The Jingle Negotiations - an analysis

The letter from Local 802 member David Finck that I posted earlier today made public some disturbing details about the RMA's allegations regarding the recent jingle negotiations (aka negotiations for a successor agreement to the TV and Radio Commercial Announcements Agreement):

I recently attended some of the caucuses that led up to the negotiations for the jingle agreement and was absolutely shocked by what l saw. These meetings were attended by people who run the production houses: the very people who hire us. Moreover, they were actually invited by President Tom Lee. One of these employers was even brought into Local 802 a week before the negotiations so that a membership card could be issued thereby allowing this person to attend the caucuses and be a voting member of our union. AF of M president Tom Lee and the IEB members that were in the caucus room ignored the protests raised by several of us. (Jingle houses get huge creative fees and are in business with multi-million dollar Madison Avenue advertising corporations ..... they are not in partnership with musicians.)

How can any musician speak freely when there are people for whom we work present at our caucus where proposals are being prepared? Tom Lee knows this. Having these employers at our meetings before we negotiate with them is an intimidation technique employed by a union president who seems to have forged relationships with management and desires to silence the voices of the very musicians whom he represents. It is exactly the kind of thing that weakens our union. lt cannot be tolerated. That the Lee administration created and endorsed it is unforgivable.

These charges have not gone without pushback, though. An email was sent to Local 802 President Tino Gagliardi (with :cc's to the entire IEB, which is in of itself interesting) from a group calling itself "New York City Recording Ratifiers" a mere two days after David Finck sent his letter out:

Dear President Gagliardi:

We are writing to express our disappointment with your reluctance to stand in support of Local 802's recording musicians, all of them. During the Commercial Agreement negotiating sessions you either sought to exclude or limit the participation of some of our ratifying leaders and side musicians or marginalized their effectiveness by inviting the participation of non ratifying participants, including members of the NY RMA.

Given the grave state of affairs facing our commercial agreement musicians we are at a loss to explain your reluctance to seek out the counsel of the backbone of the NY recording community despite earnest attempts to get your attention.

Please remember that these were our negotiations not that of other unaffected or modestly affected parties, inexplicably invited, given their lack of work under the commercial agreement. We fail to understand why they should represent us in caucus or negotiations. Every free-lance recording musician is in fact an independent business person. We expect our meetings, caucuses and negotiations to be run in a respectful and business like fashion, free from political posturing and gamesmanship.

Additionally, your silence at the disparaging of several of our local's ratifiers by an LA representative, both during the sessions and afterward (specifically the RMA newsletter which appeared the day after the negotiations concluded), is very troubling. Because of this, we are concerned about your ability to represent all members of the Local in an effective and, above all, impartial manner.

We are well aware that you wanted to postpone the negotiations as you have only assumed office several months ago. However, you have been a member of the NY RMA board for several years. The fact that the commercial business was in need of immediate attention by the union was more than evident. Quite simply, since you and the NY RMA board were not ready to attend to these issues you should have encouraged our expert participation, not attempted to block it.

There is no requirement in our union for a recording musician to be a member of the RMA to have their voice heard, let alone respected. It is clear by our bylaws that the RMA is AN organization for recording musicians, not THE organization for recording musicians.

We hope that in the future your administration will make a greater effort to identify, work with and represent the actual ratifiers in a given recording area, regardless of their affiliation with any player conference or political party.

Sincerely,
from the following recording ratifiers,
Sallie M. Liben - Negotiating Committee Member
Jason Menkes - Negotiating Committee Member
Keith Haluska - Negotiating Committee Member
Jan Horowitz - Negotiating Committee Member
Tony Finno - Negotiating Committee Member
David Horowitz - member, Local 802
Bernie Drayton - member, Local 802
Matt Fletcher - member, Local 802
Fritz Doddy - member, Local 802
Jon Fields - member, Local 802
Joe Sierzputowski - member, Local 802
Herb Bushler - member, Local 802
Kevin Joy - member, Local 802
Lyle Greenfield - member, Local 802
Ben Zebelman - member, Local 802
Brad Stratton - member, Local 802
Brian Jones - member, Local 802
Nick DiMinno - member, Local 802
Craig Hazen - member, Local 802
Philip Ashley - member, Local 802
Frank DiMinno - member, Local 802
David Wolfert - member, Local 802

I'm told that Tom has re-sent this letter to a number of Convention delegates in the apparent belief that it will damage Gagliardi, who of course is running for the IEB.

