ORAL ARGUMENT NOT YET SCHEDULED

Nos. 20-1038, 20-1041, 20-1063, 20-1237, 20-1250, 20-1263

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

NATIONAL TREASURY EMPLOYEES UNION, et al.,

Petitioners,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

______________________________

ON PETITION FOR REVIEW OF A DECISION AND FINAL RULE OF

THE FEDERAL LABOR RELATIONS AUTHORITY

______________________________

BRIEF FOR RESPONDENT 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

 

SARAH C. BLACKADAR

 Attorney

Federal Labor Relations Authority 

1400 K Street, N.W.

Washington, D.C. 20424

(202) 218-7908

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

I. Parties

These consolidated petitions for review arise from a request by the Office of 

Personnel Management (“OPM”) for a general statement of policy or guidance from 

the Federal Labor Relations Authority (the “Authority”) pursuant to 5 C.F.R. 

§ 2427.2(a) on employee-initiated revocations of union dues authorizations. In 

response, the Authority asked for public comment on the issues raised by OPM’s 

request. See Notice of Opportunity to Comment, 84 Fed. Reg. 33,175 (July 12, 2019). 

After carefully reviewing those comments and the applicable law, the Authority 

granted OPM’s request via its written decision in Office of Personnel Management, 0-PS34, 71 FLRA 571 (2020) (Member Abbott concurring, Member DuBester dissenting) 

(the “Policy Statement”). In the Policy Statement, the Authority indicated that it 

would soon issue a proposed rule on dues revocation for notice and comment. 

The National Treasury Employees Union (“NTEU”), American Federation of 

Government Employees (“AFGE”) and American Federation of State, County and 

Municipal Employees (“AFSCME”) (collectively, the “Unions”), who were not parties 

below, filed three petitions for review of the Policy Statement. This Court 

consolidated those petitions for review. The FLRA moved to dismiss those claims 

for lack of jurisdiction, the Unions opposed the motion.

On March 19, 2020, the Federal Register published the Authority’s Notice and 

Opportunity to Comment for a proposed regulation concerning this issue. 

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Miscellaneous and General Requirements, 85 Fed. Reg. 15,742. On July 9, 2020, the 

Authority issued a Notice of Final Rule concerning dues revocation. Miscellaneous and 

General Requirements, 85 Fed. Reg. 41,169-73 (Member DuBester dissenting) (the “Final 

Rule”). Each of the Unions petitioned for review of the Final Rule. This Court first 

consolidated those three petitions, and then consolidated the Policy Statement 

petitions with the Final Rule petitions. In this proceeding, the Unions are the 

petitioners and the Authority is the respondent.

II. Rulings Under Review

The Unions seek review of the Authority’s decision in Office of Personnel 

Management, 0-PS-34, 71 FLRA 571 (2020) (Member Abbott concurring, Member 

DuBester dissenting) and the final rule that the FLRA issued in the Federal Register, 

Miscellaneous and General Requirements, 85 Fed. Reg. 41,169-73 (July 9, 2020) (Member 

DuBester dissenting).

III. Related Cases

These cases were not previously before this Court or any other court, nor is the 

Authority aware of any related cases currently pending before this Court or any other 

court that have not been consolidated into this action.

/s/ Noah Peters

Noah Peters

Solicitor

Federal Labor Relations Authority

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES..................i

I. Parties....................................................................................................................i

II. Rulings Under Review.......................................................................................ii

III. Related Cases......................................................................................................ii

TABLE OF CONTENTS......................................................................................................iii

TABLE OF AUTHORITIES.................................................................................................v

GLOSSARY OF ABBREVIATIONS ..................................................................................x

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ......1

STATEMENT OF THE ISSUES PRESENTED..............................................................2

RELEVANT STATUTORY PROVISIONS ......................................................................2

STATEMENT OF THE CASE.............................................................................................2

I. The Statute’s provisions concerning dues revocations................................2

II. The Authority’s procedures for issuing policy statements and 

regulations...........................................................................................................3

III. Deference is due to the Authority’s interpretation of Section 

7115(a) .................................................................................................................4

STATEMENT OF THE FACTS ..........................................................................................5

I. The Authority issues the Policy Statement examining Section 

7115(a) .................................................................................................................5

II. The Authority issues its Final Rule allowing employees to initiate 

dues revocations at any time after the first year of the assignment ...........7

SUMMARY OF ARGUMENT..............................................................................................9

STANDARD OF REVIEW .................................................................................................14

ARGUMENT..........................................................................................................................17

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I. The Authority’s construction of the Statute satisfies Chevron step 

one......................................................................................................................17

A. Section 7115(a) provides unambiguously that employees may 

revoke union dues assignments after “a period of one year.”.......18

B. The legislative history of the Statute does not support any finding 

that dues may only be revoked at one-year intervals—in fact, it 

shows the exact opposite. ...................................................................21

C. The Authority’s decision to fill the silence Congress left with 

respect to when employees may revoke union dues after the first 

year of the assignment was consistent with the Statute’s structure 

and purpose...........................................................................................29

II. The Policy Statement and Final Rule are based upon a permissible 

construction of the Statute that is neither arbitrary or capricious............35

A. The Authority adequately explained its interpretation of Section 

7115(a) and addressed the Unions’ “reliance interests.”................36

B. The Policy Statement and Final Rule appropriately balance the 

interests of unions, agencies, and individual employees................40

C. The Authority addressed, and reasonably rejected, NTEU’s 

“alternative” proposal..........................................................................44

CONCLUSION ......................................................................................................................47

FED. R. APP. P. RULE 32(A) CERTIFICATION..........................................................48

CERTIFICATE OF SERVICE............................................................................................48

STATUTORY ADDENDUM

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TABLE OF AUTHORITIES

CASES PAGES

AFGE, Local 2192, AFL-CIO, 

 68 FLRA 481 (2015) .......................................................................................................... 32 

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

750 F.2d 143 (D.C. Cir. 1984)..............................................................................................3

Am. Fed’n of Gov’t Emps., Council 214, AFL-CIO v. FLRA,

835 F.2d 1458 (D.C. Cir. 1987)......................................................................13, 14, 45, 46

Am. Fed’n of Gov’t Emps., Local 2343 v. FLRA,

144 F.3d 85 (D.C. Cir. 1998)............................................................................................. 15

Am. Fed’n of Gov’t Emps,, AFL-CIO, Local 3669 v. Shinseki,

709 F.3d 29 (D.C. Cir. 2013)............................................................................................. 26

Arent v. Shalala,

70 F.3d 610 (D.C. Cir. 1995)............................................................................................. 16

Ass'n of Civilian Technicians, Inc. v. FLRA,

283 F.3d 339 (D.C. Cir. 2002)..............................................................................................3

Ass’n of Civilian Techs. v. FLRA,

353 F.3d 46 (D.C. Cir. 2004)............................................................................................. 37

Ass’n of Civilian Techs., Mont. Air Chapter No. 29 v. FLRA,

22 F.3d 1150 (D.C. Cir. 1994)........................................................................15, 26, 33, 34

Braeburn Inc. v. U.S. Food & Drug Admin.,

389 F. Supp. 3d 1 (D.D.C. 2019)...................................................................................... 29

Buckley v. Valeo,

424 U.S. 1 (1976)................................................................................................................. 30

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

464 U.S. 89 (1983).............................................................................3, 4, 14, 15, 26, 33, 34

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Catawba County v. Environmental Protection Agency,

571 F.3d 20 (D.C. Cir. 2009)............................................................................................. 27

Cellco P’ship v. FCC,

357 F.3d 88 (D.C. Cir. 2004)............................................................................................. 16

Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc.,

470 U.S. 116 (1985)............................................................................................................. 29

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984).............................................................................................. 5, 9, 15, 16

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013)............................................................................................................. 17

City of Olmsted Falls v. FAA,

292 F.3d 261 (D.C. Cir. 2002)........................................................................................... 16

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992)............................................................................................................. 18

Consumer Elecs. Ass’n v. FCC,

347 F.3d 291 (D.C. Cir. 2003)........................................................................................... 21

Dep’t of Def. v. FLRA,

659 F.2d 1140 (D.C. Cir. 1981)......................................................................................... 33

Dep’t of the Navy, Naval Underwater Sys. Ctr., Newport, R.I.,

16 FLRA 1124 (1984)......................................................................................................... 32

Eisinger v. FLRA,

218 F.3d 1097 (9th Cir. 2000) .......................................................................... 4, 17, 18, 30

Encino Motor Cars, LLC v. Navarro,

136 S. Ct. 2117 (2016) ........................................................................................................ 40

Envtl. Prot. Agency,

489 F.3d 1250 (D.C. Cir. 2007)......................................................................................... 21

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546 (2005)............................................................................................................. 37

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FCC v. Fox Television Stations Inc.,

556 U.S. 502 (2009)............................................................................................................. 36

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)............................................................................................................. 34

In re Permanent Surface Min. Regulation Litig.,

653 F.2d 514 (D.C. Cir. 1981)........................................................................................... 30

Int’l Bhd. of Elec. Workers, Local No. 2088, AFL-CIO (Lockheed Space Ops. Co.),

302 NLRB 322 (1991) ..................................................................................................14, 46

Jama v. Immigration & Customs,

543 U.S. 335 (2005).......................................................................................................20, 27

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ...........................................................................................................5

King v. Burwell,

576 U.S. 473 (2015)............................................................................................................. 34

Local 32, Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

774 F.2d 498 (D.C. Cir. 1985).....................................................................................16, 36

Lorillard v. Pons,

434 U.S. 575 (1978).......................................................................................................27, 28

Mayo Found. for Med. Educ. & Research v. United States,

562 U.S. 44 (2011).........................................................................................................25, 26

Mingo Logan Coal Co. v. U.S. P.A.,

714 F.3d 608 (D.C. Cir. 2013)........................................................................................... 21

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983)............................................................................................................... 16

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967 (2005).......................................................................................................16, 30

Nat’l Fed’n of Fed. Emps. v. FLRA,

369 F.3d 548 (D.C. Cir. 2004)........................................................................................... 36

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Nat’l Muffler Dealers Ass’n, Inc. v. United States,

440 U.S. 472 (1979)............................................................................................................. 26

Nat’l Treasury Emps. Union v. FLRA,

414 F.3d 50 (D.C. Cir. 2005)............................................................................................. 15

Nat’l Treasury Emps. Union v. FLRA,

745 F.3d 1219 (D.C. Cir. 2014)......................................................................................... 37

Nat'l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014)......................................................................................... 15

Office of Pers. Mgmt. v. FLRA,

864 F.2d 165 (D.C. Cir. 1988).....................................................................................26, 35

Office of Pers. Mgmt., 

 71 FLRA 571 (2020).....................................................................................................1, 2, 9

Performance Coal Co. v. Fed. Mine & Health Review Comm’n,

642 F.3d 234 (D.C. Cir.2011)............................................................................... 18, 19, 20

Ratzlaf v. United States,

510 U.S. 135 (1994).........................................................................................................6, 11

Smiley v. Citibank (S. Dakota), N.A.,

517 U.S. 735 (1996)............................................................................................................. 17

U.S. Army, U.S. Army Materiel Dev. & Readiness Command, Warren, Michigan,

7 FLRA 194 (1981) .................................................................. 5, 20, 22, 23, 24, 25, 26, 37

United States v. Blavatnik,

168 F. Supp. 3d 36 (D.D.C. 2016).................................................................................... 29

Va. Dep’t of Med. Assistance Servs. v. U.S. Dep’t of Health & Human Servs.,

678 F.3d 918 (D.C. Cir. 2012).....................................................................................18, 21

STATUTES

5 U.S.C. § 706.......................................................................................................................... 16

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5 U.S.C. § 7102........................................................................................................... 12, 32, 41

5 U.S.C. § 7105....................................................................................................... 3, 29, 30, 31

5 U.S.C. § 7115....................................................................................................... 3, 19, 22, 41

5 U.S.C. § 7117..................................................................................................................30, 31

5 U.S.C. § 7123........................................................................................................................ 15

5 U.S.C. § 7134....................................................................................................... 4, 30, 31, 33

REGULATIONS

5 C.F.R. § 2427.2(a).............................................................................................................. 1, 4

5 C.F.R. § 2429.19 .....................................................................................................................7

85 Fed. Reg. 41,169...................................................................................................................1

OTHER AUTHORITIES

Civil Service Commission Bulletin 711-48, Special Bulletin No. 10 (Dec. 28, 1978) .. 25

Pub. L. No. 98-224................................................................................................................. 28

Pub. L. No. 105-261............................................................................................................... 28

Pub. L. No. 105-220............................................................................................................... 28

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GLOSSARY OF ABBREVIATIONS

AFGE American Federation of Government Employees

AFSCME American Federation of State, County and Municipal Employees 

Authority Respondent, the Federal Labor Relations Authority

CBA Collective Bargaining Agreement

Final Rule Miscellaneous and General Requirements, 85 Fed. Reg. 41,169-73 

(Member DuBester dissenting)

FLRA Respondent, the Federal Labor Relations Authority

JA The Joint Appendix 

NLRA National Labor Relations Act

NLRB National Labor Relations Board

NTEU National Treasury Employees Union

OPM The U.S. Office of Personnel Management

Pet’r Br. Petitioners’ opening brief 

Policy Statement Office of Personnel Management, 0-PS-34, 71 FLRA 571 (2020) 

