[Federal Register Volume 69, Number 212 (Wednesday, November 3, 2004)]
[Notices]
[Pages 64234-64238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24452]



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Part IV





Department of Labor





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Office of Labor-Management Standards



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Union Organization and Voting Rights: Criteria for Characterizing a 
Labor Organization as a ``Local,'' ``Intermediate,'' or ``National or 
International'' Labor Organization; Notice

  Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / 
Notices  

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DEPARTMENT OF LABOR

Office of Labor-Management Standards

RIN 1215-AB50


Union Organization and Voting Rights: Criteria for Characterizing 
a Labor Organization as a ``Local,'' ``Intermediate,'' or ``National or 
International'' Labor Organization

AGENCY: Office of Labor-Management Standards, Employment Standards 
Administration, United States Department of Labor.

ACTION: Request for information from the public.

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SUMMARY: This notice is a request for information from the public to 
assist the Department of Labor (``Department'') in evaluating its 
methods for determining when a labor organization constitutes a 
``local,'' ``intermediate'' or ``national or international'' labor 
organization. Title IV of the Labor-Management Reporting and Disclosure 
Act of 1959 (``Act''), 29 U.S.C 481-484, gives the Secretary of Labor 
authority to enforce the union officer election provisions of the Act. 
The Act calls for different election intervals and methods, depending 
on the type of labor union holding the election. In cases in which the 
labor organization at issue has no subordinate labor organizations, the 
Department considers the labor organization to be a local union if it 
exercises functions traditionally associated with local labor 
organizations. In cases in which an intermediate body with subordinate 
local unions is claimed to be a local union, the Department considers 
the intermediate body to be a local union if the intermediate body 
performs so many of the functions of the local unions that the local 
unions no longer continue to play a meaningful role. See Harrington v. 
Chao, 372 F.3d 52 (1st Cir. 2004). This analysis has been informed by 
the Department's interpretative regulation, found at 29 CFR 452.11, 
which states: ``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.'' The purpose of this Request for Information is 
to seek public comment on whether the Department's criteria for 
determining when a union is a local, intermediate or national or 
international union is appropriate, or whether there are alternatives 
that would better serve the purposes of the Act, and properly balance 
the interests of labor organizations and union members.

DATES: Comments must be received on or before December 3, 2004.

ADDRESSES: You may submit comments, identified by RIN 1215-AB50, by any 
of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Please 
follow the instructions for submitting comments.
    E-mail: [email protected].
    FAX: (202) 693-1340. To assure access to the FAX equipment, only 
comments of five or fewer pages will be accepted via FAX transmittal, 
unless arrangements are made prior to faxing, by calling the number 
below and scheduling a time for FAX receipt by the Office of Labor-
Management Standards (``OLMS'').
    Mail: Mailed comments should be sent to Lary Yud, Deputy Director, 
Office of Labor-Management Standards, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5605, Washington, DC 20210. Because 
the Department continues to experience delays in U.S. mail delivery due 
to the ongoing concerns involving toxic contamination, commenters 
should take this into consideration when preparing to meet the deadline 
for submitting comments.
    It is recommended that you confirm receipt of your comment by 
calling (202) 693-0123 (this is not a toll-free number). Individuals 
with hearing impairments may call 1-800-877-8339 (TTY/TDD).
    Comments will be available for public inspection during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Kay H. Oshel, Chief, Division of 
Interpretations and Standards, Office of Labor-Management Standards, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5605, 
Washington, DC 20210, [email protected], (202) 693-1233 (this is not 
a toll-free number). Individuals with hearing impairments may call 1-
800-877-8339 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Background

