[Federal Register Volume 71, Number 106 (Friday, June 2, 2006)]
[Rules and Regulations]
[Pages 31929-31942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8626]
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DEPARTMENT OF LABOR
Office of Labor-Management Standards
29 CFR Part 458
RIN 1215-AB48
Standards of Conduct for Federal Sector Labor Organizations
AGENCY: Office of Labor-Management Standards, Employment Standards
Administration, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (Department) proposed to revise the
regulations applicable to Federal sector labor organizations subject to
the Civil Service Reform Act of 1978 (CSRA), the
[[Page 31930]]
Foreign Service Act of 1980 (FSA), and the Congressional Accountability
Act of 1995 (CAA) (referred to collectively as ``these Acts''). This
document sets forth the Department's review of comments submitted by
the public on the proposal, the Department's response to those
comments, and the changes from the proposal that are embodied in a
final rule.
The Department will require each labor organization subject to
these Acts to periodically inform their members of their rights as
union members as set forth in the standards of conduct provisions of
these Acts and their implementing regulations.\1\ Labor organizations
subject to this rule must provide written notice to existing members
within 90 days after the effective date of the regulation and to new
members within 90 days of their joining the organization. Such
notification must also be given to each member at three-year intervals.
Notification may be made by hand delivery, regular mail, electronic
mail (e-mail), or a combination of these methods as long as the method
selected is reasonably calculated to reach all members. A labor
organization is permitted, but not required, to include such notice
with the organization's notice of election of officers if such notice
is mailed to members at least every three years. If a labor
organization has a Web site, the site must contain a link to the CSRA
Union Member Rights, or, alternatively, provide the organization's own
notice as long as the notice accurately states all of the CSRA
standards of conduct provisions. OLMS will use the existing
administrative mechanism in the standards of conduct regulations for
resolving complaints related to this rule. Where OLMS determines after
investigation that a violation has occurred and has not been remedied,
OLMS will institute enforcement proceedings against the labor
organization before the Department's Office of Administrative Law
Judges.
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\1\ To avoid unnecessary repetition, this final rule will refer
to the standards of conduct provisions of the CSRA, the FSA, and the
CAA and the Department's regulations implementing these provisions
as the ``CSRA standards of conduct.''
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DATES: Effective Date: This rule will be effective on July 3, 2006.
FOR FURTHER INFORMATION CONTACT: Kay Oshel, Director, Office of Policy,
Reports, and Disclosure, Office of Labor-Management Standards (OLMS),
U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5605,
Washington, DC 20210, [email protected], (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
On November 3, 2004, the Department issued a notice of proposed
rulemaking (69 FR 64226) proposing revisions of the regulations
applicable to Federal sector labor organizations subject to the Civil
Service Reform Act of 1978, 5 U.S.C. 7120 (CSRA), the Foreign Service
Act of 1980, 22 U.S.C. 4117(d) (FSA), and the Congressional
Accountability Act of 1995, 2 U.S.C. 1351(a)(1) (CAA). As the notice
explained, the purpose of the revision is to require labor
organizations subject to these Acts to periodically inform members of
their democratic rights as set forth in the standards of conduct
provisions of the Acts and their implementing regulations. These rights
include, among others, the right to participate in union affairs,
freedom of speech and assembly, and the right to nominate candidates
for office and run for office. A summary description of these rights
and other pertinent standards of conduct provisions can be found in the
Department of Labor publication Union Member Rights and Officer
Responsibilities under the Civil Service Reform Act, which is appended
to this Final Rule.
Before issuing this proposal, Department officials met with
representatives of the regulated community, including unions and
organizations advocating greater democracy within labor organizations,
to hear their views on the need for the proposed rule and the likely
impact of changes that might be proposed. The Department's proposal,
developed with these discussions in mind, requested comments on
numerous specific issues in order to obtain the views of the parties
affected by the proposal and to fully inform the Department in
developing the final rule.
As noted in the Department's proposal, this rule amends the
regulations for unions subject to the standards of conduct provisions
of the CSRA, FSA and CAA to require such unions to inform members of
the standards of conduct provisions found at 29 CFR parts 457-459. The
CSRA standards of conduct regulations make certain provisions of the
Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29
U.S.C. 401 et seq. applicable to federal sector labor organizations.
The standards incorporate portions of the reporting provisions of the
LMRDA's Title II (compare 29 U.S.C. 431 with 29 CFR 458.3), the
trusteeship provisions of Title III (compare 29 U.S.C. 461-466 with 29
CFR 458.26-.28), the union democracy provisions of Title IV (compare 29
U.S.C. 481 with 29 CFR 458.29), and the fiduciary obligations of Title
V (compare 29 U.S.C. 501(a) with 29 CFR 458.31), among others.
Most pertinent here, the standards of conduct regulations
incorporate Title I of the LMRDA (Bill of Rights of Members of Labor
Organizations) virtually verbatim. See 29 CFR 458.2. Union member
rights protected by Title I of the LMRDA include the right to:
Nominate candidates for union office;
Vote in elections or referenda;
Attend membership meetings and vote upon the business of
union meetings;
Meet and assemble freely with other members, and express
views, arguments and opinions;
Participate in setting rates of dues, fees, and
assessments;
File a lawsuit;
Receive notice and a fair hearing before being
disciplined; and
Inspect or obtain copies of collective bargaining
agreements between an agency-employer and the member's union (for
members and other employees affected by the agreement).
29 U.S.C. 411-415. The standards of conduct regulations do not,
however, incorporate the important protection found in section 105 of
the LMRDA. Compare 29 U.S.C. 411-415 with 29 CFR 458.2. This provision
states that ``every labor organization shall inform its members
concerning the provisions of this Act.'' 29 U.S.C. 415. The
Department's proposal would revise the standards of conduct regulations
to correct this omission.
When the comment period closed on January 3, 2005, OLMS had
received over 750 comments, including 24 detailed, substantive comments
from labor organizations, individual union officials, public interest
and trade groups, and a Member of Congress, and over 700 copies of a
form letter supporting the proposed rule. All the comments have been
carefully reviewed and considered. The Department's analysis of the
comments follows.
II. Comments on the Proposal and Responses to the Comments
A. General Comments
In addition to many specific comments that are discussed in the
sections that follow, many of which were from unions in opposition to
the proposed regulation, the Department also received over 700
identical comments from individuals in support
[[Page 31931]]
of the Department's proposed reform, stating: ``[t]his requirement is
sorely needed to prevent federal employee unions from becoming personal
fiefdoms in which a few powerful union officials control the
organization * * * [i]nforming union members of their rights is an
essential part of strengthening union democracy and protecting the
federal civil service from corrupt union officials.'' Although the
value to the Department of these comments was diminished by the
individuals' failure to articulate whether they are union members or
federal employees, the comments do show strong support among numerous
individuals for the proposed reform.
B. The Secretary's Statutory and Regulatory Authority
Under the CSRA, a Federal agency ``shall only accord recognition to
a labor organization that is free from corrupt influences and
influences opposed to basic democratic principles.'' 5 U.S.C. 7120(a).
To avoid having to prove that it is free from corrupt influences, a
public sector union must adopt governing documents that guarantee
``democratic procedures and practices including provisions for periodic
elections to be conducted subject to recognized safeguards and
provisions defining and securing the rights of individual members to
participate in the affairs of the organization, and to receive fair
process in disciplinary proceedings.'' Id. The provisions must include
the exclusion from union office individuals ``identified with corrupt
influences,'' the prohibition of financial conflicts of interests on
the part of union officers and agents, and the maintenance of fiscal
integrity in the conduct of the affairs of the organization. Id. A
union seeking to be the bargaining representatives of Federal employees
must file financial reports with the Department, provide for bonding of
union officials and employees, and adhere to trusteeship and election
standards. 5 U.S.C. 7120(c). The Secretary implements these provisions
through a grant rulemaking authority that authorizes regulations as are
``necessary to carry out the purposes'' section 7120. These regulations
are to ``conform generally to the principles applied to labor
organizations in the private sector.'' 5 U.S.C. 7120(d). A second grant
of rulemaking authority is found in section 7134, which authorizes
rules and regulations to carry out the provisions of section 7120 just
discussed. 5 U.S.C. 7134. The Standard of Conduct regulations
promulgated under these grants are found in 5 CFR parts 457-459. A
summary description of their provisions can be found in the Department
of Labor publication Union Member Rights and Officer Responsibilities
under the Civil Service Reform Act, which is appended to this Final
Rule. The Final Rule adds another provision to these regulations
requiring federal sector unions to provide notice to their member of
the existing Standards of Conduct provisions.
