SUMMARY OF SERVICES PERFORMED FOR ICSOM

BY LEONARD LEIBOWITZ FOR THE PERIOD SEPTEMBER 2006 TO AUGUST 2007

This summary of services performed during the year between conferences is submitted each year to all ICSOM delegates.

This report covers organizational services as well as sample problems of individual orchestras. It is not all-inclusive, as it would be virtually impossible to list every phoned-in question, minor written request for information, etc., which I handle on a daily basis. It is intended to set forth, in report form, some of the more substantive matters on which I spent time. It is also intended to inform the delegates of problems encountered by other orchestras and ICSOM so as to provide each delegate with a starting point of investigation in the event a similar problem arises in his or her orchestra.

As many of you know, I am also counsel to the Symphonic Services Division of the AFM. Many of the questions and issues that come across my desk from non-ICSOM orchestras are nevertheless relevant and potentially applicable to ICSOM orchestras. Thus, I have included some of those issues in this report for the education and information of the delegates.

ORGANIZATIONAL SERVICES

As usual, I attended the annual mid-winter Governing Board Meeting. Those annual meetings, together with the conference calls and emails, are the ways in which the business of ICSOM is attended to during the period between annual conferences. In addition, I participated in regularly scheduled Governing Board conference calls. This year I also participated in a number of conference calls involving representatives from negotiating orchestras, helped draft ICSOM Resolutions for the AFM Convention, which I also attended, as well as helped in the preparation of the ICSOM Health Insurance Survey.

INDIVIDUAL ORCHESTRAS

ALLENTOWN SYMPHONY

This relatively newly organized orchestra had a number of problems this year. In addition to negotiating a contract, there were certain internal problems to be solved.

One such exchange was as follows:

Q: The AFM bylaws prohibit a contractor or personnel manager “with whom the Local has a CBA” from attending membership meetings where collective bargaining negotiations or contract administration may be discussed. I am organizing an orchestra in PA where the personnel manager is asking to attend an organizing meeting (he is also opposed to the organizing effort – big surprise). The AFM bylaw above does not seem to apply, since the orchestra does not yet have a CBA. Would this bylaw then not apply to an organizing meeting? The orchestra is under a million dollars in budget, so the NLRA does not apply. However, would the NLRA protect these musicians if management attending such a meeting can be construed as surveillance?

And my response,

A: Section 44 of the AFM bylaws states that “A Local shall exclude an AFM member from participating in the creation of Local CBAs...” if that person “…is employed as a supervisor by an employer who is effected by the Local CBA under consideration.” Is he a member of the AFM? If so, this bylaw would apply to him. If not, I think a strict reading of Section 41 (which you cite) and this section 44, would not seem to apply. I don’t know why we prohibit members of the AFM from attending, but not non-members. Maybe we need to propose an amendment for the next Convention.

It turned out that the Personnel Manager was an AFM member.

ANONYMOUS

This orchestra, which asked for anonymity, posed the following question:

Q: There is one Musician who does significant volunteer work for the Development Department in exchange for significant time off from rehearsal/concert services. The Negotiating Committee is questioning the wisdom of this person attending orchestra meetings, especially those in which negotiation issues or tactics are discussed. Is there a general historical precedent – or better yet, a legal one – why he should not or must not attend these meetings?

A: This is a fairly common issue, and one that is perplexing legally, and uncomfortable practically. Article 5, Section 41 of the AFM bylaws reads as follows:

Members of a Local who are contractors, personnel managers, or who perform other supervisory duties for an employer with whom the Local has a CBA shall not be eligible to serve on the negotiation and/or grievance-arbitration committee. In addition, they shall not be permitted to participate in any membership meeting or portion of a meeting in which collective bargaining negotiations or contract administration issues are discussed notwithstanding the fact that they may also perform musical services for the employer and may be a member of the affected bargaining unit. However, the members shall be permitted to participate in any contract ratification vote, as long as they are otherwise eligible.

