§ 408.9 Personal responsibility of signatories of reports.

Each individual required to sign a report under this part shall be personally responsible for the filing of such report and for any statement contained therein which he knows to be false. § 408.10

Maintenance and retention of

records.

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

§ 408.11 Dissemination and verification of reports.

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

§ 408.12 Publication of reports required by this part.

Inspection and examination of any report or other document filed as required by this part, and the furnishing by the Office of Labor-Management and Welfare-Pension Reports of copies thereof to any person requesting them, shall be governed by § 2.4 of this title.

417.22

labor organizations.

Administrator's representative.

Notice of hearing.

Transcript.

Vote among members of the labor organization.

417.23 Report to Administrator.

417.24 Appeal to Administrator. 417.25

Certification of results of vote.

AUTHORITY: The provisions of this Part 417 issued under secs. 401(i), 402(b), 73 Stat. 533, 534, 29 U.S.C. 481, 482; Secretary's Order 24-63 (28 F.R. 9172), and Secretary's Order 25-63 (28 F.R. 9173).

SOURCE: The provisions of this Part 417 appear at 29 F.R. 8264, July 1, 1964; 29 F.R. 8480, July 7, 1964; 29 F.R. 9537, July 14, 1964. GENERAL

§ 417.1 Purpose and scope.

Section 401 (h) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 481) provides that if, upon application of any member of a local labor organization, the Secretary of Labor finds, after hearing in accordance with the Administrative Procedure Act, that the constitution and bylaws of such labor organization do not provide an adequate procedure for the removal of an elected officer guilty of serious misconduct, such officer may be removed for cause shown and after notice and hearing, by the members in good standing voting in a secret ballot. Section 401 (1) (29 U.S.C. 481) requires the Secretary to promulgate rules and regulations prescribing minimum standards and procedures for determining the adequacy of the removal procedures referred to in

section 401(h). Section 402(a) (29 U.S.C. 482) provides that a member of a labor organization who has exhausted the available internal remedies of such organization and of any parent body, or who has invoked such remedies without obtaining a final decision within three months, may file a complaint with the Secretary within one month thereafter alleging violation of section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the removal of officers). Section 402 (b) (29 U.S.C. 482) provides that upon suit initiated by the Secretary, a federal court may direct the conduct of a hearing and vote upon the removal of officers under the supervision of the Secretary, and in accordance with such rules and regulations as the Secretary may prescribe. It is the purpose of this part to implement those sections by prescribing regulations relating to the procedures and standards for determining the adequacy of removal procedures and the procedures for holding elections for the removal of officers.

(a) "Secretary" means the Secretary of Labor.

(b) "Administrator" means the LaborManagement Services Administrator.

(c) "Director" means the Director, Office of Labor-Management and Welfare-Pension Reports.

(d) "Act" means the Labor-Management Reporting and Disclosure Act of 1959.

(e) "Adequate procedure" shall mean any procedure which affords reasonable and equitable opportunity for (1) trial of an officer (s) charged with serious misconduct, and (2) removal of such an officer(s) if found guilty, and which contains the elements set forth in each of the subparagraphs of this paragraph: Provided, however, That any other procedure which provides otherwise reasonable and equitable measures for removal from office may also be considered adequate:

(1) A reasonable opportunity is afforded for filing charges of serious misconduct against any elected officer (s) without being subject to retaliatory threats, coercion, or acts of intimidation. (2) The charges of serious misconduct are communicated to the accused officer(s), and reasonable notice is given

the members of the organization, reasonably in advance of the time for hearing thereon.

(3) Subject to reasonable restrictions, a fair and open hearing upon such charges is held after adequate notice and, adequate opportunity is afforded for testimony or the submission of evidence in support of or in opposition to such charges. Within a reasonable time following such hearing, a decision is reached as to the guilt or innocence of the accused.

(4) If the hearing upon such charges is held before a trial committee or other duly authorized body, reasonable notice of such bodies' findings is given to the membership of the organization promptly.

(5) If such accused officer (s) is found guilty, he may be removed by a procedure which includes:

(i) A secret ballot vote of the members at an appropriately called meeting,

or

(ii) A vote of a trial committee or other duly authorized body, subject to appeal and review by the members voting by a secret ballot at an appropriately called meeting.

(6) Within a reasonable time after the charges of serious misconduct are filed with the labor organization final disposition (including appellate procedures) is made of the charges.

(f) "Elected officer" means any constitutional officer, any person authorized to perform the functions of president, vice-president, secretary, treasurer, or other executive functions of a labor organization, and any member of its executive board or similar governing body.

(g) "Cause shown" means substantial evidence of serious misconduct.

(h) "Interested person" means any person or organization whose interests are or may be affected by a proceeding.

(i) "Court" means the district court of the United States in the district in which the labor organization in question maintains its principal office.

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

§ 417.3 Initiation of proceedings.

(a) Any member of a local labor organization who has reason to believe

that: (1) An elected officer (s) of such organization has been guilty of serious misconduct, and (2) the constitution and bylaws of his organization do not provide an adequate procedure for the removal of such officer (s), may file with the Office of Labor-Management and Welfare-Pension Reports a written application, which may be in the form of a letter, for initiation of proceedings under section 401 (h) of the Act.

(b) An application filed under paragraph (a) of this section shall set forth the facts upon which it is based including a statement of the basis for the charge that an elected officer (s) is guilty of serious misconduct; and shall contain: (1) Information identifying the labor organization and the officer or officers involved, and (2) any data such member desires the Office of LaborManagement and Welfare-Pension Reports to consider in connection with his application.

