Which side are you on?

Musicians were caught in a non-union squeeze between two employers, each of whom refused to talk with Local 802

Volume 112, No. 12December, 2012

John O'Connor
BAM - The rat strikes back

THE RAT STRIKES BACK: Letting the public know that musicians weren’t being treated right at BAM. Photo: Shane Gasteyer

NOTE: Numinous Music is on our Unfair List. For details, click HERE.

A funny thing happened on the way to the Local 802 Club Room a few
weeks ago. While investigating a complaint by a member regarding a non-union
orchestra booked to do a three-day engagement at the Brooklyn Academy of Music,
a Local 802 union rep heard what sounded to him like film score music wafting
from the Club Room. When he went to investigate, lo and behold, there was the
non-union band preparing for the non-union engagement. This incident set in
motion a series of events that led to the union picketing the event at BAM with
the help of a 12-foot rat.

A company called Numinous Music engaged 18 musicians, many of them
Local 802 members, for a BAM event in which the musicians accompanied a restored
silent film named “The Loves of Pharaoh.” Members who had been asked
to do the engagement rightly called the union to make sure the engagement was
under a union contract so that the musicians would be paid fairly and receive
health and pension benefits.

Union representatives, having discovered the orchestra rehearsing
in its own house, engaged in discussions with Numinous Music’s owner, Joseph
Phillips, in an attempt to bring the engagement under contract. When Mr.
Phillips was told how much lower than union scale the engagement was paying, he
cut off communication with the union but not before telling union
representatives that BAM had told Mr. Phillips not to speak with the union and
that BAM would be taking care of union contractual obligations.

Calls to BAM went unanswered for several days until the day before
the first night of the engagement, when I received an email from BAM telling me
the musicians were Mr. Phillips’ employees, not BAM’s. This is what is known
as the runaround.

Three hours before the engagement was to begin, Mr. Phillips called
me but refused to make any agreement that he would have to sign, no matter what
kind of compromises the union was willing to make.

Most of the musicians who were members of Local 802 honored the
picket line. But two members took the job and are liable to be charged for
violating the Local 802 bylaws.

Picketers in front of BAM were met with the overwhelming majority
of ticket-holders sympathetic toward the union and outraged that they had bought
tickets to an event that was non-union. Some refused to attend, in spite of
being out the cost of a ticket.

Musicians – both union and non-union – have asked why the union
has come down on this particular gig when there are so many engagements that go
on in this city without complaint from the union.

The question warrants examination, because it brings up the very
issue of what makes a union a union and where the union needs to apply its
leverage in order to protect a musician’s ability to make a living in New York

We all know that union members do non-union work all the time. It
has been many a decade since Local 802 has had the density of membership to
uphold scales in nightclubs and other freelance venues around the city.

But the fact remains that “union scale” is still widely
used as a reference point when wages are paid to musicians (“this gig pays
scale” or “this gig pays above scale”).

What is vital to consider is that because of the union, the
standards for certain engagements where Local 802 musicians are employed can be
upheld because the union still has clout where its members are employed.

But the maintenance of these standards is dependent on the
willingness of union members to help hold the line.

When we are informed of a dark date at a major venue involving our
members, union leadership will draw the line and do what we can to make sure the
date is covered by a contract. If it is not, the union will take action. If the
union doesn’t act in this fashion, we may as well kiss the idea of union scale

Had Numinous Music been doing a concert in a place that was not a
major venue, there would have been no confrontation. Numinous’ excuse that it
was caught in the middle is a copout, because the union was willing to
compromise. Numinous said it would not accept any deal whatsoever. Numinous,
perhaps being manipulated by BAM, stepped into territory where the union must
act. If it doesn’t, the union risks its effectiveness. If the union is not
effective, both union members and non-union members will suffer. In a world
where there are far more musicians than there is work, without the union it will
take very little time for the race to the bottom to reach the bottom.

Our commitment to our members is to hold the line the best we can
in an increasingly difficult industry. We have asked members to call us when
they hear of engagements going down in major venues. In return we ask our
members to practice some internal discipline and abide by actions called by the
union leadership.

In almost every case where the union steps in, we are able to bring
the engagement under contract and achieve fair wages and benefits for our
members. The Numinous Music engagement was unusual because the employer refused
on principle to sign anything with the union, earning it the distinction of
being the first employer in more than a decade to be put on the union’ unfair
list. The union had little choice but to picket the engagement.

On the bright side we learned that BAM audiences are overwhelmingly
union supportive and understand why anti-union employers like Numinous Music
must not be allowed to undercut fairness. “The Loves of Pharaoh”
proceeded as scheduled, but it is unlikely BAM is going to want to risk having a
12- foot rat as a regular visitor.

BAM cannot be let off the hook simply by informing Local 802 that
this is not their problem. It’s not as if BAM is just renting out space to
musical acts who want to perform. Numinous was contracted by BAM as part of a
BAM production. BAM should have required Numinous to make the engagement a union
engagement and made sure it paid Numinous enough to make that happen.

In fact, Local 802 is in possession of an e-mail Numinous sent to
musicians who were interested in doing the gig, saying that the job would pay
“union rates.” But Numinous paid about one-third less than union rates
and did not pay benefits.

We cannot verify the claim that BAM told Mr. Phillips not to talk
to us because he was assured by BAM that everything was O.K. with the union. But
BAM must begin to respect union rates and standards if it is going to avoid
trouble in the future.

If the Brooklyn Academy of Music wants to be an upstanding, respected
institution in New York City, it needs to respect professional musicians and
cease union avoidance.