As you can see, the reference is to “contractors, personnel managers or [members] who perform other supervisory duties.” Thus, merely performing “volunteer work” for the employer, e.g., fundraising, clerical work, etc., would not seem to me to disqualify a member of the orchestra from attending meetings, assuming s/he were otherwise eligible to do so. Of course, if the work being performed for the employer includes “supervisory functions,” then the above section would apply. In addition, if there is a concern about the volunteer, even if s/he performs no supervisory functions, the Union and/or the Committee may request that the member voluntarily recuse her/himself. If s/he refuses, I believe that s/he must be permitted to participate as fully as any other member of the bargaining unit.

ARIZONA OPERA

The question posed by this orchestra, through Nathan Kahn, was:

Q: The Arizona Opera has canceled numerous musicians from a production of “Beauty and the Beast” with more than 21 days notice. The contract addresses this as follows:

C. Re-Scheduling of Services The Opera shall give twenty-one (21) days written notice:

1. to add a Service to the schedule;
2. to add or remove a Musician from the call list;
3. to convert a “tentative” or TBA date to a confirmed;
4. to make a time change; and
5. to cancel a Service.

Failure to notify Musicians as specified above shall result in full payment for that Service. Although I think it stinks, according to my read of the contract, they can cancel these musicians with at least 21 days notice. Brother Hoffman thinks otherwise, and his reasons follow. Also, I have yet to get confirmation that the notice was “written.” If the notice was more than 21 days, but not “written,” what then? Grieve, or ?

A: I thought it stunk, too, but . . . , Nathan’s analysis matched mine. And, of course, even if there was an alleged past practice, it would be unavailing because the contract language is quite clear.

CHATAUTAUQUA SYMPHONY

From the Players Committee Chair, and Local President, came the following somewhat wordy question:

Q: When exactly does “past practice” become written in stone? If management does something one way once, does this mean that they cannot try something a different way ever again? Does twice do it? If the orchestra objects after the first time, and management ignores this and they do it again a second time, what gets written in stone? Can “past practice” mean that management does things differently every time? Can “past practice” mean that filling the first stand positions for the double-bass vacancy is different from filling the first stand position in the 2nds (this season)? Have we now established a “past practice” that if an assistant asks for a long leave, they will need to resign the assistant position to get it? Are there any publications that I may consult regarding labor law that would help me understand the concept of past practice?

A: Remember, past practice is how the union and management behave under the contract and is merely one way to interpret ambiguous language in the contract. If the language is “clear,” past practice will not be relevant because it cannot modify clear language. And, in order for a past practice to be binding (“written in stone” or as if it was written in the contract), it must be proven that the practice was known to both union and management, and that it was done over and over for a significant amount of time. (What’s “significant”? The longer the behavior has gone on, the stronger the evidence of past practice.) In answer to his question about reading material on the subject, I sent him an excellent article by Arbitrator Richard Mittenthal, a past president of the National Academy of Arbitrators. We have distributed this article at previous ICSOM conferences, but email me at lllaborlaw@aol.com if you need a copy.

COLORADO SPRINGS PHILHARMONIC

A couple of questions were posted by this orchestra.

First, there was an alleged breach by a musician of a provision of a separation agreement which required confidentiality. The Employer’s attorney threatened to void the agreement if she did not cease and desist from telling others the terms of the settlement. According to the musician, she had told no one of the settlement, and even if she had, it would have been before she signed the agreement. My advice was that a letter be sent to the attorney from the musician denying the allegations and pointing out that any disclosure would have been made prior to signing the agreement. Not having heard anything further, I assumed the matter was resolved.

