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Through the worm hole

0 Robert Levine

The management and board of the Louisville Orchestra have apparently transported themselves to an alternate universe - one without unions, labor law, or audiences:

Citing a breakdown in negotiations with its musicians, the Louisville Orchestra said Monday that it would “begin the process of hiring permanent replacements for our musicians” as early as next week.

Earlier in the day, the orchestra’s labor attorney, James U. Smith III, sent a letter to musicians saying the orchestra had decided it would continue with a “maximum permanent core of no more than 50 contract musicians” - down from the 55 discussed as late as last week.

During a telephone call Monday afternoon, orchestra CEO Robert Birman outlined management’s next steps.

“We’ve sent out a letter today to the players, and they each have until next Monday to decide if they want to preserve their positions,” he said, adding that if musicians “come forward with a proposal that fits within the economics, there’s no doubt that we will consider it.”

Kim Tichenor, a violinist and head of the musicians’ negotiating committee, said she sees the recent turn of events as the end of the musicians’ careers with the orchestra.

She said musicians were willing to agree to a drop to 55 musicians through attrition and had believed that mediator Ralph Craviso “had come to an agreement with (orchestra board president Chuck) Maisch on this point.”

“We thought what we needed, as directed by the mediator, was to get some of the larger issues out of the way and then we would be able to negotiate the finer points,” Tichenor said.

But during negotiations this past weekend, she said, she got a notice from orchestra management saying that the musicians had to agree to all terms outlined in an Oct. 19 letter or the orchestra would seek replacement musicians.

Tichenor said Friday that the musicians had concerns about the terms in the letter, including a proposal prohibiting them from working for what management considers competing organizations, and orchestra management’s suggestion in the letter that it reserves the right to pull out of the American Federation of Musicians and Employers’ Pension Fund.

Henri Mangeot, executive director of the Louisville Labor Management Committee, said he was surprised by the breakdown in negotiations and management’s new contract proposal of 50 musicians.

Where does labor law come in? The retraction of the offer of 55 musicians, after the musicians had agreed to it, is arguably regressive bargaining - a practice barred by Federal labor law. The fact that the mediator was willing to say publicly that he was “surprised” by management’s proposal of 50 musicians is strongly suggestive that a good case can be made that LO management violated the law - for a mediator to say anything critical of one side so publicly is about as common as iceberg sightings on the Amazon River.

The LO musicians have concluded that the board’s attorney is largely at fault:

…by Saturday afternoon, Maisch and Tichenor’s informal agreement was seemingly revoked by management lawyer James U. Smith III.  Saturday, Smith wrote Tichenor to communicate that since his previously established deadline of 4 p.m. Friday had not been met, Smith considered the musicians to have rejected the proposal for 55 musicians. On Sunday, Maisch withdrew his prior conditional agreement in a letter to Tichenor.

Monday morning, Smith notified the musicians that the management’s offer had been further cut, from 55 musicians to only 50 musicians, and forbade any communication between the musicians, and board members or Louisville Orchestra administrators.

To Tichenor, Smith has hijacked a community institution and thwarted the process that weeks of intense mediation has produced.  “If we want to negate the actions and desires of a community board given stewardship over a community institution, let’s not confuse the matter and call it the Louisville Orchestra,” Tichenor said.  “Mr. Smith seems willing to destroy a great cultural entity. He wants to strip of our dignity a tiny group of union members by offering a pittance and then pulling that pittance away from us.  The bottom line is that the citizens of Louisville shouldn’t be made to pay to bolster his firm’s union-busting reputation.”

It is entirely plausible that a management-side labor lawyer could so badly misread the orchestra industry as Smith has done. The orchestra industry is different in many ways from the workplaces that union-busting lawyers are paid to make unionfrei.

First of all, the union represents almost all of the current employees throughout the industry. Second, and more important, unionization is strongly supported by those employees. Thirdly, the American orchestral workplace is truly national; anyone who associates themselves with a replacement Louisville Orchestra, in any way, will find themselves regarded everywhere as having committed what, for trade unionists, is the only truly mortal sin - working with scabs.

Then, of course, there’s the little problem of attracting audiences. It’s true that, in most businesses, a picket line is not a huge problem for management. Unions can legally only picket the employer being struck - which, for a company that makes, say, computer widgets, is not a huge problem in terms of customers, as customers don’t usually see the picket lines. Businesses where the customers can’t avoid seeing picket lines, like airlines, are more sensitive to the problem, of course - although most people go to the airport expecting lots of unpleasantness anyway.

But orchestras are unusually vulnerable to picket lines. People go to concerts in order to enjoy themselves. Most of them will not relish dealing with any hint of conflict while on a night out - especially when that conflict is in the form of musicians who they have seen countless times on stage asking them not to support their being unemployed.

There have been previous indications that management and their lawyer were not only attracted to the idea of replacement musicians but were minimizing the difficulties involved. In most industries, such practices are not unusual, and, as the decline of American unions shows, have been effective in reducing unionization. It’s probably all too easy to find a management-side labor lawyer willing to overlook the differences between his past successes in ridding managements of unions and what might happen when the same techniques are applied to the orchestra business.

Regardless of the actions of their lawyer, of course, the board of the Louisville Orchestra is ultimately responsible for the actions of those they employ to run the orchestra. But it is telling that one board member has already resigned and the rest have been barred by the orchestra’s attorney from talking to the musicians. It all lends credence to the sense that the Louisville Orchestra is not currently controlled by people who regard themselves as stewards of a community asset.

A wise historian (it might have been A. J. P. Taylor, but I can’t find the reference at the moment) once wrote that, once wars start, the combatants’ original war aims went out the window and were replaced by the simple goal of  “imposing one’s will on the enemy.” It’s a shame that the Louisville Orchestra is led by people who view that as a feature and not a bug.

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