Miscellaneous and General Requirements, 41169-41173 [2020-14717]

Download as PDF 41169 Rules and Regulations Federal Register Vol. 85, No. 132 Thursday, July 9, 2020 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2429 Miscellaneous and General Requirements Federal Labor Relations Authority. ACTION: Final rule. AGENCY: The Federal Labor Relations Authority (FLRA, or Authority) adopts an addition to its regulations. The additional regulation concerns the revocation of a written assignment of amounts deducted from the pay of a federal employee for the payment of regular and periodic dues allotted to an exclusive representative. Specifically, the regulation provides that, after the expiration of a one-year period during which an assignment may not be revoked, an employee may initiate the revocation of a previously authorized assignment at any time that the employee chooses. However, the additional regulation will not apply to the revocation of assignments that were authorized prior to the effective date of the regulation. DATES: Effective Date: This rule is effective August 10, 2020. Applicability Date: This rule applies to the revocation of assignments that were authorized under 5 U.S.C. 7115(a) on or after August 10, 2020. FOR FURTHER INFORMATION CONTACT: Noah Peters, Solicitor, at npeters@ flra.gov or at (202) 218–7908. SUPPLEMENTARY INFORMATION: SUMMARY: jbell on DSKJLSW7X2PROD with RULES I. Background On February 14, 2020, the Authority issued a general statement of policy or guidance in Case No. 0–PS–34, Office of Personnel Management, 71 FLRA 571 (OPM). The Authority explained that its longstanding interpretation of section 7115(a) of the Federal Service LaborManagement Relations Statute (the VerDate Sep<11>2014 15:50 Jul 08, 2020 Jkt 250001 ‘‘Statute’’) was unsupported by the plain wording of that section. Specifically, the Authority had previously held that the wording in section 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.’’ U.S. Army, U.S. Army Materiel Dev. & Readiness Command, Warren, Mich., 7 FLRA 194, 199 (1981) (Army) (emphasis added) (quoting 5 U.S.C. 7115(a)). Disagreeing with Army, the Authority in OPM explained that the ‘‘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.’’ 71 FLRA at 572 (quoting 5 U.S.C. 7115(a)). As the Authority observed, ‘‘[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. (footnote omitted). In support of its criticism of the decision in Army, the Authority relied on section 7115(a)’s plain wording. Id. In particular, the section ‘‘says that an ‘assignment may not be revoked for a period of [one] year,’ and such wording governs only one year because it refers to only ‘[one] year.’ ’’ Id. (alterations in original) (quoting 5 U.S.C. 7115(a)). Further, the Authority explained why ‘‘it would be nonsensical to conclude that the one-year period under [section] 7115(a) is not the first year of an assignment.’’ Id. And because the section says that it limits revocations for ‘‘a period of [one] year,’’ the Authority recognized that ‘‘it does not limit revocations for multiple periods of one year.’’ Id. (alteration in original) (emphasis added). Army based its interpretation of section 7115(a) almost exclusively on legislative history, but the Authority in OPM recognized that ‘‘Congress’s ‘authoritative statement is the statutory text, not the legislative history . . . . Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on [Congress’s] understanding of otherwise ambiguous terms.’ ’’ Id. at 573 n.23 (emphasis added in OPM) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)). Because PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 the pertinent terms of section 7115(a) were not ambiguous, the Authority explained that resorting to legislative history as the basis for interpreting section 7115(a) would reflect ‘‘poor statutory construction.’’ Id. (citing Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994)). Moreover, while the request for a general statement of policy or guidance asked the Authority to find that the First Amendment to the U.S. Constitution compelled a certain interpretation of section 7115(a), the majority decision rested exclusively on statutory exegesis, rather than principles of constitutional law. Id. at 573. Although the Authority explained its reasons for rejecting the interpretation of section 7115(a) set forth in Army, the general statement did not adopt a new rule. Instead, the Authority explained that it ‘‘intend[ed] to commence noticeand-comment rulemaking concerning section 7115(a), with the aim of adopting an implementing regulation that hews more closely to the Statute’s text.’’ Id. Anticipating its forthcoming rule proposal, the Authority expressed the view that ‘‘it would assure employees the fullest freedom in the exercise of their rights under the Statute if, after the expiration of the initial oneyear 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. However, the Authority also recognized that any rule would have to ‘‘seek a reasonable balance between competing interests.’’ Id. On March 19, 2020, the Authority issued a proposed rule requesting comments, published at 85 FR 15742, to further the statutory reexamination that began in OPM. The Authority received, and has considered, written comments submitted in accordance with that proposed rule, and the Authority’s responses to summaries of those comments appear below. II. Summaries of Comments and Responses Comment: The Authority’s analysis in OPM, and in the explanation of the proposed rule, ignored the legislative history on which Army based its interpretation of section 7115(a), and also ignored the decades of decisional E:\FR\FM\09JYR1.SGM 09JYR1 jbell on DSKJLSW7X2PROD with RULES 41170 Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules and Regulations precedent that adhered to Army’s interpretation. Response: The Authority is well aware of the legislative history on which Army relied. But for the reasons explained in OPM, relying on legislative history to alter the meaning of unambiguous statutory text is improper. Indeed, the U.S. Supreme Court has explained that we should ‘‘not resort to legislative history to cloud a statutory text that is clear.’’ Ratzlaf, 510 FLRA at 147–48. Army ignored that teaching. Moreover, the legislative history of section 7115(a) is not nearly as supportive of Army’s interpretation as that decision suggested. Army began with the observation that dues deductions were revocable at six-month intervals under Executive Order 11,491. Then, examining congressional committee reports, Army concluded that the Statute was intended to provide greater union security than Executive Order 11,491, but not as much security as an ‘‘agency shop.’’ Finally, Army concluded that section 7115(a) ‘‘must’’ be interpreted to allow revocations only at one-year intervals. 7 FLRA at 199. The logical flaw in that reasoning is clear. Whereas Executive Order 11,491 stated explicitly that dues-deduction assignments must allow employees to ‘‘revoke [an] authorization at stated sixmonth intervals,’’ Army, id. at 196 (emphasis added), section 7115(a) of the Statute does not mention intervals at all. Rather, it mentions irrevocability for ‘‘a period of [one] year.’’ 5 U.S.C. 7115(a) (emphasis added). Nevertheless, based solely on perceived policy goals gleaned from legislative history, Army improperly grafted an interval-based revocation restriction onto the wording of section 7115(a). We reject that mode of statutory interpretation, and we reject the portions of other Authority decisions that followed Army in adhering to that flawed interpretive method. Comment: The rule will increase administrative burdens in processing dues-assignment revocations. Response: Although several union and employee commenters suggested that the rule would result in increased administrative burdens for agencies, none of the agencies that submitted comments agreed with that assessment. Indeed, the Department of Veterans Affairs, U.S. Department of Agriculture (USDA), Peace Corps, and Office of Personnel Management support adopting the rule, and USDA says specifically that it ‘‘does not foresee any negative impacts of the implementation of the proposed rule on the [a]gency.’’ USDA Comment (Apr. 9, 2020) at 1. Moreover, we are somewhat skeptical of VerDate Sep<11>2014 15:50 Jul 08, 2020 Jkt 250001 the claims of increased administrative burdens on unions in processing duesassignment revocations because, with the exception of the system negotiated by the National Treasury Employees Union, in all of the examples discussed in the comments, assignment-revocation windows depend entirely on the date that an individual employee first authorized the assignment, or when the authorized assignment first became effective. Thus, every employee’s revocation window is uniquely dependent on the anniversary date of that employee’s assignment authorization (or effective date), and such a system does not beget administrative simplicity. Thus, we find the arguments about increased administrative burdens on unions to be weakly supported. To the extent that the rule does increase administrative burdens on unions, we note that the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has recognized—and we agree—that section 7115(a) is designed primarily for the benefit of the employee, not the union. AFGE, Council 214, AFL–CIO v. FLRA, 835 F.2d 1458, 1460–61 (D.C. Cir. 1987). Thus, in balancing the competing interests of employees in having greater freedom to revoke their dues assignments, and unions in having revocation procedures with minimal administrative burdens, we find that the rule as written properly weighs the employees’ interests more heavily. Comment: The Authority is ill equipped to craft an implementing regulation for the First Amendment to the U.S. Constitution. Response: The rule is based on the Authority’s interpretation of section 7115(a) of the Statute. Comment: Because the wording of the Statute has not changed since the decision in Army, the Authority should not change its interpretation of section 7115(a). Response: The Authority may, as it sees appropriate, reassess its statutory interpretations even when the underlying statutory wording has not changed. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514–16 (2009). Comment: The Authority asserts that the rule would hew more closely to the text of section 7115(a). But, in fact, the rule would violate a separate provision of that section that says that an ‘‘agency shall honor the assignment and make an appropriate allotment pursuant to the assignment,’’ because the rule would instruct agencies to disregard the terms of the previously authorized assignments that the agencies have received. 5 U.S.C. 7115(a) (emphases PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 added). Further, the rule ignores the revocation terms that appear on the current OPM-promulgated standard forms governing dues assignments and assignment revocations (SF–1187 and SF–1188, respectively). Response: As explained in the DATES section above, the rule would apply only to dues assignments that are authorized on or after the rule’s effective date. Thus, the rule would not require agencies to disregard the terms of previously authorized assignments that the agencies received before the effective date of the rule. Further, OPM will have an opportunity to promulgate updated versions of the SF–1187 and the SF–1188 before the rule’s effective date, consistent with OPM’s own implementing regulation for dues allotments. 5 CFR 550.321. In that regulation, OPM states that allotments under section 7115 ‘‘shall be effected in accordance with such rules and regulations as may be prescribed by the Federal Labor Relations Authority.’’ Id. Comment: The rule will destabilize negotiated dues-assignment and assignment-revocation procedures that are included in collective-bargaining agreements (CBA) that are currently in force. Thus, the rule will upset parties’ reliance interests on the previous interpretation of section 7115(a) in Army. Response: Like all governmentwide regulations, the rule will be subject to the constraints of section 7116(a)(7) of the Statute. Thus, currently effective agreements will not be destabilized if they contain negotiated provisions that conflict with the rule. Comment: The rule says that it is ‘‘[c]onsistent with the exceptions in 5 U.S.C. 7115(b),’’ but that subsection does not indicate that employees must be permitted to revoke their dues assignments at any time after the first year. Response: Several commenters misunderstood the import of this introductory phrase. The rule begins with ‘‘[c]onsistent with the exceptions in 5 U.S.C. 7115(b),’’ in order to make clear that, where the conditions set forth in section 7115(b) are satisfied, a dues assignment must be cancelled, regardless of whether a year has passed since the assignment was first authorized, and regardless of whether the employee acts to revoke the authorization. E.g., Int’l Ass’n of Machinists & Aerospace Workers, Lodge 2424, 25 FLRA 194, 195 (1987) (‘‘Section 7115(b) requires the termination of a dues withholding authorization in less than one year and without employee action in specified circumstances.’’). E:\FR\FM\09JYR1.SGM 09JYR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules and Regulations Comment: The Authority should not require employees to wait even one year to revoke a previously authorized assignment. Response: Section 7115(a) dictates that assignments are irrevocable for the first year after authorization, and the rule adheres to that condition. Comment: Several employees complained that it was difficult to determine their anniversary dates, as well as the window periods during which they were permitted to submit an SF–1188, in order to be able to revoke their previously authorized dues assignments. In addition, they explained that, in their experiences, the unions that represented them were not helpful in determining the applicable anniversary dates or form-submission window periods. Further, other commenters contended that the negotiated procedures for determining anniversary dates and window periods were not easily decipherable to a layperson. E.g., Nat’l Right to Work Legal Def. Found. Comment (Apr. 9, 2020) at 5 (‘‘In order for the SF–1188 to be timely, it must be submitted to the Union between the anniversary date of the effective date of the dues withholding and twenty-one (21) calendar days prior to the anniversary date.’’ (quoting Master Agreement Between Dep’t of Veterans Affairs & AFGE, Art. 41, sec. 6.A. (1997))). Response: The Authority anticipates that this rule, once applicable, will make the sort of employee confusion or frustration mentioned above highly unlikely because employees will be able to initiate the revocation of a previously authorized assignment at any time after the first year. Comment: The rule will inhibit unions’ sound financial planning. Response: The Authority acknowledges that this rule will make financial planning somewhat more difficult for unions, but believes that, as section 7115(a) is designed primarily for the benefit of employees (as discussed earlier), this tradeoff is justified by the increase in employees’ flexibilities to exercise their rights under section 7102 of the Statute to refrain from joining or assisting any union. In addition, unions will still benefit from the certainty of the first year of irrevocability under section 7115(a). Further, we note that the rule certainly does not incentivize or require any employees to cancel dues assignments; it merely provides an option. Moreover, nothing prevents unions from developing dues-payment arrangements outside the federal payroll system that would provide them a greater measure of funding predictability. VerDate Sep<11>2014 15:50 Jul 08, 2020 Jkt 250001 Comment: The Authority lacks the power to put a matter beyond the duty to bargain through the issuance of its own governmentwide regulation. Response: Section 7134 of the Statute empowers the Authority to issue regulations to carry out the Statute, 5 U.S.C. 7134, and 7105 of the Statute charges the Authority with the duty to ‘‘provide leadership in establishing policies and guidance relationing to matters’’ under the Statute, id. 7105(a)(1). Further, the rule being promulgated reflects the Authority’s considered judgment in its area of expertise: Interpreting and ‘‘carrying out’’ the Statute. Id. 7105(a)(1), 7134. And it reflects the Authority’s finding in OPM that section 7115(a) of the Statute prohibits revocation only for the first year after an assignment is authorized. 