802 WINS TWO-YEAR LEGAL BATTLE AGAINST OPERA COMPANY OF BROOKLYN

On July 20, 2006, the New York State Employment Relations Board ruled in favor of Local 802 in the matter of Opera Company of Brooklyn (OCB) vs. Local 802. As a result, OCB has been ordered to cease and desist from refusing to bargain collectively in good faith with Local 802, and to cease and desist from refusing to recognize the signed Memorandum of Agreement entered into by the parties on Feb. 6, 2004, including the ban on the virtual orchestra machine. (For details of the case, see article “V.O. Machine Blows a Fuse” in this issue of Allegro.)

WHERE IT ALL BEGAN

In 2003, in anticipation of a potential Broadway musicians’ strike, the purveyors of virtual orchestra machines sold their technology to Broadway producers who were attempting to use it to replace all live Broadway orchestras. Although one week prior to the strike the actors were indeed rehearsed with virtual orchestra machines, ultimately audiences were not subjected to this travesty due to a four-day union-wide strike that shut down Broadway.

Minimums, although reduced, were maintained on Broadway. However, the contract settlement included no prohibition on the use of the virtual orchestra machine — the very device that threatened the wholesale replacement of live music on Broadway.

When I took office in 2004, I realized that our fight against the virtual orchestra machine was far from over. As a matter of fact, it had only just begun. That is why I decided it was time for us to attempt what many believed to be impossible — achieving contracts that expressly banned the use of virtual orchestra machines. Quite frankly, I was stunned to hear the defeatist attitudes of some union officers who subscribe to the philosophy of “You can’t fight technology,” “Technology always wins,” “We have to pick our battles,” and “What is the ‘end game’ here?”

While strategy is extremely important in any campaign, all too often justifications for positions are given which are based on nothing more than a fear of losing. I promised you, the membership, that that is not how this administration would operate. That is why Local 802 has aggressively fought the displacement of live musicians by the virtual orchestra machine.

As I stated to the membership early on in my presidency, if we are to thrive and succeed as a union that truly represents the interests of working musicians, it is critical that we decide who we are and for what we stand. This decision must not be based on our perceived chances of winning or losing, but solely on what is right and just, and what is in the best interests of our collective membership.

How can we fail to use any and all means necessary to protect what no machine can ever replace: the uniqueness, subtlety, inspiration, devotion, passion, heart and soul expressed through live music?

What is the ‘end game’? As a result of this administration’s aggressive stance, there are now virtual orchestra machine bans in contracts across the country and Local 802 has prevailed in all three legal challenges to those bans.

THE WRITING ON THE WALL

• In 2003, virtual orchestra machine makers armed Broadway producers with their technology to threaten the replacement of live Broadway orchestras.
• In the summer of 2003, prior to this administration, the Opera Company of Brooklyn launched an all-virtual orchestra performance of “The Magic Flute,” at the New York City College of Technology. Virtual orchestra machine maker RealTime Music Solutions provided the opera company with its machine. Although the union conducted a letter writing campaign, there was no protest outside the theatre and the “virtual” performance was allowed to take place.
• In 2004, Cameron Mackintosh replaced over half of the “Les Miserables” orchestra in London with a virtual orchestra machine (also RealTime), publicly declaring it to be “a showpiece to display to producers in America.”

HOW DID WE GET HERE?

• 802 Launches Aggressive Campaign
  In February 2004, Local 802 launches an aggressive campaign against the virtual orchestra machine and achieves a precedent-setting agreement with the Opera Company of Brooklyn (OCB), banning the use of virtual orchestra machines. This is the first agreement in the world to contain such a ban.
• In March 2004, virtual orchestra machine maker RealTime Music Solutions files a complaint against both Local 802 and OCB with the National Labor Relation Board (NLRB), claiming the union and OCB were trying to put it out of business. RealTime is represented by the notoriously anti-union law firm, Akin, Gump, Strauss, Hauer & Field. The union is represented by 802 counsel Len Leibowitz.
• 802 Wins First Legal Challenge To Ban
  In April 2004, the regional office of the NLRB rules in Local 802’s favor and agrees that the machine does indeed pose a threat to live music. (RealTime appeals to the Federal NLRB.)
• 802 Achieves Ban Off Broadway
  Also, in April 2004, Local 802 achieves another precedent-setting agreement against the use of the virtual orchestra machine at the Variety Arts Theatre, one of Off Broadway’s largest houses.
• OCB Reneges
  On April 13, 2004, OCB repudiates its agreement with Local 802 and issues a press release declaring the contract “null and void.” (Local 802 files a complaint against OCB with the New York State Employment Relations Board.)
• NY & LA Team Up
  In April 2004, Local 802 teams up with AFM Local 47 (Los Angeles) to fight the use of the virtual orchestra machine at the Nederlander’s Pantages Theatre in L.A. President Lennon is called to testify at the arbitration as an expert witness. The Nederlanders are represented by none other than Larry Levien, from the anti-union law firm of Akin, Gump, Strauss, Hauer & Feld.
• The Federal Case
  In May 2004, the federal office of the NLRB in Washington, D.C. denies RealTime’s appeal, upholding the decision of the regional director, in favor of Local 802. This decision opens the door for similar agreements to be made throughout the United States.
• Voluntary Bans
  In June 2004, three more Off Broadway theatres voluntarily agree to sign the ban.
• Lincoln Center Theatre Signs Ban
  In July 2004, Lincoln Center’s Newhouse Theatre signs the ban.
• Labor Board Issues Complaint
  In September 2004, the New York State Employment Relations Board issues a complaint against the Opera Company of Brooklyn. RealTime’s anti-union law firm — Akin, Gump, Strauss, Hauer & Field now represents OCB. The union is represented by 802 counsel Harvey Mars.
• Dodgers Sign The Ban
  In November 2004, Broadway producer, Dodger Stage Holding Theatricals, agrees to ban the virtual orchestra machine for its premiere production at the new midtown theatre complex — Dodger Stages.
• CAMI Gives OCB The Boot
  In December 2004, Local 802 prepares for a massive rally outside CAMI Hall, as the Opera Company of Brooklyn attempts to “showcase” and promote the virtual orchestra machine at a performance in the renowned concert hall.
• Upon learning of OCB’s intentions, and 802’s planned rally, CAMI Hall throws OCB and RealTime out onto the street, and immediately cancels the performance.
• ABT Signs Ban
  In May 2005, under the threat of a strike, American Ballet Theatre agrees to ban the virtual orchestra machine.
• AFM Commits To The Fight
  In July 2005, the delegates to the AFM convention unanimously pass a resolution submitted by President Lennon, resolving “that the AFM, its locals, and their members shall take whatever steps necessary on the local, national and international levels to halt the spread of the threat of the virtual orchestra machine to live music,” and “that the AFM will commit whatever resources necessary to wage this campaign, including financial support as well as appropriate use of AFM staff.”
• Kennedy Center Bans The Machine
  In December 2005, Washington D.C.’s Kennedy Center agrees to ban the machine with its Kennedy Center Opera House Orchestra. (The ban will later be agreed to by the Washington Opera, in 2006)
• Third Legal Victory
  In July 2006, the New York State Employment Relations Board rules in favor of Local 802, upholding the union’s agreement with the Opera Company of Brooklyn and the very first contractual ban on the virtual orchestra machine.
• Others Follow 802’s Lead
  By August 2006, contracts banning the virtual orchestra machine have been achieved in cities across the country — in Los Angeles, Washington D.C., Dallas, Houston, San Francisco and Boston — to name a few.