The International Association of Machinists (IAM) challenged the
Secretary's authority to issue the proposed rule, asserting that
section 105 requires notice of rights that are held only by private
sector union members and its application to federal sector unions
therefore falls outside of the Secretary's rulemaking authority.\2\
Specifically, the IAM argues that the CSRA does not grant public sector
union members individual rights in the same manner as the LMRDA, and
there are, thus, no rights of which union members can be notified. In
support of its position, the IAM asserts:
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\2\ The legal authority for this notice of proposed rulemaking
is the standards of conduct provisions of the CSRA, 29 U.S.C.
7120(d), 7134, and the FSA, 22 U.S.C. 4117. These provisions
expressly authorize the Assistant Secretary of Labor for Labor
Management Relations to issue regulations implementing standards of
conduct that conform generally to the principles applicable to labor
organizations in the private sector. This position no longer exists
and through a series of Secretary's Orders, most recently embodied
in Order 4-2001, which was issued May 24, 2001, and published in the
Federal Register on May 31, 2001 (66 FR 29656), the Assistant
Secretary for Employment Standards has the authority and
responsibility to carry out the standards, programs and activities
under the CSRA, FSA and CAA. In addition, under the CAA, the Office
of Compliance, U.S. Congress, has issued regulations, expressly
approved by the House and Senate, providing that the Secretary is
responsible for issuing decisions and orders on standards of conduct
matters. See 142 Cong. Rec. S12062-01, S12074 (October 1, 1996); 142
Cong. Rec. H10369-06, 10382 (September 12, 1996).
[T]he first sentence of Section 7120(a) states a general
requirement that Federal agencies shall only accord recognition to
Unions that are free from corrupt influences. The second sentence
provides that unions do not have to prove freedom from corrupt
influences if their governing documents incorporate the standards
set out in subsections (a)(1) through (a)(4). Thus, section 7120(a)
effectively requires Federal-sector Unions to build the enumerated
LMRDA-type rights into their constitutions, bylaws, and governing
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policies.
From the premise that a Federal employee's rights derive solely
from the union's governing documents, the IAM concludes that public
sector union members have no ``free standing rights under Section
7120'' and, therefore, ``Section 105's purpose of alerting Union
members to such external rights is simply absent.'' The Department's
proposal is, therefore, ``ill-conceived'' and ``lack[s] statutory
authority.'' The National Federation of Federal Employees (NFFE), an
affiliate of IAM, advances IAM's arguments in its comments.
The IAM's argument that Federal sector union members possess only
the rights embodied in the unions' governance documents is
unpersuasive. Its related argument that section 105 exists only to
provide notice of external, ``free-standing'' rights also is
unconvincing. Contrary to the IAM's suggestion, section 7120 provides,
by force of law, that unions representing Federal employees ensure:
The maintenance of democratic procedures and practices including
provisions for periodic elections to be conducted subject to
recognized safeguards and provisions defining and securing the
rights of individual members to participate in the affairs of the
organization, and to receive fair process in disciplinary
proceedings.
5 U.S.C. 7120(a)(1). Congress chose to ensure such ``rights of
individual members'' by encouraging unions to adopt these protections
in their constitution rather than by direct regulation of the unions.
But the result is precisely the same: every recognized public sector
union member enjoys these protections by statute.
In addition, section 7120 operates directly to regulate unions in a
manner that preserves important union member rights. ``A labor
organization which has or seeks recognition as a representative of
employees under this chapter shall file financial and other reports * *
*, provide for bonding of officials and employees of the organization,
and comply with trusteeship and election standards.'' 5 U.S.C. 7120(c).
By direct operation of law, therefore, labor unions representing
federal employees must comply with stringent standards concerning full
and accurate financial disclosure, responsible use of trusteeship
authority, and fair and democratic elections. See 29 CFR 458.3
(reporting requirements), 29 CFR 458.26 (purposes for which a
trusteeship may be established), and 29 CFR 458.29 (election of
officers). These requirements by necessity vest union members with
individual rights. For example, a union's duty to hold a fair election
necessarily encompasses a union member's right to speak freely, express
views, and support the candidate of his or her choice. If the election
did not encompass these rights, the union member may file a complaint
that, if validated by an investigation, could result in a new election,
supervised by the Department of Labor. As a final note, accepting the
argument
[[Page 31932]]
that federal sector union members have no free-standing rights would
require the Department to consider invalid its own regulation, 29 CFR
458.2, which vests Federal sector union members with the same ``Bill of
Rights'' afforded to private sector union members by the LMRDA. The
Department declines to do so.
Even if it were demonstrated that the CSRA does not provide Federal
sector union members ``individual'' or ``free-standing rights,'' the
Department would still reject IAM's argument because it is erroneously
premised on the belief that section 105 requires unions to notify their
members only of individual rights. On the contrary, section 105
provides that ``every labor organization shall inform its members
concerning the provisions of this Act.'' 29 U.S.C. 415. The language
does not limit notice only to ``individual rights'' but is much more
encompassing. This provision of the LMRDA includes, in addition to
rights that IAM would consider free-standing (primarily relating to
election and associational protections), numerous other substantive and
procedural requirements and prohibitions. Thus, even if IAM were right
that the CSRA provides union members with no free-standing rights, this
would not affect the Secretary's statutory authority to require public
sector unions to provide notice of the relevant provisions of the CSRA.
The Department has ample statutory authority to require unions
subject to the CSRA standards of conduct to notify their members of
these provisions. By including fundamental protections within their
governing documents, unions seeking to become a bargaining
representative of Federal employees satisfy their obligation to
demonstrate their freedom from corrupt influences. Despite IAM's
suggestion to the contrary, it does not follow that Congress, in
establishing this statutory framework, intended to deny the Secretary
the authority to further regulate union governance. Indeed, the plain
language of section 7120(d) demonstrates just the opposite. Section
7120(d) reads: ``The Assistant Secretary shall prescribe such
regulations as are necessary to carry out the purposes of this section.
Such regulations shall conform generally to the principles applied to
labor organizations in the private sector.'' 5 U.S.C. 7120(d).
Similarly, the Assistant Secretary is required by the CSRA to
``prescribe rules and regulations to carry out the provisions of''
Chapter 71 (Labor-Management Relations) of Title 5 that are
administered by her. 5 U.S.C. 7134. As the legislative history
indicates, the rulemaking authority was meant to enable the Assistant
Secretary to ``effectuate'' the statute, 5 U.S.C. 7120. See S. Rep. 95-
969, 107-108, 1978 U.S.C.C.A.N. 2723, 2829-30. The notion that sections
7120(a)(1)-(4) reflect the sole obligations of unions covered by the
CSRA would deny effect to section 7120(d), among other subsections, and
ignore the interpretative maxim that a statute should not be construed
in a way that renders a provision superfluous. See, e.g., United States
v. Menasche, 348 U.S. 528, 538 (1955).
A rule that requires unions to provide notice of the provisions of
the CSRA is, to paraphrase the statute, necessary to fully realize the
purposes of the CSRA and conforms generally to the principles
applicable to private sector unions. 5 U.S.C. 7120(d). Notice is
necessary because union member action is often required to ensure that
unions comply with the provisions of the CSRA. A botched or stolen
election cannot be set aside and rerun by the Department until a union
member files a complaint. 29 CFR 458.29, 458.65. A union member who
believes that his or her local union has been placed in trusteeship for
a prohibited reason may file a complaint with OLMS, which, if well-
founded, will result in an enforcement action to lift the trusteeship.
29 CFR 458.26-458.28, 458.53, 458.66(a). The financial reporting
provisions are policed in part by union members who may, under certain
circumstances, examine the union's books to verify the union's
financial reports. 29 CFR 458.3; 29 CFR 403.8(a). The comments indicate
that some unions do not adequately provide notice of the provisions of
the CSRA to their members and that members are not versed in these
provisions. Union members who are not aware of these laws will not
likely take the steps needed to ensure that unions comply with these
laws.
The rule is also consistent with private sector principles. Private
sector unions have, since 1959, been required by statute to provide
their members with notice of the law applicable to them. Section 105 of
the LMRDA requires every covered union ``to inform its members
concerning the provisions of the Act.'' 29 U.S.C. 415. It is evident
from this section that a rule requiring unions subject to the CSRA
standards of conduct to inform members of their rights as union members
and the responsibilities of their union officers ``conforms generally
to principles applied to labor organizations in the private sector.''
In its comments, the International Federation of Professional and
Technical Engineers (IFPTE) stated that the NPRM fails to explain the
absence of a provision in the CSRA comparable to section 105 of the
LMRDA. IFPTE implies that this omission evidences an intention to
relieve federal sector unions of any duty to notify their members of
the provisions of the CSRA. The Department disagrees. IFPTE overlooks
the state of the law pertaining to union regulation at the time the
CSRA was enacted. In 1959, Congress enacted the LMRDA, complete with
multiple titles imposing numerous prohibitions and requirements on
labor unions and other entities. Public Law 86-257, September 14, 1959,
73 Stat. 519-546. By the mid-1960s, the Department had promulgated
detailed regulations implementing and interpreting the LMRDA. See
generally 29 CFR Parts 401-453. Congress did not, and did not need to,
codify in the CSRA detailed provisions already established in the LMRDA
for private sector unions. Instead, Congress chose to enact broad
standards, provide the Assistant Secretary with rulemaking authority,
and instruct the Assistant Secretary to prescribe necessary regulations
that conform generally to the principles applied to private sector
labor unions. 29 U.S.C. 7120. Thus, the absence of any particular
provision in the CSRA comparable to section 105 in the LMRDA does not
mean that Congress did not intend the notification requirement to apply
to unions covered by the CSRA.
