IS THE STATUTE’S DUES WITHHOLDING PROVISION UNCONSTITUTIONAL?

It sure looks that way to an agency negotiator faced with the following union proposal:

SF-1188 dues revocation notices for employees who have had dues allotments in effect for more than one (1) year will be submitted to the payroll office only during pay period fourteen (14) each year. Revocations will become effective during pay period nineteen (19)

Under this proposal an employee must remain a member even if s/he disagrees with the policies, positions, or tactics of the union. For example, suppose an employee joined the union during pay period 15 of 2012, (let’s assume that was August 1, 2012). Then in pay period 16 of 2019, (let’s assume that is August 1, 2019), the union elects a new group of officers locally and/or nationally with whom the member severely disagrees. Maybe it is because of their support for affirmative action, or telework, or abortion, or some bill it is trying to get through Congress, or even a candidate for elected office.  The union proposal above would require her to remain with the union and pay dues until pay period 19 of 2020, (let’s assume that is October 15 2020). A new Supreme Court decision strongly suggest that is unconstitutional. 

The Court struck down a state statute which allowed unions to negotiate what are called agency fee provisions.  These required all unit employees to pay almost 100% of the regular union dues, but allowed them to refuse to officially join as members.  Moreover, the Court used very strong words to describe how important it is that public employees retain their rights to not associate wi th groups they do not want to and to support only that speech with which they agree.  In the Court’s eyes when public sector unions make demands on government agencies that they adopt certain workplace policies and practices, either through negotiated agreements or lobbying, they are engaging in precisely the kind of free speech that employees are entitled to not support with their money against their will.  (It is nonsensical, but the Court sees the spending of money as the exercise of free speech. That is how they can allow billionaires to buy politicians and entire political parties.)   Here is how the Court put it:

“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (pluralityopinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”Consequently, it appears that there is a very good argument that limiting dues cancellation to one time a year is unconstitutional.  (Indeed, even the clear and unambiguous provision of 5 USC 7115(a) requiring new members to remain in for a full year appears defective.) All members must have the right to terminate their dues withholding as soon as administratively practical for the agency.

FLRA originally held that it was legal for parties to limit revocations to one time a year. (See Local 1658 AFGE, 7 FLRA 194 (1981) and AFGE, 11 FLRA 600 (1983)  Those were landmark cases for which all unions owe AFGE a big debt of gratitude. But it never considered the free speech argument.  Now that the Supreme Court has made it unquestionably clear that restricting an employee’s right to deny the union any financial support is unconstitutional, there is no apparent obstacle to voiding 7115(a).

The harm from that is that an employee could file a ULP demanding that the union reimburse him/her for any dues paid after s/he signed an SF-1188. If FLRA took that case it could result in the union being required to go back many years and repay the employees whose revocation was delayed.  Beyond that, if 7115(a) is ruled unconstitutional, as opposed to just the last sentence, then there would be no statutory authorization for any dues withholding until a replacement provision was signed into law. Chances of the Trump Administration or the McConnell Senate supporting a replacement provision are “zero” and “less than zero.” (Ironically, Trump’s decision not to fill the FLRA General Counsel slot prevents FLRA from doing anything about this until that job is filled.)

Unions need to plan for this virtually certain outcome.  A case is already moving where the agency has declared the union provision above non-negotiable for future agreements and unenforceable going forward in the current agreement. We will likely post a Negotiators’ Alert soon that shows unions how to fight this.