Civil Disobedience and African-American Delegates

Robert Levine, the AFM Observer, provides an outstanding service to the entire membership with his blog—the live updates during the convention were particularly valuable, and I know several who were glued to their screens awaiting his latest post.

I essentially agree with his analysis of the Montreal issues, but not with his take on the issue of African-American merged-local delegates. I think he imposes a lofty standard of "civil disobedience" on the AFM delegates:

"The proper course of action would have been for the delegates to demand, as part of letting the merged-locals delegates vote, that the AFM immediately send a letter to the Department of Labor informing them of the convention's action and demanding an investigation."

Even Henry David Thoreau (the modern founder of "civil disobedience") would not meet that standard:

"I do not wish to quarrel with any man or nation. I do not wish to split hairs, to make fine distinctions, or set myself up as better than my neighbors. I seek rather, I may say, even an excuse for conforming to the laws of the land. I am but too ready to conform to them." (Civil Disobedience)

If the "law of the land" made sense, the delegates would be but too ready to conform to it. The fact is, that the "law of the land" was never cited, was not adequately explained, and remains totally misunderstood.

The delegates were told that "the law" allowed merged-local African-American delegates to participate in all aspects of conventions (even running for national office) except voting for officers (and that the bylaw permitting this—Art. 17 § 4(b)—was perfectly "legal," so long as merged-local delegates were not allowed to participate in voting for officers). Thus, an African-American merged-local delegate could run for national office, but not be allowed to vote for himself or herself (or anyone else) in that election.

As far as the delegates know, "the law of the land" is entirely arbitrary.

Robert Levine contends that the reasoning of the "law of the land" is that any member of the union has an equal right to run for local office. This cannot be the rationale for the law. By this logic, Art. 17 § 4(b) of the AFM Bylaws would be illegal on its face (and it's not). By this logic, it would be impermissible for merged-local delegates to run for office, vote for resolutions, and participate in conventions (and it's not). By this logic, African-American merged-local delegates should not exist at all (and lawfully, they do).

Thus, with the AFM's newfound "All You Have To Do Is Ask" philosophy, I have posed these questions to Jeff Freund, AFM General Counsel, and await a response—"for I will cheerfully obey those who know and can do better than I."

"All You Have To Do Is Ask"

These were the words of Tom Lee during a speech at last week's convention, where nothing transpired without his notice, and everything went his way. Agree or disagree with him, he is to be commended (and sincerely so) for his energy and his mastery of AFM politics. In 2010, no AFM President will have served a longer term since Herman D. Kenin (1958-1970).

However, a few footnotes to his speech are required. Though claiming not to read "the blogs" (which would be a serious error—the service provided by the various AFM blogs is important, interesting, and informative) Tom Lee displayed a mastery of the content of our recent articles regarding visa processing fees. He suggested that if we wanted to understand the issues surrounding visa processing fees, all we needed to do was ask constructively, and a voice from on high would oblige us with an explanation.

Tom Lee took a different tack at the March 2007 New England Conference. When I asked on the floor for information about visa processing fees (quite constructively, I thought), Tom Lee directed me to the Freedom of Information Act. Far from "all you have to do is ask," this was more like "I'm not going to give it to you unless you force me."

(I didn't need to look into the Freedom of Information Act, which applies to federal agencies, and has nothing to do with this issue.)

Nor was this the first time I had asked. I have letters dating back to 2004 constructively, politely, and civilly requesting this information.

Finally, I made a request under 29 U.S.C. 431(b)(2) and (c). The information then began to seep out, and even then, somewhat incoherently (as we have pointed out).

And all I had to do was ask!

Official Union Publications?

All AFM Local Unions received a letter dated June 7, 2007 from the AFM's lawyers about Local Union Newsletters. It was good of the lawyers to personally inform us and give their email addresses for questions (but then again, the AFM pays almost $900,000 a year to these lawyers, so one should expect such service).

The letter noted that it is unlawful for any "official union publication...to include any editorial or article that could reasonably be construed as endorsing a particular candidate or supporting that individual's candidacy." It cites § 401(g) of the Labor-Management Reporting and Disclosure Act.