ZERO TOLERANCE

These victories would not have been possible if we had allowed ourselves to be discouraged by the prevalence of the virtual orchestra machine in cities elsewhere. They would also not have been possible if we succumbed to such thinking as “You can’t fight technology.”

The cliché is that in the industrial world “technology always wins.” But art is not industry! “Live” is the operative word in “Live Musical Theatre.” And even in the world of industry and machines, technology only wins when it improves the process or the quality of the product. The virtual orchestra machine improves nothing. It is a tool of corporate interests designed to eliminate live music and cheapen the art form.

The machine represents a frontal attack on live music. It attacks the very essence of live musical performance. It threatens the livelihood of all our members and attacks the audiences who pay hard-earned money to experience the magic and wonder of live performance.

Zero tolerance does not mean that we win every time. It does mean that we fight every time. We must recognize this impending threat to live music if New York is to remain the live music capital of the world. That is why Local 802, and this administration, will continue to aggressively fight the displacement of live musicians by the virtual orchestra machine.

We, as Local 802 members, can be proud that as a result of this campaign we hold the distinction of being the only major city that has kept virtual orchestra machines out of every live performance venue in our jurisdiction. That will continue to be the goal of this ongoing campaign and this administration.

MY RESPONSE TO THE BOARD

This statement shall serve as my response to the Local 802 Executive Board’s June 6, 2006 request for my resignation as President of Local 802.

On June 6, 2006 the board held a five-hour discussion concerning my “actions,” without me present to defend myself or to answer to further accusations. Then, in a vote carried by five board members, the board asked for my resignation.

As the board well knows, article V, section 7 (d), of the Local 802 bylaws clearly prohibits the Executive Board from conducting a trial against any officer for his or her “actions or conduct.”

In my view, and in the view of the many members with whom I have spoken, the board’s motion was not only in violation of the Local 802 bylaws, but clearly one that was politically motivated in an attempt to pre-empt the Local 802 December election.

Nevertheless, given the gravity of the request, I asked the board for a reasonable amount of time to respond, so that I would have the opportunity to seek guidance from the rank-and-file.

On Tuesday, June 27, 2006 Recording Vice President Dennison made a motion to give me three days to seek such guidance from the membership. The motion failed and ultimately a motion was passed to request my response by July 18, 2006, today.

Over the past few weeks, I have spoken with many members and conducted many work place visits. The overwhelming response of support I have received from the membership-at-large has been of great help in rendering my decision.

The resignation of any officer of Local 802 is a matter of personal privilege and discretion. If, at any time during my elected term of office, I believe it is an appropriate course of action, it will be my decision and mine alone to make.

I, therefore, intend to fulfill the duties of my office and my obligations to the electorate until the membership decides otherwise, in accordance with the constitution and bylaws of Local 802.

UPDATE

• Subsequent to delivering my response rejecting the Executive Board’s request for my resignation, Recording Vice President Dennison presented to the board charges prepared against me, seeking that the board vote in favor of filing those charges.
• A motion for the board to file charges against me was defeated by a vote of 6 to 4.
• Later that day, board members Dennison, Schaffner, Landolfi, Giannini and Blumenthal formally filed the very same charges against me.
• The trial process will begin at the Oct. 17 membership meeting, seven weeks to the day before 802’s December election. (For a full description of the trial procedures, see article V, section 7, of the Local 802 constitution and bylaws.)