Louisville CEO surprised that AFM will support picket line

…or so yesterday’s article in the Louisville Courier-Journal would suggest:

The Louisville Orchestra has cancelled its September and October concerts because of the ongoing contract dispute with musicians, particularly their New York-based union’s threat to fine those who show up for work.

“While we believe that local musicians wish to perform, the musicians’ bargaining unit and their union are forbidding their own members from showing up for work,” orchestra CEO Robert Birman said in a statement. “What this means is that a resolution to our labor impasse is not imminent.”

That’s a lot of dog whistles crammed into one statement. But, most importantly, does Rob Birman really and truly not understand that the reason the Louisville Orchestra was placed on the AFM’s unfair list is because the members of the Louisville Orchestra are unwilling to “show up for work” under the terms and conditions that he’s offering? Just who does he think the “musicians’ bargaining unit” is? He appears unaware that the terms “bargaining unit” and “the members of the Louisville Orchestra” are essentially identical.

If there are “local musicians” who “wish to perform,” they’re not the ones who constitute the orchestra that he was hired to manage.

According to an August 23rd story on WFPL, Birman claimed that Tsar Bomba is still in pieces in the workshop and that he never really threatened to hire non-union musicians:

The AFM added the orchestra to the [Unfair List] this week. Any union members who play could face potentially career-ending punishments or fines.

“I don’t think there is a large cadre of non-union players waiting to come work for the Louisville Orchestra,” says union president Ray Hair. “Certainly the kind of skill and experience that union musicians bring to the table is not available.”

Hair says Orchestra CEO Rob Birman had hinted that the orchestra could hire nonunion musicians to play concerns [sic]. Birman says he hasn’t and the unfair listing is a tactic in the labor talks and won’t affect the tone or urgency of the negotiations at all.

Well, of course the AFM’s action is a “tactic in the labor talks.” So was the LO’s bankruptcy filing. For that matter, so was pretty much everything else LO management has done for the past year. But his denial that he’s hinted that he would “hire nonunion musicians to play concerts” is at odds with his “proffer of testimony” for the bankruptcy hearing on August 15th, which included the following gems:

52. Skilled replacement workers can be hired when a unionized work force is on strike.

53. Studies show there is a vast over-supply of concert musicians relative to available positions.

54. The number of music performance graduates (supply) has continued to grow steadily since 1982, while job openings (demand) has stayed stagnant or decreased.

55. The “supply” of aspiring symphony musicians is huge. According to a 2008 Stanford University Business School study, a one year measure equaled 3,671 students who majored in performance on a symphonic instrument.

56. The number of annual vacancies is very small relative to the annual number of music performance graduates – 2 to 4 per year per Orchestra.

57. From 2003-05, job openings at ICSOM orchestras (sample size of 52 salaried American orchestras, of which the Debtor is one) were at an all-time low for a ten-year period.

58. Job openings in the largest American orchestras (Group 1) were down 34% between 1981 and 2007.

59. Job openings in the second largest American orchestras (Group 2, of which the Debtor is part) were down 34% between 1981 and 2007.

60. Looking at the 52 International Conference of Symphony and Opera Musicians (ICSOM) member orchestras alone (of which Louisville is one), based on a 10-year analysis (1994-2003) there were job openings for only 6-10% of all music graduates in any given year; 90% or more of graduates could not find work in an ICSOM-level orchestra.

I guess one could argue that these “aspiring symphony musicians” could actually be members of the AFM. But there was never any prospect that the AFM would tolerate members crossing a picket line of Louisville Orchestra musicians, and if Birman didn’t know that, he doesn’t know enough to run a mall kiosk, much less a full-time orchestra. The musicians that Birman was talking about hiring as replacements would, of necessity, need to quit the union in order to avoid the inevitable fines the AFM would levy on them.

So it’s fair to say that his assertion that he hasn’t “hinted” at hiring non-union musicians is true only in that he actually testified about his willingness to do so under oath.

It’s very likely true, however, that the AFM’s action won’t “affect the tone or urgency of the negotiations at all.” First of all, it only makes explicit what everyone knew already, which was that the AFM would take action against members crossing a picket line of LO musicians. Secondly, it doesn’t appear that much of anything is going to change management’s negotiating stance; they appear not only to have married their A-B-C scheme, but are taking their vows of fidelity with deadly seriousness. Lastly, nothing but taking that off the table is going to be acceptable to the musicians. Nor should it be.

Now, about those dog whistles. My favorites were “their New York-based union” and the assertion that union members who cross a picket line could face “potentially career-ending punishments.”

I remember when saying that X was “a New York X” was akin to saying that X was Jewish. I’d like to think that no one in this business would play the anti-Semitism card anymore; aside from the inherent ugliness of such a gambit, in an America that just elected its first African-American president, it’s pretty weak tea. I suspect that Birman was instead trying to spin the dispute as a 21st century version of Daniel Boone versus the East Coast plutocrats. But it’s still spin; as I said earlier, the only reason that the AFM placed the Louisville Orchestra on the unfair list was that the musicians of the Louisville Orchestra asked the AFM to do so.

As knowledgeable participants in this business know, the people with whom orchestra managements negotiate collective bargaining agreements are their own musicians. The use of the words “the union” to describe who is on the other side of the table is invariably an attempt to invoke images from On The Waterfront.

The notion that the AFM could end the career of anyone crossing a picket line is, if anything, even less accurate. As a matter of labor law, an American union can only get a worker fired in one very specific scenario involving the non-payment of so-called “Beck dues” in states that do not have right-to-work laws. In no circumstance can a union legally block an employer from hiring anyone, regardless of what the union thinks about them. Even the threat of fines is pretty hollow; a timely resignation from the union ends all threat of union discipline.

But it’s certainly good news that LO management appears to have backed off from its threats to hire replacement musicians, if indeed that is the way to read Birman’s statements. If that’s the case, though, I wonder why his board has already authorized him to do so, as he testified in court last week.