Last month, I reported that there has been a resurgence of labor organizing in the United States. Many of these campaigns have been successful, and there have been major victories for organized labor. Amazon, Apple and Starbucks employees are setting new trends for union organization; these are trends that musicians should take advantage of.
Nonetheless, organizing still remains an arduous, time-consuming and complex process in this country. This is partially due to an arcane legal framework that can often be manipulated by employers to inhibit and even eliminate organizing activity. There have been efforts to rehabilitate federal labor law through legislation such as the PRO Act, but these attempts have not gained sufficient traction. For the most part, union members have a limited ability to influence legislative change, and the political process in this country has not responded quickly to catapult workers’ rights to where they ought to be.
However, there is another equally important component to organizing that union members do have the immediate ability to effectuate change. That component requires members and organizers to recognize how the organizing process actually works and then utilize that process when and where it has the greatest possibility of success. Otherwise, organizing becomes a reactive game of Whack-a-Mole where limited resources are invested without any assessment of the probability that a successful organizing campaign can be mounted.
I have identified six distinct phases of labor organizing that should be understood (see chart at bottom of page). If one campaign has less of a chance of moving into a subsequent phase than another, more effort and resources should be invested in the campaign that can achieve a higher phase. Whether an organizing drive can advance is largely dependent upon the motivation and involvement of the musicians who perform for the targeted employer. These musicians should be educated to understand the benefits of union representation and achieving a union agreement.
Even in the best of circumstances, many musicians believe that it is not always possible to play union gigs. During a professional musician’s career, the chances are that they will have performed some nonunion work. While the union does not exist to prevent musicians from working, it does exist, among other things, to create a standard of employment that all professional musicians deserve. After years and years of conservatory training and practice, professional musicians should receive health and pension benefits and a living wage. This point is not debatable. Nonunion employment makes it much more difficult to establish acceptable employment standards. Without a union agreement, job security does not exist, and musicians can be ousted from employment with little or no recourse. Thus, understanding the elements of organizing should be as essential for a musician as is understanding the circle of fifths (or fourths!).
The first phase of organizing is the information gathering phase. A target employer is identified by either union organizers or musicians. Once a target is identified, the organizing department needs to understand the nature of the performance, who the employer and its principals actually are, where the performance venue is, how many Local 802 musicians are going to be hired, who those musicians are, and whether the union has ever entered into a contract with the target employer at the venue. The answers to those questions are essential for the union to understand before it can proceed to phase two.
Phase two involves outreach to musicians performing for the target employer. Identification of musicians who perform for the employer is critical to any organizing campaign. Without having contact information for the musicians, there is little chance that the organizing campaign can proceed past phase one.
Sometimes musicians contact Local 802 and request union involvement. When that occurs, there is the greatest chance an organizing campaign will be successful. That is the situation that occurred with DCINY, where Local 802 successfully helped musicians organize their union and are now helping in collective bargaining negotiation (Phase five). Unless a pre-existing or personal relationship exists with an employer, active musician involvement in an organizing campaign is critical to its success. Musician involvement and commitment to an organizing campaign are essential to its ability to move into a higher phase. Unfortunately, many targeted employers or performances cannot advance to phase two or three because a sufficient number of musicians cannot either be identified or have expressed an interest in bargaining a union agreement.
Phase three is the active organizing phase, where union authorization cards are obtained from musicians seeking to organize. These cards are essential since they are used to demonstrate to the employer and National Labor Relations Board that there is enough of an interest in union representation by employees that the union will be permitted to seek a representational election. A successful representational election is a legal necessity for employees to receive a NLRB order requiring their employer to engage in collective bargaining with them. This is perhaps the most critical phase of any organizing campaign. It is here that an employer is most likely to engage in tactics to defeat the campaign. These tactics include requiring captive audience meetings, offering employees benefits or engaging in punitive or retributive actions against union sympathizers and proponents and hiring professional “labor consultants” to defeat the campaign. Employees and union organizers must anticipate these actions and inoculate against them, so that there is enough of a showing of interest so that union organizers can proceed to the next phase. Often phase two and three occur simultaneously.