a. The Statutory, Regulatory and Administrative Framework

    Under the Labor-Management Reporting and Disclosure Act, the 
frequency and method by which a labor organization must elect its 
officers depends on whether it is a local union, an intermediate union, 
or a national or international union. Specifically, section 401(b) of 
the Act requires that ``[e]very local labor organization shall elect 
its officers not less often than once every three years by secret 
ballot among the members in good standing.'' 29 U.S.C. 481(b). Section 
401(d) of the Act requires that officers of ``intermediate bodies, such 
as general committees, system boards, joint boards, or joint councils, 
shall be elected not less often than once every four years 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.'' 29 U.S.C. 481(d). Section 401(a) requires that ``[e]very 
national or international labor organization * * * shall elect its 
officers not less often than once every five years either by secret 
ballot among the members in good standing or at a convention of 
delegates chosen by secret ballot.'' 29 U.S.C. 481(a).
    The Act does not define the terms ``local,'' ``intermediate,'' or 
``national or international.'' The Department's regulations state: 
``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.'' 29 CFR 452.11. The same regulation provides 
examples of entities that are intermediate bodies, i.e., ``general 
committees, conferences, system boards, joint boards, or joint 
councils, certain districts, district councils and similar 
organizations.'' Id. Various of these named intermediate bodies are 
described more fully elsewhere, see 29 CFR 451.4(f), but none of the 
regulations comprehensively define any of these critical terms, or 
provide a framework for distinguishing among local, intermediate or 
national and international labor organizations.
    The definition of the term labor organization is also relevant to 
identifying the status--local, intermediate, or national or 
international--of a labor organization. Indeed, the first step in any 
such inquiry is to confirm that the entity in question is in fact a 
labor organization. The term labor organization is defined by statute:

    ``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.

29 U.S.C. 402(i).


[[Page 64235]]


    As a related part of this inquiry, it is often necessary to 
determine that the entity is a distinct labor organization rather than 
merely a part or component of a larger labor organization. To resolve 
this question, the Department has adopted a methodology, found in the 
LMRDA Interpretative Manual, to determine whether an entity is a 
discrete labor organization or merely an undifferentiated portion of an 
encompassing labor organization. The methodology follows:

030.603 Separate Existence

    To be considered a labor organization under the Act an entity 
must be a separate organization having an organic existence or 
structure of its own, in addition to having the other 
characteristics of a labor organization as set forth in sections 
3(i) and (j) [29 U.S.C. 402(i) (j)]. It may not be a mere 
administrative arm or an integral, undifferentiated part of another 
labor organization. Various factors are considered when determining 
whether an entity has a separate existence. It is not feasible to 
prescribe a precise formula. An analysis must be made of all the 
facts concerning the structure and function of a particular entity 
and a determination made on the evidence as a whole. Factors to be 
considered include: Whether the existence of the entity is 
recognized by means of a charter, reference in the parent body's 
constitution, or some other manner; whether it has a distinct and 
identifiable membership; whether it may accept or reject 
applications for membership; whether it has its own officers; 
whether it holds meetings as a unit with some regularity or 
frequency; whether it has assets of its own; whether it may expend 
funds allocated to it or raised by it; whether it may assess and 
collect dues, fees or assessments; whether it may discipline its 
members; whether it is represented as a unit at conventions or 
meetings of a parent or other body; and whether it engages in 
collective bargaining, grievance handling, or any business 
arrangements.

LMRDA Interpretative Manual, 030.603.

    As will be discussed in greater detail below, the definition of 
``labor organization'' and the methodology for determining separate 
existence are critical to determining whether an entity is a labor 
union, whether it constitutes one or more unions, and whether it has a 
parent or subordinate union or unions. Many larger labor unions conform 
to a three tier configuration, with local unions residing at the bottom 
tier, in a position subordinate to intermediate bodies, which are 
themselves subordinate to a national or international union. 
Application of the definition of ``labor organization'' and the 
separate existence factors reveals whether a union is placed within a 
larger union hierarchy, and, if so, where the union is so situated. The 
determination of the structure of the entity and the overall union 
hierarchy is the first step in analyzing whether the union is a local, 
intermediate, or national or international labor union.

