The Impact of the Trump Administration on Organized Labor and the Arts: What Can We Do About It?

May 1, 2017

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by Harvey Mars, In-House Counsel Local 802 (New York City) and Counsel Local 16-248 (Newark/Paterson, NJ)  

The labor movement and organized labor as a whole will survive the Trump Administration. There is no question about that. The question is, rather, what will be the impact of this administration upon organized labor and what can we do to better position labor’s interests to achieve its primary goals, with a focus on craft unions such as ours which are composed of professional musicians. As professional musicians, our interests are decidedly different from many other categories of employees. We work mainly for nonprofit organizations composed of board members who often have little or no involvement in the artistic endeavors that we engage in. Furthermore, we are artists. We do not produce a tangible product, such as cars or refrigerators or cans of soup. Our product—music—unfortunately is not considered as valuable to the present administration as other products are.

However, before we lose our perspective and fall into irretrievable despair, we must put current events within their proper context. We must never forget that the entire history of the labor movement has been one of struggle, conflict and even violence. In the early 19th century the Sherman Antitrust Act was used to crush nascent unions declaring them illegal restraints on commerce. The Taft Hartley Act was enacted in 1946, which turned back many of the protections for organized labor that were created by the Wagner Act. The Taft Hartley Act created a host of unfair labor practices that could now be lodged against unions, including the prohibition on secondary activity. The Taft Hartley Act as well created free speech provisions, which has legitimized management’s use of consultants and captive audience meetings to thwart union organizing campaigns. Further, the Taft Hartley Act contains a proviso that permits states to outlaw union security clauses (provisions in collective bargaining agreements that ensures that a union will never lose majority status during the term of the agreement by requiring all bargaining unit members to become union members by the 30th day of their employment). This proviso authorizes states to enact “right to work” legislation, legislation whose sole purpose is to weaken unions by prohibiting them from compelling union membership as a condition of employment. Presently, there are 28 states that have enacted right to work legislation. National right to work legislation has recently been proposed in Congress, and Donald Trump appears to be in favor such legislation. Whether the effort to outlaw union security clauses on a national level will succeed remains an open issue as we sit here today.

We must also never lose sight of the fact that the history of the labor movement has been riled with violence as well. Some of the most violent conflicts in our nation’s history short of the Civil War and foreign terrorist attacks were the result of labor disputes. Bloody examples of this abound. The Railway Strike of 1877, the Haymarket Riot, the Pullman Strike, the Homestead Strike, the LA Times Bombing, and the Ludlow Massacre were all incredibly bloody conflicts pitting labor against management. Many men, women, and even children on both sides of the fence were killed during these conflicts.

More recently, while less violent, there have been large-scale strikes that have ended disastrously for organized labor. On August 5, 1981, the Air Traffic Controllers Strike ended with the decimation of PATCO and fomented a climate in this country that has been decidedly anti-labor. In 1987, the Hormel Foods Strike ended disastrously for the union and signaled that the labor movement was in a state of disarray. In October 2014, the UAW lost a representation election at a Volkswagen plant in Tennessee that arguably it should have won.

However, despite the palpable anti-labor climate in this country and the defeats we have sustained, organized labor persists; in some circumstances it even thrives. There have been some very recent significant victories for organized labor. Last year 39,000 Verizon employees weathered a 45-day strike that beat back company demands for concessions on job flexibility and security and prompted the creation of 1,300 additional union jobs. It should not be a shock that organized labor will have to endure additional strife and conflict as a result of a political agenda that is more business-oriented than labor-oriented. Nor should it be cause for widespread panic. The pendulum has shifted right many times in our nation’s history. It is the evolutionary pattern of the experiment that we called democracy. It is a certainty that it will shift again.

What Can We Expect?

