Miscellaneous and General Requirements
| Published date | 09 July 2020 |
| Citation | 85 FR 41169 |
| Record Number | 2020-14717 |
| Section | Rules and Regulations |
| Court | Federal Labor Relations Authority |
Federal Register, Volume 85 Issue 132 (Thursday, July 9, 2020)
[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Rules and Regulations]
[Pages 41169-41173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14717]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules
and Regulations
[[Page 41169]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2429
Miscellaneous and General Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
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SUMMARY: The Federal Labor Relations Authority (FLRA, or Authority)
adopts an addition to its regulations. The additional regulation
concerns the revocation of a written assignment of amounts deducted
from the pay of a federal employee for the payment of regular and
periodic dues allotted to an exclusive representative. Specifically,
the regulation provides that, after the expiration of a one-year period
during which an assignment may not be revoked, an employee may initiate
the revocation of a previously authorized assignment at any time that
the employee chooses. However, the additional regulation will not apply
to the revocation of assignments that were authorized prior to the
effective date of the regulation.
DATES:
Effective Date: This rule is effective August 10, 2020.
Applicability Date: This rule applies to the revocation of
assignments that were authorized under 5 U.S.C. 7115(a) on or after
August 10, 2020.
FOR FURTHER INFORMATION CONTACT: Noah Peters, Solicitor, at
[email protected] or at (202) 218-7908.
SUPPLEMENTARY INFORMATION:
I. Background
On February 14, 2020, the Authority issued a general statement of
policy or guidance in Case No. 0-PS-34, Office of Personnel Management,
71 FLRA 571 (OPM). The Authority explained that its longstanding
interpretation of section 7115(a) of the Federal Service Labor-
Management Relations Statute (the ``Statute'') was unsupported by the
plain wording of that section. Specifically, the Authority had
previously held that the wording in section 7115(a) that `` `any such
assignment may not be revoked for a period of [one] year' must be
interpreted to mean that authorized dues allotments may be revoked only
at intervals of [one] year.'' U.S. Army, U.S. Army Materiel Dev. &
Readiness Command, Warren, Mich., 7 FLRA 194, 199 (1981) (Army)
(emphasis added) (quoting 5 U.S.C. 7115(a)).
Disagreeing with Army, the Authority in OPM explained that the
``most reasonable way to interpret the phrase `any such assignment may
not be revoked for a period of [one] year' is that the phrase governs
only the first year of an assignment.'' 71 FLRA at 572 (quoting 5
U.S.C. 7115(a)). As the Authority observed, ``[e]xcept for the limiting
conditions in section 7115(b), which section 7115(a) explicitly
acknowledges, nothing in the text of section 7115(a) expressly
addresses the revocation of dues assignments after the first year.''
Id. (footnote omitted).
In support of its criticism of the decision in Army, the Authority
relied on section 7115(a)'s plain wording. Id. 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 refers
to only `[one] year.' '' Id. (alterations in original) (quoting 5
U.S.C. 7115(a)). Further, the Authority explained why ``it would be
nonsensical to conclude that the one-year period under [section]
7115(a) is not the first year of an assignment.'' Id. And because the
section says that it limits revocations for ``a period of [one] year,''
the Authority recognized that ``it does not limit revocations for
multiple periods of one year.'' Id. (alteration in original) (emphasis
added).
Army based its interpretation of section 7115(a) almost exclusively
on legislative history, but the Authority in OPM recognized that
``Congress's `authoritative statement is the statutory text, not the
legislative history . . . . Extrinsic materials have a role in
statutory interpretation only to the extent they shed a reliable light
on [Congress's] understanding of otherwise ambiguous terms.' '' Id. at
573 n.23 (emphasis added in OPM) (quoting Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)). Because the
pertinent terms of section 7115(a) were not ambiguous, the Authority
explained that resorting to legislative history as the basis for
interpreting section 7115(a) would reflect ``poor statutory
construction.'' Id. (citing Ratzlaf v. United States, 510 U.S. 135,
147-48 (1994)). Moreover, 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 section
7115(a), the majority decision rested exclusively on statutory
exegesis, rather than principles of constitutional law. Id. at 573.
Although the Authority explained its reasons for rejecting the
interpretation of section 7115(a) set forth in Army, the general
statement did not adopt a new rule. Instead, the Authority explained
that it ``intend[ed] to commence notice-and-comment rulemaking
concerning section 7115(a), with the aim of adopting an implementing
regulation that hews more closely to the Statute's text.'' Id.
Anticipating its forthcoming rule proposal, the Authority expressed the
view that ``it would assure employees the fullest freedom in the
exercise of their rights under the Statute if, after the expiration of
the initial one-year period during which an assignment may not be
revoked under section 7115(a), an employee had the right to initiate
the revocation of a previously authorized dues assignment at any time
that the employee chooses.'' Id. However, the Authority also recognized
that any rule would have to ``seek a reasonable balance between
competing interests.'' Id.
On March 19, 2020, the Authority issued a proposed rule requesting
comments, published at 85 FR 15742, to further the statutory
reexamination that began in OPM. The Authority received, and has
considered, written comments submitted in accordance with that proposed
rule, and the Authority's responses to summaries of those comments
appear below.
II. Summaries of Comments and Responses
Comment: The Authority's analysis in OPM, and in the explanation of
the proposed rule, ignored the legislative history on which Army based
its interpretation of section 7115(a), and also ignored the decades of
decisional
[[Page 41170]]
precedent that adhered to Army's interpretation.
Response: The Authority is well aware of the legislative history on
which Army relied. But for the reasons explained in OPM, relying on
legislative history to alter the meaning of unambiguous statutory text
is improper. Indeed, the U.S. Supreme Court has explained that we
should ``not resort to legislative history to cloud a statutory text
that is clear.'' Ratzlaf, 510 FLRA at 147-48. Army ignored that
teaching. Moreover, the legislative history of section 7115(a) is not
nearly as supportive of Army's interpretation as that decision
suggested. Army began with the observation that dues deductions were
revocable at six-month intervals under Executive Order 11,491. Then,
examining congressional committee reports, Army concluded that the
Statute was intended to provide greater union security than Executive
Order 11,491, but not as much security as an ``agency shop.'' Finally,
Army concluded that section 7115(a) ``must'' be interpreted to allow
revocations only at one-year intervals. 7 FLRA at 199. The logical flaw
in that reasoning is clear. Whereas Executive Order 11,491 stated
explicitly that dues-deduction assignments must allow employees to
``revoke [an] authorization at stated six-month intervals,'' Army, id.
at 196 (emphasis added), section 7115(a) of the Statute does not
mention intervals at all. Rather, it mentions irrevocability for ``a
period of [one] year.'' 5 U.S.C. 7115(a) (emphasis added).
Nevertheless, based solely on perceived policy goals gleaned from
legislative history, Army improperly grafted an interval-based
revocation restriction onto the wording of section 7115(a). We reject
that mode of statutory interpretation, and we reject the portions of
other Authority decisions that followed Army in adhering to that flawed
interpretive method.
Comment: The rule will increase administrative burdens in
processing dues-assignment revocations.
Response: Although several union and employee commenters suggested
that the rule would result in increased administrative burdens for
agencies, none of the agencies that submitted comments agreed with that
assessment. Indeed, the Department of Veterans Affairs, U.S. Department
of Agriculture (USDA), Peace Corps, and Office of Personnel Management
support adopting the rule, and USDA says specifically that it ``does
not foresee any negative impacts of the implementation of the proposed
rule on the [a]gency.'' USDA Comment (Apr. 9, 2020) at 1. Moreover, we
are somewhat skeptical of the claims of increased administrative
burdens on unions in processing dues-assignment revocations because,
with the exception of the system negotiated by the National Treasury
Employees Union, in all of the examples discussed in the comments,
assignment-revocation windows depend entirely on the date that an
individual employee first authorized the assignment, or when the
authorized assignment first became effective. Thus, every employee's
revocation window is uniquely dependent on the anniversary date of that
employee's assignment authorization (or effective date), and such a
system does not beget administrative simplicity. Thus, we find the
arguments about increased administrative burdens on unions to be weakly
supported. To the extent that the rule does increase administrative
burdens on unions, we note that the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) has recognized--and we
agree--that section 7115(a) is designed primarily for the benefit of
the employee, not the union. AFGE, Council 214, AFL-CIO v. FLRA, 835
F.2d 1458, 1460-61 (D.C. Cir. 1987). Thus, in balancing the competing
interests of employees in having greater freedom to revoke their dues
assignments, and unions in having revocation procedures with minimal
administrative burdens, we find that the rule as written properly
weighs the employees' interests more heavily.
Comment: The Authority is ill equipped to craft an implementing
regulation for the First Amendment to the U.S. Constitution.
Response: The rule is based on the Authority's interpretation of
section 7115(a) of the Statute.
