back to Federal Labor Law Topical Outline: Internal union regulation

Standards Governing Union Elections — Title IV, LMRDA1

Footnotes

  1. For further reading on Title IV of the LMRDA, see Individual Rights, Chapter 6, "Union Elections: Title IV of the LMRDA." Pp. 205-297. To review the statute, reference 29 United States Code (USC), Government Printing Office: Washington, D.C. Sec. 481-483. For the Department of Labor's interpretations of the many subparts of the LMRDA, reference 29 Code of Federal Regulations (CFR), Government Printing Office: Washington, D.C. Sec. 452.1-452.138 (7-1-97 Edition).
  2. 29 USC Sec. 402(n).
  3. 29 USC Sec. 402(e).
  4. 29 USC Sec. 402(o).
  5. These guidelines are not applicable for filling position vacancies between elections (29 CFR Sec. 452.25), when a labor organization has been placed under trusteeship (29 CFR Sec 452.8, 452.15) or has newly formed or merged (29 CFR Sec. 452.14).
  6. 29 USC Sec. 481(b).
  7. 29 USC Sec. 481(a).
  8. 29 USC Sec. 481(d).
  9. See Marshall v. Machinists, Local 1374, 558 F.2d 1354, 96 LRRM 2242 (9th Cir. 1977).
  10. 29 CFR Sec. 452.28.
  11. 29 USC Sec. 481(b).
  12. 29 CFR Sec. 452.26.
  13. 29 CFR Sec. 452.117.
  14. 29 CFR Sec. 452.27, 452.119.
  15. Being an union officer does not automatically qualify you as a candidate (29 CFR Sec. 452.12).
  16. 29 CFR Sec. 452.57(a).
  17. 29 USC Sec. 481(e).
  18. For bad mailing lists, see e.g., Wirtz v. Carpenters, Local 1622, 285 F.Supp. 455, 68 LRRM 2589 (N.D. Cal. 1968), for a failure to inform, see e.g., Marshall v. Office and Professional Employees, Local 2, 505 F.Supp. 121, 107 LRRM 2456 (D.D.C. 1981).
  19. See Donovan v. State, County & Municipal Employees, Civil Service, Local 1000, 761 F.2d 870, 119 LRRM 2249 (2nd Cir. 1985).
  20. See Hodgson v. Industrial and Allied Workers, Local 290, 327 F.Supp. 1284, 78 LRRM 2156 (E.D. Tex. 1971).
  21. 29 CFR Sec. 452.52.
  22. 29 CFR Sec. 452.58.
  23. 29 CFR Sec. 452.59.
  24. Membership in the Communist Party has since been determined not to be a criminal offense in U.S. v. Brown, 381 U.S. 437 (1965).
  25. 391 U.S. 492, 68 LRRM 2305 (1968), prior office holding requirement found illegal.
  26. 429 U.S. 305, 94 LRRM 2203 (1977), attendance rule found illegal.
  27. Compare Steelworkers, Local 3489, supra note 12, with its 18 month attendance requirement to Marshall v. Longshoremen, ILA, Local 1402, 617 F.2d 96, 105 LRRM 2694 with its rule requiring 10 months attendance, both ruled illegal.
  28. 29 CFR Sec. 452.37(a), which also covers "continuity of good service" and see Sec. 452.37(b) whereby requirements of this nature must allow for grace periods covering dues payments.
  29. Supra note 11, Hotel and Restaurant Employees, Local 6.
  30. 29 CFR Sec. 452.41(a).
  31. 29 CFR Sec. 452.41(d).
  32. 29 CFR Sec. 452.41(b) and Brennen v. Independent lift Truck Builders, 490 F.2d 213, 85 LRRM 2324 (7th Cir. 1974).
  33. For definitions covering the mailing and the 15 day minimum see 29 CFR Sec. 452.99-104.
  34. 29 USC Sec. 481(e).
  35. Ibid.
  36. Use guidleines of 29 USC Sec. 411(a)(1) as a map.
  37. 29 CFR Sec. 452.86.
  38. 29 CFR Sec. 452.87.
  39. 29 CFR Sec. 452.88.
  40. 29 CFR Sec. 452.85.
  41. 29 CFR Sec. 452.92.
  42. 29 CFR Sec. 452.111.
  43. 29 CFR Sec. 452.107, 29 USC Sec. 481(c). Each candidate is allowed an observer at the polls and at the ballot counting. They do not need to be a member of the union, unless this is required by the consitution. The union is responsible for their actions regardless.
  44. SeeWirtz v. Variety Artists, 267 F.Supp. 527, 64 LRRM 2406 (S.D.N.Y. 1967).
