Group's argument has already been rejected by a federal appellate court in decision that did not set a precedent.
A prominent anti-labor advocacy organization this week urged the Federal Labor Relations Authority to call on agencies to cancel all existing agreements to deduct union dues from employees’ paychecks, claiming the agreements violate the First Amendment.
Last month, the FLRA proposed changing its policy guidance, at the behest of the Office of Personnel Management, governing how union dues are deducted from federal employees’ paychecks.
Under the current system, when federal workers choose to join a union, they sign a contract agreeing to have dues taken out of their paychecks for one year. There is a 15-day window at the end of that contract, during which the employee can elect to leave the union; otherwise, it is automatically renewed for another year.
OPM, through the FLRA, argued that the 2018 Supreme Court decision Janus v. American Federation of State, County and Municipal Employees requires the government to change the policy to allow federal union members to cancel their union dues deduction at any time, so long as at least one year has passed since they first joined the union. The Janus decision stated that so-called “agency fees” collected by a union from non-members, common for public sector unions at the state and local level, constituted a form of compelled speech and violated the First Amendment of the Constitution.
On Tuesday—the deadline for submitting comments on the proposal to change how federal union dues are collected—the National Right to Work Foundation urged the FLRA to go even further by cancelling all existing agreements to deduct union dues from feds’ paychecks. The organization has been a key anti-labor advocacy organization in recent years, most recently representing Mark Janus in the case that bears his name.
In its comments, the organization argued that Janus also applies to unions in the federal government, and that agreements to deduct dues from employees’ paychecks must include an explicit disclaimer that they are “waiving their First Amendment rights” in the process.
“Janus requires that the government have proof employees waived their First Amendment rights before taking their money to subsidize union speech because the government violated employees’ First Amendment rights if it compels to subsidize union speech,” the organization wrote. “This is true irrespective of whether the employees are union members or nonmembers . . . To satisfy that standard, at minimum, an assignment form must both notify employees of their First Amendment rights to refrain from subsidizing union speech and expressly provide that the employee is agreeing to waive that right for one year.”
Robert Tobias, director of business development for the Key Executive Leadership Program at American University and former president of the National Treasury Employees Union, said the National Right to Work Foundation’s legal analysis seems based in an intentionally over-narrow reading of the Janus decision, since it seems to contradict another passage of Janus that explicitly lauds the federal sector union dues collection scheme.
“The Supreme Court has already referenced this approach as an approach that fits within the contours of Janus,” he said. “The Supreme Court has made clear that the current system based on the current statute is lawful, period. There is no language in the Supreme Court decision that would allow what is being advocated, and if it were implemented, I believe it would be ruled illegal and in violation of the existing statute.”
Further, Tobias said that to cancel union dues collection agreements en masse would violate a key tenet of the Civil Service Reform Act, by which such a change would have to be implemented through individual agencies’ collective bargaining agreement negotiations process.
“The statute is clear about the right to negotiate and the statute is clear about honoring CBAs that are in effect,” he said. “The idea of cancelling those, I believe is directly contrary to the statute and very troubling. If the FLRA can require new waivers, it would only be in the context of newly negotiated collective bargaining agreements.”
NTEU also submitted its own comments to the FLRA in opposition of OPM’s proposal. The union argued that Janus specifically applies to the financial contributions of non-union members to a labor organization, not to those who already voluntarily decide to join a union.
“This holding, in its plain terms, applies only to nonmembers,” NTEU wrote. “OPM thus makes a drastic, unsupported leap when it asserts that ‘the same constitutionally protected rights that applied to nonmember employees in Janus would attach’ to union members who authorized dues assignments . . . OPM can provide no authority supporting this assertion because there is none.”
NTEU cited three recent U.S. District Court decisions in the wake of Janus that found that the decision does not apply to employees who voluntarily chose to join a union. And a fourth, non-precedential, decision by the Ninth Circuit Court of Appeals in another case argued by attorneys with the National Right to Work Foundation, found that a dues collection agreement with a one-year term “does not violate appellants First Amendment rights,” as it is effectively a contract.
“Although appellants resigned their membership in the union and objected to providing continued financial support, the First Amendment does not preclude the enforcement of ‘legal obligations’ that are bargained-for and ‘self-imposed’ under state contract law,” the court found.
NTEU noted that the form by which employees elect to have union dues deducted from their paychecks is voluntary, and clear about the one-year term and its automatic renewal, and said that some members elect not to sign it, instead paying dues by check or credit card.
“Not only does OPM ask the [FLRA] to distort Janus beyond recognition, but it neglects to recognize this fundamental component of the federal dues-withholding system,” the union wrote. “By omitting any mention of the fact that, by executing an SF-1187 [dues assignment form], employees consent to having dues withheld from their paychecks and agree to one-year revocation intervals, OPM overlooks the obvious answer to its own misguided question. That is, even if there were a reason to apply Janus, the federal-sector system includes the consent that the [Supreme] Court found missing in the Illinois statute.”
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