President’s Message

The American Federation of Musicians congratulates President-elect Joe Biden and Vice President-elect Kamala Harris for their victory in the November 2020 general election. Our union endorsed the Biden-Harris ticket because their campaign agenda promoted the protection of American workers, and committed to strengthening worker organizing, collective bargaining, and unions.

As I’ve mentioned in this column previously, there has been an all-out war against unions and collective bargaining for decades, and which accelerated after President Reagan broke the Professional Air Traffic Controllers Union (PATCO) in 1981. More recently, state governments have binge-legislated anti-worker laws, including so-called “right-to-work” laws to favor union-busting agendas to sabotage labor unions, organizing, and collective bargaining.

The Biden campaign labor platform, if implemented as promised, may result in the most pro-labor atmosphere of any administration since the presidencies of FDR and Harry Truman. President Truman, as students of history may recall, vetoed the Taft-Hartley Act of 1947, which sought to restrict and weaken the power of unions (as it certainly did), but his veto was overridden by Congress. In the years since, the expansion of union-busting corporate power over working people has multiplied exponentially. 

Over the last four years, an anti-labor biased National Labor Relations Board has produced a parade of rulings that look to hurt unions and to reverse the progress made during the Obama years. Joe Biden proposes to check the abuse of corporate power over labor by holding corporate executives personally accountable for interfering in organizing efforts and for labor law violations. He also proposes to restrict federal dollars to employers who engage in union-busting activities and would penalize companies that bargain in bad faith.

And on an issue that particularly and directly impacts the business of freelance professional musicians who struggle to survive in the gig economy—pandemic notwithstanding—Joe Biden supports extending the right to organize and bargain collectively to independent contractors. This is a point of paramount importance for our union because the employment status of musicians performing short-term engagements for multiple employers is routinely and unfairly determined by labor boards to be that of an independent contractor.

Independent contractors do not have recourse under the National Labor Relations Act when unfair labor practices are committed against them by purchasers of their services. In many cases, because of their pattern of employer conduct and strict control over the services of musicians, the purchasers and also the booking agents are de facto employers and should be held subject to labor law jurisdiction.

A good portion of the Biden labor platform can be accomplished through executive orders and a re-alignment of National Labor Relations Board appointees. Some platform pieces will need Congressional approval and are likely to meet resistance if the Republicans maintain control over the Senate. By the time you read this column, we may know the outcome of US senate runoff races in the state of Georgia, which could impact whether the full extent of Biden’s pro-union agenda, as well as other critically important items, may be implemented. 

Two top Federation legislative priorities in the new Congress concern the urgent need for relief for critically underfunded multi-employer pension plans, and long overdue amendments to copyright law to provide for a terrestrial performance right. These two items were under Congressional consideration in the form of the Butch Lewis Act—which would guarantee low interest loans to troubled pension funds, including the AFM pension fund, eliminating benefit reductions for participants—and the AM-FM Act, which would require US radio stations to pay musicians, singers, and copyright owners for the music they use.

The Butch Lewis Act is part of the relief recipe for struggling multi-employer plans now embedded in pending COVID-19 supplemental relief legislation, in the form of Emergency Pension Plan Relief Act of 2020.  While we do not expect any year-end congressional relief package to include pension relief provisions, we do expect early 2021 COVID relief legislation to include a rescue package for multi-employer pension plans.

Republicans have indicated they will push for a smaller-scale compromise plan that would be paired with benefit reductions. The Federation will fiercely resist such an inadequate solution and instead lobby hard for a broader stimulus package that would include pension relief provisions designed to shore-up multi-employer plans, restore benefit reductions already implemented, and preclude the possibility of prospective benefit reductions.

The new Congress will also see the introduction of successor legislation that would establish a performance right in terrestrial over-the-air radio broadcasts, requiring radio stations to pay musicians and singers, as well as major and indie labels, for the use of recordings. Gone are the days when radio play promoted the sale of physical products such as vinyl records, tapes, and compact discs, that drove artist royalties and label income. With streaming services such as web radio, satellite radio, and interactive services such as Spotify and Apple Music acquiring a greater percentage of consumption and growing bigger piles of money, especially during the pandemic, labels and performers are pushing to get paid on terrestrial radio play.

