Corey Whitt
The American orchestra is no stranger to the theater of labor conflict. Erupting in the 1960s, the ensembles—Chicago, Cleveland, Boston, and New York among them—have been host to an increasing share of labor disputes over the years, with the most recent San Antonio Symphony clash ending in a complete dissolution of the 83-year-old organization.[1] Orchestras under the baton of Pennsylvania, however, are perhaps some of the most bellicose. The Philadelphia Orchestra has notoriously struck numerous times throughout its history, and in the fall of 2016, they joined the Pittsburgh Symphony Orchestra in trading the concert hall for the picket line, quieting the cultural export at both ends of the Commonwealth.[2]
Once again, the Keystone State is the stage for an orchestral scrap after Glen Wilkofsky, Allentown Symphony’s principal timpanist of twenty-plus years, filed suit in the United States District Court for the Eastern District of Pennsylvania claiming violations of his First and Fourteenth Amendment rights due to a collective bargaining agreement.[3]
Musicians of the Allentown Symphony have been exclusively represented by the American Federation of Musicians, Local 45, in negotiations with Symphony administration on topics of employment since 1999 and have entered into a series of collective bargaining agreements on behalf of Symphony players throughout their tenure—a relationship permissively provided for by Pennsylvania’s Public Employee Relations Act (PERA).[4] Under the most recent collective bargaining agreement, Allentown Symphony musicians are required to maintain membership in the union chapter as a condition of employment—also contemplated by PERA—and if an instrumentalist should fail to do so, their employment with the orchestra may be terminated.[5] Following his selection as principal timpanist in 2001, Wilkofsky begrudgingly obliged, if not dutifully, and enrolled as a union member within one month of beginning his percussion post, paying union dues for nearly two decades.[6] However, in the wake of the United States Supreme Court’s decision in Janus, holding “that it was unconstitutional to force public employees to pay union dues when they are not members of the union because the arrangement violated freedom of speech,” Wilkofsky stopped paying his share of union dues.[7] Consequently, the timpanist was removed from the union and barred from performances with Allentown.[8]
Armed with Janus, Wilkofsky sued the Allentown Symphony and the musicians’ union under 42 U.S.C. § 1983, the federal civil rights statute creating a cause of action against state actors who deprive individuals of their constitutional rights.[9]
Aside from showing a constitutional deprivation has indeed occurred, a successful § 1983 claim requires the plaintiff to demonstrate “that the conduct complained of was committed by a person acting under color of state law.”[10]
But are orchestras and their musicians’ unions—private entities—acting under color of state law?
An affirmative answer to that question would require an individual to show that both parties’ actions in the dispute are “fairly attributable to the State.”[11] In other words, Wilkofsky would need to prove that the Allentown Symphony and the American Federation of Musicians, Local 45 may be fairly characterized as state actors.[12]
The District Court Judge found no such thing. Writing in favor of Defendants’ motion to dismiss, Judge Joseph F. Leeson, Jr. rebutted Wilkofsky’s argument that the Symphony and musicians’ union were state actors because they engaged in collective bargaining authorized by state law. Similar arguments have been presented to the United States Supreme Court and have been similarly dismissed; acting upon expressions of legislative consent to a particular practice does not deem those acts as state action.[13] Further, even though the Symphony was a “public employer” for purposes of PERA, it is not considered as such under § 1983: Symphony members and union representatives are not state officials, did not receive “significant aid” from state officials throughout the collective bargaining process, and they do not perform functions delegated by the state.[14] As a result, the case was dismissed.[15]
While once believed to be fated for the nation’s highest court, Wilkofsky’s claim failed to make it beyond the first measure.[16] However, the timpanist intends to seek an appeal, and a reversal would threaten the labor strength of orchestral musicians in a time when their employers are feeling an increasing financial squeeze.[17]
[1] Javier C. Hernández, San Antonio Symphony to Dissolve Amid Labor Dispute, N.Y. Times (June 17, 2022), https://www.nytimes.com/2022/06/17/arts/music/san-antonio-symphony-bankruptcy.html [https://perma.cc/4S55-Y987] [https://web.archive.org/web/20221101190355/https://www.nytimes.com/2022/06/17/arts/music/san-antonio-symphony-bankruptcy.html]; Rebecca Burns, When Orchestras Strike: The Recent History of Orchestral Labor Strife, Reverb (Apr. 3, 2019), https://reverb.com/news/when-orchestras-strike-the-recent-history-of-orchestral-labor-strife [https://perma.cc/M8HG-W9W8] [https://web.archive.org/web/20221101194134/https://reverb.com/news/when-orchestras-strike-the-recent-history-of-orchestral-labor-strife]; Arthur S. Leonard, Collective Bargaining in Major Orchestras, 10 Indus. & Lab. Rels. F. 386, 399–400 (1974).