Next, the CBA contained a provision requiring all musicians to sign and return their individual contract by March 1. Failure to do so gave management the right, in their discretion, to non-renew the offending musicians. A number of musicians failed to return their contracts on time. All of them, except one, received phone calls reminding them to send it in and they did so. One of the musicians, who apparently had a somewhat checkered history, did not get such a reminder, but instead got a notice of non-renewal. In addition, the CBA contained a specific definition of “just cause” for dismissal, “… a violation of the Master Agreement.” The question was whether or not the inclusion of that latter provision allows the Union to utilize all the usual defenses to a “just cause” firing, especially the defense of disparate treatment, that is, was the non-renewed musician unfairly singled out for worse treatment? In my opinion, the answer is yes, and the failure of management to remind him of his obligation with an opportunity to cure his default, as the others were afforded, would constitute “disparate treatment” and could very well defeat the notice of non-renewal.

DULUTH (MN) SYMPHONY

A musician in this orchestra filed a charge with the EEOC alleging age (70) and sex (female) discrimination by the Music Director. The parties had each submitted written statements of positions and it was the Union’s turn to respond. The entire file was sent to me for review and suggestions. Upon review, I made a number of suggestions which I believe were incorporated into the response. As of this writing, I have not heard if there has been a resolution of the matter.

FLORIDA WEST COAST SYMPHONY (SARASOTA)

Once again, multiple issues raised by this orchestra this year.

First, at the Union’s request in preparation for bargaining, the Employer sent financial records to Ron Bauers for review. The Employer agreed to send the information out on the promise by the local union that the information will be treated as confidential. Apparently, the Orchestra Committee was unaware of this promise and was very much against confidentiality. The question asked was “Can the management expect this [the confidentiality] and what happens if we do not abide by the promise?” Unless they can prove that the release of the information caused them to suffer economic loss as a direct result of the disclosure, they would probably have no remedy. However, the players should remember that this is the start of negotiations. Much of what goes on at CBA negotiations relies on trust. Is it really a good idea to break a promise of their union leadership at any time, but especially at this time?

Next, the following question was asked:

Q: If a core musician needs and is granted unpaid leave, how should their salary be docked? If it is a seven service week and the musician is asking for that week off, the point is moot. If it is less than that, shouldn’t the musician only be docked for services missed? This would equal the cost of replacing that musician with a sub. [The new core violist] was able to set a precedent that if a new musician is hired for the season and plays all the services, they should be paid the full salary, no matter when they sign their contract. But if a musician is hired after the season has begun and cannot make it by the first service, how would the FWCS determine what their yearly pay should be? This season, if they don’t begin playing until (for example) October 23, they would be missing the first 7 weeks of the season (at our weekly rate, that would be $5108). However, they would have only missed 9 services during that time (which would be a deduction of $990). Obviously, this is a major issue for new hires who cannot start right away.

A: In my opinion, the answer to the first question is that the musician who takes an unpaid leave should be docked for only the number of services s/he missed. Likewise, in the case of a late starter, s/he should be paid pro rata for all services played and not for those s/he missed. And, “…does it matter if a vacancy is advertised with a yearly wage as opposed to a weekly wage?” My answer is no. Finally, “…does it matter when the new hire signs the contract, or should it only matter when s/he starts working?” The latter is true.

INTERNATIONAL MUSICIAN

I was asked my opinion of the legalities of two audition ads. The first was one from the Chicago Symphony and it announced auditions for the Orchestra Diversity Fellowship. It contained the following proviso: “In an effort to increase ethnic and cultural diversity in American orchestras, special consideration will be given to Fellowship applicants who are African-American, Latino or from groups that have been traditionally under-represented in American orchestras.” Since this ad ran before our new majority on the Supreme Court struck down all affirmative action programs, and may have even reversed Brown v. Board of Education, I did not have a problem with this ad.

The second one, however, also for Fellows, contained this added limitation: “Maximum age for this program is 30.” That part was troublesome to me because of my concern that if a member of a “protected class,” e.g. someone over the age of 40, were denied the right to audition there could be a violation of the ADEA. Nevertheless, both ads ran.

JACKSONVILLE SYMPHONY

Multiple questions again.

