A Pennsylvania musician’s claim that he can’t be forced to pay union dues could expand the right of public employees to opt out of supporting unions, recently granted by the U.S. Supreme Court.
Lawyers representing Lehigh Valley drummer Glen Wilkofsky have asked the Supreme Court to consider whether the Allentown Symphony Association wrongly threatened Wilkofsky with termination when he stopped paying dues to the American Federation of Musicians.
Wilkofsky, who played the kettledrums, argues he has a First Amendment right to choose whether to support a union, according to the 2018 Supreme Court decision in Janus v. American Federation of State, County, and Municipal Employees.
Wilkofsky claimed that this is because the symphony receives funding from the state and Pennsylvania Labor Relations Act includes nonprofit organizations that receive government grants or funds under the definition of public employers.
“I think ultimately the simple argument is that our client’s bargaining unit was organized under PERA, which defines the orchestra as a public employee, and Janus applies here,” said Nathan McGrath, president and general counsel of The Fairness Center, a nonprofit law firm that represents public employees in union disputes.
The Fairness Center said a ruling in Wilkofsky’s favor would extend First Amendment protections under the Janus Act to employees of nonprofits in the health care, education and transportation industries.
Daniel DiSalvo, a political science professor at the City University of New York who studies labor unions, state government and public policy, said that if the Supreme Court agrees to hear the case and rules in Wilkofsky’s favor, and thousands of unionized workers in the nonprofit sector have a choice about whether to pay dues, it could have a significant impact.
“It’s not a huge amount, but it’s certainly enough to significantly impact union membership and union revenue,” DiSalvo said.
Courts in other states have grappled with similar questions about when workers whose jobs are supported by local, state or federal funds are considered public employees, DiSalvo said.
“It appears that Pennsylvania law has created a ambiguous status where in some respects you are considered a public employee and in others you are not,” DiSalvo said.
The Supreme Court, which has a conservative majority, recently issued a ruling unfavourable to trade unions, including: a case from this summer that found an employer could sue a union for damages resulting from the strike.
The Janus case was hailed as a major victory for First Amendment rights and the right-to-work movement, as well as a blow to public-sector unions.
In this case, the governor of Illinois filed a lawsuit seeking to overturn a state law that allowed public employers whose employees were represented by a union to charge “agency fees” to people who did not want to join a union but nevertheless benefited from a collective bargaining agreement.
In a decision taken by a vote of 5-4, The Supreme Court ruled that requiring the agency to collect fees violates the First Amendment, overturning a 1977 ruling that allowed a public employer to require employees to pay the fees even if they had resigned from their union membership.
The court said requiring employees to support causes they oppose violates First Amendment principles and found no scenario in which the government would be permitted to violate those rights.
Wilkofsky, principal timpanist of the Allentown Symphony Orchestra since 2001, sued his union and the symphony association in April 2022. He claimed he had been barred from performing with the orchestra since May 2021 after he stopped paying union dues a year earlier.
In an op-ed published in The Morning Call in 2022, Wilkofsky wrote that dues were forced on him as a condition of employment and that union representatives tried to intimidate him when he questioned the value of the union.
Wilkofsky said the 70,000-member American Federation of Musicians’ support for heavily Democratic candidates means his political speeches are also forced.
A U.S. District Court judge dismissed Wilkofsky’s claim, arguing that by requiring him to maintain union membership, the symphony and the union were “not exercising governmental authority.”
The Pennsylvania Employee Relations Act did not require the symphony and the union to enter into a collective bargaining agreement. That decision was made by the symphony and the union, which the court found were private organizations despite their “public employer” label under the law, the district court found.
In May, the U.S. Court of Appeals for the Third Circuit upheld the lower court’s ruling.
The Fairness Center argued in its petition to the Supreme Court that the justices should take up the case because the dispute over whether the term “public employer” means that a nonprofit employer is an extension of the state leaves workers like Wilkofsky trapped “in a ‘twilight zone’ between public and private sector employment, where neither party’s rights fully apply.”
