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State of New Mexico worker suing to get out of union

December 4, 2018

A conservative nonprofit group is suing the state of New Mexico on behalf of a government employee who wants out of his labor union.

The case, filed by the Liberty Justice Center, is in some ways a next step after the U.S. Supreme Court’s ruled against labor unions earlier this year in Janus v. American Federation of State, County and Municipal Employees.

In that case, the court said it’s unconstitutional to require public employees who are not union members to pay part of the union’s collective bargaining costs through fees deducted from their wages.

In this latest suit, the Chicago-based Liberty Justice Center argues that union members should be able to cancel their membership whenever they wish, contending it is unconstitutional to limit the period when employees can withdraw to particular periods of the year, as is the case in some union contracts.

The lawsuit is part of a multistate push in the wake of the Supreme Court’s decision to curb the power of organized labor.

The case centers on Brett Hendrickson, a state Human Services Department employee.

The center says union fees were not deducted from his paycheck for several months after he went back to work for the agency following a stint in another part of New Mexico government. So, concerned the union would demand back fees in one lump, he requested and the union agreed not to collect those back fees on the condition he become a full member.

From that point in 2007, he paid about $32 a month in dues, according to the lawsuit.

After the U.S. Supreme Court’s decision in Janus, Hendrickson asked the state if he could withdraw immediately as a union member, the lawsuit says.

The case says the State Personnel Office told Hendrickson the union’s collective bargaining agreement controlled when he could withdraw.

Brian Kelsey, a lawyer for the Liberty Justice Center, said that period is limited to a two-week window each year.

But Kelsey argues the Supreme Court’s decision in Janus means that employees like Hendrickson should not have had to choose between joining the union or paying collective bargaining fees. They should have been allowed to do neither, he contends, and Kelsey says Hendrickson should be allowed to withdraw now as well as get back the money he paid since joining the union.

The center is mounting a similar court case in California, where it is representing an educator who wants out of his teachers union. The union has a 30-day period during which members can quit the organization, according to the center, which argues this amounts to a violation of the educator’s right to freedom of association.

“They were given an unconstitutional choice when they joined,” Kelsey said Monday.

The lawsuit would seem to clash with guidance that New Mexico Attorney General Hector Balderas issued to government agencies after the Supreme Court decision, contending that the only change is that public employers may no longer deduct fees from the paychecks of nonmembers.

Balderas was clear that the decision does not affect any agreements between a union and its members to pay union dues.

“Existing agreements by union members to pay dues should continue to be honored,” Balderas wrote.

The fight over union fees is a long-running one. Conservatives have long argued that New Mexico should eliminate a provision that allows unions to collect such “fair share” fees from nonmembers in organized workplaces. This, they argue, would help make New Mexico more economically competitive. But labor unions have long argued that organization ensures better pay and conditions for workers.

At the time the Supreme Court issued its decision in Janus, AFSCME had about 10,000 members around New Mexico. Its members include many employees in state as well as local governments.

The Liberty Justice Center filed the case Friday in U.S. District Court in Albuquerque. It is working with both Pat Rogers, a Republican attorney based in Albuquerque, as well as the conservative Rio Grande Foundation, Kelsey said.

A representative for AFSCME Council 18, which includes New Mexico, said the union had not been served with the lawsuit as of Monday morning and declined to comment.

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