A Crack in Lee's Armor

AFM Local 257 Nashville Election Results
Over 1100 Votes Cast
Turnout More Than Double Last Election

President
Dave Pomeroy (675)
Harold Bradley (449)

Secretary-Treasurer
Craig Krampf (570)
Billy Linneman (539)

This upset is a wake-up call to the IEB and Tom Lee's administration. Recall that the most recent action of defeated incumbents Bradley and Linneman was to fall in line with Lee and the IEB on the issue of decertifying the RMA. Bradley wrote an editorial in the Nashville newsletter openly contemptuous of his own members in the RMA. Bradley and Linneman adopted Tom Lee's poisonous rhetoric and were stopped in their tracks by the democratic process.

What happened in Nashville shows that members will no longer tolerate disingenuous leadership.

Lee's armor has been pierced by Nashville musicians. They condemned Bradley and Linneman's futile anti-RMA schemes and their complicity in Tom Lee's crusade against recording musicians. If the air continues to thicken against this administration, we may see a complete change in AFM governance in 2010.

We hope that Nashville 2008 will be Las Vegas 2010 in miniature, where an energized membership repudiates the politics of vilification, fear and division embodied by Tom Lee and the current IEB.

No Further Continuances in Parmeter v. AFM

In the AFM's ongoing legal battle with three recording musicians, U.S. District Judge Margaret Morrow has approved a final trial schedule, and ordered that there be no further continuances.

In a filing explaining their request for an extension, the AFM's two law firms cited reasons ranging from an AFM attorney's unexpected family emergency to AFM lead counsel's concentration on the seniority rights of pilots in the merger of Delta Airlines and Northwest Airlines.

AFM attorneys also cited "substantial urgent business that cannot be postponed, including the conduct of a significant hearing on an urgent intra-union matter that will take place during the second week of November."

Counsel for recording musicians David Parmeter, Anatoly Rosinsky, and Andrew Shulman agreed to the extension.

The jury trial is set for June 9, 2009 at 8:30 AM, or the next jury trial date available thereafter.

D.C. Musicians Overcharged on Per Capita?

The 2007 AFM Convention approved a one-time $2 increase in per capita dues.

But Local 161-710 in Washington, D.C. is charging $2 per year from 2007 through 2010 — a total of $6.

Is this merely an error? Or is Tom Lee's hometown local attempting to twist the Convention's action to extract $4 more per member from our ailing locals and musicians?

The President on the Next President

Unions throughout the United States have spoken, and unequivocally endorsed Obama.

But in October's International Musician, President Tom Lee says that our "International Executive Board has chosen to not make an endorsement for President this year" citing "surveys" showing that "union members do not wish to be told for whom to vote."

No American would answer "yes" to the question, "Do you wish to be told for whom to vote?" These "surveys" are a red herring presented by Tom Lee to justify the AFM's continuing policy of avoidance. Why are we refusing to show support and unity? No show of support for Obama, nor any other major candidate, and no show of support for the Writers Guild during its November 2007 strike, add up to a don't-get-involved AFM.

The realistic answer is that there are probably a few die-hard Republicans within Tom Lee's administration or on the IEB, who might remain in denial even in this most obvious of elections. However, the fact remains that the Democratic Party is the party that stands with unions and musicians on all the relevant issues. The Republicans are the party that brought you Mrs. Dick Cheney as the head of the National Endowment for the Arts.

Credit Sam Folio, who personally endorses Obama. But official silence from the AFM is a disservice to our members, and to unionism in general, which developed out of democratic principles, has been constantly threatened by Republicans for more than two decades, and which is supported by only one of the two candidates for President today: Barack Obama.

Detente in Los Angeles

We now hear that Tom Lee, the IEB, and Phil Ayling will meet in Los Angeles on October 22-23. Let's hope for normalized relations.

No Action on "Nuclear Option" Resolution

We have heard that the IEB took no action on the resolution to decertify the RMA at its September 2008 meeting.

Whether this means the resolution is "tabled," or even "withdrawn," the door is now open for negotiations to begin to heal the rift between the RMA and the AFM.

