Proposed Rule2026-04396
Miscellaneous and General Requirements
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Published
March 5, 2026
Issuing agencies
Federal Labor Relations Authority
Abstract
The Federal Labor Relations Authority (FLRA or Authority) is withdrawing its Notice of Proposed Rule and Proposed Rescission of General Statement of Policy or Guidance (the proposal notice) published in the Federal Register on December 21, 2022. The Authority has determined not to revise or rescind its existing regulation concerning the intervals at which federal employees may revoke their written assignments of payroll deductions for the payment of regular and periodic dues allotted to their exclusive representative. In addition, the Authority has decided not to rescind its general statement of policy or guidance in Office of Personnel Management (OPM), 71 FLRA 571 (2020) (Member Abbott concurring; Member DuBester dissenting).
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[Federal Register Volume 91, Number 43 (Thursday, March 5, 2026)]
[Proposed Rules]
[Pages 10774-10780]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-04396]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 43 / Thursday, March 5, 2026 /
Proposed Rules
[[Page 10774]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2429
Miscellaneous and General Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Withdrawal of proposed rule and withdrawal of proposed
rescission of general statement of policy or guidance.
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SUMMARY: The Federal Labor Relations Authority (FLRA or Authority) is
withdrawing its Notice of Proposed Rule and Proposed Rescission of
General Statement of Policy or Guidance (the proposal notice) published
in the Federal Register on December 21, 2022. The Authority has
determined not to revise or rescind its existing regulation concerning
the intervals at which federal employees may revoke their written
assignments of payroll deductions for the payment of regular and
periodic dues allotted to their exclusive representative. In addition,
the Authority has decided not to rescind its general statement of
policy or guidance in Office of Personnel Management (OPM), 71 FLRA 571
(2020) (Member Abbott concurring; Member DuBester dissenting).
DATES: The proposal notice published at 87 FR 78014 on December 21,
2022, is withdrawn as of March 5, 2026.
FOR FURTHER INFORMATION CONTACT: Thomas Tso, Solicitor, at
<a href="/cdn-cgi/l/email-protection#126666617d52747e60733c757d64"><span class="__cf_email__" data-cfemail="9ce8e8eff3dcfaf0eefdb2fbf3ea">[email protected]</span></a> or at (771) 444-5779.
SUPPLEMENTARY INFORMATION: Section 2429.19 of the Authority's
Regulations states that an employee may initiate the revocation of a
dues assignment pursuant to 5 U.S.C. 7115(a) at any time after the
expiration of an initial one-year period following the assignment.
In Case Number 0-MC-33, the Authority granted a petition from the
National Treasury Employees Union (NTEU), filed under Sec. 2429.28 of
the Authority's Regulations, to amend Sec. 2429.19. Miscellaneous &
General Requirements, 87 FR 78014, 78014 (Dec. 21, 2022) (granting
petition). The Authority proposed to: (1) rescind the policy statement
that the Authority issued in OPM, 71 FLRA 571; and (2) amend Sec.
2419.19 or, in the alternative, rescind Sec. 2429.19 in its entirety.
Id. The proposed amendments and rescissions would have made it more
difficult for federal employees to revoke their dues assignments by
limiting the time periods during which employees could initiate such
revocations. The Authority requested, and received, comments on its
proposals.
Apart from the comments received from federal unions, the vast
majority of comments received from individuals, organizations, and
agencies supported maintaining Sec. 2429.19 without change and opposed
the imposition of additional restrictions on the ability of employees
to cancel their dues assignments.
In addition, the Authority finds that both the plain text of
Section 7115(a) of the Federal Service Labor-Management Relations
Statute (Statute), and the relevant legislative history, support the
Authority's conclusion when adopting Sec. 2429.19: ``[S]ection 7115(a)
of the Statute prohibits revocation only for the first year after an
assignment is authorized.'' Miscellaneous & General Requirements, 85 FR
41169, 41171 (July 9, 2020).
Further, a majority of the Authority remains unpersuaded by the
dissent's arguments in favor of rescinding Sec. 2429.19 and OPM.
First, contrary to the dissent's assertion, there were not ``many''
comments in support of revising or rescinding the regulation and policy
statement. The vast majority of comments received from individuals and
agencies--33 of 39--supported maintaining Sec. 2429.19 without change,
and did not support rescinding OPM. And apart from federal unions, the
nine organizations that submitted comments uniformly opposed changes to
Sec. 2429.19. Commenters' strong support for Sec. 2429.19 shows the
deep unpopularity of imposing time limits on employees' abilities to
revoke their dues assignments.
Second, the dissent contends that rescinding Sec. 2429.19 would
not significantly upset reliance interests. But Sec. 2429.19 has been
in effect for almost six years. During that time, many collective-
bargaining agreements that were negotiated under the prior assignment-
revocation rule have expired, and as a result, subsequent dues
assignments in those units have been subject to Sec. 2429.19's rule.
The dissent does not explain how it would treat the assignments
executed over the last six years under Sec. 2429.19's rule if
revocation restrictions were reimposed. Further, the Office of
Personnel Management has revised Standard Forms 1187 and 1188, with
which federal employees may initiate or cancel payroll deductions for
union dues, to include the rule set forth in Sec. 2429.19. See <a href="https://www.opm.gov/forms/pdf_fill/sf1187.pdf">https://www.opm.gov/forms/pdf_fill/sf1187.pdf</a> (SF-1187, revised December
2025); <a href="https://www.opm.gov/forms/pdf_fill/sf1188.pdf">https://www.opm.gov/forms/pdf_fill/sf1188.pdf</a> (SF-1188, revised
December 2025). Thus, the rule has been fully incorporated into the
standard forms used across the federal government.
