NHMF and the Union

The March 2010 edition of the International Musician, the official publication of the AFM, contained news of the AFM’s most recent success in influencing a recalcitrant employer:

Several managers and directors of New Hampshire Music Festival (NHMF) have left their posts, following overwhelming opposition to their plans to implement a “new artistic model” for the orchestra beginning summer 2010. Musicians opposed the new model because it created an implicit threat to their long-held positions with the orchestra.
Management personnel who have stepped down include Festival Director Henry Fogel, newly appointed Artistic Director Johnny Gandelsman, President David Graham, Vice Chairman Susan Weatherbie, and several other board members. With their departures, it has been determined that NHMF will continue to pursue the traditional orchestral approach that the musicians and community favored and fought for.
NHMF Orchestra Committee member Joseph Higgins of Local 9-535 (Boston, MA) says that the committee is working to establish new terms in the orchestra’s personnel policy, which would make musicians’ jobs with the festival more secure. “When we clarify some of these things, I think that the musicians will be ready to throw their full support behind the festival again and help in whatever way we can,” Higgins adds. “We love this festival and want it to succeed.”

Though not news to readers of this blog, this is obviously good news for the musicians of the Festival. But you could read the article over and over without noticing that, despite its publication in the AFM’s official journal and the mention of Local 9-535, this good news had nothing at all to do with the efforts of the AFM.

The musicians of the NHMF twice tried to organize and hold a certification election. The first time they did so with the AFM’s assistance. Many of the NHMF musicians signed forms authorizing the AFM to represent them for purposes of collectively bargaining with the Festival. When the AFM petitioned for a certification election after the Festival refused to recognize the union voluntarily, however, the Festival’s legal counsel argued to AFM counsel that the NLRB’s own rules do not give the NLRB jurisdiction over the Festival:

Sec. 103.2 Symphony orchestras.—The Board will assert its jurisdiction in any proceeding arising under sections 8, 9, and 10 of the Act involving any symphony orchestra which has a gross annual revenue from all sources (excluding only contributions which are because of limitation by the grantor not available for use for operating expenses) of not less than $1 million.

At that point, the AFM simply gave up the fight – which I find odd, as a very plausible argument could be made (and has subsequently been made by the NHMF musicians without the AFM’s assistance) that the financial reporting by the Festival was deceptive in terms of the “excluding only contributions which because of limitation by the grantor not available for use for operating expenses” language. Clearly the Festival’s gross annual income was well in excess of $1 million; it’s only the way the Festival categorized that income that allowed them to slip through the loophole created by the “excluding only contributions” language.

There’s no way for a layperson to predict how, or when, the NLRB might have ruled on such an argument, had the AFM made it. But, at the end of the day, the AFM chose not to spend the money to have its lawyers (who are the best in the labor law business, at least on the national level) challenge the Festival’s argument and fight to support the musicians’ desire to be represented by the AFM.

Was that a good call by the AFM? If there was no chance of winning with the NLRB, and also no benefit to the musicians for the AFM to make a challenge it would have lost, then it might have been (although those are two very big “if”s). The AFM’s resources are limited, and part of running any union is deciding what battles simply aren’t worth fighting. And there’s never been any public explanation from AFM leadership for their decision.

But, even if it was the right call for the AFM to make, it is unseemly(if not outright deceptive) for the AFM to appear to take credit for a victory by a group of rank-and-file musicians who it chose not to fight to represent when it had the chance.

The role of the Boston local is more ambiguous. After management refused to voluntarily recognize the Union and the AFM chose not to file for a certification election, the Orchestra Committee tried to have a negotiation with management anyway, and asked Robert Couture from the Boston local to help them in their discussions with management. (The NHMF musicians’ version of that process and its result is here.) From all reports, the Boston local was as helpful as it could be in the circumstances. But, not surprisingly, their efforts to achieve a satisfactory outcome with a management that had already proven recalcitrant, in the absence of the power and protections of a Federally protected and binding collective bargaining process, were less than successful:

The agreement reached on August 14th did not represent the ultimate goal of the orchestra but the best efforts of the mediator and the Orchestra Committee. There has been much discussion among orchestra members regarding the agreement. Many of the comments of the orchestra members have been posted in our “Musician Comments” section.??At the time of this writing, the members of the New Hampshire Music Festival Orchestra have voted overwhelmingly in disapproval of Management’s new Personnel Policy.
An anonymous online poll of the musicians was completed at midnight September 29th, 2009.

• 62 out of 69 members voted in the poll.
• 59 voted against the proposed personnel policy.
• 3 voted in favor of the proposed personnel policy.

What happened with the NHMF was a remarkable and inspiring story of rank-and-file activism. It’s too bad that, for whatever reason, they had to do it without much help from the AFM.