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.

Company Ordered to Disclose Potential Plant Relocation Plans to Union

A company and its union, The Society of Professional Engineering Employees and Aerospace, had a collective bargaining agreement that incorporated a letter of understanding establishing a joint workforce committee.

In December 2013, the Company informed the Union that it was studying the relocation of bargaining unit jobs from Puget Sound to locations across the U.S. In February 2014, the Company announced another potential relocation of work. The Union followed up by asking if there would be additional similar announcements. Importantly to the judge who heard this case, a company vice-president “responded directly that they would continue to see these types of studies and movement impacting the Puget Sound workforce.”

In March 2014, the Union submitted a written request for “information about the possible movement of Union work and/or work opportunities” and asked for company documents concerning plans for “relocation” or “realignment” of bargaining unit work. The Company refused to provide this information. The Union responded by filing an unfair labor practice charge alleging that the company violated its duty to bargain.

In a hearing before an administrative law judge, the Company argued that its vice-president never made a blanket statement that the Company planned to continue moving work out of the Puget Sound area and that it did not have a duty to give the Union information about potential movement of work. The judge disagreed noting that the vice-president’s comments came within weeks of the company deciding to relocate more than 1,000 jobs. The judge concluded that the Union sought information relevant to its representation of bargaining unit employees and ordered the Company to answer the Union’s written request.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.