White v. Local 13000 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-4-2004
White v. Local 13000
Precedential or Non-Precedential: Precedential
Docket No. 00-1816
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PRECEDENTIAL Counsel for Appellant
UNITED STATES COURT OF RICHARD H. MARKOW ITZ
APPEALS NANCY A. WALKER
FOR THE THIRD CIRCUIT MARKOWITZ & RICHMAN
121 South Broad Street
1100 North American Building
No. 00-1816 Philadelphia, PA 19107
JAMES B. COPPESS
COREY D. WHITE, 815 Sixteenth Street, N.W.
Washington, D.C. 20006
Appellant
v. Counsel for Appellees
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO, LOCAL 13000
OPINION OF THE COURT
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE ALITO, Circuit Judge:
EASTERN DISTRICT OF
Corey D. White (“White”) appeals
PENNSYLVANIA
an order of the United States District Court
for the Eastern District of Pennsylvania
(Dist. Court No. 99-cv-04791)
granting summary judgment in favor of the
District Court Judge: Jan E. DuBois Communications Workers of America and
the Communications Workers of America
Local 1300 (collectively the “CWA”). For
Submitted Under Third Circuit LAR the reasons stated below, we affirm.
34.1(a) I.
September 15, 2003
White began employment with Bell
Before: ALITO, AMBRO, and Atlantic-Pennsylvania, Inc. (“Bell”) in
CHERTOFF, Circuit Judges. 1986. The CWA and Bell are parties to a
collective bargaining agreement (the
(Opinion Filed: June 4, 2004) “CBA”), two provisions of which are
pertinent to the present appeal. 1 First, the
DOUGLAS E. GERSHUNY
26 So. Pennsylvania Avenue
P.O. Box 58 1
Unfortunately, the CBA is not in the
Atlantic City, NJ 08404-0058 record, but the parties agree on the
CBA provides that the CWA is the In 1988, in order to comply with
exclusive representative of the employees Beck, the CWA adopted a procedure (the
in White’s workplace in negotiations with “Opt-Out Procedure”) under which
Bell management. Second, the CBA employees who work in agency shops and
contains an “agency shop” provision,2 are represented by the CWA may notify
which requires all employees in White’s the CWA during May of a given year that
workplace, as a condition of continued they intend to refrain from paying the
employment, to pay dues to the CWA, portion of their compulsory dues that the
regardless of whether they choose to join CWA does not mean to use for labor-
the union. Accordingly, despite the fact management negotiations. Employees
that White never became a member of the availing themselves of the Opt-Out
CWA, he was required to pay union dues. Procedure are not charged for this portion
of the union dues for the period beginning
The Supreme Court has held that
in the July after notification and ending in
under Section 8(a)(3) of the NLRA, 29
the June of the following year.3 After a
U.S.C. § 158(a)(3), a plaintiff who works
year, the CWA resumes charging the full
in an agency shop may be required to pay
amount of dues unless employees again
only those fees “necessary to performing
opt out. The CWA informs Bell
the duties of an exclusive representative of
employees of the Opt-Out Procedure by
the employees in dealing with the
placing a notice in its newsletter, the CWA
employer on labor-management issues.”
News. The CWA publishes ten issues of
Communications Workers of Am. v. Beck,
the CWA News per year and inserts the
487 U.S. 735, 762-63 (1988). Since
notice in one such issue.
White’s workplace was an agency shop, he
was entitled under Beck to refrain from At all relevant times, the CWA
paying the portion of his union dues that relied on information supplied by Bell to
the CWA did not intend to use for determine the addresses of the Bell
negotiating with management. employees whom it represented, and the
CWA sent the CWA News to those
addresses. It is undisputed that, between
content of the relevant provisions. 1988 and 1997, Bell did not give the CWA
White’s correct address. Consequently,
2
See Kolinske v. Lubbers, 712 F.2d
471, 472 n.2 (D.C. Cir. 1983) (“A type of
3
union security clause, an agency shop For example, if a non-CWA member
clause requires all employees covered by employed by a CWA agency shop
the collective bargaining agreement to notifies the CWA in May of 2004 that he
pay dues or equivalent fees to the union, does not wish to pay non-bargaining-
but does not require every employee to related dues, he will not be charged for
join the union as a condition of retaining such dues between July of 2004 and June
employment.”). of 2005.
