White v. Comm. Workers of America, Local 1300

• Decision Date: 04 June 2004
• Docket Number: No. 00-1816.,00-1816.
• Parties: Corey D. WHITE, Appellant v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 13000.
• Court: U.S. Court of Appeals — Third Circuit

370 F.3d 346

Corey D. WHITE, Appellant v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 13000.

No. 00-1816.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) September 15, 2003.

June 4, 2004.

Douglas E. Gershuny, Atlantic City, for Appellant.

Richard H. Markowitz, Nancy A. Walker, Markowitz & Richman, Philadelphia, James B. Coppess, Washington, for Appellees.

Before ALITO, AMBRO, and CHERTOFF, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

Corey D. White ("White") appeals an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment in favor of the Communications Workers of America and the Communications Workers of America Local 1300 (collectively the "CWA"). For the reasons stated below, we affirm.

I.

White began employment with Bell Atlantic-Pennsylvania, Inc. ("Bell") in 1986. The CWA and Bell are parties to a collective bargaining agreement (the "CBA"), two provisions of which are pertinent to the present appeal.¹ First, the CBA provides that the CWA is the exclusive representative of the employees in White's workplace in negotiations with Bell management. Second, the CBA contains an "agency shop" provision,² which requires all employees in White's workplace, as a condition of continued employment, to pay dues to the CWA, regardless of whether they choose to join the union. Accordingly, despite the fact that White never became a member of the CWA, he was required to pay union dues.

The Supreme Court has held that under Section 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), a plaintiff who works in an agency shop may be required to pay only those fees "necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues." Communications Workers of Am. v. Beck, 487 U.S. 735, 762-63, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). Since White's workplace was an agency shop, he was entitled under Beck to refrain from paying the portion of his union dues that the CWA did not intend to use for negotiating with management.

In 1988, in order to comply with Beck, the CWA adopted a procedure (the "Opt-Out Procedure") under which employees who work in agency shops and are represented by the CWA may notify the CWA during May of a given year that they intend to refrain from paying the portion of their compulsory dues that the CWA does not mean to use for labor-management negotiations. Employees availing themselves of the Opt-Out Procedure are not charged for this portion of the union dues for the period beginning in the July after notification and ending in the June of the following year.³ After a year, the CWA resumes charging the full amount of dues unless employees again opt out. The CWA informs Bell employees of the Opt-Out Procedure by placing a notice in its newsletter, the CWA News. The CWA publishes ten issues of the CWA News per year and inserts the notice in one such issue.

At all relevant times, the CWA relied on information supplied by Bell to determine the addresses of the Bell employees whom it represented, and the CWA sent the CWA News to those addresses. It is undisputed that, between 1988 and 1997, Bell did not give the CWA White's correct address. Consequently, White did not receive the CWA News until 1997. White began receiving the CWA News in 1997, he declined to read it because, according to White, "on their face, the CWA News magazines look[ed] like union propaganda newspapers, and there [was] no hint that notice of anything pertinent to a non-union employee would be contained therein." App. II at 139.⁴ As a result, the CWA charged White both the bargaining-related and non-bargaining-related portions of his dues between 1988 and 1998.

White learned of his right to opt out by word of mouth in August or September of 1998. In October of 1998, White filed a complaint against the CWA with the National Labor Relations Board ("NLRB"). White claimed that the CWA had violated the NLRA by "failing to adequately notify [him] of his Beck rights." Id. at 127. By letter, the Acting Regional Director of the NLRB ("Director") dismissed White's complaint, finding that "[t]he evidence does not establish that the Unions violated Section 8(b)(1)(a) of the [NLRA] by failing to notify [White] of [his] rights" under Beck. Id. at 76. White appealed the Director's decision to the General Counsel of the NLRB, who affirmed the Director's decision for substantially the reasons set forth in the Director's letter. White requested that the General Counsel reconsider his decision, but the General Counsel refused.