  45. 29 CFR Sec. 452.112.
  46. 29 USC Sec. 481(c).
  47. 29 CFR Sec. 452.71(b).
  48. 29 CFR Sec. 452.71(A0, 452.72.
  49. 29 CFR Sec. 452.71(a).
  50. 29 CFR Sec. 452.67.
  51. 29 CFR Sec. 452.69.
  52. 29 CFR Sec. 452.70.
  53. See Donovan v. Carpenters Metropolitan District Council, 797 F.2d 140, 123 LRRM 2606 (3rd Cir. 1986).
  54. Compare Yablonski v. Mine Workers, 305 F.Supp. 868, 72 LRRM 2172 (D.D.C. 1969) to Camarata v. Teamsters, 478 F.Supp. 321, 102 LRRM 3053 (D.D.C. 1979).
  55. 29 USC Sec. 481(g).
  56. 29 CFR Sec. 452.73(a).
  57. 29 CFR Sec. 452.73(b).
  58. 29 CFR Sec. 452.75.
  59. See Hodgson v. Mine Workers, 344 F.Supp. 17, 80 LRRM 2145 (D.D.C. 1972).
  60. 29 CFR Sec. 452.76.
  61. 29 CFR Sec. 452.78(b).
  62. See Marshall v. Teamsters, Local 20, 611 F.2d 645, 103 LRRM 2111 (6th Cir. 1979), aff'g 101 LRRM 2195 (N.D. Ohio 1979).
  63. SeeDonovan v. Teamsters, Local 70, 661 F.2d 1199, 108 LRRM 3133 (9th Cir.), aff'g 103 LRRM 2396 (N.D. Cal. 1979).
  64. 29 USC Sec. 483(g).
  65. 29 CFR Sec. 452.74.
  66. Supra, note 50.
  67. 67. 29 USC Sec. 481(e) & (f).
  68. 29 CFR Sec. 452.106.
  69. Ibid., see also Shultz v. Independent Employees Union of Packerland Packing, 74 LRRM 2137 (W.D. Wisc. 1970).
  70. 29 USC Sec. 481(e).
  71. 29 CFR Sec. 452.108.
  72. See Calhoon v. Harvey, 421 U.S. 560, 89 LRRM 2435 (1975).
  73. 29 USC Sec. 481(c).
  74. Supra, note 54, Camarata v. Teamsters.
  75. See Backo v. Carpenters, Local 281, 438 F.2d 176, 76 LRRM 2184 (2nd Cir. 1970), aff'g, 308 F.Supp. 172, 73 LRRM 2052 (S.D. N.Y. 1969), cert denied, 404 U.S. 858, 78 LRRM 2465 (1971).
  76. Teamsters, Furniture Moving Drivers, Local 62 v. Crowly, 467 U.S. 526, 116 LRRM 2633 (1984).
  77. 403 U.S. 333, 77 LRRM 2497 (1971).
  78. See Wirtz v. Laborers, Local 125, 389 U.S. 477, 67 LRRM 2134 (1968).
  79. See Hodgson v. Distillery Workers, Liquor Salesmen, Local 2, 444 F.2d 1344, 78 LRRM 2030 (2nd Cir. 1971).
  80. See Donovan v. Longshoremen, ILA, Local 1235, 715 F.2d 671, 114 LRRM 2038 (5th Cir. 1983).
  81. 29 CFR Sec. 452.135(b).
  82. 29 USC Sec. 482(a).
  83. See Donovan v. Machinists, District 146, 754 F.2d 621, 118 LRRM 2969 (5th Cir. 1985).
  84. See Hall v. Marshall, 476 F.Supp. 262, 102 LRRM 2980 (E.D. Pa. 1979).
  85. Individual Rights, p. 272.
  86. See Donovan v. Postal & Federal Employees, District 3, 107 LRRM 3271 (N.D. Ga. 1981).
  87. The sixty-day timeframe can be extended due to union refusal to cooperate, see Donovan v. Retail Wholesale Union, Hospital Employees, District 1199, 760 F.2d 440, 119 LRRM 2190 (2nd Cir. 1985); by the union waiving the deadline, see Hodgson v. Machinists, Local 851, 454 F.2d 545, 78 LRRM 3078 (7th Cir. 1971); or by the courts, see Hodgson v. Machinists, Local 1374, 558 F.2d 1354, 96 LRRM 2242 (9th Cir. 1977) where the court determined the deadline is "directory" not "mandatory."
  88. See Hodgson v. Carpenters, Local 2212, 457 F.2d 1364, 79 LRRM 3064 (3rd Cir. 1972).
  89. See Wirtz v. Maritime Union, 399 F.2d 544, 68 LRRM 3017 (2nd Cir. 1968).
  90. 389 U.S. 463, 67 LRRM 2129 (1968).
  91. 29 USC Sec. 482(c).
  92. See Usery v. Teamsters, Local 639, 543 F.2d 369, 93 LRRM 2113 (D.C. Cir. 1976).
  93. See Donovan v. Teamsters, Local 299, 515 F.Supp. 1274, 108 LRRM 2897 (E.D. Mich. 1984).
  94. See Donovan v. Teachers, Local 6, 747 F.2d 711, 117 LRRM 2777 (D.C. Cir. 1984).
  95. 29 CFR Sec. 417.4(a). For the complete DOL regulations concerning the removal of union officers, as called for in 29 USC Sec. 481(i), see 29 CFR Sec. 417.1—25.
  96. 29 CFR Sec. 417.6.

