Glen Wilkofsky v. American Federation of Musicians Local 45

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2742
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GLEN WILKOFSKY,
Appellant
v.
AMERICAN FEDERATION OF MUSICIANS LOCAL 45;
ALLENTOWN SYMPHONY ASSOCIATION INC
______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 5-22-cv-01424)
District Judge: The Honorable Joseph F. Lesson, Jr.
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Submitted Under Third Circuit L.A.R. 34.1(a)
May 16, 2023
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Before: CHAGARES, Chief Judge, GREENAWAY, JR.,
and PHIPPS, Circuit Judges.
(Opinion Filed: May 31, 2023)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
After the Supreme Court decided Janus v. Am. Fed’n of State, Cnty., and Mun.
Emps., Council 31, 138 S. Ct. 2448 (2018), Glen Wilkofsky stopped paying his union dues,
arguing that such payments violated his free speech rights. He brought this 42 U.S.C.
§ 1983 litigation to avail himself of his constitutional rights. There is just one problem: the
Defendants are not state actors and thus cannot be hauled into court for § 1983 claims.
Accordingly, we will affirm the District Court’s Order.
I. BACKGROUND
Factual Background
Glen Wilkofsky has been an employee of the Allentown Symphony Orchestra for
more than two decades. Allentown Symphony Association (the Symphony) is his
employer. As a member of the Union, Wilkofsky is represented by the American
Federations of Musicians, Local 45 (the Union) for purposes of collective bargaining. The
Pennsylvania Labor Relations Board certified the Union as the exclusive representative for
certain employees of the Symphony, including Wilkofsky, pursuant to § 603(c) of the
Public Employe Relations Act (PERA). 1
Although reluctantly, Wilkofsky paid his dues as a union member for nearly twenty
years, he stopped after the Supreme Court decided Janus. The Union notified Wilkofsky
that his failure to pay his dues violated the 2019 Collective Bargaining Agreement (CBA)
that the Union had entered into with the Symphony on behalf of the musicians. He
1
Employee is spelled “employe” in this context and in official documents referencing
PERA.
2
continued to refuse to pay his dues and the Union subsequently expelled him from the
Union. As a consequence of his expulsion, the Symphony prohibited Wilkofsky from
performing with the orchestra and warned him that he may be fired if he did not rejoin the
union and pay his dues. At the moment, he cannot perform as a member of the orchestra
until he rejoins the Union as a member.
Procedural History
Wilkofsky filed a Complaint alleging the Symphony and the Union violated his First
and Fourteenth Amendment rights by enforcing the CBA against him after Janus. He
alleged that this enforcement is the foundation of his § 1983 action. The Defendants filed
their respective motions to dismiss arguing that Wilkofsky cannot make out a § 1983 claim
because they are not state actors.
The District Court agreed with the Defendants, dismissed Wilkofsky’s Complaint
without prejudice, and granted him leave to amend his Complaint. Wilkofsky filed a First
Amended Complaint (FAC) raising the same allegations but with more facts. Again, the
Defendants filed their respective motions to dismiss arguing that they were not state actors.
And again, the District Court agreed, but this time, it dismissed the Complaint with
prejudice because Wilkofsky “had an opportunity to cure his complaint’s deficiencies but
did not” and that any more amendments would be useless. App. 3 n.2.
Wilkofsky filed this timely notice of appeal.
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II. JURISDICTION
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. The District
Court’s Order dismissing Wilkofsky’s FAC with prejudice and disposing of all his claims
is a final order. Thus, we have jurisdiction pursuant to 28 U.S.C. § 1291.
III. STANDARD OF REVIEW
We exercise plenary review over a district court’s grant of a motion to dismiss for
failure to state a claim. Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). And for
Wilkofsky to survive a motion to dismiss, his complaint must state a plausible claim for
relief on its face. Doe v. Princeton Univ., 20 F.4th 335, 344 (3d Cir. 2022).
IV. DISCUSSION
The Defendants are not State Actors.
On appeal, Wilkofsky incorrectly relies on PERA and misapplies our precedent to
argue that the Defendants are state actors. They are not.
i. Public Employe Relations Act (PERA) and the Defendants
We start with PERA because Wilkofsky incorrectly assumes that the Symphony is
a state actor because it is a public employer under PERA.
The Pennsylvania Labor Relations Board (PLRB) shoulders the responsibility of
administering and enforcing the laws of the Commonwealth that pertain to labor-
management relations. PENNSYLVANIA LABOR RELATIONS BOARD, bit.ly/3McjrUt, (last
visited May 9, 2023). Established in 1937 by the Pennsylvania Labor Relations Act, the
PLRB seeks to facilitate the resolution of private-sector disputes through collective
bargaining, safeguarding the rights of employees, employers, and labor organizations
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involved in lawful activities connected to the collective bargaining process. Id. A
significant portion of the PLRB’s work nowadays pertains to the public sector. Id. That is
because the passage of PERA, in 1970, expanded collective bargaining rights and
responsibilities to encompass most public employees and their employers across all strata
of state government. PERA, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.101. Under
PERA, public employees are granted the right to form unions and designate an exclusive
representative to negotiate on their behalf with their public employer. Id. § 1101.401.