71 FLRA at 572. Admittedly, the Authority has not previously issued an analogous regulation that would shape the contours of the duty to bargain in the way that this rule will. But Congress instructed in section 7117(a)(1) of the Statute that the duty to bargain would not extend to a matter that was inconsistent with any governmentwide regulation. And there is no basis in the Statute for finding that Congress intended for section 7117(a)(1) to apply to governmentwide regulations issued by all of the other federal agencies that are statutorily authorized to promulgate legislative rules, but not to governmentwide regulations issued by the Authority. The Authority’s rulemaking powers under sections 7105 and 7134 are broad, and properly exercised in this instance. Comment: Because the rule concerns only the initiation of the revocation of a previously authorized dues assignment, the rule must permit parties to negotiate for delays in the processing of revocation forms. Response: The Authority intends the rule’s statement that an employee may ‘‘initiate’’ the revocation of a previous dues assignment at any time to allow for the normal processing time that an agency needs to effectuate such a revocation after it is received. Thus, the rule does not guarantee the instantaneous cancellation of dues assignment after an employee initiates the revocation. However, the rule also does not permit parties to negotiate for delays in the processing of revocation forms because those delays would defeat the purpose of the rule, which is to assure employees the fullest freedom in the exercise of their rights under the Statute, including their rights under sections 7102 and 7115. In order to make explicit the prohibition on negotiated processing delays, we are PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 41171 adding a second sentence to the rule— one that resembles wording that OPM suggested in its comment on the proposed rule. Specifically, we provide that after the expiration of the one-year period of irrevocability under 5 U.S.C. 7115(a), upon receiving an employee’s request to revoke a previously authorized dues assignment, an agency must process the revocation request as soon as administratively feasible. Negotiated delays in processing revocation forms may provide benefits to unions or agencies, but they do not benefit individual employees. Moreover, the Authority has held that a failure to process an assignment form is an unfair labor practice. E.g., Dep’t of the Navy, Naval Underwater Sys. Ctr., Newport, R.I., 16 FLRA 1124, 1126–27 (1984); cf. AFGE, Local 2192, AFL–CIO, 68 FLRA 481, 482–84 (2015) (finding that a union committed an unfair labor practice by impeding the processing of revocation forms). This additional sentence clarifies agencies’ processing responsibilities after receiving a request to revoke a previously authorized dues assignment, provided that the one-year irrevocability period has expired. The Authority adopts OPM’s suggested standard of ‘‘administrative feasibility’’ in order to allow for a small measure of flexibility for the agency personnel responsible for processing assignment revocations, with the understanding that the timing of the revocation’s submission, the workload of agency personnel, and other unforeseen factors may affect the speed with which revocations can be processed. However, agencies will be expected generally to process such revocations at least as quickly as they would generally process an initial authorization of dues assignment. Comment: The rule is an attack on unions. Response: The rule is rooted in the statutory text and the Authority’s exercise of its judgment in balancing the competing interests of unions, agencies, and employees. It is no more accurate to say that, by increasing the ease with which employees may exercise their section 7102 rights to refrain from joining or assisting a union, the Authority is attacking unions, than it would have been to say that, by making it more difficult for employees to exercise those section 7102 rights, the rule set forth in Army was attacking employees. The Authority rejects the characterization of this rule as an attack on any party. As one commenter observed, ‘‘[T]his new rule does nothing to prevent any [bargaining-unit employee] from remaining a dues[-]paying member as long as they E:\FR\FM\09JYR1.SGM 09JYR1 jbell on DSKJLSW7X2PROD with RULES 41172 Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules and Regulations desire.’’ Tammy Schuyler Comment (Apr. 7, 2020). Comment: The Contracts Clause of the U.S. Constitution prohibits the rule. Response: The Contracts Clause, U.S. Const. art. I, sec. 10, cl. 1, restricts the power of states, not the Federal Government. And, as explained above, the Authority’s new rule will not destabilize any previously negotiated CBA provisions. Comment: Neither section 7102 nor section 7115(a) requires that employees be permitted to revoke their dues assignments at any time of their choosing, after the first year of irrevocability. Response: The Authority has never suggested that this rule is dictated by a provision in the Statute. Instead, the rule is filling a gap left by section 7115(a)’s silence on the treatment of dues-assignment revocations after the first year. In doing so, the Authority has sought to ensure employees their fullest freedom to refrain from joining or assisting a union, see 5 U.S.C. 7102— consistent with the one-year irrevocability period that section 7115(a) requires. We do not suggest that this rule represents the only possible balance that could be struck among competing interests. But the rule represents the balance that the Authority—in the exercise of congressionally delegated power to craft legislative rules, 5 U.S.C. 7134—finds will best fulfill the animating purposes behind sections 7102 and 7115. Cf. id. 7112(a) (in making appropriate-unit determinations, the Authority shall ‘‘ensure employees the fullest freedom in exercising the rights guaranteed under’’ the Statute). Comment: The National Labor Relations Board has held that, in the private sector, parties are not prohibited from negotiating limitations on the revocability of dues assignments. Response: As recognized by the D.C. Circuit, the ‘‘dues withholding provision of the [Statute], 5 U.S.C. 7115, has no counterpart in the National Labor Relations Act or the Labor Management Relations Act.’’ AFGE, Council 214, AFL–CIO, 835 F.2d at 1461. Thus, the court found that reliance on privatesector decisions to interpret section 7115 was misplaced. Further, even if the NLRB’s decisions did concern an analogous statutory provision—which, as just explained, they do not—the Authority may, in the exercise of its discretion, reach conclusions that differ from the NLRB’s. Comment: The Authority should abandon the proposed rule. Response: For the reasons described in OPM, and additionally, for the VerDate Sep<11>2014 15:50 Jul 08, 2020 Jkt 250001 reasons explained in this preamble, the Authority had decided to amend its regulations to include the additional rule, which will now include two sentences. The first sentence will be adopted just as written in the proposed rule, and a second sentence will be added to make explicit agencies’ processing responsibilities, which were discussed earlier. Executive Order 12866 The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 12866. Executive Order 13132 The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 13132. Regulatory Flexibility Act Certification Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chairman of the FLRA has determined that this rule will not have a significant impact on a substantial number of small entities, because this rule applies only to federal agencies, federal employees, and labor organizations representing those employees. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, Feb. 3, 2017) because it is related to agency organization, management, or personnel, and it is not a ‘‘significant regulatory action,’’ as defined in Section 3(f) of E.O. 12866 (58 FR 51735, Sept. 30, 1993). Executive Order 13132, Federalism This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant preparation of a federalism assessment. Executive Order 12988, Civil Justice Reform This regulation meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 This rule change will not result in the expenditure by state, local, and tribal PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreignbased companies in domestic and export markets. Paperwork Reduction Act of 1995 The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. Congressional Review Act Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2). List of Subjects in 5 CFR Part 2429 Administrative practice and procedure, Government employees, Labor management relations. Accordingly, for the reasons stated in the preamble, the FLRA amends 5 CFR part 2429 as follows: PART 2429—[AMENDED] 1. The authority citation for part 2429 continues to read as follows: ■ Authority: 5 U.S.C. 7134; § 2429.18 also issued under 28 U.S.C. 2112(a). 