“Mediation”

A few short weeks ago there was a new development in the ongoing labor dispute between the Woodruff Arts Center (WAC) and the locked out musicians of the Atlanta Symphony Orchestra (ASO). Following a few false starts, both sides agreed to meet with federal mediator Allison Beck to try and find a resolution.

Those who have been following the most recent rash of labor disputes rippling through the world of classical music could foresee one of two potential outcomes, based on the experiences of two different ensembles.  On the one hand, the move toward mediation could follow the path of the Metropolitan Opera, where mediation brought both sides together, leading to a mutually-acceptable compromise. As Alison Beck was a key figure in these negotiations, there was certainly hope that she would be able to bring both sides together in Atlanta, too.

The other possibility is that the attempt at mediation could follow the path of the Minnesota Orchestra. While this case also involved an eminent peace-maker (Senator George Mitchell, who famously brought peace to Northern Ireland), no accord was reached. The Minnesota Orchestra negotiators ultimately refused Mitchell’s proposals, arguing that if they accepted them they would “lose leverage” to use against their musicians.

So what would be the result in Atlanta? Would a seasoned veteran be able to hammer out an agreement? Or would both sides end up as far apart as ever?

Well… based on the developments of the last 24 hours or so, my impression is that we’re closer to the Minnesota model, rather than the Met model.

And sadly, looking at the actions of the WAC thus far, I’m increasingly suspicious that it has only agreed to mediation as part of a stalling tactic.

* * *

To begin, it appears that the WAC representatives are only indifferently taking part in the mediation process, as evidenced by a letter sent to the ASO board of directors. (Oddly enough, the ASO board is only indirectly involved in negotiations—it is the WAC’s board that has the real authority to make decisions.) In this letter, the musicians note that the two sides have met only twice since Allison Beck came on-board, and that after the second session on October 8, WAC management asked for a “pause” with no additional negotiating sessions scheduled.

“We have not heard from the WAC about the results of the ‘pause’ they sought in the mediation process,” wrote the musicians, “but clearly, once again, they arrived at the table with neither proposals nor the ability to authorize a deal.”

In response, the WAC sent out a letter of its own. In it, WAC spokesman and negotiator J. Thomas Kilpatrick gave bland assurance that there was no pause, and certainly no attempt to stall negotiations. He also noted that “We look forward to meeting next week and are prepared to continue to bargain in good faith.”

With respect, I simply don’t believe Mr. Kilpatrick.

I want to be clear that I am not accusing him of lying—I have no direct knowledge of the negotiations and have no basis or justification for doing so. But still, based on the words and actions of the WAC leadership to date, it would be foolish to take any of their statements at face value. Why so? Well, leaders of the ASO and WAC have a history of making statements that are not exactly true.

Allow me to provide some examples.

  • Back when the lockout first began in early September, the musicians accused then-ASO President Stanley Romanstein of going back on his word. They noted that when the last lockout ended back in 2012, Romanstein made a commitment to the musicians that the ASO would not seek similar concessions in the future. Because of this, the musicians have seen the current lockout as a specific betrayal of trust. When asked if he had indeed made such a promise two years ago, Romanstein vehemently denied it. Well, an audio recording of Romanstein actually making that very remark has indeed emerged, leading to broader questions about the WAC’s truthfulness. Writer Drew McManus, for example, openly expressed “concerns about a larger, calculated degree of duplicity and whether or not it was limited to this one senior WAC executive or the entire executive committee.”
  • Last month, the ASO leadership sent out misleading emails cancelling the Atlanta Symphony Youth Orchestra (ASYO) auditions. In the version sent to the press, the ASO was studiously neutral about the cause of the cancelations, but in the version sent to the students and the broader public, it explicitly blamed the union. Making different statements to different constituencies does not help your credibility.
  • And finally, there was the leadership’s “announcement” that both sides had agreed to mediation in the first place. This was news to the musicians—they had not agreed to mediation at the time, and in fact had not even been contacted by the proposed mediator.

For these reasons, I feel it would be foolhardy to trust any statements from the WAC without first verifying them with independent sources.

But there is another problem with Kilpatrick’s description of events… it just doesn’t make sense.

Again let me reiterate: the musicians have been locked out by management against their will. Right now, they are going without pay and insurance, and under Georgia state law they are ineligible for unemployment. But they still have mortgages to pay. They still have tuition to pay. They still have a whole series of bills to pay. And if they have any kind of medical condition ranging from pink-eye to cancer, they have medical bills to pay.

It is not in their best interests to delay. Even for a moment.

So of course they’ve been anxious to restart negotiations. The musicians want this resolved as quickly as possible. That is precisely why they sent their letter to the ASO board—to try to get the WAC negotiators back to the table and keep discussions moving along.

This is what makes Kilpatrick’s account of events so bizarre. As quoted by Howard Pousner:

“Kilpatrick said that after ‘extensive discussions’ with the mediators on Oct. 7 and 8, the negotiation teams adjourned to update and add to their original proposals. ‘In the words of the mediators, it was time to put some of the shared ideas “on paper,” ’ Kilpatrick wrote. ‘This was precisely what ASOPA had asked us to do — make new proposals to show our good faith.’

“The attorney said he called the mediators on Monday with an offer for the sides to meet on Wednesday, then [Alison Beck’s associate Richard] Giacolone notified him on Tuesday ‘that the union was not available for a meeting this week.’ With Beck out of the country next week, Kilpatrick recounted that Giacolone confirmed on Wednesday that he will lead negotiating sessions next Tuesday through Thursday.”

First, Kilpatrick seems to suggest that Federal Mediator Alison Beck told the WAC leadership to take a week or so and write up a new proposal. Really? To what end? And how much time could he need for this exercise?

