Enforcement

601                  Enforcement In General
602-604           (Numbers Reserved)
605                  Investigations
606-609           (Numbers Reserved)
610                  Subpoena Powers
611-629           (Numbers Reserved)
630                  Cooperation With Other Agencies and Departments
631-639           (Numbers Reserved)
640                  Service of Process
641-650           (Numbers Reserved)

ENFORCEMENT IN GENERAL

601.001 LMRDA, SECTION 601(a)

            The Secretary shall have power when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this Act (except title I or amendments made by this Act to other statutes) to make an investigation and in connection therewith he may enter such places and inspect such records and accounts and question such persons as he may deem necessary to enable him to determine the facts relative thereto. The Secretary may report to interested persons or officials concerning the facts required to be shown in any report required by this Act and concerning the reasons for failure or refusal to file such a report or any other matter which he deems to be appropriate as a result of such an investigation.

601.005 SECRETARY MAY DELEGATE POWERS

            Section 601 and Section 607 give the Secretary of Labor authority to delegate (1) his investigatory and subpoena powers to subordinate officers of his department and (2) his investigatory powers to other departmental agencies, including the Department of Justice.

Goldberg v. Battles, 196 F.Supp. 749 (E.D. Pa. 1961), aff’d, 299 F.2d 937 (3d Cir.) 48 LRRM 2820, cert. denied, 371 U.S. 817, 51 LRRM 2222 (1962).  See also Memorandum of Understanding Between the Departments of Justice and Labor Relating to the Investigation and Prosecution of Crimes and Civil Enforcement Actions Under the Labor-Management Reporting and Disclosure Act of 1959 (Pub. L. 86–257), 75 FR 20602 (April 20, 2005); Secretary’s Order 03-2012, 77 FR 69376 (Nov. 16, 2012); 78 FR 8024 (Feb. 5, 2013).

            (Revised: Dec. 2016)

601.100 SUBPOENA OF DEPARTMENT’S RECORDS

            In an action brought by the Secretary of Labor under section 402, defendant union obtained a subpoena duces tecum calling for wholesale disclosure of memoranda, reports and statements in possession of LMWP. The union sought this material in support of its defenses that the complaint filed under section 402(a) by a union member was not timely filed and was unlawfully solicited by the Secretary.

            On a motion to quash the subpoena, the Government contended that the subpoena sought documents and information calling for disclosure of informant’s communications and information as to the internal operations of the Department and that he has made no showing of good cause as required by the rules of procedure.

            The court stated that the subpoena, by its terms sought disclosure of a variety of material whose relevance to any issue in the case was not apparent. Without deciding the force of the Government’s arguments with respect to inspection of any particular document, the court held that federal discovery processes are not intended to require such wholesale disclosure as is contemplated by the subpoena in this case. The motion to quash was granted.

Wirtz v. Local Union 169, International Brotherhood of Hod Carriers, 58 LRRM 2364 (D. Nev.1965).  See also Dole v. Local 1942, International Brotherhood of Electrical Workers, 870 F.2d 368 ,130 LRRM 2850 (7th Cir. 1989)(appeals court reversed district court decision ordering Labor Department to release the names of persons who made witness statements to OLMS investigators).

            (Revised: Dec. 2016)

INVESTIGATIONS

605.005 “REASONABLE BASIS” NOT REQUIRED

            Section 601 does not require that the Secretary first establish a “reasonable basis” for investigation, as this would in effect require a showing of “probable cause,” which requirement Congress clearly rejected.
Goldberg v. Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, 293 F. 2d 807 (6th Cir.), cert. denied, 368 U.S. 938 (1961).  Accord International Brotherhood of Teamsters v. Goldberg, 303 F. 2d 402 (D.C. Cir.), cert. denied, 370 U.S. 938 (1962).

            (Technical Revisions: Dec. 2016)

605.100 ELECTION INVESTIGATION

            The power of the Secretary of Labor under section 601 of LMRDA to conduct an investigation of an election of union officers and to issue a subpoena duces tecum in connection with such investigation is not limited to those violations complained of by an individual union member under section 402.