2. Add § 2429.19 to subpart A to read as follows: ■ § 2429.19 Revocation of assignments. Consistent with the exceptions in 5 U.S.C. 7115(b), after the expiration of the one-year period during which an assignment may not be revoked under 5 U.S.C. 7115(a), an employee may initiate the revocation of a previously authorized assignment at any time that the employee chooses. After the expiration of the one-year period of irrevocability under 5 U.S.C. 7115(a), upon receiving an employee’s request to E:\FR\FM\09JYR1.SGM 09JYR1 Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules and Regulations revoke a previously authorized dues assignment, an agency must process the revocation request as soon as administratively feasible. Federal Labor Relations Authority. Noah Peters, Solicitor, Federal Register Liaison. Note: The following appendix will not appear in the Code of Federal Regulations. Member DuBester, Dissenting jbell on DSKJLSW7X2PROD with RULES In my dissenting opinion in Office of Personnel Management (OPM),1 I explained how the majority’s decision to reverse nearly four decades of Authority precedent governing the revocation of union-dues allotments was premised upon a U.S. Supreme Court decision that, ‘‘by its own terms[,] has nothing to do with federal-sector labor relations.’’ 2 I also cautioned that the majority’s decision ‘‘will only create confusion, uncertainty, and—ultimately— litigation on a myriad of issues.’’ 3 The majority has now abandoned any pretense that its decision in OPM, or its subsequent issuance of this final rule, has anything to do with the Janus v. AFSCME, Council 31 decision.4 Nevertheless, like similar decisions in which the majority has overturned Authority precedent without a plausible rationale, the rule it has now crafted to implement its flawed OPM decision will generate ‘‘more questions than answers.’’ 5 For instance, the rule provides that an employee may initiate the revocation of a ‘‘previously authorized [dues] assignment’’ at any time the employee chooses ‘‘after the expiration of the one-year period during which an assignment may not be revoked under 5 U.S.C. 7115(a).’’ 6 As noted by the majority, a number of parties expressed concern that the rule would require agencies to unlawfully disregard the terms of previously authorized assignments, and would ignore the revocation terms that appear on the current OPM forms governing dues assignments and assignment revocations. In response to these concerns, the majority explains that the rule would ‘‘apply only to dues assignments that are authorized on or after the rule’s effective date,’’ and that agencies would therefore not be required ‘‘to disregard the terms of previously authorized assignments that the agencies received before the [rule’s] effective date.’’ 7 But this explanation appears to contradict the rule’s plain language, which applies its provisions to ‘‘previously authorized assignment[s].’’ 8 1 71 FLRA 571 (2020) (Member DuBester dissenting). 2 Id. at 579 (Dissenting Opinion of Member DuBester) (citing Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018)). 3 Id. 4 Notice at 3 (‘‘the majority decision rested exclusively on statutory exegesis, rather than principles of constitutional law’’). 5 AFGE, Local 1929 v. FLRA, _F F.3d _, 2020 WL 3053410, at 7 (D.C. Cir. 2020). 6 Notice at 16. 7 Id. at 7 (emphasis in original). 8 Id. at 16. VerDate Sep<11>2014 15:50 Jul 08, 2020 Jkt 250001 Moreover, if the rule is indeed intended to apply only to assignments authorized after its effective date, it is unclear which ‘‘previously authorized’’ assignments it is referencing. It is also not apparent how providing a ‘‘one-year period of irrevocability’’ 9 for dues assignments will not dramatically increase the administrative burdens placed upon both agencies and unions to administer these assignments. If this one-year period is intended to apply to the execution of any dues assignment, it would presumably apply to both an employee’s initial assignment and to any subsequently executed assignment, thereby creating a new and different anniversary date that will now have to be tracked for each subsequent assignment. Remarkably, while the majority expresses great skepticism regarding the unions’ concerns regarding the obvious administrative burdens arising from its rule, it accepts without any attendant skepticism the contrary claims of several agencies. More significantly, the majority does not adequately explain how its rule will operate with respect to existing and future collectively-bargained provisions governing dues assignments and revocations. Regarding existing contract provisions, the majority indicates that the rule, ‘‘[l]ike all governmentwide regulations . . . will be subject to the constraints of section 7116(a)(7) of the Statute.’’ 10 And regarding bargaining agreements negotiated subsequent to issuance of the rule, it explains that the parties will not be permitted ‘‘to negotiate for delays in the processing of revocation forms because those delays would defeat the purpose of the rule.’’ 11 It has also added an entirely new provision to the final rule which requires agencies to process an employee’s request to revoke ‘‘a previously authorized’’ dues assignment ‘‘as soon as administratively feasible.’’ 12 The new provision governing agencies’ obligations to process revocation requests was not part of the proposed rule. Because the parties were not afforded any opportunity to comment on this provision’s implications, it is unclear what types of negotiated procedures would be considered ‘‘administratively feasible’’ under the rule. And it is even less clear what the majority means by advising parties that they cannot ‘‘negotiate for delays’’ in this process. But more importantly, the majority’s explanation regarding the rule’s impact upon existing bargaining agreements illustrates the unprecedented nature of this rule. The majority indicates that the rule is intended to be applied as a government-wide regulation within the meaning of section 7117(a)(1) of the Statute. And it acknowledges that the Authority ‘‘has not previously issued an analogous regulation that would shape the contours of the duty to bargain in the way that this rule will.’’ 13 Nonetheless, with little apparent concern for the potential consequences, the majority today chooses to determine the scope of the PO 00000 9 Id. 10 Id. 11 Id. at 8. at 11. 12 Id. 13 Id. at 10. Frm 00005 Fmt 4700 Sfmt 4700 41173 parties’ bargaining obligations through regulatory fiat rather than a reasoned decision addressing the facts and circumstances of an actual dispute. Indeed, as I warned in my dissenting opinion, the majority first stepped foot on this slippery slope when it issued its OPM decision. That decision reversed decades of well-established precedent governing dues allotments ‘‘by means of a policy statement that [was] neither responsive to the original request nor warranted under the Authority’s standards governing the issuance of general statements of policy.’’ 14 And, contrary to its suggestion, the reckless course of action embraced by the majority is not the kind of ‘‘leadership’’ contemplated by the Statute.15 Regrettably, the confusion, uncertainty, and litigation that will inevitably arise from this ill-conceived rule will undoubtedly demonstrate why the Authority has not proceeded down this path before today. Accordingly, I dissent. [FR Doc. 2020–14717 Filed 7–7–20; 11:15 am] BILLING CODE 7627–01–P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 900 [AMS–DA–20–0044] Procedural Requirements Governing Proceedings Pertaining to Marketing Agreements and Marketing Orders Agricultural Marketing Service, USDA. ACTION: Final rule. AGENCY: The U.S. Department of Agriculture (USDA) is adopting a final rule to amend the procedural regulations governing proceedings to formulate or amend Marketing Agreements and Marketing Orders. This final rule adopts a provision to allow the agency to utilize alternative procedures for conducting a rulemaking proceeding as outlined in a notice of hearing. SUMMARY: This final rule is effective on July 9, 2020. FOR FURTHER INFORMATION CONTACT: Erin Taylor, Acting Director, Order Formulation and Enforcement Division, Dairy Program, 202–720–7311, erin.taylor@usda.gov. SUPPLEMENTARY INFORMATION: USDA is issuing this final rule to amend the DATES: 14 OPM, 71 FLRA at 576; see also id. at 579 (noting that ‘‘questions regarding whether particular dues withholding arrangements offend employees’ statutory rights’’ are ‘‘the types of questions that are particularly appropriate for resolution in the context of the facts and circumstances presented by parties in an actual dispute’’). 15 Notice at 10 (quoting 5 U.S.C. 7105(a)(1)). E:\FR\FM\09JYR1.SGM 09JYR1

