Tag Archives: US Collective Bargaining Agreements

We Have an Agreement! What Comes Next?

June 30, 2017 IM

by Jane Owen, AFM Symphonic Services Division Negotiator

The new collective bargaining agreement (CBA) has been agreed upon and ratified. The revised document has been proofread and signed and the ink has barely dried. Now the musicians of the orchestra, and especially the orchestra committee, get to breathe a sigh of relief and go back to practicing, playing concerts, and living their lives, right? Well, yes, and no.

Right away work begins for the orchestra committee to start preparations for the next negotiation. There should be a strong committee in place every season, but it is especially important during the first year of an agreement when the musicians and management have new working conditions to implement. It is recommended that committee member terms be staggered two-year periods to provide continuity of experienced members on the committee. Some orchestras have separate committees: one to negotiate and one to handle the day-to-day business of the orchestra. It is important that these two committees communicate throughout and after the negotiation. Also, a member of the committee during the negotiation should continue on to the orchestra committee when the new agreement begins, if possible.

The orchestra committee must document all problems that come up during the term of the new CBA, whether grieved or not, and the results of dealing with those problems. It can be helpful to keep a copy of the CBA with notes about these issues to review for the next set of negotiations. If a resolution or grievance results in new language, that language must be saved with the CBA to be included in the new agreement when future negotiations occur.

If the CBA provides for musician representatives to the orchestra board of directors or artistic advisory committees that meet with management, the orchestra committee must establish clear lines of communication with those representatives. Interactions between any of these representatives and management should be coordinated through the orchestra committee to avoid confusion about issues governed by the CBA. All these representatives must be aware of their responsibilities and the extent of their authority, if any. Musician representatives to the board and artistic advisory committees can be extremely useful for communication with management and the board, but the orchestra committee and the union are the only musician representatives able to allow waivers to clauses in the CBA or negotiate items not covered by it.

It is important that the musician representative(s) to the board report back to the orchestra committee and the orchestra as a whole, if necessary, any pertinent information they receive at board meetings. They should periodically receive financial statements, which can be analyzed as the seasons progress to be aware of any problems that may be brewing, or conversely, good news that is happening. (For example, if ticket sales are flourishing or the recent gala was a great success.) It’s best to gather information along the way and avoid being surprised by good or bad financial news when preparations for negotiations start in earnest.

If your orchestra hasn’t yet done so, start a “musicians of” website, Facebook page, and Twitter account. Start an email newsletter. Use social media to present positive information about the orchestra and musician community involvement. Our communities often don’t know that this is how we make our living. There is little awareness of the number of concerts we play in schools, churches, adjoining neighborhoods, or other venues. Help spread the news! These are great resources to build and identify your fan base and supporters, if you face a troublesome negotiation along the way. Once again, of course, the orchestra committee needs to monitor what information goes out via these outlets before it is posted. This ensures that the musicians are always portrayed in the best way possible.

The orchestra committee can also work with the local union to encourage musician participation in local activities. Are orchestra members on the local’s board or do any act as local officers? Are there regular meetings that orchestra members could attend? The time between negotiations is a good opportunity to strengthen the connection between musicians, their local, and area labor groups and to seek out available resources should they be needed. AFM orchestra conferences, ICSOM and ROPA, provide valuable information and support. Through their conference delegate, the committee can maximize those resources as well.

Finally, communication is key. Be sure that orchestra musicians know who is on their orchestra committee and who their local representatives are. Distribute contact information for these representatives at the beginning of the season. Establish how and when all committees and representatives will communicate with each other and the orchestra as a whole. This is all hard work, but well worth it when you are gathering the forces and the information you need to negotiate your next CBA.

Music Business, Resources

The Role of Orchestra Committees

August 25, 2015 IM

by Christopher Durham, Chief Field Negotiator, AFM Symphonic Services Division

Employees who work under the terms of a collective bargaining agreement (CBA) are represented by a labor union that was authorized by the first employees who worked under the original agreement. When the union was established, the membership elected officers to handle the negotiation, enforcement, and administration of the agreement. Other union responsibilities and procedures are prescribed by either law or internal bylaw. The musicians who perform in orchestras elect orchestra committees and ancillary committees to assist the union in the negotiation, enforcement, and administration of the agreement.

