Corey D. White v. Communications Workers of America, Afl-Cio, Local 13000 on Appeal From the United…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 00-1816
COREY D. WHITE,
Appellant
v.
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO, LOCAL 13000
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF
PENNSYLVANIA
(Dist. Court No. 99-cv-04791)
District Court Judge: Jan E. DuBois
Submitted Under Third Circuit LAR
34.1(a)
September 15, 2003
Before: ALITO, AMBRO, and
CHERTOFF, Circuit Judges.
(Opinion Filed: June 4, 2004)
DOUGLAS E. GERSHUNY
26 So. Pennsylvania Avenue
P.O. Box 58
Atlantic City, NJ 08404-0058
Counsel for Appellant
RICHARD H. MARKOWITZ
NANCY A. WALKER
MARKOWITZ & RICHMAN
121 South Broad Street
1100 North American Building
Philadelphia, PA 19107
JAMES B. COPPESS
815 Sixteenth Street, N.W.
Washington, D.C. 20006
Counsel for Appellees
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
1Unfortunately, the CBA is not in the
record, but the parties agree on the

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2
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 (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,
content of the relevant provisions.
2See Kolinske v. Lubbers, 712 F.2d
471, 472 n.2 (D.C. Cir. 1983) (“A type of
union security clause, an agency shop
clause requires all employees covered by
the collective bargaining agreement to
pay dues or equivalent fees to the union,
but does not require every employee to
join the union as a condition of retaining
employment.”).
3For example, if a non-CWA member
employed by a CWA agency shop
notifies the CWA in May of 2004 that he
does not wish to pay non-bargaining-
related dues, he will not be charged for
such dues between July of 2004 and June
of 2005.

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3
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
4Although White makes much of the
CWA’s failure to send the CWA News to
the correct address, this failure does not
appear to form the basis for his First
Amendment claim. Instead, White
contends that requiring him to comply
with the Opt-Out Procedure runs afoul of
the First Amendment.
5The precise language of the First
Amendment claim reads as follows:
Defendant infringes plaintiff’s First
Amendment rights not to associate and
plaintiff’s Section 7 rights not to support
non-collective bargaining activity by
mandating that plaintiff object to paying
full union dues annually, in the manner
designated by defendant, at the time
designated by defendant.
App. II at 186.

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4
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 (1982) (union rule
restricting campaign contributions to
candidates for union office); United
Steelworkers v. Weber, 443 U.S. 193, 200
(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 (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.
6Two other courts of appeals have
reached First Amendment claims in
challenges to provisions of collective
bargaining agreements governed by the
NLRA without discussing the question of
state action. See Hammond v. United
Papermakers & Paperworkers Union,
462 F.2d 174, 175 (6th Cir. 1972); Seay
v. McDonnell Douglas Corp., 427 F.2d
996, 1003-04 (9th Cir. 1970).

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5
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 (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. Edmonson Oil Co., 457 U.S. 922,
937 (1982)); see also Angelico v. Lehigh
Valley Hosp., Inc., 184 F.3d 268, 277 (3d
Cir. 2000). 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 (1992) (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 governmen tal
assistance and benefits” because “the
peremptory challenge system, as well as
the jury trial system of which it is a part,
simply could not exist” “without the overt,
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
government.” 500 U.S. at 622. See also id.
at 622-24. Among other things, the Court
noted that a litigant exercising a
peremptory challenge must call on the trial
judge, “who beyond all question is a state
actor,” to excuse the juror whom the
litigant seeks to dismiss. Id. at 624.
In the present case, White draws a
comparison between the exercise of a
peremptory challenge and the CWA’s Opt-
Out Procedure. Just as state participation
is needed to effectuate a peremptory
challenge, White maintains, the NLRA is
needed to effectuate the Opt-Out
Procedure. In other words, he contends, if
7Since we hold that White has not
established the presence of the first
Edmonson factor, we need not decide
whether White could have shown that the
CWA is a state actor based solely on that
factor.

