AMERICAN ARBITRATION ASSOCIATION, Administrator Voluntary Labor Arbitration Tribunal
In the Matter of the Arbitration between PHILADELPHIA ORCHESTRA ASSOCIATION -and- AMERICAN FEDERATION OF MUSICIANS, LOCAL 77
Case Number: 14 30 0071 66
Award of Arbitrator
THE UNDERSIGNED ARBITRATOR having been designated in accordance with the Arbitration Agreement entered into by the above-named Parties, and dated September 27, 1963 and having been duly sworn and having duly heard the proofs and allegations of the Parties, AWARD, as follows:
Under the contract, the Association may require members of the Orchestra to travel by airplane on the forthcoming tour of South and Central America, except that individual members who can show a genuine physical or psychological incapacity for flying shall be excused, without pay, from making the tour.
The Association shall promptly advise each individual member of the Orchestra of this ruling. Within three days after receipt of such notice, any individual members who claim to have a genuine physical or psychological incapacity for flying, and who wish to be excused from the tour without pay for that reason, shall notify the Association of that claim and request.
Any disputes regarding management's rejection of any such requests shall be submitted promptly to arbitration, on the issue of whether the individual has shown a genuine physical or psychological incapacity for flying. The details of scheduling such arbitrations, including the selection of an arbitrator or arbitrators, shall be arranged jointly by the parties.
Lewis M. Gill
(s) Lewis M. Gill, Arbitrator
DATED: March 14, 1966
COUNTY OF ss.:
On this day of , 19 , before me personally came and appeared
to me known and known to me to be the (individuals) described in and who executed the foregoing instrument and he acknowledged to me that he executed the same.
PHILADELPHIA ORCHESTRA ASSOCIATION -and- AMERICAN FEDERATION OF MUSICIANS, LOCAL 77
Arbitration Case No.:
14 30 0071 66
This case involves an issue as to whether members of the Philadelphia Orchestra may be required to travel by airplane on a projected tour of South and Central America. The case was heard at the American Arbitration Association offices in Philadelphia on February 19, 1966, and the record was closed, upon receipt of post-hearing briefs, on March 3rd.
The projected tour, scheduled to start about May 10th and conclude about June 12th, is to cover a considerable number of countries, and it is agreed that the only possible way to meet the schedule is by flying. That is an important point to keep in mind - the question is not whether those who object to flying should be permitted to take alternate means of travel, as has been done on many domestic trips. In this case, there is no alternate mode of travel - the only choice is between flying or not making the trip at all. That much is agreed all around.
The issue to be decided is whether management may require the musicians to travel by airplane. The Union contends that such a requirement is improper because of a contract provision which assertedly guarantees that train accommodations will be provided for all out-of-town tours, except for certain contingencies where bus travel is
permitted. The Association contends that travel by air may properly be required under the contract.
The provision in question is Paragraph 15(B)(1) of the contract, which contains the following language:
"(1) First-class transporation, i.e., travel by railroad in coach cars for daytime travel and roomettes, bedroom and compartment cars for overnight travel, will be provided for all out-of-town concerts of the Orchestra except as follows:"
There follows a series of sub-paragraphs detailing circumstances under which bus travel may be used, basically for relatively short distances. No mention of any kind is made of travel by air, either here or anywhere else in the contract.
The Union's argument is short and simple - the contract language guarantees "first-class transportation" on all out-of-town concerts, and defines this as being travel by railroad by using the term, "i.e. travel by railroad". The case would be different, suggests the Union, if the contract said "e.g. travel by railroad", since "e.g." means "for example". But "i.e." plainly means "that is", and the language cannot legitimately be stretched so as to include air travel in the contract definition of "first-class transportation" - so argues the Union.
The Association assails this position as unrealistic and unsound even as a technical matter of contract interpretation. The language on which the Union is relying was initiated in about 1952, at which time, it is agreed, travel by air had not developed to the point where it was regarded as feasible for the Orchestra's tours.
Accordingly, the Association says, the contract language was not intended to deal at all with the question of air travel versus ground travel, but merely with defining the kind of ground travel which was to be considered as first-class:
As air travel became more common through the ensuing years, the Philadelphia Orchestra, along with other groups and organizations doing extensive travelling, resorted increasingly to air travel. Since 1955, the Orchestra has made over 30 trips by air, under this same contract language (save for certain detailed refinements as to bus travel which are not pertinent), with no objection being raised by the Union until the present case.
The management contends that this history not only shows that the parties to the contract considered air travel as coming within the scope of "first-class transportation", but also that the Union is estopped from coming forward at this late date with a claim to the contrary. As the point is summarized in the Association's brief:
"Where one party to a contract pursues a course of action which accords with the practice in the trade and upon which the other party to the contract acts in reasonable reliance, the first party may not subsequently disavow such practice at the last moment to the detriment of the other party, particularly when such disavowal is alleged to rest upon contract language which was never intended by the parties to affect, much less prohibit, such practice."
In reply to this line of argument, the Union says that the acquiescence in air travel over the years cannot properly be taken as proving anything of the sort. On all but three of the trips, alternate ground travel was available for any of the members who chose not to fly,
and was in fact used by some of the members. No one was required to fly. And on the three trips when alternate ground transportation was not available, special agreements were negotiated to cover two of those trips (Europe in 1955, Russia in 1958), which specifically provided for air travel. Only one trip (to Havana in 1958) found all the members flying without any special agreement having been negotiated.
All that this history shows, the Union argues, is that the members voluntarily agreed to fly on various occasions - it does not show that the contract allowed management to require them to fly.
If background events are to be considered - which the Union asserts is really improper because of the asserted clarity of the contract language - then the Union points to the 1961 negotiations as throwing the most light on the subject. In that negotiation, the Association submitted the following proposed revision of the travel clause:
"Define the phrase 'first class travel' to include travel on regularly scheduled airplane flights or on flights chartered from commercial airlines."