This structure, while common in our union, is somewhat unique to the labor movement. Over time, symphonic bargaining units have assumed, through their various committees, a prominent role in the day-to-day governance of the agreements. A consequence of this expanded role should not be to disregard, ignore, or place the union in a subordinate role. The union, as the certified bargaining agent, has the legal responsibility to oversee the performance of the agreement as well as the liability for the action of its agents. It’s important to have an effective working relationship between a rank-and-file committee and the union in order to provide strength through communication and unity. The union is the pivot for members who may not work in the bargaining unit. It has important relationships in the greater community that, when properly networked, can make the difference by providing outside influence during times of hard bargaining.

Orchestra committees who seek the authority to administer the agreement must also acknowledge the responsibility and liability for decisions made under their watch. There is no hiding, denying, or abstaining from the same duty of fair representation that is expected from the union. Symphony orchestra committees are not your fathers’ civic or fraternal organizations, where you serve your time or complete your project and all is well. Representing the business interests of your colleagues and their families is a huge responsibility.

In all matters relating to the agreement, the committee must measure when and what to report to the membership. It is responsible for handling day-to-day business, including variances, and processing and investigating grievances in a timely and thorough manner. Committees must also bring experience to the bargaining table. They are responsible, by their recommendation, for directing the unit to accept or reject tentative agreements or final offers. Committee members don’t have the luxury to pick and choose the grievances that they want to handle nor to limit themselves to decisions that won’t cause confrontation. Conversely, the rank and file is well-advised to listen to the debate respectfully and to not attack a committee they have elected when it is serving in their best interest.

Music Business, Resources

Discretionary Overscale and Parity for Subs and Extras in the Symphony Orchestra

August 10, 2015 IM

by Rochelle Skolnick, AFM Symphonic Services Division Counsel, Schuchat, Cook & Werner

Under the Bus, On a Pedestal, or Business as Usual?

Fairness and justice are hallmarks of unionism. Unions have fostered the concept of equal pay for equal work: the expectation that the person standing next to you on the assembly line, or sitting next to you on the stage, receives the same rate of pay. So it is uncomfortable, but also important, to examine two ways in which our industry fails to live up to that ideal: “discretionary” individual overscale and compensation for subs and extras.

Ask any savvy elder statesman of the business and he will tell you the practice of individually-negotiated overscale predates the start of his career. But commonplace as it was and still is, such individual overscale exists in a shadow realm, separate from scale wages and collectively-negotiated overscale percentages for titled players. These latter amounts are visible for all to see on the face of the collective bargaining agreement (CBA) and, like compensation for doubling, are tied to the expectation that individuals who hold certain positions bear additional responsibility and should be compensated accordingly.

Discretionary overscale, on the other hand, is generally kept confidential and a musician’s ability to obtain it depends on a range of factors including the musician’s rapport with those holding the purse strings, his or her perceived value to the institution, and negotiation skill. The League of American Orchestras’ Antitrust Policy prohibits managements from sharing with one another specifics of individually negotiated overscale payments (although it does provide for sharing of aggregate data) as a form of collusive price-fixing. Musicians themselves are often reluctant to share specifics for fear of compromising the confidential relationships that yielded the deal. Such secrecy, whether enforced or simply cultural, stands in stark contrast to well-established labor law protections for employees to discuss with one another their terms and conditions of employment—wages in particular—as a necessary predicate to collective action.

At the other extreme from those whose individual bargaining power opens the door to discretionary overscale, are subs and extra musicians who depend entirely (with rare exceptions) on the collectively-negotiated wage scales. Subs and extras have always been indispensable to the American symphony orchestra, but when employers propose cutting or leaving core positions unfilled to save money, the ability to attract and retain first quality subs and extras becomes critical. These musicians have trained in the same conservatories as “regular” players, sit side by side with them, play the same works led by the same conductors, and perform for the same audiences. While they are often (but far from always) compensated at a per-service rate that is intended to approximate the service rate of salaried musicians (and often receive pension), subs and extras have no real job security nor (with rare exceptions) access to the other benefits (e.g., health, disability, and instrument insurance and paid sick leave) that regular musicians enjoy. Under these circumstances, focusing solely on service rate tells only part of the story. Complete parity is illusory so long as these musicians are anything other than regular contracted musicians.