[2] Orchestra Musicians on Strike in Philadelphia, Pittsburgh, Associated Press (Oct. 1, 2016), https://apnews.com/article/a523b586b1574debb3e6f9ee826833c8 [https://perma.cc/677T-NC7Y] [https://web.archive.org/web/20221102171544/https://apnews.com/article/a523b586b1574debb3e6f9ee826833c8]; Morning Edition, Philadelphia Orchestra Strike Ends, NPR (Nov. 19, 1996) (accessed through ProQuest); Leonard, supra note 1, at 399–400 (labeling the Philadelphia Orchestras “the nation’s most militant orchestra”).
[3] Complaint, Wilkofsky v. Am. Fed’n of Musicians, Loc. 45, 2022 U.S. Dist. LEXIS 114762 (E.D. Pa. June 29, 2022) (No. 5:22-cv-1424).
[4] Wilkofsky v. Am. Fed’n of Musicians, Loc. 45, No. 5:22-cv-1424, 2022 U.S. Dist. LEXIS 114762, at *3–4 (E.D. Pa. June 29, 2022) (No. 5:22-cv-1424); 43 Pa. Cons. Stat. § 1101.401 (2022).
[5] Wilkofsky, U.S. Dist. LEXIS 114762, at *4–5; §§ 1101.401, .705.
[6] Wilkofsky, U.S. Dist. LEXIS 114762, at *5; Glen Wilkofsky, Your View: Why I Put My Job in the Allentown Symphony on the Line To Not Pay Union Dues, Morning Call (May 20, 2022), https://www.mcall.com/opinion/mc-opi-allentown-symphony-union-dues-lawsuit-wilkofsky-20220520-hl6edkhlbfhqflyqyvr5jci6ay-story.html [https://perma.cc/33P5-MUV3] [https://web.archive.org/web/20221102181755/https://www.mcall.com/opinion/mc-opi-allentown-symphony-union-dues-lawsuit-wilkofsky-20220520-hl6edkhlbfhqflyqyvr5jci6ay-story.html].
[7] Wilkofsky, U.S. Dist. LEXIS 114762, at *2 (citing Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2460 (2018)).
[8] Id.
[9] Id. at *6; Wilkofsky, supra note 6; 42 U.S.C. § 1983.
[10] Wilkofsky, U.S. Dist. LEXIS 114762, at *11 (quoting Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011)).
[11] Id. at *12 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
[12] Id. at *13.
[13] Id. at *14–17 (“The fact that the state simply permitted the Defendants to enter into the CBA does not mean they acted under color of state law”).
[14] Id. at *18–20.
[15] Id. at *21.
[16] Peter Hall, In a Case that Could Be Destined for the Supreme Court, Allentown Symphony Musician Says He Shouldn’t Have To Pay Union Dues To Perform, Morning Call (Apr. 15, 2022), https://www.mcall.com/news/pennsylvania/mc-nws-pa-allentown-symphony-union-lawsuit-20220415-jv2vzoy6xjevhcd2gy42c6f42y-story.html [https://perma.cc/7UA6-8FRT] [https://web.archive.org/web/20221105020529/https://www.mcall.com/news/pennsylvania/mc-nws-pa-allentown-symphony-union-lawsuit-20220415-jv2vzoy6xjevhcd2gy42c6f42y-story.html].
[17] Daniel Patrick Sheehan, Federal Judge Rules Against Allentown Symphony Musician Who Didn’t Want To Pay Union Dues; Lawyers Say They Will Appeal, Morning Call (Aug. 23, 2022), https://www.mcall.com/news/police/mc-nws-symphony-drummer-union-lawsuit-20220823-faitz4zohre3rpsv5hdvzsvwkm-story.html [https://perma.cc/57K3-KTBA] [https://web.archive.org/web/20221105021139/https://www.mcall.com/news/police/mc-nws-symphony-drummer-union-lawsuit-20220823-faitz4zohre3rpsv5hdvzsvwkm-story.html]; Javier C. Hernandez, The Pandemic Struck Orchestras with Underlying Conditions Hard, N.Y. Times (Dec. 21, 2021), https://www.nytimes.com/2021/12/21/arts/music/orchestra-labor-coronavirus.html [https://perma.cc/6C27-XA2K] [https://web.archive.org/web/20221105023407/https://www.nytimes.com/2021/12/21/arts/music/orchestra-labor-coronavirus.html].