Louisville Courier-Journal, July 11, 2011, Monday

Louisville Courier-Journal

July 11, 2011, Monday

Louisville Courier-Journal

Louisville Orchestra offer hits sour note with players

The discord between the Louisville Orchestra and its musicians reached new levels Monday as the players said they would unanimously reject a blunt offer from the orchestra's management to perform on a “per-service model” or risk losing their positions.

In a six-page certified letter sent to each musician last week, orchestra CEO Robert Birman outlined a schedule of performances and rehearsals running from September through April and asked the players to indicate which ones they were willing to work.

According to the letter, if musicians do not respond by Wednesday, it “will be treated as a voluntary refusal to work.” Birman added that in such an event, “the Louisville Orchestra will take whatever steps are legally appropriate to fill your position.”

But Kim Tichenor, a violinist and the chairwoman of the players' negotiating committee, said Monday that the musicians would not agree to those terms.

“We're not planning to turn in the letters that we had received,” Tichenor said. She added that the musicians are still working on an official response to the orchestra's management.

The orchestra filed for Chapter 11 bankruptcy in December and is working through reorganization plans in federal bankruptcy court. It and the musicians have not had a contract since their previous collective bargaining agreement expired May 31.

Although Birman said Monday that the orchestra would continue to negotiate a new contract with the musicians, the proposal in his letter covers the 2011-12 season.

In negotiations, management has sought to cut the number of working weeks from 37 to 30 and fundamentally change how musicians' contracts are structured. It has proposed to employ 71 musicians, but under a staggered system in which only 40 would work the full 30 weeks. The other musicians would be employed for either 10 or 20 weeks per year.

The musicians disapprove of that plan.

Birman's letter states that a musician who indicates a willingness to perform but has an unexcused absence will lose his or her job because of “abandonment of your employment.”

The “end note” in the letter that Louisville Orchestra CEO Rob Birman sent musicians last week indicates that rather than a salary, musicians’ would be paid for any of the 159 rehearsals or performances for which they are chosen to work. For each, which are scheduled to last two and a half hours, a musician would receive $115.62. If a musician were selected to perform all 159 services offered, he or she would receive $18,383.58, and no benefits.

In May, orchestra management had offered the musicians a contract with three tiers of pay associated with specific amounts of work. Under its terms, musicians who work 30 weeks would receive $27,748 per year. Those working 20 weeks would bring home $18,499, and those under the 10-week contract would earn $9,250.

Under their former contract, the musicians received a base pay of $34,200 annually, along with a benefits package.

Although the musicians appeared ready to dismiss the offer this week, the orchestra's labor attorney, James U. Smith III, emphasized Monday what could happen if they don't agree to it.

“We could cancel performances. We could seek to hire musicians to play,” he said. “We haven't decided on a specific course of action.”

Richard Hurd, a professor of labor relations at Cornell University, said the letter — sent directly to the musicians and not through the players' association — could cause a profound power shift in the relationship between the sides.

“This really gives management tremendous control over the operation of the orchestra for a year because it lists every performance and rehearsal for the next year,” he said.

Under federal labor law, management is not allowed to offer to deal directly with union members — unless it clearly has the union's permission.

In a conference call Monday, Birman and Smith said a June 16 letter from Tichenor provided that permission. Tichenor said Monday that the orchestra was taking the letter out of context.

The letter was part of a series of correspondence discussing how the two sides might perform the scheduled summer concerts without a collective bargaining agreement in place, according to Smith.

“It is up to the individual musicians to decide whether to accept or reject your offer of work,” Tichenor wrote in the letter, which was copied to Irwin H. Cutler, the attorney representing the musician's union, and Joe Spain, president of Louisville Federation of Musicians Local 11-637.

Hurd said the musicians could contend that Tichenor's written statement was wrongly interpreted.

“If management is overstepping whatever agreement it had with the union, the union could file a complaint” to the National Labor Relations Board, he said, adding that whether the board upholds it would depend on the discussions that have gone on between the union and management.

Cutler said the musicians have no plans to file a complaint with the labor board but it would “be something we would have to look into.”

Instead, Cutler questioned whether the nature of the work offered is suitable for the caliber of the orchestra's musicians — or even whether it meets industry standards, “with no benefits, no pension contributions, no health insurance, no instrument insurance.”

Meanwhile, representatives from both sides said they want to continue negotiations to reach a collective bargaining agreement.

Last week, both parties met with a federal mediator appointed by the Federal Mediation and Conciliation Service, a move that U.S. Bankruptcy Judge David T. Stosberg encouraged during the most recent bankruptcy hearing two weeks ago.

Hurd emphasized that the mediator's role is to work to improve communication between the sides.

“If the two sides are totally locked into their positions and totally unwilling to ever change, then a mediator's worthless,” he added.

He said that an arbitrator could be brought in for a contract dispute like this only if both sides agreed that he or she would decide the outcome, which he said appears unlikely in this situation.

“But they are in bankruptcy court and that does change things, since the bankruptcy court has power to make things happen … ,” Hurd said. “The judge's decisions are based on the economics.”

Drew McManus, a Chicago-based consultant who has worked with orchestras across the country, said he thinks the letter is one indication that “any kind of resolution in a quick sense” is even more unlikely than before.

“There is no good outcome,” he said. “There's just the conversation of how bad will it be when it's done.”

McManus even speculated that there might not be a 2011-12 season.

“Then it's real easy for an organization to drop out of everyone's minds — not just ticket buyers, but the larger community as well,” he said.

Reporter Elizabeth Kramer can be reached at (502) 582-4682.