            Section 402 provides for the Secretary’s instituting an action in the courts in behalf of an individual who was complained of a violation of Title IV. It may be that some or all of the limitations of section 402, such as the exhaustion of internal remedies, are relevant to the suit which that section authorizes, and presumably the Secretary can bring an action only when a complaint has been filed by an individual member.

            Section 601 provides that the Secretary shall “determine the facts relative” to a violation or threatened violation and that he may report the results of his investigation “to interested persons or officials.” There is no limitation on the Secretary’s power to investigate and report and it need not be predicated on a complaint.
Wirtz v. Local 191, International Brotherhood of Teamsters, 218 F.Supp. 885, 53 LRRM 2783 (D. Conn), aff’d, 321 F.2d 445, 53 LRRM 2864 (2d Cir. 1963). See also Wirtz v. Local 57, International Union of Operating Engineers, 235 F.Supp. 701, 58 LRRM 2329 (D.R.I. 1964), aff’d, 346 F.2d 552, 59 LRRM 2310 (1st Cir. 1965); Wirtz v. Ross K. Edmonds and Cowdy Printcraft Press, Inc. 58 LRRM 2695 (D. Col. 1965).  See also Chao v. Local 743, International Brotherhood of Teamsters, AFL-CIO, 467 F.3d 1014, 1020-1022 , 180 LRRM 2961 (7th Cir. 2006) (affirming district court's enforcement of Secretary of Labor's subpoena duces tecum for an election investigation).

            (Revised: Dec. 2016)

SUBPOENA POWERS

610.001 LMRDA, SECTION 601(b)

            For the purpose of any investigation provided for in this Act, the provisions of sections 9 and 10 (relating to the attendance of witnesses and the production of books, papers, and documents) of the Federal Trade Commission Act of September 16, 1914, as amended (15 U.S.C. 49, 50).1/ are hereby made applicable to the jurisdiction, powers, and duties of the Secretary or any officers designated by him. (Underlining supplied.)

1/ FEDERAL TRADE COMMISSION ACT
(Sections 9 and 10)

Section 9: That for the purposes of this Act the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence.

            Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.

            Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any corporation or other person, issue an order requiring such corporation or other person to appear before the commission, or to produce documentary if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as contempt thereof.

            Upon the application of the Attorney General of the United States at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance thereof.

            The commission may order testimony to be taken by deposition in any proceeding or investigation pending under this Act at any stage of such proceeding or investigation. Such depositions may be taken before any person designated by the Commission and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under his direction, and shall then be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided.

            Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States and witnesses whose depositions are taken, and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States.
           
Section 10: Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce documentary evidence, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.

            Any person who shall willfully make, or cause to be made, any false entry or statement of fact in any report required to be made under this Act, or who shall willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any corporation subject to this Act, or who shall willfully neglect or fail to make or cause to be made, full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the business of such corporation, or who shall willfully remove out of the jurisdiction of the United States, or willfully mutilate, alter, or by any other means falsify any documentary evidence of such corporation, or who shall willfully refuse to submit to the commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such corruption in his possession or within his control, shall be deemed guilty of any offense against the United States, and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than $1,000 nor more than $5,000 or to imprisonment for a term of not more than three years, or to both such fine and imprisonment.

            (Technical Revisions: Dec. 2016)

610.005 NOT RESTRICTED TO ADMINISTRATIVE SUBPOENAS

            A union refused to comply with a subpoena issued by the Secretary calling for the production of certain records on the grounds that the provisions of the Federal Trade Commission Act, which are incorporated by reference in LMRDA and are the source of the Secretary’s subpoena power, permit only administrative subpoenas directed to a corporation being investigated or proceeded against.

            In an action to enforce the subpoena the court rejected this contention on the basis that it is an incorrect interpretation of the FTC Act. While the power of success and copying regarding a corporate defendant in an FTC proceeding is limited as the union contends, the subpoena power is not so restricted.

Local 57, International Union of Operating Engineers v. Wirtz, 326 F.2d 467, 55 LRRM 2105 (1st Cir.1964).

