The Federal Labor Relations Authority (FLRA) has issued a decision on a request for a general statement of policy from the Office of Personnel Management (OPM). The result is a decision that at least some federal employees will applaud as they can now more easily cancel a withholding of a union dues payment.
On the other hand, federal employee unions will not like the decision as it will impact their financial security. Union members will not have to hire a lawyer to interpret the one time per year window they have probably had previously to cancel an automatic dues withholding payment.
The new FLRA decision is a result of a U.S. Supreme Court decision concerning the payment of union dues. (See 1st Amendment and Union Dues for more background.)
At first glance, it did not appear the Supreme Court decision would impact the federal workforce. The federal government operates as an “open shop” and no federal employee can be required to join a union. In some state or local governments, employees can be required to pay a fee to the union that represents employees.
What the FLRA Decided
Previously, the FLRA had concluded “‘any such assignment (of union dues) may not be revoked for a period of [one] year’ must be interpreted to mean that authorized dues allotments may be revoked only at intervals of [one] year.”
But, wrote the FLRA, there is not anything in the labor relations statute that “expressly addresses the revocation of dues assignments after the first year.”
In other words, there is no legislative requirement supporting an earlier FLRA conclusion that “…dues assignments may be revoked only at one‑year intervals following the first year….”
Under the policy decision issued by the FLRA, a federal employee should be able to revoke a union dues withholding payment at any time after the first year of the withholding has occurred.
In a concurring opinion, FLRA Member James T. Abbott added this comment in linking the Janus Supreme Court decision to the federal sector:
“…[T]he Court clarified in Janus the connection between paying dues to an organization and how that payment of money, albeit through dues, is subsidizing speech. The Court’s wisdom has application to federal bargaining unit employees, even though the precise method of payment found in the private sector – “agency fees” – does not exist in the federal labor sector.
What Happens Next?
In its decision, the FLRA noted that …”in the near future, the Authority intends to commence notice‑and‑comment rulemaking concerning § 7115(a), with the aim of adopting an implementing regulation that hews more closely to the Statute’s text.”
In other words, the FLRA will be proposing a rule that an employee will be able to “initiate the revocation of a previously authorized dues assignment at any time that the employee chooses.”
Who Will Be Impacted?
In an article on this topic, we noted a comment submitted to the FLRA by the National Right to Work Foundation on this issue.
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.”
And, as noted in the same article, if this position were to be 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….”
The estimate of one million federal employees having union dues withheld from their paychecks sounds high, but regardless of the actual number, there is a fairly large number of employees paying dues on a regular basis. Nothing in this new FLRA statement will prevent a federal employee from continuing to have dues withheld.
The potential negative impact for unions is that some number of these employees will probably take advantage of the opportunity to cancel their dues withholding if it is convenient to do so.
Any potential threat to the finances of an organization would predictably lead to a strong reaction to the organizations potentially losing money. That is certainly the case in this instance.
The American Federation of Government Employees (AFGE) issued a statement that reads, in part, “The Authority’s decision is just another step toward the administration’s goal of busting unions and making it even harder for rank-and-file federal employees to speak up, defend their rights, and serve the American people. This meritless decision flies in the face of decades of settled and well-reasoned legal precedent in an activist effort to divide federal employees from their unions.”
For employees who may want to cancel their dues withholding, the annual one-year revocation window is probably still in effect until the FLRA issues a regulation that effectively changes existing union contracts. It appears from the FLRA’s decision that the agency intends to make such a proposal in the near future. When that happens, after comments are received and considered, and new regulation is issued, it will likely be much easier for a federal employee to cancel a union dues withholding payment.
FLRA 71 No. 107 by FedSmith Inc. on Scribd