How the union protects predatory musicians
OrchestrasThe case of two accused sexual offenders who got their jobs back at the NY Phil after a union-led ‘binding arbitration’ has reminded West Coast readers of a previous painful instance in the LA Phil.
In 1989, the orchestra’s principla bass was convicted at Los Angeles Municial Court of ‘exhibiting material depicting a child engaging in sexual conduct’.
The man kept his position in the orchestra, and his teaching position, until retiring during Covid in 2020.
During those 31 years, other members of the section refused to share a stand with their principal. But they were unable to get him fired because the union would not permit that.
The LA Times has a court report of his conviction online.
This is precisely the point. Deborah had the balls (as did the org leadership) to fire these guys, perhaps without a flawless case. Union could have kept them out and away, but here we are… Strikes me that the union could negotiate in some variety of terms for their exit currently… Interested to hear of the actions of the committee and Local 802 in this regard…
Also not confident that the limited, small-town police force of Vail, CO was equipped to handle such a sensitive circumstance, which is terribly sad.
Another famous victory for organized labour against. Solidarity forever. And whatever, apparently.
Absolutely! Let’s not forget the Union’s valiant defense of all the fellow members refusal to take the jab.
I most certainly am not ignoring or denying the seriousness of this Philharmonic situation but does anyone know why this has re-surfaced after so many years? And, if both parties, back then, agreed to “binding arbitration,” how can this be re-opened now? Is there anyone on this site who has specific legal experience/knowledge about such things?
I don’t believe the binding arbitration can be re-opened. Perhaps that would change if criminal charges were brought by the DA in Vail. Why is this resurfacing now? My guess would be that Kizer and Stewart had to sign NDAs as a condition of the settlements they received upon leaving the NY Phil. Most NDAs has expiration clauses, and I’d bet that this one was 10 years.
What settlements? Why would anyone get a settlement when being denied tenure? What fantasyland stuff is this?
Stewart was denied tenure and left. I believe Kizer had threatened to go the press, knowing that she would be denied tenure anyhow. The settlement was to avoid a scandal on behalf of the orchestra and to make her leave quietly.
Please note that the arbitration was between NYPO and Muckey/Wang as it concerned their dismissal. Kizer and Stewart were not parties to the arbitration.
1. Binding arbitration cannot be reopened. Tech companies with far more money to spend on lawyers wish they could, but don’t even attempt to do it.
2. It’s unclear from the article if the reason for the termination included Kizer’s allegation. The article says that when it conducted an investigation in 2018 it was aware of Kizer’s allegation, but doesn’t say what the specific findings were and what from it were used to justify the terminations.
3. Wang and Muckey sound like serial rapers, and the article makes clear that many people in the orchestra thought they were guilty. So I imagine there are a lot of people who want to see them held accountable and removed from the orchestra.
“In 1989, the orchestra’s principal bass was convicted at Los Angeles Municial Court of ‘exhibiting material depicting a child engaging in sexual conduct’.”
Times change, what a relief we have arrived at the age of Queer Story Hours in libraries for kids. The World In Union, eh…
What a load of rubbish.
Hopefully this all results in some soul searching among union members. When you take an absolutist position that management never has a justified reason for terminating a member, and you bake that into your CBA, then you are protecting members who do awful things.
And as I said before, this isn’t a hard problem to fix: In the CBA, require that an outside law firm investigate certain allegations at the expense of management; if there’s a preponderance of evidence validating the allegations, then members are terminated and that’s it — no progressive discipline, no appeals, no arbitration. If a member feels that their termination was wrong, they can still file a civil lawsuit to pursue damages, but that’s on their own dime.
Yeah, this does hand some power back to management, but the matter with the NYP perfectly illustrates the downsides of management essentially being powerless to fire people for even the most egregious behavior.
Question for lawyers: How does double jeopardy apply to CBA’s
Why is an “investigation by an outside law firm” better than an arbitration? Both aim to uncover the truth. But an arbitration allows people to actually mount a defense, whereas a simple investigation doesn’t. I’m not sure your idea is even legal, and parties to a CBA are not allowed to negotiate clauses that are against the law. No orchestra or union could legally negotiate a clause that allowed management not to hire Muslims, for example.
Now you’re just conflating two completely, separate issues: discipline and termination, and hiring.
