As far back as the 1970’s, when Gerald Schoenfeld began threatening Local 802 with the Moog synthesizer if the union struck over minimums, producers have been seeking some mechanical device to replace live musicians. In 2003 they believed they had found it with the virtual orchestra.

The League claimed it would only use the device if the musicians went on strike.

The union believed, and continues to believe, that if given the opportunity, producers would eventually substitute the technology for all – or “virtually” all – of the musicians in the pit.

In any event, as early as 2001, with the contract expiration approaching and with the issue so joined, both sides prepared for war!

The producers spent hundreds of thousands of dollars on such things as virtual orchestra equipment, operators and public relations firms. They even aligned themselves with non-League companies – Disney, Clear Channel and the Dodgers – in signing a document they called a “blood oath.”

This oath set forth their mutual agreement that they would stick together no matter what. And if the union struck any one of them, they would lock out all musicians at all League theatres.

The union prepared as well. President Moriarity and his staff visited every show and met with every Broadway orchestra in every pit, explaining 802’s preparations and plans, what was expected from the League, and what the union expected from the musicians in each theatre.

He pointed out that this negotiation was going to be principally defensive for the union on the issue of minimums.

The musicians were urged to speak out about the issue – the continuation of live music on Broadway – and to seek the support of actors, stagehands and any other union workers in the theatre.

For almost a year before the negotiations began, Moriarity also visited each of the Broadway unions, asking for their support as well.

The Negotiating Committee engaged in strategic planning with the help of Cornell Labor School. And a well-known public relations firm was retained to plan a public campaign.

Thus, the critical elements for success became:

• Uniting the membership;
• Gaining the support of other unions who had never been willing to support musicians – or each other – in the past;
• Winning audience members’ support by educating them about the issue, and what it would mean to the live experience of Broadway if the League was successful in eliminating the orchestra and substituting computers for musicians; and,
• Whether or not a Broadway-sized orchestra was to continue to be guaranteed in the largest theatres.

A primary goal was to avoid exposing the public to virtual orchestras. This would have hinged our fate to the musical discernment of the theatre-going populace – many of whom are tourists from cities where the music they hear at “Broadway shows” is completely or almost completely mechanical.

The potential consequence of audiences accepting virtual orchestras would have been – and continues to be – the death of live music on Broadway.

Thus, the negotiating committee believed that it was essential that a deal be made which preserved substantial minimums – even if reduced – and then locked in those minimums for as long as possible.

The public relations campaign was enormously successful only because the union was able to frame the debate in terms of whether or not live music was to be eliminated from the Broadway musical experience.

In other words, if our campaign had been based only on maintaining 24 musicians – rather than some lesser number – in the large theatres, we would scarcely have gotten the attention of the public.

With the stage thus set, early in February the bargaining began.

After a month of intensive negotiations, the two sides were still far apart. In order to bring the bargaining to a head, the producers made their “last, best and final” offer. Actually, they made two “last, best and final” offers, neither of which was acceptable to the union.

The reason for two offers was that in the event the better offer was rejected, and the producers implemented an offer – as they are permitted to do by law – they would not implement the better offer, but rather the worse one.

At that point the union announced that if the better offer (which, among other items, called for a top minimum of 15 in the largest theatres) did not improve significantly, the musicians would strike after the last show on Thursday night, March 6.

After the union made that announcement, the startling news arrived that both Actors’ Equity and IATSE (Local 1) had voted to honor the musicians’ picket lines.

At that point, of course, every show but one (“Cabaret,” with a separate contract at the Roundabout) shut down.

After four days of strike, Mayor Bloomberg summoned the parties to Gracie Mansion, and assigned former Schools Chancellor Frank Macchiarola to mediate.

The parties engaged in mediation all night, and, in the morning, a settlement which was not wholly satisfactory to either side was reached.

As in any war, both sides suffered casualties.

From the union’s standpoint, the major concessions were that minimums were reduced and the Special Situations clause was expanded.

On the plus side there were the following:

• Not only was the public on the musicians’ side, but as one musician said at a union meeting, there was a very real dialogue in this country about live music. The League was perceived as a group of greedy corporations looking to deprive the audience of a live musical experience in order to increase its profits. As in the UPS strike of a few years ago, the musicians were viewed as the good guys, struggling valiantly to salvage their art.
• An historic coalition of Broadway unions was born. For the first time, unions supported each other – which shocked the League. This new power needs to be nurtured and grown.
• Local 802 is the only AFM local with minimums remaining in its theatre contract. (Even when other locals had minimums, the largest number was around 16.)
• Minimums will go no lower for at least the next ten years, despite the inevitable refinement of the technology. Even then, if the coalition of Broadway unions remains, the producers will know that in the event of a labor dispute they will be shut down.

The general public perception, and certainly that of the labor movement in general, was that the union scored a major victory. Nevertheless, there was disappointment and much criticism of the settlement by many musicians.

Much of the criticism was based on predictions of lost jobs by virtue of the lower minimums and the expansion of the definition of Special Situations.

As for the loss of jobs, history fails to support that prediction. In the last 28 years, the minimums have been reduced three times – 1975, 1993 and now, in 2003.

From 1975, when the first reduction took place, until the next reduction in 1993, the number of musician jobs on Broadway increased substantially. And, again, between 1993 and 2003, after another reduction, the number of jobs rose dramatically.

Only time will tell if that pattern will be broken this time.

Moreover, the new minimums are inapplicable to currently running shows, many of which will continue to run for the foreseeable future, and thus there will be no loss of jobs there.

In addition, two new shows, “Wicked” and “Gypsy,” are opening with orchestras of 24.

Although it is true that the definition of Special Situations was expanded, it is also true that two of the more glaring abuses of that procedure were eliminated.

The terrible decision in the “Saturday Night Fever” arbitration which allowed a producer to use actors or singers playing toy instruments to count toward the minimum has been reversed by a new provision specifically prohibiting such practices.

In addition, the contract will now make clear that if producers lose an application for a Special Situation, they may not use “walkers” but must utilize playing musicians up to the applicable minimum.

For our offensive, the union initially presented only six proposals:

• Term of agreement;
• Modest wage increase (5 percent);
• The elimination of the two abuses of Special Situations, as set forth above;
• New and improved health and safety language;
• The setting of minimums for the two newest theatres – the Ford Center and the New Amsterdam;
• Amending the no-strike clause to permit sympathy strikes.

With the exception of the sympathy strike proposal, the union achieved substantially all it sought by those proposals.

As in all negotiations, the negotiation team’s most important function is to make decisions. Virtually every such decision requires making predictions. By definition, predictions are subject to controversy and disagreement.

It is to be hoped that in making those predictions the negotiators have as much information as possible – and that they have experience in the bargaining process and in evaluating power relationships. We trust them to act in good faith with the intention of bringing back an offer that is, in their opinion, the best obtainable under the circumstances.

The union team’s collective conclusion was that the settlement that was brought back met all of those criteria.

Obviously, many disagree.

But one hopes that fellow musicians ultimately recognize that all of the negotiators did the best they could in the best interest of the members – and that the decisions they made turn out to be the right ones.

Leonard Leibowitz is Local 802 counsel and served as head counsel during the Broadway negotiations.