Agencies

[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Rules and Regulations]
[Pages 41169-41173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14717]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

========================================================================


Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules 
and Regulations

[[Page 41169]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2429


Miscellaneous and General Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Labor Relations Authority (FLRA, or Authority) 
adopts an addition to its regulations. The additional regulation 
concerns the revocation of a written assignment of amounts deducted 
from the pay of a federal employee for the payment of regular and 
periodic dues allotted to an exclusive representative. Specifically, 
the regulation provides that, after the expiration of a one-year period 
during which an assignment may not be revoked, an employee may initiate 
the revocation of a previously authorized assignment at any time that 
the employee chooses. However, the additional regulation will not apply 
to the revocation of assignments that were authorized prior to the 
effective date of the regulation.

DATES: 
    Effective Date: This rule is effective August 10, 2020.
    Applicability Date: This rule applies to the revocation of 
assignments that were authorized under 5 U.S.C. 7115(a) on or after 
August 10, 2020.

FOR FURTHER INFORMATION CONTACT: Noah Peters, Solicitor, at 
[email protected] or at (202) 218-7908.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 14, 2020, the Authority issued a general statement of 
policy or guidance in Case No. 0-PS-34, Office of Personnel Management, 
71 FLRA 571 (OPM). The Authority explained that its longstanding 
interpretation of section 7115(a) of the Federal Service Labor-
Management Relations Statute (the ``Statute'') was unsupported by the 
plain wording of that section. Specifically, the Authority had 
previously held that the wording in section 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.'' U.S. Army, U.S. Army Materiel Dev. & 
Readiness Command, Warren, Mich., 7 FLRA 194, 199 (1981) (Army) 
(emphasis added) (quoting 5 U.S.C. 7115(a)).
    Disagreeing with Army, the Authority in OPM explained that the 
``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.'' 71 FLRA at 572 (quoting 5 
U.S.C. 7115(a)). As the Authority observed, ``[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. (footnote omitted).
    In support of its criticism of the decision in Army, the Authority 
relied on section 7115(a)'s plain wording. Id. In particular, the 
section ``says that an `assignment may not be revoked for a period of 
[one] year,' and such wording governs only one year because it refers 
to only `[one] year.' '' Id. (alterations in original) (quoting 5 
U.S.C. 7115(a)). Further, the Authority explained why ``it would be 
nonsensical to conclude that the one-year period under [section] 
7115(a) is not the first year of an assignment.'' Id. And because the 
section says that it limits revocations for ``a period of [one] year,'' 
the Authority recognized that ``it does not limit revocations for 
multiple periods of one year.'' Id. (alteration in original) (emphasis 
added).
    Army based its interpretation of section 7115(a) almost exclusively 
on legislative history, but the Authority in OPM recognized that 
``Congress's `authoritative statement is the statutory text, not the 
legislative history . . . . Extrinsic materials have a role in 
statutory interpretation only to the extent they shed a reliable light 
on [Congress's] understanding of otherwise ambiguous terms.' '' Id. at 
573 n.23 (emphasis added in OPM) (quoting Exxon Mobil Corp. v. 
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)). Because the 
pertinent terms of section 7115(a) were not ambiguous, the Authority 
explained that resorting to legislative history as the basis for 
interpreting section 7115(a) would reflect ``poor statutory 
construction.'' Id. (citing Ratzlaf v. United States, 510 U.S. 135, 
147-48 (1994)). Moreover, while the request for a general statement of 
policy or guidance asked the Authority to find that the First Amendment 
to the U.S. Constitution compelled a certain interpretation of section 
7115(a), the majority decision rested exclusively on statutory 
exegesis, rather than principles of constitutional law. Id. at 573.
    Although the Authority explained its reasons for rejecting the 
interpretation of section 7115(a) set forth in Army, the general 
statement did not adopt a new rule. Instead, the Authority explained 
that it ``intend[ed] to commence notice-and-comment rulemaking 
concerning section 7115(a), with the aim of adopting an implementing 
regulation that hews more closely to the Statute's text.'' Id. 
Anticipating its forthcoming rule proposal, the Authority expressed the 
view that ``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. However, the Authority also recognized 
that any rule would have to ``seek a reasonable balance between 
competing interests.'' Id.
    On March 19, 2020, the Authority issued a proposed rule requesting 
comments, published at 85 FR 15742, to further the statutory 
reexamination that began in OPM. The Authority received, and has 
considered, written comments submitted in accordance with that proposed 
rule, and the Authority's responses to summaries of those comments 
appear below.

II. Summaries of Comments and Responses

    Comment: The Authority's analysis in OPM, and in the explanation of 
the proposed rule, ignored the legislative history on which Army based 
its interpretation of section 7115(a), and also ignored the decades of 
decisional

[[Page 41170]]

