Olms interpretative Manual

PROHIBITIONAGAINSTHOLDINGOFFICEOREMPLOYMENT

1. 
   LMRDA,SECTION504.
   

1. 
   No person who is or has been a member of the Communist Party or who has beenconvictedof, or servedany part ofaprison termresulting fromhisconviction of robbery,bribery,extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rapeassault with intent to kill, assault which inflicts grievous bodily injury, or a violation of title II orIII of this Act, any felony involving abuse or misuse of such person's position or employment in alabor organization or employee benefit plan to seek or obtain an illegal gain at the expense of themembers of the labor organization or the beneficiaries of the employee benefit plan, or conspiracyto commit any such crimes or attempt to commit any such crimes, or a crime in which any of theforegoingcrimes is an element, shallserve or bepermittedtoserve—
   

1. 
   asa consultant or adviserto any labororganization,
   
2. 
   as an officer, director, trustee, member of any executive board or similar governingbody,businessagent,manager,organizer,employee,orrepresentativeinanycapacityof any labororganization,
   
3. 
   asalabor relationsconsultantoradvisertoa personengagedinan industryoractivityaffecting commerce, or as an officer, director, agent, or employee of any group orassociation of employers dealing with any labor organization, or in a position havingspecific collective bargaining authority or direct responsibility in the area of labor-management relations in any corporation or association engaged in an industry oractivityaffecting commerce, or
   
4. 
   in a position which entitles its occupant to a share of the proceeds of, or as an officer orexecutive or administrative employee of, any entity whose activities are in whole orsubstantialpart devotedto providinggoodsor servicesto any labororganization, or
   
5. 
   inanycapacity,other thaninhiscapacity asamemberof suchlabororganization, thatinvolves decision-making authority concerning, or decision-making authority over, orcustody of, or control of the moneys, funds, assets, or property of any labororganization,
   

during or for the period of thirteen years after such conviction or after the end of suchimprisonment, whichever is later, unless the sentencing court on the motion of the personconvicted sets a lesser period of at least three years after such conviction or after the end of suchimprisonment,whichever islater, orunlesspriortothe end ofsuch period,in the caseofapersonsoconvicted or imprisoned, (A)his citizenshiprights, havingbeen revoked as aresultof such

conviction, have been fully restored, or (B)if the offense is a Federal offense, the sentencingjudge or, if the offense is a State or local offense, the United States district court for the district inwhich the offense was committed, pursuant to sentencing guidelines and policy statements undersection 994(a) of Title 28, determines that such person’s service is any capacity referred to inclause(1)through(5) would notbecontrarytothe purposesof thisAct.Prior tomaking anysuchdetermination the court shall hold a hearing and shall give notice of such proceeding by certifiedmailto theSecretary ofLaborand toState,county, and Federalprosecuting officials inthe
jurisdiction or jurisdictions in which such person was convicted. The court’s determination in anysuch proceeding shall be final. No person shall knowingly hire, retain, employ, or otherwise placeanyother person to serve in any capacityinviolation ofthis subsection.

2. 
   Anypersonwhowillfullyviolatesthissectionshallbefinednotmorethan$10,000orimprisonedfor not more than fiveyears, or both.
   

3. 
   Definitions
   

Forthe purpose of this section—

1. 
   A person shall be deemed to have been “convicted” and under the disability of “conviction”fromthedateofthejudgmentof thetrialcourt, regardlessofwhether thatjudgmentremainsunderappeal.
   

2. 
   Aperiodof paroleshall notbeconsideredaspart ofaperiod ofimprisonment.
   

4. 
   Salaryofpersonbarred fromlabor organizationoffice duringappeal ofconvictionWheneverany person—
   
   1. 
      byoperationofthissection, hasbeen barred fromoffice orotherposition inalabororganizationas a result of a conviction, and
      

2. 
   hasfiledan appeal ofthat conviction,
   

anysalarywhichwouldbeotherwiseduesuchpersonbyvirtueofsuchofficeorposition,shallbeplaced in escrow by the individual employer or organization responsible for payment of suchsalary. Payment of such salary into escrow shall continue for the duration of the appeal or for theperiodof time duringwhich such salary wouldbe otherwisedue,whichever periodisshorter.

Uponthefinalreversalofsuchperson'sconvictiononappeal,theamountsinescrowshallbepaidto such person. Upon the final sustaining of such person's conviction on appeal, the amounts inescrow shall be returned to the individual employer or organization responsible for payments ofthose amounts. Upon final reversal of such person's conviction, such person shall no longer bebarredbythisstatute fromassuming any positionfromwhich such personwas previously barred.