b. Unions Without Subordinate Labor Organizations

    In all cases, the Department begins the analysis of whether a union 
is a local, intermediate, or national or international union with an 
analysis of the union's structure. This structural analysis is used to 
determine whether the entity is a labor organization, to determine 
whether it constitutes one or more unions, and to determine where it is 
situated, if at all, within a larger hierarchy of affiliated unions. 
Two cases illustrate the analysis that the Department applies when such 
a structural review reveals that an entity that has no subordinate 
bodies claims to be an intermediate or national or international union. 
In Schultz v. Employees' Fed'n of the Humble Oil & Refining Co. 
(``Humble Oil''), 74 L.R.R.M (B.N.A.) 2140, 1970 U.S. Dist. LEXIS 
12288, 1970 WL 5445, (S.D. Tex. Mar. 31, 1970), the defendant, 
Employees' Federation of the Humble Oil and Refining Company, 
Production Department, South Texas Division, contended that it could 
not be a local union because it contained 26 divisions that were 
separate locals. The Department disagreed, and filed a civil 
enforcement action against the defendant. As suggested by the LMRDA 
Interpretative Manual, discussed above, the court first determined 
whether the defendant's divisions were discrete labor organizations. 
Humble Oil, 74 L.R.R.M. at 2141-42. The court determined that the 
divisions had no autonomy separate from the defendant. Id. at 2143. The 
divisions did not maintain any bank accounts, lease any office space, 
or employ any persons. Id. They maintained no dues records, membership 
lists, admission procedures, and retained no authority to expel or 
discipline officers or members. Id. The divisions were thus, the court 
held, ``mere administrative arms or subunits'' of the defendant, and 
the defendant thus had ``the non-complex structure [that] is typical of 
a local labor organization,'' with no discrete labor organizations 
subordinate to it. Id.
    Having determined that the defendant's structure was consistent 
with a local labor organization, the court reviewed the defendant's 
functions. The court wrote: ``The defendant performs the basic local 
union functions. It settles grievances; collects dues and establishes 
wages, benefits and working conditions by contract negotiations with 
the employer; and disciplines its members and officers.'' Id.
    A second case also reflects the Department's method for determining 
whether a labor union is a local, under circumstances where a 
structural analysis has revealed that a union that claims not to be a 
local union is the entity closest to the union members. In Donovan v. 
Nat'l Transient Div., Int'l Bhd. of Boilermakers, (``Boilermakers''), 
736 F.2d 618 (10th Cir. 1984), the defendant, National Transient 
Division (``NTD''), characterized itself as a division of an 
international labor organization. It represented craftsmen who traveled 
throughout the United States. Id. at 619. The court first held that the 
NTD was a labor organization itself, and not merely a division of the 
international labor organization. Id. at 621-22. Next, the court 
determined that the NTD was a local, rather than an international, 
labor organization. Id. at 622-23. The court observed that the NTD was 
``subordinate to the International, and has no subordinate labor 
organizations.'' Id. at 623. Thus, the court held, the NTD ``has the 
relatively simple organizational structure characteristic of local 
labor organizations.'' Id.
    The court also reviewed the functions of the union. ``Most 
important, NTD performs the functions of a local. NTD officials 
negotiate the basic terms of collective bargaining agreements, ensure 
that those agreements are enforced, handle grievances, collect dues 
from members, maintain out-of-work lists, hold meetings at which 
members express their views, and provide a number of other services 
directly to NTD members.''
    In both Boilermakers and Humble Oil, the Department advanced the 
position that the structure of a union must be closely analyzed to 
determine whether the entity in question is part of another labor 
organization or whether it has subordinate labor organizations. In both 
cases, this analysis revealed that the labor organization in question 
was the labor organization closest to the members. At that point, the 
Department looked to whether the union exercised a variety of functions 
traditionally associated with local labor unions, and if so, took the 
position that the union was a local labor organization.

c. Intermediate Bodies With Subordinate Labor Organizations

    In a recent case, the Department examined the methodology used to 
distinguish an intermediate union from a local union. Harrington v. 
Chao, 372 F.3d 52, 63 (1st Cir. 2004). In this case, the labor 
organization in question was

