The Negotiation Process: How It Works

Adaptistration People 018The first step in understanding how your local orchestra functions as an organization is to understand the basic principles behind the document that deals with nearly every facet of its operations: the Collective Bargaining Agreement (CBA). Every major orchestra in America, regardless of union status, has some form of a contract that exists as a result of collective bargaining. This contract governs all issues related to musician compensation, benefits, work conditions, and the dismissal process.

When there are no unusual variables involved, the negotiation process is remarkably simple: two parties get together and figure out how their working relationship will function. 

However, one byproduct of the 2008 economic downturn is an increase in variables that cloud the process as it approaches a traditional resolution point.

The Orchestral Collective Bargaining Agreement Negotiation Process

Although every negotiation is unique, this process represents the typical path most orchestras follow. Rest assured, each step in this process is loaded with plenty of minutiae not covered here, most of which is worthy of an article in and of itself, but this provides a solid understanding for understanding how the process unfolds.

Registered letter of intent to renegotiate contract sent 6-12 months in advance of the current contract expiration. Employees must also notify the Federal Mediation and Conciliation Service at least 30 days before the expiration of the contract.

Both sides agree on a time and date for initial meeting.

Tip: in traditional bargaining, neither side may dictate who may participate in bargaining sessions.

During the first meeting, general conversation centers on the state of the organization. Both sides may present formal bargaining positions and related terms.

Representing Management

  • executive administrators
  • legal counsel

Representing Musicians

  • negotiating committee
  • legal counsel and/or union negotiator
  • local union rep

Both sides review and consider proposals internally.

Successive meetings follow until all terms and issues are resolved to the satisfaction of both stakeholders.

Tip: although it is not uncommon for both stakeholders to seek input from the full board or rank and file musicians, it is not required.

Employer presents final copy of proposed agreement to board’s executive committee for approval.

Musician negotiating committee presents final copy of the proposed agreement to full rank and file membership to ratify or reject via formal ratification meeting.

Unsuccessful Ratification

Both sides return to the bargaining process until a new tentative agreement is reached, at which point both sides once again engage the approval process.

If a final contract can not be agreed upon before the expiration of the existing agreement, the employer must supply the employees with their “last, best, and final” offer. In turn, the musicians must conduct one final ratification vote.

If the agreement is still not ratified, one of four scenarios typically unfolds:

Scenario 1: Play and Talk

By default, the most common scenario, both sides agree to continue with scheduled events while negotiations ensue. Per NLRB guidelines, the employer is obligated to continue paying wages and benefits per the terms of the expired agreement. At the same time, these arrangements can be structured via written agreements stipulating the play and talk conditions such as whether or not the terms of the previous agreement continue unaltered until a new agreement is reached and/or imposing a new bargaining deadline.

In most cases, both sides agree to play and talk without any written agreement. Regardless of which version is utilized, this option is used most frequently as it offers a pressure release for everyone involved although it does not guarantee any particular outcome.

Scenario 2: Partial Agreement
If both parties are able to reach agreement on the majority of critical items, they may decide to address other issues such as health care benefits and pensions via ongoing negotiations. In these instances, conditions for continued bargaining are spelled out in a side letter to the newly signed collective bargaining agreement and the subsequent resolutions, once ratified by both parties, will be incorporated into the master agreement.
Scenario 3: work Stoppage

This option comes in two varieties; when musicians institute a work stoppage it is called a strike and when it is initiated by management it is called a lockout. It isn’t unusual for both sides to claim the other has initiated the work stoppage but the ultimate definition can be crucial when determining how the conflict is resolved. If the source of the work stoppage is indeed questioned, the matter is typically resolved by state and/or Federal authorities.

Regardless, under this option all scheduled events and activity will cease although both sides have been known to conduct ancillary concert action. For example, musicians can put on their own concerts and the association can turn into something of a presenter by bringing in performing arts acts, although these rarely include a full orchestra. It is most unusual to see an employer attempt to hire replacement musicians to carry on scheduled concert events.

Scenario 4: Imposing A Contract

In this option, management will impose the terms of their last, best, and final offer (or a variation thereof). The claim here from management is that they are not initiating a lockout and musicians must report for contracted service duties, but under the terms of the imposed agreement.

This is arguably the most passive-aggressive option as it requires the musicians to either accept the offer or initiate a work stoppage by going on strike. However, other options include legal action that requires a judge to step in render a decision on whether or not an employer can enforce the terms of a contract.

Ultimately, imposing a contract is a high-risk option that carries a number of variables that are beyond control of either side. Consequently, its volatile nature makes this a dangerous option as outcomes are not dissimilar from the “solution of mass destruction” nature inherent with work stoppages.

Success

The new collective bargaining agreement goes into effect the day after the previous agreement expires.

About Drew McManus

"I hear that every time you show up to work with an orchestra, people get fired." Those were the first words out of an executive's mouth after her board chair introduced us. That executive is now a dear colleague and friend but the day that consulting contract began with her orchestra, she was convinced I was a hatchet-man brought in by the board to clean house.

I understand where the trepidation comes from as a great deal of my consulting and technology provider work for arts organizations involves due diligence, separating fact from fiction, interpreting spin, as well as performance review and oversight. So yes, sometimes that work results in one or two individuals "aggressively embracing career change" but far more often than not, it reinforces and clarifies exactly what works and why.

In short, it doesn't matter if you know where all the bodies are buried if you can't keep your own clients out of the ground, and I'm fortunate enough to say that for more than 15 years, I've done exactly that for groups of all budget size from Qatar to Kathmandu.

For fun, I write a daily blog about the orchestra business, provide a platform for arts insiders to speak their mind, keep track of what people in this business get paid, help write a satirical cartoon about orchestra life, hack the arts, and love a good coffee drink.

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