Nearly three years after the U.S. Supreme Court struck down state laws mandating public employees pay union dues/fees as a condition of employment, unions and far too many government officials continue working to prevent public employees from learning of their right to resign union membership.
Most recently, high-ranking state officials in New Mexico — including top advisers to Gov. Michelle Lujan Grisham — were thrown into a frenzy by a Freedom Foundation email to thousands of state workers represented by the American Federation of State, County and Municipal Employees (AFSCME) Council 18.
The email was simple enough: In less than 200 words, it informed employees that the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME meant that “mandatory dues requirements violate workers’ First Amendment rights to freedom of speech and association, and that public employees have the right to choose for themselves whether to pay any union dues or fees.”
It concluded by linking to a Freedom Foundation website where employees could download a dues cancellation form.
Initially, the email generated significant interest from employees, with dozens downloading opt-out forms within a few hours and many contacting the Freedom Foundation with questions. However, by the end of the day, Freedom Foundation staffers could no longer reply to employees’ inquiries because the reply emails would bounce.
To determine whether the state had blocked its email domain, the Freedom Foundation submitted several requests for records and communications to state officials under New Mexico’s Inspection of Public Records Act.
The documents provided in response to these requests show that, at the request of AFSCME Council 18, the heads of the New Mexico State Personnel Office (SPO) and Department of Information Technology (DoIT), as well as senior staff to Gov. Lujan Grisham, not only prevented employees from receiving further Freedom Foundation emails but distributed both an official state response to the Freedom Foundation’s email and a second email response on behalf of AFSCME Council 18.
Eventually — probably after a sufficient number of lawyers became involved to point out that the state cannot block speech by politically-disfavored groups while facilitating speech by its political allies without violating the First Amendment and opening up the state to expensive litigation — the state reversed course and unblocked the Freedom Foundation’s email domain.
Still, the episode highlights how unions and politicians elected with union backing often unite against employees, who deserve to be able to make informed decisions about union membership and dues payment but are deprived of such information by both labor and management.
The incident further revealed the efforts undertaken by AFSCME Council 18 and state officials to prevent employees from cancelling their membership even if they discover they can. Article 10, Sec. 4 of the collective bargaining agreement between the union and the state limits employees’ ability to cancel the deduction of union dues from their wages to the first two weeks of December each year.
In 2018, following the Janus decision, a New Mexico state worker filed litigation against the state and AFSCME Council 18 over the restrictive escape period but, shamefully, the Tenth Circuit Court of Appeals recently upheld the restrictions.
However, the Freedom Foundation is presently waiting to hear whether the U.S. Supreme Court will accept litigation challenging similar restrictions in place in Washington state.
Regardless, it’s clear that far more work needs to be done to fully protect public employees’ right to refrain from union association.
March 9, 2021
- 10:27 a.m.: Anthony Barajas, a child protective services investigator for the Department of Children, Youth and Families and president of AFSCME Local 2890, forwarded the Freedom Foundation’s email to Connie Derr, the executive director of AFSCME Council 18, and Shane Yountz, an Albuquerque attorney specializing in representing unions.
- 10:32 a.m.: Derr emails Sandy Martinez, the labor relations director for the SPO, and Diego Arencon, deputy chief of staff for Gov. Lujan Grisham and the scandal-plagued former head of the Albuquerque firefighters’ union, requesting that,
“…the Administration 1) block any future emails from this firm, and 2) to pls send something out today stating that this effort is not condoned by this administration, that in fact this administration encourages full employees’ full [sic] participation through their union…”
- 12:15 p.m.: Derr emails Martinez again, writing:
“We are finalizing an email to send out to the bargaining unit to push back on the email sent out this morning requesting members drop their dues. We will have it ready to go out by 2:00pm, so can you pls clear the decks for it to go out? Have you all figured out how it got thru the state system? And will the administration send out an email as well?”
- 12:32 p.m.: Martinez emails the DoIT help desk a request to determine “how this [the Freedom Foundation’s email] was able to be sent out and if DoIT can stop it now.”
- 12:35 p.m.: Martinez forwards her email thread with Derr to Ricky Serna, acting director of the SPO, noting that she has “issued a ticket to DoIT asking if the [Freedom Foundation] message can cease.” Serna replies at 12:41 p.m. that he will “Call you in a bit.”