[[Page 64236]]

structurally intermediate, in that it was subordinate to a national 
union and oversaw local labor organizations, but it performed a number 
of important functions generally performed by local unions. The 
``inquiry in determining whether an entity designated by the union as 
an intermediate body should instead be considered a local body,'' the 
Department explained, ``is whether the intermediate body has taken on 
so many of the traditional functions of a local union that it must in 
actuality be considered a local union.'' January 31, 2003, Supplemental 
Statement of Reasons for Dismissing the Complaint of Thomas Harrington, 
p 3. ``If the subordinate organizations in fact continue to perform 
functions and exist for purposes traditionally associated with local 
labor unions, the union's characterization of an entity placed 
structurally between such organizations and the international union as 
an 'intermediate body' will be upheld even though the intermediate body 
also performs some other functions traditionally associated with local 
unions.'' Id. at 4. This analysis was upheld by the U.S. Court of 
Appeals for the First Circuit. Harrington, 372 F.3d at 63.
    The Department's extensive explanation of the method for 
distinguishing intermediate unions from local unions was the result of 
a union member's complaint, and subsequent litigation. In 1999, several 
union members filed an election protest with the Secretary pursuant to 
Title IV of the Act, 29 U.S.C. 482, arguing that the New England 
Regional Council of Carpenters (``NERCC'') was not an ``intermediate 
body,'' but a ``local labor organization'' required by section 401(b) 
of the Act to ``elect its officers not less often than once every three 
years by secret ballot among the members in good standing.'' 29 U.S.C. 
481(b). The NERCC comprised 27 affiliated locals and was subordinate to 
the United Brotherhood of Carpenters and Joiners of America (``UBC''), 
a national labor organization. The NERCC was created in 1996, when the 
UBC combined state and district councils, as well as independent local 
unions, into larger regional councils. In New England, the NERCC, a 
single, regional council overseeing a number of pre-existing local 
unions, had over 25,000 members. The NERCC's subordinate bodies 
constituted separate labor organizations.
    In April 2000, the Department issued a Statement of Reasons 
explaining why it had determined that the NERCC was an ``intermediate 
bod[y]'' within the meaning of section 401(d) of the Act, 29 U.S.C. 
481(d), and could therefore elect its officers every four years either 
by secret ballot among the members in good standing or by a vote of 
delegates who had been elected by secret ballot by the members in good 
standing of NERCC's subordinate locals.
    The complainants challenged this determination in United States 
District Court, which rejected the suit. Harrington v. Herman, 138 F. 
Supp. 2d 232 (D. Mass. 2001). The complainants appealed to the United 
States Court of Appeals for the First Circuit, which reversed the 
district court and vacated the Department's Statement of Reasons. 
Harrington v. Chao, 280 F.3d 50 (1st Cir. 2002). The statement was 
flawed, the court held, because it left two questions unanswered. Id. 
at 57. First, the statement suggested that the Department had rejected 
a ``functional'' analysis in determining whether a labor organization 
is a local or an intermediate labor organization, notwithstanding a 
regulation holding that the ``characterization of a particular 
organizational unit * * * is determined by its functions and 
purposes.'' Id.; see 29 CFR 425.11. Second, the statement failed to 
discuss two relevant cases, leaving it unclear whether the Department's 
approach was consistent with these precedents, and the positions that 
