AFM wins in court; won't matter much

The AFM (or at least its lawyers) had a good win in labor law land the other day:

The AFM has won a significant victory affecting orchestra media negotiations. The AFM has consistently taken the position that orchestra managements who are signatory to AFM media agreements (such as the Symphony, Opera or Ballet Audio Visual Agreement, Internet Agreement and Live Recording Agreement) have a duty under Section 8(a)(5) to continue to recognize the AFM (and not the local) as the exclusive bargaining representative for the covered media. Consistent with that position, the Federation filed unfair labor practice charges against Musical Arts Association (MAA) in Cleveland for refusing to negotiate with the AFM over media.

The AFM’s position has now been vindicated in a January 13, 2011 Decision by Administrative Law Judge, (ALJ), Eric M. Fine in the MAA case. Judge Fine found that “the history of bargaining, the recognition provisions in the AFM’s 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 . . . [t]he parties to these agreements, including the MAA, Local 4 and the AFM were keenly aware that there had been a division of representation between the AFM and Local 4 relating to national and local media issues. Thus I find that the MAA violated Section 8(a)(1) and (5) of the Act, by its September 9, 2009, refusal to negotiate with the AFM pertaining to media issues for which it had theretofore bargained with that union.” (Decision, page 23)

Judge Fine’s Conclusions of Law further confirm the AFM’s position as to the precise division of jurisdiction between the AFM and its locals. He concluded that “Local 4 is responsible for bargaining with the MAA regarding terms and conditions of unit employees relating to live performances, rehearsals for live performances and local television and radio broadcasts,” while “the AFM is responsible for bargaining with the MAA regarding terms and conditions of unit employees pertaining to matters covered by the AV, Internet, and Live Recording agreements such as the production and use or development of electronic media including CD’s, DVD’s, digital recording and the Internet.” (Conclusions of Law 6 & 7)

Judge Fine made clear that he knew exactly what MAA was doing. He wrote that having long recognized the AFM as the representative of its musicians for media covered by the AFM media agreements, it was not free to try “to get a better deal than it thought it could get from the AFM by shifting those negotiations to a local basis with Local 4.”

Over twenty orchestras are now signatories to the AFM’s Integrated Media Agreement, and that number continues to grow as most orchestras faced with media opportunities conclude that the IMA is a good contract for them and for the field. However, some orchestra managements have been awaiting the outcome of the MAA case before committing to the IMA or negotiations with the AFM on media. Of course, MAA may file exceptions, but Judge Fine’s decision should be extremely helpful in aiding the current momentum in favor of continuing the AFM’s historic authority over orchestra media.

So why won’t it matter much?

It’s a long story. Some of the background can be found in the lead article in this issue of Senza Sordino from the summer of 2009. To make a long story short, the AFM’s effort to reach a comprehensive agreement with orchestra managements regarding electronic media work hit a snag when the managers, led by Cleveland CEO Gary Hanson, terminated the negotiations at a point when the AFM believed the parties were very close to agreement. Cleveland management then tried to negotiate into their local agreement terms and conditions covering media work. The AFM filed an Unfair Labor Practice Charge with the NLRB, and has now apparently won.

I don’t know if the result will matter to Cleveland. I’m inclined to suspect not, if only because orchestra musician consent is required (functionally if not formally) under the terms of recent AFM media agreements anyway. It appears that Cleveland management thought they might more easily get that consent during local collective bargaining. But evidently it wasn’t that easy, as it would have been hard for the AFM to even bring this case if the musicians had agreed to negotiate the terms locally with management.

But it certainly won’t matter much to anyone else. Some orchestras have a formal requirement in their CBA to abide by terms of national media agreements, whether or not the orchestra is signatory to those agreements. As for the rest, it remains a fact that EMGs can be used to locally negotiate adjustments to the nominal national media rates, while existing radio agreements in local CBAs are grandfathered into the AFM’s new promulgated Integrated Media Agreement. (I should point out that the AFM would disagree about the IMA being “promulgated,” but it does meet the definition.)

And, given that the biggest issue in negotiating media work is the pay, that means in practice that pay for most symphonic media work will continue to be negotiated locally. There may be a day when orchestra musicians want to change that, but it’s not going to come soon, if at all. And, until it does, the fact that the AFM can continue to negotiate national agreements won’t have much practical impact.