Third, the dissent offers a curious reading of the word ``period''
within the portion of Section 7115(a) that states that ``a written
assignment which authorizes the agency to deduct from the pay of the
employee amounts for the payment of regular and periodic dues of the
exclusive representative of the unit . . . may not be revoked for a
period of 1 year.'' 5 U.S.C. 7115(a). Rather than reading the phrase
``period of 1 year'' to mean a length of time equal to one year, the
dissent sees more.
Citing Black's Law Dictionary, the dissent notes that ``period''
may denote ``[a] length of time characterized by regular recurrence or
some cyclical process.'' Period, Black's Law Dictionary (12th ed.
2024). Consequently, the dissent says that Section 7115(a)'s use of the
word ``period'' indicates that the one-year revocation prohibition in
Section 7115(a) is a recurring prohibition. However, the example
accompanying the dissent's chosen definition demonstrates the error in
this reading. In the example for this usage of ``period,'' Black's Law
Dictionary includes additional modifiers that show the cyclical nature
of the length of time being discussed: ``the daily period of the
circadian rhythm.'' Id. (emphasis added). For Section 7115(a) to be
comparable, it would need to prescribe ``the yearly period of
irrevocability'' for an assignment. Instead, Section 7115(a) refers to
``a'' single one-year period of
[[Page 10775]]
irrevocability. 5 U.S.C. 7115(a) (emphasis added). Because the usage
example for the dissent's definition of ``period'' undermines the
dissent's interpretation, and because Section 7115(a) refers to ``a''
single period of irrevocability, ``[S]ection 7115(a) of the Statute
prohibits revocation only for the first year after an assignment is
authorized.'' Miscellaneous & General Requirements, 85 FR 41169, 41171
(July 9, 2020).
Fourth, because the text of Section 7115(a) is unambiguous, the
Authority need not resort to legislative history to determine its
meaning. As the Authority explained when adopting Sec. 2429.19,
``relying on legislative history to alter the meaning of unambiguous
statutory text is improper.'' Miscellaneous & General Requirements, 85
FR at 41170. But even if the Authority had reason to resort to
legislative history, a careful review of that history does not support
changing Sec. 2429.19.
Under E.O. 11,491, which governed federal labor relations before
the Statute, an agency was not required to honor a bargaining-unit
employee's request to withhold union dues from the employee's pay (or
to remit those withheld dues to the employee's union), unless the union
and agency first agreed in writing to authorize assignment allotments
for that purpose. Further, E.O. 11,491 permitted agencies to recover
the costs of making those deductions and remittances.
The House Committee Report for H.R. 11280 (the Report), which
contained wording that eventually became Section 7115(a) of the
Statute, explained that Section 7115 ``reflects a compromise between
two sharply contrasting positions which the committee considered: no
guarantee of withholding for any unit employee and mandatory payment by
all unit employees (`agency shop'). The committee believes [S]ection
7115 to be a fair resolution for agencies, labor organizations, and
employees.'' H.R. Rep. No. 95-1403, at 48 (1978).
In the dissent's view, the only way to honor the compromise that
the Report endorsed is to read Section 7115(a) to require repeating,
annual revocation intervals for dues assignments. But the compromise
referenced in the Report appears in the plain wording of Section
7115(a). Specifically, Section 7115(a) gives unions more security than
they had under E.O. 11,491 because it: (1) requires agencies to honor
dues-assignment allotments even if the parties do not have a written
agreement authorizing such allotments; (2) requires the agency to cover
the costs of making those deductions and remitting the funds to the
union; and (3) makes assignments generally irrevocable for one year,
which doubled the initial six-month period of irrevocability under E.O.
11,491. Superimposing additional intervals of assignment irrevocability
onto Section 7115(a), as the dissent advocates, is unnecessary to honor
the congressionally endorsed compromise on dues-withholding procedures.
Moreover, the Report reinforces what the plain wording of the
Statute says. Without using the word ``period'' or ``interval,'' the
Report says unequivocally, ``Assignments normally are to be irrevocable
for one year.'' H.R. Rep. No. 95-1403, at 48 (emphasis added). This
crucial sentence from the Report supports the plain reading of Section
7115(a) that underlies Sec. 2429.19.
Fifth, the dissent relies on Section 7135 of the Statute, which
pertinently states that ``[p]olicies, regulations, and procedures
established under and decisions issued under [E.O.] 11,491 . . . shall
remain in full force and effect . . . unless superseded by specific
provisions of [the Statute] . . . or decisions issued pursuant to [the
Statute].'' 5 U.S.C. 7135(b). But the dissent's rationale for invoking
Section 7135 is unconvincing. The Statute thoroughly changed the system
of dues-assignment allotments that existed under E.O. 11,491. As
already mentioned, the Statute eliminated the requirement for written
agreements to authorize assignment allotments, relieved unions of the
burden of paying for deductions and remittances, and made assignments
irrevocable for an entire year (rather than just six months). According
to the dissent, Congress's complete reworking of this system shows that
Congress wanted ``the prior regime to continue'' in a single, oddly
specific way.
