NY City Ballet does not have to pay its orchestra through Covid

An arbitrator has found that NYCB is justified in not paying its orchestra during the Covid period when there were no performances – despite the company’s prior agreement to do so.

The union has lashed out at the arbitrator, but this ruling is not looking good for prospects of live performance in NY.

Here’s the union statement:
On Aug. 6, 2021, Arbitrator Barry Peek issued an award upholding New York City Ballet’s (“NYCB”) refusal to pay its musicians any compensation whatsoever during the 2020-21 season. The musicians of the NYCB orchestra, represented by Local 802 of the American Federation of Musicians, have been without any pay since June 2020 – despite the fact that NYCB had agreed on March 24, 2020, to guarantee twenty-four weeks of employment and compensation to the musicians during the 2020-21 season. NYCB management’s decision not to compensate its orchestra for the 2020-2021 season will now stand.

Arbitrator Peek sided with management on nearly every issue. He found that the twenty-four weeks of guaranteed employment, as set forth in the parties’ collective bargaining agreement (CBA), was not a “guarantee of compensation” at all, but merely a guarantee of “performances,”
and that if there were no performances, then there is no employment for the musicians and no obligation to pay them. In other words, a guarantee of employment is not a guarantee of
compensation, suggesting that the musicians could theoretically be employed yet receive no wages, thereby rendering the contractual guarantee meaningless.

According to orchestra committee chair Ethan Silverman, “that would essentially make us a ‘per-service’ orchestra, where the musicians’ pay is dependent on the whim of management. Clearly, this ‘reasoning’ calls into question the job security ensured in our contract.”

Peek accepted management’s argument relating to “impossibility” in its entirety. NYCB claimed that the shutdown of most live theaters in New York until April 2, 2021, made it impossible to employ musicians. But, in legal terms, a critical element of the contractual defense of “impossibility” is that the event that management claims precluded performance of its obligations must have been unforeseeable at the time of the parties’ agreement. Here, NYCB
agreed to a one-year extension of the CBA – and all of its terms, including the twenty-four week guarantee – on March 24, 2020.

“The notion that the severity of the pandemic was unforeseeable on March 24 2020 is absurd,” said Local 802 President Adam Krauthamer. “NewYork 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.”

Restrictions on indoor theater capacity in New York were eased on April 2, 2021. NYCB could have been performing before live audiences at its Lincoln Center home, the Koch Theater, from that date forward. Yet Peek brushed that off by claiming that NYCB needed “fourteen or fifteen weeks” of preparation before it could mount a single performance. Silverman says, “That is simply false. While we acknowledge that more preparation time than usual may be required coming out of a pandemic because the Company hasn’t worked together in many months, the great dancers and musician of New York City Ballet could mount a magnificent season in a fraction of that time, as they often have in the past, and to believe otherwise is to vastly underestimate the world-class artistry and excellence of the Company’s performers.”