Events Escalate In Louisville

In response to yesterday’s deadline from the Louisville Orchestra (LO) to its musicians regarding accepting individual terms for employment for the 2011/12 season which came with the caveat that failing to accept the terms via written agreement would be enough to replace them if so desired, the musicians organized a protest outside the LO’s offices…

According to a pair of musicians’ press statements issued on 7/13/2011, they claim that the LO management’s letter “virtually guarantees that every musician, simply through exercising his or her right to engage in collective bargaining, could be accused of resigning from the orchestra.” Moreover, they assert that “management’s actions are intended to intimidate the musicians and are a bad faith bargaining tactic as defined by the National Labor Relations Act.”

The statement goes on to say that the if the Louisville Orchestra follows through with what the musicians defined as intimidation that the American Federation of Musicians (AFM) would likely place the orchestra on its Unfair List and that the musicians might file an National Labor Relations Board charge.

I contacted LO CEO Rob Birman to inquire about whether any of the orchestra’s musicians return a signed agreement but as of the time this article was published, he has yet to respond. Likewise, I contacted Kim Tichenor, head of musicians’ negotiation committee, and asked if she was aware of any musicians who returned signed agreements as well as how many LO musicians participated in today’s protest and she responded with the following:

“To my knowledge no musician turned in a signed letter to the management indicating that they were willing to play under the conditions potentially offered.” wrote Tichenor.

“We had 49 musicians who wrote personal letters to Rob Birman in lieu of turning in the letters from management, and a similar number of participants at the rally.”

At this stage, the one thing that seems quite clear is animosity is on the rise and the higher it goes, the more of a toll it will take on the institution. And if Detroit has demonstrated nothing else from its high octane feud, reaching an agreement isn’t synonymous with resolution.

Postscript: On 7/13/2011, WFPL in Louisville did a segment on this situation and had me field a few questions. You can listen at the WFPL website.

Resources

Louisville Musician Press Statement #1

Louisville Orchestra Musicians
Protect Collective Bargaining Rights

The Louisville Orchestra’s musicians will protest a July 5 letter from the orchestra’s management that the musicians’ lawyers say may be a violation of federal law requiring management to bargain in good faith with designated representatives of their employees’ bargaining unit. The protest will take place Wednesday at 2 p.m. outside the orchestra’s offices at 323 W. Broadway.

The orchestra’s musicians, who have been without a contract, insurance or fringe benefits since May 31, agreed to mediation and were in fact in a pre-mediation meeting when the orchestra’s management sent certified letters to all the orchestra’s musicians requiring a July 13 response concerning their availability on specific dates during the 2011-12 season.

The letter asked the individual musicians to commit to 159 services during the next season, and indicated the orchestra would pay each individual musician “chosen” by the orchestra’s management to perform an individual service a per-service fee, but would make no contribution to health insurance, pension or other fringe benefits.

The letter then unilaterally stated the conditions in which an individual musician’s actions would be treated as an “abandonment of your employment” with the orchestra. The letter indicated a musician not returning the letter by the July 13 deadline “will be treated as a voluntary refusal to work,” at which time “the Louisville Orchestra will take whatever steps are legally appropriate to fill your position.” The orchestra’s management also indicated an individual musician had voluntarily declined employment if he or she 1) returned the letter but did not specify his or her availability, 2) returned the letter, but did not specify availability for any one of the 159 dates, 3) indicated he or she would appear but subsequently failed to perform the service; or 4) declined to perform a service.

According to Kim Tichenor, the head of the musicians’ bargaining committee, the management’s letter virtually guarantees that every musician, simply through exercising his or her right to engage in collective bargaining, could be accused of resigning from the orchestra. Tichenor said the short-term intimidation factor is particularly important, since the management’s strategy of hiring replacement musicians is likely to fail. Tichenor said that Ray Hair, the American Federation of Musicians’ president, confirmed that such as action would likely place the Louisville Orchestra Inc. on the union’s unfair list. This would effectively limit the orchestra to drawing from the pool of musicians who do not belong to the musicians’ union.