Comment: Because the wording of the Statute has not changed since
the decision in Army, the Authority should not change its
interpretation of section 7115(a).
Response: The Authority may, as it sees appropriate, reassess its
statutory interpretations even when the underlying statutory wording
has not changed. See FCC v. Fox Television Stations, Inc., 556 U.S.
502, 514-16 (2009).
Comment: The Authority asserts that the rule would hew more closely
to the text of section 7115(a). But, in fact, the rule would violate a
separate provision of that section that says that an ``agency shall
honor the assignment and make an appropriate allotment pursuant to the
assignment,'' because the rule would instruct agencies to disregard the
terms of the previously authorized assignments that the agencies have
received. 5 U.S.C. 7115(a) (emphases added). Further, the rule ignores
the revocation terms that appear on the current OPM-promulgated
standard forms governing dues assignments and assignment revocations
(SF-1187 and SF-1188, respectively).
Response: As explained in the Dates section above, the rule would
apply only to dues assignments that are authorized on or after the
rule's effective date. Thus, the rule would not require agencies to
disregard the terms of previously authorized assignments that the
agencies received before the effective date of the rule. Further, OPM
will have an opportunity to promulgate updated versions of the SF-1187
and the SF-1188 before the rule's effective date, consistent with OPM's
own implementing regulation for dues allotments. 5 CFR 550.321. In that
regulation, OPM states that allotments under section 7115 ``shall be
effected in accordance with such rules and regulations as may be
prescribed by the Federal Labor Relations Authority.'' Id.
Comment: The rule will destabilize negotiated dues-assignment and
assignment-revocation procedures that are included in collective-
bargaining agreements (CBA) that are currently in force. Thus, the rule
will upset parties' reliance interests on the previous interpretation
of section 7115(a) in Army.
Response: Like all governmentwide regulations, the rule will be
subject to the constraints of section 7116(a)(7) of the Statute. Thus,
currently effective agreements will not be destabilized if they contain
negotiated provisions that conflict with the rule.
Comment: The rule says that it is ``[c]onsistent with the
exceptions in 5 U.S.C. 7115(b),'' but that subsection does not indicate
that employees must be permitted to revoke their dues assignments at
any time after the first year.
Response: Several commenters misunderstood the import of this
introductory phrase. The rule begins with ``[c]onsistent with the
exceptions in 5 U.S.C. 7115(b),'' in order to make clear that, where
the conditions set forth in section 7115(b) are satisfied, a dues
assignment must be cancelled, regardless of whether a year has passed
since the assignment was first authorized, and regardless of whether
the employee acts to revoke the authorization. E.g., Int'l Ass'n of
Machinists & Aerospace Workers, Lodge 2424, 25 FLRA 194, 195 (1987)
(``Section 7115(b) requires the termination of a dues withholding
authorization in less than one year and without employee action in
specified circumstances.'').
[[Page 41171]]
Comment: The Authority should not require employees to wait even
one year to revoke a previously authorized assignment.
Response: Section 7115(a) dictates that assignments are irrevocable
for the first year after authorization, and the rule adheres to that
condition.
Comment: Several employees complained that it was difficult to
determine their anniversary dates, as well as the window periods during
which they were permitted to submit an SF-1188, in order to be able to
revoke their previously authorized dues assignments. In addition, they
explained that, in their experiences, the unions that represented them
were not helpful in determining the applicable anniversary dates or
form-submission window periods. Further, other commenters contended
that the negotiated procedures for determining anniversary dates and
window periods were not easily decipherable to a layperson. E.g., Nat'l
Right to Work Legal Def. Found. Comment (Apr. 9, 2020) at 5 (``In order
for the SF-1188 to be timely, it must be submitted to the Union between
the anniversary date of the effective date of the dues withholding and
twenty-one (21) calendar days prior to the anniversary date.'' (quoting
Master Agreement Between Dep't of Veterans Affairs & AFGE, Art. 41,
sec. 6.A. (1997))).
Response: The Authority anticipates that this rule, once
applicable, will make the sort of employee confusion or frustration
mentioned above highly unlikely because employees will be able to
initiate the revocation of a previously authorized assignment at any
time after the first year.
Comment: The rule will inhibit unions' sound financial planning.
Response: The Authority acknowledges that this rule will make
financial planning somewhat more difficult for unions, but believes
that, as section 7115(a) is designed primarily for the benefit of
employees (as discussed earlier), this tradeoff is justified by the
increase in employees' flexibilities to exercise their rights under
section 7102 of the Statute to refrain from joining or assisting any
union. In addition, unions will still benefit from the certainty of the
first year of irrevocability under section 7115(a). Further, we note
that the rule certainly does not incentivize or require any employees
to cancel dues assignments; it merely provides an option. Moreover,
nothing prevents unions from developing dues-payment arrangements
outside the federal payroll system that would provide them a greater
measure of funding predictability.
