The AFM Observer

More thoughts on the New York Philharmonic

(I'm very pleased for the blog's first guest post to be from Melinda Whitley, a member of the Nashville Symphony viola section and the orchestra's union steward. It is a thoughtful and compassionate take on the situation in which the New York Philharmonic now finds itself - or, to be more accurate, in which our industry finds itself.)

It is easy to call for burning down organizations we do not like. The world stage is full of those who fan the flames of conflicts of all types and sizes, but there are those who work to resolve them. There are also many people who are not only willing to be accountable for their own mistakes but are willing to dismantle that which does not function properly, and then work tirelessly to create something better. There is a lot going on in our professional world right now and it is not pretty. Rather, it is extremely disturbing. While I did not previously know about the 14-year-old incident in the New York Philharmonic before recent investigations were publicized, I am no stranger to incidents in my workplace that involve both the legal system and union processes, especially those regarding a collective bargaining agreement.

 There are two types of flaws in any system. The mechanical or procedural processes designed to facilitate the function of the system, and the human beings that design and use them. Perfection is a goal, not a reality. There are many in our industry with more experience than I will ever have with such things. Yet, in my limited experience, there is nothing so frustrating as being in a position to be able to use official processes to protect someone from injustice, but not be given the very tools necessary to be effective. Or - worse yet -  be denied the ability to do anything at all.

In our unionized orchestra industry, almost everything happens at the local level. When our managements are heard to complain about “the union,” we often respond by stating “we are the union.” And while we have union colleagues all across the nation, and we support each other in many ways, local unions have distinct identities because the individuals in the local are distinctly different human beings. In the same manner, a professional symphony orchestra, including the board of directors, staff, musicians, and even their communities, are both the same and different from each other.

Mistakes happen in any system and are made by every human being. Very few people intend to commit crimes or perpetuate injustice. The important thing about mistakes is what is done after one has been made. In my experience, it is not uncommon for mistakes to be compounded by bad decisions that build upon each other. When that happens, it becomes all the more important for those involved to be held accountable and make better decisions that correct a problem.

The issue then becomes what will actually help accomplish such a goal? Is it berating those who are trying to help? Is it a scorched earth action that will have other negative consequences? Is it wise for those without direct knowledge of the details of any issue to insert themselves into the process? How much noise or attention is too much or goes too far? Where is the line between seeking and supporting justice, and creating more damage to more people?

As a fairly new union steward in my orchestra, I am disheartened and disgusted to hear about the events in the New York Philharmonic. I stand with Cara and Amanda. I also stand with the other humans involved in the events within their own orchestra. I do not know what actions they did or did not take. I do not know the reasons they had for the choices they made.

The system of a professional orchestra is one that contains large power imbalances in many places. Any power imbalance requires accountability in the system. Ultimately, we have built a complex system where that responsibility falls on human beings inside the organization. When that system fails, we have a larger external system to turn to for help.

Like any society, we are required to abide by the laws of our country. We do not allow people to storm the proverbial Capitol when we do not get the result we desire through agreed upon processes. That would create much more damage. If a process fails, we have methods to revisit them and change them. When we learn better, we can and should do better. We cannot do better when we do not know what we do not know.

I sincerely hope that the humans of the New York Philharmonic and Local 802 revisit their decisions and actions and find a way to be accountable and create change. I also hope that city officials in New York and in Colorado will continue to seek justice and that they are given the needed tools to do so. Again, I stand with Cara and Amanda. I believe they were treated very badly and did not have the support I would want to give them, as both a colleague, and a shop steward in any orchestra.

The Sound of More Shoes Dropping

Yesterday the New York Times reported that the management of the New York Philharmonic has commissioned an “independent investigation into the culture of the New York Philharmonic in recent years,” in the words of the orchestra’s president and CEO Gary Ginstling. He went on to write,  in a letter to musicians, staff, and board:  “I am empowering Katya [Jestin, from Jenner & Block] to look at everything and to leave no stone unturned, including any new allegations as they are reported.” He also announced that Matthew Muckey and Liang Wang, the two musicians whose 2018 termination for misconduct and subsequent rehiring after arbitration, were “not being assigned to any Philharmonic activity” while the investigation was ongoing. More ominously for the two musicians, he went on to say that “a decision about their future with the New York Philharmonic will be made in due course.”

