Tag Archives: icsom

Orchestra News

ICSOM Musicians Unite to Show Support for Ukraine

Having only just escaped (hopefully) the worst of the COVID crisis, we find ourselves catapulted into the unquestionably manmade crisis of the war in Ukraine. The stunning hubris of Putin’s invasion has led to untold bloodshed, destruction, and displacement. Western democracies are pushing back by supplying arms, imposing sanctions, and sending aid. Our International Conference of Symphony and Opera Musicians (ICSOM) orchestras are raising awareness and money to help the people of Ukraine.

As of this writing, both the Metropolitan Opera and Rochester Philharmonic Orchestra have held benefit concerts to raise money for humanitarian aid to Ukraine. The Buffalo Philharmonic Orchestra will hold a benefit concert in April. The Cleveland Orchestra dedicated their March 11 concert to the people of Ukraine and lit up the exterior of Severance Hall in blue and yellow. That same week, the Pittsburgh Symphony Orchestra started their program with “Prayer for Ukraine” by Mykola Lysenko, as did ICSOM’s newest member orchestra, Pacific Symphony in Orange County, California. And the Ukrainian national anthem sounded across the country from San Diego, Utah, Phoenix, Detroit, Lyric Opera of Chicago, Atlanta, Jacksonville, Baltimore, and Syracuse’s Symphoria, among others.

Founded in 1948, the International Federation of Musicians (FIM), is a working group of union orchestras from around the world. Seventy musicians’ unions from 60 countries belong to FIM, including the AFM. FIM and the Society of Polish Philharmonics are mounting a campaign of solidarity with the people of Ukraine during this horrific crisis. Throughout the week of March 18, orchestras around the world planned to play “Melodia” by Ukrainian composer Myroslav Skoryk at their performances. A handful of ICSOM orchestras—Alabama, Baltimore, Dallas, and Milwaukee—have already performed “Melodia” for their audiences.

As we are rising from the ashes of the COVID pandemic, we are facing another predicament. This catastrophic and unnecessary war is escalating already rising inflation rates. With more than half of our orchestras negotiating within the next six months, we will be hard pressed to keep pace with rising expenses, to say nothing of making up lost income from the previous two years.

It is a small price to pay considering the devastation and suffering of those directly impacted by the war. And yet the repercussions of Putin’s mad, imperial aggression against Ukraine are being felt around the globe. Just as we are finally coming to terms with global warming and making some progress in the transition to renewable energy, we are being shoved back into the arms of big oil, scrambling for alternative sources to replace Russian oil supplies.

At the bottom of every war fought over the past 60 years is access to oil and gas. Every despot and autocratic regime sitting on repositories of fossil fuels is propped up by our habits of consumption.

And what can an orchestra do in the face of all that?

We can do what we have always done: Help people understand our commonality rather than our differences. Raise awareness. Unite the disparate factions in our societies. Heal the estrangement, isolation, and sorrow with music that stands among the greatest achievements of mankind. We have a voice within our communities and the power to change hearts and minds. Let’s use it.

International Musician, Symphonic Services Division

Symphonic Resurrection

by Meredith Snow, ICSOM Chair and Member of Local 47 (Los Angeles, CA)

After 15 months of pandemic paralysis, our orchestras are going back to work. The quick nationwide rollout of vaccines by the Biden administration is creating the possibility of a near-normal summer season and the probability of a full return this fall.

It is unconscionable that a handful of our managements and boards chose to take remorseless advantage of this crisis at the expense of their musicians. Imposing the long-desired agendas of “right-sizing” and union-busting under cover of this crippling pandemic was ruthless and unethical. I believe in the long run this will cost these institutions, and their standing in the community, much more than was saved in musician expenses.

The dysfunction and ire left in the wake of these actions will not simply evaporate with the next gala opening. It takes years to cultivate the relationships that make our orchestras thrive. It will take at least that long to rebuild what was demolished with the stroke of a pen. Our music—our art—does not exist without the artists who bring it to life. If these board members and managers believe it is acceptable to kick their musicians to the curb and buy new ones for less, they are at best misguided and misplaced. They should not be the curators and stewards of our art.

In contrast, the vast majority of International Conference of Symphony and Opera Musicians (ICSOM) orchestras have come through this calamity in one piece. The Biden administration delivered on federal assistance for the arts and for our AFM-EPF pension fund. Our patrons and donors have stood with us, for which we are deeply grateful. We have found ways to keep in touch and to keep making music.

I hope the revelations of racial and economic inequity in our society will stay at the forefront of our awareness and continue to be addressed within our orchestras. We have the time right now for self-assessment and the opportunity in the coming months to address our hiring practices at every level of our institutions. More inclusive programming, hiring guest artists of every ethnicity, and partnering with businesses of color in our communities, will all move our orchestras toward a more egalitarian workplace and improved representation of the communities in which we live.

Looking ahead, I believe that, in order for our industry to return to normal, we and our audiences must be vaccinated. If we continue to be hampered by masking, distancing, and testing, it will not be possible to make a full return. The economic toll has already been devastating. Vaccines are our ticket to full operational status and a return to our stages.

Will our audiences return to our halls? According to the research study “Audience Outlook Monitor” by the arts consultancy WolfBrown, as of May 2021, 95% of orchestra patrons who responded to the survey are partially or fully vaccinated. When asked about returning to live events, 30% would attend an indoor concert without distancing but with masks. An additional 24% would attend indoors with masks and distancing. The numbers for outdoor events are 49% with no distancing and an additional 36% with distancing—a total of 85% of patrons are ready to attend an outdoor concert right now. And those numbers are steadily increasing.

This is good news for our return. We need to be ready to meet audience demand—our outdoor summer seasons will be upon us in a matter of weeks. It is both thrilling and unnerving, after these many long months, to think we may suddenly return to our stages.

International Musician

ICSOM Update: How Coronavirus is Affecting Our Orchestras

Meredith Snow

by Meredith Snow, ICSOM Chair and Member of Local 47 (Los Angeles, CA)

As of this writing, COVID-19 has just been declared a worldwide pandemic. More extreme measures to contain the spread—social distancing to “flatten the curve” of infection, the shutting down of all unnecessary gatherings, cancellation of the NBA season—are just beginning. We are watching our International Conference of Symphony and Orchestra Musicians (ICSOM) orchestras close down in rapid succession across the country—for two weeks to a month—to potentially aid in slowing the spread of the virus. This is the right and prudent action to take.

