The curious incident of the Boards in the night-time

These have been dreadful times for the musicians of the orchestras at the epicenter of the current epidemic of radical salary-slashing. Those orchestras’ audiences have been affected too, as have businesses in the areas around the concert halls.

For students of labor relations, though, these have been very interesting days. No doubt pathologists during the Black Death, had there been such people, would have said the same thing while simultaneously wondering when the pestilence was going to arrive in their towns. But they would have continued to find their work fascinating, if grim, and to pass on what they learned about it before they, too, became statistics.

So, in that spirit, I wanted to write about one of the most curious “incidents” of the current debacles in the Twin Cities. It’s akin to the “curious incident of the dog in the night-time” cited by Sherlock Holmes. Dr. Watson, you might remember, replied “but the dog did nothing in the night-time,” to which Holmes made the immortal rejoinder: “that was the curious incident.”

Why did both orchestras lock out their musicians, rather than implement their proposals and have the musicians strike over that?

Labor negotiations conducted under the National Labor Relations Act can, at the expiration of a contract, proceed along several different lines. The company and union can, of course, reach agreement on a new contract. If they don’t, the parties can continue to negotiate while the employees continue to work under temporary terms to which the company and union agree – usually, but not necessarily, the terms of the expired contract.

Failing such agreement, three things can happen:

• 1) the union can strike, in which case the company can either cease operations or can hire temporary replacement workers to continue operations
• 2) the company can shut down operations (the “lock-out”)
• 3) or the company can “implement” its final offer, in which case the union has to choose between striking and working under the terms of that final offer while negotiations for an agreement continue.

In past orchestral labor disputes, the least frequently chosen of these has been the lock-out. The reason appears to be that managements have always tried to avoid the public onus of being the ones to cancel concerts, even when they are actually willing to accept a work stoppage – and managements are far more willing to accept relatively short shut-downs than they would admit, simply because not putting on concerts saves a great deal of money over the short term.

For management to implement their final offer and invite the union back to work under it is often the hardest situation for the union to face. For one thing, it’s  almost invariably an offer the union either previously refused at the table or voted down at a meeting of the bargaining unit. For another, the union will be afraid that the bargaining union will come to accept the implemented offer as making the best out of a bad situation and lose the will to strike and hold out for something better. So even though the obligation to bargain continues in such a situation, the union’s leverage tends to diminish over time. It’s not surprising that many orchestras have ended up striking immediately after faced with implementation – which, of course, puts the public onus of stopping the music squarely on the musicians’ shoulders, whether fairly or not.

That’s what was so diabolically clever about the Detroit management’s ploy, two years ago, to place a far worse offer on the table – for one day – after the orchestra rejected their previous “last, best, and final offer” and then immediately to implement the new offer. The far worse offer included, among other things, the elimination of many protections against termination. If the Detroit musicians had gone back to work under the implemented offer, individual musicians risked being fired by management with no recourse to the procedural protections they had negotiated and lived under for many years. The only rational choice for them really was to strike.

Implementation, though, is not without risk for the employer. One risk, of course, is that the union will indeed return to work, which rather defeats the purpose of the exercise if management really was trying to force a strike. Given that the Minnesota Orchestra management seems to have no enthusiasm at all for putting on concerts while their venue is undergoing an expensive, and well-funded, renovation, they really might have been afraid the musicians were going to spoil the whole thing by continuing to work after implementation.

A bigger problem for management, though, is that labor law only allows implementation if negotiations have reached an “impasse.” While there is both statutory and case law defining just what an “impasse” is in this situation, in the end it’s what the National Labor Relations Board says it is, as unions almost automatically file unfair labor practice (ULP) charges when faced with implementation. (If you’ve ever wondered why your lawyer looks like he/she wants to kill whoever utters the word “impasse” in public, that’s why. Unions never agree that negotiations are at impasse, because doing so undercuts their ULP case.) And the consequences for management of losing such a charge can be quite serious; in the worst case, the company can be forced to pay striking workers what they would have made had they been working.

It’s possible that the boards of the Minnesota Orchestra and SPCO decided that they couldn’t plausibly claim that their negotiations had reached impasse, even though the NLRB rarely finds against managements when they do claim impasse. But it’s not very hard for a good management -side labor lawyer to get his/her client to a point where they can plausibly make that claim and implement, and there seems little doubt that both orchestras would have struck had their managements done so. It sure doesn’t look to me as if either management tried at all hard to maneuver their musicians into striking.

So why didn’t they? Why did both managements/boards choose not to try to place the burden of shutting down concerts on the musicians, and instead take the least attractive course (in PR terms, anyway) of locking out the musicians and making themselves look like the bad guys?

It’s a very curious pair of incidents.