IAM and NFFE also argued that the proposed rule ``upset[s] the
balance of rights, duties and responsibilities that Congress enacted in
the CSRA'' by imposing a Federal obligation to highlight some CSRA
rights over others. As discussed above, the notification required under
the rule is within the authority provided the Department to effectuate
the CSRA's standards of conduct. The Department acknowledges that the
CSRA affords unions, their members, and Federal agencies important
rights and obligations not addressed by the rule; however, the
Department does not have express authority to require unions to apprise
members of all their rights under the CSRA, but only those rights
specifically under the authority of the Assistant Secretary, i.e., the
standards of conduct for labor organizations. See 5 U.S.C. 7120(d)
(Assistant Secretary has authority to carry out purposes of section
7120 by rules that conform generally to private sector principles); 5
U.S.C. 7134 (Assistant Secretary has authority to issue rules to carry
out the applicable provisions of Chapter 71 (Labor-Management
Relations) of Title 5). Furthermore, the Department rejects the notion
that informing members
[[Page 31933]]
about their rights as union members somehow diminishes the other rights
and obligations imposed on unions, union members, and agency management
under the CSRA.
The IFPTE notes that the Department proposes to prescribe the
content of the notice and the frequency and method of its distribution,
thus imposing a greater burden on Federal unions than private unions.
The IFPTE asserts that the Department ``offers no factual basis for the
imposition of these unique and burdensome requirements upon Federal
sector unions.'' The Department disagrees that the final rule lacks
factual or legal support. The comments provide factual support for the
findings supporting the final rule, as does the common sense
proposition that increased notice leads to increased awareness. The
particular requirements of the rule are discussed below, along with the
comments and reasoning that support the Department's decision. In
addition, the final rule also has ample legal justification. In Thomas
v. International Ass'n of Machinists, 201 F.3d 517 (4th Cir. 2000), a
labor organization took the position that a notice it provided to its
members forty years ago, shortly after the passage of the LMRDA,
satisfied its section 105 notice obligations. The Court of Appeals
rejected this position, stating that the democratic principles in the
statute ``are meaningless * * * if members do not know of their
existence [because] if a member does not know of his rights, he cannot
exercise them.'' Machinists, 201 F.3d at 520. As stated in the
Department's proposal, at 69 FR 64227, the reasoning in Machinists also
applies to unions governed by the CSRA. Furnishing a notice of the CSRA
standards of conduct provisions to union members furthers the
fundamental policies of Federal labor law. Union members aware of these
provisions are more likely to monitor the conduct of their union and
its officers as it affects their rights and interests as members; such
information also equips them to help remedy any breach of the union's
obligations. Union members who are not informed or aware of their
rights are less able and less likely to take such action.
The Department acknowledges that the final rule imposes on Federal
sector unions more precise requirements concerning the timing and
content of the notice than have been expressly set forth in the law
governing private sector labor organizations. The Department believes
that requiring unions of Federal employees to notify their members of
the provisions of the CSRA is squarely within the rulemaking authority
the Assistant Secretary has been granted, as discussed immediately
above. The Department has also concluded that providing precise
guidelines on the particulars of the notice merely effectuates the
notice requirement and constitutes a reasonable administrative
construction of the requirement. Clear instructions provide detail that
will assist unions in complying with the law. The Department rejects
any implication that the final rule is invalid because no court has
heretofore imposed comparable terms on private sector unions. The
relevant statute requires that CSRA regulations merely ``conform
generally to the principles applied to labor organizations in the
private sectors,'' and nowhere requires that the regulations adhere
precisely in every particular to each articulation of, or omission in,
private sector requirements. See 29 U.S.C. 7120(d).
C. The Need for Notice to Members
The NPRM asked whether union members already receive adequate
notice of their rights as union members. The Department received
relatively few comments from unions on whether members already receive
adequate notice of their rights. The IFPTE stated that it ``fully
supports the principle that it is important to educate union members
about their statutory rights, as employees, citizens and union members,
and devotes appropriate resources to educate members about all these
issues, including their rights and obligations as union members.'' The
IFPTE did not, however, describe the extent of the ``resources'' it
devotes to this effort, the content of the information it provides to
its members, or the frequency with which it provides this notice. NFFE
asserted that ``most unions'' give new members ``membership
information'' and that ``information is consistently and continuously
posted on union websites.'' NFFE did not, however, describe the content
of the information it or other unions provide their members, or the
frequency with which this information is provided. A letter from the
IAM, provided as an attachment to NFFE's comments, asserted that it
takes the following steps: ``[W]e now supply DOL's own summary of the
LMRDA to each new member, publish that summary in issues of our
magazine, and carry it at all times on our website (clearly accessed
from our home page).'' The Department notes, however, that IAM may not
be representative of other unions in that its commendable practices
stemmed from a lawsuit against it by one of its members.
NFFE and the IFPTE asserted that members already have adequate
notice of their rights. Neither of these unions, however, submitted
copies of any information provided to their members, nor did they
suggest that any such information is similar to, or as comprehensive as
that contained in, the CSRA Union Member Rights notice. Other than IAM,
no commenter included a copy of, quotation from, or link to, any
statement of members' rights on a labor organization's Web site (or
other union resource).
On the other hand, the National Right to Work Legal Defense
Foundation (NRTWF) stated that ``the basic provisions of the NPRM are
essential.'' The NRTWF asserted that ``at least one union believes its
legal obligation was satisfied with notices issued to union members two
generations ago.'' The Association for Union Democracy (AUD) argued
that the proposed rule does not go far enough and that there should be
a rule mandating inclusion of a rights notice in union constitutions.
AUD also supported giving full written notice to new union members. One
union official supported the regulation because ``members are not
informed of their rights.'' Congressman Sam Johnson, Chairman of the
Subcommittee on Employer-Employee Relations of the Committee on
Education and the Workforce of the United States House of
Representatives (Congressman Johnson), stated that ``too many of
today's union members are wholly unaware of these rights, as too many
unions have failed to provide their members with the notice of their
rights as contemplated in section 105 of the LMRDA.'' As noted, the
Department also received 700 form comments, stating that the notice is
``sorely needed.''
Many individuals and institutional commenters claim that new
members do not receive adequate notice. A union officer wrote that he
had ``held an office in a local union for over 25 years, [and] not once
during my tenure has my organization provided notice or training
concerning my rights.'' A union member commented that members are
``never'' apprised of their rights as union members. The Americans for
Tax Reform wrote that ``[r]eminding ordinary union members that they
own the union they pay dues to is a great step for worker rights and
democracy.'' The AUD stated that by enacting the proposed regulation
``the DOL will be ensuring that federal sector union members receive
the same information about their rights as private sector union members
are already entitled to under [section] 105 of the [LMRDA].''
[[Page 31934]]
After considering all the comments, the Department has concluded
that each labor organization subject to the CSRA must inform its
members of the relevant provisions of the CSRA. In the Department's
view, there is no persuasive argument that members of federal sector
unions are less deserving of such information than members of unions
solely representing private sector employees. The comments indicate
that unions subject to the proposed rule, as a general matter, do not
already provide such information of their own volition to their
members. The comments also indicate that union members, as a general
matter, are not already aware of the provisions of the CSRA. The
Department has concluded that notice is necessary to ensure that
Federal sector union members are provided a basic understanding of
their rights as union members and the responsibilities of their
officers.
D. Content of the Notice
The NPRM asked whether the CSRA Member Rights publication clearly
and accurately states all union member democratic rights. The NPRM also
asked what specific changes to the language would improve the accuracy
or clarity of the notice.
The Department received comments recommending specific changes to
the document, including the following: the Department should delete the
listing of union officer responsibilities, delete the statement
concerning trusteeships, and delete the statement requiring unions to
provide copies of collective bargaining agreements. Other comments
suggested that the Department should add statements regarding a union's
duty of fair representation, an individual's right to join or not join
a union, the asserted right to ``limit membership'' to financial core
matters, the need to exhaust internal union proceedings in order to
obtain redress for a violation of a member's rights, and the right to
accurate information about union finances. We discuss each of these
points in turn.
