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Notice

Notice of Signing of a Memorandum of Understanding Between the Departments of Justice and Labor Relating to the Investigation and Prosecution of Crimes and Civil Enforcement Actions Under the Labor-Management Reporting and Disclosure Act of 1959

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AGENCY:

Employment Standards Administration, Labor.

ACTION:

Notice of Memorandum of Understanding between the Departments of Justice and Labor.

SUMMARY:

The Department of Labor, Employment Standards Administration, is providing notice of a Memorandum of Understanding between the Departments of Justice and Labor (MOU), signed January 18, 2005. The MOU describes the responsibilities of each agency in the performance of functions under the Labor-Management Reporting and Disclosure Act of 1959 (Act). The purpose of the MOU is to revise a previous Memorandum of Understanding Between the Departments of Justice and Labor (1960 Memorandum of Understanding) concerning the allocation of such responsibilities. The MOU enhances administrative efficiency in the investigation and prosecution of crimes and civil violations arising under the Act. A copy of the MOU is set forth below.

EFFECTIVE DATE:

January 18, 2005.

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FOR FURTHER INFORMATION CONTACT:

Mr. John H. Heaney, Chief, Division of Enforcement, Office of Labor-Management Standards, Employment Standards Administration, U.S. Department of Labor, Room N-5119, Washington, DC 20210, (202) 693-1229 (this is not a toll-free number). TTY/TDD, 1-800-877-8339.

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SUPPLEMENTARY INFORMATION:

The Labor-Management Reporting and Disclosure Act of 1959 (Pub. L. 86-257; 29 U.S.C. 401-531) is designed to protect the rights and interests of individual employees and union members as they relate to the activities of labor organizations, labor organization officers and employees, employers, labor relations consultants, and their officers and representatives. Section 607 of the Act (29 U.S.C. 527) provides that, in order to avoid unnecessary expense and duplication of functions among government agencies, the Secretary of Labor may make agreements for cooperation and mutual assistance in the performance of the Secretary's functions under the Act. The first such agreement was entered into between the Departments of Labor and Justice in the 1960 Memorandum of Understanding. See 25 FR 1708 (Feb. 26, 1960). To this same end, the MOU appended to this notice specifies which criminal matters will be investigated by the Department of Labor, which will be investigated by the Department of Justice, and which will be investigated by the Department of Justice under delegation from the Secretary of Labor, subject to specific arrangements agreed upon by the two Departments on a case-by-case basis.

In addition, the MOU contains a provision, not present in the 1960 Memorandum of Understanding, that specifies the respective roles of the Departments of Justice and Labor in regard to relief from the employment disabilities arising under § 504 of title V, 29 U.S.C. 504. Section 504 prohibits persons convicted of crimes specified in the statute from serving in stated capacities with an LMRDA-covered labor organization or employer association; from serving as a labor relations consultant or in a position with a corporation or association having specific collective bargaining authority or direct responsibility for labor-management relations; and from having decisionmaking authority or control of labor organization assets (other than as a member of the labor organization). The disability imposed by Section 504 extends until 13 years following a disqualifying conviction or end of any imprisonment resulting from such conviction.

No Third-Party Rights Created: The MOU was adopted for the purpose of the internal management of the Executive Branch. The MOU is not intended to, does not, and may not be relied upon to, create any rights, substantive or procedural, enforceable at law or in equity by any party in any matter civil or criminal, nor does the MOU place any limitations on otherwise lawful investigative or litigation prerogatives of the United States Department of Justice or otherwise lawful investigative prerogatives of the United States Department of Labor.

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Dated at Washington, DC, this 15th day of April 2005.

Victoria A. Lipnic,

Assistant Secretary for Employment Standards Administration.

Don Todd,

Deputy Assistant Secretary for Labor-Management Programs.

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Memorandum of Understanding Between the Departments of Justice and Labor Relating to the Investigation and Prosecution of Crimes and Civil Enforcement Actions Under the Labor-Management Reporting and Disclosure Act of 1959 (Pub. L. 86-257)

Whereas, the Labor-Management Reporting and Disclosure Act of 1959 (Public Law 86-257; 73 Stat. 519) imposes certain duties and responsibilities upon the Attorney General and Secretary of Labor with regard to prosecution of crimes arising under the Act and civil enforcement actions under the Act; and

Whereas, that Act, in section 601, imposes upon the Secretary of Labor the responsibility for conducting investigations of persons who have violated, or are about to violate, any provision of the Act (except title I, or amendments made by this Act to other statutes); and

Whereas, that Act, in section 607, provides that the Secretary of Labor may make interagency agreements to avoid unnecessary expense and duplication of functions among Government agencies and ensure cooperation and mutual assistance in the performance of functions under the Act; and

Whereas, it is desirable and essential that areas of responsibility and procedures in connection with any investigations, prosecutions of offenses and civil enforcement actions arising under the Act should be the subject of formal agreement between the Departments;

It is hereby agreed and understood between the Department of Justice and the Department of Labor as follows:

1. Criminal Prosecutions. All cases involving violation of the criminal provisions of the Act will be prosecuted by the Department of Justice. Those cases investigated by the Department of Labor, hereinafter detailed, will be referred to the appropriate United States Attorney's office(s) where the criminal violation(s) occurred or to the Criminal Division, Department of Justice, as provided in section 607.