Introduction

Union officers are required by the LMRDA to be elected. Title IV covers the election procedures and office terms for local, as well as, national, international and intermediate bodies. This title covers the nomination of candidates, who is eligible, how much notice is required, a member's voting rights, how the ballots will be counted and in what manner the results are reported. It covers administrative details — records and ballet preservation. Title IV prohibits the use of dues or outside monetary sources in the election campaign and covers the removal of those officers guilty of serious misconduct. Title IV delves into how and when elections can be contested, what agency is responsible for investigating these charges and what happens in the interim. Rules are declared for what happens when an election is voided and what transpires when a rerun election is called for. It also covers the appeals process. Title IV also declares its preemption of certain laws in matters covering specific areas of the election process. Finally, it covers safeguards to insure fair elections, the distribution of campaign literature and the inspection of membership lists.

Definition of terms

  • Officers
    According to Section 402(n) of the LMRDA:
    • "officer" means any constitutional officer, any person authorized to perform the functions of president, vice president, secretary, treasurer, or other executive functions of a labor organization, and any member of its executive board or similar governing body.2
  • Employers
    Section 402(e) defines employer, in part:
    • …any employer or any group or association of employers engaged in an industry affecting commerce…2 which may deal with any labor organization concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and includes any person acting directly or indirectly as an employer…but does not include United States government or any wholly owned corporation owned by the Government of the United States or any State…3
  • Member in good standing
    Section 402(o) defines:
    • …"member" or "member in good standing," when used in reference to a labor organization, includes any person who has fulfilled the requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings…4

Terms of office

  • The Act sets forth specific timelines for election intervals.5 Local elections are to be held at least every three years.6 National/international elections are to be held at least every five years.7 Intermediate body elections are to be held at least every four years.8 Although excuses have not been accepted by the courts for failure to conduct elections by these deadlines,9 if the current officers are unopposed and there has been a nomination period, an election is not necessary.10

Manner of election

  • Local
    The statute stipulates that local elections are to be conducted by means of a "secret ballot among the members in good standing."11 The Department of Labor (DOL) regulations add that these votes are "directly for candidates to fill the offices that serve"12 the members. This means that indirect election of officers (such as by a governing body) would be a violation. It should also be noted that the winners of these secret ballot elections need not have a majority of the vote to win.13
  • National/International
    For national and international unions they have the option of a direct vote through secret ballot of members in good standing or through an indirect vote by delegates selected by secret ballot by members in good standing.14 Delegates to election conventions do not need to be officers, but must be chosen by secret ballot.15
  • Intermediate
    Officers for intermediate bodies are selected in the same fashion as for national and international unions.