I think he's wrong. I did some online research on the signatories to the letter to Gagliardi. Here's what I found about the five individuals listed as "Negotiating Committee Member":

Sally Moore Liben

• Executive Producer/Head of Production, The Lodge, member of Board of Directors of Association of Music Producers (Eastern Coast chapter)

Jason Menkes

• Music producer, COPILOT Strategic Music + Sound), President of Association of Music Producers (Eastern Coast chapter)

Keith Haluska

• Managing Partner, MassiveMusic, former Head of Production, Elias Music, former Producer at advertising agency Hampel Stefanides

Jan Horowitz

• VP/Owner, David Horowitz Music Associates (an AFM signatory), former President (and current member of the Board of Directors) of the Association of Music Producers

Tony Finno

• composer/arranger/orchestrator for recording artists, film, TV, advertising/industrials, and library music CD

With the possible exception of Tony Finno, these people all appear to be in positions where they generally function as supervisors or employers of members working under the Commercial Agreement. It's telling that three of them are board members of the Association of Music Producers, which is a trade organization for music houses that produce music for commercials:

The Association of Music Producers (AMP) was founded in 1998 for the purpose of educating its members, as well as the production, advertising and media communities, on all facets of music production, from creation to final use. Music puts feelings in motion.

AMP was formed to address the common goals and concerns of those who make the music. A national organization with Chapters in New York, Los Angeles, Chicago, Dallas, Austin, and Miami, AMP has already made itself heard. From business matters such as production guidelines, composer royalties and Rights Agreements to consciousness and fund-raising events, AMP has turned up the volume on things that count most.

Coincidentally, AMP arrives at a time in American cultural history when popular music is having an unprecedented impact—in film, in television, in fashion, and in places where music never went before—from listening stations to desktops to iPods and cellphones.

Even music television is everywhere today - just a short time ago it didn’t exist. And radio stations now broadcast in the greatest number of formats in history - from rock to R&B to hip-hop to world to dance to Latin to jazz to pop…Pick a category and you’ll find a chart.

In taking the pulse of this world, the role of original music & sound for advertising has never been more important, both in the creation and execution. AMP will raise the bar in music production - by bringing music into the overall creative process earlier. Much earlier. (If we could, we’d rob VH1’s simple message: Music First!)

It's entirely appropriate that people who own and run music houses that produce music for commercials be involved in the negotiation of the relevant AFM agreement. What's not appropriate is that they would be sitting on the union side of the table. Not only are they inevitably conflicted - at the very least - about negotiating compensation for musicians, but their mere presence would be very intimidating for any rank-and-file instrumentalists in the room. As David Finck wrote:

How can any musician speak freely when there are people for whom we work present at our caucus where proposals are being prepared? ... musicians across America should know that the only proposal brought forth by our union seemed to benefit employers more than us. This is not surprising given that President Lee invited them to attend our strategy meeting.

Tom Lee invited employers to sit on the union side for these negotiations. One of the union-side committee members invited by Tom Lee actually co-owns a company that appears to be signatory to the Agreement.

That's worth repeating: Tom Lee invited the co-owner of a signatory company to be on the union-side negotiating committee. In what universe is this not a violation of the fundamental principle of trade unionism - that unions represent workers in their dealings with those they work for? Why does Tom Lee think that appointing employers to a union-side negotiating committee is defensible on any level? And why does he think that circulating a letter from those employers attacking Gagliardi for having raised questions about their participation will hurt Gagliardi?

If I were running for AFM President, I'd be ashamed to be publicly identified as having appointed such people to a negotiating committee. Having them attack the president of Local 802 for questioning those appointments, and then distributing their attack, is simply incomprehensible. Does Tom really think that most of the delegates to the Convention are going to think he did the right thing here?