First,

Q1: I’ve been the Steward and one of the members of the Conciliation Group for two musicians since December ’05. In the first week of January ’06 we had our first Conciliation Group meeting, as per the CBA (pp. 14-17). Yesterday, we were about to start what could well be the last of these meetings and the JSO Personnel Manager came in the room and said he was there to take notes and stayed for both meetings. Not knowing if I could object to his presence on any contractual grounds – and I really did object because he was not a member of the Conciliation Group – I did point out that my notes of the meeting would be the official record. Neither the musicians under review nor the other musicians in the Conciliation Group were asked for their permission to have another person present. We were not told the Personnel Manager had been invited. One of the musicians under review is concerned about confidentiality as well as what’s going to happen with those notes the Personnel Manager took. Did anything happen here that was a violation of the contract or anything we need concern ourselves with? Or was it just bad manners not to be told that Alan and Fabio invited the Personnel Manager? This has been a closed door set of meetings for nearly a year now.

A1: In my opinion, the Personnel Manager had no right to be there, either in his own right or as the “designee” of the COO. The CBA clearly defines the composition of the Group, and neither of these positions are included. However, I’m not sure what can be done about it now. But the management should be told that if it happens again, a grievance will be filed.

Next,

Q2: The next question has to do with your understanding of the Notice of Non-Renewal process after the Conciliation Group has finished its work and the musician receives a notice of non-renewal by January 1, 2007 from the Music Director. My understanding of IX C 1 d (3) on pp. 16 and 17 is that the musician may choose to stay in the orchestra while taking lessons for the remainder of this season (’06-’07) and the beginning of the next season (’07-’08). If by January 1, 2008, the Music Director is not satisfied with the musician’s performance, the matter may go to a Musical Review Committee or the musician may resign immediately or at the end of the ’07-’08 season. Do you agree with that?

A2: Yes, I agree. And, as a follow up question: “Would the Music Director need to issue another letter or anything in writing to the Musicians under review and to the Union by January 1? Nothing to that effect is stated in the CBA.” Technically, there is no legal need to issue another letter, but as a practical matter, how would the musician know that the Music Director is not satisfied? That kind of decision should be in writing, for everyone’s sake.

And, again:

Q3: A question has come up regarding the Music Director’s right to extend the probationary period for non-tenured musicians. See IX A on p. 12. We have a principal who will have been with us for two full seasons by the end of this season. The Music Director wants to extend the probation for a third season. The Personnel Manager has asked the chair of our Orchestra Committee to put it to a vote of the orchestra to waive the contract. While we don’t’ feel inclined to waive the contract right now we also don’t want to help push this person out of a job. Do you see any middle ground here? What is your recommendation?

A3: This is a very common problem faced by Unions everywhere there is a probation period. Legally, the Union could refuse to agree to an extension, but then the employee risks outright dismissal with no right of review. Every union I’ve known agrees to these extensions regularly. On the other hand, if the practice becomes abused, i.e. every employee’s probation is extended once, twice or more, then I believe the Union has to take the risk and just say no.

Q4: Then came the question of a non-member of the Union (Florida is a right-to-work state) who wants to take advantage of an Emergency Relief Fund established by the Players’ Association in collaboration with the local union.

A4: Although it is true that the Union has to treat non-members as they would members, that rule only applies to contract rights. If the Fund is an internal entity and the non-member does not belong to either the local or the Players’ Association, s/he has no right to obtain internal union benefits.

Q5: We have been issued Notice of Intent to Employ for 2007-08 that says, in part, the Association intends to offer employment “contingent upon the Association and Local 444 executing a successor Master Agreement prior to the start of the season.” It goes on to say, “Please indicate your intent to accept employment for the 2007-08 season under the terms of a new Master Agreement by signing both copies of this Letter of Intent and returning one copy….” We’ve been issued letters in the past that state we’ll accept employment under the terms of a successor Master Agreement, but never one with the added feature of prior “prior to the start of the season.” The letter doesn’t state when the season starts. If read literally, could it mean the Association doesn’t have to employ us if a successor Master Agreement is not in place? Should we sign this?

