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The SphinxConnect Phenomenon: Leading with Intellect to Advance the Value of Inclusion

by Alfonso Pollard, AFM Legislative-Political Director and Diversity Director

For the past 20 years, the Sphinx Organization has played a quintessential role in moving the US, and in some instances the global cultural community, toward a more enlightened future that exudes cultural inclusion. The moral and philosophical underpinning of the artistic institution’s work proves that the payoff of inclusion far outweighs the “poison pill” of cultural exclusion. The achievements of this organization’s leadership, grounded in strong musical and philosophical reinforcement, prove to supporters and funders alike that diversity brightens the latent moral groundwork upon which classical performance can grow.

It’s clear the Sphinx Organization’s influence goes far beyond community values and the classical artist of color’s need for mere involvement. The SphinxConnect conference, held in Detroit, Michigan, in early February, brought together musicians, industry leaders, educators, funders, diversity advocates, and more.

In his opening remarks, Sphinx founder and director Aaron Dworkin took the more than 500 registered SphinxConnect participants through the matrix that formed the basis for his initial journey in founding the organization. Combining his philosophical framework with his multicultural background, he saw that his pathway to success, and the pathway for hundreds of other young minority artists, didn’t lay solely in the thirst for recognition of their abilities to perform successfully. He saw the need to shine a light into a dark tunnel fraught with twists and turns. In doing so, he knew there were likely obstructions, not yet evident, which he would confront in the unexplored passage into an uncertain future.

Recognized as an international speaker and social entrepreneur, Dworkin has now significantly, if not fully, executed his journey. He continues to rely on his faith that well-trained young artists, regardless of background, when given the right tools and motivation, can perpetually hold their own. By surrounding himself with strong, forceful advocates of his project and people trained to exact his high standards, Dworkin is able help committed young performers and institutions lift the talents and human spirit of young artists of all socio-economic backgrounds.

AFM representatives at the SphinxConnect conference included (L to R): AFM Legislative-Political and Diversity Director Alfonso Pollard, Diversity Committee Member and Local 5 (Detroit, MI) Secretary-Treasurer Susan Barna Ayoub, International Conference of Symphony and Opera Musicians (ICSOM) President Paul Austin, Symphonic Services Division Director Rochelle Skolnick, AFM IEB Member and Local 802 (New York City) President Tino Gagliardi, and ICSOM Chair Meredith Snow.

With this philosophical foundation driving Dworkin’s efforts, the 2018 annual SphinxConnect gathering was clearly designed to give participants a measure of confidence in their performing and networking ability, as well as to act as a forum to express their inner most concerns about successfully navigating the symphony world. Dworkin lays out a tangible philosophical and artistic path toward a life-changing journey.

I represented the AFM at SphinxConnect, along with Director of Symphonic Services Rochelle Skolnick, ICSOM Chair Meredith Snow, ICSOM President Paul Austin, AFM IEB Member and Local 802 (New York City) President Tino Gagliardi, and AFM Diversity Committee Member and Local 5 (Detroit, MI) Secretary-Treasurer Susan Barna Ayoub. Skolnick also served as a panelist. There were many AFM members in attendance. The workshops and panels set the stage for enhanced skill building in performance and teaching, developing a clear artistic vision, building careers around adventuresome instrumental platforms, defining a musician’s mission in the community, understanding politics and policy in the arts, and entrepreneurship. The presentations reflected how artists should hold themselves accountable in the dynamic and constantly changing music environment. Last, but not least, participants learned the value of networking, and when necessary, how to speak truth to power.

From the 2018 attendance record, it was obvious that the Sphinx “phenomenon” has a steadfast following. Its participants look forward to attending every year. The event makes a profound statement about inclusion and the need to move the ball forward on symphonic career opportunities. From the point of view of this director, AFM 2018 SphinxConnect participants and representatives, and members of the AFM Diversity Committee, our organization is set to bring vital resources and advice to help make a positive difference.

Alan Willaert Pic

2018 Negotiations to Bring More Covered Work

by Alan Willaert, AFM Vice President from Canada

The Canadian Office has several negotiations occurring simultaneously. Some of these negotiations are ongoing and others are just beginning. We have been at the table with the jingle industry for more than a year. When bargaining a successor agreement began, there seemed to be a taste from the other side for more inclusive packaging, where several platforms could be purchased up front in one-year increments. That has now changed, and the emphasis is now dubbing different iterations for web use. What was once being referred to as “new media” is now simply “digital.”

