District court rejects Janus-based lawsuit against symphony association, union

On Aug. 19, Judge Joseph F. Leeson Jr. of the U.S. District Court for the Eastern District of Pennsylvania dismissed a Janus-based lawsuit a member of the Allentown Symphony Orchestra brought against the American Federation of Musicians, Local 45, and the Allentown Symphony Association. 

The lawsuit

Glen Wilkofsky, a tenured musician with the Allentown Symphony Orchestra, sued the symphony association and union in April 2022. Wilkofsky claimed the Supreme Court’s 2018 Janus v. AFSCME decision should apply to symphony employees since the union was certified as an exclusive representative under Pennsylvania’s Public Employe Relations Act (PERA) and received government grants. Wilkofsky’s lawyers wrote, “Under PERA, a ‘public employer’ includes ‘any nonprofit organization or institution and any charitable, religious, scientific, literary, recreational, health, educational or welfare institution receiving grants or appropriations from local, State or Federal governments.’” In Janus, Justice Samuel Alito wrote, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.”

In April, The Morning Call’s Peter Hall wrote, “[Bethlehem labor attorney David] Deratzian said the suit is clearly a test case and could end up before the Supreme Court.” 

For more on Wilkofsky’s lawsuit, read the April 22 edition of Union Station.  

The order

On June 29, 2022, U.S. District Judge Joseph F. Leeson Jr. granted the defendants’ motions to dismiss the case and gave Wilkofsky 14 days to file an amended complaint. Leeson wrote, “Wilkofsky has not alleged facts sufficient to show that the Defendants are state actors. The challenged conduct in this case is private conduct.” 

Leeson wrote:

“Although the Symphony is a private entity, it is considered a ‘public employer’ for purposes of PERA. But is that enough to transform the Defendants’ actions in this case into state action? Having reviewed PERA, the Court turns next to that very question. …

“The Defendants do not perform a function delegated by the state, nor are they entwined with government policies or management. … The leadership, bylaws, operations, and priorities of the union in this case are all determined by its membership, not by the state. … The union ‘has not been delegated any state functions, nor does it rely upon material resources from the state in carrying about its own activities. Additionally, although public sector collective bargaining is sanctioned by the Commonwealth, [the union] does not play a managerial role in shaping government policies or management decisions. … All these facts would indicate that [the Defendants are] not a state actors.’”

Wilkofsky filed an amended complaint on July 13. 

On Aug. 19, Leeson granted the defendants’ subsequent motions to dismiss and closed the case. He wrote, “The Amended Complaint is substantively the same as the Complaint. And Plaintiff’s argument alleging state action is the same: ‘The Symphony is a state actor because the Pennsylvania Legislature, in exercise of its sovereign prerogative, specifically recognized the Symphony as a public employer, and thus a state actor.’ … As a result, the Court does not see the need to restate its reasoning for dismissal that it already gave in a prior opinion.”

President Barack Obama (D) nominated Leeson to the court in 2014.  

According to The Morning Call’s Daniel Patrick Sheehan, Wilkofsky plans to appeal. The Federal Rules of Appellate Procedure stipulate that a notice of appeal must be filed within 30 days after the order was issued.

The case name and number are Wilkofsky v. American Federation of Musicians, Local 45 et al. (5:22-cv-01424).  

What we’re reading

• Los Angeles Times, “California lawmakers reject bill to allow their staff to unionize at the state Capitol,” Aug. 31, 2022
• The Philadelphia Inquirer, “A Better Life,” Aug. 31, 2022
• Gallup, “U.S. Approval of Labor Unions at Highest Point Since 1965,” Aug. 30, 2022
• The Center Square, “Labor amendment remains on November ballot after court blocks petition,” Aug. 30, 2022 
• The Seattle Times, “Seattle Public Schools set to vote on strike,” Aug. 30, 2022
• KING 5, “Proposal to authorize lawsuit ordering Kent teachers back to work fails,” Aug. 29, 2022
• WSJ Opinion, “And Now the Union Would Like a Word in Private,” Aug. 26, 2022
• The Center Square, “Illinois citizens group forms to oppose labor amendment it says will lead to higher taxes,” Aug. 25, 2022

The big picture

Number of relevant bills by state

We are currently tracking 149 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

• California AB1577: This bill would allow state legislative employees to organize and bargain collectively.
  • Democratic sponsorship.
  • Senate approved Aug. 30. Ordered to Assembly for concurrence in Senate amendments. Died in Assembly Public Employment and Retirement Committee hearing Aug. 31.  
• California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
  • Democratic sponsorship.
  • Enrolled and presented to the governor Aug. 30. 
• California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization.
  • Democratic sponsorship.
  • Senate approved Aug. 29. Assembly concurred in Senate amendments Aug. 30.  Ordered to engrossing and enrolling office.  
• California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
  • Democratic sponsorship.
  • Senate concurred in Assembly amendments Aug. 30. Ordered to engrossing and enrolling office. 

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