We have a small window of opportunity to contain the virus to whatever degree is still possible. An abundance of caution is wise. So far, the majority of our ICSOM orchestras have honored their obligation to pay their musicians and maintain benefits. However, depending on how long these closures need to remain in place, this will most certainly become an economic strain for all parties.

AFM Symphonic Services Division (SSD), ICSOM, Organization of Canadian Symphony Musicians (OCSM), and Regional Orchestra Players’ Association (ROPA) immediately jumped into action. Rochelle Skolnick and Debbie Newmark led the charge to negotiate a side-letter to our Integrated Media Agreement (IMA) that would allow ticketholders, donors, and subscribers access to livestreamed concerts, in addition to archival material. Only a few orchestras, the Jacksonville Symphony, the Philadelphia Orchestra, and Buffalo Philharmonic among them, have taken advantage of the livestream—without an audience—before also closing down. Other orchestras will take full advantage of the opportunity to stream archival product during the hiatus.

SSD has created a link in the SSD Resource Center on the AFM website, titled “Coronavirus Resources” (https://members.afm.org/member/page/id/10633). It includes a legal analysis by ICSOM Counsel, Kevin Case, of the force majeure or “Act of God” clause. Whether an outbreak of a disease like what we are seeing with COVID-19 could trigger a force majeure clause would require an individual analysis of each Collective Bargaining Agreement (CBA), the language of which may differ significantly from contract to contract. Some of our CBAs will have no force majeure clauses at all. Depending on how long our doors will have to remain closed, and when managements may decide they can’t or won’t continue to pay musicians, we will need to have a detailed understanding of what is stated in our own CBA. As always, it will be crucial for each orchestra to work in close coordination with their local, and where possible, with their local’s attorney.

In contrast to our own federal government, the German government has already announced immediate financial support for the arts sector and for freelancers due to the COVID-19 crisis. The German government is in close touch and collaborates with the 16 federal culture ministers of the German states to find pragmatic solutions. Gerald Mertens, CEO of the German Orchestra Association (DOV) and Editor-in Chief of das Orchester, contacted ICSOM President Paul Austin with this good news. Within 48 hours of posting on our Twitter account, @ICSOM, this message had been liked by 20,000 people and shared 6,000 times.

Our orchestras are vital contributors to the non-profit sector and an important economic engine for the communities they serve. The League of American Orchestras (LAO) has launched an email campaign in support of legislation that would provide federal economic assistance to non-profits throughout the country (www.votervoice.net/mobile/LAO/campaigns/72338/respond). We must demand that our own government recognize and support the integral role that our artists and musicians play in the economy of the United States.

We ICSOM musicians must count ourselves fortunate in that we have probably the most comprehensive economic protections in our contracts that exist within the AFM. Many of our colleagues, not least of which our own substitute and extra musicians, do not have the same guarantees that we are afforded. Some of our ICSOM musicians in San Francisco and Cincinnati have assisted in setting up GoFundMe campaigns to help their local freelance players. The musicians of Chicago Lyric Opera Orchestra negotiated a 10% reduction in their own compensation in order to keep their extra musicians on the payroll.

Not knowing how long this shutdown may last, nor how severe our economy will be impacted in its aftermath, it behooves us to remember their precarious position and to demand that our employers fulfill their obligation to our subs and extras as well as to us. Together, as a union, we will weather this storm. Stay safe out there.

force majeure
International Musician

ICSOM Provides Legal Guidance Regarding the Application of Force Majeure Due to Coronavirus Threat

By Kevin Case, ICSOM Counsel and Member of Local 10-208 (Chicago, IL)

Editor’s note: This article was a memo sent to International Conference of Symphony and Opera Musicians (ICSOM) delegates and committee chairs, and a version of this is appearing in the ICSOM newsletter Senza Sordino. It is being reprinted with permission.

Dear Delegates:

As you know, the COVID-19 situation is developing rapidly and has begun to impact our orchestras. Several have canceled or are planning to cancel concerts and upcoming tours, sometimes voluntarily and sometimes in response to orders from a municipal government or other controlling authority. Musicians have concerns about the legal implications of this on their employment—particularly the application of force majeure or “Act of God” clauses—and about how to work with management in this uncertain time.

This message is intended to provide (1) legal guidance regarding the application of force majeure and (2) practical guidance as to steps you may want to take in dealing with management. As always, however, it is crucial that your orchestra committee work closely with your local, and, where possible, solicit advice from your local’s attorney regarding the interpretation of your particular Collective Bargaining Agreement (CBA).

Force Majeure

Whether an outbreak of a disease like COVID-19 triggers a force majeure clause in a CBA requires an individualized analysis of the language. The answer may vary significantly from employer to employer.

A CBA is a binding obligation. An employer is bound by the promises it has made in the CBA and cannot be relieved of those obligations absent agreement by the union, or bankruptcy. However, the CBA itself may contain provisions that permit the employer to suspend all or part of its obligations upon the occurrence of certain contingencies (which is the written manifestation of “agreement by the union”). That is where force majeure clauses come in. A force majeure provision in a contract (otherwise called an “Act of God” clause) may relieve a party from performing its contractual obligations when circumstances beyond the party’s control arise which make the party’s performance of those obligations impossible.

Force majeure is a creature of the contract. It is not an overriding principle of contract law. That means there is typically no such thing as an “implied” force majeure provision; rather, the parties must have explicitly agreed that a force majeure event may excuse non-performance. Moreover, force majeure clauses are strictly construed by courts and arbitrators, which means that the party seeking to invoke a force majeure event will be held to the precise language the parties used in their contract.

There are a wide variety of approaches to force majeure in our orchestra CBAs. Some don’t have a force majeure clause at all. Others simply refer to an “Act of God” or permit the employer to suspend its obligation “by reason of force majeure” without further elaboration. Many list examples of natural force majeure events, such as “floods, fires, earthquakes, hurricanes,” etc. Some also include man-made events like “war” or “civil strife.” A few (unfortunately) refer to economic hardship, which on its own is not a force majeure event, but which will be enforced if the parties have agreed to put it in their agreement. Many contain a “catch-all” provision such as “other events beyond the control of the employer.”

