1st Amendment and Union Dues

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By on August 13, 2019 in Human Resources with 0 Comments
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On July 12, the Federal Labor Relations Authority (FLRA) issued a Press Release addressing the publication of its “Notice of Opportunity to Comment on a Request for a General Statement of Policy or Guidance on Revoking Union-Dues Assignments” in the Federal Register. (See OPM Asks FLRA for Decision on Letting Folks Quit the Union Quickly)

Rethinking Precedents on Union Dues

According to the Notice, the Office of Personnel Management (OPM) asked the FLRA to rethink its precedents on when a bargaining unit employee who is a union member may revoke the decision to pay dues to a federal employee union and when the revocation will become effective. OPM and FLRA are involved in this issue as a result of a recent Supreme Court decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018).

No doubt, comments to the FLRA have been reaching the FLRA’s offices as comments were due by August 12th.

While few may have expected this Supreme Court decision to impact the federal workforce, that may not be the case. It will depend on how the FLRA resolves the question. If there is a significant impact, it will most likely be on payments made by federal employees paying union dues with the money automatically withheld from their paychecks.

Union Dues and the First Amendment

In Janus, the Supremes determined that requiring public employees to pay union dues or fees as a condition of employment violates their First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.”

Justice Samuel Alito noted that no union dues or fees could be taken from a public employee “unless the employee affirmatively consents to pay” using a “freely given” waiver of First Amendment rights.

In an interesting observation on the issue, the National Right to Work Foundation cited the Alito statement and submitted this comment to the FLRA:

…the Foundation urged the FLRA to issue guidance to agencies that they “must cease deducting union dues from the wages of employees who signed a dues deduction form that does not satisfy the [Janus] standard.” Federal employees who signed dues deduction authorizations before the Janus decision did not knowingly waive their Janus rights. Consequently, union dues cannot legally be deducted from their paychecks.

https://www.nrtw.org/news/flra-comments-08122019/

The organization estimates that about one million federal employees are having union dues withheld from their paychecks. It argues that federal employees are in a position of “never having knowingly waived their First Amendment right not to subsidize union activities as protected by Janus.” And, it concludes, “The government is seizing union dues from close to one million federal workers in violation of the First Amendment, and federal agencies have an obligation to act swiftly to ensure that workers’ Janus rights are fully protected.”

So, if this position were adopted by the FLRA, some federal employees would presumably see a refund of dues or their dues withholding would be canceled unless they have “knowingly waived their First Amendment right not to subsidize union activities….”

Federal Employees Not Required to Join a Union

One difference in the federal government’s internal labor relations system and some state and local government systems is that federal employees are not required to join a union in order to retain their employment. Unions sometimes refer to those who do not pay dues as “freeloaders” as the union is obligated to represent federal employees regardless of whether an employee is paying dues. Employees who decide not to join a union do not pay union dues under the internal federal labor relations program.

Raising the Stakes of an FLRA Decision

The FLRA ruling could make it easier for a federal employee to cancel dues withholding with payments then being transferred to a federal employee union.

Presumably, it is also possible existing dues withholding arrangement could be cancelled until a federal employee has “knowingly waived” his or her First Amendment right not to subsidize union activities.

While no one knows the extent this would impact the finances of federal employee unions, it would not aid in securing their financial security.

So, while an initial assessment of the Supreme Court decision in Janus did not initially appear to have an impact on federal employees or federal labor relations, we will have to wait for the analysis by the FLRA for the answer.

While it seems unlikely the FLRA would issue a decision leading to canceling any existing dues withholding payments, the possibility of that occurring will make reading their eventual decision more interesting and potentially more significant to the federal labor relations program.

© 2019 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

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