Elections and Removal

(Pre-1974 entries numbered 400-469 were withdrawn; contents incorporated in 29 CFR 452.)

470      Protesting Elections: In General
471      Who May Sue; When Suit May be Brought
472      Initiating Available Union Remedies
473      Union Remedies Must be Invoked    
474      Complaint to Secretary
475      Investigation by Secretary
476      Suit by Secretary
477      Outcome May Have Been Affected
478      Rerun Elections
479-489   (Numbers Reserved)
490      Removal of Officers: In General
491      (Number Reserved)
492      Adequacy of Removal Procedures
493      Complaint – Where Removal Procedures Adequate but Violated

 

PROTESTING ELECTIONS IN GENERAL:  REMEDIES AVAILABLE

470.300 SECRETARY CAN SECURE INJUNCTION TO PROTECT COMPLAINANT

            Action brought by Secretary of Labor under section 402(b) of LMRDA to set aside an election held by defendant union. Defendant union took disciplinary steps against complainant and the Secretary moved for a preliminary injunction to enjoin defendant union from such conduct. Issue was whether, pending a decision on the merits, defendant union should be allowed to follow a course of conduct towards complainant which is incompatible with the rights, responsibilities and benefits normally enjoyed as a result of union membership.

            The union contended that section 402 of LMRDA spells out in detail the procedures required in connection with setting aside an election of union officers, and stresses that there is no express grant of authority therein to give the relief now sought by the Secretary nor does the court have jurisdiction to grant such relief. This omission, the union contended, demonstrated that Congress intended that redress must be sought by private action brought under Title 1 of the Act.

            The court held that the fact that LMRDA contains no express or implied authority to grant a preliminary injunction is not decisive. The court was satisfied that it had the authority to grant the relief sought in the exercise of its equitable jurisdiction independent of statutory enactment.

            The court stated:

            The public interest is involved as well as private rights. As a condition precedent to the bringing of an action by the Secretary of Labor to set aside an election of union officers a member must submit a complaint. If by doing so he will be left unprotected while the issue raised by his complaint and the ensuing litigation await final determination, it is entirely probable that potential complainant will consider quiet acceptance of the situation the better part of wisdom rather than hazard a possible loss of employment opportunities, discipline or other forms of discrimination. If this should occur, the Secretary of Labor’s enforcement responsibilities would be thwarted and the public interest harmed. Use of the injunctive process is warranted to protect the general welfare.

            The Secretary’s application for a preliminary injunction was granted.

Wirtz v. Local 1752, International Longshoremen’s Association, 56 LRRM 2303 (D. Miss. 1963).

            (Revised: Jan. 2021; Technical Revisions: Dec. 2016)

WHO MAY SUE - WHEN SUIT MAY BE BROUGHT

471.002 PRE-ELECTION SUITS

            The remedy provided in the Act for challenging an election already conducted is exclusive. However, existing rights and remedies to enforce the constitution and bylaws of labor organizations before an election has been held are unaffected by the election provisions. Section 603 of the 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. 
29 CFR 452.138(b)

471.005 OTHER REMEDIES AVAILABLE BEFORE ELECTION

            An election, once it has been held can be challenged only through the methods provided in section 402 of the Act.  However, any existing methods of enforcing the constitution and bylaws of a labor organization can be applied before an election is held.  This includes any right or remedy available to the union member under any Federal law or law of any State.

            (Technical Revisions: Dec. 2016)

471.006 INTERVENTION BY UNION MEMBERS IN SECRETARY’S SUIT

            See Manual Entry 476.500.

471.100 STATE COURT’S JURISDICTION

            At the suit of candidates who were not allowed to have their names on the local union’s ballot, the court granted an injunction restraining the holding of the election. The court said that it had jurisdiction of the case because the suit was brought on the basis of the constitutions of the international and the local. The LMRDA was held not to have preempted the field because existing rights and remedies are preserved by the Act. Because of the need for speed the relief was granted despite the fact that the plaintiffs had not exhausted their internal remedies.           

            The court rejected the argument that the injunction should not issue because the plaintiffs had the alternative of complaining to the Secretary of Labor after the election.  The court said that the right to run for office was a valuable right that should be protected by the court.

Beiso v. Robilotto, 212 N.Y.S.2d 504, 506-07, 47 LRRM 2590 (Sup. Ct. N.Y. 1960).

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

471.200 NO PRE-ELECTION SUIT UNDER TITLE IV   

            A candidate for union office whose name is not on the ballot, allegedly in violation of the Act, is not entitled to a restraining order enjoining a union from conducting the election.  No irreparable harm would be suffered by the candidate because an improperly run election can be set aside by suit of the Secretary of Labor after the election is held.

Rarick v. United Steelworkers, 190 F. Supp. 158, 159, 46 LRRM 2101 (W.D. Pa. 1960). See also Meyer v. Bottone, 328 A.2d 166, 87 LRRM 3228 (Pa. 1974).

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

471.201 DELEGATE ELECTION

            A union member brought a suit alleging in part that the General President had appointed delegates whom Title IV of the Act requires be elected.  The court declined to take jurisdiction of the case saying that this is a violation that can be the grounds for suit only by the Secretary of Labor.

Penuelas v. Moreno, 198 F. Supp. 441, 449, 48 LRRM 300543 (S.D. Cal. 1961).

            (Technical Revisions: Dec. 2016)

471.210 PROTECTION OF RIGHT TO VOTE IN TITLE I DOES NOT AUTHORIZE
FEDERAL COURTS TO DISREGARD LIMITATIONS IMPOSED BY TITLE IV          

            In Calhoon v. Harvey, 379 U.S. 134, 57 LRRM 2561 (1964), the U.S. Supreme Court held that union members could not bring in federal court claims regarding eligibility for union office under LMRDA Sections 101(a)(1) (which guarantees equal voting rights to union members) and 102 (which authorizes federal courts to enforce rights guaranteed by section 101).  The Court held that members must pursue such claims exclusively through the processes provided for in LMRDA Title IV, meaning a complaint with the Secretary of Labor after exhausting any available internal union remedies.

