Union Organization and Voting Rights: Criteria for Characterizing
a Labor Organization as a ``Local,'' ``Intermediate,'' or ``National or
International'' Labor Organization
[11/03/2004]
Volume 69, Number 212, Page 64233-64238
[[Page 64233]]
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Part IV
Department of Labor
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Office of Labor-Management Standards
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Union Organization and Voting Rights: Criteria for Characterizing a
Labor Organization as a ``Local,'' ``Intermediate,'' or ``National or
International'' Labor Organization; Notice
[[Page 64234]]
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DEPARTMENT OF LABOR
Office of Labor-Management Standards
RIN 1215-AB50
Union Organization and Voting Rights: Criteria for Characterizing
a Labor Organization as a ``Local,'' ``Intermediate,'' or ``National or
International'' Labor Organization
AGENCY: Office of Labor-Management Standards, Employment Standards
Administration, United States Department of Labor.
ACTION: Request for information from the public.
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SUMMARY: This notice is a request for information from the public to
assist the Department of Labor (``Department'') in evaluating its
methods for determining when a labor organization constitutes a
``local,'' ``intermediate'' or ``national or international'' labor
organization. Title IV of the Labor-Management Reporting and Disclosure
Act of 1959 (``Act''), 29 U.S.C 481-484, gives the Secretary of Labor
authority to enforce the union officer election provisions of the Act.
The Act calls for different election intervals and methods, depending
on the type of labor union holding the election. In cases in which the
labor organization at issue has no subordinate labor organizations, the
Department considers the labor organization to be a local union if it
exercises functions traditionally associated with local labor
organizations. In cases in which an intermediate body with subordinate
local unions is claimed to be a local union, the Department considers
the intermediate body to be a local union if the intermediate body
performs so many of the functions of the local unions that the local
unions no longer continue to play a meaningful role. See Harrington v.
Chao, 372 F.3d 52 (1st Cir. 2004). This analysis has been informed by
the Department's interpretative regulation, found at 29 CFR 452.11,
which states: ``The characterization of a particular organizational
unit as a `local,' `intermediate,' etc., is determined by its functions
and purposes rather than the formal title by which it is known or how
it classifies itself.'' The purpose of this Request for Information is
to seek public comment on whether the Department's criteria for
determining when a union is a local, intermediate or national or
international union is appropriate, or whether there are alternatives
that would better serve the purposes of the Act, and properly balance
the interests of labor organizations and union members.
DATES: Comments must be received on or before December 3, 2004.
ADDRESSES: You may submit comments, identified by RIN 1215-AB50, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Please
follow the instructions for submitting comments.
E-mail: OLMS-REG-1215-AB50@dol.gov.
FAX: (202) 693-1340. To assure access to the FAX equipment, only
comments of five or fewer pages will be accepted via FAX transmittal,
unless arrangements are made prior to faxing, by calling the number
below and scheduling a time for FAX receipt by the Office of Labor-
Management Standards (``OLMS'').
Mail: Mailed comments should be sent to Lary Yud, Deputy Director,
Office of Labor-Management Standards, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5605, Washington, DC 20210. Because
the Department continues to experience delays in U.S. mail delivery due
to the ongoing concerns involving toxic contamination, commenters
should take this into consideration when preparing to meet the deadline
for submitting comments.
It is recommended that you confirm receipt of your comment by
calling (202) 693-0123 (this is not a toll-free number). Individuals
with hearing impairments may call 1-800-877-8339 (TTY/TDD).