            (Technical Revisions: Dec. 2016)

610.015 SCOPE

           In a summary proceeding the Federal Trade Commission applied to the U.S. District Court for an order to compel five corporate entities and their duly authorized representatives to appear, testify and produce documentary evidence in an ex parte investigation being conducted by the Commission. The court held that under authority of section 9 of the Federal Trade Commission Act, the Commission is empowered to remove subpoenaed books and records from Philadelphia, Pa., to Washington, D.C., and may retain them for a period of thirty days for the purpose of reproduction, if such removal and retention will not hinder the corporations’ daily business operations.

Federal Trade Commission v. Standard American, Inc., 195 F.Supp. 801 (E.D. Pa. 1961), aff’d, 306 F. 2d 231 (3d Cir. 1962).

NOTE:

            (Technical Revisions: Dec. 2016 and Dec. 2021)

610.100 ANY “PERSON”

            Section 601(a) empowers the Secretary of Labor to subpoena any person he deems necessary to determine whether a violation of LMRDA has occurred, thereby granting the Secretary authority to question persons other than those directly charged with duties and responsibilities under the Act.

Goldberg v. Battles, 196 F.Supp. 749, 48 LRRM 2820 (E.D. Pa. 1961), aff’d, 299 F.2d 937, 49 LRRM 2834 (3d Cir. 1962), cert. denied, 71 U.S. 817, 51 LRRM 2222 (1962).

            (Technical Revisions: Dec. 2016)

610.105 UNION AS “PERSON”

            A local union refused to comply with a subpoena issued by the Secretary of Labor in furtherance of an investigation under section 601 of LMRDA to produce certain records. The district court granted an order enforcing the subpoena and requiring the union to produce the records. The union appealed to this court.
            The principal union contentions on appeal were:

The subpoena was “misdirected” because it was addressed to an unincorporated voluntary association and this case is unique because a statutory immunity provision is involved and unless the subpoena is directed to a natural person the intended immunity will not be achieved.

The court rejected this contention stating:
             
It is well settled that an unincorporated labor union has no constitutional privilege against self-incrimination, and equally well settled that an officer of such an association is not entitled to invoke a personal privilege in the mere production of its records in a representative capacity….  We find no indication that Congress intended to grant an immunity more extensive than that required to obtain testimony or other evidence over a claim of the constitutional privilege.

Local 57, International Union of Operating Engineers v. Wirtz, 326 F.2d 467, 469, 55 LRRM 2105 (1st Cir. 1964).

            (Technical Revisions: Dec. 2016)

610.110 USE—COVERAGE CASE

            Electricians & Associates, Inc. refused to obey a subpoena issued by the Secretary in initiating an investigation as to its status under the Act, contending that the Secretary had to show the organization being investigated is subject to the Act before he could investigate and issue subpoenas. The court rejected this argument and ordered the corporation to obey the subpoena. In reaching this conclusion, the court held that the Secretary was authorized by Congress to determine the question of coverage during his preliminary investigation of possible violations of the LMRDA and could exercise his subpoena power to secure evidence to resolve the questions of coverage.

Wirtz v. Electricians & Associates, Inc., 51 LRRM 2675 (D. Minn. 1962).

NOTE:

The defendant in the above cited case was a “subsidiary organization” of a labor organization.

            (Technical Revisions: Dec. 2016)

610.200 APPLICABILITY TO EMPLOYER          

           The Secretary of Labor filed a petition in U.S. district court to compel certain officers and managing officials of a company meeting the employer definition in section 3(e) of LMRDA to testify in response to a subpoena at a hearing conducted in connection with an investigation under section 601(a) of LMRDA concerning a possible violation of section 203 of the Act.

            Defendants refused to answer certain questions asked of them at the hearing on the grounds: (1) The privilege against self-incrimination in the Fifth Amendment to the Constitution does not permit the Government to compel them to testify on matters which might tend to incriminate them; (2) they had already testified to the grand jury concerning this matter; (3) the presence at the hearing of the Department of Justice attorney who conducted the grand jury proceedings; and (4) they were not informed of the factual foundation of the investigation.

            The court of appeals agreed with the district court judge that the Fifth Amendment privilege was not available to defendants because the subpoenas, as supported by the district court’s order to testify, made them immune from prosecution, and where immunity is granted the privilege ceases to exist.  The appeals court further held that the grant of immunity, as implemented by the district court’s order, was coextensive with the constitutional privilege of defendants not to incriminate themselves, and under U.S. Supreme Court precedent protected them against prosecution under both federal and state law.  Accordingly, the appeals court affirmed the district court’s judgment and its order to the defendants to testify before the Secretary of Labor’s representative pursuant to the subpoenas ad testificandum served upon them.