It appears that there is no such thing as § 401(g) of the Labor-Management Reporting and Disclosure Act. However, sifting through some more of the lengthy Code, I located § 481(g). This must have been what the lawyers were talking about.

The law itself uses different language than the letter. For instance, the law doesn't mention "official union publications." The law basically says that union receipts (dues, etc.) may not be used to promote a person's candidacy. Perhaps a court or administrative decision further interpreting the law (which was not provided or cited in the letter) would provide some guidance.

Incidentally, did anyone send a copy of the lawyers' letter to Tom Lee? His "response to Variety" which he publicized so vigorously in a letter (April 26, 2007) to all Locals on AFM letterhead, as well as an article in the International Musician (June 2007), says that the leadership of Local 47 "...turned its back on the rest of the community of musicians in the United States and Canada..."

Does he mean Hal? Is he endorsing his own candidacy by publishing and republishing this letter through official AFM channels?

More "Naked Promises" from Tom Lee

Tom Lee sent an email to delegates yesterday (June 15). It begins:

"Over the past two years..."

STOP! Tom Lee has been in office for six years, not two. He has had more time than he admits here.

"...the Federation has made significant, long overdue philosophical adjustments, including a new focus on increasing membership through state of the art recruitment and retention initiatives."

The only intelligent recruitment and retention (R&R) initiative I have seen was presented by Ray Hair, President of Local 72-147, in a twenty minute presentation at the New England Conference, in March of this year. I haven't located any examples that have emanated from the AFM. The truth is, there are none.

"Philosophical adjustments" isn't much to show for the last six years. If they were "long overdue," why didn't we make them earlier?

"[One important goal] is to focus our resources on finding ways to capture the work that is going to non-union shops in Seattle, as well as to foreign countries."

If we still haven't found a way after six years, will two/three years more really help? Having had six years, will two/three more help develop concrete, intelligent programs to retain our members and recruit new members? Bouncing this issue off the IEB has not amounted to a positive, substantive program.

We are all aware that we are all in trouble and that the AFM needs help. Honestly, after observing the leadership for the past six years, I have seen no viable programs, no new attitudes, and not even an understanding of the requirements for change.

We are seven years into the 21st century, and we have to try new leadership. Otherwise, the downward spiral of the AFM and our Locals will be the demise of all of us.

Three Years is a Long Time

The AFM's biannual convention is the delegates' only voice. Designing and voting on resolutions is the delegates' only power to effect change in our Union. The resolution on triennial conventions will dilute this power, and we must oppose it.

Consider our current administration. Do the current set of officers deserve a longer term? It is easy to see why they might want it—it secures their position for another year. But why should we trade in our only voice, to let Tom Lee and Sam Folio make unilateral decisions for a three year term?

Likewise, no future officer deserves a three-year term. Voting for a new face is always a risk—that he or she will not turn out the way you thought—and the risk is magnified by adding another year to the term.

The truth is that nobody, no matter how magnificent, should be allowed to water down the voice of the delegates. This person becomes "The Decider" for three years. Asking the delegates to relinquish our power, would be like George Bush asking the U.S. Congress to stop making laws.

The savings in money to the AFM is the only argument advanced in favor of this dangerous proposal. This savings amounts to a measly $100,000, for an organization that spends $4,000,000 running its offices, that pulls in $4,500,000 in work dues, and $4,000,000 in per capita. Is this meager savings, which could likely be made up in simple economies around the AFM's offices, worth giving up our most democratic forum?

I urge everyone to vote against triennial conventions. To delay the delegates' voice for a year is to undermine the delegates' power.

Union Man, Military Man

In early May, 2006, I wrote to President Lee seeking help with an instance of unfair competition involving an Air Force band. For twenty years, the Worcester Symphony Orchestra had been engaged for a Fourth of July performance, employing between fifty and sixty musicians. This year, however, we learned that the Air Force "Band of Liberty Pops" was going to perform the gig.

July 4th came and went, with no response from President Lee. Finally, at the end of July, President Lee wrote with his belated opinion, and attached an eleven page history of the former Article 13, Section 34 of the Constitution of the AFM:

"No Local in the United States is permitted to accept any member of the armed services on active duty to partial, special or full membership in the American Federation of Musicians under any conditions..."

