Delegates to the 2004 International Conference of Symphony and Opera Musicians (ICSOM) gathered in Salt Lake City for four days of seminars, educational workshops, reports and sharing of information. The keynote speaker was Henry Fogel, president and CEO of the American Symphony Orchestra League.

The conference, entitled “We have seen the future and it could be us,” focused on various subjects including musicians and governance, digital downloads, CARP, collective bargaining, “structural deficits,” and the duty of fair representation.

Tina Ward (St. Louis Symphony) and Robert Wagner (New Jersey Symphony), recipients of an Andrew W. Mellon Foundation grant to study artistic leadership in orchestras, presented their study “Explorations of Teamwork: The Lahti Symphony Orchestra.” The Lahti Symphony Orchestra, from Finland, is an example of what can be achieved when management and musicians engage in meaningful and productive discussions.

Other panelists, Paul Ganson (Detroit Symphony), Bruce Ridge (North Carolina Symphony), Ken Harper (Colorado Symphony) each spoke about musician participation in governance within their own orchestras.

A RADICAL EXPERIMENT IN ST. PAUL

Clearly the radical and controversial experiment in governance at the St. Paul Chamber Orchestra (SPCO) generated the most discussion.

The structure of the SPCO raises many questions. In an effort to inform the delegates and clarify just what these musicians have created, Gary Bordner and Carole Mason, musicians from the SPCO, explained how the agreement came into being.

And for the first time in the history of ICSOM, both an orchestra’s president (Bruce Coppock) and board chairman (Lowell Noteboom) made separate presentations to the delegates about the SPCO’s experiment.

What’s so different about the SPCO contract and why all the controversy?

The negotiation process was a cooperative effort between management and the musicians. The end result produced new committees such as an Artistic Personnel Committee and an Artist Vision Committee.

With the formation of these committees, musicians play a significant role in what have always been considered to be functions of management.

For instance, they are directly involved with management in the disciplining, hiring and firing of musicians.

They are also involved in the programming of concerts, choice of soloists and touring decisions.

The lines defining the roles of management and musicians have blurred considerably in the SPCO agreement.

The reason why this agreement raises so much concern is that U.S. labor law has strict guidelines as to what defines a management supervisor and what defines an employee (i.e. a musician).

The current management of the SPCO has clearly said that they will not challenge the musicians’ employee status and, in fact, has committed to this in writing in the agreement.

Nevertheless, should a future president or executive director challenge this status, the NLRB would ultimately decide musician status based on the facts. The intent of both parties may have little influence on the Labor Board and could result in the musicians losing their employee status.

Why is it so important for musicians to maintain this employee status? If it were to be determined that the musicians no longer qualified to be employees and their work determined to be managerial, they would lose the right to be represented by the union.

This would severely weaken the musicians’ ability to negotiate and would ultimately turn the clock back to the days when musicians did not benefit from union membership and the power it brings to the negotiating table.

Is this really a possibility, or is the union merely being an alarmist?

An actual case, which was appealed, ultimately resulted in a decision that faculty at Yeshiva University who perform duties such as determining admissions to the university, disciplining, hiring and firing faculty were actually performing functions of management and were determined to be managerial. This resulted in those teachers losing their employee status and their right to be represented by the union.

GETTING DOWN TO DETAILS

Leonard Leibowitz, legal counsel to ICSOM and Local 802, conducted two engaging seminars, “The Orchestra Committee: Duty of Fair Representation and Beyond” and “Countering the ‘Structural Deficit’ Argument.”

Unions — and, by extension, orchestra committees — have a legal obligation to represent all members equitably.

Arbitrary and capricious decisions that result in a decision not to represent a union member could lead to a failure to fairly represent charge brought against the union. Leibowitz presented several hypothetical scenarios illustrating the concept of duty of fair representation and under what circumstances a union might be vulnerable to this charge.

A term commonly used by management during the negotiation process is “structural deficit.” Leibowitz defined what is meant by structural deficit and explained how the use of this term amounts to nothing more than a diversion used by management. If financial compromises must be made in a negotiation, rehabilitation of the contract should occur during the same term of that contract.

A workshop on collective bargaining conducted by Paul McCarthy, consultant to labor unions and their members, had all in attendance engaged and attentive. He began by having everyone rub the palms of their hands together very rapidly and asked, “What is happening?”

As one might expect, the delegates responded with “friction” or “heat.”

“Exactly” said Paul “Friction tends to heat things up. It gets the molecules moving. That’s exactly what you need to do in a negotiation — make things happen, create some heat. If you sit back and only bring the nice, gentle soul to the bargaining table, little will happen.”

McCarthy explained that an involved membership is critical to the success of the bargaining process, through leafleting and letting the public know in every way possible that respect and fairness are what everyone wants in their professional life.

We all deserve a decent living wage, job security, payment for services rendered, health insurance for our families and a pension so one can retire at the end of a career with dignity. Our needs are no different than that of any working person. We need to speak up and make our case to all that will listen. Management has never offered these things willingly. Only the battles and major sacrifices of those activists who came before us have gotten us to where we are today, but the struggle continues.