Wirtz v. Robb, 235 F.Supp. 913, 58 LRRM 2324, (E.D. Mich. 1964), aff’d, 346 F.2d 192, 59 LRRM 2481 (6th Cir. 1965).

            (Revised: Dec. 2016 and Jan. 2021)

610.305 EXTENT OF IMMUNITY

            Any grants of immunity to defendants or witnesses would now be done only in close coordination with the U.S. Attorney’s office of the U.S. Department of Justice.

            (Revised: Dec. 2016)

610.330 FEDERAL AND STATE IMMUNITY

            Two officials of a company meeting the employer definition in section 3(e) of the LMRDA appealed from an order of the U.S. District Court holding them guilty of contempt for refusing to obey that court’s order to answer questions asked them by a representative of the Secretary of Labor. They were served subpoenas ad testificandum during an investigation by the Secretary under section 601 of LMRDA.

            The two officials refused to answer the questions on the ground that their answers might incriminate them and that the district court erred in holding that they had been granted immunity from both Federal and State prosecution.    

            In affirming the judgment of the district court, the U.S. Court of Appeals for the Sixth Circuit stated that the grant of immunity implemented by an order of the district court it protects appellants from both Federal and State prosecution with respect to matters concerning which they have been ordered to testify.

Wirtz v. Robb, 235 F.Supp. 913, 58 LRRM 2324 (E.D. Mich. 1964 ), aff’d, 346 F.2d 192, 59 LRRM 2481 (6th Cir. 1965) (relying on U.S. Supreme Court decisions in Malloy v. Hogan, 378 U.S. 1 (1964) and Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964)).

            (Revised: Dec. 2016)

610.350 ALLEGEDABSENCE OF IMMUNITY

A party is not entitled to refuse to comply with a subpoena on the grounds that:

(1) He would be subject to State prosecution; or

(2) A subsequent finding that the subpoena was a nullity would remove immunity from prosecution.

Goldberg v. Battles, 196 F.Supp. 749, 48 LRRM 2820 (E.D. Pa. 1961), aff’d, 299 F.2d 937, 49 LRRM 2834 (3d Cir. 1962), cert. denied, 71 U.S. 817, 51 LRRM 2222 (1962).
See also Wirtz v. Robb, 235 F.Supp. 913, 58 LRRM 2324 (E.D. Mich. 1964 ), aff’d, 346 F.2d 192, 59 LRRM 2481 (6th Cir. 1965) (grant of immunity from federal prosecution would also immunize from state prosecution).

            (Revised: Dec. 2016)

610.360 LMRDA IMMUNITY GRANTED BY UNITED STATES ATTORNEY’ S SUBPOENA

The Supreme Court recently affirmed a decision of a United States district court dismissing an indictment of an employer for making unlawful payments to a union representative in violation of section 302 of the Taft-Hartley Act. The indictment was dismissed on the ground that it was based on the employer’s testimony before a grand jury after he was subpoenaed by a United States Attorney in accordance with the Memorandum of Understanding between the Departments of Justice and Labor.

The court held that the employer was immune because the matters under investigation at the time he was subpoenaed and his oral testimony before the Grand Jury pertained to violations of LMRDA.

United States v. Weber, 255 F.Supp. 40 (D.N.J. 1965), aff'd sub nom., United States v. Fisher, 384 U.S. 212 (1966).

            (Technical Revisions: Dec. 2016)

*610.365 IMMUNITY APPLIES ONLY IN “LABOR INVESTIGATION”

In United States v. Norton, 277 F.Supp. 1002 (D.N.J. 1967), union officials who had been indicted for violation of section 501(c) of the LMRDA and other offenses had been subpoenaed by the United States Attorney and had testified before the grand jury as to matters which were directly related to the charges in the indictment. They moved for dismissal of the indictment, arguing that the Department of Justice in its investigation was acting as agent for the Secretary of Labor pursuant to the 1960 Memorandum of Understanding between the two Departments and that, therefore, they were entitled to immunity under section 601(b) of the LMRDA and 15 U.S.C. 49.

