Olms interpretative Manual

INVESTIGATIONBYSECRETARY

475.001LMRDA, SECTION402(b)

TheSecretaryshallinvestigate suchcomplaintand, ifhefinds probablecauseto believethata violation ofthis title has occurredand has not been remedied. . .

475.005SECRETARYMAYINVESTIGATEWITHOUTCOMPLAINT

Section 402(b) provides that the Secretary shallinvestigate any timely complaint filed withhim.Thismandatory dutytoinvestigate complaintsin no wayaffectsthe Secretary’sdiscretionarypower to investigate, at any time, under section601(a).

But see the regulations at 29 CFR 452.4.(TechnicalRevisions:Dec.2016)

475.007SECRETARY’SINVESTIGATORYPOWERS

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

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

Section 601 provides that the Secretary shall “determine the facts relative” to a violation orthreatened violation and that he may report the results of his investigation “to interested persons orofficials.” There is no limitation on the Secretary’s power to investigate and report and it need notbepredicated on a complaint.

Wirtzv. Local 191, International Brotherhood of Teamsters, 218 F. Supp. 885, 887, 53 LRRM2783(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 INVESTIGATIONTheOfficeisnotprecludedfromproceedingwithinvestigationofa timelyreceived
electionviolationcomplaintinasituationwheretheInternationalhasimposedatrusteeshipasaconsequence of the questioned election. A trusteeship imposed for the purpose of frustratinginvestigation or prosecution of election violations will not be condoned. On the other hand, it isrecognized that use of such control by a parent organization as a device for correcting electionabusesmaywell proveavaluable tool in aid ofa policy of voluntary compliance.
475.300EXAMININGSEALED BALLOTS

A substantial number of mail ballots received by a union in a mail ballot election were notcounted 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, butthey had not been picked up by the union.Since the ballots had been cast by persons who wereeligible to vote, and therefore should have been counted, and because the number involved couldhaveaffected the outcomeof the election,theDepartmentopened the sealedballots.

Ballots, whether sealed or unsealed, are part of the election records required to bemaintained under section 401(e). Since the Secretary has authority under section 601 to examinethese 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 eligiblevoters, if the secrecy of the ballots can be preserved and if the number of votes involved couldhaveaffected the outcome of the election.

(TechnicalRevisions:Dec. 2016)