing of bonds
required therein through any agent or broker or with any surety company
in which any labor organization or any officer, agent, shop steward, or
other representative of a labor organization has any direct or indirect
interest. The purpose of this provision, as shown by its legislative
history, is to insure against the existence of any ``financial or other
influential'' interests which would affect the objectivity of the action
of agents, brokers, or surety companies in bonding the personnel
specified in the section. \11\ It appears, therefore, that it was the
intent of Congress to prevent the placing of bonds through agents or
brokers, and with surety companies, in which any labor organization or
any officer, agent, shop steward, or other representative of a labor
organization holds more than a nominal interest.
---------------------------------------------------------------------------

\11\ Daily Cong. Rec. 9114, Senate, June 8, 1959; Record of Hearings
before a Joint Subcommittee of the Committee on Education and Labor,
House of Representatives, 86th Congress, 1st Session, on H.R. 3540, H.R.
3302, H.R. 4473 and H.R. 4474, p. 1607.
---------------------------------------------------------------------------

(b) Since the statute provides that either a direct or indirect
interest by a labor organization or by the specified persons may
disqualify an agent, broker, or surety company from having a bond placed
through or with it, the disqualification would be effective if a labor
organization or any of the specified persons are in a position to
influence or control the activities or operations of such brokers,
agents, or surety companies, by virtue of interests held either directly
by them or by relatives or third parties which they own or control. The
question of whether the relationship between the labor organization or
the specified persons on the one hand, and another party or parties
holding an interest in a broker, agent, or surety company on the other
hand, is so close as to put the former in a position to influence or
control the activities or operations of such broker, agent, or surety
company through the latter, presents a question of fact which must
necessarily be determined in each case in the light of all the pertinent
circumstances.
(c) It is also to be noted that the statute does not appear to
restrict the disqualification to cases in which a direct or indirect
interest is held by a labor organization as a whole, or by a substantial
number of officers, agents, shop stewards, or other representatives of a
labor organization, but provides for the disqualification also in cases
where any one officer, agent, shop steward, or other representative of a

[[Page 208]]

labor organization holds such an interest.

[28 FR 14394, Dec. 27, 1963, as amended at 63 FR 33780, June 19, 1998]

Miscellaneous Provisions

Sec. 453.22 Prohibition of certain activities by unbonded persons.

(a) Section 502(a) provides that persons who are not covered by
bonds as required by that section shall not be permitted to receive,
handle, disburse, or otherwise exercise custody or control of the funds
or other property of a labor organization or of a trust in which a labor
organization is interested. This prohibits personnel who are required to
be bonded, as explained in Sec. 453.8 from performing any of these acts
without being covered by the required bonds. In addition, this provision
makes it unlawful for any person with power to do so to delegate or
assign the duties of receiving, handling, disbursing, or otherwise
exercising custody or control of such funds or property to any person
who is not bonded in accordance with the provisions of section 502(a).
(b) The legislative history of the Act indicates, however, that it
was not the intent of Congress to make compliance with the bonding
requirements of section 502(a) a condition on the right of banks or
other financial institutions to serve as the depository of the funds of
labor organizations or trusts. Similarly, it appears that the provisions
of that section do not require the bonding of brokers or other
independent contractors who have contracted with labor organizations or
trusts for the performance of functions which are normally not carried
out by such labor organizations' or trusts' own officials or employees,
such as the buying of securities, the performance of other investment
functions, or the transportation of funds by armored truck. \12\
---------------------------------------------------------------------------

\12\ See Sec. 453.6(b).
---------------------------------------------------------------------------

Sec. 453.23 Persons becoming subject to bonding requirements during fiscal year.

Considering the purpose of section 502, the language of the
prohibition should be considered to apply to persons who because of
election, employment or change in duties begin to handle funds or other
property during the course of a particular fiscal year. Bonds should be
secured for such persons, in an amount based on the funds handled by
their predecessors during the preceding fiscal year, before they are
permitted to engage in any of the fund-handling activities referred to
in the prohibition, unless coverage with respect to such persons is
already provided by bonds in force meeting the requirements of section
502(a).

Sec. 453.24 Payment of bonding costs.

The Act does not prohibit payment of the cost of the bonds, required
by section 502(a), by labor organizations or by trusts in which a labor
organization is interested. The decision whether such costs are to be
borne by the labor organization or trust or by the bonded person is left
to the duly authorized discretion and agreement of the parties concerned
in each case.

Sec. 453.25 Effective date of the bonding requirement.

While the bonding provision in section 502(a) became effective on
September 14, 1959, its requirement for obtaining bonds does not become
applicable to a labor organization or a trust in which a labor
organization is interested, or to the personnel of any such
organization, until the subsequent date when such organization's next
fiscal year begins. This is so because the Act requires each such bond
to be fixed at the beginning of the organization's fiscal year in an
amount based on funds handled in the preceding fiscal year, and it could
not well have been intended that the obtaining of a bond would be
necessary in advance of the time when it would be possible to meet this
requirement.

Sec. 453.26 Powers of the Secretary of Labor to exempt.

Section 502(a) of the Act provides that when in the opinion of the
Secretary of Labor a labor organization has made other bonding
arrangements which would provide the protection required at comparable
cost or less, he may exempt such labor organization from placing a bond
through a surety

[[Page 209]]

company holding a grant of authority from the Secretary of the Treasury
under the Act of July 30, 1947 (6 U.S.C. 6-13), as acceptable surety on
Federal bonds.

[30 FR 14926, Dec. 2, 1965]

SUBCHAPTER B--STANDARDS OF CONDUCT

PART 457--GENERAL--Table of Contents

Subpart A--Purpose and Scope

Sec.
457.1 Purpose and scope.

Subpart B--Meaning of Terms as Used in This Subchapter

457.10 CSRA; FSA; CAA; LMRDA.
457.11 Agency, employee, labor organization, dues, Department,
activity, employing office.
457.12 Authority; Board.
457.13 Assistant Secretary.
457.14 Standards of conduct for labor organizations.
457.15 District Director.
457.16 Chief, DOE.
457.17 Administrative Law Judge.
457.18 Chief Administrative Law Judge.
457.19 Party.
457.20 Intervenor.

Authority: 5 U.S.C. 7120, 7134; 22 U.S.C. 4117; 2 U.S.C. 1351(a)(1);
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 50 FR 31311, Aug. 1, 1985, unless otherwise noted.

Subpart A--Purpose and Scope

Sec. 457.1 Purpose and scope.