For present purposes, I’ve identified three scenarios for discussion: (1) a CBA without a force majeure clause at all; (2) a force majeure clause that contains only the terms “force majeure” or “Act of God,” without further definition; and (3) a force majeure clause that lists specific events.

1. No Force Majeure Clause At All

Because a CBA is a contract that is enforced primarily through arbitration, the body of law that governs the interpretation of a CBA has been developed through arbitration decisions; those decisions, in turn, often incorporate common-law contract principles. Although contract law varies from state to state, courts will not imply a force majeure provision if it does not exist in the contract.

The same cannot always be said for arbitrators, who sometimes inject subjective considerations into their decisions. Consequently, one can find a few arbitration awards that excuse an employer’s performance in cases of, for example, extremely severe weather, even in the absence of a force majeure clause. Those cases are outliers, however, as they are inconsistent with contract law (and the well-settled principle that arbitrators are forbidden to add to or modify the terms of a CBA).

Therefore, if your CBA lacks a force majeure clause, then your management should not be able to suspend its obligations and cut off your pay and benefits in the event that COVID-19 forces some kind of shutdown. That doesn’t mean your management may not try to do so, in which case you may end up in arbitration. (Note that my analysis here applies primarily to full-time, salaried musicians; for per-service musicians, subs, and extras, management may have more flexibility to cancel services without payment, depending on the language in those orchestras’ CBAs.)

There is also a chance your management may cite “impossibility” as permitting suspension of its obligations in a shutdown. There is indeed an “impossibility doctrine” in contract law, but it is rarely applied to CBAs and should have no place here. When it comes to paying musicians their salary and maintaining benefits, nothing about COVID-19 has rendered that “impossible.” If the city shuts down your venue, it may be impossible for the orchestra to actually perform; but that doesn’t mean it is impossible to pay the musicians. Payroll can still operate.

Impossibility also applies only when the event was plainly unforeseeable, such that the parties would have been unable to provide for the risk of that event in their contract. Although pandemics may not have been specifically contemplated by the parties when your CBA was negotiated, the risk of an event that would preclude a concert from occurring was always known—indeed, that’s the whole reason for force majeure language: “fire, flood, earthquake,” etc. Management presumably had every opportunity to bargain for such force majeure language so as to mitigate its risk; and if management failed to do so, it can’t assert “impossibility” now.

2. Force Majeure Clause Simply Says “Force Majeure” or “Act of God”

There is no standard definition of the terms “force majeure” or “Act of God.” Rather, such terms have whatever meaning the parties chose to give them in the contract. That’s not helpful, though, if the parties declined to specify that meaning and simply used the terms in isolation. There are two schools of thought. One says a force majeure event must result solely from natural causes and not from any human action; so, even if the initial cause was wholly natural, it doesn’t count if the event involves human actions taken in response. Under that approach, concert cancellations as the result of a governmental order would not be deemed an “Act of God” because even though Covid-19 arose from natural forces, the decision to close venues was made by human beings. In other words, there would be a distinction between the pandemic itself and a government measure taken in response.

Different arbitrators come to different conclusions, though, and the second school of thought holds that even if the decision was made by management or others, it is nonetheless considered an “Act of God” if the “real reason” was the natural event. So, under that approach, a concert cancellation by municipal order might still be seen as an “Act of God,” even though a significant amount of human decision-making would be involved. On the other hand, if your management voluntarily canceled concerts without being directed to do so by the city or other controlling authority, it is less likely that would be deemed a force majeure event. A subjective judgment call by your executive director shouldn’t be considered an “Act of God.”

3. Force Majeure Clause Lists Specific Events

Where a force majeure provision lists examples of qualifying events, courts construe the language narrowly to apply force majeure to only the events specifically identified. Cleary, then, a force majeure clause that refers to “epidemic,” “plague,” “quarantine,” or even “public health emergency” would encompass a COVID-19 shutdown. Similarly, if the clause specifies governmental action, then a venue shutdown by municipal order would likely qualify. But if the list of events is confined to specified natural disasters, war, or civil disturbance, then a COVID-19 shutdown should properly be considered outside the scope of that force majeure clause. Similarly, if your force majeure clause lists “work stoppages,” that will be deemed to mean a strike or lockout—not just any stoppage of work for any reason.

Note that if the list ends with the clause “other similar act, event, or occurrence,” that doesn’t necessarily expand the scope of the provision. The principle of contract interpretation for such clauses is that “other” means events of the same kind or nature as the specific events mentioned. However, the same may not be true if the force majeure provision ends with a catch-all clause like “other causes beyond the control of the employer.” The “beyond the control of the employer” clause is often deemed to encompass any event that is, well, beyond the control of the employer. If your CBA has that language, then it is more likely that a COVID-19-related shutdown would be considered a force majeure event.

Practical Steps

There should be no doubt whatsoever as to ICSOM’s position: In the event of any cancellations or shutdowns in our orchestras, whether voluntary or involuntary, orchestra managements should maintain salary and benefits for their musicians, including subs and extras (or other per-service musicians) that have been engaged for canceled services. In other words, regardless of whether your management can legally invoke a force majeure clause, it should not do so.

It is in everyone’s best interests to come to an understanding on this issue. Clearly, your managements need flexibility to deal with this crisis: schedules will need to be revamped; locations may need to change; and some orchestras may find it viable to stream concerts rather than perform before a full audience. Just as clearly, you need assurances that you will continue to be paid and your health insurance and other benefits will continue.

Working collaboratively with your management to provide such flexibility in exchange for the assurances you need would thus be a positive outcome. At the local/OC level, that means a willingness to provide waivers where management makes a compelling case that a waiver is necessary. With respect to media, Debbie Newmark and Rochelle Skolnick at the AFM’s Symphonic Services Division can handle discussions with your managements regarding streaming and similar media options. (You can expect to hear from Rochelle and Debbie on this topic shortly.)

Again, however, any such flexibility should be provided only if you get the assurances you need from management (including with respect to subs and extras). Further, you should hold management to a burden of demonstrating that any requested changes are truly necessary. That means management must come up with an actual plan for dealing with COVID-19 going well into the future—not simply an ad hoc, short-term reaction. You should also insist on total transparency from management, including with respect to the financial impact of any cancellations and efforts to replace lost revenue.

