Big news: New Mexico acts to protect first amendment rights of state employees following Janus
New Mexico has stopped deducting dues from union members in cases where the state is not sure if an employee has agreed to dues deduction. The state required new membership cards to continue the dues deduction. One major union supplied cards on August 23rd and the state is now “reviewing this information to ensure dues deduction is consistent with the requirements under Janus.”
The Communications Workers of America (CWA) was most affected. The union filed a complaint with the Public Employee Labor Relations Board (which says the action goes further than Janus) but the state is defending the action.
According to a news article, the form distributed by the state says:
I [name] AM A MEMBER of [union name]. I authorize the State of New Mexico to withhold [union] membership dues and transmit these funds to the union. With this authorization I voluntarily and affirmatively waive my First Amendment Rights. I offer this waiver freely and represent that I was not influenced or coerced when making this decision. I understand that this election will not adversely affect my employment in any way.
Those who do not belong to the union can check an option that says, “I affirmatively assert that I have not waived my First Amendment rights.”
A State Personnel Office spokeswoman, however, said Friday the state wasn’t sure which employees are actually CWA members. Emilee Cantrell said the union “did not provide the State of New Mexico its membership cards until August 23. … We are now diligently reviewing this information to ensure dues deduction is consistent with the requirements under Janus.”
While the union has filed a complaint with the state Public Employee Labor Relations Board, Cantrell said the state intends to defend its actions. “The state is continuing to work with CWA on the issues related to dues deductions,” she said.
Cantrell said the Supreme Court’s ruling makes it necessary for union members to formally waive their First Amendment rights.
“The holding in Janus v. AFSCME found that extracting agency fees from a nonconsenting employee violates the First Amendment and the state is prohibited from continuing this long-standing practice,” Cantrell said. “Janus found that, by agreeing to pay union dues, nonmembers of a bargaining unit are waiving their First Amendment rights. … The cards represent the State’s commitment to following the law and ensuring employees are clear on how the union may use their dues.”
My read of the case is that there was a lot of confusion over who is a member and who is not in part because some employees are in CWA, others are in AFSCME and some are not in any union. New Mexico has wisely acted to protect employees, and the state, from deducting dues without the proper authority to do so. We note that the New Mexico Attorney General does not agree with Cantrell, and is taking the union position that Janus did not affect union members. We could find a similar split in authority here though to my knowledge Lori Swanson has not issued an opinion on Janus.
Other states, like Minnesota, should follow New Mexico’s lead of taking care to protect employee rights. It is the right thing to do while the courts sort out the full meaning of Janus.
Minnesota’s state and municipal governments employ about 285,000 people (13 percent of the state workforce). Do employers have the affirmative consent of public employees to deduct dues from paychecks on file? Are employers getting an affirmative consent from new employees?
The problem for a lot of employees is that their employer is more afraid of being sued by the union, or getting on the union’s bad side, than they are of unlawfully taking dues from employees. Or even worse, the employer is tight with the union.
That is why the Center is working with legal counsel to file suits on behalf of employees to enforce their Janus rights and notifying employers of the high legal bar set by Janus. You cannot rely on employers to do the right thing.
The other wrinkle for employers is that many public employees never gave consent in the full legal sense because they were coerced into joining the union. The deal pre-Janus was this: if you do not join the union, you must pay 85 percent of full dues, but you lose your right to vote on the contract and other membership benefits, and the union gets to speak for you as the exclusive agent. Oh, and you might get bullied, too.
Does that sound like affirmative consent?
New Mexico and Minnesota should go further and require a clear waiver of First Amendment rights before deducting another dime from all public employees.