(Member Abbott concurring, Member DuBester dissenting) 

Request OPM’s Request for a General Statement of Policy or Guidance, 

dated March 19, 2019

SA The Supplemental Appendix

The Statute The Federal Service Labor-Management Relations Statute, 5 

U.S.C. §§ 7101-7135 (2018)

Unions Petitioners, NTEU, AFGE, and AFSCME

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STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

These consolidated cases arise from petitions for review (“Petitions”) filed by 

the National Treasury Employees Union (“NTEU”), American Federation of 

Government Employees (“AFGE”) and American Federation of State, County and 

Municipal Employees (“AFSCME”) (collectively the “Unions”). The Petitions seek 

review of 1) Office of Personnel Management, 0-PS-34, 71 FLRA 571 (2020) (Member 

Abbott concurring, Member DuBester dissenting) (the “Policy Statement”), in which 

the Authority held that § 7115(a) of the Federal Service Labor-Management Relations 

Statute, 5 U.S.C. §§ 7101–7135 (2018) (the “Statute”), in prohibiting union dues 

assignments from being “revoked for a period of 1 year,” was silent on employeeinitiated dues revocations after the first year of the assignment, and announced the 

Authority’s intention to begin notice-and-comment rulemaking to fill the statutory 

gap and 2) the Authority’s final rule concerning dues revocation. Miscellaneous and 

General Requirements, 85 Fed. Reg. 41,169-73 (July 9, 2020) (Member DuBester 

dissenting) (the “Final Rule”).1

The Authority had subject matter jurisdiction to issue the Policy Statement 

pursuant to §§ 7105(a) and 7134 of the Statute and 5 C.F.R. § 2427.2(a). The

 1 The Policy Statement is included in the Joint Appendix (“JA”) at 63-71; Final Rule 

(including the Authority’s detailed justification for its rule and response to 17 

categories of public comments) is included in the JA at 117-121. 

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Authority had subject matter jurisdiction to issue the Final Rule pursuant to 5 U.S.C. 

§§ 553, 7105(a), and 7134.

STATEMENT OF THE ISSUES PRESENTED

1. Was the Authority’s determination in its Policy Statement that § 7115(a) 

of the Statute permits employees to revoke union dues assignments after a period of 

one year based on a permissible construction of the Statute?

2. Was the Final Rule, which permits employees to revoke union dues 

assignments after a period of one year, based on a permissible construction of the 

Statute?

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are contained in the attached 

Statutory Addendum. (Add. 1.)

STATEMENT OF THE CASE

The Authority’s Final Rule and related Policy Statement address the ability of 

federal employees to revoke union dues assignments under § 7115(a) of the Statute. 

The Unions’ Petitions present the question of whether the Policy Statement and Final 

Rule are based on a permissible construction of § 7115(a). 

I. The Statute’s provisions concerning dues revocations

The Authority is an executive-branch federal agency created by the Statute, 

which is Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 

92 Stat. 1111. The Statute provides a general framework for regulating 

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labor-management relations for the federal government. See generally 5 U.S.C. 

§§ 7101-7135 (2018). 

The Authority is a three-member independent and bipartisan body that is 

responsible for implementing the Statute through the exercise of broad adjudicatory, 

policy-making, and rule-making powers. Id. §§ 7104, 7134. The Authority’s role is 

analogous to that of the National Labor Relations Board (“NLRB”) in the private 

sector. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 92-93 (1983) 

(“BATF”); Ass'n of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339, 342 (D.C. Cir. 

2002). 

In addition to empowering the Authority to oversee federal-sector labor 

relations, the Statute enumerates certain basic rights and responsibilities of federal 

employees, unions, and agencies. Among those rights is the right of employees to 

allow direct deductions from their paychecks for union dues. 5 U.S.C. § 7115(a). The 

Statute states that “[e]xcept as provided under subsection (b) of this section, any such 

assignment may not be revoked for a period of 1 year.” Id.

II. The Authority’s procedures for issuing policy statements and 

regulations

Section 7105(a)(1) of Statute “directs the [Authority] to ‘establish[] policies and 

guidance relating to matters’ arising under the [S]tatute.” Am. Fed’n of Gov’t Emps., 

AFL-CIO v. FLRA, 750 F.2d 143, 143 (D.C. Cir. 1984) (quoting 5 U.S.C. § 

7105(a)(1)). Part 2427 of the Authority’s regulations set forth the procedures by 

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which parties may request issuance of general statements of policy or guidance. 

Under those regulations, an agency head, union president, or “[t]he head of any lawful 

association not qualified as a labor organization” may ask the Authority to issue a 

general statement of policy or guidance. 5 C.F.R. § 2427.2(a). 

In assessing requests to issue policy statements, the Authority considers several 

factors, including “[w]hether the resolution of the question presented would have 

general applicability under” the Statute, id. § 2427.5(c), and whether issuing a policy 

statement would promote the purposes of the Statute, id. § 2427.5(f).

Section 7134 of the Statute states that “[t]he Authority . . . shall . . . prescribe 

rules and regulations to carry out the provisions of this chapter applicable to [it].” 5 

U.S.C. § 7134. Section 7134 gives the Authority “broad authority . . . to promulgate 

regulations that carry out the [S]tatute’s provisions.” Eisinger v. FLRA, 218 F.3d 1097, 

1100 (9th Cir. 2000). The procedures outlined in the Administrative Procedure Act, 5 

U.S.C. §§ 551-59 (2018), apply to the Authority’s “issuance, revision, or repeal” of its 

regulations. 5 U.S.C. § 7134.

III. Deference is due to the Authority’s interpretation of Section 7115(a)

The Authority receives “considerable deference” when it exercises its “special 

function of applying the general provisions of the [Statute] to the complexities of 

federal labor relations.” BATF, 464 U.S. at 97 (internal quotation marks omitted). 

Thus, this Court “may not substitute its own construction of a statutory provision for 

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a reasonable interpretation made by [the Authority].” Chevron, U.S.A., Inc. v. Nat. Res. 

Def. Council, Inc., 467 U.S. 837, 844 (1984).

In this case, the Authority reviewed the meaning and application of § 7115(a) 

of the Statute not once, but twice. The Authority first reviewed that provision though 

its policy statement procedure after soliciting public comment. In particular, it 

examined the text of § 7115(a), which provides that after an employee authorizes 

union dues withholding via written assignment, “such assignment may not be revoked 

for a period of [one] year.” Comparing that language with its previous interpretation 

in U.S. Army, U.S. Army Materiel Dev. & Readiness Command, Warren, Michigan, 7 FLRA 

194 (1981) (“Army”), the Authority determined that Army erroneously interpreted § 

7115(a) as permitting employees to revoke dues assignments only at one-year intervals 

after the first year of an assignment, when the text imposes no such restriction.

After issuing the Policy Statement, the Authority published a proposed rule in 

the Federal Register for notice and comment. The Final Rule is the culmination of 

the Authority’s cautious and well-reasoned deliberations concerning the meaning of 

§ 7115(a), and is based upon a permissible construction of the Statute. This Court 

should thus deny the Petitions.

STATEMENT OF THE FACTS 

I. The Authority issues the Policy Statement examining Section 7115(a)

On March 19, 2019, the Office of Personnel Management (“OPM”) asked the 

Authority to issue guidance holding: 1) that the principles articulated in Janus v. 

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AFSCME, 138 S. Ct. 2448 (2018) apply to federal-sector labor-management relations, 

and 2) consistent with Janus and the text of § 7115(a), agencies should process 

employee union dues revocations as soon as administratively feasible so long as one 

year has passed since the initial assignment. (JA 1-3.)

In July 12, 2019, the Authority solicited public comments on OPM’s request 

for a policy statement. (JA 4.) After considering those comments, the Authority 

issued the Policy Statement. 

In the Policy Statement, the Authority assessed OPM’s request in light of the 

text of § 7115(a). It found that “[t]he most reasonable way to interpret the phrase 

‘any such assignment may not be revoked for a period of [one] year’ [in § 7115(a)] is 

that the phrase governs only the first year of an assignment.” (JA 64.) It rejected the 

reasoning of Army, in which the Authority erroneously read § 7115(a) as imposing a 

requirement that employees may only revoke dues assignments at one-year intervals 

after the first year of an assignment, when the text imposes no such restriction. The 

Policy Statement determined that Army had improperly relied on the legislative history 

of § 7115(a) while ignoring its plain text. (JA 65 n.23 (quoting Ratzlaf v. United States, 

510 U.S. 135, 147-48 (1994)) (“[W]e do not resort to legislative history to cloud a 

statutory text that is clear.”).) 

While the Policy Statement found that yearly dues-revocation periods are not 

required by § 7115(a), it did not state that they are prohibited by the Statute. (JA 64-

65.) Instead, the Authority said that it would undertake notice-and-comment 

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rulemaking to craft a new regulation regarding dues revocation. (JA 65.) Through the 

rulemaking process, the Authority would balance interests such as “robustly 

protecting employees’ rights and freedoms, and guarding unions’ institutional interests 

in a clear and effective procedure for collecting dues.” (JA 65.) The rule that the 

Authority ultimately propounded would “seek a reasonable balance between 

competing interests.” (JA 65.) 

 Before the rulemaking process even began, however, the Unions filed 

petitions for review of the Policy Statement. The Authority moved to dismiss the 

petitions for review because the Policy Statement was not a final agency action, not 

ripe for review, and would be rendered moot by the Authority’s forthcoming Final 

Rule.

II. The Authority issues its Final Rule allowing employees to initiate 

dues revocations at any time after the first year of the assignment

The Authority published its proposed regulations for notice and comment in 

the Federal Register on March 19, 2020. (JA 72-73.) The Authority issued its Final 

Rule on July 9, 2020. (JA 117-21.) The Final Rule added a new § 2429.19 to Title 5 of 

the Code of Federal Regulations that provides:

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 revoke a 

previously authorized dues assignment, an agency must process the 

revocation request as soon as administratively feasible.

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(JA 120-21.) 

When it published the Final Rule, the Authority comprehensively addressed the 

17 categories of comments that it received in response to its Federal Register notices. 

(JA 117-20.) Indeed, the Authority addressed each of the issues the Unions raise in 

their brief in this case. 

In particular, the Authority refuted claims that the legislative history of 

§ 7115(a) requires the conclusion that federal employees may only revoke dues 

assignments at one-year intervals. The Authority found that when considering the 

issue of dues assignments and revocations, Congress was aware of a prior Executive 

Order that permitted employees to revoke dues assignments “at six-month intervals.” 

(JA 118.) The version of § 7115(a) enacted into law, however, “does not mention 

intervals at all.” (JA 118 (emphasis in original).) The Authority therefore reasonably 

concluded that, “Army improperly grafted an interval-based revocation restriction 

onto the wording of [S]ection 7115(a)” and rejected Army’s interpretation. (JA 118.)

The Unions filed a second set of petitions for review of the Final Rule, which 

this Court consolidated. NTEU then moved to consolidate the Policy Statement 

petitions with the Final Rule petitions. This Court subsequently issued an order 

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deferring consideration of the Authority’s motion to dismiss to the merits panel and 

consolidating the Policy Statement and Final Rule petitions.2 

SUMMARY OF ARGUMENT

In accordance with Chevron, this Court must defer to the Authority’s reasonable 

construction of § 7115(a) of the Statute in its Policy Statement and Final Rule. 467 

U.S. at 842–43. At each point in its decisionmaking process, the Authority sought 

comment from members of the federal labor-management community. The 

Authority carefully considered those comments in providing a well-reasoned Policy 

Statement and thoroughly-explained Final Rule that correctly interpreted the Statute 

and appropriately balanced the interests of federal employees, unions and agencies 

with respect to dues revocation. The Court should therefore deny the Petitions.

In its Policy Statement, the Authority performed one of its core statutory 

functions: interpreting the Statute. (JA 63.) In comparing the plain text of § 7115(a) 

with its previous reading of that provision in Army, the Authority concluded that the 

two could not be reconciled. (JA 63-65.) It therefore overruled Army and adopted an 

interpretation of § 7115(a) that gave effect to its plain language: that federal employees 

may revoke dues assignments at any time after the first year of the assignment. (JA 

63-65.)

 2 Because the Policy Statement petitions have been consolidated with the Final Rule 

petitions and the rulemaking process is now complete, the Authority no longer 

contends that the Policy Statement petitions should be dismissed for lack of finality 

and ripeness.

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The Authority recognized that its new interpretation of § 7115(a) was a 

departure from Army and left a gap that could most appropriately be addressed via 

rulemaking. (JA 65.) The Authority proceeded carefully and deliberately, soliciting 

comment in order to craft a new rule that is consistent with the Statute’s plain text 

and “further[s] important policies underlying the Statute, such as robustly protecting 

employees’ rights and freedoms, and guarding unions’ institutional interests in a clear 

and effective procedure for collecting dues.” (JA 65.) In issuing its Final Rule, the 

Authority addressed all of the substantive concerns presented in public comments, 

clarified that federal employees may revoke dues assignments any time after the first 

anniversary of the assignments, and specified that agencies must process such 

revocations as soon as administratively feasible.

