Why the Louisville plan will fail

It’s taken this long for people in the orchestra business to really come to grips with what appears to be the reality of the Louisville situation, which is that the Louisville Orchestra is now run by people who are the board and management equivalents of Dr. Strangelove. This, I think, is because no one could believe that a board and management of a major American orchestra would see hiring replacement workers for striking or locked-out musicians as a viable business strategy (it’s been threatened on a few occasions, but that’s a negotiation strategy, and not one that’s proven successful, most recently in Detroit).

So either the near-universal view of industry professionals about replacement workers is right, or the folks in Louisville are going to teach us all something we didn’t know. My vote is on the former.

It’s important to remember that this has never been tried before by an American orchestra management. That’s not for legal reasons; American employers are free, under American labor law, to hire replacements for workers locked out or on strike. That doesn’t end the employer’s obligation to bargain with the union, but it obviously makes it more or less moot for practical purposes. So we really are in uncharted waters here.

There are three questions that have always needed answering to figure out if a replacement strategy can work. They are

• Can they hire an orchestra?
• Can they get people to conduct it and solo with it?
• Will audiences and donors support it?
• What happens when the replacement musicians vote to unionize?

In the case of Louisville, there is a fourth question: what will the AFM-EPF do?

The answers to all these questions are tied to the same underlying reality, which is that unions and unionized workers loathe replacement workers. Crossing a picket line to take the job of someone on strike or locked out is the only truly deadly sin for trade unionists. The term of art for people who do that – and it’s a deliberately ugly one – is “scabs.”

Orchestra musicians, I believe, will feel especially strongly about this, as the potential use of replacement workers is an existential issue in orchestras even more than it is in most unionized workplaces. Orchestra musicians, after all, work most of their youth to learn their craft – one that is not very useful outside the music business – only to have to compete against crowds of other equally dedicated musicians in order to win their jobs. Once they win those jobs, the only protection they have against arbitrary dismissal and the loss of their careers is the collective bargaining agreement between their union and their employer. And the only real power they have in protecting that agreement is that managements have never thought it feasible, or at least prudent, to go the route that so many employers in other American industries have gone during labor disputes – hiring replacement workers.

A successful outcome for the LO management would irreparably break through this final safeguard for musicians. Nothing short of simply banning unions would so alter the power balance in orchestral negotiations as would musicians believing that the threat of being replaced during a labor dispute was real. And this, I believe, will be obvious to every single member of every North American orchestra once Tsar Bomba is actually unleashed in Louisville.

So one needs to view the possible responses of the AFM and its members in orchestras in light of this being, in their view, the functional equivalent of Armageddon. Anyone associated with the effort to replace the LO musicians will be on the wrong side of that battle. In an industry where every employer has to deal with the AFM, and where the opinions and goodwill of the unionized workplace matter, this is a big deal.

Can the Louisville management put together an orchestra in the face of what will be an all-out campaign? It’ll be very hard. There may be a handful of current LO musicians who will return the management letter, although it wouldn’t surprise me if none did. No one their can have much faith in their management’s ability to execute anything competently at this point. And anyone doing so will have to know that their future career as an orchestral musician is entirely in the hands of the board and management who created this mess in the first place – because their chances of a successful future in any other orchestra, or the Louisville Orchestra should the management’s bet prove unsuccessful, are slim.

So management will have to find what amounts to a new orchestra. Auditions will be problematic; it’s hard to keep auditions secret, and any auditions known to the AFM will be picketed, probably by the most prestigious players and teachers the AFM can convince to come and walk an informational picket line. The identity of musicians auditioning to be replacements will inevitably come to be known and will be widely circulated, whether hired or not. How many musicians will want to audition in that situation, where they will risk the enmity of everyone they might work with in any other orchestra in North America by doing so, is a question only experience can answer.

If the Louisville management finds 50 musicians willing to risk being persona non grata in every other American orchestra for years to come, they’ve still got to get someone to conduct it and find a roster of guest artists willing to perform with them. The experience of Sarah Chang in Detroit and Roberto Minczuk everywhere else will inform the decisions of conductors and managers. Those experiences were not positive.

It’s worth noting that neither what Sarah Chang almost did in Detroit or what Minczuk did do to the Orquestra Sinfônica Brasileira rises to the level of existential threat to musicians as does what’s proposed in Louisville. I don’t see how anyone looking to gain or maintain a career that involves conducting or soloing with American orchestras will touch Louisville with a 10-foot baton or bow.

Will audiences for the new orchestra care? I think they’ll care that every concert of the new orchestra will be picketed. People don’t go to concerts wanting to be involved in a labor dispute, after all. In most labor disputes, the end customer is pretty removed from the actual on-the-ground unpleasantness of picket lines and leaflets. That’s not how it’s going to play out in Louisville. And, in my experience at least, funders are almost as reluctant to get involved in controversial situations.

The ultimate irony, of course, is that the replacement musicians are likely, sooner or later, to do what orchestra musicians everywhere do, which is to unionize. Not only are orchestras the purest possible breeding grounds for trade unionism, being essentially feudal estates in the absence of any external restraints on the powers of management and conductor, but it’s likely that the LO board and management will prove as inept as making good on their obligations to the replacement musicians as they have in every other respect. It may not be the AFM that the replacement workers join – and I’d hope the AFM wouldn’t have them – but, as far as a union-free paradise for management goes, that doesn’t matter. I know that if I were working in an orchestra whose management had fired all its previous musicians, and I also had good reason not to be very sanguine about the chances of getting hired by any other orchestra, I’d sure be thinking about job security. In this business, that means having a union.

The unique kicker in the Louisville situation is the potential role of the AFM-EP Fund. The Louisville Orchestra, as an employer, is still a signatory to the Fund. Either they will have to continue to make contributions to the Fund for their new musicians or they’ll have to pay a multi-million dollar withdrawal penalty. They won’t want to do either, of course. And it may be that the Fund will interpret their doing away with the CBA as what might be called “constructive withdrawal,” triggering that multi-million dollar withdrawal penalty, which very likely would sink the institution. In normal circumstances, the Fund’s trustees would be very reluctant to pull that trigger; the union-side trustees, at least, didn’t become trustees in order to put employers of musicians out of business. But this situation is different, and would likely lead to a very different approach by the Fund.