Union operatives and their allies in government should not be permitted to rewrite state law to the point where they can coerce their political agenda onto public employees. A Pennsylvania musician is arguing as much in a case that could come before the United States Supreme Court.
As a nonprofit that receives significant public funding, the Allentown Symphony Association qualifies as a public employer for the purposes of collective bargaining under Pennsylvania state law , claims Glen Wilkofsky, a principal timpanist for the orchestra, in his petition to the high court.
BIDEN STARING DOWN 'FIVE-ALARM FIRE' WITH MINORITY VOTERS. CAN HE WIN BACK SUPPORT?
Wilkofsky initially filed a federal lawsuit against the symphony and his former union, the American Federation of Musicians, Local 45, in 2022, citing the Supreme Court’s 2018 ruling in Janus v. AFSCME that struck down mandatory union fees for public workers as an unconstitutional violation of First Amendment rights. However, U.S. District Judge Joseph F. Leeson Jr. ruled that the defendants cannot be viewed as state actors, which would mean Janus is not applicable. The Third Circuit then dismissed the case in 2023. But Wilkofsky sees “judicial activism” at work on the part of the lower courts, which is why he continues to press his case.
“There’s no ambiguity here,” Wilkofsky said in an interview. “Pennsylvania law explicitly states that as an employee of the symphony, I am a public employee.”
Wilkofsky’s petition seizes on that part of the Pennsylvania statute that defines nonprofit organizations receiving government funding as public employers in certain circumstances. While the symphony and the union have traditionally functioned as private entities, according to the statute, the symphony is acting on behalf of the state when it engages in collective bargaining with the union, explained Nathan McGrath, the president and general counsel of the Fairness Center. The national nonprofit law firm headquartered in Harrisburg has represented Wilkofsky since the inception of his federal litigation.
“Our client’s employer is public per the definition of state law, and therefore, he’s a public employee for purposes of collective bargaining,” McGrath said. “That was the prerogative of the state legislature, and Janus should apply. Only the legislature can change the law. But on its face, what the law says is that when the union and symphony engage in collective bargaining under state law, there is state action because the symphony is a public employer in that scenario.”
There is a significant legal question involving the role of federalism in the Wilkofsky case that the Supreme Court has a stake in clarifying, McGrath said. The various “statutory labels” used in different states to determine which entities are private or public has led to confusion at the circuit court level, he observed.
“I think the Third Circuit and the district court missed the nuance of the argument we were making, and they sidestepped the main legal question, which is: Do states get to determine who is and who isn’t a public employer?” McGrath said. “Federalism says that the states can make certain determinations. Ultimately, this case is about ensuring that all those who are covered under the Janus ruling can avail themselves of their First Amendment rights.”
The Supreme Court justices could decide as early Monday whether to take the case at the conclusion of its weekend conference.
After becoming familiar with the Janus ruling, Wilkofsky declined to continue paying union dues beginning in 2021. Since then, the union and symphony have prevented him from playing until his case is resolved.
Wilkofsky first became privy to his union’s politics during the COVID-19 pandemic.
“This was the tip of the spear moment for me,” he said. “The symphony, with the union’s support, started forcing experimental vaccines into employees’ arms, and to my knowledge, these officials were neither doctors nor nurses with any medical knowledge or experience.”
If he is successful before the high court, Wilkofsky could free thousands of Pennsylvania employees from union mandates. Through open records requests, the Fairness Center obtained a list of nonprofit organizations in Pennsylvania’s healthcare, education, and transportation sectors with collective bargaining units that could be affected.
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“The contemplation of putting my hard-won job at risk and suing my orchestra and union was not a step I took lightly,” Wilkofsky said. “But some union officials are trying to force political thought upon their members as a condition of their employment. Unfortunately, most unions are not unions anymore in the traditional sense. Instead, they are political action committees disguised as unions.”
Kevin Mooney ( @KevinMooneyDC ) is a senior investigative reporter at the Commonwealth Foundation, Pennsylvania’s free-market think tank, and writes for several national publications.
Pennsylvania musician challenges union mandates in petition to Supreme Court
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06.01.2024
Union operatives and their allies in government should not be permitted to rewrite state law to the point where they can coerce their political agenda onto public employees. A Pennsylvania musician is arguing as much in a case that could come before the United States Supreme Court.
As a nonprofit that receives significant public funding, the Allentown Symphony Association qualifies as a public employer for the purposes of collective bargaining under Pennsylvania state law , claims Glen Wilkofsky, a principal timpanist for the orchestra, in his petition to the high court.
BIDEN STARING DOWN 'FIVE-ALARM FIRE' WITH MINORITY VOTERS. CAN HE WIN BACK SUPPORT?
Wilkofsky initially filed a federal lawsuit against the symphony and his former union, the American Federation of Musicians, Local 45, in 2022, citing the Supreme Court’s 2018 ruling in Janus v. AFSCME that struck down mandatory union fees for public workers as an unconstitutional violation of First Amendment rights. However, U.S. District Judge Joseph F. Leeson Jr. ruled that the defendants cannot be viewed as state actors, which would mean Janus is not applicable. The Third Circuit then dismissed the case in 2023. But Wilkofsky sees “judicial activism” at work on the........
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