Comment: The Authority lacks the power to put a matter beyond the
duty to bargain through the issuance of its own governmentwide
regulation.
Response: Section 7134 of the Statute empowers the Authority to
issue regulations to carry out the Statute, 5 U.S.C. 7134, and 7105 of
the Statute charges the Authority with the duty to ``provide leadership
in establishing policies and guidance relationing to matters'' under
the Statute, id. 7105(a)(1). Further, the rule being promulgated
reflects the Authority's considered judgment in its area of expertise:
Interpreting and ``carrying out'' the Statute. Id. 7105(a)(1), 7134.
And it reflects the Authority's finding in OPM that section 7115(a) of
the Statute prohibits revocation only for the first year after an
assignment is authorized. 71 FLRA at 572. Admittedly, the Authority has
not previously issued an analogous regulation that would shape the
contours of the duty to bargain in the way that this rule will. But
Congress instructed in section 7117(a)(1) of the Statute that the duty
to bargain would not extend to a matter that was inconsistent with any
governmentwide regulation. And there is no basis in the Statute for
finding that Congress intended for section 7117(a)(1) to apply to
governmentwide regulations issued by all of the other federal agencies
that are statutorily authorized to promulgate legislative rules, but
not to governmentwide regulations issued by the Authority. The
Authority's rulemaking powers under sections 7105 and 7134 are broad,
and properly exercised in this instance.
Comment: Because the rule concerns only the initiation of the
revocation of a previously authorized dues assignment, the rule must
permit parties to negotiate for delays in the processing of revocation
forms.
Response: The Authority 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, including their
rights under sections 7102 and 7115. In order to make explicit the
prohibition on negotiated processing delays, we are adding a second
sentence to the rule--one that resembles wording that OPM suggested in
its comment on the proposed rule. Specifically, we provide that after
the expiration of the one-year period of irrevocability under 5 U.S.C.
7115(a), 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. E.g., Dep't of the Navy, Naval Underwater Sys. Ctr.,
Newport, R.I., 16 FLRA 1124, 1126-27 (1984); cf. AFGE, Local 2192, AFL-
CIO, 68 FLRA 481, 482-84 (2015) (finding that a union committed an
unfair labor practice by impeding the processing of revocation forms).
This additional sentence clarifies agencies' processing
responsibilities after receiving a request to revoke a previously
authorized dues assignment, provided that the one-year irrevocability
period has expired. The Authority adopts OPM's suggested standard of
``administrative feasibility'' in order to allow for a small measure of
flexibility for the agency personnel responsible for processing
assignment revocations, with the understanding that the timing of the
revocation's submission, the workload of agency personnel, and other
unforeseen factors may affect the speed with which revocations can be
processed. However, agencies will be expected generally to process such
revocations at least as quickly as they would generally process an
initial authorization of dues assignment.
Comment: The rule is an attack on unions.
Response: 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. 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. As one commenter observed, ``[T]his new rule does nothing to
prevent any [bargaining-unit employee] from remaining a dues[-]paying
member as long as they
[[Page 41172]]
desire.'' Tammy Schuyler Comment (Apr. 7, 2020).
Comment: The Contracts Clause of the U.S. Constitution prohibits
the rule.
Response: The Contracts Clause, U.S. Const. art. I, sec. 10, cl. 1,
restricts the power of states, not the Federal Government. And, as
explained above, the Authority's new rule will not destabilize any
previously negotiated CBA provisions.
Comment: Neither section 7102 nor section 7115(a) requires that
employees be permitted to revoke their dues assignments at any time of
their choosing, after the first year of irrevocability.
Response: The Authority has never suggested that this rule is
dictated by a provision in the Statute. Instead, the rule is filling a
gap left by section 7115(a)'s silence on the treatment of dues-
assignment revocations after the first year. In doing so, the Authority
has sought to ensure employees their fullest freedom to refrain from
joining or assisting a union, see 5 U.S.C. 7102--consistent with the
one-year irrevocability period that section 7115(a) requires. We do not
suggest that this rule represents the only possible balance that could
be struck among competing interests. But the rule represents the
balance that the Authority--in the exercise of congressionally
delegated power to craft legislative rules, 5 U.S.C. 7134--finds will
best fulfill the animating purposes behind sections 7102 and 7115. Cf.
id. 7112(a) (in making appropriate-unit determinations, the Authority
shall ``ensure employees the fullest freedom in exercising the rights
guaranteed under'' the Statute).