The court dismissed the motion, holding that the immunity provisions relating to the proceedings before the Secretary of Labor were inapplicable since the investigation which led to the defendants’ testimony before the grand jury was entirely under the direction of the Justice Department. The court stated that the investigation was not a “labor investigation” since it involved “a number of diverse Federal violations, including extortion, embezzlement, perjury and obstruction of justice.”

The court distinguished the Norton case from United States v. Weber, 255 F.Supp. 40 (D.N.J. 1965), aff'd sub nom., United States v. Fisher, 384 U.S. 212 (1966)
(Manual Entry 610.360), on the ground that the earlier case involved a “labor investigation” by both BLMR (now OLMS) investigators and the Select Committee on Improper Activities in the Labor-Management Field, 85th Congress.
           
            See also United States v. Zirpolo, 288 F.Supp. 993 (D. N.J. 1968), rev’d on other grounds, 450 F.2d 424 (3d Cir. 1970), in which an investigation by LMWP (now OLMS) of possible embezzlement of union funds was transferred to the Justice Department after possible Hobbs Act violations were discovered. Labor Department compliance officers had interviewed two potential defendants before the case was turned over to the Department of Justice and before a grand jury was impanelled.

The grand jury indictment alleged violation of the Taft-Hartley and Hobbs Acts. The court ruled that since no LMRDA offenses under the jurisdiction of the Secretary of Labor were charged, and since no defendant had testified or produced evidence in response to a subpoena issued by or on behalf of the Secretary of Labor, the immunity provided by section 601(b) of the Act did not apply.
 
            (Revised: Dec. 2016)

610.400 EXISTENCE OF RECORDS

A subpoena duces tecum directing a corporation to appear before an Area Director of BLMR (now OLMS) with certain records of the corporation was upheld by the District Court in Georgia over the objection of the corporation that the records in question did not in fact exist.

The court held that the question of the existence of the subpoenaed records was one to be determined by the Area Director before whom the corporation officers were directed to appear by the subpoena and was, therefore, not properly before the court.
Goldberg v. Sewell Manufacturing Co., 210 F.Supp. 293, 51 LRRM 2224 (N.D. Ga. 1962).

            (Technical Revisions: Dec. 2016)

610.405 REPORTING RECORDS

A subpoena duces tecum, issued by the Secretary of Labor under section 601, was held not to be too broad where a union was required to produce records used in making reports filed under LMRDA. It was held not to be unreasonable to compel production of the records which the Act requires the union to keep for five years for the purpose of verification of reports submitted under the Act. Goldberg v. Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, 293 F. 2d 807, 48 LRRM 2868 (6th Cir.), cert. denied, 368 U.S. 938 (1961).  Accord International Brotherhood of Teamsters v. Goldberg 303 F. 2d 402 (D.C. Cir.), cert. denied, 370 U.S. 938 (1962).

           

(Technical Revisions: Dec. 2016)

COOPERATION WITH OTHER AGENCIES AND DEPARTMENTS

630.001 LMRDA, Section 607

In order to avoid unnecessary expense and duplication of functions among Government agencies, the Secretary may make such arrangements or agreements for cooperation or mutual assistance in the performance of his functions under this Act and the functions of any such agency as he may find to be practicable and consistent with law. The Secretary may utilize the facilities or services of any department, agency, or establishment of the United States or of any State or political subdivision of a State, including the services of any of its employees, with the lawful consent of such department, agency, or establishment; and each department, agency, or establishment of the United States is authorized and directed to cooperate with the Secretary and, to the extent permitted by law, to provide such information and facilities as he may request for his assistance in the performance of his functions under this Act. The Attorney General or his representative shall receive from the Secretary for appropriate action such evidence developed in the performance of his functions under this Act as may be found to warrant consideration for criminal prosecution under the provisions of this Act or other Federal law.