When the current agreement was written, Internet advertising was in its infancy, and the revenue was small in comparison with television and radio. Now, of course, the Internet has become a mainstay and is treated as a third and equal platform.

These rather massive shifts in how advertising agencies spend their dollars have made it imperative that we completely revise the language and find ways to simplify pricing. While there are several obstacles to be overcome, there is light at the end of the tunnel and finalization of a new Commercial Announcements Agreement is imminent.

After many years, we have finally been successful in getting the Canadian Media Producers Association (CMPA) to agree to negotiate. This will be the first independent production agreement for use in Canada, an important step because our General Production Agreement (currently negotiated with the CBC) is not a particularly good fit for independents. Once in place, it will represent more covered work for our members, and we should be able to capture productions that are now either done dark or offshore.

The first meeting took place January 31. Representing the Federation were AFM President Ray Hair, Michael Murray of Local 149 (Toronto, ON), EMSD Supervisor Dan Calabrese, Executive Director Liana White, and myself. The next bargaining date will be March 12.

The same team will be in place for negotiations set to kick off March 13, as we begin bargaining with the remaining three terrestrial broadcasters: Corus Entertainment, Rogers Communications, and Bell Media. The hope is that the current General Production Agreement (GPA) can be used as a template. Right now, certain music programming is being done under a letter of adherence to the GPA, such as CTV’s The Launch (look for the CFM logo in the credits), the Junos, and other award shows. This will allow us to capture all productions with live musicians, as well as scoring.

With the assistance of Local 293 (Hamilton, ON) President Larry Feudo and Secretary-Treasurer Brent Malseed, we have entered into negotiations for a successor contract with the Canadian Country Music Association (CCMA), in anticipation of this year’s awards, hosted by the city of Hamilton. CCMA has agreed to a three-year deal to avoid repetitive bargaining.

The spring and summer will be extremely busy finalizing agreements, but the payoff will be more covered work for more members, which after all, is the point.

Click here for this article in French.

Internal Organizing in Our ICSOM Orchestras

by Meredith Snow, Chair, International Conference of Symphony  and Opera Musicians (ICSOM)

The cohesive internal organization of an orchestra is the foundation of a strong bargaining unit. The more our musicians know about the structure of their collective bargaining agreements (CBA) and how committees function, and the more they are willing to participate in the civic life of their orchestra, the greater will be their success in negotiations, and the greater will be the success of the institution as a whole.

The orchestra, as a social construct, has a centuries-old history of hierarchal rank and deportment, from conductor to concertmaster to last stand violas. The mannerisms remain, but our unionization has revolutionized the status quo behind the scenes. The power to negotiate pay and working conditions that are fair and beneficial to all and the protection of tenure has created a more equal and just workplace.

All of our International Conference of Symphony and Opera Musicians (ICSOM) orchestras have both a CBA (negotiated by musicians and locals) and bylaws, which carefully outline the duties of committees, and the relationships of members to each other and to management. While each orchestra may divide responsibilities differently, an orchestra committee (OC) generally oversees the implementation of the CBA; some form of Auditions Committee will manage auditions and tenure review in conjunction with the music director; and an artistic liaison committee may address programing, conductor review, and possibly workload issues that can occur within the bounds of the CBA.

Many orchestras now have a separate negotiating committee. In recent years, orchestras have formed social media committees and community outreach committees to foster connection with their current and potential audiences. And I would be remiss if I did not acknowledge the coffee makers—the unsung heroes who come in early to rehearsal and start the coffee brewing. A fresh cup of coffee is, in and of itself, an internal organizing tool. We tend to concentrate our attention on the grand gestures and positions of power, but it is small considerations that foster good relationships.

The configuration and number of members of these committees, makeup of the audition panel, and other details are specified in each orchestra’s bylaws. The various duties have become increasingly complex over the years to the extent that many orchestras now have a crossover system where OC members also serve on the other committees to be sure that the contract and bylaws are not overlooked or undermined.

As with any civil service, working on a committee can be challenging and rewarding in equal measure. But having strong committees is absolutely vital to the health of an orchestra. They are the connective tissue that binds our members together, as well as the central nervous system in our interaction with management. A clear understanding of our relationships creates a strong bond, especially needed in times of adversity, and makes it possible to build a culture of mutual respect and responsiveness, not only between musicians, but with management as well.

