What’s Worse: Launching One Nuke Or All Of Them?

Last Friday, we took a look at the labor dispute unfolding at the Colorado Springs Philharmonic (CSPhil). In a nutshell, the CSPhil board decided that after declaring impasse during their recent master agreement reopener talks, they would cancel the union agreement entirely. The only other orchestra to do this was the Louisville Orchestra in 2011.

Perhaps unsurprisingly, there’s a good bit of unusual back-story in this situation which begins with the organization ratifying a five-year collective bargaining agreement (CBA) in April 2020, which was well into the second month of pandemic shutdowns.

Jump ahead to the summer and the employer announced they were enacting the new agreement’s force majeure clause and not only cancelled all concert activity and related musician services from September through December 2020, but cancelled all related payroll.

Here’s a timeline overview:

  • In July 2020, the employer approached musicians to re-open five-year deal.
  • Musicians accepted.
  • Bargaining ensued.
  • Employer presented last, best, and final offer.
  • Musicians rejected and submitted counteroffer.
  • By mid-September, the employer declared impasse and terminated the existing five-year agreement.
  • Employer began submitting offers of work to musicians under non-CBA terms.

The key piece of information in that timeline is item #6. When declaring impasse, the option afforded to employers via National Labor Relations Act that most take advantage of is to impose a new agreement. An employer can do this only after declaring impasse so long as the terms and conditions were offered to the union before impasse was reached.

Inside the context of labor relations, imposing an agreement is akin to launching a nuclear missile. What is nearly unheard of in this field is to skip over that option and launch all your nukes in the form of cancelling the union agreement entirely.

Simply put, none of this made much sense so in order to learn more, I reached out to Nathan Newbrough, the orchestra’s president and CEO, and Jeremy Van Hoy, CSPhil bass trombonist and Chair of the Players Committee.

“[The] employer declared in July that all services September-December 31 were cancelled, and payroll was cancelled,” said Van Hoy. “[The musicians] filed a grievance over improper use of force majeure and we entered into talks to modify the existing CBA for this season only.”

Even though both sides were bargaining, the disagreement over the use of force majeure and terms past the first year quickly emerged as a sticking point. According to the employer, the musicians accepted that force majeure due to the pandemic was justified for cancelling events and requirements in the CBA that was ratified in April.

“We learned for the first time in August that the Union was taking the position that the pandemic is not a force majeure and that the Philharmonic was obligated to pay musicians for canceled services,” said Newbrough.”[This] is contrary to the recent side letter and contrary to the expressed terms of the CBA, which says that force majeure cancelations are unpaid.”

The musicians contend this is an inaccurate description and even though the employer was applying this interpretation only to large scale, full orchestra performances, it was used as justification to cancel the entire agreement. The musicians assert that smaller scale individual musician and small chamber performances were still possible and therefore, force majeure did not justify cancelling the entire agreement.

While not entirely agreeing with that position, much of the CSPhil’s PR position focuses on the inability to engage full orchestra event activity as reason for cancelling the contract.

“The pandemic made it impossible for the Philharmonic to hold large scale concerts,” said Newbrough. “After first agreeing in the July side letter, the Union changed its position and asserted that the pandemic does not constitute force majeure. For this and other reasons, it would have been impossible to implement the Board’s final offer without the agreement of the Union.  It became apparent that cancelation was the Board’s last reasonable remaining option.”

This is where things begin to go sideways.

The final two sentences become problematic on various levels and will undoubtedly be at the heart of arguments before the National Labor Relations Board.

While I’ve asked Newborough what exactly the “other reasons” mentioned are, he has yet to provide those details. Without those, there’s no reason why the employer couldn’t impose an agreement instead of cancelling it entirely.

Things became worse when, after cancelling the CBA, the employer sent some of the rostered musicians work invitations for those small-scale services but under the terms the musicians already rejected and a non-union employment status.

All of this circles back to the board’s decision to cancel and not replace vs. cancel and impose.

The former option only serves to maximize hostilities and while the latter is still going to produce a hostile byproduct, it doesn’t challenge the core concept of union security, which require all employees in a bargaining unit are union members.

Moving forward, things are in a very delicate condition. While we know the employer is already offering work to musicians under a non-union agreement, we cross the Louisville line when they begin offering work to non-rostered musicians and advertise for openings under a non-union employment agreement.

When asked about the board’s plans, Newbrough demurred.

“I can’t answer your…question because we are focused on reaching agreement with our musicians instead of speculating about what might happen if we can’t,” he said.

As of now, the board’s decision to assert force majeure as reason for cancelling the existing CBA and moving forward with hiring musicians under a non-union agreement could be interpreted as a signal that a new union agreement isn’t a high priority.

On 10/1/2020, Newbrough wrote to say the employer was reaching out to the orchestra committee to schedule a bargaining session. While Van Hoy confirmed a meeting took place, he also said it did not produce any breakthroughs and the situation remains unchanged.

For now, the CSPhil is at the precipice of threatening to begin replacing existing musicians unless they agree to accept non-union work offers.

This is the same place the Louisville Orchestra found itself in October 2011. At that time, I called it a place where angels fear to tread and it took about three weeks to go from there to advertising for replacement, non-union musicians.

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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