The Authority’s well-reasoned interpretation of its Statute, which is owed 

Chevron deference, and prudent and lawful use of its broad rulemaking power warrant 

denial of the Petitions. The Unions’ strained arguments do not establish that the 

Authority’s decisions are based on an impermissible interpretation of the Statute, or 

that they are arbitrary or capricious.

Contrary to the Unions’ arguments, § 7115(a)’s terms are unambiguous and 

support the Authority’s—not the Unions’—interpretation. The Authority correctly 

found 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.’’ (JA 64, 118.) Acknowledging that its conclusion differed from that 

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of Army, the Authority overruled that decision. It explained that Army had come to a 

different result by improperly relying on the Statute’s legislative history while ignoring 

the text of § 7115(a). As the text of § 7115(a) is not ambiguous, the Authority found 

that Army’s reliance on legislative history to interpret that provision reflected ‘‘poor 

statutory construction.’’ (JA 65 (citing Ratzlaf v. United States, 510 U.S. 135, 147–48

(1994)); JA 117.) 

The Final Rule further explained that Army misiread the Statute’s legislative 

history. When presented with a proposal that would have permitted employees to 

revoke dues at six-month intervals, Congress instead enacted a provision that

permitted revocation after a year—while intentionally omitting any language 

concerning intervals. The Authority thus reasonably concluded that Army’s flawed 

interpretation of the legislative history led it to “improperly graft[] an interval-based 

revocation restriction onto the wording of section 7115(a)”—an interval-based 

restriction that Congress expressly decided not to include in that provision. (JA 118.) 

Thus, the Unions’ argument fails at Chevron step one because the text of § 7115(a) 

contains no interval-based restriction on dues revocation.

Nor have the Unions demonstrated that the Policy Statement and Final Rule 

were based upon an impermissible interpretation of the Statute, or were arbitrary or 

capricious. First, as noted above, the Authority based the Policy Statement and Final 

Rule on a reasonable interpretation of both the unambiguous language of § 7115(a) 

and the Authority’s interpretation of its legislative history. 

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Second, the Authority acknowledged the Unions’ institutional interests in this 

matter, and addressed them both in the Policy Statement and (at great length) in 

issuing the Final Rule. (JA 63-67, 117-21.) The Authority ensured that the Final Rule 

would apply only to assignments made after its effective date. (JA 118.) It clarified 

that the Final Rule would not affect current collective bargaining agreements 

(“CBAs”) containing clauses related to dues revocation. (JA 118.) The Final Rule 

further clarified that, going forward, parties would not be burdened with negotiating 

dues revocation provisions. (JA 120-21.)

The Authority also addressed the Unions’ core concern that the decisions 

would affect the Unions’ ability to plan financially. It explained that under the Final 

Rule, unions would still enjoy the “the certainty of the first year of irrevocability under 

section 7115(a)” and that the Final Rule did not require or provide an incentive for 

employees to revoke dues assignments after one year. (JA 119.) The Authority 

observed that unions were free to “enter into dues-payment arrangements outside the 

federal payroll system that would provide them a greater measure of funding 

predictability.” (JA 119.)

Third, the Unions’ claim that the Policy Statement and Final Rule unreasonably 

elevated the rights of individual employees over that of unions (Pet’r Br. 46-48) is 

wholly without merit. Contrary to the Unions’ arguments, the Authority is 

responsible under the Statute for protecting the rights of individual employees, not 

just the institutional interests of unions. See, e.g., 5 U.S.C. §§ 7102; 7115(a); 7116(a)(1), 

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(2), (4), (b)(1)-(4), (c). The Authority therefore considered the impact its Final Rule 

and Policy Statement had on both unions and individual employees, and balanced 

those interests. Comments the Authority received indicated that most unions (other 

than NTEU) calculated annual revocation deadlines based on the date the employee 

first made his or her dues assignment. (JA 118.) The Authority further learned that 

different CBAs contained different provisions concerning the window in which 

employees could revoke. (JA 117.) Several individual and organizational commenters 

observed that under this system, it was very difficult for average employees to know 

when they could revoke their dues assignments. While the Authority recognized and 

addressed unions’ financial and institutional concerns, it was neither arbitrary nor 

capricious for the Authority to also address the financial concerns of individual 

employees. 

Finally, notwithstanding the Unions’ claims to the contrary (Pet’r Br. 48-51), 

the Authority considered and reasonably rejected NTEU’s argument in its public 

comment that the Authority should look to case law under the National Labor 

Relations Act (“NLRA”) allowing employees to obligate themselves to pay union dues 

even after they leave a union. (JA 120.) As the Authority recognized, the D.C. Circuit 

has squarely rejected the notion that NLRB precedent should carry any weight in the 

interpretation of § 7115(a). (JA 120 (citing Am. Fed’n of Gov’t Emps., Council 214, AFLCIO v. FLRA, 835 F.2d 1458, 1461 (D.C. Cir. 1987) (“Council 214”)).) Section 7115(a) 

has no analogue in the NLRA and creates a dues-withholding scheme that is 

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fundamentally different from that in the private sector. Council 214, 835 F.2d at 1461. 

That analysis alone was more than sufficient to justify the Authority in rejecting 

NTEU’s proposed NLRA analogue. 

But even under the NLRB case the Unions cite, a “clear and unmistakable” 

waiver of the statutory right to refrain from assisting a union is required before a 

continuing obligation to pay dues will be enforced against an employee. Int’l Bhd. of 

Elec. Workers, Local No. 2088, AFL-CIO (Lockheed Space Ops. Co.), 302 NLRB 322, 328 

(1991). In its comment, NTEU itself recognized that, if dues can be made irrevocable 

for rolling annual periods, employees may be confused as to when they can revoke 

those assignments. (JA 85.) The Authority’s decision to address that unquestionably 

valid concern over employee confusion (one echoed by several other commenters) via 

its Final Rule creating a single, uniform standard across the federal government, 

instead of relying on ill-defined analogies to private-sector practice, was in no way 

arbitrary or capricious. (JA 119.)

Ultimately, the Policy Statement and Final Rule are the product of the 

Authority’s measured and well-reasoned application of its statutory expertise. This 

Court should therefore deny the Petitions. 

STANDARD OF REVIEW

The Authority is responsible for interpreting and administering its own Statute. 

See BATF, 464 U.S. at 97; Ass’n of Civilian Techs., Mont. Air Chapter No. 29 v. FLRA, 22 

F.3d 1150, 1153 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 842–43). Accordingly, 

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the Court “may not substitute its own construction of a statutory provision for a 

reasonable interpretation made by [the Authority].” Chevron, 467 U.S. at 844. The 

Authority is entitled to “considerable deference” when it exercises its “special 

function of applying the general provisions of the [Statute] to the complexities of 

federal labor relations.” BATF, 464 U.S. at 97 (internal quotation marks omitted).

This Court reviews the Unions’ challenges to the Authority’s legal 

determinations under the two-step Chevron framework. At step one, where Congress 

“has directly spoken to the precise question at issue,” this Court “give[s] effect to [its] 

unambiguously expressed intent[.]” Nat’l Treasury Emps. Union v. FLRA, 414 F.3d 50, 

57 (D.C. Cir. 2005) (quoting Chevron, 467 U.S. at 842–43). If the statute is silent or 

ambiguous, this Court moves to step two and defers to the Authority’s interpretation 

so long as it is “based on a permissible construction of the statute.” Id.; see also Nat'l 

Treasury Emps. Union v. FLRA, 754 F.3d 1031, 1041 (D.C. Cir. 2014) (“NTEU 2014”). 

Courts uphold Authority decisions so long as they are not “‘arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.’” NTEU 

2014, 754 F.3d 1031, 1041 (D.C. Cir. 2014) (quoting Am. Fed’n of Gov’t Emps., Local 

2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998)); see also 5 U.S.C. § 7123(c) 

(incorporating Administrative Procedure Act standards of review). In determining 

whether a disputed agency action is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), the party challenging the 

action bears the burden of proof, City of Olmsted Falls v. FAA, 292 F.3d 261, 271 (D.C. 

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Cir. 2002) (citation omitted). “Under this highly deferential standard of review, the 

court presumes the validity of agency action and must affirm unless the [Authority] 

failed to consider relevant factors or made a clear error in judgment[.]” Cellco P’ship v. 

FCC, 357 F.3d 88, 93-94 (D.C. Cir. 2004) (internal quotation marks and citations 

omitted); see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 44–45 (1983); Arent v. Shalala, 70 F.3d 610, 616 (D.C. Cir. 1995).

The Authority, like other agencies, “is free to alter its past rulings and practices 

even in an adjudicatory setting” so long as it provides a “reasoned explanation” for 

doing so. Local 32, Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA, 774 F.2d 498, 502 

(D.C. Cir. 1985). Such an explanation must indicate “that prior policies and standards 

are being deliberately changed, not casually ignored[.]” Id. (internal quotation marks 

omitted). The reason for this flexibility is that “[a]n initial agency interpretation is not 

instantly carved in stone. On the contrary, the agency . . . must consider varying 

interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. 

at 863–64 (emphasis added). Indeed, in Chevron itself, the Supreme Court deferred to 

an agency interpretation that was a recent reversal of agency policy. Id. at 857–58; see 

also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) 

(“Agency inconsistency is not a basis for declining to analyze the agency's 

interpretation under the Chevron framework.”). 

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In assessing an agency regulation, “neither antiquity nor contemporaneity with 

the statute is a condition of validity.” Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 

735, 740 (1996). As the Supreme Court has said:

We accord deference to agencies under Chevron, not because of a 

presumption that they drafted the provisions in question, or were 

present at the hearings, or spoke to the principal sponsors; but rather 

because of a presumption that Congress, when it left ambiguity in a 

statute meant for implementation by an agency, understood that the 

ambiguity would be resolved, first and foremost, by the agency, and 

desired the agency (rather than the courts) to possess whatever degree of 

discretion the ambiguity allows. 

Id. at 740-41.

Legislative rules (like the Final Rule) that are made pursuant to a specific grant 

of statutory rulemaking authority “will be upheld unless they are arbitrary, capricious, 

or manifestly contrary to the statute.” Eisinger v. FLRA, 218 F.3d 1097, 1100 (9th Cir. 

2000) (internal formatting omitted). In addition, agency interpretations of statutory 

ambiguity that concern the scope of that agency’s regulatory authority receive Chevron

deference. City of Arlington, Tex. v. FCC, 569 U.S. 290, 293 (2013). 

ARGUMENT

I. The Authority’s construction of the Statute satisfies Chevron step one

The Unions erroneously claim that the Policy Statement and Final Rule conflict 

with the legislative history of § 7115(a) and the structure of the Statute. The Unions’ 

legislative history arguments fail, both on their own terms and as an attempt to muddy 

the plain language of § 7115(a) providing that dues assignments “may not be revoked 

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for a period of one year.” The Authority’s Policy Statement and Final Rule are 

consistent with the text of § 7115(a) and the structure of the Statute. Section 7115(a) 

is silent on when employees may revoke dues assignments after the first year of the 

assignment. Drawing on its broad rulemaking power in § 7134, the Authority filled 

that gap. See Eisinger, 218 F.3d at 1100 (§ 7134 gives the Authority “broad authority . . 

. to promulgate regulations that carry out the [S]tatute’s provisions”). In so doing, the 

Authority furthered the Statute’s purposes of advancing employee rights while 

ensuring that dues-revocations are governed by a single, predictable rule. (JA 120.) 

A. Section 7115(a) provides unambiguously that employees may 

revoke union dues assignments after “a period of one year.” 

In step one of the Chevron analysis, this Court presumes “that a legislature says 

in a statute what it means and means in a statute what it says there.” Va. Dep’t of Med. 

Assistance Servs. v. U.S. Dep’t of Health & Human Servs., 678 F.3d 918, 922–23 (D.C. Cir. 

2012) (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 1 (1992)). To 

overcome that presumption, the Unions “must ‘show either that, as a matter of 

historical fact, Congress did not mean what it appears to have said, or that, as a matter 

of logic and statutory structure, it almost surely could not have meant it.’” Id. 

(quoting Performance Coal Co. v. Fed. Mine & Health Review Comm’n, 642 F.3d 234, 238 

(D.C. Cir.2011)). The Unions fail to overcome that presumption in this case. 

The text of § 7115(a) is clear. Its first sentence says that employees can opt to 

their have union dues deducted directly from their paychecks through federal 

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government payroll services via a written assignment, and that such requests “shall 

[be] honor[ed]” by the agency and an appropriate deduction made from the 

employee’s paycheck. The second sentence says that such services will be provided to 

unions without cost. The third sentence says, in relevant part, “any such 

assignment may not be revoked for a period of [one] year.” The plain text of 

§ 7115(a) therefore speaks in unambiguous terms of a dues assignment that may not 

be revoked for a single year. That language is incompatible with any requirement of 

revocation at specified intervals. Instead, it creates a period of irrevocability “of [one] 

year.” 5 U.S.C. § 7115(a). 