§ 417.4 Pre-hearing conference.

(a) Upon receipt of an application filed under § 417.3, the Director shall investigate the allegations contained therein, and if he finds probable cause to believe that the constitution and bylaws of the labor organization do not provide an adequate procedure for the removal of an elected officer (s) guilty of serious misconduct he shall: (1) Advise the labor organization of his findings and (2) afford such labor organization the opportunity for a conference to be set not earlier than 10 days thereafter except where all interested persons elect to confer at an earlier time. Any such conference shall be conducted for the purpose of hearing the views of interested persons and attempting to achieve a settlement of the issue without formal proceeding.

(b) (1) If: (1) The labor organization declines the opportunity to confer afforded under paragraph (a) of this section, and fails to undertake compliance with the provisions of section 401 (h) of the Act, or if (ii) after consideration of any views presented by the labor organization the Director still finds probable cause to believe that the removal procedures are not adequate and if agreement for the adoption of adequate procedures for removal has not been achieved and the labor organization refuses to enter into a stipulation to com

ply with the provisions of section 401(h) of the Act, the Director shall submit his findings and recommendations to the Administrator.

(2) Upon consideration of the Director's recommendations, the Administrator may order a hearing to be conducted before a Hearing Examiner duly assigned by him to receive evidence and arguments (i) on the applicability of section 401 (h) of the Act to the labor organization involved, and (ii) on the question of whether its constitution and bylaws provide an adequate procedure for the removal of an elected union officer guilty of serious misconduct.

§ 417.5 Notice.

Notice of hearing shall be given not less than 10 days before such hearing is held unless the parties agree to a shorter notice period. Such notice shall be transmitted to the labor organization and the officer (s) accused of misconduct and other interested persons, insofar as they are known, and shall inform them of:

(a) The time, place, and nature of the hearings;

(b) The legal authority and jurisdiction under which the hearing is to be held; and

(c) The matters of fact and law asserted.

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

§ 417.6 Powers of Hearing Examiner.

The designated Hearing Examiner shall have authority:

(a) To give notice concerning and to conduct hearings;

(b) To administer oaths and affirmations;

(c) To issue subpoenas;

(d) To rule upon offers of proof and receive relevant evidence;

(e) To take or cause depositions to be taken whenever the ends of justice would be served thereby;

(f) To regulate the course of the hearing;

(g) To hold conferences for the settlement or simplification of the issues by consent of the parties;

(h) To dispose of procedural requests or other matters;

(i) To limit the number of witnesses at hearings, or limit or exclude evidence or testimony which may be irrelevant, immaterial, or cumulative;

(j) If appropriate or necessary to exclude persons or counsel from participation in hearings for refusing any proper request for information or documentary evidence, or for contumacious conduct; (k) To grant continuances or reschedule hearings for good cause shown;

(1) To consider and decide procedural matters;

(m) To take any other actions authorized by the regulations in this part. The Hearing Examiner's authority in the case shall terminate upon his filing of the record and his initial decision with the Administrator, or when he shall have withdrawn from the case upon considering himself disqualified, or upon termination of his authority by the Administrator for good cause stated. However, the Hearing Examiner's authority may be reinstated upon referral of some or all the issues by the Administrator for rehearing. This authority will terminate upon certification of the rehearing record to the Administrator.

(b) Contumacious or disorderly conduct at a hearing may be ground for exclusion therefrom. The refusal of a witness at any hearing to answer any questions which have been ruled to be proper shall, in the discretion of the Hearing Examiner, be ground for striking all testimony previously given by such witness on related matter.

(c) At any stage of the hearing the Hearing Examiner may call for further evidence or testimony on any matter. After the hearing has been closed, no further information shall be received on any matter, except where provision shall have been made for it at the hearing, or except as the Hearing Examiner or Administrator may direct by reopening the hearing.

§ 417.10 Rights of participants.

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

§ 417.11 Objections to evidence.

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

§ 417.12 Proposed findings and conclusions.

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

51-058-66- -12

§ 417.13 Initial decision of Hearing Examiner.

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

§ 417.14 Form and time for filing of appeal with Administrator.

(a) An interested person may appeal from the Hearing Examiner's initial decision by filing written exceptions with the Administrator within 15 days of the issuance of the Hearing Examiner's initial decision (or such additional time as the Administrator may allow), together with supporting reasons for such exceptions. Blanket appeals shall not be received. Impertinent or scandalous matter may be stricken by the Administrator, or an appeal containing such matter or lacking in specification of exceptions may be dismissed.

(b) In the absence of either an appeal to the Administrator or review of the Hearing Examiner's initial decision by the Administrator on his own motion, such initial decision shall become the decision of the Administrator.

§ 417.15 Decision of Administrator.

Upon appeal filed with the Administrator pursuant to § 417.14, or within his discretion upon his own motion, the complete record of the proceedings shall be certified to him; he shall notify all interested persons who participated in the proceedings; and he shall review the record, the exceptions filed and supporting reasons, and shall issue a decision as to the adequacy of the constitution and bylaws for the purpose of removing officers, or shall order such further proceedings as he deems appropriate. His decision shall become a part of the record and shall include a statement of his findings and conclusions, as well as the reasons or basis therefor, upon all material issues.

Subpart B-Procedures (1) Upon Failure of Union To Act Following Subpart A Procedures or (2) Upon Complaint of Violation of Constitution and Bylaws Pertaining To Removal of Officers of Local Labor Organizations

§ 417.16 Initiation of proceedings.

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