Pre-election procedures

  • Nomination
    Unions are free to set up their own nomination procedures16 provided they do not violate the requirement of a "reasonable opportunity shall be given for the nomination of candidates."17 The notice of nomination must be adequate, such that sufficient numbers of members are not adversely affected, because of either how/where the notice was made.18
    • Unions can require nominees to show that they have preliminary support as a candidate.19 If such conditions are imposed, they must be uniformly applied.
    • Accommodations for members who live substantial distances from where nominations are submitted may not be necessary.20
    • Rules that restrict nominations, but have no legitimate purpose are illegal, e.g., requiring a filling fee,21 restriction to self nomination only22 or requirement of being present to be nominated.23
  • Eligibility
    According to the statute, a member in good standing is eligible to run for office. This eligibility is limited by Section 504, dealing with convicted felons (as originally passed, also with Communists) and by reasonable qualifications uniformly imposed. The range of what are considered reasonable qualifications has been narrowly defined. The Supreme Court in Wirtz v. Hotel and Restaurant Employees, Local 624 and Steelworkers, Local 3489 v. Usery25 decided against union requests that restricted eligibility of most of the union membership. One of the purposes of the statute is to promote union democracy, one such way is by insuring that opposition to the incumbents is permitted.
    • Attendance requirements
      Attendance requirements are often initiated to demonstrate a candidate's interest in the union's affairs and governance. Attendance rules are allowed if they are liberal in the length of time that a candidate must attend meetings.26
    • Membership requirements
      Although the statue stipulates that a candidate must be a member in good standing, unions often extend this requirement to include a continuous membership period prior to election. The standard that has developed is that a requirement of up to two years is valid, beyond that it will likely be found invalid.27
    • Prior office holding
      These requirements act as a mechanism entrenching the current leadership and thus limiting the member's ability to challenge in an election — they are illegal.28
    • Employment considerations
      Employment status may be considered a part of the requirements necessary for candidacy. The member may have to work for a particular employer, in a trade30 or industry, be at a certain skill level,31 but not necessarily be employed.32
  • Notice of election
    Election notices must be mailed with a minimum of 15 days notice.33 The notice must include information covering where and when the election will be held and which offices are to be filled. The notice must also be sent to all members, even if they are ineligible to vote.
  • Voting rights
    The right to vote in secret ballot elections is afforded to "every member in good standing" who "shall have the right to vote for or otherwise support the candidate or candidates of this choice without being subject to penalty, discipline ..."34 This section further grants every member "be entitled to one vote."35 Voting rights may also be subject to reasonable qualifications.36
    • The right to vote can be conditioned on the payment of dues, provided the condition is uniformly applied and a grace period is allowed for correcting arrears.37
    • If a member has paid his dues through a check off system, they cannot be denied the right to vote due to employer error, e.g., not forwarding dues to the union on a timely basis.38
    • If a new member joins a union or one is readmitted after suspension/discipline they may be required to maintain good standing for a period of up to one year. Any standard for new members and suspended/disciplined members should be equal. The union also may not legally create classes of nonvoting members.39
    • Apprentices may be required to complete their bona fide program before being allowed to vote.40
    • Unemployed members must be allowed to vote if their dues are current.41
    • The opportunity to vote must be "reasonable" and is determined on a case-by-case basis with the overriding factor being what arrangements the union has made and their impact.
  • Adequate safeguards
    The general rule is one of fairness. The unions are free to set up some of their own safeguards. Mandatory safeguards are the prohibition of campaigning in the polling places42 and the permitting of observers.43 Unions are free to determine the ballot form and how it is distributed. A union is not required to conduct the election, but are responsible for whoever they may contract to perform the function.44 If slates of candidates are part of the ballot, the member must also have the option to vote for individual candidates.45
  • Membership lists
    Membership lists make several appearances in 29 USC Sec. 481(c). They are not to be used to discriminate "in favor or against any candidate with respect to the use of lists of members." They are to be made available to "bona fide candidate[s]" once before the election to be inspected. Finally, they are to be "maintained and kept at the principal office of such labor organization by a designated official thereof."46
    • The list, which is available to union officers, cannot be used to their advantage. However, if additional liberties concerning the availability, copying or who is included in the list are made, these liberties must be extended to all candidates, who must also be advised as to its availability.47
    • A bona fide candidate is "any qualified member seeking to be nominated and elected." Once this definition has been met, they are entitled to one inspection of the membership list of those covered by the applicable collective bargaining agreement within 30 days of the election or 30 days prior to the mailing of ballots when such a system is used.48
    • Although the list need not be continuously maintained, it must be available49 at the union's principal office during either period listed in the subpart immediately proceeding this one.
  • Literature distribution
    DOL regulations state:
    • "The Act imposes the duty on the union and its officers to comply with all reasonable requests of any candidates to distribute his literature to the membership at his expense.When the organization or its officers authorize the distribution of campaign literature on behalf of any candidate, similar distribution under the same conditions must be made for any other candidate, if he requests it."50
    • These regulations also cover what expenses the candidates and the unions are responsible for51 and what the literature contents must be.52
      • Deadlines for literature distribution are permissible within reason.53
      • Union publications cannot act as campaign literature above and beyond the coverage an officer would have received absent the election.54