2. Investigations of Matters Made Criminal by the Act. Subject to specific arrangements agreed upon by the Department of Justice and the Department of Labor on a case by case basis, investigations under the Act will be conducted as follows:

(a) The Department of Labor will through its own staff investigate those criminal matters arising under:

1. Title II (Reporting by labor organizations, officers and employees of labor organizations and employers).

2. Title III (Trusteeship).

3. Section 501(c) (Embezzlement of union funds) of title V.

4. Section 502 (Bonding) of title V.

5. Section 503 (Making of loans and payment of fines) of title V.

6. Section 504 (Prohibition against certain persons holding office) of title V.

7. Section 602 (Extortionate picketing) of title VI.

8. Section 610 (Deprivation of rights by force and violence) of title VI.

(b) The Department of Justice will investigate those criminal matters arising under section 505 (Containing an amendment to section 302, Labor Management Relations Act, 1947, as amended) of title V, and under delegation from the Secretary of Labor, section 501(c) (Embezzlement of union funds) of title V, section 504 (Prohibition against certain person holding office) of title V, and section 610 (Deprivation of rights by force and violence) of title VI.

3. Notification. Whenever either Department learns or is informed of any matter coming within the investigative jurisdiction of the other Department, as set forth above, it will notify such other Department in writing and furnish all information in its possession regarding the matter.

4. Exercise of other functions. Exercise of delegated investigative authority by the Department of Justice pursuant to this agreement shall not preclude the Department of Labor from making inquiries for the purpose of administrative action related to the crime being investigated. Nothing in this Memorandum of Understanding shall be construed to affect the investigative jurisdiction of the Department of Justice under other statutes.

5. Prosecution of Civil Enforcement Actions. Any violations of the Act, which form the basis for civil enforcement actions, will be investigated by the Department of Labor. Whenever the Department of Labor concludes that a civil enforcement action should be instituted, it will refer the case to the Department of Justice, with the request that suit be instituted on behalf of the Secretary of Labor, and will furnish the Department of Justice with all pertinent information in the possession of the Department of Labor. Upon receipt of such request, the Department of Justice will institute and will conduct the civil enforcement action on behalf of the Secretary of Labor. The Department of Justice will not institute any civil enforcement action under the Act except upon the request of the Department of Labor, nor will the Department of Justice voluntarily dismiss any action so instituted except with the concurrence of the Department of Labor. The Department of Justice will dismiss any action so instituted upon the request of the Department of Labor. Department of Justice attorneys will collaborate with the attorneys of the Office of the Solicitor of Labor in the preparation and, to the extent feasible, in the presentation of such actions in court.

6. Section 504(a) Proceedings. Subject to specific arrangements agreed upon by the Department of Justice and the Department of Labor on a case by case basis, the Department of Labor through its own staff will investigate matters arising under section 504(a)(B) of title V, as amended, (judicial determination that a disqualified person's service in any prohibited capacity would not be contrary to the purposes of the LMRDA). Following the investigation, the Department of Labor will issue its views on the appropriateness of such a judicial determination under section 504(a)(B). The Department of Justice will present the Secretary of Labor's views before a Federal sentencing judge or United States district court, by making all necessary appearances and filings. Department of Justice attorneys will collaborate with the attorneys of the Office of the Solicitor of Labor in the preparation and, to the extent feasible, in the presentation of the Secretary's views in court. With respect to relief under section 504(a) by judicial reduction of the period of disability, the Department of Justice will seek the views of the Department of Labor prior to opposing or agreeing to a request for such relief by a criminal defendant or disqualified person.

7. Instructions. So that the terms of understanding will be effectively performed, both Departments will issue instructions for the guidance of its officers, such instructions to be submitted for comment to the other Department prior to their issuance.

8. Periodic reviews of this agreement will be made to determine any adjustments which seem necessary based on experience under this Act.

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Signed at Washington, DC, this 18th day of January 2005.

John Ashcroft,

Attorney General.

Elaine L. Chao,

Secretary of Labor.

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[FR Doc. 05-7890 Filed 4-19-05; 8:45 am]

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