The dissent asserts that Congress wanted the interval-based
revocation system from E.O. 11,491 to survive. But the Executive Order
explicitly required an ``employee to revoke [an] authorization at
stated . . . intervals,'' Exec. Order No. 11,491, Sec. 21(a), reprinted
in 5 U.S.C. 7101 note (2026), whereas Section 7115(a) does not refer to
intervals. In essence, the dissent asserts that Congress continued the
Executive Order's interval-based revocation system by deleting the word
``intervals'' from Section 7115(a) altogether. This approach would be a
highly counterintuitive way to preserve an interval-based system under
Section 7135(b). To the contrary, Congress's abandonment of the word
``intervals'' supports a conclusion that Section 7115(a) prohibits
revocation only for the first year after an assignment is authorized.
For the foregoing reasons, as well as the reasons set forth earlier
in OPM and the final-rule notice adopting Sec. 2429.19, the Authority
withdraws the proposal notice.
By the Authority
Dated: March 3, 2026.
Thomas Tso,
Solicitor.
Note: The following will not appear in the Code of Federal
Regulations.
Appendix A--Opinion of the Authority's Dissent With Respect to
Withdrawal of Proposed Rule and Withdrawal of Proposed Rescission of
General Statement of Policy or Guidance
Dissenting View of Member Anne Wagner
The majority's action today leaves in place both 5 CFR 2429.19 and
the Authority's general statement of policy or guidance (policy
statement) in Office of Personnel Management, 71 FLRA 571 (2020) (OPM)
(Member Abbott concurring; Member DuBester dissenting). For the
following reasons, I would rescind both.
Section 7115 of the Federal Service Labor-Management Relations
Statute (the Statute), titled ``Allotments to representatives,''
addresses how federal employees in appropriate bargaining units may,
through written assignments, authorize federal agencies to deduct union
dues from their pay--and how the employees may later withdraw those
assignments. 5 U.S.C. 7115. Section 7115(a) pertinently provides that,
with certain exceptions, those assignments ``may not be revoked for a
period of 1 year.'' Id. 7115(a).
In 1981--early in the Authority's history--the Authority addressed
the meaning of the above-quoted wording ``in the context of relevant
legislative history and [f]ederal labor[-]relations policy.'' U.S.
Army, U.S. Army Materiel Dev. & Readiness Command, Warren, Mich., 7
FLRA 194, 196 (1981) (Army). In Army, the Authority noted that, before
the Statute's enactment, ``procedures for payroll deduction for direct
payment of employees' union dues were governed by section 21 of [E.O.]
11,491, as amended'' (E.O. 11,491). Id. at 196. Section 21 of E.O.
11,491--entitled ``Allotment of dues''--pertinently provided: ``When a
labor organization holds formal or exclusive recognition [of
employees], and the agency and the [labor] organization agree in
writing to this course of action, an agency may deduct the regular and
periodic dues of the organization from the pay of members of the
organization
[[Page 10776]]
in the unit of recognition who make a voluntary allotment for that
purpose, and shall recover the costs of making the deductions.'' In
addition, E.O. 11,491 stated: ``Such an allotment is subject to the
regulations of the Civil Service Commission [(CSC)], which shall
include provision for the employee to revoke his authorization at
stated six-month intervals.'' Under E.O. 11,491, ``an agency could
charge a union a service fee for making payroll dues deductions for the
union's members.'' Army, 7 FLRA at 198 n.15 (citing AFGE, Loc. 1749, 6
FLRC 525, 535-37 (1978)).
In Army, the Authority stated that, under E.O. 11,491, ``[a]lthough
voluntary and dependent upon a written agreement between the parties, a
dues[-]withholding provision operated as a union[-]security measure
designed to foster stability in labor-management relations.'' Id. at
196. The Authority noted that, unlike E.O. 11,491, Section 7115(a) of
the Statute ``does not make dues assignments dependent upon a written
agreement between the parties[,] but rather permits an employee in an
appropriate unit to authorize dues allotments if he so desires.'' Id.
Looking to the Statute's legislative history, the Authority in Army
found that Section 7115(a)'s wording ``is identical to that contained
in section 7115(a) of H.R. 11280 as passed by the House,'' which ``was
unchanged from that reported by the House Committee on Post Office and
Civil Service.'' Id. at 197. The Authority noted that the House
Committee Report stated that Section 7115 ``reflects a compromise
between two sharply contrasting positions which the committee
considered: no guarantee of [dues] withholding for any unit employee
and mandatory payment [of dues] by all unit employees (`agency shop').
The committee believes [S]ection 7115 to be a fair resolution for
agencies, labor organizations, and employees.'' Id. (internal quotation
marks omitted). The Authority noted that the House Committee Report
stated the following with respect to Section 7115(a): ``Subsection (a)
provides that if an employee in an exclusively represented unit
presents to the agency a written assignment authorizing the agency to
deduct the labor organization's dues from the employee's pay each pay
period, the agency must honor the assignment and must deduct the dues.
The decision to pay, or not to pay is solely the employee's. If the
employee decides to have dues withheld, the agency must honor that
decision. The allotments are to be made at no cost to the employees or
to the labor organization. Assignments normally are to be irrevocable
for one year.'' Id.
The Authority noted that, by contrast, the Senate version of the
bill: (1) provided that assignments of dues allotments ``shall be
revocable at stated intervals of not more than [six] months,'' id.
(internal quotation marks omitted); (2) made agencies' obligations to
deduct dues ``dependent upon the agency's agreement to do so as part of
a negotiated agreement,'' id. at 198; and (3) was silent with respect
to who would bear the cost of making dues allotments. The Authority
noted that the Conference Committee rejected the Senate version and
adopted the House version unchanged. However, the Authority also
determined that, in its report, the Conference Committee ``did not
address the revocability of assignments of dues allotments.'' Id.