The essay was a narrative of how then-Master Sergeant Lee effected the reversal of that policy, which was in place to limit unfair competition with civilian musicians. After all, military musicians are highly achieved (many are on leave from the AFM), well-rehearsed and subsidized by the American taxpayer. Indeed, the negative effect of unfair competition by military musicians was even recognized by the U.S. Congress, which enacted this Federal law:

"...no enlisted member of an armed force on active duty may be ordered or permitted to leave his post to engage in a civilian pursuit or business, or a performance in civil life, for emolument, hire, or otherwise, if the pursuit, business, or performance interferes with the customary or regular employment of local civilians in their art, trade, or profession." (10 USC 974.)

However, this law was repealed in 1998. The further upshot of Master Sergeant Lee's efforts was that permission was granted for members of all four armed services to play for wages while off duty.

The general rule today is that all military bands (except U.S. Army bands, whose regulations still reflect the spirit of the law quoted above, and which will not unfairly compete with civilian musicians), can play in any jurisdiction in the country, so long as there are no wages paid (and how can professional civilian musicians compete with free military musicians?). No thought is given to the displacement of AFM musicians, or the element of unfair competition.

I can understand where Master Sergeant Lee's loyalties were, and in all probability, are today. I respect Master Sergeant Lee's past opinions and position with respect to military bands. But should President Lee under basic union principles agree to allow military bands to perform within a Local's jurisdiction, displacing our dues-paying members?

The issue here is not one of patriotism, but of displacement and unfair competition. There is a conflict of interest between Master Sergeant Lee, who campaigned for military musicians, and President Lee, who is supposed to safeguard civilian musicians. The philosophies here are diametrically opposed.

Messengers With, and Without, Credibility

By now all delegates have received a multitude of mail endorsing candidates for the forthcoming elections of various officers to serve for the next term (which may be three years—we have an upcoming article on that). For instance, today brought another diatribe from the now identified C. Fernandez, consisting of page upon page of venomous accusations.

In judging these communications, we must examine the credibility of the messenger (using the term slightly differently than The AFM Observer). For example, Serena Kay Williams recently wrote a message which uncloaked C. Fernandez, and explained his underlying intent. Her message was a breath of fresh air, that illustrated her maturity, experience and wisdom. She is retiring, and speaks not out of ambition. Her credibility shines through in a single page, while C. Fernandez's lengthy tirades appear empty.

Another recent letter with credibility was Bill Moriarity's succinct explanation of the RMA issue, noting that they basically want to have "a voice in the decisions affecting their work." Bill doesn't make baseless accusations—he gives concrete examples of "seemingly purposeful slights by the AFM President." He is concise, level-headed, and most of all, credible.

The credibility of Steve Young's letter speaks for itself. I was fortunate to have personal experience with him, when he was president of Local 9-535 of Boston. Some years ago Local 143 was in preliminary negotiations with the sponsor of the Worcester Symphony Orchestra to renew its collective bargaining agreement (CBA), and it was the joint opinion of both that a third party could help with negotiations. Steve Young made his presence known, and impressed upon the sponsor that our Union of Musicians would hold up their end of the bargain.

In short, the best way to sift through all of the communications is to look at the messenger. This is how we can distinguish facts from attacks, reasoning from recrimination, and truth from falsehood.

Salary Increases Justified?

When considering Recommendation 22 calling for a $43,728 raise in the President's yearly pay ($3,644 extra per month), we should all remember the decline over the past six years. We should also keep in mind the future consequences. Considering the situation, it is easy to see that now is not the time for pay raises.

Over the past six years, work for the members has decreased to a virtual standstill. The President is working, but the overwhelming majority of our members are not. Treasure flows from our Locals to Folio's Treasury, on a one way street. Services from the AFM are at their lowest point. Where exactly is the justification for a pay raise?

The pay raise would also have serious future consequences. Recommendation 22 calls for the President's pay to be indexed to cost of living increases. Thus, even though the President's salary is linked to cost of living increases, there is no guarantee that our Treasury will be linked to cost of living increases. In dire times, the President's salary could go up while the Treasury shrinks!