NFFE stated union officer responsibilities should not be included
because these duties concern internal union policy, not ``members'
rights.'' The Department disagrees. Members' rights include the
obligations owed members by the officers of their union. Even if the
term ``members' rights'' could be construed in the narrow sense
suggested by NFFE, the notification is designed to apprise members
about all of the relevant CSRA standards of conduct, rather than simply
membership rights. In the Department's view, ``Union Member Rights and
Officer Responsibilities'' better conveys the purpose of the
notification than a title in which ``standards of conduct'' is the
focal point, as a commenter urged, notwithstanding the longstanding use
of the term in Federal sector labor relations.
NFFE further stated that ``the requirement to provide copies of
collective bargaining agreements to dues paying and non-dues paying
members is not a legal requirement under 5 U.S.C., Chapter 71.'' The
obligation that a union provide copies of the collective bargaining
agreement on request to any member of the bargaining unit has long been
established by this Department's regulations. See 29 CFR 458.3. This
rule was adopted in 1980, as part of an overall effort to update the
Department's responsibilities following the CSRA's 1978 enactment. The
obligation existed under regulations promulgated under E.O. 11491, as
amended, the antecedent authority governing labor-management relations
in the Federal service. See 29 CFR 204.2(d) (1979) (indicating source
as 40 FR 19992 (1975)). Moreover, this requirement is the analog to the
LMRDA section 104 obligation of unions ``to forward a copy of each
collective bargaining agreement * * * to any employee who requests such
a copy * * *'' 29 U.S.C. 415, 414. For these reasons, the Department
has determined that the inclusion of this statement in the members'
rights notification is appropriate.
NFFE stated that the notice should include a statement concerning
an employee's right to join a union. Three organizations (NRTWF,
Evergreen Freedom Foundation (EFF), and Stop Union Political Abuse
(SUPA)) recommended that the notice contain a statement concerning an
employee's right not to join a union. Without regard to any possible
merit of including such statements in the notice, the right to join or
not join a Federal sector union is chiefly enforced by the Federal
Labor Relations Authority (FLRA) and is outside the jurisdiction of
this Department.
NFFE contended that the Department lacked the authority to state
that ``[a] union may not be placed in trusteeship by a parent body
except for those reasons stated in the standards of conduct
regulations.'' NFFE claimed that this statement is inconsistent with
three Federal courts of appeals decisions (Reed v. Sturdivant, 176 F.
3d 1051 (8th Cir. 1999); Smith v. Office & Professional Employees
International Union, 821 F.2d 355 (6th Cir. 1987); New Jersey County &
Mun. Council #61 v. American Federation of State, County and Municipal
Employees, 478 F.2d 1156 (3rd Cir. 1973), cert. denied, 414 U.S. 975
(1973)). The Department believes that the statement in question
accurately summarizes the restrictions on trusteeships under the CSRA,
as articulated in the Department's existing regulations. See 29 CFR
458.26. The substantive requirements under the CSRA conform generally
to the LMRDA. Only the enforcement mechanisms are different. As stated
in Reed v. Sturdivant, ``After two circuits construed Title III [of the
LMRDA] as not applying to trusteeships imposed upon local unions of
federal employees, Congress responded by enacting the CSRA, which
mandates the same substantive standards but is enforced by exclusively
administrative remedies.* * *'' 176 F.3d at 1054. For these reasons,
the Department has decided to retain unchanged the statement that ``[a]
union may not be placed in trusteeship by a parent body except for
those reasons specified in the standards of conduct regulations.''
The NRTWF and SUPA requested that the Department include in the
required notice that the union has a duty to fairly represent all
employees in the bargaining unit and to charge dues only for ``core''
union purposes, i.e., for matters such as collective bargaining,
contract administration, and the adjustment of grievances. The duty of
fair representation is not a provision within the authority of the
Department. Although the duty is set forth in the CSRA, this duty
arises independent of an employee's membership in a union and the duty
is enforced by the FLRA, not this Department. For these reasons, the
Department believes it would be inappropriate to include such
statements in the required notice. Similarly, the Department believes
it would be inappropriate to include a statement concerning ``core''
union responsibilities. The Department is not persuaded that the
concept of financial core membership is applicable to Federal sector
union members because a union shop is not permitted under the CSRA and,
in any event, any claimed violation would fall within the authority of
the FLRA, not this Department.
For similar reasons, the Department rejects SUPA's related
recommendation that the notice include the statement that members
possess the ``right to clear, concise, and accurate financial
information * * *, especially for * * * expenditures on ``non-core''
activities.'' The Department believes that the CSRA Union Member Rights
accurately identifies a union's obligation to provide financial
information to its members as relevant to the CSRA provisions for which
the Assistant
[[Page 31935]]
Secretary has responsibility. And, even assuming that there is a
relevant distinction between charges for ``core'' and ``non-core''
activities in the Federal sector, the Department has not been persuaded
that it possesses the authority to require unions subject to this rule
to provide any accounting to members other than those that conform
generally to the principles already prescribed by Title II of the
LMRDA.
The NRTWF also suggested that the notice should be denominated the
``Rights of Represented Employees and Union Officer Responsibilities
under the Civil Service Reform Act'' because non-union member
bargaining unit employees have the same rights to representation as
members. The NRTWF would require unions to send the notices to all
employees in the bargaining unit it represents, members and nonmembers
alike. Protecting representation rights, however, is not one of the
purposes of section 7120 and not one of the provisions of Chapter 71
that is applicable to the Assistant Secretary. 5 U.S.C. 7120(c), 7134.
Thus, there is no express rulemaking authority to issue such a
regulation. The Department is not persuaded that unions should be
required either to include in a notice to their own members a statement
that primarily concerns the rights of nonmembers or that the union
should be required to bear the expense of providing information to
nonmembers (even assuming that the union had addresses or an
alternative means to mail notice to them).
The EFF recommended that unions should be required to use specific
language, developed by the Department, in order to ensure that members
are given proper notice of their rights. Another commenter, an officer
of a Federal union, objected, ``If you allow the unions to abbreviate
the statement, some would also abbreviate the rights.'' On the other
hand, NTEU, and other unions, urged the Department to permit unions to
devise their own language in order to correct perceived omissions in
the notice or provide information tailored to the unique needs of each
union and its membership. After considering the comments, the
Department concludes that it is appropriate to provide unions the
alternative opportunity to devise their own notice. Although use of the
Department-prepared notice ensures uniformity by providing a minimum
compliance standard, uniformity is also its weakness. Such a notice
must of necessity be generic--without any tie to a union's particular
internal practices or procedures. By developing its own notice, a union
may choose to apprise members of their specific rights under the
union's governing documents, and the duties owed by officers and the
members to the union and each other at the same time it informs members
of the provisions of the CSRA. Given the Department's authority to
undertake its own investigation of union compliance with the
notification requirement and its ability to prosecute violations, the
Department believes that it can oversee union practices in devising
language and, if proven necessary, quickly undertake corrective action
without any significant loss of information to members. At the same
time, the Department determined that it was appropriate to make
explicit that the standards to be identified in a union-developed
notice include, at a minimum, each of the standards listed in the OLMS
publication appended to this document. To accomplish this result, the
text of the final rule now clarifies that the union-prepared notice
must accurately state the CSRA provisions as they appear in CSRA Union
Member Rights.
The NRTWF stated that the notice should include statements that
union members have the right to resign their membership and to revoke
their dues authorization. Although the NRTWF correctly states that
union members have these rights, the purpose of the notice is to inform
members generally of the standards of conduct provisions in the CSRA
and the Department's regulations, not to provide an exhaustive list of
union member rights, as recognized by the courts or other authorities.
Similarly, as discussed above, the Department was not expressly
authorized by Congress to prescribe rules that would more generally
require unions to apprise members of their collective bargaining and
other rights and obligations under the CSRA.
NFFE and NTEU recommended that the notice contain a statement that
``employees should exhaust internal union administrative procedures
prior to seeking department relief regarding the election of
officers.'' In crafting the proposed rule, the Department considered
the inclusion of a statement specifically alerting union members that
they may be required to ``exhaust'' internal procedures before
obtaining relief under the standards of conduct provisions. The
Department concluded that a relatively complete yet succinct statement
of the exhaustion principle could not be accomplished through a summary
notice and that the very term ``exhaustion'' might be confusing to some
individuals. For these reasons, the Department instead included the
following statement in the notice. ``If you need additional information
* * * please contact OLMS * * *. You should also refer to 29 CFR 457.1-
459.5, and your union's constitution and bylaws for information on
union procedures, timelines, and remedies.'' The Department's view
remains that this approach is preferable to an attempt to include even
a truncated statement of the exhaustion principle in the notice.
Furthermore, as NTEU noted, a union may choose to include such
information in a notice of its own devising. This approach would allow
a union to explain to its members the union's particular procedures and
time constraints applicable to a member's claims, a choice left
available to unions under the final rule.