- 1:01 p.m.: Serna forwards the email thread to John Salazar, secretary of DoIT.
- 1:04 p.m.: Serna emails Derr to inform her that he,
“Just spoke with Secretary Salazar at DoIT. He is escalating the request to block the email sender immediately. Have a call in to Diego [Arencon] to discuss your other request.”
- 1:06 p.m.: Salazar emails DoIT’s email administrators, writing,
“I received an emergency call on this email situation described below. Can you please block unionaccounabiltiy.com [sic] email from coming into our system and if there are any emails already in our system, please inactivate them?”
- 1:09 p.m.: DoIT employee Joshua Craft responds to Salazar that he is “blocking unionaccounabiltiy.com [sic] right now.”
- 5:55 p.m.: Copying Serna, Salazar emails Craft, writing: “I was asked to remove the block. Can you please complete the task of removing the block, and let us know when task is completed?”
March 10, 2021
- 3:05 p.m.: Serna emails Arencon and Teresa Casados, Gov. Lujan Grisham’s scandal-plagued chief operating officer, a draft copy of a response he prepared at the request of “AFSCME leadership” to “address the inaccuracies” of the Freedom Foundation’s email. Serna notes that he would “[a]ppreciate any feedback.”
March 11, 2021
- 8:14 p.m.: Arencon replies to Serna that his draft response to the Freedom Foundation email “looks good.”
March 12, 2021
- 12:25 p.m.: Serna emails AFSCME-represented state employees his response to the Freedom Foundation’s email. It reads:
“This week you may have received an email with the following subject line: Public employees notice of Supreme Court decision could affect your paycheck The following message is intended to provide clarity to the information provided by the email. In order to maintain Union membership, you are still required to pay Membership Dues. If you no longer want to be a Union member, our Collective Bargaining Agreement (CBA) allows employees to cease payroll deductions for Membership Dues in December of each year. Therefore, the next opportunity to cease Membership deductions will be in December 2021, at which point you can make a written request to cease such deductions. I have attached the current CBA for your review. Please refer to Article 10, Section 4 which will guide you to the process. Please note that the Janus v. AFSCME decision does not enable employees to be Union members without paying Membership Dues. Nor does Janus create the ability for employees to cease Membership deductions – that ability always exists, pursuant to the procedure in the CBA described above. Rather, the Janus decision prevents non-Union member employees from being charged a fair share fee to cover the Union’s expenses related to collective bargaining and contract administration. As a result of the Janus decision, State of New Mexico employees have not been charged fair share fees since June 30, 2018.”
It’s not clear what purported “inaccuracies” Serna’s email addressed, since the Freedom Foundation’s initial missive never claimed that it was possible to maintain union membership without paying dues.
March 15, 2021:
- 9:13 a.m: Serna replies to an employee contending that AFSCME Council 18’s agreement with the state expired in 2009 and that the two-week limitation on dues cancellation could no longer be enforced by informing the employee he “confirmed” that “the agreement [continues]” despite having not been updated in 12 years.
- 2:39 p.m.: Martinez replies to a nonmember employees’ email inquiry about the cost of AFSCME Council 18 dues in part by telling her, “There are benefits for becoming a union member,” and suggesting she “contact a union steward who can inform you about the all the benefits.”
- 3:09 p.m.: Derr emails Serna and Martinez a request for the SPO to distribute to employees’ AFSCME’s response to the Freedom Foundation’s email “[w]hile we work out whatever kinks exist in order to open up the gates for the AFSCME-represented employees’ emails.”
- 5:28 p.m.: Martinez emails AFSCME’s response to the “anti-worker email attack” to all AFSCME-represented state employees. The one-page PDF document read, in part,
“The anti-worker corporation that infiltrated the state email system on March 9, 2021 exists for one reason: Silence workers’ voices; attack workers’ right to join their union; and, weaken unions’ abilities to fight for and protect workers. But its harmful misinformation and intent fails! The best fight-back against those who wish to harm state employees — AFSCME members — is to ensure our union is even stronger! CLICK HERE TO JOIN AFSCME TODAY!”