630.002 NOTICE OF MEMORANDUM OF UNDERSTANDING BETWEEN DEPARTMENTS OF JUSTICE AND LABOR RELATING TO THE INVESTIGATION AND PROSECUTION OF CRIMES AND CIVIL ENFORCEMENT ACTIONS UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (P.L. 86-257)

Whereas, the Labor-Management Reporting and Disclosure Act of 1959 (Public Law 86-257; 73 Stat. 519) imposes certain duties and responsibilities upon the Attorney General and Secretary of Labor with regard to prosecution of crimes arising under the Act and civil enforcement actions under the Act; and

Whereas, that Act, in section 601, imposes upon the Secretary of Labor the responsibility for conducting investigations of persons who have violated, or are about to violate, any provision of the Act (except Title I, or amendments made by this Act to other statutes); and

Whereas, that Act, in section 607, provides that the Secretary of Labor may make interagency agreements to avoid unnecessary expense and duplication of functions among Government agencies and ensure cooperation and mutual assistance in the performance of functions under the Act; and

Whereas, it is desirable and essential that areas of responsibility and procedures in connection with any investigations, prosecutions of offenses and civil enforcement actions arising under the Act should be the subject of formal agreement between the Departments;

It is hereby agreed and understood between the Department of Justice and the Department of Labor as follows:

1. Criminal Prosecutions.  All cases involving violation of the criminal provisions of the Act will be prosecuted by the Department of Justice.  Those cases investigated by the Department of Labor, hereinafter detailed, will be referred to the appropriate United States Attorney’s office(s) where the criminal violation(s) occurred or to the Criminal Division, Department of Justice, as provided in section 607.

2. Investigations of Matters Made Criminal by the Act.  Subject to specific arrangements agreed upon by the Department of Justice and the Department of Labor on a case by case basis, investigations under the Act will be conducted as follows:

(a) The Department of Labor will through its own staff investigate those criminal matters arising under:

1. Title II (Reporting by labor organizations, officers and employees of labor organizations and employers).
2. Title III (Trusteeship).
3. Section 501(c) (Embezzlement of union funds) of Title V.
4. Section 502 (Bonding) of Title V.
5. Section 503 (Making of loans and payment of fines) of Title V.
6. Section 504 (Prohibition against certain persons holding office) of Title V.
7. Section 602 (Extortionate picketing) of Title VI.
8. Section 610 (Deprivation of rights by force and violence) of Title VI.

(b) The Department of Justice will investigate those criminal matters arising under section 505 (Containing an amendment to section 302, Labor Management Relations Act, 1947, as amended) of Title V, and under delegation from the Secretary of Labor, section 501(c) (Embezzlement of union funds) of Title V, section 504 (Prohibition against certain person holding office) of Title V, and section 610 (Deprivation of rights by force and violence) of Title VI.

3. Notification.  Whenever either Department learns or is informed of any matter coming within the investigative jurisdiction of the other Department, as set forth above, it will notify such other Department in writing and furnish all information in its possession regarding the matter.

4. Exercise of other functions.  Exercise of delegated investigative authority by the Department of Justice pursuant to this agreement shall not preclude the Department of Labor from making inquiries for the purpose of administrative action related to the crime being investigated.  Nothing in this Memorandum of Understanding shall be construed to affect the investigative jurisdiction of the Department of Justice under other statutes.

5. Prosecution of Civil Enforcement Actions.  Any violations of the Act, which form the basis for civil enforcement actions, will be investigated by the Department of Labor.  Whenever the Department of Labor concludes that a civil enforcement action should be instituted, it will refer the case to the Department of Justice, with the request that suit be instituted on behalf of the Secretary of Labor, and will furnish the Department of Justice with all pertinent information in the possession of the Department of Labor.  Upon receipt of such request, the Department of Justice will institute and will conduct the civil enforcement action on behalf of the Secretary of Labor.  The Department of Justice will not institute any civil enforcement action under the Act except upon the request of the Department of Labor, nor will the Department of Justice voluntarily dismiss any action so instituted except with the concurrence of the Department of Labor.  The Department of Justice will dismiss any action so instituted upon the request of the Department of Labor.  Department of Justice attorneys will collaborate with the attorneys of the Office of the Solicitor of Labor in the preparation and, to the extent feasible, in the presentation of such actions in court. 