Because Joe Biden has promised to be “the most pro-union president you’ve ever seen,” I am optimistic that the Federation’s legislative goals, those of our arts and entertainment union partners and all of labor, are far more achievable today.  But if Republicans continue to control the Senate, there will be serious challenges. That’s why Georgia’s twin runoff elections on January 5, 2021, which will decide the political tone of the Senate, are so important.

The American Federation of Musicians will work with the Joe Biden administration to promote, encourage, and incentivize unionization, to adopt legislation to protect our pension fund, to further beneficial copyright and performance rights legislation, and to promote initiatives that will improve the lives of musicians everywhere.

I am pleased to report that on October 22, 2020, after years of false starts, interruptions, and delays, the Federation reached agreement with representatives of CBS, NBC, and ABC for a successor Television Videotape Agreement, subject to ratification by the members.

Negotiations for this agreement spread over four years. The previous agreement expired on February 2, 2016, but was extended indefinitely pending a successor agreement. These negotiations presented some of the most difficult challenges the Federation has ever confronted. From the beginning, we faced employers who refused to bargain over streaming residuals, who wanted to reach an agreement that simply was unfair to musicians. Network representatives never really wanted to make meaningful improvements to our livelihoods. When they eventually relented and agreed to discuss streaming residuals, the employers attempted to deny coverage to a large segment of the bargaining unit—guest artists, background musicians, and music preparation personnel—proposals we would never accept, and which we roundly and soundly rejected.

Our rank and file members and negotiating team hammered home repeatedly the fundamental inequity of their refusal to pay streaming residuals to musicians—residuals they pay to members of other talent unions—and their failure to ensure that musicians will qualify for continuous health care coverage. Buoyed by extensive concerted activity, we persevered and reached an acceptable agreement. While we did not accomplish all our objectives, we did make considerable progress.

Although we have not achieved full parity with other unions in residual streaming, we did succeed in obtaining new contract language providing for a residual when content from live television programs is exhibited on an advertiser-supported streaming-on-demand (known as Advertising Video on Demand, or AVOD) platform after a seven-day free window. Despite fierce resistance from the networks, the Federation fought to ensure that all musicians involved in production of streamed shows—including house bands, guest artist musicians, back-up musicians, and music preparation personnel—would receive an additional 2% of the program rate for each of two 26-week periods of streamed exhibition. After expiration of two 26-week periods, musicians will receive a pro-rata share in 1.2% of the streamed program’s AVOD receipts.

In addition, the networks agreed to apply the contract’s regular wage and benefit rates to services performed on certain High Budget Subscription Video on Demand (SVOD) programs, ending the insidious practice of free negotiation. If ratified, wage rates in the agreement will be increased by 2% each year for a three-year term. Health and welfare daily contribution rates will increase by $5 in year one, and by an additional $5 in year three. The networks also agreed to increase their contributions for paid permanent download content from 1% to 1.5% of 20% of distributor’s gross for the first 100,000 units, and from 1.9% to 2.9% of 20% thereafter. Another new feature is payments to the AFM and Employers’ Pension Fund on an unallocated basis for licenses to secondary digital channels. These improvements are significant. The new AVOD residual language is a fundamental, structural contract change that can be improved upon in future negotiations. Moreover, this deal will result in long overdue wage increases that are compounded by the new AVOD streaming payments.

The path to this agreement was arduous. The networks put up every roadblock they could. In the face of this reality, our approach was steadfast in protecting the contributions our great musicians make to the television industry and pragmatic toward seeking new benefits for our constituency and our pension fund. While we have a long road ahead and much more progress to make, this comprehensive package addresses a number of critical issues, not the least of which is the wage stagnation of the past several years owing to the networks’ refusal to negotiate and provide streaming residual counterproposals. We had to fight long and hard to get serious discussions on streaming started at all. Once that happened, and when musicians from our shows hit the street and generated heat, the pieces began to fall into place.

I cannot praise too highly the solidarity, hard work, and enormous time investment of all the musicians in the #RespectUs campaign. Actions included wearing #RespectUs facemasks at their workplace, NYC rally and march, and helping to get public recognition for the contract from late night hosts James Corden and Stephen Colbert. Without the actions from members fighting to win a better contract, we would not have won what we did. 

