It seems that a little ignorance can go a long way in this business and a classic example is just how little some stakeholders really know about peer review. Case in point, the 10/27/2010 blog post from conductor James Gaffigan is a perfect example of ignorance run amuck in that he exhibits particular dissatisfaction for the current system of peer review…
In order to make sure we’re approaching this discussion from the same vantage point, peer review is the contractually defined process for removing a musician for artistic/musical reasons. It is not uncommon for “peer review” and “artistic review” to be used interchangeably.
Mr. Gaffigan’s outlook takes what could be defined best as a stereotypical approach by identifying a system that is somehow beyond his control.
“I have conducted too many orchestras where individuals can’t play their instruments anymore…We can’t play God and tell people when to retire, still, I’m hoping that some changes may come to the system in the near future to encourage the timely turnover of orchestral chairs.”
To be fair, Mr. Gaffigan certainly isn’t the only conductor to express frustration with the artistic disciplinary procedures but the symptoms that have him hot under the collar aren’t from some mysterious disease he’s diagnosed. Instead, his dissatisfaction is self induced.
In order to understand why, here are the basics you (and Mr. Gaffigan) need to know about the peer review process.
- The peer review process is spelled out in the collective bargaining agreement (CBA).
- It is one of the most diverse clauses in a CBA as each orchestra determines the system it will use based on a number of variables unique to the institution. [At the end of this article, you’ll find actual contract language from a few different professional orchestra CBAs to illustrate just how much variety exists.]
- The peer review process is initiated by the employer and in all but a handful of professional orchestras; those duties are contractually assigned to the music director.
The problem with Mr. Gaffigan’s position is it denies the fact that the system he’s describing vis-à-vis peer review, relies on music directors. So as a conductor, if he is ever awarded a music director position at a professional orchestra, he is “The Man” in charge of the system “to encourage the timely turnover of orchestral chairs.”
To begin with, no one really knows how efficient peer review processes are because there have never been any comprehensive studies on the topic (if someone knows of one, I’d love to hear about it). In all likelihood, we won’t see one any time soon as personnel matters are typically protected by privacy laws.
Consequently, the only data we have to consider is anecdotal in nature and like most anecdotal evidence; people tend to recall the extremes rather than the norm. Nonetheless, of the contentious peer review processes I’m aware of, the majority were the result of a botched process and since the vast majority of these processes are initiated by the music director and guided by specific required measures, responsibility for those shortcomings rests squarely on his/her shoulders.
As such, it should come as no surprise that when the process is not followed, the likelihood of successfully removing a musician for artistic reasons becomes increasingly difficult. I do tend to believe that the majority of peer review processes are conducted properly and as a result, the musicians in questions are either removed or demonstrate required improvement and retained. So it should come as no surprise that we never hear about them.
As mentioned above, the extremes are what garner attention and based on my own observations, most of the frustrations surrounding peer review tend to stem from music directors who display one of the following characteristics.
Passive Aggressive Conductors: These conductors shy away from conflict and although they are aware of musical deficiencies, they prefer to willfully overlook them in hopes that others will solve the problems rather than engage in the peer review process. Motivation for this behavior varies from simple personality traits to overt distaste for any managerial oriented duties and responsibilities.
By failing to initiate the peer review process when needed, the organization suffers widespread frustration throughout all stakeholders, lowered music standards, and stunted artistic growth. Moreover, the subsequent music director inherits an environment of such artistic malaise that correcting past problems consumes most, if not all, of his/her tenure.
Rogue Bully Conductors: These conductors are the polar opposite of their passive aggressive peers in that they not only gravitate toward artistic disciplinary procedures but they believe they are exempt from following their respective peer review process. It is typical for these conductors to initiate artistic disciplinary actions (prescribed or rouge) based on motivations other than purely musical and with much higher frequency than their peers.
Failing to follow the peer review process typically results in widespread anger among musicians and in worst cases, invites grievances and lawsuits that end up costing the organization hundreds of thousands of dollars in legal fees and settlements. Worse still, years of artistic disciplinary abuse trains musicians and managers alike to become overly defensive, thereby making future artistic review procedures unnecessarily biased.
So Where Do We Go From Here?
