Many symphony orchestra collective bargaining agreements (CBAs) include provisions that allow a musician, who has been terminated for artistic reasons, to appeal that decision to a committee of his or her colleagues. This avenue of appeal, known as peer review, is largely unique to our industry. In 1964, the National Symphony became the first American orchestra to adopt peer review as part of a contract settlement following a 35-day strike. One of the most contentious issues in bargaining was the music director's nonrenewal, reseating, or extended probation of a total of 15 players; the union believed these actions were in reprisal for union activity rather than the artistic justifications claimed by the music director. Peer review then and now provides an important check on a music director's discretion and helps prevent arbitrary, capricious, discriminatory, or otherwise unjustified actions taken under the guise of "artistic control."
Although we lump all such appeals under one heading, "peer review" is hardly monolithic in our CBAs. Committee size and composition, methods of committee selection, peer review procedures, and the functions of peer review committees - all vary from orchestra to orchestra. Nor does every contract describe, in the same terms, the failure of artistic standards that will justify a musician's termination. Despite these variations, there is one essential principle that must govern all peer review processes and the termination actions that precede them: due process.
We trace modern notions of due process to the 13th Century and the Magna Carta. The Constitution enshrines due process protections in the 5th and 14th Amendments:" [N] or shall any State deprive any person of life, liberty, or property, without due process of law ..." Underlying due process is the idea that certain things - life, liberty, and property - are so sacrosanct that the state may only take them from an individual if it has also afforded that individual a genuine and meaningful opportunity to defend against such a deprivation.
In the collective bargaining context, an analogous principle of "industrial due process" protects an employee's property interest in his or her job. In 49 states, the default standard is employment at will, meaning that an employee may be terminated at any time, for any nondiscriminatory reason (or no reason). By contrast, where a union and employer have entered into a CBA, the employer must generally have just cause to terminate a nonprobationary employee unless the contract provides otherwise. The just cause standard establishes important pretermination due process protections. It requires that the employee had notice of the employer's expectations and the consequences for failing to meet them; that those expectations were reasonable and uniformly applied; that the employer conducted a fair and objective investigation yielding substantial evidence that the employee failed to meet expectations before imposing discipline; and that the degree of discipline was reasonably related to the seriousness of the offense and the employee's record of service. Inherent in the just cause inquiry is an expectation of progressive (or corrective) discipline: increasingly severe discipline is imposed over time, giving an errant employee the opportunity to correct a problem in order to avoid the "capital punishment" of termination. …