The regulations contained in this subchapter are designed to
implement 5 U.S.C. 7120 and 22 U.S.C. 4117, which relate to the
standards of conduct for labor organizations in the Federal sector set
forth in title VII of the Civil Service Reform Act of 1978 and chapter
10 of the Foreign Service Act of 1980. They prescribe procedures and
basic principles which the Assistant Secretary of Labor will utilize in
effectuating the standards of conduct required of labor organizations
composed of Federal government employees that are covered by these Acts.
(Regulations implementing the other provisions of title VII of the Civil
Service Reform Act are issued by the Federal Labor Relations Authority,
the General Counsel of the Federal Labor Relations Authority, and the
Federal Service Impasses Panel in title 5 of the Code of Federal
Regulations. Regulations implementing the other provisions of chapter 10
of the Foreign Service Act are issued by the Foreign Service Labor
Relations Board, the Federal Labor Relations Authority, the General
Counsel of the Federal Labor Relations Authority, and the Foreign
Service Impasse Disputes Panel in title 22 of the Code of Federal
Regulations.)\1\
---------------------------------------------------------------------------

\1\ Pursuant to section 220(a)(1) of the Congressional
Accountability Act of 1995, 2 U.S.C. 1351(a)(1), labor organizations
covered by that statute are subject to the standards of conduct
provisions of the Civil Service Reform Act, 5 U.S.C. 7120, and are
therefore subject to the regulations in this subchapter. Regulations
implementing the Congressional Accountability Act were issued at 142
Cong. R. S12062 (daily ed., October 1, 1996) and 142 Cong. R. H10369
(Daily ed., September 12, 1996).

[50 FR 31311, Aug. 1, 1985, as amended at 62 FR 6093, Feb. 10, 1997]

Subpart B--Meaning of Terms as Used in This Chapter

Sec. 457.10 CSRA; FSA; CAA; LMRDA.

CSRA means the Civil Service Reform Act of 1978; FSA means the
Foreign Service Act of 1980; CAA means the Congressional Accountability
Act of 1995; LMRDA means the Labor-Management Reporting and Disclosure
Act of 1959, as amended.

[62 FR 6093, Feb. 10, 1997]

Sec. 457.11 Agency, employee, labor organization, dues, Department, activity, employing office.

Agency, employee, labor organization, and dues, when used in
connection with the CSRA, have the meanings set forth

[[Page 210]]

in 5 U.S.C. 7103. Employee, labor organization, and dues, when used in
connection with the FSA, have the meanings set forth in 22 U.S.C. 4102;
Department, when used in connection with the FSA, means the Department
of State, except that with reference to the exercise of functions under
the FSA with respect to another agency authorized to utilize the Foreign
Service personnel system, such term means that other agency. Covered
employee, employee, employing office, and agency, when used in
connection with the CAA, have the meanings set forth in 2 U.S.C. 1301
and 1351(a)(2). Activity means any facility, organizational entity, or
geographical subdivision or combination thereof of any agency or
employing office.

[62 FR 6093, Feb. 10, 1997]

Sec. 457.12 Authority; Board.

Authority means the Federal Labor Relations Authority as described
in the CSRA, 5 U.S.C. 7104 and 7105. Board, when used in connection with
the FSA, means the Foreign Service Labor Relations Board as described in
the FSA, 22 U.S.C. 4106(a). ``Board,'' when used in connection with the
CAA, means the Board of Directors of the Office of Compliance as
described in 2 U.S.C. 1301 and 1381(b).

[62 FR 6093, Feb. 10, 1997]

Sec. 457.13 Assistant Secretary.

Assistant Secretary means the Assistant Secretary of Labor for
Employment Standards, head of the Employment Standards
Administration.\2\
---------------------------------------------------------------------------

\2\ Pursuant to Secretary of Labor's Order No. 5-96 (62 FR 107,
January 2, 1997), the Assistant Secretary for Employment Standards has
the responsibility and authority for implementing the standards of
conduct provisions of the CSRA and the FSA.

[62 FR 6093, Feb. 10, 1997]

Sec. 457.14 Standards of conduct for labor organizations.

Standards of conduct for labor organizations shall have the meaning
as set forth in the CSRA, 5 U.S.C. 7120, and the FSA, 22 U.S.C. 4117,
and as amplified in part 458 of this subchapter. The standards of
conduct provisions of the CSRA and the regulations in this subchapter
are applicable to labor organizations covered by the CAA pursuant to 2
U.S.C. 1351(a)(1).

[62 FR 6093, Feb 10, 1997]

Sec. 457.15 District Director.

District Director means the Director of a district office within the
Office of Labor-Management Standards, Employment Standards
Administration.

[63 FR 33780, June 19, 1998]

Sec. 457.16 Chief, DOE.

Chief, DOE means the Chief of the Division of Enforcement within the
Office of Labor-Management Standards, Employment Standards
Administration.

[63 FR 33780, June 19, 1998]

Sec. 457.17 Administrative Law Judge.

Administrative Law Judge means the Chief Administrative Law Judge or
any Administrative Law Judge designated by the Chief Administrative Law
Judge to conduct a hearing in cases under 5 U.S.C. 7120 or 22 U.S.C.
4117 as implemented by part 458 of this subchapter and such other
matters as may be assigned.

Sec. 457.18 Chief Administrative Law Judge.

Chief Administrative Law Judge means the Chief Administrative Law
Judge, U.S. Department of Labor, Washington, DC 20210.

Sec. 457.19 Party.

Party means any person, employee, group of employees, labor
organization, Department, activity or agency: (a) Filing a complaint,
petition, request, or application; (b) named in a complaint, petition,
request, or application; or (c) whose intervention in a proceeding has
been permitted or directed by the Assistant Secretary, Chief
Administrative Law Judge, or Administrative Law Judge, as the case may
be.

Sec. 457.20 Intervenor.

Intervenor means a party in a proceeding whose intervention has been
permitted or directed by the Assistant Secretary, Chief Administrative
Law Judge, or Administrative Law Judge, as the case may be.

[[Page 211]]

PART 458--STANDARDS OF CONDUCT--Table of Contents

Subpart A--Substantive Requirements Concerning Standards of Conduct

Sec.
458.1 General.
458.2 Bill of rights of members of labor organizations.
458.3 Application of LMRDA labor organization reporting requirements.

Trusteeships

458.26 Purposes for which a trusteeship may be established.
458.27 Prohibited acts relating to subordinate body under trusteeship.
458.28 Presumption of validity.

Elections

458.29 Election of officers.

Additional Provisions Applicable

458.30 Removal of elected officers.
458.31 Maintenance of fiscal integrity in the conduct of the affairs of
labor organizations.
458.32 Provision for accounting and financial controls.
458.33 Prohibition of conflicts of interest.
458.34 Loans to officers or employees.
458.35 Bonding requirements.
458.36 Prohibitions against certain persons holding office or
employment.
458.37 Prohibition of certain discipline.
458.38 Deprivation of rights under the CSRA or FSA by violence or
threat of violence.

Subpart B--Proceedings for Enforcing Standards of Conduct

458.50 Investigations.
458.51 Inspection of records and questioning.
458.52 Report of investigation.
458.53 Filing of complaints.

Procedures Involving Bill of Rights or Prohibited Discipline

458.54 Complaints alleging violations of Sec. 458.2, Bill of rights of
members of labor organizations, or Sec. 458.37, prohibition of
certain discipline.
458.55 Content of complaint.
458.56 Service on respondent.
458.57 Additional information and report.
458.58 Dismissal of complaint.
458.59 Review of dismissal.
458.60 Actionable complaint.
458.61 Transfer and consolidation of cases.
458.62 Hearing procedures.

Procedures Involving Election of Officers

458.63 Complaints alleging violations of Sec. 458.29, election of
officers.
458.64 Investigations; dismissal of complaint.
458.65 Procedures following actionable complaint.