To that end, you should consider making an information request to management regarding any business interruption insurance policy maintained by the orchestra. Granted, many such policies specifically exclude from coverage interruptions caused by epidemics, or limit coverage to physical damage. But if there is a chance that the organization may be insured in whole or in part for financial losses caused by a shutdown, then you need to know about it.

There are sound reasons why your managements should decline to inoke force majeure during this crisis. For one thing, any management that cites COVID-19 to cut off pay and benefits would essentially be declaring war on its musicians. However difficult CBA negotiations may have been in the past, or however tense the relationship has been, that would be nothing compared to the fallout resulting from any such decision. The damage would be far-reaching and permanent.

It is also a simple matter of fairness. It comes down to a question of who is best able to withstand the pain of a COVID-19 shutdown. The answer is obvious. Yes, the employer will lose money and its financial condition may ultimately become precarious. But if the musicians lose their pay and benefits, then they won’t be able to buy food, go to the doctor, or pay their mortgage. Even if the orchestra is forced to dip into emergency reserves or its endowment, and even if that means future CBA negotiations will be more challenging because of it, that would be a far better outcome than one in which the very lives of musicians and their families are put at risk.

ICSOM will provide further guidance as circumstances require.

Orchestra News, Symphonic Services Division

ICSOM Provides Legal Guidance Regarding the Application of Force Majeure Due to Coronavirus Threat

By Kevin Case, ICSOM Counsel and Member of Local 10-208 (Chicago, IL)

Editor’s note: This article was a memo sent to International Conference of Symphony and Opera Musicians (ICSOM) delegates and committee chairs, and a version of this is appearing in the ICSOM newsletter Senza Sordino. It is being reprinted with permission.

Dear Delegates:

As you know, the Covid-19 situation is developing rapidly and has begun to impact our orchestras. Several have cancelled or are planning to cancel concerts and upcoming tours, sometimes voluntarily and sometimes in response to orders from a municipal government or other controlling authority. Musicians have concerns about the legal implications of this on their employment—particularly the application of force majeure or “Act of God” clauses—and about how to work with management in this uncertain time.

This message is intended to provide (1) legal guidance regarding the application of force majeure and (2) practical guidance as to steps you may want to take in dealing with management. As always, however, it is crucial that your orchestra committee work closely with your local, and, where possible, solicit advice from your local’s attorney regarding the interpretation of your particular Collective Bargaining Agreement (CBA).

Force Majeure

Whether an outbreak of a disease like Covid-19 triggers a force majeure clause in a CBA requires an individualized analysis of the language. The answer may vary significantly from employer to employer.

A CBA is a binding obligation. An employer is bound by the promises it has made in the CBA and cannot be relieved of those obligations absent agreement by the union, or bankruptcy. However, the CBA itself may contain provisions that permit the employer to suspend all or part of its obligations upon the occurrence of certain contingencies (which is the written manifestation of “agreement by the union”). That is where force majeure clauses come in. A force majeure provision in a contract (otherwise called an “Act of God” clause) may relieve a party from performing its contractual obligations when circumstances beyond the party’s control arise which make the party’s performance of those obligations impossible.

Force majeure is a creature of the contract. It is not an overriding principle of contract law. That means there is typically no such thing as an “implied” force majeure provision; rather, the parties must have explicitly agreed that a force majeure event may excuse non-performance. Moreover, force majeure clauses are strictly construed by courts and arbitrators, which means that the party seeking to invoke a force majeure event will be held to the precise language the parties used in their contract.

There are a wide variety of approaches to force majeure in our orchestra CBAs. Some don’t have a force majeure clause at all. Others simply refer to an “Act of God” or permit the employer to suspend its obligation “by reason of force majeure” without further elaboration. Many list examples of natural force majeure events, such as “floods, fires, earthquakes, hurricanes,” etc. Some also include man-made events like “war” or “civil strife.” A few (unfortunately) refer to economic hardship, which on its own is not a force majeure event, but which will be enforced if the parties have agreed to put it in their agreement. Many contain a “catch-all” provision such as “other events beyond the control of the employer.”

For present purposes, I’ve identified three scenarios for discussion: (1) a CBA without a force majeure clause at all; (2) a force majeure clause that contains only the terms “force majeure” or “Act of God,” without further definition; and (3) a force majeure clause that lists specific events.

1. No force majeure clause at all

Because a CBA is a contract that is enforced primarily through arbitration, the body of law that governs the interpretation of a CBA has been developed through arbitration decisions; those decisions, in turn, often incorporate common-law contract principles. Although contract law varies from state to state, courts will not imply a force majeure provision if it does not exist in the contract.

The same cannot always be said for arbitrators, who sometimes inject subjective considerations into their decisions. Consequently, one can find a few arbitration awards that excuse an employer’s performance in cases of, for example, extremely severe weather, even in the absence of a force majeure clause. Those cases are outliers, however, as they are inconsistent with contract law (and the well-settled principle that arbitrators are forbidden to add to or modify the terms of a CBA).

Therefore, if your CBA lacks a force majeure clause, then your management should not be able to suspend its obligations and cut off your pay and benefits in the event that Covid-19 forces some kind of shutdown. That doesn’t mean your management may not try to do so, in which case you may end up in arbitration. (Note that my analysis here applies primarily to full-time, salaried musicians; for per-service musicians, subs, and extras, management may have more flexibility to cancel services without payment, depending on the language in those orchestras’ CBAs.)

There is also a chance your management may cite “impossibility” as permitting suspension of its obligations in a shutdown. There is indeed an “impossibility doctrine” in contract law, but it is rarely applied to CBAs and should have no place here. When it comes to paying musicians their salary and maintaining benefits, nothing about Covid-19 has rendered that “impossible.” If the city shuts down your venue, it may be impossible for the orchestra to actually perform; but that doesn’t mean it is impossible to pay the musicians. Payroll can still operate.

Impossibility also applies only when the event was plainly unforeseeable, such that the parties would have been unable to provide for the risk of that event in their contract. Although pandemics may not have been specifically contemplated by the parties when your CBA was negotiated, the risk of an event that would preclude a concert from occurring was always known—indeed, that’s the whole reason for force majeure language, “fire, flood, earthquake,” etc. Management presumably had every opportunity to bargain for such force majeure language so as to mitigate its risk; and if management failed to do so, it can’t assert “impossibility” now.