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6
Section 158(a)(3) of the NLRA did not
permit agency-shop clauses, non-union
employees could not be forced to pay dues,
and thus there would be no need to devise
p r o c e d u r e s p e rm it t in g n on-u nio n
employees to decline to pay part of their
compulsory dues.
This argument, however, overlooks
a significant difference between
peremptory challenges and agency-shop
clauses. The right to exercise peremptory
challenges is conferred by statute or rule,
not by virtue of an agreement between the
parties. See, e.g., 28 U .S.C. § 1870; Fed.
R. Civ. Proc. 47(b); Fed. R. Crim. Proc.
24(b). Agency-shop clauses result from
agreements between employers and
unions. As the District of Columbia
Circuit has observed:
While the NLRA provides a
f r a m e w o r k t o a s s i s t
employees to organize and
bargain collectively with
their employers, the NLRA
is neutral with respect to the
c o n t e n t o f p a r t i c u l a r
agreements. See NLRA §
8(d), 29 U.S.C. § 158(d);
Local 24, International
Brotherhood of Teamsters v.
Oliver, 358 U.S. 283, 294-
95, 79 S. Ct. 297, 303-04, 3
L.Ed.2d 312 (1959). The
NLRA does not mandate the
existence or content of, for
example, seniority clauses,
w o r k r u l e s, s ta f f i n g
requirements, or union
security provisions like
agency shop clauses or
m a n d a t o r y p a y r o l l
deductions for union dues.
Even though federal law
provides an encompassing
umbrella of regulation, the
parties, like any two parties
to a private contract, were
still free to adopt or reject
an agency shop clause with
or without government
appr oval. Thu s, the
authorization for agency
shop clauses provided by
NLRA section 8(a)(3) does
not transform agency shop
clauses into a right or
privilege created by the state
or one for whom the state is
responsible.
Kolinske, 712 F.2d at 478. If the fact that
the government enforces privately
negotiated contracts rendered any act taken
pursuant to a contract state action, the state
action doctrine would have little meaning.8
8Shelley v. Kraemer, 334 U.S. 1
(1948), did not endorse such an
argument. In that case, the Court held
that a state court’s enforcement of a
restrictive covenant in a deed to real
property that barred African-Americans
from owning that property amounted to
state action. Shelley, 334 U.S. at 20.
The Court distinguished the case before
it, however, from situations in which
private actors engage in racial
discrimination but do not ask
government officials to enforce their

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7
White objects to this reasoning on
the ground that federal labor law gives
unions greater bargaining power than they
would have otherwise possessed. But for
the additional leverage that the NLRA
affords unions, the argument runs, unions
would never be able to extract concessions
like agency-shop clauses from employers
at the bargaining table. See Brief for
A p p e l l a n t a t 1 9 ( c it i n g A m .
Communications Ass’n. v. Douds, 339
U.S. 382, 401 (1940) (“[W]hen authority
derives in part from Government’s thumb
on the scales, the exercise of that power by
private persons becomes closely akin, in
some respects, to its exercise by
Government itself.”)). However, as the
CWA points out, the Supreme Court’s
decision in Jackson v. Metro. Edison Co.,
419 U.S. 345 (1974), forecloses the
argument that a private party negotiating a
contract must be viewed as a state actor if
the state has furnished the party with more
bargaining power than it would have
otherwise possessed.
In Jackson, a Pennsylvania
regulatory agency granted a utility a
monopoly over the sale of electrical power
in the plaintiff’s area. Acting pursuant to
a state regulation that permitted utilities to
“discontinue service to any customer on
reasonable notice of nonpayment of bills,”
the utility terminated the plaintiff’s
service. Jackson, 419 U.S. at 346. The
plaintiff sued the utility, claiming that the
utility had terminated her power without
affording her notice and a hearing and had
thus violated the Due Process Clause. The
plaintiff contended that the defendant’s
monopoly in the market for electrical
power rendered the defendant a state actor.
The Court rejected this argument, stating
that the defendant’s state-crea ted
monopoly was “not determinative in
considering whether [the defendant’s]
termination of service to [the plaintiff] was
‘state action.’” Id. at 351-52; see also
Crissman v. Dover Downs Entm’t., 289
F.3d 231, 247 (3d Cir. 2002) (en banc)
(holding that even though a state racing
regulation commission had granted a
racetrack a “six-month monopoly” in the
market for harness racing, the acts of the
entity operating the racetrack were not
attributable to the state).
The state’s grant of a monopoly to
the utility surely increased the utility’s
power to bargain with its customers
concerning the terms on which the utility
would supply power – including,
presumably, the process due customers
suspected of failing to pay their bills.
Nonetheless, the Court held that the
utility’s termination of the plaintiff’s
service was not state action. Similarly, in
this case, it could be plausibly argued that
“the NLRA grants unions something of an
exclusive franchise through majority
representation.” Kolinske, 712 F.2d at
478. It may well be that the CWA would
not have been able to induce Bell to
decisions to do so against others. Id. at
19 (“These are not cases . . . in which the
States have merely abstained from
action, leaving private individuals free to
impose such discriminations as they see
fit.”).

