[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14541]


[[Page Unknown]]

[Federal Register: June 16, 1994]


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Part VI





Department of Labor





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Office of Labor-Management Standards



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29 CFR Part 417



Local Labor Organization Officers; Procedure for Removal; Proposed Rule
DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 417

RIN 1294-AA10

 

Procedure for Removal of Local Labor Organization Officers

AGENCY: Office of Labor-Management Standards, Office of the American 
Workplace, Labor.

ACTION: Proposed rule.

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SUMMARY: The Department of Labor is proposing to amend the regulation 
pertaining to the procedure for removal of local labor organization 
officers pursuant to section 401(h) of the Labor-Management Reporting 
and Disclosure Act of 1959, as amended (LMRDA). Section 417.16 
presently gives the Secretary of Labor the authority to bring suit 
against a union after a member has filed a complaint with the Secretary 
alleging that the local labor organization has failed to follow the 
officer removal procedures contained in the organization's constitution 
and bylaws. This proposed rule deletes that language, which purports to 
give the Secretary general authority to bring suit against a union for 
failing to follow its officer removal procedures even if the inadequacy 
of the procedure has not been established. This change will bring the 
regulation into conformity with a court of appeals decision that held 
that the Secretary lacks such authority.

DATES: Interested parties may submit written comments on this proposal. 
All comments must be submitted by August 15, 1994.

ADDRESSES: Written comments should be submitted to Edmundo Gonzales, 
Deputy Assistant Secretary for Labor-Management Standards, Office of 
the American Workplace, U.S. Department of Labor, 200 Constitution 
Avenue, NW., room N-5605, Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT:
Kay H. Oshel, Chief, Division of Interpretations and Standards, Office 
of Labor-Management Standards, Office of the American Workplace, U.S. 
Department of Labor, 200 Constitution Avenue, NW., room N-5605, 
Washington, DC 20210; (202) 219-7373. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: Title IV of the Labor-Management Reporting 
and Disclosure Act of 1959, as amended (LMRDA), governs the election 
and removal of labor organization officers. Section 401(h) of the LMRDA 
(29 U.S.C. 481(h)) provides that if the Secretary of Labor, upon 
application of a member of a local labor organization, finds after a 
hearing in accordance with the Administrative Procedure Act, that the 
constitution and bylaws of the labor organization do not provide an 
adequate procedure for the removal of an elected officer guilty of 
serious misconduct, such officer may be removed for cause shown and 
after notice and hearing, by the members in good standing voting in a 
secret ballot conducted by the officers of such labor organization in 
accordance with its constitution and bylaws insofar as they are not 
inconsistent with the provisions of Title IV of the LMRDA.
    The Department has interpreted section 401(h); when read in 
conjunction with section 402(a), as additionally granting the Secretary 
of Labor the authority to file suit against a union for failure to 
follow removal procedures whose adequacy has not been challenged. 
Section 402(a) states in part that ``(a) a member of a labor 
organization: (1) Who has exhausted the remedies available under the 
constitution and bylaws of such organization and of any parent body, or 
(2) who has invoked such available remedies without obtaining a final 
decision within three calendar months after their invocation, may file 
a complaint with the Secretary within one calendar month thereafter 
alleging the violation of any provision of section 401 (including 
violation of the constitution and bylaws of the labor organization 
pertaining to the election and removal of officers) (emphasis added) *  
*  *.'' Subpart B of 29 CFR part 417 implements this interpretation.
    In Donovan v. Hotel, Motel & Restaurant Employees Local 19, 700 
F.2d 539 (9th Cir. 1983), however, the court held, after examining the 
legislative history of the Act, that the LMRDA does not authorize the 
Secretary to bring civil action against a union for failure to follow 
its concededly adequate officer removal procedure. Local 19 rejected 
the Secretary's reliance on section 402(a) as a basis for extending his 
authority under section 401(h) to intervene in officer removal 
proceedings where an adequate removal procedure exists. The court 
concluded that those regulations found in subpart B of 29 CFR part 417 
which purport to give the Secretary general authority to intervene in 
union affairs upon a finding that a union has failed to follow its 
adequate removal procedures are void for lack of statutory authority.
    Local 19 is the only judicial decision that addresses this issue, 
and the Department has determined, upon review, that the holding of the 
court in Local 19 is correct. The Department therefore proposes to 
delete the language in subpart B of 29 CFR part 417 granting the 
Secretary authority to file suit against a union for failure to follow 
its adequate officer removal procedures.

Administrative Notices

A. Executive Order 12866

    The Department of Labor has determined that this rule is not a 
significant regulatory action as defined in section 3(f) of Executive 
Order 12866 in that it will not: (1) Have an annual effect on the 
economy of $100 million or more, or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities, (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency, 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof, or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.

B. Regulatory Flexibility Act

    The Agency Head has certified that this proposed rule, if issued, 
will not have a significant impact on a substantial number of small 
entities as defined in the Regulatory Flexibility Act. The proposed 
rule will only apply to local labor organizations and would decrease 
the regulation of such labor organizations. However, the Department has 
determined that labor organizations regulated pursuant to the statutory 
authority granted under the LMRDA do not constitute small entities. 
Therefore, a regulatory flexibility analysis is not required.

C. Paperwork Reduction Act

    This rule contains no information collection requirements. 
Therefore, the Paperwork Reduction Act of 1980, as amended, is not 
applicable.

List of Subjects in 29 CFR Part 417

    Labor unions

Text of Proposed Rule

    In consideration of the foregoing, the Department of Labor proposes 
that subpart B of part 417 of title 29, Code of Federal Regulations, be 
amended as follows:

PART 417--PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION 
OFFICERS

    In the authority citation for part 417 continues to read as 
follows:

    Authority: Secs. 401, 402, 73 Stat. 533, 534 (29 U.S.C. 481, 
482); Secretary Order No. 2-93 (58 FR 42578).

    2. The heading part 417, subpart B, is revised to read as follows:

Subpart B--Procedures Upon Failure of Union to Act Following 
Subpart A Procedures

    3. 29 CFR 417.16 is revised to read as follows:


Sec. 417.16  Initiation of proceedings.

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

    Signed in Washington, DC this 9th day of June, 1994.
Martin Manley,
Assistant Secretary for the American Workplace.
[FR Doc. 94-14541 Filed 6-15-94; 8:45 am]
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