            In 1984 the U.S. Supreme Court decided in Local 82, Furniture & Piano Moving v. Crowley, 467 U.S. 526, 116 LRRM 2633 (1984), that the “relief (including injunctions) as may be appropriate” authorized by Title I did not permit courts to supervise a union officer election based on claims of Title I violations.  The Court in Crowley found that Congress clearly intended the Secretary of Labor, not the courts, to supervise elections.  However, the Court added that when LMRDA Title I violations were  “easily remediable under that Title without substantially delaying or invalidating an ongoing election,” a court could order such a remedy.  The example given by the Supreme Court was a court order, during an ongoing election, for a union to provide ballots to union members from whom the union had discriminatorily denied ballots.

            The general standards followed by most courts applying Calhoon and Crowley when dealing with claims of Title I violations involving elections is that when the claim involves an aspect of the election that is specifically prescribed by Title IV (e.g. rules of eligibility for office, distribution of campaign literature) or seeks a remedy that would delay or affect the validity of an election, the court will require the claimant to use the processes of Title IV.  The most common type of LMRDA Title I claims, involving elections, in which courts will actually grant the claimant a remedy are claims that the union discriminatorily denied the claimant a Title I right like the right to vote or right to nominate a candidate, and the union can extend that right to the claimant without delaying the election.   

            (Revised: Dec. 2016 and Jan. 2021)

INITIATING AVAILABLE UNION REMEDIES

472.100  REASONABLE TIME

            Section 402(a) does not specify any time limitation within which a union member must initiate his internal union remedies.  However, in view of the Congressional intent that election protests be expeditiously resolved, a union member should initiate available internal union remedies within a reasonable time (1) after the election has been held or (2) after he could reasonably become aware of some violation in the conduct of the election.  What a reasonable time would be in a particular case would depend upon the facts in that case. 

472.105 DELAY IN FILING PROTEST

            Where a local union member waited more than a year after the election before initiating his internal union remedies to protest the election in a union where the constitution and bylaws required such remedies to be initiated within 30 days; and where his delay was not caused by fraud or misrepresentation on the part of the union or any of its officers, it is the Department’s position that his internal protest was not timely filed within the meaning of section 402(a).

472.200 CONFLICT IN UNION PROCEDURES

         Where the International Constitution requires election complaints to be initiated within 48 hours of election and addressed to the local union, and the local bylaws require an election complaint to be made, not to the local but to the International President, within 48 hours of the election, and a complainant following the procedure of the local bylaws, complained to the International President within the allotted time (a copy of which complaint was received by the local 5 days after the election), the local union cannot claim that the complainant has not timely invoked the appeals procedure because a union may not hide behind confusion which it had created itself.  Even when a union is not the cause of confusion, courts have often excused member protests that miss deadlines or otherwise fail to fully comply with the union’s constitution or bylaws.  See, e.g., Donovan v. CSEA Local Union 1000 AFSCME, 761 F.2d 870, 119 LRRM 2249 (2d Cir. 1985); Donovan v. CWA Local 3122, 740 F.2d 860, 117 LRRM 2153 (11th Cir. 1984); Reich v. UBCJA, Civ. A. No. 92–2134 (JHG), 1993 WL 441967, 144 LRRM 2370 (D.D.C. Sept. 22, 1993).

            (Revised: Dec. 2016; Technical Revisions: Jan. 2021)

            Complainant attempted to follow the local union appeals procedure.  He was misled by the fact that his local bylaws were in conflict with the International Constitution.  Even though the International Constitution would ordinarily by controlling, we would consider his action to have properly invoked his internal remedies and he is not barred from filing an actionable complaint. 

472.300  PROCEDURE WHERE UNION IN TRUSTEESHIP

            Where a local was under trusteeship at the time an election was challenged, it was proper for a member to make his initial protest of the election to the trustee rather than in the manner prescribed by the local bylaws since, at that time, the trustee was solely responsible for all activities of the local, including the conduct of the election.

See Manual Entry 323.200.

UNION REMEDIES MUST BE INVOKED

473.001 LMRDA, SECTION 402(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,...

473.005 EFFECT OF INVOKING REMEDIES

            It would appear that the Congressional intent of section 402 is to give the labor organization itself the initial opportunity to decide whether an election has been properly conducted under the constitution and bylaws of the labor organization and the Act prior to conferring jurisdiction of the Secretary of Labor.  However, if the labor organization has not made a final determination of the complaint filed with it within three calendar months after the internal remedies have been invoked by a member, the complainant may file a complaint with the Secretary of Labor as provided by section 402(a)(2).  It thus appears that the provisions of section 402(a)(1) and (2) are conditions precedent to the remaining portions of section 402, which become applicable only after a formal complaint has been filed with the Secretary.

473.007 FAILURE TO HOLD ELECTIONS

            Where a union has not held an election of officers within the statutory maximum period, a union member must still exhaust his internal remedies as provided in section 402 of the Act, or have invoked such internal remedies without having obtained a final decision within three calendar months after such invocation, before filing a complaint with the Secretary.
           
            If the union’s ordinary election appeals procedures are inappropriate in this type of situation, the member’s internal appeal may take the form of a request to the officer or governing body of the union which has power to order an election or other appropriate remedial action.

473.100 NO SPECIFIC ELECTION APPEALS PROCEDURES

            In the absence of specific election appeals procedures, section 402 of the Act requires the invocation of whatever trial and appeal procedure is available under the governing constitution and bylaws.

473.102 REVIEW BY PARENT BODY

            Section 402 of the Act requires as a condition of filing a complaint concerning an election already held that the complainant shall have taken steps to secure an administrative review from the parent body, if such a review is available under the constitution and bylaws of the union.

            (Technical Revisions: Dec. 2016)

473.105 WAIVER BY PARENT BODY

            Where the International Executive Board of a labor organization accepts an election complaint from a union member who has not followed the proper procedure for exhausting his internal union remedies and rejects such complaint on its merits, the International Executive Board waives any right to complain about that member’s failure to follow the procedure.

            (Revised: Dec. 2016)

473.200 APPARENT FUTILITY

          Under section 402(a), a member’s challenge to an election is timely if it is filed with the Secretary either one month after the member has exhausted all of the union’s remedies under its constitution and by-laws or one month after the member has pursued the union’s remedies for three months without obtaining a final decision. There is no third option permitting a member to pursue internal remedies for longer than four months and then file without exhausting all of them because the last one, an appeal to the union’s biennial convention, would take a long time. See Chao v. Local 2568, American Federation of State County and Municipal Employees, No. 06-15769, 2007 WL 1686519, 182 LRRM 3149 (E.D. Mich. June 11, 2007).