Fortunately, the solution to fixing the system is entirely straightforward and we’ll examine those answers and more in tomorrow’s article. In the meantime, enjoy pursuing some actual peer review contract language:
PROBATION, TENURE, DISCHARGE, DEMOTION AND APPEAL
1.1 The first two (2) seasons of employment of a Musician shall be a probationary period provided the Musician’s employment begins no later than October 30 of the first season. The Association and/or Music Director may terminate the employment of a probationary Musician by a written notice which must be received by the Musician no later than March 1 of each season of probation provided the Musician, in the presence of the Personnel Manager, shall have conferred with the Music Director by December 15 of said season and said notice shall include reasons which will affect any final notice by March 1. After December 15 of the second season of probation, if the probationary Musician has received no notice to the contrary, the Musician shall be considered tenured. Prior to the issuance of any notice or determination of tenure, the Music Director shall discuss the status of a probationary Musician with the appropriate Principal or related Principals. A non-tenured Musician (including non-tenured titled positions) may not invoke the Grievance Procedure as it applies to the termination or modification of his/her individual contract.
1.2 Non‑renewal of individual employment contracts or demotion from a tenured, titled position shall be initiated in all cases by the Association. Any tenured Musician deemed artistically incompetent by the Music Director shall receive a warning letter to that effect on or before October 30th of the then‑current season stating the reasons for such warning. The Musician shall be given the opportunity to schedule a conference with the Music Director to discuss the warning letter. Each party may bring the representative(s) of their choice, not to exceed three (3).
If, by agreement with the Music Director, the Musician satisfactorily complies with the requirements set forth by the Music Director, said warning notice will be lifted and the Musician will receive from the Association a letter of intent to continue employment for the forthcoming season. In the event the Musician in question is unable to fulfill the requirements set forth by the Music Director, said Musician shall then receive written notice from the Association of non‑renewal or notice of demotion prior to March 1 of the then‑current season and such notice shall state the reason(s) for such non‑renewal or demotion. In such cases, the Music Director’s decision may be appealed, in accordance with the Appeals Procedure outlined in Article 22.4.
Discharge of the Librarian shall only be for Just Cause and the only recourse by the Librarian shall be the grievance and arbitration procedure.
1.3 In addition to musical reasons, the employment relationship and the individual contracts referred to in the foregoing Articles may only be terminated before expiration of the individual contract for just cause. Just Cause shall be subject only to the grievance and arbitration procedure as set forth in Article 23. This applies to work‑related circumstances only. Such proof shall be submitted to the Orchestra Committee and the President of the Union via the Union Steward, in writing, prior to termination.
1.4 Appealing non‑renewal or demotion for musical reasons:
Option 1: A tenured Musician desiring to appeal the decision of the Music Director in Article 22.2 must make a written appeal to the Orchestra Committee within thirty (30) days following the receipt of the formal letter of non‑renewal or demotion. The Orchestra Committee shall immediately notify the President of the Union. The President of the Union shall immediately convene the Musicians’ Review Board (MRB).
The Musicians’ Review Board shall be comprised of eleven (11) members of the Orchestra. The eleven (11) member committee shall include five (5) Section Musicians and five (5) Principal Musicians. The eleventh member shall be chosen from a list of either four (4) Section or four (4) Principal alternates, based upon whether the MRB is being activated by a Section or Principal Musician, in which case a Section Musician shall be selected for a Section Musician appeal and a Principal Musician shall be selected for a Principal Musician appeal.Each member of the Musicians’ Review Board shall have at least five (5) years seniority in the Orchestra. The Musicians’ Review Board shall be appointed by the President of the Union and the Orchestra Committee (for the ensuing season) no later than October 15th of each season. The Musician shall remain in his/her position until a final decision has been made.
The Musicians’ Review Board shall thoroughly investigate the matter and shall reach a decision by at least a six-to-five (6-5) majority in favor of the Musician taken by secret ballot at the Union and tallied by the President of the Union and a member of the Association. Inability to reach a decision favorable to the Musician shall be a vote in favor of the Association. At the conclusion of the vote the matter shall be final and binding upon the parties.
Option 2: If settlement cannot be obtained through Orchestra Committee action, the Musician or the Association may then appeal directly to the President of the Union. The President of the Union shall initiate an inquiry and attempt settlement, and if settlement cannot be obtained, shall refer the matter for final decision to a neutral arbitrator selected under the rules and procedures of the Federal Mediation and Conciliation Service, or the American Arbitration Association. The decision of the Arbitrator selected in accordance with those rules and procedures shall be final and binding.
Modification/Termination of Tenured Member’s Agreement
1. Should the Association wish to modify a tenured member’s individual agreement for the following contract year, it must propose such modification in writing no later than December 15. Should a tenured member wish to modify his/her contract, he/she must inform the Association in writing no later than January 2. If a new (i.e., modified) individual agreement is not signed by both parties by January 15, then the existing Agreement shall be automatically renewed.