As the Authority correctly noted, “[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.” (JA 64.) That is, § 7115(a) “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. As the Authority 

explained,

[I]t would be nonsensical to conclude that the one-year period under § 

7115(a) is not the first year of an assignment. For example, we could not 

reasonably find that § 7115(a) prevents the revocation of an assignment 

during its second year, but not its first year. And because the provision 

says that it limits revocations for “a period of [one] year,” it does not 

limit revocations for multiple periods of one year. 

(JA 64.)

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Under the dissenting Member’s interpretation of § 7115(a), echoed by the 

Unions here, “one year means ‘at any time during the first year, and not during 

subsequent years, except at annual intervals.’” Id. But such an interpretation, the 

Authority found, “ignores the actual wording of the provision in favor of a different 

restriction on revocations.” Id.; see also Jama v. Immigration & Customs Enf’t, 543 U.S. 

335, 341 (2005) (“We do not lightly assume that Congress has omitted from its 

adopted text requirements that it nonetheless intends to apply[.]”).

Thus, the Policy Statement correctly pointed out that the Authority’s previous 

holding in Army (that § 7115(a) required dues revocation only at yearly intervals) rests 

on an untenable interpretation of § 7115(a), because the provision’s text is silent on 

employee-initiated dues revocations that occur after “a period of [one] year.” While 

Army purported to rely on legislative history to create the interval-based restriction, 

that reliance was flawed because (as Army itself acknowledged) the legislative history 

concerning § 7115(a) is ambiguous at best. Army, 7 FLRA at 198 n. 13 (observing that 

the parts of the legislative history “which did advert to the revocability language” of § 

7115(a) do “not shed light on its intended meaning”). In fact, as demonstrated in Part 

II.B below, the legislative history supports finding that Congress did not intend § 

7115(a) to create an interval-based restriction on employee-initiated dues revocations 

after the first year. Thus, the Authority was unquestionably correct in concluding that 

Army “in fact . . . made a policy judgment to impose annual revocation periods after 

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the first year of an assignment,” as “§ 7115(a) neither compels, nor even supports, the 

existing policy on annual revocation windows.” (JA 64-65.) 

B. The legislative history of the Statute does not support any finding 

that dues may only be revoked at one-year intervals—in fact, it 

shows the exact opposite.

Resisting this conclusion, the Unions cite a single passage from a committee 

report for the proposition that § 7115(a), despite its silence, actually requires dues 

revocations to occur only at yearly intervals after the first year of the assignment. 

(Pet’r Br. 33.) The Unions’ arguments fail for several reasons. 

As an initial matter, the Unions have not met the high bar necessary to resort 

to legislative history to interpret § 7115(a). “[O]nly rarely have we relied on legislative 

history to constrict the otherwise broad application of a statute indicated by its text, 

and just recently we reiterated that ‘[w]hile such history can be used to clarify 

congressional intent even when a statute is superficially unambiguous, the bar is 

high.’” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003) (citations 

omitted); Va. Dep’t of Med. Assistance Servs., 678 F.3d 918, 923 (D.C. Cir. 2012) (“This 

case does not present the very rare situation where the legislative history of a statute is 

more probative of congressional intent than the plain text.”) (internal quotation 

omitted); Mingo Logan Coal Co. v. U.S. P.A., 714 F.3d 608, 616 (D.C. Cir. 2013) (same); 

Nat. Res. Def. Council v. Envtl. Prot. Agency, 489 F.3d 1250, 1258 (D.C. Cir. 2007) 

(same). Here, the text of § 7115(a) is plain, and does not speak to revocation of dues 

assignments after an initial period “of [one] year.” 

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But more fundamentally, the legislative history cited by the Unions supports 

the Authority’s interpretation of § 7115(a), not the Unions’. If Congress intended 

union dues assignments to be revocable at one-year intervals, it knew how to 

incorporate that requirement into the law. With § 7115(a), it deliberately chose not to 

do so. The version of the Statute passed by the Senate included language similar to 

that of Executive Order 11,491, which had governed the issue prior to the Statute. 

The Senate’s proposed language “provided that assignments of dues allotments ‘shall 

be revocable at stated intervals of not more than 6 months.’” Army, 7 FLRA at 197 

(emphasis added) (quoting Legislative History of the Federal Service Labor-Management 

Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Congress, 1st Sess., 

Committee Print No. 96-7 (November 19, 1979), at 539 & 599-600 (“Legis. Hist.”) 

(available at: https://go.usa.gov/xPfNk)). 

Crucially, however, the language referring to dues assignments being revocable 

at “intervals of not more than 6 months” was dropped by the conference committee 

and does not appear in the final version of § 7115(a). Id. at 198 (citing Legis. Hist. at 

823). That is, Congress removed the reference to “intervals” in favor of language 

providing that dues “assignments may not be revoked for a period of [one] year.” 5 

U.S.C. § 7115(a). Thus, the version of § 7115(a) passed by Congress and signed into 

law contains no reference to revocation at intervals. The legislative history shows 

Congress’s choice was deliberate, because it had considered language that would 

permit dues revocation only at specified intervals and purposefully chose very 

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different language providing for a one-year period of irrevocability. The Statute’s 

legislative history thus reflects what the text makes plain: Congress did not intend for 

dues assignments to be revocable only at one-year intervals, but rather at any time 

after the first year of the assignment.

Indeed, Army itself recognized that the parts of the legislative history “which 

did advert to the revocability language” of § 7115(a) do “not shed light on its 

intended meaning.” Army, 7 FLRA at 198 n.13 (emphasis added) (citing Legis. Hist. 

at 879-80 (Statement of Rep. Erlenborn) and 907 (Statement of Rep. Collins)). Thus, 

the Authority correctly noted in its Policy Statement, Army “made a policy judgment 

to impose annual revocation periods after the first year of an assignment” that was 

disconnected from § 7115(a)’s legislative history. (JA 64-65.) As the Authority 

explained in promulgating the Final Rule,

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 duesdeduction assignments must allow employees to ‘‘revoke [an] 

authorization at stated six-month intervals,’’ Army, id. at 196, 

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).

(JA 118 (emphasis added).)

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The Unions’ claim that the legislative history supports their reading of 

§ 7115(a) relies almost entirely on a single sentence from the House Committee 

Report. (Pet’r Br. 33.) That sentence says that § 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’).” (Pet’r Br. 33 (quoting Army, 7 FLRA at 197 (quoting, in 

turn, Legis. Hist. at 694)).) That lone sentence, however, neither states nor implies 

that dues authorizations may only be revoked at one-year intervals. Indeed, it says 

nothing about dues revocation at all, but merely describes the overall dueswithholding scheme created by § 7115. 

Under that scheme, an employee’s written assignment authorizing dues 

deductions must be honored by the agency pursuant to the first sentence of § 

7115(a)—and that is not affected by the Authority’s Policy Statement or Final Rule. 

In addition, under the Authority’s Policy Statement and Final Rule, even the employee 

cannot choose to revoke that assignment for an initial one-year period—creating a 

“guarantee of withholding” so strong that not even the employee can alter it for an 

initial one-year period. (Pet’r Br. 33.) Thus, the Authority’s interpretation of § 

7115(a) in the Policy Statement and the Final Rule “reflect[] a compromise between . . 

. no guarantee of withholding for any unit employee and mandatory payment by all 

unit employees (‘agency shop’).” (Pet’r Br. 33 (quoting Army, 7 FLRA at 197 

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(quoting, in turn, Legis. Hist. at 694)).) Far from being a system where there is “no 

guarantee of withholding for any employee,” (Pet’r Br. 33) the Authority’s 

interpretation of § 7115(a) in the Policy Statement and Final Rule would guarantee 

withholding 1) during the first year of the assignment and 2) continuing for so long as 

the unit member authorizes it. The only difference from Army is that the Policy 

Statement and Final Rule would not limit employees’ opportunity to revoke 

assignments to confusingly-defined one-year anniversary intervals. 

Even more tenuously, the Unions cite a Civil Service Commission (“CSC”) 

interim guidance document from 1978. (Pet’r Br. 34.) That CSC guidance document 

provides that, on or before January 11, 1979 (the effective date of the Statute), 

“agencies should inform employees affected of the elimination of the semi-annual 

revocation periods” and “explain that after the next available six-month revocation 

date established by the applicable [CBA], any future revocation can only be at oneyear intervals from that date.” Army, 7 FLRA at 202 n. 16 (quoting CSC Bulletin 711-

48, Special Bulletin No. 10, at 4 (Dec. 28, 1978)). The Unions call this a 

“contemporaneous construction of the statute by those presumed to have been aware 

of congressional intent” that should carry “particular force.” (Pet’r Br. 34 (quoting 

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 54 (2011)).) 

But CSC’s interim guidance document carries no force and warrants no 

deference. The now-defunct CSC (whose functions were mostly transferred to OPM)

was never responsible for administering the Statute; that function belongs exclusively 

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to the Authority. BATF, 464 U.S. at 97; Ass’n of Civilian Techs., Mont. Air Chapter No. 

29, 22 F.3d at 1153. Courts do not defer to interpretations of the Statute offered by 

agencies other than the Authority. Am. Fed’n of Gov’t Emps,, AFL-CIO, Local 3669 v. 

Shinseki, 709 F.3d 29, 33 (D.C. Cir. 2013) (refusing to defer to the Department of 

Veterans Affairs’ interpretation of the Statute); Office of Pers. Mgmt. v. FLRA, 864 F.2d 

165, 167 (D.C. Cir. 1988) (“Because section 7117(a)(1) is part of the Authority’s 

enabling legislation, and not OPM’s, we owe deference primarily to the [Authority]’s 

construction of that section.”).

Indeed, Mayo Foundation and National Muffler, the two cases cited by the Unions 

(Pet. Br. at 34), both emphasize that very point—courts do not defer to interpretations 

of statutes offered by agencies that are not charged with administering them. Mayo 

Found., 562 U.S. at 58 (In determining whether Chevron deference should apply, “the 

ultimate question is whether Congress would have intended, and expected, courts to 

treat [the regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ 

authority.”); Nat’l Muffler Dealers Ass’n, Inc. v. United States, 440 U.S. 472, 476-77 (1979) 

(Deference is only warranted where an interpretive rule is promulgated by the agency 

“responsible for putting the rule[] into effect.”). 

Even more fundamentally, CSC’s 1978 bulletin provided no explanation for its 

conclusion that “after the next available six-month revocation date established by the 

applicable [CBA], any future revocation can only be at one-year intervals from that 

date.” Army, 7 FLRA at 202 n.16 (quoting CSC Bulletin 711-48, Special Bulletin No. 

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10, at 4). CSC’s 1978 bulletin thus carries no weight, both because the CSC never 

administered the Statute and because CSC offered no reasoning or justification for its 

conclusion regarding what the Statute requires.3

The Unions claim that “Congress has legislatively ratified the statutory 

construction adopted in Army” because it has subsequently amended other parts of 

the Statute but not § 7115(a). The Unions cite the “ratification doctrine” set forth in 

Lorillard v. Pons, 434 U.S. 575, 580 (1978), which holds that “Congress is presumed to 

be aware of an administrative or judicial interpretation of a statute and to adopt that 

interpretation when it re-enacts a statute without change.” The ratification doctrine 

has two components: the statutory text must be re-enacted without change, and there 

must be a judicial consensus regarding the re-enacted language that is “so broad and 

unquestioned that we must presume Congress knew of and endorsed it.” Jama v. 

Immigration & Customs Enf’t, 543 U.S. 335, 349 (2005). 

Here, neither condition obtains. Congress has not re-enacted § 7115(a), nor 

does § 7115(a) contain text that was reenacted from another statute (indeed, as noted 

 3 The Unions cite Catawba County v. Environmental Protection Agency, 571 F.3d 20, 35 

(D.C. Cir. 2009) (per curiam) (Pet’r Br. 31) for the proposition that “a statute may 

foreclose an agency’s preferred interpretation despite such textual ambiguities if its 

structure, legislative history, or purpose makes clear what its text leaves opaque.” But 

here, both the text of § 7115(a) and its legislative history support the Authority’s—not 

the Unions’—interpretation of § 7115(a). Thus, the next sentence of Catawba County 

applies equally here: “Notwithstanding petitioners’ torrent of arguments to the 

contrary, this is not such a case—indeed, it isn't even close.” 

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above, Congress specifically chose not to include the “intervals” language of Executive 

Order 11,491 in § 7115(a)). Instead of pointing to re-enacted statutory text, the 

Unions cite amendments to other parts of the Statute that have nothing to do with 

dues revocation: amendments designating the Authority’s Chairman as Chief 

Executive Agency Officer to improve its internal administration,4 adding the 

Smithsonian Institution to the list of agencies covered by the Statute,5 and addressing 

limits on back-pay awards.6 (Pet’r Br. 35.) There is no evidence that “Congress knew 

of and endorsed” Army when it passed those unrelated amendments.

This case is thus very far afield from Lorillard, where Congress incorporated 

specific language regarding civil suits from the Fair Labor Standards Act (“FLSA”) 

verbatim into the Age Discrimination in Employment Act (“ADEA”). 434 U.S. at 

579-80. The Supreme Court observed that in passing ADEA, “Congress exhibited 

both a detailed knowledge of the FLSA provisions and their judicial interpretation and 

a willingness to depart from those provisions regarded as undesirable or inappropriate 

for incorporation.” Id. at 581. Thus, it was logical to conclude that by intentionally 

incorporating specific language verbatim from the FLSA into the ADEA, Congress 

 4 Civil Service Miscellaneous Amendments Act of 1983, Pub. L. No. 98-224, §§ 3-4, 

98 Stat. 47, 47-48 (amending Sections 7104 and 7122).

5 Workforce Investment Act of 1998, Pub. L. No. 105-220, § 341(e), 112 Stat. 936, 

1092 (amending Section 7103).

