in: News & Features

December 4, 2010

Longy Faculty Divided

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What happens when a 95-year-old conservatory with a dedicated and long-serving faculty finds itself with a large deficit and a new leader? Change. And when change happens there are inevitably some who embrace it and others who resist— with principled motives in both camps. For a good many years under presidents Roman Totenberg and Victor Rosenbaum, Longy School of Music had functioned quite peacefully as a community music school with an engaged faculty. But under their new leader, Karen Zorn, there have been dramatic changes in mission and authority. Some of her changes and proposals, including rumors of firings and reorganizations, may have led to the formation of The Longy Faculty Union affiliated with American Federation of Teachers. Their most immediate grievance is over the firing of 31 teachers, 8 of whom were eligible for membership in the union.  Some have cited the firings as as punishment for the formation of that union.

In the recent news there have been incomplete and confusing reports of the National Labor Relations Board’s injunctive suit filed on November 16 against the administration of Longy for the reinstatement of fired teachers and restoration of status-quo working conditions. From conversations for background with members of the Longy board and formal interviews with representatives of management and labor (read administration and faculty), this article presents précis of the competing narratives.

We begin with spokesman Jonathan Cohler’s summary of the recent pleading of NLRB on behalf of the union:

According to the NLRB, ‘Longy has acted in near total derogation of its legal obligations following its employees’ selection of the Union.’ Longy acted illegally in firing eight members of the faculty and changing working conditions for the remaining faculty one month after the union was formed, because during the first year of existence of a union and before a contract has been ratified, management cannot act unilaterally. Good faith negotiations must be made and formal impasse declared before management can act peremptorily.

Management further erred by declaring its right to act unilaterally on the grounds that it had substantially changed the scope and direction of Longy’s enterprise.  Longy’s argument is incorrect because the Supreme Court case they cite about ‘change in scope and direction’ (First National Maintenance Corp.) explains that the types of changes that are allowed without negotiating with the Union are only those that are akin to “opening a new line of business or going out of business entirely.” Longy has neither opened a new line of business nor gone out of business. In fact, it is doing the same things that it was before the ‘realignment.’ As the NLRB, states in its filing, ‘the fact is that after the realignment, the nature of Respondent’s business remains fundamentally unchanged. Respondent remains in the business of educating students in music. Using the same facility, it retains the same student populations, and teaches the same subjects as prior to the realignment. In fact, it still employs largely the same faculty using the same teaching methods to conduct this business.’

The union filed charges of unfair labor practices, which the NLRB investigated for four months before issuing a complaint. (The NLRB is a conservative body that is very reluctant to intervene.) It receives about 20,000 requests annually for intervention and only decides to file for injunctive relief in 20 such cases each year. Furthermore, the filing of the Request for Injunction means, ‘There is, therefore, a strong likelihood that Petitioner [NLRB] will prevail on all the allegations of the Complaint,’ according to the NLRB.

The hearing on November 30, contrary to what management suggested, did not include any decision in their favor. It was really a non-event. On Preliminary Injunctions, judges rarely make a ruling at the initial hearing. Especially, when the judge admits that she didn’t have time to read all the filings prior to the hearing. Furthermore, in this case, Longy made three NEW FILINGS on the morning of the hearing. So not only had the judge not read them, but the NLRB had also not yet had a chance to read them. The fact that she did not make a ruling in the hearing is absolutely normal, and in no way is it an indication of how she is “leaning” in the case. She said at the hearing that she would read all the filings and then make a ruling.

What has happened thus far is that both sides filed documents in U.S. District before Judge Patti Saris. The abstract of the NLRB and union’s petition for injunction can be read here. Management’s answer is  here. The hearing on a preliminary injunction ended on November 30 without a decision. Judge Sarris expects to have one on the question of injunctive relief within two months. The larger legal issues of whether Longy acted illegally will be decided in about a year.

Mangement’s position is here explained by Longy’s Chief of Staff Kalen Ratzlaff:

Karen Zorn became president 3 years ago, when Longy was in crisis with a $1-million deficit. The strategic direction had to change to turn this  around. She needed to make radical changes almost immediately to save the institution, implementing cost-cutting measures and identifying the Conservatory, which trains professional musicians, as the core business of the School, with the community program division in support of the Conservatory.  The merger with Bard College will allow us to add an Master of Arts in Teaching program. When she arrived there were 188 faculty members for 170 full-time students (which has increased to 230 currently) and 800 preparatory students. Many names on the faculty roster had not worked in years, while others consistently worked fewer than three hours per week. Altogether, 31 were terminated (eight of whom were eligible to be in the union) — all having averaged less than three hours of private instruction per week.

