Daddy, what's an 8(d) notice?

The short answer is that it’s something that’s about to bite the Detroit Symphony management very hard. The long answer follows after the jump.

The coming strike by the musicians of the Detroit Symphony has been on the industry’s calendar for over a year. It’s certainly been on management’s calendar, and there’s some circumstantial evidence to suggest that it was their desired outcome (after, perhaps, the musicians accepting their Proposal A, of course).

Consider these facts:

• the current agreement expires tonight;
• there appear to be no orchestra events (at least not ones big enough to warrant mention on the DSO website) until October:
• management put on the table a proposal (the so-called “Proposal B”), which included the elimination of tenure, a non-economic measure which no orchestra that had tenure would ever agree to;
• Proposal B was, like a Doomsday weapon, set to automatically go into effect should there be no agreement based on Proposal A;
• Proposal B was all teed up for immediate implementation (technically, imposition), which would have forced the musicians to choose between working without tenure right now or striking.

But somewhere along this road to labor relations hell, someone in management (or perhaps management’s legal counsel) forgot to file the so-called “8(d)” notice with the Federal Mediation and Conciliation Service. In the words of the Detroit Free Press:

The law requires that parties file paperwork with the Federal Mediation and Conciliation Service 30 days in advance of the date they might wish to call a strike or impose a new contract. Since DSO management didn’t file the notice until Tuesday, the status quo remains in effect.

So, as a consequence of not filing the 8(d) notice, management has to pay the musicians under the terms of the expired contract for another 4 weeks. That will cost management in excess of $1 million, according to the back of my envelope – possibly quite a bit more. The musicians are paid another four weeks of salary, making their individual economic situations much easier and their ability to hold out much greater. The inevitable strike is delayed until much closer to the formal opening of the season in October, when it will get even more attention than it would when the orchestra doesn’t actually have any concerts. And the length of time the orchestra will actually not be playing concerts will likely be much longer.

It’s hard to overstate just what a big screw-up this is. When counsel for the St. Louis Symphony musicians didn’t file the 8(d) notice and they went on strike, the National Labor Relations Board ruled that the strike was illegal and threatened to seek an injunction requiring the musicians to return to work – which pretty much ended that strike and most of the leverage the musicians had. For that, the St. Louis AFM local filed ethics charges against musicians’ counsel, even though there appeared to be legitimate tactical reasons (having to do, ironically enough, with management not having filed an 8(d) notice either) for not filing the 8(d) notice.

Unlike that situation, however, there is no conceivable tactical reason for management not to file an 8(d), especially if a strike is as likely as this one has been for months. It can be done months in advance, and it’s a five-minute online process (I know because I’ve done it in the middle of a negotiating caucus). This is the kind of mistake that people get fired for.

Something similar happened to another ICSOM orchestra about 15 years ago. The orchestra was all set to strike when it was discovered that, while the Local had mailed the 8(d) notice, they’d mailed it to the wrong address. Unfortunately, they’d not sent it via certified mail, so that the mistake was not discovered until a few hours before the press conference announcing the strike was scheduled. The announcement was canceled. After another four months of negotiations, a weekend-long strike, and yet another 2 months of negotiations, there was a settlement. The only reason no one was fired for the snafu was that the Local, which was in charge of filing the 8(d), had already been trusteed for other reasons by the AFM, and the officers already fired.

It’s possible to hope that this snafu will shake up the situation sufficiently that a similarly benign outcome might occur. The current trajectory did not look to end at all well. Maybe having management’s strategy blow up in their faces will cause some on the DSO board to think again about the wisdom of implementing “new models” by the use of Doomday weapons.