In an effort to highlight the problems inherent in a system of boilerplate contracts, the paper will focus in detail on a single set of legal action. In 2002, the District of Columbia Circuit Court of Appeals heard a case between Seattle Opera and the American Guild of Musical Artists (AGMA). Appropriately enough for the complex subject of union intervention, respondents listed for this case include, but are not limited to AGMA, the National Labor Relations Board (NLRB), and American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).
This case was the last in a series of legal actions taken in response to a disagreement between management, singers, and the union regarding employment status and right to collective bargaining (Seattle ¶1). In this case, as is common, after AGMA became the collective bargaining representative for the Opera, the Opera considered the conversation complete (¶1).
At this particular company, “the Union represents a bargaining unit of choristers, dancers, stage managers, assistant stage managers, and assistant stage directors of the Opera” (¶2). Within this scheme, “the Opera and the Union sets forth several categories of choristers: regular choristers, temporary regular choristers, alternate choristers and auxiliary choristers” (¶2). Regular choristers are in each of the productions in the Opera’s season and audition to maintain their positions (¶2). A pool of alternates is available to bulk up the chorus, as needed, and anyone replacing a regular chorister, as opposed to serving as an addition to the normal corps, is deemed a temporary regular chorister (¶3). Auxiliaries are a secondary pool of choristers that can be pulled to perform in operas on an as needed basis (¶4). Once the chorus for a specific opera is selected, all choristers are treated equally in terms of billing, staging, and facilities (¶5).
As such, “on March 30, 2000 the Union petitioned for a self-determination election among the Opera’s alternate and auxiliary choristers, in an effort to add the alternates and auxiliaries to the bargaining unit.” The Opera said yes to the alternates and no to the auxiliaries (¶6). This decision was affirmed and reversed in a series of back-and-forth discussions between the Opera, the Union, and the NLRB. A secret election was held and the union won representation of the choristers (¶7).
The events that followed demonstrate the convoluted nature of union negotiations and highlight the challenges of seeking fair representation, even with union protection. After this election, the Opera declined to bargain with the auxiliary singers over the terms of their employment; the Opera didn’t deny their refusal to bargain, but they contested the decision to deem the auxiliaries employees. As a result of their refusal to negotiate, the Opera was in violation of the terms of their agreement with the Union and sections 8(a)(5) and (1) of the National Labor Relations Act (Act) (¶8). The Opera filed a petition “to reinstate the Regional Director’s initial decision because, it claims, the auxiliaries are not employees within the Act’s coverage. …The Opera argues that the auxiliaries are merely casual employees lacking a sufficient community of interest with other Opera employees to be included in a bargaining unit” (¶9). The court found that precedent indicated an extremely broad definition of ‘employee’ that included any employee barring a few irrelevant, specific jobs (¶14).
The Opera made, and the courts rejected, an argument that the fee the auxiliary singers were paid was a transportation fee, not a true payment. However, the court compared the auxiliaries with the supernumeraries and youth choristers, who are paid nothing and determined that this argument wasn’t valid (¶18).
A dissenting opinion issued in the footnotes, Circuit Judge Randolph noted that the fee of $214 that the auxiliary choristers receive corresponds closely with actual costs for metered parking and gasoline reimbursement. Again, however, true volunteers do not receive these funds and can only be reimbursed based on receipts. The choristers receive this fee and they do not provide documentation in order to do so.
Ultimately, the court denied the Opera’s petition for review and granted the NLRB’s cross-application for enforcement of its order to treat auxiliary choristers as employees for the purposes of collective bargaining with AGMA.