Comments will be available for public inspection during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Kay H. Oshel, Chief, Division of
Interpretations and Standards, Office of Labor-Management Standards,
U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5605,
Washington, DC 20210, olms-public@dol.gov, (202) 693-1233 (this is not
a toll-free number). Individuals with hearing impairments may call 1-
800-877-8339 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Background
a. The Statutory, Regulatory and Administrative Framework
Under the Labor-Management Reporting and Disclosure Act, the
frequency and method by which a labor organization must elect its
officers depends on whether it is a local union, an intermediate union,
or a national or international union. Specifically, section 401(b) of
the Act requires that ``[e]very local labor organization shall elect
its officers not less often than once every three years by secret
ballot among the members in good standing.'' 29 U.S.C. 481(b). Section
401(d) of the Act requires that officers of ``intermediate bodies, such
as general committees, system boards, joint boards, or joint councils,
shall be elected not less often than once every four years by secret
ballot among the members in good standing or by labor organization
officers representative of such members who have been elected by secret
ballot.'' 29 U.S.C. 481(d). Section 401(a) requires that ``[e]very
national or international labor organization * * * shall elect its
officers not less often than once every five years either by secret
ballot among the members in good standing or at a convention of
delegates chosen by secret ballot.'' 29 U.S.C. 481(a).
The Act does not define the terms ``local,'' ``intermediate,'' or
``national or international.'' The Department's regulations state:
``The characterization of a particular organizational unit as a
`local,' `intermediate,' etc., is determined by its functions and
purposes rather than the formal title by which it is known or how it
classifies itself.'' 29 CFR 452.11. The same regulation provides
examples of entities that are intermediate bodies, i.e., ``general
committees, conferences, system boards, joint boards, or joint
councils, certain districts, district councils and similar
organizations.'' Id. Various of these named intermediate bodies are
described more fully elsewhere, see 29 CFR 451.4(f), but none of the
regulations comprehensively define any of these critical terms, or
provide a framework for distinguishing among local, intermediate or
national and international labor organizations.
The definition of the term labor organization is also relevant to
identifying the status--local, intermediate, or national or
international--of a labor organization. Indeed, the first step in any
such inquiry is to confirm that the entity in question is in fact a
labor organization. The term labor organization is defined by statute:
``Labor organization'' means a labor organization engaged in an
industry affecting commerce and includes any organization of any
kind, any agency, or employee representation committee, group,
association, or plan so engaged in which employees participate and
which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of
pay, hours, or other terms or conditions of employment, and any
conference, general committee, joint or system board, or joint
council so engaged which is subordinate to a national or
international labor organization, other than a State or local
central body.
29 U.S.C. 402(i).
[[Page 64235]]
As a related part of this inquiry, it is often necessary to
determine that the entity is a distinct labor organization rather than
merely a part or component of a larger labor organization. To resolve
this question, the Department has adopted a methodology, found in the
LMRDA Interpretative Manual, to determine whether an entity is a
discrete labor organization or merely an undifferentiated portion of an
encompassing labor organization. The methodology follows:
030.603 Separate Existence
To be considered a labor organization under the Act an entity
must be a separate organization having an organic existence or
structure of its own, in addition to having the other
characteristics of a labor organization as set forth in sections
3(i) and (j) [29 U.S.C. 402(i) (j)]. It may not be a mere
administrative arm or an integral, undifferentiated part of another
labor organization. Various factors are considered when determining
whether an entity has a separate existence. It is not feasible to
prescribe a precise formula. An analysis must be made of all the
facts concerning the structure and function of a particular entity
and a determination made on the evidence as a whole. Factors to be
considered include: Whether the existence of the entity is
recognized by means of a charter, reference in the parent body's
constitution, or some other manner; whether it has a distinct and
identifiable membership; whether it may accept or reject
applications for membership; whether it has its own officers;
whether it holds meetings as a unit with some regularity or
frequency; whether it has assets of its own; whether it may expend
funds allocated to it or raised by it; whether it may assess and
collect dues, fees or assessments; whether it may discipline its
members; whether it is represented as a unit at conventions or
meetings of a parent or other body; and whether it engages in
collective bargaining, grievance handling, or any business
arrangements.
LMRDA Interpretative Manual, 030.603.