So what can we expect the next four years to look like under the Trump Administration? In order to access how we should respond, we must anticipate where we are going. As we all know the destination is not a pleasant one. Currently there are approximately 100 openings in the Federal Judiciary to which Trump can be expected to nominate conservative judges who will not be subject to Senate filibuster. Our Congress has already exercised the nuclear option and rammed down our throats confirmation of Judge Neil Gorsuch as the Supreme Court Justice, replacing arch conservative jurist Antonin Scalia. Judge Gorsuch, who is only 49 years old and a strict constructionist like the justice he replaces, restores the Court’s conservative majority. With this new conservative majority, it is likely that statutorily required public sector agency fees would be declared unconstitutional. This is what the labor community feared would be the result of Friedrichs v. California Teacher’s Association. We can anticipate that, in short order, a new test case will make its way to SCOTUS and that this dreaded ruling will now come to fruition. Right now it appears that that case will be Janus v. AFSCME, presently pending before the United States Court of Appeals for the 7th Circuit. Its facts are almost identical to Friedrichs. The ultimate result of this, of course, will be the further erosion of union density in the public sector, where growth has been significant in later part of last century.

With two seats vacant on the National Labor Relations Board (NLRB), the administrative agency that adjudicates violations of the National Labor Relations Act (NLRA), the Trump Administration will be able to place a conservative anti-union imprimatur upon the board. The NLRB’s recent decision in the Wang Theatre representation proceeding forebodes what is to come. On February 14, the NLRB reaffirmed its order finding that the Wang Theatre had committed an unfair labor practice by refusing to bargain with AFM Local 9-535 (Boston, MA). The Wang Theatre asserted that the musicians who performed at the theater were not employees and did not share an identifiable community of interest thus rendering them an inappropriate unit for collective bargaining. The NLRB rejected the Wang Theatre’s argument and upheld the certification and ordered bargaining. Despite this favorable result, the NLRB noted that the Wang Theatre’s status as an employer had presented a substantial issue for future resolution. It is very well possible that the joint employer concept will again go through a change in formulation. It is significant that the issue of the Wang Theatre’s status as an employer was raised by the NLRB’s only republican member, Acting Chair Miscimarra. We can expect more on this issue as the inevitable legal complexion of the board becomes more aligned with Miscimarra’s point of view.

Along those lines, it is clear that the conservative Trump NLRB will erode many, if not all, of the dynamic Obama board rulings and revised administrative regulations that expanded the outer reaches of the NLRA. While the Obama board was committed to encouraging employee organization and contract formation, this board will not be. Thus, we can expect revision to the new representation election rules, which republicans not so affectionately call the ambush rules because they permit quicker and more streamlined union representation elections. We can expect that the old election rules will be restored or made even more onerous for unions to navigate. Furthermore, we can expect the board to rollback a new standard that the Obama Board set in Specialty Healthcare that makes it easier for groups of employees to organize smaller bargaining units (micro-units) within larger units of employees. While this standard has been widely accepted, there is a dissenting opinion within the Court of Appeals for the 5th Circuit that could provide the grounds for challenging and reversing this standard.

Additionally, it can be anticipated that the NLRB’s recent decisions granting teaching assistants and graduate students the right to organize will be reversed. The answer to the question of whether graduate students are employees within the meaning of Section 2(3) of the NLRA or not has shifted back and forth with each change in NLRB majority. In fact, the current board’s decision in the Columbia University representation proceeding reversed a previous board determination issued when the board was comprised of a majority of republican appointees, which held that graduate students were not statutory employees entitled to organize and engage in collective bargaining. Roll back of the Columbia University decision will impair graduate music students, such as those who perform for the Orchestra Now, in their ability to organize and bargaining collectively.

However, despite the likely evisceration of NLRB decisions that are highly favorable to labor interests, we need to recognize that the end is not here for organized labor. The primary reason is because the heart of the NLRA, Section 7, remains intact and will remain intact so long as the NLRA remains the law of the land. Section 7 shelters employees’ rights to organize and engage in concerted activity for their mutual aid and protection. Thus, despite the assault that the labor movement will now likely sustain, its basic and primary right to organize and negotiate will persist during the tempest. We must understand the contours of our protected Section 7 rights and exercise these rights without hesitation when and where necessary.