6. Section 504(a) Proceedings.  Subject to specific arrangements agreed upon by the Department of Justice and the Department of Labor on a case by case basis, the Department of Labor through its own staff will investigate matters arising under section 504(a) (B) of Title V, as amended, (judicial determination that a disqualified person’s service in any prohibited capacity would not be contrary to the purposes of the LMRDA).  Following the investigation, the Department of Labor will issue its views on the appropriateness of such a judicial determination under section 504(a) (B).  The Department of Justice will present the Secretary of Labor’s views before a federal sentencing judge or United States district court, by making all necessary appearances and filings.  Department of Justice attorneys will collaborate with the attorneys of the Office of the Solicitor of Labor in the preparation and, to the extent feasible, in the presentation of the Secretary’s views in court.  With respect to relief under section 504(a) by judicial reduction of the period of disability, the Department of Justice will seek the views of the Department of Labor prior to opposing or agreeing to a request for such relief by a criminal defendant or disqualified person.

7. Instructions.  So that the terms of understanding will be effectively performed, both Departments will issue instructions for the guidance of its officers, such instructions to be submitted for comment to the other Department prior to their issuance.

8. Periodic reviews of this agreement will be made to determine any adjustments which seem necessary based on experience under this Act.

Signed at Washington, D.C., this 18th day of January 2005.

 

/signed/                                                                        /signed/
           
John Ashcroft, Attorney General                               Elaine L. Chao, Secretary of Labor

            (Revised: Dec. 2016)

630.005 INVESTIGATION BY ATTORNEY GENERAL

The Attorney General is authorized under section 601 to investigate, in behalf of the Secretary of Labor, the incumbency of a business agent previously convicted of atrocious assault and battery, and to express his belief that the business agent is illegally occupying his position where it had not been 5 years since he had been relieved from conditions of parole.
Serio v. Liss, 189 F.Supp. 358, 364, 47 LRRM 2225 (D.N.J. 1960), aff'd, 300 F.2d 386, 40 LRRM 2111 (3d Cir. 1961).

          (Technical Revisions: Dec. 2016)

SERVICE OF PROCESS

640.001 LMRDA, SECTION 605

For the purposes of this Act, service of summons, subpoena, or other legal process of a court of the United States upon an officer or agent of a labor organization in his capacity as such shall constitute service upon the labor organization.

640.005 SERVICE UPON TRUSTEE

In an action by the members of a local to terminate the local’s trusteeship and for an accounting of the local’s funds, there was sufficient service where the marshal served a 1ocal union officer individually and as representative of the international because under section 605 of LMRDA service “upon an officer or agent of a labor organization in his capacity as such shall constitute service upon the labor organization.” Executive Board, Local Union No. 28, I. B. E. W. v. International Brotherhood of Electrical Workers, 184 F.Supp. 649, 653, 46 LRRM 2159 (D. Md. 1960).

            (Technical Revisions: Dec. 2016)

640.100 SERVICE ON “SHOP STEWARD”

Action against union was dismissed because process was served on the union’s grievance man, or shop steward, and since he was not an officer or agent of the union within the meaning of section 605, service of such process was held not to constitute valid service upon the labor organization.
Jackson v. Local 2497, United Steelworkers, 56 LRRM 2903 (W.D.N.Y. 1964).

            (Technical Revisions: Dec. 2016)

MISCELLANEOUS PROVISIONS

651-659           (Numbers Reserved)

660                  Effect of LMRDA on State and Other Federal Laws

661-669           (Numbers Reserved)

670                  Extortionate Picketing

671-674           (Numbers Reserved)

675                  Crimina1 Contempt Limitation

676-679           (Numbers Reserved)

680                  Applicability of Administrative Procedure Act

681-684           (Numbers Reserved)

685                  Separability Provisions

686-699           (Numbers Reserved)

EFFECT OF LMRDA ON STATE AND OTHER FEDERAL LAWS

660.001 LMRDA, SECTION 603

(a) Except as explicitly provided to the contrary, nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization, or of any trust in which a labor organization is interested, under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State.

