Please help me to understand something...

administrator

Ok, so recently, on TH, there was a thread about a trumpet player in the NYP who was fired two years back for "misconduct", only to be re-instated after an arbitrator cleared him. Here's the thread -- it's now since been locked.

https://www.trumpetherald.com/forum/viewtopic.php?p=1592590#1592590

Here's what I don't understand:
A) If the orchestra decided he was guilty of some sort of misconduct, why did they not pursue legal charges, or at least litigation?
Is New York not an "at-will" state? Forgive me for misunderstanding, but in my industry and state, you may be fired or quit for any reason without notice. It sounds bad, but it actually makes the environment competitive, with salaries to match.
C) Now that the orchestra is being "required" to reinstate the player, can they continue to pursue the issue? I know the U.S. Constitution protects against double-jeopardy, but this is clearly not a criminal case, so I doubt very much that that clause applies here.

Again, I'm trying to understand, so no hard feelings or angry replies, please. I come from a different background than many of you. My parents are educated, politically conservative and work in non-unionized industries, and I have followed suit in many respects; for better or worse, this is clearly a labor dispute that I do not fully understand.

Edit: if the above page is gone, refer to it here: https://web.archive.org/save/https://www.trumpetherald.com/forum/viewtopic.php?p=1592590

Dr GO

Let me try to address A and C.

Issue A. If I read the thread correctly, it appears the orchestra did pursue legal charges as arbitration which is a pre-trial process to try to resolve a legal dispute so to prevent a lengthy and expensive court case. So, because arbitration was accepted (this goes through a court magistrate) that the orchestra did pursue a legal prosecution.

Issue C. Since the plaintiffs won their case, they likely received a monetary settlement and as a condition of arbitration the right to return to their positions. The arbitration, once accepted by both sides, is a final judgement and both sides then need to comply to the final settlement. The orchestra can no longer pursue this issue further as a result of the settlement. IN ADDITION: The orchestra now has to "walk on egg shells" as if there is any action the orchestra takes that even remotely appears to make the return of the performers "difficult", these reinstated orchestra members can then go back to the legal council to file Federal Retaliation charges against the orchestra. This is a BIG DEAL and most of the time, retaliation is upheld which then constitutes a Federal Crime. No organization wants to be in that situation.

Kehaulani

Not addressing the technicalities, let me just say an overriding quagmire that affects other issues is that a sexual case is very hard to prove, "He said, She said", often being at the heart of the situation.

What one considers just simple flirting can be received by someone else as harassment. Motives are very hard to prove, only (usually) actions. And in the case of sexual harassment, can be in the eye of the beholder.

ROWUK

I disagree with the orchestras/operas "right" to dismiss without due process. A private investigator is NOT due process! The organization does have a right to give someone an extended "vacation" until charges are filed, heard and a court of law has made a decision against the person. It seems to me that "Me Too" is overstepping the basic tenant of innocent until proven guilty.

It is clear to me that no president of any orchestra wants to be charged with "not having done enough". That is the same BS that cause politicians to overreact over a lot of difficult things.

Just like with the trumpet, there is no easy solution for a difficult issue. Spinelessness is just as bad as sexual harassment. In my world, it does not matter who tells the lies.

@administrator said in Please help me to understand something...:

Here's what I don't understand:
A) If the orchestra decided he was guilty of some sort of misconduct, why did they not pursue legal charges, or at least litigation?

A. An important statement is "if the orchestra decided". We don't know the conditions and, in addition, the orchestra (for example) are labor and for the most part should justifiably lack the ability to fire because that would make every member (even the stinkin' clarinets) privy to a personnel manner involving the work life of an employee. In addition, management determines wages, hours and conditions of employment except for those variables ironed out in a collective bargaining agreement.

Is New York not an "at-will" state? Forgive me for misunderstanding, but in my industry and state, you may be fired or quit for any reason without notice. It sounds bad, but it actually makes the environment competitive, with salaries to match.

You're only partially right. (minus a collective bargaining agreement) An individual can be terminated for cause or no cause. Management can not fire a person for an illegal reason. They can but it can result in being rehired and backpay not to mention possibly any costs it took for the employee to regain their job.

