NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-2742 ______________

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. ______________

Submitted Under Third Circuit L.A.R. 34.1(a) May 16, 2023 ______________

Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PHIPPS, Circuit Judges.

(Opinion Filed: May 31, 2023) ______________

OPINION * ______________

* 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,

(2018), Glen Wilkofsky stopped paying his union dues,

arguing that such payments violated his free speech rights. He brought this

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.

3 II. JURISDICTION

The District Court had jurisdiction pursuant to

. 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

.

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,

, 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.,

, 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 4 involved in lawful activities connected to the collective bargaining process.

A

significant portion of the PLRB’s work nowadays pertains to the public sector.

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,

(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.

5 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,

(3d Cir. 1995) (quoting Blum v. Yaretsky,

(1982)). Our inquiry into whether state action exists is a fact-specific

one. Groman v. Twp. of Manalapan,

, 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,

(“[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,

(3d Cir. 2004). In White, then-Judge Alito, who also authored Janus, favorably quoted

Kolinske v. Lubbers,

(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:

6 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,

. 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.”

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,

(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,

7 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.,

(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.”

; see Borrell v. Bloomsburg Univ.,

(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.

8