Olms interpretative Manual

ADEQUACYOFREMOVALPROCEDURE

1. 
   LMRDA,SECTION401(h)
   

If the Secretary, upon application of any member of a local labor organization, finds afterhearing in accordance with the Administrative Procedure Act that the constitution and bylaws ofsuch labor organization do not provide an adequate procedure for the removal of an elected officerguiltyof serious misconduct.

2. 
   See29 CFR417.2(e) forstandardsofadequateremovalprocedure
   

492.005 ACTUALOPERATIONOFPROCEDURESDETERMINESADEQUACY

Itistheunion’sresponsibilitytoprovideanadequateprocedurewhichmeetsthestandardsof section 417.2(e) of the Regulations.The adequacy of a union’s procedure in the final analysisisdetermined by whetherin actual operationit meetsthesestandards. Evenif the language

describing the union’s procedures appears to meet the standards, the procedures would not beconsidered “adequate” if in fact they are interpreted or applied in a manner which results in afailureto achieve the objectivesin that section oftheRegulations.

Thefollowingexamplesillustratehowthisprinciplemaybeapplied:

1. 
   A local union constitution provides for trial of an accused officer by a trial committee ofseven elected from the membership at the next regular meeting following the filing ofcharges.Chargeswerefiled againstanofficerof LocalX.At thenextregularmeeting anattempt was made to elect a trial committee, but the Chairman in accordance with theunion’s constitution, adjourned the meeting because of the absence of a quorum.Theunion took the position that since there was no quorum it was not necessary for it to takeanyfurther actiononthe chargesunlesstheaccusing member filedhis chargesagain.
   

If a quorum is required to take action under the union’s procedures for the removal of an officer, itistheunion’sresponsibility, andnotthatofthemember,toassurethepresenceofaquorum iftheirproceduresare tobeconsidered adequate.Further,failureofaquorumcannot havethe effectof shifting the burden back to the member to repeat the filing of his charges until a quorum isobtained since, under section 417.2(e)(6), the member is entitled to final disposition of the chargespursuantto the procedures withina reasonable time afterfiling them.

2. 
   Alocalunionconstitutionprovidesthatchargesagainstofficersmustbeinwriting,servedupon the accused and filed with the Secretary of the union. Charges were made against anofficer of that local while he was out of town on union business.A copy was mailed tohim and copies were served upon the Secretary of the local.The officer alleged that heneverreceived the charges.
   

Section 417.2(e)(2) of the Regulations states that one element of an adequate procedure is that thecharges must be communicated to the accused officer and that reasonable notice must be given tothe members of the organization reasonably in advance of the time for hearing.Responsibility forcommunication of the charges rests upon the union as part of its duty to provide an adequateprocedure and cannot be shifted to the accusing member if the effect would be a failure of suchcommunication.

3. 
   Aunion’sconstitutiondoesnotspecificallyprovideforasecretballotforremovalofofficersbut in practice asecret ballotis provided.
   

Failure of the written procedures of the union to make provision for a secret ballot vote onremoval of an officer found guilty of serious misconduct does not mean that the removalproceduresofthe unionareinadequate perse,since asecretballot voteofthe membersis actuallyprovided.

(TechnicalRevisions:Dec. 2016)

10. 
    APPELLATEREVIEWAS PARTOFREMOVAL PROCEDURES
    

The Secretary is authorized to act only if he finds that the constitution and bylaws of theunion do not provide an adequate procedure for the removal of an elected officer guilty of seriousmisconduct.Appellate review would bean appropriate partof an adequateremoval procedure.

Therefore, in the absence of any evidence that the appellate body was motivated by prejudice orbias in hearing the appeal, the removal procedure would not be inadequate under section 401(h) oftheLabor-Management Reporting and Disclosure Act of 1959.

10. 
    REINSTATEMENTOFLOCALOFFICERSBYINTERNATIONAL
    

Where a local officer was removed from office by action of the local operating under theunion’s constitution and bylaws, but was reinstated by the executive board of the InternationalUnion after appealing to that body in accordance with constitutional procedure, the adequacy oftheremoval procedureinsuch asituation shouldnotbe questioned unlessit can beshown thattheappellate body that heard the appeal was prejudiced.Appellate review of decisions rendered by atribunalof first resort isan inherentpart of due process.

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

(Revised:Jan.2021)