Orchestra musician challenges union dues

Veteran percussionist has not been allowed to play since last May after he stopped paying

A longtime drummer with the Allentown Symphony Orchestra is suing the nonprofit and its musicians’ union arguing that it should be barred from requiring performers to pay union dues.

Glen Wilkofsky, principal timpanist for the orchestra since 2001, stopped paying dues in 2020, and hasn’t been allowed to perform with the symphony since May 2021.

He argues that a landmark 2018 U.S. Supreme Court decision ruling that public sector employees have a First Amendment right not to financially support a union should apply to the Allentown Symphony Association.

The Allentown Symphony Association, founded in 1951, supports the orchestra and other arts programs and owns and operates Miller Symphony Hall on North Sixth Street.

But is the association a public employer? Wilkofsky argues it is because the orchestra receives public grants to help fund its operations.

Additionally, the local chapter of the American Federation of Musicians representing the Allentown Symphony’s musicians was certified by the Pennsylvania Labor Relations Board under the state’s Public Employee Relations Act, the same law that covers municipal and state employee unions across the state.

The act includes in its definition of public employers any nonprofit organization receiving grants or appropriations from local, state or federal governments.

The Supreme Court’s 2018 decision in Janus v. AFSCME was heralded both as a major victory for First Amendment rights and a potential death knell for public employee unions in the United States. It held that government workers who choose not to be members of a union cannot be forced to pay union dues as a condition of employment. It affected millions of public school teachers, public works employees and other government workers across the country.

“Our client’s goal is to make sure that Janus is expanded to all

“The principle is that our client’s First Amendment right is protected — that he’s not compelled to be a part of and financially support a union he disagrees with.”

of the bargaining units that are covered by the Supreme Court decision,” said Nathan McGrath, president of The Fairness Center, a public interest legal group that represents those who object to mandatory public-sector union membership.

“The principle is that our client’s First Amendment right is protected — that he’s not compelled to be a part of and financially support a union he disagrees with,” McGrath said.

Symphony Executive Director Al Jacobsen said the association has no comment. He confirmed that the symphony does receive public funding but could not say what portion of the organization’s revenue is public because COVID relief payments in the last two years have increased the amount of public money it has received. Efforts to reach officials of the American Federation of Musicians were unsuccessful.

Bethlehem labor attorney David Deratzian said the case has the potential to affect many arts organizations that receive public funding if they have employees who are unionized under the state public employees labor law. Deratzian said the suit is clearly a test case and could end up before the Supreme Court.

According to the lawsuit, the musicians union and the symphony association reached a collective bargaining agreement in which all musicians must become members of the union and maintain their membership by paying dues as a condition of employment.

Wilkofsky — who plays timpani drums, also known as kettle drums — joined the symphony in 2001 and

— Nathan McGrath, president of The Fairness Center

became a member of the union within a month. If the symphony had not required union membership and financial support of the union as a condition of employment, Wilkofsky would not have joined the union or paid dues, the suit says.

In January 2020, after the Janus decision, Wilkofsky stopped paying dues. He was told by a union official in May 2021 that because of his choice not to financially support the union, he was on the suspended list and that if he did not rejoin and pay dues the union would begin a legal process to expel him. The symphony has not permitted Wilkofsky to perform and has said that if he is unable to perform during the 202223 season, he could be dismissed from the organization.

The federal lawsuit, filed in U.S. District Court in Allentown, asks the court to declare that the enforcement of the union membership requirement violates his First and Fourteenth Amendment rights and requests a court order barring the symphony and the union from enforcing the requirement.