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Devki K. Virk www.bredhoff.com ——————
Robert Alexander Richard F. Griffin, Jr.
Matthew Clash-Drexler Kathleen Keller
Abigail V. Carter Philip C. Andonian
Joshua B. Shiffrin Deva A. Kyle
Jenifer A. Cromwell Of Counsel
Elliot Bredhoff
(1921 – 2004) ——————
Ramya Ravindran
Henry Kaiser Robert M. Weinberg
Jacob Karabell
(1911 - 1989) Julia Penny Clark
Caitlin Kekacs
Jeffrey R. Freund
Jeremiah A. Collins
Mady Gilson
John M. West
Senior Counsel

March 31, 2020

By Email
Hope Sarah Goldstein, Esq.
Bryan Cave Leighton Paisner LLP
1290 Avenue of the Americas, 33rd Floor
New York, NY 10104

Dear Hope,

We write, on behalf of the District of Columbia Federation of Musicians, Local

161-710 (“Union”), regarding the unilateral decision of the Kennedy Center
(“Center”) to stop paying National Symphony Orchestra musicians after this week.
In particular, we write to respond to the Kennedy Center’s position, as expressed on
our call yesterday, that it unilaterally can “suspend” the parties’ entire collective
bargaining agreement (“CBA”) because of “exigent circumstances” on one week’s
notice. That position is baseless.

As set forth in the Union’s grievance that was filed on March 27, the Center’s
decision to stop paying musicians after this week is a plain violation of the CBA.
Sections 2.8, 2.9, and 2.10 of the CBA require the Center to pay weekly scale and
seniority to each musician in the Orchestra. If the Center believes that its “finances
at any time hereafter do not justify the full performance of the Agreement for the full
period thereof,” Section 9.10 of the CBA specifically permits the Center to terminate
all of its obligations under the CBA, so long as the Center provides at least six weeks’
notice to each member of the Orchestra.
March 31, 2020
Page 2

The Center has not exercised its contractual right under Section 9.10 to
terminate the CBA, as you confirmed on our call yesterday. Unless and until it does
so (and subject to the additional contractual requirements set forth in Section 9.10,
including providing the Union with an independent audit), the Center has no basis
for failing to honor its contractual obligation to continue to pay musicians. Labor
arbitrators consistently have enforced the plain terms of a CBA, even when an
employer alleges that an economic exigency prevents it from fulfilling those
contractual obligations. See, e.g., Labor Arb. Dec., 149740-AAA, 2011 BNA LA
Supp. 149740 (2011) (rejecting argument that employer could avoid paying
contractually-required health-care benefits because of an “economic emergency,”
explaining that such an emergency “does not provide a basis for refusing to honor a
current promise”); Overly Mfg. Co., 68 BNA LA 1343 (1977) (same); see also
Associated Univs., Inc., 105 BNA LA 1041 (1995) (“[e]conomic exigencies cannot
justify a contract violation”).

The Center’s position that federal labor law permits it to breach its contractual
obligation to pay musicians is unfounded. On the contrary, the Center’s decision not
to pay musicians after this week is prohibited by the National Labor Relations Act,
which makes it violation of federal labor law for an employer to make unilateral
modifications to a collective bargaining agreement during its term. As the National
Labor Relations Board recently observed, “[t]he Board has held that neither a claim
of economic necessity, hardship, nor infeasibility, even if proven, is a valid
affirmative defense to unilateral modifications to an existing collective-bargaining
agreement.” Lm Waste Serv. Corp. & Union de Tronquistas de Puerto Rico, Local
901, 360 NLRB 856, 864 (2014) (citing cases). The Board’s “exigent circumstances”
line of cases that you referenced yesterday is entirely inapposite; those cases involve
situations where either there was no collective bargaining agreement in effect or the
employer made a unilateral decision to shut down its operations entirely.

Finally, even if there were merit in the Center’s position that it could stop
paying musicians because of exigent financial circumstances—which there most
assuredly is not, wholly apart from the $25 million appropriation to the Center
under last week’s federal legislation that was, by its terms, to be used for operating
expenses including employee compensation—that would not permit the Center to
disregard the dispute-resolution procedures in the CBA. Those provisions, of course,
are intended to avoid litigation and thereby save, not increase, the parties’ costs.

Indeed, given the especially frivolous nature of the Center’s claim that the
dispute-resolution procedures in the CBA are no longer in effect, it appears that the
Center is taking this position in an attempt to make it more time-consuming and
expensive for the Union to enforce its contractual rights. Nonetheless, the Union
will expeditiously process its grievance through the dispute-resolution procedures
to which the parties have agreed—including, if necessary, to the Board of Arbitration
March 31, 2020
Page 3

described in Section 6.8 of the CBA. As per the CBA, any decision of the Board of
Arbitration will be “final and binding” on both parties, regardless of whether the
Center elects to participate in this process.

Sincerely,

Jacob Karabell
Anne Mayerson

CC: Deborah McArthur, Esq., by e-mail