Department of Labor Jurisdiction to Investigate Certain Criminal Matters

Department of Labor Jurisdiction to
Investigate Certain Criminal Matters
The Attorney G eneral may not delegate his authority to investigate labor crim es to the Secretary
o f L abor unless the Department o f Labor has specific overlapping statutory authority to
investigate those sam e offenses.

Section 601(a) o f the L abor M anagement Reporting and Disclosure Act (LMRDA), 29 U.S.C.
§ 521(a), precludes the investigation o f violations o f § 302 o f the Labor M anagement Rela­
tions Act, 29 U .S.C. § 186, by the Departm ent o f Labor.

Section 805(b) o f the Comprehensive Crim e Control Act o f 1984,29 U.S.C. § 1136, did not alter
the lim itations on Department o f L abor investigatory authority set forth in § 601(a) of the
LM RDA.

October 28, 1986

M em orandum O p in i o n fo r the A s s is t a n t A ttorney G eneral,

C r im in a l D iv is io n

This memorandum responds to questions posed by the Criminal Division
regarding the investigative jurisdiction of the Department of Labor over certain
criminal matters. In response to a prior request from the Criminal Division, this
Office recently opined that § 805(b) of the Comprehensive Crime Control Act
of 1984,29 U.S.C. § 1136, granted investigative jurisdiction to the Department
of Labor over offenses related to pension funds and welfare benefit plans.
Memorandum for Stephen S. Trott, Assistant Attorney General, Criminal
Division from Charles J. Cooper, Assistant Attorney General, Office of Legal
Counsel (Aug. 29, 1986).
In a follow-up memorandum expanding the original request, the Criminal
Division posed three additional questions that we address separately in this
memorandum. We understand that these questions have arisen during the
process of negotiating a Memorandum of Understanding (MOU) between this
Department and the Department of Labor identifying their respective investi­
gative and prosecutorial responsibilities. First, you have asked for our views on
the general limits, if any, that apply to the power of the Attorney General to
delegate his investigative authority to other agencies through an MOU or other
means. The second issue you have asked us to address is whether the Labor
Department’s investigative authority under § 601(a) of the Labor Management
Reporting and Disclosure Act (LMRDA) of 1959,29 U.S.C. § 521(a), excludes
investigations of violations o f § 302 of the Labor Management Relations (Taft-
Hartley) Act of 1947, 29 U.S.C. § 186, and certain other offenses. Third, you
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have inquired whether any limitation imposed by § 601(a) of the LMRDA was
modified by § 805(b) of the Comprehensive Crime Control Act of 1984.
With respect to your inquiry concerning the general limitations on delega­
tion of investigative power by the Attorney General, this Office has consis­
tently taken the position that the Attorney General may not delegate criminal
investigative authority to outside agencies in the absence of specific statutory
authority. We are not aware of any specific authority that would alter that
conclusion in the present case. Therefore, we believe that the Attorney General
may not delegate his authority to investigate labor offenses unless the Depart­
ment of Labor has specific overlapping statutory authority to investigate those
same offenses.
On the second question regarding the construction of § 601(a) of the LMRDA,
your Division has taken the position that this provision precludes the investiga­
tion of § 302 offenses by the Department of Labor. Although § 302 is some­
what cryptic, we agree with your interpretation.
Finally, we do not believe that the limitation imposed on the Department of
Labor by § 601(a) of the LMRDA was altered by § 805(b) of the Comprehen­
sive Crime Control Act of 1984. Section 302 of the Taft-Hartley Act is not
related to the operation of pension funds or welfare benefit plans. Therefore,
under the analysis in our prior memorandum, § 805(b) did not alter the limita­
tion contained in section 601(a).

I. Background

Because these issues have arisen during MOU negotiations between this
Department and the Department of Labor, we believe it is important to explain
the role of prior agreements between these two departments governing the
division of investigative responsibility over certain labor offenses.
Investigations into criminal matters relating to labor-management relations
have been governed by a 1960 memorandum of understanding.1 The 1960
MOU directed that cases investigated by the Department of Labor would be
referred to the Criminal Division, and that all criminal prosecutions (as well as
civil actions in the name of the Secretary of Labor) would be conducted by this
Department. The MOU, however, made the division of investigative responsi­
bility “subject to specific arrangements agreed upon by the Department of
Justice and the Department of Labor on a case-by-case basis.” For example, the
MOU provided that this Department would investigate offenses under § 505 of
the LMRDA, 29 U.S.C. § 186 (amending § 302 of the Taft-Hartley Act), but
the MOU suggested that investigation of such matters could be delegated to the
Department of Labor on a case-by-case basis.
125 Fed. Reg. 1708 (1960). A second MOU executed in 1975 divides responsibility for the investigation of
certain ERISA offenses betw een the tw o departm ents. M emorandum o f U nderstanding Betw een the D epart­
m ents o f Justice and L abor R elating to the Investigation and Prosecution o f C rim es and R elated Matters under
Title i o f the Em ployee R etirem ent Incom e Security Act o f 1974 (Feb. 9 ,1 9 7 5 ). See generally M emorandum
to Stephen S. Trott, A ssistant A ttorney General, C rim inal Division from Larry L. Simms, D eputy A ssistant
Attorney G eneral, O ffice o f Legal Counsel (Dec. 23, 1983).

