Symphony Allowed to Negotiate Private Deals with Performers, Now Union Wants to Know the Details

A symphony orchestra that agreed to pay some of its musicians more than a collective bargaining agreement provides must disclose the “overscale” arrangements to the musicians’ union.

The Denver Musicians Association has waived any right to negotiate such contracts for individual musicians, but the ALJ said the information is relevant to the union’s representation of all employees and should have been released.

Overscale agreements are common in music, entertainment, and news organizations, and unions have won access to such contracts before. However, the ALJ broke new ground in ruling the Colorado Symphony Orchestra had to turn over contracts requested by the Denver Musicians Association even if the union’s objective is to use them as evidence to support a female employee’s sex discrimination claims.

After principal flutist Brook Ferguson complained to the union in 2016 that her overscale contract left her underpaid compared to male musicians in comparable positions, the union requested that the CSO provide contracts for all of tis principal wind and brass players.

The ALJ said information about employee wages is presumptively relevant to a union’s bargaining for employees, and the CSO did not establish that the union was requesting information for an improper purpose. Even if the union was partly motivated by Ferguson’s complaints, the ALJ said, it had a duty to oppose discrimination and it was not required to justify to the CSO why it needed wage information about musicians it represents.

The ALJ wrote that union representatives had no role in negotiating the overscale contracts, but that didn’t mean the union had waived the right to see the agreement. He also said the NLRB has held that the union’s right outweighs any individual employee’s interest in keeping an overscale agreement confidential.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

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