The union and management negotiation what the process is for investigating allegations, administering discipline, and when an employee can be terminated. Look in any CBA and you’ll see a detailed processed.
The problem is that this process almost always just contemplates terminating employees for bad performance because that’s the number one reason employees are terminated at any company. (Nobody was really thinking about sexual harassment until 10 or 15 years ago, and union members in orchestra have historically mostly been men.) Unions obviously want to protect employees from being fired the first time management says that they made a mistake — employees should be given an opportunity to improve their performance.
The reasons for putting sexual harassment and assault complaints in the hands of an outside law firm are simple:
Investigations over employee conduct that can lead to termination are usually done by management (with employees receiving union support, like a steward present during investigatory interviews). Arbitration serves as a check on that.
With sexual harassment and assault complaints, I think everyone would agree that there’s no room for progressive discipline. If someone has done either, neither employees nor management want to keep them around and try to coach them in not doing it again. There’s zero tolerance for sexual harassers and abusers.
Thus, with these claims, you want a process where if there’s a preponderance of evidence validating the claims against the employee, they are terminated, that’s it.
So that’s reason number 1 why you want someone besides management conducting these investigations. Reason number 2 is that these investigations take a high level of expertise. Issues of consent can be complicated and nuanced. And number 3 is that because there is no progressive discipline, you want an extremely thorough investigation to ensure the right decision is made.
Accused employees get to have their side of the story told by participating in the investigation. This is no different than participating in an investigation over disrespectful behavior towards a colleague, for example. And the discipline process in the CBA usually requires them to participate in investigations.
As for why not let this go to arbitration, that’s quite simple: The arbitrator is not an expert in sexual harassment and assault claims. Their expertise is interpreting the CBA.
And what happened here is case and point about this. The arbitrator dismissed the findings of the law firm’s investigation because they thought you couldn’t adequately investigate these matters because they happened 8 and 10 years ago, and happened in private rooms. Even members of Local 802 agree that’s absurd reasoning to ignore the investigation and reinstate the terminated musicians.
Folks, let’s just remember that the NYP fired the two in question. They took a stand, perhaps despite best (and/or legal) advice. Let’s hear from past and current union leadership on their plans to resolve.
No surprise that the tenure and termination policies advanced by the union to protect under-performing and elderly musicians are now protecting predators in their own ranks.
This is not a criminal or legal issue, this is a labor problem requiring a labor solution.
It equally a union & management issue. The union can keep the players from getting fired (obviously from LA & NY reports), BUT nothing stops the CEO or MD from NOT putting them on stage. Make them suit up and sit in the wings every show until they quit. Right?
Except that they’d have to pay them to not work and they couldn’t replace them.
The could also likely file a grievance and force the orchestra to put them back on stage.
Then they could sit in the wings and write their book, “If We Had
Done It.” and make millions. Why not have them practice scales all day in a dank practice room in front of rats. That satisfy the terms of their contracts.
Oh, but it is a legal issue. First of all, the initial investigation that resulted in termination did not focus only on the Kizer allegations. It focused on numerous alleged incidents described by a slew of interviewees. The arbitration hashed over all that stuff again, including but not limited to the Kizer matter, under the rubric of reviewing the termination grounds. To this day we do not know what the bundle of alleged incidents and actions were, that were addressed in the original investigation, formed the grounds of the termination, and were hashed over again by the arbitration officer. But accordion to the NYMag/Vulture article, the arbitration officer did not apply the standard of proof applied in the findings that resulted in the termination. Instead, the appointed arbitrator applied a tougher standard of proof called “clear and convincing.”
This is indeed a “legal issue.” Why was this allowed to occur? Normally, employment policies set out the standard of proof to be used, and it is often the “preponderance” standard, also stated as “more likely than not,” or even, “Fifty percent and a feather.” That is a less demanding burden for a complainant party to satisfy in order for their allegations to be substantiated. WHY the arbitration was allowed to review the termination grounds using a tougher standard of proof rather than using the standard applying to the inquiry that resulted in the termination . . . That IS a “legal issue.” NYPhil’s Union now says they are changing the standard of proof for union arbitration of these types of allegations. But it is a scandal and a serious legal issue that the divergence was allowed in this case.
The protections against dismissal for cause – ie, misconduct – are different, and generally less, than the protections against dismissal for artistic inadequacy.
