After years of asking to include the music librarians of the Washington National Opera and the Kennedy Center Opera House Orchestra in the musicians’ bargaining units, the D.C. Federation of Musicians, Local 161-710, and the Orchestra Committee have succeeded: in December the librarians voted in self-determination elections to join the orchestra bargaining units and are now represented by the Local. (The decisions and direction of elections can be found on the National Labor Relations Board (NLRB) website, www.nlrb.gov, using the following citations: Washington National Opera, Case 05-RC-162892 and Kennedy Center for the Performing Arts, Case 05-RC-162889.)
Self-determination elections—also known as Armour-Globe elections—are a tool for organizing that has been used relatively infrequently in the symphony world. Representation elections are typically held after a union organizing effort among unrepresented employees. Self-determination elections are also representation elections, but they are meant to determine if an unrepresented employee or group of employees wishes to be represented by a union in an existing bargaining unit. Self-determination elections can be used in situations where the unit has existed for so long that the NLRB will not consider an accretion to an already existing bargaining unit.
The questions considered by the NLRB when it is asked to order a self-determination election are: whether the employees at issue share a community of interest with the employees in the already recognized unit; whether they constitute an identifiable distinct segment to be an appropriate voting group; and if they vote to join the unit, whether the resulting unit will be an appropriate one.
In 2012, in probably the first case involving music librarians and self-determination elections, Musicians Union Local 6, advised by former ICSOM Counsel Susan Martin, used a self-determination election to include two assistant librarians in the San Francisco Symphony musicians’ bargaining unit (San Francisco Symphony, Case No. 20-RC-077284). Although the San Francisco Symphony bargaining unit had included the orchestra’s Principal librarian prior to the Armour-Globe election, the Employer opposed the petition that sought to accrete the two assistant librarians to the bargaining unit, claiming that they did not share a community of interest with the musicians and the Principal librarian in the already recognized unit. The Employer claimed instead that the assistant librarians had an overwhelming community of interest with other unrepresented employees. Not surprisingly, the NLRB rejected those claims and found that the assistant librarians had a community of interest with the Principal librarian and the other musicians, and ordered an election.
The structural situation at the Kennedy Center is a little more complicated than at the San Francisco Symphony. The Kennedy Center Opera House Orchestra is also the Washington National Opera Orchestra—although they are treated as two distinct units, negotiations are conducted separately, and there are two collective bargaining agreements. This structure meant that Local 161-710 had to find a way to get the NLRB to accept jurisdiction over a dispute that involved one person in each unit, or else have the Kennedy Center and the Washington National Opera treated as joint employers so that a separate two-person unit of librarians could be sought. Had the joint employer theory succeeded, the entire employment relationship might have been turned upside down creating many new issues—and a paradigm shift in the parties’ labor relations.
Ultimately the Armour-Globe self-determination elections turned out to be the most effective mechanism, even though the “elections” each involved one person. Typically, the NLRB will not take jurisdiction over bargaining units or representation disputes involving individuals. However, the issue of the NLRB’s jurisdiction over a one-person self-determination election was dealt with in 2009 in Unisys Corporation (NLRB Case 7-RC-23167). In that case a two-member Board permitted a self-determination election for a lone production assistant to vote on inclusion with a represented group of general production employees; the Board found that a voting group limited to the lone employee was appropriate. That precedent was applicable to the librarians at the Kennedy Center and the WNO.
The employers’ stubborn resistance to including the librarians in the bargaining units was somewhat puzzling. The employers’ objections—that the music librarians lacked a community of interest with the musicians—were multifaceted. They claimed that: there was no interchange or functional integration between the musicians and the music librarians; musicians and music librarians have different terms and conditions of employment, no common supervision or work location, different job classifications, duties, skills and job functions; and they have long excluded the music librarians from the bargaining unit. The employers’ position in this case flies in the face of the facts. It is also inconsistent with other relationships at the Kennedy Center: specifically, after a long legal fight, in the last round of bargaining between the Kennedy Center and the National Symphony Orchestra (NSO), the parties agreed to include the terms and conditions of the librarians in the most recent NSO collective bargaining agreement. Those actions are hardly consistent with the position they took here.
A little history regarding the librarians and the orchestra is warranted (as are thanks to my sources, KCOHO musicians Francis Carnovale and Meg Thomas). The orchestra started on a freelance basis in the 1960s and was formally founded as the Kennedy Center Opera House Orchestra in 1978. From the beginning of the orchestra until 1993, the music librarian function was limited—the music was gathered and distributed by a musician appointed by the contractor, and the musicians themselves put in markings and bowings on the fly at rehearsals. After Heinz Fricke was hired as Music Director in 1993, he insisted that a professional librarian be hired to properly prepare the music scores. The musicians who have been players for many years have seen the improvements and have a unique appreciation for the work of the librarians.
Orchestra musicians and orchestra librarians understand how integral and essential the librarians’ work is to the functioning of the orchestra. Their skills and qualifications are similar, the librarians’ work—like the musicians’—is generally supervised by the music director, and they work closely with musicians. The NLRB’s decisions in these cases acknowledge that the librarians and orchestra musicians in fact share a community of interest in spite of some differences in their terms and conditions and the work they do. The essence of the decisions is that the librarians’ work is integral to the musicians’ performances and that without a librarian the musicians would have to perform those functions themselves.
In the anti-union atmosphere in which we find ourselves, those of us who believe that employees are best served through unions have to do all that we can to organize ourselves and bring as many people into our unions as we can. The legal landscape is not always conducive to these efforts, so when a legal process is supportive of our goals it be should used whenever possible. There are music librarians around the country who are unrepresented and who might benefit from joining the musicians’ units. I urge you to consider the lessons of the San Francisco Symphony and Kennedy Center/WNO cases and welcome these librarians into the union.
Note: The author is a labor relations attorney who has represented the musicians of several ICSOM orchestras.