The Authority then stated: ``In the Authority's view, the language
of [S]ection 7115(a) of the Statute and the legislative history cited
above support the conclusion that [S]ection 7115(a) is intended to
provide a more effective form of union security than previously
existed, without going so far as to authorize an `agency shop.' This
conclusion is evidenced by the legislated change from a dues[-
]withholding provision under [E.O. 11,491] which was contingent upon a
negotiated written agreement to a statutorily mandated procedure for
dues allotments, as well as by the fact that under the Statute, unlike
under [E.O. 11,491], dues allotments are required to be made at no cost
to the union. In the Authority's view, consistent with this conclusion,
Congress intended in [S]ection 7115(a) of the Statute to maintain the
procedure for revocation of assignments set forth in [E.O. 11,491]
(i.e., only upon stated intervals of time), and to expand that interval
under the Statute to a period of one year. That is, the language in
[S]ection 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. The
Authority's conclusion in this regard is consistent with the statutory
purpose of providing a greater measure of union security, thereby
fostering stability in labor-management relations.'' Id. at 198-99
(emphasis added).
The Authority noted that this conclusion also was consistent with
guidance that the CSC--the predecessor to the Office of Personnel
Management (OPM)--provided to agencies near the time of the Statute's
enactment. That guidance advised agencies to inform employees that,
``after the next available six-month revocation date established by the
applicable collective[-]bargaining agreement, any future revocation can
only be at one-year intervals from that date.'' CSC Bulletin 711-48,
Special Bulletin #10, at 4 (Dec. 28, 1978) (emphasis added).
The Authority applied the Army interpretation of Section 7115(a)--
allowing revocations only at one-year intervals--consistently for
nearly four decades. See United Power Trades Org., 62 FLRA 493, 495
(2008); AFGE, AFL-CIO, 51 FLRA 1427, 1433 n.5 (1996) (AFGE); NAGE,
SEIU, AFL-CIO, 40 FLRA 657, 688-89 (1991); AFGE, AFL-CIO, Dep't of
Educ. Council of AFGE Locs., 34 FLRA 1078, 1080-82 (1990); AFGE, AFL-
CIO, Loc. 1931, 32 FLRA 1023, 1029 (1988); Dep't of the Navy,
Portsmouth Naval Shipyard, Portsmouth, N.H., 19 FLRA 586, 589 (1985)
(Portsmouth); Veterans Admin., Lakeside Med. Ctr., Chi., Ill., 12 FLRA
244, 246 (1983); Dep't of HHS, SSA, Off. of Program Serv. Ctrs. & Ne.
Program Serv. Ctr., 11 FLRA 618, 620 (1983); Dep't of HHS, SSA, Bureau
of Field Operations (N.Y.C., N.Y.), 11 FLRA 600, 602-03. The Authority
also held that ``parties may define through negotiations the procedures
for implementing'' Section 7115, as long as those negotiated procedures
do not infringe on employees' rights, including the right under Section
7115 to revoke their dues assignments annually. NTEU, 64 FLRA 833, 838
(2010) (quoting AFGE, 51 FLRA at 1433) (internal quotation mark
omitted).
Then, in 2019, OPM asked the Authority to issue a policy statement
regarding ``the applicability of the First Amendment principles that
the U.S. Supreme Court clarified in Janus v. AFSCME, Council 31 . . . ,
[585 U.S. 878 (2018) (Janus),] to the revocation of federal employees'
union-dues assignments under [Section] 7115.'' OPM, 71 FLRA at 571. In
2020, a majority of the Authority's Members--with Member DuBester
dissenting--responded to OPM's request by issuing the policy statement
in OPM. The majority rejected Army's analysis and found that Section
7115(a) ``neither compels, nor even supports, the existing policy on
annual revocation windows.'' Id. at 573. Instead, the majority found
that ``[t]he 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,'' and that,
``[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. at 572. The Authority
[[Page 10777]]
then stated: ``In our view, 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 at 573. However, the
majority expressly declined to consider the legislative history that
the unanimous Authority had discussed at length in Army, on the ground
that Section 7115(a)'s pertinent wording ``is not ambiguous.'' Id. at
n.23. The Authority majority stated that it intended to commence
related notice-and-comment rulemaking.
Subsequently, on March 19, 2020, a majority of the Authority--with
Member DuBester dissenting--did just that, publishing in the Federal
Register a proposed rule with request for comments, with a very short
comment period. 85 FR 15742 (Mar. 19, 2020) (requiring that comments be
received on or before April 9, 2020). Then, on July 9, 2020, a majority
of the Authority--again, with Member DuBester dissenting, and a mere
two months after the close of the comment period--published a final
rule, 5 CFR 2429.19, in the Federal Register. 85 FR 41169 (July 9,
2020). As relevant here, Sec. 2429.19 provides that, after the
expiration of the one-year period following an employee's allotment,
the employee ``may initiate the revocation of a previously authorized
assignment at any time that the employee chooses.'' 5 CFR 2429.19.