2. Force majeure clause simply says “force majeure” or “Act of God”

There is no standard definition of the terms “force majeure” or “Act of God.” Rather, such terms have whatever meaning the parties chose to give them in the contract. That’s not helpful, though, if the parties declined to specify that meaning and simply used the terms in isolation. There are two schools of thought. One says a force majeure event must result solely from natural causes and not from any human action; so, even if the initial cause was wholly natural, it doesn’t count if the event involves human actions taken in response. Under that approach, concert cancellations as the result of a governmental order would not be deemed an “Act of God” because even though Covid-19 arose from natural forces, the decision to close venues was made by human beings. In other words, there would be a distinction between the pandemic itself and a government measure taken in response.

Different arbitrators come to different conclusions, though, and the second school of thought holds that even if the decision was made by management or others, it is nonetheless considered an “Act of God” if the “real reason” was the natural event. So, under that approach, a concert cancellation by municipal order might still be seen as an “Act of God,” even though a significant amount of human decision-making would be involved. On the other hand, if your management voluntarily cancelled concerts without being directed to do so by the city or other controlling authority, it is less likely that would be deemed a force majeure event. A subjective judgment call by your executive director shouldn’t be considered an “Act of God.”

3. Force majeure clause lists specific events

Where a force majeure provision lists examples of qualifying events, courts construe the language narrowly to apply force majeure to only the events specifically identified. Cleary, then, a force majeure clause that refers to “epidemic,” “plague,” “quarantine,” or even “public health emergency” would encompass a Covid-19 shutdown. Similarly, if the clause specifies governmental action, then a venue shutdown by municipal order would likely qualify. But if the list of events is confined to specified natural disasters, war, or civil disturbance, then a Covid-19 shutdown should properly be considered outside the scope of that force majeure clause. Similarly, if your force majeure clause lists “work stoppages,” that will be deemed to mean a strike or lockout—not just any stoppage of work for any reason.

Note that if the list ends with the clause “other similar act, event, or occurrence,” that doesn’t necessarily expand the scope of the provision. The principle of contract interpretation for such clauses is that “other” means events of the same kind or nature as the specific events mentioned. However, the same may not be true if the force majeure provision ends with a catch-all clause like “other causes beyond the control of the employer.” The “beyond the control of the employer” clause is often deemed to encompass any event that is, well, beyond the control of the employer. If your CBA has that language, then it is more likely that a Covid-19-related shutdown would be considered a force majeure event.

Practical Steps

There should be no doubt whatsoever as to ICSOM’s position: In the event of any cancellations or shutdowns in our orchestras, whether voluntary or involuntary, orchestra managements should maintain salary and benefits for their musicians, including subs and extras (or other per-service musicians) that have been engaged for cancelled services. In other words, regardless of whether your management can legally invoke a force majeure clause, it should not do so.

It is in everyone’s best interests to come to an understanding on this issue. Clearly, your managements need flexibility to deal with this crisis: schedules will need to be revamped; locations may need to change; and some orchestras may find it viable to stream concerts rather than perform before a full audience. Just as clearly, you need assurances that you will continue to be paid and your health insurance and other benefits will continue.

Working collaboratively with your management to provide such flexibility in exchange for the assurances you need would thus be a positive outcome. At the local/OC level, that means a willingness to provide waivers where management makes a compelling case that a waiver is necessary. With respect to media, Debbie Newmark and Rochelle Skolnick at the AFM’s Symphonic Services Division can handle discussions with your managements regarding streaming and similar media options. (You can expect to hear from Rochelle and Debbie on this topic shortly.)

Again, however, any such flexibility should be provided only if you get the assurances you need from management (including with respect to subs and extras). Further, you should hold management to a burden of demonstrating that any requested changes are truly necessary. That means management must come up with an actual plan for dealing with Covid-19 going well into the future—not simply an ad hoc, short-term reaction. You should also insist on total transparency from management, including with respect to the financial impact of any cancellations and efforts to replace lost revenue.

To that end, you should consider making an information request to management regarding any business interruption insurance policy maintained by the orchestra. Granted, many such policies specifically exclude from coverage interruptions caused by epidemics, or limit coverage to physical damage. But if there is a chance that the organization may be insured in whole or in part for financial losses caused by a shutdown, then you need to know about it.

There are sound reasons why your managements should decline to invoke force majeure during this crisis. For one thing, any management that cites Covid-19 to cut off pay and benefits would essentially be declaring war on its musicians. However difficult CBA negotiations may have been in the past, or however tense the relationship has been, that would be nothing compared to the fallout resulting from any such decision. The damage would be far-reaching and permanent.

It is also a simple matter of fairness. It comes down to a question of who is best able to withstand the pain of a Covid-19 shutdown. The answer is obvious. Yes, the employer will lose money and its financial condition may ultimately become precarious. But if the musicians lose their pay and benefits, then they won’t be able to buy food, go to the doctor, or pay their mortgage. Even if the orchestra is forced to dip into emergency reserves or its endowment, and even if that means future CBA negotiations will be more challenging because of it, that would be a far better outcome than one in which the very lives of musicians and their families are put at risk.

ICSOM will provide further guidance as circumstances require.

Organizing

Partnering with Our Communities

by Meredith Snow, ICSOM Chair and Member of Local 47 (Los Angeles, CA)

No orchestra exists in a vacuum. We are part of the fabric of the communities in which we live. Great musicians, our union, and our management and boards are just the beginning. If we isolate ourselves from our audiences and donors, from our community, then what we have to offer becomes pointless. Being accessible and vital partners in our communities is key to the success of our International Conference of Symphony and Opera Musicians (ICSOM) orchestras. The music we play is global, but we are local. We must think and act accordingly, reaching outside the doors of our concert halls to engage with our citizens.

And we do. Our orchestras participate in education initiatives and humanitarian aid, and partner with health and wellness organizations across the country. ICSOM maintains a Twitter feed (@ICSOM) of all things orchestral at ICSOM. Here is just a small sample of activities from the past few months:

April 23: San Francisco Symphony celebrates the 30-year anniversary of their Adventures in Music (AIM) program. In partnership with San Francisco United School District, AIM provides live performance, music education, and lessons to every public elementary school in San Francisco and is designed to enhance language arts, social studies, and science classes.