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8
include an agency-shop provision in the
collective bargaining agreement between
Bell and the CWA absent the CW A’s
“exclusive franchise.” However, under
Jackson, the CWA’s statutorily enhanced
bargaining power is insufficient to warrant
a finding of state action. See also Price v.
UAW, 795 F.2d at 1133 (“[T]he naked fact
that a [union] . . . is accorded monopoly
status is insufficient alone to denominate
that entity’s action as government
action.”).
B.
White points to a pair of Railway
Labor Act (“RLA”) cases to support the
proposition that the CWA Opt-Out
Procedure amounts to state action. See
Railway Employees’ Dept. v. Hanson, 351
U.S. 225 (1956); Shea v. Int’l. Ass’n. of
Machinists & Aero. Workers, 154 F.3d
508 (5th Cir. 1998) (relying on Hanson).
In Hanson, the plaintiffs’ employer, a
railroad, and the defendant railway
employees’ union entered into a collective
bargaining agreement providing that union
membership was a condition of continued
employment by the railroad. The plaintiffs
sued the union, claiming that the “union-
shop” provision of the collective
bargaining agreement violated the
plaintiffs’ First Amendment rights. The
Supreme Court found that the union’s
implementation of the union-shop
provision amounted to state action. The
Court based this conclusion on the fact that
the RLA, which governs collective
bargaining by railway employees, permits
t h e use of u nion-s h o p c l a u s e s
“notwithstanding any law ‘of any state.’”
Hanson, 351 U.S. at 232. Since state law
could not supersede union-shop clauses
governed by the RLA, the Court
concluded, such clauses bore “the
imprimatur of federal law,” and their
implementation constituted state action.
Id.
The Hanson Court further observed
that the NLRA, unlike the RLA, does not
make similar provisions in collective
barg a i n i n g agreem ents supers ede
conflicting state law. See Hanson, 351
U.S. at 232 (“The parallel provision in §
14 (b) of the Taft-Hartley Act . . . makes
[a] union shop agreement give way before
a state law prohibiting it.”); see also 29
U.S.C. § 164(b) (“Nothing in this Act . . .
shall be construed as authorizing the
execution or application of agreements
requiring membership in a labor
organization as a condition of employment
in any State or Territory in which such
execution or application is prohibited by
State or Territorial law.”). Thus, the
rationale for finding that an act done
pursuant to a collective bargaining
agreement governed by the RLA is state
action is not applicable to an act
authorized by an agreement controlled by
the NLRA. See Price, 795 F.2d at 1131
(“As [the RLA] offered a means to
override the law of 17 states at the time, .
. . the Hanson Court found government
action.”); Kolinske, 712 F.2d at 476 (“In
Hanson it was the preemption of a contrary
state law by federal law that was central to
the Court’s finding of state action.”).
The RLA does not apply to the
collective bargaining agreement at issue

