Effective collective bargaining during a pandemic

Legal corner

Volume 120, No. 7July, 2020

Harvey Mars

How can we engage in effective collective bargaining negotiations during a pandemic when there is no real possibility that live performances will resume anytime soon? This is a question that haunts me morning, noon and night. My first inclination is to respond that bargaining is not possible in this environment and stave off the urge to engage in negotiation. After all most orchestra managements are justifiably seeking concessions, work is being cancelled and contract terms are being extinguished through the invocation of force majeure contact terms. If a building is burning, I do not recommend that anyone who is not a fire fighter enter it. Many buildings are now burning.

Nonetheless, I recently viewed an interview with the renowned “orchestra turn-around king” Michael Kaiser that was posted on the internet that has given me a new perspective on this crisis, which I think might led to effective bargaining and the development of contractual terms that will take into account not just the immediate crisis, but what will likely occur when it ceases. The fact is while there currently is an existential crisis occurring in the performing arts, many orchestra managements are so focused on the impact of COVID 19 that they may be losing sight of the forest for the trees. The great likelihood is that when the COVID 19 crisis is over many if not most people will return to the concert halls and theatres with a vengeance. My own belief is that when the crisis is over the demand for live performances will exceed any that we have seen before. Management must be prepared for this event though it may be months away.

It may be hard to fathom now, but I think that it is human nature to crave that which it has been denied. When I was growing up in Brooklyn in the 1970s there was a huge influx of Russian emigres into Brighton Beach. Many of them came to the United States to escape political and religious persecution just like many of us and our relatives did. One aspect of these refugees that struck me most is that they partied on the streets every day and night. They opened night clubs and discos and were up till all hours of the morning. It was as though they relished their newly found freedom more than anything they had ever valued before. When this crisis is over (and it will be at some point in time), we will all be like these Brighton Beach immigrants grasping with both hands onto everything that has been denied to us during the lockdown. Like Mr. Kaiser I believe that there will be a huge cultural Renaissance. We should not let our current horrific circumstances deny us the ability to take advantage of what the future likely holds in store.

Several employers that I am presently negotiating with are using COVID 19 as a bargaining tool to exact concessions that were not previously achievable. The same phenomenon occurred after 911. However, it is much more pronounced now. In my mind these employers lack the bold vision of a future where live performances are even in more demand than they were pre-COVID 19. For that reason, I encourage bargaining committees to be focused on the long term. Concessions are necessary now as a means of survival for many employers but I believe that there will be a huge resurgence of the arts soon. For that reason the concessions that are granted now should to the extent that it is possible be attached to rehabilitation in future years. Longer term agreements might be necessary to achieve that goal so that advancements can be built into the agreement. Concessions should come at a price to those who seek them.

Another take away from the Kaiser interview is that there is presently now an unwarranted emphasis on electronic media. One employer I have negotiated with even went so far as to say that they had now been transformed into a media company as a result of Covid 19. My own opinion is that electronic media can never adequately replace live performances. When people can start attending live performances again they will. New media agreements that are intended to replace live performances should be short lived at most.

Finally, electronic media, while preserving a connection between the audience and musical performances they cannot attend, should not be used as a substitute for live one and one community outreach with patrons and donors. Convincing donors to contribute to an organization requires one on one contact and connection. Management should take the time to reconnect with their patrons to demonstrate that they care and that they intend to survive this storm. Media is only one of many outlets available for performing arts to demonstrate relevance.

Rather than a doom and gloom scenario, it would be better if we approached Pandemic bargaining as an opportunity for growth and resurgence.

Links to the Kaiser interview follow: