than it in fact has to. The court never reaches this point, however, because the court concludes that Dr. Hawkins' criticisms of the CWA's system are unfounded.
Dr. Hawkins's single criticism of the Westat system is that it allows CWA employees to purposely skew their time keeping toward chargeable activities. Plaintiffs' Motion at 26. Dr. Hawkins believes all CWA employees necessarily cheat on their time sheets and that the Westat system does not provide adequate checks on that tendency. Hawkins Report at 8. That contention, supported only by Dr. Hawkins' allegation of CWA employees' inherent dishonesty, does not force the conclusion that CWA cannot justify its allocation of expenditures.
This court will not assume that CWA employees are dishonest. There is no reason for the court to think so, and the court will not accept Dr. Hawkins' unsupported allegations in this respect. This is especially true when CWA has cautioned its employees specifically against skewing their time reports. Every CWA employee has either heard or received a copy of a statement from the CWA President cautioning them against biasing their time reports. DiGaetano Decl. P 17, Exh. DD at 5. Westat also has checked its data for discrepancies that would result from biased reporting and has found no evidence of Dr. Hawkins' allegations. DiGaetano Decl. PP 12-17. Even if Dr. Hawkins' unfounded allegations are correct, these cautionary statements and checks guarantee the integrity of Westat's conclusions.
CWA has in place a detailed system that records and verifies the time and expenses its employees devote to chargeable and nonchargeable expenses. That system justifies by a preponderance of the evidence CWA's allocation of staff salaries and expenses into those categories. Its accounting reports double check and verify that allocation. Plaintiffs' fears of deceit do not undermine the court's confidence that this system is fair and equitable, and not "arbitrary, discriminatory, or in bad faith." As to this claim then, the court denies plaintiffs' motion for summary judgment and grants summary judgment for CWA.
V. CWA'S POLICY OF FORCED ARBITRATION.
Plaintiffs' last allegation against the CWA system is that it unlawfully forces nonmembers to resolve through arbitration their challenges to CWA's allocation of expenses. Plaintiffs contend that they should be able to bring these claims before the National Labor Relations Board or before a federal court. The court agrees with plaintiffs and finds that this provision in the CWA procedure violates CWA's duty of fair representation toward nonmembers.
The CWA Policy on Agency Fee Objections states that objectors who choose to challenge CWA's allocation of expenditures must do so through arbitration. Plaintiffs' Motion, Attachment 2, CWA Constitution at 26. That is the only avenue CWA provides objectors to challenge the CWA fee calculation. This requirement violates CWA's duty of fair representation even under the relatively lax standard this court must apply.
A party can be forced to arbitrate a grievance only if he or she has entered into a contract requiring that sort of dispute resolution. Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374, 38 L. Ed. 2d 583, 94 S. Ct. 629 (1974). "No obligation to arbitrate a labor dispute arises solely by operation of law. " Id. Plaintiffs contend and the court must agree that they have not entered into a contract to arbitrate their claims against the CWA.
"Whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance  is undeniably an issue for judicial determination. " AT&T Technologies v. Communications Workers of America, 475 U.S. 643, 649, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986).
Here the collective bargaining agreement, as far as the court can determine, does not even mention arbitration. That policy is only in the CWA Constitution. That document cannot bind plaintiffs, because plaintiffs are not members of the CWA. CWA may have the statutory authority to require nonmembers to pay agency fees, but that statutory authority cannot be extended to force nonmembers to follow CWA's choice of dispute resolution. CWA's statutory authority does not extend to that issue. CWA must get nonmembers' permission before it can refer fee disputes to arbitration.
The court recognizes that there is a strong public policy preference for arbitration of labor disputes, but the rationale behind that policy does not support its application here. The presumption in favor of the arbitrability of labor disputes arises because arbitration usually "'furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objections in pursuing collective bargaining.'" AT&T Technologies, 475 U.S. at 650, citing Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 371-72, 80 L. Ed. 2d 366, 104 S. Ct. 1844 (1984) (citation omitted). As is readily apparent from this rationale, it justifies only the forced arbitration of collective bargaining disputes between unions and employers. This justification is hardly applicable when the dispute is between a union and a nonmember and labor unrest is not threatened. Given the inapplicability of this policy interest here, the court cannot rely on it to override the otherwise inviolable principle that parties cannot be force to arbitrate a grievance if they have not previously agreed to do so.
CWA is surprisingly silent in the face of plaintiffs' contention that the arbitration clause violates CWA's duty of fair representation. The arbitration requirement is an arbitrary forum choice and it discriminatorily violates the rights of plaintiffs, who do not wish to resolve their disputes through arbitration. The court cannot overlook this requirement even under the "wide range of reasonableness" standard. The Supreme Court has made clear that forced arbitration is unlawful and unreasonable. CWA's policy in this regard cannot stand. On the arbitration issue, the court grants summary judgment for plaintiffs and denies summary judgment for defendant.
For the reasons stated, the court upholds CWA's policy and procedure for agency fee objections except as to that provision in the policy that limits to arbitration the way in which plaintiffs can challenge CWA's expense allocation. The arbitration provision of CWA's policy violates CWA's duty of fair representation to plaintiffs.
Royce C. Lamberth
United States District Judge
DATE: APR 15 1993
ORDER AND JUDGMENT - April 16, 1993, Filed
This case comes before the court on plaintiffs and defendant's cross motions for summary judgment. For the reasons stated in the Memorandum Opinion issued this date, it is hereby ORDERED that:
1. Plaintiffs' Motion for Summary Judgment is GRANTED in part and DENIED in part. The court GRANTS plaintiffs' motion only as to its claim that CWA's arbitration policy violates CWA's duty of fair representation toward plaintiffs. The court DENIES plaintiffs' motion in all other respects.
2. Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. The court GRANTS defendant's motion in all respects except as to CWA's arbitration policy. In that respect, the court DENIES defendant's motion. Except as to the arbitration provision, CWA's Policy on Agency Fee Objections does not violate CWA's fair duty of representation to plaintiffs.
3. Judgment is hereby ENTERED enjoining defendants and its agents from requiring plaintiffs to submit agency fee disputes to arbitration. In all other respects, judgment is hereby ENTERED for defendant, DISMISSING WITH PREJUDICE all other claims raised by plaintiffs herein.
Royce C. Lamberth
United States District Judge
DATE: APR 15 1993