The rule had an effective date of August 10, 2020, but stated that
it would apply only to ``the revocation of assignments that were
authorized'' on or after August 10, 2020, and would ``not apply to the
revocation of assignments that were authorized prior to'' that date. 85
FR at 41169. The rule also stated that, ``[l]ike all governmentwide
regulations, the rule will be subject to the constraints of [S]ection
7116(a)(7) of the Statute,'' so ``currently effective agreements
[would] not be destabilized if they contain negotiated provisions that
conflict with the rule.'' Id. at 41170. In this regard, Section
7116(a)(7) of the Statute provides that it shall be an unfair labor
practice ``to enforce any rule or regulation (other than a rule
implementing [5 U.S.C. 2302] which is in conflict with any applicable
collective[-]bargaining agreement if the agreement was in effect before
the rule or regulation was prescribed.'' 5 U.S.C. 7116(a)(7).
In 2022, in Case No. 0-MC-0033, the National Treasury Employees
Union (NTEU) filed a petition, under Sec. 2429.28 of the Authority's
Regulations, 5 CFR 2429.28, to amend Sec. 2429.19. On December 21,
2022, a majority of the Authority--with then-Member (and current
Chairman) Kiko dissenting--issued a Federal Register notice (the
Notice) that granted NTEU's petition. 87 FR 78014 (Dec. 21, 2022). In
the Notice, the Authority majority proposed to: (1) rescind the policy
statement in OPM; and (2) either revise Sec. 2429.19 to provide that
dues revocations may be processed only at one-year intervals or, in the
alternative, rescind Sec. 2429.19 in its entirety.
The Notice solicited comments on these proposals. In response, the
Authority received fifty-five timely comments. Although many of the
comments support keeping Sec. 2429.19 intact, many others support
either revising or rescinding that regulation, rescinding the policy
statement in OPM, and returning to the interpretation of Section
7115(a) established in Army.
According to some comments, Section 7115(a)'s legislative history--
as discussed in Army and summarized above--supports a conclusion that
Congress intended dues revocations to occur only at annual intervals.
Some comments cite the fact that CSC guidance, issued shortly after the
Statute's enactment, advised agencies that future revocations could
only be made at one-year intervals. Further, some comments emphasize
that the Authority followed Army for nearly forty years, with no
intervening congressional action. Additionally, some comments note that
union membership in the federal sector--and signing OPM's Standard Form
(SF)-1187, to authorize dues deductions--is voluntary, as the terms of
the SF-1187 and the SF-1188 (the form to withdraw dues-deduction
authorizations) confirm. Consequently, some comments contend that Janus
has no bearing on federal-sector dues allotments. In this connection,
some comments assert that the proposed amendment would respect employee
rights under Section 7102 of the Statute, 5 U.S.C. 7102, because
employees would remain free to refrain from joining or assisting a
union, as Section 7102 guarantees.
In addition, some comments support amending or rescinding Sec.
2429.19 because doing so would allow parties to bargain over dues-
revocation arrangements, rather than prohibiting any such arrangements
that conflict with Sec. 2429.19. Moreover, some comments assert that
amending or rescinding Sec. 2429.19 would not upset reliance
interests, because the rule established by Sec. 2429.19 has taken
effect in only a limited number of bargaining units, given the
Authority's statement that it applies only to bargaining units where
collective-bargaining agreements with conflicting provisions have
expired, and only to dues assignments authorized on or after the rule's
effective date of August 10, 2020.
Further, some comments argue that either rescinding or amending
Sec. 2429.19 is necessary to restore unions' financial security and
predictability, enhance unions' bargaining postures, and honor employee
choice. Relatedly, some comments contend that strengthening unions'
finances benefits employees by allowing unions to better serve the
employees they represent. Additionally, one comment states that
complaints about the dues-revocation process being too cumbersome or
complicated are a ``red herring,'' and that arrangements in parties'
collective-bargaining agreements are workable if the parties understand
the process and communicate it to employees.
Many of the comments arguing for amendment or rescission of Sec.
2429.19 also make similar arguments in favor of rescinding OPM.
Additionally, some comments assert that OPM is inconsistent with
Section 7115(a)'s plain language, which contains no wording that
either: (1) requires that dues assignments become revocable at will
after an employee's first year of union membership; or (2) bars the
negotiation of yearly dues revocation intervals. Further, some comments
contend that OPM ignores that Section 7115(a)'s purpose is to
effectuate unions' ability to collect dues through withholding
arrangements.
Having considered all of the comments received, and after great
deliberation, I believe that Army correctly held that Section 7115(a)
must be interpreted as allowing employees to revoke their voluntary
authorizations only at annual intervals (unless an exception in Section
7115(b) applies). As an initial matter, Section 7115(a) does not state
that a dues assignment may not be revoked ``for 1 year''; it says the
assignment may not be revoked ``for a period of 1 year.'' 5 U.S.C.
7115(a) (emphasis added). While a ``period'' of time may denote ``a
length or portion of time,'' it also may denote ``[a] length of time
characterized by regular recurrence or some cyclical process.'' See
Period, Black's Law Dictionary (12th ed. 2024). And ``a period of 1
year'' can mean ``annual'' or an interval. ``Th[is] is a distinction
without a difference, as the words `annual' and `a year' have the same
meaning. See Annual, Black's Law
[[Page 10778]]
Dictionary (11th ed. 2019) (defining `annual' as `[o]ccurring once
every year' or `involving a period of one year').'' Boschan v.
Steinmetz, No. 19 CIV. 6481 (LAP), 2020 WL 2475848, at *3 (S.D.N.Y. May
13, 2020) (alteration in original). ``Of course, `Annual' is defined
as, `Of, relating to, or involving a period of one year.' Annual,
Black's Law Dictionary (11th ed. 2019).'' Stover v. United States, No.
