Fed. Ct. Upholds Philharmonic's Firing of Musician

Rabin concluded that “there is no way that Mr. Roy may be restored to his position” with the orchestra, and that his departure, either voluntarily or involuntarily, was the only course of action. “He engaged in unacceptable conduct that made it difficult for the musicians around him to do their job,” noted Rabin, a professor emeritus at Syracuse University College of Law. “His return would cause unacceptable anxiety.”

Roy, a New England Conservatory-trained musician, became the principal of the three oboists at the orchestra in 1995. The orchestra allowed him to return after his first termination in June 2010, after he apologized for his abrasive behavior and attended anger management sessions. He was not paid during what became a six-month hiatus before his January 2011 return.

Though Rabin said he based his ruling only on the recent allegations against Roy, he said it was necessary to keep previous disciplinary problems in mind.

Steven Cohen of Hogan Willig in Amherst, NY, who represented Roy along with managing partner Diane Tiveron, said Roy recorded many of his conversations, which “proved that Pierre Roy's conduct never disrupted the musical quality of any rehearsal or performance.”

“I shudder to contemplate the loss to the aesthetic world if virtuosi were banned from playing because they were moody or temperamental,” Cohen added.

But arbitrator Rabin believed allegations that Roy did not comport himself with collegiality were especially serious in the context of his profession. “It is hard to imagine another work setting in which collaboration, concentration and calm are so essential,” Rabin wrote. “Maybe you could [also] say this about a crew of astronauts or a team of surgeons.”

Rabin related how the orchestra's conductor, JoAnn Falletta, believed that at one point Roy was not playing with the feeling or interpretation expected of a professional musician. Roy's fellow musicians accused him of playing too fast, too slow or out of tune in rehearsals as a way of making their own performances ragged. They also complained that he mimicked their mannerisms or made gestures that made them feel threatened.

District Judge Telesca noted that Rabin discounted some of the stories he was told about Roy. Some musicians said they saw no misbehavior. But Rabin accepted that the “core” of the large body of testimony presented was accurate, Telesca observed.

Roy in part asked the district court to set aside the arbitration award under 9 U.S.C. '10(a)(1) of the FAA for alleged misconduct by arbitration witnesses. But Judge Telesca ruled: “Fatal to Roy's claim is that he has not raised any issue of witness misconduct beyond the expected conflicting testimony in the arbitration hearing. Even assuming that the BPO witnesses perjured themselves, the testimony at that time was discoverable and challengeable at the time of the hearing.”

Roy's challenge to his dismissal went to arbitration under a provision of the Buffalo Philharmonic's contract with its musicians, who are represented by the Musicians Association of Buffalo. The union local is an affiliate of the American Federation of Musicians (AFM).

(Roy sued the union, too, this for breach of duty of fair representation. The claim included for allegedly inadequately representing him in the grievance and arbitration process. But Judge Telesca determined that “none of Roy's allegations are supported by any facts indicating a motivation of bad faith or hostility” on the part of the AFM.)

Rabin recommended that Roy receive a year's compensation as a form of severance, whether he resigned or was terminated. He said Roy's voluntary resignation would give him a “dignified way” to terminate his affiliation with the orchestra.

Scott Patrick Horton, partner at Bond, Schoeneck & King in Buffalo, represented the orchestra along with Diane Pietraszewski, formerly of Jaeckle, Fleischmann & Mugel in Buffalo.

Catherine Creighton, partner at Creighton, Pearce, Johnson & Giroux in Buffalo, represented the Musicians Association of Buffalo.

Joel Stashenko is the Albany Bureau Chief for The New York Law Journal, an ALM sibling of Entertainment Law & Finance.