Orchestra Musicians Committee rejects arbitration offer, presents counter proposal

With the Kentucky Opera set to use around 35 non-union replacement musicians tonight — along with the deadline for the musicians to accept the Louisville Orchestra management’s binding arbitration offer — the Louisville Orchestra Musicians Committee today rejected the arbitration offer. They also offered a counter proposal similar to the one they submitted in December, which was not responded to. This time around, they also added the recommendations of the Fogel Report issued on Monday.

Below is the text of the musicians committee letter, along with their counter proposal:

Dear Mr. Smith:

The Musicians having never received even the courtesy of a reply to our proposal to LOI conveyed to Board President Chuck Maisch on December 23, 2011, we experienced a glimmer of hope that a serious proposal that could spark a successful resolution and restore the Louisville Orchestra might finally have arrived with your letter of February 9, 2012. Alas, that glimmer quickly disappeared once we read your letter carefully and realized that its purpose was purely to create the illusion of progress for the public and the press. Indeed, it was a successful publicity ploy.

As a proposal, however, it could not be more cynical in its design to be rejected. The first hints were your bad faith refusal to entertain (and thus rejection in advance of) any counterproposal we might make, coupled with your threat of replacement musicians contained in the press release we learned of even before we had a chance to read your letter.

Even that ultimatum and threat pale in comparison to the disingenuousness of your use of the term “interest arbitration” to label a process that is, as you know, a far cry from true interest arbitration practice. Interest arbitration does embrace certain well-accepted standards of fairness and mutuality, and in your proposal you manage to thumb your nose at each one. First, you demand that we alternately strike from list of arbitrators that you have chosen unilaterally, rather than from a list of arbitrators, knowledgeable about this unique non-profit performing arts field, that is jointly arrived at and then alternately struck from by a fair method. Before any of that can occur, you attach the outrageous prerequisite to the process, demanding that the Louisville Orchestra, Inc. be removed from the Unfair List in advance of any arbitration.

Finally, you demand that an arbitrator’s authority be limited to mandating a contract that fits only proposals that you have predetermined unilaterally to be acceptable – all of which, with one exception, persist in destroying the language and economics of our collective bargaining agreement. Even that sole exception – continuing the very successful educational service provision of our 2001-2006 contract – is a cruel irony at best, for it comes on the heels of the LOI deliberately depriving Louisville’s schoolchildren of our musical services for two years. During the 2010-11 academic year, Rob Birman canceled the school services to support his ill-considered bankruptcy petition. Adding insult to injury, he then forbade musicians to volunteer our services to the schools. Just last month, knowing that the LOI could not provide the contracted musical services promised to the schools, Rob Birman chose to threaten the superintendent of schools and forbid the school district from redirecting funds to provide to its students the actual services for which it paid. Our students and meeting their needs are being sacrificed purely to further your strategy –-which will continue to be spectacularly unsuccessful — of starving out musicians to force the wrongheaded result you continue to crave.

Fortunately, there are members of the community who apparently care much more about the Louisville Orchestra than do you and its current administration and Board leadership. They exercised the wisdom and leadership to seek outside advice through the Fund for the Arts, which invited Henry Fogel to examine and produce a report on the situation. Informed yesterday that Rob Birman complained that he had not received it, we attach it hereto as a courtesy.

It is clear that interest arbitration, even if not in the adulterated form you have dreamt up for your proposal, would not give the community the knowledge and tools truly to move the Louisville Orchestra forward. Its problems cannot be laid at the feet of the musicians or the already cut-to-the-bone contract in place from 2006-2011, and wouldn’t be solved by agreeing to your Draconian proposals.

Up to now, the LOI has shunned all outside advice except your own scorched earth agenda. The Orchestra, and the community it exists as a public trust to serve, desperately need an industry professional to lead a “blue ribbon committee” that can work collaboratively to establish not only the foundation for a fair settlement, but also a plan for the future that preserves the Orchestra’s excellence and restores Louisville’s reputation as an arts destination, with all of the social and economic benefits that creates.

For these reasons, it is clear that the only responsible response to your recent letter is to propose to the LOI as a whole what Mr. Maisch chose to bury since receiving it last December, which is appended below with dates adjusted and incorporated herein.


The Louisville Orchestra Musicians Committee
Kim Tichenor
Clara Markham
Judy Wilson
Jonathan Mueller
Jim Rechtenwald
Trevor Johnson

Here is their counter proposal:

Dear Mr. Maisch,

We believe that the points listed below are the foundation for a long term settlement. We also believe that we will achieve that settlement through a multi-step process. The first step of the process, is for LOI to withdraw its Appeal of the musicians’ unemployment benefits before there is a ruling. This will set the tone for the second steps of putting musicians back to work under an extension of the previous contract while beginning the Working Group discussions, sponsored by FFA and led by Henry Fogel for a plan to address the long term existence and success of the Louisville Orchestra. When the Board, the musicians, and the community can consider the findings these processes yield, we will all be in the best position for the third step of forging a long-term agreement for the continuance of the Louisville Orchestra, a goal we wholeheartedly share.

We look forward to working with you.


Kim Tichenor Chair LOMC

Points for Discussion: LOI/LOMA

1. Immediate withdrawal of Unemployment Benefits Appeal by LOI before a ruling is issued.

2. Offer for all current Louisville Orchestra musicians (maximum 60) of a contract extension through August 31, 2012.

3. Restoration of health insurance to the Musicians to take effect March 1, 2012

4. Thirteen weeks of work from March 1, 2012- August 31, 2012 with four contiguous weeks during the month of July 2012.

5. During the thirteen weeks of work between March 1, 2012- August 31, 2012 operate with all terms and conditions of the 2006- 2011 Master Agreement between the LOI and the Louisville Federation of Musicians Local 11-637, AFM remaining in effect with the exception of:

-Article 12, which may be pro- rated to reflect the shorter season. Musicians will receive 1/3 of their normal vacation and personal days.

-Article 18 Education, which will revert, as previously agreed, to then language in the previous (prior to 2006-2011) Master Agreement.

6. The Fund for the Arts will convene a Working Group for the purpose of finding ways to increase the institutional effectiveness of the Louisville Orchestra, Inc. and produce a sound business plan for the institution. The FFA will engage Henry Fogel to lead the Working Group which will be comprised from the following constituencies:

-the LOMC
-representative of the Mayor’s office
-representatives of the FFA
-community members designated by the LO Musicians
-community members designated by the LO BOD

The Working Group will make a report and recommendations To the FFA, the LOMA, the LO BOD and the Mayor’s office. At that time, based on the recommendations of the Working Group and by mutual agreement of these parties, the LO Musicians and the LO BOD will enter into a long term contract.

The working group will convene as soon as possible but no later than February 24, 2012.


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