C) Now that the orchestra is being "required" to reinstate the player, can they continue to pursue the issue?

Chances are, the situation went before an arbitrator since the Philharmonic is a member of the IASTE (The International Alliance of Theatrical Stage Employees). It would be VERY rare for any management to pursue the issue any further and even rarer for any court of law to hear the case. Labor disputes are a special animal when it comes to law. Labor issues were separated from courts of law decades ago because the courts (that are busy settling murders, car accidents, wrongful injuries, embezzlements, etc.) were being over-ran with labor disputes. As a result, we now have Labor Courts (tribunals), arbitrators, union representatives, etc.

I know the U.S. Constitution protects against double-jeopardy, but this is clearly not a criminal case, so I doubt very much that that clause applies here.

You are correct that the Constitution doesn't apply in this situation unless the reason they got fired was due to them breaking specific laws. Constitution = Federal laws. Laws not covered by the fed (right to keep and bear arms, freedom of speech freedom of the press etc.), whittles down to the states (divorce, executions that are not federal in nature), then counties (dry county where alcoholic beverages are limited usually by it's alcohol content) and then to local city governments( banning excessive loud mufflers on autos and motorcycles)
The section of the Constitution you are in reference to is The Fifth Amendment where a person cannot be convicted of the same crime twice. The key word is "crime". Was the person hauled out by the NYPD or were they dismissed by human resources. An individual can press charges against another individual in the workplace but that's another can of worms. If you punch me in the face (that's an example, not a suggestion) while we're at work, I can have your ass hauled out by the cops for assault. It appears that the term "unspecified sexual misconduct" was the allegation. Was it repeated? Did the offended party make it clear that the advances were "unwelcomed"? This phrase is an EXTREMELY important phrase for any person working with other people. One person's romantic pursuit is another person's sexual misconduct. Many (if not most) people who become romantically involved, meet at work. That's why its important that if you don't want to do a little mattress dancing with the person, get a friend or co-worker to listen (witness) and say "I find your romantic advances unwelcomed" In addition, did the offended party notify management in a timely manner or did the behavior go on and on until the person finally reports it to human resources? Was it a situation where they liked each other and then the romance went south?
My guess? Human Resources once again screwed up policies and procedures as it pertains to legal termination. Thank God for Unions!

Dr GO

See my original post above. I had just had a recent settlement for a labor dispute so I am fairly certain the NY state laws would parallel other state laws (my case was in Ohio). In this situation, Dr. Mark is correct, it is not handled by a criminal court. These cases do go up however in the civil courts of the county of the infraction. The process from here can go in multiple directions.

My case took an REAL interesting twist, as my labor dispute was two weeks away from going to trial, when the defendant's attorney decided to appeal the case to the Ohio supreme court! So before the case even went to the original civil trial in county court, the case was appealed to the State Supreme court. The Supreme court actually judged quickly that the appeal was not founded, and sent the case back to county court. The defendant with that action saw the writing on the wall and finally agreed to arbitration which was my legal team's desire as going to court is a lengthy and expensive process. The case was arbitrated in my best interest.

So in the case of the musicians' labor dispute, from first hand knowledge, I bet it went through the same process.

@Dr-GO said in Please help me to understand something...:

Congratulations! I initially read your post incorrectly.

Dr GO

@ROWUK said in Please help me to understand something...:

I disagree with the orchestras/operas "right" to dismiss without due process... It seems to me that "Me Too" is overstepping the basic tenant of innocent until proven guilty... Spinelessness is just as bad as sexual harassment. In my world, it does not matter who tells the lies.

Another point that this brings to mind, again from the employer I had a dispute with, was a co-worker's situation. My employer did fire him, without due process (very convoluted way twist of State Law that I will spare the details). But my colleague was charged with inappropriate sexual behavior. I actually went to his trial to observe the judge (that was to be the judge my dispute) so saw the perverse actions of my employer first hand.