Relevant here, PERA defines a “[p]ublic employer” to include any “nonprofit
organization . . . [that] receiv[es] grants or appropriations from local, State or Federal
governments” and a “[p]ublic employe” as any individual employed by a “[p]ublic
employer.” Id. §§ 1101.301(1)-(2). By its admission, the Symphony, a nonprofit that
receives funds from the government, is considered a public employer under PERA. The
error that Wilkofsky makes, however, is to assume that because the Symphony is a public
employer under PERA, it must then automatically be a state actor for § 1983 purposes. The
following discussion will explain why that is not so. 2
ii. State Action Doctrine when applied does not convert the
Defendants into State Actors.
While there is no clear line between state and private actors, Brentwood Acad. v.
Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001), the Supreme Court has
2
Wilkofsky also ignores the prefatory command contained in § 301 of PERA, which states
that the designation of an entity as a “public employer” pertains to PERA. 43 P.S.
§ 1101.301.
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made clear that “deciding whether there has been state action requires an inquiry into
whether ‘there is a sufficiently close nexus between the State and the challenged action’”
of the Defendants “so that the action of the latter may be fairly treated as of the State itself.”
Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995) (quoting Blum v. Yaretsky,
457 U.S. 991, 1004 (1982)). Our inquiry into whether state action exists is a fact-specific
one. Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
Wilkofsky’s arguments below and on appeal rely on the Defendants’ status as public
employers or entities under PERA. In other words, Wilkofsky professes that the
Defendants are automatically state actors because the Union was certified by the PLRB
pursuant to PERA and because the Symphony is considered a public employer under
PERA. This assertion cannot be correct. Put simply, there are no shortcuts to determining
whether state action exists. Mark, 51 F.3d at 1142 (“[D]eciding whether there has been
state action requires an inquiry” into the relationship between the State and the challenged
action (emphasis added)).
Wilkofsky argues that “the Symphony is a state actor because the Commonwealth
designated it as a state actor and cloaked it with the authority and power of [PERA] as a
public employer.” Appellant’s Br. 8-9. That argument is explicitly foreclosed by our
opinion in White v. Commc’ns Workers of Am., AFL-CIO, Loc. 1300, 370 F.3d 346, 350
(3d Cir. 2004). In White, then-Judge Alito, who also authored Janus, favorably quoted
Kolinske v. Lubbers, 712 F.2d 471, 478 (D.C. Cir. 1983) in rejecting the argument that the
statutorily permitted agency shop provisions in the union’s contract rendered the parties to
that agreement state actors:
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While the NLRA provides a framework to assist employees to organize and bargain
collectively with their employers, the NLRA is neutral with respect to the content
of particular agreements. . . . The NLRA does not mandate the existence or content
of, for example, seniority clauses, work rules, staffing requirements, or union
security provisions like agency shop clauses or mandatory payroll 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 approval. Thus,
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.
White, 370 F.3d at 351. We then stated that “[i]f 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.” Id. Just because PERA permits the parties
to negotiate the disputed contract, which Wilkofsky disagrees with, does not mean that he
has established the requisite state action for purposes of a § 1983 lawsuit. See id. at 353-54
(stating that the Supreme Court rejected the argument that a legislature’s express
permission of a practice is enough to make that practice state action).
Wilkofsky’s analogy to Krynicky v. Univ. of Pittsburgh, 742 F.2d 94 (3d Cir. 1984)
is unpersuasive. Wilkofsky argues that “[t]his situation is akin to” Krynicky “where the
Commonwealth not only provided funding but also had statutorily entangled itself with the
defendant” and that here, too, the Commonwealth has “acted by statute, capturing the
Symphony within the public government umbrella.” Appellant’s Br. 15-16. But the
University of Pittsburgh was “establish[ed] . . . as an instrumentality of the Commonwealth
to serve as a State-related institution in the Commonwealth System of higher education.”
Krynicky, 742 F.2d at 102 (emphasis omitted) (quoting 24 P.S. § 2510-202). The
Commonwealth plays a significant statutorily required role in picking the trustees,
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managing and providing appropriations, setting tuition and fee schedules, auditing the
university, and more. Id. There is no evidence, nor does Wilkofsky allege, that the
Symphony was created in the same manner as the university or that the Commonwealth
plays a statutorily required role in the same areas as the university. The Symphony is not
like the University of Pittsburgh.
Wilkofsky’s reliance on Peltier v. Charter Day Sch., Inc., 37 F.4th 104 (4th Cir.
2022) (en banc), is also unavailing. Unlike the Symphony and the Union that represents
the musicians, the charter schools in North Carolina were state-created and funded and
were providing a service that is “traditionally [an] exclusive government function.” Id. at
122; see Borrell v. Bloomsburg Univ., 870 F.3d 154, 161 (3d Cir. 2017) (stating that if a
private entity exercises powers that are “traditionally the exclusive prerogative of the state”
it is a state actor (citation omitted)).
There is nothing in the Commonwealth’s Constitution that required creating the
Symphony, nor does Wilkofsky argue, that the Commonwealth traditionally establishes
symphonies. All the Commonwealth is doing is providing laws to guide labor relations
between the Union and the Symphony. It is not creating or funding the Defendants. Thus,
it cannot be said that our facts are like those in Peltier.
V. CONCLUSION
We will affirm the District Court’s Order because the Defendants are not state
actors.
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