Serving on committees is a voluntary activity. Our members donate their time for the good of all. While many members volunteer, others need encouragement. In many orchestras, the ICSOM delegate and a committee member will invite newly hired musicians to lunch to explain the organizational structure of their new job. Some orchestras have created a handbook to simplify understanding of the densely-written CBA and bylaws. We are always recruiting. Asking musicians to volunteer for activities that benefit other organizations, such as soup kitchens or disaster relief groups, is a doubly beneficial organizing tool. You are solidifying your own relationships while helping others.

Open and respectful communication is key. Committee members can and should be available to speak with other orchestra members, but there is no substitute for general meetings, which help draw together all the musicians in an orchestra. Aspirations, irritations, complications, what’s working, what’s not—all need an open forum to be addressed. The better we understand one another, the stronger we are as a unit. Considering we all play in the same orchestra, it is surprising how different the pressures and expectations of each instrument group are. Understanding our different perspectives helps unify our membership. The stronger we are as a union, the greater our success in negotiations.

Health Care

Deciphering Health Care

Since the start of the 115th Congress, both the executive and legislative branches of government have been under single party control. The US House of Representatives, under the leadership of Speaker Paul Ryan (R-WI), and the Senate, under the leadership of Majority Leader Mitch McConnell (R-KY), with the backing of the Republican White House, have been fully engaged in repeal and replacement of the Affordable Care Act (ACA).

Once the process began in earnest, principal concerns came from Republicans who believed that the new health care bill should include provisions 1) to provide coverage for people with pre-existing conditions, 2) for those with employer-based health insurance, and 3) for cuts to Planned Parenthood. Democrats flatly rejected the bill saying that, in particular, its Medicaid cutback provisions would hurt too many elderly and poor Americans by eliminating Medicaid expansion eligibility included in the ACA. Democrats also complain the bill may cause unnecessary spikes in premiums for low-income families, older Americans, and those with pre-existing conditions.

The Medicaid Debate

Chief among concerns is the gradual elimination of the ACA Medicaid Expansion Program eligibility written into the new Republican House and Senate Bills. Both the Senate and House bills phase out extra money that the federal government has provided to states under ACA as an incentive to expand eligibility for Medicaid. More importantly, this means that seniors would receive fewer health care benefits under the new Senate and House bills.

What is Medicaid (not to be confused with Medicare)? It is a government funded health care program that provides health insurance to people with disabilities, the elderly, low-income seniors, and families with children and pregnant women. It helps pay medical expenses for those who cannot afford comprehensive medical coverage. Medicaid is financed by both federal and state governments. However, each state manages its own Medicaid program and decides its own rules for participation.   

What is Medicaid Expansion? The federal government website Medicaid.gov defines the program as expanded eligibility coverage under ACA for the poorest Americans. ACA created an opportunity for states to provide Medicaid eligibility, effective January 1, 2014, for individuals under 65 years of age with incomes up to 133% of the federal poverty level (FPL). For the first time (under ACA), states could provide Medicaid coverage for low-income adults without children with guaranteed coverage through Medicaid in every state without need for a waiver.

House Deliberations 

After a month of wrangling, the new health care bill was withdrawn from consideration due to moderate and conservative Republicans who threatened not to vote for it until outstanding issues were resolved.

In the House, the Congressional Budget Office (CBO) score was not released until after the bill passed. The eventual nonpartisan score showed that 15-23 million Americans could lose their health care benefits by 2026, more than if Obamacare remained intact. The new American Healthcare Act (HR 1628) passed the House May 4 by a vote of 217 to 213.

After House passage, the bill moved to the Senate. Senators agreed to disagree with significant elements of the House bill and decided to totally rewrite it. As the House moved expeditiously to put a bill in place, the Senate worked behind closed doors with 13 Republican Senators drafting a revised bill. There was major concern over the bill being drafted without a CBO score analyzing its cost. The Senate decided to delay releasing its bill until all the pieces are in place.

Democratic Senators protested because the bill was not subject to committee hearings or debate on the floor. Now, Republican senators who heard from angry constituents at town hall meetings during their recess are carefully considering their options. Meanwhile, political pundits continue to calculate the impact of possible losses of Republican seats if the bill is signed into law without the support of voters.