The rest of the list of signers to the letter to Gagliardi is almost as interesting:

• David Horowitz Owner, David Horowitz Music Associates (AFM signatory)
• Bernie Drayton Music Producer/Owner, Last Minute Entertainment NY and 3Tree Productions
• Matt Fletcher Associate Creative Director/Senior Composer, Elias Arts
• Fritz Doddy Creative Director, Elias Arts
• Jon Fields Owner/Composer/Producer, L-Sid Productions, former staff composer, David Horowitz Music Associates
• Joe Sierzputowski composer/producer/engineer, Owner, PartyLine Records Inc., worked for David Horowitz Music Associates from 1985 to 2009
• Herb Bushler Musician Contractor for David Horowitz Music Associates
• Kevin Joy Owner, Joy Productions, former board member of the Association of Music Producers
• Lyle Greenfield Founder and President of Bang Music, a New York-based music production company. Partner in Bangolia (videogame company), member of Board of Directors, Association of Music Producers
• Ben Zebelman Composer/Track Director at Pirate Radio & Television, Head of Artist Licensing Placement at Octave Music, former composer at David Horowitz Music Associates
• Brad Stratton Executive Producer at BANG; former Executive Music Producer at Sound Lounge, former Senior Music Producer at Fluid, former Music Producer at D'Arcy
• Brian Jones Partner at BANG + BANGOLIA Game Audio; former Music and Public Appearances Booker at William Morris Agency (NY)
• Nick DiMinno Vice President at Gari Media Group, former partner at Three Tree Productions, former Vice President, Association of Music Producers
• Craig Hazen Composer/Producer, owner ofZen Music
• Philip Ashley Composer
• Frank DiMinno Music Producer/Composer; formerly music producer at Three Tree Productions
• David Wolfert Composer, former producer at the entertainment company

Of these 17 individuals listed in the letter only as "member, Local 802," only a handful are not either supervisory, owners of companies that employ musicians, or executives of companies that employ musicians.

I have no doubt that they are, or were, also members of Local 802. Our industry is unusual in that many people who work under collective bargaining agreements also act as employers or supervisors under the same CBAs (and often different CBAs as well). And, because many media agreements (and local wage scales) contain provisions to compensate "leaders" in addition to side musicians, it's in supervisors' interests to get themselves on the contracts (or or paid under local scales) whenever possible by calling themselves "leaders."

It is not a new problem, and the AFM has language in its Bylaws to deal with it, specifically Sections 41 and 42(a) of Article 5:

SECTION 41. Members of a Local who are contractors, personnel managers, or who perform other supervisory duties for an employer with whom the Local has a CBA shall not be eligible to serve on the negotiation and/or grievance- arbitration committee. In addition, they shall not be permitted to participate in any membership meeting or portion of a meeting in which collective bargaining negotiations or contract administration issues are discussed notwithstanding the fact that they may also perform musical services for the employer and may be a member of the affected bargaining unit. However, the members shall be permitted to participate in any contract ratification vote, as long as they are otherwise eligible.

SECTION 42(a). No Officer, business agent, employee, or committee member of a Local who is involved in booking, contracting, or engaging AFM members to perform musical services shall:

• (1) use that position, or any information received in an official capacity, including referrals, contracts, or engagement reports received by or filed with the Local, to solicit or obtain business for the performance of musical services from which that individual would personally benefit; or
• (2) participate in the establishment of wage or price scales, or minimums, established by the Local for Local members engaged in the same music industry field as the one in which that individual books, contracts, or engages musicians; or
• (3) set or promulgate any wage scale or other term or condition of employment not previously established in accordance with the Local’s Bylaws for musical services in the same music industry field as the one in which that individual books, contracts, or engages musicians; or
• (4) participate in the negotiation, ratification, or administration of CBAs with employers of Local members engaged in same music industry field as that individual...:

Had the Commercial Agreement been a Local agreement, rather than an AFM agreement, most of the signers of the letter to Tino Gagliardi would be unequivocally barred from participating in any way from negotiating and ratifying that agreement, other than being able to cast a ballot for or against ratification. The only reason that most of the signers of the letter could be allowed to be on the union-side negotiating committee, or even participate in any ratification meetings, for this Agreement is that there is a loophole in the AFM Bylaws. The AFM President is arguably permitted conduct in this area that, under the Bylaws, would cause serious trouble, and perhaps even NLRB charges, for any AFM Local president who tried the exact same thing.

