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State employee sues over deduction of union fees

Copyright © 2018 Albuquerque Journal

A state employee has filed a class-action lawsuit alleging New Mexico and a labor union violated his constitutional rights by deducting union fees from his paycheck over his objection, even after a landmark Supreme Court decision.

David McCutcheon, an information technology technician, is asking a federal court to strike down what he describes as an illegal scheme to collect union fees or dues from employees as a condition of employment.

He and his lawyers say hundreds of employees could be covered by the lawsuit and entitled to refunds.

The suit names two union groups – both affiliated with Communications Workers of America – and State Personnel Director Justin Najaka as defendants.

A spokeswoman for CWA said the union hadn’t been served with the lawsuit and couldn’t comment. The Journal wasn’t able to reach a state official for comment.

McCutcheon is asking the U.S. District Court in New Mexico to declare that the defendants’ “practices of forcing (employees) to pay fees to fund union activity of any kind violate the First Amendment” and are “an illegal conversion of their property.”

Furthermore, the lawsuit alleges, the union’s contract with the state government severely limits the opportunity for employees to revoke their permission for fee deductions. Employees have only two weeks each year in which to withdraw, a system that should be struck down, the suit says.

The National Right to Work Legal Defense Foundation, a nonprofit advocacy group, is providing free legal help to McCutcheon.

“Contrary to the wishes of New Mexico union bosses and their allies in state government, First Amendment rights cannot be limited to just a couple of weeks per year,” the group’s president, Mark Mix, said in a written statement. “All civil servants should be able to exercise their rights to free speech and free association by cutting off union payments whenever they choose without interference by union officials.”

A decision by the U.S. Supreme Court in late June shook up the legal landscape for union fees.

Union membership cannot be required under federal law. But union fees – up until the Supreme Court’s decision – could be required as a condition of employment in unionized workplaces.

The required fees are sometimes called “fair share” payments. Unions must represent everyone in a collective bargaining unit, so everyone should pay their “fair share” for basic costs, even if they choose not to be members, supporters say.

But the Supreme Court ruled that government workers who choose not to join unions cannot be required to finance union activity.

Union leaders described the ruling as an attack on the funding mechanism that helps government workers band together for improved pay and working conditions.

In McCutcheon’s case, the lawsuit says he didn’t have to pay union fees when he was assigned to work for the Governor’s Office. But upon returning to the Department of Information Technology, he was informed that he would have to either pay full union dues or pay “nonmember forced fees” as a condition of employment.

McCutcheon’s lawsuit contends he notified the union that he didn’t want fees deducted from his paycheck but that the deductions continued over his objection – in violation of his First Amendment right to refrain from subsidizing unions.

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