2
White did not receive the CWA News until NLRB, who affirmed the Director’s
1997. White began receiving the CWA decision for substantially the reasons set
News in 1997, he declined to read it forth in the Director’s letter. White
because, according to White, “on their requested that the General Counsel
face, the CWA News magazines look[ed] reconsider his decision, but the General
like union propaganda newspapers, and Counsel refused.
there [was] no hint that notice of anything
In September 1999, White filed a
pertinent to a non-union employee would
pro se complaint against the CWA in the
be contained therein.” App. II at 139.4 As
District Court. In his complaint, White
a result, the CWA charged White both the
claimed (1) that the defendants had
bargaining-related and non-bargaining-
breached their duty of fair representation
related portions of his dues between 1988
by failing to notify him of his Beck rights
and 1998.
and (2) that the Opt-Out Procedure
White learned of his right to opt out infringed his “First Amendment rights not
by word of mouth in August or September to associate and . . . [his NLRA] Section 7
of 1998. In October of 1998, White filed rights not to support non-collective
a complaint against the CWA with the bargaining activity.” Id. at 186.5 White
N a t i o n a l L abor R elations Boa rd sought a refund of the non-bargaining-
(“NLRB”). White claimed that the CWA related dues that he paid between 1988 and
had violated the NLRA by “failing to 1998, as well as an injunction prohibiting
adequately notify [him] of his Beck the use of the Opt-Out Procedure in the
rights.” Id. at 127. By letter, the Acting future.
Regional Director of the NLRB
The defendants moved for summary
(“Director”) dismissed W hite’s complaint,
judgment, and the District Court granted
finding that “[t]he evidence does not
establish that the Unions violated Section
8(b)(1)(a) of the [NLRA] by failing to
5
notify [White] of [his] rights” under Beck. The precise language of the First
Id. at 76. White appealed the Director’s Amendment claim reads as follows:
decision to the General Counsel of the
Defendant infringes plaintiff’s First
Amendment rights not to associate and
4
Although White makes much of the plaintiff’s Section 7 rights not to support
CWA’s failure to send the CWA News to non-collective bargaining activity by
the correct address, this failure does not mandating that plaintiff object to paying
appear to form the basis for his First full union dues annually, in the manner
Amendment claim. Instead, White designated by defendant, at the time
contends that requiring him to comply designated by defendant.
with the Opt-Out Procedure runs afoul of
the First Amendment. App. II at 186.
3
the motion. The Court held that it lacked We note at the outset that the courts
jurisdiction over White’s Section 7 claim of appeals are divided on the question
because the National Labor Relations whether actions taken by a union pursuant
Board had exclusive jurisdiction over such to an agency-shop provision in a collective
claims. As to White’s First Amendment bargaining agreement constitute state
claim, the Court stated that the Opt-Out action. Compare Price v. UAW, 795 F.2d
Procedure did not amount to state action 1128 (2d Cir. 1986) (no state action);
and was thus not subject to constitutional Kolinske v. Lubbers, 712 F.2d 471 (D.C.
constraints. The Court relied on two Cir. 1983) (same); with Beck v.
courts of appeals decisions holding that Communications Workers of Am., 776
agency-shop clauses in collective F.2d 1187 (4th Cir. 1985) (state action);
bargaining agreements do not constitute Linscott v. Millers Falls Co., 440 F.2d 14state action, see Price v. UAW, 795 F.2d (1st Cir. 1971) (same).6 The Supreme
1128 (2d Cir. 1986); Kolinske v. Lubbers, Court has explicitly left this issue open.
