The U.S. Supreme Court. (Win McNamee/Getty Images)
A Pennsylvania musician’s claim that he can’t be forced to pay union dues could expand the right recently granted by the U.S. Supreme Court for public employees to opt out of supporting labor unions.
Lawyers representing Lehigh Valley percussionist Glen Wilkofsky have asked the Supreme Court to consider whether the Allentown Symphony Association wrongly threatened to fire Wilkofsky when he stopped paying dues to the American Federation of Musicians.
Wilkofsky, who played the kettledrums, claims he has a First Amendment right to choose whether to support the union under the high court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees.
That, Wilkofsky claimed, is because the symphony receives state funding and Pennsylvania’s Employee Relations Act includes nonprofits that receive government grants or appropriations in the definition of public employers.
“I think at the end of the day, the simple argument is that our client’s bargaining unit was organized under PERA, it defines the orchestra as a public employee, and Janus applies,” said Nathan McGrath, president and general counsel of The Fairness Center, a nonprofit law firm that represents public sector workers in disputes with labor unions.
The Fairness Center said a ruling in Wilkofsky’s favor would expand the First Amendment protections granted under Janus to workers at nonprofit organizations in the health care, education and transportation industries.
Daniel DiSalvo, a political science professor at City University of New York who studies labor unions, state governments, 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 had a choice whether to pay dues, it could have a significant impact.
“It’s not huge but certainly enough to make a substantial dent in union membership and union revenues,” DiSalvo said.
In other states, courts have grappled with similar questions about when workers, whose jobs are supported with local, state or federal money, are considered public employees, DiSalvo said.
“It sounds like the Pennsylvania statute has created this murky status where you’re considered a public employee in some respects but not in others,” DiSalvo said.
The Supreme Court, which has a conservative majority, has recently ruled against labor unions, including in a case this summer in which it found an employer can sue a union for damages resulting from a strike.
The Janus case was heralded as a major victory for First Amendment rights and the right-to-work movement and a blow to public sector unions.
In the case, the governor of Illinois sued to overturn a state law that allowed public employers whose workers were represented by unions to collect “agency fees” from those who choose not to join the union but nonetheless benefit from a collective bargaining agreement.
In a 5-4 decision, the Supreme Court ruled that the agency fee requirement violates the First Amendment, overturning a 1977 decision that allowed a public employer to require workers to pay fees even if they opted out of union membership.
The court said requiring workers to endorse ideas they oppose goes against First Amendment principles and that it could find no scenario in which the government’s infringement of those rights was permissible.
Wilkofsky, the principal timpanist for the Allentown Symphony Orchestra since 2001, sued his union and the symphony association in April 2022. He claimed that he had not been allowed to perform with the orchestra since May 2021 after he stopped paying union dues a year earlier.
In an opinion piece published in The Morning Call in 2022, Wilkofsky wrote that the dues were coerced as a condition of his employment and when he questioned the value of the union, its officials tried to intimidate him.
Wilkofsky said the 70,000-member American Federation of Musicians’ support of overwhelmingly Democratic candidates means that his political speech is coerced as well.
A U.S. District Court judge dismissed Wilkofsky’s claim, reasoning that by requiring him to maintain union membership, the symphony and the union did not “wield the power of the state.”
The Pennsylvania Employee Relations Act did not require the symphony and the union to enter a collective bargaining agreement. The decision to do so was made by the symphony and the union, which the court viewed as private organizations despite the “public employer” label in the law, the district court said.
The U.S. 3rd Circuit Court of Appeals affirmed the lower court’s ruling in May.
The Fairness Center argued in its petition to the Supreme Court that the justices should take the case because the disagreement on whether the “public employer” label means a nonprofit employer is an extension of the state leaves workers like Wilkofsky stranded “in a ‘twilight zone’ between public and private employment where the rights of neither fully apply.”
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