When we took office nearly eight years ago, one priority we hoped to address was the proliferation of recording engagements that were taking place without benefit of union contract. Extensive discussion with the musicians doing the work, and with officers and staff, revealed the depth and complexity of this problem.

In the phono field, non-signatory operators were becoming more commonplace – both independents and quasi-independent companies allied in some way with the major signatory labels. They were the source of an increasing amount of recording employment – and an alarming number of hit recordings. The union’s market share in the film and jingle fields had been eroded by global competition and by the presence of intermediaries acting as the engagers of musicians.

All of this non-contract work is carefully hidden from us by employers and, in some cases, by musicians as well. Employers in the music fields – like employers everywhere – have no intention of developing a relationship with a union, unless one is forced on them. And despite their loss of benefits and diminished earnings, the musicians who do this work have maintained a nervous silence, fearful of losing the income from these jobs and incurring the wrath of several contractors who work both sides of the union/nonunion street. As a result of these and other factors, the information Local 802 receives is late, incomplete and often pretty much useless.

Despite endless discussion on this topic over the years, and despite Jay Schaffner’s extraordinary work in bringing recording work under union contract, the problem has only gotten worse. It is fundamentally an organizing and education problem involving many of our members who often work for signatories to national contracts. However, to suggest that therefore the problem is easily solved would be to ignore the varied and complex circumstances that exist. Frankly speaking, we have not yet found a way to deal with it.

Until recently there were circumstances in which we felt fairly secure that the employer would properly file a union contract and that musicians would speak up if that were not the case. We were reasonably certain to be part of the equation if a recording was done in a major midtown studio and involved large numbers of the musicians who are regularly employed in any of the recording fields.

Until now.

TWO RECENT DARK DATES

Over the last several months two large projects – a major film and a series of phono dates for a prominent pop performer, utilizing orchestras of 70 and 45 musicians, respectively – have taken place without benefit of a union contract. We have strong reason to believe that the musicians on both projects knew this to be the case yet did not notify the union, anonymously or otherwise. Well after the projects were completed, one musician from each approached the Recording Department to ask if anything could be done to “fix” the situation. They were told that, unfortunately, it was too late. When such situations are brought to our attention prior to the actual recording, we have a very high rate of success. After the date, we have absolutely no leverage.

The musicians did not come forward in response to the original nonunion circumstances, but because of subsequent events. In one case it was the soundtrack recording for the film Bossa Nova, which had been described to the musicians who were called for the recording date as “for foreign release only.” However the film was subsequently released in the United States, as was a companion soundtrack album.

The phono recording is a more interesting case. Most “dark dates” are dark in every way. Little or no information about them is made available in any forum – before, during or after. These dates, however, were for the singer Britney Spears, one of the top-grossing performers in today’s recording business. A rather high level of data regarding such projects is expected to be made available to the public, including the names of the technical experts and the musicians. This information is normally listed in the album notes and available on the record company’s and the performer’s web sites. A light has now been turned on this project, and the date is not quite so dark. We think that light brought one musician forward.

WHAT’S AT STAKE?

The fact that these projects were done nonunion has resulted in a tremendous loss to the musicians – or in a huge savings to the employers, however you wish to consider it. We don’t think that either the film or the phono date paid scale. Certainly no health or pension benefits were paid. The loss of these benefits goes far beyond the money the employer saved. It has to be measured also in terms of the harm caused to musicians and to union funds. The Local 802 HBP operated $800,000 in the red in 1999. And in the case of pension, failure to credit contributions to individual musicians will affect the level of the retirement benefit that will pay out monthly for the rest of their lives. This loss is impossible to calculate.

Then there is Special Payments. If the Britney Spears album should sell at the level of her past several CDs – and given the PR around it, there is no reason to think that it won’t – it would mean that the Phonograph Record Special Payments Fund is out some $622,000, the amount due on sales of 10 million CDs.

The loss to the union is staggering. Major recording projects utilizing the most talented and busiest of New York’s musicians have taken place within a few blocks of the Local 802 office, and without its involvement. From any point of view, nothing could be worse.

HOW SHOULD WE RESPOND?

The question, of course, is what to do about all of this. As I indicated above, the problem we face in the recording field is, in the broadest sense, an organizing problem – although it is considered so challenging that little effort has been put into it at any level. While a few of the major locals (including Local 802) and the AFM Electronic Media Services Division have attempted some isolated projects, there has been no broad-based effort to tackle the problem.

Clearly, an organizing plan that includes both local and national components is needed. In the absence of such a plan, the choices are not very appealing. Some people have urged us to bring musicians up on charges and punish them for taking nonunion work. With no organizing plan in place, I’m not sure what this would accomplish – other than to place this work in the hands of slightly less busy musicians and non-members or, worse, to drive musicians away from the union.

We could turn over the musicians’ names to contractors who do only union work, pointing out that nonunion dates mean unfair competition and implying that this should be considered when they are engaging musicians for union work. But we have never encouraged such blacklisting and I’m uncomfortable with it – most of all because the musicians who do these dark dates are not just part of the problem, they are also the victims. It seems to me that the focus has to continuously and consistently be put on those employers and those contractors who book dark dates. They are the ones who are cheating musicians, robbing our benefit funds, and creating unfair competition.

Trying to win this battle though union discipline may have a place, but it seems to me that at least two things are required for it to be effective. First, it has to have the support of the vast majority of musicians involved in this work. And second, building such support will require us to develop a far-reaching educational and organizational effort.

I am convinced that we can and must shape such a campaign, geared to reach our members on a number of levels. Obviously, it must include an appeal to their self-interest. It must also appeal to their conscience as members of the larger community of musicians, all of whom are damaged by their actions. And it must appeal to their trade union consciousness and to the solidarity that is so necessary to protect all that we have gained over the years. It must also appeal to their self-respect as artists whose talents and decades of training are being abused and exploited.

Given the experiences I have just described, there may be those who think me naively optimistic to hope that such an effort could be successful. But for each negative experience like the ones described above, I could report to you a far larger number of positive ones. For example, as Allegro goes to press, our Recording Department has just reported to me their success in getting a nonunion recording company, Jive Records, to sign for a live date being put together for the MTV Video Music Awards program (also a nonunion company). It happened because the union was notified before the job took place, and because of the cooperation of the musicians involved.

There are good reasons to believe that most members, when presented with the facts, will understand how important this union is to their lives – and that the day-to-day decisions we all make do make a difference, both to ourselves and to our fellow musicians.