The recent Vulture article “A Hidden Sexual-Assault Scandal at the New York Philharmonic” sparked discussion on a number of topics: the union’s role in disciplinary matters; the duty of fair representation; and what happens in arbitration (among others). What follows is a list of Frequently Asked Questions (FAQ). Not every relevant topic will be addressed, and I plan to cover much of this ground in greater depth at the 2024 ICSOM Conference.

What is the duty of fair representation (DFR)? 

The duty of fair representation (DFR) imposes an obligation on the union that is commensurate with the union’s status as the exclusive representative of employees in the bargaining unit. Because that representation subordinates some interests of an individual employee to the collective interests of the bargaining unit, the law imposes upon a union a duty to fairly represent the interests of each employee. The Supreme Court has described it as “a responsibility equal in scope to [the union’s] authority.”

Put simply, employees in a union workplace give up certain rights to deal with or take action against an employer on an individual basis; in return, the union assumes a duty to fairly represent their interests. DFR is not explicitly set forth in any statute, but has been fashioned by the courts as the logical corollary to the union’s status as the exclusive representative of the employees.

DFR is most often at issue in the disciplinary context, particularly with respect to terminations. Employees in a union workplace cannot go to court and sue their employer for wrongful termination; instead, the grievance and arbitration process is the exclusive method for challenging a dismissal. (More on that below.) 

Typically, the initial steps of the grievance procedure (e.g., meetings between representatives of the union and the employer) do not result in reinstatement. The final step in the process is to go to arbitration, and the decision to take that step rests with the union. It is that decision by the union—whether to go to arbitration on behalf of a terminated employee—that most directly impacts whether the union has fulfilled its DFR.

Does the duty of fair representation mean the union always has to go to arbitration when a musician is terminated? 

No. A union can decide not to pursue a grievance over a termination to arbitration (or not pursue the grievance at all); but such a decision must comport with DFR. Federal jury instructions explain the legal standard governing the union’s decision not to pursue a grievance to arbitration:

The test is basic fairness. So long as the union acts in good faith, it may exercise its discretion in determining whether to pursue or process an employee’s grievance against the employer. Even if an employee’s grievance has merit, the union’s mere negligence or its exercise of poor judgment does not constitute a breach of its duty of fair representation. But where a union acts in bad faith and with hostility, discrimination, or arbitrariness fails to process a meritorious grievance, the union violates its duty to fairly represent the union member who has made the grievance.

https://www.lb5.uscourts.gov/juryinstructions/fifth/2006CIVIL.pdf

In other words, the test does not involve an evaluation of whether the grievance was a “good” one that the union should have pursued because the union (in hindsight) would have prevailed. Instead, the test is whether the union considered the grievance fairly. The union is required to examine the merits of the grievance, to be sure, but it is the union’s efforts in doing so that are judged—not what the result might have been had the union gone to arbitration. 

The union’s efforts must include some basic steps: the union should sufficiently investigate the circumstances leading to the termination so that it can make a reasoned decision; the union should handle the grievance no differently than similar grievances unless there is a good reason not to; and the union should not base a decision not to go to arbitration on some kind of discriminatory motive or personal animus towards the terminated employee. As a practical matter, the union would be well-advised to obtain an opinion from legal counsel. If the union takes these steps and decides not to go to arbitration, then, more often than not, the union will be found to have fulfilled its DFR.

Who decides whether the Union violated its duty of fair representation?

In the case of a termination, a claimed DFR violation would most often land in federal court. If a union chooses not to arbitrate the dismissal, the terminated employee can file what is called a “hybrid Section 301” lawsuit. Both the employer and the union must be named as defendants. The employee must prove both that the employer violated the CBA (by firing the employee without just cause) and that the union violated its DFR (by deciding not to go to arbitration). If the employee prevails by proving both those elements, then the employer and the union will be jointly liable for damages. 

Hybrid Section 301 lawsuits are not common, and given that the legal standard for evaluating a union’s decision not to go to arbitration (discussed above) is not particularly strict, it is rare for a plaintiff to prevail. But if they do win, the union’s liability may be substantial.

Why arbitration?