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9
here, as the RLA governs only collective
bargaining involving “railroad[s] subject
to the jurisdiction of the Surface
Transportation Board, . . . any company
which is directly or indirectly owned or
controlled by or under common control
with any carrier by railroad,” 45 U.S.C. §
151(a), and “common carrier[s] by air,” 45
U.S.C. § 181; see also Capraro v. United
Parcel Serv. Co., 993 F.2d 328, 331 n.4
(3d Cir. 2001). Accordingly, the ground
on which the Court found state action in
Hanson is absent.
The same reasoning applies to
Shea, in which the Fifth Circuit found that
a procedure by which n on-union
employees in agency shops could decline
to pay non-bargaining-related dues
amounted to state action because “the
RLA expressly states that it supersedes
state law, and hence federal law is the
authority through which private rights are
lost.” Shea, 154 F.3d at 513 n.2. Since the
NLRA, rather than the RLA, applies to the
collective bargaining agreement between
Bell and the CWA, Hanson and Shea are
inapposite.
C.
We have carefully considered the
court of appeals’ decisions holding that
state action is present when a union takes
action pursuant to an agency-shop
provision in a collective bargaining
agreement governed by the NLRA, but we
find those decisions unconvincing. In
Linscott v. Millers Falls Co., 440 F.2d 14
(1st Cir. 1971), the First Circuit relied on
Hanson and did not find it critical that the
relevant provision of the RLA, unlike the
NLRA, preempts state law. The First
Circuit reasoned that, “[i]f federal support
attaches to the union shop if and when two
parties agree to it, it is the same support,
once it attaches, even though the consent
of a third party, the state, is a pre-
condition.” Linscott, 440 F.2d at 16; see
also id. at 16 n.2 (stating that 29 U.S.C. §
158(a)’s “recognition of the union shop . .
. constitutes governmental endorsement in
an area in which Congress makes the
rules”). In essence, the court concluded
that Congress’s express authorization of
agency-shop clauses makes actions taken
pursuant to such clauses state action.
In Am. Mfrs. Mut. Ins. Co. v.
Sullivan, supra, however, the Supreme
Court rejected the argument that a
legislature’s express permission of a
practice is sufficient to make the act of
engaging in that practice state action. The
Pennsylvania law at issue in Sullivan
permitted an insurer providing workers’
compensation insurance to a private
employer to withhold payments of medical
expenses to an employee of the insured,
pending the completion of a “utilization
review” assessing the reasonableness of
the employee’s claim. To obtain
permission to withhold benefits during
utilization review, an insurer was required
to file a form with a state agency “detailing
the employee’s injury, and the medical
treatment to be reviewed.” Sullivan, 526
U.S. at 45. The plaintiffs claimed that the
defendant insurers’ act of withholding
payment of their medical expenses
pending utilization review violated their

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10
constitutional right to due process. The
plaintiffs predicated their argument for
state action on the state legislature’s
express permission to engage in the
utilization review procedure.
The Supreme Court rejected this
argument. The Court did “not doubt that
the State’s decision to provide insurers the
option of deferring payment for
unnecessary and unreasonable treatment
pending review can in some sense be seen
as encouraging them to do just that.” Id. at
53. However, the Court viewed “this kind
of subtle encouragement” as “no more
significant than that which inheres in the
State’s creation or modification of any
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
232). Thus, the court relied on Congress’s
authorization of agency-shop clauses in
Section 158(a)(3). As noted above, this
fact is insufficient to establish the presence
of state action, under Sullivan. For these
reasons, we are not convinced by the court
of appeals’ decisions finding state action
to be present in circumstances similar to
those present here.
III.
For the reasons set out above and in
Price and Kolinske, we hold that the
CWA’s implementation of the Opt-Out
Procedure did not constitute state action.
Accordingly, we affirm the District
Court’s judgment.

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