What we should hope isn’t next for Minnesota

There was a flurry of press reports last week on the state of the Minnesota Orchestra lock-out; most about the apparent involvement of George Mitchell as mediator. Norman Lebrecht also reported on some back-and-forth between musicians and management, although other reports disputed the accuracy, or at least completeness, of what he’d written.

Since then, there’s been nothing, which is encouraging. At this point, no news is definitely good news, as it suggests that there are ongoing discussions in which both sides are invested and believe could result in a settlement.

The concert of “best alternative to a negotiated settlement,” or BATNA, is important to understand why serious negotiations might finally be happening. In short, the worse the alternatives to settling are, the more likely is a settlement (assuming, of course, rational actors on both sides).

One problem for this negotiation from the beginning is that, for a long time, the best alternative to a settlement for management, which was the management-imposed lockout, was actually pretty good for them. It got them out of putting on concerts in a venue that was going to be a hard sell to their ticket-buying public while providing the musicians sufficient income in the form of unemployment compensation that they didn’t feel enough pressure to make a deal with management on anything approaching management’s terms. Normally having the musicians get unemployment compensation during a work stoppage would be what software developers would call a major-league bug; this was the rare situation when it was actually a feature. (In fairness, there are other explanations for management’s decision to lock out the musicians, rather than make them a last and final offer that they would have to reject and thus have to go on strike.)

But that was bound to change when the renovations to Orchestra Hall were finished. Certain management statements recently suggest that, while management didn’t mind not putting on concerts during the renovation, they’re becoming worried about having their shiny new toy sit on the shelf unused because the musicians didn’t cave according to the management schedule. And Vänskä’s very public threat to leave town is probably concentrating their minds as well on the costs of staying the course; while it’s certain that they wanted a much cheaper orchestra, it’s unlikely they really wanted that orchestra without him, or someone like him, at the helm.

So the current BATNAs likely looks much worse to management than they did a year ago. It’s likely that they look worse to the musicians as well; a year ago, the alternative was to hold out for meaningful negotiations. After a year of management not making any move in that direction, the members of the orchestra are not in the financial condition they were a year ago. And Vänskä’s threat weighs with the musicians as well as management.

So there is reason to hope that the incentives are finally sufficiently aligned that negotiations will succeed in reaching a settlement before the season was set to open in the fall. But, if not, it’s probably worth running through what the real alternatives to a negotiated agreement are to both sides. – recognizing that this dispute has become, because of its length and because of the size and past success of the institution, a unique phenomenon in our industry, and one to which past guidelines may no longer apply.

For the musicians, I see four alternatives: hang on, cave to management’s demands for a $5 million annual cut in orchestra compensation, try to replace the current leadership of the Minnesota Orchestra with a group they can make a deal with, or start their own orchestra. The third option is likely the hardest, both because the basis structure of non-profit governance in the US makes such coups almost impossible and because of the reasons I described here. The last option, while technically possible, leaves the new institution without a venue, staff, or dependable income streams to pay both orchestra and staff competitive wages. The second option is one they’ve already demonstrated, in the strongest possible way, is unacceptable to them. That really only leaves hanging on, which will not get easier as time goes on.

The management’s alternatives are more complicated, although no better. The first also is to hang on. But a second dark season is far less tenable than a first, as there’s far less light at the end of the tunnel. That makes fundraising near-impossible. It’s not clear how much fundraising they need to do in order to keep the operation going without an orchestra, though – no doubt endowment income is paying most of the bills now.

The bigger problem with this approach is that it invites the kinds of questions from all sides that would lead to the current leadership losing control. There’s not much point in having a Minnesota Orchestra Association, or an Orchestra Hall, or a large endowment, if there are no concerts. People who gave money to the renovation and the endowment become increasingly pissed off, more and more questions get asked by various levels of government, and the stink of failure grows around all those responsible. At some point (admittedly impossible to predict), a tipping point is reached and the leadership either gives up or is forced out, regardless of how hard non-profit governance makes such a change.

The second alternative is a bankruptcy or bankruptcy-like reorganization. Being no expert in the bankruptcy laws, it’s hard to predict what that would look like or how a bankruptcy judge would view such an application. But I don’t see how it would help get the management any close to putting on concerts or being able to hire musicians. Bankruptcy is sometimes used to get a judge to re-write a labor agreement. But there’s no agreement here to re-write, and no more reason for the musicians to agree to work under one imposed by a judge than the one that management currently wants.

The last option I see for management is to try to put on a season without the existing orchestra, either by bringing in other orchestras or hiring a replacement orchestra. Given what appears to be an anti-union bias within the current board and staff leadership, this may be a tempting option for them.

But it would end very badly for them. Hiring replacements has very rarely been tried in our business, and never by an orchestra of this prominence. It would not stop Vänskä from leaving, given his pride in what he’s built over the past seven years. Given the career consequences to him of working with replacements, in would likely force him to leave, in fact.

For the same reasons, it would be impossible to get reputable soloists or conductors to come work with a replacement orchestra, given the Wall of opposition that the musicians and the AFM would erect. It might well be impossible, in fact, to find enough competent musicians willing to cross an AFM picket line to play in such an orchestra. And it would force those nominally union-friendly politicians who have dodged this issue to date to finally take sides. I suspect most would (very reluctantly) take the union side, which would matter in a place like Minnesota.

Bringing in other orchestras and acts to fill the void would face similar problems as Sarah Chang faced in Detroit a few years ago. Nor would it be likely to sell very well, even in the absence of the inevitable public controversy. Cities that have had their own orchestras have historically not responded all that well to replacing them with a procession of outside groups, especially when audiences need to cross picket lines to get inside the hall.

So, from the outside at least, the Best Alternatives To A Negotiated Settlement seem Truly Lousy for everyone. Let’s hope the management sees it that way as well. A few more months of the status quo is likely to leave a metaphorical smoking hole where was once stood one of the country’s most successful orchestral institutions.