The board tasked with overseeing labor-management relations in the federal government on Wednesday issued final regulations making it easier for workers to cancel their union dues, despite opposition from labor groups and accusations of shifting rationale from its own member.
Last February, the Federal Labor Relations Authority announced that it would shift its interpretation of federal law governing how agencies may collect dues on behalf of employee unions. Although traditionally, federal employees could only opt out of union membership at one-year intervals, under the new rule, they will be able to cancel their dues at any time after one year has passed.
In its original decision, the FLRA cited a need to reexamine the rule following the Janus v. AFSCME Supreme Court decision, which ruled that non-union member employees of public sector agencies could not be compelled to pay so-called “agency fees” to support unions’ representational work. But unions, observers, and some federal judges have since noted that the Janus decision doesn’t apply to federal sector unions, since they already are barred from collecting fees from nonmembers.
In a final rule set to be published in the Federal Register on Thursday, the FLRA said it has only relied on interpreting the “plain language of the statute” in its reevaluation of existing precedent.
“While the request for a general statement of policy or guidance asked the authority to find that the First Amendment to the U.S. Constitution compelled a certain interpretation of [the statute], the majority decision rested exclusively on statutory exegesis, rather than principles of constitutional law,” the FLRA wrote.
The agency justified the change by arguing that previous precedent relied too heavily on the legislative history of the 1978 Civil Service Reform Act when the text of the law is unambiguous.
“In support of the criticism of the [current rule], the authority relied on [the statute’s] plain wording,” the FLRA wrote. “In particular, the section says that an assignment may not be revoked for a period of one year, and such wording governs only one year because it only refers to ‘one year.’”
FLRA Member Ernest DuBester, the lone Democrat on the three-member board, issued a dissent on the rule change, hammering his colleagues for no longer mentioning Janus after multiple courts have ruled against federal workers seeking to cancel their dues allotments outside of the standard opt-out window. He wrote that the rule will “generate more questions than answers” and that it creates contradictions within the FLRA’s regulations.
“As noted by the majority, a number of parties expressed concern that the rule would require agencies to unlawfully disregard the terms of previously authorized assignments, and would ignore the revocation terms that appear on the current OPM forms governing dues assignments and assignment revocations,” DuBester wrote. “In response to these concerns, the majority explains that the rule would ‘apply only to dues assignments that are authorized on or after the rule’s effective date,’ and that agencies would therefore not be required to disregard the terms of previously authorized assignments that the agencies received before the rule’s effective date. But this explanation appears to contradict the rule’s plain language, which applies its provisions to ‘previously authorized assignments.’”
American Federation of Government Employees National President Everett Kelley decried Wednesday’s rule as a “meritless” effort to make it easier for federal agencies to engage in “union busting.”
“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,” Kelley said. “The administration pushed for this anti-labor rule change and refused to relent, even in the midst of a global pandemic that has forced frontline federal workers to beg and plead with agencies for basic safety protocols and personal protective equipment.”
And the National Treasury Employees Union said it has already filed a legal challenge in the U.S. Court of Appeals for the D.C. Circuit seeking to block the new rule. NTEU National President Tony Reardon said the measure was “clearly written in an effort to harm unions.”
“Federal employees join our union because they believe in empowering frontline workers and the FLRA cannot take that away from us,” Reardon said. “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.
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