The recent termination of three musicians by the Grand Tetons Music Festival (GTMF) has garnered much attention on social media.\u00a0 The musicians were not let go for any kind of performance reasons; rather, GTMF says it was for \u201ccomportment\u201d and \u201cdisruptive behavior.\u201d\u00a0 Moreover, GTMF doesn\u2019t characterize the action as a \u201ctermination\u201d at all \u2013 GTMF\u2019s position is that the musicians simply \u201cwere not invited back\u201d for next year.<\/p>\n
The musicians claim the real reason behind GTMF\u2019s action is that they were outspoken advocates for their colleagues, with two of the three having served on the musicians\u2019 Players Committee and one as a musician board representative.\u00a0 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.<\/p>\n
The primary response in the larger musician community has been to the effect of \u201cthat\u2019s illegal \u2013 right?\u201d\u00a0 Possibly.\u00a0 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\u2019t work under a collective bargaining agreement, is somewhat murky.<\/p>\n
The most important fact is this:\u00a0 GTMF is not a union workplace.\u00a0 No labor union has been certified or recognized as the bargaining representative of the GTMF musicians.\u00a0 There is no collective bargaining agreement.\u00a0 Like most summer festivals (Grant Park, Chautauqua, and Santa Fe Opera being notable exceptions), GTMF is a non-union job, plain and simple.<\/p>\n
Many consequences flow from that.\u00a0 First, any \u201cplayers committee\u201d that may be elected by the GTMF musicians has no actual legal authority.\u00a0 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).\u00a0 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\u2019 employment.\u00a0 At GTMF, in contrast, the committee has only so much authority as GTMF management chooses to afford it.\u00a0 Management can deal with the committee, or not, at its own discretion.<\/p>\n
Second, the employment status of the GTMF musicians is unsettled.\u00a0 Management claims the musicians are independent contractors, and not employees at all.\u00a0 Independent contractors enjoy few of the legal protections available to employees.\u00a0 They are not subject to provisions of the National Labor Relations Act (NLRA) that apply only to employees.\u00a0 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.\u00a0 Indeed, independent contractors cannot be \u201cfired\u201d at all, for they are never \u201cemployed\u201d in the first place.\u00a0 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.\u00a0 Hence GTMF\u2019s assertion that it is entitled to simply disinvite musicians from year to year.<\/p>\n
Fortunately, the National Labor Relations Board (NLRB) has historically taken an expansive view of what it means to be an \u201cemployee\u201d 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\u00a0Senza Sordino<\/em> article<\/a> regarding the most recent, on-point determination of this issue.) \u00a0Such 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.\u00a0 The current board, unsurprisingly, is not friendly to unions or the rights of workers and has already issued rulings<\/a> favoring independent contractor status when the question has arisen.<\/p>\n But if, contrary to GTMF management\u2019s assertions, the GTMF musicians are indeed \u201cemployees\u201d for purposes of the NLRA, then they have significant rights and real legal recourse.\u00a0\u00a0 Under Section 7 of the NLRA, all employees \u2013 in union and non-union workplaces alike \u2013 have the right not only to organize, but \u201cto engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.\u201d\u00a0 Terminating an employee for engaging in Section 7 activity is illegal.\u00a0 The terminated employee can file a charge with the local NLRB office, which will then investigate the claim and, if meritorious, ultimately order reinstatement.<\/p>\n But while Section 7 rights apply and are enforceable even in a non-union workplace, there is no protection like a union contract.\u00a0 Musicians who work under a collective bargaining agreement cannot be fired for vague assertions of \u201ccomportment\u201d or \u201cdisruptive behavior.\u201d\u00a0 They can be disciplined or terminated only for just cause, the burden of proof for which rests squarely with the employer.\u00a0 Players\u2019 committees in union orchestras have real power to affect the working conditions of their colleagues.\u00a0 Management must take the committee seriously and cannot simply get rid of a committee member for raising the concerns of musicians.<\/p>\n So why aren\u2019t more summer festivals like GTMF organized as union workplaces?\u00a0\u00a0 There are many possible reasons.\u00a0 For one, there is often quite a bit of turnover in festival orchestras, making it difficult to even know who to organize.\u00a0 Because these festivals are invitation-only, many musicians also are leery of causing trouble.\u00a0 (Retaliation against employees for engaging in organizing activity is legally prohibited, but who wants to take that chance?)\u00a0 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).\u00a0 And, of course, festival leadership will often resist union organizing efforts tooth and nail.<\/p>\n But it is possible.\u00a0 I recently won union recognition for the musicians of a theater company who faced some of these same challenges \u2013 musicians who worked intermittently, a fair amount of turnover, and an employer who wanted nothing to do with the union.\u00a0 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.\u00a0 The NLRB ordered an election, under a legal formula that determined which of the employees who worked recently were able to vote.\u00a0 The vote, when it took place, wasn\u2019t even close.\u00a0 That\u2019s what happens when musicians are energized and motivated to improve their employment situation.<\/p>\n Hopefully, GTMF will see the error of its ways and reinstate the three musicians it so callously sacked.\u00a0 The outpouring of support for the musicians on social media and favorable press coverage may indeed have an effect \u2013 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.\u00a0 But long term, the best way to gain protections against something like this happening at GTMF or any music festival \u2013 or any orchestral workplace, period \u2013 is to organize for union representation.\u00a0 It is always worth the effort.<\/p>\n KC<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The recent termination of three musicians by the Grand Tetons Music Festival (GTMF) has garnered much attention on social media.\u00a0 The musicians were not let go for any kind of performance reasons; rather, GTMF says it was for \u201ccomportment\u201d and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,11],"tags":[],"class_list":["post-829","post","type-post","status-publish","format-standard","hentry","category-bargaining-notes","category-news"],"yoast_head":"\n