As will be discussed in greater detail below, the definition of
``labor organization'' and the methodology for determining separate
existence are critical to determining whether an entity is a labor
union, whether it constitutes one or more unions, and whether it has a
parent or subordinate union or unions. Many larger labor unions conform
to a three tier configuration, with local unions residing at the bottom
tier, in a position subordinate to intermediate bodies, which are
themselves subordinate to a national or international union.
Application of the definition of ``labor organization'' and the
separate existence factors reveals whether a union is placed within a
larger union hierarchy, and, if so, where the union is so situated. The
determination of the structure of the entity and the overall union
hierarchy is the first step in analyzing whether the union is a local,
intermediate, or national or international labor union.
b. Unions Without Subordinate Labor Organizations
In all cases, the Department begins the analysis of whether a union
is a local, intermediate, or national or international union with an
analysis of the union's structure. This structural analysis is used to
determine whether the entity is a labor organization, to determine
whether it constitutes one or more unions, and to determine where it is
situated, if at all, within a larger hierarchy of affiliated unions.
Two cases illustrate the analysis that the Department applies when such
a structural review reveals that an entity that has no subordinate
bodies claims to be an intermediate or national or international union.
In Schultz v. Employees' Fed'n of the Humble Oil & Refining Co.
(``Humble Oil''), 74 L.R.R.M (B.N.A.) 2140, 1970 U.S. Dist. LEXIS
12288, 1970 WL 5445, (S.D. Tex. Mar. 31, 1970), the defendant,
Employees' Federation of the Humble Oil and Refining Company,
Production Department, South Texas Division, contended that it could
not be a local union because it contained 26 divisions that were
separate locals. The Department disagreed, and filed a civil
enforcement action against the defendant. As suggested by the LMRDA
Interpretative Manual, discussed above, the court first determined
whether the defendant's divisions were discrete labor organizations.
Humble Oil, 74 L.R.R.M. at 2141-42. The court determined that the
divisions had no autonomy separate from the defendant. Id. at 2143. The
divisions did not maintain any bank accounts, lease any office space,
or employ any persons. Id. They maintained no dues records, membership
lists, admission procedures, and retained no authority to expel or
discipline officers or members. Id. The divisions were thus, the court
held, ``mere administrative arms or subunits'' of the defendant, and
the defendant thus had ``the non-complex structure [that] is typical of
a local labor organization,'' with no discrete labor organizations
subordinate to it. Id.
Having determined that the defendant's structure was consistent
with a local labor organization, the court reviewed the defendant's
functions. The court wrote: ``The defendant performs the basic local
union functions. It settles grievances; collects dues and establishes
wages, benefits and working conditions by contract negotiations with
the employer; and disciplines its members and officers.'' Id.
A second case also reflects the Department's method for determining
whether a labor union is a local, under circumstances where a
structural analysis has revealed that a union that claims not to be a
local union is the entity closest to the union members. In Donovan v.
Nat'l Transient Div., Int'l Bhd. of Boilermakers, (``Boilermakers''),
736 F.2d 618 (10th Cir. 1984), the defendant, National Transient
Division (``NTD''), characterized itself as a division of an
international labor organization. It represented craftsmen who traveled
throughout the United States. Id. at 619. The court first held that the
NTD was a labor organization itself, and not merely a division of the
international labor organization. Id. at 621-22. Next, the court
determined that the NTD was a local, rather than an international,
labor organization. Id. at 622-23. The court observed that the NTD was
``subordinate to the International, and has no subordinate labor
organizations.'' Id. at 623. Thus, the court held, the NTD ``has the
relatively simple organizational structure characteristic of local
labor organizations.'' Id.
The court also reviewed the functions of the union. ``Most
important, NTD performs the functions of a local. NTD officials
negotiate the basic terms of collective bargaining agreements, ensure
that those agreements are enforced, handle grievances, collect dues
from members, maintain out-of-work lists, hold meetings at which
members express their views, and provide a number of other services
directly to NTD members.''
