David vs. Goliath: Musicians Take on HBO—and Win

August 1, 2021

Stephen Laifer  -  

When it comes to labor organizing, it takes hard work and collective action to win. But often it only takes one person to start that change in motion. In March, cellist Theo Zimmerman of Local 802 (New York City), one of a group of musicians from all over the Northeast, was contacted about several days of work for an episode of the HBO TV miniseries The Gilded Age.

After more than a year of unemployment due to the pandemic, Zimmerman was excited at the prospect of working again. But as the first day of filming got closer, he says things just didn’t feel right—and thus began a series of events that culminated in a large corporation agreeing to meet the demands of a small but determined group of musicians. Most of them didn’t even know each other before the saga that banded them together to fight for their rights.

The Gilded Age is a 10-part historical drama developed by the creators of Downton Abbey. The series is set in America during what is now called the Gilded Age, the boom years of New York City in the post-Civil War 1880s. In keeping with the authenticity of the show’s period setting, 23 musicians were hired to sideline on set in Troy, New York, miming their instruments on screen in period costumes as part of an important scene. Of course, this was in the midst of the COVID-19 pandemic—which meant COVID testing protocols were a necessary part of the package. And there appeared the first red flag.

Right from the beginning, recalls Zimmerman, HBO’s demands were ridiculous. “The producers required COVID tests on days prior to the costume fitting, the rehearsal, and the shooting days,” he says. “Compensation for each test would be $30. The musicians were coming to the set from a 400-mile radius. For those of us not near Troy, each test would require a round-trip day of travel due to their insistence that we get tested in Troy. They didn’t seem to care that there was an HBO production testing site in Brooklyn.” 

And this wasn’t the only problem. Many of the musicians spent hours modifying their valuable instruments so that they would be historically authentic, in keeping with the precise requests of the contractor. Flutist Norman Thibodeau of Locals 14 (Albany, NY) and 85-133 (Schenectady, NY) adds that they subsequently got word of a previous shoot using musicians. “Several string players had their bows ruined through negligent handling by a production assistant,” says Thibodeau. Musicians also learned that the company’s response toward compensation for that damage had been minimal.

Union Organizing

Zimmerman reached out to the AFM with his concerns and got confirmation that the production was not being done under the protections of an AFM contract. “I asked why we didn’t have an AFM contract with HBO, and got a pretty blunt answer: because HBO is not signed to AFM media agreements. Musicians would have to stand together to demand a union agreement to cover their work.” Zimmerman says those words resonated. “It seemed to me that if there was a time when musicians should come together, this was it. Why couldn’t we organize before the first day of filming?” 

Zimmerman next contacted Local 802 Recording Secretary Andy Schwartz and AFM International Executive Board member Tino Gagliardi. “Tino put me in touch with Michael Manley, director of the AFM’s Organizing & Education Division.” AFM Lead Organizer Alex Tindal Wiesendanger was assigned to see if there was a viable organizing opportunity, as other musicians from upstate had similarly been contacting their locals about the production.

Taken together, the musicians’ issues were the impetus for a collective demand to HBO to have their work under the protections and benefits of an AFM contract. Delivered on May 20, the demand included better conditions for musicians, and recognition of AFM as their union. The response from HBO was rapid—and predictable.

HBO immediately did what all anti-union companies do—they tried to kill the unionizing effort. First, they offered potential carrots to stop organizing, including more money and more convenient COVID testing locations. Second, they spread disinformation, resorting to fake excuses, such as telling the musicians that sidelining work couldn’t earn residuals, and that a union contract would be hard to do and take too long to negotiate. In the end, HBO held firm in their unwillingness to be signatory to an AFM contract.

“These are typical tactics in the employer’s anti-union campaign,” states Manley. “That HBO was willing to offer anything to try to dissuade the musicians from organizing was in fact proof that these musicians had already built up some power. We encouraged them to stay strong and take HBO’s response as a sign to keep the pressure up. They weren’t going to settle for less than HBO fully recognizing their union, and giving them the respect they deserve as professional musicians.”

Zoom Call Ultimatums

On May 21st, HBO kicked their anti-union campaign into overdrive, requiring all musicians to attend a Zoom call with the show’s producers, where things came to a head. Such “captive audience” meetings are another common tactic used by employers to attempt to discourage workers from unionizing.

To prepare for it, the whole orchestra met with AFM staff the evening before to lay out a game plan. Part of that plan involved staying strong in the face of expected ultimatums—which were indeed imposed, as predicted. Musicians were ready to show their solidarity—the messaging was the same as the musicians initial demands: “we are excited to do this work, but we asked that we be accorded the same respect as our colleagues, to work under a fair union contract.” And a visual message of solidarity was sent as the musicians displayed the AFM logo as their virtual Zoom background. HBO had meanwhile also been reaching out to the musicians individually, attempting an end run around negotiations in a bid to break their solidarity.

In the Zoom meeting, producers claimed they felt the musicians’ pain and understood their demands because, as members of the Director’s Guild, they were union members, too. But they said their hands were tied and intimated that HBO would fire the musicians, if they continued to demand a union contract.

And that is exactly what happened—twice. “Frankly, it was gut-wrenching to be fired three days before our shoot,” says Zimmerman. “And not just once. After telling us that we were dispensable and would be written out of the scene, HBO came back to us hours later and offered us a union contract—as extras under the Screen Actors Guild.” Of course, the musicians found this unacceptable: a SAG-AFTRA contract would have no AFM health or pension benefits, nor any protections for instruments.