In general, there is nothing unlawful about either individual overscale or a lack of parity for subs and extras. Where a union has been designated as the exclusive bargaining representative of employees (as is the case in all of our AFM-represented orchestras), the employer must deal with the union regarding the employees’ terms and conditions of employment. Because the law recognizes the great potential for mischief and divisiveness when employers bypass the union to deal directly with employees, the employer must have the express permission of the union to do so. In our industry, we have consistently granted such permission, although our contracts do sometimes limit individual bargaining, and in any case, such individually bargained terms may not be less favorable than the collectively bargained ones.

Nor does a union’s duty of fair representation (DFR), taken on when it becomes the exclusive bargaining representative, require it to bargain precisely the same compensation for each and every bargaining unit employee, regardless of facts and circumstances. Whether or not a given CBA specifically includes them in its definition of the bargaining unit, subs and extras perform bargaining unit work and are therefore bargaining unit employees, entitled to fair representation by the union as a legal matter.

The DFR requires only that a union exercise good faith in the performance of its representational duties and not act in a manner that is arbitrary or discriminatory. It does not preclude a union from bargaining different terms and conditions for different groups or classifications of employees, so long as the union acts reasonably in doing so. Nor is a union required by law to afford a contract ratification vote to every musician who may work a single service under an agreement; CBA ratification is an internal union matter and a union may set reasonable parameters when determining eligibility to ratify.

However, “not unlawful” is not always the same as “wise.” Adverse consequences abound. All too often in bargaining an employer walls off substantial funds for discretionary overscale, separating them from the “pie” available for across-the-board wage increases, but considering overscale a musician salary expense all the same. As discretionary overscale payments become more substantial and commonplace throughout a bargaining unit, bargaining for scale wages that takes place between the employer and the union remains meaningful only to the few who cannot or will not negotiate their own special deal. When subs and extras are essential (as they always are) to musical excellence, an employer (and bargaining team) that fails to safeguard their compensation does so at its own peril.

It seems to me that our industry has not fully reconciled the artistic individualism that makes for fine, exciting performances with the collective consciousness that makes for well-organized, well-compensated orchestras. Employers who see the union and musicians’ collective as the adversary are only too happy to exploit that tension. I am a pragmatist: I harbor no illusion that the symphony orchestra will ever become a Utopian ideal of fairness, doing away altogether with compensation irregularities. But pragmatism also requires that we regularly take stock of the sources of and threats to our bargaining power. Where it is within our control as musicians, we must ensure that industry practices with such destructive potential, no matter how deeply embedded in our history, are not allowed to subsume the collective strength

Organizing

Revised Notice to Musicians Employed Under US Collective Bargaining Agreements

January 1, 2015 IM

Sections 8(a)(3) and 8(b)(2) of the National Labor Relations Act permit unions in non-right-to-work states to enter into collective bargaining agreements with employers that require employees, as a condition of employment, either to join the union (and thereby enjoy the full rights and benefits of membership) or to pay fees to the union (and thereby satisfy a financial obligation to the union without enjoying the full rights and benefits of membership). That requirement serves the legitimate purpose of ensuring that each employee who benefits from union representation pays a fair share of the cost of that representation. The goal of such “union security provisions” is to eliminate “free riders” who benefit from the union contract without contributing to the union’s cost of negotiating, administering, and enforcing that contract.