In both Boilermakers and Humble Oil, the Department advanced the
position that the structure of a union must be closely analyzed to
determine whether the entity in question is part of another labor
organization or whether it has subordinate labor organizations. In both
cases, this analysis revealed that the labor organization in question
was the labor organization closest to the members. At that point, the
Department looked to whether the union exercised a variety of functions
traditionally associated with local labor unions, and if so, took the
position that the union was a local labor organization.
c. Intermediate Bodies With Subordinate Labor Organizations
In a recent case, the Department examined the methodology used to
distinguish an intermediate union from a local union. Harrington v.
Chao, 372 F.3d 52, 63 (1st Cir. 2004). In this case, the labor
organization in question was
[[Page 64236]]
structurally intermediate, in that it was subordinate to a national
union and oversaw local labor organizations, but it performed a number
of important functions generally performed by local unions. The
``inquiry in determining whether an entity designated by the union as
an intermediate body should instead be considered a local body,'' the
Department explained, ``is whether the intermediate body has taken on
so many of the traditional functions of a local union that it must in
actuality be considered a local union.'' January 31, 2003, Supplemental
Statement of Reasons for Dismissing the Complaint of Thomas Harrington,
p 3. ``If the subordinate organizations in fact continue to perform
functions and exist for purposes traditionally associated with local
labor unions, the union's characterization of an entity placed
structurally between such organizations and the international union as
an 'intermediate body' will be upheld even though the intermediate body
also performs some other functions traditionally associated with local
unions.'' Id. at 4. This analysis was upheld by the U.S. Court of
Appeals for the First Circuit. Harrington, 372 F.3d at 63.
The Department's extensive explanation of the method for
distinguishing intermediate unions from local unions was the result of
a union member's complaint, and subsequent litigation. In 1999, several
union members filed an election protest with the Secretary pursuant to
Title IV of the Act, 29 U.S.C. 482, arguing that the New England
Regional Council of Carpenters (``NERCC'') was not an ``intermediate
body,'' but a ``local labor organization'' required by section 401(b)
of the Act to ``elect its officers not less often than once every three
years by secret ballot among the members in good standing.'' 29 U.S.C.
481(b). The NERCC comprised 27 affiliated locals and was subordinate to
the United Brotherhood of Carpenters and Joiners of America (``UBC''),
a national labor organization. The NERCC was created in 1996, when the
UBC combined state and district councils, as well as independent local
unions, into larger regional councils. In New England, the NERCC, a
single, regional council overseeing a number of pre-existing local
unions, had over 25,000 members. The NERCC's subordinate bodies
constituted separate labor organizations.
In April 2000, the Department issued a Statement of Reasons
explaining why it had determined that the NERCC was an ``intermediate
bod[y]'' within the meaning of section 401(d) of the Act, 29 U.S.C.
481(d), and could therefore elect its officers every four years either
by secret ballot among the members in good standing or by a vote of
delegates who had been elected by secret ballot by the members in good
standing of NERCC's subordinate locals.
The complainants challenged this determination in United States
District Court, which rejected the suit. Harrington v. Herman, 138 F.
Supp. 2d 232 (D. Mass. 2001). The complainants appealed to the United
States Court of Appeals for the First Circuit, which reversed the
district court and vacated the Department's Statement of Reasons.
Harrington v. Chao, 280 F.3d 50 (1st Cir. 2002). The statement was
flawed, the court held, because it left two questions unanswered. Id.
at 57. First, the statement suggested that the Department had rejected
a ``functional'' analysis in determining whether a labor organization
is a local or an intermediate labor organization, notwithstanding a
regulation holding that the ``characterization of a particular
organizational unit * * * is determined by its functions and
purposes.'' Id.; see 29 CFR 425.11. Second, the statement failed to
discuss two relevant cases, leaving it unclear whether the Department's
approach was consistent with these precedents, and the positions that
the Department had taken while litigating them. Id. at 57-58, citing
Donovan v. Nat'l Transient Div., Int'l Bhd. of Boilermakers,
(``Boilermakers''), 736 F.2d 618 (10th Cir. 1984), and Schultz v.