What Happened in Vegas Didn't Stay in Vegas

The formal language of the IEB's threat to decertify the RMA, adopted secretly in Las Vegas in June 2008, is revealed:

"WHEREAS the Recording Musicians Association is raising funds for the expressed propose of filing lawsuits against the Federation, and…"

Stop. The fund raising, as Tom Lee himself has noted, is being done through an entity incorporated under California law in 2006 by an individual named Rafael Rishik. Not the RMA.

"WHEREAS recent pending litigation by members of the Recording Musicians Association has had a demonstrable adverse impact upon the Federation, and…"

Litigation by members of the RMA. They are also members of the AFM. They are also members of AFM Locals. Three individual members have filed suit, not the RMA.

"WHEREAS it appears the Recording Musicians Association is planning to initiate immediate additional litigation against the Federation, and…"

It is certainly possible that if the AFM loses its current case against three of its members, other members privy to the "promulgated agreements" may sue. (The plaintiff in these actions will not be the RMA, but rather individual members.) If a federal court exposes the nonsense of "promulgated agreements," the AFM will be shown to be in the wrong. Instead of decertifying the RMA, crucifying one of the most viable categories of musicians, and bringing the AFM to ruin, why not simply correct the wrong?

"WHEREAS there is an admitted relationship between the Recording Musicians Association and the Professional Musicians Guild, a labor union whose officers are RMA members and that has sought to compete with the Federation by seeking to collectively bargain with electronic media employers for the services of musicians, and…"

If an RMA member has a relationship with the PMG, how does that relationship bind the RMA itself? Our fallacious IEB is pronouncing the RMA guilty by association.

"WHEREAS the Recording Musicians Association has embarked upon a course of conduct that threatens the well-being of the Federation, therefore…"

What the AFM intended when it granted conference status to the RMA and its affiliates was to hear the needs of this group of musicians, to allow direct participation, to submit its input to collective bargaining agreements that directly affect each participating musician, and to exercise their right to ratify contracts that they work under.

Tom Lee's administration has embarked upon a course of conduct since 2001 that will destroy the intelligent purposes of the conference system, and cut off actual members who contribute artistically and financially to the AFM.

"BE IT RESOLVED the International Executive Board consider terminating the status of the Recording Musicians Association as an official AFM Player Conference, and

BE IT FURTHER RESOLVED that the question of terminating the RMA's player conference status be addressed as soon as possible but no later than the September 2008 IEB meeting."

I speak directly to the IEB, who will take up this "resolution" on Tuesday, September 23.

Look carefully at all these “facts," their sources, how they were received. Examine their veracity and truthfulness and relevance. Ask yourself what will occur if you vote to decertify and what could occur if you vote against.

I believe that you instinctively know, as we all do, that this debacle is the result of a failure in communication between the President and the RMA. Solve the problem not by punishing, but by rectifying and reconciling differences. Seek common ground to attain compromise and solutions that will enhance understanding. Don't destroy our members and our treasury, but embrace, understand and serve our members for the betterment of the AFM.

Boiling Over

The few months before and after Labor Day 2008 will determine if the AFM survives until its 2010 convention.

1

In June 2008 a meeting took place in Las Vegas. In attendance were the Locals Conference Council's thirteen representatives, the Player Conference Council's six (including RMA President Ayling) and the International Executive Board's nine: the Executive Committee — Parente, McGrew, Hair, Price and Linneman — plus Sam Folio, VPs Skolnik and Bradley, and President Tom Lee.

The lawsuit, David Parmeter et. al. v. AFM, was on everyone's mind, and soon on their tongues. With these twenty-eight AFM officers assembled, a shouting match ensued. Some could not stand the poisonous atmosphere in the room, and walked out. At some moment unknown to everyone except the IEB's nine, a covert, off-the-record pact was made to decertify the RMA at the IEB's meeting in September. This is the "nuclear option."