Where a collective bargaining agreement requires an employee to either join the union or to pay fees to the union, the fees charged to nonmembers are generally identical to the amount of union dues and initiation fees charged to union members. In a 1988 court case, Communications Workers of America v. Beck, the United States Supreme Court held that a nonmember has the right to object to paying any portion of the fee that will be expended on activities unrelated to collective bargaining, contract administration, or grievance adjustment. All nonmember fee payers are required to pay the portion of the fee that will support expenditures germane to the collective bargaining process, including, but not limited to negotiations, contract administration, grievance adjustment, meetings with employer and union representatives, legislative matters affecting the working conditions of employees in various industries in which musicians function, and internal union administration and litigation related to the above activities. Nonmember fee payers who object to doing so have the right not to pay the portion of the fee that will be expended on other, “nonchargeable” activities, including expenditures made for political purposes, for general community services, or for members-only benefits. In order to reduce the fee they pay to the union, objectors must follow the procedure described here.

The so-called Beck rights described above apply only to nonmembers—individuals who have resigned from the union or who have never joined. Under federal labor law, every person has the right to join and support a labor union, to refuse to join a labor union, and to resign from union membership at any time. However, only union members have the following valuable rights, among others: the right to attend local union meetings and speak out at such meetings on any and all issues affecting the local, the AFM, and its members; the right to participate in the formulation of union policy; the right to influence the nature of the local’s activities and the direction of its future; the right to nominate and vote for candidates for local office and to run for office; the right to participate in the negotiation process for new or successor collective bargaining agreements; the right to participate in contract ratification votes and strike votes; the right to nominate and vote for delegates to the AFM Convention; and the right to participate in a wide variety of benefit plans offered to union members, including the Union Privilege benefits programs, the AFM Symphony-Opera Orchestra Strike Fund, the AFM Theater Defense Fund, and the ROPA Emergency Relief Fund.

Objection Procedure

1) Any nonmember who pays fees to the union pursuant to a union security provision in a collective bargaining agreement has the right to object to any portion of the fee that will be expended on activities unrelated to collective bargaining, contract administration, or grievance adjustment. Fees (like union dues) paid by musicians to AFM locals consist of various parts. All member and nonmember fee payers contribute a per capita amount to the local, which the local, in turn, pays to the AFM. They also pay an annual fee that is retained by the local. In addition, musicians may pay a percentage of their earnings (work dues). The exact percentage, and whether it is ultimately payable to the local or to the Federation, depends on the collective bargaining agreement, and the type of work involved. Based on an analysis of the Federation’s 2007 expenditures, in excess of 83.74% of the Federation’s expenditures were for chargeable activities such as collective bargaining, contract administration, or grievance handling. The percentage of local expenditures that are chargeable typically is higher (and the percentage of local expenditures that are nonchargeable typically is lower).

2) The objection must be in written form, signed by the objector, and sent to the local union(s) where the objector would have paid his or her dues had he or she been a member. The local(s) will forward a copy to the International Secretary-Treasurer Sam Folio; American Federation of Musicians; 1501 Broadway, Suite 600; New York, NY 10036. The objection must contain the objector’s name and address, and must identify the collective bargaining agreement(s) under which the objector works and the local(s) to which the objector pays fees.

3) The objection must be postmarked between February 1 and February 28, or within 30 days of the objector’s becoming a nonmember of the union, or the objector first being required to pay fees to the union.

4) Each local union will determine the amount of the reduced fee and the amount, if any, of prepaid fees to be refunded to the objector, except that the Federation will determine the reduction and refund applicable to any prepayment of Federation per capita. The reduction will be accompanied by an explanation of how the reduction amount was determined. Any objector who disagrees with the reduction amount can file an appeal. The appeal procedure will be provided to objectors together with the reduction check. The appeal must be in writing and state the basis for the challenge. Appeals will be decided by an impartial arbitrator appointed by the American Arbitration Association through its Rules for Impartial Determination of Union Fees.

5) The local and/or the Federation, as appropriate, will provide further information to an objector regarding the reduction of any work dues.

—Further information regarding the objection procedure can be obtained by writing to: International Secretary-Treasurer Sam Folio;
American Federation of Musicians; 1501 Broadway, Suite 600; New York, NY 10036. Please remember that this notice is not applicable
to musicians who are not required to pay union fees as a term or condition of employment under a collective bargaining agreement.