Other Enforcement Procedures

458.66 Procedures for institution of enforcement proceedings.
458.67 Standards complaint; initiation of proceedings.
458.68 Answer.

Subpart C--Hearing and Related Matters

458.69 Notice of hearing.
458.70 Administrative Law Judge.
458.71 Procedure upon admission of facts.
458.72 Motions and requests.
458.73 Prehearing conferences.
458.74 Conduct of hearing.
458.75 Intervention.
458.76 Duties and powers of the Administrative Law Judge.
458.77 Rights of parties.
458.78 Rules of evidence.
458.79 Burden of proof.
458.80 Unavailability of Administrative Law Judges.
458.81 Objection to conduct of hearing.
458.82 Motions after a hearing.
458.83 Waiver of objections.
458.84 Oral argument at the hearing.
458.85 Transcript.
458.86 Filing of brief.
458.87 Proposed findings and conclusions.
458.88 Submission of the Administrative Law Judge's recommended
decision and order to the Assistant Secretary; exceptions.
458.89 Contents of exceptions to Administrative Law Judge's recommended
decision and order.
458.90 Briefs in support of exceptions.
458.91 Action by the Assistant Secretary.
458.92 Compliance with decisions and orders of the Assistant Secretary.
458.93 Stay of remedial action.

Authority: 5 U.S.C. 7105, 7111, 7120, 7134; 22 U.S.C. 4107, 4111,
4117; 2 U.S.C. 1351(a)(1); Secretary's Order No. 5-96, 62 FR 107,
January 2, 1997.

Source: 45 FR 15158, Mar. 7, 1980, unless otherwise noted.
Redesignated at 50 FR 31311, Aug. 1, 1985.

[[Page 212]]

Subpart A--Substantive Requirements Concerning Standards of Conduct

Sec. 458.1 General.

The term LMRDA means the Labor-Management Reporting and Disclosure
Act of 1959, as amended (29 U.S.C. 401 et seq.). Unless otherwise
provided in this part or in the CSRA or FSA, any term in any section of
the LMRDA which is incorporated into this part by reference, and any
term in this part which is also used in the LMRDA, shall have the
meaning which that term has under the LMRDA, unless the context in which
it is used indicates that such meaning is not applicable. In applying
the standards contained in this subpart the Assistant Secretary will be
guided by the interpretations and policies followed by the Department of
Labor in applying the provisions of the LMRDA and by applicable court
decisions.

Sec. 458.2 Bill of rights of members of labor organizations.

(a)(1) Equal rights. Every member of a labor organization shall have
equal rights and privileges within such organization to nominate
candidates, to vote in elections or referendums of the labor
organization, to attend membership meetings and to participate in the
deliberations and voting upon the business of such meetings, subject to
reasonable rules and regulations in such organization's constitution and
bylaws.
(2) Freedom of speech and assembly. Every member of any labor
organization shall have the right to meet and assemble freely with other
members; and to express any views, arguments or opinions; and to express
at meetings of the labor organization his views upon candidates in an
election of the labor organization or upon any business properly before
the meeting, subject to the organization's established and reasonable
rules pertaining to the conduct of meetings: Provided, That nothing
herein shall be construed to impair the right of a labor organization to
adopt and enforce reasonable rules as to the responsibility of every
member toward the organization as an institution and to his refraining
from conduct that would interfere with its performance of its legal or
contractual obligations.
(3) Dues, initiation fees, and assessments. Except in the case of a
federation of national or international labor organizations, the rates
of dues and initiation fees payable by members of any labor organization
in effect on the date this section is published shall not be increased,
and no general or special assessment shall be levied upon such members,
except:
(i) In the case of a local organization, (A) by majority vote by
secret ballot of the members in good standing voting at a general or
special membership meeting, after reasonable notice of the intention to
vote upon such question, or (B) by majority vote of the members in good
standing voting in a membership referendum conducted by secret ballot;
or
(ii) In the case of a labor organization, other than a local labor
organization or a federation of national or international labor
organizations, (A) by majority vote of the delegates voting at a regular
convention, or at a special convention of such labor organization held
upon not less than 30 days written notice to the principal office of
each local or constituent labor organization entitled to such notice, or
(B) by majority vote of the members in good standing of such labor
organization voting in a membership referendum conducted by secret
ballot, or (C) by majority vote of the members of the executive board or
similar governing body of such labor organization, pursuant to express
authority contained in the constitution and bylaws of such labor
organization: Provided, That such action on the part of the executive
board or similar governing body shall be effective only until the next
regular convention of such labor organization.
(4) Protection of the right to sue. No labor organization shall
limit the right of any member thereof to institute an action in any
court, or in a proceeding before any administrative agency, irrespective
of whether or not the labor organization or its officers are named as
defendants or respondents in such action or proceedings, or the right of
any member of a labor organization to appear as a witness in any
judicial, administrative, or legislative proceeding, or to petition any
legislature or to

[[Page 213]]

communicate with any legislator: Provided, That any such member may be
required to exhaust reasonable hearing procedures (but not to exceed a
4-month lapse of time) within such organization, before instituting
legal or administrative proceedings against such organizations or any
officer thereof.
(5) Safeguards against improper disciplinary action. No member of
any labor organization may be fined, suspended, expelled, or otherwise
disciplined, except for nonpayment of dues by such organization or by
any officer thereof unless such member has been (i) served with written
specific charges; (ii) given a reasonable time to prepare his defense;
(iii) afforded a full and fair hearing.
(b) Any provision of the constitution and bylaws of any labor
organization which is inconsistent with the provisions of this section
shall not be a defense to any proceeding instituted against the labor
organization under this part or under the CSRA or FSA.
(c) Nothing contained in this section shall limit the rights and
remedies of any member of a labor organization under any State or
Federal law or before any court or other tribunal, or under the
constitution and bylaws of any labor organization.
(d) It shall be the duty of the secretary or corresponding principal
officer of each labor organization, in the case of a local labor
organization, to forward a copy of each agreement made by such labor
organization with an agency, Department or activity to any employee who
requests such a copy and whose rights as such employee are directly
affected by such agreement, and in the case of a labor organization
other than a local labor organization, to forward a copy of any such
agreement to each constituent unit which has members directly affected
by such agreement; and such officer shall maintain at the principal
office of the labor organization of which he is an officer, copies of
any such agreement made or received by such labor organization, which
copies shall be available for inspection by any member or by any
employee whose rights are affected by such agreement. An employee's
rights under this paragraph shall be enforceable in the same manner as
the rights of a member.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31312, Aug. 1, 1985]

Sec. 458.3 Application of LMRDA labor organization reporting requirements.

The reporting provisions of parts 402, 403, and 408 of this chapter
shall apply to labor organizations subject to the requirements of the
CSRA or FSA.

(Approved by the Office of Management and Budget under control number
1215-0188)

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15116, Mar. 31, 1994; 63 FR 33780, June 19, 1998]

Trusteeships

Sec. 458.26 Purposes for which a trusteeship may be established.

