Bargaining Variances and Returning to Work

June 30, 2020

IM  -  

As the arts industry begins a slow recovery from the devastation of COVID-19, we face an uncertain future. Recovering from the recession of 2000 or the great recession of 2007, we knew there was a way out once we hit bottom. We were just not certain of how significant the cost. The difference between the pandemic and those financial crises is we could still perform then and if we did, it was not a threat to our health and safety. The pandemic brought the entire industry to a screaming halt.

We, along with our audience, are forced to face health and safety concerns, working conditions on which we don’t usually spend a lot of time during bargaining. What makes it more complicated: the virus contains many unknowns, has no cure or vaccine, and is predicted to recur.

Bargaining Variances

For those of us who’ve bargained during previous recessions and from time to time during individual orchestra financial challenges, we have always followed a set of guidelines when the employer requests a contract re-opener or during concessionary bargaining. These guidelines are useful whether you are making a variance to an existing agreement or bargaining a renewal.

Open and honest communication is key. Numerous orchestras are actively in conversation with their employers about conditions for returning to work. If approached by the employer to re-open or if your agreement is up for renewal, we should meet with the employer to discuss their views and listen to their plan to return to the stage—without agreeing to reopen. We are not required to reopen the agreement and we do not recommend doing so unless your contract includes an explicit reopener clause, like a wage reopener. By avoiding reopening the contract, we have protection from a unilateral imposition by the employer. We should listen to the employer discuss obstacles and requirements in returning to business and their plans for doing so. Working conditions are mandatory subjects of bargaining and the parties have an obligation to meet and confer. When we have these discussions around an existing agreement, we can create variances where we mutually agree.

Conditions for Agreeing to Variances

As you prepare for discussions with an employer, keep these principles in mind.

• The employer should provide a clear and thorough assessment of the problem. The employer should also be transparent with all information the union needs to assess the problem and work toward a solution. The burden rests with the employer, both to prove the existence of a financial crisis and to provide employees with a safe workplace.

• Concessions (economic) should be viewed as a “loan” by musicians subject to repayment. Wages in a COVID-19 discussion may not be recoverable due to a loss in revenue.

• Variances should not be permanent, and the employer must have a plan to restore to the terms of the original agreement.

• Equality of sacrifice: All aspects of the organization must share in an equal sacrifice (generally wages).

• For per-service musicians, often there is a suspension of the attendance policy.

• Musical termination should be prohibited during the recovery period since a musician’s performance quality may suffer given their scramble to seek work from other sources or add teaching to replace lost wages and other added stresses.

AFM Guidelines for Returning to Work Safely in the Era of COVID-19

The AFM/SSD Resource Center has a comprehensive set of guidelines to be included/considered for inclusion as a part of the conditions for returning to work. They can be accessed in the “COVID-19 Safety Planning” on AFM.org. View it at shorturl.at/dekqE.

Memorializing – Variances to CBA

Changes or variances to the agreement are subject to ratification by the bargaining unit. I recommend creating a document which establishes a list of specific variances to the existing agreement. This agreement should contain a “sunset clause” whereby all the variances expire and revert back to the main agreement on a specified date. This is the place where we begin future bargaining or continue with an unexpired agreement. An expiring agreement can be extended for one season with a short extension agreement just including the variances to the expiring agreement, incorporation of the remaining provisions and a sunset clause.

Term of Agreement

I have read several thoughts on the term of the agreement to be bargained during the pandemic. My view is this: When bargaining during a financial crisis it is acceptable to agree to a long term (multi-year) contract. Doing so makes sense, because you probably need to have time to resolve the problem and achieve restoration. But COVID-19 is not predictable. It is difficult to bargain a multi-year contract when we are not certain about what will happen during the coming summer or, as is the case with numerous orchestras, when will we open and what does that model look like.

In that context, safety of the musicians is the first priority, and the flexibility to adapt an agreement to assure that is of paramount importance.

---