the Department had taken while litigating them. Id. at 57-58, citing 
Donovan v. Nat'l Transient Div., Int'l Bhd. of Boilermakers, 
(``Boilermakers''), 736 F.2d 618 (10th Cir. 1984), and Schultz v. 
Employees' Fed'n of the Humble Oil & Refining Co. (``Humble Oil''), 
1970 U.S. Dist. LEXIS 12288, 1970 WL 5445, 74 LRRM 2140 (S.D. Tex. Mar. 
31, 1970).
    On remand, the Department issued a lengthy Supplemental Statement 
of Reasons that explained why the NERCC was properly characterized as 
an intermediate body under the Act, the regulations, and the applicable 
precedent. First, the statement recognized that the Department's 
regulations, specifically 29 CFR 452.11, made it clear that whether an 
entity is a local or intermediate body is dependent upon its 
``functions and purposes'' as opposed to ``the formal title by which it 
is known or how it classifies itself.'' In construing this language, 
the Department reasoned that an entity designated by the union as an 
intermediate body should instead be considered a local body if the 
intermediate body ``has taken on so many of the traditional functions 
of a local union that it must in actuality be considered a local 
union.'' Although the statement recognized that the Department has 
never found an organization at the middle tier of a union structure to 
be a local, the statement observed that Congress' requirement of direct 
elections for local unions demonstrated its view that local unions 
perform meaningful functions. Viewing the regulation in light of this 
history and Congressional intent, the Department concluded, ``If the 
subordinate organizations in fact continue to perform functions and 
exist for purposes traditionally associated with local labor unions, 
the union's characterization of an entity placed structurally between 
such organizations and the international union as an `intermediate 
body' will be upheld even though the intermediate body also performs 
some other functions traditionally associated with local unions.'' 
Supplemental Statement of Reasons, p.4.
    Second, the Department analyzed the legislative history of the Act 
and the actual practices of unions when the Act was passed to conclude 
that intermediate, national, and international labor organizations at 
that time engaged in important representational activity both in 
conjunction with, and in lieu of, subordinate local unions. 
Specifically, the Department noted that the Act's legislative history 
makes it clear that intermediate bodies may wield ``responsible 
governing power'' within a labor union without being considered local 
unions under the Act. S. Rep. No. 187, 86th Cong., 1st Sess. at 20, 
reprinted in 1959 U.S.C.C.A.N. 2318, 2336. National Labor Relations 
Board decisions issued prior to enactment of the Act, the Department 
noted, made plain the practice of superior labor organizations to 
bargain collectively on behalf of subordinate entities.
    Third, the statement observed that the organization's placement 
within the structure of a union was ``highly relevant in determining 
whether it is a `local' or `intermediate' union.'' The statute itself 
identifies intermediate bodies by their structural placement within the 
hierarchy of affiliated unions, or by a name historically associated 
with a particular tier within the union. The term Congress used to 
denominate these entities--intermediate bodies--suggests the relevance 
of an organization's placement within the overall structure of the 
union. The language of the statute, the Department concluded, 
authorized the Department to take into account the entity's structural 
placement when considering whether it is an intermediate body or a 
local union.
    The Department also reviewed the case law for consistency with its 
analysis of the regulation, statute, and legislative history. The 
statement