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 As noted above, the Department of Labor and this Department are currently
working on a new memorandum of understanding on this subject.2 The MOU
now being drafted can, of course, change or modify any agreement reached in
the prior MOUs, so long as the provisions of the new MOU are consistent with
legal constraints.3 We now turn to the three specific legal issues that you have
raised.

n . The Attorney General May Not Delegate Investigative
Jurisdiction to Other Agencies
Without Statutory Authority

You have asked whether there are limits on the Attorney General’s authority
to delegate his investigative powers either generally or on a case-by-case basis.
This Department’s general authority to undertake criminal investigations is
conferred by 28 U.S.C. § 533, which provides that the Attorney General “may
appoint officials . . . to detect and prosecute crimes against the United States.”4
In interpreting § 533, this Office has repeatedly recognized that this provision
authorizes the Department of Justice to investigate all federal criminal viola­
tions, unless a particular statute specifically assigns exclusive investigative
responsibility to another agency.
This Office has also consistently concluded that “ [i]n the absence of any
general provision of law permitting an agency to transfer its statutory authority
to another agency, such transfers or delegations may normally be accomplished
only by legislation or by executive reorganization under the Reorganization
Act.” “Litigation Authority of the Office of Federal Inspector, Alaska Natural
Gas Transportation System,” 4B Op. O.L.C. 820,823 (1980). This principle, in
our judgment, compels the conclusion that the Attorney General may not
delegate this Department’s investigative responsibility to another agency, just
as he may not delegate this Department’s litigating authority to another agency,
unless specific legislation grants him this power.5 In the present instance, we
are not aware of any statute authorizing the delegation of Justice Department
investigative authority to the Labor Department.6

2 W e understand that the tw o departments have recently signed a new M O U that deals w ith cooperation and
the provision o f inform ation but does not d eal w ith issues o f jurisdiction.
3 O ur analyses o f the respective authorities o f the D epartm ent o f Labor and this Department are not meant
to confer any rights on defendants. See In re Application to Quash Grand Jury Subpoena Served Upon Local
806 , 384 F. Supp. 1304, 1306 (E.D.N.Y. 1974) (1960 MOU betw een D epartm ents of L abor and Justice is not
for the b en efit o f defendants).
4 Pursuant to this authority, the Attorney G eneral may delegate his statutory authority to persons w ithin the
D epartm ent o f Justice.
5 See, e.g., 21 U .S.C . § 873(b). See also M emorandum fo r Stephen S. Trott, A ssistant Attorney General,
C rim inal D ivision from R alph W. Tan, A cting A ssistant A ttorney G eneral, O ffice of Legal Counsel (Nov. 8,
1985); M em orandum fo r M ark Richard, D eputy A ssistant A ttorney G eneral, Criminal Division from Larry L.
Sim m s, D eputy A ssistant Attorney G eneral, O ffice o f Legal Counsel (M ar. 12, 1984).
6 A lthough th e A ttorney G eneral may n o t delegate enforcem ent authority to other agencies, he may in some
instances appoint m em bers o f other federal agencies as deputy marshals to aid in the enforcem ent o f federal
law. T he analytical distinction between delegation o f authority and deputation lies in the direct control
C ontinued

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 Although we have not found any statute authorizing such a delegation, we
see no reason why the Attorney General could not enter into an agreement
providing for the Labor Department to exercise primary investigative responsi­
bility in an area of overlapping jurisdiction. Such an agreement, however,
would depend upon the existence of a statute granting relevant investigative
jurisdiction to the Labor Department.
In this connection, we note that the Criminal Division has directed our
attention to three sources of independent criminal investigative authority pos­
sessed by the Department of Labor. The first of these, § 805(b) of the Compre­
hensive Crime Control Act of 1984, was analyzed in our prior memorandum.
Congress has also expressly granted the Labor Department investigative juris­
diction in § 504 of the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1134, and in § 601 of the LMRDA, 29 U.S.C. § 521. You have asked
for our views on the nature of the limitation imposed by § 601(a) of the
LMRDA on Labor Department investigations of possible violations of § 302 of
the Taft-Hartley Act, and on the question whether that limitation was altered by
§ 805(b) of the Comprehensive Crime Control Act of 1984. We now turn to
these issues.

