Frequently Asked Questions (FAQs) about Labor Relations, Negotiations, and Contract Administration

You’re reading this page because you have a general interest in the subject of labor issues in orchestras, because you have a specific question about some aspect of negotiations and contract administration, or because you’ve clicked on the wrong link. You might be your orchestra’s newest and youngest member, wondering why you should join a union and what goes on at an orchestra meeting that could possibly be of interest to you. Or you might have not attended your last orchestra meeting and thus found yourself elected to the Orchestra Committee and are wondering what to do now. In any case, we hope you find the answers to your questions here. If you don’t, please let us know and we’ll make sure that those answers are here next time you visit.

Orchestras, like diamonds, have many facets. For orchestra musicians, arguably the most important function and facet of an orchestra is that it’s a workplace. As such, it is subject to a complex web of laws and contracts.

The Employment Relationship

The legal relationship between an orchestra and its musicians is based on the concept of employment, which can be defined simply as the exchange of wages for service provided by an individual employee to an individual or business who directs that work. In the US, there is an extensive body of law (both federal and state) governing the employment relationship, which not surprisingly has come to be known as “employment law.”

Virtually all orchestra musicians in the US are employed under the terms of a collective bargaining agreement (CBA). CBAs, the process by which they are negotiated and administered, and the behavior permitted and/or required of all those involved, are governed by a sub-set of employment law, which is known colloquially as “labor law.”

The relationship between employment law and labor law is not a simple one. Most CBAs provide more protections against discipline and termination to covered employees than does employment law. But there are many protections for employees (such as prohibitions against discrimination on the basis of race, gender, religion, or national origin) that exist in employment law that aren’t written into many CBAs. The basic rule of thumb is that CBAs can provide for terms and conditions of employment better than those required by employment law, but cannot mandate terms and conditions worse than the law requires.

Collective Bargaining

A collective bargaining agreement (also known in the orchestra world as a “Master Agreement” or simply “the contract”) is a legally-binding contract negotiated between an employer (or, less often, a group of employers) and a labor union representing one or more groups of people who work for that employer. The process is known as “collective bargaining,” to distinguish it from the relationship between an employer and an individual employee.

The core of the collective bargaining process is the concept that a group of employees authorize a labor union to negotiate on their behalf as a group, rather than the employees’ negotiating with the employer as individuals. The theory behind collective bargaining is simple: a group of employees, negotiating as a group, have more negotiating power with their employer than they would as individuals. Ben Franklin wasn’t talking about collective bargaining when he said, at the signing of the Declaration of Independence, that “we must all hang together or assuredly we shall all hang separately” – but it’s the same principle.

The Collective Bargaining Process

Why have a collective bargaining agreement at all?

Both sides gain from having a CBA. The employer gains by getting a guarantee that wages will be locked into place during the term of the agreement without further negotiations. The musicians gain by having management’s guarantee become legally enforceable.

What’s in a collective bargaining agreement?

At its simplest, a CBA will contain wages and basic working conditions, i.e., x dollars per week for y number of weeks for z number of services per week. Most orchestral CBAs are far more extensive than that, however, and include language governing service length, service scheduling, benefits such as health insurance and pension, audition procedures, protection against arbitrary termination of musicians’ employment,provisions covering travel and touring, how various joint management-musician committees function, and the like.

How are collective bargaining agreements negotiated?

Federal and state labor laws place some limits on how the negotiations for collective bargaining agreements can be conducted. Broadly speaking, however, there are two different styles or schools of thought about the best way to negotiate such agreements. As the topic of how to bargain is such a controversial one, we have devoted a separate area to its discussion.

Regardless of the particular mode of negotiation chosen by the participants, the bargaining is conducted between representatives of the union and representatives of the employer. Labor law gives both the union and management complete discretion in the composition of their negotiating teams.

In most orchestral negotiations, the union representatives are elected by the orchestra (although often the elected Orchestra Committee is also given the job of contract negotiation), and augmented by one or more members of the Local’s elected leadership. Often, but not always, the union negotiating team also engages a lawyer or other labor professional to act as lead negotiator and chief spokesperson. The management team typically consists of the orchestra’s Chief Executive Officer, other senior staffpersons, a representative from the Board of Directors, and often the head of the Board committee charged with labor relations, who is usually a lawyer specializing in employment and labor law.

What happens when there is a dispute about the terms of the agreement?