What he really meant is (I strongly suspect) that “a decision about just how we are going to ensure the absence of any future for Wang and Muckey with the Philharmonic is in the process of being made now, and we'll let you know when we've figured it out.” And the two musicians in question clearly sense that. The lawyer representing Wang

accused the Philharmonic of “yielding to the modern equivalent of a lynch mob” and “not affording him the dignity and fairness he deserves…[in 2018 the orchestra] “did not accuse Liang Wang of any misconduct arising from it” and that the “only person accused of misconduct in connection with that matter” was Mr. Muckey. 

Gold medal for the colleague-hurling-under-the-bus event, by the way. Since neither the 2018 investigation or the arbitration are public, there’s no way to know what Wang was fired for. But it clearly wasn’t nothing. Wang was in way too close vicinity to the 2010 events, and Kizer essentially accused him of spiking her drink so that the assault could occur without her resistance. That would have been enough all by itself to justify a termination, if the orchestra believed it happened that way. The suggestion that there might have been even more evidence of wrongdoing than that does not look as good for Wang as his lawyer seems to think it does.

Muckey’s lawyer took a similar tack:

A lawyer for Mr. Muckey, Steven J. Hyman, said in a statement that “the allegations against our client have been investigated over and over and over again” and that “in each instance our client was cleared of any wrongdoing.”

“What the Philharmonic is doing undermines our system of justice,” he said, adding that it was important to respect due process. He did not address Mr. Lewis’s statement.

Good call choosing not to compete for the same gold medal. But it’s hardly true that his client was actually cleared of anything. The 2010 criminal case was dropped by the local DA, even though the investigating officer wanted him to prosecute; hardly a resounding “clearing.” The 2018 investigation did the exact opposite of “clear[ing] [Muckey] of any wrongdoing.” And, although it is true that the 2020 arbitration award resulted in reinstating both Muckey and Wang, it’s worth reading what the award actually said:

In April 2020, Bloch ruled in favor of Muckey and Wang, citing the fact that the “events at issue occurred some 8, 10 and 12 years prior” and the “potential degradation of corroborative evidence over time.” Because “sex acts are normally performed privately,” he wrote, “the task of demonstrating assault charges, including those resulting from the refusal to take ‘no’ for an answer, can be difficult to prove.” He went on to write that ““nothing in this opinion should be read as concluding that all doubt has been removed concerning the actions” of Mr. Wang and Mr. Muckey.”

It’s really hard to read that and conclude that Muckey and Wang were "cleared" of any wrongdoing.

I’ve written a lot about due process in this case, and I've gotten some heated pushback as a result. Is re-opening this investigation a failure of due process, as Mr. Hyman claimed?

I don’t see how. While it is true that the US Constitution enshrines the concept of double jeopardy (preventing an accused person from being tried twice for the same offense) in our criminal law, and while there is a similar concept in the Anglosphere civil law called res judicata, those concepts are not the core of due process (a concept that was first mentioned by name in the statutory codification of the Magna Carta in 1354, if anyone was curious.)

For example, there are rare instances of arbitration awards being overturned in court, despite the deference given by Federal law to the arbitration process. An interesting take from 1990 on this in cases involving public safety is here. One could argue that the public good might require the same in cases of criminal assault of a co-worker.

And a defendant in a criminal trial resulting in a hung jury (one unable to reach a unanimous verdict of either guilt or innocence) can be tried again. In a moral sense at least, that seems relevant to this case.

The final word on the due process question would need to be given by a court of law. And, if the Philharmonic tries to overturn the arbitration award that reinstated Wang and Muckey, we’ll get that final word. Of course, simply being able to defend the arbitration award in court is itself plenty of “due process.” That's good enough for my sense of justice.