The Senate bill was recently released with deep cuts to Medicaid and ending the ACA mandates for purchasing insurance, maternity care provisions, emergency services, and mental health treatment.

Now that the July 4 holiday recess has ended, the Senate is moving toward a full vote in the chamber. As of this writing, four Republican Senators will oppose it: Rand Paul (KY), Ted Cruz (TX), Mike Lee (UT), and Ron Johnson (WI). Cruz has introduced his own amendment that is now under consideration. Vice President Mike Pence, President Donald Trump, and Mitch McConnell are negotiating hard with reluctant Senate members to move the bill forward as opposition voices continue to grow from Members like Susan Collins (R-ME). Further complicating forward progress on the vote is the absence of Senator John McCain who recently had eye surgery and will be away from Washington for approximately two weeks. Failure to hold a vote could mean that no bill would pass this year, leaving the ACA as the “law of the land.”

The White House continues to weigh in with uncommitted Republicans suggesting that Trump would like to see the outstanding issues resolved and have a bill in place and ready for his signature before congress takes its August recess. At this writing, less than three weeks before August 1, few members of Congress have hope that an agreement can be reached in time. Some in leadership are beginning to believe that the best chance they have for passage of the Senate bill is to reach out across the aisle and include Democrats in the negotiations. Trump has now suggested that the Senate consider first repealing the ACA and then replacing it. Not all members of Congress support that solution.

Ray Hair

Changing Channels: from Pamphlet B to SRLA, Network Television

I am pleased to announce that the Federation has concluded negotiations with the Broadway League and Disney Theatrical Productions for a successor Pamphlet B Agreement. The new agreement establishes wages and conditions of employment for musicians working on the road in touring theatrical musical productions. The Federation’s Pamphlet B Agreement is administered by the Federation’s Touring/Theatre/Booking Division (TTBD), headed by Assistant to the President Michael Manley.

Despite a rough start in our initial round of bargaining, the Federation, Disney, and the League were eventually able to find common ground during subsequent negotiations, ultimately reaching a progressive agreement that will become effective retroactively after ratification to March 11, 2016 and extend through March 15, 2020.

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Changing Workplaces Review Special Advisors’ Interim Report

The Ontario Government has released an interim report of the Changing Workplaces Review, which can be found at: https://www.labour.gov.on.ca/english/about/pdf/cwr_interim.pdf.

This 312-page document contains a synopsis of submissions from various unions and organizations that pertain to areas of the Employment Standards Act (ESA) and the Labour Relations Act (LRA) that may no longer be relevant in today’s workplace—specifically to workers in the audiovisual/media industry. Also contained are what the advisors consider to be options, based on those submissions and existing practice in other jurisdictions around the world.

As in all things involving government, this vast review may be nothing but a diversion pending the next election; or, it may be an opportunity to make positive change for musicians in how they are viewed and treated in the workforce and the remedies available to them in conflicts with employers.

For Canadian musicians, maintaining status as either independent or dependent contractors has huge tax advantages. Unfortunately, in most cases, this precludes the ability to capitalize on the benefits of being an employee. Certainly, a hybrid of the two is desirable, yet unlikely to ever materialize.

The CFM has taken the position that we will support some of the principles put forth by other arts organizations such as ACTRA, IATSE, and the DGC (some of whom do have employee status), but we must also think of what is best for working musicians. That, of course, is legislation that mirrors the federal Status of the Artist Act.

Here is the content of the submission to Queen’s Park from the CFM:

4.2.2 – Related and Joint Employer

Respectfully, the observations and possible solutions suggested in the review in determining the “true employer” or “related employer” does not address the shell game that exists within the media industry as it relates to musicians. As an example, let’s use a hypothetical film entitled Working Title, which is being produced by a member of the Canadian Media Producers’ Association (CMPA) for initial broadcast on Canadian TV or cable.

The independent producer generally retains the services of a composer under a personal services contract, whereby the composer agrees to deliver a finished original recording as underscore for Working Title. The composer writes the score, and may perform some or all of the parts on a digital workstation (synthesizer). Or, the composer may hire additional musicians—in some cases a full orchestra—to record an even more elaborate score.

Either way, the composer and the musicians would be covered under a CFM film agreement. These agreements contain language stipulating that the original score must remain synchronized to Working Title, and that the music cannot be extracted to be reused or repurposed for other programming, without adherence to the appropriate CFM agreement. But the independent producer is not the signatory (because they cannot be compelled to bargain with the CFM), and through their personal services contract with the composer, require the composer to be signatory and thus technically responsible for the recorded product.