April 26: Musicians from The Philadelphia Orchestra organize a chamber concert to benefit Syrian refugees.

May 2: Utah Symphony musicians and musicians from The Cleveland Orchestra participate in five-day workshop in Cap-Haïtien, Haiti, culminating in a performance of Tchaikovsky 5th Symphony.

May 7: Detroit Symphony Orchestra (DSO) and the Detroit Pistons partner in a multi-year education initiative to enhance music education for local youth. Donations support the New Youth Percussion Ensemble, the Annual Sphinx Competition, and underwrite tickets for free DSO public school concerts.

May 8: Oregon Symphony and Maybelle Community Singers premiere Gabriel Kahane’s “emergency shelter intake form,” a symphonic and vocal work based on the experiences of homelessness.

May 15: Los Angeles Philharmonic announces four musicians selected for a new resident fellows program launched this year with the purpose of creating a pathway toward more diverse and inclusive orchestras.

May 16: New York Philharmonic, in collaboration with the Harmony Project, selects students from low income neighborhoods for a year-long mentorship program.

May 17: Thanks to an $80,000 grant from Hillsborough County, The Florida Orchestra will begin tutoring at-risk youth, free of charge, through the Prodigy after school program.

June 8: Minnesota Orchestra tickets go on sale for five sensory-friendly, family concerts and three small-ensemble concerts for 2018-2019 season. The audience is encouraged to move, vocalize, clap, and respond to the music freely, at any time.

These are just a few of the most recent news stories about our ICSOM orchestras’ social initiatives. Every one of our 52 orchestras are involved in music education, either through their own programs or in collaboration with already existing organizations and schools. Many of our musicians play live music at prisons, hospitals, shelters, and soup kitchens—helping out and bringing a message of hope and healing where it is needed.

We are in a unique and privileged position to bring awareness where social injustice and need exist. The music we play is not just beautiful. It is founded at its deepest level on human aspiration and the search for meaning. Mozart’s Da Ponte operas were conceived with the idea of the inherent equality of humankind. Beethoven’s Fidelio is about the struggle for justice and liberty. Wagner’s operas explore the gamut of human emotion and desire. We bring this understanding of our shared humanity to every performance. We can inspire that awareness in those who hear us.

Equality and accessibility regardless of race, color, creed, religion, gender, physical ability, or sexual orientation is a core value of union labor. It is everyone’s responsibility to recognize inequities in our society and work to ameliorate them. Our orchestras themselves are not immune to bias. But, by the very nature of what we do, we possess a unique ability to cut through the ignorance and rhetoric that blind us all to the suffering in our communities. With the talent and capabilities we already possess, we can call attention, sway hearts and minds, and foster awareness of our universal humanity.

ropa's 34th annual conference
Organizing

ROPA’s 34th Annual Conference: Working with Other Player Conferences and the AFM

by John Michael Smith, ROPA President and Member of Local 30-73
(St. Paul-Minneapolis, MN)

The Regional Orchestra Players’ Association will hold its 34th annual conference in Portland, Oregon, July 31-August 2. The conference will be held at University Place Hotel & Conference Center, on the campus of Portland State University. Our conference will feature presentations on a variety of subjects of interest to our members, including hearing wellness, sexual harassment, performance anxiety, and diversity and inclusiveness in our orchestras, opera, and ballet companies.

ROPA is one of three AFM symphonic player conferences, along with the International Conference of Symphony and Opera Musicians (ICSOM) and the Organization of Canadian Symphony Musicians (OCSM). These three AFM player conferences work closely with the AFM’s Symphonic Services Division (SSD). Throughout the year, representatives of these player conferences meet and communicate with SSD staff in person, by email, and through phone conference calls to discuss issues and topics of mutual interest.

ROPA, ICSOM, and OCSM, together with the Theater Musicians’ Association (TMA) and the Recording Musicians’ Association (RMA), comprise the player conferences of the AFM. The leaders of each of these player conferences comprise the Player Conferences Council (PCC). This council periodically discusses issues of mutual importance among our conferences. In years when there is no AFM Convention, we meet together with representatives of the Locals’ Conferences Council (LCC) to address topics and issues.

It is important to note that each player conference usually sends a representative to address and attend the other player conferences’ annual meetings. This is especially true of the three symphonic player conferences. SSD staff members attend each of the symphonic player conferences and do presentations on important current topics. The AFM president, other AFM officers, and members of the AFM International Executive Board (IEB) may also attend the player conference annual meetings.

Along with ICSOM, AFM, and SSD staff, ROPA participates in the negotiation of national agreements that directly affect our members, such as the current negotiations for the Integrated Media Agreement. ROPA has an Emergency Relief Fund maintained and administered by a board of trustees made up of the AFM international secretary-treasurer, the ROPA president and treasurer, and two additional trustees selected by the IEB. The fund provides financial assistance loans to musicians in orchestras who are involved in strikes or lockouts. ROPA, ICSOM, and OCSM also have a relationship with conductor evaluations, providing information for search committees of orchestras looking for conductors or music directors. Each player conference has its own database, but shares files with the other player conferences upon request.

ROPA, ICSOM, and SSD staff frequently provide educational programs for musicians new to the AFM and the symphonic field, such as the fellows of New World Symphony. ROPA and ICSOM have participated at the Sphinx Organization’s SphinxConnect, where the focus is diversity action and leadership in our orchestras. ROPA and ICSOM representatives often attend the League of American Orchestras national conferences.

ROPA publishes its quarterly newsletter The Leading Tone both in print and electronically. This publication goes to musicians in our member orchestras, other player conference musicians, AFM locals, and others by subscription. ROPA has a website (ropaweb.org), a Facebook page, and is developing other social media pages. ROPA and the other player conferences have email discussion lists, with general lists for members of orchestras, locals, and others interested in topics of common interest to the player conference. Each of the player conferences may permit members of other player conferences to access their general lists.

The Player Conferences of the AFM, the Symphonic Services Division, and the AFM are working every day, side by side on the missions and goals for our musicians,
our orchestras, and our union. We are stronger together!