E. Dissemination of the Notice
The NPRM proposed that labor organizations subject to the CSRA
standards of conduct may meet their duty to inform members about their
rights by any method as long as it was reasonably calculated to reach
all members. The NPRM also solicited comments from the public with
regard to the following two issues: (i) Whether a posting, either
permanent or periodic, at a union's offices and on agency bulletin
boards to which the union has access by virtue of its status as
bargaining representative would adequately apprise members of their
rights as union members; and (ii) whether a union which has a Web site
must be required to include a link to CSRA Union Member Rights or the
union's own notice.
A common theme in the comments received by the Department was that
unions should be required to use a combination of methods to
disseminate notice of members' rights. For example, Congressman Johnson
urged the Department to issue a rule that would require unions to
incorporate such notices in their constitutions, post notices at union
offices and on bulletin boards, and deliver the notice by e-mail where
possible. The SUPA recommended that a ``combination of communication
methods'' is preferable. It suggested that unions should provide ``(1)
verbal and written notice during new member orientation; (2) a mailing
to all members with election notices; (3) e-mail notification; and (4)
bulletin board posting.''
The Department has concluded that notification to individual
members must be in writing. The Department also has concluded that a
union must use personal delivery, regular mail, or electronic mail,
alone or in
[[Page 31936]]
combination, to provide notification to members. Further, if a union
has a Web site it must also include such notification on the Web site
or provide a link to the CSRA Union Member Rights. The Department
believes that providing such information on a Web site and posting it
on bulletin boards will prove beneficial to members; however, in the
Department's view, these resources, either alone or in combination, are
inadequate as the sole means of informing members about their
membership rights. Each of these points is discussed in greater detail
below.
1. Bulletin Board Posting
The NPRM asked whether a posting at a union's offices and on agency
bulletin boards would adequately apprise members of their rights as
union members. Most of the comments received on this issue expressed
the general view that such posting would be inadequate as a primary
method of providing notice. NTEU indicated that posting alone would not
reach members who spend most or all of their time at third-party
worksites or other sites separate from their employer's premises. NTEU
stated that Web site posting alone is adequate notice to members and
stated that unions without Web sites should be required to post notices
in union offices and on agency bulletin boards.
Other comments identified flaws in using posting as a primary means
of providing notice. One commenter argued that ``all too often the
union bulletin board is not placed in a strategic location, because
management often has control over exactly where that bulletin board is
placed.'' The AUD noted that it would be too easy for a notice to be
covered up or removed from a cluttered bulletin board. This
organization further noted that ``monitoring union compliance with the
requirements of the final rule would be difficult, if not impossible,
given the number of bulletin boards in countless government offices and
union halls.'' One comment stated the concern that if such notices were
posted in or near union offices members observed reading such notices
could become ``prime targets for retaliation.'' The comments, however,
generally supported posting as a supplement to other methods. For
example, the EFF suggested that a permanent posting would be a good
supplement to individual notice to members.
The Department has concluded that posting the members' rights
notice on bulletin boards to which a union has access is less likely
than other methods to ensure that members will be adequately apprised
of their rights. As discussed below, a mailing to individual members is
far more likely to reach individual members than a posting. The
Department has also considered and rejected the comment suggesting
bulletin board posting as an alternative to Web site posting when the
union does not maintain a Web site. The commenter proposed this idea
while arguing that Web site notice was sufficient alone, and that
bulletin board posting would be required only for unions without a Web
site. The Department has chosen to require direct, individual notice to
members, and it is doubtful that the commenter would support bulletin
board posting as a supplemental measure. In any event, the drawbacks of
bulletin board posting in terms of location, accessibility, visual
clutter, and compliance monitoring make this an ineffective means for
disseminating notice.
2. Web Site Posting
The Department proposed that if a union maintains a Web site, it
must include as part of the site a notification to members of their
rights as union members. Under the proposal, a union could choose to
develop its own notice or include a link to CSRA Union Member Rights.
The comments expressed general support for the proposal, but noted some
concerns.
IFPTE argued that its Web site ``plays a pivotal role'' in
communications with its members: ``It's reasonable to expect that Web
site notification will be extremely effective at keeping members
informed of their rights as union members.'' IFPTE, as well as NTEU,
argued that notification on the union's Web site, by itself, is
adequate to apprise members of their rights as union members.
The AUD supported the Web site posting as one method of
notification, stating that ``the financial burden these requirements
would impose on affected unions would be minimal, amounting to mere
pennies per union member covered.'' AUD cited Arthur B. Shostak, The
Cyberunion Handbook: Transforming Labor Through Computer Technology 4
(2002) for the proposition that ``by January 2000, some 60 percent of
union homes already had at least one computer * * * and that percentage
is undoubtedly much higher five years later.'' Another commenter stated
that information is ``consistently and continuously'' posted on his
union's Web site. One union urged the Department to ``allow federal
sector unions to comply by providing notice via the parent union Web
site or the subordinate body Web site.'' It further affirmed that ``Web
site notice has the advantage of being continuing in nature, readily
accessible, and inexpensive for the union to maintain.'' Similarly,
another commenter indicated that Web site posting would ``keep
administrative costs at a minimum while still informing members of
their rights.''
On the other hand, one comment stated that Web site posting denies
information to members without Internet access and members who belong
to unions that do not maintain a Web site. Another indicated that his
union's Web site is difficult to navigate, and another noted his
union's difficulty in keeping its Web site current.
While Web posting is continuous and would supplement periodic
mailing of notice to members, the Department has concluded that Web
posting is not adequate as the sole means for disseminating notice to
members. Despite the growing availability of Internet access and the
public's familiarity with this technology, it appears that there still
may be a significant number of members who lack access to their union's
Web site or possess only a limited ability to navigate the site. Each
member of a union should receive notification of his or her rights, a
purpose that cannot be achieved if Web posting is the only source of
this information.
Even though the Department rejects Web posting as the sole means of
disseminating notice to members, the Department believes that Web site
posting is an effective, efficient, and inexpensive means to provide
members with supplemental and continuing notice of their rights.
Furthermore, the Department recognizes that union members, like other
citizens, increasingly turn to the Internet to obtain basic information
from, and transact business with, organizations to which they belong or
otherwise interact. Accordingly, the Department has concluded that if a
labor organization has a Web site it must include a notice of members'
rights on the Web site. Web site posting is only a requirement for
unions who maintain Web sites; unions without Web sites will not be
required to develop them in order to satisfy the notice requirement.
Finally, one comment suggested that the Department should include
on its Web site ``questions and answers'' that would more fully address
union members' rights. The Department will be providing compliance
assistance to unions and members and plans to add to the OLMS Web site
a ``Frequently Asked Questions'' section relating to the CSRA standards
of conduct.
[[Page 31937]]
3. Reproducing Notice in the Union's Constitution and Bylaws
The NPRM solicited comments on the following issues: (i) Whether a
statement of members' rights should be required as an appendix to a
union's constitution and bylaws, (ii) whether and how a union's
constitution and bylaws are now made available to members, and (iii)
whether including the notice in a union's constitution and bylaws and
maintaining proof that each member had received a copy should provide a
``safe harbor.''
Comments were generally supportive of a rule requiring unions to
incorporate the statement of a union member's rights in union
constitutions and bylaws. Two organizations (SUPA and AUD) urged the
Department to adopt the requirement that a summary of members' rights
and officers' responsibilities be included as an appendix to the
constitutions of covered labor organizations. The AUD explained that
whenever members have problems with their unions, they turn to the
constitution for guidance, and that requiring the inclusion of such
rights would be a simple, effective, and inexpensive way to comply with
the notice requirement. Other comments, although supporting the
incorporation of the member's rights notice as an appendix to a union's
constitution, expressed concern that union members encounter difficulty
in obtaining copies of the union's constitution and bylaws.
Other comments rejected any rule requiring unions to incorporate
the statement of a union member's rights in union constitutions and
bylaws. NTEU expressed concern that requiring unions to include the
notice in this manner ``interfere[s] with the union's internal
affairs.'' NTEU also observed that ``such a requirement would probably
not prove very effective in informing members of their rights as union
members''; in its view, members are more likely to learn their rights
by ``clicking on a button on the union's Web site that leads them
directly to a statement of union members' rights.'' Other comments
suggested that a union constitution was inappropriate as a resource to
educate members about their rights because the documents may be lengthy
and difficult to follow.
Four comments generally opposed a regulation that would allow
unions a ``safe harbor'' by including a members' rights notice in their
constitutions. One commenter argued that ``[t]o give someone a copy of
the constitution and then expect the union to be relieved of its
obligation forever is not a practical method of ensur[ing] that people
know and continue to know or be aware of their right[s].'' This
commenter suggested that a union could comply with the notice
requirement if it ``gave out copies of the constitution once every
three years, and alternated that with just a mailed notice.''