In a union workplace, virtually all disputes must be resolved through the grievance and arbitration process. Early in the union era, policymakers decided that it would not be practical for unions and employers to settle all their disputes in court. (Think how many lawsuits there would be, even in a single orchestra.)

For that reason, nearly every CBA contains a grievance and arbitration procedure. The procedure, which can be customized any way the parties agree, typically contains a series of steps that are designed to facilitate an efficient resolution of disputes. The steps begin informally: the first step often requires a simple discussion of the problem between the grievant (which can be an employee, the union on behalf of an employee, or the union in its own right) and a representative of management. If the dispute remains unsettled, progressively more “formal” steps might include reducing the grievance to writing and obtaining a written response from the employer, or a “2+2” meeting where two representatives from the union and two from the employer attempt to find resolution. If that still doesn’t work, then the final step provides for submission to arbitration, often under the auspices of the American Arbitration Association (AAA). 

This process is simpler and more efficient than going to court. It reflects an agreement between the employer and the union to handle all disputes in the manner they have mutually chosen. But when a CBA contains that grievance and arbitration process, that process is the exclusive way to resolve disputes arising from the CBA—court is hardly ever an option. 

As noted, terminations rarely get settled in the initial steps of the grievance process. It happens, but if an employer is open to being convinced to rescind a termination, then they probably wouldn’t have done it in the first place.

How do arbitrators decide cases of employee misconduct?

An arbitration hearing is like a trial, but less formal—it usually takes place in a conference room, and the rules of evidence and procedure are more lax. The arbitrator is the “judge” who will decide the matter. Arbitrators are typically selected by the parties from among panels provided by AAA or the Federal Mediation and Conciliation Service (FMCS). Sometimes the parties can agree on which arbitrator to pick from the panel, but more often, an alternate-strike or strike-and-ranking method is used. As a result, the arbitrator is unlikely to be either strongly pro-union or strongly pro-employer. Most are highly-qualified, experienced, and well-versed in labor issues. 

The union and the employer, usually through their attorneys, put on their respective cases with evidence and witnesses. After the hearing, each side typically submits a written brief that reviews the evidence and makes arguments for why they should prevail. (Simple cases may forgo the brief in favor of oral arguments.) After reviewing the arguments, the arbitrator renders a written award, either sustaining the grievance (e.g., reinstating a terminated employee) or denying it.

When the case involves an employee who was fired for misconduct, one issue that the arbitrator must determine is the standard of proof to apply. In a termination case, the burden of proof is on the employer to establish that the employee did the thing they were accused of doing. But how strong a showing does the employer have to make? In criminal cases, the prosecution must prove its case beyond a reasonable doubt. In civil cases, the plaintiff typically bears a lesser burden of proving its case by a preponderance of the evidence, which essentially means that the relevant events “more likely than not” occurred. 

Absent language in the CBA specifying the standard of proof, the arbitrator has discretion to determine it. The preponderance standard is most common by far. But when the allegations against the employee resemble criminal activity like sexual assault or other sexual misconduct, arbitrators often apply a stricter standard, such as requiring the employer to prove its case by “clear and convincing evidence”; some even invoke the reasonable-doubt standard. Some stick with the preponderance standard across the board. There is not universal agreement among arbitrators. 

Sometimes, though, the CBA itself specifies the burden of proof that an arbitrator must apply. For instance, if the CBA states that the arbitrator can apply a standard no stricter than a preponderance of the evidence in discipline cases, the arbitrator cannot use a “clear or convincing” or reasonable-doubt standard even if they wanted to. I have seen such proposals in bargaining recently, no doubt in reaction to the events described in the Vulture article. There is nothing wrong with that; parties are free to agree upon all aspects of the method of resolving their disputes, and arbitrators are bound to follow those agreements.

Nearly always, an arbitrator’s award on the merits of the case is final and binding. The losing side can try to go to court to overturn it, but unless the arbitrator was drunk or sound asleep throughout the proceeding, demonstrably biased, rendered an award in pure gibberish, or blatantly contradicted settled law, the award will stand.

Is there never a time when a musician can go to court?