[[Page 64237]]

concluded that the positions that the Department took in Boilermakers 
and Humble Oil, and the dispositions in those cases, did not compel a 
different analysis. In both cases, there were no labor organizations 
subordinate to the union whose status was at issue, and categorization 
as a local union was thus consistent with both the union's structure 
and functions. The cases, the statement concluded, provided no 
controlling authority when a union's structure and functions were not 
aligned.
    Applying the Department's analysis, which reviewed the NERCC's 
structural placement within the hierarchy of affiliated unions, the 
NERCC's functions, and the functions of the NERCC's locals, the 
Department determined that the NERCC was an intermediate union. 
Dissatisfied with the Supplemental Statement of Reasons, the 
complainants renewed the litigation in the United States District Court 
of Massachusetts, which granted judgment for the complainants. 
Harrington v. Chao, 286 F.Supp. 2d 80 (D. Mass. 2003). The Department 
appealed, bringing the issue once again before the Court of Appeals for 
the First Circuit.
    In a split decision, the Court of Appeals ruled that the Department 
did not act arbitrarily and capriciously in declining to bring suit 
against the NERCC. Harrington v. Chao, 372 F.3d 52 (1st Cir. 2004). The 
court reversed the district court, upholding the Department's 
determination that the NERCC is an ``intermediate'' labor organization 
and therefore not required to elect its officers directly. Id.
    The complainant's primary argument was that the Department did not 
focus upon the NERCC in conducting its analysis, in order to determine 
whether the NERCC exercised local rather than intermediate functions, 
but improperly focused on the locals themselves. Id. at 60. Circuit 
Judge Lynch, writing for the court, observed that the Department 
examined the functions of the NERCC, as well as those of the locals, 
and noted that some of those functions, such as collective bargaining 
and disciplining members, have historically been the province of both 
locals and intermediate bodies dating back prior to the passage of the 
Act. Id. at 60. Further, the court rejected the argument that because a 
local traditionally performed collective bargaining and grievance 
handling, any labor organization, regardless of its placement within 
the union's structure, would also be local if it performs these 
functions. The court reasoned that this assumption would contradict the 
Congressional observation that intermediate bodies exercise 
``responsible governing powers,'' and nothing in the statute required 
the Department to draw up a list of functions that could be performed 
by one kind of entity but not any others. Id. at 62. The court 
concluded that although the Department's approach had shifted in 
emphasis, the Department was permitted some flexibility in interpreting 
the Act and the regulations provided it furnished some explanation, 
which it did here. Id. at 63.
    In a concurring opinion, Circuit Judge Lipez expressed concern that 
Congress did not intend intermediate bodies to hold the degree of power 
held by the NERCC, but nonetheless upheld the Department's conclusion 
because of the ``highly deferential standard'' under which the courts 
review the Department's decision not to sue. Id. at 63-70. In a 
dissenting opinion, Circuit Judge Torruella faulted the Department's 
analysis for focusing on the powers retained by the subordinate bodies, 
and not on the NERCC's powers, and stated that this represented an 
impermissible departure from past administrative practice. Id. at 70-
75.

d. Review of the Method of Determining the Status of Labor Organization

    The judicial decision upholding the Department's method of 
determining whether a union is a local or an intermediate held that the 
Department's position was lawful, but did not address whether the 
position struck the most favorable balance between protecting union 
members' interests and preserving unions' ability to structure 
themselves in a manner they deem most advantageous.
    In its initial opinion, the Court of Appeals indicated that if the 
Secretary should wish to change the governing regulation, 29 CFR 
452.11, she must do so in accord with the general rulemaking provisions 
of the Administrative Procedure Act, 5 U.S.C. 553. Harrington v. Chao, 
280 F.3d at 59. Congress has implicitly delegated the authority to the 
Secretary to interpret the union officer election provisions of the Act 
by charging her with a variety of substantial responsibilities under 
the statute, not the least of which is the Secretary's authority to 
investigate allegations of election violations. See 29 U.S.C. 481. The 
delegation of legal interpretive power is also evident in her exclusive 
authority to file a civil action in U.S. district court, seeking an 
order that a union election be declared void, and a new election be 
conducted under the supervision of the Department of Labor. See 29 
U.S.C. 482.
    The determination of the status of a labor organization is a 
complex matter. To better understand the effect of the Department's 
current regulatory and interpretive framework on unions, union members, 
and the public, the Department seeks additional information. This 
information will permit the Secretary to determine whether the 
Department's position adequately meets the needs of labor organizations 
and their members, and to determine whether additional rulemaking is 
necessary to fully realize the purposes of the Act.

II. Information Sought

    The Secretary seeks public comment from interested parties 
regarding the Department's analyses for determining whether a labor 
organization constitutes a local, intermediate, or national or 
international labor organization. In particular, the Secretary is 
seeking written submissions on the following topics:
    The terms ``local labor organization'' and ``intermediate bod[y]'' 
and ``national or international labor organization'' are not defined in 
the Act but they are crucial in the Title IV scheme for democratic 
union elections. Should the Secretary issue a regulation defining these 
terms? If so, what should these definitions be? What elements or 
factors should be considered when formulating definitions for these 
terms?
    Are there certain functions that are so inextricably related to the 
fundamental purpose of unions and the daily work life of their members 
that labor organizations exercising these functions must be considered 
local unions?
    If so, what are these functions? Are these functions limited to 
labor relations functions such as negotiating collective bargaining 
agreements, ratifying collective bargaining agreements, handling 
grievances, handling arbitration, controlling work referral systems, 
controlling business agents, controlling organizers, controlling 
stewards, calling strikes, etc.? Or should other functions such as 
disciplining members, raising rates of dues, or controlling a large 
part of the dues paid by members also be considered?
    If a list of such functions could be compiled, how would the 
functions be applied to determine local union status? For example, 
should such a method require that an entity exercise a certain number 
of the functions to be considered a local or are one or two of the 
functions so critical that exercising them would be evidence of local 
status?
    Are there any functions uniquely associated with national or 
international unions, suggesting that any entity with such 
characteristics would be considered a national or international