III. Section 601(a) of the LMRDA Does Not Authorize
the Labor Department to Investigate Possible
Violations of § 302 of the Taft-Hartley Act

As you note in your request, the original Taft-Hartley Act, which was
enacted in 1947, did not assign any agency the responsibility for investigating
violations of § 302. When Congress creates a crime but does not specifically
assign investigative jurisdiction to any particular agency, the Attorney General
has investigative jurisdiction under his general powers to “appoint officials . . .
to detect and prosecute crimes against the United States.” 28 U.S.C. § 533.
In § 601(a) of the LMRDA, enacted in 1959, Congress gave the Secretary of
Labor investigative authority with respect to any violation of the LMRDA
“except title I [relating to the protection of union members’ rights by private
civil action] or amendments made by this Act to other statutes." Pub. L. No.
86-257, § 601(a), 73 Stat. 519, 539 (1959) (emphasis added). Among the
statutory provisions amended by the LMRDA was 29 U.S.C. § 186, the codifi­

6 (. . . continued)
m aintained by the A ttorney Genera) (through the m arshal) w hen an individual is deputized. The A ttorney
G eneral is authorized to direct a m arshal to assign a deputy to perform any special national police duty that is
w ithin the m arshal's jurisdiction, w hether by express provision o r necessary implication. In re Neagle t 135
U.S. 1, 65 (1890). See also 28 U S.C. §§ 562, 569(c), 28 C.F.R . § 0 .1 1 1 -1 2 . Such deputations have been
sharply restricted as an adm inistrative matter by the M arshals Service, and numerous o ther legal consider­
ations weigh against the use o f this pow er to authorize agents o f other agencies to enforce federal law. For
exam ple, special deputations m ight in some instances be view ed as directly contravening the intent o f
Congress by providing authority to m ake arrests and carry firearm s to officers to whom C ongress specifically
had chosen not to grant those powers. See, e.g., “Special D eputations o f Private Citizens Providing Security
to a Form er C abinet M em ber,” 7 Op. O.L.C. 67 (1983).

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cation of § 302 of the Taft-Hartley Act. See Pub. L. No. 86-257, § 505, 73 Stat.
519, 537 (1959). Thus, because Congress amended § 302 of the Taft-Hartley
Act as part of the LMRDA, the language of § 601(a) clearly indicates that the
Secretary of Labor does not have authority to investigate § 302 offenses.
The legislative history of § 601(a) does not contradict the plain meaning of
the statutory language.7 The bill passed by the House and sent to the conference
committee directed the Secretary “to make an investigation” when he has
probable cause to believe that any person has violated a provision of the act,
other than title I.” H.R. Rep. No. 741,86th Cong., 1st Sess. 47 (1959) (report on
H.R. 8342). The Senate bill rejected the probable cause requirement for inves­
tigations and made the investigative power permissive rather than mandatory.
S. Rep. No. 187, 86th Cong., 1st Sess. 100 (1959) (report on S. 1555).
Moreover, the Senate bill, unlike the House bill, excepted violations of the
Taft-Hartley provisions from the Secretary of Labor’s investigative authority.
S. 1555, 86th Cong., 1st Sess. 21 (1959). The report of the Senate Labor
Committee explained in clear terms that the bill excepted from the Secretary’s
investigative authority “amendments made in other statutes, such as the Na­
tional Labor Relations Act [Taft-Hartley] or the Labor Management Relations
Act, 1947.” S. Rep. No. 187, supra, at 42.
The main dispute in the Conference Committee over the Secretary’s investi­
gative authority concerned the requirement of probable cause to investigate
violations of the Act and the mandatory nature of the investigations in the
House bill. See H.R. Conf. Rep. No. 1147, 86th Cong., 1st Sess. 36 (1959),
reprinted in 1959 U.S.C.C.A.N. 2318,2508. The Conference Committee report
did not even mention the restriction on investigations of Taft-Hartley offenses.
Id. Instead, the Conference Report merely noted that the Conference adopted
the Senate version “except that the investigation authority is permissive rather
than mandatory, no investigation may be made with respect to violations of
rules and regulations, and the investigation authority does not extend to title I.”
H.R. Conf. Rep. No. 1147, supra, at 36. Nevertheless, the Conference Commit­
tee included the Senate bill’s exception pertaining to statutes amended by the
act in the version of the bill reported out of the committee. See 105 Cong. Rec.
18115 (1959) (bill as reported out of conference committee).
The Taft-Hartley exclusion was explained briefly by Senator Goldwater on
the floor of the Senate prior to final passage. Senator Goldwater noted that
§ 601(a) authorizes the Secretary to investigate violations of any provision of
the act excluding “amendments made to Taft-Hartley.” 105 Cong. Rec. 19768