That didn't take long

 

From the New York Times at 6:45 PM EDT today:

The New York Philharmonic said on Monday that two players it had tried to fire in 2018 — but was forced to rehire after the musicians’ union challenged their dismissal — would not take part in rehearsals or performances for the time being after a magazine article detailed the allegations of misconduct that had been made against them.

The Philharmonic said that the players — the principal oboist, Liang Wang, and the associate principal trumpet, Matthew Muckey — would not appear as the orchestra deals with the fallout from a New York magazine article published on Friday.

In the article Cara Kizer, a former Philharmonic horn player, came forward for the first time to publicly discuss an encounter that occurred when she was on tour with the Philharmonic in Vail, Colo., in 2010. She told the Vail Police Department then that she had been sexually assaulted after spending the evening with the two players and was given a drink she came to believe was drugged, according to police records.

No charges were filed against the men and both have denied wrongdoing; their lawyers said they expect to return to the ensemble soon.

I don't.

In partial defense of Local 802

(Excerpted from the post immediately below)

A lot of heat has been emitted over the 2018 decision by Local 802 to take the termination of New York Philharmonic musicians Matthew Muckey and Liang Wang to arbitration. I think I understand how that decision could look like the Local not believing Kizer and Stewart or not supporting women in general. And I don’t know what the relevant officers at 802 were thinking when they made that decision. But I can make a pretty good guess.

Good union officers (and 802 had some of the best) take very seriously the concept of due process. A core purpose of a labor union is to protect its members against unfair discipline by employers, and due process in disciplinary matters is their only tool to do so.

Unions are the equivalent of public defenders for their members, if public defenders were also the only way to get into court and avoid getting executed on the street by vigilantes. In most cases, if the union doesn’t agree to take a grievance (in this case a termination) to arbitration, it doesn’t go to arbitration: period, the end, fini.

So the notion of denying due process to terminated members sits very uneasily with good union officers. I know that I’ve taken terminations to arbitration that I was not only sure we’d lose, but that I thought that we really ought to lose. But whether we won or not wasn’t my job; my job was to ensure due process for everyone who was employed under our CBAs. I felt the Local owed that to all our members.

Do you think your tax dollars should pay for public defenders to defend people who are accused of heinous crimes and who may well be guilty? Would you vote to elect a public defender to a judgeship, knowing that they defended some bad people and probably even kept a few from punishment that they were due? Do you think that John Adams was a great president, even though he had served as defense attorney for British soldiers who shot and killed colonist protestors in the Boston Massacre? Then you too believe in due process. If due process is only for the innocent, then it’s for no one.

The AFM and its Locals are in the fortunate position that its unionized employers generally accept and abide by their CBAs. That means we generally don't have to defend the good citizens in our workplaces from unjust and arbitrary discipline, because managements have learned - from our advocacy for our members through the grievance arbitration process - not to indulge those urges. So it's inevitable that people we defend are often people who have done something against the CBA, or something improper, or on occasion something really bad - like assaulting a colleague. We do it because, if we don't, we risk losing the ability to defend the workers who really deserve to be left alone by management. Due process doesn't mean the guilty shouldn't be punished; it just means that we should be sure they're guilty before punishing them. In our business, that means the grievance arbitration process.

It is true, as has been argued online, that Local 802 was not legally obligated to take these terminations to arbitration. Federal labor law allows unions a great deal of discretion in administering CBAs, including deciding what grievances to pursue to arbitration.

But Federal law also provides consequences for a union making the wrong decision. Any person working under a CBA can file an unfair labor practice charge with the National Labor Relations Board. It doesn’t even require a postage stamp any more. That's not fun for a union to deal with.

A far more serious and expensive consequence is what’s known as a “Hybrid Section 301 Claim.”  This allows an employee to file a lawsuit against both the employer and the union for violations of the CBA. The nasty part for the union is that the union is liable for some portion of whatever damages and back pay the employee is awarded if they win.