Organizing

Internal Organizing in Our ICSOM Orchestras

by Meredith Snow, Chair, International Conference of Symphony  and Opera Musicians (ICSOM)

The cohesive internal organization of an orchestra is the foundation of a strong bargaining unit. The more our musicians know about the structure of their collective bargaining agreements (CBA) and how committees function, and the more they are willing to participate in the civic life of their orchestra, the greater will be their success in negotiations, and the greater will be the success of the institution as a whole.

The orchestra, as a social construct, has a centuries-old history of hierarchal rank and deportment, from conductor to concertmaster to last stand violas. The mannerisms remain, but our unionization has revolutionized the status quo behind the scenes. The power to negotiate pay and working conditions that are fair and beneficial to all and the protection of tenure has created a more equal and just workplace.

All of our International Conference of Symphony and Opera Musicians (ICSOM) orchestras have both a CBA (negotiated by musicians and locals) and bylaws, which carefully outline the duties of committees, and the relationships of members to each other and to management. While each orchestra may divide responsibilities differently, an orchestra committee (OC) generally oversees the implementation of the CBA; some form of Auditions Committee will manage auditions and tenure review in conjunction with the music director; and an artistic liaison committee may address programing, conductor review, and possibly workload issues that can occur within the bounds of the CBA.

Many orchestras now have a separate negotiating committee. In recent years, orchestras have formed social media committees and community outreach committees to foster connection with their current and potential audiences. And I would be remiss if I did not acknowledge the coffee makers—the unsung heroes who come in early to rehearsal and start the coffee brewing. A fresh cup of coffee is, in and of itself, an internal organizing tool. We tend to concentrate our attention on the grand gestures and positions of power, but it is small considerations that foster good relationships.

The configuration and number of members of these committees, makeup of the audition panel, and other details are specified in each orchestra’s bylaws. The various duties have become increasingly complex over the years to the extent that many orchestras now have a crossover system where OC members also serve on the other committees to be sure that the contract and bylaws are not overlooked or undermined.

As with any civil service, working on a committee can be challenging and rewarding in equal measure. But having strong committees is absolutely vital to the health of an orchestra. They are the connective tissue that binds our members together, as well as the central nervous system in our interaction with management. A clear understanding of our relationships creates a strong bond, especially needed in times of adversity, and makes it possible to build a culture of mutual respect and responsiveness, not only between musicians, but with management as well.

Serving on committees is a voluntary activity. Our members donate their time for the good of all. While many members volunteer, others need encouragement. In many orchestras, the ICSOM delegate and a committee member will invite newly hired musicians to lunch to explain the organizational structure of their new job. Some orchestras have created a handbook to simplify understanding of the densely-written CBA and bylaws. We are always recruiting. Asking musicians to volunteer for activities that benefit other organizations, such as soup kitchens or disaster relief groups, is a doubly beneficial organizing tool. You are solidifying your own relationships while helping others.

Open and respectful communication is key. Committee members can and should be available to speak with other orchestra members, but there is no substitute for general meetings, which help draw together all the musicians in an orchestra. Aspirations, irritations, complications, what’s working, what’s not—all need an open forum to be addressed. The better we understand one another, the stronger we are as a unit. Considering we all play in the same orchestra, it is surprising how different the pressures and expectations of each instrument group are. Understanding our different perspectives helps unify our membership. The stronger we are as a union, the greater our success in negotiations.

ICSOM Conference
Orchestra News

ICSOM Conference Convenes in Buffalo

by Laura Ross, ICSOM Secretary and Member of Nashville Symphony and Local 257 (Nashville, TN)

The 55th annual International Conference of Symphony and Opera Musicians (ICSOM) Conference, hosted by the Buffalo Philharmonic Orchestra (BPO) and Local 92, was held at the Adam’s Mark Hotel in Buffalo, New York, August 23-26.

ICSOM delegates once again volunteered for a special service event in our host orchestra’s city. This time they partnered with BPO Kids for Exceptional Kids, a program benefiting kids with autism spectrum disorders, cancer, and other chronic physical or health challenges. Thanks to BPO ICSOM Delegate and Member-at-Large Dan Sweeley (of Local 92) for putting this and other conference activities together.

While the “official” beginning of the conference was Wednesday morning, a negotiating workshop led by ICSOM Counsel Kevin Case, a member of Local 10-208 (Chicago, IL) was held Tuesday evening. Before the opening session Wednesday morning, new delegates attended a breakfast to preview what to expect during the conference.

In her first year as ICSOM chair, Meredith Snow (Los Angeles Philharmonic, Local 47) gave the opening address. She reminded delegates that, as our orchestra committees have become stronger, there is a risk that our orchestras may come to view the AFM as a separate entity. But we, the musicians, are the union. We need to uphold the value of our labor and stand up for our colleagues. Individual actions matter. She encouraged ICSOM musicians to reinforce their commitment to their locals, the AFM, and each other. ICSOM is here to help ensure that everyone thrives.

ICSOM President George Brown (Utah Symphony, Local 104) spoke about diversity within the entire orchestral organization—stage, administration, and boards.

AFM Political and Legislative Director Alphonso Pollard reported on various legislative issues, including bills that erode labor protection such as national “right to work” bills proposed in the House and Senate. AFM Symphonic Services Division (SSD) Director Rochelle Skolnick and AFM Negotiator Todd Jelen designed a series of workplace scenarios for delegates and local officers to discuss in smaller breakout groups. A mixer at Pearl Street Grill and Brewery on Wednesday evening offered excellent music, food, and an unobstructed view of a glorious sunset on Lake Erie.

On Thursday, delegates heard reports from officers and others. We were pleased to welcome back two ICSOM Emeritus Presidents—AFM Strike Fund Trustees David Angus (Rochester Philharmonic Orchestra, Local 66) and Brian Rood (Kansas City Symphony, Local 34-627). Rood, who also serves as chair of ICSOM’s Electronic Media Committee, and AFM SSD Electronic Media Director Debbie Newmark quizzed delegates about the types of work covered by the Integrated Media Agreement (IMA).