A5: My advice was to sign the letter of intent and not to worry about the reference to “prior to the start of the season.” First, the letter also says that the employment is “under the terms of a new Master Agreement.” Thus, if there is no Master Agreement “prior to the start of the season” how could they be employed pursuant to the terms of the Master Agreement? Second, as a practical matter, if they meant to allow themselves to fire people if there is no Master Agreement, then there would not be a Master Agreement signed by the Union until all the Musicians who signed the letters were rehired.

Q6: The next question is regarding the Conciliation/Non-Renewal process, Article IX,C pp. 14-19 of our Master Agreement. Two musicians received letters of conciliation in December 2005. Both have been through a year of meetings with the Conciliation Group. Neither was issued a letter of non-renewal by January 1, 2006. According to Alan Hopper, the Music Director wanted to extend the conciliation part by one year – through December 2007 – before deciding whether to issue letters of non-renewal by January 2008. One of the musicians had agreed to this extension of the conciliation with the Music Director in a private meeting not attended by the Conciliation Group. The other musician did not meet privately or make any such agreement. Is it your view that the time line should be followed and, if no letter of non-renewal has been issued, these conciliations are over. Since the musicians did not go through the entire conciliation/non-renewal process, can another letter of conciliation be issued in December 2007, or does the five-year limitation apply (p. 18)? Can a musician have the right or option to enter into a private agreement with the Music Director to waive the CBA in a case such as this?

A6: My interpretation is that the conciliations are over and they cannot be issued another notice of non-renewal for five years. The fact that they didn’t fully complete the conciliation process is not their fault and they should not be penalized or disadvantaged in any way because of it.

PACIFIC SYMPHONY

A couple of very tricky questions were posed by this orchestra:

Q: In a Pacific Symphony Pops concert, three clarinetists were asked to do a solo spot for which they were paid the concert rate plus a solo rate of $350 as per their contract. Two clarinetists played Bb clarinets in the concert and the solo section as well. The Bass Clarinetist (who played only bass clarinet in the concert) also played Bb clarinet in the solo section. 1) Should the bass clarinetist get a double for the concert? (I would think yes.) He hasn’t been paid one. 2) Is the solo rate added onto scale wages before or after the 25% doubling rate?

A: Both of these innocuous-looking questions are actually quite difficult. I had never been asked such questions before, and I could easily argue either side of the issues. The language of the contract is ambiguous at best. Thus, my opinion, based on how I would find if I were the arbitrator is this: 1) Based upon the assumptions that the “solo section” was part of the concert, I would find that the musician is entitled to doubling. If, however, it was not, or if the program changed after the first rehearsal and the need for the second instrument was eliminated, would s/he be entitled to doubling for the one or even two rehearsals? Although that’s a different case, I would think that s/he would certainly be entitled to doubling for the rehearsal, and perhaps for the concert as well, based on the fact that s/he would have practiced on the second instrument in addition to playing it at the rehearsal(s). 2) This one is even less clear than the first. The contract provides for the payment of the doubling fee as follows: “1st double – 25% based on section rate.” The second and additional doubles are also “based on the section rate.” Thus, it seems to me that the doubling percentage would be based on the section rate and the solo compensation would be paid separately.

PHILADELPHIA ORCHESTRA

The issue raised by a titled chair musician of this orchestra is a very common one. After a good deal of negotiating, by the musician and the management, the parties were still in disagreement over the terms and conditions of this musician’s individual contract. Specifically, the disagreement was over the proper move-up pay whenever he is asked to play as a higher chair. The matter remained unresolved and the musician asked, “Assuming that an impasse remains, I need to know what consequences could there be should I refuse to move up?” Many CBAs provide that a section player may refuse to move up without penalty. No CBA that I am aware of permits a titled chair player, who receives an overscale, to refuse to move up. Some CBAs expressly provide for an additional payment above the overscale for each actual occasion of move up. The CBA of this orchestra does not contain either the right of a titled chair player to receive an additional payment, except as may be negotiated individually, nor does it permit an overscale titled chair player to refuse to move up when requested to do so. Thus, the refusal to move up in such circumstances would, in my opinion, constitute insubordination and would be cause for discipline or even discharge. The general rule in labor relations is that, absent a realistic fear of injury or harm in obeying a legitimate order of management, an employee must “obey first and grieve later.” This musician should file a grievance; but before that grievance is resolved, s/he must move up upon request.

