New Mexico asks union workers to waive First Amendment rights

Steve Terrell | The Santa Fe New Mexican

In the wake of a landmark U.S. Supreme Court decision curbing the power of public employee labor unions, the state of New Mexico has stopped deducting "fair share" fees from the wages of workers who haven't joined the unions that represent them in contract negotiations.

The state government also stopped collecting union dues from paychecks for hundreds of workers who are union members.

While the state is asking these union members to sign forms declaring their union membership, a requirement that they also agree to waive First Amendment rights is stirring controversy.

Union leaders — as well as a hearing officer for the state Public Employee Labor Relations Board — say that requirement goes far beyond the Supreme Court's recent ruling in Janus v. American Federation of State, County, and Municipal Employees.

More: DA's Office settles 3 union complaints, claims of retaliation against women remain

Members of the Communications Workers of America, because of the way the union's contract with the state is written, have been hit hardest by the new policy. Local CWA president Donald Alire said Friday that about 1,500 of his members have been affected.

In a recent letter to members, the union said, "The State has unlawfully ceased deducting dues from CWA-represented members despite having information distinguishing union members from non-union members."

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.

The controversial form distributed by the state says:

"I [name] AM A MEMBER of CWA. I authorize the State of New Mexico to withhold CWA 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."

More: New fiscal year for state of New Mexico brings pay raises for many, new laws for all

Those who aren't union members can check an option declaring they don't belong to CWA. This option says "I affirmatively assert that I have not waived my First Amendment rights."

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."

However, CWA representative Robin Gould wrote in an Aug. 6 letter to State Personnel Office director Justin Najaka that the language in the form "unlawfully advises employees that they are choosing to waive (or not) the full panoply of civil liberties afforded under the First Amendment, despite the fact that the Janus decision solely touched on freedom of speech in a very limited context."

Thomas Griego, a hearing officer for the state Public Employee Labor Relations Board, wrote in a decision last week that the Janus case doesn't affect the First Amendment rights of union members. Griego ruled against the city of Rio Rancho, which had imposed a similar policy regarding payroll deductions for AFSCME members.

The hearing officer granted the union's requests for a temporary restraining order and preliminary junction.

"The Janus decision is narrowly written with its effects limited to payments by non members of an 'agency fee' or 'fair share' fee," Griego wrote. The high court's ruling, he said, "has no application to the payment of dues by members of the union or the use of payroll deduction of those dues and the First Amendment rights of union members having previously authorized dues deductions payable to the union."

Union leaders pointed to a recent advisory from state Attorney General Hector Balderas that emphasized the only change under the Janus decision is that public employers may no longer deduct "fair share" fees from a nonmember's wages and that unions can't collect such fees from a nonmember without consent.

"The Janus decision does not affect any agreements between a union and its members to pay union dues," Balderas wrote. "Existing agreements by union members to pay dues should continue to be honored."

Connie Derr, executive director of AFSCME in New Mexico, said Friday that while the State Personnel Office is not requiring current AFSCME members to sign new forms and waive their First Amendment rights, the state is requiring new members to do so.

While AFSCME is largest public employee union in New Mexico, CWA represents about 3,000 employees in several state agencies, including the Environment, Information Technology and General Services departments. Within the state departments of Health, Human Services and Cultural Affairs, some workers are represented by CWA while others are represented by AFSCME.

According to union leaders, before the Janus decision, workers in an AFSCME shop who were not in the union would only see "fair share" fees deducted from their paychecks, not full union dues. CWA shops, however, would deduct the combined amount and then reimburse nonmembers at the end of the year for dues they paid.

Correspondence between the State Personnel Office and CWA leaders indicates this caused some confusion with computer coding in the state payroll system.