There will be a new Secretary of Labor spearheading the Department of Labor, who will undoubtedly serve the republican regime’s interests. However, organized labor can chalk up one in the win column by the defeat of fast-food magnate Andrew Pudzer as a candidate for this position. Pudzer was compelled to withdraw his nomination for numerous reasons, chiefly his hiring of an undocumented immigrant as a housekeeper (who I am sure if Trump gets his way, will soon be deported) and allegations of domestic abuse. Purdzer’s anti-worker attitude and opposition to minimum wage legislation is well documented and his appointment to the helm of the Department of Labor would have been disastrous for workers in all walks of life. Alexander Acosta, a former Bush appointee to the NLRB who also led the civil rights division of the Department of Justice, is Trump’s second choice. While Acosta seems a more sane selection for Secretary of Labor, as he has been in public service almost his entire career, he is no less a threat to labor’s interests. The changes he will bring to the Department of Labor, however, will be more measured and less dramatic than Purdzer’s would have been.

Regardless of who is selected to head the Department of Labor, the repeal of the Obama Administration’s new overtime regulations that were slated to go into effect December 1, 2016 seems inevitable. These regulations raised for the first time in many years the minimum salary threshold for employees to be considered exempt from overtime entitlement. On November 22, 2016, a Texas Federal Judge issued a nationwide preliminary injunction barring application of these regulations and Congress seems poised to deliver them a death blow. The Trump Administration’s decision to request an extension of time to pursue an appeal of the injunction, which was filed by the Obama Administration, seems a clear indication that the regulation’s demise is near.

What Can We Do?

Folks, this is just a short list of what’s heading our way. It’s time to take out our umbrellas so we can weather the impending storm. Now comes the interesting part—what can musicians do to advance our interests in this barren terrain. There are three things we must do: (1) save the National Endowment for the Arts; (2) ensure that musicians are statutorily treated as employees and (3) promote that enactment of State legislation that protects employees’ interest and rights. Let me amplify each of these three points.

 

• Save the NEA        

 

In 1965 President Lyndon B. Johnson signed legislation that created the National Endowment for the Arts (NEA), National Endowment for the Humanities, and Corporation for Public Broadcasting. This piece of legislation declared that any advanced civilization must fully value the arts, the humanities, and cultural activity. As of 2016, the combined annual budgets for both endowments, which stands at about $300 million, is a miniscule portion of the $1.5 trillion total annual discretionary spending available to the federal government. In recent years, despite Johnson’s enlightened recognition of the importance of the arts to the advancement of our species, Congress deceased the NEA’s budget from $167.5 million in 2010 to $148 million in 2016. On March 16, 2017, when Trump released his proposed federal budget, he proposed the complete elimination of funding for these organizations. If his proposed budget is adopted by Congress, thousands of arts organizations who rely upon funding grants from the NEA and the NEH will be destroyed. Possibly worse yet, the indelible impression will be left on the world that America just doesn’t care about the arts.

We must not let this happen. We all know that arts’ funding to too important to our society for us to sit idly by while it is choked to death. Americans for the Arts is mobilizing more than 5,000 local councils, agencies, and funders and more than 300,000 “citizen activists” to flood members of Congress with calls and petitions to proliferate the message that federal arts funding is too important to abandon. Several weeks ago, the AFM, Local 802 (New York City), and a coalition of other unions held a demonstration protesting the Trump budget cuts on the steps of City Hall in New York City. This demonstration must be the beginning of a furious lobbying campaign that cannot relent until the grants are restored.