Trusteeships shall be established and administered by a labor
organization over a subordinate body only in accordance with the
constitution and bylaws of the organization which has assumed
trusteeship over the subordinate body and for the purpose of (a)
correcting corruption or financial malpractice, (b) assuring the
performance of negotiated agreements or other duties of a representative
of employees, (c) restoring democratic procedures, or (d) otherwise
carrying out the legitimate objects of such labor organization.

Sec. 458.27 Prohibited acts relating to subordinate body under trusteeship.

During any period when a subordinate body of a labor organization is
in trusteeship, (a) the votes of delegates or other representatives from
such body in any convention or election of officers of the labor
organization shall not be counted unless the representatives have been
chosen by secret ballot in an election in which all the members in good
standing of such subordinate body were eligible to participate; and (b)
no current receipts or other funds of the subordinate body except the
normal per capita tax and assessments payable by subordinate bodies not
in trusteeship shall be transferred directly or indirectly to the labor
organization which has imposed the trusteeship; Provided, however, That
nothing contained in this section shall prevent

[[Page 214]]

the distribution of the assets of a labor organization in accordance
with its constitution and bylaws upon the bona fide dissolution thereof.

Sec. 458.28 Presumption of validity.

In any proceeding involving Sec. 458.26, a trusteeship established
by a labor organization in conformity with the procedural requirements
of its constitution and bylaws and authorized or ratified after a fair
hearing either before the executive board or before such other body as
may be provided in accordance with its constitution and bylaws shall be
presumed valid for a period of 18 months from the date of its
establishment and shall not be subject to attack during such period
except upon clear and convincing proof that the trusteeship was not
established or maintained in good faith for purposes allowable under
Sec. 458.26. After the expiration of 18 months the trusteeship shall be
presumed invalid in any such proceeding, unless the labor organization
shall show by clear and convincing proof that the continuation of the
trusteeship is necessary for a purpose allowable under Sec. 458.26.

Elections

Sec. 458.29 Election of officers.

Every labor organization subject to the CSRA or FSA shall conduct
periodic elections of officers in a fair and democratic manner. All
elections of officers shall be governed by the standards prescribed in
sections 401 (a), (b), (c), (d), (e), (f) and (g) of the LMRDA to the
extent that such standards are relevant to elections held pursuant to
the provisions of 5 U.S.C. 7120 or 22 U.S.C. 4117 .

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated and
amended at 50 FR 31311, 31312, Aug. 1, 1985]

Additional Provisions Applicable

Sec. 458.30 Removal of elected officers.

When an elected officer of a local labor organization is charged
with serious misconduct and the constitution and bylaws of such
organization do not provide an adequate procedure meeting the standards
of Sec. 417.2(b) of this chapter for removal of such officer, the labor
organization shall follow a procedure which meets those standards.

[62 FR 6094, Feb. 10, 1997]

Sec. 458.31 Maintenance of fiscal integrity in the conduct of the affairs of labor organizations.

The standards of fiduciary responsibility prescribed in section
501(a) of the LMRDA are incorporated into this subpart by reference and
made a part hereof.

Sec. 458.32 Provision for accounting and financial controls.

Every labor organization shall provide accounting and financial
controls necessary to assure the maintenance of fiscal integrity.

Sec. 458.33 Prohibition of conflicts of interest.

(a) No officer or agent of a labor organization shall, directly or
indirectly through his spouse, minor child, or otherwise (1) have or
acquire any pecuniary or personal interest which would conflict with his
fiduciary obligation to such labor organization, or (2) engage in any
business or financial transaction which conflicts with his fiduciary
obligation.
(b) Actions prohibited by paragraph (a) of this section include, but
are not limited to, buying from, selling, or leasing directly or
indirectly to, or otherwise dealing with the labor organization, its
affiliates, subsidiaries, or trusts in which the labor organization is
interested, or having an interest in a business any part of which
consists of such dealings, except bona fide investments of the kind
exempted from reporting under section 202(b) of the LMRDA. The receipt
of salaries and reimbursed expenses for services actually performed or
expenses actually incurred in carrying out the duties of the officer or
agent is not prohibited.

Sec. 458.34 Loans to officers or employees.

No labor organization shall directly or indirectly make any loan to
any officer or employee of such organization which results in a total
indebtedness on the part of such officer or employee to the labor
organization in excess of $2,000.

[[Page 215]]

Sec. 458.35 Bonding requirements.

Every officer, agent, shop steward, or other representative or
employee of any labor organization subject to the CSRA or FSA (other
than a labor organization whose property and annual financial receipts
do not exceed $5,000 in value), or of a trust in which a labor
organization is interested, who handles funds or other property thereof
shall be bonded in accordance with the principles of section 502(a) of
the LMRDA. In enforcing this requirement the Assistant Secretary will be
guided by the interpretations and policies followed by the Department of
Labor in applying the provisions of section 502(a) of the LMRDA and by
applicable court decisions.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at
50 FR 31311, Aug. 1, 1985]

Sec. 458.36 Prohibitions against certain persons holding office or employment.

The prohibitions against holding office or employment in a labor
organization contained in section 504(a) of the LMRDA are incorporated
into this subpart by reference and made a part hereof. The prohibitions
shall also be applicable to any person who has been convicted of, or who
has served any part of a prison term resulting from his conviction of,
violating 18 U.S.C. 1001 by making a false statement in any report
required to be filed pursuant to this subpart, or who has been
determined by the Assistant Secretary after an appropriate proceeding
pursuant to Secs. 458.66 through 458.92 to have willfully violated
Sec. 458.27: Provided, however, That the Assistant Secretary or such
other person as he may designate may exempt a person from the
prohibition against holding office or employment or may reduce the
period of the prohibition where he determines that it would not be
contrary to the purposes of the CSRA or the FSA and this section to
permit a person barred from holding office or employment to hold such
office or employment.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31312, Aug. 1, 1985]

Sec. 458.37 Prohibition of certain discipline.

No labor organization or any officer, agent, shop steward, or other
representative or any employee thereof shall fine, suspend, expel, or
otherwise discipline any of its members for exercising any right to
which he is entitled under the provisions of the CSRA or FSA or this
subchapter.

Sec. 458.38 Deprivation of rights under the CSRA or FSA by violence or threat of violence.

No labor organization or any officer, agent, shop steward, or other
representative or any employee thereof shall use, conspire to use, or
threaten to use force or violence to restrain, coerce, or intimidate, or
attempt to restrain, coerce, or intimidate any member of a labor
organization for the purpose of interfering with or preventing the
exercise of any right to which he is entitled under the provisions of
the CSRA or FSA or of this subchapter.

Subpart B--Proceedings for Enforcing Standards of Conduct

Sec. 458.50 Investigations.

(a) When he believes it necessary in order to determine whether any
person has violated or is about to violate any provision of Secs. 458.26
through 458.30, the Chief, DOE may cause an investigation to be
conducted.
(b) When he believes it necessary in order to determine whether any
person has violated or is about to violate any provision of this part
(other than Secs. 458.2, 458.26 through 458.30 or 458.37), a District
Director may conduct an investigation.
(c) The authority to investigate possible violations of this part
(other than Sec. 458.2 or 458.37) shall not be contingent upon receipt
of a complaint.