It is important to note that individual statutory rights, like the rights an employee has under Title VII and other anti-discrimination statutes, can usually proceed outside the arbitration process. Accordingly, a musician who is the victim of behavior prohibited by those statutes—for example, if they suffered actionable sexual harassment—can proceed through the government agencies and courts that adjudicate such claims. Such claims can also land in arbitration: for example, a grievance may be brought over violation of an anti-discrimination clause in the CBA. Provided the union did not clearly agree in the CBA to require that specific individual statutory claims must be arbitrated—and I have yet to see an orchestra CBA containing such a provision—the employee can proceed with a court or agency proceeding at the same time the union is taking the matter to arbitration. One method does not bar the other. 

How does DFR apply when one musician accuses another musician of misconduct? Doesn’t the Union owe the victim a duty as well?

The union owes its DFR to all members of the bargaining unit. When one musician accuses another musician of misconduct, therefore, the union must give fair consideration to the interests of both the accuser and the accused.

That may seem daunting—how can the union represent both musicians when, as is often the case, believing one necessarily means disbelieving the other?—but there is actually a well-settled process. 

Start with how the complaint is made. The accuser may go to the employer to lodge their complaint on their own; or, they may ask the union to help them. The union can assist the accuser with their complaint without necessarily taking sides—all the union is doing is helping to bring the complaint to the attention of the employer. That is where the complaint must go, given that the employer is responsible for the safety of the workplace. 

The employer will then investigate. During that investigation, the accused has their Weingarten right to a union representative. If the union provides that representative, that does not mean the union is taking sides in the dispute. For example, if the representative insists during an interview that the accuser be permitted to tell their version of events—a fundamental element of due process—that does not mean the union has abandoned the rights of the accuser. The union is still fairly representing the interests of both.

The next step depends on whether management imposes discipline. If management terminates the accused musician and that musician asks the union for help, the union must evaluate whether that discipline comports with principles of just cause. If management does not discipline the accused and the accusing musician asks the union for help, then the union must evaluate whether management has failed to provide a safe workplace by allowing the accusing musician to be subjected to misconduct. 

Either way, at this point, it is the union’s turn to investigate because it needs to decide as to whether to file a grievance on behalf of one musician or the other. Now the union can make judgment calls. The union can make credibility determinations between musicians. It is wise, though, not to do this until after a full investigation: gathering the facts, talking to witnesses, making information requests to management if necessary, and interviewing both musicians if they are willing. Often, the union will assign one steward or officer to deal with one musician and another to deal with the other. If the union makes such an investigation and makes a reasoned decision not to pursue a grievance or process a grievance to arbitration, the union will likely have fulfilled its duty—particularly if the union obtains a supporting legal opinion from counsel. But if the union proceeds to arbitration, then the arbitrator will decide the issue.

How are the roles of the union and the employer different when it comes to misconduct in the workplace?

It is the employer’s responsibility, not the union’s, to provide a safe workplace that is free of discrimination and harassment. The union’s role is to ensure that management is doing so, through the grievance and arbitration procedure if necessary, consistent with its duty of fair representation.

That means the union does not have an affirmative (that is, proactive) obligation to make sure that the workplace is free of harassment or discrimination; that obligation lies squarely with the employer. Similarly, if the union becomes aware of harassment or discrimination among employees, but the victim does not come to the union to ask for assistance, the union does not have an affirmative obligation under federal labor law to remedy the situation. (Whether such an obligation on a union may arise under Title VII in certain circumstances is an unsettled area of the law; I plan to discuss that at the Conference this summer.) Always remember that the union can proceed with a grievance on behalf of a musician only if that musician comes to the union to ask for help. 

What is the role of the Orchestra Committee in all this?

In my view, the union should take the lead in all disciplinary matters. There are several reasons why the Orchestra Committee should not. First, as agents of the union, their acts will be imputed to the union—which means the union is on the hook if something goes wrong. Second, especially when it comes to one member accusing another, the Orchestra Committee should not be put in the position of having to take sides among colleagues. Third, if a matter progresses through the grievance procedure, it is the union, and only the union, that must make the determination as to whether to proceed to arbitration. That means the union must be involved from the get-go, so that it has as much information as possible in order to make a reasoned decision.

There are many more related issues to discuss, of course. Some are addressed elsewhere in this issue, particularly in the excellent piece by Carol Merchasin and Jessica Phillips. We will dive into those and more at the Conference. Please bring your ideas, comments, and questions.