6 Strom Thurmond National Defense Authorization Act for FY 1999, Pub. L. No. 

105-261, Div A, Title XI, § 1104(b), 112 Stat. 1920, 2142 (1998) (amending section 

7121).

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meant to incorporate previous judicial interpretations of that specific language. Here, 

there is no reason to presume that unrelated amendments to the Statute having 

nothing to do with dues revocations were intended to ratify or endorse Army. See 

Braeburn Inc. v. U.S. Food & Drug Admin., 389 F. Supp. 3d 1, 27 (D.D.C. 2019); United 

States v. Blavatnik, 168 F. Supp. 3d 36, 49–50 (D.D.C. 2016).

As neither the text nor the legislative history of § 7115(a) supports the Unions’ 

interpretation, the Court should defer to the Authority’s Policy Statement and Final 

Rule. See Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc., 470 U.S. 116, 129 (1985).

C. The Authority’s decision to fill the silence Congress left with 

respect to when employees may revoke union dues after the first 

year of the assignment was consistent with the Statute’s structure 

and purpose.

Having discarded the untenable interpretation of § 7115(a)’s text and legislative 

history set forth in Army and correctly determined that the Statute is silent on 

employee-initiated dues revocations that occur after the first year of the assignment, 

the Authority properly decided to fill the gap in the statutory scheme through 

rulemaking. (JA 65.) The Authority had the clear power under the Statute to do so. 

See 5 U.S.C. §§ 7105(a)(1) (“The Authority shall provide leadership in establishing 

policies and guidance relating to matters under” the Statute “and, except as otherwise 

provided, shall be responsible for carrying out [its] purpose[.]”); 7105(a)(2)(I) (“The 

Authority shall . . . take such other actions as are necessary and appropriate to 

effectively administer the provisions of” the Statute.); 7134 (“The Authority . . . . shall 

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30

. . . prescribe rules and regulations to carry out the provisions of this chapter 

applicable to [it].”). 

The Unions argue that the Authority’s Policy Statement and Final Rule conflict 

with the Statute’s structure. (Pet’r Br. 36-40.) In particular, they contend that the 

Statute creates a broad obligation to bargain over all “conditions of employment,” 

with certain expressly-defined exceptions. (Pet’r Br. 36-37.) But one of the Statute’s 

express exceptions is that the duty to bargain does not extend to matters that are 

“inconsistent with any . . . Government-wide rule or regulation.” See 5 U.S.C. 

§ 7117(a)(1). And the Statute gives the Authority broad power to “provide leadership 

in establishing policies and guidance relating to matters under” the Statute, id.

§ 7105(a)(1), to take actions that “are necessary and appropriate to effectively 

administer the provisions of” the Statute, id. § 7105(a)(2)(I), and to “prescribe rules 

and regulations to carry out” the Statute’s provisions, id. § 7134. Section 7134, in 

particular, gives the Authority “broad authority . . . to promulgate regulations that 

carry out the [S]tatute’s provisions.” Eisinger, 218 F.3d at 1100; see also Nat’l Cable & 

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980–81 (2005) (holding that 

similar language in the Communications Act of 1934 gave the FCC “the authority to 

promulgate binding legal rules”); Buckley v. Valeo, 424 U.S. 1, 110 (1976) (per curiam) 

(similar language in the 1974 amendments to the Federal Election Campaign Act of 

1971 gave the Federal Election Commission “extensive rulemaking . . . powers”); In re 

Permanent Surface Min. Regulation Litig., 653 F.2d 514, 521 (D.C. Cir. 1981) (describing 

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similar language in the Surface Mining Control and Reclamation Act of 1977 as “a 

general rulemaking grant typical of statutes that, like the Act, delegate extensive 

responsibilities to administrative agencies”).

As the Authority noted in issuing the Final Rule, “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.” (JA 118.) Further, “there 

is no basis in the Statute for finding that Congress intended for § 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.” (JA 118.)

In short, the Authority’s issuance of the Final Rule did not conflict in any way 

with the Statute’s scheme. Instead, it fulfilled Congress’s expectation that the 

Authority would exercise broad powers to “provide leadership in establishing policies 

and guidance relating to” the Statute, to take actions “necessary and appropriate to 

effectively administer” the Statute, and to “prescribe rules and regulations to carry out 

the provisions of” the Statute. 5 U.S.C. §§ 7105(a)(1) & (2)(I), 7134. While the 

Unions may disagree with the Authority’s decision to exercise its rulemaking powers 

in the way that it did, that decision was entirely consistent with the Statute.

The Authority’s decision to issue the Final Rule was plainly reasonable and 

advanced important statutory purposes. The Final Rule specifies that employees may 

revoke dues assignments at any time after the first year. (JA 120-21.) In so doing, the 

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Final Rule provides certainty to all parties and a clear, government-wide rule for all 

agencies, instead of leaving the federal workforce at the mercy of a confusing 

patchwork of differing dues-revocation rules. (JA 120-21.) Indeed, the necessity for 

the Final Rule is demonstrated by arguments made by the Unions in their opposition 

to the Authority’s motion to dismiss the Policy Statement petitions, in which they 

decried confusion over when employees could revoke dues assignments and the 

additional burden that negotiations on that issue would impose upon them. (See

Petitioners’ Response in Opposition to Respondent’s Motion to Dismiss, at 23-24, 

No. 20-1038, (D.C. Cir. May 28, 2020), Document #1844719.) 

In addition to providing certainty and stability, the Final Rule advances another 

important purpose of the Statute: “assur[ing] employees the fullest freedom in the 

exercise of their rights under the Statute, including their rights under [S]ections” 7102, 

7115, and 7116 of the Statute. (JA 119.) In particular, while “[n]egotiated delays in 

processing revocation forms may provide benefits to unions or agencies . . . they do 

not benefit individual employees.” (JA 119.) Indeed, s the Authority noted, such 

negotiated delays could seriously impair the free exercise of employee rights protected 

by the Statute. (JA 119 (citing Dep’t of the Navy, Naval Underwater Sys. Ctr., Newport, 

R.I., 16 FLRA 1124, 1126–27 (1984) (finding that agency committed an unfair labor 

practice by impeding the processing of revocation forms) and AFGE, Local 2192, 

AFL–CIO, 68 FLRA 481, 482–84 (2015) (finding that union committed an unfair 

labor practice by impeding the processing of revocation forms)).); 5 U.S.C. § 7102 

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(providing that each employee shall have the right to refrain from joining or assisting 

a labor organization). 

The Authority’s Final Rule thus “further[s] important policies underlying the 

Statute, such as robustly protecting employees’ rights and freedoms, and guarding 

unions’ institutional interests in a clear and effective procedure for collecting dues” 

and represents “a reasonable balance between competing interests.” (JA 65.) While 

the Final Rule does not represent “the only possible balance that could be struck 

among competing interests,” it is the balance that the Authority, in the exercise of its 

congressionally-delegated power to craft legislative rules, 5 U.S.C. § 7134, found to 

best fulfill the Statute’s purposes. (JA 120.)

Although the Unions cite the Statute’s recognition in § 7101 that collective 

bargaining is in the public interest (Pet’r Br. 38), it is well-settled that the Statute 

“serve[s] a variety of purposes,” including “strengthen[ing] the authority of federal 

management to hire and discipline employees” while protecting “the right of 

employees to organize (and) bargain collectively.” Dep’t of Def. v. FLRA, 659 F.2d 

1140, 1145 (D.C. Cir. 1981) (citation omitted). Congress clearly intended that the 

Authority would be responsible for balancing those competing interests—as it did in 

this case. BATF, 464 U.S. at 97; Ass’n of Civilian Techs., Mont. Air Chapter No. 29, 22 

F.3d at 1153.

The Unions’ citation to King v. Burwell, 576 U.S. 473 (2015) is inapposite. (Pet’r 

Br. 39.) King noted that Chevron deference “is premised on the theory that a statute’s 

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ambiguity constitutes an implicit delegation from Congress to the agency to fill in the 

statutory gaps.” 576 U.S. at 485 (quoting FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120, 159 (2000)). But, the Court noted, “[i]n extraordinary cases . . . there 

may be reason to hesitate before concluding that Congress has intended such an 

implicit delegation.” Id. King was such a case, because it involved a rule interpreting 

the Affordable Care Act (“ACA”) issued by the Internal Revenue Service (“IRS”), and 

Congress did not expressly delegate interpretive authority over the ACA to the IRS. 

Id. at 486. Moreover, King observed, it was unlikely that Congress meant to delegate 

such authority to the IRS implicitly, because the IRS “has no expertise in crafting 

health insurance policy.” Id. 

The contrast between King and this case could hardly be more stark. The 

Authority issued the Final Rule pursuant to express rulemaking authority in § 7134 of 

the Statute, not implicit rulemaking authority. So too, it issued its Policy Statement 

pursuant to its express authority in § 7105(a)(1) to “provide leadership in establishing 

policies and guidance relating to” the Statute. There can be no question that Congress 

meant to delegate these powers to the Authority; it did so explicitly in the Statute. 

And, unlike King, here the Authority interpreted a statute on which it has 

unquestioned expertise. BATF, 464 U.S. at 97; Ass’n of Civilian Techs., Mont. Air 

Chapter No. 29, 22 F.3d at 1153. Thus, this is not an “extraordinary case” where there 

may be reason to doubt that Congress meant to authorize the Authority to interpret § 

7115(a) or promulgate rules regarding dues revocation. 

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The Unions’ citation to Office of Personnel Management v. FLRA, 864 F.2d 165, 

168 (D.C. Cir. 1988) is similarly inapposite. At issue in that case was whether an 

agency subject to the Statute and the Authority’s jurisdiction could promulgate a rule 

that would effectively nullify § 7106(b)(3) of the Statute, which requires agencies to 

negotiate over appropriate arrangements concerning an agency’s exercise of its 

management rights. In this case, by contrast the Final Rule does not nullify any part 

of the Statute, but instead fills a narrow statutory gap on a matter on which § 7115(a) 

is silent: employee-initiated dues revocations that occur after the first year of an 

assignment. The Unions’ claim that the Final Rule represents such a fundamental 

change to the statutory scheme as to effectively nullify § 7115(a) and the Statute’s 

general duty to bargain must therefore be rejected.

II. The Policy Statement and Final Rule are based upon a permissible 

construction of the Statute that is neither arbitrary or capricious 

The Authority did not lightly issue either the Policy Statement or Final Rule. 

Before even deciding to issue the Policy Statement, the Authority requested 

comments from interested parties. After issuing its Policy Statement, the Authority 

again requested comments concerning the proposed dues-revocation regulation that it 

was considering. Only after conducting a full review and analysis of all of the 

comments it had received did the Authority issue the Final Rule. The final regulation, 

promulgated at 5 C.F.R. § 2429.19, was accompanied by the Authority’s extensive and 

detailed responses to 17 categories of comments. (See JA 117-20.) While the Unions 

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may not agree with the Policy Statement and Final Rule, they cannot demonstrate that 

either was arbitrary or capricious.

A. The Authority adequately explained its interpretation of Section 

7115(a) and addressed the Unions’ “reliance interests.”

Contrary to the Unions’ claim (Pet’r Br. 42-46), the Authority fully explained 

the reasons why it interpreted § 7115(a) as it did and why it was departing from Army. 

And both the Policy Statement and the Final Rule addressed any reliance interests the 

Union may have had in maintaining the rule of Army. That is all the Authority was 

required to do under Chevron step two and this Court’s precedent.

This Court has recognized the right of agencies to change their interpretations 

of their implementing statutes. The Authority’s decision to overrule Army does not 

diminish the deference owed to the Authority’s interpretation. See FCC v. Fox 

Television Stations Inc., 556 U.S. 502, 515 (2009); Local 32, Am. Fed’n of Gov't Emps., 

AFL-CIO v. FLRA, 774 F.2d 498, 501 (D.C. Cir. 1985) (“Local 32”). The Court will 

still afford the Authority’s interpretation deference so long as it supplies “a reasoned 

analysis indicating that prior policies and standards are being deliberately changed, not 

casually ignored.” Nat’l Fed’n of Fed. Emps. v. FLRA, 369 F.3d 548, 553 (D.C. Cir. 

2004) (citations omitted); see also Local 32, 774 F.2d at 502. Ultimately, “the Authority 

must provide a rational explanation for its decision but in reviewing [Authority orders] 

. . . the court recognizes that such determinations are best left to the expert judgment 

of the Authority.” Nat’l Treasury Emps. Union v. FLRA, 745 F.3d 1219, 1224 (D.C. 

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Cir. 2014) (internal quotations omitted); see also Ass’n of Civilian Techs. v. FLRA, 353 

F.3d 46, 50 (D.C. Cir. 2004) (“We therefore . . . defer to the Authority’s reasonable 

interpretations of the Statute and its resulting negotiability determinations.”). 

