Foundation comments expose flimsy statutory foundations of proposed rule, also show it violates federal workers’ First Amendment Janus rights
Washington, DC (January 25, 2023) – The National Right to Work Foundation just filed comments at the Federal Labor Relations Authority (FLRA), opposing the agency’s plan to restrict federal employees’ right to stop unwanted union financial support for over 99 percent of the year.
The FLRA announced in December 2022 the proposed rule, which would rescind a 2020 regulation that permits federal employees to stop union dues deductions from their paychecks any time after one year from the date employees authorize such deductions. Foundation attorneys in 2020 filed comments supporting the current regulation that eliminated an FLRA-created limit on federal workers’ legal right to stop union payments.
The Foundation’s comments argue that the slated rule would return the FLRA to an incorrect interpretation of federal law in which dues deductions are “perpetually irrevocable for consecutive years,” except for one day to opt out between yearly periods. The Foundation points out that the statute simply says that dues deduction authorizations “may not be revoked for a period of 1 year,” (emphasis added) not multiple “periods,” which lets employees quit dues deductions any time after an initial yearlong period of irrevocability. Subsequent yearly restrictions, Foundation attorneys argue, are not supported by the statute.
Such a flawed interpretation would trap employees into subsidizing an entire year of unwanted union “representation” and expenditures merely because they miss the arbitrary one-day opt-out deadline. “The Authority will violate [federal law] if it . . . decrees that dues deduction assignments can be made irrevocable for multiple yearly periods,” the comments say.
Biden FLRA Rule Change Will Block Federal Employees’ First Amendment Janus Rights
The Foundation also points out that the 2020 rule lets federal employees exercise their First Amendment rights recognized in the 2018 Foundation-won Janus v. AFSCME Supreme Court decision to the greatest extent possible under the governing federal law. In Janus, the Court ruled that all American public sector workers have a First Amendment right to refrain from paying dues to an unwanted union, and that union dues deductions from a public sector worker’s paycheck can only occur with his or her affirmative consent.
If the Biden FLRA rescinds the 2020 rule and makes union dues deductions irrevocable for consecutive yearly periods, the federal government would be allowed to “disregard its employees’ wishes and continue to seize monies from their wages for a cause they oppose,” the comments read. That would be a blatant violation of the First Amendment principles recognized in Janus.
The 2020 rule instead sought to bring the dues deduction statute in line with Janus’ First Amendment standard “by construing the irrevocability period in [federal law] to be as short as possible,” the comments say.
The comments also refute union officials’ claims that rescinding the 2020 rules is necessary to maintain union financial interests and protect employee choice. The comments point out that union financial interests do not trump the right of workers to stop unwanted union financial support, and that eliminating the greater freedom to do so provided by the 2020 rule cannot possibly safeguard employee free choice.
“The Federal Labor Relations Authority, now stocked with union-label Biden appointees, is moving to limit the rights of rank-and-file workers just to give federal union bosses expanded powers to seize union dues over the objections of the workers they claim to represent,” commented National Right to Work Foundation President Mark Mix. “All American public sector workers have a First Amendment right under Janus to freely make this choice, and by changing the rules the FLRA will deliberately undermine the constitutional rights of the federal workforce.”
The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in around 250 cases nationwide per year.