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

473.300 SUBSTANTIAL COMPLIANCE WITH APPEALS PROCEDURE

          Where the constitution of an international union provides that an election complaint must first be filed with a local’s Secretary-Treasurer, then appealed to the Joint Council of the local, and finally to the international, a complaint made to the Joint Council, with a copy to the Secretary-Treasurer and to the international, properly invoked the internal remedies available, and a timely complaint to the Secretary made after no answer had been received from the union within three months would be entertained. 

See Shultz v. Local 1291, International Longshoremen’s Association, 429 F.2d 592, 598, 74 LRRM 2726 (3d Cir. 1970).

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

*473.310 APPEAL TO AN EXECUTIVE BOARD

            Where the union constitution required that appeals be made to the district executive board, an appeal which was sent to some of the individual members of the board, including the international president, the international executive board member of the district, the board’s secretary-treasurer, and the board member who represented the complaining member’s division, was deemed to be equivalent to an appeal to the board as an entity. The United States Court of Appeals for the Sixth Circuit stated that “To hold otherwise would be to impose a technical burden which would trap practically every union member.” The court also noted that the complaining member had explicitly requested in his letter of appeal that the union officials see that the protest was processed through the proper channels, and that their failure to follow instructions would not be used to frustrate the complaining member’s candidacy. 

Hodgson v. District 6, United Mine Workers, 474 F.2d 940, 945,  72 LRRM 2766 (6th Cir. 1973). 

            (Technical Revisions: Dec. 2016)

473.400 WHEN THREE MONTH PERIOD BEGINS

            The three month period during which a complainant must wait for an answer after he has invoked his internal union remedies and before he may file a valid complaint with the Secretary (unless he receives a final decision) runs from the date the complainant begins to invoke his internal remedies (i.e., by lodging proper complaint with proper party in accordance with the union’s constitution and bylaws).

473.500 RESPONSE TO COMPLAINANT

            A complainant who has filed a protest with the International President with regard to his name not being placed on the election ballot has not received a final decision with respect to such protest by the mere fact that a letter to the local from the International President concerning such protest is read at a regular meeting of the local at which said complainant was present. Such a letter does not constitute a reply to the complainant for purposes of carrying out his internal union appellate procedure.

473.510 UNION ENTITLED TO 3 MONTHS

            The fact that more than 14 days have elapsed without any relief having been granted does not exhaust the remedies available, if the constitution and bylaws set forth a minimum waiting period of at least 14 days, and no maximum. It would appear that the board of directors of the union must be permitted the minimum statutory time within which to resolve the issue internally, unless it renders a final decision in a shorter time. The complainant must follow through on the exhaustion of his remedies within the union for three calendar months after he initially invoked them (unless a final decision is reached in a shorter time) before he may properly file a complaint with the Secretary.

473.600 TIMELINESS OF COMPLAINT

            Because certain members of a local union were declared ineligible for union office, the incumbent officers were unopposed, the executive board of the local then passed a resolution in advance of the election date declaring that an election was unnecessary and that the incumbents were elected.  Neither the membership nor the disqualified candidates were advised of this resolution until the previously established election date.  The disqualified candidates immediately invoked their post-election internal remedies by a complaint to the local union treasurer, who refused to refer it to the executive board on the ground that it was not filed within the specified period after the “election” (i.e., the date of the resolution declaring the incumbents elected), as is required by the union’s constitution and bylaws.  Appeal was taken to a higher body in the union, but when no decision was received within three calendar months, the disqualified candidates filed a complaint with the Secretary within one calendar month thereafter.
           
            It is the opinion of this Office that, since complainants were not advised of the so-called “election” (i.e., resolution), they had a right to wait until after the original election date before invoking their internal remedies.  Their complaint to the Secretary was timely.

473.650 RIGHT TO PROTEST NOT LIMITED

            A clause in the bylaws of a local union provides that any voting member has the right to challenge the validity of an election.  If this provision is intended to prohibit any other member from filing an internal protest regarding an election, it would violate section 402(a) of the LMRDA which guarantees every member in good standing, whether he participates in the election or not, the right to protest his union’s election of officers.

COMPLAINT TO SECRETARY

474.001 LMRDA, SECTION 402(a)

            A member . . . 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). . .

474.002 TIME FOR FILING COMPLAINT

            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 thereafter in which to file his complaint. 
29 CFR 452.135(b)

474.005 ENFORCEMENT PREREQUISITES—COMPLAINT CHARGING VIOLATION OF PROVISIONS OF SECTION 401

            Violation of any of the provisions of section 401 may serve as ground for a complaint filed by a member with the Secretary under section 402, as a prerequisite for suit by him to set aside the election.

474.100 POST-ELECTION COMPLAINT MUST GO THROUGH SECRETARY

            Where a union member is seeking a post-election remedy for an alleged improper election, a court has no jurisdiction to try the case where the complaining member has not exhausted his union remedies or made application for relief with the Secretary of Labor.
 See Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 544-45, 116 LRRM 2633 (1984); see also Porch-Clark v. Engelhart, 930 F. Supp. 2d 928, 195 LRRM 2301 (N.D. Ill. 2013) (state law claims challenging union election are preempted by Title IV of the LMRDA).

            (Technical Revisions: Dec. 2016)

474.101

            A union member brought an action because he was denied the right to be a candidate for office, allegedly in violation of the LMRDA. Because of his failure to provide bond, the court refused to issue a temporary restraining order to prevent the holding of the election. After the holding of the election the court dismissed the case saying that after an election has been held the Secretary of Labor has exclusive jurisdiction. For the union member to get relief he must make a complaint to the Secretary of Labor, who, in turn, must decide whether or not to institute a cause of action against the union.
Gammon v. International Association of Machinists, 199 F. Supp. 433, 437, 49 LRRM 2282 (N.D. Ga. 1961).

            (Technical Revisions: Dec. 2016)

474.102

            Once an election has been held, union members who were denied the right to vote in violation of the Act can obtain relief only through proper application to the Secretary of Labor.  A Federal Court has no jurisdiction to grant post-election relief except at the suit of the Secretary of Labor.

Acevedo v. Bookbinders and Machine Operators Local No. 25 Edition Bookbinders of N.Y. Inc., 196 F. Supp. 308, 314, 48 LRRM 3005 (S.D.N.Y. 1961).

