NewsAug 20, 01:39 PM
By: Kevin Case, Partner, Moen & Case LLP
It is a difficult time for orchestra musicians to be bargaining. Managements throughout the country are seeking major concessions on pay, health care, pensions, and work rules. Sometimes those requests are a legitimate response to real problems; other times, managements are just being opportunistic.
It is not always easy to tell the difference, and circumstances will
vary widely from one orchestra to the next. But musician bargaining committees should always be on the lookout for certain jargon that managements like to use during negotiations. Here are a few statements musicians should never take at face value:
1. “We will be able to raise more money if you agree to our proposed concessions.” Sometimes this is more specific, as in “our donors have told us that they are willing to give, but they want to see the orchestra agree to [pay cuts/increased health insurance contributions/changes to work rules] before they will pull the trigger.” More often than not, this is simply untrue – it is a negotiating tactic and nothing more. Donors typically are not interested in the specific details of an orchestra’s labor agreement. What they like to see is stability. But stability can (and should) be achieved by good-faith bargaining to reach a deal that both management and the union can live with. That doesn’t necessarily require concessions. Donors want to see that a deal gets done; beyond that, most couldn’t care less whether the orchestra gets a 3% raise in the third year instead of a 2% raise, or whether the musicians contribute 10% or 15% to their health insurance premiums.
One way to counter this tactic is to ask for specifics: which donors want to see concessions; what specific concessions are they asking for; and why do they say those concessions are so important to them. Chances are, such specifics will not be forthcoming (because they likely do not exist).
2. “The musicians should pay the same amount for their health plan as our staff does. It’s a matter of fairness.”
This is not a new argument – employers have been making it for decades. It arises from a legitimate concern: when pressed to save costs, employers feel limited in how much they can cut at the top (the CEO) and bottom (unionized employees). Those in the middle (administrative staff) often get squeezed.
But in the end, this is an apples to oranges comparison. “Fair” does not equal “same.” Unionized employees collectively bargain for pay and benefits; non-union staff typically are presented with a benefits package as a take-it-or-leave-it proposition. The result will always be different. In some respects the union ends up with the “better deal”, and in some respects it does not. That’s simply the nature of the beast. It has nothing to do with fairness; and if it did, there are plenty of fairness-based
arguments on the musicians’ side (perhaps beginning with the salaries and benefits of top management). In the end, such comparisons to non-unionized staff are simply irrelevant and should be disregarded at the negotiation table.
3. “The board is upset by your demands.” This smacks of paternalism. It conjures up an image of kind-hearted do-gooders
who are graciously trying to take care of their musician-children, and who can’t understand why the big bad union is being so darn mean. In reality, today’s board members are sophisticated business people who are accustomed to dealing with unions, and who in their own careers have likely demanded (and received) lucrative compensation packages of their own. Their feelings will not behurt if the musicians ask for a raise, or stick to their guns on proposals that can be readily justified. In short, they understand that this is business. Musicians should understand that as well – and always remember that when you sit down to negotiate with management,you are there as equals, not as supplicants.
Moreover, in many orchestras, the full board has little involvement with (or interest in) CBA negotiations until the very end of the process. Often a subcommittee of just a couple of board members deals with the issue. In addition, the only information the board typically receives during negotiations is that which has been relayed by management’s negotiating team. Everything the board hears of the musicians’ positions and arguments has gone through a filter and been subjected to significant spin.Here’s one possible response to this tactic: invite management’s negotiating teamto bring any board members who are upset or concerned to the next bargaining session, so the musicians can explain their proposals and their justifications.
The subject will likely then be dropped.
4. “This town can only support a $[xx] million orchestra.”
We are hearing this a lot these days – as one board chairman recently stated to the newspaper, “we have an $8 million orchestra in a $7 million town.” (By mysterious
coincidence, the difference between [xx] and an orchestra’s actual budget often represents the amount that management is seeking in pay cuts and other concessions from the
musicians. Imagine that.) There are sound reasons to question statements such as these. At a fundamental level, they represent backwards (and lazy) thinking. No one succeeds at
an endeavor by aspiring only to achieve what he or she has predetermined can easily be done. (Lowering the basketball rim certainly makes it easier to dunk, but the end result is not much of an accomplishment.)
Moreover, once an artificial limit is imposed regarding what kind of orchestra can be safely and easily supported, then the task becomes to constantly cut, cut, cut to stay within that limit. That is a surefire recipe for failure.
One way to counter this sentiment – besides pointing out how wrong-headed it is – is to relentlessly probe for information. Ask management’s negotiating team how the orchestra determined that [xx] is the upper limit. If studies were conducted, demand to
see them. If management hands over charts and graphs, ask for the supporting data; if the data is vague or generalized, demand specifics. Hold management’s feet to the fire regarding what fundraising approaches it has tried, what worked (and didn’t), and what it hasn’t yet tried (and why not). In the end, maybe you’ll be convinced that what management is saying is true; but more likely, it may become evident that the purported
“cap” is wholly fictional and nothing but an excuse to take the easy way out.
5. “A rising tide lifts all boats.” This is usually said in conjunction with a request for concessions to “right the ship” (more nautical imagery), and vague promises that the resulting financial success will translate into raises for everyone down the road. In short, the message is, “agree to take
cuts now, and we’ll make up for it the next time when things are better.” Don’t buy it. When the agreement expires three or four years down the road, it won’t matter what was said at the last negotiation, and it won’t matter how much the musicians sacrificed last time. All that will matter is where the organization is at that time, and where it wants to go. (It is sometimes said that unions have memories like elephants; managements’ memories are often much shorter.)
Moreover, the sad fact is that once musicians agree to take major concessions in a contract negotiation, it becomes highly unlikely that they will receive a better offer the
next time around. Management has now seen that the musicians are willing to take cuts and continue working; thus, there is no incentive to offer anything more. The musicians can try to convince management that they won’t take further cuts, but having taken them once, it is that much harder to prove it. None of the above is meant to suggest that musicians should never take concessions in negotiations. Sometimes that is unavoidable. But always verify; be satisfied that the problems that management identifies actually exist; question the narrative that management puts forth until you are convinced that it is accurate. And recognize the industry jargon for what it is.
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