Comment: The National Labor Relations Board has held that, in the
private sector, parties are not prohibited from negotiating limitations
on the revocability of dues assignments.
Response: As recognized by the D.C. Circuit, the ``dues withholding
provision of the [Statute], 5 U.S.C. 7115, has no counterpart in the
National Labor Relations Act or the Labor Management Relations Act.''
AFGE, Council 214, AFL-CIO, 835 F.2d at 1461. Thus, the court found
that reliance on private-sector decisions to interpret section 7115 was
misplaced. Further, even if the NLRB's decisions did concern an
analogous statutory provision--which, as just explained, they do not--
the Authority may, in the exercise of its discretion, reach conclusions
that differ from the NLRB's.
Comment: The Authority should abandon the proposed rule.
Response: For the reasons described in OPM, and additionally, for
the reasons explained in this preamble, the Authority had decided to
amend its regulations to include the additional rule, which will now
include two sentences. The first sentence will be adopted just as
written in the proposed rule, and a second sentence will be added to
make explicit agencies' processing responsibilities, which were
discussed earlier.
Executive Order 12866
The FLRA is an independent regulatory agency, and as such, is not
subject to the requirements of E.O. 12866.
Executive Order 13132
The FLRA is an independent regulatory agency, and as such, is not
subject to the requirements of E.O. 13132.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Chairman of the FLRA has determined that this rule
will not have a significant impact on a substantial number of small
entities, because this rule applies only to federal agencies, federal
employees, and labor organizations representing those employees.
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
This rule is not subject to the requirements of E.O. 13771 (82 FR
9339, Feb. 3, 2017) because it is related to agency organization,
management, or personnel, and it is not a ``significant regulatory
action,'' as defined in Section 3(f) of E.O. 12866 (58 FR 51735, Sept.
30, 1993).
Executive Order 13132, Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, this rule does not have sufficient federalism implications
to warrant preparation of a federalism assessment.
Executive Order 12988, Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule change will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This action is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act of 1995
The amended regulations contain no additional information
collection or record-keeping requirements under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects in 5 CFR Part 2429
Administrative practice and procedure, Government employees, Labor
management relations.
Accordingly, for the reasons stated in the preamble, the FLRA
amends 5 CFR part 2429 as follows:
PART 2429--[AMENDED]
0
1. The authority citation for part 2429 continues to read as follows:
Authority: 5 U.S.C. 7134; Sec. 2429.18 also issued under 28
U.S.C. 2112(a).
0
2. Add Sec. 2429.19 to subpart A to read as follows:
Sec. 2429.19 Revocation of assignments.
Consistent with the exceptions in 5 U.S.C. 7115(b), after the
expiration of the one-year period during which an assignment may not be
revoked under 5 U.S.C. 7115(a), an employee may initiate the revocation
of a previously authorized assignment at any time that the employee
chooses. After the expiration of the one-year period of irrevocability
under 5 U.S.C. 7115(a), upon receiving an employee's request to
[[Page 41173]]
revoke a previously authorized dues assignment, an agency must process
the revocation request as soon as administratively feasible.
Federal Labor Relations Authority.
Noah Peters,
Solicitor, Federal Register Liaison.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Member DuBester, Dissenting
In my dissenting opinion in Office of Personnel Management
(OPM),\1\ I explained how the majority's decision to reverse nearly
four decades of Authority precedent governing the revocation of
union-dues allotments was premised upon a U.S. Supreme Court
decision that, ``by its own terms[,] has nothing to do with federal-
sector labor relations.'' \2\ I also cautioned that the majority's
decision ``will only create confusion, uncertainty, and--
ultimately--litigation on a myriad of issues.'' \3\
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\1\ 71 FLRA 571 (2020) (Member DuBester dissenting).
\2\ Id. at 579 (Dissenting Opinion of Member DuBester) (citing
Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018)).
\3\ Id.
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The majority has now abandoned any pretense that its decision in
OPM, or its subsequent issuance of this final rule, has anything to
do with the Janus v. AFSCME, Council 31 decision.\4\ Nevertheless,
like similar decisions in which the majority has overturned
Authority precedent without a plausible rationale, the rule it has
now crafted to implement its flawed OPM decision will generate
``more questions than answers.'' \5\
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\4\ Notice at 3 (``the majority decision rested exclusively on
statutory exegesis, rather than principles of constitutional law'').