7 T h e N ational L ab o r R elations Board (N L R B ) collected the legislative history o f the LM RDA in 1959, and
the D epartm ent o f L abor published a selected legislative history in 1964. National L abor R elations Board,
Legislative History o f the Labor Management Reporting and Disclosure Act o f 1959 (1959); D epartm ent of
L abor, Legislative History o f the Labor Management Reporting and Disclosure Act o f 1959 (1964). The
B ureau o f N ational A ffairs (B N A ) also pu b lish ed an annotated legislative history in 1959. Bureau o f National
A ffairs, The Labor Reform Law (Labor M anagem ent R eporting and D isclosure Act o f 1959) (1959). See also
A. M cA dam s, Power and Politics in Labor Legislation (1964).

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(1959). Accordingly, it appears that the only explanation offered in the legisla­
tive history supports the plain language of section 601(a).
The change makes sense when the history of the act is considered.8 The
LMRDA resulted in part from over two years of detailed hearings by the
McClellan Commission on American labor union practices and labor manage­
ment relations.9 The primary aim of the LMRDA was to establish reporting
provisions to regulate and democratize the operation of the unions. See, e.g., S.
Rep. No. 187, 86th Cong., 1st Sess. 2 (1959). One of the key issues in the
drafting process was whether the bill should include amendments to the Taft-
Hartley Act which would entail changes in substantive provisions governing
labor-management relations or whether such amendments should be left for a
subsequent legislative effort. The Senate debated this issue at great length, with
a substantial number of Senators arguing that the substance of labor-manage­
ment relations involved a distinct set of issues that should not be allowed to
fracture the broad consensus concerning the need for additional procedural
(i.e., reporting) requirements. See, e.g., 105 Cong. Rec. 6131-32, 6239-40,
6281, 6285-92, 6296-6301, 6389-93, 6395-6400, 6409-11 (1959) (debating
amendment to delete provisions amending Taft-Hartley). In the end, the Senate
decided to include a handful of key amendments to Taft-Hartley in its version
of the bill.10
This history makes sense of § 601(a) which, in effect, provided the Secretary
of Labor with investigative authority over the heart of the 1959 Act — the new
reporting and disclosure provisions — but not over the distinct substantive
provisions governing labor management relations, which were amendments to
provisions of the Taft-Hartley Act. Thus, what may seem on first impression to
be awkward phraseology — “amendments made by this Act to other statutes”
— in fact clearly identifies the set of provisions that altered the Taft-Hartley Act.
In sum, the legislative history does not suggest that the final language of
§ 601(a) was intended to mean anything other than the plain language suggests.
One additional issue that must be considered is whether § 607 of the LMRDA,
29 U.S.C. § 1136(a), can be read to provide additional investigative jurisdic­
tion to the Department of Labor or to any other department. Section 607 gives
the Secretary of Labor the power to “make . .. arrangements or agreements for
cooperation or mutual assistance in the performance of his functions under this
Act and the functions of any such agency as he may find to be practicable and

8 The BNA legislative history o f the LM RDA, published in 1959, explains that the exception for the Taft-
Hartley am endm ents stem m ed from the fact that the N ational Labor Relations Board (N LRB) or the Justice
D epartm ent adm inistered that act. Bureau o f National A ffairs, supra note 7, at 104.
9 See, e.g., S. Rep. No. 187, 86th Cong., 1st Sess. (1959) (bill designed “to correct the abuses which have
crept into labor and m anagem ent and w hich have been the subject o f investigation by the Com m ittee on
Im proper A ctivities in the Labor and M anagem ent field for the past several years” ), reprinted in 1959
U .S.C.C.A.N . 2318. The M cClellan hearings focused on c o n u p t labor practices in a handful o f unions,
notably by the Team sters and their president, Jim m y Hoffa. S. Rep. No. 1417, 85th Cong., 2d Sess., Interim
Report o f the Senate Select Com m ittee on Im proper A ctivities in the Labor or M anagement Field (1958); S.
Rep. No. 1210, 85th Cong., 2d Sess. (1958).
10 M uch o f the eventual substance o f the Taft-H artley am endm ents was adopted from the H ouse version by
the conference committee. See H.R. Conf. Rep. No. 1147, supra, at 46, 49-75.