NOTE:
Theprovisioninthis sectionrelatingtomembership intheCommunist Partyhasbeenheldunconstitutional.

See ManualEntry 551.005.

(Revised:Dec.2016 andTechnical Revisions:Dec. 2019)

550.005GUIDELINESTOSECRETARY’SCONSTRUCTIONOFSECTION504

Notice is hereby given to all labor organizations, all groups or associations of employers dealingwith any labor organization, the officers thereof, all labor relations consultants and all personsengaged in industries or activities affecting commerce who employ such consultants that theprovisions of section 504 of the Labor-Management Reporting and Disclosure Act of 1959 areconstruedbytheSecretaryof Laborasprescribingacontinuing, affirmativedutytoinquireif anyperson prohibited from holding any office enumerated in that section is doing so, and to takeimmediateactionto remove any such person fromsuch office.
SignedatWashington,D.C.,this30^thdayofSeptember1959JamesP. Mitchell,
SecretaryofLabor
SeememorandumofunderstandingbetweenDepartmentsofLaborandJusticeconcerninginvestigation and prosecution of crimes and civil enforcement actions:www.dol.gov/olms/regs/compliance/Enforcement_Coord.htm.

(Revised:Dec. 2016 andJan. 2021)

550.100UNION’SRIGHTTOIMPOSEMORESTRINGENTPROHIBITIONS

A, a member in good standing in Local X, was denied opportunity to be a candidate for theoffice of business manager of his local in a recent election under a provision of the local’s bylawswhich state, in pertinent part, that “No member shall be eligible for election, be elected, or holdoffice or position, and no person shall be employed who has been convicted of any crimeinvolving moral turpitude offensive to trade union morality” (Emphasis added). Awas convictedofforgery and received a suspendedfour-year sentencein 1953.


Afiled a letter of complaint with the Secretary of Labor contending, among other things,that the subject provision of the local’s bylaws imposes an unreasonable qualification oncandidacy for union office. In support of this contention Asuggests that section 504 of the Actestablishesthequalifications forunion candidacyin thearea ofcriminal convictions,and sinceA
wouldnot beprevented fromseeking officeby section504,thesubject provisionsis unreasonable.

The language of section 401(e) is designed to prevent a union from denying a member ingood standing the right to seek and hold union office. At the same time the union is permitted touniformly impose reasonable qualifications for office. While a member’s eligibility for candidacyis subject to the prohibitions of section 504, such eligibility is also subject to reasonablequalificationsuniformly imposedbytheunion,andsection 504wasnotintended to,anddoesnot,preempt the union’s right to uniformly impose more stringent prohibitions against ex-convictsseeking office than that imposed by section 504. The subject provision would not appear toconstituteanunreasonable qualification. See 29 CFR52.34

NOTE:
Prior to filing a complaint with the Secretary Asought a preliminary injunction to restrain theunion from holding a scheduled election until the question of his eligibility was settled. On theissue of the validity of the union bylaw, the court stated that section 401(e) contemplated that aunionmayimposegreater restrictionsconcerningthe eligibilityofitsmembers toholdoffice thanthat imposed by section 504 provided only that such restrictions are reasonable and are uniformlyimposed.

Coburnv. OperatingEngineers LocalUnion No.3, 54 LRRM2229 (N.D.Cal. 1963).

(TechnicalRevisions:Dec. 2016)

550.200NONSALARIEDPERSONNEL

The section 504(a) prohibition applies to any person who serves as an “officer, director,trustee, member of any executive board or similar governing body, business agent, manager,organizer, employee, or representative in any capacity of any labor organization,” whether or notheservesinapaid position. SeeLMRDA Section 504(a)(2), 29U.S.C. § 504(a)(2).

(Revised:Dec. 2016)

550.300AFFIDAVITS

TheActcontainsnorequirementsforfiling affidavitsregardingthe absenceofCommunistaffiliations.

Section 201 of the Act repealed sections 9 (f), (g), and (h) of the LMRA (Taft-Hartley).Section 9(h) of the LMRA had provided that in order for a labor organization to use the facilitiesoftheNLRBeach officerofthelabor organizationandtheofficers ofthenationalorinternationalof which it was an affiliate or constituent unit had to file with the NLRB an affidavit stating thathewas not a member of or affiliatedwith theCommunist Party.