In September 1999, White filed a pro se complaint against the CWA in the District Court. In his complaint, White claimed (1) that the defendants had breached their duty of fair representation by failing to notify him of his Beck rights and (2) that the Opt-Out Procedure infringed his "First Amendment rights not to associate and ... [his NLRA] Section 7 rights not to support non-collective bargaining activity." Id. at 186.⁵ White sought a refund of the non-bargaining-related dues that he paid between 1988 and 1998, as well as an injunction prohibiting the use of the Opt-Out Procedure in the future.

The defendants moved for summary judgment, and the District Court granted the motion. The Court held that it lacked jurisdiction over White's Section 7 claim because the National Labor Relations Board had exclusive jurisdiction over such claims. As to White's First Amendment claim, the Court stated that the Opt-Out Procedure did not amount to state action and was thus not subject to constitutional constraints. The Court relied on two courts of appeals decisions holding that agency-shop clauses in collective bargaining agreements do not constitute state action, see Price v. UAW, 795 F.2d 1128 (2d Cir.1986); Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.1983), as well as Supreme Court decisions holding, in other contexts, that "private union conduct does not amount to state action." App. I at 9 (citing United Steelworkers v. Sadlowski, 457 U.S. 102, 121 n. 16, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982)) (union rule restricting campaign contributions to candidates for union office); United Steelworkers v. Weber, 443 U.S. 193, 200, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (affirmative action plan in collective bargaining agreement). Finally, the District Court held that the statute of limitations barred White's duty-of-fair-representation claim.

White filed a timely notice of appeal, and we granted his request for appointed counsel. On appeal, White argues that the District Court erred in failing to reach the merits of his First Amendment claim because the CWA's implementation of the Opt-Out Procedure in fact constitutes state action. White does not contest the denial of his NLRA and duty-of-fair-representation claims.

II.

We note at the outset that the courts of appeals are divided on the question whether actions taken by a union pursuant to an agency-shop provision in a collective bargaining agreement constitute state action. Compare Price v. UAW, 795 F.2d 1128 (2d Cir.1986) (no state action); Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.1983) (same); with Beck v. Communications Workers of Am., 776 F.2d 1187 (4th Cir.1985) (state action); Linscott v. Millers Falls Co., 440 F.2d 14 (1st Cir.1971) (same).⁶ The Supreme Court has explicitly left this issue open. See Communications Workers of Am. v. Beck, 487 U.S. 735, 761, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988) ("We need not decide whether the exercise of rights permitted, though not compelled, by § 8(a)(3) [of the National Labor Relations Act] involves state action."). For essentially the reasons outlined by the District of Columbia and Second Circuits, we agree that state action is not present in these circumstances. We add the following comments addressing the specific arguments that White has advanced.

A.

To establish that challenged conduct was state action, a plaintiff must demonstrate two things. First, the conduct at issue must either be mandated by the state or must represent the exercise of a state-created right or privilege. Am. Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Second, the party who engaged in the challenged conduct must be a person or entity that can "`fairly be said to be a state actor.'" Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)); see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.1999). Because we hold that White has failed to make the second showing required to establish state action, we need not reach the question whether he has made the first.

In determining whether a person or entity can be fairly described as a state actor, "it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury [to the plaintiff] is aggravated in a unique way by the incidents of governmental authority." Edmonson v. Leesville Concrete, Inc., 500 U.S. 614, 621-22, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (citations omitted); see also Mark v. Borough of Hatboro, 51 F.3d 1137, 1143 (3d Cir.1995) (applying this test). White relies solely on the first of these factors, arguing that 29 U.S.C. § 158(a)(3)'s authorization of agency-shop clauses in collective bargaining agreements provides the CWA with sufficient "governmental assistance" to render the CWA's implementation of the Opt-Out Procedure state action.⁷ We disagree.

Although White attempts to analogize the conduct of the CWA to the conduct at issue in Edmonson — a civil litigant's exercise of peremptory challenges — the analogy is flawed. In Edmonson, the Court held that a civil litigant who exercises a peremptory challenge "relies on governmental assistance and benefits" because ...