Such a suit is generally considered hard to win. The fact that one of the top arbitrators in the US ruled in the musicians' favor suggests that this was a rare exception to that rule.

So Local 802 was on the very sharp horns of a very unpleasant dilemma. If they took the terminations to arbitration, they would look as if they were supporting rapists - and insulting a large portion of their membership by doing so. They would also be spending a lot of money on an arbitrator and legal fees.

But, if they refused to take it to arbitration, they were likely to get sued. And, if they lost, not only would they have spent a fortune defending themselves in Federal court, they would be on the hook for multiples of $100K.

Unless that money was to come from insurance, that would mean that huge amounts of union funds that could otherwise be used to organize workplaces and work for better wages and working conditions for musicians would go to people that the Local believed had committed evil acts against their colleagues.

It’s entirely reasonable to think that the Local should have refused to go to arbitration in 2018. I'm sure the thought had its appealing aspects to the officers of Local 802. But it’s neither reasonable nor fair to think that it was a no-brainer, or to claim that the decision proved that the Local didn’t care about its women members.

I've also seen criticism of the union not having gone to bat for Cara Kizer and Amanda Stewart when they were forced out of the orchestra in 2011. Initially I shared that view. And maybe that criticism is justified. But there are several good reasons that the Local might not have taken any action with respect to those terminations. 

The first is that neither musician may not have wanted them to. Personally I hate when musicians don't come to the union for help, but some people believe they can handle such situations by themselves. Others don't want to tell anyone personal or confidential information, although the union is bound to keep such to themselves. Some don't trust the union. Some simply don't want to make a public fuss, fearing that it might hurt their employment prospects in the future. No doubt there are other reasons. Who could blame either musician for wanting to get the hell out of an orchestra that had treated them so badly?

Having said that, I think there might have been two ways their terminations could have been contested. I think Stewart had a plausible basis for an unfair labor charge with the NLRB; her support of Kizer sure looked like the kind of "concerted activity" that Federal labor law protects. And the CBA is clear that everyone is obligated to obey the law, which of course would include the National Labor Relations Act. That would seem to provide a basis for the Union to arbitrate a dismissal of a probationary musician if such dismissal was for "concerted activity."

That's not a criticism of either the Local or Stewart for having gone that route. Both would have been uphill fights, I suspect, and possibly total non-starters. I'm not a labor lawyer; I only play one on the phone.

But if either musician had asked for Local 802's help, I really hope that the Local tried to find a way to assist. I don't know if they they were asked to. But neither do most of the folks on Facebook and Shitter currently yelling at the Local.

OMG

Just when I thought I was out, they pull me back in.

I lasted posted on this blog in 2020. I thought I was done, what with the AFM having calmed down, me being very close to retirement, and a general lack of interest in current events in the orchestra business.

You're only here because you just read the same article that we all did. It portrays some evil acts, as well as massive institutional dysfunction. Almost no one comes out of it looking good; by my count, just the two women who were forced out of the orchestra, two members of the New York Philharmonic management, and one cop.

But the mother of all orchestral clusterfucks currently on display at the New York Philharmonic pushes all of my buttons; bad orchestra management, bad internal orchestra dynamics, labor law, the role of the union, gender inequality in our field, and a few others. So I think I might be able to contribute some light on this situation, particularly with regard to the role of the union. Lord knows that enough heat has been generated already. I can try at least.

I start from the premise that the article on the New York magazine website is accurate. It’s a reputable magazine, and an article like this will have been fact-checked to within an inch of its life.

The story begins in 2010 with a very credible accusation from a probationary member of the New York Philharmonic brass section, hornist Cara Kizer, of being raped by another member of the brass section, associate principal trumpet Matthew Muckey, after having been drugged by principal oboe Liang Wang, while on tour with the orchestra in Vail at the Bravo! Vail festival.

