One Step Forward, Two Steps Back In Louisville

(UPDATED 10:15am CT – AFM PLACES LO ON UNFAIR LIST) The 8/15/2011 edition of the Louisville Courier-Journal published an article by Elizabeth Kramer which reports that the judge overseeing the Louisville Orchestra’s (LO) bankruptcy approved the organization’s latest reorganization plan. According to the article, the judge approved the plan, in part, with the belief that it “would give the orchestra and its musicians an opportunity to focus on contract talks.”

[sws_pullquote_right]Sure, the court’s approval is a step forward but the brinkmanship it seems to have inspired is two steps back. [/sws_pullquote_right] That could certainly happen but if the decision was influenced by the belief that having an approved plan, which the musicians and their union representatives objected to, would foster a better bargaining environment and therefore help both sides reach a settlement, then everyone might be in for an unwelcome surprise.

In short, it’s difficult to imagine that the LO won’t use the financial parameters included in the now approved reorganization plan as a basis for a zero sum based bargaining strategy, which is what the musicians have been vehemently pushing back against since the disagreement erupted.

Moreover, the Courier-Journal article provides a few additional clues as to why this might not work out as some are hoping.

  1. One Step Forward, Two Steps Back In LouisvilleThe article reports that even though the orchestra’s CEO, Robert Birman, indicated the organization pledges to “negotiate toward a contract with the American Federation of Musicians” it reserves the option of pursuing options that would employ musicians under a non-union work agreement. Anyone with even the most rudimentary understanding of this business knows that even hinting at union busting bargaining tactics is only asking for trouble (and lots of it). So regardless of opinions on the merits of unionization, that’s the reality of the situation on the ground.
  2. The article also makes note that the American Federation of Musicians (AFM), which represents the musicians, have staked out the position that the orchestra still owes $3 million in penalties for withdrawing from the AFM’s pension fund. This can become a paramount issue when you look at the AFM’s position on pension liabilities vis-a-vis the Philadelphia Orchestra’s bankruptcy filing. In that case, the AFM has made it clear that they intend to potentially recover penalties and other related fees by a number of methods including the orchestra’s endowment and possible holding individual board members liable.

Consequently, the one step forward, two steps back outlook on Louisville becomes clearer. The brinkmanship is as strong as ever and the court’s ruling appears to have only galvanized already entrenched positions. In an ideal world, this will serve as inspiration to all parties involved to rise above their existing positions because one thing that is certain in all of this is the approval of a reorganization plan is not ubiquitous with actual recovery.


[tab title=”Update: 10:15am CT”]The American Federation of Musicians issued a press statement on 10:05am CT to report that they have placed the Louisville Orchestra on their “Unfair List.” Louisville Orchestra CEO Robert Birman has been contacted for an official response and that reply will be posted as soon as it is made available.  For more information, read the full press statement in the adjoining tab; likewise, you can learn about exactly what the Unfair List is and its potential impact on events in Louisville here.

The AFM International Unfair List, Defined

[/tab] [tab title=”Full Press Statement”]

AFM Places Louisville Orchestra on Unfair List

The American Federation of Musicians (AFM) has placed the Louisville Orchestra on its “Unfair List,” following the orchestra’s emergence from Chapter 11 bankruptcy without a collective bargaining agreement. At an August 15 court hearing, Judge David Stosberg approved the orchestra’s reorganization plan, effectively bringing it out of bankruptcy. The AFM had opposed the plan, citing the fact that it is not viable without employed musicians.

Louisville Orchestra musicians had rejected management’s last contract offer, which was presented as an ultimatum. The offer would have employed some musicians for 30 weeks per year, while employing others for only 10 or 20 weeks per year. Since proposing the tiered arrangement, management has been unwilling to negotiate.

Following the August 15 hearing, Louisville Orchestra Executive Director Robert Birman stated that the orchestra would work toward a contract with its current musicians, who are AFM members, but that it may also pursue agreements with non-AFM musicians.

“The Louisville Orchestra’s management is mistaken to believe that a pick-up ensemble would be a satisfactory replacement for the world-class symphony orchestra that patrons have come to expect in Louisville,” says AFM President Ray Hair. “The AFM will continue to fight on behalf of its members to keep the orchestra intact and to secure a fair contract.”

AFM members who render musical services for employers placed on the “Unfair List” are subject to penalty under AFM bylaws.

August 22, 2011



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 “One Step Forward, Two Steps Back In Louisville”

  1. Yo Drew,

    I’m a little curious as to why, in all of your postings about the Louisville brouhaha, you haven’t mentioned a couple of things:

    1) Early in the bankruptcy, the musicians of the orchestra have organized a nonprofit group called “Keep Louisville Symphonic”. Presumably this was to allow them to continue playing as an ensemble.
    2) Keep Louisville Symphonic has offered to play for the Kentucky Opera at the opera company’s upcoming performances of “Carmen.”
    3) The offer was refused by the Kentucky Opera.
    4) Tellingly, the Louisville Orchestra and the Kentucky Opera share many staff members and have consolidated many of their operations.

    The source of all this is an article in the Courier-Journal:

    Doesn’t this really add a signifcant amount of complication to a situation that becomes more than a standoff between the LO and the Musicians?

    Just curious!


    • Yo Sinbad (or should I say Yo-Ho-Ho?),

      The Louisville Opera thing is a nonstarter to me for a couple of reasons; just becasue the opera doesn’t want to contract the entire orchestra out to any other organized group of musicians doesn’t mean they can’t hire a local contractor who already hires all the same players. Next, there’s little chance that the opera is going to find large numbers of quality musicians who aren’t also in the musicians’ union, so that brings them back to the same point.

      So if the opera ends up having to hire musicians via a contractor or individual contracts and some, most, or even all of the them end up being LO musicians, then how is that not also having an influence in the dispute?