5:22-CV-05074-CBK, 2023 WL 2763817, at *2 (D.S.D. Mar. 31, 2023).
In my view, the use of ``period'' in Section 7115(a) means ``[a]
length of time characterized by regular recurrence or some cyclical
process,'' not a singular ``length or portion of time.'' See Period,
Black's Law Dictionary (12th ed. 2024). This is particularly true given
Section 7115's legislative backdrop. As discussed above, Army carefully
analyzed Section 7115(a)'s legislative history and found that history
supported a conclusion that Congress intended Section 7115(a) ``to
provide a more effective form of union security'' than existed under
E.O. 11,491, ``without going so far as to authorize an `agency shop.'
'' 7 FLRA at 198. ``[C]onsistent with this conclusion,'' the Authority
found that ``Congress intended in [S]ection 7115(a) of the Statute to
maintain the procedure for revocation of assignments set forth in the
[E.O.] (i.e., only upon stated intervals of time), and to expand that
interval under the Statute to a period of one year. That is, the
language in [S]ection 7115(a) that `any such assignment may not be
revoked for a period of 1 year' must be interpreted to mean that
authorized dues allotments may be revoked only at intervals of 1
year.'' Id. at 198-99. As noted, the Authority also found this
conclusion consistent with the guidance that the CSC gave federal
agencies near the time of the Statute's enactment.
I find Army's reasoning persuasive. The pre-Statute regime,
governed by E.O. 11,491, had a framework similar to the one described
in Army: revocation intervals. Army interpreted the Statute as
superseding that regime only insofar as the Statute imposes 1-year,
rather than 6-month, intervals. Although the House Committee Report for
H.R. 11280 stated that ``[a]ssignments normally are to be irrevocable
for one year,'' it did not state that they are irrevocable for only one
year. H.R. Rep. No. 95-1403, at 48. Further, that wording could simply
reflect Congress's decision to increase the revocation intervals from
six months to one year. Under Section 7135(b) of the Statute,
``[p]olicies, regulations, and procedures established under and
decisions issued under [E.O.] 11,491 . . . shall remain in full force
and effect until revised or revoked by the President, or unless
superseded by specific provisions of [the Statute] . . . or decisions
issued pursuant to [the Statute].'' 5 U.S.C. 7135(b). In other words,
Congress intended the prior regime to continue unless it was
specifically superseded. Cf. Warden, Lewisburg Penitentiary v. Marrero,
417 U.S. 653, 659 n.10 (1974) (``But only if [Section] 1103(a) can be
said by fair implication or expressly to conflict with [Section] 109
would there be reason to hold that [Section] 1103(a) superseded
[Section] 109.''). In effect, Section 7135(b) creates a presumption
that practices under E.O. 11,491 should be preserved unless there is
some clear statutory indication to the contrary. Thus, ```decisions
issued under [E.O.] 11,491' supply critical guidance regarding the
FLRA's jurisdiction today.'' Ohio Adjutant General's Dep't v. FLRA, 598
U.S. 449, 460 (2023). In that way, legislative history plays a
significant role in interpreting the Statute. And, based on that
legislative history and the Statute's wording, I would find that the
Statute did not clearly supersede E.O. 11,491's interval framework,
even though it extended the intervals from six months to one year.
Further, the Authority decided Army relatively shortly after the
Statute's enactment, giving extra weight to the interpretation in that
decision. Libr. of Cong. v. FLRA, 699 F.2d 1280, 1285 (D.C. Cir. 1983)
(``[D]eference to an agency's interpretation of its enabling
legislation . . . is especially appropriate when . . . the
administrative practice at stake involves a contemporaneous
construction of a statute by the persons charged with the
responsibility of setting its machinery in motion, of making the parts
work efficiently and smoothly while they are yet untried and new.''
(citation modified)). Moreover--and significantly, in my view--the Army
framework of annual revocation periods existed for nearly forty years
without congressional action to change it. This is true despite the
fact that Congress amended the Statute in other ways since 1981.
Jackson v. Modley, 949 F.3d 763, 773 (D.C. Cir. 2020) (``recogniz[ing]
the limited value of congressional acquiescence as an interpretive
tool,'' but finding ``Congress's inaction for over forty years
particularly significant'' in the circumstances of that case).
And, while no court has expressly held that Section 7115(a)
requires annual intervals, no court has held to the contrary either--
and courts have applied the Army framework without critique. See NTEU
v. FLRA, 647 F.3d 514, 518 (4th Cir. 2011) (``While the union and an
agency may bargain for the specific procedures for implementing
[Section] 7115, the negotiated procedures may not infringe on the
employees' right to `remain free to revoke their dues authorizations at
annual intervals.' '' (quoting AFGE, 51 FLRA at 1433)); AFGE, AFL-CIO,
Loc. 1843 v. FLRA, 843 F.2d 550, 553 n.3 (D.C. Cir. 1988) (``Except as
provided in [Section] 7115(b), an employee may revoke his dues
withholding allotment only annually, at the time of the year when the
allotment was originally authorized.'' (citing 5 U.S.C. 7115(a).)).
I also believe that this interpretation of Section 7115(a) is
consistent with Section 7101(a) of the Statute, which states that
``labor organizations and collective bargaining in the civil service
are in the public interest,'' 5 U.S.C. 7101(a), as well as with
legislative history indicating that the Statute was ``intended to serve
a variety of purposes,'' including ``strengthen[ing] the position of
employee unions in the federal service.'' DOD, Army-Air Force Exch.