712 F.2d 471 (D.C. Cir. 1983), as well as See Communications Workers of Am. v.
Supreme Court decisions holding, in other Beck, 487 U.S. 735, 761 (1988) (“We need
contexts, that “private union conduct does not decide whether the exercise of rights
not amount to state action.” App. I at 9 permitted, though not compelled, by §
(citing United Steelworkers v. Sadlowski, 8(a)(3) [of the National Labor Relations
457 U.S. 102, 121 n.16 (1982) (union rule Act] involves state action.”). For
restricting campaign contributions to essentially the reasons outlined by the
candidates for union office); United District of Columbia and Second Circuits,
Steelworkers v. Weber, 443 U.S. 193, 200 we agree that state action is not present in
(1979) (affirmative action plan in these circumstances. We add the
collective bargaining agreement). Finally, following comments addressing the
the District Court held that the statute of specific arguments that White has
limitations barred White’s duty-of-fair- advanced.
representation claim.
A.
White filed a timely notice of
appeal, and we granted his request for
6
appointed counsel. On appeal, White Two other courts of appeals have
argues that the District Court erred in reached First Amendment claims in
failing to reach the merits of his First challenges to provisions of collective
Amendment claim because the CWA’s bargaining agreements governed by the
implementation of the Opt-Out Procedure NLRA without discussing the question of
in fact constitutes state action. White does state action. See Hammond v. United
not contest the denial of his NLRA and Papermakers & Paperworkers Union,
duty-of-fair-representation claims. 462 F.2d 174, 175 (6th Cir. 1972); Seay
v. McDonnell Douglas Corp., 427 F.2d
II.
996, 1003-04 (9th Cir. 1970).
4
To establish that challenged to render the CWA’s implementation of
conduct was state action, a plaintiff must the Opt-Out Procedure state action.7 We
demonstrate two things. First, the conduct disagree.
at issue must either be mandated by the
Although White attempts to
state or must represent the exercise of a
analogize the conduct of the CWA to the
state-created right or privilege. Am.
conduct at issue in Edmonson – a civil
Manufacturers Mut. Ins. Co. v. Sullivan,
litigant’s exercise of peremptory
526 U.S. 40, 50 (1999). Second, the party
challenges – the analogy is flawed. In
who engaged in the challenged conduct
Edmonson, the Court held that a civil
must be a person or entity that can “‘fairly
litigant who exercises a peremptory
be said to be a state actor.’” Id. (quoting
challenge “relies on governmen tal
Lugar v. Edmonson Oil Co., 457 U.S. 922,
assistance and benefits” because “the
937 (1982)); see also Angelico v. Lehigh
peremptory challenge system, as well as
Valley Hosp., Inc., 184 F.3d 268, 277 (3d
the jury trial system of which it is a part,
Cir. 2000). Because we hold that White
simply could not exist” “without the overt,
has failed to make the second showing
s i g n if i c a nt p a r t i c i p a t i o n o f t h e
required to establish state action, we need
government.” 500 U.S. at 622. See also id.
not reach the question whether he has
at 622-24. Among other things, the Court
made the first.
noted that a litigant exercising a
In determining whether a person or peremptory challenge must call on the trial
entity can be fairly described as a state judge, “who beyond all question is a state
actor, “it is relevant to examine the actor,” to excuse the juror whom the
following: the extent to which the actor litigant seeks to dismiss. Id. at 624.
relies on governmental assistance and
In the present case, White draws a
benefits; whether the actor is performing a
comparison between the exercise of a
traditional governmental function; and
peremptory challenge and the CWA’s Opt-
whether the injury [to the plaintiff] is
Out Procedure. Just as state participation
aggravated in a unique way by the
is needed to effectuate a peremptory
incidents of governmental authority.”
challenge, White maintains, the NLRA is
Edmonson v. Leesville Concrete, Inc., 500
needed to effectuate the Opt-Out
U.S. 614, 621-22 (1992) (citations
Procedure. In other words, he contends, if
omitted); see also Mark v. Borough of
Hatboro, 51 F.3d 1137, 1143 (3d Cir.
1995) (applying this test). White relies
7
solely on the first of these factors, arguing Since we hold that White has not
that 29 U.S.C. § 158(a)(3)’s authorization established the presence of the first
of agency-shop clauses in collective Edmonson factor, we need not decide
bargaining agreements provides the CWA whether White could have shown that the
with sufficient “governmental assistance” CWA is a state actor based solely on that
factor.
