How many shoes does this thing have anyway?

I guess this shouldn’t have come as a surprise: 

Two New York Philharmonic players sued the orchestra on Wednesday, saying they had been wrongfully suspended after a recent magazine article revived allegations of misconduct against them.

The players, Matthew Muckey and Liang Wang, filed separate lawsuits in Federal District Court in Manhattan. The men claimed that the Philharmonic had removed them without cause and in violation of an arbitrator’s ruling, which had ordered the orchestra to reinstate them in 2020 after an earlier attempt to fire them.

The players also sued their union, Local 802 of the American Federation of Musicians, accusing the organization of failing to provide them fair representation.

I believe that technically Muckey and Wang were actually put on administrative leave, which, according to Wikipedia, can happen

when an allegation of misconduct is made against an employee, either by a co-worker, student, parent, an alleged victim, or a police officer. During the leave, employers may investigate the situation before determining an appropriate course of action. Administrative leave does not in itself imply that an employee will be disciplined or that an allegation is credible, which is why pay and benefits are not discontinued. It simply allows the employer to investigate the incident, maintaining the employee's status while at the same time removing them from work, eventually leading to either their return or dismissal.

So it looks to me like they have a very weak case, in that labor law generally does not consider administration leave to be “discipline.” Their suit against Local 802 is equally weak for the same reason. The Local would of course have a duty of fair representation towards the affected employees if they are subsequently disciplined, but I’m skeptical that they have any obligation to intervene simply because the employer is paying them to stay home.

Of course, in our business, being paid while being told to stay home looks and feels like discipline; while we all love time off, we also believe that being employed by an orchestra (to quote from Wang’s lawsuit) “require[s] that [musicians] be given opportunities to perform and excel as a musician.” But I’ve been told consistently by several excellent labor lawyers that the law doesn’t see it that way.

This suit seems more like a preemptive strike against the New York Philharmonic actually terminating them again and Local 802 refusing to arbitrate the termination. Obviously the Local - really, any union - has a compelling interest in making sure that arbitration awards are fulfilled. But there are always exceptions.

It will likely matter to 802 whether, and how, such non-fulfillment can be addressed. In my orchestra’s CBA, a breach of an arbitration award by management relieves the Local and the musicians of the obligation not to strike during the term of the CBA, and the reverse is also true of lock-outs, which to my mind seems entirely fair. If something similar is true in the case of the New York Philharmonic, Muckey and Wang are gone.