[50 FR 31312, Aug. 1, 1985. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.51 Inspection of records and questioning.

In connection with such investigation the Chief, DOE or a District
Director or his representative may inspect such records and question
such persons

[[Page 216]]

as he may deem necessary to enable him to determine the relevant facts.
Every labor organization, its officers, employees, agents, or
representatives shall cooperate fully in any investigation and shall
testify and produce the records or other documents requested in
connection with the investigation. This section shall be enforced in
accordance with the procedures in Secs. 458.66 through 458.92.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31312, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10,
1997]

Sec. 458.52 Report of investigation.

The Chief, DOE may report to interested persons concerning any
matter which he deems to be appropriate as a result of an investigation
of possible violations of Secs. 458.26 through 458.30. The District
Director may report to interested persons concerning any matter which he
deems to be appropriate as a result of an investigation of possible
violations of any provision of this part (other than Secs. 458.2, 458.26
through 458.30 and 458.37).

[50 FR 31312, Aug. 1, 1985. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.53 Filing of complaints.

A complaint alleging violations of this part may be filed with any
district office, or any other office of the Office of Labor-Management
Standards.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985; 63 FR 33780, June 19, 1998]

Procedures Involving Bill of Rights or Prohibited Discipline

Sec. 458.54 Complaints alleging violations of Sec. 458.2, Bill of rights of members of labor organization, or Sec. 458.37, prohibition of certain discipline.

Any member of a labor organization whose rights under the provisions
of Sec. 458.2 or Sec. 458.37 are alleged to have been infringed or
violated, may file a complaint in accordance with Sec. 458.53: Provided,
however, That such member may be required to exhaust reasonable hearing
procedures (but not to exceed a 4-month lapse of time) within such
organization.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at
50 FR 31311, Aug. 1, 1985]

Sec. 458.55 Content of complaint.

(a) The complaint shall contain appropriate identifying information
and a clear and concise statement of the facts constituting the alleged
violation.
(b) The complainant shall submit with his complaint a statement
setting forth the procedures, if any, invoked to remedy the alleged
violation, including the dates when such procedures were invoked and
copies of any written ruling or decision which he has received.

Sec. 458.56 Service on respondent.

Upon the filing of a complaint, a copy of the complaint shall be
served upon the respondent, and a written statement of such service
shall be furnished to the District Director.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.57 Additional information and report.

Upon the filing of a complaint pursuant to Secs. 458.54 through
458.56, the District Director shall obtain such additional information
as he deems necessary, including the positions of the parties and any
offers of settlement.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10,
1997]

Sec. 458.58 Dismissal of complaint.

If the District Director determines that a reasonable basis for the
complaint has not been established, or that an offer of settlement
satisfactory to the complainant has been made, he may dismiss the
complaint. If he dismisses the complaint, he shall furnish the
complainant with a written statement of the grounds for dismissal,

[[Page 217]]

sending a copy of the statement to the respondent.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated and
amended at 50 FR 31311, 31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994;
62 FR 6094, Feb. 10, 1997]

Sec. 458.59 Review of dismissal.

The complainant may obtain a review of a dismissal by filing a
request for review with the Assistant Secretary within fifteen (15) days
of service of the notice of dismissal. A copy of such request shall be
served on the District Director and the respondent, and a statement of
service shall be filed with the Assistant Secretary. The request for
review shall contain a complete statement of the facts and reasons upon
which a request is based.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.60 Actionable complaint.

If it appears to the District Director that there is a reasonable
basis for the complaint, and that no offer of settlement satisfactory to
the complainant has been made, he shall refer the matter to the Chief
Administrative Law Judge, U.S. Department of Labor, for the issuance of
a notice of hearing as set forth in Sec. 458.69.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.61 Transfer and consolidation of cases.

In any matter arising pursuant to the regulations in this
subchapter, whenever it appears necessary in order to effectuate the
purposes of the CSRA or FSA or to avoid unnecessary costs or delay, the
District Director may consolidate cases within his own area or may
transfer such cases to any other area, for the purpose of consolidation
with any proceedings which may have been instituted in, or transferred
to, such area.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at
50 FR 31311, Aug. 1, 1985, as amended at 59 FR 15117, Mar. 31, 1994; 62
FR 6094, Feb. 10, 1997]

Sec. 458.62 Hearing procedures.

The proceedings following issuance of the notice of hearing shall be
as provided in Secs. 458.69 through 458.92 of this part.

Procedures Involving Election of Officers

Sec. 458.63 Complaints alleging violations of Sec. 458.29, election of officers.

(a) A member of a labor organization may file a complaint alleging
violations of Sec. 458.29 within 1 calendar month after he has (1)
exhausted the remedies available under the constitution and bylaws of
the labor organization and of any parent body, or (2) invoked such
available remedies without obtaining a final decision within 3 calendar
months of such invocation.
(b) The complaint shall contain a clear and concise statement of the
facts constituting the alleged violation(s), the remedies which have
been invoked under the constitution and bylaws of the labor organization
and when such remedies were invoked.
(c) The complainant shall submit with his complaint a copy of any
ruling or decision he has received in connection with the subject matter
of his complaint.

Sec. 458.64 Investigations; dismissal of complaint.

(a) If it is determined after preliminary inquiry that a complaint
is deficient in any of the following respects, the District Director
shall conduct no investigation:
(1) The complainant is not a member of the labor organization which
conducted the election being challenged;
(2) The labor organization is not subject to the CSRA or FSA;
(3) The election was not a regular periodic election of officers;
(4) The allegations, if true, do not constitute a violation or
violations of Sec. 458.29;
(5) The complainant has not complied with the requirements of
Sec. 458.63(a).
(b) If investigation discloses (1) that there has been no violation
or (2) that a violation has occurred but could not have affected the
outcome or (3) that a violation has occurred but has been remedied, the
Chief, DOE shall issue a

[[Page 218]]

determination dismissing the complaint and stating the reasons for his
action.
(c) A determination dismissing the complaint may be reviewed by the
Assistant Secretary, but only on the basis of deciding whether the
Chief, DOE's decision was arbitrary and capricious. The request for
review must be made within fifteen (15) days after service of notice of
dismissal.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.65 Procedures following actionable complaint.

(a) If the Chief, DOE concludes that there is probable cause to
believe that a violation has occurred which may have affected the
outcome and which has not been remedied, he shall proceed in accordance
with Secs. 458.66 through 458.92.
(b) The challenged election shall be presumed valid pending a final
decision thereon by the Assistant Secretary, and in the interim the
affairs of the organization shall be conducted by the officers elected
or in such other manner as its constitution and bylaws may provide.
(c) When the Chief, DOE supervises an election pursuant to an order
of the Assistant Secretary issued under Sec. 458.70 or Sec. 458.91, he
shall certify to the Assistant Secretary the names of the persons
elected. The Assistant Secretary shall thereupon issue an order
declaring such persons to be the officers of the labor organization.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985; 62 FR 6094, FEb. 10, 1997]

Other Enforcement Procedures

Sec. 458.66 Procedures for institution of enforcement proceedings.

