Negotiating compensation for release of operatic material in the old technology media of radio and television gives a new meaning to the word “collective” in the phrase “collective bargaining.”
Performing artists live to perform and opera companies struggle to secure the funds necessary to present those performances. But singers’ talents and the beauty they create doesn’t necessarily pay their rent, put food on the table, or guarantee the necessities of life, nor does it assure the economic stability of the companies that employ them. In a political climate hostile to the arts, with the possibility that an economic downturn or tax legislation will limit charitable deductions, those of us who represent and employ performers know that the best way to protect opera’s future is to expand its audience.
Across the bargaining table, company executives, union representatives, and artists’ agents may meet as adversaries, but recently they joined together to advance a fundamental mutual belief: that only those with a real stake in the presentation of exceptional operatic performances should participate in determining the ways in which these performances will be made available to the world.
Ongoing negotiations between the Employers Media Forum of Opera America (representing the Houston Grand Opera, the Washington Opera, the Pittsburgh Opera and others) and the American Guild of Musical Artists indicate that they are on the threshold of reaching a breakthrough Internet Release Agreement, providing guidelines and conditions for the release of operatic material over the Internet and the compensation artists will receive from that release. That agreement, coupled with a similar pact reached earlier with the American Feder-ation of Musicians, will ex-ponentially expand the audience for operatic material through the new technology media. The agreement is a win-win deal for opera, one that allows for widespread up-front distribution of product with adequate back-end protection of performing artists’ economic interests. It was possible to accomplish only because the participants in the negotiations shared a unity of purpose: the love of opera and a desire to preserve its viability for future audiences.
With regard to the old technology media of television, radio, DVD, and videocassettes, however, impediments to audience expansion continue to exist. Part of the AGMA Employers Media Forum negotiations have been directed to eliminating those impediments and assuring that the future of opera is determined by those with a real investment in that future.
In America, singers and dancers who perform in opera houses are represented collectively by the American Guild of Musical Artists and individually by their talent agents. Because the employers, the union, and the agents are, ultimately, partners in a common enterprise, the collective bargaining agreements they negotiate protect the artists’ rights within a framework of exceptional production values and economic reality. Gone are the days when labor and management worked best as adversaries. For collective bargaining to work within the reality of today’s socioeconomic climate, employers and representatives of their employees need to strive jointly toward a common good. Nowhere is that fact more apparent than in those situations where old-line union issues need to be readdressed to accommodate today’s technological opportunities.
Although many of its “star” performers have been blessed with the comfortable incomes that derive from generous appreciation by opera aficionados, AGMA recognizes that most of its working members earn annual incomes of only $30,000 to $50,000. It is, consequently, the least expensive of all theatrical unions. For basic dues of only $78 per year, AGMA aggressively represents performing artists throughout the United States, negotiating agreements that cover their wages, hours, and terms and conditions of employment. Unfortunately, in the past, another union, the American Federation of Television and Radio Artists, had claimed that its traditional jurisdiction over actors employed to portray roles on television somehow entitled it to also negotiate compensation due to AGMA members when the companies for which they worked allowed their performances to be broadcast live on television and radio. As a consequence of this decades-old, old technology system, enforced by AFL-CIO mandate, opera companies are saddled with agreements that don’t accommodate the need to expand audiences. AGMA performers are also required to pay annual dues—hundreds of dollars of dues—to AFTRA, when their employers want to reach new radio and television audiences. Because of this, AGMA and its signatory employers find it difficult to expand the audience base in the old technology media. For most performers, payment of double dues is an unfair and onerous requirement, one that depletes their already limited incomes. Beyond that, both performers and their employers object to AFTRA’s involvement in an area in which it has neither an investment, an interest, nor a real stake. Ultimately, only those with an interest in opera can protect it.
Negotiating with employers about the compensation payable to their AGMA-represented employees is, consequently and appropriately, within the scope of AGMA’s exclusive jurisdiction, not something that can any longer be shared with AFTRA.
Upon becoming AGMA’s Executive Director last year, Alan Gordon was continuously besieged by members complaining about this situation. They object to the fact that the right to negotiate this component of their compensation had been claimed by AFTRA and that they were compelled to join AFTRA to keep their regular jobs, jobs over which AFTRA has no jurisdiction.
Reviewing the historical anomalies that led AGMA to remain silent in the face of AFTRA’s assertion of jurisdiction, it was immediately clear to AGMA that this situation seriously disadvantaged its members and needed to be corrected.
The issue of which union best represents AGMA’s members, and which union should negotiate the compensation they will receive when their employers permit their work product to be seen by additional audiences, is of paramount concern to AGMA both as an institution, and on behalf of the employees it represents at opera companies across the United States. Central to that concern is AGMA’s belief that employees are entitled to be represented by the union of their choice, chosen because it is the union that can most effectively represent them and reach mutually beneficial agreements with their employees. AGMA members say that they want to be represented by AGMA and believe that AGMA is the union best able to represent them and to negotiate arrangements that reward them for their work while expanding the audience for that work. The issues at stake go far beyond mere jurisdictional concerns.
There are two factually distinct situations in which this issue presents itself. In both situations, signatory employers have entered into collective bargaining agreements with AGMA covering wages, hours, terms, and conditions of employment. In turn, those employers sell their performance work product to paying audiences in their respective opera houses. Some of those employers also, simultaneously or subsequently, permit the use of that performance work product on radio and/or television. Negotiating compensation for the release of our members’ work product on radio and television, however, is AGMA’s concern and AGMA’s jurisdiction.