According to the article, Kizer handled the aftermath of the assault exactly as law enforcement urges rape victims to do. She saved what physical evidence she could, and reported the assault the next day to the orchestra’s personnel management, her immediate supervisor. The personnel manager  immediately fetched the physician on call to the Festival, who in turn called the Vail police. Kizer then went to a local hospital, where she was given a sexual-assault exam and tested for date-rape drugs. Two days later, a DNA sample was taken from Muckey, which proved that he had sex with Kizer. But of course he claimed it was consensual.

(I’ve seen some criticism online about the failure of police to test for GHB (gamma hydroxyutyrate), a drug commonly used by date rapists. But apparently GHB is undetectable in either blood or urine samples more than 10 hours after ingestion, so such a test would have been pointless. Kizer had a test of her hair done months later that showed the presence of GHB, and suggested that she’d been exposed to it the previous July.)

The investigating officer appeared to believe strongly that it was a good case, and recommended to the district attorney’s office that charges be filed. That by itself is unusual; according to this article , only about 18% of rapes reported to the police result in arrest. and only 3.5% result in conviction. However, almost 2/3 of rapes referred to prosecutors result in convictions.

That makes it very strange indeed that the prosecutor in this case declined to charge Muckey. I truly loathe conspiracy theories, but it’s hard not to wonder if pressure was put on the DA’s office by one or more of Bravo! Vail’s rich and powerful donors. Having a Festival participant prosecuted for rape is not a good look for the Festival. after all. And I’ll bet the relationship between law enforcement and the rich and powerful people who live in Vail and support the Festival is an… interesting one.

The failure to bring charges in a good case was Institutional Failure No. 1. A conviction would have led to Muckey’s (and perhaps Wang’s) immediate termination by the orchestra. And, after a conviction, I seriously doubt that the Local would have contested it.

(A related side-note: the article referred to Joseph Kirwan, in the DA’s office, as “Deputy District Attorney.” But this article states that he joined the DA’s office in 2013. It’s possible that he was working for the DA’s office in 2010 in some kind of freelance capacity. But it does appear to be an error in the article that wasn’t caught by the fact-checkers.)

Institutional Failure No. 2 was the New York Philharmonic management’s failure to take the allegations against Muckey and Wang seriously. Not only did they not commission the kind of investigation that management commissioned in 2018 (under different and better management, of course); it appears they didn’t even take any action to keep Muckey and/or Wang from interacting with Kizer. That's  is a basic step for any management, in any workplace to take in response to allegations far, far less serious than were these. To quote from the article:

At one point during the orchestra’s fall tour in Europe, (assistant principal trombone Amanda) Stewart took a photo of Muckey moving close to Kizer. 

This is management malpractice of the highest order. Why didn’t they say to these two guys “don’t go anywhere near her or interact with her in any way; if you do, we’ll fire you for insubordination?” Who keeps insisting at every negotiation that management runs the workplace and needs the power to do so? Apparently, in this case, the same people who refused to police the workplace and protect the workers.

If they had done the 2018 investigation in 2010, not only would it have been far more credible evidence in an arbitration; it’s likely that they would have gotten better and more accurate testimony. If they had fired Muckey and Wang after a contemporaneous investigation, it’s entirely possible that it would have held up in an arbitration.

What then happened to Cara Kizer, and the other female brass musician, assistant principal trombone Amanda Stewart, was simply a miscarriage of justice. Stewart, who was up for tenure in the following season and who the article implies was Kizer’s one outspoken supporter in the orchestra, was denied tenure:

Stewart faced her own tenure hearing, in February 2011. She told me that in September 2010, Schiebler, the personnel director, told her that the orchestra’s music director was “so happy with her playing and so happy she was there.”

But within a month, Stewart said, members of the brass section had begun criticizing her support for Kizer.

“How dare a probationary, non-tenured member accuse a tenured member of anything,” Stewart claimed a musician in the brass section told her. At one point during the orchestra’s fall tour in Europe, Stewart took a photo of Muckey moving close to Kizer. Stewart said Alan Baer, the orchestra’s tuba player, saw her take the photo and pulled her aside a few days later.