Campaign issues

  • Prohibited financial contribution. section 481(g) states:
    "No moneys received by a labor organization by ways of dues, assessments, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person…"55

The DOL regulations view this statement as placing two limitations on the use of union funds. The first is that money cannot be used to promote the candidacy of someone in the union where money was collected for any candidates in other unions.56 The second is that funds cannot be used to "issue statements" of candidates involved in an election.57

    • Union contributions
      The following uses of union funds connected to elections have been found to violate this section.
      • The use of the union newspaper to discourage or encourage a candidate for office.58
      • Funneling money59 through officer salaries to the election campaign.
      • Campaigning by union officers60 or employees on union time. This is viewed as the union paying for such campaigning, which is a violation.
    • Outside contributions
      Employers are restricted from contributing money or items of value to the election of workers they employ and any other election, regardless of their interest.61 This ban was put into place to curtail sweetheart deals, deny influence opportunities and eliminate the question of motive.62 Finally, lack of employer knowledge of a contribution has not been found a reason for not finding a violation.63
  • Permitted financial contributions. Unions are permitted to have their funds:
    "... be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of the election."64

Thus, the candidates are not obligated to pay for the running of the election proper. unions are allowed to support debate over campaign issues if such debate is open to all candidates.65 As noted earlier, unions can spend money to distribute campaign literature, if done so equally.66

Post election administration procedures

  • Preservation of records. Section 481(e) states:
    "The election officials designated in the constitution and bylaws or the Secretary, if no other official is designated, shall preserve for one year the ballots and all records pertaining to the election."67
    • All ballots, used, unused and voided are to be preserved.68
    • Ballots cannot be counted, verified and then destroyed.69
  • Publication of Results. The statute states only that "results [be] published, separately."70 DOL regulations elaborate on "separately" to mean that local election results must be available to interested members without an unusual effort on their part. If multiple locals took part in an election, the results must be broken down as such, to include invalid votes.71

Contesting the election

  • Pre-election complaint
    Pre-election complaints are limited to requests for literature distribution and membership list inspection.72 The statute states in Sec. 481(c) that complaints are privately enforceable through suit brought by bona fide candidates73 in federal district court. The adequate safeguards called for in this section have been interpreted not to be subject to the same course of action, but are to be addressed by the DOL through actions after the elections have been held.74
    • The basic relief of Sec. 481(c) is an injunction calling for the cessation of the illegal activity. The Supreme Court has approved this right.75 It has been limited to the time frame up to ballot being distributed.76
    • Additionally, a presence of irreparable injury and an absence of an adequate remedy are necessary for an injunction. The result being, that since most post election remedies that the DOL may call for may meet this requirement, private suit is dependent on court interpretation of the facts.
  • Post election complaint
    Unlike pre-election complaints, where only bona fide candidates are allowed to initiate suit, any union member may file a post election complaint with the DOL provided they meet the criteria stated in Sec. 481(a) and:
    1. "…has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or
    2. …has invoked such available remedies without obtaining a final decision within three calendar months after their invocation,"

