2445

LMRDA Disability Elements of Proof

In order to establish a violation of 29 U.S.C. § 504 for disqualifying crimes committed on or after October 12, 1984, the government must allege and prove the following essential elements: The jurisdictional entity involved is a labor organization, a group or association of employers dealing with any labor organization, or a corporation or association or person engaged in an industry or activity affecting commerce as defined in the LMRDA (29 U.S.C. § 402 et seq.). The defendant is a disqualified person who serves or permits another disqualified person to serve in any of the prohibited capacities specified in the statute. The disqualified person was convicted of one of the crimes described in the statute within the last thirteen years, or has been released from imprisonment resulting from a disqualifying conviction within the last thirteen years, whichever is later. The defendant willfully serves in a prohibited capacity or knowingly and willfully permits a disqualified person to serve in a prohibited capacity. Disqualifying Conviction Only one category of disqualifying crimes must involve a felony conviction: "Any felony involving abuse or misuse of such person's position or employment in a labor organization or employee benefit plan to seek or obtain an illegal gain at the expense of the members of the labor organization or the beneficiaries of the employee benefit plan." The following categories of disqualifying crimes may be felonies or misdemeanors: Robbery, Bribery, Extortion, Embezzlement, Grand Larceny,Burglary, Arson, Murder, Rape; Violation of Narcotic Laws (confined to narcotic drugs); Assault with Intent to Kill; Assault which Inflicts Grievous Bodily Injury (includes reckless infliction of injury); "Violation of Subchapter III or IV of this chapter" 29 U.S.C. § 439 (reporting & recordkeeping) 29 U.S.C. § 461 (trusteeship reporting) 29 U.S.C. § 463 (trusteeship crimes) Conspiracy or Attempt to commit any crime described in section 504; A crime in which any of the crimes described in section 504 is an element. See for example, Postma v. Teamsters Local 294, 229 F. Supp. 655 (N.D.N.Y.), aff'd, 337 F.2d 609 (2d Cir. 1964), holding that the Hobbs Act (18 U.S.C. § 1951) was a disqualifying crime for purposes of section 504 because the listed crime of extortion was a necessary predicate for conviction; A crime whose conduct is substantially equivalent to a crime described in section 504 will also disqualify the convicted person. See Roofers Local 33 v. Meese, et al., 823 F.2d 652, 658 (1st Cir. 1987) (29 U.S.C. § 530 conviction based on "the type of conduct" described as an "assault which inflicts grievous bodily injury"); Illario v. Frawley, 426 F. Supp. 1132, 1140 (D.N.J. 1977) (obtaining money by false pretenses held "functionally identical" to listed crime of "grand larceny"); Hodgson v. Restaurant Employees Local 11, 355 F. Supp. 180 (S.D.N.Y. 1973) (union official's receipt of employer payments prohibited by 29 U.S.C. § 186(a)(4) held equivalent to the listed crime of "bribery"); Berman v. Teamsters Local 107, 237 F. Supp. 767 (E.D.Pa. 1964) (state law conspiracy to cheat a labor union held equivalent to "grand larceny"). Except for the category of felonies involving abuse or misuse of labor organization or benefit plan employment, the generic disqualifying crimes need not be related to labor union or benefit plan operations. See, for example, Lippi v. Thomas, 298 F. Supp. 242, 247 (M.D.Pa. 1969) (conviction of aiding and abetting misapplication of bank funds held equivalent to the listed crime of "grand larceny"). [cited in USAM 9-138.030]