2

In late July 2008, Bradley revealed in his Local's newsletter that the IEB "passed a resolution that the question of terminating the RMA status be addressed as soon as possible, but no later than the September 2008 IEB Meeting." (Page 28 of the Nashville Musician is the only documentation for this. No minutes were published. An attempt to access the June 2008 agenda gives the appropriate error, "No such file.")

He did this in a missive printed beside a petition from one hundred eighty-eight of his members, urging him to vote "no" to the decertification of the RMA. "How ridiculous!" Bradley thundered:

"This resolution, submitted by RMA President David Pomeroy, is intended to influence my vote! I will continue to vote my conscience (based on the facts before me), and I resent this attempt to force me to vote otherwise."

It is hard to imagine a more hostile response from an elected representative to his members. It is obvious that Bradley has made up his mind to vote "yes."

3

On August 15, 2008 Tom Lee wrote a letter to selected members, responding to a letter by Rafael Rishik of Fareplay Inc., apparently a recording musicians' legal fund. The letter contains the usual Leeisms, with a good helping of half-truth and innuendo. For example:

"It is simply not true that the RMA has been denied input in Federation collective bargaining. In the past years the RMA has had input on every negotiation in which they have historically participated." (emphasis mine)

This is half-truth. Here's Tom Lee in an email dated November 6, 2007, addressed to RMA President Ayling, with copies to the IEB and the AFM's lawyers:

"Further, AV negotiations are scheduled but at this point, I will not need your input. Please rest assured that if, at some future date I believe your input will be helpful, you will be notified." (emphasis mine)

In public, Tom Lee claims the RMA had input. In private, he uncivilly turns his back on the elected RMA President.

We're not sure how Tom Lee defines "input," but if he can point to a single relevant negotiation since October 2005 at which RMA President Phil Ayling was present, we'd like to hear it. Tom Lee tells us why:

"[T]he creation of the PMG [Professional Musicians Guild] by what is reported to be members of the RMA makes it difficult to allow individuals who may have a loyalty to another union (PMG) to be taken seriously when they offer to participate in an AFM negotiation."

This is innuendo. We are meant to think, "Phil Ayling is a member of PMG, so we can't trust him at our AFM negotiations." Phil Ayling has never been charged with being a member of PMG. Karl Rove could slightly alter Tom Lee's prose to convince us that Barack Obama is a member of Al Qaeda. It is a detestable tactic.

Now, let's look into the future.

4

At the IEB's September 2008 meeting, with the IEB apparently determined to decertify the RMA, it seems clear that the ayes will have it. The RMA, a huge contributor of work dues, and a significant group of professional musicians, will be gone. The RMA will survive — it may decide to form a separate union, or join a union like the Screen Actors Guild.

5

In late January 2009, the final pretrial conference is scheduled in David Parmeter et. al. v. AFM. A settlement could be reached by lawyers on or before this date, but the AFM should remember that without dealing with the RMA, it will apply only to three men: David Parmeter, Anatoly Rosinsky, and Andrew Shulman. The RMA has not brought this suit. RMA President Ayling has not brought this suit. Even if this particular suit is settled, any other musician who has recorded under the "promulgated agreements" could immediately sue as well.

A manifesto by a recording musician, anonymous out of fear of Tom Lee (who has a history of reprisal against bloggers), suggests that other recording musicians intend to do just that: sue the AFM under the same theory (perhaps with financial aid from Rafael Rishik's Fareplay).

6

If there is no settlement, the jury trial will commence on February 17, 2009, with the AFM at the defendant's table.

If the AFM loses this case, it would become a persuasive precedent, and any other musician who recorded under the "promulgated agreements" could quickly prevail as well. The AFM would be obligated to pay these judgments. With the RMA gone, Sam Folio's coffers are much emptier than before. Obviously, the per capita would go up. Small Locals, already close to biting the dust, would be asked to contribute the same as wealthy Locals. This is precisely why Tom Lee, proclaiming to be the friend of the smaller Local against the evil RMA, is about to make a fatal miscalculation in decertifying the RMA. Tom Lee's war with the RMA will kill the small Local.