Employees' Fed'n of the Humble Oil & Refining Co. (``Humble Oil''),
1970 U.S. Dist. LEXIS 12288, 1970 WL 5445, 74 LRRM 2140 (S.D. Tex. Mar.
31, 1970).
On remand, the Department issued a lengthy Supplemental Statement
of Reasons that explained why the NERCC was properly characterized as
an intermediate body under the Act, the regulations, and the applicable
precedent. First, the statement recognized that the Department's
regulations, specifically 29 CFR 452.11, made it clear that whether an
entity is a local or intermediate body is dependent upon its
``functions and purposes'' as opposed to ``the formal title by which it
is known or how it classifies itself.'' In construing this language,
the Department reasoned that an entity designated by the union as an
intermediate body should instead be considered a local body if the
intermediate body ``has taken on so many of the traditional functions
of a local union that it must in actuality be considered a local
union.'' Although the statement recognized that the Department has
never found an organization at the middle tier of a union structure to
be a local, the statement observed that Congress' requirement of direct
elections for local unions demonstrated its view that local unions
perform meaningful functions. Viewing the regulation in light of this
history and Congressional intent, the Department concluded, ``If the
subordinate organizations in fact continue to perform functions and
exist for purposes traditionally associated with local labor unions,
the union's characterization of an entity placed structurally between
such organizations and the international union as an `intermediate
body' will be upheld even though the intermediate body also performs
some other functions traditionally associated with local unions.''
Supplemental Statement of Reasons, p.4.
Second, the Department analyzed the legislative history of the Act
and the actual practices of unions when the Act was passed to conclude
that intermediate, national, and international labor organizations at
that time engaged in important representational activity both in
conjunction with, and in lieu of, subordinate local unions.
Specifically, the Department noted that the Act's legislative history
makes it clear that intermediate bodies may wield ``responsible
governing power'' within a labor union without being considered local
unions under the Act. S. Rep. No. 187, 86th Cong., 1st Sess. at 20,
reprinted in 1959 U.S.C.C.A.N. 2318, 2336. National Labor Relations
Board decisions issued prior to enactment of the Act, the Department
noted, made plain the practice of superior labor organizations to
bargain collectively on behalf of subordinate entities.
Third, the statement observed that the organization's placement
within the structure of a union was ``highly relevant in determining
whether it is a `local' or `intermediate' union.'' The statute itself
identifies intermediate bodies by their structural placement within the
hierarchy of affiliated unions, or by a name historically associated
with a particular tier within the union. The term Congress used to
denominate these entities--intermediate bodies--suggests the relevance
of an organization's placement within the overall structure of the
union. The language of the statute, the Department concluded,
authorized the Department to take into account the entity's structural
placement when considering whether it is an intermediate body or a
local union.
The Department also reviewed the case law for consistency with its
analysis of the regulation, statute, and legislative history. The
statement
[[Page 64237]]
concluded that the positions that the Department took in Boilermakers
and Humble Oil, and the dispositions in those cases, did not compel a
different analysis. In both cases, there were no labor organizations
subordinate to the union whose status was at issue, and categorization
as a local union was thus consistent with both the union's structure
and functions. The cases, the statement concluded, provided no
controlling authority when a union's structure and functions were not
aligned.
Applying the Department's analysis, which reviewed the NERCC's
structural placement within the hierarchy of affiliated unions, the
NERCC's functions, and the functions of the NERCC's locals, the
Department determined that the NERCC was an intermediate union.
Dissatisfied with the Supplemental Statement of Reasons, the
complainants renewed the litigation in the United States District Court
of Massachusetts, which granted judgment for the complainants.
Harrington v. Chao, 286 F.Supp. 2d 80 (D. Mass. 2003). The Department
appealed, bringing the issue once again before the Court of Appeals for
the First Circuit.