Note:
Theprovisionin section504oftheLMRDA relatingtomembershipintheCommunistpartyhasbeenheld unconstitutional. See Manual Entry 551.005.

*550.400PERSON INELIGIBLE TOSERVE MAYNOT BEACANDIDATE

A person who will be barred from serving in union office by section 504 is not eligible tobe a candidate for such office. However, a person who willbe eligible to serve on the date of theinstallationof officersmay bea candidate,even thoughatthetime ofhis nominationand electionheis still within the period set forthinsection 504.See 29 CFR452.34.

(Revised:Dec. 2016)

550.500WOMEN’SAUXILIARY

Itisaconceivablethat abodyorganizedasa women’sauxiliarycouldbesointegratedwith a union and charged with such responsibilities that one of its officers, etc., might be “anofficer, organizer, or other employee…” of the union, so as to bring her within the scope ofsection 504.

550.600PREEMPTION OF STATE CRIMINALLAWS

In reference to the Labor-Management Reporting and Disclosure Act, the Supreme Courtsaid in De Veauv. Braisted, 363 U.S. 144, 46 LRRM 2304 (1960): “The federal law expresslyprovides that none of its provisions are to be construed to impair the authority of states to enactandenforcegeneral criminallaws withrespect tothe samegroupofseriousfelonies anddisclaimspre-emption of state laws regulating the responsibilities of union officials excepting where suchpreemptionisspecifically provided.”

TheCourtalsostatedthatsection504ofLMRDA makesitclear“thatsection504(a)wasnottorestrictstatecriminal lawenforcementregardingthe feloniesthereenumeratedasfederal

barstounionoffice….” Braisted,363U.S.at 157.SeealsoBellv.WaterfrontCommission,279
F. 2d 854, 46 LRRM 2448 (2d Cir. 1960); Applegatev. Waterfront Commission, 184 F.Supp. 33,46LRRM 2983 (S.D.N.Y. 1960).

(TechnicalRevisions:Dec. 2016)

550.700JURISDICTIONOFFEDERALCOURTSOVEROFFICER’SSUIT

A U.S. District Court has jurisdiction to decide a suit brought by an elected union officeragainst his union for injunctive relief and a declaratory judgment interpreting section 504 asapplied by his union in removing him from office. See Seriov. Liss, 300 F. 2d 386, 49 LRRM2111(3dCir.1961).Seealso Illariov.Frawley,426F.Supp.1132, 1135,94LRRM2834(D.N.J.1977) (applying Serio). U.S. District courts also have jurisdiction over suspended officer’s claimsagainsttheU.S. Department ofLabor for declaratoryjudgmentthat theofficer was not

“convicted” for purposes of section 504.See Harmonv. Teamsters Local Union 371, 832 F.2d976,977-78, 126 LRRM2697 (7th Cir. 1987).

NOTE:Persons considered ineligible under §504(a) can petition judges to reduce the period oftheirineligibility. See,e.g.,United States v. Peters,938 F.Supp.2d 296 (N.D.N.Y.2013).

(Revised:Dec. 2016)

*550.710INJUNCTIVERELIEF

The U.S. Court of Appeals for the Seventh Circuit has held that the United States may notseek to enjoin a person who is ineligible to serve in union office by reason of section 504 fromrunning for that office. Even though the person by taking office would subject himself and theunion to the criminal penalties, section 504 provides no injunctive remedy against the individualortheunion.United Statesv. Jalas, 409 F.2d 358, 70LRRM 3265 (7thCir. 1969),aff’g67

LRRM2762 (N.D.Ill.1968).

However, the election in which the person who is ineligible to serve is a candidate may besubjectto challenge under section 402.

See also Manual Entry 550.400 and 29 CFR 452.34.(TechnicalRevisions:Dec. 2016)
550.800RESPONSIBILITY FORREMOVAL OFCONVICTEDOFFICER

Section 504(a) prohibits a “person” who has been convicted of one of the crimesenumerated therein from holding office in accordance with the terms of that subsection. If the“person” is a union officer at the time of his conviction, he must be removed from office by theother officers of the union. Failure of the union’s officers to take steps to have the convictedofficer removed from office is a violation of the last sentence of section 504(a) which states, inpertinentpart:“Nolabororganizationorofficerthereof shallknowinglypermitany personto

assumeorholdanyoffice…inviolationofthissubsection.” See,e.g.,Hermanv. AmericanPostalWorkersUnion, 995 F.Supp. 1, 2, 157 LRRM 2623 (D.D.C.1997).

(TechnicalRevisions:Dec. 2016)