2. Should a tenured member wish to terminate his/her agreement with the Association, he/she must so notify the Association in writing no later than January 15. Should the Association wish to terminate a tenured member’s individual agreement or propose a demotion on grounds of musical deficiency, it must notify that member in writing no later than six (6) weeks after the commencement of the then-current subscription season. Where the Association is aware of serious musical deficiency which is likely to result in the issuance of such notice to a member it will give advance written notice to the affected member to the extent practicable under the circumstances, with the understanding that such notice is intended to give the affected musician a reasonable opportunity to correct such alleged musical deficiency. Such notice shall lose its force and effect six (6) weeks after the commencement of the following subscription season. Subject to the rights set forth in Paragraph 6.5, the decision of the Association as to the dismissal or demotion of any member on grounds of musical deficiency shall be final, but any tenured member so dismissed shall be eligible to audition for the vacated position or any other vacancy pursuant to Paragraph 7.10.
- If a tenured Musician’s musical skills and capabilities are questioned by the Music Director, a probationary notice and probationary Individual Employment Contract may be issued subject to the following terms and conditions:
- The initiative for issuance of a probationary notice shall rest solely with the Music Director. The only basis for issuance shall be the Musician’s musical competence in regard to the Musician’s position and performance within the Orchestra. In the case of an extensive absence of the Music Director, the Artistic Adviso,r in collaboration with the Orchestra Committee may initiate the process.
- The Music Director may not initiate probationary notice of any tenured musician in his/her last year as Music Director.
- If the Music Director intends to issue a probationary contract to a tenured Musician for the following season, a meeting must occur between the Music Director and the musician during which the Music Director shall specify the musical reasons for his/her concern in detail. Such meeting shall occur no sooner than October 15, and no later than November 1.
- If the musician has not shown considerable improvement, a warning notice in writing shall be given to or mailed by certified mail to the musician, no sooner than December 15, and no later than December 30.
- By January 15, a meeting between the Music Director, the Personnel Manager, the principal of the section involved and the Musician will be held to discuss the specific musical reasons for the notice. Unless the Musician requests otherwise, the meeting may also be attended by representatives of the Orchestra Committee, Review Committee and the Union. The meeting shall be documented.
- After the first meeting referred to above but not later than fourteen (14) days after the first meeting referred to above, each Review Committee shall meet to review all cases before it that season.
- Following the Review Committee meeting(s) the Music Director shall give serious reconsideration to the status of each Musician faced with possible probation.
- If, after the steps outlined above, the Music Director still desires to give a probationary notice to a tenured musician, the Music Director must notify the Review Committee by February 15.
- The Review Committee shall meet not later than March 1, to decide whether it shall take an advisory vote on any of the Music Director’s probationary decisions.
- The Review Committee may choose to vote on upholding the Music Director or in supporting the Musician(s)
- The Review Committee shall convey to the Musician(s) and the Music Director the results of its meeting and any votes if taken, in writing, not later than March 3.
- The Music Director, following receipt of the results of the Review Committee’s meeting may issue a probationary notice, provided that such notice includes the specific musical reasons for the notice and that such notice shall be given to or mailed to the affected Musician not later than March 6.
- After a notice of probation has been issued, a minimum of two meetings must be held with the Music Director, the principal of the section involved, the Personnel Manager, the affected Musician and, unless the Musician requests otherwise, representatives of the Review Committee, the Orchestra Committee and the Union. . During such meetings, the musician’s progress in the previously documented problematic areas shall be discussed, including plans for additional improvement.
- A Musician who has received a probationary contract shall be afforded an opportunity to audition before the Review Committee not later than November 1 of the probationary year. An audition is not mandatory and the failure of the Musician to play such an audition shall not be considered by the Music Director in making his/her final determination. A Union representative shall monitor the audition. The audition shall have the following guidelines:
- The audition shall be for a minimum of ten (10) minutes.
- The repertoire shall be taken from works performed during the current or preceding season and for which the Orchestra has the music in its library. The Musician may choose the works to be performed.
- The Association must make music available to the Musician on request.
- Within two (2) weeks of the audition, or not later than November 15, if the Musician chooses not to have an audition, the Review Committee will meet for the purpose of learning from the Music Director if he/she still intends to not renew the affected Musician for the subsequent season. At that time or at a later date chosen by the majority of the Review Committee, but not later than December 15, the Review Committee may choose to vote to support the Musician, or it may choose not to vote at all.