The Authority did just this in both the Policy Statement and Final Rule. The 

Authority first explained that in reviewing § 7115(a), 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.’’ (JA 64 (quoting 

5 U.S.C. 7115(a)); JA 117.) The Authority then explained that Army’s interpretation of 

§ 7115(a) was untenable because it was based “almost exclusively on legislative 

history,” when the text of § 7115(a) is silent on employee-initiated dues revocations 

that occur after “a period of [one] year.” (JA 117.) In particular, Army improperly 

sought to use legislative history to add a requirement that employee-initiated dues 

revocations may only occur at yearly intervals, when such a requirement appears 

nowhere in the statutory text. The Authority correctly reasoned 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.’’’ (JA 65 n.23 

(quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)); JA117.) 

Moreover, Army’s purported reliance on legislative history was flawed because 

(as Army itself acknowledged) the legislative history concerning § 7115(a) is (at best) 

ambiguous. Army, 7 FLRA at 198 n.13 (emphasis added) (observing that the parts of 

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the legislative history “which did advert to the revocability language” of § 7115(a) do 

“not shed light on its intended meaning”). In the Final Rule, the Authority explained 

that even if the legislative history of § 7115(a) was relevant, that history supported its 

conclusions. (JA 117-18.) It noted that both a previous Executive Order and the 

Senate version of § 7115(a) provided that employees could revoke dues at six month 

intervals. (JA 118.) The final version of § 7115(a) provided that dues could not be 

revoked “for a period of [one] year” and does not mention intervals at all. (JA 118.) 

Thus, the Authority reasonably determined that “Army improperly grafted an intervalbased evocation restriction onto the wording of section 7115(a)” (JA 118) and its 

statutory interpretation disguised what was in fact “a policy judgment to impose 

annual revocation periods after the first year of an assignment.” (JA 64-65.) 

In making those determinations, the Authority considered and addressed the 

Unions’ claimed “reliance interests,” their argument to the contrary notwithstanding. 

(Pet’r Br. 42-44.) First, the Authority made clear in the Final Rule that it affects only 

assignments authorized on or after the effective date of the Final Rule. (JA 118.) 

Second, the Authority explained that the Final Rule would not affect “dues-assignment 

and assignment-revocation procedures that are included in collective-bargaining 

agreements that are currently in force.” (JA 118.) The Authority reassured the 

Unions that the Final Rule would be treated as any other government-wide rule, i.e. 

the Final Rule would not become effective in agencies with such CBAs until after the 

current CBAs expire. (JA 118.) Third, the Authority addressed concerns, raised by the 

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Unions in opposition to the Authority’s Motion to Dismiss, that the Unions would 

suffer harm by having to negotiate with agencies over dues revocation. (Petitioners’ 

Response in Opposition to Respondent’s Motion to Dismiss, at 23-24, No. 20-1038, 

(D.C. Cir. May 28, 2020), Document #1844719.) It did so by clarifying that the 

revocation could occur at any time after the first year of an assignment. 

Finally, the Authority responded to the Unions’ concern that the Final Rule 

would inhibit their financial planning. (JA 119.) It explained that under the Final 

Rule, the Unions would still enjoy the “the certainty of the first year of irrevocability 

under section 7115(a).” (JA 119.) Moreover, it observed that the Final Rule did not 

require employees to revoke dues assignments after one year, or provide employees 

with an incentive to do so. (JA 119.) Rather, the Authority explained, it was merely 

giving employees an option. (JA 119.) The Authority observed that even with the 

Final Rule, Unions were free to “enter into dues-payment arrangements outside the 

federal payroll system that would provide them a greater measure of funding 

predictability.” (JA 119.)

Thus, this is not a case where the Authority changed a policy requiring 

“‘systemic, significant changes’ to . . . parties’ operations and ‘when it came to 

explaining the good reasons for the new policy,’ the agency ‘said almost nothing.’” 

(Pet’r Br. 44 (quoting Encino Motor Cars, LLC v. Navarro, 136 S. Ct. 2117, 2127 

(2016)).) Instead, it is one where the Authority carefully considered a request that it 

received from an agency concerning a single issue, twice asked for comments as it 

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considered its decision in increments, and addressed the comments it received at great 

length. This Court should therefore defer to the Authority’s Policy Statement and 

Final Rule. 

B. The Policy Statement and Final Rule appropriately balance the 

interests of unions, agencies, and individual employees

 At all stages of its decisionmaking process, the Authority considered and 

sought a “reasonable balance between [the] competing interests” of federal unions, 

employees, and agencies. (JA 65.) Through that process, it designed a policy that was 

explicitly aimed at furthering “important policies underlying the Statute, such as 

robustly protecting employees’ rights and freedoms, and guarding unions’ institutional 

interests in a clear and effective procedure for collecting dues.” (JA 65.) The 

Authority recognized, however, “that the interests of bargaining-unit employees and 

unions are not one and the same when employees want to discontinue financial 

support to unions by stopping dues payments.” (JA 65.) Acknowledging that 

distinction does not reflect a “distorted view of employee rights.” (Pet’r Br. 46.) 

Instead, it merely reflects the Authority’s reasoned interpretation of the Statute, 

including the Statute’s protection of the right to refrain from supporting a union in § 

7102, and the very real frustration and confusion expressed by federal employees 

regarding dues-revocation procedures. (JA 119.) 

The Statute outlines specific rights for management (see § 7106) and unions (see

§§ 7111-7115). But the Statute also outlines the rights of individuals, both vis-à-vis 

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management and vis-à-vis their unions. Those rights include the right to be protected 

from unfair labor practices, including the right to refrain from joining or assisting a 

union. 5 U.S.C. §§ 7102, 7116 (a)(1), (b)(1).

The Statute also provides employees with the explicit right to choose whether 

to financially support their exclusive bargaining representative through dues 

assignments, or to revoke those assignments. 5 U.S.C. § 7115(a). While addressing at 

length their own interest in receiving dues (Pet’r Br. 42-46), the Unions overlook the 

fact that the Statute provides only for voluntary dues assignments. What the Unions 

fail to acknowledge, and what the Authority gleaned from public comments, is just 

how difficult it was for employees to exercise their right to revoke dues authorizations 

under the system that developed in the aftermath of Army.

While it may seem obvious, it is worth remembering that federal employees are 

human beings who have financial obligations outside of their union membership. 

Commenters who supported the Authority’s interpretations of the law explained that 

they valued their union membership, and believed that the interpretation was “pro 

worker” because it gave employees the choice to join or leave the union at will. (JA 

57, 62, 116.) Employees noted that there were times when union members needed to 

withdraw from membership (even temporarily) because of personal financial 

circumstances. (JA 48, 54, 110, 114, 116.) Many commenters wrote of the difficulties 

they encountered when they attempted to revoke their dues assignments, because 

there were short revocation windows, and because they often did not know the 

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anniversary of their assignments. (JA 47, 48, 49, 50, 51, 54, 56, 59, 60, 61, 106-08, 

110, 114-15, 116.) Some wrote that their union was unwilling to provide this 

information and/or assist in processing requests. (JA 47, 52, 60, 61, 106-08, 116.)

The confusion and challenges faced by federal employees seeking to revoke 

their dues authorizations are understandable, given the system that developed 

following Army. As the Authority observed, 

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). 

(JA 118.) 

This means that to revoke their dues assignments, employees must know not 

only the date on which they first made a dues assignment, but also how long they 

have, before or after that anniversary, to revoke that assignment. (Id.; see also

Supplemental Appendix (“SA”) 6.) If the employee does not know, they must then 

rely upon the ability of either their human resources division, payroll provider, or 

exclusive representative to provide them with that information. And, as some 

commenters pointed out, unions have a financial interest in not having a member’s 

assignment revoked. (JA 61, 110.)

The Authority recognized these concerns, but also recognized the Unions’ 

institutional interests and rights under § 7115(a). It therefore adopted an approach 

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that was consistent with the plain language of the Statue—permitting employees to 

revoke dues any time, but only after the first year of the assignment. Contrary to the 

Unions’ claims, the Final Rule protected their institutional rights. The Final Rule 

reaffirms the Unions’ rights to a guaranteed first year of dues assignments. (JA 120-

21.) It does not provide an incentive for employees to revoke their assignments after 

the first year or require employees to reauthorize their assignments after the first year. 

(JA 119.) Nor does it prohibit Unions from “developing dues-payment arrangements 

outside the federal payroll system that would provide them a greater measure of 

funding predictability.” (JA 119.) The Final Rule simply gives federal employees 

greater control over the deductions from their paychecks after the first year of their 

dues assignments.

Other arguments put forward by the Unions are similarly without merit. While 

the Final Rule may prevent Unions from negotiating about dues revocations in the 

future (Pet’r Br. 46-47), the Final Rule does not affect the validity of current CBAs. 

(JA 118.) Nor does the Final Rule require the Unions to negotiate about the issue, 

which the Unions claimed was an irreparable harm in their opposition to the 

Authority’s Motion to Dismiss the Policy Statement petitions. (See Petitioners’ 

Response in Opposition to Respondent’s Motion to Dismiss, at 23-24, No. 20-1038, 

(D.C. Cir. May 28, 2020), Document #1844719.)

The Unions’ claim that the Final Rule limits the right of employees to “join

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and assist their union” (Pet’r Br. 47) is simply wrong. The Policy Statement and Final 

Rule in no way impair the ability of employees to join or assist a union. They address 

only the narrow issue of when, after the first year of a dues assignment, employees may 

revoke those assignments. Nor does the Final Rule inhibit employees’ ability to 

contract with their Unions. Employees are free to allocate dues from their first date 

of eligibility for membership through their separation from service. The Final Rule 

simply clarifies that those employees may, if they choose, revoke an assignment at any 

time after the first year of the assignment. 

To the extent that the Unions are attempting to claim that the Final Rule limits 

employee contract rights because employees cannot give their unions consideration in 

the form of year-over-year assignments renewal (Pet’r Br. 47), that claim is off-base. 

Again, the Final Rule does nothing to impede the ability of employees to pay union 

dues throughout the course of their federal service if they wish to do so. Moreover, 

the Final Rule (and Statute) provide unions with a very concrete form of 

consideration: the guarantee that employees cannot revoke dues assignments for one 

year.

The Authority’s decision to consider the rights of both individual employees 

and unions vis-à-vis dues collection was neither arbitrary nor capricious, and this 

Court should defer to that decision.

C. The Authority addressed, and reasonably rejected, NTEU’s 

“alternative” proposal

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45

The Unions claim that the Authority failed to consider NTEU’s argument, 

presented in its public comment, that the Authority should look to case law under the 

NLRA allowing employees to obligate themselves to pay union dues even after they 

leave a union. (Pet’r Br. 48-49; see also JA 83-86 (NTEU comment urging the 

Authority to look to NLRB case law).) But the Authority specifically considered, and 

reasonably rejected, NTEU’s contentions when it issued the Final Rule. (JA 120.) 

As the Authority pointed out in the Final Rule, this Circuit has squarely 

rejected the notion that NLRB precedent has relevance in interpreting § 7115(a). (JA 

120 (citing Am. Fed’n of Gov’t Emps., Council 214, AFL-CIO v. FLRA, 835 F.2d 1458, 

1461 (D.C. Cir. 1987) (“Council 214”).) In Council 214, this Court found that it has

“cautioned against an inappropriate reliance on private labor precedents in litigation 

concerning the [Statute].” Council 214, 835 F.2d at 1461. That is because “labormanagement relations in the public and private sectors are determined by different 

statutory provisions and by different policy considerations.” Id. (internal quotation 

marks omitted). “Thus, private labor cases are relevant only when they involve 

statutory provisions and policy considerations comparable to those governing labor 

relations under the [Statute].” Id. (emphasis in original).

Council 214 determined that § 7115(a) “has no counterpart in the [NLRA].” Id. 

It noted that, unlike the federal sector, “[i]n private cases, dues withholding is a matter 

reserved for collective bargaining.” Id. And, in the private sector, the withholding 

employer “acts primarily for the benefit of the union” and “as the union’s agent” in 

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46

administering dues withholding. Id. In sharp contrast, in the federal sector, 

“withholding is authorized by statute and is made at the explicit request of the 

employee.” Id. “The union has no role in negotiating the checkoffs, and the 

withholding employer acts solely as the employee’s agent.” Id. 

Thus, as Council 214 explained at length, the dues-withholding scheme created 

by § 7115(a) has no analogue in the NLRA and is fundamentally different from dueswithholding scheme in the private sector. The Authority’s citation to this Court’s 

forceful rejection of analogies between dues-withholding under § 7115(a) and under 

the NLRA was more than sufficient to justify rejecting NTEU’s proposal to import 

rules and concepts from NLRA case law into federal-sector dues-withholding. (JA 

120.) 

But, even on its own terms, the NLRB case on which the Unions rely does not 

show that the Final Rule was arbitrary or capricious. In International Brotherhood of 

Electrical Workers, Local No. 2088, AFL-CIO (Lockheed Space Ops. Co.), 302 NLRB 322, 

328 (1991), the NLRB held that there must be a “clear and unmistakable” waiver of 

the right to revoke a dues assignment before a continuing obligation to pay dues 

against an unwilling employee could be enforced. As NTEU acknowledged in its 

comment, if dues can be made irrevocable for rolling annual periods, employees may 

be confused as to when they can revoke those assignments. (JA 85.) 