(a) Whenever it appears to the Chief, DOE that a violation of any
provision of Secs. 458.26 through 458.30 has occurred and has not been
remedied, he shall immediately notify any appropriate person and labor
organization. Within fifteen (15) days following receipt of such
notification, any such person or labor organization may request a
conference with the Chief, DOE or his representative concerning such
alleged violation.
(b) Whenever it appears to a District Director that a violation of
this part (other than Secs. 458.2, 458.26-458.30, or 458.37) has
occurred and has not been remedied, he shall immediately notify any
appropriate person and labor organization. Within fifteen (15) days
following receipt of such notification, any such person or labor
organization may request a conference with the District Director or his
representative concerning such alleged violation.
(c) At any conference held pursuant to this section, the Chief, DOE
or District Director may enter into an agreement providing for
appropriate remedial action. If no person or labor organization requests
such a conference, or upon failure to reach agreement following any such
conference, the Chief, DOE or District Director shall institute
enforcement proceedings by filing a complaint with the Chief
Administrative Law Judge, U.S. Department of Labor, and shall cause a
copy of the complaint to be served on each respondent named therein. If
an agreement is reached and the Chief, DOE or District Director
concludes that there has not been compliance with all the terms of the
agreement, he may refer the matter to the Assistant Secretary for
appropriate enforcement action or file a complaint with the Chief
Administrative Law Judge.

[50 FR 31313, Aug. 1, 1985. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

Sec. 458.67 Standards complaint; initiation of proceedings.

A complaint filed under Sec. 458.66 shall constitute the institution
of a formal enforcement proceeding in the name of the Chief, DOE or
District Director, who shall be the only complaining party in the
proceeding and shall, where he believes it appropriate, refrain from
disclosing the identity of any person who called the violation to his
attention (except in proceedings involving violations of Sec. 458.29,
Election of officers). The complaint shall include the following:
(a) The name and identity of each respondent.

[[Page 219]]

(b) A clear and concise statement of the facts alleged to constitute
violations of the CSRA or FSA or of this part.
(c) A statement of the relief requested.
(d) In any complaint filed by the Chief, DOE on the basis of a
complaint received from a member of a labor organization pursuant to
Sec. 458.63, a statement setting forth the procedures, if any, followed
to invoke available remedies, including the dates when such procedures
were invoked, and the substance of any ruling or decision received by
the complaining member from the labor organization or any parent body.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10,
1997]

Sec. 458.68 Answer.

(a) Within twenty (20) days from the service of the complaint the
respondent shall file an answer thereto with the Chief Administrative
Law Judge and shall serve a copy on all parties. The answer shall be
signed by the respondent or his attorney or other agent or
representative.
(b) The answer (1) shall contain a statement of the facts which
constitute the grounds of defense, and shall specifically admit,
explain, or deny each of the allegations of the complaint unless the
respondent is without knowledge, in which case the answer shall so
state; or (2) shall state that the respondent admits all of the
allegations in the complaint. Failure to file an answer to or plead
specifically to any allegation in the complaint shall constitute an
admission of such allegation.

Subpart C--Hearing and Related Matters

Sec. 458.69 Notice of hearing.

The Chief Administrative Law Judge shall issue and cause to be
served upon each of the parties a notice of hearing. The notice of
hearing shall include the following:
(a) The name and identity of each party and the case number.
(b) A statement of the authority and jurisdiction under which the
hearing is to be held.
(c) A statement of the time and place of the hearing which shall be
not less than fifteen (15) days after service of the notice of hearing.

Sec. 458.70 Administrative Law Judge.

Each enforcement proceeding instituted pursuant to this part shall
be conducted before an Administrative Law Judge designated by the Chief
Administrative Law Judge for the Department of Labor except, however,
that when the Administrative Law Judge approves a stipulated agreement
for appropriate remedial action, he shall prepare his recommended
decision and order adopting that agreement and transfer the case to the
Assistant Secretary. The Assistant Secretary may order the remedial
action set forth in the stipulated agreement or take such other action
as he deems appropriate.

Sec. 458.71 Procedure upon admission of facts.

The admission of all the material allegations of fact in the
complaint shall constitute a waiver of hearing. Upon such admission, the
Administrative Law Judge without further hearing shall prepare his
recommended decision and order in which he shall adopt as his proposed
findings of fact the material facts alleged in the complaint.

Sec. 458.72 Motions and requests.

(a) Motions and requests made prior to the hearing shall be filed
with the Chief Administrative Law Judge. The moving party shall serve a
copy of all motions and requests on all other parties. Motions during
the course of the hearing may be stated orally or filed in writing and
shall be made part of the record. Each motion shall state the particular
order, ruling, or action desired, and the grounds therefor. The
Administrative Law Judge is authorized to rule upon all motions made
prior to the filing of his report.
(b) A party may request the attendance of witnesses and/or the
production of documents at a hearing held pursuant to this part, by
written application before the hearing or orally during the hearing.
Copies of an application filed

[[Page 220]]

before the opening of the hearing shall be served on the other parties,
who may file written objections to the request within seven (7) days
after such service. The Administrative Law Judge after consideration of
any objections, shall grant the request provided the specified testimony
and/or documents appear to be necessary to the matters under
investigation. If the Administrative Law Judge denies the request he
shall set forth the basis for his ruling. Upon the failure of any party
or officer or employee of any party to comply with such a request which
has been granted by the Administrative Law Judge, the Administrative Law
Judge and the Assistant Secretary may disregard all related evidence
offered by the party failing to comply with the request or take such
other action as may be appropriate.
(c) Employees who have been determined to be necessary as witnesses
at a hearing shall be granted official time only for such participation
as occurs during their regular work hours and when they would otherwise
be in a work or paid leave status. Participation as witnesses includes
the time necessary to travel to and from the site of a hearing, and the
time spent giving testimony and waiting to give testimony, when such
time falls during regular work hours.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985]

Sec. 458.73 Prehearing conferences.

(a) Upon his own motion or the motion of the parties, the
Administrative Law Judge may direct the parties or their counsel to meet
with him for a conference to consider:
(1) Simplification of the issues;
(2) Necessity or desirability of amendments to pleadings for
purposes of clarification, simplification, or limitations;
(3) Stipulations, admissions of fact, and contents and authenticity
of documents;
(4) Limitation of the number of expert witnesses; and
(5) Such other matters as may tend to expedite the disposition of
the proceeding.
(b) The record shall show the matters disposed of by order and by
agreement in such prehearing conferences. The subsequent course of the
proceeding shall be controlled by such action.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985]

Sec. 458.74 Conduct of hearing.

Hearings shall be conducted by an Administrative Law Judge and shall
be open to the public unless otherwise ordered by the Administrative Law
Judge.

Sec. 458.75 Intervention.

Any person desiring to intervene in a hearing shall file a motion in
writing in accordance with the procedures set forth in Sec. 458.72 or,
if made at the hearing, may move orally on the record, stating the
grounds upon which such person claims an interest. Such a motion shall
be filed with the Administrative Law Judge who shall rule upon such
motion.

Sec. 458.76 Duties and powers of the Administrative Law Judge.