“‘If you don’t stop supporting her publicly, this is going to harm your tenure,’” Stewart said that Baer warned her. (Three people confirmed that Stewart told them about this conversation at the time. Baer denies he said this to Stewart.)

Around Thanksgiving 2010, an “emergency meeting” was called by members of Stewart’s tenure committee. Though Stewart was traveling, Schiebler called to tell her that “things do not look good” because there were “major concerns” about her playing.

On February 11, Alan Gilbert, the orchestra’s then–music director and conductor, told Stewart that she didn’t “lay it down enough.” She would not be receiving tenure. Stewart says that a member of the tenure committee told her that the vote had gone against her eight to one. She believed that taking the photo in Europe “was the nail in my coffin.”

There are lots of reasons musicians can be denied tenure, although it's an uncommon event in most American orchestras (my orchestra has denied tenure to exactly one musician during my 30+ years here). Being a good colleague matters as much as does being a good musician to most tenure committees. If the committee (consisting entirely of male brass players) thought she was spreading false allegations of rape, that would be a significant issue. I'd be reluctant to vote for tenure for a musician who I sincerely believed was spreading nasty and untrue rumors about my colleagues, and so would most musicians I know.

But the fact pattern strongly suggests that she was right; that the denial of tenure was largely, if not completely, the result of her advocacy for Kizer and her belief that the allegations were true. The fact that she won, and was tenured in, the exact same position in the St. Louis Symphony suggests that it wasn’t her playing that was the problem.

Kizer also left the orchestra; according to the article, after having received a significant settlement and signing an NDA. She also appears to have worked pretty steadily since her departure from the New York Philharmonic.

But let's be clear; it was management that denied Stewart (and perhaps Kizer) tenure, not the tenure committee. According to the version of the New York Philharmonic CBA that I've seen, the tenure committee simply didn't have that power. Yes, Music Directors have reasons, both good and bad, for not challenging tenure recommendations they don't agree with. But making hard personnel decisions is part of why they get paid so much more than the people in front of them who actually make the music.

Fast-forward to 2018. Deborah Borda had started as the orchestra’s CEO in September of 2017. The #MeToo movement “went viral” a month later. Whether in response to that, or for another reason, management commissioned an investigation by a retired Federal judge into the 2010 allegations, as well as others. That investigation resulted in the orchestra terminating Muckey and Wang on September 16, 2018.

A lot of heat has been emitted over the 2018 decision by Local 802 to take the termination of New York Philharmonic musicians Matthew Muckey and Liang Wang to arbitration. I think I understand how that decision could look like the Local not believing Kizer and Stewart or not supporting women in general. And I don’t know what the relevant officers at 802 were thinking when they made that decision. But I can make a pretty good guess.

Good union officers (and 802 had some of the best) take very seriously the concept of due process. A core purpose of a labor union is to protect its members against unfair discipline by employers, and due process in disciplinary matters is their only tool to do so.

Unions are the equivalent of public defenders for their members, if public defenders were also the only way to get into court and avoid getting executed on the street by vigilantes. In most cases, if the union doesn’t agree to take a grievance (in this case a termination) to arbitration, it doesn’t go to arbitration: period, the end, fini.

So the notion of denying due process to terminated members sits very uneasily with good union officers. I know that I’ve taken terminations to arbitration that I was not only sure we’d lose, but that I thought that we really ought to lose. But whether we won or not wasn’t my job; my job was to ensure due process for everyone who was employed under our CBAs. I felt the Local owed that to all our members.

Do you think your tax dollars should pay for public defenders to defend people who are accused of heinous crimes and who may well be guilty? Would you vote to elect a public defender to a judgeship, knowing that they defended some bad people and probably even kept a few from punishment that they were due? Do you think that John Adams was a great president, even though he had served as defense attorney for British soldiers who shot and killed colonist protestors in the Boston Massacre? Then you too believe in due process. If due process is only for the innocent, then it’s for no one.

