Left Behind: Employees of Small Employers and the Right to Unionize

Non-unionized musicians at a small Seattle-area symphony orchestra, the Bellevue Philharmonic Orchestra (BPO), have grown deeply dissatisfied with the way management treats them. Eighty percent signed a petition asserting their desire to join the Musicians' Association of Seattle, an affiliate of the American Federation of Musicians. As is typical of employers throughout the country, even when confronted with evidence of the overwhelming desire of their employees for union representation, the BPO has refused to agree to this request.

Under the proposed Employee Free Choice Act (EFCA), employers covered by federal law would be forced to recognize their employees’ preference to be represented by union based upon this type of written showing. The business community is adamantly opposed to this measure, considering it, as President-elect Barack Obama stated on January 15 of this year, “the devil incarnate.”

Ironically, because the BPO musicians work for an orchestra too small to be covered by federal labor law, they will be left without any protections even if EFCA passes. This is because workers who work for companies that are too small to meet a certain monetary threshold typically have no rights at all when it comes to seeking the right to select or create a union to represent them in negotiations with their employer.

In 1999, example, the 50 or so musicians who made up the orchestra portion of Seattle's Civic Light Opera (CLO), a musical theater company, also decided that they wanted to join the Musicians' Association. More than 80 percent of those musicians also signed authorization cards stating that desire.

They never got their union, however. Nor did they get to vote in an election on the issue. Because the primary federal labor law, the National Labor Relations Act (NLRA) excludes theater orchestras that have an annual revenue of less than $500,000, as well as symphony orchestras with an annual revenue of less than one million dollars, these employees had no legal right to either form or join a union.

So when the musicians of the CLO did what workers have always done when they have no other recourse—strike—they did so without any of the protections they would have had were they deemed employees protected by the NLRA. Their employer responded to this job action by firing all of the striking musicians, which was completely legal under both state and federal law. Not only did the musicians end up with no union—they ended up with no jobs.

This story is repeated daily in this state and country. It is not merely relatively small orchestras which avoid the obligations of the NLRA, but all small employers. According to a 2002 report from the United States General Accounting Office (GAO), about 5.5 million employees nationwide are excluded from the protections of the NLRA as a result of the “small employer” exception.

It's too soon to tell whether the BPO musicians, despite their lack of legal protections, will succeed in their efforts to be represented by the Musicians' Association. A bill has been introduced into the Washington State Legislature that would grant employees of symphony orchestras, operas, and performing arts theaters the rights they currently lack. Among other things, this bill would (like EFCA) require employers to grant union recognition to their employees based on “majority sign-up.” Again like EFCA, this bill’s future is uncertain.

Among the most important features of EFCA are its provisions that impose financial penalties on employers for firing pro-union employees, penalties that currently do not exist. Unless the proposed Washington law passes, however, the BPO musicians would not benefit from these protections. Even if the musicians were fired en masse for their efforts to form a union, as happened to their colleagues at the CLO, there would be no federal remedy for them.

Should that occur, it would undoubtedly be a disaster for the musicians, the orchestra, and the community. Beyond that, it would be yet another illustration of the abysmal state of labor law in this country, one which needs to be rectified through legislative changes at not only the federal level, through EFCA, but often at the state level, as well.

Views expressed on this page are those of the authors and not necessarily those of Campaign for America's Future or Institute for America's Future