If either of the above situations have been met, the member has one month to file a complaint. The complaint's specificity has been the subject of much litigation. In Hodgson v. Steelworkers, Local 6799,77 the Supreme Court found that the DOL could not go beyond the complaint initiated by the union member. The Court also found that when a complaint covering one matter points to an almost certain violation in another related matter, the DOL can take action.78 Thus, when unrelated violations are found, the courts have determined that all available internal mechanisms have not been addressed. When violations are found investigating related matters, it must first be determined if the union had knowledge that the additional violations were a target of the DOL's complaint.

  • A union member seeking to file a complaint is obligated to first attempt resolution through internal union procedures. If the member fails to make any effort, the union can dismiss the complaint.
  • However, if the procedures are overly complex79 or stifle any such effort, the member may not be required to pursue the complaint through the internal union mechanism.80
  • Exhaustion v. Invocation of the three month rule
    This requirement's effect is that the union is given the first opportunity to address a complaint lodged by a member. This allows for the union to investigate and correct, if needed, any violations. It permits self-goverance.
    • If however, all internal mechanisms have been exhausted, the complaining member has one month to file a complaint with the DOL from the union's notice that it has concluded the matter.
    • If thirty days have passed without a union decision on the complaint, the member can file with the DOL within one month or he/she can wait for a final decision from the union and then have one month to file any complaint.81
  • Presumption of validity Section 482(a) states:
    "The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide."82

This section allows for the continuing functioning of the union pending the results of any DOL investigation or suit.

  • Investigating the complaint
    The DOL is limited to investigating complaints until after an election is held. Any "member" as defined above can initiate a Title IV complaint.83 The member is limited to the various one month periods covered above to file an election complaint.84
    • Suit
      The DOL determines whether or not it will file suit. The DOL will first attempt to resolve the issue through settlement by informal means. The DOL will not sue if it determines the violations did not affect the election results, but will seek correction for the future. If the DOL sues, it will still seek resolution outside the courts.85
    • Jurisdiction
      Jurisdiction is granted to the Department of Labor's Secretary in Sec. 482(b) to bring suit in federal district court where the union maintains its principal office.
      • The complaint need only be a "short and plain statement of the claim."86
      • Once the DOL has received the complaint it has sixty days to bring suit.87
      • The parties involved in DOL suits are limited to the DOL and the union whose election is being challenged.88
      • Unions are not entitled to a jury trial.89
      • Because of the length involved with appeals, the issue of "mootness" was addressed in Wirtz v. Glass Blowers, Local 153,90 where the Supreme Court overturned a ruling that a subsequent election resulted in a complaint being moot. The court reasoned that even if a new untainted election occurred, the actions resulting in the initial complaint still needed to be addressed.
  • Voided election
    When the DOL declares an election void due to failure of conducting a timely election or because of Sec 481 violations that affected the election outcome, it will "direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization."91
  • Order for new election
    This generally constitutes the supervision and certification of the rerun election.
    • Supervision
      A DOL representative will confer with the interested parties and generate agreement on the rerun election ground rules. THe representative has the final say on the ground rules, which the courts can review. Deference is generally given to the DOL unless the ground rules violate a union's constitution or bylaws.
    • Certification
      • DOL supervision rerun elections are presumed valid.92
      • The Secretary must certify all rerun elections for them to be valid.93
  • Appeal process
    These decisions are reviewable by the Courts to ensure that the certification process was arbitrary or capricious.94

Removal of officers

  • Removal of officers
    Officer removal can occur due to a rerun election that results in a new official being elected or through Sec 481(h), which covers officer misconduct.
    • When the secretary certifies a rerun election, he will also issue a decree calling for the removal of those officers voted out of office.
    • Sec. 481(h) requires that if the local union has inadequate mechanisms in the constitution/bylaws to remove an officer guilty of misconduct, the DOL can convene a settlement conference.95 If the matter is not settled, it can be brought before an Administrative Law Judge (ALJ) who will hold a hearing.96 The findings of the ALJ are appealable.