Federal Labor Relations Authority submits brief defending rule on union dues

On Feb. 5, the Federal Labor Relations Authority (FLRA), which administers the laws governing federal labor relations, submitted a brief defending a February 2020 decision permitting federal workers to stop paying union dues at any time after their first year of dues-paying membership. Before this, federal workers were only permitted to rescind their union-dues assignments at one-year intervals.  

What is at issue? 

Before 2020, the FLRA had interpreted Section 7115(a) of the Federal Service Labor‑Management Relations Statute to mean that dues deduction authorizations could only be revoked in one-year intervals. After the Supreme Court issued its decision in Janus v. AFSCME, ruling that public-sector unions could not compel non-members to pay fees, the Office of Personnel Management petitioned the FLRA for guidance on Janus' applicability to § 7115(a).

On Feb. 14, 2020, the FLRA voted 2-1 to overturn the earlier interpretation, saying, “[N]otwithstanding previous assertions otherwise, § 7115(a) neither compels, nor even supports, the existing policy on annual revocation windows. Because it remains our privilege and responsibility to interpret the Statute in a manner that is consistent with an efficient and effective government, we cannot allow our decisions or statements of policy to merely rubber-stamp what was said in the past.” 

The final rule was published in July 2020. 

The National Treasury Employees Union (NTEU) submitted a petition for review in the U.S. Court of Appeals for the D.C. Circuit in July 2020.

FLRA brief & NTEU response

The FLRA’s Feb. 5 brief cited Chevron v. Natural Resources Defense Council, a 1984 Supreme Court case that established how much a federal court, in reviewing a federal government agency's action, should defer to the agency’s interpretation of a law the agency administers. Click here to sign up for Ballotpedia’s Learning Journey on Chevron deference and explore the legal doctrine in depth.

According to the FLRA’s brief:

The Authority’s well-reasoned interpretation of its Statute, which is owed Chevron deference, and prudent and lawful use of its broad rulemaking power warrant denial of the Petitions. The Unions’ strained arguments do not establish that the Authority’s decisions are based on an impermissible interpretation of the Statute, or that they are arbitrary or capricious. …

Ultimately, the Policy Statement and Final Rule are the product of the Authority’s measured and well-reasoned application of its statutory expertise.
 

Tony Reardon, NTEU president, said, “[s]ince the FLRA ruling one year ago, the leadership at OPM and the chairmanship of the FLRA has changed. We believe that the appellate court should reverse the FLRA decision, or this is a topic that the Authority should have an opportunity to revisit.”

The case name and number are National Treasury Employees Union, et al., v. Federal Labor Relations Authority (20-1038).

More about the Federal Labor Relations Authority: The Federal Labor Relations Authority administers the Federal Service Labor-Management Relations Statute, which permits certain non-postal federal employees to unionize and bargain collectively. The FLRA has three full-time members, each of whom is a presidential appointee. Members serve five-year terms. 

Colleen Duffy Kiko and James T. Abbott were both appointed by President Donald Trump (R) in 2017. Ernest DuBester was first appointed by President Barack Obama (D) in 2009. DuBester was subsequently re-appointed to second and third terms by Obama and Trump, respectively. In January 2021, President Joe Biden (D) designated DuBester as chairman of the authority.

What we're reading

• Anchorage Daily News, “Judge: Alaska violated state employee contracts by trying to change union-dues rules,” Feb. 9, 2021
   
• The Center Square, “Right-to-work constitutional amendment advances in Tennessee Senate,” Feb. 9, 2021
   
• WWJ Newsradio 950, “Bills introduced to repeal Michigan's controversial 'Right to Work' laws,” Feb. 9, 2021

The Big Picture

Number of relevant bills by state

We are currently tracking 68 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we're tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent Legislative Actions

Below is a complete list of relevant legislative actions taken since our last issue. 

• Maine LD97: This bill would bar public-sector and private-sector employers from requiring employees to join or pay dues to a union as a condition of employment.
  • Republican sponsorship. 
  • Labor and Housing Committee hearing scheduled for Feb. 17. 
     
• Maryland HB1321: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment.
  • Republican sponsorship. 
  • Introduced Feb. 8. House Economic Matters Committee hearing scheduled for March 5. 
     
• Maryland HB837: This bill would establish a separate collective bargaining unit for teachers at the Maryland School for the Deaf.
  • Democratic sponsorship. 
  • House Appropriations Committee hearing Feb. 10. 
     
• Maryland HB894: This bill would establish collective bargaining rights for certain community college employees.
  • Democratic sponsorship. 
  • House Appropriations Committee hearing Feb. 10. 
     
• Maryland SB521: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, or St. Mary's College of Maryland.
  • Democratic sponsorship. 
  • Senate Finance Committee hearing scheduled for Feb. 18. 
     
• Maryland SB556: This bill would establish a separate collective bargaining unit for teachers at the Maryland School for the Deaf.
  • Democratic sponsorship. 
  • Senate Finance Committee hearing scheduled for Feb. 25. 
     
• Michigan HB4176: This bill would allow a public-sector union to require non-members it represents to pay a service fee to the union.
  • Democratic sponsorship. 
  • Introduced and referred to House Workforce, Trades, and Talent Committee Feb. 9. 
     
• Montana HB251: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment. It would also allow employees to revoke payroll deductions for union dues at any time with written notice. 
  • Republican sponsorship. 
  • House Business and Labor Committee hearing scheduled for Feb. 16. 
     
• Nebraska LB684: This bill would prohibit public school employers and unions from placing restrictions on when employees can join or leave unions.
  • Business and Labor Committee hearing Feb. 8. 
     
• New Hampshire HB206: This bill would establish that collective bargaining strategy discussions in which only one party is involved would not be subject to the state's right-to-know law.
  • Republican sponsorship. 
  • House Judiciary Committee hearing scheduled for Feb. 19. 
     
• New Hampshire HB348: This bill would require a public employer to provide notice of a new or amended collective bargaining agreement.
  • Republican sponsorship. 
  • House Labor, Industrial and Rehabilitative Services Committee hearing Feb. 11. 
     
• Oregon HB3119: This bill would permit public employees to refrain from joining or paying dues to a labor union. It would also allow unions not to represent employees who choose not to join or pay dues to the union.
  • Republican sponsorship. 
  • Introduced Feb. 9. 
     
• Tennessee HJR0005: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual's affiliation status with a union or other employee organization.
  • Republican sponsorship.
  • Withdrawn from consideration Feb. 8.
     
• Tennessee HJR0072: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual's affiliation status with a union or other employee organization.
  • Republican sponsorship. 
  • Assigned to House Banking & Consumer Affairs Subcommittee on Feb. 10.
     
• Tennessee SJR0002: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual's affiliation status with a union or other employee organization.
  • Republican sponsorship.
  • Senate Judiciary Committee hearing scheduled for Feb. 16. 
     
• Washington SB5133: This bill amends the definition of a "confidential employee" for the purposes of collective bargaining.
  • Democratic sponsorship. 
  • Substitute bill approved and sent to Senate Rules Committee for second reading Feb. 11.