The potential NLRB charge adds one more complication to a difficult series of setbacks to a normal negotiation process. Last fall, the management voluntarily asked for immediate Chapter 11 bankruptcy relief, a petition which the U.S. Bankruptcy court denied, ruling the orchestra could call upon its $9 million endowment to meet expenses. Even thought the court gave the management until June 26 to develop a detailed reorganization plan, at that hearing the judge declared the management’s reorganization plan lacked substance. The bankruptcy court set another hearing date for July 28, when the orchestra’s creditors, which includes the musicians, can respond to the clarity and realism of the management’s reorganization plan.

The negotiations displayed similar delays. After a series of contract negotiation sessions during which the orchestra’s management clung to a 20 percent decrease in the institution’s budget, the existing contract between the management and its musicians ended May 31. At that point, management’s “last, best and final offer” duplicated all but one of the main provisions it had been offering the musicians since summer 2010.

The management’s proposal would have split the current 71 musicians into three levels: 40 “A” players would receive 30 weeks of employment instead of 37 weeks, for an effective annual pay cut of 19 percent; 18 “B” players would receive 20 weeks of work; and 13 “C” players who would receive 10 weeks of work, for an annual salary of $9,250, which would represent a 72 percent cut in their annual salaries. Because both “B” and “C” tiers would be employed less than half the time, the orchestra’s management would not have to pay their pension or unemployment benefits. The letter the orchestra management sent to the individual musicians did not offer even these pay levels.

When the May 31 negotiation session broke down, the orchestra management said it would “withdraw” all contract offers. While the orchestra technically employs no musicians, federal labor law declares that all significant non-economic provisions from the previous contract remain in place until negotiations are concluded. Negotiation communications have been ongoing in writing since the May 31 meeting.

Tichenor said the musicians are conscious of the small window in which negotiations must be compressed before the start of the fall season, and are working with their representatives to creatively use a mediation or arbitration process to quickly resolve the issues separating the two sides. The orchestra’s first concert is scheduled for Sept. 10.

Louisville Musicians Press Statement #2

LO Musicians Protest
Management Intimidation;
Offer Arbitration

Louisville Orchestra’s musicians will gather outside the orchestra’s offices Wednesday to present their individual protests to management demands they say prevent them from exercising their rights to collective bargaining and discuss a potential federal charge of unfair bargaining practices against the orchestra’s management.

The protest comes in response to a July 5 letter sent to individual musicians requiring them to guarantee their availability for work during each of 159 services next season. Even though the musicians are represented in employment talks by their union representatives, the letter stated that a musician’s refusal to respond to the letter could betreated as an “abandonment of your employment” with the orchestra and result in the orchestra taking “whatever steps are legally appropriate to fill your position.”

The letter indicated the orchestra would pay each individual musician “chosen” by the orchestra’s management to perform an individual service a per-service fee, but would make no contribution to health insurance, pension or other fringe benefits.

According to the musicians’ attorneys,the orchestra management’s actions are intended to intimidate the musicians and are a bad faith bargaining tactic as defined by the National Labor Relations Act. Kim Tichenor, the head of the musicians’ negotiation committee, said the management’s letter virtually guarantees that every musician, simply through exercising his or her right to engage in collective bargaining, could be accused of resigning from the orchestra.

The existing contract between the management and its musicians ended May 31. The management’s last proposal, which they subsequently withdrew, would have cut some musician salaries by 19 percent but others up to 72 percent. Nearly half of the musicians would have lost full contributions to medical insurance and all pension and unemployment coverage. If the provisions in the management’s letter were implemented, musicians would not reach even those pay levels.

Tichenor said the musicians are conscious of the small window in which negotiations must be compressed before the start of the fall season, and are working with their representatives to creatively use a mediation or arbitration process to quickly resolve the issues separating the two sides. The first concert is scheduled for Sept. 10.

WHO: Rally by group of Louisville Orchestra Musicians and musician supporters

WHEN: Wednesday, July 13; 2 p.m.

WHERE: Louisville Orchestra offices, 323 W. Broadway

WHAT YOU’LL SEE: Kim Tichenor, head of musicians’ negotiation committee speaking to group of musician and orchestra supporters. She will present letters from individual musicians of the Louisville Orchestra in which each musician reaffirms that he or she rejects management overtures to undertake separate communication with musicians outside the collective bargaining process.

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 “Events Escalate In Louisville

  1. Thank you Julia, I appreciate the kind words and understand the sentiment. I wish I had something uplifting or profound to offer but my advice is plan ahead and do what you need to maintain your well being.

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