The Federal Labor Relations Authority will finalize a rule allowing dues-paying employees to cancel automatic payments to federal unions at any time, rather than the once annual window they have now.
The rule, which is set for publication Thursday, finalizes a 2-1 decision the authority had made back in February. It will let employees revoke federal union dues payments at any point during the year, as long as they’ve been in the bargaining unit for a year.
The rule will be effective in 30 days, around Aug. 8. FLRA said it will apply the rule as if it were a governmentwide regulation.
It will apply only to dues assignments authorized on or after the rule’s effective date.
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“The rule would not require agencies to disregard the terms of previously authorized assignments that the agencies received before the effective date of the rule,” FLRA said.
The Authority’s February decision stems from a request made by the Office of Personnel Management, which asked the authority to review how the 2018 Supreme Court decision Janus v. AFSCME Council 31 might apply to existing policies on federal employees and their union dues.
Under Janus, the Supreme Court determined requiring public sector employees to pay union dues was a violation of their First Amendment rights. The decision was mostly seen as a blow for state and local public sector employees. Federal employees who are a part of a bargaining unit don’t have to become dues-paying members unless they want to; membership in a union is voluntary.
But OPM had asked for clarity from the FLRA on this topic, questioning whether a decades-old policy on federal union dues conflicts with the Janus decision and violates employees’ First Amendment rights.
In crafting its February decision, the FLRA ultimately decided it disagreed with its own prior interpretation of a specific provision in the Federal Service Labor-Management Relations Statute. The statute allows agencies to accept “assignments” from dues-paying bargaining unit members, who can ask their employers to automatically deduct federal union dues from their paychecks.
Any “assignment” can’t be revoked for a period of one year, according to the statute. Previously, the FLRA said this meant employees only had one opportunity a year to cancel automatic federal union dues payments.
But now, the FLRA has determined the statute simply requires a bargaining unit member to have been on board for one year before making federal union dues changes.
FLRA’s new final rule describes some of the feedback it received over the course of a 30-day notice and comment period.
The authority, for example, rejected arguments that the new rule would add more administrative burdens in processing dues revocation requests.
The agencies that offered comments on FLRA’s proposed rule disagreed with the premise, the authority said, and the Agriculture Department, Department of Veterans Affairs, OPM and Peace Corps all said they supported the rule change.
The 1978 labor-management statute was ultimately designed to benefit the employee and his or her interests, FLRA argued, not the union’s.
“In balancing the competing interests of employees in having greater freedom to revoke their dues assignments, and unions in having revocation procedures with minimal administrative burdens, we find that the rule as written properly weighs the employees’ interests more heavily,” the FLRA final rule reads.
FLRA acknowledged the rule could create financial uncertainty for federal unions but said the tradeoff was justified since it meant employees had more freedom to exercise their rights.
“We note that the rule certainly does not incentivize or require any employees to cancel dues assignments; it merely provides an option,” the authority said. “Moreover, nothing prevents unions from developing dues-payment arrangements outside the federal payroll system that would provide them a greater measure of funding predictability.”
The authority also rejected claims that the rule was “an attack on unions,” arguing the rule didn’t prevent bargaining-unit employees from remaining a federal union dues-paying member.
Federal unions, however, were quick to suggest the final FLRA rule was just that.
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“Federal employees join our union because they believe in empowering frontline workers and the FLRA cannot take that away from us,” Tony Reardon, national president for the National Treasury Employees Union, said Wednesday in a statement. “However, the administration should not be allowed to bypass Congress and simply rewrite labor laws it doesn’t like, which is why we are fighting this in court.”
NTEU had challenged the FLRA’s February decision in federal appeals court. The union filed a new petition with the U.S. Court of Appeals for District of Columbia Circuit on Tuesday, which specifically challenges the FLRA final regulation.
NTEU said it will ask the appeals court to consolidate both cases.
“Federal employees when they join NTEU are made aware of the annual dues revocation period that is part of the collective bargaining agreement, and every year some members disenroll at that time, a fair process that has worked well for decades and gives unions the stability that the law intended,” Reardon added.
The American Federation of Government Employees offered similar criticism.
“This meritless action by the FLRA is yet another step toward this administration’s goal of busting labor unions and making it even harder for rank-and-file federal employees to speak up, defend their rights and serve the American people,” Everett Kelley, AFGE national president, said Wednesday in a statement.
Ernest DuBester, the lone Democrat on the three-member FLRA, said the final rule from the FLRA posed confusion, particularly for existing and future collective bargaining agreements on federal union dues.
“With little apparent concern for the potential consequences, the majority today chooses to determine the scope of the parties’ bargaining obligations through regulatory fiat rather than a reasoned decision addressing the facts and circumstances of an actual dispute,” DuBester wrote in the authority’s final rule.