The Department is not persuaded that it would be appropriate to
require unions to include a statement of members' rights as an appendix
to a union's constitution and bylaws. In the Department's view, such a
requirement, absent a more compelling showing than supplied by the
comments, would be an unwarranted intrusion in the union's internal
affairs. The constitution and bylaws provide the foundation for the
union's existence and reflect the views of its founders and governing
body on the essential terms of the union's governance. The Department
believes that these considerations counsel against a Department-
mandated requirement that unions include a statement of member rights
in their constitutions. Furthermore, the comments about the utility and
availability of the constitution have raised some questions about the
sole reliance on an appendix to a union's constitution to apprise
members of their rights. The Department is concerned about the
assertions that union members have difficulty in obtaining copies of
their union's constitution. The Department, however, is not persuaded
by the argument that a union's choice to include a statement of rights
as an appendix to its constitution would be infirm because of the
length of the constitution or the impracticality of relying on it as a
statement of a union member's rights. In the Department's view, a union
would satisfy its obligation under the final rule if it chooses to mail
the constitution with a statement of rights as an appendix to its
members as the means of providing the required individual notification.
Furthermore, the Department has not been persuaded that the final
rule should provide a ``safe harbor'' for unions that include notice of
member rights in their constitutions or bylaws. As noted, the inclusion
of a statement in a union's constitution, by itself, does not guarantee
that the information has been conveyed to union members.
4. E-Mailing Notice to Union Members
The NPRM asked whether sending a notice by e-mail would be
acceptable if members have provided their e-mail addresses to the union
or the union is permitted to use an agency e-mail system to contact its
members. The comments expressed three concerns about the use of e-mail:
Its lack of availability to some members, the impermanency of
individual e-mail addresses, and the difficulty of documenting the
transmission and receipt of messages. Congressman Johnson and EFF urged
that e-mail is acceptable only as a supplement, not an alternative, to
formal written notice by regular mail. To avoid some potential
problems, a commenter suggested use of the employer-agency's e-mail
system because of its ability to provide receipt of delivery.
The Department believes that e-mail provides an acceptable method
by which a union may provide notification to its members. E-mail can be
an effective, efficient, and inexpensive means for providing members
with notice of their rights. Just as a union that chooses to provide
notice by U.S. mail must maintain a current list of member addresses, a
union that chooses to send notice by e-mail must maintain an updated
list of members' e-mail addresses. A labor organization that relies on
e-mail to provide notice has the burden of proving that notice has been
sent to an operational e-mail address of the member to whom the message
is directed. For this reason, the Department encourages unions to
maintain records in electronic or other format to show when and to whom
the e-mails have been sent and notification that the e-mail has been
received, or is undeliverable. Where a union does not have a member's
e-mail address on file or an e-mail is ``returned'' as undeliverable,
it must provide notification to the member by hand delivery or regular
mail.
The Department does not require that a union utilize a member's
personal e-mail address to provide notification. If an agency permits
the union to use the agency e-mail system for this purpose, the union
may choose to utilize this avenue of communication. If the union
chooses to use the agency's system, it must document--either by its own
means or the agency's--when and to whom the e-mails have been sent and
that the e-mail has been received, or was ``returned'' as
undeliverable. The Department, however, lacks the authority to direct
an agency to permit the use of its e-mail system for such purpose, and
the Department offers no view on whether an agency may or should permit
such use.
F. Timing of the Notice
The NPRM asked: (i) Whether notice should be given to each member
within a certain period of time after the effective date of the rule,
(ii) how soon notice should be given to new members, (iii) how
frequently a periodic notice
[[Page 31938]]
should be given, and (iv) whether inclusion of a members' rights notice
in the notice of nominations and elections for 3, 4, and 5-year
election cycles would be sufficient notice.
1. Initial Notice After the Rule Becomes Effective
The NPRM sought comment concerning what would constitute a
reasonable amount of time to allow unions to provide the first
notification to members under the proposed rule. Congressman Johnson
and the AUD supported initial notice within a 90-day period after the
effective date. The EFF stated that 30 to 60 days would be a sufficient
time. While IFPTE and NFFE argued against any notice, they recommended
that if the rule was issued that unions should be given one year to
develop a notification method. An individual union official stated that
unions should be allowed one year to provide notice. Neither the unions
nor the union official explained why unions needed this amount of time.
NTEU also recommended that unions be allowed one year to provide such
notice; it explained that this amount of time would enable the union to
establish an appropriate schedule for providing the notice at three-
year intervals.
While some commenters supported a shorter period, in the
Department's view, a provision that unions provide initial notification
to members within 90 days of the rule's effective date allows unions a
reasonable amount of time to prepare for, and comply with, the new
requirement. Since the rule does not take effect until 30 days after
publication, unions actually will have 120 days within which to prepare
the notice to their members, determine the distribution method or
methods, and update the necessary address lists. This timeframe allows
national unions, if they so choose, sufficient time to prepare notice
language, either to be mailed directly to their affiliates' members or
to serve as a model for their affiliates' use in providing notice to
members. Moreover, if a union chooses to use the Department's model
notice, there will be no time involved in this step of the process.
Unions are already required to maintain home addresses of union members
in order to comply with the rules governing notice of elections. 29 CFR
458.29. Unions that maintain a Web site must comply with the additional
requirement of posting the statement of members' rights on the Web site
or provide a link to the notice posted on the OLMS Web site. The amount
of time involved in accomplishing this task, as distinct from preparing
the text of the notice, is estimated to be approximately 15 minutes,
and thus does not materially affect the selection of a timeframe.
2. Notice to New Members
The NPRM sought comment concerning how soon a union would be
required to provide notice to new members. Only one comment was
received on this issue. Congressman Johnson suggested 90 days was a
reasonable timeframe. The Department has determined that unions must
provide notice to new members within 90 days of becoming a member.
As a matter of administrative practice, unions often choose to
provide new members orientation materials relating to the union at or
near the time of a member's formal admission to the union. It would be
a reasonable practice for a union to provide notification of the
member's union rights at that time. In other cases, a union might
reasonably choose to leave this task to the national or international
union to which it belongs, if any. In such case, there may be some time
lag involved in national or international unions receiving new member
information from a local, the processing of the information by the
parent organization, and the mailing of a membership package to the new
member. Ninety days should provide ample time for a union to provide
the required notification to its new members.
The NPRM also sought comment on possible alternatives to providing
individuals with a full statement of their rights at the time they
become members. One commenter suggested that all members of a
bargaining unit be provided a statement of the rights of union members.
The Department declines this suggestion. There are only one or two
provisions of the CSRA Union Member Rights notice that would arguably
be of more than passing interest to nonmembers of the union. The added
benefit gained by providing information to nonmembers would be greatly
outweighed by the costs to unions in identifying, locating, and
providing notice to these individuals. Furthermore, the portions of the
CSRA for which the Assistant Secretary has responsibility concern
requirements and prohibitions on unions in relation to their members,
the membership's moneys, and affiliated unions. 5 U.S.C. 7120. These
portions do not address a union's relationship with nonmembers in any
substantial way. In addition, the analogous private sector requirement
requires every labor organization to inform its members of the
provisions of the LMRDA, see 29 U.S.C. 415, and the Assistant
Secretary's rulemaking in this area is to conform generally with
private sector principles, 5 U.S.C. 7120(c).
Two commenters referred to the completion of the Form SF 1187 by a
prospective union member as a possible opportunity to apprise members
of their rights. The SF 1187 has been developed by the Office of
Personnel Management for use by federal employees, their employer, and
unions to authorize a federal agency, at the employee's written
direction, to deduct union dues from the employee's pay. One commenter
noted that the form does not contain a statement of such rights and
does not ask an employee to provide an e-mail address. The other
commenter expressed concern that if the union used a handout that
combined the Form SF 1187 and a notification of members' rights that
the individual member would not retain a copy of the handout for his or
her files. Notwithstanding these concerns, the Department believes that
the signing of the Form SF 1187 may provide a good opportunity to
notify individuals of their rights as union members. By keeping copies
of the completed form and instructions the individual has a summary of
his rights as a union member and the union has a record of providing
notification of such rights to the individual. Individuals are
competent to make their own choice about what documents to retain, and
the Department cannot require a union to act as a guarantor that
members actually retain a copy of documents provided to them. Thus, a
union that chooses to distribute the required notice in conjunction
with the Form SF 1187 will be deemed to have met its requirement to
provide notice to new members, despite the individual's status as a
nonmember at the time of receipt. Because it is important to both the
individual and the union that they have a common understanding of their
rights and obligations at or about the time the individual joins the
union, the Department also will treat similar information provided by a
union to a potential member, where properly documented, to satisfy its
notification obligation.
3. Periodic Notice
The NPRM proposed that unions must inform members of their rights
at least once every three years. The NRTWF argued that three years was
too long an interval between notices because members do not exercise
their rights on a three-year timetable. The NRTWF, EFF, and an
individual union officer argued that notice should be given every year.
