Bargaining NotesNews

Festivals Behaving Badly

The recent termination of three musicians by the Grand Tetons Music Festival (GTMF) has garnered much attention on social media.  The musicians were not let go for any kind of performance reasons; rather, GTMF says it was for “comportment” and “disruptive behavior.”  Moreover, GTMF doesn’t characterize the action as a “termination” at all – GTMF’s position is that the musicians simply “were not invited back” for next year.

The musicians claim the real reason behind GTMF’s action is that they were outspoken advocates for their colleagues, with two of the three having served on the musicians’ Players Committee and one as a musician board representative.  They say they raised concerns throughout the past summer season about the artistic direction of the festival, and that their termination (disinvitation?) was in retaliation for such activities.

The primary response in the larger musician community has been to the effect of “that’s illegal – right?”  Possibly.  But that depends in large part on the nature of the relationship between GTMF and its musicians, which, like many summer festivals where the same musicians may return year after year but don’t work under a collective bargaining agreement, is somewhat murky.

The most important fact is this:  GTMF is not a union workplace.  No labor union has been certified or recognized as the bargaining representative of the GTMF musicians.  There is no collective bargaining agreement.  Like most summer festivals (Grant Park, Chautauqua, and Santa Fe Opera being notable exceptions), GTMF is a non-union job, plain and simple.

Many consequences flow from that.  First, any “players committee” that may be elected by the GTMF musicians has no actual legal authority.  That is quite unlike most symphony orchestras, where a union local has been designated as the bargaining representative (either through voluntary recognition by the employer or an NLRB election).  In that case, the orchestra committee functions as the agent of the local and management is legally obligated to deal with the committee regarding the terms and conditions of the musicians’ employment.  At GTMF, in contrast, the committee has only so much authority as GTMF management chooses to afford it.  Management can deal with the committee, or not, at its own discretion.

Second, the employment status of the GTMF musicians is unsettled.  Management claims the musicians are independent contractors, and not employees at all.  Independent contractors enjoy few of the legal protections available to employees.  They are not subject to provisions of the National Labor Relations Act (NLRA) that apply only to employees.  Independent contractors cannot form a union, and there is no prohibition (discussed below) on terminating their services in retaliation for engaging in employment-related activities like advocacy on behalf of their colleagues.  Indeed, independent contractors cannot be “fired” at all, for they are never “employed” in the first place.  They have a contractual relationship to provide services, and their legal protections pretty much begin and end with whatever terms are in their personal contract.  Hence GTMF’s assertion that it is entitled to simply disinvite musicians from year to year.

Fortunately, the National Labor Relations Board (NLRB) has historically taken an expansive view of what it means to be an “employee” for purposes of federal labor law; and when it comes to orchestral musicians, the Board has consistently ruled that they are employees and not independent contractors. (See my 2016 Senza Sordino article regarding the most recent, on-point determination of this issue.)  Such determinations are made on a case-by-case basis, however, and can ebb and flow with the political winds depending on which presidential administration appoints the five Board members of the NLRB who adjudicate cases under the NLRA.  The current board, unsurprisingly, is not friendly to unions or the rights of workers and has already issued rulings favoring independent contractor status when the question has arisen.

But if, contrary to GTMF management’s assertions, the GTMF musicians are indeed “employees” for purposes of the NLRA, then they have significant rights and real legal recourse.   Under Section 7 of the NLRA, all employees – in union and non-union workplaces alike – have the right not only to organize, but “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Terminating an employee for engaging in Section 7 activity is illegal.  The terminated employee can file a charge with the local NLRB office, which will then investigate the claim and, if meritorious, ultimately order reinstatement.

But while Section 7 rights apply and are enforceable even in a non-union workplace, there is no protection like a union contract.  Musicians who work under a collective bargaining agreement cannot be fired for vague assertions of “comportment” or “disruptive behavior.”  They can be disciplined or terminated only for just cause, the burden of proof for which rests squarely with the employer.  Players’ committees in union orchestras have real power to affect the working conditions of their colleagues.  Management must take the committee seriously and cannot simply get rid of a committee member for raising the concerns of musicians.

So why aren’t more summer festivals like GTMF organized as union workplaces?   There are many possible reasons.  For one, there is often quite a bit of turnover in festival orchestras, making it difficult to even know who to organize.  Because these festivals are invitation-only, many musicians also are leery of causing trouble.  (Retaliation against employees for engaging in organizing activity is legally prohibited, but who wants to take that chance?)  Moreover, many festival musicians are on layoff weeks from their main orchestras and are simply grateful for the work (and the chance to make music in a picturesque location).  And, of course, festival leadership will often resist union organizing efforts tooth and nail.

But it is possible.  I recently won union recognition for the musicians of a theater company who faced some of these same challenges – musicians who worked intermittently, a fair amount of turnover, and an employer who wanted nothing to do with the union.  At a three-day hearing before the NLRB, the union local I represent successfully established that the musicians were employees, not independent contractors as the employer claimed.  The NLRB ordered an election, under a legal formula that determined which of the employees who worked recently were able to vote.  The vote, when it took place, wasn’t even close.  That’s what happens when musicians are energized and motivated to improve their employment situation.

Hopefully, GTMF will see the error of its ways and reinstate the three musicians it so callously sacked.  The outpouring of support for the musicians on social media and favorable press coverage may indeed have an effect – as should the efforts of many GTMF musicians who have written to GTMF to aver that they will not come back unless the three are rehired.  But long term, the best way to gain protections against something like this happening at GTMF or any music festival – or any orchestral workplace, period – is to organize for union representation.  It is always worth the effort.