            (Technical Revisions: Dec. 2016)

*474.200 COMPLAINT BY SUSPENDED OR EXPELLED MEMBER

            A person who has been suspended or expelled from membership is not necessarily barred from filing a complaint under section 402.  The Secretary has the authority to examine the circumstances of the suspension or expulsion.  If it is evident that the member was suspended or expelled in violation of section 101(a)(5), or for exercising or attempting to exercise rights guaranteed by the Act, the Secretary may treat the individual as a member in good standing for the purpose of receiving the complaint.

474.202 ANY MEMBER MAY FILE COMPLAINT

            Defendant union in a suit brought by the Secretary of Labor to set aside an election sought dismissal of the action on the grounds that the complaint failed to allege that the complainant was either a candidate for office or a person deprived of his rights under section 401(e).  The court, after specifically finding that the complainant was a member in good standing of the defendant local and that he  had been improperly suspended and denied his membership rights at the time of the contested election, rejected the defendant’s motion stating:

“... the defendant asks this court to limit the class of complainants in suits of this sort not only to members, as the statute requires but to the actual members affected by the alleged wrongful conduct.  If Congress had wished the class of complainants to be so limited, it might have easily so stated.  Instead the statute is framed so as to allow any member of the union involved to commence proceedings with the Secretary of Labor. 
“A statutory construction which invites the filing of complaints by all members of the union involved comports with the broad purpose of Title IV of the Labor-Management Reporting and Disclosure Act, which is to safeguard and improve union electoral processes.” 

Wirtz v. Local Union No. 57, 57-A, 57-B, & 57-C, International Union of Operating Engineers, AFL-CIO, 293 F. Supp. 89, 91 (D.R.I. 1968); see also Donovan v. Air Transport, Dist. Lodge No. 146, 754 F.2d 621, 118 LRRM 2969 (5th Cir. 1985) (listing, and agreeing with, decisions “permit[ting] members who were not affected by a violation of section 401 to raise and challenge those violations in order to effect Congress's desire to safeguard and improve the union electorial process”).

            (Revised: Dec. 2016)

474.205 EFFECT OF SUSPENSION OF ELECTION RIGHTS ON OTHER MEMBERSHIP RIGHTS

            The action of a union in disciplining several members by suspension of their election rights for two years, while specifically continuing their “good standing” in the union, does not operate as a bar to the acceptance of an election complaint from such members by the Secretary.  Since the members in question have not had their good standing suspended by the union, they are considered to be members for purposes of filing a complaint.

474.305 REMEDIES MUST BE INVOKED AFTER ELECTION

            There is nothing in Title IV of the Act that requires a union member to wait until an election has been held before invoking internal remedies. However, once the election is completed the member must again invoke his internal remedies. Then, if he has either exhausted his internal appeal procedures or has not received a final decision within three months after initiating his post-election complaint, and the member wishes to file a complaint with the Secretary, he must do so within one calendar month. Failure to file within one calendar month renders a complaint untimely.

474.400 COMPLAINT BY AN ATTORNEY

            Once a member of a labor organization has fulfilled the conditions outlined in sections 402(a)(1) and (2) of the Act, an unqualified right to file a complaint with the Secretary accrues to him. The terms of the Act do not appear to prohibit a member from employing an attorney as his agent to file a written complaint on his behalf after the right to file such complaint has definitely accrued to the member by reason of his having satisfied the prerequisites of the aforementioned section.

474.500 COMPLAINT AFTER FOUR MONTHS

            In the absence of a final decision by the union, a complainant’s formal complaint to the Secretary of Labor was received six months after his initial protest to the local (or two months after the four month appeal period provided under section 402(a)(2) of the Act).  It was concluded that, since the complainant had not complied with section 402(a)(2) of the Act, the Department has no enforcement jurisdiction over the matter.

474.510 COMPLAINT MUST BE RECEIVED WITHIN ONE CALENDAR MONTH

            The date of receipt of a formal complaint to the Secretary is controlling in deciding whether or not the complaint has been timely filed.  Thus where a complainant invoked his internal union remedies on September 26, 1962 and, not having obtained a final decision within three calendar months thereafter, mailed a formal letter of complaint to the Secretary on January 25, 1963 which was received on January 28, 1963, it was concluded that the complaint was untimely filed.

474.520 COMPUTING CALENDAR MONTH

            For purposes of filing an election complaint with the Secretary of Labor under section 402(a) a calendar month has been held to mean “the time from any day of any of the months . . . to the corresponding day (if any; if not to the last day) of the next month.”  See Odom v. Odom, 272 Ala. 164, 165, 130 So.2d 10, 10 (1961) (quoting Webster’s New International Dictionary); WHD Opinion Letter FLSA2019-13 (Sept. 10, 2019) (and authorities cited therein).  Further, it has been held that where the last day for the filing of a petition falls on a Sunday or a legal holiday, filing on the next day which is neither a Sunday or a legal holiday, is timely.  See Union Nat. Bank of Wichita, Kansas v. Lamb, 337 U.S. 38, 40 (1949).

            In one instance the Department accepted a complaint and filed a case on November 27, 1963. In this case a union member who received a final decision from his union denying his election protest on August 29, 1963, mailed his complaint pursuant to section 402(a) to the Secretary by regular mail on the evening of September 26, 1963, from Sparks, Nevada. The letter was received by the Department by, at least, Monday, September 30, 1963, 31 days after the complainant had received his union’s final decision.  The Department might have received the letter on Sunday, September 29, 1963 since mail was delivered on that day but was not processed, i.e., dated, and there was no way to identify a particular piece of mail with respect to whether it was received on Sunday or Monday.

            However, in view of the rule of law stated above, it was irrelevant whether the letter was received on September 29, 1963, which was a Sunday, or September 30, 1963, since, in accordance with the Lamb rule, the time for filing in this case ends on Monday, by which day the complaint was definitely received.  Therefore, the complaint was held to be timely because receipt on Monday would come within the calendar month.

See Wirtz v. Local Union 169, International Hod Carriers’, Building and Common Laborers’ Union, 246 F. Supp. 741, 750-51, 60 LRRM 2540 (D. Nev. 1965).

            (Revised: Dec. 2016 and Jan. 2021)

474.530 COMPLAINT AFTER RECEIPT OF FINAL UNION RULING

            At a nominating convention prior to an election, a union member protested a constitutional provision making payment of quarterly dues in advance for one year a condition of eligibility for office. The union rejected the protest. The member then brought a private suit, under Title I, to enjoin the holding of the election. The District Court rejected the member’s request for an injunction and ruled adversely on the merit of his contention. (The Court of Appeals later dismissed the pre-election complaint for want of jurisdiction.)
           