[[Page 64238]]

union? Similarly, are there functions that are uniquely associated with 
intermediate bodies?
    The factors that the Department uses in determining whether an 
entity has a separate organic existence or structure of its own, as 
described in the LMRDA Interpretative Manual, are:

 Whether the existence of the entity is referenced through a 
charter, referenced in the parent body's constitution and bylaws, or 
some other manner
 Whether it has its own constitution and bylaws, or other 
governing rules
 Whether it has a distinct and identifiable membership
 Whether it may accept or reject applications for membership
 Whether it has its own officers
 Whether it holds meetings as a unit with some regularity or 
frequency
 Whether it has assets of its own
sessments
 Whether it may discipline its members
 Whether it is represented as a unit at conventions or 
meetings of a parent or other body
 Whether it engages in collective bargaining
 Whether it engages in grievance handling
 Whether it engages in any business arrangements

LMRDA Interpretative Manual, 030.603.

    Are all of these factors relevant to determining whether a labor 
organization has a separate existence? Are relevant factors missing 
from this list? At what point has an entity lost so many of these 
attributes that it becomes an administrative arm of another labor 
organization, rather than a separate labor organization?
    How much significance should be attributed to an entity's placement 
above a local labor organization within a hierarchy of affiliated labor 
organizations in determining if it is a local or intermediate body? 
Would the application of a strictly functional test to determine the 
status of a labor union be consistent with the Act?
    What concerns, if any, would arise from an intermediate body being 
reclassified as a local union? What effect, if any, would 
classification of an intermediate body as a local union have on the 
local status of its subordinate unions (assuming the subordinate unions 
retain sufficient functions and attributes distinct from the purported 
intermediate body to constitute discrete labor organizations)? Can a 
union supervise other local unions and still maintain status as a local 
union?
    There appear to be cases in which an intermediate body, or a 
national or international union, has members that are not members of a 
local union. What elections do these members participate in? Should the 
existence of such members be a factor in determining the status of a 
labor organization as a local union? If so, what weight should this 
factor be given?
    Have any unions changed their structure in reliance on the 
Department's existing positions? Have unions developed plans to devolve 
additional responsibility to intermediate or national or international 
labor organizations, based on the Department's articulated positions?
    What is the proper analysis to distinguish a national or 
international union from a local? Should a different analysis apply if 
the entity at issue has constituent labor organizations? Should the 
method of distinguishing a national or international union from a local 
union be the same or different than that used to distinguish an 
intermediate body from a local?
    In addition to these questions, the Department seeks information 
and evidence on the following topics:

 The functions performed by a typical local in 1959
 The functions performed by a typical intermediate body in 1959
 The difference in the functions of locals today as compared to 
1959
 The difference in the functions of intermediate bodies today 
as compared to 1959
 Situations in which union bodies other than a local union 
perform functions such as negotiating collective bargaining agreements, 
ratifying collective bargaining agreements, handling first stage 
grievances, handling arbitration, controlling work referral systems, 
controlling business agents, controlling organizers, controlling 
stewards, calling strikes, etc.

    Signed at Washington, DC, this 27th day of October, 2004.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Don Todd,
Deputy Assistant Secretary for Labor-Management Programs.
[FR Doc. 04-24452 Filed 11-2-04; 8:45 am]
BILLING CODE 4510-CP-P