precedent that adhered to Army's interpretation.
    Response: The Authority is well aware of the legislative history on 
which Army relied. But for the reasons explained in OPM, relying on 
legislative history to alter the meaning of unambiguous statutory text 
is improper. Indeed, the U.S. Supreme Court has explained that we 
should ``not resort to legislative history to cloud a statutory text 
that is clear.'' Ratzlaf, 510 FLRA at 147-48. Army ignored that 
teaching. Moreover, the legislative history of section 7115(a) is not 
nearly as supportive of Army's interpretation as that decision 
suggested. Army began with the observation that dues deductions were 
revocable at six-month intervals under Executive Order 11,491. Then, 
examining congressional committee reports, Army concluded that the 
Statute was intended to provide greater union security than Executive 
Order 11,491, but not as much security as an ``agency shop.'' Finally, 
Army concluded that section 7115(a) ``must'' be interpreted to allow 
revocations only at one-year intervals. 7 FLRA at 199. The logical flaw 
in that reasoning is clear. Whereas Executive Order 11,491 stated 
explicitly that dues-deduction assignments must allow employees to 
``revoke [an] authorization at stated six-month intervals,'' Army, id. 
at 196 (emphasis added), section 7115(a) of the Statute does not 
mention intervals at all. Rather, it mentions irrevocability for ``a 
period of [one] year.'' 5 U.S.C. 7115(a) (emphasis added). 
Nevertheless, based solely on perceived policy goals gleaned from 
legislative history, Army improperly grafted an interval-based 
revocation restriction onto the wording of section 7115(a). We reject 
that mode of statutory interpretation, and we reject the portions of 
other Authority decisions that followed Army in adhering to that flawed 
interpretive method.
    Comment: The rule will increase administrative burdens in 
processing dues-assignment revocations.
    Response: Although several union and employee commenters suggested 
that the rule would result in increased administrative burdens for 
agencies, none of the agencies that submitted comments agreed with that 
assessment. Indeed, the Department of Veterans Affairs, U.S. Department 
of Agriculture (USDA), Peace Corps, and Office of Personnel Management 
support adopting the rule, and USDA says specifically that it ``does 
not foresee any negative impacts of the implementation of the proposed 
rule on the [a]gency.'' USDA Comment (Apr. 9, 2020) at 1. Moreover, we 
are somewhat skeptical of the claims of increased administrative 
burdens on unions in processing dues-assignment revocations because, 
with the exception of the system negotiated by the National Treasury 
Employees Union, in all of the examples discussed in the comments, 
assignment-revocation windows depend entirely on the date that an 
individual employee first authorized the assignment, or when the 
authorized assignment first became effective. Thus, every employee's 
revocation window is uniquely dependent on the anniversary date of that 
employee's assignment authorization (or effective date), and such a 
system does not beget administrative simplicity. Thus, we find the 
arguments about increased administrative burdens on unions to be weakly 
supported. To the extent that the rule does increase administrative 
burdens on unions, we note that the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) has recognized--and we 
agree--that section 7115(a) is designed primarily for the benefit of 
the employee, not the union. AFGE, Council 214, AFL-CIO v. FLRA, 835 
F.2d 1458, 1460-61 (D.C. Cir. 1987). Thus, in balancing the competing 
interests of employees in having greater freedom to revoke their dues 
assignments, and unions in having revocation procedures with minimal 
administrative burdens, we find that the rule as written properly 
weighs the employees' interests more heavily.
    Comment: The Authority is ill equipped to craft an implementing 
regulation for the First Amendment to the U.S. Constitution.
    Response: The rule is based on the Authority's interpretation of 
section 7115(a) of the Statute.
    Comment: Because the wording of the Statute has not changed since 
the decision in Army, the Authority should not change its 
interpretation of section 7115(a).
    Response: The Authority may, as it sees appropriate, reassess its 
statutory interpretations even when the underlying statutory wording 
has not changed. See FCC v. Fox Television Stations, Inc., 556 U.S. 
502, 514-16 (2009).
    Comment: The Authority asserts that the rule would hew more closely 
to the text of section 7115(a). But, in fact, the rule would violate a 
separate provision of that section that says that an ``agency shall 
honor the assignment and make an appropriate allotment pursuant to the 
assignment,'' because the rule would instruct agencies to disregard the 
terms of the previously authorized assignments that the agencies have 
received. 5 U.S.C. 7115(a) (emphases added). Further, the rule ignores 
the revocation terms that appear on the current OPM-promulgated 
standard forms governing dues assignments and assignment revocations 
(SF-1187 and SF-1188, respectively).
    Response: As explained in the Dates section above, the rule would 
apply only to dues assignments that are authorized on or after the 
rule's effective date. Thus, the rule would not require agencies to 
disregard the terms of previously authorized assignments that the 
agencies received before the effective date of the rule. Further, OPM 
will have an opportunity to promulgate updated versions of the SF-1187 
and the SF-1188 before the rule's effective date, consistent with OPM's 
own implementing regulation for dues allotments. 5 CFR 550.321. In that 
regulation, OPM states that allotments under section 7115 ``shall be 
effected in accordance with such rules and regulations as may be 
prescribed by the Federal Labor Relations Authority.'' Id.
    Comment: The rule will destabilize negotiated dues-assignment and 
assignment-revocation procedures that are included in collective-
bargaining agreements (CBA) that are currently in force. Thus, the rule 
will upset parties' reliance interests on the previous interpretation 
of section 7115(a) in Army.
    Response: Like all governmentwide regulations, the rule will be 
subject to the constraints of section 7116(a)(7) of the Statute. Thus, 
currently effective agreements will not be destabilized if they contain 
negotiated provisions that conflict with the rule.
    Comment: The rule says that it is ``[c]onsistent with the 
exceptions in 5 U.S.C. 7115(b),'' but that subsection does not indicate 
that employees must be permitted to revoke their dues assignments at 
any time after the first year.
    Response: Several commenters misunderstood the import of this 
introductory phrase. The rule begins with ``[c]onsistent with the 
exceptions in 5 U.S.C. 7115(b),'' in order to make clear that, where 
the conditions set forth in section 7115(b) are satisfied, a dues 
assignment must be cancelled, regardless of whether a year has passed 
since the assignment was first authorized, and regardless of whether 
the employee acts to revoke the authorization. E.g., Int'l Ass'n of 
Machinists & Aerospace Workers, Lodge 2424, 25 FLRA 194, 195 (1987) 
(``Section 7115(b) requires the termination of a dues withholding 
authorization in less than one year and without employee action in 
specified circumstances.'').

[[Page 41171]]