PITTSBURGH OPERA

From this orchestra came this question:

Q: In the following clause (from the Pittsburgh Opera CBA), for a per service musician doing a service on January 1st and then getting called again on February 8th, does the clock restart on February 1st or can he be refused work until he joins the Local?

A: The clause referred to is the standard union security clause of most CBAs, requiring new employees to join the union within 31 days after employment. The 30-day period are calendar days so he is delinquent if, in your example, he has not joined (or agreed to pay dues equivalent) by January 30. He should be notified, in writing, that if he fails to join in x days, the Union will be forced to demand that management enforce the union security clause and discontinue offering him work. Send that notice “return receipt requested.”

PITTSBURGH SYMPHONY

I was asked for my advice (not strictly legal) about the following situation in this orchestra:

Q: We started a strike fund over a decade ago and now have over $830,000 saved. Last year, in a pretty contentious meeting, a slim majority voted to stop contributing to the fund. At the time, there was a lot of unhappiness over a contract negotiation that was viewed as concessionary and a feeling that the group was too “weak-willed” to ever go on strike. Another view expressed was that a big strike fund would weaken our case to the public if we ever did go on strike. This fall the group, by a slim majority, voted the assessment back into place, but we will be hashing it all back over again at another meeting this month. Do you feel that the fund is big enough to cover costs that we would/could incur during a strike or lock-out? How would you answer anyone who says, “This group will never go on strike?” Do you think that a large strike fund damages the public’s perception of a group of striking musicians? I, of course, believe that I have the answer to all of these questions, but I wanted to sound you out on and hear anything else you would have to say on the subject of a strike fund.

A: In my opinion, the larger the Strike Fund the better! The fund should be at least large enough to cover the COBRA costs of keeping everyone covered for health and life insurance premiums for as long as possible. In my experience, the public cares little about the size of your Strike Fund. It is almost never large enough to pay everyone what they will have lost if the strike or lock-out continues for any prolonged period of time. More importantly, the perception of management that you are prepared for such an eventuality will act as a deterrent to allowing you to strike, or to locking you out. The longer they believe that you can stay out, the less likely they will be anxious to let you strike or lock you out. To those who say “we will never strike,” there are at least two responses: 1) you could be locked out, and that is not under your control, and 2) one of the best ways to prevent such occurrences is to have sufficient resources to send management the message that you can’t easily or quickly be “starved out.”

MEMPHIS SYMPHONY

Questions arising from the promulgation by management of a “Harassment-Free Workplace Policy”:

In setting forth the possible ramifications of a violation of this policy, discipline or discharge were included. The concern expressed was that there was no mention of the CBA’s requirement of “just cause.” Although I believe that the absence of such a reference would not be deemed a waiver of the CBA protection, nevertheless, I too try to include that reference when I am writing or reviewing a non-discrimination clause or an Harassment-Free Workplace Policy. In addition, in describing the definition of sexual harassment, the policy refers to “sexual advances.” The concern here was that the statutory definition prefaces that phrase with the word “unwelcome” or “unwanted.” Again, since the law is perfectly clear that only unwelcome or unwanted sexual advances are prohibited, I don’t think that the absence of one of those words in the policy would convert all sexual advances, even those that were “welcome.” Nevertheless, for the sake of clarity and consistency, I would prefer those words to appear.

OREGON SYMPHONY

For those of you who avidly read Senza Sordino, you will recall my recent article concerning “off the record” meetings between the union and a member of the Committee. That article came from the advice I gave to this orchestra. Rather than repeat it all again in this report, I commend anyone who hasn’t read it, to the last issue of Senza Sordino.