In one type of situation, with regard to programs like Live From Lincoln Center, AGMA has collective bargaining agreements with the actual employers that employ members in the production of operatic or ballet performance material. Those agreements provide for members’ compensation from such employment. AFTRA has contracts, however, only with distribution entities like Live From Lincoln Center, entities which are not employers but which, rather, are allowed to use their performance work product. The same factual situation exists at the New York City Ballet, the Washington Opera and the Los Angeles Opera. In the second type of situation (as, for example, at companies like the San Francisco Opera and the Lyric Opera of Chicago, among others), AGMA has collective bargaining agreements directly with the employers, agreements that cover the wages, hours, terms, and conditions of employment of the employees who create its operatic performance material. AFTRA, historically, has also demanded contracts with those companies, contracts that cover only one specific aspect of that compensation for audio/video release but which, in reality, limit the expansion of the audience base in those media. Each situation presents separate legal and/or jurisdictional issues.
It is, of course, undisputed that (in either instance), AGMA members are doing nothing more than performing their regular, customary jobs for their employer, jobs which fall appropriately within AGMA’s jurisdiction.
In situations like Live From Lincoln Center, AFTRA has no privity of contract with the actual employer and it does not represent employees. Rather, its contracts have been only with the secondary user. This is not a jurisdictional dispute at all but, rather, much more analogous to legally prohibited “secondary” activity. AFTRA’s insistence that AGMA members must also join AFTRA is little more than an attempt to enforce what amounts essentially to a hot cargo agreement, per se illegal without regard to any jurisdictional interests. AFTRA seeks, through demands made upon distributors of product, to secure representational jurisdiction over the employees of another company, one with which it has no primary relationship whatsoever. AGMA argues that, to compel AFTRA membership involuntarily upon employees that AGMA has always represented, as a condition of their continued employment with their actual employer, violates the law. Worse, AFTRA’s position interferes with AGMA’s ability to join collectively with the employers in fashioning new-era systems of media release.
Beyond the legal issues arising out of the factual differences in these two situations, basic questions of trade unionism exist. AFTRA’s position has deprived AGMA members of their fundamental right to be represented by the union of their choice. Additionally, they have suffered economically by AFTRA’s inability to negotiate effectively or meaningfully on their behalf. Pursuant to the various agreements that AFTRA has negotiated, AGMA members have been required to join AFTRA and pay initiation fees and dues to AFTRA, yet they do nothing more than their regular, customary jobs. Although they do receive some relatively minor compensation pursuant to the AFTRA agreements, they are required to pay AFTRA dues in amounts equal to a significant portion of that compensation. AGMA could negotiate better and more meaningful compensation for them, because AGMA and their employers share the common interest of being sure that whatever they do advances, rather than impedes, expanding the audience for their work.
In addition, at most employers with which AFTRA has negotiated contracts, those contracts do not provide for compensation sufficient to allow AGMA members to ever earn enough to qualify for coverage under AFTRA’s health or pension plans. Thus, the contribution income AGMA members generate to those plans is completely lost to them and the benefits that are generated by their work inure to other members of AFTRA who are, thus, unjustly enriched by the work of AGMA’s members. In turn, the industry-wide AGMA health and retirement plans are deprived of the funds necessary to improve benefits across the board.
Likewise, in the San Francisco and Chicago situations, the compensation payable to AGMA-represented members for any and all uses of their services and their work product is a mandatory subject of bargaining between those companies and AGMA. AGMA members are not taking jobs that would or could be filled by AFTRA members, they are not replacing AFTRA members, nor are they being hired to directly perform roles in live television or radio within the traditional scope of AFTRA’s jurisdiction, yet they have been compelled to pay AFTRA to negotiate for them.
This entire situation is, in AGMA’s opinion, intolerable. It interferes with AGMA’s ability to represent its own members with regard to mandatory subjects of bargaining, inappropriately interferes with the sale of their performance work product in interstate commerce, and seriously disadvantages the future of opera.
Because situations like Live From Lincoln Center are not true jurisdictional disputes, AGMA believes that sufficient remedies exist pursuant to the National Labor Relations Act, should AFTRA continue to enter into agreements that seek to impose compulsory AFTRA membership upon AGMA members, or should AFTRA in any other manner interfere with our negotiations with these employers.
With regard to the San Francisco Opera and similar situations, AGMA continues to negotiate with the Employers Media Forum towards an industry-wide Audio/Video Agreement that would provide, among other types of compensation, compensation for the use of members’ performance work product when it is sold or released for use on radio or television. Those negotiations should resolve this issue conclusively.
AGMA has expressed the hope that AFTRA voluntarily recognize that this is an area in which AGMA is the appropriate representative of its own members, that AGMA can do the better job of representing its own members and negotiating their compensation, that AGMA members neither want nor need assistance from AFTRA but, rather, have chosen AGMA to represent them. Since this issue involves AGMA’s core function as a labor union, and that it is a situation in which AGMA has no option but to argue its position in every legal forum available for that purpose, AFTRA should step aside.
AGMA, along with opera managements and individual artists’ agents, believes that the present state of affairs is unfair to performers, who are doing nothing more than their own jobs, yet who have been required (to continue to do those jobs) to also pay dues to a secondary union from which they need nothing and from which they never receive the full benefit and value of their labor. AGMA and the various opera companies share the notion that opera is, collectively, “their” business and that they, not disinterested unions representing television or movie actors, should determine when, how, and for how much opera material should be released on radio and television.
Sharing a common interest in expanding the audience for the production and presentation of exceptional operatic performances, both opera companies and singers will defy the stereotyped cliché of the performing artist and the not-for-profit employer: They will fight together for what they believe to be fair and just. Performing artists and the companies for which they perform believe that working together to share the beauty they create, with the viewers who appreciate that beauty, is the only sort of “collective” bargaining that can lead to a mutually beneficial future in today’s world.