And it’s odd that no one seems to notice that orchestras in general play to a much higher technical standard than in the past, when such protections didn’t even exist. It’s almost as if treating musicians fairly actually improved the ability of orchestras to play well.
“it’s almost as if treating musicians fairly actually improved the ability of orchestras to play well.”
Maybe it did, but it is impossible not to notice that the general standard of playing of non-orchestral musicians has also improved greatly. If the level of the people auditioning for orchestra jobs improves, one would expect that the level of the orchestral playing will also.
I am NOT saying treating musicians fairly is unimportant; I am generally pro-union and pro-musician. Rather, I think this is an example of establishing correlation not being the same as establishing causality.
Management is never powerless. NY Phil could fire both today. Would there be consequences? Sure. Would it be breaking a contract? Sure. Hands are never tied in the face of evil.
And could a Federal court order that the musicians be reinstated, as required by the arbitrator? Also “sure.” Pretty sure that the consequences of that happening would be devastating.
I saw worse than this in State Government. I knew a guy who plead guilty to molesting his stepdaughter and he was allowed to keep his government job. Employment contracts should have morality clauses so people like that can be given the boot.
No union in the US – orchestral or otherwise – can simply “not permit” an employer to fire an employer for misconduct. What unions actually do is to negotiate a mutually-agreed contract with the employer that allows a terminated employee to appeal their termination to an outside independent authority. The union will generally then act as the employee’s defense counsel. It’s called “due process” and it’s most fundamental concept underlying any fair judicial process.
If you don’t believe that unions should defend their members in arbitrations, then you probably don’t believe that tax dollars should pay for public defenders, or that accused rapists shouldn’t simply be lynched, or that John Adams shouldn’t have been elected president because he defended the British soldiers accused of shooting Boston colonists. You probably also believe that Trump should be re-elected so that he can “lock them up.”
https://theafmobserver.typepad.com/my_weblog/2024/04/in-partial-defense-of-local-802.html
Thanks for posting this since you saved me a lot of time and stated it better than I probably could have. It’s a little scary how fast some can conclude that depending on the allegations that only some are entitled to representation and an advocate to make sure that their due process isn’t violated.
While I think this incident will change the way musicians’ unions think about harassment claims, the fact is (as Mr. Levine alludes to) that under American labor law, Local 802 would have been at risk from a lawsuit brought by Muckey and Laing if they declined to bring an appeal on their behalf. If a union declines to seek every available appellate right for their members, said members will inevitable sue them for breach of duty of fair representation. Still, from a PR and political standpoint, that may be a better choice for unions in the future than “winning” arbitrations on behalf of alleged rapists.
That’s not entirely true.
While unions are generally obligated to assist members with filing a grievance against management, they have absolutely no obligation to pursue a matter to arbitration on behalf of its members. Going to arbitration isn’t cheap. When unions decide if they are going to expend their resources supporting a member this way, they take into account the substance of the matter and their chances of winning. They will not throw money at something they don’t believe in.
When Muckey and Wang asked Local 802 to take their firing to arbitration, they could have been told that if they wanted to fight the matter, they had to do it on their own.
Yes, unions have great discretion in how they handle grievances, and there is no absolute requirement to take any grievance to arbitration. But, as I’ve pointed out already, the consequences of not taking a termination to arbitration can be losing a hybrid Section 301 suit in Federal court – which would both reinstate the musicians and hold the union liable for much of the back pay owed them.
I guarantee you that you don’t want to give any union – even the best one – the ability to ignore grievances without any further recourse by the affected employees. Say the NYP fired someone for a bogus reason and that person was also a political opponent of the union president’s. Do you really want there to be no recourse for the fired musician in that situation? Speaking as a union president, I sure don’t.
You’re conveniently skipping over the fundamental issue which is that the union had a choice. Just because they could have faced a lawsuit from refusing to take the issue to arbitration doesn’t obligate them to do so. This is America — someone can always sue you for what you do or don’t do. What this whole debate is about is that the union should have shown a bit of courage and potentially risked a lawsuit.
And it seems pretty clear that union leadership never even considered not taking this arbitration because they outright dismissed the allegations and evidence against the men because they too were a bunch of chauvinist.
And realistically, the men wouldn’t have sued the union because if the union’s reason for not going to arbitration were the findings in the report, then the men would risk that report going public, and that would have ended their careers.