Virtually all CBAs contain provisions for resolving disputes short of a strike or lockout. The most common dispute resolution procedure is grievance arbitration. If there is a dispute about whether or not a particular action (usually, but not necessarily, a management action) violates the agreement, the individual musician involved or the union can file a grievance with management. Most grievance arbitration procedures require an attempt to resolve the dispute directly between the parties. If that attempt fails, the union or management can demand binding arbitration.

Because one of the core purposes of labor law is to encourage the resolution of disputes without strikes or lockouts, grievance arbitration enjoys a privileged position. While it is possible to appeal an arbitration ruling to the courts, such appeals are rare, and successful appeals are rarer.

What happens if negotiations fail?

It isn’t uncommon for negotiators to fail to reach agreement by the time the previous agreement expires (assuming, as is the case in virtually every orchestra negotiation, that there is an agreement in place that is expiring). Four things can happen at that point:

1. The musicians can go on strike.

2. The management can refuse to offer employment to the musicians (known as a “lock-out”).

3. The parties can agree to continue to work under the terms of the expired agreement, either for a pre-defined period or until either party decides otherwise (known as “play and talk”).

4. Management can declare that negotiations have reached an “impasse” and impose the terms of their most recent offer. In response, the musicians can go on strike, continue to work under the imposed terms while continuing to negotiate, or ratify the imposed terms. If the union believes that negotiations were not at an impasse, they can also file an unfair labor practice charge with the National Labor Relations Board.

What can management do to musicians who go on strike?

A strike after a contract expires is in most cases a “protected” labor activity, which means that management cannot fire workers who engage in that activity. However, management is under no obligation to pay those workers when they’re not working, and has the legal right to bring in replacement workers, who may have some rights to their jobs even after a contract has been reached. This almost never happens in the orchestra industry, probably because management saves money when musicians are on strike or otherwise not working (orchestras aren’t “non-profit” for no reason, after all) and thus has no economic incentive to continue to put on concerts. Of course, they also have little economic incentive to settle immediately, which is why the typical orchestra strike goes on for six to twelve weeks.

About Unions

What’s a union?

A union is an organization (in the US, a non-profit organization organized under Section 501(c)(5) of the Internal Revenue Code) that represents workers in their dealings with their employer(s).

What does a union do?

The two essential functions of labor unions are to negotiate and then to administer collective bargaining agreements. Unions can do other things as well, most notably organizing (forming groups of workers to demand collective bargaining with their employers), job referral services, and providing benefits (such as health care for freelance workers and group life insurance).

What’s “The Union?”

For musicians in virtually all of the 150+ professional orchestra in the US, “the union” is the local union in their city affiliated with the American Federation of Musicians[1].

Why are orchestras unionized?

Historically, unions arose in order to redress the normal imbalance between the power of the employer and the power of those who work for the employer. In few workplaces is that imbalance so profound as it is in orchestras, mostly because the orchestra is, in many ways, simply the conductor’s tool, and the musicians no more than parts of that tool. (For more details, see Why They’re Not Smiling: Stress and Discontent in the Orchestra Workplace by Seymour and Robert Levine, Harmony #2, April, 1996.)

In the wild, an orchestra would more closely resemble an antebellum cotton plantation or a feudal estate than it would a modern workplace. So orchestra musicians quickly learn to “hang together.” It is notable that no American orchestra has ever voted to make itself a non-union workplace, and that even non-union orchestras generally have Orchestra Committees in order to deal with management and conductors, negotiate documents covering terms and conditions of employment that look very much like CBAs, and generally behave a lot like unionized workplaces.

Do I have to belong to the union?

Technically, no. If your orchestra is in a so-called “right to work” state, you don’t have to belong to the union, or pay union dues, as a condition of being employed. In the other states, you don’t have to be a member but you do have to pay dues (not necessarily the full amount but probably close to it).

Should I belong to the union?

Most orchestra musicians choose to belong, even in right-to-work states. There are several reasons for that choice. First of all, most musicians understand instinctively that conductors and managements would behave very badly without the constraints imposed on them by the musicians’ collective action. In addition, under AFM bylaws, orchestra musicians who are not members of the union cannot participate in orchestra meetings (technically those meetings dealing with contract administration, which in practice is virtually all meetings), serve on workplace committees, or vote on contracts, nor will they receive all the benefits of AFM membership (strike fund, union publications, etc.). In addition, freelance work outside of the orchestra is often controlled by contractors who are union members and who are barred by AFM bylaws from hiring non-members for gigs.