Serv. v. FLRA, 659 F.2d 1140, 1145 (D.C. Cir. 1981); see also Bureau of
Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 107 (1983) (``In
passing the [Statute], Congress unquestionably intended to strengthen
the position of federal unions and to make the collective-bargaining
process a more effective instrument of the public interest than it had
been under the [E.O.] regime.'').
Moreover, if Congress' intent was to provide a greater measure of
union security than what existed under E.O. 11,491, then it would be
counterintuitive for Congress to move from a system where employees
could revoke their allotments only at intervals--even six-month
intervals--to a system where the employees could revoke them any time
after a single year.
In addition, despite some comments to the contrary, the Army
framework is wholly consistent with AFGE, Council 214, AFL-CIO v. FLRA,
835 F.2d 1458 (D.C. Cir. 1987) (Council 214). In discussing Section
7115(a) of the Statute, the U.S. Court of Appeals for the D.C. Circuit
in Council 214 stated, ``The [S]tatute clearly was designed for the
primary benefit and convenience of the employee.'' Id. at 1460.
However, that statement must be read in context. In Council 214, an
agency erroneously continued to deduct union dues from employees'
paychecks for a short time following the employees' promotions to
supervisory positions. When the error was discovered, management
reimbursed those employees, and deducted the amounts from the
[[Page 10779]]
remittance to the union of dues withheld from employees in a subsequent
period. The union challenged those deductions as an unfair labor
practice. The Authority rejected that challenge, finding that an agency
may reduce remittances to a union of dues withheld from employees in
order to compensate for the agency's previous overpayments to the
union.
The court reversed the Authority. The court interpreted Section
7115(a) ``as imposing an absolute duty on the [agency] to turn over to
the union all funds deducted.'' Id. The court found that ``the withheld
dues are [not] union property until they are actually delivered to the
union.'' Id. In that context, the court stated: ``The [S]tatute clearly
was designed for the primary benefit and convenience of the employee.
The employee has the right to decide whether to opt for withholding and
to control the disposition of the funds so withheld. The [agency] acts
as the agent of the employee with respect to the withheld funds. In the
words of the [S]tatute, the [agency] `shall honor the assignment.' ''
Id. (quoting 5 U.S.C. 7115(a)). The court then ``agree[d] with the
[U.S. Court of Appeals for the] Second Circuit that `shall honor'
indicates a `mandatory intent'; the [agency's] obligation to honor the
dues check-off is `nondiscretionary.' '' Id. (quoting AFGE, AFL-CIO,
Loc. 2612 v. FLRA, 739 F.2d 87, 89 (2d Cir. 1984)).
Put simply, Council 214 focused on employees' right to have the
dues they have authorized delivered to the union, without agency
interference. It did not involve dues revocations, and it provides no
basis for finding that the Army framework of annual revocation
intervals would conflict with employees' rights. In addition, although
some comments supporting Sec. 2429.19 and OPM cite private-sector
precedent, Council 214 noted that Section 7115 has no counterpart in
the National Labor Relations Act or the Labor Management Relations Act.
Id. at 1461. Therefore, precedent under those acts does not dictate how
Section 7115 should apply.
Moreover--again, despite some comments to the contrary--the Army
rule does not conflict with Janus, the First Amendment, or Section 7102
of the Statute. Janus involved the constitutionality of agency-fee
payments required of state employees who chose not to join unions. In
the federal sector, the decision to join, or provide financial support
to, a union is voluntary. Janus itself acknowledged the voluntary
nature of union membership in the federal sector, stating that state
governments could ``follow the model of the [f]ederal [g]overnment'' by
``keep[ing] their labor-relations systems exactly as they are,'' so
long as they do not ``force nonmembers to subsidize public-sector
unions.'' Janus, 585 U.S. at 928 n.27. Courts have held that Janus does
not apply to voluntary membership agreements; that dues assignments are
voluntary, binding contracts; and that requiring employees to honor
those assignments until the next annual revocation period does not
force them to join or assist a union. See, e.g., Bennett v. Council of
AFSCME, AFL-CIO, 991 F.3d 724, 732 (7th Cir. 2021) (finding that union
and employer did not violate employee's First Amendment rights by
continuing to deduct union dues from her paycheck, where she ``freely
chose to join a union and voluntarily authorized the deduction of union
dues''); Belgau v. Inslee, 975 F.3d 940, 950-51 (9th Cir. 2020)
(finding that employees who willingly joined union and voluntarily
authorized union dues to be deducted from their pay for one year could
be held to their ``contractual obligation'' and did not have a First
Amendment right to withdraw); Int'l Ass'n of Machinists Dist. Ten &
Loc. Lodge 873 v. Allen, 904 F.3d 490, 506 (7th Cir. 2018) (``Dues-
checkoff authorizations are optional payroll[-]deduction contracts
between employers and individual employees, similar to health insurance
premium payroll deductions or retirement savings arrangements.'');
Kumpf v. N.Y. State United Tchrs., 642 F. Supp. 3d 294, 312 (N.D.N.Y.