If you’d read all of what I’d written, you would have found that I’d talked at great length about the union’s ability to choose.
I guess there was the risk of their misconduct going public had they taken it to court. Or there would have been such a risk had the New York Times not published an article in 2018 with the headline “New York Philharmonic Dismisses 2 Players for Unspecified Misconduct,” which included the following: “No details of the allegations against the two players — including whether they involved sexual misconduct or not, and whether they related to on- or off-duty behavior — were provided.”
No one, in 2018 would ever had suspected that they’d been fired for some really serious misconduct of a sexual nature, would they?
And it’s not at all clear that Muckey and Wang had the right to demand arbitration if the union passed on it. Some CBAs may be written that way, but my understanding is that the grievance by default belongs to the union, not the affected employees, and if the union doesn’t take it to arbitration, no one else can. But I might be wrong about that.
What protection or process is due to the multiple victims of these two men? They are union members too.
Robert writes ‘…If you don’t believe that unions should defend their members in arbitrations,…’
Robert, you forgot to add:
‘…when they have been fired for sexual assault…’
My answer is NO — I do not believe unions should defend members fired for sexual assault. Does anyone?! Robert keeps repeating there was no choice. In truth he refuses to admit defending these two creeps meant NOT defending Cara and this was a choice to take on the case. Robert will try to water down the truth with many words, but he knows in his heart there is no credible defense.
And the local 802 president at that time is now the AFM president! Wow, now women in all orchestras can feel safe!
The AFM has badly damaged orchestras’ reputations in the US. Women know the Federation will likely not support them. I tell women if they have an issue, hire a lawyer of their own—don’t waste time with the AFM. The AFM had their place but have lost their way. Yes everyone will lose their pension when the Union burns. But if it means rectifying such an egregious wrong, we can all scrimp.
In essence Robert says “it’s such a shame, but money, you know.”
I say “it was a nightmare for Cara and Amanda, and it’s a nightmare for the NY Philharmonic musicians as well as anyone in an orchestra, so let’s do the right and honorable thing now, even if the ship goes down.” Ships can be rebuilt. Healing lives is a lot harder.
“My answer is NO — I do not believe unions should defend members fired for sexual assault. Does anyone?!”
Yes, unless the conduct has been proven to have occurred in a court of law. Otherwise the conduct is alleged, and the accused has the right to due process. And it’s been that way in US employment law for a very long time for any employee – unionized or not – who has a contract for personal services.
It’s extremely troubling, as well as mystifying, that the case wasn’t prosecuted in Vail in 2010 when it happened. The chief investigator pushed for Muckey at least to be charged. But the DA’s office refused.
I believe Cara Kizer when she says she was raped. But my belief is not proof. Nor is yours. Nor is the Vulture article. Nor was the Jones report. For that matter, the arbitration was not proof that she wasn’t assaulted.
I love how casually you say “Yes everyone will lose their pension when the Union burns.” Yes, let’s let retired musicians go hungry; that’s entirely right and fair.
Fortunately your understanding of the way union pensions work is as flawed as your understanding of due process. If the union vanished tomorrow, the AFM-EP Fund would remain. For which, as someone who’s just started receiving benefits, I’m very grateful.
Interesting. And even more interesting is who was CEO both there and NYPhil during the course of both of these (and not benching the players, just letting it go!): DEBORAH BORDA.
Ernest Fleischmann was the CEO of the LAPO in 1989. Not Deborah Borda.
Borda was the GM of the Philharmonic as of 2017, she fired them in 2018 and was the part of the team that rolled over and let them back in, with the negotiations with the union in 2020. She’s absolutely part of the story.
She didn’t “roll over and let them back in.” She agreed to following the ruling of a binding arbitration process that had been in place for decades. She was bound by both the CBA (enforceable by a court) and by Federal labor law.
Apparently none of that matters to a lot of people.
These two are just enjoying paid vacation during their indefinite suspension.
I am still looking for a union job.
I wonder if it’s actually enjoyable for them to be on paid vacation, or if it’s eating away at them on the inside. I genuinely am curious.
Presumably they’ve lived with the shame/guilt for years now. True or not, it is their daily reality.
Only if they aren’t sociopaths (which is somewhat probable if all of the allegations are true).
MY GOD, how can this happen in America?