The NRTWF noted that management in the Federal sector must inform
employees of certain rights on an
[[Page 31939]]
annual basis under 5 U.S.C. 7114(a)(3). Congressman Johnson and the AUD
supported the three-year notice interval, while noting that a shorter
period might be appropriate. An individual commenter thought that
notifying members every four or five years was sufficient provided that
notices were required to be given in advance of union nomination and
election periods. Interwoven with the question regarding the frequency
of notification is the question of whether notification should be
permitted or required as part of a union's required mailings in
connection with its elections for officers. For local unions, such
elections must be conducted not less often than every three years. 29
CFR 458.29.
The comments support a finding that union members should be
informed and reminded of their rights on a recurring basis. The
Department has determined to retain the requirement in the proposal
that notice shall be provided to members not less than every three
years. While some comments urged the Department to require annual
notice, others stated that there should be no periodic notice
requirement but, if required, intervals should be longer than three
years. Many agreed that the three-year interval is administratively
convenient because local unions may choose to mail the notice at the
same time they mail notices of union officer elections. In the
Department's view, three years is an appropriate interval to remind
members of their rights; it ensures that members will receive notice at
least once during the maximum timeframe allowed for local union officer
elections, but does not carry the burden of yearly notification.
One commenter argued that the period of notice should correlate
with the union's national election cycle. On that issue, the EFF
supported sending out a rights notice along with the notice of
elections, but only if members also received notice by some other
method. The AUD noted that administrative convenience was served by
allowing the notice to be sent with the election notice given the
typical three-year election cycle. It added, however, that providing
notice in this manner was not an effective way to reach union members
who lack an active interest in the union's election. Congressman
Johnson, the EFF, the AUD, and an individual commenter argued that a
union should not be permitted to rely on this method, especially in the
case of the four or five-year election cycles typical for national or
intermediate bodies.
With regard to the question whether notification should be required
or permitted in connection with a union's officer election notices, the
Department has determined that unions should be permitted, but not
required, to include the notice of members' rights with the
statutorily-required notice of election. The Department is not
persuaded that mailing the rights notice with the election notice will
be less effective than notice provided by other means. Membership in an
organization entails some obligations, and among them is the duty to
read documents mailed to them by the organization.
The Department is not persuaded by a suggestion that a union should
be unable to satisfy its CSRA Union Member Rights notice obligation by
including a statement of rights in a union newsletter, distributed to
all members. In the Department's view, notice included in a union
publication is adequate as long as it is presented with sufficient
prominence to attract the attention of a member receiving the
publication. This is consistent with the Department's experience in
administering a regulation permitting notice of elections to be
included in union newspapers. See 29 CFR. 452.75.
G. Notice Provided by Another Labor Organization
The Department proposed that a union's duty to provide notification
may be satisfied by notice provided to its members by another labor
organization. For example, if Member A is a member of Federal Union,
Local 1, the obligation of his local to provide notification is
satisfied if it is provided by either Local 1, the Council of East
Coast Locals (an intermediate body to which it is affiliated), or the
National Federal Union. No objections to this proposal were received.
The Department has concluded that a union may demonstrate compliance
with the notice requirement if another union has provided the
appropriate notice to all its members.
One comment suggested that a union should not be required to
include a link on its Web site if the appropriate notice is posted on
its parent or other affiliated union's Web site. The Department
disagrees. As discussed, the Web site posting is required only of
unions that choose to maintain Web sites. Where such Web sites exist,
it is reasonable for union members to rely on those sites for basic
information relating to their union. Therefore, a union that maintains
a Web site must include notification on its site without regard to
whether an affiliated union has provided written notification to its
members or such affiliate has published the notification on its Web
site.
H. Mechanism for Enforcing the Members' Rights Notice Requirement
The NPRM proposed enforcement of the notice requirement solely by
OLMS with or without a complaint by a union member. The proposal also
asked for comment on whether enforcement should be vested in individual
union members. Relatively few comments were received on this point.
NTEU endorsed the proposed method of enforcement. One union member
noted that some people could not afford the expense of bringing a case,
thus requiring that OLMS undertake prosecution as a matter of fairness.
The SUPA urged that enforcement authority should be vested in both
OLMS and union members and suggested that members should be permitted
to bring an action in U.S. District Court in a manner similar to that
permitted under section 201(c) of the LMRDA. 29 U.S.C. 431(c). NFFE
commented that the new rule would place additional demands on the
resources of OLMS at a time when, in the union's ``understanding,''
OLMS is unable to undertake ``malfeasance investigations'' in a timely
manner. NFFE acknowledged, however, that enforcement should reside with
OLMS, not individuals, because litigation by individuals unnecessarily
increases litigation costs for unions because of the potential for
unsubstantiated lawsuits.
The CSRA, unlike the LMRDA, does not confer jurisdiction on Federal
district courts. The Department cannot by regulation extend a private
right of action to union members in Federal district court to vindicate
their regulatory right to notice of the CSRA provisions. Furthermore,
to the extent that SUPA's position would be satisfied by allowing a
union member to prosecute an alleged violation in an adjudicatory
proceeding before the Department, the Department believes that any
benefit that may be gained is outweighed by the potential cost to
unions and the Department's adjudicative resources from having to
adjudicate claims that have not been preliminarily screened for merit
by OLMS. Supporting this is the fact that although NFFE opposed vesting
enforcement authority in OLMS on the ground that the Department
``appears to be incapable of completing financial malfeasance
investigations in a timely manner,'' NFFE also pointed out that unions'
litigation costs likely will be reduced by keeping enforcement solely
in the control of OLMS because any frivolous complaints are ``weeded
out'' at a cost savings to the unions and the Department's adjudicative
resources.
[[Page 31940]]
In this same vein, a different comment argued that both an
individual and OLMS should be able to prosecute an alleged violation of
the notification requirement. The commenter would have the individual
bring an allegation before an Administrative Law Judge (ALJ) as opposed
to in U.S. District Court, as expressed by SUPA. Once again, the
Department is not persuaded that individual enforcement is appropriate
as an adjunct to OLMS prosecution. Under the proposed enforcement
scheme, OLMS can proceed without a complaint, or a union member can
file a complaint with OLMS about the failure of their union to comply
with the notice requirement.
The enforcement procedure already is set out in the Department's
regulations. An OLMS District Director may investigate pursuant to 29
CFR 458.50(b) when he or she believes it necessary in order to
determine whether a violation has occurred or is about to occur. If a
violation of this rule is discovered, the OLMS District Director will
notify the union pursuant to 29 CFR 458.66(b) and will attempt to
secure an agreement for appropriate remedial action pursuant to 29 CFR
458.66(c), which ordinarily will be the union's compliance with the
notification requirement. If no agreement is reached with the union,
the District Director will file a complaint with the DOL Chief
Administrative Law Judge. The proceedings before the ALJ will be
governed by sections 458.67 through 458.93, 29 CFR 458.67 through
458.93. The Standards of Conduct provisions of the CSRA (5 U.S.C. 7120)
do not authorize monetary penalties or debarments for violations of its
provisions. The practice under the CSRA is similar to the procedure
under the LMRDA where the Secretary files an enforcement action in a
U.S. District Court against a union that fails to file its required
annual financial report. If the action is successfully prosecuted, the
district court will issue an order requiring the union to file the
report.
If members were given direct enforcement rights such as provided by
section 458.54 of the regulations, 29 CFR 458.54, to lodge a bill of
rights action, they would still have to file a complaint with an OLMS
District Director, who would have to ``obtain such additional
information as he deems necessary'' and then would refer the matter to
the Chief ALJ if he found ``a reasonable basis for the complaint.'' The
member would have the burden and expense of proving his or her
allegations in a hearing before an ALJ. This scenario is avoided in the
enforcement scheme selected here. Moreover, as discussed above, there
is no persuasive reason to provide members a right to prosecute a
complaint without an initial determination by OLMS that there exists a
reasonable basis to the complaint.
Finally, in response to NFFE's assertion that there is an
``understanding that the Department appears to be incapable of
completing financial malfeasance investigations in a timely manner,''
the Department notes that NFFE has provided no substantiation for its
claim, which, in any event, is unfounded. Moreover, Congress has
recently allocated increased resources to OLMS, which should alleviate
any concern that OLMS investigations will be delayed by taking on
additional enforcement responsibilities under this rule.
The Department has determined to retain the proposed enforcement
procedure. OLMS will use the existing administrative mechanism in the
standards of conduct regulations (29 CFR 458.66-459.5) for resolving
complaints related to this rule. Where OLMS determines after
investigation that a violation has occurred and has not been remedied,
OLMS will institute enforcement proceedings against the labor
organization before the Department's Office of Administrative Law
Judges.
III. Regulatory Procedures
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order 12866. The Department has determined that this final
rule is not an ``economically significant'' regulatory action under
section 3(f)(1) of Executive Order 12866. Because compliance with the
rule can be achieved at low cost to covered labor organizations, the
rule is not likely to: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues. As a result, the
Department has concluded that a full economic impact and cost/benefit
analysis is not required for the rule under section 6(a)(3) of the
Order. Because of its importance to the public, however, the rule was
treated as a significant regulatory action and was reviewed by the
Office of Management and Budget.
