What Happens When A Contract Expires?

Just because the collective bargaining agreement (CBA) between an orchestra and its musicians expires doesn’t mean the organization necessarily comes to a screeching halt. Although it certainly adds an additional layer of pressure to negotiations, in most cases, the employer continues paying wages and benefits under the terms of the expired agreement until a new agreement is ratified or imposed.

And that’s exactly how the National Labor Relations Board (NLRB) describes the process:

The parties’ obligations do not end when the contract expires. They must bargain in good faith for a successor contract, or for the termination of the agreement, while terms of the expired contract continue.

At the same time, short of both sides reaching an agreement shortly after the CBA expires, here are the most likely options you can expect. Keep in mind, these aren’t the only options available but they are the most likely possibilities employers and employees adopt.

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.
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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.

Play and Talk
 

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.

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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.

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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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2 thoughts on “What Happens When A Contract Expires?

  1. You have forgotten the Minnesota Orchestral Association’s dubious “Pay and Play” option from a few years ago (the deliberate obfuscation of “Play and Talk”).

    * eye roll *

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