The Federal Labor Relations Authority (FLRA) has issued a “final rule” on an issue based on a request for a general statement of policy from the Office of Personnel Management (OPM). The result is a decision that some federal employees will applaud as they can now more easily cancel their withholding of a union dues payment. The new rule was published in the Federal Register on July 9, 2020 and is displayed at the bottom of this article.
On the other hand, federal employee unions will not like the decision as it will impact their financial security by making it easier for federal employees to cancel their dues withholding.
Action Taken by the FLRA
Previously, the FLRA wrote 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.”
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.
The FLRA has now issued a rule that a federal employee will be able to “initiate the revocation of a previously authorized dues assignment at any time that the employee chooses.”
There is likely to be some confusion as with any change that impacts the federal government. And, based on comments from readers, unions have sometimes made it difficult for people to end their dues withholding within the narrow time slot often included in federal union contracts.
What the New Rule Does
Under the new rule, the FLRA “intends the rule’s statement that an employee may ‘initiate’ the revocation of a previous dues assignment at any time to allow for the normal processing time that an agency needs to effectuate such a revocation after it is received. Thus, the rule does not guarantee the instantaneous cancellation of dues assignment after an employee initiates the revocation. However, the rule also does not permit parties to negotiate for delays in the processing of revocation forms because those delays would defeat the purpose of the rule, which is to assure employees the fullest freedom in the exercise of their rights under the Statute….”
To try and minimize delays in an employee canceling a dues withholding request, the FLRA adopted a suggestion from the Office of Personnel Management (OPM).
As noted in the final rule notice:
[A]fter the expiration of the one-year period of irrevocability…upon receiving an employee’s request to revoke a previously authorized dues assignment, an agency must process the revocation request as soon as administratively feasible. Negotiated delays in processing revocation forms may provide benefits to unions or agencies, but they do not benefit individual employees. Moreover, the Authority has held that a failure to process an assignment form is an unfair labor practice.
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 yet 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. The final regulation issued by the FLRA reverses nearly a half-century of settled and well-reasoned legal precedent by ending window periods for federal employees who join their union, paving the way for them to drop at any time after 12 months.
Response from the FLRA
The Federal Register notice from the FLRA addresses this issue as there was a comment reflecting this same issue. The comment was “The rule is an attack on unions”.
The FLRA wrote:
It is no more accurate to say that, by increasing the ease with which employees may exercise their section 7102 rights to refrain from joining or assisting a union, the Authority is attacking unions, than it would have been to say that, by making it more difficult for employees to exercise those section 7102 rights, the rule set forth in Army was attacking employees. The Authority rejects the characterization of this rule as an attack on any party.
In announcing the new rule, FLRA Chairman Colleen Duffy Kiko stated:
In many of the public comments we received, federal employees and agencies expressed frustration at how difficult and time-consuming the dues-revocation process had become. Because of the new rule, employees will no longer need to make their revocation decisions during confusingly defined and narrow window periods abutting their anniversary dates. The plain language of 5 U.S.C. § 7115(a) never required this state of affairs, and hard-working federal employees deserved more clarity. This regulation does not prevent any employee from voluntarily continuing their dues withholding should they so desire.
It is not often the FLRA issues a rule such as this one. It was precipitated by the Supreme Court’s decision in Janus v. AFSCME. In that case, the Court held 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.”
The issue has strong political overtones. Democrats and their union supporters generally dislike the case decision and the impact it has had on public sector unions. Republicans generally prefer it as it gives more freedom to individuals to join a union or not and also has a negative impact on strong supporters of candidates who are Democrats.
While this action by the FLRA only impacts the federal workforce, it is an offshoot of a case that involved a number of states with strong unions and that required mandatory payment of union dues or fees to the union for their services.
As is usually the case with these issues, there will be a lawsuit filed by one or more unions and the case will go to court to attempt to prevent implementation of the ruling. Stay tuned for further events as this occurs.