            After the election, the member again invoked his internal remedies to protest the constitutional provision. After he received a final answer rejecting his post-election protest, he filed a complaint with the Secretary. The Secretary sued to set aside the election.  Defendant union moved to dismiss on the grounds that the complaint was not filed within one calendar month of the denial of the pre-election protest by the union and/or the decision of the District Court.  It argued that one or the other of those actions was a final disposition of the matter and further complaint to the union after the election was unnecessary.
           
            The court held that a member must pursue every opportunity to allow the union to settle a grievance internally before coming to the Secretary and that he may not be penalized for so doing.  Since the complaint was filed with the Secretary within one calendar month after complainant received a final answer rejecting his post-election protest, the court held that it was timely filed.

Wirtz v. Great Lakes District No 47, International Organization of Masters, Mates and Pilots, 240 F.Supp. 859, 59 LRRM 2085 (N.D. Ohio 1965).

            (Technical Revisions: Dec. 2016)

INVESTIGATION BY SECRETARY

475.001 LMRDA, SECTION 402(b)

            The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied. . .

475.005 SECRETARY MAY INVESTIGATE WITHOUT COMPLAINT

            Section 402(b) provides that the Secretary shall investigate any timely complaint filed with him.  This mandatory duty to investigate complaints in no way affects the Secretary’s discretionary power to investigate, at any time, under section 601(a). 

But see the regulations at 29 CFR 452.4.

            (Technical Revisions: Dec. 2016)

475.007 SECRETARY’S INVESTIGATORY POWERS

            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 has 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, 887, 53 LRRM 2783 (D. Conn.), aff'd, 321 F.2d 445, 53 LRRM 2864 (2d. Cir. 1963).

            (Revised: Jan. 2021; Technical Revisions: Dec. 2016)

475.200 IMPOSITION OF TRUSTEESHIP DOES NOT PRECLUDE INVESTIGATION

            The Office is not precluded from proceeding with investigation of a timely received election violation complaint in a situation where the International has imposed a trusteeship as a consequence of the questioned election. A trusteeship imposed for the purpose of frustrating investigation or prosecution of election violations will not be condoned. On the other hand, it is recognized that use of such control by a parent organization as a device for correcting election abuses may well prove a valuable tool in aid of a policy of voluntary compliance.

475.300 EXAMINING SEALED BALLOTS

            A substantial number of mail ballots received by a union in a mail ballot election were not counted because, according to the union, they were not received until after the election deadline. Investigation revealed that the ballots had been received by the post office before the deadline, but they had not been picked up by the union.  Since the ballots had been cast by persons who were eligible to vote, and therefore should have been counted, and because the number involved could have affected the outcome of the election, the Department opened the sealed ballots.
           
            Ballots, whether sealed or unsealed, are part of the election records required to be maintained under section 401(e). Since the Secretary has authority under section 601 to examine these records, compliance officers would be authorized to open such ballots. As a matter of policy, this authority will normally be exercised only if the ballots in question were timely cast by eligible voters, if the secrecy of the ballots can be preserved and if the number of votes involved could have affected the outcome of the election.

            (Technical Revisions: Dec. 2016)

REMEDIAL ACTION

475.400    COMPLIANCE AFTER COMPLAINT FILED WITH SECRETARY

            The United States District Court for the Eastern District of New York ruled on February 26, 1962, that, in an action brought by the Secretary of Labor under section 402(b) of the LMRDA charging that a Local Union did not hold an election within the period of time required by its constitution, it is not a sufficient affirmative defense that the Union has since held an election, if the election was held after a complaint was filed with the Secretary.

The court says:

“It would be an answer to the complaint that an election had in fact been held within the three-year period provided by Sec. 401(b) of the LMRDA; or such lesser period of time as provided by the constitution and by-laws of the defendant local labor organization ... Is it an answer to such a charge that the violation was cured before the action was instituted though held after the three-year period (or lesser period provided by its constitution and by-laws)?  I think not.
                                                                             ***
“The filing of the complaint (with the Secretary) under the procedure outlined by Congress sets in operation the governmental machinery. To that point the LMRDA gives the labor organization the opportunity to correct and remedy the violations. Beyond that point, the right of the government to investigate the breakdown of the democratic processes is clear. It is not within the power of the labor union to deprive the government of its right by compliance.” 

Goldberg v. Amalgamated Local Union No. 355, 202 F.Supp. 844, 846, 49 LRRM 2715 (E.D.N.Y. 1962); see also Hodgson v. Bakery & Confectionery Workers Local 400, 491 F.2d 1348, 1353, 85 LRRM 226773  (9th Cir. 1974) (“The Secretary's right to the statutory remedy of a supervised election cannot be defeated by any subsequent independent action of the union”). Cf. McLaughlin v. Lodge 647, Int'l Broth. of Boilermakers, Iron Ship Builders, Blacksmiths Forgers & Helpers,  876 F.2d 648, 131 LRRM 2529 (8th Cir.1989) (holding that district court had authority to refuse to order a supervised election because of an “intervening, untainted election” conducted by the union).

            (Revised: Dec. 2016)

475.420    INTERNATIONAL’S RIGHT TO VOID ELECTION

            While a court must find that a violation of section 401 may have affected the outcome of an election in litigation brought by the Secretary before the election can be set aside, an international union is not subject to such a restriction, but has the right to set aside elections without reference to the effect of a violation on the outcome, provided, that this is in accord with its constitution and bylaws and that the same practice is followed in all similar election appeals.

SUIT BY SECRETARY

476.001    LMRDA, SECTION 402(b) FILING SUIT

           The Secretary shall investigate a member’s timely complaint challenging an election. If the Secretary “finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe.”  29 U.S.C. 482(b).

           (Revised: Jan. 2021; Technical Revisions: Dec. 2016)

476.002    VIOLATION “MAY HAVE AFFECTED THE OUTCOME”

            The Secretary will not institute court proceedings upon the basis of a complaint alleging violations unless he finds probable cause to believe that the violation “may have affected the outcome of an election.” 
29 CFR 452.136(b)

*476.005 SCOPE OF SECRETARY’S COMPLAINT   

            Based on a ruling by the U.S. Supreme Court, OLMS election regulations state that in an enforcement action in court, the Secretary’s complaint “may not include . . . a violation which was known to the protesting member but was not raised in the member’s protest to the union.” The regulations further provide that “[c]omplaints filed by the Department of Labor will accordingly be limited . . . to the matters which may fairly be deemed to be within the scope of the member’s internal protest and those which investigation discloses [member] could not have been aware of.”  29 CFR §452.136(b-1) (relying on Hodgson v. Local Union 6799, USW, 403 U.S. 333, 77 LRRM 2497 (1971).    