    Comment: The Authority should not require employees to wait even 
one year to revoke a previously authorized assignment.
    Response: Section 7115(a) dictates that assignments are irrevocable 
for the first year after authorization, and the rule adheres to that 
condition.
    Comment: Several employees complained that it was difficult to 
determine their anniversary dates, as well as the window periods during 
which they were permitted to submit an SF-1188, in order to be able to 
revoke their previously authorized dues assignments. In addition, they 
explained that, in their experiences, the unions that represented them 
were not helpful in determining the applicable anniversary dates or 
form-submission window periods. Further, other commenters contended 
that the negotiated procedures for determining anniversary dates and 
window periods were not easily decipherable to a layperson. E.g., Nat'l 
Right to Work Legal Def. Found. Comment (Apr. 9, 2020) at 5 (``In order 
for the SF-1188 to be timely, it must be submitted to the Union between 
the anniversary date of the effective date of the dues withholding and 
twenty-one (21) calendar days prior to the anniversary date.'' (quoting 
Master Agreement Between Dep't of Veterans Affairs & AFGE, Art. 41, 
sec. 6.A. (1997))).
    Response: The Authority anticipates that this rule, once 
applicable, will make the sort of employee confusion or frustration 
mentioned above highly unlikely because employees will be able to 
initiate the revocation of a previously authorized assignment at any 
time after the first year.
    Comment: The rule will inhibit unions' sound financial planning.
    Response: The Authority acknowledges that this rule will make 
financial planning somewhat more difficult for unions, but believes 
that, as section 7115(a) is designed primarily for the benefit of 
employees (as discussed earlier), this tradeoff is justified by the 
increase in employees' flexibilities to exercise their rights under 
section 7102 of the Statute to refrain from joining or assisting any 
union. In addition, unions will still benefit from the certainty of the 
first year of irrevocability under section 7115(a). Further, we note 
that the rule certainly does not incentivize or require any employees 
to cancel dues assignments; it merely provides an option. Moreover, 
nothing prevents unions from developing dues-payment arrangements 
outside the federal payroll system that would provide them a greater 
measure of funding predictability.
    Comment: The Authority lacks the power to put a matter beyond the 
duty to bargain through the issuance of its own governmentwide 
regulation.
    Response: Section 7134 of the Statute empowers the Authority to 
issue regulations to carry out the Statute, 5 U.S.C. 7134, and 7105 of 
the Statute charges the Authority with the duty to ``provide leadership 
in establishing policies and guidance relationing to matters'' under 
the Statute, id. 7105(a)(1). Further, the rule being promulgated 
reflects the Authority's considered judgment in its area of expertise: 
Interpreting and ``carrying out'' the Statute. Id. 7105(a)(1), 7134. 
And it reflects the Authority's finding in OPM that section 7115(a) of 
the Statute prohibits revocation only for the first year after an 
assignment is authorized. 71 FLRA at 572. Admittedly, the Authority has 
not previously issued an analogous regulation that would shape the 
contours of the duty to bargain in the way that this rule will. But 
Congress instructed in section 7117(a)(1) of the Statute that the duty 
to bargain would not extend to a matter that was inconsistent with any 
governmentwide regulation. And there is no basis in the Statute for 
finding that Congress intended for section 7117(a)(1) to apply to 
governmentwide regulations issued by all of the other federal agencies 
that are statutorily authorized to promulgate legislative rules, but 
not to governmentwide regulations issued by the Authority. The 
Authority's rulemaking powers under sections 7105 and 7134 are broad, 
and properly exercised in this instance.
    Comment: Because the rule concerns only the initiation of the 
revocation of a previously authorized dues assignment, the rule must 
permit parties to negotiate for delays in the processing of revocation 
forms.
    Response: The Authority intends the rule's statement that an 
employee may ``initiate'' the revocation of a previous dues assignment 
at any time to allow for the normal processing time that an agency 
needs to effectuate such a revocation after it is received. Thus, the 
rule does not guarantee the instantaneous cancellation of dues 
assignment after an employee initiates the revocation. However, the 
rule also does not permit parties to negotiate for delays in the 
processing of revocation forms because those delays would defeat the 
purpose of the rule, which is to assure employees the fullest freedom 
in the exercise of their rights under the Statute, including their 
rights under sections 7102 and 7115. In order to make explicit the 
prohibition on negotiated processing delays, we are adding a second 
sentence to the rule--one that resembles wording that OPM suggested in 
its comment on the proposed rule. Specifically, we provide that after 
the expiration of the one-year period of irrevocability under 5 U.S.C. 
7115(a), upon receiving an employee's request to revoke a previously 
authorized dues assignment, an agency must process the revocation 
request as soon as administratively feasible. Negotiated delays in 
processing revocation forms may provide benefits to unions or agencies, 
but they do not benefit individual employees. Moreover, the Authority 
has held that a failure to process an assignment form is an unfair 
labor practice. E.g., Dep't of the Navy, Naval Underwater Sys. Ctr., 
Newport, R.I., 16 FLRA 1124, 1126-27 (1984); cf. AFGE, Local 2192, AFL-
CIO, 68 FLRA 481, 482-84 (2015) (finding that a union committed an 
unfair labor practice by impeding the processing of revocation forms). 
This additional sentence clarifies agencies' processing 
responsibilities after receiving a request to revoke a previously 
authorized dues assignment, provided that the one-year irrevocability 
period has expired. The Authority adopts OPM's suggested standard of 
``administrative feasibility'' in order to allow for a small measure of 
flexibility for the agency personnel responsible for processing 
assignment revocations, with the understanding that the timing of the 
revocation's submission, the workload of agency personnel, and other 
unforeseen factors may affect the speed with which revocations can be 
processed. However, agencies will be expected generally to process such 
revocations at least as quickly as they would generally process an 
initial authorization of dues assignment.
    Comment: The rule is an attack on unions.
    Response: The rule is rooted in the statutory text and the 
Authority's exercise of its judgment in balancing the competing 
interests of unions, agencies, and employees. It is no more accurate to 
say that, by increasing the ease with which employees may exercise 
their section 7102 rights to refrain from joining or assisting a union, 
the Authority is attacking unions, than it would have been to say that, 
by making it more difficult for employees to exercise those section 
7102 rights, the rule set forth in Army was attacking employees. The 
Authority rejects the characterization of this rule as an attack on any 
party. As one commenter observed, ``[T]his new rule does nothing to 
prevent any [bargaining-unit employee] from remaining a dues[-]paying 
member as long as they

[[Page 41172]]

desire.'' Tammy Schuyler Comment (Apr. 7, 2020).
    Comment: The Contracts Clause of the U.S. Constitution prohibits 
the rule.
    Response: The Contracts Clause, U.S. Const. art. I, sec. 10, cl. 1, 
restricts the power of states, not the Federal Government. And, as 
explained above, the Authority's new rule will not destabilize any 
previously negotiated CBA provisions.
    Comment: Neither section 7102 nor section 7115(a) requires that 
employees be permitted to revoke their dues assignments at any time of 
their choosing, after the first year of irrevocability.
    Response: The Authority has never suggested that this rule is 
dictated by a provision in the Statute. Instead, the rule is filling a 
gap left by section 7115(a)'s silence on the treatment of dues-
assignment revocations after the first year. In doing so, the Authority 
has sought to ensure employees their fullest freedom to refrain from 
joining or assisting a union, see 5 U.S.C. 7102--consistent with the 
one-year irrevocability period that section 7115(a) requires. We do not 
suggest that this rule represents the only possible balance that could 
be struck among competing interests. But the rule represents the 
balance that the Authority--in the exercise of congressionally 
delegated power to craft legislative rules, 5 U.S.C. 7134--finds will 
best fulfill the animating purposes behind sections 7102 and 7115. Cf. 
id. 7112(a) (in making appropriate-unit determinations, the Authority 
shall ``ensure employees the fullest freedom in exercising the rights 
guaranteed under'' the Statute).
    Comment: The National Labor Relations Board has held that, in the 
private sector, parties are not prohibited from negotiating limitations 
on the revocability of dues assignments.
    Response: As recognized by the D.C. Circuit, the ``dues withholding 
provision of the [Statute], 5 U.S.C. 7115, has no counterpart in the 
National Labor Relations Act or the Labor Management Relations Act.'' 
AFGE, Council 214, AFL-CIO, 835 F.2d at 1461. Thus, the court found 
that reliance on private-sector decisions to interpret section 7115 was 
misplaced. Further, even if the NLRB's decisions did concern an 
analogous statutory provision--which, as just explained, they do not--
the Authority may, in the exercise of its discretion, reach conclusions 
that differ from the NLRB's.
    Comment: The Authority should abandon the proposed rule.
    Response: For the reasons described in OPM, and additionally, for 
the reasons explained in this preamble, the Authority had decided to 
amend its regulations to include the additional rule, which will now 
include two sentences. The first sentence will be adopted just as 
written in the proposed rule, and a second sentence will be added to 
make explicit agencies' processing responsibilities, which were 
discussed earlier.

Executive Order 12866

    The FLRA is an independent regulatory agency, and as such, is not 
subject to the requirements of E.O. 12866.

Executive Order 13132

    The FLRA is an independent regulatory agency, and as such, is not 
subject to the requirements of E.O. 13132.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Chairman of the FLRA has determined that this rule 
will not have a significant impact on a substantial number of small 
entities, because this rule applies only to federal agencies, federal 
employees, and labor organizations representing those employees.

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not subject to the requirements of E.O. 13771 (82 FR 
9339, Feb. 3, 2017) because it is related to agency organization, 
management, or personnel, and it is not a ``significant regulatory 
action,'' as defined in Section 3(f) of E.O. 12866 (58 FR 51735, Sept. 
30, 1993).

Executive Order 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, this rule does not have sufficient federalism implications 
to warrant preparation of a federalism assessment.

Executive Order 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or record-keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 2429

    Administrative practice and procedure, Government employees, Labor 
management relations.

    Accordingly, for the reasons stated in the preamble, the FLRA 
amends 5 CFR part 2429 as follows:

PART 2429--[AMENDED]

0
1. The authority citation for part 2429 continues to read as follows:

    Authority: 5 U.S.C. 7134; Sec.  2429.18 also issued under 28 
U.S.C. 2112(a).