How’s the union run?

Unions are run by elected officers and appointed staff. In local unions, the officers are elected by the membership. In national unions, the officers are elected either by the membership or by local officers at a national convention (as is the case with the AFM).

How much does it cost to belong to the union?

It varies from local to local. AFM locals charge both annual membership dues (generally between $100 and $200) and work dues of between 1% and 4%.

Player Conferences

What do Player Conferences do?

Player Conferences, while labor organizations, are not unions per se, but rather are groups that represent their members to the union and to the outside world. They act as informational and training networks for their members; they lobby for services within the union; they represent their members to industry groups such as the American Symphony Orchestra League (www.symphony.org); they help the AFM negotiate national media agreements with groups of orchestra managements; and they represent their members at AFM conventions and regional conferences.

What do ICSOM and ROPA delegates do?

The job of a Player Conference delegate (an unpaid volunteer position) is to represent his/her orchestra’s views to the Player Conference and to help the Player Conference communicate with the members of his/her orchestra. Typically a delegate will post communications from other orchestras, such as settlement bulletins, distribute the newsletter, attend the annual conference, and act as a liaison with the officers of the Player Conference when their help is needed.

The Orchestra Committee

What’s an Orchestra Committee?

An Orchestra Committee is a group of orchestra musicians elected by the orchestra to represent the orchestra in their dealings with management, the orchestra’s Board of Directors, and the local union. In some orchestras, the committee is known simply as “the Orchestra Committee”; in others, it will have a name (such as “the XYZ Symphony’s Players’ Council). Some orchestras have several different committees to handle specific issues, such as contract negotiations, artistic liaison with management and the conducting staff, and electronic media issues.

Technically the Orchestra Committee is the Executive Board of the musicians’ association, which ideally has its own bylaws, treasury, and tax-exempt status from the IRS. Not all musicians’ associations have these things – but they should.

What’s the relationship between the Orchestra Committee and the union?

In a legal sense, the Orchestra Committee functions as a representative of the union in the workplace. In practical terms, the Orchestra Committee does much of what any union does in a union workplace; it negotiates contracts, it deals with grievances, it works with management to prevent small problems from becoming big ones, and in general acts to represent the interests of the orchestra’s musicians.

The relationship between the Orchestra Committee and the Local can be problematic, however. Legally it’s the Local’s responsibility to negotiate and administer the contract. But the Local doesn’t choose the Orchestra Committee – the orchestra musicians do. If the Local and the Orchestra Committee have differing opinions about negotiating strategies, choosing a lead negotiator, or handling grievances or requests for contract waivers from the management, there is generally no easy way to resolve the dispute. Sometimes this had led to a complete breakdown in the relationship, with serious consequences for the orchestra musicians, the Local, or both. The decertification of the AFM by the musicians of the Seattle Symphony in 1988 – the first such event in AFM history – was in large part a consequence of such a war. Other such breakdowns – in Buffalo in the late ‘80s and Louisville in the mid ‘90s – led to the AFM temporarily removing the orchestra from the Local and placing it under its Orchestra Services Program. Fortunately the vast majority of disputes can be, and are, resolved locally by good will and compromise, or prevented from arising in the first place by good communications between the Local and the Orchestra Committee

What’s an orchestra meeting?

Orchestra meetings are usually called by the Orchestra Committee to discuss matters relating to the collective bargaining agreement or other business with the management. On occasion the orchestra is asked to waive a particular provision of the CBA to allow management to do something not otherwise permitted. Other issues that can arise are internal orchestra dues, the relationship with the local Union, and other items of concern to the entire orchestra.

About the Industry

What’s the American Symphony Orchestra League?

The American Symphony Orchestra League (aka “the League” or “the ASOL” and yes, they are aware of the joy with which many musicians pronounce the acronym) is a not-for-profit organization incorporated under Section 501c(3) of the Internal Revenue Code (as are all American orchestras). (Note: the ASOL changed its name to “League of American Orchestras” in 2007.)

The League is governed by a Board consisting of orchestra trustees, managers, musicians, and others connected to or interested in the orchestra industry. It is run by a staff of roughly 35, led by President and CEO Henry Fogel, a long-time orchestra manager. Its annual budget is around $6 million.

The League does a variety of things. Its major event is the annual conference, but throughout the year it conducts a variety of training programs for trustees, orchestra staff, and conductors. It also has an ongoing lobbying program in Washington DC, publishes Symphony magazine, and provides an umbrella for many meetings between orchestra staff specialists (e.g., Finance Director meetings and the like).

