The curious incident of the Boards in the night-time

These have been dreadful times for the musicians of the orchestras at the epicenter of the current epidemic of radical salary-slashing. Those orchestras’ audiences have been affected too, as have businesses in the areas around the concert halls.

For students of labor relations, though, these have been very interesting days. No doubt pathologists during the Black Death, had there been such people, would have said the same thing while simultaneously wondering when the pestilence was going to arrive in their towns. But they would have continued to find their work fascinating, if grim, and to pass on what they learned about it before they, too, became statistics.

So, in that spirit, I wanted to write about one of the most curious “incidents” of the current debacles in the Twin Cities. It’s akin to the “curious incident of the dog in the night-time” cited by Sherlock Holmes. Dr. Watson, you might remember, replied “but the dog did nothing in the night-time,” to which Holmes made the immortal rejoinder: “that was the curious incident.”

Why did both orchestras lock out their musicians, rather than implement their proposals and have the musicians strike over that?

Labor negotiations conducted under the National Labor Relations Act can, at the expiration of a contract, proceed along several different lines. The company and union can, of course, reach agreement on a new contract. If they don’t, the parties can continue to negotiate while the employees continue to work under temporary terms to which the company and union agree – usually, but not necessarily, the terms of the expired contract.

Failing such agreement, three things can happen:

  • 1) the union can strike, in which case the company can either cease operations or can hire temporary replacement workers to continue operations
  • 2) the company can shut down operations (the “lock-out”)
  • 3) or the company can “implement” its final offer, in which case the union has to choose between striking and working under the terms of that final offer while negotiations for an agreement continue.

In past orchestral labor disputes, the least frequently chosen of these has been the lock-out. The reason appears to be that managements have always tried to avoid the public onus of being the ones to cancel concerts, even when they are actually willing to accept a work stoppage – and managements are far more willing to accept relatively short shut-downs than they would admit, simply because not putting on concerts saves a great deal of money over the short term.

For management to implement their final offer and invite the union back to work under it is often the hardest situation for the union to face. For one thing, it’s  almost invariably an offer the union either previously refused at the table or voted down at a meeting of the bargaining unit. For another, the union will be afraid that the bargaining union will come to accept the implemented offer as making the best out of a bad situation and lose the will to strike and hold out for something better. So even though the obligation to bargain continues in such a situation, the union’s leverage tends to diminish over time. It’s not surprising that many orchestras have ended up striking immediately after faced with implementation – which, of course, puts the public onus of stopping the music squarely on the musicians’ shoulders, whether fairly or not.

That’s what was so diabolically clever about the Detroit management’s ploy, two years ago, to place a far worse offer on the table – for one day – after the orchestra rejected their previous “last, best, and final offer” and then immediately to implement the new offer. The far worse offer included, among other things, the elimination of many protections against termination. If the Detroit musicians had gone back to work under the implemented offer, individual musicians risked being fired by management with no recourse to the procedural protections they had negotiated and lived under for many years. The only rational choice for them really was to strike.

Implementation, though, is not without risk for the employer. One risk, of course, is that the union will indeed return to work, which rather defeats the purpose of the exercise if management really was trying to force a strike. Given that the Minnesota Orchestra management seems to have no enthusiasm at all for putting on concerts while their venue is undergoing an expensive, and well-funded, renovation, they really might have been afraid the musicians were going to spoil the whole thing by continuing to work after implementation.

A bigger problem for management, though, is that labor law only allows implementation if negotiations have reached an “impasse.” While there is both statutory and case law defining just what an “impasse” is in this situation, in the end it’s what the National Labor Relations Board says it is, as unions almost automatically file unfair labor practice (ULP) charges when faced with implementation. (If you’ve ever wondered why your lawyer looks like he/she wants to kill whoever utters the word “impasse” in public, that’s why. Unions never agree that negotiations are at impasse, because doing so undercuts their ULP case.) And the consequences for management of losing such a charge can be quite serious; in the worst case, the company can be forced to pay striking workers what they would have made had they been working.

It’s possible that the boards of the Minnesota Orchestra and SPCO decided that they couldn’t plausibly claim that their negotiations had reached impasse, even though the NLRB rarely finds against managements when they do claim impasse. But it’s not very hard for a good management -side labor lawyer to get his/her client to a point where they can plausibly make that claim and implement, and there seems little doubt that both orchestras would have struck had their managements done so. It sure doesn’t look to me as if either management tried at all hard to maneuver their musicians into striking.

So why didn’t they? Why did both managements/boards choose not to try to place the burden of shutting down concerts on the musicians, and instead take the least attractive course (in PR terms, anyway) of locking out the musicians and making themselves look like the bad guys?

It’s a very curious pair of incidents.

About the author

Robert Levine
Robert Levine

Robert Levine has been the Principal Violist of the Milwaukee Symphony since September 1987. Before coming to Milwaukee Mr. Levine had been a member of the Orford String Quartet, Quartet-in-Residence at the University of Toronto, with whom he toured extensively throughout Canada, the United States, and South America. Prior to joining the Orford Quartet, Mr. Levine had served as Principal Violist of The Saint Paul Chamber Orchestra for six years. He has also performed with the San Francisco Symphony, the London Symphony of Canada, and the Oklahoma City Symphony, as well as serving as guest principal with the orchestras of Indianapolis and Hong Kong.

He has performed as soloist with the Milwaukee Symphony Orchestra, The Saint Paul Chamber Orchestra, the Oklahoma City Symphony, the London Symphony of Canada, the Midsummer Mozart Festival (San Francisco), and numerous community orchestras in Northern California and Minnesota. He has also been featured on American Public Radio's nationally broadcast show "St. Paul Sunday Morning" on several occasions.

Mr. Levine has been an active chamber musician, having performed at the Festival Rolandseck in Germany, the Grand Teton Music Festival, the Palm Beach Festival, the "Strings in the Mountains" Festival in Colorado, and numerous concerts in the Twin Cities and Milwaukee. He has also been active in the field of new music, having commissioned and premiered works for viola and orchestra from Minnesota composers Janika Vandervelde and Libby Larsen.

Mr. Levine was chairman of the International Conference of Symphony and Opera Musicians from 1996 to 2002 and currently serves as President of the Milwaukee Musicians Association, Local 8 of the American Federation of Musicians, and as a member of the Board of Directors of the League of American Orchestras. He has written extensively about issues concerning orchestra musicians for publications of ICSOM, the AFM, the Symphony Orchestra Institute, and the League of American Orchestras.

Mr. Levine attended Stanford University and the Institute for Advanced Musical Studies in Switzerland. His primary teachers were Aaron Sten and Pamela Goldsmith. He also studied with Paul Doctor, Walter Trampler, Bruno Giuranna, and David Abel.

He lives with his wife Emily and his son Sam in Glendale.

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  • I think it’s the success of Scott Walker. He didn’t bother trying to maneuver public sector unions into looking like the bad guys; he just took the public’s temperature and decided he could get away with steamrolling them first, and sadly he was right. Take a look at the comments section of any online article in the mainstream press about any labor situation these days, especially about orchestras. All the old canards are new again: unions are divisive, I’d love to get paid that much for a part-time job, suck it up you’re lucky to have a job at all. Anti-worker and anti-union sentiment is at an all-time high in my lifetime. I think they simply decided that screwing unions no longer makes people angry.

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