Kenneth Abrams v. Communications Workers of America, an Unincorporated Labor Organization

TATEL, Circuit Judge,

concurring in part and dissenting in part:

I agree that neither CWA’s method of accounting for expenses chargeable to nonunion employees nor its requirement that objecting employees lodge their objections annually during a prescribed window violates the duty of fair representation. I also agree that CWA violates its duty of fair representation by requiring nonunion employees challenging CWA’s allocation of chargeable and nonchargeable activities to exhaust union-provided arbitration. I therefore concur in parts II. C and D of the court’s opinion. I respectfully dissent from part II.B because I believe that CWA’s notice adequately informs employees of their right to object to funding nonrepresentational activities.

In rejecting CWA’s notice, the court concludes that some employees who might oth*1383erwise object may choose not to do so out of a mistaken sense of futility because they erroneously believe that “the decision to grant a reduction rests entirely within the Union’s discretion.” Maj. Op. at 1380. Yet CWA’s notice clearly states that “[t]he agency fee payable by objectors will be based on the Union’s expenditures” for representational activities. Joint Appendix (J.A.) at 74 (emphasis added). And of critical importance, nothing in the record establishes or even suggests that CWA’s notice has ever led any employees in any way to misunderstand their rights after the Supreme Court decided Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). I therefore do not believe that CWA’s use of this particular notice is arbitrary, discriminatory, or in bad faith, as is required to constitute a breach of the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916-17, 17 L.Ed.2d 842 (1967).

As I read Beck and its progenitors, I also believe that CWA’s notice adequately informs potential objectors of the type of union activities that they are obligated to fund. The notice states that objectors must pay only for “those activities or projects normally or reasonably undertaken by the Union to represent employees in its bargaining units with respect to their terms and conditions of employment.” JA. at 74. To me, this definition is equivalent to what the Supreme Court in Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428 (1984), called “the test” of chargeable expenses: “whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.”

Acknowledging both the Ellis formulation and the Supreme Court’s subsequent reliance on this formulation in Beck, my colleagues conclude that Beck adopted “a more restrictive formulation of the test” by limiting chargeable expenses.to “‘those germane to collective bargaining, contract administration, and grievance adjustment.’ ” Maj. Op. at 1380 (quoting Beck, 487 U.S. at 745, 108 S.Ct. at 2648-49). With all due respect, I can find nothing in Beck or elsewhere indicating that this alternative formulation is any more restrictive than the Ellis test. While the phrase “collective bargaining, contract administration, and grievance adjustment” appears repeatedly in Beck, in my view it is but a shorthand reference to exactly the same class of activities described in the Ellis test. Had the Supreme Court adopted a more restrictive test in Beck, I doubt that it would have reiterated the Ellis formulation as its concluding paragraph. See 487 U.S. at 762-63, 108 S.Ct. at 2657-58. To my ear, moreover, the language of CWA’s policy— “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” — sounds like the very definition of the term “collective bargaining.” In fact, section 8(d) of the National Labor Relations Act defines collective bargaining in part as “confer[ring] in good faith with respect to wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d) (1988).

Nor do I think that Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), will sustain the court’s conclusion that CWA’s notice provided “ ‘potential objectors’ ” with insufficient information. Maj. Op. at 1379-81 (quoting Hudson, 475 U.S. at 306, 106 S.Ct. at 1075-76). Although I agree with the proposition that potential objectors to a union security clause must always receive “sufficient” information about their rights, see Maj. Op. at 1379 n. 6, the issue before us is what constitutes sufficient information. Hudson answered this question only with respect to nonunion employees who have already qualified for a reduced agency fee, addressing the amount of information they need to determine whether to object further to the union’s specific apportionment of chargeable and nonchargeable activities. See 475 U.S. at 306-07, 106 S.Ct. at 1075-76. Here, unlike in Hudson, the issue is the amount of information necessary for nonunion employees to determine in the first instance whether to object to paying the union’s full agency fee. (Again, no evidence in the record suggests that any non*1384union employees lacked sufficient information to understand that by objecting to CWA’s full agency fee they would be charged a reduced fee that excluded nonrepresentational expenses.) Were the appellants here challenging the sufficiency of the information that CWA provides at the second stage of its objection policy, when CWA promises objectors “a full explanation of the basis for the reduced fee,” J.A. at 74, Hudson would be relevant, but this is not appellants’ challenge. The court has thus applied Hudson to an issue Hudson did not consider, demanding far more of the union than Beck and Ellis require.

I too have some concerns about the adequacy of notice initially given new employees. But because no new employees have claimed that they received inadequate notice at the time of their hire, and because the record does not contain evidence that any new employees have been prejudiced, I would be comfortable affirming on this record. My view would be different if new employees had made such a claim and the facts were not as the union represented at oral argument.

I would affirm the district court in all respects.