We benefitted from the invaluable input and activism from Local 802 and Local 47 musicians who perform on the various late-night shows with James Corden, Stephen Colbert, Jimmy Kimmel, Jimmy Fallon, and Seth Meyers, as well as variety show musicians performing with Dancing with the Stars, The Voice, and Saturday Night Live. Numerous freelance bargaining unit musicians participated in Zoom meetings and negotiations. We were also assisted by local union officers Ed Malaga (IEB and Washington, DC Local 161-710), Terry Jares (IEB and Chicago Local 10-208), Pat Hollenbeck (Boston Local 9-535), Andy Schwartz (New York Local 802), Rick Baptist (Los Angeles Local 47), Dean Rolando (Chicago Local 10-208), and Nashville RMA representative Danny Rader.

I offer my most sincere thanks to the members of the Federation’s negotiating team, which consisted of International Vice President Bruce Fife, Vice President from Canada Alan Willaert, Secretary-Treasurer Jay Blumenthal, International Executive Board members John Acosta (Local 47 Los Angeles) and Dave Pomeroy (Nashville Local 257), RMA President Marc Sazer, and rank and file representative Jason Poss, with assistance from AFM Counsel Jennifer Garner and Russ Naymark, EMSD Director Pat Varriale and Assistant Director John Painting, Contract Administrator Mary Beth Blakey, Organizing Director Michael Manley and Lead Organizer Alex Tindal Wiesendanger, Communications Director Antoinette Follett, and Local 47 Organizer Jefferson Kemper.

We cannot afford to relax and ease the pressure. We will meet regularly with the employers to continue discussions concerning workplace issues and the equity we seek. Further contract improvements, particularly in streaming residuals, will likely result if we maintain and build upon the momentum of our fairness campaign.

Next up—the Sound Recording Labor Agreement, with our old friends, the major record labels.

The Great Depression of the 1930s and the advent of World War II jump-started the union movement, which grew workplace unionism until two things happened. First, the expansion of globalism in the latter 20th century allowed capital to circle the world to find cheaper sources of labor. Secondly, President Ronald Reagan fired 11,000 air traffic controllers represented by the Professional Air Traffic Controllers (PATCO) union during a bitter 1981 labor dispute, busting the union and hiring replacement workers to work longer hours for less money. 

Prior to PATCO, it was not acceptable for employers to replace striking workers, even though the law gave employers the right to do so. The PATCO strike eased those inhibitions. Nationwide, union membership began to decline. With the advent of COVID-19 and its economic effects, some believe that a union resurgence is underway. 

During the pandemic, digitization and automation of work has accelerated, brought on by changes in demand. In-person services in banking, retail, hospitality, travel, education, and healthcare have declined. 

Jobs in the live entertainment sector—deemed “non-essential” and with venues closed by governmental decree—have vanished. Pandemic economics and pandemic politics are determining how live music and the gig economy will be reorganized. High unemployment will continue. Many gigs will not return in any eventual recovery. Surviving small businesses are reopening with diminished clientele, fewer employees, additional part-time workers, and lower pay.

On the other hand, in essential services like policing and firefighting, healthcare, warehousing, public transportation, food production and distribution, trucking, shipping and delivery, communications infrastructure, and hands-on public employment, demand for workers is increasing, putting upward pressure on wages and benefits. 

Unionized workers, whether essential or non-essential, are in much better shape to weather the pandemic. Pressure from the union and threats of concerted activity are the only reason employers don’t behave worse. 

Employers today are lobbying state and federal legislators to be shielded from legal liability for workplace coronavirus spread. The Department of Labor’s Occupational Safety and Health Administration (OSHA) hasn’t investigated most of the thousands of employee complaints about infection risks in the workplace, according to the AFL-CIO. As a result, we have seen increased militancy, sick-outs, and work stoppages by workers at Amazon warehouses, Whole Foods, Trader Joe’s, Target, and Instacart, as well as by California farm workers, Detroit bus drivers, Alameda nurses, Chicago teachers, and GM auto workers, with workplace safety a top priority. For many essential workers, COVID issues illuminated the ways they were being shafted. 