However, a simple appeal to the value of arts to our society can only be part of the message we advocate to save NEA funding. We must present an argument that NEA opponents can comprehend on their own terms. Trump focused his campaign on his intention to create jobs in this country. If he is ardent in his intention, he must recognize that the loss of NEA funding will destroy many jobs in music and theater in the heartland of this country, where productions depend upon federal grants. The NEA funding acts as seed money to cultivate productions in areas where the economy is just not strong enough to provide full support.

So what can we do to save the NEA? First, we must realize that a proposed budget plan is not a final policy. We can still influence the final result. Thus, sign a petition. In fact, sign several petitions. Petitions are useful tools to demonstrate support for a particular issue. There are many out there. For instance, there is a Change.org petition addressed to NEA Chair Jane Chu, Trump, and other lawmakers that pleads for them to not let the NEA go gently into that good night.

Call your representatives. Let them know that the miniscule amount the government saves by eliminating the NEA is not worth the extreme cost to jobs and our cultural and artistic history. This funding cut is way too small to make any impact on our economy—the NEA budget makes up a fraction of one percent of the federal budget.

Finally, see your elected representatives in person or organize an event to gain publicity to support arts funding. Each of these measures is effective and essential to this objective.

For those of you who are interested in additional strategies that can be employed to counter the Trump agenda on a whole, I highly recommend a guide created by former congressional staffers called Indivisible. This guidebook contains a host of tools that were taken from the conservative right’s playbook, which assisted them is achieving their reactionary agenda. Indivisible demonstrates how these same weapons can be turned against those who employed them in the first place. A copy of this pamphlet can be obtained at: https://www.indivisibleguide.com/  

 

• Musicians Must Be Treated as Employees  

 

In order for us to receive the full benefit and protection of federal and state laws, musicians must be legally recognized and treated as employees, not as independent contractors. The NLRA, as well as most other legislation impacting workers’ rights, does not apply to independent contractors. If musicians are independent contractors in the eyes of the law, they will not receive the protection of Section 7 of the NLRA and thus will not be able to organize, collectively bargain, or engage in concerted activity for their mutual aid and protection. Nor will they be protected by anti-discrimination legislation or state laws entitling unemployed or injured workers to unemployment compensation or workers compensation.

However, the NLRB has already accorded musicians significant victories in this respect. Under the NLRA, a multi-factored “right of control” test is utilized to ascertain whether a worker is an independent contractor or employee. Under this test, an individual is considered an employee if the one for whom services are performed retains the right to control the manner and means by which he or she achieves the result sought. This test can be satisfied because most musicians’ performances are controlled by the music director or conductor of the organization for which they are engaged (even though the way they play their instruments is not). See Lancaster Symphony Orchestra v. National Labor Relations Board, 822 F.3d 563 (D.C. Cir. 2016) (holding that musicians are employees under the “right of control” test).

The right of control test may be satisfied for musicians even when many of its factors indicate independent contractor status. This was made clear by the NLRB in the case  American Federation of Musicians (Royal Palm Theatre), 275 NLRB 677 (1985). There, the NLRB held that freelance musicians who were hired to make recordings used at a dinner theater were employees, even though the musicians were not selected by the employer and were utilized for only a few hours with no real expectation of future employment. The board held that these factors, which would normally indicate independent contractor status, were outweighed by the fact that the employer’s musical director exercised complete control over the musicians, telling them when to appear, what to play, and how the music should sound. The board concluded that the musicians were “under the continuous supervision and exercised control of the musical director and subject to his complete discretion and artistic interpretation and taste.”

It is likely that, despite the new composition of the NLRB, the right of control test and the board decisions that have found freelance musicians to be employees under it, will remain intact. However, there are no guarantees and the best way to ensure that musicians are properly classified is to promote the enactment of state legislation that declares musicians to be employees rather than independent contractors.