0
2. Add Sec.  2429.19 to subpart A to read as follows:


Sec.  2429.19  Revocation of assignments.

    Consistent with the exceptions in 5 U.S.C. 7115(b), after the 
expiration of the one-year period during which an assignment may not be 
revoked under 5 U.S.C. 7115(a), an employee may initiate the revocation 
of a previously authorized assignment at any time that the employee 
chooses. After the expiration of the one-year period of irrevocability 
under 5 U.S.C. 7115(a), upon receiving an employee's request to

[[Page 41173]]

revoke a previously authorized dues assignment, an agency must process 
the revocation request as soon as administratively feasible.

Federal Labor Relations Authority.
Noah Peters,
Solicitor, Federal Register Liaison.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Member DuBester, Dissenting

    In my dissenting opinion in Office of Personnel Management 
(OPM),\1\ I explained how the majority's decision to reverse nearly 
four decades of Authority precedent governing the revocation of 
union-dues allotments was premised upon a U.S. Supreme Court 
decision that, ``by its own terms[,] has nothing to do with federal-
sector labor relations.'' \2\ I also cautioned that the majority's 
decision ``will only create confusion, uncertainty, and--
ultimately--litigation on a myriad of issues.'' \3\
---------------------------------------------------------------------------

    \1\ 71 FLRA 571 (2020) (Member DuBester dissenting).
    \2\ Id. at 579 (Dissenting Opinion of Member DuBester) (citing 
Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018)).
    \3\ Id.
---------------------------------------------------------------------------

    The majority has now abandoned any pretense that its decision in 
OPM, or its subsequent issuance of this final rule, has anything to 
do with the Janus v. AFSCME, Council 31 decision.\4\ Nevertheless, 
like similar decisions in which the majority has overturned 
Authority precedent without a plausible rationale, the rule it has 
now crafted to implement its flawed OPM decision will generate 
``more questions than answers.'' \5\
---------------------------------------------------------------------------

    \4\ Notice at 3 (``the majority decision rested exclusively on 
statutory exegesis, rather than principles of constitutional law'').
    \5\ AFGE, Local 1929 v. FLRA, _ F.3d _, 2020 WL 3053410, at 7 
(D.C. Cir. 2020).
---------------------------------------------------------------------------

    For instance, the rule provides that an employee may initiate 
the revocation of a ``previously authorized [dues] assignment'' at 
any time the employee chooses ``after the expiration of the one-year 
period during which an assignment may not be revoked under 5 U.S.C. 
7115(a).'' \6\ As noted by the majority, a number of parties 
expressed concern that the rule would require agencies to unlawfully 
disregard the terms of previously authorized assignments, and would 
ignore the revocation terms that appear on the current OPM forms 
governing dues assignments and assignment revocations.
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    \6\ Notice at 16.
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    In response to these concerns, the majority explains that the 
rule would ``apply only to dues assignments that are authorized on 
or after the rule's effective date,'' and that agencies would 
therefore not be required ``to disregard the terms of previously 
authorized assignments that the agencies received before the 
[rule's] effective date.'' \7\ But this explanation appears to 
contradict the rule's plain language, which applies its provisions 
to ``previously authorized assignment[s].'' \8\ Moreover, if the 
rule is indeed intended to apply only to assignments authorized 
after its effective date, it is unclear which ``previously 
authorized'' assignments it is referencing.
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    \7\ Id. at 7 (emphasis in original).
    \8\ Id. at 16.
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    It is also not apparent how providing a ``one-year period of 
irrevocability'' \9\ for dues assignments will not dramatically 
increase the administrative burdens placed upon both agencies and 
unions to administer these assignments. If this one-year period is 
intended to apply to the execution of any dues assignment, it would 
presumably apply to both an employee's initial assignment and to any 
subsequently executed assignment, thereby creating a new and 
different anniversary date that will now have to be tracked for each 
subsequent assignment. Remarkably, while the majority expresses 
great skepticism regarding the unions' concerns regarding the 
obvious administrative burdens arising from its rule, it accepts 
without any attendant skepticism the contrary claims of several 
agencies.
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    \9\ Id.
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    More significantly, the majority does not adequately explain how 
its rule will operate with respect to existing and future 
collectively-bargained provisions governing dues assignments and 
revocations. Regarding existing contract provisions, the majority 
indicates that the rule, ``[l]ike all governmentwide regulations . . 
. will be subject to the constraints of section 7116(a)(7) of the 
Statute.'' \10\ And regarding bargaining agreements negotiated 
subsequent to issuance of the rule, it explains that the parties 
will not be permitted ``to negotiate for delays in the processing of 
revocation forms because those delays would defeat the purpose of 
the rule.'' \11\ It has also added an entirely new provision to the 
final rule which requires agencies to process an employee's request 
to revoke ``a previously authorized'' dues assignment ``as soon as 
administratively feasible.'' \12\
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    \10\ Id. at 8.
    \11\ Id. at 11.
    \12\ Id.
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    The new provision governing agencies' obligations to process 
revocation requests was not part of the proposed rule. Because the 
parties were not afforded any opportunity to comment on this 
provision's implications, it is unclear what types of negotiated 
procedures would be considered ``administratively feasible'' under 
the rule. And it is even less clear what the majority means by 
advising parties that they cannot ``negotiate for delays'' in this 
process.
    But more importantly, the majority's explanation regarding the 
rule's impact upon existing bargaining agreements illustrates the 
unprecedented nature of this rule. The majority indicates that the 
rule is intended to be applied as a government-wide regulation 
within the meaning of section 7117(a)(1) of the Statute. And it 
acknowledges that the Authority ``has not previously issued an 
analogous regulation that would shape the contours of the duty to 
bargain in the way that this rule will.'' \13\
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    \13\ Id. at 10.
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    Nonetheless, with little apparent concern for the potential 
consequences, the majority today chooses to determine the scope of 
the parties' bargaining obligations through regulatory fiat rather 
than a reasoned decision addressing the facts and circumstances of 
an actual dispute. Indeed, as I warned in my dissenting opinion, the 
majority first stepped foot on this slippery slope when it issued 
its OPM decision. That decision reversed decades of well-established 
precedent governing dues allotments ``by means of a policy statement 
that [was] neither responsive to the original request nor warranted 
under the Authority's standards governing the issuance of general 
statements of policy.'' \14\
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    \14\ OPM, 71 FLRA at 576; see also id. at 579 (noting that 
``questions regarding whether particular dues withholding 
arrangements offend employees' statutory rights'' are ``the types of 
questions that are particularly appropriate for resolution in the 
context of the facts and circumstances presented by parties in an 
actual dispute'').
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    And, contrary to its suggestion, the reckless course of action 
embraced by the majority is not the kind of ``leadership'' 
contemplated by the Statute.\15\ Regrettably, the confusion, 
uncertainty, and litigation that will inevitably arise from this 
ill-conceived rule will undoubtedly demonstrate why the Authority 
has not proceeded down this path before today. Accordingly, I 
dissent.
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    \15\ Notice at 10 (quoting 5 U.S.C. 7105(a)(1)).

[FR Doc. 2020-14717 Filed 7-7-20; 11:15 am]
BILLING CODE 7627-01-P