At the beginning of his trial, a letter, had written by the woman "abused" was flashed up on the courtroom wall by overhead projector in front of the jury, detailing her being grouped, and forced to engage in unwanted sexual advances by my colleague. The woman was not personally in the court, only her letter was projected "as evidence" . As it turned out on the LAST DAY of the trial, that woman had the courage to come forward to actually testify in front of the court.

Here is what she said (I was there to hear her testimony). She testified that she was paraded into the corporate offices of our employer, and was told to take dictation in HER OWN WRITING of the letter projected in front of the jury with the grotesque sexual details. She was told by our employers' executives that if she did not write that letter, she (a single parent with two small children) would be immediately fired. She as an underling had no choice but to write false actions against my colleague. Consequently my colleague received a nice settlement from our employer as arranged by the jury, that included an additional personal settlement from his Department Supervisor AND the institutions Executive Officer.

So I agree with Rowuk. This Me Too move can be exploited against the innocent as was done against my colleague. This all hits way too close to home.

@administrator said in Please help me to understand something...:

Here's what I don't understand:
A) If the orchestra decided he was guilty of some sort of misconduct, why did they not pursue legal charges, or at least litigation?

A. An important statement is "if the orchestra decided". We don't know the conditions and, in addition, the orchestra (for example) are labor and for the most part should justifiably lack the ability to fire because that would make every member (even the stinkin' clarinets) privy to a personnel manner involving the work life of an employee. In addition, management determines wages, hours and conditions of employment except for those variables ironed out in a collective bargaining agreement.

Is New York not an "at-will" state? Forgive me for misunderstanding, but in my industry and state, you may be fired or quit for any reason without notice. It sounds bad, but it actually makes the environment competitive, with salaries to match.

You're only partially right. (minus a collective bargaining agreement) An individual can be terminated for cause or no cause. Management can not fire a person for an illegal reason. They can but it can result in being rehired and backpay not to mention possibly any costs it took for the employee to regain their job.

C) Now that the orchestra is being "required" to reinstate the player, can they continue to pursue the issue?

Chances are, the situation went before an arbitrator since the Philharmonic is a member of the IASTE (The International Alliance of Theatrical Stage Employees). It would be VERY rare for any management to pursue the issue any further. Labor disputes are a special animal when it comes to law. Labor issues were separated from courts of law decades ago because the courts (that are busy settling murders, car accidents, wrongful injuries, embezzlements, etc.) were being over-ran with labor disputes.

I know the U.S. Constitution protects against double-jeopardy, but this is clearly not a criminal case, so I doubt very much that that clause applies here.

You are correct that the Constitution doesn't apply in this situation unless the reason they got fired was due to them breaking the law.
The are of the Constitution you are in reference to is The Fifth Amendment where a person cannot be convicted of the same crime twice. The key word is "crime"

administrator

Wow, what a mess! I have a few thoughts about this

The rights of every individual need to be balanced. Our legal system provides that every person is "innocent" until proven guilty. I agree that, culturally, sometimes the opposite occurs. However, sexual abuse seems to be rampant to begin with, another big problem.
We really need to strive to be "beyond reproach" in our professional lives. I would have a difficult time even flirting with someone I work with (I am single, at the moment). You cannot be too cautious in this world of ours.
If I had gotten embroiled in this mess, and knew that I was innocent, I would quit, leave the state, find a farm in the country and want nothing to do with my former employer and life. But that's just me...
I am NOT advocating that sexual misconduct of any kind is acceptable, please do not read that.

@administrator said in Please help me to understand something...:

Is New York not an "at-will" state? Forgive me for misunderstanding, but in my industry and state, you may be fired or quit for any reason without notice. It sounds bad, but it actually makes the environment competitive, with salaries to match.

