The Negotiation Process: Who Does What

Next in this series of articles, we’ll take a deeper look into “who” does “what” during the process.

Adaptistration People 018This installment of the “Negotiation Process” series will examine the answers to a common misconception about who does what during contract negotiations.

Mary Lo from Washington wrote to ask,

“Why do the musicians care about all of this if they just have a lawyer doing their negotiating anyway?”

Mary has a typical idea about how negotiations operate; with a couple of lawyers sitting in a room hammering out details based on what their clients want.  But when it comes to orchestra negotiations, things are usually much more “hands on” for the musicians and the managers.

As was covered in the Negotiation Process Historical Timeline, orchestra musicians won the legal right to represent themselves directly back in 1962.  No longer could orchestra managers simply go to union officials and work out a contract.

And when musicians won that legal guarantee, they quickly decided that due to the intrinsic nature of their business, they were the individuals which were best suited to represent their interests.

Musicians

Now that doesn’t mean lawyers are not involved, quite the contrary.  Veteran labor lawyer Len Leibowitz said,

“Normally, in traditional bargaining the side representing the players will have a Union Representative, a rank and file committee elected by the orchestra musicians, and a lawyer.”

Marianne Lockwood, Executive Director for the Orchestra of St. Luke’s said essentially the same thing as Len.  But she also added that their orchestra has traditionally conducted very amicable negotiations throughout the history of the organization.  Because of that history Marianne said,

“Even though our orchestra isn’t a member of either the ICSOM or ROPA conferences, we usually have the Vice President from the New York Local 802 AFM attend our meetings.  Sometimes the musicians will ask a lawyer or a negotiator to attend, but it isn’t often and has only been in cases where the union representative may not be able to attend a meeting due to extenuating circumstances.”

Typically, the musicians can hire anyone to provide them with counsel and attend negotiation meetings they wish to use.  In some cases orchestras will hire a professional negotiator who may or may not also be an attorney.

Management

When it comes to the management side of the table there are usually more options.  Some factors have to do with who among the administrative staff have information needed to properly conduct the negotiations and other aspects are more politically motivated.

According to Drew Cady, the General Manager for the San Diego Symphony,

“In my past experience the management negotiating team consists of the executive director, the general manager, and legal counsel when needed.”

Orchestra of St. Luke’s Executive director, Marianne Lockwood also added,

“We usually have our Artistic Manager attend our negotiations since she is best suited to provide immediate information regarding artistic budgeting information.”

Most people tend to think that an orchestra’s executive director should attend the negotiation meetings since they typically have the most comprehensive amount of knowledge regarding the organization.

Retired San Francisco executive Peter Pastreich had some very astute observations about this point from both the practical and political aspect of negotiations.  Peter said,

“I always attended negotiation meetings because I like to get to know everyone in the organization and we’re all directly connected to the final outcome. But one reason many managers feel that the Executive Director should not be at the bargaining table is that the musicians’ negotiation committee can, and does, frequently say ‘even if we agree with what you have just suggested, we know we won’t be able to get a majority of the orchestra to vote for it,’ giving them a way to refuse even what seems a reasonable offer in the context of the negotiation.  The equivalent on the management side would be to say, ‘the Executive Director will never accept that,’ which is something they cannot say if the Executive Director is sitting at the table.

Also, as a legal matter, the musicians (or the union representatives in any collective bargaining situation) can agree to an offer or an entire contract, submit it to the musicians (or the members of the bargaining unit), have it voted down, and then return to the bargaining table to start again.  This is not true for the management; once they have agreed to something, whether a particular demand or the entire contract, those things are agreed, and it would be an unfair bargaining practice under the law to return to the bargaining table saying it was voted down.  The musicians must ratify a contract; the Board’s ratification is pro forma once their representatives agreed, they were committed.”

So you can begin to see how some executive managers construct their own form of counterbalance to the legal check and balance issues.

The Board

The last component in this process includes the members of the board.  In a traditional negotiation process, it is highly unlikely to find a board members sitting at the bargaining table.

Regarding having board members sit in during negotiations, Peter Pastreich said,

“I like to keep board members out of the negotiation room.  They can sometimes be difficult to deal with and very intransigent. But one exception to this rule would be during some forms of concessionary bargaining.  In those situations having board participation can make things better.”

Robert Levine, Principal Violist with the Milwaukee Symphony and past ICSOM President reiterated many of Peter’s comments.  Robert said,

“It’s assumed that management has the authority to negotiate a binding deal on behalf of the board, although boards often ratify agreements anyway as a pro-forma matter. It’s also assumed that, while the musicians’ committee will recommend the agreement to the orchestra, the orchestra’s vote is not pro-forma.”

So that about wraps up “who does what” during the negotiation process.  Future articles will examine some other ancillary participants used in some alternative forms of negotiations, such as facilitators and mediators.

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