      Frankly, they would have been better off keeping quiet and not saying a word about any offers or decisions. The neutral position is certainly anything but given the LO’s response; although I suppose the opera could release a statement clarifying that the LO’s statement was presumptuous but I don’t see that happening.

      So from that perspective, neutrality is anything from that perspective, I agree that the opera’s decision and subsequent statement only makes things worse. The typical course of action for other arts groups in the same city as a major labor dispute is to keep their head down and hope they don’t get tangled up in the net.

      What will be interesting is whether or not the opera will allow the dispute to impact their earned income revenue flow. If they do, it will be a very, very curious decision.

      • I think you’re ignoring some key points in your first two paragraphs. First of all, the offer was made by the players’ negotiating committee to the Kentucky Opera. The implication here is that the musicians are replying to the LO Board’s threat to hire outside musicians by simply organizing themselves into a separate organization and competing with the existing LO organization. Whether this is a wise move on the part of the musicians is open for discussion but I think the implication is quite clear; the musicians are prepared to take strong measures to gain negotiating advantage. Also, it’s not clear from the article who released public information first. Kim Techenor, the head of the players’ negotiating committee said she made the offer to the Kentucky Opera on Monday, but the article doesn’t make it clear just when Technor made that pronouncement. Was it before or after the statement issued by the Kentucky Opera stating that it would be inapproproate for them to negotiate with another organized group while LO management and musicians were still negotiating? Elizabeth Kramer, the Courier-Journal reporter who authored the article is not a very good journalist in that regard.

        The statement made by the LO CEO Robert Birman has little to do with the Kentucky Opera’s neutrality since the Opera has no control over what someone else proffers as an opinion in the matter. What would have been a neutral position for the Kentucky Opera to take? Further, the Kentucky Opera must certainly protect its own position in the matter. For the Opera, it is important to have a quality orchestra in the pit for their performances. What the Opera did do was endorse the idea that they valued the LO as a musical organization and wanted to see an agreement reached so that the Opera could benefit from the musical talents of the LO. I’m puzzled as to how that stance could be any more neutral than it is. Further, for the Opera to issue a statement as you suggest, saying that the LO statement was presumptuous would certainly place the Opera in a non-neutral position.

        You say that the Opera’s decision and subsequent statement makes things worse. Would it have improved matters for the Opera to engage the musicians as offered by Techenor? As far as an announcement goes, it may be the case (we don’t know because of Kramer’s sloppy reporting) that Techenor made her offer to the Opera public thus placing the Opera in a position of having to respond. The facts are not clearly presented here.

        I doubt very much whether the Opera will suffer any immediate loss of revenue regardless of what happens. I’m assuming that they will have some orchestra in the pit even if it isn’t the highest quality orchestra to which its patrons are accustomed. Opera doesn’t suddenly collapse but rather dies a slow and agonizing death over a number of seasons if their artistic quality declines so for the moment, the Opera needn’t concern itself with the outcome of the LO negotiations. Long term, however, they would be wise to consider the landscape more carefully.

        Everything seems very inflexible at this point in time, but I’m sure there’s a much more interesting back-story taking place. I would like to be the fly on the wall during some of the discussions.

        For an interesting perspective on negotiations, one might do worse than take in an evening of theatre over at Chicago’s TimeLine Theatre Company at Theater Wit, now presenting Lee Blessing’s “A Walk in the Woods,” a plat that concerns itself precisely with how negotiations might take place informally. It was a fascinating glimpse into the mechanics and personal dynamics of the negotiating process.

        Cheers and a bottle of rum!


      • Fascinating thoughts here but I don’t think I’m ignoring those first few paragraphs as much as placing less value on them. The fact that Technor approached the opera on behalf of any group of musicians is mostly pointless. They could reanimate James C. Petrillo and have him make the offer and it is no different than any other music contractor in the area (although the idea of zombie Petrillo is a bit unnerving so I hope they don’t consider that one).

        As an aside, I do find it fascinating that one of the supporting arguments for reducing musician services and annual compensation is the notion that they’ll be able to recoup those losses by having more time to work elsewhere. If that’s the case, then are they not allowed to perform for any other organization that may potentially bid on contracted services that the LO is involved? If the LO were a 52 week orchestra, they would have firmer ground to stand on but it’s tough to pull that sort of attitude at that level.

        Granted, I’m not fond of hypothetical examples but in this case I think it does provide some clarity. As such, let’s say that Sinbad’s Buccaneer Band, which happens to be comprised solely of current LO musicians save it’s nonplaying namesake, decided to bid for the opera job. Would the same conflict of interest exist?

        So unless there is some contractual obligation for the opera to use the LO as the sole and only provider of live pit musicians under any and all conditions (including labor disputes and work stoppages), then they can go to whatever entity they want to contract players or contract each individual musician directly.

        As for neutrality, I agree, offering up a response statement wouldn’t exactly help their neutrality but it would provide some additional clarity. The same advice goes for this mess if it were in the other direction. Ultimately, they should have zipped up and refrained from saying anything because it should come as no surprise that either side would attempt to spin that to their advantage. But that isn’t what they did so regardless of intent, their statement will get caught up in both camp’s spin factory. The damage is done, the best they can do is state that they are not taking any sides and will proceed with operations as best possible.

        Ultimately, the opera needs to follow through with their productions and if the LO labor dispute means that the orchestra won’t be able to meet contractual obligations and supply the pit musicians then the opera is free to hire elsewhere. If they are smart, they’ll do exactly that in a way that marginalizes any additional local blow back.

        I wholeheartedly agree that things seem very inflexible. The Mayor’s assessment was fascinating although I found my self thinking “what exactly did he expect?”


        P.S. Make that Rum a Gin and you’re on! 🙂

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