Kilpatrick and the WAC certainly know the sticking points of negotiations. They have to know the areas of concern for the musicians, as these points have been covered extensively in the press. And surely Kilpatrick had an inkling of how far the WAC would go when he walked into the room—if he didn’t, why was he a negotiator? I mean, this is how negotiations work… both sides send in deputies who are knowledgeable about the key issues, and are authorized to engage in the process and make decisions.

I have to believe that if Kilpatrick was asked to put some ideas on paper, he could have written up new terms on the back of an envelope and slid it across the table right there and then. If there was a larger question or if he needed feedback from someone higher up, he could have stepped quietly into another room and made a phone call.

How much time does he need?

But then, the story gets even weirder. Kilpatrick goes on to describe that for some reason, when he finally got his ideas on paper, he called the mediation team only to discover that “the union” was not available for a meeting—this is unfortunate, in that the Alison Beck was out of the country the following week, and any negotiations that occurred during this time would have to be conducted by her associate, Richard Giacolone.  So, more delays.

I’m sorry, but this story makes no sense.

If it is in their best interests to negotiate, why would the musicians (not “the union”) so blithely wave off an opportunity to meet over an entire week, especially since the head mediator was unavailable the following week? Not to disparage Richard Giacolone’s abilities, but why would the musicians willingly seek to bypass the services of a top federal mediator, and further complicate an already complicated situation, when they so clearly want to end the dispute? What possible motive would they have for such a delay? What advantage could they possibly hope to gain from it?

Isn’t it far more likely that this is simply a delaying tactic, as the musicians allege? Isn’t it more logical that the WAC is hoping to delay the proceedings as part of its clear strategy to starve out the musicians—to inflict maximum financial pain so that they’ll accept painful concessions they would never otherwise agree to?

* * *

At the end of the day, this is just depressing. Many had hoped that Alison Beck would be able to come in and find a solution that both sides could agree to. But based on the WAC’s actions of the last two weeks or so, I think it’s clear that it doesn’t want a solution… it just wants to starve out the musicians.

And I don’t quite know how Ms. Beck will be able to work around that.

 

Xochipilli

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8 thoughts on ““Mediation”

    • Perhaps you’re drawing attention to his credentials: “Tom’s practice is focused in the traditional labor law arena, including union avoidance, negotiating collective bargaining agreements, arbitration, handling picketing and handbilling matters, appearing in unfair labor practice investigations and trials, and in guiding unionized employers in the development of strategies and action plans that minimize the impact of unions.”

      I can understand this if the WAC is playing to win… but I do wish they’d stop feigning doe-eyed innocence.

      Liked by 1 person

  1. I would love to know what the mediation team has to say about this, if they could say anything which they conveniently cannot: “Kilpatrick goes on to describe that for some reason, when he finally got his ideas on paper, he called the mediation team only to discover that “the union” was not available for a meeting”

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  2. Complicating matters, perhaps, is the recent nomination of Allison Beck by President Obama to be the new Director of FMCS, which will likely require a bit of her attention to be given to the U.S. Senate in that regard. During the Met mediation her title was Deputy Director, but while still holding that title she has also been serving more recently as Acting Director. The timing of WAC bringing in *this* particular mediator when they did seems odd to me. Note that an impact of mediation is not merely stalling the negotiations (wither intentional or not) but also one of implementing a “media blackout” for all involved parties. Just damn convenient, ain’t it?

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  3. It appears that Kilpatrick’s strategy and focus is to divide and conquer by laying blame on the musicians’ union. It is obvious that the WAC leadership is feeling no sense of urgency to resolve the conflict. Why? The only thing to be gained by so doing is to break the backs of the musicians’ resolve to hold out for a decent contract–as well as to reduce the size of the orchestra by attrition, which is clearly happening. They say they want to maintain a first-class orchestra, but their actions reveal their true motives. Meanwhile, are they receiving paychecks? Is their health insurance being paid for? Or have they taken vows of poverty until they succeed in what they were hired to do–effectively manage the Woodruff Arts Center? I think it is past time for the major donors of the WAC to weigh in and demand some accountability of the WAC leadership in exchange for their donor dollars.

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  4. Hi, Scott — As usual, a brilliant post that really puts the whole mess in Atlanta into perspective. As I’ve said since the beginning of Atlanta’s lockout, this is deja vu for us in Minnesota. I was really happy to see some Atlanta musicians playing in the MN Orchestra this week.

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  5. Scott, just as a point of clarification, in these and all CBA negotiations, the union negotiates on behalf of the musicians of the orchestra. The union does this with members of the orchestra who are chosen by the orchestra to represent them. These are also union members.

    The union consists of its members, but it also has a management. Usually in denegrating unions, employers are referring specifically to the union leadership (this is prevalent in anti-union rhetoric such as “a union is a business designed to take your money and give you nothing in return”), but the union is really the union of its members, hence the name.

    It’s low hanging fruit down here to use the subtext that the union is stonewalling, but technically it is correct that the administration of the organization is negotiating with the union on behalf of the musicians.

    I understand that this might be old hat to you, but I feel it important in case somebody new comes along this information. Certainly it is correct that the musicians are anxious to get this finished as soon as possible.

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    • Thanks for the comment… and apologies for the brevity of my remarks above. You are of course correct that the WAC is negotiating with the union to resolve the dispute. What has driven me bonkers in the various classical music labor disputes is that people have tossed off the label “union” to depersonalize, and dehumanize the musicians. The thinking seems to be its a lot more acceptable to stick it to “the union” than to stick it to “Mike” who is a popular teacher, homeowner, and pillar of the community. My intent is to bring attention to the fact that Hertz, Hepner, et al are not going after some abstract, faceless horde, but their musicians… who are real people that create the orchestra’s core product.

      Liked by 1 person

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