This is one of those situations where a person would think "Hey! it makes it more fair, right?
Wrong, Very wrong. There's an acronym (actually a reverse acronym) called BELL. It stands for Lets Limit Employee Benefits. Here's an example in action;
You work for a huge publicly traded tech company and it is divided into different departments.
One of the things that escapes people is that the most important job for the company is to INCREASE STOCKHOLDER WEALTH.
Then along comes a pandemic, or a new way of doing something that effects stocks. What companies will do (when they are not protected by a strong Union) is transfer all their older employees that have received incremental raises through the years (decades) and then shut down the department thus decreasing labor costs. One of the worst things ever to happen was employment- at-will. Think about it. Employment at will says you can quit at any time for a reason or even no reason at all and in exchange the company can let you go for a legal reason or no reason at all. Guess what, you could have quit whenever you wanted anyway! How is it done? You don't show up for work. Management got the gold and labor got the shaft.

administrator

Here's how I view it:

My industry is large, growing and competitive. A qualified individual can find a high-paying job relatively simply.
An individual is responsible for his/her self-reliance. A 6-month emergency is highly recommended for anybody.
Although I can be fired for any (legal) reason, I can also quit for any reason. I can also find another job fairly quickly.

The industry is competitive and sometimes unfair, but the risk comes with reward. By the way, I work for small companies. I have no interest in the large-corporate thing.

Dr GO

@administrator said in Please help me to understand something...:

If I had gotten embroiled in this mess, and knew that I was innocent, I would quit, leave the state, find a farm in the country and want nothing to do with my former employer and life. But that's just me...

That is exactly what my friend did (and a little richer at the conclusion), as he left the state and started his own business with nothing to do with the former employer.

@administrator said in Please help me to understand something...:

Here's how I view it:
My industry is large, growing and competitive. A qualified individual can find a high-paying job relatively simply.

Why would I hire you when you're 52 and set in your ways when I can hire a fresh to the workforce college graduate with a Master's who's more than willing to work at a starting salary and won't be telling me "we did it this way where I use to work"? In addition, the older you are, the more likely you are to be hit with a significant condition such as heart failure, diabetes, HBP, osteoarthritis, and the list goes on. I don't need another ward of the company, I need a fresh faced 20 something just out of college who's ten feet tall and bullet proof.

An individual is responsible for his/her self-reliance. A 6-month emergency is highly recommended for anybody.

For a symphony player? you gotta be kidding. NYP makes around $146,000. Many symphonies are either broke, or very broke. Many have closed because piped music is cheaper. In addition, what happens to the worker at WalMart? There's a large part of the citizenry called "the working poor" and to expect them to have a six month cushion just doesn't add up. That's as unlikely as Trump knowing how to calculate APR by hand. Yes the economy is doing better but people are having to work two or three jobs and that's most often without benefits.
If you're talking about having at least 6 months of cash tucked away in case of an emergency, you'd do well to double it. In addition, what do you do when the six months are over? COBRA benefits? Move back in with the parents? Sell your car for a cheaper car? Live out of your car?A lot of what you're saying isn't based in economic reality. It's all about the "readies" "the where with alls" "Moola" "cash" and unless you were born with a huge silver spoon in your mouth, you will be subject to the whims of greed and opportunity. If all men were virtuous, we wouldn't need courts.

Although I can be fired for any (legal) reason, I can also quit for any reason. I can also find another job fairly quickly.

Careful what you advocate. That statement depends on at least a couple of variables;
Why you got fired.
There are many physicians (one of the most noble jobs out there) that have made serious mistakes (and whether intentional or by design) end up as a biology teachers at some high school.

Who fired you;
If you piss off the likes of a David Geffen, he will use his resources to bury you. When's the last time you heard a Laura Nero CD or even heard the name? Yep, she pissed him off and the rest is history.
I'm well aware of the concept that "the market will take care of itself. The thing they don't tell you in undergraduate micro/macro economics is that "the market taking care of itself" can and often is the catalyst for revolution if there isn't an intermediary.

administrator

@Dr-Mark said in Please help me to understand something...:

@administrator said in Please help me to understand something...:

Here's how I view it:
My industry is large, growing and competitive. A qualified individual can find a high-paying job relatively simply.

Why would I hire you when you're 52 and set in your ways when I can hire a fresh to the workforce college graduate with a Master's who's more than willing to work at a starting salary and won't be telling me "we did it this way where I use to work"?

An individual is responsible for his/her self-reliance. A 6-month emergency is highly recommended for anybody.