\5\ AFGE, Local 1929 v. FLRA, _ F.3d _, 2020 WL 3053410, at 7
(D.C. Cir. 2020).
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For instance, the rule provides that an employee may initiate
the revocation of a ``previously authorized [dues] assignment'' at
any time the employee chooses ``after the expiration of the one-year
period during which an assignment may not be revoked under 5 U.S.C.
7115(a).'' \6\ 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.
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\6\ Notice at 16.
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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.'' \7\ But this explanation appears to
contradict the rule's plain language, which applies its provisions
to ``previously authorized assignment[s].'' \8\ Moreover, if the
rule is indeed intended to apply only to assignments authorized
after its effective date, it is unclear which ``previously
authorized'' assignments it is referencing.
---------------------------------------------------------------------------
\7\ Id. at 7 (emphasis in original).
\8\ Id. at 16.
---------------------------------------------------------------------------
It is also not apparent how providing a ``one-year period of
irrevocability'' \9\ for dues assignments will not dramatically
increase the administrative burdens placed upon both agencies and
unions to administer these assignments. If this one-year period is
intended to apply to the execution of any dues assignment, it would
presumably apply to both an employee's initial assignment and to any
subsequently executed assignment, thereby creating a new and
different anniversary date that will now have to be tracked for each
subsequent assignment. Remarkably, while the majority expresses
great skepticism regarding the unions' concerns regarding the
obvious administrative burdens arising from its rule, it accepts
without any attendant skepticism the contrary claims of several
agencies.
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\9\ Id.
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More significantly, 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. Regarding existing contract provisions, the majority
indicates that the rule, ``[l]ike all governmentwide regulations . .
. will be subject to the constraints of section 7116(a)(7) of the
Statute.'' \10\ And regarding bargaining agreements negotiated
subsequent to issuance of the rule, it explains that the parties
will not be permitted ``to negotiate for delays in the processing of
revocation forms because those delays would defeat the purpose of
the rule.'' \11\ It has also added an entirely new provision to the
final rule which requires agencies to process an employee's request
to revoke ``a previously authorized'' dues assignment ``as soon as
administratively feasible.'' \12\
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\10\ Id. at 8.
\11\ Id. at 11.
\12\ Id.
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The new provision governing agencies' obligations to process
revocation requests was not part of the proposed rule. Because the
parties were not afforded any opportunity to comment on this
provision's implications, it is unclear what types of negotiated
procedures would be considered ``administratively feasible'' under
the rule. And it is even less clear what the majority means by
advising parties that they cannot ``negotiate for delays'' in this
process.
But more importantly, the majority's explanation regarding the
rule's impact upon existing bargaining agreements illustrates the
unprecedented nature of this rule. The majority indicates that the
rule is intended to be applied as a government-wide regulation
within the meaning of section 7117(a)(1) of the Statute. And it
acknowledges that the Authority ``has not previously issued an
analogous regulation that would shape the contours of the duty to
bargain in the way that this rule will.'' \13\
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\13\ Id. at 10.
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Nonetheless, with little apparent concern for the potential
consequences, the majority today chooses to determine the scope of
the parties' bargaining obligations through regulatory fiat rather
than a reasoned decision addressing the facts and circumstances of
an actual dispute. Indeed, as I warned in my dissenting opinion, the
majority first stepped foot on this slippery slope when it issued
its OPM decision. That decision reversed decades of well-established
precedent governing dues allotments ``by means of a policy statement
that [was] neither responsive to the original request nor warranted
under the Authority's standards governing the issuance of general
statements of policy.'' \14\
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\14\ OPM, 71 FLRA at 576; see also id. at 579 (noting that
``questions regarding whether particular dues withholding
arrangements offend employees' statutory rights'' are ``the types of
questions that are particularly appropriate for resolution in the
context of the facts and circumstances presented by parties in an
actual dispute'').
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And, contrary to its suggestion, the reckless course of action
embraced by the majority is not the kind of ``leadership''
contemplated by the Statute.\15\ Regrettably, the confusion,
uncertainty, and litigation that will inevitably arise from this
ill-conceived rule will undoubtedly demonstrate why the Authority
has not proceeded down this path before today. Accordingly, I
dissent.
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\15\ Notice at 10 (quoting 5 U.S.C. 7105(a)(1)).
[FR Doc. 2020-14717 Filed 7-7-20; 11:15 am]
BILLING CODE 7627-01-P