Phase four occurs if there is a sufficient showing of interest for the union to either demand recognition from a target employer or compel an election before the National Labor Relations Board. A recognition demand involves the union contacting the employer and advising that a majority of its employees desire union representation and requesting bargaining. Employers have three possible responses to a demand for recognition. They could reject it and require a formal representation election; they could agree to recognition without questioning whether the union has a majority, or they could request proof that the union possesses a majority by checking the cards that the union possesses.
The card check process is less formal than a NLRB formal election. A card check requires a neutral party, such as a labor arbitrator or judge, to compare the union authorization cards the union has acquired to demonstrate majority support with a list of employee names and signature samples. If the neutral party ascertains that the union has a majority of employees expressing interest, she or he will issue a bargaining order or award, and the employer will be required to commence bargaining with the employer. If an employer insists on a NLRB election, the process becomes more complicated. The union will have to make an initial showing of 30 percent employee interest before the NLRB will process a representation election petition. Once the petition is processed, the parties to the election must agree on a proper group of employees that should be permitted to bargain. Many issues can arise requiring litigation, such as whether the musicians are independent contractors who are not legally permitted to bargain. The administrative process before the NLRB is time consuming and costly. The delay it causes is often used by employers to erode employee unity and interest in bargaining. Of the three options available, unfortunately this is the one that most employers choose. If a card check or election is lost, another representation proceeding cannot occur for a year.
Phase five occurs when a card check, or union election has been successful, and a representation certification has been achieved by the union and employees. However, this consequence simply means that an employer is now compelled to collectively bargain with its employees over the terms and conditions of their employment. While good faith bargaining is required, there is no legal requirement that the parties achieve an agreement. Furthermore, if no agreement is achieved within a year of the certification, the union’s majority status can be challenged. Statistics show that very few first time contracts are negotiated within the certification year. As a result, many first time contracts are not achieved at all. To achieve the greatest likelihood of a first time agreement, it is essential that internal organizing continues throughout the negotiation process.
Phase six occurs when a collective bargaining agreement has been achieved. While the primary organizing objectives have been achieved, organizing is still an integral component of this phase. Contract enforcement and contract negotiation all contain components of the primary organizing campaign. This is an important fact that organizers and labor professionals must be aware of. In essence, the organizing phases are cyclical and never stop being relevant during the course of the employee management relationship.
As I noted previously, there are circumstances when we are able to move from phase one directly to phase six. This happens when the union has developed a relationship with a particular employer, performing artist or venue. Some employers will agree to enter into union contracts because they wish to create or maintain a good relationship with the union and union musicians. This has recently occurred with Ron Carter and Jon Batiste, who both voluntarily agreed to sign union contracts covering their performances at Carnegie Hall. Local 802 applauds these artists for committing to perform under union agreements.
Finally, we need to consider which organizing targets have the greatest chance of success. This can vary depending upon the circumstances, but as a general rule employers should be considered organizing targets who fulfill one or more of these criteria: perform in major venues, have a defined or regular group of musicians performing, are a widely recognized artist, have seasonal or periodic performances or are engaged in recording. (This list is by no means not exhaustive.)
As you can see, labor organizing is no simple task. Fortitude and persistence are essential elements. But success is achievable.
Now let’s put it in practical and personal terms: if you’re not being paid the wages and benefits you deserve as musician — and you feel that your bandleader or employer can be successfully unionized — please reach out to the Local 802 organizing department at www.local802afm.org/organize-now.
THE PHASES OF ORGANIZING
Phase 1: Gather information on an identified target
Phase 2: Contact musicians or be contacted by musicians regarding an identified target
Phase 3: Active organizing and card acquisition after sufficient showing of support
Phase 4: Demand recognition and file representation petition after 80 percent showing of interest
Phase 5: Contract negotiation
Phase 6: Contract enforcement
General parameters of target identification:
- Major venue
- Major artist
- Defined bargaining unit
- Seasonal or repeat performances