For a symphony player? you gotta be kidding. NYP makes around $146,000. Many symphonies are either broke, or very broke. Many have closed and use piped music. In addition, what happens to the worker at WalMart? There's a large part of the citizenry called "the working poor" and to expect them to have a six month cushion just doesn't add up. That's as unlikely as Trump knowing how to calculate APR by hand. Yes the economy is doing better but people are having to work two or three jobs and that's most often without benefits.
If you're talking about having at least 6 months of cash tucked away in case of an emergency, you'd do well to double it. In addition, what do you do when the six months are over? COBRA benefits? Move back in with the parents? Sell your car for a cheaper car? Live out of your car?A lot of what you're saying isn't based in economic reality. It's all about the "readies" "the where with alls" "Moola" "cash" and unless you were born with a huge silver spoon in your mouth, you will be subject to the whims of greed and opportunity. If all men were virtuous, we wouldn't need courts.

Although I can be fired for any (legal) reason, I can also quit for any reason. I can also find another job fairly quickly.

Careful what you advocate. That statement depends on at least a couple of variables;
Why you got fired.
There are many physicians (one of the most noble jobs out there) that have made serious mistakes (and whether intentional or by design) end up as a biology teacher at some high school.

Who fired you;
If you piss off the likes of a David Geffen, he will use his resources to bury you. When's the last time you heard a Laura Nero CD or even heard the name? Yep, she pissed him off and the rest is history.
I'm well aware of the concept that "the market will take care of itself. The thing they don't tell you in undergraduate micro/macro economics is that "the market taking care of itself" can and often is the catalyst for revolution if there isn't an intermediary.

That's true; in some industries, you make enemies with the wrong person and your career is over.
But I also believe that one can learn new skills and be creative.

Kehaulani

If you piss off the likes of a David Geffen, he will use his resources to bury you. When's the last time you heard a Laura Nero CD or even heard the name?

I'm not sure of the context for the comment but, FWIW, Laura died over 20 years ago.

@Kehaulani said in Please help me to understand something...:

I'm not sure of the context for the comment but, FWIW, Laura died over 20 years ago.

David Geffen gave up his job at William Morris to be Nero's manager. At the point the label (tuna fish sandwich I think) was at its height, it was sold which made David and Laura millionaires. David then started his own label anticipating Laura to be one of the first to sign but instead, she went with Columbia. Up to that point, it was the hardest disappointment he had experienced. The best thing to do is to Google Geffen's reputation when someone pisses him off. Disney was the same way. If you cross him, you might as well go and die under a rock.

@administrator said in Please help me to understand something...:

That's true; in some industries, you make enemies with the wrong person and your career is over.
But I also believe that one can learn new skills and be creative.

There was a time when I thought to myself, "heck, if I can earn a doctorate, anyone can.: It led to years of disappointment because (as I learned) everyone can't become a doctor. Luck plays a big roll and most do not possess the work ethic to get the studies done. Does it make anyone less than? Heck no! Like I've said before, "there's a big difference between being educated and being smart."
As for learning a new skill, age plays a roll. How's your self esteem going to feel once you learn your new skill as a cashier when you were once lead technical advisor for General Dynamics? Unions help level the playing field. Granted, they can have their issues just like management can, but without a buffer between the little guy and the corporation, you'll have a nation of people that are part time with their credit cards maxed out.

Newell Post

I would imagine that NYP principals have employment contracts that stipulate a bunch of things including salary, number of performances, ownership of intellectual property, no sexual harassment, etc. If the principals do not have individual contracts, there is probably a union master agreement that covers all musicians.
If they have employment contracts, the musicians are not "at will" employees.
The contracts probably say the musicians can be terminated for cause for violating various rules.
The employment contracts probably stipulate binding arbitration for dispute resolution.
Arbitration is binding. There is no appeal from arbitration except in the very unlikely case that one party can prove malfeasance on the part of the arbitrator. No court ratifies the outcome of an arbitration, although a party to arbitration can go to court to collect on a financial award issued by an arbitrator.