Prior to issuing the proposed rule, the Department sought the
involvement of those individuals and organizations that will be
affected by the rule, including officers and members of labor
organizations that would be subject to the rule. It was determined that
the rule will impose certain burdens associated with the requirement
that labor organizations representing Federal employees must inform
their members of the CSRA standards of conduct provisions and the
regulations promulgated to carry out the purposes of the CSRA, 29 CFR
458.1-458.38. According to the latest available Office of Personnel
Management figures, as of January 1, 2001, there were 1,043,479 federal
employees in bargaining units, and these units were represented by
2,199 local unions. Not all of these employees belong to a union, but
that number can be used as the maximum theoretical number of members
who must be informed of their rights. Since unions are free to add the
rights notice to the mandatory election notice that locals by law must
mail to their members every three years, the Department assumes that
unions will take advantage of this cost-effective method of
distributing the notice. Under such circumstances, the cost to unions
would, at most, entail the cost of 1,043,479 photocopies of the notice,
at $.15 per page, resulting in an expenditure of $156,521 every three
years, for annualized costs borne by all public sector unions of
$52,174.
It is conceivable that the required notice will increase the weight
of each piece of mail to the next highest ounce, thus resulting in a
$.24 fee for an extra ounce of first class postage for each envelope.
This additional mailing cost would amount at most to $250,435 every
three years, for an annualized cost of $83,478. Summing the maximum
copying costs and the maximum additional postage costs results in an
additional $406,956 expenditure every three years, and a maximum total
annualized cost for all unions of $135,652. Stated otherwise, the
annualized cost to unions would be $.13 per member. Intermediate and
national labor organizations would not have to provide separate notice
as, pursuant to purposed section 458.4(b), they could rely on mailings
made by their subordinate locals. (Or conversely, it could be the
national or international that chooses to undertake the notification
and bear the costs associated with it either directly or by charging
the cost back to the affiliates).
[[Page 31941]]
The approximately 2,199 local unions would be subject to an annualized
average maximum cost of $61.68. Finally, unions that maintain a Web
site would be required to create a link to Union Member Rights and
Officer Responsibilities under the Civil Service Reform Act or the
union's own notice. The Department has no data on the number of unions
that maintain a Web site. In addition to the 2,199 local unions, the
Office of Personnel Management reports 80 national and international
unions and associations that have, directly or through local units,
exclusive recognition with departments and agencies of the Executive
Branch. Thus it is theoretically possible that 2,279 unions would be
required to create such a link. Assuming that the median annual salary
of a webmaster is $80,000 and the creation of a link would take 15
minutes, the one-time labor cost of this requirement would be $22,790,
or $10 per union.
None of the commenters disputed the accuracy of the burden
estimates set forth in the NPRM. NFFE claimed that the new rule would
place an undue burden on unions but did not document this general claim
and did not dispute the accuracy of the OLMS projections. By contrast,
the AUD commented that the financial burden imposed by the rule would
amount to ``mere pennies'' per union member covered. And the form
comments received stated: ``[w]hatever small amount it costs the unions
to perform this vital function is a small price to pay for the benefit
[obtained].''
Small Business Regulatory Enforcement Fairness Act
The Department has concluded that this final rule is not a
``major'' rule under the Small Business Regulatory Enforcement Fairness
Act of 1996 (5 U.S.C. 801, et seq.). It will not likely result in (1)
an annual effect on the economy of $100 million or more; (2) a major
increase in costs or prices for consumers, individual industries,
Federal, state or local government agencies, or geographic regions; or
(3) significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic or
export markets.
Executive Order 13132: Federalism
The Department has reviewed this final rule in accordance with
Executive Order 13132, regarding federalism, and has determined that
the rule does not have ``federalism implications.'' The economic
effects of the rule are not substantial, and it has no ``direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government.''
Regulatory Flexibility Act
The final rule would not have a significant economic impact on a
substantial number of small business entities. The rule will have only
an insignificant impact on any covered labor organization. The
Secretary has certified to the Chief Counsel for Advocacy of the Small
Business Administration that the rule has no substantial impact on any
small business entity and, therefore, a regulatory flexibility analysis
is not required.
Unfunded Mandates Reform
For purposes of the Unfunded Mandates Reform Act of 1995, this rule
does not include a Federal mandate that might result in increased
expenditures by state, local, and tribal governments, or increased
expenditures by the private sector of more than $100 million in any one
year.
Paperwork Reduction Act
This final rule will impose certain minimal burdens associated with
informing members of their rights. As noted in proposed section 458.4,
a labor organization may satisfy its obligation by either using
language supplied by the Department or devising its own language as
long as the notice accurately states all of the CSRA standards of
conduct provisions. Under the regulations implementing the Paperwork
Reduction Act, ``[t]he public disclosure of information originally
supplied by the Federal government to [a] recipient for the purpose of
disclosure to the public'' is not considered a ``collection of
information'' under the Act. 5 CFR 1320.3(c)(2). Therefore, the notice
is not subject to the Paperwork Reduction Act.
Executive Order 12988: Civil Justice Reform
This final rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the federal court system. The rule has been written so as to minimize
litigation and provide a clear legal standard for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
ambiguities. The proposal specifies clearly the effect of the rule on
existing rules and the provisions affected.
Executive Order 13084: Consultation and Coordination With Indian Tribal
Governments
The Department certifies that this final rule does not impose
substantial direct compliance costs on Indian tribal governments.
Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This final rule is not subject to Executive Order 12630,
Governmental Actions and Interference With Constitutionally Protected
Property Rights, because it does not interfere with private property
rights protected under the Fifth Amendment of the Constitution.
Environmental Impact Assessment
The Department has reviewed the final rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 U.S.C. part 1500), and the Department's NEPA
procedures (29 CFR part 11). The final rule will not have a significant
impact on the quality of the human environment, and, thus, the
Department has not conducted an environmental assessment or an
environmental impact statement.
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)
This final rule is not subject to Executive Order 13211, because it
will not have a significant adverse effect on the supply, distribution,
or use of energy.
List of Subjects in 29 CFR Part 458
Administrative practice and procedure, Labor unions, Democratic
rights of labor organization members, Reporting and recordkeeping
requirements, Standards of conduct for labor organizations.
Text of Final Rule
0
Accordingly, the Department amends 29 CFR Chapter IV as set forth
below.
PART 458--STANDARDS OF CONDUCT
0
1. The authority citation of part 458 is revised to read as follows:
Authority: 5 U.S.C. 7105, 7111, 7120, 7134; 22 U.S.C. 4107,
4111, 4117; 2 U.S.C.
[[Page 31942]]
1351(a)(1); Secretary's Order No. 4-2001, 66 FR 29,656, May 31,
2001.
0
2. A new Sec. 458.4 is added to read as follows:
Sec. 458.4 Informing members of the standards of conduct provisions.
(a) Every labor organization subject to the requirements of the
CSRA, the FSA, or the CAA shall inform its members concerning the
standards of conduct provisions of the Acts and the regulations in this
subchapter. Labor organizations shall provide such notice to members by
October 2, 2006 and thereafter to all new members within 90 days of the
time they join and to all members at least once every three years.
Notice must be provided by hand delivery, U.S. mail or e-mail or a
combination of the three as long as the method is reasonably calculated
to reach all members. Such notice may be included with the required
notice of local union elections. Where a union newspaper is used to
provide notice, the notice must be conspicuously placed on the front
page of the newspaper, or the front page should have a conspicuous
reference to the inside page where the notice appears, so that the
inclusion of the notice in a particular issue is readily apparent to
each member.
(b) A labor organization may demonstrate compliance with the
requirements of paragraph (a) of this section by showing that another
labor organization provided an appropriate notice to all of its members
during the necessary time frame.
(c) Labor organizations may use the Department of Labor publication
Union Member Rights and Officer Responsibilities under the Civil
Service Reform Act (available on the OLMS Web site at http://www.dol.gov/esa/regs/compliance/olms/CSRAFactSheet.pdf for the pdf
version and http://www.dol.gov/esa/regs/compliance/olms/CSRAFactSheet.htm for the html version) or may devise their own
language as long as the notice accurately states all of the CSRA
standards of conduct provisions as set forth in the fact sheet.
(d) If a labor organization has a Web site, the site must contain a
conspicuous link to Union Member Rights and Officer Responsibilities
under the Civil Service Reform Act or, alternatively, to the labor
organization's own notice prepared in accordance with paragraph (c) of
this section.
Signed at Washington, DC, this 24th day of May 2006.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Signed at Washington, DC, this 24th day of May 2006.
Don Todd,
Deputy Assistant Secretary for Labor-Management Programs.
[FR Doc. E6-8626 Filed 6-1-06; 8:45 am]
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