The NLRB’s central point, that Longy acted punitively after the union was formed, has no merit. Board minutes made public in our affidavit show that the decisions on staffing were ratified by the board long before the union was formed. In fact the formation of the union may have been an after-the-fact attempt to erect a speed bump in a process that could not ultimately be stopped.

The reason we did not negotiate the terminations and changes of title was that the decisions had all been made before the union was formed. While some of the faculty had been very satisfied by the status quo and fearful of the changes wrought by Karen Zorn, others have been quite excited by the opportunities, including a group of twenty-three [supporters] who wrote a public letter of support. BMInt provides that letter here.

Finally I should add we are negotiating with the new union and will continue to. A first contract is always hard. We expect to reach an agreement—that’s without a doubt. We’ll find a place where we can all thrive.

BMInt will continue to follow this story and update our readers as it unfolds.

Ed. Note: This Article has been edited in response to requests by Jonathan Cohler and Kalen Ratzlaff.

6 Comments

  1. It’s a while since I’ve been involved in labor relations questions, but it seems as if the fundamental issue turns on whether the changes announced in March were simply the necessary mechanical effect of decisions made before the union was certified. And one thing that strikes me is that Longy relies on affidavits from various officers as to what was happening before February — rather than minutes of board meetings. This suggests that no minutes are available (probably because none were taken). The affidavits do not show this non-lawyer clear evidence of final decisions in place before union certification — decisions which would have compelled the firings and reassignments of the specific individuals in just the way they occurred.

    Then there is the question — at least somewhat apart from the merits of the unfair labor practices complaint — of whether an injunction is proper while the case moves through normal procedures.

    It will be interesting to see how the courts and the NLRB decide the matter. And the whole thing is made much more interesting when one sees some very familiar names among those affected.

    Comment by Joe Whipple — December 6, 2010 at 9:00 pm

  2. It is truly amazing to me that an institution like Longy with it’s exceedingly intelligent staff does not pause to read these filings. Organized labor is the right of every person and the foundation for good labor practice among the workforce. It has been the cornerstone of industry development in this country. So why are special health insurance provisions, special tuition arrangements for dependents and preferential treatments being defended for select union members.
    Where are the benefits for the rest of the collective bargaining unit?

    Comment by Antonio Salieri — December 17, 2010 at 10:59 pm

  3. There are no “special provisions” being defended for “select union members.” The policies that you refer to, such as the tuition arrangements for dependents and health insurance provisions, were the stated policies in the school’s Faculty Handbook, and they applied equally to all faculty members. The administration unilaterally changed those terms and conditions of employment without notification to or bargaining with the Union. Those are only a couple of the many flagrant violations of the National Labor Relations Act committed by Longy, which is why the NLRB has issued such all-encompassing and powerful complaints against Longy. The fact that NLRB used its special power under section 10(j) of the NLRA to seek an Injunction is an indication of just how serious they feel the violations are. The NLRB only seeks 10(j) Injunctions in about 1 out of every 1000 cases it receives.

    Comment by Jonathan Cohler — December 29, 2010 at 10:47 pm

  4. Hyperbole aside, I too was curious why the names of only a couple union officers where cited in the complaint separately from the collective bargaining unit health insurance complaint. Isn’t it the same complaint?

    I thought the Judge chose not to immediately act on the injunction?

    Comment by Agustin Lara — January 3, 2011 at 9:57 pm

  5. As I read it, there were two individuals whose health premiums were changed in a way which had nothing to do with the rest of the members of the bargaining unit, and these changes were made without bargaining, which sounds like an unfair labor practice — even if the changes were not unreasonable on their face.

    Unions must represent not only the bargaining unit as a collectivity, but each member individually. The employer must bargain not only over matters which apply to all members of the unit, but also over matters which apply only to specific individuals.

    So, “They unilaterally changed the health coverage for the members of the unit,” and “They unilaterally changed they way they calculated their payments for bargaining unit members A and B,” are equally, and separately, grounds for complaining of unfair labor practices. It may or may not be a coincidence that the two individuals whose treatment was unilaterally changed were in leadership positions in the union — that’s for management to know and others to guess, and the hearing officer to decide. But officers or rank and file, the union has a duty to represent them.

    Comment by Joe Whipple — January 3, 2011 at 10:53 pm

  6. Joe, thank you for your clear explanation. I appreciate you taking the time to read my question rather than just responding angrily.

    Comment by Agustin Lara — January 5, 2011 at 9:20 pm

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