The long road to a fair contract with DCINY

Recording Vice President's report

Volume 123, No. 10November, 2023

Harvey S. Mars, Esq.

Harvey Mars (left) with DCINY musicians Cecee Pantikian, Dan Wions, Evgeny Fanuk and Pascal Archer in 2019.

They say a journey of a thousand miles begins with just a single step. Well, the journey to the recently negotiated contract between DCINY and Local 802 began for me in Cooperstown, New York, while I was attending a July 2019 performance of “Showboat,” produced by the Glimmerglass Opera.

I had made the trek there for two reasons. First, I had just settled the collective bargaining agreement between Glimmerglass and AFM Local 380-443 (Central New York). I really wanted to see a production there and listen to the fantastic orchestra. However, I had an ulterior motive. I wanted to talk with several musicians in that orchestra who were involved in the organizing campaign for the DCINY orchestra (see picture above).

These musicians were understandably concerned about the organizing process and how NLRB elections work. I did my best to explain the process to these musicians. They were very concerned about possible retaliation and the consequences if Local 802 failed to achieve majority support. I left that meeting with an uneasy feeling that the election could likely fail.

But it didn’t.

Local 802 was certified by the National Labor Relations Board as the exclusive certified bargaining representative of the instrumental musicians performing for DCINY by a margin of 89 percent on August 16, 2019. This result was achieved by the grassroots efforts of the orchestra committee and the Local 802 organizing department.

Four years ago, we celebrated that hard-won victory. But, in retrospect, winning the union recognition election was the easy part. It’s an unfortunate statistic, but roughly half of the time newly-organized bargaining units fail to achieve a first-time contract. Why? The deck is stacked against the union. Once a certification order is issued, federal labor law gives the parties one year to secure an agreement. If no agreement can be negotiated within that time frame, either the employer or bargaining unit could seek to “decertify,” which would extinguish the parties’ bargaining obligations. Because of this, employers will often stall and delay bargaining in the hope that the year expires, and the bargaining unit throws in the towel.

It was evident initially that this was DCINY’s strategy. Though I didn’t participate in the initial negotiations, I attended several open bargaining sessions in the Local 802 club room, and I witnessed stalling and delay tactics. Bargaining proceeded at a snail’s pace and proposals were made on relatively trivial issues

Then the pandemic happened, and bargaining ceased all together. Carnegie Hall was shut down and DCINY had no venue to perform in. Nonetheless, Local 802 argued that bargaining would not be futile even though the venue was closed. We still could make proposals in anticipation of the resumption of performances. On behalf of Local 802, I filed an unfair labor practice against DCINY, alleging that by not agreeing to schedule bargaining dates, DCINY was not bargaining in good faith. That unfair labor practice charge resulted in a settlement agreement whereby DCINY agreed to meet twice a month to negotiate. The NLRB required as part of that settlement that the certification be extended an additional year, giving us more time to come to an agreement.

Bargaining proceeded again. The musicians held rallies in front of Carnegie Hall once the venue reopened. We protested the fact that musicians were not being hired for DCINY performances and that management was not complying with their status quo hiring practices. More unfair labor practice charges and rallies followed.

Then a slight shift in DCINY’s approach became evident. More of Local 802’s proposals were being agreed to. Nonetheless, several critical issues became a roadblock to settlement. DCINY would not agree on a fair hiring process and was requiring longtime musicians to re-audition. Management claimed that musicians’ skills may have waned during the pandemic! We argued just the opposite was the case. Now that the musicians weren’t performing, they were spending most of their time practicing. DCINY also refused to provide pension contributions for the orchestra and refused to pay for streaming and posting video content.

Negotiations stalled. Even efforts at federal mediation failed. It seemed like we were at a standstill. DCINY made a final offer that was entirely unacceptable.

However, in April 2023, with the assistance of IATSE Local 1 President Mike Wekselblatt, off-the-record discussions took place between Local 802 and DCINY. Though mediation had failed, there seemed to be a glimmer of hope. That belief was short lived, because DCINY refused to budge from their last and final position — and also refused to place their April 2023 concerts under a single-engagement contract, which we had demanded.

After much deliberation, Local 802 and the orchestra committee decided to revise their last proposal. I call this the carrot — rather than the stick — approach. Once we submitted our revised proposal that contained some of the elements from prior off-the-record discussions, bargaining resumed and I developed a strong relationship with DCINY’s lead negotiator Hope Goldstein, a management attorney employed with Vedder Price.

In the end, after several months, we hammered out a good first contract that Local 802 and the musicians can be proud of. It contains wage increases, a fair and transparent hiring practice, pension and health contributions, “just cause” job protections, grievance and arbitration language, streaming payments, a union security clause, and more.

The contract was ratified unanimously on October 23, 2023. Musicians from the newly agreed “hire list” are already being called for DCINY’s November concerts. The strike is over.

Successful negotiations often come out of the relationship between the parties. The better that relationship, the better the chances are of coming to a good outcome. Developing trust and common ground were key here. Furthermore, I strongly believe in a committee driven process. There were many occasions that I agreed to take direction from the committee and allow them free reign in shaping proposals — it’s their contract after all. Developing trust with committee members is equally, if not more important, than developing trust between the negotiators. Yes, we wanted a contract here, but not at the expense of what the musicians themselves wanted and what was in their best interests.

It was a confluence of factors that resulted in this agreement. DCINY management knew that their musicians were not going to relent. Every performance would be met with a rally and protest. (That’s the stick approach!) Successful unfair labor practice charges further advanced the negotiations. The musicians’ and Local 802’s social media and publicity campaigns also had a huge impact.

However, it was the unwavering support of the musicians and their orchestra committee that achieved this result. Had they not been resolute, this negotiation would have failed to achieve a contract.

This is a great victory for Local 802 and its membership. Let’s relish it for a little while — and then win a good deal for the musicians of the New York City Ballet orchestra!

DCINY Orchestra and allies rallying outside Lincoln Center in March 2023