The League has long been viewed by orchestra musicians as an adversary, and musician involvement in the League has been, and continues to be, controversial. In structural terms, however, the League is not a managerial counterpart to the AFM or the Player Conferences, although some of the managerial groups that meet under the auspices of the ASOL can act as such counterparts

In the interests of full disclosure, you should be aware that the writer of this document is, as of January 28, 2006, a member of the ASOL Board of Directors.

What’s the Symphony Orchestra Institute?

The Symphony Orchestra Institute (SOI) was founded in 1994 by Paul Judy, a retired investment banker from Chicago who had also served as President of the Chicago Symphony Orchestra Board of Directors.

SOI engaged in a number of projects. Most important were its publication Harmony and the several interventions by SOI President Fred Zenone (a retired National Symphony cellist and Chairman Emeritus of ICSOM) and organizational consultant Paul Boulian with orchestras who requested SOI’s help.

In 2005 SOI chose to dissolve and donate its assets (including its website, its Harmony archives, and a considerable endowment) to the Eastman School of Music, thus forming the foundation for Polyphonic.org.

What’s a major orchestra?

Given the wide range of budget size, number of musicians, reputation, and musical ability amongst American orchestras, there is a natural tendency in the field to categorize orchestras. In this writer’s view, there are no fully satisfactory criteria to express (or explain) the differences between orchestras. ICSOM consists entirely of orchestras that offer full-time salaried employment to most of their musicians for most of the year. ROPA consists mostly of orchestras that provide part-time per-service employment to most of their musicians. But all ICSOM orchestras employ extra or substitute musicians on a per-service basis, while many ROPA orchestras pay some of their musicians a weekly salary for most of the year.

About Orchestras

Who runs the orchestra?

It’s surprising how many different answers there are to this question. Only one is technically correct; however. Orchestras, as community-funded not-for-profit organizations, are, by law, governed by a volunteer Board of Directors.

Oddly enough, the technically correct answer is also the one that works best in practice. Financially successful orchestras are invariably those with a strong Board of Directors who hold themselves, as well as the artistic and administrative employees, accountable for the organization’s successes and failures.

How are orchestras funded?

American orchestras are funded through a combination of earned income (generally ticket income and fees from presentors, such as tour and run-out sponsors) and contributed income, and income from endowments. Sources of contributed income include individual donations, corporate donations, foundation grants, funding from a community-wide arts fund, and funding from various levels of government.

Earned income accounts for 40%-50% of most orchestras’ total funding, with endowment income accounting for another 10% or so. Contributed income from non-governmental sources fill the remaining gap. Most American orchestras receive only a small percentage of their total income from direct government funding, although it is worth noting that the value of the tax deduction that individuals and corporations receive for their contributions is very large, and is one of the main reasons for the relative success of the “American model” of orchestra funding.

How do auditions work?

All performing arts organizations use some form of trial performance to hire performers. The orchestra audition system, as developed over decades by American orchestras, is probably the most comprehensive and formalized of all such trial performances.

The audition process usually begins with an orchestra’s advertising an opening in the International Musician and the Local union newspaper (although some orchestras also advertise on their website and the website MyAuditions.com). Prospective auditionees are asked to send in a resume (and sometimes a deposit, which is returned when the candidate appears at the audition – a process intended to deter candidates from simply not showing up and screwing up the scheduling).

Some orchestras invite all applicants. Others screen resumes and invite only selected candidates. And some ask some or all candidates for tapes of past performances.

What’s tenure?

Tenure is a concept borrowed from the academic workplace (which bears many other resemblances to the orchestral workplace). The concept is that, after a so-called “probationary” period, an employee whose performance is satisfactory is given “tenure,” and protected from termination except for egregious misconduct or grossly poor performance. In orchestras, the functional distinction between being probationary and being tenured generally has to do with the amount of advance notice required and whether the Music Director has sole authority to make the decision to terminate (probationary) or whether there is some form of peer review committee that has an advisory or determinative role.

What’s peer review?

In orchestras, “peer review” has come to mean the practice of making a committee of musicians a part of the process of terminating musicians. The most common use of a Peer Review panel is to review a Music Director’s decision to terminate a musician for artistic reasons. In some orchestras, the Peer Review panel has the final say on whether or not the termination stands. In others, the ruling of the Peer Review panel can itself be appealed by one or both sides, usually to an outside arbitrator.