And of course, our employers may say that we (not the managers) need to take concessions until they think their companies are strong enough to afford to pay us more. And for many of the major employers of musicians in our communities, managers are prioritizing what they can keep for themselves during the pandemic, while musicians are seen as disposable. It’s about management without music, because taking care of those who make the music is a poison pill. The musicians of our communities are the faces of the live music business, not the venue managers. I’ve never seen anyone buy a ticket to a show to see a manager manage.

The pandemic has locked out musicians and our audiences, too. It has shuttered our venues and restricted demand for live entertainment. Against the fear of a second wave of infections, you could give employers everything they want and it would do nothing to increase demand.

More than ever during this devastating pandemic, we need solidarity when our workplaces reopen. Solidarity is the glue that holds the band, the ensemble, and the union together. It is both an asset and a liability. It’s a liability because it depends on musicians closing ranks and working together as a whole, which doesn’t always occur, and it rarely happens in a workplace where union members are pitted against each other—or where members help management do it—or when members collaborate with management to help the employers get what they want from us. Organizing solidarity is a daunting task, but when achieved, it works well.

The history of this union is the story of a culture of divisiveness. Disunity is in our DNA. Our union was born of disunity 124 years ago, and as your president, I’ve done everything possible to get everybody out in the open and on the same page to build union power. Our union’s history is also the story of people, activists, committee folks, and elected officials on the inside whose personal agendas are camouflaged in contract issues, who want issues to break their way, and when they don’t, become determined to destroy the union from the inside. There have been union leaders, some with self-serving, selfish political agendas who sought office not to preserve, protect, and defend the union—and who couldn’t really lead the union, or the local, or the committee, or the bargaining unit toward a unified voice—but who just wanted to get control, then outsource leadership responsibilities to “experts,” outside lawyers, etc. That is a recipe for disaster. The experts aren’t fiduciaries. The union leaders are. If you are an elected union rep, a committee person, or a member of a negotiating team and you organize for self-centered divisiveness, you will lose. Fighting for unity and fairness is your only hope of getting through this pandemic. We can win if we stick together, because we are stronger together.

If you negotiate with management against the backdrop of this pandemic, pick your negotiating team carefully. Ask questions about how they will respond to demands for concessions. Ask them what they will do to organize unity. Check for personal agendas. Managers sometimes elevate the status of certain individuals to help employers achieve concessions. Do your employers want to create hierarchies, or tiered wages, pushing down money for musicians on the lower rungs of a ladder who become grist for the mill? Is that fair? Are some individuals more important than the collective? Managers love hierarchies, by the way, for obvious reasons.

Unity is achieved by keeping an eye on fairness, dovetailing interests, keeping everyone motivated and involved. Particularly during this deadly pandemic, if you have unity, you have a chance to win.

Looking ahead in this pandemic-driven time of political and economic uncertainty, professional musicians, whether working in the gig economy as freelancers or employed under orchestral or theatrical collective bargaining agreements, are coping with the fear being used to exploit us by employers and by politicians on the local, regional, and federal levels. Fear is the stalking horse of uncertainty. The longer the virus is out of control, the deeper the economic misery, and the slower the recovery.

The virus-enforced isolation also reinforces patterns of individualism—an attitude that self, the individual, is more important than the group. This dynamic is regularly promoted by our employers, promoters, purchasers, and booking agents. In contrast, collectivism emphasizes cohesiveness among individuals and prioritizes the group over self. For obvious reasons, employers fear collective action.

Collective, concerted activity is difficult enough to achieve in good times. But when times are bad, it’s individualism over collectivism— “every man for himself.” Workplace divisiveness empowers employers and weakens our negotiating position.

One antidote for fear is sticking together, because we are stronger together. I’m hoping that COVID consequences can motivate us toward collective action. The pandemic long haul that we are mired in should not be met with resignation. It should reinforce our determination to achieve fairness and make a difference. More than ever, a collective approach toward our employers is necessary.

Organizing a collective approach during pandemic conditions is challenging when, for safety reasons, you can’t have mass meetings, and you are worried about in-person or home meetings with co-workers and committee folks. And with rampant uncertainty and unemployment, fewer of us are willing to take chances when worried about finding another job.