5
Section 158(a)(3) of the NLRA did not agency shop clauses or
permit agency-shop clauses, non-union mandatory payroll
employees could not be forced to pay dues, deductions for union dues.
and thus there would be no need to devise Even though federal law
p r o c e d u r e s p e rm it t in g n on-u nio n provides an encompassing
employees to decline to pay part of their umbrella of regulation, the
compulsory dues. parties, like any two parties
to a private contract, were
This argument, however, overlooks
still free to adopt or reject
a si g n ificant difference betwe en
an agency shop clause with
peremptory challenges and agency-shop
or without government
clauses. The right to exercise peremptory
appr oval. Thu s, the
challenges is conferred by statute or rule,
authorization for agency
not by virtue of an agreement between the
shop clauses provided by
parties. See, e.g., 28 U .S.C. § 1870; Fed.
NLRA section 8(a)(3) does
R. Civ. Proc. 47(b); Fed. R. Crim. Proc.
not transform agency shop
24(b). Agency-shop clauses result from
clauses into a right or
agreements between employers and
privilege created by the state
unions. As the District of Columbia
or one for whom the state is
Circuit has observed:
responsible.
While the NLRA provides a
Kolinske, 712 F.2d at 478. If the fact that
framew ork to assis t
the government enforces privately
employees to organize and
negotiated contracts rendered any act taken
bargain collectively with
pursuant to a contract state action, the state
their employers, the NLRA
action doctrine would have little meaning.8
is neutral with respect to the
content of p articular
agreements. See NLRA § 8
Shelley v. Kraemer, 334 U.S. 18(d), 29 U.S.C. § 158(d);
(1948), did not endorse such an
Local 24, International
argument. In that case, the Court held
Brotherhood of Teamsters v.
that a state court’s enforcement of a
Oliver, 358 U.S. 283, 294-
restrictive covenant in a deed to real
95, 79 S. Ct. 297, 303-04, 3
property that barred African-Americans
L.Ed.2d 312 (1959). The
from owning that property amounted to
NLRA does not mandate the
state action. Shelley, 334 U.S. at 20.
existence or content of, for
The Court distinguished the case before
example, seniority clauses,
it, however, from situations in which
w o r k r u l e s, s ta f f i n g
private actors engage in racial
requirements, or union
discrimination but do not ask
security provisions like
government officials to enforce their
6
White objects to this reasoning on the utility terminated the plaintiff’s
the ground that federal labor law gives service. Jackson, 419 U.S. at 346. The
unions greater bargaining power than they plaintiff sued the utility, claiming that the
would have otherwise possessed. But for utility had terminated her power without
the additional leverage that the NLRA affording her notice and a hearing and had
affords unions, the argument runs, unions thus violated the Due Process Clause. The
would never be able to extract concessions plaintiff contended that the defendant’s
like agency-shop clauses from employers monopoly in the market for electrical
at the bargaining table. See Brief for power rendered the defendant a state actor.
A p p e l l a n t a t 1 9 ( c it i n g A m . The Court rejected this argument, stating
Communications Ass’n. v. Douds, 339 that the defendant’s state-crea ted
U.S. 382, 401 (1940) (“[W]hen authority monopoly was “not determinative in
derives in part from Government’s thumb considering whether [the defendant’s]
on the scales, the exercise of that power by termination of service to [the plaintiff] was
private persons becomes closely akin, in ‘state action.’” Id. at 351-52; see also
some respects, to its exercise by Crissman v. Dover Downs Entm’t., 289
Government itself.”)). However, as the F.3d 231, 247 (3d Cir. 2002) (en banc)
CWA points out, the Supreme Court’s (holding that even though a state racing
decision in Jackson v. Metro. Edison Co., regulation commission had granted a
419 U.S. 345 (1974), forecloses the racetrack a “six-month monopoly” in the
argument that a private party negotiating a market for harness racing, the acts of the
contract must be viewed as a state actor if entity operating the racetrack were not
the state has furnished the party with more attributable to the state).
bargaining power than it would have
The state’s grant of a monopoly to
otherwise possessed.
the utility surely increased the utility’s
In Jackson, a Pennsylvania power to bargain with its customers
regulatory agency granted a utility a concerning the terms on which the utility
monopoly over the sale of electrical power would supply power – including,
in the plaintiff’s area. Acting pursuant to presumably, the process due customers
a state regulation that permitted utilities to suspected of failing to pay their bills.