It shall be the duty of the Administrative Law Judge to inquire
fully into the facts as they relate to the matter before him and to
prepare, serve and submit his recommended decision and order pursuant to
Sec. 458.88. Upon assignment to him and before transfer of the case to
the Assistant Secretary, the Administrative Law Judge shall have the
authority to:
(a) Grant requests for appearance of witnesses or production of
ducuments;
(b) Rule upon offers of proof and receive relevant evidence;
(c) Take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(d) Limit lines of questioning or testimony which are immaterial,
irrelevant, or unduly repetitious;
(e) Regulate the course of the hearing and if appropriate, exclude
from the hearing persons who engage in misconduct and strike all related
testimony of witnesses refusing to answer any questions ruled to be
proper;
(f) Hold conferences for the settlement or simplification of the
issues by consent of the parties or upon his own motion;
(g) Dispose of procedural requests, motions, or similar matters
which

[[Page 221]]

shall be made part of the record of the proceeding, including motions to
amend pleadings; also to recommend dismissal of cases or portions
thereof, and to order hearings reopened prior to issuance of his
recommended decision and order;
(h) Examine and cross-examine witnesses and introduce into the
record documentary or other evidence;
(i) Request the parties at any time during the hearing to state
their respective positions concerning any issue in the case or theory in
support thereof;
(j) Continue, at his discretion, the hearing from day-to-day, or
adjourn it to a later date or to a different place, by announcement
thereof at the hearing or by other appropriate notice;
(k) Take official notice of any material fact not appearing in
evidence in the record, which is among the traditional matters of
judicial notice and also concerning which the Department of Labor by
reason of its functions is presumed to be expert: Provided, That the
parties shall be given adequate notice, at the hearing or by reference
in the Administrative Law Judge's recommended decision and order, of the
matters so noticed, and shall be given adequate opportunity to show the
contrary;
(l) Correct or approve proposed corrections of the official
transcript when deemed necessary; and
(m) Take any other action necessary under the foregoing and not
prohibited by these regulations.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985]

Sec. 458.77 Rights of parties.

Any party shall have the right to appear at such hearing in person,
by counsel, or by other representative, to examine and cross-examine
witnesses, and to introduce into the record documentary or other
relevant evidence, except that the participation of any party shall be
limited to the extent prescribed by the Administrative Law Judge. Two
(2) copies of documentary evidence shall be submitted and a copy
furnished to each of the other parties. Stipulations of fact may be
introduced in evidence with respect to any issue.

Sec. 458.78 Rules of evidence.

The technical rules of evidence do not apply. Any evidence may be
received, except that an Administrative Law Judge may exclude any
evidence or offer of proof which is immaterial, irrelevant, unduly
repetitious, or customarily privileged. Every party shall have a right
to present his case by oral and documentary evidence and to submit
rebuttal evidence.

Sec. 458.79 Burden of proof.

In a hearing concerning an alleged violation of Sec. 458.2 (Bill of
rights of members of labor organizations) or Sec. 458.37 (Prohibition of
certain discipline), the complainant shall have the burden of proving
the allegations of the complaint by a preponderance of the evidence. In
a hearing concerning an alleged violation of Secs. 458.26-458.30, the
Chief, DOE shall have the burden of proving the allegations of the
complaint by a preponderance of the evidence. In a hearing concerning an
alleged violation of other standards of conduct matters, the District
Director shall have the burden of proving the allegations of the
complaint by a preponderance of the evidence.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10,
1997]

Sec. 458.80 Unavailability of Administrative Law Judges.

In the event the Administrative Law Judge designated to conduct the
hearing becomes unavailable, the Chief Administrative Law Judge shall
designate another Administrative Law Judge for the purpose of further
hearing or issuance of a recommended decision and order on the record as
made, or both.

Sec. 458.81 Objection to conduct of hearing.

(a) Any objection with respect to the conduct of the hearing,
including any objection to the introduction of evidence, may be stated
orally or in writing accompanied by a short statement of the grounds for
such objection and included in the record. No such objection shall be
deemed waived by further

[[Page 222]]

participation in the hearing. Such objection shall not stay the conduct
of the hearing.
(b) Automatic exceptions will be allowed to all adverse rulings.
Rulings by the Administrative Law Judge shall not be appealed prior to
the transfer of the case to the Assistant Secretary, but shall be
considered by the Assistant Secretary only upon the filing of exceptions
to the Administrative Law Judge's recommended decision and order in
accordance with Sec. 458.88.

Sec. 458.82 Motions after a hearing.

All motions made after the transfer of the case to the Assistant
Secretary, except motions to correct the record under Sec. 458.76(l),
shall be made in writing to the Assistant Secretary. The moving party
shall serve a copy of all motion papers on all other parties. A
statement of service shall accompany the motion. Answers, if any, must
be served on all parties and the original thereof, together with a
statement of service, shall be filed with the Assistant Secretary after
the hearing, within seven (7) days after service of the moving papers
unless it is otherwise directed.

Sec. 458.83 Waiver of objections.

Any objection not duly urged before an Administrative Law Judge
shall be deemed waived.

Sec. 458.84 Oral argument at the hearing.

Any party shall be entitled, upon request, to a reasonable period
prior to the close of the hearing for oral argument, which shall be
included in the official transcript of the hearing.

Sec. 458.85 Transcript.

An official reporter shall make the only official transcript of such
proceedings. Copies of the official transcript will be provided to the
parties, in accordance with the provisions of part 70 of this title, or
they may be examined in the district office in whose geographic
jurisdiction the hearing has been held.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985,
as amended at 63 FR 33780, June 19, 1998]

Sec. 458.86 Filing of brief.

Any party desiring to submit a brief to the Administrative Law Judge
shall file the original within ten (10) days after the close of the
hearing: Provided, however, That prior to the close of the hearing and
for good cause, the Administrative Law Judge may grant a reasonable
extension of time. Copies of such brief shall be served on all of the
parties to the proceeding. Requests for additional time in which to file
a brief under authority of this section made after the hearing shall be
made in writing to the Administrative Law Judge and copies thereof
served on the other parties. A statement of such service shall be
furnished. A request for extension of time shall be received not later
than three (3) days before the date such briefs are due. In the absence
of the Administrative Law Judge such requests shall be ruled upon by the
Chief Administrative Law Judge. No reply brief may be filed except by
permission of the Administrative Law Judge.

Sec. 458.87 Proposed findings and conclusions.

Within fifteen (15) days following the close of the hearing, the
parties may submit proposed findings and conclusions to the
Administrative Law Judge, together with supporting reasons therefor,
which shall become part of the record.

Sec. 458.88 Submission of the Administrative Law Judge's recommended decision and order to the Assistant Secretary; exceptions.