Many of you have experienced the fear mongering and bullying of employers and managers who seek to impose regressive terms and conditions of employment, and not just during the pandemic period, but in good times.

Generally, employers don’t give you things because they like you, or have a heightened sense of benevolence, or moral responsibility. Unions exist because the power of the employer to control your fate demands an organized response. The pandemic has made unionism more important now than at any other time in our lives. Fighting for our livelihood while we are seeing a pandemic reshape the world economy will not be won by begging for scraps from the boss’s table. We have to manage fear and uncertainty by organizing to save ourselves. Again, that depends on all of us sticking together, because we are stronger together. Collectivism.

Employer-driven attitudes are used to define our relationships with them, providing a backdrop and context when we bargain collectively. And believe me, whether you perform as a freelancer or under a collective agreement, you’ll likely have to bargain your way back into a job when the virus recedes.

In contract discussions, employers like to script our roles as rank and file, committee people, and union reps. Assessing the attitudes of local, collectively bargained employers, particularly those in the orchestral and theatrical sectors, I’ve divided them into three buckets.

First, we have employers that are mindful of community responsibility, that are genuinely dedicated to the men and women of the orchestra and understand the need to preserve and protect artistic integrity. Those employers will work with the committee and the union to overcome adversity and foster a vision. They will look toward innovation and will involve the community in providing for the needs of the institution. They will raise and deploy capital. This group will do what is honest and necessary to survive the pandemic and allocate resources to keep musicians safe.

Second, we have employers who are risk-averse, are precautionary and conservative, with no real imagination. Even if they had some creativity, they would be slow to allocate existing assets toward new ideas or raise needed capital from the community to protect the institution. Even in a good year, they tread water in the interest of survival and longevity but have no growth direction. This group will hunker down against the pandemic to conserve existing cash and assets, which does not include protecting musicians. They don’t aim to hurt you, but they aren’t going to help you either.

Third, we have employers that view the pandemic as the ticket to force the concessions they’ve always wanted from musicians. I would describe these employers as vulture capitalists who see a once-in-a-lifetime chance to impose steep regression since it won’t look so bad to the public in a pandemic. They will hold your livelihood and your family hostage unless you give them everything they ask for. They are less interested in community concern for artists and the art form, and more about preserving capital at the expense of musicians. They could care less that the perfection of our performances is the reason that capital and assets were built and acquired in the first place. But against the backdrop of the pandemic, musicians are seen as disposable, as a liability. Managers in this employer group see themselves as the real institutional asset, prioritizing management needs over those of musicians. Some are union busters who, if they can, will make you crawl back in on your belly after the pandemic nightmare has ended.

The lines have already been drawn. The script has been written by the employers. It goes like this:

“The union and the orchestra need to understand that we are all in this together, and we will all have to do our part to save the institution.”

That’s as if we were partners—we are always junior partners in the success of the institution, but we are senior partners in the face of disaster. I’ve never bought into any of this “partner” horse-hockey. Do they come around with bonuses when we play so well the nightclub breaks the bar record, or when a big institutional surplus is achieved from ticket sales and donations? No, they never do.

Contrary to their script, we are not in business with them. They are in business for us.

Next month—Is a Union Resurgence Underway During the Pandemic?

You might recall that I wrote in a recent IM column that in every economic downturn, there are winners and losers, and for this discussion I’m including natural disasters and armed conflicts in the equation. We can see what the COVID short-term consequences are by looking at what’s happening in our own communities. But what may be the longer-term aftereffects?

Economic scholars now believe the pandemic’s economic hit will endure for decades, even if a vaccine is approved. Economists say rates of return on capital (cash, land, and assets) will be depressed for at least a decade—with interest rates between zero and 1%. This is in contrast to what happens in wars and natural disasters such as hurricanes, earthquakes, and tornados, where capital is physically destroyed. Capital is not destroyed in pandemics.

Despite the coronavirus, our instruments and our abilities to perform with them still exist. And for orchestral, theater, and touring musicians, our venues also still exist, but are idled. This contrasts with wars and natural disasters where buildings, venues, possessions, means of production, and infrastructure are blown away by nature or bombed into oblivion. The pandemic is modulating labor markets, resulting in more worker availability and competition for jobs—which, for non-essential workers, have become scarce. And in our own case, the managers and custodians of capital are conservative and precautionary. But no one really knows what’s next.

