Divide and Conquer

Legal Corner

Volume 111, No. 9September, 2011

Harvey Mars, Esq.

Can an employer bypass the AFM and negotiate directly with a local?

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived at (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.

It looks like the National Labor Relations Board has finally woken up from its deep slumber. Over the summer, the board handed a major victory to musicians by affirming an administrative judge’s decision in Musical Arts Association vs. the AFM (356 NLRB No. 166).

That decision held that the Musical Arts Assocation, which is the nonprofit organization that oversees and promotes the Cleveland Symphony, had violated the National Labor Relations Act by refusing to negotiate with the AFM over the terms of the musicians’ recording and Internet rights.

The NLRB determined that MAA had improperly withdrawn recognition from the AFM when it sought to negotiate a separate, weaker deal with AFM Local 4 (Cleveland), with whom it had an individual collective bargaining relationship.

The board held that MAA could not negotiate a separate deal with only Local 4. Its prior negotiating history demonstrated that it had jointly recognized both the AFM and Local 4 as the bargaining representatives for media rights. The MAA had for many years negotiated with the AFM on a multi-employer basis and had signed national recording agreements with the AFM.

However, when the MAA encountered resistance while it was negotiating with the AFM for a successor media agreement, it decided to employ a new tactic. It withdrew from the multi-employer negotiation and made a comprehensive electronic media proposal directly to Local 4 that covered matters contained in both its local agreement as well as the AFM agreements to which it had formerly been a party.

The board ruled that “the history of bargaining, the recognition provisions of the AFM agreements, the industry practice, the AFM’s bylaws, and the language in Local 4’s trade agreement relating to the AFM shows that the MAA has recognized Local 4 and the AFM as joint representatives of employees in the designated bargaining units covered by their agreements.”

Thus, the MAA had violated the NLRA and was ordered to commence good faith negotiation with the AFM over national media rights.

This is an extremely significant decision. Historically, there has always been a division of representation between the locals and the AFM relating to national and local media issues.

If the MAA were permitted to undercut national negotiations by directly negotiating with an AFM local over these issues, this would have severely damaged the AFM’s ability to control the terms of national agreements. Fortunately, the NLRB was not asleep at the wheel on this one.


Further good news from the NRLB is that it has recently proposed some procedures that could make it easier for workers to form a union.

The new guidelines would eliminate some of the loopholes that employers have long used to defeat union organizing campaigns.

(This is especially welcome news since it seems as though the Employee Free Choice Act is a currently dead in the water.)

The proposed rule changes would:

  • Expedite the time frame for union elections
  • Eliminate the need for hearings when issues are raised that only affect 20 percent or less of the proposed unit
  • Allow the union access to the telephone numbers, full first names and e-mail addresses of workers

These rule changes, if adopted, would rectify disparities that have long given employers an advantage in the union election process.

(In fact, if any sovereign country had election procedures like those currently employed by the NLRB for representational elections, there is no doubt that country would be condemned for violating its citizens’ basic human rights.)

Right now, the NLRB is reviewing comments submitted about these new procedures.

For members who want to reference these procedures, they are 29 CFR 101, 102 and 103.

This story originally appeared in the September 2011 issue of Allegro, the magazine of the New York City musicians’ union (AFM Local 802). For reprint requests, send an e-mail to editor Mikael Elsila at