We have seen that the AFM as currently constituted is limping towards its demise. Tom Lee has successfully neutered union democracy and put a puppet show in its place, with the strings leading back to him. But after eight years in office, can he really claim that recording musicians need the AFM more than the AFM needs recording musicians?

Now let's peer into an alternate universe.

7

A settlement is essential, and it can't be brokered by the AFM's two law firms and five lawyers. The AFM's high-powered lawyers can settle exactly one case with three musicians. There are hundreds of others, and they're all in the RMA. Only Tom Lee and Phil Ayling, together in the same room, acting in a spirit of good faith and compromise, can settle this.

Let this meeting be scheduled. Let the IEB at their September 2008 meeting defer the question of decertification pending the outcome of the meeting. Let Tom Lee and Phil Ayling negotiate a compromise. Let Tom Lee instruct the AFM's lawyers to settle the lawsuit in accordance with that compromise. Let Phil Ayling use his influence to suggest that the three recording musicians do the same.

Let this particular disaster be avoided — at least for now. Let Labor Day 2008 be remembered as the time that this union almost imploded, but didn't in the end.

Further Reading:
"Disharmony swells among musicians", Variety, Aug. 21, 2008.
"Ain't democracy grand?", The AFM Observer, Aug. 6, 2008.
July 2008 archive of The AFM Observer.
"Committee: RMA Considering Targeting Orchestral Tenure Clauses", Film Music Magazine, Jul. 8, 2008.
Other items are linked in the article.

Tom Lee Decries "Negative Action," Sues Blogger

Responding to the federal lawsuit pending against the AFM, Tom Lee had this to say to Film Music Magazine:

It is regrettable that individuals have been convinced to go down this path. The AFM hopes that cooler minds will prevail and this ill advised action will be abandoned so that we can concentrate our efforts on matters of greater concern to a wider group of musicians throughout the US and Canada. We need to focus our efforts on passing the performance rights bill which will benefit musicians in the United States. . . .We urge these individuals who filed the lawsuit to join the huge majority of their brothers and sisters in working for positive change that will affect a greater number of our members instead of taking negative action which ultimately threatens the welfare of our members.

We can't blame Tom for the vacuous response; he is, after all, a politician, and a successful one. However, Tom Lee is not averse to "taking negative action" himself, from time to time.

In November 2006, Tom Lee and the AFM filed a federal lawsuit against an anonymous blogger ("John Doe") for a satirical posting at The AFM in Trouble. The posting showed a fake letter from Tom Lee endorsing Mary Landolfi for President of Local 802. Tom Lee's suit alleged trademark infringement for use of the AFM seal, and defamation. (To learn more about defamation on the internet, read Allegro's May 2008 article by Harvey Mars, Esq.)***

Because the blogger posted anonymously, Tom Lee and the AFM's lawyers got a court order to require Google to reveal the blogger's identity. (Google owns Blogger, the free blog publishing service used by The AFM in Trouble.) Google provided an IP address (a number which identifies a computer on the Internet) and an email address—but not the name and address of John Doe.

The IP address was owned by Comcast, an internet service provider, so it looked like John Doe was a Comcast subscriber. Tom Lee went back to court and got a court order to require Comcast to divulge the name and address of John Doe. However, Comcast had purged its records, and could not tell which of their subscribers was John Doe.

But Tom Lee still had the email address: nopercap@yahoo.com. (That address is currently undeliverable.) So, Tom went back to court a third time, to get an order requiring Yahoo to unmask John Doe. And here, in June 2007, the court records fall silent.

The International Executive Board (IEB) was first informed in March 2007 about an "election campaign issue...involving a questionable letter of endorsement that had surfaced on the internet." This suggests that the IEB was not particularly "clued in" to this lawsuit, which had been filed over three months (and two IEB meetings) earlier. In addition, the lawsuit is not merely an "election campaign issue" at all. Tom Lee's complaint seeks to "punish Defendant and set an example."

