FLRA Moves to Undo a Controversial Trump-era Union Dues Policy

The agency that oversees labor-management relations in the federal government on Wednesday will propose regulations restoring the process where federal workers may only cancel union dues payments in one-year intervals.

Since the passage of the 1978 Civil Service Reform Act, the Federal Labor Relations Authority has interpreted the law to mean that when federal workers sign up to become union members, they effectively are signing a one-year contract for the purposes of dues collections. At the end of that contract, they have the opportunity to cancel their membership; otherwise, the contract renews for another 12 months.

But in 2020, the Federal Labor Relations Authority, then controlled by a 2-1 Republican majority, issued a policy statement upending that precedent, concluding that the law actually meant to allow federal workers to cancel their union dues at any time, so long as at least one year has passed since they first became a member of the labor group, and issued new regulations to implement the policy change. In its decision, the agency argued in part that the change was necessary due to the Janus v. American Federation of State, County and Municipal Employees, which barred states from charging so-called “agency fees” of non-union members in state and local government.

Spurred by a petition from the National Treasury Employees Union, the FLRA, now with a Democratic majority, is set to publish proposed rules in the Federal Register Wednesday to undo the controversial 2020 decision. In its petition, NTEU argued that the FLRA ignored pertinent facts from the creation of the Civil Service Reform Act in order to reach its 2020 decision, with which the current FLRA agreed.

“NTEU contends that, although [the law] does not address dues revocations after the initial one-year period, its legislative history establishes that Congress intended to allow such revocations only at one-year intervals,” the FLRA wrote. “According to NTEU: before the statute was enacted, dues revocations could occur only at six-month intervals . . . and, by passing the statute, ‘Congress unquestionably intended to strengthen the position of federal unions.’ Contrary to that intent, NTEU claims, current [precedent] provides federal-sector unions ‘with less stability and fewer collective bargaining rights’ than they had before the statute’s enactment.”

The FLRA is seeking comments between now and Jan. 20 on the proposal to restore the old dues revocation rules. It is also exploring a new, third option: creating an annual one-month window in which all federal employees can choose to end their union membership, similar to the annual open season period for the Federal Employee Health Benefits Program.

Dissenting in the FLRA’s decision was Member Colleen Duffy Kiko, the authority’s lone Republican. She makes no mention of the Janus decision that purportedly prompted the 2020 decision, but said that NTEU’s argument regarding Congress’ intent fails to consider judicial precedent that the law is designed for the benefit of federal workers, not labor groups.

“The petitioner clearly views [the law] as a congressional gift to unions, but judicial precedent says otherwise,” Kiko wrote. “[The] petitioner offers three reasons why its proposed rule would be good policy, but none concerns a benefit to employees. According to the petitioner, the proposed rule would ‘provide unions with financial security and predictability,’ ‘restore unions’ status at the bargaining table,’ and ‘honor’ employees’ choices by [ironically] restricting employees’ choices. As such, the proposed rule’s subjugation of employees’ individual interests to federal unions’ institutional interests appears to conflict with [the law’s] animating purpose.”

However, Kiko suggested she was intrigued by the idea for creating a union dues open season period.

“There are good reasons to explore a framework for dues-withholding revocation that resembles the federal open season for health insurance,” Kiko wrote. “[Far] from a highly advertised, month-long decision period like open season, most employees under the previous system had about two weeks to revoke their previously authorized dues withholdings. Moreover, revocation forms could be rejected if employees did not know their anniversary dates, or did not correctly calculate their unique window periods using contract wording that was indecipherable to most readers.”