In a split decision, the Court of Appeals ruled that the Department
did not act arbitrarily and capriciously in declining to bring suit
against the NERCC. Harrington v. Chao, 372 F.3d 52 (1st Cir. 2004). The
court reversed the district court, upholding the Department's
determination that the NERCC is an ``intermediate'' labor organization
and therefore not required to elect its officers directly. Id.
The complainant's primary argument was that the Department did not
focus upon the NERCC in conducting its analysis, in order to determine
whether the NERCC exercised local rather than intermediate functions,
but improperly focused on the locals themselves. Id. at 60. Circuit
Judge Lynch, writing for the court, observed that the Department
examined the functions of the NERCC, as well as those of the locals,
and noted that some of those functions, such as collective bargaining
and disciplining members, have historically been the province of both
locals and intermediate bodies dating back prior to the passage of the
Act. Id. at 60. Further, the court rejected the argument that because a
local traditionally performed collective bargaining and grievance
handling, any labor organization, regardless of its placement within
the union's structure, would also be local if it performs these
functions. The court reasoned that this assumption would contradict the
Congressional observation that intermediate bodies exercise
``responsible governing powers,'' and nothing in the statute required
the Department to draw up a list of functions that could be performed
by one kind of entity but not any others. Id. at 62. The court
concluded that although the Department's approach had shifted in
emphasis, the Department was permitted some flexibility in interpreting
the Act and the regulations provided it furnished some explanation,
which it did here. Id. at 63.
In a concurring opinion, Circuit Judge Lipez expressed concern that
Congress did not intend intermediate bodies to hold the degree of power
held by the NERCC, but nonetheless upheld the Department's conclusion
because of the ``highly deferential standard'' under which the courts
review the Department's decision not to sue. Id. at 63-70. In a
dissenting opinion, Circuit Judge Torruella faulted the Department's
analysis for focusing on the powers retained by the subordinate bodies,
and not on the NERCC's powers, and stated that this represented an
impermissible departure from past administrative practice. Id. at 70-
75.
d. Review of the Method of Determining the Status of Labor Organization
The judicial decision upholding the Department's method of
determining whether a union is a local or an intermediate held that the
Department's position was lawful, but did not address whether the
position struck the most favorable balance between protecting union
members' interests and preserving unions' ability to structure
themselves in a manner they deem most advantageous.
In its initial opinion, the Court of Appeals indicated that if the
Secretary should wish to change the governing regulation, 29 CFR
452.11, she must do so in accord with the general rulemaking provisions
of the Administrative Procedure Act, 5 U.S.C. 553. Harrington v. Chao,
280 F.3d at 59. Congress has implicitly delegated the authority to the
Secretary to interpret the union officer election provisions of the Act
by charging her with a variety of substantial responsibilities under
the statute, not the least of which is the Secretary's authority to
investigate allegations of election violations. See 29 U.S.C. 481. The
delegation of legal interpretive power is also evident in her exclusive
authority to file a civil action in U.S. district court, seeking an
order that a union election be declared void, and a new election be
conducted under the supervision of the Department of Labor. See 29
U.S.C. 482.
The determination of the status of a labor organization is a
complex matter. To better understand the effect of the Department's
current regulatory and interpretive framework on unions, union members,
and the public, the Department seeks additional information. This
information will permit the Secretary to determine whether the
Department's position adequately meets the needs of labor organizations
and their members, and to determine whether additional rulemaking is
necessary to fully realize the purposes of the Act.
II. Information Sought
The Secretary seeks public comment from interested parties
regarding the Department's analyses for determining whether a labor
organization constitutes a local, intermediate, or national or
international labor organization. In particular, the Secretary is
seeking written submissions on the following topics:
The terms ``local labor organization'' and ``intermediate bod[y]''
and ``national or international labor organization'' are not defined in
the Act but they are crucial in the Title IV scheme for democratic
union elections. Should the Secretary issue a regulation defining these
terms? If so, what should these definitions be? What elements or
factors should be considered when formulating definitions for these
terms?