 

(b) Nothing contained in titles I, II, III, IV, V, or VI of this Act shall be construed to supersede or impair or otherwise affect the provisions of the Railway Labor Act, as amended, or any of the obligations, rights, benefits, privileges, or immunities of any carrier, employee, organization, representative, or person subject thereto; nor shall anything contained in said titles (except section 505) of this Act be construed to confer any rights, privileges, immunities, or defenses upon employers or to impair or otherwise affect the rights of any person under the National Labor Relations Act, as amended.

SECTION 604

Nothing in this Act shall be construed to impair or diminish the authority of any State to enact and enforce general criminal laws with respect to robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, or assault which inflicts grievous bodily injury, or conspiracy to commit any of such crimes.

660.005 STATE LAWS NOT PREEMPTED

When Congress meant preemption to flow from the Act, it expressly so provided. Sections 205(c) and 403 are express provisions excluding the operation of state law, supplementing provisions for new federal legislation. In addition, two sections of the Act affirmatively preserve the operation of state laws. That section 504(a) was not to restrict state criminal law enforcement regarding the crimes enumerated as federal bars to union office is provided by section 604. To make the matter conclusive, section 603(a) is an express disclaimer of preemption of state laws regulating the responsibilities of union officials except where such preemption is expressly provided in the Act. De Veau v. Braisted, 363 U.S. 144, 156-57, 46 LRRM 2304 (1960).

 

NOTE:
Subsequent cases taking the view that the LMRDA does not diminish the States’ authority to enforce their own laws include:
Fitzgerald v. Catherwood, 388 F.2d 400, 403-06, 67 LRRM 2232 (2d Cir. 1968), cert. denied, 391 U.S. 934 (1968).
Applegate v. Waterfront Commission of New York Harbor, 184 F.Supp. 33, 35, 46 LRRM 2983 (S.D.N.Y. 1960).
Bell v. Waterfront Commission of New York Harbor, 279 F.2d 853, 856, 46 L.R.R.M. (BNA) 2448 (2d Cir. 1960).
United States v. Haverlick, 195 F.Supp. 331, 332, 49 LRRM 2006 (N.D.N.Y. 1961), aff'd, 311 F.2d 229, 52 LRRM 2193 (2d Cir. 1963).

            (Technical Revisions: Dec. 2016)

 

660.100 RAILWAY LABOR ACT

The Labor-Management Reporting and Disclosure Act of 1959 in no way changes the Railway Labor Act. However, Titles I - VI of LMRDA include within the scope of their coverage labor organizations (including officers thereof) subject to the Railway Labor Act.

EXTORTIONATE PICKETING

670.001 LMRDA, SECTION 602

(a) It shall be unlawful to carry on picketing on or about the premises of any employer for the purpose of, or as part of any conspiracy or in furtherance of any plan or purpose for, the personal profit or enrichment of any individual (except a bona fide increase in wages or other employee benefits) by taking or obtaining any money or other thing of value from such employer against his will or with his consent.
(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
670.005 PERSONAL PROFIT
The section 602(a) prohibition of extortionate picketing is enforced by criminal proceedings upon prosecution by the Department of Justice, and what constitutes “for the personal profit of any individual” as that phrase is used in the section is a matter for determination by the Department of Justice.

CRIMINAL CONTEMPT LIMITATION

675.001 LMRDA, SECTION 608

No person shall be punished for any criminal contempt allegedly committed outside the immediate presence of the court in connection with any civil action prosecuted by the Secretary or any other person in any court of the United States under the provisions of this Act unless the facts constituting such criminal contempt are established by the verdict of the jury in a proceeding in the district court of the United States, which jury shall be chosen and empaneled in the manner prescribed by the law governing trial juries in criminal prosecutions in the district courts of the United States.

(Technical Revisions: Dec. 2019)

APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT

680.001 LMRDA, SECTION 606

The provisions of the Administrative Procedure Act shall be applicable to the issuance, amendment, or rescission of any rules or regulations, or any adjudication, authorized or required pursuant to the provisions of this Act.

SEPARABILITY PROVISIONS

685.001 LMRDA, SECTION 611

If any provision of this Act, or the application of such provision to any person or circumstances, shall be held invalid, the remainder of this Act or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.
See Manual Entry 551.005.

           

(Technical Revisions: Dec. 2016)

 

 

Last Updated: 1-19-21