Also note that that there is no guarantee that the proposed "housing allowance" would be used as such. What would prevent a President from availing himself or herself of more modest accommodation, and pocketing the difference?

In this desperate era of the AFM, the thought of pay raises is truly inappropriate. Vote NO on Recommendation No. 22.

Visa Processing Fees and Reverse Outsourcing

It is good news that the issue of visa processing fees is becoming a bit better understood. We know that the AFM receives these fees for their so-called service of validating Foreign Musical Groups (not just orchestras). We also know that the amount received by the AFM ($853,929 for 2005-2006 with more on the way for 2007) is keeping the AFM afloat.

I was pleased to see The AFM Observer's take on visa processing fees. Mr. Levine there commented,

"Touring is not usually a profit center for orchestras, and many of the ones he cites are artistically significant institutions with well-paid musicians who are not sleeping in tents and eating Purina Viola Chow while on the road."

This is undoubtedly true, and further makes my point. The Russian National Orchestra played four dates from March 13-23, 2007, and made $70,000 for each date. That is a total of $280,000 for roughly a week's work.

Whether the Russian National Orchestra considers this a "profit center" or not, it is important to remember that everyone connected to this tour is paid. The Russian Government pays the musicians' wages—it is a subsidized orchestra. The promoters, the booking agents, the stage hands, the caterers, the handlers, the record vendors, the souvenir vendors, and even the AFM—all are paid. Except, of course, for the Local's displaced musicians.

The AFM makes $200-$250 for a visa processing fee, while the Russian National Orchestra takes nearly $300,000 out of the Locals' jurisdictions, and back to Russia. This is "reverse outsourcing."

The AFM should charge as much for this "service" as the competition allows. If the AFM can get $600-800 a pop, it should certainly charge that much. If the Foreign Musical Group wants to record while in the U.S., charge another fee to allow it. Right now, the one-page "no-objection" letter does not prohibit recording by the Foreign Musical Groups—there is no contractual relationship between them and the AFM. The Foreign Musical Groups constantly exploit this.

Displacement is displacement. The argument for work dues is based on the invasion of the Jurisdictional Local—a "foreign AFM musician" must pay work dues to the "invaded" Jurisdictional Local. Similarly, the AFM should negotiate to mandate a fee for the Local in which the Foreign Musical Group performs. Call it a "venue fee."

Foreign Musical Groups displace Local musicians. Although it currently collects hundreds of thousands based on this very displacement, the AFM does nothing to help the injured Local musicians.

What Keeps the AFM Afloat?

Most Locals absorbed the 2005 per capita increase, because they could not ask their members to pay higher dues. Now, yet another PC increase is on the agenda.

The IEB has recommended a $2 increase, each year for three years, and the Revenue Committee has recommended a $5 increase, each year for three years. It seems clear that BOTH are pulling numbers out of a hat. They both have the same financial statements to look at, but do they come up with the same recommendation? Not even close.

We all know, from Folio's trumpeting, that the AFM is back in the black. "Savings and Efficiency Lead to a Positive Result," he says. (International Musician, May 2007, p.6.) A close look at the financial statements of the AFM reveal that "savings and efficiency" are not the reasons the AFM is in the black. Nor do we have the constant PC increases to thank. The reason is because in 2006, the AFM collected $653,226 from visa processing fees.

Without this, Folio and the AFM would be in the red.

Processing fees have validated the Munich Symphony Orchestra, the Bruckner Orchestra Linz, the Hungarian Symphony Orchestra, the Jerusalem Symphony, the Mozarteum Orchestra of Salzburg, the Russian National Orchestra, the French Chamber Orchestra, the Prague Chamber Orchestra, the Hamburg Symphony, and many others. Each foreign orchestra makes $40,000 to $70,000 for each date. Each foreign orchestra is guaranteed ten to twenty-five dates throughout the U.S.

Foreign orchestras take this money back to their countries, which already subsidize them. Millions are earned on the backs of the unemployed American musician.

It's an insult to ask these musicians to pay another PC increase.

They have already paid.