The Authority’s decision to address that employee confusion (which was 

echoed by several other commenters) in its Final Rule was in no way arbitrary or 

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47

capricious. (JA 119; see also JA 47, 48, 51, 54, 60, 61, 106-08, 114-15, 116; SA 5.) The 

Authority found, based on the comments it received, that “negotiated procedures for 

determining anniversary dates and window periods were not easily decipherable to a 

layperson.” (Id. (citing SA 5).) That is the system that NTEU urged in its comment 

(JA 80-87), and the Authority articulated at length its reasons for rejecting such a 

scheme. (JA 119.) 

Given the deference that this Court owes to the Authority when it interprets 

the Statute and makes rules to carry out its purposes, and the care with which the 

Authority developed the Policy Statement and Final Rule, the Court should deny the 

Petitions.

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that the Court 

deny the Petitions. 

Respectfully submitted,

/s/Noah Peters

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

Federal Labor Relations Authority

1400 K Street, N.W.

Washington, DC 20424

(202) 218-7908

February 5, 2021

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48

FED. R. APP. P. RULE 32(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this brief is 

double-spaced (except for extended quotations, headings, and footnotes) and is 

proportionally spaced, using Garamond font, 14-point type. Based on a word count 

of my word processing system, this brief contains fewer than 13,000 words. It 

contains 11,909 words excluding exempt material. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of February, 2021, I electronically filed the 

foregoing with the Clerk of the Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the CM/ECF system. I also certify that the 

foregoing document is being served on counsel of record and that service will be 

accomplished by the CM/ECF system. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

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ADDENDUM

Relevant Statutes and Regulations

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2

TABLE OF CONTENTS

Authority Page

5 U.S.C. § 706.............................................................................................................................3

5 U.S.C. § 7102...........................................................................................................................3

5 U.S.C. § 7104...........................................................................................................................4

5 U.S.C. § 7105(a)......................................................................................................................5

5 U.S.C. § 7106...........................................................................................................................6

5 U.S.C. § 7111...........................................................................................................................7

5 U.S.C. § 7112.........................................................................................................................10

5 U.S.C. § 7113.........................................................................................................................11

5 U.S.C. § 7114.........................................................................................................................12

5 U.S.C. § 7115(a)....................................................................................................................14

5 U.S.C. § 7116(a)(1), (2), (4), (b)(1)-(4), (c) ........................................................................14

5 U.S.C. § 7117(a), (c) .............................................................................................................15

5 U.S.C. § 7123(a), (c) .............................................................................................................17

5 U.S.C. § 7134.........................................................................................................................18

5 C.F.R. § 2427.2 .....................................................................................................................18

5 C.F.R. § 2427.5 (c), (f) .........................................................................................................19

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5 U.S.C. § 706

Scope of Review

To the extent necessary to decision and when presented, the reviewing court shall 

decide all relevant questions of law, interpret constitutional and statutory provisions, 

and determine the meaning or applicability of the terms of an agency action. The 

reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of 

statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 

556 and 557 of this title or otherwise reviewed on the record of an agency 

hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de 

novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or 

those parts of it cited by a party, and due account shall be taken of the rule of 

prejudicial error.

5 U.S.C. § 7102

Employees’ Rights

Each employee shall have the right to form, join, or assist any labor organization, or 

to refrain from any such activity, freely and without fear of penalty or reprisal, and 

each employee shall be protected in the exercise of such right. Except as otherwise 

provided under this chapter, such right includes the right--

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4

(1) to act for a labor organization in the capacity of a representative and the right, in 

that capacity, to present the views of the labor organization to heads of agencies and 

other officials of the executive branch of the Government, the Congress, or other 

appropriate authorities, and

(2) to engage in collective bargaining with respect to conditions of employment 

through representatives chosen by employees under this chapter.

5 U.S.C. § 7104

Federal Labor Relations Authority

(a) The Federal Labor Relations Authority is composed of three members, not more 

than 2 of whom may be adherents of the same political party. No member shall 

engage in any other business or employment or hold another office or position in the 

Government of the United States except as otherwise provided by law.

(b) Members of the Authority shall be appointed by the President by and with the 

advice and consent of the Senate, and may be removed by the President only upon 

notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office. 

The President shall designate one member to serve as Chairman of the Authority. The 

Chairman is the chief executive and administrative officer of the Authority.

(c) A member of the Authority shall be appointed for a term of 5 years. An individual 

chosen to fill a vacancy shall be appointed for the unexpired term of the member

replaced. The term of any member shall not expire before the earlier of--

(1) the date on which the member's successor takes office, or

(2) the last day of the Congress beginning after the date on which the member's 

term of office would (but for this paragraph) expire.

(d) A vacancy in the Authority shall not impair the right of the remaining members to 

exercise all of the powers of the Authority.

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(e) The Authority shall make an annual report to the President for transmittal to the 

Congress which shall include information as to the cases it has heard and the 

decisions it has rendered.

(f)(1) The General Counsel of the Authority shall be appointed by the President, by 

and with the advice and consent of the Senate, for a term of 5 years. The General 

Counsel may be removed at any time by the President. The General Counsel shall 

hold no other office or position in the Government of the United States except as 

provided by law.

(2) The General Counsel may--

(A) investigate alleged unfair labor practices under this chapter,

(B) file and prosecute complaints under this chapter, and

(C) exercise such other powers of the Authority as the Authority may 

prescribe.

(3) The General Counsel shall have direct authority over, and responsibility for, 

all employees in the office of General Counsel, including employees of the 

General Counsel in the regional offices of the Authority.

5 U.S.C. § 7105(a)

Powers and duties of the Authority

(a)(1) The Authority shall provide leadership in establishing policies and guidance 

relating to matters under this chapter, and, except as otherwise provided, shall be 

responsible for carrying out the purpose of this chapter.

(a)(2) The Authority shall, to the extent provided in this chapter and in accordance 

with regulations prescribed by the Authority--

(A) determine the appropriateness of units for labor organization representation 

under section 7112 of this title;

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6

(B) supervise or conduct elections to determine whether a labor organization has 

been selected as an exclusive representative by a majority of the employees in an 

appropriate unit and otherwise administer the provisions of section 7111 of this 

title relating to the according of exclusive recognition to labor organizations;

(C) prescribe criteria and resolve issues relating to the granting of national 

consultation rights under section 7113 of this title;

(D) prescribe criteria and resolve issues relating to determining compelling need 

for agency rules or regulations under section 7117(b) of this title;

(E) resolves issues relating to the duty to bargain in good faith under section 

7117(c) of this title;

(F) prescribe criteria relating to the granting of consultation rights with respect to 

conditions of employment under section 7117(d) of this title;

(G) conduct hearings and resolve complaints of unfair labor practices under 

section 7118 of this title;

(H) resolve exceptions to arbitrator's awards under section 7122 of this title; and

(I) take such other actions as are necessary and appropriate to effectively 

administer the provisions of this chapter.

5 U.S.C. § 7106

Management rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the 

authority of any management official of any agency--

(1) to determine the mission, budget, organization, number of employees, and 

internal security practices of the agency; and

(2) in accordance with applicable laws--

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(A) to hire, assign, direct, layoff, and retain employees in the agency, or to 

suspend, remove, reduce in grade or pay, or take other disciplinary action 

against such employees;

(B) to assign work, to make determinations with respect to contracting out, and 

to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from--

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission 

during emergencies.

(b) Nothing in this section shall preclude any agency and any labor organization from 

negotiating--

(1) at the election of the agency, on the numbers, types, and grades of employees 

or positions assigned to any organizational subdivision, work project, or tour of 

duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising 

any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of 

any authority under this section by such management officials.

5 U.S.C. § 7111

Exclusive Recognition of Labor Organizations

(a) An agency shall accord exclusive recognition to a labor organization if the 

organization has been selected as the representative, in a secret ballot election, by a 

majority of the employees in an appropriate unit who cast valid ballots in the election.

(b) If a petition is filed with the Authority--

(1) by any person alleging--

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8

(A) in the case of an appropriate unit for which there is no exclusive 

representative, that 30 percent of the employees in the appropriate unit 

wish to be represented for the purpose of collective bargaining by an 

exclusive representative, or

(B) in the case of an appropriate unit for which there is an exclusive 

representative, that 30 percent of the employees in the unit allege that 

the exclusive representative is no longer the representative of the 

majority of the employees in the unit; or

(2) by any person seeking clarification of, or an amendment to, a certification 

then in effect or a matter relating to representation; the Authority shall 

investigate the petition, and if it has reasonable cause to believe that a question 

of representation exists, it shall provide an opportunity for a hearing (for which 

a transcript shall be kept) after reasonable notice. If the Authority finds on the 

record of the hearing that a question of representation exists, the Authority 

shall supervise or conduct an election on the question by secret ballot and shall 

certify the results thereof. An election under this subsection shall not be 

conducted in any appropriate unit or in any subdivision thereof within which, 

in the preceding 12 calendar months, a valid election under this subsection has 

been held.

(c) A labor organization which--

(1) has been designated by at least 10 percent of the employees in the unit 

specified in any petition filed pursuant to subsection (b) of this section;

(2) has submitted a valid copy of a current or recently expired collective 

bargaining agreement for the unit; or

(3) has submitted other evidence that it is the exclusive representative of the 

employees involved may intervene with respect to a petition filed pursuant to 

subsection (b) of this section and shall be placed on the ballot of any election 

under such subsection (b) with respect to the petition.

(d) The Authority shall determine who is eligible to vote in any election under this 

section and shall establish rules governing any such election, which shall include rules 

allowing employees eligible to vote the opportunity to choose—

(1) from labor organizations on the ballot, that labor organization which the 

employees wish to have represent them; or

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9

(2) not to be represented by a labor organization.

In any election in which no choice on the ballot receives a majority of the votes cast, a 

runoff election shall be conducted between the two choices receiving the highest 

number of votes. A labor organization which receives the majority of the votes cast in 

an election shall be certified by the Authority as the exclusive representative.

(e) A labor organization seeking exclusive recognition shall submit to the Authority 

and the agency involved a roster of its officers and representatives, a copy of its 

constitution and bylaws, and a statement of its objectives.

(f) Exclusive recognition shall not be accorded to a labor organization--

(1) if the Authority determines that the labor organization is subject to corrupt 

influences or influences opposed to democratic principles;

(2) in the case of a petition filed pursuant to subsection (b)(1)(A) of this 

section, if there is not credible evidence that at least 30 percent of the

employees in the unit specified in the petition wish to be represented for the 

purpose of collective bargaining by the labor organization seeking exclusive 

recognition;

(3) if there is then in effect a lawful written collective bargaining agreement 

between the agency involved and an exclusive representative (other than the 

labor organization seeking exclusive recognition) covering any employees 

included in the unit specified in the petition, unless--

(A) the collective bargaining agreement has been in effect for more than 

3 years, or

(B) the petition for exclusive recognition is filed not more than 105 days and 

not less than 60 days before the expiration date of the collective bargaining 

agreement; or

(4) if the Authority has, within the previous 12 calendar months, conducted a 

secret ballot election for the unit described in any petition under this section 

and in such election a majority of the employees voting chose a labor 

organization for certification as the unit's exclusive representative.

(g) Nothing in this section shall be construed to prohibit the waiving of hearings by 

stipulation for the purpose of a consent election in conformity with regulations and 

rules or decisions of the Authority.

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5 U.S.C. § 7112

Determination of Appropriate Units for Labor Organization Representation

(a) The Authority shall determine the appropriateness of any unit. The Authority shall 

determine in each case whether, in order to ensure employees the fullest freedom in 

exercising the rights guaranteed under this chapter, the appropriate unit should be 

established on an agency, plant, installation, functional, or other basis and shall 

determine any unit to be an appropriate unit only if the determination will ensure a 

clear and identifiable community of interest among the employees in the unit and will 

promote effective dealings with, and efficiency of the operations of the agency 

involved.

(b) A unit shall not be determined to be appropriate under this section solely on the 

basis of the extent to which employees in the proposed unit have organized, nor shall 

a unit be determined to be appropriate if it includes--

(1) except as provided under section 7135(a)(2) of this title, any management 

official or supervisor;

(2) a confidential employee;

(3) an employee engaged in personnel work in other than a purely clerical 

capacity;

(4) an employee engaged in administering the provisions of this chapter;

(5) both professional employees and other employees, unless a majority of the 

professional employees vote for inclusion in the unit;

(6) any employee engaged in intelligence, counterintelligence, investigative, or 

security work which directly affects national security; or

(7) any employee primarily engaged in investigation or audit functions relating 

to the work of individuals employed by an agency whose duties directly affect 

the internal security of the agency, but only if the functions are undertaken to 

ensure that the duties are discharged honestly and with integrity.

(c) Any employee who is engaged in administering any provision of law relating to 

labor-management relations may not be represented by a labor organization--

(1) which represents other individuals to whom such provision applies; or

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(2) which is affiliated directly or indirectly with an organization which 

represents other individuals to whom such provision applies.