(a) After the close of the hearing, and the receipt of briefs, or
findings and conclusions, if any, the Administrative Law Judge shall
prepare his recommended decision and order expeditiously. The
recommended decision and order shall contain findings of fact,
conclusions, and the reasons or basis therefor including credibility
determinations, and recommendations as to the disposition of the case
including the remedial action to be taken.
(b) The Administrative Law Judge shall cause his recommended
decision and order to be served promptly on all parties to the
proceeding. Thereafter, the Administrative Law Judge shall

[[Page 223]]

transfer the case to the Assistant Secretary including his recommended
decision and order and the record. The record shall include the
complaint, the notice of hearing, motions, rulings, orders, official
transcript of the hearing, stipulations, objections, depositions,
exhibits, documentary evidence and any briefs or other documents
submitted by the parties.
(c) Exceptions to the Administrative Law Judge's recommended
decision and order may be filed by any party with the Assistant
Secretary within fifteen (15) days after service of the recommended
decision and order: Provided, however, That the Assistant Secretary may
for good cause shown extend the time for filing such exceptions.
Requests for additional time in which to file exceptions shall be in
writing, and copies thereof shall be served on the other parties.
Requests for extension of time must be received no later than three (3)
days before the date the exceptions are due. Copies of such exceptions
and any supporting briefs shall be served on all other parties, and a
statement of such service shall be furnished to the Assistant Secretary.

Sec. 458.89 Contents of exceptions to Administrative Law Judge's recommended decision and order.

(a) Exceptions to an Administrative Law Judge's recommended decision
and order shall:
(1) Set forth specifically the questions upon which exceptions are
taken;
(2) Identify that part of the Administrative Law Judge's recommended
decision and order to which objection is made;
(3) Designate by precise citation of page the portions of the record
relied on, state the grounds for the exceptions and include the citation
of authorities unless set forth in a supporting brief.
(b) Any exception to a ruling, finding, conclusion, or
recommendation which is not specifically urged shall be deemed to have
been waived. Any exception which fails to comply with the foregoing
requirements may be disregarded.

Sec. 458.90 Briefs in support of exceptions.

(a) Any brief in support of exceptions shall contain only matters
included within the scope of the exceptions and shall contain, in the
order indicated, the following:
(1) A concise statement of the case containing all that is material
to the consideration of the questions presented;
(2) A specification of the questions involved and to be argued;
(3) The argument, presenting clearly the points of fact and law
relied on in support of the position taken on each question, with
specific page reference to the transcript and the legal or other
material relied on.
(b) Answering briefs to the exceptions may be filed with the
Assistant Secretary within ten (10) days after service of the
exceptions.

Sec. 458.91 Action by the Assistant Secretary.

(a) After considering the Administrative Law Judge's recommended
decision and order, the record, and any exceptions filed, the Assistant
Secretary shall issue his decision affirming or reversing the
Administrative Law Judge, in whole, or in part, or making such other
disposition of the matter as he deems appropriate: Provided, however,
That unless exceptions are filed which are timely and in accordance with
Sec. 458.89, the Assistant Secretary may, at his discretion, adopt
without discussion the recommended decision and order of the
Administrative Law Judge, in which event the findings, conclusions, and
recommendations of the Administrative Law Judge, as contained in his
recommended decision and order, shall, upon appropriate notice to the
parties, automatically become the decision of the Assistant Secretary.
(b) Upon finding a violation of the CSRA, FSA or this part, the
Assistant Secretary may order the respondent to cease and desist from
such violative conduct and may require the respondent to take such
affirmative action as he deems appropriate to effectuate the policies of
the CSRA or FSA.

[[Page 224]]

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311,
Aug. 1, 1985]

Sec. 458.92 Compliance with decisions and orders of the Assistant Secretary.

When remedial action is ordered, the respondent shall report to the
Assistant Secretary, within a specified period, that the required
remedial action has been effected. When the Assistant Secretary finds
that the required remedial action has not been effected, he shall refer
the matter for appropriate action to the Federal Labor Relations
Authority (in the case of labor organizations covered by the CSRA), the
Foreign Service Labor Relations Board (in the case of labor
organizations covered by the FSA), or the Board of Directors of the
Office of Compliance (in the case of labor organizations covered by the
Congressional Accountability Act).

[62 FR 6094, Feb. 10, 1997]

Sec. 458.93 Stay of remedial action.

In cases involving violations of this part, the Assistant Secretary
may direct, subject to such conditions as he deems appropriate, that the
remedial action ordered be stayed.

PART 459--MISCELLANEOUS--Table of Contents

Sec.
459.1 Computation of time for filing papers.
459.2 Additional time after service by mail.
459.3 Documents in a proceeding.
459.4 Service of pleading and other papers under this subchapter.
459.5 Rules to be construed liberally.

Authority: 5 U.S.C. 7120, 7134; 22 U.S.C. 4117; 2 U.S.C. 1351(a)(1);
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

Source: 45 FR 15165, Mar. 7, 1980, unless otherwise noted.
Redesignated at 50 FR 31311, Aug. 1, 1985.

Sec. 459.1 Computation of time for filing papers.

In computing any period of time prescribed by or allowed by the
regulations contained in part 458 of this subchapter, the day of the
act, event, or default after which the designated period of time begins
to run, shall not be included. The last day of the period so computed is
to be included unless it is a Saturday, Sunday or Federal legal holiday
in which event the period shall run until the end of the next day which
is neither a Saturday, Sunday, or a Federal legal holiday. When the
period of time prescribed or allowed is seven (7) days or less,
intermediate Saturdays, Sundays, and Federal legal holidays shall be
excluded from the computations. When these regulations require the
filing of any paper, such document must be received by the Assistant
Secretary or the officer or agent designated to receive such matter
before the close of business of the last day of the time limit, if any,
for such filing or extension of time that may have been granted.

Sec. 459.2 Additional time after service by mail.

Whenever a party has the right or is required to do some act
pursuant to these regulations within a prescribed period after service
of a notice or other paper upon him and the notice or paper is served on
him by mail, five (5) days shall be added to the prescribed period:
Provided, however, That five (5) days shall not be added if any
extension of time may have been granted.

Sec. 459.3 Documents in a proceeding.

(a) Title. Documents in any proceeding under part 458 of this
subchapter, including correspondence, shall show the title of the
proceeding and the case number, if any.
(b) Signature. The original of each document required to be filed
under these regulations shall be signed by the party or by an attorney
or representative of record for the party, or by an officer of the
party, and shall contain the address and telephone number of the person
signing it.

Sec. 459.4 Service of pleading and other papers under this subchapter.

(a) Method of service. Notices of hearing, decisions, orders and
other papers may be served personally or by registered or certified mail
or by telegraph. When service is by mail, the date of service shall be
the day when the matter served is deposited in the United States mail.

[[Page 225]]

(b) Upon whom served. All papers, except as herein otherwise
provided, shall be served upon all counsel of record and upon parties
not represented by counsel or by their agents designated by them or by
law and upon the Assistant Secretary, or his designated officer, or
agent or Administrative Law Judge where appropriate. Service upon such
counsel or representative shall constitute service upon the party, but a
copy also shall be transmitted to the party.

Sec. 459.5 Rules to be construed liberally.

(a) The regulations in this subchapter may be construed liberally to
effectuate the purposes and provisions of the CSRA or FSA.
(b) When an act is required or allowed to be done at or within a
specified time, the Assistant Secretary may at any time order the period
altered where it shall be manifest that strict adherence will work
surprise or injustice or interfere with the proper effectuation of the
CSRA or FSA.