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ABRAMS v. COMMUNICATIONS WORKERS OF AMERICA

September 29, 1998

KENNETH ABRAMS, et al., Plaintiffs,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Defendant.



The opinion of the court was delivered by: LAMBERTH

MEMORANDUM OPINION

 This case comes before the Court on plaintiffs' motion for partial summary judgment and defendant's cross-motion for summary judgment. After consideration of the motions and the oppositions thereto, plaintiffs' motion will be GRANTED in part and DENIED in part, defendant's motion will be GRANTED in part and DENIED in part, and further proceedings will be ordered.

 FACTS

 Plaintiffs filed this action on October 19, 1987, alleging that defendant CWA had breached its duty of fair representation under the National Labor Relations Act. On April 16, 1993, this Court granted plaintiffs' motion for summary judgment as to one claim related to arbitration and granted defendant's cross-motion for summary judgment as to all other claims, including the plaintiffs' claims alleging inadequate notice of legal rights and illegal computation of chargeable fees, which claims are again presented by the plaintiffs after a partial reversal and remand by the Court of Appeals. See Abrams v. Communications Workers of Am., 313 U.S. App. D.C. 385, 59 F.3d 1373 (D.C. Cir. 1995), reversing in part and affirming in part 818 F. Supp. 393 (D.D.C. 1993).

 The Court of Appeals reversed the judgment of this Court as to the notice claim, holding that CWA in fact breached its duty of fair representation by failing to give adequate notice to nonmember employees of their legal right to object to payment of full membership dues. See Abrams, 59 F.3d at 1379. The Court of Appeals, however, affirmed most other aspects of this Court's decision, including the finding that CWA's auditing procedures for calculating chargeable expenses were lawful. See id. at 1381. The case was remanded for further proceedings. *fn1"

 On remand, the parties have again filed cross-motions for summary judgment, with the focus now narrowed to the notice and computation claims. For the reasons set forth below, the Court will grant the plaintiffs' motion for partial summary judgment on the issue of notice and will grant partial summary judgment in favor of the defendant on the now undisputed issue of notice to new employees. On the more contentious computation claim, the Court will deny plaintiffs' motion for partial summary judgment as to liability and order further proceedings to determine the legality of CWA's definition of chargeable expenditures for purposes of calculating agency fees.

 DISCUSSION

 Section 8(a)(3) of the National Labor Relations Act permits an employer and a union to enter into an agreement making the union the collective bargaining representative of all employees, including those who choose not to become full members of the union. See 29 U.S.C. § 158(a)(3); Communications Workers of Am. v. Beck, 487 U.S. 735, 745, 101 L. Ed. 2d 634, 108 S. Ct. 2641 (1988); Abrams, 59 F.3d at 1377. The union may charge all employees, both members and nonmembers, "agency" fees to cover the costs of representation, but these fees must be limited to those union expenditures "germane to collective bargaining, contract administration, and grievance adjustment." Beck, 487 U.S. at 745; Abrams, 59 F.3d at 1379. This limited contribution ensures that employees who elect not to join the union are not forced to lend financial support to union activities or causes with which they may not agree, while it simultaneously protects the union and its members from "free-riding" nonmembers who would stand to benefit from the union's representation in collective bargaining matters without bearing a fair share of the substantial costs incurred in the course of such representation. See Beck, 487 U.S. at 749-54.

 The union's status as an exclusive bargaining representative under section 8(a)(3) imposes upon the union a duty of fair representation. This duty "'includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" Abrams, 59 F.3d at 1377 (quoting Vaca v. Sipes, 386 U.S. 171, 177, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967)). An employee claiming that his union has breached its duty of fair representation must demonstrate that the union acted in a way that was "'arbitrary, discriminatory, or in bad faith.'" Id. (quoting Vaca, 386 U.S. at 190). Using this standard, the Court finds pursuant to the Court of Appeals' mandate that CWA breached its duty of fair representation by providing plaintiffs with unlawful notice of their legal right to object to payment of full membership dues. The Court will order further proceedings to adjudicate the legality of CWA's computation of the advance reduction made to objecting employees.

 I. Notice

 Plaintiffs challenge the legality of the notice provided annually by CWA, from 1987 through 1995, to all employees by means of the union newsletter. *fn2" That notice provided in part:

 
"Under the Communications Workers of America policy on agency fee objections, employees who are not members of the Union, but who pay agency fees, may request a reduction in that fee based on their objection to certain kinds of Union expenditures. . . .
 
The policy provides an objection period each year during May, followed by a reduction in the objector's fee for the twelve months beginning with July and running through the following year.
 
Briefly stated, CWA's objection policy works as follows:
 
1. The agency fee payable by objectors will be based on the Union's expenditures for those activities or projects normally or reasonably undertaken by the Union to represent the employees in its bargaining units with respect to their terms and conditions of employment."

 Abrams, 59 F.3d at 1379 (emphasis removed).

 The Court of Appeals held this notice to be inadequate because its definition of chargeable expenditures was not limited to those costs "germane to collective bargaining, contract administration, and grievance adjustment," and because it failed to convey to nonmembers that their right to object was a legal one, not merely a privilege granted by CWA's policy. See Abrams, 59 F.3d at 1379. According to the Court of Appeals, the phrase "with respect to their terms and conditions of employment" was more broad than "germane to collective bargaining, contract administration, and grievance adjustment" and therefore failed to adequately inform nonmembers of precisely which union expenditures they could and could not be charged for. See id. ...


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