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April 15, 2024

Comments

Mattiverse's questions are generally fair ones. I don't know of any AFM Locals that have arbitration committees; I think I'd be wary of instituting one in my Local. I think that's what the Local Executive Board is for. Decisions that carry significant legal liability for the Local should be reserved for the officers elected to run the Local, in my view.

But Mattiverse also writes:

Having worked as a union rep in a couple different unions for several years that were very solid in terms representational work (and conservative about legal liability), I have a very different perspective on the inevitability and necessity of arbitration.

Unions ROUTINELY decide not to go to arbitration for member grievances, for tactical, financial, and/or moral reasons. This is not unusual or risky. We pursue the grievances, not arbitrations, to avoid DFR charges.

I don't know what your experience has been, or with which unions. But I can assure you that the AFM and its Locals view dismissal for just cause - especially from full-time orchestral employment - far more seriously than that. Of course, being fired from an orchestra like the New York Phil for misconduct of this magnitude is essentially economic capital punishment, which is not the case for terminations in many other industries. Not only would both the fired musicians in this case be deprived of tens of millions of future earnings, their chances of finding full-time employment in their chosen field would be essentially zero. And it's not like their skills are transferable to another line of work.

And you're simply wrong about the risk of a DFR in this situation. Yes, "Unions ROUTINELY decide not to go to arbitration for member grievances, for tactical, financial, and/or moral reasons." Very few members will undertake the expense of filing a hybrid Section 301 lawsuit in court over how the union handles most grievances.

But termination is profoundly different. I stand by my statement that a decision to not arbitrate a dismissal for cause - especially in the orchestral context - is the equivalent of begging for such a lawsuit. Depending on our insurance coverage, if my Local did that, not only would we probably go broke simply defending ourselves in Federal court, we'd certainly go broke if we lost and the musician was re-instated anyway, as we'd be on the hook for some portion of back wages for them. And then our entire treasury would have gone to pay a musician's back wages when, if we had arbitrated, it would have been management on the hook for that.

Should Local 802 have taken that risk anyway? Maybe. But please don't pretend it would have been a no-brainer. I don't even buy the assumption that it would have been popular with the membership to have done so - especially if the musicians won in court and the membership saw its dues dollars going to pay reinstated members whose misconduct would have become very well known to them by that point.

Having worked as a union rep in a couple different unions for several years that were very solid in terms representational work (and conservative about legal liability), I have a very different perspective on the inevitability and necessity of arbitration.

Unions ROUTINELY decide not to go to arbitration for member grievances, for tactical, financial, and/or moral reasons. This is not unusual or risky. We pursue the grievances, not arbitrations, to avoid DFR charges.

Arbitrating the rapists’ September 2018 termination was a choice that 802’s leadership made—whether that was Tino Gagliardi in the fall of 2018, or the next administration under Adam Krauthamer that took over January 2019.

Not unlike the original #MeToo movement, this is a time of reckoning with forces of misogyny in classical music. People are seeing the incredible harms committed, and the tremendous courage of Kizer and Stewart. They’re asking what the union could have done differently then, how we can hold people accountable now, and what the union can do differently in the future.

It’s not remotely enough to speculate about legal justifications. To be a good leader, you take the right stand and then you use every tool you have, including legal advice, to do the right thing (and yes, in a way that minimizes risk to your organization).

Let’s not forget that the decision to arbitrate was made in the wake of #MeToo—thousands of folks, mostly women, risking their careers, public retaliation, and more to stand up and speak out against their abusers.

The AFM needs to do better in today’s moment of reckoning.

Some questions that are absolutely answerable by current AFM leadership at 802 and the international:

1. When did the final, non-reversible decision occur to go to arbitration for reinstatement of the perpetrators?

2. Who was involved in that decision? Was it the president, the executive board, or another body?


3. Was NOT arbitrating the grievance seriously considered by the local, and evaluated by union leadership and/or counsel?

4. Will the union put into place structures of accountability and transparency for when future cases like this occur? (While not perfect, many unions have arbitration committees to handle these cases consistently, avoid influence of individual relationships, and to minimize risk of DFRs when members are turned down.)


5. Will Local 802 and the international publicly join the call for New York Phil to release Cara Kizer from her NDA?

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