RICHMOND SYMPHONY

A number of issues arose from this orchestra.

Q1: The CBA contained a complex formula for discipline, including a point system for degrees of severity of the alleged offense. During negotiations for a successor contract, the Union requested deletion of the complex procedure and the insertion of simply “No musician may be disciplined or discharged except for just cause.” The Employer indicated a willingness to agree, but on condition that the contract contain a clause permitting the Employer to promulgate “reasonable rules and regulations.” Since the Employer has that right even without such a clause, the Union was prepared to agree but was concerned that the Employer might just issue a new “rule” which would restate the old “points” policy.

A1: My advice to the Union was: a) make them agree not to do that; and b) if they actually did it, the Union could probably successfully challenge it on the grounds of “unreasonableness” because ti would be considered a subterfuge after agreeing to remove that language from the contract; or that it could even be argued that it is in direct or indirect contravention of the “just cause’ language. Any employer’s right to promulgate rules and regulations has to meet at least two tests: 1) reasonableness, and 2) that it not be in conflict with any specific provisions of the CBA.

Q2: Apparently there is a recent state law in Virginia requiring all employees to certify that they have never been convicted of child molestation or abuse. Is this legal?

A2: Apparently so. I would have thought this kind of thing was a violation of the right against self-incrimination of the Fifth Amendment, but with the apparent constitutionality of “Megan laws,” it appears that such laws are not unconstitutional.

Q3: Is there any kind of “statute of limitations” on matters contained in one’s personnel file? And is there an absolute right to see one’s file upon request?

A3: There is no “statute of limitations” per se, unless the contract contains one, but the older the document the less weight it will be given by an arbitrator in any subsequent arbitration. In my opinion, unless the contract so provides, there is no absolute right to view one’s personnel file. Again, however, if one is denied the right to view it, and one is subsequently disciplined or discharged based in whole or in part on something in the file that one has not been allowed to see, the document will not be admissible in arbitration.

Q4: Suppose one is allowed to see one’s file and finds a damaging letter or other document which s/he has never received or seen, what should one do?

A4: Depending on the seriousness of the document, the letter or document can be challenged in arbitration, or one can simply write a letter to management reciting that the document was never shown to the individual and set forth her/his version of the allegations in the letter, sending such a letter “certified return receipt requested.”

SAN FRANCISCO SYMPHONY

The issue posed was as follows:

Q: The SFS has a series of three, one-hour TV broadcasts that will air in November on PBS. The series is called “Keeping Score: MTT on Music.” There is an outstanding issue from last season regarding the administration’s use of clips from our radio archives in the Keeping Score documentaries. The administration put the clips in the product without consulting the media committee, and said they felt they had a right (under promotional use in the contract) to use the clips for no additional compensation. We have the worst radio language of our peer orchestras ($30 radio fee a week, as many broadcasts as they want, as many times as they want), and the management already exploits the radio archive legally – so we want to be especially vigilant when they try to do so illegally. Can they do this?

A: If the only issue is whether a documentary is “promotional” within the meaning of the A/V agreement or any other AFM Media Agreement, the answer is it is not! If a documentary was “promotional” then what isn’t promotional? Promotional means “Come hear the SFS perform,” not a story about the SFS, or a concert or a radio broadcast. However, in my discussions with Debbie, I understand that they have been getting away with a lot in interpreting that media clause. If that’s true, and you haven’t grieved any of it, you may have created a “past practice” which may now be binding on you. The only way to end that practice is to say so at the next negotiations, although some arbitrators hold that if you grieve an alleged violation and the grievance winds up in arbitration, that ends the past practice even if s/he rules against you in that case.

SOUTHWEST FLORIDA SYMPHONY ORCHESTRA

This orchestra raised a question which arises periodically when there is no incumbent Music Director.

