Trial Board Minutes

Volume 113, No. 2February, 2013

Report of the Local 802 Trial Board meeting held on morning of Tuesday, December 11, 2012 at 12:00 PM

Trial Board members Tony Gorruso, Marilyn Reynolds, Mary Whitaker, Roger Blanc (Chair), Steve Shulman (Secretary); Plaintiffs Walter Schweikardt, Frank Basile; Plaintiff witnesses Gene Tournour (AFM), Janice Galassi (AFM) [Plaintiff Jeff Schweikardt was unable to attend]; Defendant Steven Freeman; Defendant witnesses Todd Schmidt (Managing Director, PMP), Mark Hobey (Producing Artistic Director, PMP)

[The trial had previously been scheduled for October 31; a quorum had been achieved at that time, but owing to scheduling problems among the various parties the trial proper was postponed. The Board members present at that time used the opportunity to review and analyze materials that had been previously submitted in connection with the case.]

The trial was convened in response to charges brought by Local 802 members Frank Basile, Jeff Schweikardt, and Walter Schweikardt against member Steven Freeman. The charges alleged that Defendant Freeman had acted in violation of the following sections of the Local 802 Bylaws:

1) Article IV, Section 1, paragraph (gg): “to commit any act tending to injure the reputation of a fellow member in relation to his/her calling as a musician”;

2) Article IV, Section 1, paragraph ((ii): “to commit any act of bad faith or unfair dealing which has for its purpose the injuring of the Local or any of its officers or members (,,,) or respecting in general the welfare of the musical profession”;

The charges were based on a series of events stemming from a production of “White Christmas” at the Paper Mill Playhouse (PMP) in Milburn, New Jersey in December of 2011, during which the Plaintiffs were members of the orchestra and the Defendant was employed as conductor. The Plaintiffs alleged that during the run of the show there were no notable indications of dissatisfaction with their performances on the part of the Defendant, but that subsequently in February of 2011 they (the Plaintiffs) received letters from PMP management placing them on probationary status for supposed deficiencies in their performances during the prior December. These letters were followed by mandatory individual meetings between the Plaintiffs and PMP management, during which management confirmed that the Plaintiffs would each be allowed to perform in the successor PMP production, “Damn Yankees”, and that their level of performance in this production would determine whether or not they would remain on the First Call List at PMP or be removed from it. It was alleged by the Plaintiffs that written correspondence from the Defendant to PMP management played a role in this outcome.

After an initial period where the Trial Board met separately to review the facts of the case as they were then understood, the Plaintiffs, Defendant, and their witnesses entered the room, and testimony began to be heard.

The Plaintiffs presented first, with Local 16 AFM Trustee Gene Tournour giving much of the testimony. The above-mentioned fact pattern was confirmed, along with the mention of a fourth musician who was similarly addressed by management (but is not a party to this case). After some clarification of the timeline of events, the Plaintiffs made it clear that they felt that any written criticisms of themselves to management by the Defendant were not born out by events at the time of the performances. They further believed that the correspondence between the Defendant and PMP management was not specifically solicited by that management, and that the status of the Plaintiffs within the PMP orchestra was still insecure, despite their having performed in a subsequent PMP production (“Damn Yankees”) with no further negative employment consequences.

Dialog between various parties ensued (including PMP management), during which management made it clear that, from their perspective, the question of the status of the Plaintiffs in the PMP orchestra was settled, and that the grievance had been resolved with no impact on the Plaintiffs inclusion in the PMP First Call List.

The Defendant and his witnesses then gave testimony, making it clear that this had been the Defendant’s first experience working for PMP. He indicated that there were performance issues with the fourth musician mentioned above (not a Plaintiff), which precipitated a difficult time-sensitive rehearsal situation in which a replacement for said musician had to be found (and during which process the contractor for the PMP was not properly consulted in the hiring). Management testified that they then asked the Defendant to put his overall appraisal of the orchestra down on paper for them, which he agreed to do (establishing that the correspondence in question actually was solicited by management).

Further dialog among the parties ensued, during which management made it clear that, from their perspective, the question of the status of the Plaintiffs in the PMP orchestra was settled, and that the grievance had been resolved with no impact on the Plaintiffs inclusion in the PMP First Call List. The Plaintiffs made it clear that even though the assessment made in writing from the Defendant to management was private between those parties (and now resolved in terms of immediate employment consequences), they still felt that reputational damage or future reprisals might potentially result. They also felt that the Defendant could have declined to act on management’s request for the written appraisal of the orchestra.

After dismissing the parties, the Trial Board continued meeting to review the facts of the case. The Board concluded that the Defendant had rendered his opinion of the orchestra in his job capacity as conductor, not on a personal basis, and that his opinion was rendered in confidence between himself and management, not broadcast to a larger group of colleagues where reputational harm might result. Further, the Board concluded that the Defendant rendered his opinion in a professional capacity and in good faith, not with malicious or false intent.

A motion was made and seconded to find the Defendant not guilty of both charges; the vote of “not guilty” on both counts was unanimous.

Chair Blanc was assigned responsibility of creating a draft trial report that the other Board members would subsequently comment on prior to its completion. The overall meeting concluded at 4:30.