(d) Two or more units which are in an agency and for which a labor organization is 

the exclusive representative may, upon petition by the agency or labor organization, 

be consolidated with or without an election into a single larger unit if the Authority 

considers the larger unit to be appropriate. The Authority shall certify the labor 

organization as the exclusive representative of the new larger unit.

5 U.S.C. § 7113

National Consultation Rights

(a) If, in connection with any agency, no labor organization has been accorded 

exclusive recognition on an agency basis, a labor organization which is the exclusive 

representative of a substantial number of the employees of the agency, as determined 

in accordance with criteria prescribed by the Authority, shall be granted national 

consultation rights by the agency. National consultation rights shall terminate when 

the labor organization no longer meets the criteria prescribed by the Authority. Any 

issue relating to any labor organization's eligibility for, or continuation of, national 

consultation rights shall be subject to determination by the Authority.

(b)(1) Any labor organization having national consultation rights in connection with 

any agency under subsection (a) of this section shall--

(A) be informed of any substantive change in conditions of employment 

proposed by the agency, and

(B) be permitted reasonable time to present its views and recommendations 

regarding the changes.

(2) If any views or recommendations are presented under paragraph (1) of this 

subsection to an agency by any labor organization--

(A) the agency shall consider the views or recommendations before taking final 

action on any matter with respect to which the views or recommendations are

presented; and

(B) the agency shall provide the labor organization a written statement of the 

reasons for taking the final action.

(c) Nothing in this section shall be construed to limit the right of any agency or 

exclusive representative to engage in collective bargaining.

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5 U.S.C. § 7114

Representation Rights and Duties

(a)(1) A labor organization which has been accorded exclusive recognition is the 

exclusive representative of the employees in the unit it represents and is entitled to act 

for, and negotiate collective bargaining agreements covering, all employees in the unit. 

An exclusive representative is responsible for representing the interests of all 

employees in the unit it represents without discrimination and without regard to labor 

organization membership.

(2) An exclusive representative of an appropriate unit in an agency shall be 

given the opportunity to be represented at--

(A) any formal discussion between one or more representatives of the 

agency and one or more employees in the unit or their representatives 

concerning any grievance or any personnel policy or practices or other 

general condition of employment; or

(B) any examination of an employee in the unit by a representative of the 

agency in connection with an investigation if--

(i) the employee reasonably believes that the examination may 

result in disciplinary action against the employee; and

(ii) the employee requests representation.

(3) Each agency shall annually inform its employees of their rights under 

paragraph (2)(B) of this subsection.

(4) Any agency and any exclusive representative in any appropriate unit in the 

agency, through appropriate representatives, shall meet and negotiate in good 

faith for the purposes of arriving at a collective bargaining agreement. In 

addition, the agency and the exclusive representative may determine 

appropriate techniques, consistent with the provisions of section 7119 of this 

title, to assist in any negotiation.

(5) The rights of an exclusive representative under the provisions of this 

subsection shall not be construed to preclude an employee from--

(A) being represented by an attorney or other representative, other than the 

exclusive representative, of the employee's own choosing in any grievance or 

appeal action; or

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(B) exercising grievance or appellate rights established by law, rule, or 

regulation except in the case of grievance or appeal procedures negotiated 

under this chapter.

(b) The duty of an agency and an exclusive representative to negotiate in good faith 

under subsection (a) of this section shall include the obligation--

(1) to approach the negotiations with a sincere resolve to reach a collective 

bargaining agreement;

(2) to be represented at the negotiations by duly authorized representatives 

prepared to discuss and negotiate on any condition of employment;

(3) to meet at reasonable times and convenient places as frequently as may be 

necessary, and to avoid unnecessary delays;

(4) in the case of an agency, to furnish to the exclusive representative involved, 

or its authorized representative, upon request and, to the extent not prohibited 

by law, data--

(A) which is normally maintained by the agency in the regular course of 

business;

(B) which is reasonably available and necessary for full and proper 

discussion, understanding, and negotiation of subjects within the scope 

of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training 

provided for management officials or supervisors, relating to collective 

bargaining; and

(5) if agreement is reached, to execute on the request of any party to the 

negotiation a written document embodying the agreed terms, and to take such 

steps as are necessary to implement such agreement.

(c)(1) An agreement between any agency and an exclusive representative shall be 

subject to approval by the head of the agency.

(2) The head of the agency shall approve the agreement within 30 days from 

the date the agreement is executed if the agreement is in accordance with the 

provisions of this chapter and any other applicable law, rule, or regulation 

(unless the agency has granted an exception to the provision).

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(3) If the head of the agency does not approve or disapprove the agreement 

within the 30-day period, the agreement shall take effect and shall be binding 

on the agency and the exclusive representative subject to the provisions of this 

chapter and any other applicable law, rule, or regulation.

(4) A local agreement subject to a national or other controlling agreement at a 

higher level shall be approved under the procedures of the controlling 

agreement or, if none, under regulations prescribed by the agency.

5 U.S.C. § 7115(a)

Allotments to Representatives

(a) If an agency has received from an employee in an appropriate unit 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, the agency shall honor the assignment and make an 

appropriate allotment pursuant to the assignment. Any such allotment shall be 

made at no cost to the exclusive representative or the employee. Except as 

provided under subsection (b) of this section, any such assignment may not be 

revoked for a period of 1 year.

5 U.S.C. § 7116(a)(1), (2), (4), (b)(1)-(4), (c)

Unfair Labor Practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee 

of any right under this chapter;

(2) to encourage or discourage membership in any labor organization by 

discrimination in connection with hiring, tenure, promotion, or other conditions of 

employment;

(4) to discipline or otherwise discriminate against an employee because the employee 

has filed a complaint, affidavit, or petition, or has given any information or testimony 

under this chapter;

(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor 

organization--

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(1) to interfere with, restrain, or coerce any employee in the exercise by the 

employee of any right under this chapter;

(2) to cause or attempt to cause an agency to discriminate against any employee 

in the exercise by the employee of any right under this chapter;

(3) to coerce, discipline, fine, or attempt to coerce a member of the labor 

organization as punishment, reprisal, or for the purpose of hindering or 

impeding the member's work performance or productivity as an employee or 

the discharge of the member's duties as an employee;

(4) to discriminate against an employee with regard to the terms or conditions 

of membership in the labor organization on the basis of race, color, creed, 

national origin, sex, age, preferential or non-preferential civil service status, 

political affiliation, marital status, or handicapping condition;

(c) For the purpose of this chapter it shall be an unfair labor practice for an exclusive 

representative to deny membership to any employee in the appropriate unit 

represented by such exclusive representative except for failure--

(1) to meet reasonable occupational standards uniformly required for 

admission, or

(2) to tender dues uniformly required as a condition of acquiring and retaining 

membership.

This subsection does not preclude any labor organization from enforcing discipline in 

accordance with procedures under its constitution or bylaws to the extent consistent 

with the provisions of this chapter.

5 U.S.C. § 7117(a), (c)

Duty to bargain in good faith; compelling need; duty to consult

(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith 

shall, to the extent not inconsistent with any Federal law or any Government-wide 

rule or regulation, extend to matters which are the subject of any rule or regulation 

only if the rule or regulation is not a Government-wide rule or regulation.

(2) The duty to bargain in good faith shall, to the extent not inconsistent with 

Federal law or any Government-wide rule or regulation, extend to matters which 

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are the subject of any agency rule or regulation referred to in paragraph (3) of this 

subsection only if the Authority has determined under subsection (b) of this 

section that no compelling need (as determined under regulations prescribed by 

the Authority) exists for the rule or regulation.

(3) Paragraph (2) of the subsection applies to any rule or regulation issued by any 

agency or issued by any primary national subdivision of such agency, unless an 

exclusive representative represents an appropriate unit including not less than a 

majority of the employees in the issuing agency or primary national subdivision, as 

the case may be, to whom the rule or regulation is applicable.

(c)(1) Except in any case to which subsection (b) of this section applies, if an agency 

involved in collective bargaining with an exclusive representative alleges that the duty 

to bargain in good faith does not extend to any matter, the exclusive representative 

may appeal the allegation to the Authority in accordance with the provisions of this 

subsection.

(2) The exclusive representative may, on or before the 15th day after the date 

on which the agency first makes the allegation referred to in paragraph (1) of 

this subsection, institute an appeal under this subsection by--

(A) filing a petition with the Authority; and

(B) furnishing a copy of the petition to the head of the agency.

(3) On or before the 30th day after the date of the receipt by the head of the 

agency of the copy of the petition under paragraph (2)(B) of this subsection, 

the agency shall--

(A) file with the Authority a statement--

(i) withdrawing the allegation; or

(ii) setting forth in full its reasons supporting the allegation; and

(B) furnish a copy of such statement to the exclusive representative.

(4) On or before the 15th day after the date of the receipt by the exclusive 

representative of a copy of a statement under paragraph (3)(B) of this 

subsection, the exclusive representative shall file with the Authority its response 

to the statement.

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(5) A hearing may be held, in the discretion of the Authority, before a 

determination is made under this subsection. If a hearing is held, it shall not 

include the General Counsel as a party.

(6) The Authority shall expedite proceedings under this subsection to the 

extent practicable and shall issue to the exclusive representative and to the 

agency a written decision on the allegation and specific reasons therefor at the 

earliest practicable date.

5 U.S.C. § 7123(a), (c) 

Judicial review; enforcement.

(a) Any person aggrieved by any final order of the Authority other than an order 

under--

section 7122 of this title (involving an award by an arbitrator), unless the order 

involves an unfair labor practice under section 7118 of this title, or 

section 7112 of this title (involving an appropriate unit determination), may, during 

the 60-day period beginning on the date on which the order was issued, institute an 

action for judicial review of the Authority's order in the United States court of appeals 

in the circuit in which the person resides or transacts business or in the United States 

Court of Appeals for the District of Columbia.

(c) Upon the filing of a petition under subsection (a) of this section for judicial review 

or under subsection (b) of this section for enforcement, the Authority shall file in the 

court the record in the proceedings, as provided in section 2112 of title 28. Upon the 

filing of the petition, the court shall cause notice thereof to be served to the parties 

involved, and thereupon shall have jurisdiction of the proceeding and of the question 

determined therein and may grant any temporary relief (including a temporary 

restraining order) it considers just and proper, and may make and enter a decree 

affirming and enforcing, modifying and enforcing as so modified, or setting aside in 

whole or in part the order of the Authority. The filing of a petition under subsection 

(a) or (b) of this section shall not operate as a stay of the Authority's order unless the 

court specifically orders the stay. Review of the Authority's order shall be on the 

record in accordance with section 706 of this title. No objection that has not been 

urged before the Authority, or its designee, shall be considered by the court, unless 

the failure or neglect to urge the objection is excused because of extraordinary 

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circumstances. The findings of the Authority with respect to questions of fact, if 

supported by substantial evidence on the record considered as a whole, shall be 

conclusive. If any person applies to the court for leave to adduce additional evidence 

and shows to the satisfaction of the court that the additional evidence is material and 

that there were reasonable grounds for the failure to adduce the evidence in the 

hearing before the Authority, or its designee, the court may order the additional 

evidence to be taken before the Authority, or its designee, and to be made a part of 

the record. The Authority may modify its findings as to the facts, or make new 

findings by reason of additional evidence so taken and filed. The Authority shall file 

its modified or new findings, which, with respect to questions of fact, if supported by 

substantial evidence on the record considered as a whole, shall be conclusive. The 

Authority shall file its recommendations, if any, for the modification or setting aside 

of its original order. Upon the filing of the record with the court, the jurisdiction of 

the court shall be exclusive and its judgment and decree shall be final, except that the 

judgment and decree shall be subject to review by the Supreme Court of the United 

States upon writ of certiorari or certification as provided in section 1254 of title 28.

5 U.S.C. § 7134

Regulations

The Authority, the General Counsel, the Federal Mediation and Conciliation Service, 

the Assistant Secretary of Labor for Labor Management Relations, and the Panel shall 

each prescribe rules and regulations to carry out the provisions of this chapter 

applicable to each of them, respectively. Provisions of subchapter II of chapter 5 of 

this title shall be applicable to the issuance, revision, or repeal of any such rule or 

regulation.

5 C.F.R. § 2427.2

Requests for General Statements of Policy or Guidance

(a) The head of an agency (or designee), the national president of a labor organization 

(or designee), or the president of a labor organization not affiliated with a national 

organization (or designee) may separately or jointly ask the Authority for a general 

statement of policy or guidance. The head of any lawful association not qualified as a 

labor organization may also ask the Authority for such a statement provided the 

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request is not in conflict with the provisions of chapter 71 of title 5 of the United

States Code or other law.

(b) The Authority ordinarily will not consider a request related to any matter pending 

before the Authority, General Counsel, Panel or Assistant Secretary.

5 C.F.R. § 2427.5 (c), (f)

In deciding whether to issue a general statement of policy or guidance, the Authority 

shall consider:

(c) Whether the resolution of the question presented would have general applicability 

under the Federal Service Labor–Management Relations Statute;

(f) Whether the issuance by the Authority of a general statement of policy or guidance 

on the question would promote constructive and cooperative labor-management 

relationships in the Federal service and would otherwise promote the purposes of the 

Federal Service Labor–Management Relations Statute.

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