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.

Comments

[theafmobserver]

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.

[Mattiverse]

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?