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consistent with law.” 11The section also provides that “each department, agency,
or establishment of the United States is authorized and directed to cooperate
with the Secretary and, to the extent permitted by law, to provide such informa­
tion and facilities as he may request.” Finally, the section specifically directs
the Attorney General to receive evidence from the Secretary of Labor and to
take appropriate action.
In our view, § 607 does not provide a basis for expanding Labor’s statutory
jurisdiction. That section authorizes the Secretary of Labor to enter into ar­
rangements or agreements to assist “in the performance of his functions under
this Act and the functions of any such agency. .. consistent with law.” (Empha­
sis added.) We do not believe this language can be read to enlarge the scope of
Labor’s lawful functions. To be “consistent with law,” the Secretary of Labor
can exercise only that authority granted to him by statute. The 1960 MOU
recognized that § 607 explicitly provided the Secretary of Labor with authority
to make interagency agreements. In our view, the agreement reflected in the
1960 MOU did not necessarily eliminate permanently the investigative juris­
diction of the Labor Department in the areas assigned to this Department, but
rather transferred that power to this Department based upon § 607 for as long as
that agreement remains in effect.12
Thus, the 1960 MOU would not bar a different allocation of responsibility in
a new MOU so long as the investigative jurisdiction falls within the investiga­
tive authority conferred by Congress in 1959 or since that time.

IV. Section 805(b) of the Comprehensive Crime Control Act
of 1984 Did Not Alter § 601(a) of the LMRDA

Finally, we address the question whether Labor’s lack of authority to inves­
tigate violations of § 302 of the Taft-Hartley Act was subsequently altered by
§ 805(b) of the Comprehensive Crime Control Act of 1984. We have already
opined that § 805(b) provided investigative jurisdiction only over offenses
related to pension funds and welfare benefit plans, and § 302 of the Taft-
11 Section 607 o f the LM R D A , provides in pertinent part:
In o rd er to avoid unnecessary expense and duplication o f functions am ong G overnm ent agencies,
the Secretary m ay m ake such arrangem ents or agreem ents for cooperation or m utual assistance in
the perform ance o f his functions u n d e r this A ct and the function o f any such agency as he may
fin d to be p racticable and consistent w ith law. The Secretary may utilize the facilities or services
o f any departm ent, agency, or establishm ent o f the U nited States or o f any State or political
subd iv isio n o f a State, including th e services o f any o f its em ployees, with the lawful consent of
such departm ent, agency, or establishm ent; and each departm ent, agency, o r establishm ent to the
U nited States is authorized and d irected to cooperate w ith the Secretary and, to the extent
p erm itted by law , to provide such inform ation and facilities as he may request for his assistance
in the perform ance o f his functions under this Act. The A ttorney G eneral or his representative
sh all receive from the Secretary fo r appropriate action such evidence developed in the perfor­
m ance o f his functions under this A ct as may be found to w arrant consideration for criminal
prosecution under the provisions o f th is Act or other Federal law.
29 U .S .C § 1136(A)
12 The 1960 M OU required “ periodic rev iew s o f this agreem ent to determ ine any adjustm ents which seem
necessary based on experience under th is Act." It is clear that the M OU envisioned the possibility of
subsequent alteration in the division of au th o rity recognized in the original agreem ent.

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Hartley Act is not related to pension funds or welfare benefit plans. Therefore,
§ 805(b) did not, in our view, provide the Department of Labor with investiga­
tive jurisdiction over these offenses.
You have not suggested any other post-1959 statutory provision that might
have expanded the investigative jurisdiction of the Department of Labor over
§ 302 offenses, and we have found no such provision in our independent
research. In the absence of such a provision, it is our view that the Labor
Department cannot investigate offenses under § 302.13

C h a r l e s J. C o o p e r
Assistant Attorney General
Office o f Legal Counsel

13 The 1960 M OU betw een the Labor D epartm ent and this Department describes § 302 o f the Taft-H artley
Act, as am ended by § 505 o f the LMRDA o f 1959, in the list o f matters to be investigated by the FBI. As
previously noted, the MOU provides that specific arrangem ents could be made on a case-by-case basis for
investigation o f § 302 violations by the L abor D epartment. You note that the C nm m al D ivision held the view
that such an agreem ent was acceptable based upon the belief that the A ttorney G eneral could delegate
investigative authority over such offenses under 28 U.S.C. § 533. As explained above, we do not believe that
the A ttorney G eneral can delegate such authority unless Congress has specifically given him pow er to make
such a delegation o r unless the agency to w hich that investigative authority would be delegated already has
clear and express congressional authority to investigate those offenses.

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