Follow the Money

Recording Vice President's Report

Volume 113, No. 6June, 2013

John O'Connor

A nightclub tells us that it’s not the employer at the same time that it’s holding the purse strings. What did the union do? We organized – and won!

The nightclub “54 Below” had been open for several months when Local 802 decided it was past time that the club negotiate an agreement with the union to cover the musicians who work there. After all, most of the musicians who work at 54 Below are Local 802 members (by and large employed under the Broadway agreement) and it is in the interest of the union and the musicians to make sure the musical work is covered at the club. It seemed a no-brainer.

But when one of Local 802’s business reps called to arrange a meeting, the club owner who spoke to the business rep (there is more than one owner of this establishment) told him there was nothing to talk about. According to the owner, 54 Below did not now, nor did it plan to, employ musicians. Subsequently, two officers of the union called the same owner and got the same answer: 54 Below will not negotiate with the union because 54 Below does not employ musicians, in spite of the fact that more than 2,000 musicians have worked at the club since it opened. George Orwell would stand up and take notice.

This isn’t the first time we’ve heard this line of thinking from a venue that employs musicians. There is a logic out there that says when a contractor or an artist puts together a band, then the venue (or the club, or the concert series, or the festival) is not the employer of musicians and will not be responsible for making sure musicians are paid as employees according to the law, let alone pay union benefits under a collective bargaining agreement.

But that logic doesn’t make sense. A nightclub runs its business based on the musical entertainment it offers the public and that is why customers show up and lay down their money at the door. They don’t put their money in the hands of a bandleader. The bandleader is paid an agreed-upon fee from the club, with the expectation that musicians will be paid from those funds. It’s the club that profits from the admissions that are collected at the door. It only makes sense that the club, as the consistent entity from night to night and week to week, is indeed the employer of musicians, whether or not the club pays musicians directly or through the hands of the artist or the contractor.

Still, the nightclub will argue that it is not the employer; the artist is. Under New York law, musicians are specifically defined as employees. The law does not specifically say who the employer is in any given situation but neither does the law say that the nightclub is not the employer. Wherever musicians work, the law implies, there is an employer who is responsible legally for making sure the musicians are treated as employees. It can either be the bandleader/artist or it can be the venue that builds its reputation as a place where musical entertainment is heard. For Local 802 it is becoming clearer and clearer that the venue should act as the employer.

In the case of 54 Below, Local 802 has said that the passing of the buck from the nightclub to the artist has got to stop. It is not practical for the union to treat each act that comes into 54 Below as an employer and chase down the responsible party – be it the artist or the contractor – to make sure the musicians are being treated fairly. The responsible party is the nightclub. Whether the nightclub accepts that responsibility is a matter of whether the union demands that the nightclub do so. And the demand is more likely to be met where the union has power to make it so. Seeing as 54 Below’s musicians are more than 90 percent union members, it’s easy to see that if 54 Below, or a venue like it, wants to hire musicians it is going to have to deal with the union.

For as long as capitalism has existed, employers have tried to hide behind the law to avoid their responsibility to treat employees fairly. The history of the labor movement has been the struggle to gain rights for workers in spite of laws that make it difficult to do so. Unions have been most successful when they have used their power strategically to win their demands, regardless of what the law may or may not say. Employment law, which is meant to protect workers, will often be used by employers to do just the opposite. That is exactly what you see in many of the musical establishments in New York. You see it with the jazz clubs that Local 802 has been trying to organize for the past several years and you see it with clubs like 54 Below, which want to make money from musical entertainment at the expense of those talented individuals who supply the music.

And let’s not fool ourselves about the importance of covering musicians in as many establishments as we can. The music industry has not been kind to musicians over the past 20 to 30 years. There are fewer and fewer places where a musician can make a living and receive vital benefits and protection. It is ever more important for Local 802 to make gains in the nightclub scene in order to fight the continued erosion of decently paid music jobs in New York. The only way for this to happen is for the union to see the nightclub as the employer with whom the union will bargain.

As we go to press, 54 Below has agreed to negotiate with the union. But it didn’t come without threat of pulling all of 802’s members from the club. The employer only dealt with the union when that possibility loomed on the horizon. The union is likely to find it necessary to use its collective power to cover musicians in similar establishments throughout New York. If we thought we lived in a time when it is automatically assumed that the employer in the nightclub scene in New York is the artist or bandleader, those days are about to end. Local 802 must use its collective power to bargain fairness for musicians in the most sensible way it sees fit. In most cases, that means dealing with the club owner as employer, despite the club owner’s Orwellian statements to the contrary.