            With regard to the part of this standard referring to violations known to the protesting member but not raised to the union, the violation(s) in the Secretary’s complaint do not have to have the same focus as the member’s internal protest to the union. As long as the member’s protest should have made it discernible to the union that one or more possible violations were at issue, those violations can be included in the Secretary’s complaint. See Local Union 6799, USW, 403 U.S. at 341 (“courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question”).

           Turning to the part of the standard applying to any violation(s) that “investigation discloses [the member] could not have been aware of,” OLMS most recent LMRDA Election Issue Guide, following the Sixth Circuit Court of Appeals’ decision in Brock v. Operating Eng'rs Local 369, 790 F.2d 508, 22 LRRM 2518 (6th Cir. 1986), provides further details for that test. The Guide states that “any violation which was not protested to the union” cannot be included in the Secretary’s complaint “if: 1) the facts of the violation were generally known; and 2) any reasonable investigation by the complainant could have revealed the violation.”

            (Revised: Dec. 2016 and Jan. 2021)

476.100 DISCRETION TO FILE SUIT  

           The U.S. Supreme Court held in Dunlopv. Bachowski, 421 U.S. 560, 89 LRRM 2435 (1975), that a decision by the Secretary not to file suit in a Title IV case is subject to review under the Administrative Procedure Act.  However, the Court established a special standard for review of such decisions.  First, the Court held that the Secretary must provide to the complaining union member and to the court copies of a “statement of reasons” for deciding against bringing a lawsuit.  Second, the Court ruled, the reviewing Court should review only that statement of reasons to determine whether the Secretary’s was “so irrational” that it was “arbitrary and capricious.”  Only if that standard is met should the court order the Secretary to bring a court action to seek a supervised election. See Bachowski, 421 U.S. at 571-73.  

           The district court has jurisdiction to review the Secretary’s decision and determine whether it is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law under the Administrative Procedure Act. However, this review does not extend to a trial-type inquiry into the factual bases for the Secretary’s decision. The Secretary must provide the court and the complaining union member with a statement of reasons supporting his determination, and the court’s review is confined to examining the statement and determining whether the Secretary’s decision is so irrational as to constitute the decision arbitrary and capricious. Id. at 566, 571-73.

            (Revised: Dec. 2016 and Jan. 2021)

476.110 DELEGATE ELECTION

            In an election where delegates are the only ones who can make nominations, a civil suit may be instituted by the Department if there is evidence that properly elected delegates who were not seated would have placed one or more additional names in nomination.  It is not necessary to show that the election outcome was actually affected before the Department may take legal action.  See Chao v. Amalgamated Transit Union, AFL-CIO, 141 F.Supp.2d 13, 24, 67 LRRM 2516 (D.D.C. 2001).

            (Technical Revisions: Dec. 2016)

476.200 CASE FILED SIXTY-TWO DAYS AFTER COMPLAINT

            The Secretary of Labor brought an action against defendant union, Local 611, Hod Carriers, under section 402(b) sixty-two days after the filing of the complaint.  Defendant moved for a summary judgment based on the claim that the time to bring an action under section 402(b) (i.e., 60 days after the filing of the complaint) operates as a statute of limitations upon the Secretary.
           
            In denying the defendant’s motion for summary judgment, the Court held that although the Secretary of Labor filed his complaint in court on the 62nd day, it was a timely complaint because the 60th day fell on a Sunday and the 61st day was a legal holiday when the courts were closed.
           
            Rule 6 of the Federal Rules of Civil Procedure provides that under such circumstances “the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday.”  The Court stated that section 402(b) was passed after the adoption of Rule 6 and contains no special language to take it out of the operation of that rule, and that courts generally apply Rule 6 liberally.
           
            The Court further held that the language of section 402(b) is not the usual language of a statute of limitations but is rather directory to the Secretary of Labor which, under certain circumstances, he is required to follow. 

Wirtz v. Local 611, International Hod Carriers’, Building and Common Laborers’ Union, 229 F. Supp. 230, 56 LRRM 22388 (D. Conn. 1964).

            (Technical Revisions: Dec. 2016)

476.210 DELAY IN FILING SUIT CAUSED BY UNION

            In an action brought by the Secretary of Labor to set aside an election, defendant union moved for dismissal on the ground that the suit filed by the Secretary was untimely since it had not been filed within sixty days after the complaint was received as provided in section 402(b) of the Act.  The complaint was received on August 12, 1964, and suit filed on November 9, 1964, or 28 days later than the sixty days provided by section 402(b).
           
            During investigation of the complaint, the Secretary had requested certain information and records from the union.  When the union refused to comply with the request, the Secretary issued a subpoena duces tecum. The union did not comply with the subpoena until the Secretary started an enforcement action.   
           
            The court held that the time lost as a result of the union’s delay in making the information requested by the Secretary available would not be counted as part of the sixty days; therefore the suit was timely filed. 

Wirtz v. Great Lakes Dist. Local No. 47, International Organization of Masters, Mates and Pilots, 240 F. Supp. 859, 862, 59 LRRM 2085 (N.D. Ohio 1965).

            (Technical Revisions: Dec. 2016)

476.400 JURY TRIAL UNDER SECTION 402

            Action brought by Secretary of Labor under 402(b) of the LMRDA to set aside an election held by defendant union.  Defendant demanded jury trial and plaintiff moved to strike this demand.  Issue was whether in judicial proceedings brought under 402(b) and (c), the parties are entitled to a jury trial.  Answer depends upon whether the parties have a constitutional right under the Seventh Amendment and Rule 38 to a jury trial, or whether the right has been given to them by a federal statute.
           
            The conventional test for determining whether a party has a constitutional right to trial by jury is whether he was entitled to have the issue tried by a jury at common law.  In the instant case, the basic relief sought by the plaintiff is an injunction, and as such, the matter is equitable and there is no right to a jury trial.  A court may not, in a case where both legal and equitable issues are involved, dispose of the equitable issues in such a manner as to deprive the parties of their right to a trial by jury on the legal issues.  In the instant case, the relief sought is purely equitable and involves no legal issues and no claim for money damages.
           
