AFGE Takes FLRA’s Union Dues Policy Change to Court

Categories: The Insider

AFGE's General Counsel's Office on Feb. 19 filed a petition for review with the Court of Appeals for the District of Columbia Circuit challenging the Trump labor board’s recent policy change on union dues allotments.

The Federal Labor Relations Authority (FLRA), led by Trump-appointed Chairwoman Colleen Duffy Kiko, announced Feb. 14 it has overturned nearly 40 years of precedent and ignored the intent of Congress by reinterpreting the 1978 labor law. The goal is to weaken the employee unions financially. The change would allow union members to opt out of paying union dues any time after being a member for one year. Currently, union members have the right to revoke their membership at one-year intervals.

It is clear this policy aimed at weakening the union came from the White House. The labor board’s decision was in response to the Office of Personnel Management’s request for the board to issue this new “general statement of policy or guidance.”

The board’s decision is political and designed to bust unions since federal employees who are not union members are not required to pay agency fees. Janus was entirely about non-union members who had to pay agency fees.

“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,” said AFGE National Secretary-Treasurer Everett Kelley. “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.”

It’s important to note that federal workers are not required to join a union. If they voluntarily choose to join, they pay dues. Members join because they understand the benefits of being in a union, having a strong union contract, and because they support democracy, equality, and a voice for employees at work. By joining, they exercise their First Amendment right to support the union.

The Civil Service Reform Act of 1978 (CSRA) makes an employee’s dues deduction through payroll “irrevocable for one year.” Both the legislative history and guidance from OPM’s predecessor agency, the Civil Service Commission, explain clearly that the purpose of the one-year irrevocability of dues was to make such dues assignment revocable at yearly intervals. In other words, union members have the right to freely revoke their membership at one-year intervals. But that didn’t stop Trump’s FLRA from contradicting the legislative history.

Calling out the majority’s effort to undermine unions

The only bright spot in the dark chapter of the FLRA is Ernest DuBester, a member of the three-member FLRA. In his blistering dissent, DuBester called out his colleagues for using the Janus case to weaken unions in the federal sector.

“The short answer to [OPM’s] request is that Janus requires no such reevaluation,” DuBester wrote. “Indeed, the authority’s decision here does not contain a scintilla of legal analysis connecting its conclusions to the Supreme Court’s decision. This omission is not inadvertent. Janus focuses exclusively on the constitutionality of ‘agency fee’ payments required of employees who are not members of a union to support activities germane to a union’s duties as the exclusive bargaining representative.”

In Janus, the Supreme Court even praised the dues arrangement in the federal sector, saying it’s “illustrative” of how “labor peace can readily be achieved in the absence of agency fees.”

DuBester cited a previous Army case in which the FLRA specifically ruled that dues can only be revoked at one-year intervals. He said the FLRA issued this decision after carefully examining the legislative history, which clearly showed that Congress, when passing the law, intended to expand to one year the procedure for revocation of dues set forth in an executive order, which at the time provided that employees could revoke dues at six-month intervals.

“The House Committee Report accompanying the language . . . explains that this language ‘reflects a compromise between two sharply contrasting positions which the committee considered: no guarantee of withholding for any unit employee and mandatory payment by all unit employees,” DuBester wrote, adding Congress did not intend to allow union members to opt out of dues paying any time after the first year as the majority argued.”

“Absent any plausible rationale for reversing this decision, the majority’s true objective is unmistakable. By undermining the ability of unions to carry out their obligations under the Statute, the majority’s decision further weakens the institution of collective bargaining in the federal sector,” DuBester concluded. “I refuse to join a decision so fundamentally adverse to the principles and purpose of our Statute.”

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