I wrote an 11 page paper about the problems with unions and this very chill and condensed blog post version

A PRIMER

Each market is different, but in any major metropolis there is a juncture at which an actor, dancer, musician, or stage manager (henceforth, the artist) must decide whether to pursue work as a union member, or not. There are challenges inherent with each. Union members face limitations on employment and more specific regulations onstage and in the rehearsal room. Non-union members have no contractual support, no bargaining rights, and often low pay. Much of this falls outside of the scope of this paper, but suffice it to say that the costs of one choice are the benefits of the other.

the costs of one choice are the benefits of the other

In this case, taking on the higher pay and ostensible opportunity for benefits that becoming a union artist affords strips the artists of much of their individual flexibility

This paper focused primarily on the regional artist. This eliminates the need to address Broadway and Disney contracts, which can be very specific and written exclusively for the producer. In this paper, a regional performing artist is defined as someone that works in their specialization of the performing arts, in a city of more than 100,000 residents, 6 days per week, at least 25 weeks a year, on union agreements. One artist may work in several different cities, under several different disciplines each year, and/or under several contracts in one calendar year.

As far as representation, the primary unions are codified as “sister unions” as the Associated Actors and Artistes of America, or the 4A’s. Member unions are the Actor’s Equity Association (AEA, or Equity), SAG-AFTRA (formerly two separate unions: the Screen Actors Guild and the American Federation of Television and Radio Artists), the American Guild of Musical Artists (AGMA), and the American Guild of Visual Artists (AGVA) (“Equity”). AGVA contract work is extremely limited and, again, outside the scope of this paper.

AEA is responsible for actors and stage managers working in live theatre (“About Actors’”). According to their website, “SAG-AFTRA represents more than 165,000 actors, announcers, broadcasters, journalists, dancers, DJs, news writers, news editors, program hosts, puppeteers, recording artists, singers, stunt performers, voiceover artists and other media professionals” (“About Us”). They are responsible for TV, film, and radio artists. Finally, AGMA recognizes the following active artist categorizes: Solo Artists, Stage Directors, Stage Managers, Chorus Members, Choreographers, and Dance Members (Constitution 4). However, AGMA only has jurisdiction over those individuals in “fields of music, concert, recital, dance, oratorio, and opera…particularly including, but not limited to those persons who are concert and operatic singers, including both soloists and chorus, instrumental soloists, dancers, and stage directors, stage managers and prompters of opera performers” (3). A careful reading indicates that stage managers fall under AGMA jurisdiction only where opera or dance are concerned. In addition, the Articles of Incorporation notes that AGMA will not compete with the American Federation of Musicians, a separate union responsible primarily with orchestras (4).

Simply determining which union has jurisdiction seems like a nightmare, but due in part to their status as branches of the 4As, these unions have largely settled their differences, aided by the merger of SAG-AFTRA. All of the unions are part of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and are intended for American artists.

Each of the unions approaches agreements slightly differently. AGMA writes a contract for each company that chooses to hire union artists. These individual agreements primarily define each of the categories of performers and the pay rate and allowable hours for each. However, there is essentially a universal code of conduct that each member agrees to every time they sign a contract.

Equity has around 30 contracts, with some of the most well known being the Small Professional Theatre (SPT), the Theatre for Young Audiences (TYA), League of Regional Theatres (LORT), Guest Artist Agreement (GA), and a set of localized contracts tailored for areas like New England and the Bay Area (“Document”).

Each performing arts organization is assigned one of the contracts above and a level that corresponds with the size of the organization, audience size, and income. These assignments are set and the artists have no say in which agreement they sign for any given employer, except to accept or reject the position. The number and prescribed uses of contracts has changed drastically over the last 20 years and the matter has started to come up in the courts.

LAW FACTS

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.

“YOU KEEP USING THAT WORD. I DON’T THINK IT MEANS WHAT YOU THINK IT MEANS.”

There are a number of implications with this case that range from the engagement of a volunteers, to an employees right to self-determine their representation, to the NLRBs right to intervene. A number of these issues are addressed above, but the elephant in the room is the rights the individual employee has to control the terms of their employment.

The issue of how to determine who is a volunteer and who is an employee is made based on how they are paid or reimbursed. In the course of the discussion that preceded the legal action, the Opera changed the name of the auxiliary choristers’ pay from ‘an Honorarium’ to ‘a transportation stipend’ (¶4). However, as discussed further in the Outcome section, when the contract was due for renegotiation, this was eliminated entirely.

The employees were allowed only one piece of input in both the discussion and the litigation: a single vote. This is not uncommon under union circumstances; however, given their national scope and lack of local branches, or “locals,” to differentiate areas of activity, striking is difficult if not impossible to accomplish. In addition, the number of employees directly affected by this issue is small when compared to the number of artists performing in a given season. When the union took the issue to the NLRB and the Opera did not comply with the NLRB’s findings, members had no recourse but to await legal proceedings undertaken by the union. This is a very specific example, but it is common within the industry. While individual actors may have their situations rectified on a small scale in arbitration, lasting change is not possible until a contract is up for renegotiation. In this case, the change is not represented until the 2012 contract – issued 10 years after this case was heard.