- If nine (9) or more members of the Review Committee vote in support of the Musician, the Musician shall be re‑instated to tenure and the case will be closed.
- If seven (7) or eight (8) members of the Review Committee vote in favor of the Musician, the Music Director will have the option of either submitting the case to arbitration or continuing the Musician in probationary status for another year at which time the case will be reviewed again.
- If six (6) or fewer members of the Review Committee vote in support of the Musician, the Musician shall be terminated at the end of that season.
- If, after a second probationary contract, a final decision still cannot be reached by the Review Committee a board of arbitration must be formed to resolve the case.
The board of arbitration shall be composed of five (5) individuals, two (2) selected by the Association, two (2) by the Union and one (1) other member to be agreed upon by both sides. This individual shall be an impartial, actively performing musician within the same family of instruments from another major Symphony Orchestra. The decision of the board of arbitration as voted by three (3) or more members shall be final and binding on all parties. The arbitration process must be completed within sixty (60) days of the date of request for arbitration. In any such arbitration, the Association shall have the burden of providing by a preponderance of the evidence that the Musician lacks the requisite proficiency to continue to play in the Orchestra.
- No Musician may be placed on probation for one full season after having tenure restored.
- All procedures and actions set forth in this section on behalf of the Musician are automatic and can only be waived or stopped by the Musician in a written request presented jointly to the Review Committee and Management.
Non-Renewal of Tenured Musicians
- A tenured Musician may only be dismissed for just cause, which shall include, but not be limited to, failing to meet the artistic standards of the Orchestra.
- Reasons for a non-artistic dismissal must be specified in writing and received by the Musician.
- No tenured Musician can receive a notice of dismissal for artistic reasons on February 15, without having received:
- A prior personal meeting with the Music Director, together with the Union Steward, no later than the conclusion of the first week of the Music Director’s presence following February 15 of the preceding season. All matters of substance relating to the specific artistic complaint shall be first presented to the Musician at this meeting. Each affected Musician shall receive written record of such meeting.
- A prior written and specific warning by April 1, of the previous season; and,
- An interim review meeting by November 15, attended by the Music Director, the Executive Director or his/her designee, the Personnel Manager, the Union Steward and the Musician in question.
- No artistic dismissal procedure against a tenured Musician may be initiated in either the first or final season of a Music Director’s tenure.
Section 1.1 If the Corporation does not wish to retain the services of any musician who is a permanent member of the Orchestra, the following procedure shall be applied:
A. The initiative for non-renewal shall rest solely with the Music Director. The only basis for issuance of a non-renewal notice shall be the issue of a musician’s musical competence.
B. If the Music Director elects to issue a non-renewal notice to a permanent member of the Orchestra, a probationary notice in writing shall be given the musician. Such notice shall be given prior to the start of the contract year. It is understood that the Music Director, or others who issue the notice, shall have been actively conducting the Orchestra during the season in which the notice is issued for an aggregate time of four (4) weeks.
C. Within ten (10) days of such notice, a meeting between the Music Director and the musician will be held to discuss the reasons for the notice; the Union Representative and at least a majority of the Review Committee shall be present at such meeting unless the musician requests otherwise.
D. After the first meeting referred to above, the musician may request a second meeting between the Music Director, the musician, the Union Representative, the Executive Director or his designated representative, at least a majority of the members of the Review Committee and the section principals from the appropriate instrument family (String, Woodwind, Brass, Percussion) to discuss and review the reasons for the issuance of the probationary notice. Following the meeting, the musician shall be given every opportunity to correct the alleged deficiencies, and the Music Director shall give serious reconsideration to the matter.
E. If, after the steps outlined above, the Music Director elects to give a notice of non-renewal to the musician, such notice shall be issued no later than December 15 of the contract year.
Section 1.2 If the musician wishes to protest the notice of non-renewal, (s)he must do so, in writing, to the Personnel Manager, the Union Representative, and the Federation within twenty (20) days of receipt of the notice of non-renewal.
Failure to file such a protest shall automatically terminate the appeal procedure and the decision of the Music Director shall be final and binding.
A. If the musician files a protest of the issuance of a notice of non-renewal, within thirty (30) days after the filing of such protest, a meeting shall be held between the Music Director, musician, the Union Representative, the Executive Director, or his designated representative, at least a majority of the members of the Review Committee and the section principals from the appropriate instrument family. If the conducting schedule of the Music Director precludes him from attending such meeting within the thirty (30) day period, the time for the meeting shall be extended to a date no later than ninety (90) days from the date of the protest. The purpose of the meeting would be to discuss and review the reasons for the issuance of the notice of non-renewal.