Though we do not know if Tom Lee was successful in unmasking John Doe, we are sure that if he wasn't the plaintiff, Tom Lee would regard his own lawsuit as frivolous. (We will let readers decide for themselves how similar the AFM seal is to the ostrich seal at The AFM in Trouble, and whether they think the posting defames Tom Lee.)

However, we have to agree with his statements, if not his actions, that the AFM must come together and concentrate on issues of importance. This is essential if the AFM hopes to avoid the fate of the trademarked seal at the center of Tom Lee's lawsuit: expired.

***The "AFM in Trouble" blog disappeared from the Internet a few weeks after this story appeared. The "AFM seal" in John Doe's satirical posting pictured an ostrich with its head in the sand in place of the lyre and laurels found on the actual AFM seal.

RMA v. AFM, Now in Federal Court

On March 29, 2008, at the New England Conference in Newport, Rhode Island, President Tom Lee and Secretary-Treasurer Sam Folio arose to tell the story of their recent trip to Los Angeles.

The duet told of their positive meetings with recording musicians. The video games business, they said, is growing, and will be a great source of income for our musicians. Secretary Sam said "the trip was a success, with more work ahead."

Members who relied on Tom and Sam's version would be completely in the dark about the real story, in particular a major federal lawsuit between the RMA and the AFM.

Hostilities between the RMA and Tom Lee's administration have escalated since the AFM "promulgated" (as opposed to "negotiated") a one-page video game agreement, which is substantially pro-employer and unfavorable to musicians. Tom Lee's administration argued that this pro-employer stance was necessary to bring video game work into the union. This one-page agreement is at the center of the lawsuit filed in U.S. District Court in California.

In September 2007, the RMA requested an accounting and a refund for work dues paid under this and other "promulgated" agreements. Under AFM bylaws, only "negotiated" agreements are subject to work dues. No communication developed between the RMA and the AFM; no accounting or refunds were made or discussed. Tom Lee's administration ignored the propitious moment. The RMA proceeded to file suit.

The RMA is one of the largest contributors of work dues to the AFM. One would hope that our elected AFM officials would not avoid dialogue with any single member, let alone the combined voice of recording musicians. We elect officials precisely to reach common ground with aggrieved members, and to develop solutions mutually agreeable to all. Costly litigation should be the last resort.

Because the RMA had substantive objections to the one-page agreement from its inception, they asked Tom Lee in December 2006 why they were given no opportunity to ratify the agreement. After all, the AFM bylaws require a ratification process for all "negotiated" agreements.

AFM General Counsel Jeffrey Freund responded that a "promulgated" agreement was completely different from a "negotiated" agreement, and was not subject to the ratification requirement. The one-page agreement is a "promulgated" agreement, so neither the RMA nor anybody else would have any say in the matter. At this point in time, when it benefited them, the AFM was only too happy to highlight the differences between a "promulgated" agreement and a "negotiated" agreement.

Embarrassingly for the AFM, Attorney Freund's reasoning then may win the case for the RMA now. If a "promulgated" agreement is so different from a "negotiated" agreement that it short-circuits the ratification requirement, then why doesn't it also short-circuit the work dues requirement? The bylaws, after all, require work dues only on "negotiated" agreements. How can Attorney Freund and Tom Lee's administration justify interpreting the bylaws one way when it suits them, and the opposite way when it doesn't?

Though our elected AFM officials keep their lips sealed, the federal case against the AFM is a matter of public record, and we offer the following documents for interested readers.

Letter from AFM General Counsel Jeffrey Freund Explaining the Difference Between "Promulgated" and "Negotiated" Agreements
RMA's Opposition to AFM's Motion to Dismiss
AFM's Withdrawal of AFM's Motion to Dismiss

Clarification (4/27/2008): The plaintiffs are three individual RMA members, not the RMA itself. Larger issues remains between the RMA and the AFM, but the RMA and its representatives have nothing to do with these lawsuits, and have not instigated or approved them.

Sam Folio Clarifies

In response to our article Now Hear This, Secretary-Treasurer Sam Folio offers the following:

"I fully intend to finish my term as your Secretary-Treasurer."