            Since defendant union is not entitled to trial by jury under the Seventh Amendment, the question remains whether Congress, by statute, has granted that right to the defendant. Section 402 contains no express reference to trial by jury. Where Congress has intended trial by jury under circumstances where the right was not constitutionally guaranteed, it has expressly so provided.  Since Congress referred to “the Court” in section 402(b) and (c) several times, but did not refer to a “jury,” Congress did not intend to grant the right to trial by jury as demanded by defendant union.

Wirtz v. District Council No. 21, Brotherhood of Painters, Decorators, and Paperhangers, 211 F. Supp. 253, 255 , 51 LRRM 2591 (E.D. Pa. 1962); see also Wirtz v. National Maritime Union of America, 399 F.2d 544, 8 LRRM 3017 (2d Cir 1968).

            (Technical Revisions: Dec. 2016)

476.500 INTERVENTION BY UNION MEMBERS

           A union member who submitted an election complaint to the Secretary may also intervene in the Secretary’s court action against the union under Title IV so long as that intervention is limited to the claims of illegality presented by the Secretary’s complaint. The intervening union member may present evidence and argument in support of the Secretary's complaint and assist the court in shaping a remedial order.  See Trbovich v. United Mine Workers, 404 U.S. 528, 79 LRRM 2193 (1972).Further, when a court finds that the intervention provided substantial benefit to the union’s membership, the court may award the intervenor attorneys’ fees. See, e.g. Donovan v. Teamsters Local 70, 661 F.2d 1199, 108 LRRM 3133 (9th Cir. 1981); Brennan v. United Steelworkers, 554 F.2d 586, 95 LRRM 2178 (3rd Cir. 1977), cert. denied 435 U.S. 977, 97 LRRM 3238 (1978); Usery v. Teamsters Local 639, 543 F.2d 369, 93 LRRM 2113 (D.C. Cir. 1976), cert. denied 429 U.S. 1123, 94 LRRM 2643 (1977).

            Federal courts of appeal have divided over whether, in an action by the Secretary for a court to certify the results of a supervised election, an unsuccessful candidate may intervene. Compare Donovan v. Westside Local 174, United Auto. Workers, 783 F.2d 616, 121 LRRM 2881 (6th Cir.1986); Usery v. Teamsters Local 639, 543 F.2d 369, 377, 93 LRRM 2113 (D.C.Cir.1976), cert. denied, 429 U.S. 1123, 94 LRRM 2643 (1977); Hodgson v. Carpenters Resilient Flooring Local Union No. 2212, 457 F.2d 1364, 1370, 79 LRRM 3046 (3rd Cir.1972) (permitting such intervention) with Usery v. District No. 22, United Mine Workers of America, 567 F.2d 972, 97 LRRM 2357 (10th Cir.1978) and Brennan v. Silvergate District Lodge No. 50, Int'l Ass'n of Machinists, 503 F.2d 800, 87 LRRM 2935 (9th Cir.1974) (denying such intervention). 

            (Revised: Dec. 2016 and Jan. 2021)

 

OUTCOME MAY HAVE BEEN AFFECTED

477.001 LMRDA, SECTION 402(c)

            If, upon a preponderance of the evidence after a trial upon the merits, the court finds. . .
            (2) that the violation of section 401 may have affected the outcome of an election,. . .

477.005 “POSSIBLE” EFFECT ON OUTCOME SUFFICIENT

            An investigation of a complaint concerning a runoff election (held as a result of a tie in the regular election) for the office of business representative of a local union revealed that 58 ineligible members were allowed to vote.  The 58 voters involved either (1) had not paid their dues or (2) had not paid or completed payment of mandatory readmission fees.  The election was decided by 19 votes.

            On suit of the Secretary to set aside the runoff election the court held “that if the number of ineligible votes cast is sufficient to make it mathematically possible that the outcome of the election was affected, this fact alone conclusively establishes the Act’s requirement that the conduct complained of may have affected the outcome of the election.”  The election was set aside.

Wirtz v. Local Union No. 125, International Hod Carriers' Building and Common Laborers' Union, 270 F. Supp. 12, 20, 62 LRRM 2141 (N.D. Oh. 1966).

            (Technical Revisions: Dec. 2016)

RERUN ELECTIONS

478.005 SUPERVISED ELECTIONS - TERM OF OFFICE

            Elections conducted under the enforcement provisions of section 402 of the LMRDA are for the unexpired term of the contested election.  Support for this position is found in section 403 of the LMRDA which provides in pertinent part 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 Title IV; and in section 402 which provides that in the interim between challenge and voiding, the challenged election shall be presumed valid and the affairs of the union shall be conducted by the elected officers or in such other manner as the union constitution and bylaws may provide.

478.100 INTERFERING WITH SUPERVISION

            In an action of first instance, the United State District Court, Eastern District of New York, granted a permanent injunction restraining the officers, agents, employees and representatives of a local union from interfering with or obstructing the supervision of the Secretary of Labor in the conduct of an election of union officers by said union.
           
            The original action had been instituted by the Secretary of Labor under section 402(b) of LMRDA, praying for an order of the Court directing the conduct of an election by the union under the supervision of the Secretary.  The basis of the complaint was that the union had failed to elect its officers within the past three years by secret ballot among the members in good standing, as required by section 401(b) of LMRDA.
           
            Although the union admitted the violation by stipulation and consented to a judgment allowing an election of officers to be conducted under the supervision of the Secretary, the union subsequently refused to allow the complainant in this case, who had been determined by the Secretary to be a member in good standing and eligible for union office, to be nominated for union office.  The union also sent out notice of nominations and elections without the approval of the Secretary.
           
            As a result of these actions on the part of the union, the Secretary applied for and obtained a temporary order restraining the union, through its officers, agents, etc., from violating the stipulation and consent judgment and from interfering with the supervision of the Secretary in the conduct of the election in question.  The order was later made permanent.

Wirtz v. Teamsters Warehousemen, Helpers and Production Workers Independent Local 424, No. 63-C-819 (E.D.N.Y. Dec. 11, 1963) (unreported).

NOTE:    
It should be noted that the Court did not question the Secretary’s authority to determine which of the union members were eligible to vote and eligible to be nominated as an officer.