Now it gets interesting. Let’s assume that the terms of the CFM agreement have not been adhered to, and the music for Working Title is now being used in a television spin-off programme. Who, then, is responsible for making the musicians (including the composer), whole? Is it the poor composer, who the independent producer insisted upon being the employer of the musicians? Is it the independent producer, who owns the intellectual property (copyright) on Working Title? Is it the broadcaster, who perhaps initially commissioned the film to be produced and subsequently lifted the music for their new TV show? Is it the (possible) US co-producer, who has invested heavily in the production as a silent partner? Is there any liability on the part of the Ontario government, which funded a significant part of the production through tax credits and grants?

There are many possible combinations of the above scenario, including multiple production companies, sometimes solely incorporated to payroll only Working Title, and then disappear upon completion of the production to avoid further liability, or any detectable connection with a “true” employer.

While the suggested solutions in 4.2.2, including rulings being made on a case-by-case basis, may address more simple relationships, there is no way they can address the above convoluted example. Interestingly, the above confusion is entirely avoided if the CFM negotiates a scale agreement with the independent producer.

The CFM, therefore, recommends introduction of provincial Status of the Artist legislation, with a collective bargaining component, as contemplated in 4.6.1—Broader-based Bargaining Structures, Option 9. In addition, we recommend that the Ontario Labour Relations Board (OLRB) govern the act, similar to how the Canadian Industrial Relations Board (CIRB) has assumed that responsibility formerly held by the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT).

In addition, we recommend that any single producer who becomes part of a producer association and is bound by a scale or other agreement, be automatically bound by such agreement upon joining. Conversely, a producer should not be allowed to escape the terms of an agreement by withdrawing membership from the producer association.

Further, once a provincial Status of the Artist Act becomes law, any existing collective or scale agreement negotiated by any of the arts associations or unions, must be grandfathered to avoid any unforeseen negative impact.

5.2.1 – Definition of Employee

Musicians represented by the CFM have many different employment scenarios, ranging from clear “independent contractor” gigs (such as weddings or concert work), to “dependent contractor” situations (such as symphony orchestras and long-run theatrical work) to instances where they are employees by definition.

The CFM supports the notion that “dependent contractors” should be provided for in the ESA under Option 6. We also support the premise that, in the case of an employer attempting to avoid responsibilities under the ESA by classifying workers as self-employed, the burden of proof would be on the employer to make the case as to why they are not employees or dependent contractors, whichever the case may be.

5.2.2 – Who Is the Employer and Scope of Liability

The CFM is in support of Option 2: holding employers and/or contractors responsible for their contractors/subcontractors compliance with the ESA.

That said, determining who the players are, as explained in the Working Title example, would lead to unlimited confusion and long lines before the OLRB, in terms of proper application and remedy concerning employers of musicians. In terms of recorded work in audiovisual media, CFM recommends that the determination of who is the employer include the question of intellectual property. Simply, who ultimately owns the copyright on the product? That entity (if not the contractor or subcontractor) should clearly be looked to, especially in the case of obligations and liabilities in the future, or in the case where the copyright is assigned to yet another party.

In Conclusion

The CFM has no objection to the various amendments suggested by our counterparts in the entertainment/media industry in terms of amendments and clarifications to the ESA and LRA. However, we cannot stress enough that such measures fall short of what is required to regulate employment of musicians and remedy any situations that may arise perhaps years after the work is complete. We believe introduction of a provincial Status of the Artist Act is a solution that can only enhance the recommended changes and simplify the relationship between employers and musicians who are traditionally self-employed contractors.

As phase two, the CFM has Status of the Artist legislation written and ready to present.

Hopefully, they will accept our proposal to introduce this legislation, and can then compel individual employers or their associations (if empowered to negotiate) to bargain agreements for our musicians. It would be the right thing to do.

100th Convention Epilogue: The Quest for Fairness for Subs and Extras

A resolution that provoked considerable debate during the recently concluded 100th AFM Convention was Resolution 20—“Extras and Subs in Orchestras”—a measure which sought to address the disparity in wages and working conditions that exists in many orchestral collective bargaining agreements for substitute and extra musicians, as compared to those of their seasonally-contracted colleagues.

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