(I'm told that there were questions raised about the participation of these employers during the negotiations (although not in the "disparaging" way that the signers claimed), that an IEB ruling on whether the Bylaws applied to national negotiations as well as Local negotiations was requested, and that Tom declined to take the matter to the IEB.)

This loophole was not intentional. I was at several conventions during which these bylaws were discussed and modified. It never crossed anyone's mind that an AFM President would invite supervisory personnel - much less owners of signatory companies - to serve on a union-side negotiating committee. How could it have occurred to anyone? It had never happened before. It would have been unthinkable under past AFM presidents, or past IEBs. It would be like passing a bylaw barring the AFM President from requiring that all union-side committee members wear purple turbans to negotiations.

Some contingencies are so remote that no one thinks of guarding against them. Asking employers to the union side of the table to negotiate union contracts on behalf of musicians was one of those "too far-fetched to be possible" contingencies until this year, and this AFM President.

One final note: I found it particularly interesting, in light of the fact that Tom has been negotiating videogame agreements with producers of videogame music, that several of the signers of the letter are... producers of videogame music. Gratitude is not dead, it seems - and certainly the employers of musicians in the videogame music field have cause to be grateful to Tom. Apparently, so do the employers of musicians in the jingle business.

Comments

[Greg Drone]

The problem with our union is that a majority of our members would see no problem with inviting the NYC Ratifiers to participate in the negotiations on the union side. Furthermore, I would bet that if polled, a majority of our members would not agree with the following statement: "collective bargaining agreements benefit musicians." From the perspective of a great many of our members, collective bargaining agreements do not benefit them but are seen as agreements that benefit elite members and exclude them from working gigs.

Remember, this is a union in which the idea of prohibiting contractor/employers from being union officers or executive board members is controversial. It may be a stretch, but I would guess that a huge segment of our membership aspires to be contractors/employers/members rather than leaders/officers/members.

Contractor/members are highly valued in our union because they hire our members and file the paperwork to pay work dues and pension thus perpetuating the role of the union. There is a feeling that if the union antagonizes these members, they will stop filing the paper work, paying the dues and just go ahead and hire the same musicians without paying the work dues.

My point is that many of the problems discussed on this board are not caused just by certain individuals but are rather systemic problems within our union. We are members of a union in which a majority of its members do not work. A union in which of those that do work only a few support themselves as working musicians. A union in which of those that do support themselves as musicians, only a few work under collective bargaining agreements. This is a problem if you believe that the primary role of union is to organize and negotiate collective bargaining agreements.

I am a member of an ICSOM orchestra and support the goals of ICSOM and the labor movement at large. Unfortunately, I do not believe that a majority of our members or a majority of our local officers would agree with many of the goals of ICSOM and the labor movement. Until there is agreement on the goals of our union we will continue to struggle with these problems.

[David Finck]

Tom Lee and friends work very hard at attacking musicians who speak out or question anything about their actions at the AF of M. Perhaps they could simply explain the philosophy that advocates inviting employers to our strategy meetings before a negotiation and how such a thing can benefit working musicians. At the Super Bowl, players from one team are not invited into the huddle of the opposition. And let’s face it, even president Bush would know better than to let the enemy to sit in on strategy meetings with General Petraeus and the Joint Chiefs of Staff.

What exactly IS the Tom Lee philosophy? Does it benefit anyone other than Tom?

[802fiddler]

How far will Tom Lee go in his quest for vengeance on the RMA? Consulting jingle producers privately for their knowledge of the business prior to the caucus is one thing. Inviting them to negotiating caucuses where they face their employees is quite another. This comes close to contravening US labor law, if not actually crossing the line. Distributing the "NY Recording Ratifiers" letter to Convention delegates is probably a further example of labor law contravention. Years ago, the DOL overturned an AFM election on the grounds of using union apparatus to electioneer.

Tom'e actions regarding national media contracts in the last few years have been outrageous. He needs to be gone!

[antony cooke]

Once again - simply amazing. But there is a remedy to the madness......