@administrator said in Please help me to understand something...:

Wow, what a mess! I have a few thoughts about this
Not a mess at all. Learning is a good thing (usually)
The rights of every individual need to be balanced.
A person's rights are as stable as their cashflow. Its an inconvenient truth but just about anyone's rights can be trampled if the opposing party has a massive cashflow. Just imagine a person getting their civil rights violated and they press charges against Monsanto or Johnson & Johnson. Chances are, the individual will run out of money and the only winners are the lawyers. Its important to remember, going to court gives a person a "chance" at justice. It is not a guarantee.

Our legal system provides that every person is "innocent" until proven guilty. I agree that, culturally, sometimes the opposite occurs. However, sexual abuse seems to be rampant to begin with, another big problem.
No argument here. Domestic violence, sexual abuse and human trafficking are showing no signs of going away.

We really need to strive to be "beyond reproach" in our professional lives. I would have a difficult time even flirting with someone I work with (I am single, at the moment). You cannot be too cautious in this world of ours.
Oh my! For a person to be "beyond reproach", reproach meaning to address (someone) in such a way as to express disapproval or disappointment suggests employees need no supervision because mankind in general or at least Americans are just that virtuous and execute things correctly instead of taking 45 minute coffee breaks, taking shortcuts that compromise the quality of the product that has your name on it. Beyond reproach would suggest that we don't need no Administrators. We don't need no....Education

If I had gotten embroiled in this mess, and knew that I was innocent, I would quit, leave the state, find a farm in the country and want nothing to do with my former employer and life. But that's just me...
Whew! I hope you 1. Were born well off or 2. saved up well at your current position or 3. a combination of both. I know people that live the farm life and it can be expensive and labor intensive. Your eyeballs will pop out when you see your first veterinary farm call bill. However, I can't think of a better life than farm life in the mountains of West Virginia.
I am NOT advocating that sexual misconduct of any kind is acceptable, please do not read that.
Why would I? However, its important for employees (especially women since they are the one's that are usually harassed) to know how to handle such a situation. If a woman is being harassed, she needs to 1. get a co-worker (witness) and say to the individual who is doing the harassing 2. "I find your romantic advances unwelcomed"
On a side note, here's a little gleaning from Google; "Two players dismissed by the New York Philharmonic in September 2018 for unspecified sexual misconduct will get their jobs back after a ruling by an independent arbitrator. Following the investigation, the Philharmonic advised the musicians that their employment was terminated. An arbitrator has now overturned that decision."
Let's look at the charge. Unspecified Sexual Misconduct. My guess? Someone in the trumpet section and someone from the violin section was caught doing the nasty on the tympani. Maybe management should have taken a different route for their disciplinary discharge. Misappropriation of company equipment. Evidence? Damaged tympani

Please help me to understand something...

I know the U.S. Constitution protects against double-jeopardy, but this is clearly not a criminal case, so I doubt very much that that clause applies here.

I know the U.S. Constitution protects against double-jeopardy, but this is clearly not a criminal case, so I doubt very much that that clause applies here.

An individual is responsible for his/her self-reliance. A 6-month emergency is highly recommended for anybody.

Careful what you advocate. That statement depends on at least a couple of variables; Why you got fired. There are many physicians (one of the most noble jobs out there) that have made serious mistakes (and whether intentional or by design) end up as a biology teachers at some high school.

Why would I hire you when you're 52 and set in your ways when I can hire a fresh to the workforce college graduate with a Master's who's more than willing to work at a starting salary and won't be telling me "we did it this way where I use to work"?

An individual is responsible for his/her self-reliance. A 6-month emergency is highly recommended for anybody.

Careful what you advocate. That statement depends on at least a couple of variables; Why you got fired. There are many physicians (one of the most noble jobs out there) that have made serious mistakes (and whether intentional or by design) end up as a biology teacher at some high school.

Careful what you advocate. That statement depends on at least a couple of variables;
Why you got fired.
There are many physicians (one of the most noble jobs out there) that have made serious mistakes (and whether intentional or by design) end up as a biology teachers at some high school.

Careful what you advocate. That statement depends on at least a couple of variables;
Why you got fired.
There are many physicians (one of the most noble jobs out there) that have made serious mistakes (and whether intentional or by design) end up as a biology teacher at some high school.