A presentation by ICSOM Counsel Kevin Case and David Sywak (Dallas Symphony Orchestra, Local 72-147) discussed health care bargaining options. The afternoon was devoted to an AFM and Employers’ Pension Fund (AFM-EPF) presentation by fund trustees, staff, advisors, and counsel. That evening, ICSOM’s annual Town Hall, a closed session for delegates and the governing board, discussed issues of importance.

Case moderated a panel of orchestra leaders—musicians, administrative, conductors, and a mediator—that examined the dynamics of orchestra relations in a discussion entitled “Back from the Brink.” ICSOM provided a luncheon for members-at-large and their orchestra delegates to discuss a broad range of issues. Each member-at-large oversees 13 orchestras. Following lunch, Meredith Snow moderated a panel discussion examining diversity within our orchestral organizations. More than 40 conference attendees went to view the American Falls at Niagara Falls in the evening.

ICSOM Conference

A large group of attendees from the 55th Annual International Conference of Symphony and Opera Musicians (ICSOM) gathered in front of the Adam’s Mark Hotel Fountain in Buffalo, New York. They were wearing T-shirts supporting individual orchestras and arts organizations.

On Saturday, Cypress Media President Randy Whatley provided tips about how musicians can craft a community relations program. Kevin Case introduced a welcome addition to the conference: an open forum for delegates to ask questions of legal counsel.

Delegates adopted resolutions addressing the AFM-EPF, national right to work legislation, implementation of an online conductor evaluation survey, and ICSOM’s response to recent events in Charlottesville, Virginia. Resolutions were also adopted honoring George Brown as he stepped down as ICSOM President, and Paul Gunther of Local 30-73 (Minneapolis-St. Paul, MN) who stepped down as a member-at-large after 11 years, following his retirement from the Minnesota Orchestra.

Paul Austin (Grand Rapids Symphony, Local 56) was elected ICSOM President and ICSOM Secretary Laura Ross (Nashville Symphony, Local 257) was re-elected. Kimberly Tichenor (Louisville Orchestra, Local 11-637) and Martin Andersen (New Jersey Symphony Orchestra, Local 16-248) were elected to two-year member-at-large positions; Greg Mulligan (Baltimore Symphony Orchestra, Local 40-543) was elected to a one-year member-at-large position.

Many thanks to the Buffalo Philharmonic Orchestra and Local 92 President Jim Pace for a wonderful conference. The 2018 ICSOM Conference will be held in Cincinnati, Ohio, August 22-25.

Recent News

Diversity and Inclusion in Our Orchestras

by Meredith Snow, ICSOM Chair and Member of Local 47 (Los Angeles, CA)

A flourishing cultural life, to which people of every race, ethnicity, gender, and class are invited and can see themselves reflected, is essential to our democracy. The creative expression of our differing stories enables us to better understand our commonality. If our orchestras are to remain relevant in a changing society, we must begin to reflect that diversity both on stage and behind the scenes.

While the gender gap has closed significantly since the 1990s, with women holding 46% to 49% of orchestra positions, the proportion of African Americans (1.8%) and Hispanic/Latinos (2.5%), has remained extremely low and largely unchanged since 1978, according to data collected by the League of American Orchestras. In contrast, there has been a large proportional increase in Asian/Pacific Islander musicians from 5.3% in 2002 to 9.1% in 2014.

It is worth noting that ethnic diversity in smaller budget orchestras is nearly twice that of the larger orchestras ($2.1 million and up). Conversely, large budget orchestras are twice as likely to hire African American or Hispanic/Latino conductors than small budget orchestras. Despite a few recent high profile appointments of women conductors, the gender ratio has remained unchanged since 2006 (10 men to one woman). Additionally, women are twice as likely to be found in conducting positions of lesser status and salary than the higher visibility position of music director.

Backstage, diversity on orchestra boards has remained virtually unchanged from 2010 to 2014, with nonwhite members at just under 8%. In contrast, a national survey by BoardSource found that nonwhite members of nonprofit boards across the US had increased from 16% in 2010 to 20% in 2014. On a positive note, orchestra boards are moving toward gender parity. Currently, around 58% of orchestra board members are male and 42% are female.

We can and must do better at diversifying our orchestras on stage, in the boardroom, and within staff, management, donors, and audience. I recently attended the League of American Orchestras (LAO) conference in Detroit with ICSOM council Kevin Case of Local 10-208 (Chicago, IL), Secretary Laura Ross of Local 257 (Nashville, TN), Members-at-Large Paul Austin of Local 56 (Grand Rapids, MI) and Dan Sweeley of Local 92 (Buffalo, NY), and AFM SSD Director
Rochelle Skolnick.

Since 2011, LAO has begun to reprioritize diversity and inclusion, beginning with a self-assessment of how our industry has fared since the first fellowship programs in the early 1970s. While some 40% of fellows have won positions in other orchestras through the audition process, the programs themselves have had a difficult history within our orchestras. Additionally, the fellowship programs’ focus on access and opportunity for just a few individuals does not change the systemic problems of racial discrimination within our organizations. For an in-depth look at the history of orchestra fellowships read the LAO publication Forty Years of Fellowships: A Study of Orchestras Efforts to Include African American and Latino Musicians, by Nick Rabkin and Monica Hairston O’Connell.

In conjunction with numerous arts organizations, including Sphinx, Gateways Music Festival, New World Symphony, and Detroit Symphony Orchestra, LAO has identified a number of additional strategies to promote racial equity: board and staff diversity, community and family resources that provide support for young musicians, the music education “pipeline” from childhood education through college and graduate studies, developing a national network of mentors, and financial support for minority musicians on the audition circuit. There are a number of programs already up and running in our ICSOM orchestras, from El Sistema style education programs to in-house fellowships.

The final hurdle to orchestral citizenship is still the audition process. Since the early 1990s we have used screened auditions to prevent bias from influencing the outcome—musical excellence is the single and only criteria. But have we then, through this narrow process, also hired the very best advocates and artist citizens for our industry? Do our orchestral musicians also need to be effective communicators who can engage with our communities both on and off stage? How might we expand our thinking about the audition process to reflect these qualities and the changing demographics of our society?

Transformation does not come easily to bureaucracies. The same structures that protect against risk, constrain change. While musical excellence will always be the definitive standard of our audition process, is that enough for this 21st century paradigm? There are no easy answers but we need to begin addressing the questions. The discussion starts with us.