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Legal corner

Volume 120, No. 8September, 2020

Harvey Mars

Even a global pandemic cannot stop musicians from engaging in protected activity. A case in point is the August 15, 2020 leafleting of a performance at Freeman Stage in Selbyville, Delaware by the musicians of the New York City Opera orchestra. What prompted the protest was New York City Opera’s decision to produce a performance billed as Starry Night Classics at that venue without utilizing any of its rostered musicians for the performance. This action was directly contradictory to exclusivity provisions in a Memorandum of Agreement that the New York City Opera had entered into with Local 802 during its last round of collective bargaining. According to the exclusivity clause of that agreement, Basic and Associate orchestra members are required to be employed as the exclusive ensemble for all productions, co-productions, run outs and concerts involving NYCO. Of course, this contractual violation has resulted in a grievance being filed against NYCO. But this circumstance, NYCO’s failure to honor its exclusivity agreement, has occurred on multiple occasions. Several orchestra members had had enough- they decided to travel several hundred miles to the venue to pass out flyers that were formulated in conjunction with the Local 802.

NYCO principal trumpeter Don Batchelder told Local 802, “When members of the NYCO orchestra saw that Michael Capasso, our general director, had booked a so-called New York City Opera performance in Delaware with another orchestra, we decided to act. Two of us drove to the Delaware venue and handed out leaflets, informing audience members that the performance was NOT the City Opera and that the backbone of any opera company is its orchestra and its chorus. Our CBA requires any orchestra for a City Opera performance to be hired from the NYCO Opera roster, so this was a clear violation and part of a distressing pattern by our management. By making the trip, we were able to show that our musicians would have been happy to travel to perform with our opera company, especially during COVID, when so many musicians have lost all our performing work. It was also a great way to demonstrate that Local 802 stands behind our collective bargaining agreement.”
Batchelder is a member of the NYCO orchestra committee, which is chaired by Mark Shuman. Also on the protest trip to Delaware was fellow NYCO committee member Tom Hutchinson, who serves as NYCO’s principal trombonist.

Here is the text of the flyer that musicians passed out: “We applaud every attempt at live performance in this time of COVID- 19, and wish much success to the Mid-Atlantic Symphony, but we must share with you the fact that tonight’s Freeman Stage “Starry Night” opera is NOT actually being performed by the New York City Opera. As every major opera company head will acknowledge, the foundation of every opera company is its orchestra and chorus. The contract between New York City Opera and its musicians REQUIRES that it perform exclusively with members of the New York City Opera Orchestra. Your audience may be hearing singers who have appeared with the New York City Opera, but since the Opera’s orchestra is not involved in this performance, we believe calling this organization the New York City Opera is extremely misleading, deceptive, and untrue. The musicians distributing leaflets at tonight’s performance are members of the New York City Opera Orchestra.”

Informational leafleting is considered protected activity under the National Labor Relations Act and enjoys considerable protection under the First Amendment of the United States Constitution as a form of free speech. So long as the leafleting is peaceful and does not block ingress or egress from a venue it may not be immediately prohibited, even if it occurs on private property. However, if it occurs on private property hand billers must leave when requested or be considered trespassers. Further, there were no specific contractual prohibition on this form of protected activity, so it did not constitute a contractual violation- even assuming that such a clause would be effective.

Here, the NYCO musicians were in fact asked to leave the premises and they did, but not before handing out dozens of leaflets to audience members who had no idea that the NYCO orchestra was not actually performing. While it was short lived demonstration, the message was received loud and clear. Orchestra member Thomas Hutchinson, who was one of the leaflitters noted that a couple who had just arrived at the parking lot for the Freeman stage read the flyer and exclaimed “oh yes, that IS misleading” got back in their car to leave. Pandemic or not, labor activism is still alive and well.