BOOM, BABY

The immediate outcome of this trial was that the Opera would be required to include the auxiliary choristers in collective bargaining. The Opera renegotiated their contract with AGMA in 2012. While no one was obligated to report on the proceedings – and, as such, there is no official report— the finalized agreement is available to any member of AGMA. As of 2012, and through the 2015 season, the Opera no longer has auxiliary choristers. Instead the structure of the Choristers, Dance Captain and Corps Dancers lays out the following: Regular Choristers, Probationary Regular Choristers, Temporary Regular Choristers, Associate Choristers, and Supplementary Choristers. It also adds the position of Chorus Personnel Coordinator (American 37-38).

The Regular and Temporary Regular Choristers remain as previously described. Probationary Regular Choristers are, as one might assume, Regular Choristers that are on probation – be it because they’re within their first year of employment or because they have been put on disciplinary probation (37).

In place of the auxiliary choristers, the categories of Associate Choristers and Supplementary Choristers were created. Associates have priority of employment after the pool of regular choristers has been exhausted and are subject to collective bargaining. The category of Supplementary Choristers is a catchall for those choristers that do not fit into any of the other defined categories (38). Interestingly, in defining rates of pay for these categories, Regular Choristers are indeed compensated at a higher rate than any of the other categories, but, as of 2012, the Associate and Supplementary categories are compensated at the same rate as one another (43).

This cannot be confirmed, but it is likely that the Chorus Personnel Coordinator was added in response to some question about the tax status of the auxiliary choristers. The court cites in its footnotes a conversation in which Opera personnel could not confirm what documentation the auxiliary choristers had completed for tax purposes, possibly because of a miscommunication regarding whether this was a stipend, an honorarium, or transportation reimbursement (Seattle). The addition of union personnel likely reduces the Opera’s liability in case of a similar error in the future.

Finally, it is of note that the judge did not order remuneration for back pay or injunctive relief for the current season of auxiliary contracts. They were simply afforded a seat at the table in the future.

 

…MAYBE THE OPERA IS WORSE

Because this was a paper for law, I wrote a very lengthy footnote about how I am a member of the union, blah, blah, blah and it is in my interest to provide more artists with control and no one asked for an NDA. I feel this will suffice here.

The fact that nothing changed for the auxiliary choristers until the next negotiation period makes sense, in terms of the conclusion that the NLRB came to – simply that they be included in collective bargaining. If the organization is following the prescribed negotiation schedule, there is no recourse for the auxiliary choristers to negotiate the terms of their agreement until the next bargaining period.

This could be a huge loophole in the union system. The difference between the stipend received under the initial contract and the set hourly pay put into place in the most recent negotiations is significant. The current negotiations provide a per performance fee for every chorister, with every non-regular chorister being paid the same amount, with the exception of bit parts. That could be a difference of thousands of dollars for a former auxiliary chorister. The regular choristers must only commit to 50% of the season, but are paid at twice the rate that non-regular choristers are paid.

The question remains as to whether identical duties and identical billing makes this negotiation fair or not. Every local union member votes to ratify a new contract, so the percentage of the voting body that were considered auxiliary members and were deciding their own fate was likely less than 10%. There is still no space in the system for these singers to sit down at the table and decide their own fate unless they took it upon themselves, personally, to campaign to other members. It’s not clear whether this is allowable.

The huge difference in fees that the supplementary choristers are receiving now, from what they were receiving as auxiliary choristers indicates the flaw in the argument that they did not have a stake or “community interest” in the company at a level that necessitates union involvement. It’s easy to see why, from the perspective of an artist and a union, anyone getting paid has an interest in collective bargaining. While these artists got very little say in their own fates, they did have success as members of the union that they might not have had alone. Ultimately, a balance has to be reached wherein artists have more leeway to ensure their own success and fair employment.

However, it seems clear that, unless huge changes are made within the performing arts community, that balance will need to be reached within the union structure in order to ensure continued protection for artists.

Works cited after the jump.

Works Cited

“About Actors’ Equity Association.” Actors’ Equity Association. Actors’ Equity Association, n.d. Web. 29 Nov. 2013. .

“About Us.” SAG-AFTRA. SAG-AFTRA, n.d. Web. 29 Nov. 2013. .

American Guild of Musical Artists, and Seattle Opera. Agreement between AGMA and Seattle Opera. N.p.: n.p., 2012. Print.

American Guild of Musical Artists, Inc. Constitution and By-laws. Aug. 22 ed. N.p.: n.p., 2011. Print.

“Document Libraries.” Actors’e Equity Association. Actors’e Equity Association, n.d. Web. 1 Dec. 2013. .

“Equity, 4As ‘Do Not Work’ Notice.” Actor’s Equity Association. Actor’s Equity Association, n.d. Web. 29 Nov. 2013. .

Seattle Opera v. American Guild of Musical Artists, 2002, D.C. Cir. 292 F.3d 757.