Are there certain functions that are so inextricably related to the
fundamental purpose of unions and the daily work life of their members
that labor organizations exercising these functions must be considered
local unions?
If so, what are these functions? Are these functions limited to
labor relations functions such as negotiating collective bargaining
agreements, ratifying collective bargaining agreements, handling
grievances, handling arbitration, controlling work referral systems,
controlling business agents, controlling organizers, controlling
stewards, calling strikes, etc.? Or should other functions such as
disciplining members, raising rates of dues, or controlling a large
part of the dues paid by members also be considered?
If a list of such functions could be compiled, how would the
functions be applied to determine local union status? For example,
should such a method require that an entity exercise a certain number
of the functions to be considered a local or are one or two of the
functions so critical that exercising them would be evidence of local
status?
Are there any functions uniquely associated with national or
international unions, suggesting that any entity with such
characteristics would be considered a national or international
[[Page 64238]]
union? Similarly, are there functions that are uniquely associated with
intermediate bodies?
The factors that the Department uses in determining whether an
entity has a separate organic existence or structure of its own, as
described in the LMRDA Interpretative Manual, are:
Whether the existence of the entity is referenced through a
charter, referenced in the parent body's constitution and bylaws, or
some other manner
Whether it has its own constitution and bylaws, or other
governing rules
Whether it has a distinct and identifiable membership
Whether it may accept or reject applications for membership
Whether it has its own officers
Whether it holds meetings as a unit with some regularity or
frequency
Whether it has assets of its own
sessments
Whether it may discipline its members
Whether it is represented as a unit at conventions or
meetings of a parent or other body
Whether it engages in collective bargaining
Whether it engages in grievance handling
Whether it engages in any business arrangements
LMRDA Interpretative Manual, 030.603.
Are all of these factors relevant to determining whether a labor
organization has a separate existence? Are relevant factors missing
from this list? At what point has an entity lost so many of these
attributes that it becomes an administrative arm of another labor
organization, rather than a separate labor organization?
How much significance should be attributed to an entity's placement
above a local labor organization within a hierarchy of affiliated labor
organizations in determining if it is a local or intermediate body?
Would the application of a strictly functional test to determine the
status of a labor union be consistent with the Act?
What concerns, if any, would arise from an intermediate body being
reclassified as a local union? What effect, if any, would
classification of an intermediate body as a local union have on the
local status of its subordinate unions (assuming the subordinate unions
retain sufficient functions and attributes distinct from the purported
intermediate body to constitute discrete labor organizations)? Can a
union supervise other local unions and still maintain status as a local
union?
There appear to be cases in which an intermediate body, or a
national or international union, has members that are not members of a
local union. What elections do these members participate in? Should the
existence of such members be a factor in determining the status of a
labor organization as a local union? If so, what weight should this
factor be given?
Have any unions changed their structure in reliance on the
Department's existing positions? Have unions developed plans to devolve
additional responsibility to intermediate or national or international
labor organizations, based on the Department's articulated positions?
What is the proper analysis to distinguish a national or
international union from a local? Should a different analysis apply if
the entity at issue has constituent labor organizations? Should the
method of distinguishing a national or international union from a local
union be the same or different than that used to distinguish an
intermediate body from a local?
In addition to these questions, the Department seeks information
and evidence on the following topics:
The functions performed by a typical local in 1959
The functions performed by a typical intermediate body in 1959
The difference in the functions of locals today as compared to
1959
The difference in the functions of intermediate bodies today
as compared to 1959
Situations in which union bodies other than a local union
perform functions such as negotiating collective bargaining agreements,
ratifying collective bargaining agreements, handling first stage
grievances, handling arbitration, controlling work referral systems,
controlling business agents, controlling organizers, controlling
stewards, calling strikes, etc.
Signed at Washington, DC, this 27th day of October, 2004.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Don Todd,
Deputy Assistant Secretary for Labor-Management Programs.
[FR Doc. 04-24452 Filed 11-2-04; 8:45 am
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