Another Layer Of Legalese From Louisville

It seems that the Louisville Orchestra (LO) labor dispute has moved to a new level following a letter signed by LO Chief Executive Officer Robert Birman and addressed to each of the orchestra’s musicians (Hat Tip to Jon Silpayamanant). In a nutshell, the letter explains that unless the recipient returns a signed statement that they are willing to “participate in future Louisville Orchestra concerts and rehearsals” the organization will interpret such response as a “voluntary refusal to work.”…

Moreover, if the recipient does accept the terms but fails to attend all scheduled services, the organization will also interpret such actions as an “as an abandonment of your employment.” It’s important to note here, for those who may not be aware, that the LO and its musicians are currently without a collective bargaining agreement and the organization is amidst Chapter 11 bankruptcy proceedings.

Perhaps unsurprisingly, labor relations have been tense over the past several months and it is difficult to imagine where this letter will have much impact beyond agitating an already volatile situation. If anything, it moves events into the purview of the lawyers.

A transcribed copy of the letter is currently available at a Louisville Orchestra musician’s Facebook notes and is posted below for reference.

Dear Jennifer Shackleton:

Our counsel was advised by counsel to the American Federation of Musicians of the United States and Canada, Local 11-637 and the Louisville Orchestra Musicians Committee that the Louisville Orchestra should contact you directly to confirm your willingness and commitment to appear for upcoming Orchestra performances and rehearsals.  That being the case, this letter is to confirm your willingness and commitment to perform at future Louisville Orchestra concerts and rehearsals, or your refusal to do so.

If you are willing and intend to accept the assignments listed below, and if you are selected for such assignment(s), you will be paid a pro-rated per-service rate based on the expired Collective Bargaining Agreement and you will be paid in accordance with the terms of the expired Agreement.  You will not, however, receive payment under a per-service model for any benefits under the expired Agreement, nor will benefit payments be made to any fund on your behalf.  Benefits will only be available through a ratified collective bargaining agreement.

Please indicate your willingness and commitment to participate in future Louisville Orchestra concerts and rehearsals by marking “Yes” or “No” beside each scheduled performance and rehearsal.  A “Yes” will indicate your willingness and commitment to work under the terms above.  A “No” will indicate your refusal to work.  Not marking either choice will be treated as a refusal to work.  [Then it lists the 159 services offered for next season.]

The Louisville Orchestra management, in consultation with the Music Director, will determine how many musicians will be selected.  If fewer musicians are selected than those who are willing to work, the final selection for employment will be based on the individual musician’s section seating order, consistent with the Orchestra’s established practice for performance assignments.

If you indicate a willingness to work and you are selected to perform, your failure to appear and perform will be treated as an abandonment of your employment, absent a prearranged approval with the Louisville Orchestra management excusing you from such obligation.  If you fail to indicate either “Yes” or “No” for any performance, that will be treated as a voluntary refusal to work.  In such event, the Louisville Orchestra will take whatever steps are legally appropriate to fill your position.  Similarly, if you indicate a refusal to appear and play the scheduled performance, the Louisville Orchestra will take whatever steps are legally appropriate to fill your position.

You must indicate your commitment as requested in this letter, execute and date the letter in the space provided below for your signature and return the executed letter to the Louisville Orchestra office no later than 5:00pm Wednesday, July 13, 2011.  Failure to return a copy of this letter with your commitments identified by this date will be treated as a voluntary refusal to work at the scheduled performances.

Thank you for your prompt attention to this matter.


Sincerely yours,

Robert A. Birman
Chief Executive Officer

Postscript: Elizabeth Kramer has an excellent article that provides additional details published in the 7/11/2011 edition of the Louisville Courier-Journal.

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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0 thoughts on “Another Layer Of Legalese From Louisville”

  1. Mark, Leonard Leibowitz’s conviction is a very sad and disappointing incident but it is entirely improper to suggest or indicate that he is, in any way, associated with events in Louisville without some sort of validation. Mr. Leibowitz stepped down as AFM counsel years ago and was replaced by Rochelle Skolnick.

  2. I’m glad you got a chance to post about this, Drew. And for many of us folks closer to the situation down here this is very consistent with the legalese the musicians have gotten from LO, Inc over the past few months. Especially regarding the usage of the “Louisville Orchestra” in the “Louisville Orchestra Musicians Association” and one of the recent contract proposals (that was discussed a bit in one of your previous posts) that would have required the musicians not engage in any meaningful work associated with a full orchestra including the organization, Keep Louisville Symphonic (which was created to specifically to circumnavigate the cease and desist letter regarding the LO name usage), as one of the conditions.

    This might not be as high profile as the Detroit situation, but in many ways it is every bit as toxic!

  3. My real concern is both sides have passed a point of no return and regardless if a settlement is reached, the relationship is so badly damaged that expecting anything other than an extension of the current dysfunction is a pipe dream.

  4. It also seems like, even in the miracle that some agreement is reached, there would be so much animosity that it’s hard to imagine the musicians being able to perform without some repressed or overt ill-will seriously affecting quality of performance. I don’t care how professional you are, it’s hard to just put all that aside and deliver 100% on stage when morale is so crushed.

  5. Very true, Drew and Brian–that’s also my (as well as many others’) fear. There have already been several of the musicians who have taken other appointments (even before their last cba expired) so there’s already been so much damage to the relationship!

  6. Is there a precedent for this happening with another orchestra in recent memory where, without a CBA in place, an organization unilaterally imposes changes with the threat of termination if musicians don’t comply?

    To me it is depressing to think that a team of board members and management considered all of their options and found this to be the most productive technique to adopt for a satisfactory, long-term resolution.

  7. I recall something very similar happening in Shreveport.

    Your second paragraph would certainly make complete sense and should be the way things operate but situations like this tend to be guided by factors other than common sense.

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Another Layer Of Legalese From Louisville

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