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Federal Workers Can Quit Unions More Easily Under Final Rule (1)

July 8, 2020, 7:32 PMUpdated: July 8, 2020, 10:28 PM

A union representing Treasury Department employees is mounting a legal challenge against a newly finalized rulemaking that allows federal workers who join unions but later decide to quit to opt out of paying union dues anytime after their first year of membership, and not just during a specified period each year.

The final rule, released by the Federal Labor Relations Authority on Tuesday, is scheduled to be published in the Federal Register on Thursday and to take effect 30 days later.

The agency, which oversees the labor relations program for government employees, proposed the rule in March to codify a decision it issued in February. That 2-1 ruling held that language in a labor relations statute, stating that union-dues elections “may not be revoked for a period of 1 year,” refers only to the initial 12 months after a federal employee first becomes a union member, and not to subsequent years.

Federal employee unions must represent all workers, whether or not they are union members. The final rule will eliminate confusion about when a federal worker can end their union membership, the agency said in the rulemaking. But allowing federal workers to opt out of union membership anytime after their first year could reduce the amount of dues available to unions that represent about half of the nation’s 2.1 million civilian employees.

Federal employee unions challenged the agency’s February decision in the U.S. Court of Appeals for the District of Columbia Circuit. That lawsuit is pending. The National Treasury Employees Union, one of the unions behind that suit, filed a petition for review in the D.C. Circuit on Tuesday, launching a new challenge to the final rule itself.

The union is “going to ask the court to consolidate this new case with one we filed in February challenging the FLRA decision,” NTEU President Tony Reardon said in a statement Wednesday.

The agency’s existing practice stemmed from a 1981 ruling in which it held that, under the Federal Service Labor-Management Relations Statute, union-dues elections can only be changed during a certain period each year. That means that those who fail to act during that time must wait until the following year to drop their union membership.

‘Fullest Freedom’

The agency said in the final rule that the regulation isn’t an attack on unions. Rather, the FLRA said it reflects the agency’s current interpretation of the Federal Service Labor-Management Relations Statute.

“The rule is rooted in the statutory text and the Authority’s exercise of its judgment in balancing the competing interests of unions, agencies, and employees,” the agency said in the final rule. The FLRA acknowledged that its interpretation isn’t the only one possible, but added that it is intended to “ensure employees the fullest freedom in exercising the rights guaranteed.”

The National Right to Work Legal Defense Foundation, a group that seeks to advance right-to-work laws in the U.S., applauded the final rule.

“This is an overdue reform fixing a longstanding misinterpretation of federal law,” said Patrick Semmens, the group’s vice president. “That federal union officials oppose something even this modest demonstrates how invested they are in trapping workers in dues payments rather than actually earning workers’ voluntary support.”

Everett Kelley, president of the American Federation of Government Employees, the largest federal employee union, said the agency’s real goal in issuing the final rule is to bust unions. The rule will make it “even harder for rank-and-file federal employees to speak up, defend their rights, and serve the American people,” he said in a statement.

Kelley also criticized the agency for advancing the rulemaking “even in the midst of a global pandemic that has forced front-line federal workers to beg and plead with agencies for basic safety protocols and personal protective equipment.”

Ernest DuBester, the agency’s sole Democratic member, argued in a dissent to the final rule that it would only lead to confusion. Among other things, “the majority does not adequately explain how its rule will operate with respect to existing and future collectively-bargained provisions governing dues assignments and revocations,” DuBester wrote.

DuBester also dissented from the agency’s February decision, writing that it “upends nearly four decades of Authority precedent governing revocations of union dues allotments voluntarily made by union members” under the statute.

(Updated with additional reporting.)

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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