2022) (``As every court to consider this issue has found, once
Plaintiff consented to pay dues to the union, regardless of the status
of her membership, Plaintiff did not fall within the sweep of Janus's
waiver requirement.'') (citation modified)). The SF-1187 clearly and
expressly states that ``[c]ompleting this form is voluntary.'' Further,
there is no basis for finding annual revocation intervals conflict with
Section 7102 of the Statute. I note, in this regard, that the unfair-
labor-practice process remains available for employees to challenge any
restrictions on dues revocation that unduly interfere with their
Section 7102 rights. See, e.g., AFGE, 51 FLRA at 1438 (finding union
committed an unfair labor practice by interfering with employees' right
to revoke their dues-withholding authorizations); Portsmouth, 19 FLRA
at 589-90 (finding certain limitations on employees' ability to revoke
dues-withholding authorizations were unlawful restrictions on
employees' Section 7102 rights to refrain from joining or assisting a
labor organization).
Additionally--despite some comments to the contrary--the Army
framework does not conflict with the Fifth Amendment's Takings Clause.
As noted above, employees voluntarily sign authorizations for dues
deductions, and none of the authorities cited in the comments support a
conclusion that holding employees to their voluntary actions to enter
into a binding contract, at least for some period of time, would be an
unconstitutional ``taking.'' See Cedar Point Nursery v. Hassid, 594
U.S. 139, 162 (2021) (finding state regulation granting labor
organizations a ``right to take access'' to an agricultural employer's
property in order to solicit support for unionization was a ``taking''
requiring just compensation under the Fifth Amendment's Takings
Clause); Brown v. Legal Found. of Wash., 538 U.S. 216, 240 (2003)
(finding that a state law that required client funds that could not
otherwise generate net earnings for the client to be deposited in an
Interest on Lawyers Trust Account was not a ``regulatory taking,'' but
stating that ``[a] law that requires that the interest on those funds
be transferred to a different owner for a legitimate public use . . .
could be a per se taking requiring the payment of `just compensation'
to the client''); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. 155, 164-65 (1980) (finding that, ``under the narrow circumstances
of th[e] case--where there [was] a separate and distinct state statute
authorizing a clerk's fee `for services rendered' based upon the amount
of principal deposited; where the deposited fund itself concededly
[was] private; and where the deposit in the court's registry [was]
required by state statute in order for the depositor to avail itself of
statutory protection from claims of creditors and others--[a c]ounty's
taking unto itself, under [state laws], the interest earned on [an]
interpleader fund while it was in the registry of the court was a
taking violative of the Fifth and Fourteenth Amendments'').
For these reasons, I believe that Army correctly held that Section
7115(a) must be interpreted as requiring that employees may not revoke
their authorizations except at annual intervals (unless an exception in
Section 7115(b) applies). I also believe that the Authority failed to
adequately take these considerations into account when it issued OPM
and promulgated Sec. 2429.19--and fails to do so again today. I note,
in this regard, that if the majority's interpretation of Section
7115(a) is correct--a point that I do not concede--then Section 7115(a)
does not address, in any way, what happens after
[[Page 10780]]
the first year of dues withholding. As such, the majority cannot rely
on Section 7115(a) as the statutory basis for Sec. 2429.19--a
substantive rule that is entirely about what happens after the first
year of a dues authorization, and that dictates what parties may or may
not do, and may or may not bargain over and agree to, after that first
year. If there is another statutory grounding for Sec. 2429.19, the
majority does not say what it is.
Separate from the proper interpretation of Section 7115(a), two
additional considerations support returning to the Army framework.
First, doing so would not significantly upset any reliance
interests. Because the Army framework was in place for nearly forty
years, innumerable existing collective-bargaining agreements have dues-
revocation provisions that were negotiated under that framework.
Additionally, as noted above, Sec. 2429.19 does not apply to
assignments that were authorized before the regulation's effective date
of August 10, 2020, or to collective-bargaining agreements that were in
effect on that date. As a result, returning to the Army framework would
not significantly disrupt the status quo.
Second, some of the policy arguments raised in the comments support
returning to the Army framework. Specifically, as some comments state,
prohibiting revocations except at annual intervals can allow unions to
better estimate the dues revenue that they would receive over the
course of a year, which can assist them in planning their budgets and
give them the financial continuity that would encourage them to invest
resources in representational activities that benefit unit employees,
rather than holding off due to uncertainty regarding future funding. It
also could assist unions in complying with legal requirements governing
the election of local union officers. Some comments note that, under
the Labor-Management Reporting and Disclosure Act, unions must finalize
a list of members in good standing who are eligible to participate in
union elections in advance of any election. 29 U.S.C. 481(b) (``Every
local labor organization shall elect its officers not less often than
once every three years by secret ballot among the members in good
standing.''). Allowing unions to rely on members' dues-withholding
commitments could assist the unions in preparing and maintaining
accurate lists.
Therefore, I would return to the Army regime and rescind the policy
statement in OPM. The next question becomes whether to amend 5 CFR
2429.19 or rescind it in its entirety. After considering all of the
comments, I believe that the better approach would be to rescind it.
While I acknowledge that amending Sec. 2429.19 could foster more
stability in the law, the comments have persuaded me that--given the
wide range of individual workplace circumstances and dues-revocation
arrangements--Section 7115 is particularly well-suited for
clarification through case-by-case adjudication, rather than a ``one-
size-fits-all'' regulatory approach. As some comments note, the
Authority's adoption of Sec. 2429.19 constituted a unique foray into
substantive, rather than procedural, rulemaking by the Authority. I
would not essentially repeat that mistake by keeping an amended version
of Sec. 2429.19 in place.
In sum, I would rescind 5 CFR 2429.19 and the policy statement in
OPM, and I dissent from the majority's refusal to do so.
[FR Doc. 2026-04396 Filed 3-4-26; 8:45 am]
BILLING CODE 7627-01-P
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