Tenth Circuit rules in favor of AFSCME in union dues case

On March 26, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit upheld the U.S. District Court for the District of New Mexico’s decision in Hendrickson v. AFSCME Council 18. The lower court had dismissed the suit, which alleged that the union’s policy of restricting membership resignation to certain opt-out windows and New Mexico statutes granting unions exclusive representation on matters of public policy violated the First Amendment.

Parties to the suit

The plaintiff was Brett Hendrickson, a quality control specialist employed by the New Mexico Human Services Department. The Liberty Justice Center, which says it “fights for the constitutional rights of American families, workers, advocates and entrepreneurs,” represented Hendrickson.

The defendants were American Federation of State, County and Municipal Employees (AFSCME) Council 18 and New Mexico’s governor and attorney general in their official capacities.

What’s at issue, and how the lower court ruled

Hendrickson filed suit in the U.S. District Court for the District of New Mexico on Nov. 30, 2018. His attorneys said AFSCME Council 18 had “violated Hendrickson’s First Amendment rights to free speech and freedom of association by refusing to allow him to withdraw his membership until an arbitrary two-week window of time and by continuing to charge him union dues based solely on a union card which could not have constituted ‘affirmative consent’ because it was signed before the Janus decision.” Hendrickson’s suit also claimed that New Mexico statutes granting unions exclusive representation on matters of public policy violated the First Amendment. He sought declaratory and injunctive relief and damages “in the amount of all dues deducted and remitted to the Union since he became a member.”

On Jan. 22, 2020, Judge Robert Brack, a George W. Bush appointee, dismissed the lawsuit, citing several of Hendrickson’s claims as moot, and granted the AFSCME Council 18’s motion for summary judgment. Brack wrote:

Hendrickson fails to point to any decision that applied Janus to void a union membership contract under similar circumstances. On the contrary, each court that examined this issue has rejected the claim that Janus entitles union members to resign and stop paying dues on their own—rather than on the contract’s—terms… As part of the contract, he knowingly agreed that he could only revoke his dues deduction authorization during a two-week opt-out window. He does not allege that he was coerced, and the parties agree that he was not required by state law to join. He could have paid a lesser fair share fee as a nonmember, but instead, he chose to join the Union.

Hendrickson appealed to the U.S. Court of Appeals for the Tenth Circuit on Feb. 19, 2020. 

How the Tenth Circuit ruled

The three-judge panel—Judges Scott Matheson, Carlos Lucero, and Carolyn McHugh—unanimously affirmed the district court’s ruling on March 26.

Writing for the court, Matheson said:

In Janus, the Court said the First Amendment right against compelled speech protects non-members of public sector unions from having to pay “agency” or “fair share” fees—fees that compensate the union for collective bargaining but not for partisan activity. Mr. Hendrickson contends that, under Janus, the Union cannot (1) retain dues that had been deducted from his paycheck, or (2) serve as his exclusive bargaining representative. The district court dismissed these claims. … 

We affirm the district court’s decisions to grant the Union’s motion for summary judgment and the New Mexico Defendants’ motion to dismiss. We remand to the district court with instructions to amend its judgment to reflect that (1) the dismissal of Mr. Hendrickson’s request for prospective relief on Count 1 as moot and (2) the dismissal of Count 2 against the New Mexico Defendants based on Eleventh Amendment sovereign immunity, are both “without prejudice.” 

President Barack Obama appointed Matheson and McHugh to the court. President Bill Clinton appointed Lucero.

Hendrickson has 14 days to file a petition for rehearing.

The case name and number are Hendrickson v. AFSCME Council 18, et al. (20-2018). 

What we’re reading

• Boston Globe, “Providence superintendent: ‘We’ve paid more than $400,000 in union dues for people that don’t exist,’” April 1, 2021
• National Review, “Big Labor’s Brazen Defiance of the Janus Ruling,” April 1, 2021 
• KTVZ, “C. Oregon ODOT worker sues union over dues, invokes Racketeering Act,” March 30, 2021

The big picture

Number of relevant bills by state

We are currently tracking 86 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

• Arizona SB1268: This bill would establish annual disclosure requirements for public-sector unions.
  • Republican sponsorship.
  • House Rules Committee hearing March 29.  
• Arkansas SB341: This bill would prohibit collective bargaining on the part of public-sector employees.
  • Republican sponsorship.
  • Senate Public Health, Welfare, and Labor Committee hearing March 30. 
• Connecticut SB00908: This bill would require public employers to furnish unions with personal contact information of employees belonging to the bargaining unit the union represents. It would also require employers to grant unions access to new employee orientations.
  • Referred to Office of Legislative Research and Office of Fiscal Analysis March 29. 
• Florida H0835: This bill would require that unions certified as bargaining agents for educational support employees include certain information in registration renewal applications. The bill would also require such unions whose full dues-paying membership is less than 50 percent to petition the state for recertification. 
  • Republican sponsorship.
  • Added to State Administration and Technology Appropriations Subcommittee agenda March 30.
• Illinois HB0646: This bill would extend collective bargaining rights to legislative assistants.
  • Democratic sponsorship. 
  • Re-referred to House Rules Committee March 27. 
• Illinois HB3891: This bill would establish that police union contracts no longer supersede state law.
  • Democratic sponsorship.
  • Re-referred to House Rules Committee March 27.
• Illinois HB3892: This bill would limit peace officer contract negotiations to the subject of wages only.
  • Democratic sponsorship.
  • Re-referred to House Rules Committee March 27. 
• Indiana SB0251: This bill would establish that a school employee can leave a union at any time. It would also require an employee to annually authorize any payroll deductions of union dues.
  • Republican sponsorship.
  • House Employment, Labor, and Pensions Committee hearing April 1. 
• Maine LD52: This bill would allow educational policies related to preparation and planning time and transfer of teachers to be subjects of collective bargaining negotiations.
  • Democratic sponsorship. 
  • Education and Cultural Affairs Committee hearing March 29. 
• Maryland HB894: This bill would establish collective bargaining rights for certain community college employees.
  • Democratic sponsorship. 
  • Passed both chambers as of March 29. 
• Maryland SB138: This bill would extend collective bargaining rights to employees of the Baltimore County Public Library.
  • Democratic sponsorship. 
  • Re-referred to House Appropriations Committee March 30.
• Maryland SB746: This bill would establish collective bargaining rights for certain community college employees.
  • Democratic sponsorship.
  • House Appropriations Committee reported favorably March 30.  
• Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.
  • Democratic sponsorship. 
  • House Appropriations Committee Hearing April 1. 
• New Hampshire SB61: This bill would prohibit collective bargaining agreements that require employees to join a labor union.
  • Republican sponsorship. 
  • House Labor, Industrial and Rehabilitative Services Committee executive session March 30. 
• Oregon HB3029: This bill would require the Employment Relations Board to develop procedures for authorizations designating bargaining unit representatives.
  • Democratic sponsorship.
  • House Business and Labor Committee work session scheduled for April 5. 
• Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.
  • Democratic sponsorship.
  • Senate Education Committee work session March 31. 
• Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining.
  • Democratic sponsorship. 
  • House Appropriations Committee executive session March 31. 

---