B. If, after the above meeting, the Music Director does not change his decision and the Union Representative or the Review Committee so request, there shall be another meeting between the same individuals indicated above to again discuss and review the reasons for the issuance of the notice, except that the musician himself/herself shall not be present at this meeting. Prior to this meeting, the musician may request an audition to be performed before the Music Director, the Union Representative and the Review Committee and the quality of the audition (if performed) will be taken into account at the meeting described in Section 12.5B.
C. If the Music Director does not withdraw the non-renewal notice and the musician wishes to continue to protest the issuance of the notice, the matter shall be referred to the Review Committee. The musician must so indicate that (s)he wishes to continue the protest within ten (10) days of the above meeting. Failure to do so shall terminate the protest and the decision of the Music Director shall be final and binding.
Section 1.4 The Review Committee referred to above shall be composed of fifteen (15) permanent musicians of the [NAME OF ORCHESTRA REMOVED] nominated and elected by secret ballot by the permanent members of the Orchestra. The election shall take place annually at the same time as the election for the Orchestra Committee. The Committee shall be composed of five (5) principal musicians and ten (10) non-principal musicians. In considering the issuance of a non-renewal notice by the Music Director, as outlined above, the Review Committee shall vote by secret ballot whether to support or reject the decision of the Music Director on the issuance of the non-renewal notice: a vote of two-thirds (2/3) of the Review Committee shall be required to sustain the non-renewal; a vote of less than two-thirds (2/3) by the members of the Review Committee to sustain shall mean that such non-renewal notice will not be effective. If the vote of the Review Committee is to sustain the Music Director’s decision, the musician to whom the non-renewal notice was issued shall terminate his/her services with the Orchestra at the end of that season.
Section 1.5 In the event a non-renewal notice is issued in accordance with the above procedure and such notice is not sustained by the vote of the Review Committee, the same Music Director who issued the previous notice may elect to again issue a non-renewal notice to the same musician. In the event the Music Director elects to do so, the probationary notice and the non-renewal notice shall be issued in accordance with the procedure outlined in the previous sections beginning with the issuance of the probationary notice.
Section 1.6 If, after the procedure outlined above has been completed, the Review Committee votes not to sustain the second non-renewal notice, the decision of the Music Director shall be final and binding and the musician’s services shall be terminated at the end of the next full season unless the Union elects to refer the matter to arbitration in accordance with the provisions of Section 11.10.
If the Review Committee votes against the non-renewal in the second instance and the Union elects to arbitrate the matter and the Corporation elects not to proceed to arbitration on the matter, or if the non-renewal is supported by the Review Committee and the non-renewal notice is revoked by the Arbitration Panel, then the same Music Director may not issue a notice of non-renewal to the same musician earlier than one (1) complete season after the one in which the action was taken. If the Review Committee votes against the non-renewal notice in the second instance, and if the non-renewal notice is not supported by the Arbitration Panel, then the same Music Director may not issue a notice of non-renewal to the same musician earlier than two (2) complete seasons after the one (1) in which the arbitration decision was rendered. HEREINBEFORE, ALL REFERENCES TO MUSIC DIRECTOR SHALL BE DEFINED AS ABOVE.
Section 1.7 It is recognized that the existence and participation of the Review Committee is for the purpose of obtaining and maintaining the highest artistic and musical standards for the Orchestra and that the above procedures are not merely to be administered and implemented for the purpose of providing employment security for members of the Orchestra who do not meet the highest musical and artistic standards of the [NAME OF ORCHESTRA REMOVED].
Section 1.8 The Arbitration Panel selected to consider a non-renewal notice shall consist of three (3) persons knowledgeable in musical matters, one (1) chosen by the Corporation, one (1) chosen by the Federation (nominated by the Artistic Advisory Committee and approved by a majority vote of the Orchestra) and a third from outside the Metropolitan [NAME OF CITY REMOVED] area chosen by the two (2) other panelists.
A. The majority decision of this panel shall be final and binding on all parties.
B. All requests for arbitration shall be made, in writing, by the Federation within ten (10) days after the Review Committee has indicated its position on the matter. In the event that official notification is not received, the matter shall be terminated. All other matters under this Agreement that refer to arbitration shall be in accordance with the arbitration procedure in Section 33.3.