As a follow-up to a US Supreme Court decision issued in 2018, the Federal Labor Relations Authority (FLRA) has issued a proposed rule. (Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018))
The rule the FLRA proposes is that after a one-year period during which dues withholding to a federal employee union may not be revoked, a federal employee may initiate the revocation of a previously authorized assignment at any time the employee chooses. Comments on the proposed rule are due by April 9, 2020.
Good News for Some Employees
In other words, the FLRA is proposing to make it easier for a federal employee to cancel the withholding of money going to a union from the employee’s paycheck.
This may be good news for some federal employees who may have had a problem figuring out the rules and requirements for canceling a union dues authorization. Starting the withholding of a dues payment is often quick and easy. The requirements to cancel the withholding can be more difficult.
The FLRA is not proposing to change the current requirement that, once initiated, a union dues payment cannot be changed for one year.
Bad News for Federal Unions
While some federal employees will enjoy the freedom of being able to more easily cancel a dues payment, the unions themselves are not happy about the change.
When the FLRA first announced its intent to issue a new rule on this issue, the American Federation of Government Employees (AFGE) commented in a press release:
The Authority’s (FLRA’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 half a century of settled and well-reasoned legal precedent in an activist effort to divide federal employees from their unions…They may try to silence us, but they can never stop organized federal employees from standing up and speaking out for a better life for their families and the public we serve.
The proposed rule to allow federal employees to cancel a dues withholding payment at any time after a one-year waiting period is based on a provision of the federal labor relations statute. It reads:
If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.https://www.law.cornell.edu/uscode/text/5/7115
Current System for Dues Cancellation
For a number of years, unions have been able to discourage employees from canceling a dues withholding agreement by establishing a short window when the agreement was open for cancellation.
Generally, a provision in an applicable labor relations contract would spell out the terms for allowing a specific time for dues to be canceled. If the employee missed the short window, the money would continue to flow from the employee’s check to the union.
The FLRA proposal that has just been issued 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.
Previously, the FLRA had supported the union’s position and concluded that “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, more recently, the FLRA took another look as this decision as a result of the Supreme Court’s decision noted above. This time, the FLRA observed there is nothing in the labor relations statute that “expressly addresses the revocation of dues assignments after the first year.”
The language of 5 USC 7118 (a) quoted above does not contain a provision that dues can only be revoked once a year. Nevertheless, the National Treasury Employees Union (NTEU) has filed a motion with the U.S. Court of Appeals for the D.C. Circuit seeking to overturn the FLRA’s action.
So, while the FLRA is moving ahead with seeking comments on the proposed rule, a court decision will be issued at some point that may delay the final rule while the lawyers for each side file briefs seeking judicial support for their desired outcome.
Comments on the FLRA’s proposed rule are due by April 9, 2020 using one of these methods:
- Email: FedRegComments@flra.gov. Include “Miscellaneous and General Requirements” in the subject line of the message.
- Mail or Hand Delivery: Emily Sloop, Chief, Case Intake and Publication, Federal Labor Relations Authority, Docket Room, Suite 200, 1400 K Street NW, Washington, DC 20424-0001.
Additional instructions for comments are in the Federal Register notice of the proposed rule.