In New York in 1986, after a Herculean effort by advocates for performing artists that extended several years, the definitional section of the New York State Workers Compensation Law and Unemployment Compensation Law was amended so that professional musicians and other persons engaged in the performing arts rendering services for various entertainment establishments and venues were now statutorily defined as employees. The justification for the amendment cited in the memorandum that supported it was: “Musicians and performers are often required, as a condition of employment, to sign a statement that they are independent contractors. Thus, these individuals are denied the basic rights afforded to other working men and women in New York State. This bill would provide basic coverage to musicians and performers who are presently excluded from many benefits and/or protections under the Labor Law.”    

This legislative reform was the initiative of a diverse array of proponents, including various unions that represented performing artists. For instance, the AFL-CIO wrote in support of this amendment that “[t]he entertainment industry in New York is unique and deserving of interest, support, and where necessary, legislative protection. For too long these workers were without union representation and the resulting benefits because they were classified as essentially independent contractors.” A similar effort to enact protective legislation ensuring that musicians will be classified as employees should now be made in each state. I have reviewed that statutory law in New Jersey, Pennsylvania, Ohio, Connecticut, and Massachusetts and not found any comparable provisions to those contained in New York. It is time for this to change.

 

• Pursue State Legislation Beneficial to Musicians    

 

While the Trump Administration can affect federal administrative and statutory policy, states are free to enact their own legislation that goes beyond the requirements of federal law. We can no longer rely upon the federal government to accord minimum statutory protection for American workers that are in alignment with today’s economic conditions. Thus while the federal minimum wage has been frozen at $7.25 since 2009, states have increased their minimum wage well beyond that amount. By the end of 2018, New York’s statutory minimum wage will be $15. Many other states have followed suit by increasing their minimum wages from between $10 to $15 per hour. These minimum wage improvements have in many cases been the result of the “Fight for 15” movement, which was an amalgam of nonunion fast food and retail workers supported by the SEIU and the UFCW.

As I noted a few moments ago, Local 802 has already been effective in securing statutory unemployment and workers compensation benefits for musicians. Why not attempt to secure minimum wages and working conditions for musicians as well. This may not be as far-fetched as you may think. There are other fields that have legislated minimum standards. For instance, in the home care industry, a field I have negotiated contracts in for more than 20 years, there are prevailing wage statutes that mandate that employers provide employees with a benefit package that equates to a total of $15.09. If the homecare industry, with its relatively fungible workforce, can achieve this result, why can’t performing artists. Of course we are not talking about a $15 wage rate (at least I don’t think we are), but there is absolutely no reason why we can’t pursue legislation that requires that musicians who perform in jazz clubs or theaters receive a minimum wage of say $100 or $200 per hour, plus pension benefits. Or at minimum, we can pursue legislation that requires venues that receive city or state funding enter into a union contract as a condition of receiving the funds. I do not think that either are unrealistic goals.

In New York, we already have several city and state statutes that are beneficial to employees. For example, the New York City Paid Sick Leave Law covers all employers who have more than five employees and requires them to supply employees who work more than 80 hours a year with one hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours. Unused accrued sick leave can be carried over for up to 40 hours and may be used when the employee is sick, or when a child or family member is sick. When this law was first proposed, Local 802 insisted that it contained language declaring that it was applicable to professional musicians.

In the beginning of 2018, New York State will phase in a law that will provide covered employees with up to 12 weeks of paid family leave so they can care for an infant or family member with a serious health condition or assist with family obligations when a family member is called into active military service. Other states have similar laws.

We can anticipate that, in the upcoming years, additional progressive state legislation will be proposed. These laws may one day serve as a model for federal law. Union members should be at the ready to support and even propose such legislation.

Conclusion

After the election, President Obama exclaimed that history does not always run linearly. This is true and probably how the inevitable evolution of civilizations is intended to proceed. Sometimes you just have to take one step back to move two steps forward. If we bear this in mind, and keep our objectives at hand, the labor movement can not only weather this storm, but come out the other end of it stronger and more effective.

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