“While we were eager and excited to get to work on this project, it was clear that The Gilded Age producers were counting on the scarcity of engagements over the past 15 months to spur us to accept inadequate compensation and coverage for our expertise,” states oboist Will Wise of Locals 14 and 9-535 (Boston, MA). “This was despite their expressly stated need for fully professional musicians to fulfill their vision.” Wise said he hoped that HBO would recognize the need to treat all of their employees equitably and afford musicians the same protections enjoyed by all other staff working on the show.

Manley says the firing fits right into the typical playbook. “The first step is always that management says no, and if you don’t like it, hit the road,” he explains. “In this case, though, the producers quickly realized they couldn’t replace the musicians because, if they refused to work on the day of filming, they could shut down the entire production.” The result, he says, was that along every step of the way, the musicians could see their power because the producers had to agree—as long as they kept standing together as a unit and restating their demands.

AFM Files ULP with NLRB

The firing led to the filing of an unfair labor practices charge with the National Labor Relations Board (NLRB). “The producers were violating workers’ rights to select the union of their own choosing, to negotiate with that union, and permit the musicians to work under a fair contract that respects industry standards for professional musicians,” says AFM International President Ray Hair, adding that musicians deserve the same consideration as any other worker in film and TV production, and it was unconscionable that a multibillion dollar corporation would deny musicians the wages, benefits, and working conditions that are provided under AFM agreements.

“[HBO] hired a large group of accomplished musicians, well-versed in the musical style of the period, to give their show authenticity,” says Hair. “When our musicians realized they were not working under an AFM contract, they stood up to a global media company and made them do the right thing. HBO will now be prevented from bullying musicians into accepting substandard wages, benefits, and conditions.”

Support from Others

Among others, pressure on HBO came from Teamsters Local 817, the Writers Guild, SAG-AFTRA, and the show’s cast members, who lent their collective strength to the campaign by expressing their solidarity with AFM musicians.

One of the most notable sources of support came from the actors involved in The Gilded Age. Cynthia Nixon and Kelly O’Hara, who were among many cast members that are also Broadway veterans and thus fully grasped the urgency and importance of solidarity. They talked to the orchestra and were fully supportive of the musicians working under an appropriate AFM contract.

Both actors also spoke with HBO directly and expressed their disappointment with the musicians’ treatment. O’Hara expressed her belief that it was important to the actors to support a decision in favor of the musicians union, and also hoped that, going forward, HBO would continue its relationship with the musicians in the correct way. This only added to the heat HBO was already feeling from heightened (and negative) media attention, with coverage highlighting the musicians’ struggle making both local (Troy and Albany) and national news.

AFM Contract Achieved

Ultimately, HBO conceded. And astonishingly, the entire process—accomplished through a textbook organizing campaign done completely virtually, with no in-person meetings—took roughly two weeks. Among other protections, musicians working on The Gilded Age were now entitled to travel stipends for COVID testing outside of their area; healthcare and pension contributions; a set wage and overtime scale; a firm filming schedule; protections from “surprise changes” in the contract’s terms; and—significantly—wording specifically covering residuals.

Zimmerman says all of this is proof of what can be achieved when musicians stick together. “We were a group of professional musicians from different parts of the tri-state area, many of whom had not met each other before. But we became a team under the savvy guidance of AFM staff.”

Back on Set—with Protections

Zimmerman’s musician colleagues working on The Gilded Age agree. String player William Hakim, also of Local 802, is proud to have stood strong with his fellow musicians in the face of losing work. “We were told in no uncertain terms by HBO’s producers that it was never going to happen, but we emerged victorious.” Hakim is also proud to add that any future work that musicians provide for the show will now be protected under an AFM contract.

For Thibodeau, HBO’s intransigence and refusal to respond to legitimate grievances was exactly what necessitated the protection of a contract governing the work. “I have performed for 20-minute wedding ceremonies that involved more in the way of a formal, mutual agreement on how the work would go forward,” says Thibodeau. “For a huge company like HBO to put such painstaking efforts into making a historically accurate performance, and then fall down at the finish line over considerations that should pose no significant challenge to a genuinely ethical employer, was mind-boggling.”

“Little did I know, when I first signed on for this filming engagement, how much I would experience in a few short days,” exclaims bassoonist William Safford of Local 14. “I didn’t just mime on bassoon; I also participated in a successful unionization.”

Violist J.J. Johnson of Local 78 (Syracuse, NY) says it became very obvious how important they were to the production.

“Many closeups featured several of our musicians. The director clearly had a vision that involved us, and the episode would not have been possible without us.” Johnson adds that he overheard compliments about the musicians’ flexibility and professionalism, including from the actors. “Kelly O’Hara came up to us expressing her absolute pleasure and delight for having us there,” he says.

“An interesting development was the recent addition of a reference to our organizing efforts in the Wikipedia page for The Gilded Age series,” says Gregory Luce of Local 802. “Not only does this Wikipedia entry allow us to be seen and heard by the audience following the development of the show, but it will serve as a testament to our efforts and a reminder to the giants of the entertainment industry that it simply isn’t worth it to put the squeeze on musicians.”

“We were all elated to find ourselves working on The Gilded Age under an AFM contract,” concludes Zimmerman. “Just days before filming, we had been fired for daring to suggest that we deserved better.” Zimmerman concludes by singling out the guidance and support of the negotiating team at the AFM, and also the relevant AFM Locals. “They helped us to help ourselves. And in helping ourselves, we helped our brothers and sisters down the line, those musicians who will be sidelining in future episodes, and the many musicians who will score, prepare, and record the music for this show.” Zimmerman also voices special thanks to fellow unions and their members, elected officials, and the amazing actors of The Gilded Age. “They all stood up not just for us, but with us.” 

Says Wiesendanger: “If 20-some musicians in two weeks can get one of the biggest media companies in the world to sign a union agreement because they stood together, then anything is possible. And this has great and lasting impact on orchestras wanting to organize, regardless of the conditions.”

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