The Fair Share for Musicians campaign, mentioned in President Gagliardi’s report this month, has the primary goal of capturing revenue generated by movie and TV show streaming and allocating that revenue to the musicians whose performances were captured in those works. This goal is imperative, since huge amounts of money are generated through streaming. Revenue is in large part the result of the recorded performance of musicians, and it should be shared with them.

A recent event I was involved in demonstrates that there are other compelling reasons to negotiate over utilization of streaming and electronic media. The negotiation of contractual provisions related to streaming may give musicians some degree of control over their recorded product. Without such contractual protections, musicians’ recordings may have secondary uses that they have no control over.

The example that comes to mind that highlights the importance of musicians’ retaining control over their recorded performances involves a prominent jazz club that is known for video recording and streaming every performance that occurs in that venue. Musicians are not paid for these recordings and have absolutely no ability to determine how they will be used. These video recordings are also placed on the club’s Web site, even if the performer doesn’t wish for them to be included there.

This proved to be devastating for one performer who fainted during their performance as a result of exhaustion. The whole incident was captured on video and was placed on the club’s Web site. The performer was quite upset about his performance being recorded and aired publicly — and rightfully so. He received several calls asking him if he was all right and he feared that he would lose income if people believed he was too ill to perform. Unfortunately, his repeated requests that the video be taken down went unanswered.

Fortunately, with the assistance of the Jazz Foundation, this musician contacted Local 802 and asked for assistance. Local 802 Organizing Director John Pietaro wrote to the club owner and demanded that the video be removed from the club’s Web site.

The club owner initially rebuffed the demand and in fact wrote directly to the musician chiding him for contacting Local 802. He wrote “Bringing in the union is a joke. They’ve literally done nothing for the clubs or the scene except to pursue some bullshit ‘cover charge tax’ that they want to squeeze out of the 5 or 6 clubs still around.” He also wrote to Local 802 and stated, “Not sure why the 802 has to get involved with something like this.”

I quickly wrote back stating “We assist when any member has an issue. That’s what unionism is about.”

While the club owner did remove the video, communications became heated after those exchanges and finally, the club owner wrote to the musician involved and callously said “Sorry you passed out on the gig. You should take better care of yourself. Anyway, that’s the last time you’ll play [here].”

Local 802 promptly filed an unfair labor practice charge against the club based upon retaliatory conduct targeting the musician for exercising rights protected under the National Labor Relations Act. Seeking union assistance to rectify a workplace issue is in fact concerted activity protected under Section 7 of the NLRA regardless of whether a bargaining relationship exists. Right now, the charge is being processed by the NLRB. I believe that the documentary evidence that I just shared here is compelling and irrefutable.

There are some important lessons to take away from this situation. First, is that streaming rights must be codified in our agreements. Moreover, members must be aware that Local 802 is here to help them in any context. The club in question does not have a collective bargaining agreement with us. Nonetheless, pursuing the member’s claim constitutes legally protected activity. The club owner’s abusive retaliatory conduct in turn violated section 8(a)(1) and (3) of the National Labor Relations Act.

We will keep you posted as to the disposition of the unfair labor practice once the investigation is completed. Hopefully, this club owner has learned a well needed lesson in civility, labor relations…and the power of musicians who stand up for their rights!

If you’re treated unfairly at one of your gigs — even if you are not yet under a union agreement — contact Local 802 at www.local802afm.org/organize-now 

LEGAL CORNER

Another Trump Era Labor Board Decision Reversed 

The Trump Labor Board was notorious for eradicating years of established precedent, rendering it one of the most anti-worker labor boards in recent history. The current labor board is slowly but surely righting the ship and restoring the law to its previous position. On May 1, 2023 the current board proved again their desire to rehabilitate the pernicious effects of ignoring the principles of stare decisis. In Lion Elastomers, LLC, (372 NLRB No. 83 (2023)) the NLRB reversed its prior decision in General Motors LLC (369 NLRB No, 127 (2020)). In its General Motors decision, 40 years of unwavering precedent was overturned in an instant. That decision held that the established standards for judging whether employees’ conduct could be disciplined while they were engaging in activity protected by Section 7, such as striking or engaging in a protest, were wrong. The new standard shifted focus from the employee to the motive of the employer in taking adverse action against the employee. Invariably, under that standard, an employer’s imposition of discipline would be deemed proper if they simply demonstrated a legitimate business justification for it regardless of the factors that were prompting the employee to take such action.

Fortunately, this decision was not long lived. It would have completely chilled employees’ efforts to undertake compelling action against an intransigent employer. The long-established standard has been restored based on the particular setting of the protected activity. This will positively impact board determinations regarding employee conduct toward the employer in the workplace, social media postings as well as picket line conduct.

The Biden Labor Board’s work is far from done. However, this is one step forward to fixing the damage done.

THANKS TO OUR RECORDING DEPARTMENT

To end on a positive note, I would like to commend the exemplary efforts of the Local 802 Recording Department in collecting a significant portion of recording work dues owed for 2021, as noted in Financial Vice President Karen Fisher’s report this month. Thank you to our hardworking staff!