Does This Qualify as False Advertising?

It is clear that the Minnesota Orchestral Association is feeling some heat right now.  Indeed, it is the only reason to explain the stunning full-page ad they placed in today’s Star Tribune regarding their new offer.  Now, many might think the word “stunning” is too harsh—one of the many bits of mindless hyperbole that has been thrown around all too often during this ugly dispute.

This is an instance where I wish there was a stronger word.  Or at least a stronger word that I could use that wouldn’t make me sound like a raving nutcase.

Everything about this ad is jaw-dropping, from the tone of worried concern to the astonishing elasticity of basic facts.  Plus, this full-page ad isn’t announcing a new compromise—the offer detailed here is one that was already offered and already rejected, and is now being offered outside the established mediation channels… in a newspaper ad.

Forgive me, I feel I must speak my piece.

 * * *

“Time Is Running Out.  We Need Musician Support NOW.”

Right from the title, things run off the rail.  I remind the board that they are the ones who have initiated and are currently maintaining the lock-out.  If time is running out, then time is running out for you to lift it.  No other action by any party is necessary.  This would have the added benefit of creating good will from the musicians, who would no doubt be more inclined to “support you NOW” if you did.

“For the past 17 months, the volunteer board members of the Minnesota Orchestra have tried unceasingly to negotiate a responsible and fair contract with the Musicians’ Union.”

Where to begin?  You consistently point out that the board members are volunteers.  This talking point has been addressed repeatedly.  Yes, they generously give their time; yes, they generously give financial donations.  This does not mean their viewpoint is, therefore, the wisest, most helpful, most forward-reaching.  Volunteers are always valuable to a non-profit, but they also bring a distinct set of challenges… including, all too often, an inability to take “no” for an answer. Moreover, the fact that board members are volunteers doesn’t mean they never bring with them various financial concerns, problems or conflicts of interest—these just take a slightly different shape in a non-profit.  So again, just because they are volunteers doesn’t mean they aren’t making a gigantic mistake.

But more than that, you say you have tried “unceasingly” to negotiate a contract?  Let’s put aside the notion of what is “responsible and fair” for a moment, as these terms have very different meanings for the two sides of the dispute.  I’m not sure how you see yourself as trying “unceasingly” to negotiate.  You were abundantly clear from the start that your proposal was your final offer, and that you would take nothing less than $5 million in pay cuts from the musicians.  What was left to negotiate it?  Also, you fought relentlessly against any additional negotiations, and flatly refused any requests from the musicians for basic information they needed to make a counterproposal.

But the biggest problem is that you rejected the proposal brought by your hand-chosen mediator, George Mitchell.  You are, in fact, offering this proposal outside of the channels that you set up to begin with, and are doing so behind Sen. Mitchell’s back.  Instead of meeting with the musicians, you’re taking it to the press in order to influence public pressure.

More than an odd definition of “unceasingly,” these actions suggest a novel definition of “negotiation.”

“The large annual deficits we have incurred to pay for a pre-recession contract (which included a 19.2 percent pay raise over five years) now threaten the Orchestra’s existence.”

This might be quibbling, but is it specifically the contract that caused the deficits that threaten the Orchestra’s existence?  Or the decline in the endowment?  Misplaced priorities? Or, let us be frank, financial mismanagement in general?

“We have done everything we can within our control.”

No, you haven’t.  The CEO makes four times as much as the average musician, and has had his salary increase by roughly the same rate as the musicians’ over the same period time.  One would assume that his salary would be ripe for cuts; in fact, doing so would have made it possible to keep most of the staff who were let go last spring.

And please, this has been pointed out many times—when the last round of layoffs was announced, it was clear that several positions were tied to the Hall itself (facilities, stage door guard) that were unnecessary during the reconstruction.  Can we assume that some of these positions (or variations thereof) will reappear when the building reopens?

“A Music Director, Carnegie Hall performances and a concert season hang in the balance”

Forgive me—but from my vantage point, nothing you have done up to this point indicates that any of these things are of particular concern to you.  I understand you love the Orchestra, but through your words and actions you’ve made it clear that you are willing to sacrifice each and every one of these items if doing so allows you to successfully implement your new business model.  You have threatened retaliation against Osmo when he spoke out, and it’s clear from various reports and interviews in the press that you would be perfectly content to see him leave… so you could bring in a much cheaper replacement.

Nothing you have said in any statements, press releases, or interviews has indicated that you actually want to complete the Carnegie performances.  I may be mistaken, but it seems like this is the first time you have used it a leverage point.  Instead, it has consistently been the pro-musician side that has warned about the lingering effects on the organization if these concerts are cancelled.  From the management side, not so much.

The truly jaw-dropping statement, however, is your concern about losing a concert season.  This statement is loaded with such irony that Charles Dickens would blush to write it.  You—you unilaterally—cancelled the last season.  Please, please do not place the agency or responsibility for this on the musicians.  You cancelled it, and you could end the lock-out today.  You.

“Despite not ever receiving a counterproposal from the musicians…”

This is a tired falsehood.  They did offer counterproposals—not in the format that you wanted, but the offers were there.  They offered binding arbitration.  They offered a play and talk process.  These were counters to your proposal.

But the most shocking part of this statement is that is blithely ignores what happened when George Mitchell was involved.  Through the mediator you chose, the musicians offered to accept a good faith effort that would end the lockout, with the concession that they would offer a formal counterproposal approximately 48 hours later.  You declined that offer because, in your own words, you would “lose leverage.”

Again, they offered to submit a counterproposal, but you declined to end the lockout.  Obviously, this makes it hard to take you seriously when you complain that they need to submit a counterproposal before you to end the lockout.

“Our compromise… pays the musicians their expired-contract salaries for two months while we work with a mediator to resolve our difference.”

What is so disturbing about this proposal is that it eliminates any incentive for you to work through your differences.  They sign, you stall for two months, and suddenly you impose your preferred contract with severe salary cuts.  You win!  All you have to do is wait.

I ask this honestly:  What reason would you have to bargain in good faith?  After everything that has happened, why would any neutral observer believe you had honest intentions to negotiate a settlement, when you win by doing nothing at all?

“Ours is the only proposal under consideration that will guarantee our concertgoers a full concert season.”

To clarify, it is the only proposal under consideration by you.  Others have been offered… you’ve just rejected them out of hand.

“We give our time and money because we love the Orchestra.”

I know this is true.  You do love the Orchestra, and have shown that again and again with extraordinary gifts of your time and money.  This emotional tie is not in question.

But that doesn’t mean you aren’t making a terrible decision that will have implications for years to come.  End the lockout.  Stop negotiating through the press.  Return to the bargaining table within the framework established by your own chosen mediator.