The AFM and its Locals are in the fortunate position that its unionized employers generally accept and abide by their CBAs. That means we generally don't have to defend the good citizens in our workplaces from unjust and arbitrary discipline, because managements have learned - from our advocacy for our members through the grievance arbitration process - not to indulge those urges. So it's inevitable that people we defend are often people who have done something against the CBA, or something improper, or on occasion something really bad - like assaulting a colleague. We do it because, if we don't, we risk losing the ability to defend the workers who really deserve to be left alone by management. Due process doesn't mean the guilty shouldn't be punished; it just means that we should be sure they're guilty before punishing them. In our business, that means the grievance arbitration process.

It is true, as has been argued online, that Local 802 was not legally obligated to take these terminations to arbitration. Federal labor law allows unions a great deal of discretion in administering CBAs, including deciding what grievances to pursue to arbitration.

But Federal law also provides consequences for a union making the wrong decision. Any person working under a CBA can file an unfair labor practice charge with the National Labor Relations Board. It doesn’t even require a postage stamp any more. That's not fun for a union to deal with.

A far more serious and expensive consequence is what’s known as a “Hybrid Section 301 Claim.”  This allows an employee to file a lawsuit against both the employer and the union for violations of the CBA. The nasty part for the union is that the union is liable for some portion of whatever damages and back pay the employee is awarded if they win.

Such a suit is generally considered hard to win. The fact that one of the top arbitrators in the US ruled in the musicians' favor suggests that this was a rare exception to that rule.

So Local 802 was on the very sharp horns of a very unpleasant dilemma. If they took the terminations to arbitration, they would look as if they were supporting rapists - and insulting a large portion of their membership by doing so. They would also be spending a lot of money on an arbitrator and legal fees.

But, if they refused to take it to arbitration, they were likely to get sued. And, if they lost, not only would they have spent a fortune defending themselves in Federal court, they would be on the hook for multiples of $100K.

Unless that money was to come from insurance, that would mean that huge amounts of union funds that could otherwise be used to organize workplaces and work for better wages and working conditions for musicians would go to people that the Local believed had committed evil acts against their colleagues.

It’s entirely reasonable to think that the Local should have refused to go to arbitration in 2018. I'm sure the thought had its appealing aspects to the officers of Local 802. But it’s neither reasonable nor fair to think that it was a no-brainer, or to claim that the decision proved that the Local didn’t care about its women members.

I've also seen criticism of the union not having gone to bat for Cara Kizer and Amanda Stewart when they were forced out of the orchestra in 2011. Initially I shared that view. And maybe that criticism is justified. But there are several good reasons that the Local might not have taken any action with respect to those terminations. 

The first is that neither musician may not have wanted them to. Personally I hate when musicians don't come to the union for help, but some people believe they can handle such situations by themselves. Others don't want to tell anyone personal or confidential information, although the union is bound to keep such to themselves. Some don't trust the union. Some simply don't want to make a public fuss, fearing that it might hurt their employment prospects in the future. No doubt there are other reasons. Who could blame either musician for wanting to get the hell out of an orchestra that had treated them so badly?

Having said that, I think there might have been two ways their terminations could have been contested. I think Stewart had a plausible basis for an unfair labor charge with the NLRB; her support of Kizer sure looked like the kind of "concerted activity" that Federal labor law protects. And the CBA is clear that everyone is obligated to obey the law, which of course would include the National Labor Relations Act. That would seem to provide a basis for the Union to arbitrate a dismissal of a probationary musician if such dismissal was for "concerted activity."

That's not a criticism of either the Local or Stewart for having gone that route. Both would have been uphill fights, I suspect, and possibly total non-starters. I'm not a labor lawyer; I only play one on the phone.

But if either musician had asked for Local 802's help, I really hope that the Local tried to find a way to assist. I don't know if they they were asked to. But neither do most of the folks on Facebook and Shitter currently yelling at the Local.