Peek's ruling is a culmination of negotiations between the musicians' union, Local 802 of the American Federation of Musicians, and NYCB management. The findings are largely aligned with NYCB management's decision not to compensate its musicians for the 2020-21 season, who have been without pay since July 2020.
The union emphasized in a press release that the decision comes despite the fact that in the renewal of their collective bargaining agreement on March 24, 2020, NYCB agreed to 24 weeks of employment to the musicians during the 2020-21 season.
The NYCB negotiations also included the American Guild of Musical Artists (AGMA) and Local 1, the unions that represent NYCB's dancers and stagehands, respectively. Although AGMA and Local 1 reached settlements with NYCB's management, Local 802 instead chose to arbitrate — seeking full pay for the 24-week period.
However, Peek, an independent arbitrator jointly selected by NYCB and Local 802, argued that "guaranteed employment" is different from "guaranteed compensation." By his logic, "guaranteed employment" means a guarantee of performances, and if there are no performances, NYCB is not obligated to pay its musicians.
"That would essentially make us a 'per-service' orchestra, where the musicians' pay is dependent on the whim of management," orchestra committee chair Ethan Silverman said. "Clearly, this 'reasoning' calls into question the job security ensured in our contract."
Rob Daniels, managing director of communications for the NYCB, wrote to The Violin Channel that the pandemic has had a devastating impact everywhere, and NYCB has "done what it can to mitigate the impact on its employees." In March 2020, NYCB paid its employees for the remaining six weeks of its canceled 2019-2020 season.
NYCB management argued that pandemic restrictions made it impossible to employ musicians during the 2020-21 season, while Local 802 wrote that the collective bargaining agreement's obligations were not "unforeseeable" when it was signed last March.
Local 802 president Adam Krauthamer wrote that "the notion that the severity of the pandemic was unforeseeable on March 24, 2020 is absurd. New York City was on total lockdown, and the ambulance sirens were wailing 24 hours a day. Yet NYCB now claims that it somehow did not know how bad the pandemic would be, so it wasn’t required to honor the contract."
Daniels drew a distinction between knowing the severity of the pandemic at the time and knowing how long its effects would last. He wrote that in the fall of 2020, negotiations for more relief began between NYCB musicians and management, at which point "it became clear that the entire 2020-21 season would also be canceled due to the ongoing pandemic."
At that time, due to projected revenue losses of more than $50 million, NYCB implemented pay cuts and some furloughs across the company "to maintain financial viability," Daniels wrote.
Orchestra committee chair Silverman added that the musicians urged management to consider other employment opportunities that would have benefited both the organization and its patrons, such as performances of small ensembles or those held virtually, but that management instead "chose essentially to shut down the Company for a solid year."
Krauthamer wrote that NYCB has the resources to help its musicians, citing NYCB's $198 million endowment as of August 2020, but "left the musicians in the lurch at the worst possible time" as other orchestras have found ways to keep its musicians employed to some extent — although most ensembles have dealt with pay cuts and furloughs of varying severity.
"There was never a plan to pay the orchestra members nothing during the shutdown. But, providing orchestra members with full pay while the company was unable to present live performances would have given the orchestra a more advantageous compensation arrangement than any other group or employee in the organization, and that they would not be sharing in the sacrifices all others were making," Daniels wrote.
Local 802, which is the world's largest local union of professional musicians, also represents musicians of the Metropolitan Opera and American Ballet Theatre, among many other employers.