Peer review was negotiated into orchestra contracts because musicians felt that it was unlikely that an outside arbitrator would take the side of a terminated musician against “the Maestro.” While no formal study has been done on the results of the peer review process, anecdotal evidence suggests that neither management nor musicians consistently prevail. Most observers agree that the existence of the process provides an incentive to both management and musicians under artistic scrutiny to reach voluntary severance agreements that are more favorable to the musician than would otherwise be the case.

What’s revolving seating?

Some orchestras have instituted a practice of not assigning section string players permanent seats within their sections. Proponents of this practice claim that so-called “revolving seating” is healthier psychologically, as it eliminates the stigma of “sitting in the back.” It certainly has the effect of spreading more equitably the burden of sitting closer to the winds, brass, and percussion, all of which can be problematic for the string player who would like to be able to hear his/her grandchildren’s first words without mechanical assistance.

Revolving seating is sometimes called “rotation,” but some orchestras reserve that term for the practice of assigning time off equitably (as in “rotated off work”).

Definitions

Right-to-Work State

A state in which there is a state law barring the enforcement of so-called “union security” clauses in CBAs.

Union Security Clause

A section of a CBA making membership in the union a condition of continued employment. By law, a union security clause cannot mandate membership in the union as a precondition for being hired. In orchestras, union security clauses often include payment of dues to the orchestra musicians’ internal organization as an additional condition of continued employment (the so-called “St. Louis (pronounced “Louey”) clause, from its origin in the Saint Louis Symphony Orchestra’s CBA).

Several Supreme Court decisions over the decades have diminished the enforceability of this clause. As a result, in non-right-to-work states, the only thing that can be required of employees working under a union security clause is payment of that portion of union dues directly attributable to costs associated with contract negotiation and administration (the so-called “financial core” obligation). The handful of arbitrations on this issue within the orchestra industry have generally found that figure to be in excess of 85% of the total dues required to be a full member.

Union Dues

Unions dues for orchestra musicians who are members of the AFM fall into several categories. All AFM Locals charge annual membership dues to all members. AFM bylaws mandate that Locals must also charge work dues to members of all but the smallest orchestras, which are calculated as a percentage of scale wages. AFM bylaws mandate a minimum work dues percentage of 1.05% for all but the smallest orchestras, and set the maximum amount that can be charged by a local at 5%. Most Locals set their symphonic work dues at between 2% and 3.5%. The AFM also charges symphonic work dues of 0.55%, but this amount is invariably incorporated into the Local work dues percentage.

In addition to membership dues and work dues, members of orchestras that have voted to be members of the AFM’s strike fund are charged $75 per year, although some Locals pay this for their musicians. Lastly, dues to support the orchestra musicians’ internal committee structure (and to pay such costs as ICSOM dues) are generally also considered union dues.

Union dues are fully deductible for federal tax purposes.

Scale Wages

Scale wages are those kinds of cash income described and defined in the CBA. The orchestra industry is unusual in allowing individual bargaining unit members to negotiate compensation above and beyond scale wages; in most industries, that would be considered an unfair labor practice. As a result, a significant part of an orchestra’s labor cost can consist of individually-negotiated compensation, which also has the effect of driving up “average” musician pay.

This is a practice that is controversial amongst those who have thought carefully about it. Advocates of the practice claim that it allows orchestras to attract and retain musicians who wouldn’t otherwise come to, or stay with, an orchestra. Critics claim that what is actually rewarded by such compensation is the ability to negotiate with (or, to be more blunt, “brown-nose”) management and/or the Music Director. The critics also point to one or two orchestras where the practice of giving even section musicians significant overscale wages seems to have the effect of damping musicians’ willingness to say no to management proposals of any kind. What neither advocates nor critics dispute is that the practice has the potential to create divisions and discord within the orchestra.

Nonetheless, regardless of its merits or vices, the practice is essentially universal in American orchestras.

Robert Levine is the Principal Violist of the Milwaukee Symphony, Chair Emeritus of ICSOM, and President of the Milwaukee Musicians Association, Local 8 AFM. He has written extensively about orchestral labor law, negotiations, and contract administration for Senza Sordino, Harmony, and other publications.

[1] Four American orchestras have collective bargaining agreements with the International Guild of Symphony, Opera and Ballet Musicians: Seattle Symphony, the Seattle Opera Orchestra, the Pacific Northwest Ballet Orchestra, and the Northwest Chamber Orchestra.