            (Technical Revisions: Dec. 2016)

478.200 CHALLENGE OF COURT-CERTIFIED ELECTION

          If the court has appointed someone to supervise the election and has accepted the certification of the election by this party, the court has already determined, in effect, that an election over which it had jurisdiction has been properly conducted.  Therefore, it would not be appropriate to challenge the propriety of the election or the court’s decision through Title IV.

            (Technical Revisions: Jan. 2021)

478.300 FUNCTION OF A CONSENT DECREE

            The exclusive remedy provided in the Act for challenging an election already conducted did not deprive the district court and an independent administrator that the court appointed to oversee a union, pursuant to consent decree entered in litigation to rid union of organized crime influence, of jurisdiction to order rerun election for union local officers.

United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 782 F. Supp. 243 (S.D.N.Y. 1992)

            (Jan. 2021)

REMOVAL OF OFFICERS - IN GENERAL

490.001    LMRDA, SECTION 401

            (h) If the Secretary, upon application of any member of a local labor organization, 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 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 this title.

            (i) The Secretary shall promulgate rules and regulations prescribing minimum standards and procedures for determining the adequacy of the removal procedures to which reference is made in subsection (h).
See 29 CFR 417

490.005    REMOVAL PROCEDURES APPLY ONLY TO LOCAL OFFICERS

            Removal provisions in section 401(h) refer specifically to officers of local labor organizations and do not include officers of intermediate or international bodies. See, e.g. Vitrano v. Marshall, 504 F.Supp. 1381, 107 LRRM 2935 (D.D.C.1981).

            (Technical Revisions: Dec. 2016)

490.100    401(h) and (i) apply only before officer has been removed

            Sections 401(h) and (ii) of the LMRDA are addressed to procedures for removing officers before removal has become an accomplished fact.
            This would apply whether or not the officer had been removed in accordance with the constitution and bylaws of the labor organization.  The legislative history of sections 401(h) and (ii) clearly supports this conclusion.  See, e.g. Small v. Department of Labor, 796 F.Supp. 1089, 142 LRRM 2755 (S.D. Oh. 1992), aff'd 986 F.2d 1422, 142 LRRM 2936 (6th Cir. 1993).

            (Technical Revisions: Dec. 2016)

ADEQUACY OF REMOVAL PROCEDURE

492.001    LMRDA, SECTION 401(h)

            If the Secretary, upon application of any member of a local labor organization, 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.

492.002    See 29 CFR 417.2(e) for standards of adequate removal procedure

492.005    ACTUAL OPERATION OF PROCEDURES DETERMINES ADEQUACY

            It is the union’s responsibility to provide an adequate procedure which meets the standards of section 417.2(e) of the Regulations.  The adequacy of a union’s procedure in the final analysis is determined by whether in actual operation it meets these standards.  Even if the language describing the union’s procedures appears to meet the standards, the procedures would not be considered “adequate” if in fact they are interpreted or applied in a manner which results in a failure to achieve the objectives in that section of the Regulations.

           The following examples illustrate how this principle may be applied:
           

The following examples illustrate how this principle may be applied:
           

1. A local union constitution provides for trial of an accused officer by a trial committee of seven elected from the membership at the next regular meeting following the filing of charges.  Charges were filed against an officer of Local X.  At the next regular meeting an attempt was made to elect a trial committee, but the Chairman in accordance with the union’s constitution, adjourned the meeting because of the absence of a quorum.  The union took the position that since there was no quorum it was not necessary for it to take any further action on the charges unless the accusing member filed his charges again.
   
   If a quorum is required to take action under the union’s procedures for the removal of an officer, it is the union’s responsibility, and not that of the member, to assure the presence of a quorum if their procedures are to be considered adequate.  Further, failure of a quorum cannot have the effect of shifting the burden back to the member to repeat the filing of his charges until a quorum is obtained since, under section 417.2(e)(6), the member is entitled to final disposition of the charges pursuant to the procedures within a reasonable time after filing them.
    
2. A local union constitution provides that charges against officers must be in writing, served upon the accused and filed with the Secretary of the union. Charges were made against an officer of that local while he was out of town on union business.  A copy was mailed to him and copies were served upon the Secretary of the local.  The officer alleged that he never received the charges.
   
   Section 417.2(e)(2) of the Regulations states that one element of an adequate procedure is that the charges must be communicated to the accused officer and that reasonable notice must be given to the members of the organization reasonably in advance of the time for hearing.  Responsibility for communication of the charges rests upon the union as part of its duty to provide an adequate procedure and cannot be shifted to the accusing member if the effect would be a failure of such communication.
    
3. A union’s constitution does not specifically provide for a secret ballot for removal of officers but in practice a secret ballot is provided.
   
   Failure of the written procedures of the union to make provision for a secret ballot vote on removal of an officer found guilty of serious misconduct does not mean that the removal procedures of the union are inadequate per se, since a secret ballot vote of the members is actually provided.

            (Technical Revisions: Dec. 2016)

492.010 APPELLATE REVIEW AS PART OF REMOVAL PROCEDURES

            The Secretary is authorized to act only if he finds that the constitution and bylaws of the union do not provide an adequate procedure for the removal of an elected officer guilty of serious misconduct.  Appellate review would be an appropriate part of an adequate removal procedure.  Therefore, in the absence of any evidence that the appellate body was motivated by prejudice or bias in hearing the appeal, the removal procedure would not be inadequate under section 401(h) of the Labor-Management Reporting and Disclosure Act of 1959.

492.011 REINSTATEMENT OF LOCAL OFFICERS BY INTERNATIONAL     

           Where a local officer was removed from office by action of the local operating under the union’s constitution and bylaws, but was reinstated by the executive board of the International Union after appealing to that body in accordance with constitutional procedure, the adequacy of the removal procedure in such a situation should not be questioned unless it can be shown that the appellate body that heard the appeal was prejudiced.  Appellate review of decisions rendered by a tribunal of first resort is an inherent part of due process.

            Therefore, in cases such as this, once it has been established that the appellate body has acted without prejudice, reversal on appeal does not come within the purview of section 401(h) of the Act.

(Revised: Jan. 2021)

FILING OF APPLICATION BY MEMBER

492.051 SEE 29 CFR 417.3

COMPLAINT—WHERE REMOVAL PROCEDURE ADEQUATE BUT VIOLATED

493.055 – Deleted (December 2018)

 

 

Last Updated: 1-19-21