How does an orchestra committee know when it’s time to say enough is enough? For the New York City Ballet Orchestra Committee, it took a series of actions, some of them more properly called inactions, by the Ballet management.

The current orchestra committee has had the reputation of being the “let’s all get along” committee. For many years, that worked. We had a reasonably good working relationship with the Ballet; not quite “warm and fuzzy,” but mutually respectful and with no significant labor disputes. But over the course of the past year it became clear to us that the focus of the Company has shifted away from maintaining a good relationship, and instead has become about saving money and “beating down” the union. It’s as if the Coronavirus infected the very relationship between the musicians and the Ballet.

Part I: Why Wouldn’t City Ballet Bargain with the Union?

A little background: On March 12 of last year, Governor Cuomo issued an executive order that shut down live performances in venues with over five hundred seats. So City Ballet was effectively closed down. At that time, it was unclear how long the shutdown would last.

Then, on March 24, the parties entered into a new memorandum of agreement (MOA), essentially extending the terms of the existing CBA—set to expire on August 31, 2020—for one year. The preamble to the MOA says, “In light of the extraordinary circumstances resulting from the COVID-19 pandemic . . . the parties agree to the following modifications of their collective bargaining agreement . . .”

In June, it became clear that the shutdown would be protracted. Because so many weeks of performances were now being canceled, the union (Local 802) made overtures to the Ballet for a modification of the CBA extension, in order to relieve the Ballet of some of its contractual obligation to the members of the orchestra. To say management was slow to respond to Local 802’s request for modification talks is charitable. Again and again the Ballet delayed meeting with the union, their excuse being that they were engaged in modification talks with AGMA (the union that represents the company’s dancers). Management claimed they wanted to conclude AGMA negotiations first, and then it would be the musicians’ turn. Again and again Local 802 knocked on the Ballet’s door, but again and again the Ballet management said they weren’t ready because of their ongoing AGMA talks.

This raised warning signs for us. In the past, the Ballet has had no qualms about bargaining with two or more unions simultaneously. What was going on here?

At last, in September, when the Ballet had finally concluded its modification talks with AGMA, management came to Local 802. Their message: the modification terms that they had just worked out with AGMA for the dancers would be the same terms they would grant the musicians.

Period.

Take it or leave it.

And the terms were, frankly, terrible.

Understandably, this was unacceptable to Local 802; a full-fledged, fully capable union must be able to bargain its own terms, rather than merely accept terms that were negotiated by another (full-fledged and fully capable, to be sure) union. Moreover, the terms and conditions of the two union’s respective agreements make them not comparable in very basic areas, such as guaranteed weeks of employment. Notably, too, the AGMA contract has force majeure language; the musicians’ contract does not.

Of course, the Ballet knew they would be able to negotiate more favorable terms with AGMA, which has traditionally been more conciliatory in bargaining than the two other large bargaining units at New York City Ballet—Local 802 (musicians) and Local 1 (IATSE)— and management had the leverage of a force majeure clause in the AGMA negotiations. So it was clearly to their advantage to hammer out an AGMA deal first, and then foist the terms of that deal on the other two unions, which is exactly what they attempted to do.

The orchestra committee and Local 802 made numerous counteroffers in an attempt to reach an agreement. But the Ballet did not change its position in any meaningful way. Their position was that even in the absence of a force majeure clause, the “doctrine of impossibility” relieved them of all their obligations under the CBA and MOA. That left us no other option but to file a grievance and go to arbitration.

All the foregoing has led us to where we are now: the orchestra musicians have not received any wages since June of last year, in violation of the terms of the MOA and CBA, and this in turn has led to a very unpleasant arbitration procedure, complete with brief filings, hearings, witnesses, exhibits, and of course, lawyers.

The arbitration is ongoing. It shouldn’t be; it should have concluded many weeks ago, but the Ballet has been stalling by requesting postponements and using all the delaying tactics they can muster, in an obvious attempt to “wait us out.” Due to the shutdown we, the musicians, find ourselves with no income and no leverage—we can’t go on strike because there are no performances! So for Ballet management, why not stall as much as possible?

It is obvious that such tactics are designed to wear us down and force a surrender. This exemplifies the Ballet’s new and callous disregard for the welfare of its artists. It is a deliberate and calculated effort to take advantage of the pandemic to gain the upper hand, at the very time the musicians are most vulnerable.

In arbitration, the Ballet is continuing to claim that the impossibility doctrine relieves the Ballet of its contractual obligation because the shutdown order from the state makes it “illegal” to put on ballet performances. But the union deftly countered that the Ballet had entered into the current agreement after the shutdown order, so the Ballet knew they would not be able to put on performances at the time they signed the MOA. For the impossibility doctrine to apply, the event rendering performance impossible must not have been foreseeable. But given the timing, the shutdown was not only foreseeable, it had already occurred when the Ballet signed the agreement. The sirens were literally wailing outside our windows when the Ballet signed the MOA.

A decision on the arbitration is expected in mid June.

Part II: Why Does City Ballet Stay Shuttered?

Despite the partial lifting of the statewide shutdown on indoor performance venues on April 2, and despite their ability all along to create ballet performances for streaming, and despite the fact that virtually every other major performing arts organization in the country is performing, including nearly every ICSOM group, the New York City Ballet continues to hibernate.1

But why?

Perhaps the most bewildering piece of the puzzle is determining the Ballet’s intentions both toward us and toward reopening. They appear to be moving forward on our scheduled fall season beginning September 21. Repertoire has been set (some of it for very large orchestral forces), the season schedule disseminated to both the public and the artists, and music licenses paid for. However, management’s refusal to bargain in good faith, and its stalling tactics in the ongoing arbitration, has extended further—into a dearth of information about the future, including no discussion with the Orchestra Committee or Local 802 as to how this big season will actually happen.

• We don’t know what safety protocols will be in place in our pit or in the offstage areas of our theater.
• We don’t know what kinds of forces over our normal complement will be hired for the large works.
• We don’t know how our normal complement will fit into our orchestra pit. The pit is somewhat adjustable in size, but it is unclear if it can be expanded enough to accommodate all the players needed for the scheduled repertoire while incorporating social distancing protocols (if required).
• We have had no discussions regarding a vaccination policy.

We don’t know these things because our management is not offering any information.

The Ballet has rebuffed every overture made by its orchestra to create work since the shutdown started. The orchestra members themselves recently produced a combined concert and “music film” of the Carnival of the Animals in partnership with the Bronx Zoo, using both musicians and dancers of the Ballet. Everyone involved donated their services and all who took part were happy to do this. However, we would also have been happy to work with our management to turn this into a paid engagement for all since it would so obviously have been to the great benefit of us, the dancers, and the Company. How could they not be thrilled to begin a relationship with an institution like the Bronx Zoo? But they gave us no opening to even broach the subject. They make it clear they have no interest in creating work, even though, as of April 2, we could perform at our Lincoln Center home with reduced forces and reduced audience. While symphony, opera, and ballet managements around the country are finding ways to perform and create work for their artists, for all intents and purposes the Ballet has its head in the sand.

We have no idea why the Ballet will not speak with us, or why they have been so cagey about their plans. That makes it difficult for us to make our own long term plans. What we have done, apart from making ourselves willing and available to come to the table to talk, is form a Strategic Planning Subcommittee, which is tasked to be prepared on many fronts to face whatever the future may bring—including a possible work stoppage.

Will we reopen on September 21? Who knows.

Note: both authors are members of the New York City Ballet Orchestra. Ethan Silverman is the ICSOM Delegate for the orchestra and the current orchestra committee chair. Sara Cutler is the former orchestra committee  chair.