“discontinue service to any customer on Nonetheless, the Court held that the
reasonable notice of nonpayment of bills,” utility’s termination of the plaintiff’s
service was not state action. Similarly, in
this case, it could be plausibly argued that
decisions to do so against others. Id. at “the NLRA grants unions something of an
19 (“These are not cases . . . in which the exclusive franchise through majority
States have merely abstained from representation.” Kolinske, 712 F.2d at
action, leaving private individuals free to 478. It may well be that the CWA would
impose such discriminations as they see not have been able to induce Bell to
fit.”).
7
include an agency-shop provision in the Hanson, 351 U.S. at 232. Since state law
collective bargaining agreement between could not supersede union-shop clauses
Bell and the CWA absent the CW A’s governed by the RLA, the Court
“exclusive franchise.” However, under concluded, such clauses bore “the
Jackson, the CWA’s statutorily enhanced imprimatur of federal law,” and their
bargaining power is insufficient to warrant implementation constituted state action.
a finding of state action. See also Price v. Id.
UAW, 795 F.2d at 1133 (“[T]he naked fact
The Hanson Court further observed
that a [union] . . . is accorded monopoly
that the NLRA, unlike the RLA, does not
status is insufficient alone to denominate
make similar provisions in collective
that entity’s action as government
ba rg a i n i n g a gr e e m e nts supe r s e de
action.”).
conflicting state law. See Hanson, 351
B. U.S. at 232 (“The parallel provision in §
14 (b) of the Taft-Hartley Act . . . makes
White points to a pair of Railway
[a] union shop agreement give way before
Labor Act (“RLA”) cases to support the
a state law prohibiting it.”); see also 29
proposition that the CWA Opt-Out
U.S.C. § 164(b) (“Nothing in this Act . . .
Procedure amounts to state action. See
shall be construed as authorizing the
Railway Employees’ Dept. v. Hanson, 351
execution or application of agreements
U.S. 225 (1956); Shea v. Int’l. Ass’n. of
requiring membership in a labor
Machinists & Aero. Workers, 154 F.3d
organization as a condition of employment
508 (5th Cir. 1998) (relying on Hanson).
in any State or Territory in which such
In Hanson, the plaintiffs’ employer, a
execution or application is prohibited by
railroad, and the defendant railway
State or Territorial law.”). Thus, the
employees’ union entered into a collective
rationale for finding that an act done
bargaining agreement providing that union
pursuant to a collective bargaining
membership was a condition of continued
agreement governed by the RLA is state
employment by the railroad. The plaintiffs
action is not applicable to an act
sued the union, claiming that the “union-
authorized by an agreement controlled by
shop” provision of the collective
the NLRA. See Price, 795 F.2d at 1131
bargaining agreement violated the
(“As [the RLA] offered a means to
plaintiffs’ First Amendment rights. The
override the law of 17 states at the time, .
Supreme Court found that the union’s
. . the Hanson Court found government
implementation of the union-shop
action.”); Kolinske, 712 F.2d at 476 (“In
provision amounted to state action. The
Hanson it was the preemption of a contrary
Court based this conclusion on the fact that
state law by federal law that was central to
the RLA, which governs collective
the Court’s finding of state action.”).
bargaining by railway employees, permits
t h e u se of u nion-s h o p c l a u s e s The RLA does not apply to the
“notwithstanding any law ‘of any state.’” collective bargaining agreement at issue
8
here, as the RLA governs only collective relevant provision of the RLA, unlike the
bargaining involving “railroad[s] subject NLRA, preempts state law. The First
to the jurisdiction of the Surface Circuit reasoned that, “[i]f federal support
Transportation Board, . . . any company attaches to the union shop if and when two
which is directly or indirectly owned or parties agree to it, it is the same support,
controlled by or under common control once it attaches, even though the consent
with any carrier by railroad,” 45 U.S.C. § of a third party, the state, is a pre-
151(a), and “common carrier[s] by air,” 45 condition.” Linscott, 440 F.2d at 16; see
U.S.C. § 181; see also Capraro v. United also id. at 16 n.2 (stating that 29 U.S.C. §
Parcel Serv. Co., 993 F.2d 328, 331 n.4 158(a)’s “recognition of the union shop . .