Q: As you know, we are inching our way through a new CBA which is actually coming along very well. They are in a conductor search this year, and we are negotiating typical language regarding a MD’s part in auditions, granting tenure, etc. They would like a side letter that deals with procedures in which MD’s typically participate, with some means of dealing with them without him/her. For instance, several people’s probationary periods are up, and there is no one to grant them or deny them tenure. Should these processes be suspended until someone is on the podium?

My response:

A: In situations wherein there is a period of time without a MD, I have written language which allows a Committee of players (made up just like an audition committee) to make decisions on musicians whose probationary periods are ending and a decision on a grant of tenure is needed. It must also state that the only reason that this decision is being made by the players is because of the absence of the MD in your case. It should also state that no non-renewals for musical reasons can be initiated until there is a MD to initiate them, i.e., no one else is authorized to do so. For virtually all other MD functions, e.g., programming, repertoire, etc., whomever is acting as AD, or Music Advisor, can exercise those functions.

SYRACUSE SYMPHONY

This question was not really a legal one, but an important issue for negotiations.

Q: If the “final offer” is rejected by the orchestra is a strike required?

A: There is no requirement to strike, and there may be reasons for not striking or delaying a strike under some circumstances. However, in most cases if no strike occurs there is little reason for management to improve the offer. As a practical matter, an employer doesn’t really care if the employees are not in favor of its “final offer,” so long as they keep working.

WEST VIRGINIA SYMPHONY

In a matter coming from this orchestra, I was asked to comment on the following:

Q1: A grievance was filed by [a musician] regarding his/her dismissal notice we received this week. Enclosed is the Employer’s response to the grievance and a copy of the ’04-’06 master agreement that is applicable here. They are trying to use Article 2.7 to dismiss [the musician] and the Local Union and all but one of the OC totally disagree. The Employer wants to go to arbitration. Can you advise us on the procedure for doing such and what our chances might be if we go this route?

A1: After reviewing the relevant contract provisions, and the Employer’s Response to Grievance, I remain convinced that [the musician] became tenured when s/he received no notice of non-renewal by the end of his/her first year with the orchestra. The language of the contract is very clear and offers no ambiguity. If management intended that the language applied only to musicians who start the season with the very first service they should not have agreed to the language as stated since that language does not require starting with the first service at all. [The musician] has clearly met the requirements within the definition of a “full season,” and has therefore achieved tenure. If they want to dismiss her, there is a non-renewal procedure for them to follow. I trust that the contract adequately describes the grievance and arbitration procedure.

Another issue raised:

Q2: In their new CBA, the librarian position was added to the bargaining unit without conditions or limitations. Thereafter, the librarian was elected to serve as the ROPA delegate. By oversight, and not as result of bargaining, the old contract language which read as follows, was not deleted: “No member of management, including the librarian, may serve on the Orchestra Committee.” The CBA also included a provision which suggested that the ROPA delegate “should attend all Orchestra Committee meetings ex officio.” Management argued that if the librarian were to attend all such meetings, she was a “member” of the Committee and therefore, based on the old, carried-over language she was ineligible to attend meetings of the Committee.

A2: My opinion was that the librarian now had an absolute right to attend, ex officio, and even be a regular, elected member of the Committee. The amendment of the Recognition Clause making the position covered by the CBA without limitation, gave the librarian all rights thereunder, which obviously negated the old language by necessary implication and, as a consequence, those rights could not be lost on the basis of an oversight.

Finally, a question was asked about the legality of a CBA which described the orchestra as a “Union Shop.” There is nothing illegal about a “Union Shop.” In fact, virtually all ICSOM orchestra CBAs are “Union Shop” provisions. What is illegal is a “Closed Shop” provision. A Closed Shop would require an applicant for the job, at the time of hiring, to join the union in order to be hired. By contrast, a Union Shop is one that requires a newly-hired employee to join the Union after 30 days after hiring.

SENZA SORDINO

As usual, I reviewed every edition of Senza Sordino prior to publication, in addition to submitting a number of articles therefore.

8B Legal Counsel Report - 2007