With the advent of COVID, we are seeing the flight of resources and capital toward the domination and control of key essential markets by a small number of corporations.

Large mega-companies immediately took advantage of opportunities presented by the coronavirus. Where local restaurants, bars, movie theaters, nightclubs, and shops were shut down, many of which cohabit the neighborhoods where our live theaters and concert halls are located, the market for food, retail, and entertainment morphed into trips to fast food chain drive-through windows, like Taco Bell, and trips to the supermarket. Demand for shopping and live entertainment, including moviegoing, was re-routed online.

The supermarket and fast food firms are big winners, because they have lots of properties, plenty of staff, and resources to recruit additional workers quickly to re-employ the suddenly unemployed. Kroger and Costco, for example, also have logistical hubs, warehousing, and trucking networks to assure customers of adequate supplies of food, drugs, liquor, and, of course, toilet paper.

Another big winner is the online retail industry, particularly Amazon and eBay. Web retailers have been giving brick-and-mortar stores like Sears a run for their money for years. The pandemic spike in online shopping is clearly attributable to emergency governmental lockdowns and fear of public in-person contact. This trend has led to major COVID-related bankruptcies including Pier 1 Imports, JC Penney, GNC, Neiman Marcus, and Brooks Brothers. This is a cause for concern, as many of these companies were benefactors of community arts organizations that employ our members. I remember having lunch with Stanley Marcus and Dallas Symphony executives, years ago. Neiman Marcus was a solid supporter of the Dallas Orchestra.

Still another big winner is the streaming entertainment industry—Amazon, Netflix, Disney, NBC/Universal (Peacock), CBS All-Access, Apple, SiriusXM, Pandora, Spotify, Google-owned YouTube, Facebook, and Twitter. Professional musicians work under Federation agreements for content producers and we collect and distribute royalties for digital uses of our members’ work. There is certainly a COVID-related uptick in consumption of digital media, but will it be enough to offset the loss of film producers’ television advertising revenue and worldwide box office receipts?

Then we have the big winners in the delivery business—UPS, FedEx, Amazon (again)—dominating the distribution of everything, products small and large.

The paranoia about trading in cash, thought by some to facilitate virus transmission, has benefitted the credit card companies and contactless payment services—Visa, Mastercard, PayPal, and Apple Pay.

The hospitality and travel industries are heavy losers and on life support, where winners Zoom, Skype, Webex, and BlueJeans have offset the need for hotel rooms, air tickets, and rental cars.

The billionaires are getting richer from this pandemic, while millions of working people are out of their jobs. Mega-companies are gaining big chunks of ground, not just in market share, but in their ability to influence politicians, and entire governments.

The richest person on earth, Amazon CEO Jeff Bezos, now has a net worth of $196 billion, including a $16.2 billion bump he accumulated during one week in July, and $7 billion gained during a single day.

Unlike other disasters over the past 100 years that killed tens of millions and diminished the available workforce—World War I (21 million dead), 1918 Spanish Flu pandemic (50 to 100 million dead), or World War II (70 to 85 million dead)—COVID consequences will not result in a shortage of working people. It’s entirely the opposite.

The disruption and closure of small businesses and large retail chains, where stores fail to reopen, jobs are permanently lost. Millions of workers and business owners in non-essential sectors are facing catastrophe, which will keep unemployment levels high. The workforce is largely divided into three categories: those able to work from home, essential workers who have to report to work, and over 50 million unemployed. The longer the disruptions, the deeper the pain and the slower the recovery.

And because COVID hit the leisure and live entertainment sectors the hardest and will be among the last to recover, the gig economy is flooded with unemployed musicians. Don’t be surprised when a gig opportunity arises for a restaurant, bar, or party date and the purchaser or booking agent wants you to work for lower pay because of the fierce competition for jobs.

I have walked you through these difficult issues to help illustrate the obvious. Coronavirus has strengthened the power of the employers.

Next month’s column: Coping with Fear Through Collective Action