(3d Cir. 2001). Accordingly, the ground . constitutes governmental endorsement in
on which the Court found state action in an area in which Congress makes the
Hanson is absent. rules”). In essence, the court concluded
that Congress’s express authorization of
The same reasoning applies to
agency-shop clauses makes actions taken
Shea, in which the Fifth Circuit found that
pursuant to such clauses state action.
a procedure by which n on-u nion
employees in agency shops could decline In Am. Mfrs. Mut. Ins. Co. v.
to pay non-bargaining-related dues Sullivan, supra, however, the Supreme
amounted to state action because “the Court rejected the argument that a
RLA expressly states that it supersedes legislature’s express permission of a
state law, and hence federal law is the practice is sufficient to make the act of
authority through which private rights are engaging in that practice state action. The
lost.” Shea, 154 F.3d at 513 n.2. Since the Pennsylvania law at issue in Sullivan
NLRA, rather than the RLA, applies to the permitted an insurer providing workers’
collective bargaining agreement between compensation insurance to a private
Bell and the CWA, Hanson and Shea are employer to withhold payments of medical
inapposite. expenses to an employee of the insured,
pending the completion of a “utilization
C.
review” assessing the reasonableness of
We have carefully considered the the employee’s claim. To obtain
court of appeals’ decisions holding that permission to withhold benefits during
state action is present when a union takes utilization review, an insurer was required
action pursuant to an agency-shop to file a form with a state agency “detailing
provision in a collective bargaining the employee’s injury, and the medical
agreement governed by the NLRA, but we treatment to be reviewed.” Sullivan, 526
find those decisions unconvincing. In U.S. at 45. The plaintiffs claimed that the
Linscott v. Millers Falls Co., 440 F.2d 14 defendant insurers’ act of withholding
(1st Cir. 1971), the First Circuit relied on payment of their medical expenses
Hanson and did not find it critical that the pending utilization review violated their
9
constitutional right to due process. The 232). Thus, the court relied on Congress’s
plaintiffs predicated their argument for authorization of agency-shop clauses in
state action on the state legislature’s Section 158(a)(3). As noted above, this
express permission to engage in the fact is insufficient to establish the presence
utilization review procedure. of state action, under Sullivan. For these
reasons, we are not convinced by the court
The Supreme Court rejected this
of appeals’ decisions finding state action
argument. The Court did “not doubt that
to be present in circumstances similar to
the State’s decision to provide insurers the
those present here.
option of deferring payment for
unnecessary and unreasonable treatment III.
pending review can in some sense be seen
For the reasons set out above and in
as encouraging them to do just that.” Id. at
Price and Kolinske, we hold that the
53. However, the Court viewed “this kind
CWA’s implementation of the Opt-Out
of subtle encouragement” as “no more
Procedure did not constitute state action.
significant than that which inheres in the
Accordingly, we affirm the District
State’s creation or modification of any
Court’s judgment.
legal remedy.” Id. The First Circuit’s
holding in Linscott that Congress’s
authorization of agency-shop clauses
renders actions taken pursuant to such
provisions state action cannot be squared
with Sullivan’s rejection of the notion that
the express legislative authorization of an
act makes that act state action.
A similar analysis applies to the
Fourth Circuit’s decision in Beck v.
Communications Workers of Am., 776
F.2d 1187 (4th Cir. 1985), in which the
Court held that a union’s act of charging
dues to nonmembers pursuant to an
agency-shop clause constituted state
action. The court approvingly quoted
Hanson’s statement that “[t]he enactment
of the federal statute authorizing union
shop agreements is the governmental
action on which the Constitution operates,
though it takes a private agreement to
invoke the federal sanction.” Beck, 776
F.2d at 1207 (quoting Hanson, 351 U.S. at
10