I heard that in America, a man was found liable for raping a woman and ordered to pay her $83.3 million in damages (yes, it was *rape*, the judge ruled), and the same man led an insurrection on the capital and sent a mob to hang the Vice President of the United States, and that man is just walking free around Manhattan bragging he can just “grab ’em by their pussy.”
And get this, he wants to be president, ha ha ha, that’ll never happen, right?
Brrrr, what a scary little banana republic.
Cadet Bone Spurs can count himself lucky to live in 2024, not in 1954. Back then,he would have been grilled on the electric chair for treason,like the Rosenbergs.With some reason.
When nearly half of the population is dumb enough to buy bibles to help a “billionaire” pay his fines involving hush money payments to a porn star he had sex during pregnancy and giving birth of his wife, all is lost….
Trump (our soon-to-be 47th president) lives rent-free in your tiny, addled mind. Sad!
Alphonse, probably not a great idea to talk about the Philistine dirt bag currently in trial for a cover up which would have lost him the presidency in 2016. Your comment is pathetic.
Exactly!
“In 1989, the orchestra’s principal bass was convicted… During those 31 years, other members of the section refused to share a stand with their principal. ”
Hmmm…
Even as new members arrived who would not necessarily know the incident?
Everyone got a memo upon being hired?
Do basses even share stands?
I’m having a hard time thinking of an orchestra I’ve seen or been in where two basses had to share a stand.
But that was in 1989? Back then, a big mea culpa could have smoothed that over. I wonder why that didn’t happen.
Normally, all string players share stands.
Wasn’t there an article previously on SD about a musician in the national ballet of canada who is also a convicted child predator who was dancing in one of their performances with children dressed as a clown ?
This saga, together with the denial of tenure to a Black percussion musician in Kansas City, among probably many other instances of non-grant of tenure which are (by design!) publicly unknown, proves that the current system of Tenure in symphony orchestras needs reform. The union needs to propose a system in which musicians are protected from their peers as well as from management. Management in this case includes both organizational management as well as artistic management – let us not forget that tenure rules were put in place for good reason to protect musicians from mercurial music directors who might fire someone in a fit of pique.
From what I’ve heard (from musicians at KC), Josh Jones was denied tenure for not being a good principal percussionist, in all that entails. No scandal there. More of a professionalism/attitude and organizational thing. Principal percussion is about a lot more than simply choosing the best part and playing well.
True about Josh. Not only didn’t organize the section well but couldn’t play together with the rest of the orchestra. Simple as that.
Is there some reason why you’re capitalizing the b in “black”? Black supremacy?
The New York Philharmonic contract is crystal-clear that the power to grant or deny tenure belongs solely to the employer and not to the musicians. Why isn’t that enough?
What a stupid comment. You know that the orchestra decides who is tenured. NOT the management.
Plus your frequent defense of Local 802 is getting annoying.
They dropped the ball here and due to being overly dependent on NYPO work dues, sided with the perps.
If the perps were indeed worthy of defense, then (as dues paying members), the Kiser and Stewart should have been provided with union paid lawyers. And they were not.
The Orchestra Industry does NOT need the AFM. In reality, the entire orchestra industry would be best served by each orchestra taking matters into their own hands.
If orchestras were not part of the AFM, the AFM would collapse. You know that. I know that. And the industry as a whole knows that.
It’s time for a whole different model where the AFM is just a footnote in the history of the Music Business.
“What a stupid comment. You know that the orchestra decides who is tenured. NOT the management.”
Unlike you, I have read the New York Philharmonic contract. To quote: “During that periods (the first two years of an Orchestra member’s tenure) the Orchestra member shall be considered a probationary employee, and the Society shall be permitted, in its sole discretion, to refuse to re-engage the member of the Orchestra for a new period provided it gives written notice to that effect within 17 months after the Musician’s employment date.”
And you clearly understand nothing about the AFM and its relationship to its members and symphonic employers.
I am not as well informed on this as I would like to be (and will be eventually), but I see the AFM’s part in this like being OJ Simpsons lawyer – you KNOW he’s guilty, but your job is to defend members.
Local 802 reminds one of the Catholic Church actions under similar circumstances.
The Catholic Church wanted to shield predatory priests from due process. Local 802 wanted the accused musicians to have due process. Do you understand the difference between the two?
Accused is not guilty.