Lawsuits as behavior modification

One reason for the Action That Shall Not Be Made Public, at least in the minds of some IEB members, was apparently the lawsuit filed against the AFM and Local 47 regarding work dues collected and forwarded to the AFM on work done under promulgated media agreements. Ed Shamgochian has done yeoman work on the subject on his blog, and I won’t try to improve on his very lucid explanations. But it’s worth exploring just why the lawsuit called forth a threat by the IEB to de-conference the RMA.

Clearly the lawsuit is costing the AFM a pretty penny, not only in legal fees but now in work dues that were going to the AFM and are now being put into a court-controlled escrow fund pending resolution of the lawsuit The first month resulted in over $15,000 not being sent to the AFM. Over the course of the year, that will amount to the kind of revenue loss that causes budgets to take on water and begin listing.

But is the purpose of the lawsuit to bankrupt the AFM? I doubt it. I suspect, both from discussions I’ve had and from my own experiences as a player conference leader, that things look very different to the plaintiffs and those who encouraged them to file the lawsuit.

The insight that kept slapping me in the face during my six years as ICSOM chair was that dealing with the AFM all too often felt exactly like dealing with a recalcitrant orchestra management in the absence of a grievance arbitration provision in the contract. Even with such a provision, dealing with a bad management is frustrating. But at least when they do violate the terms of the CBA, there is a mechanism for fixing the immediate problem.

Player conferences have no such mechanism when dealing with an AFM administration that’s bent on not following the bylaws or adhering to long-established practice. When the AFM started going around the RMA with the various promulgated agreements for videogames, there was no internal mechanism to deal with the problem except for the normal political process. And, because of the weird and complex way the AFM has evolved to deal with its fundamental structural problem – that a small minority of the membership work under CBAs and provide most of the union's funding – the only political power held by the player conferences was the general acceptance of the principle that they had an effective veto over Federation activity in the symphonic and electronic media work.

In part they were given the power to say “no” by the fear of another Seattle or of the mess described in the famous December 1956 Reader’s Digest article. And in part the veto came from a widespread recognition that holding together the AFM required that the concerns of the recording and symphonic musicians needed to be dealt with in a non-majoritarian way. Regardless of the reasons, the system worked for a long time. The core needs of the recording and symphonic musicians were met, they continued to provide the funding for the AFM, and the AFM held together.

But surprisingly little of this system was actually mandated by the AFM bylaws, and, as a consequence, proved not sustainable – or at least quite vulnerable – when an AFM president showed up who was determined, whether for philosophical, personal, or political reasons, not to abide by it, especially when that president has the kind of political skills possessed by Tom Lee.

So what’s a player conference to do when the rules that protect its interests – most of which are implicit and not internally enforceable – are broken? There really are only three choices, although they’re not mutually exclusive. The first is to cave. The second is to leave. And the third is to fight back with whatever tools are at hand.

The formation of the PMG is, in essence, a threat to chose option #2. The lawsuit is an attempt to exercise option #3. I’m not claiming that the RMALA or RMA International is behind either the PMG or the lawsuit, but clearly they all come from the same frustration with the AFM’s behavior.

But what’s most important is that the recording musicians appear, at least to me, to be trying not to leave the AFM. Their actions are analogous to those of an orchestra threatening to strike, or to file NLRB charges, or to run a public campaign. The goal is not to stop working, or spend endless hours with lawyers, or walk picket lines and leaflet audiences. The goal is to get the other side to behave.

Filing lawsuits and forming what amounts to a union-in-waiting are not attractive tactics, and I don’t fault members of the IEB for reacting negatively to them, just as I don’t fault orchestra managements for not liking strike threats. But such tactics need to be seen as attempts at behavior modification, and not as attempts to destroy the AFM. It’s not the RMA that’s trying to undermine a way of doing things that’s worked for four decades.

And, even for those who are skeptical of the real intent behind the lawsuits and the PMG, I would suggest that the survival of the AFM is more likely if, rather than just launching counterstrikes, they try to solve the underlying problems. Often it’s best to deal with those on the other side as if their motives are as good as those of one’s allies. In my experience, demonizing the opposition is the biggest single step on the road to war.

Comments

[Mark Northam]

Great article, Robert!

From my perspective as a journalist dealing with the various parties involved, I saw a major shift in dynamics when the recording musicians' lawsuit was filed. This changed everything, as it tends to do when federal courts and lawyers are involved rather than musicians dealing with musicians. It polarized people on both sides of the promulgated agreements issue, and made going back to the bargaining table very difficult when anything that could be said or done there might show up as evidence in a federal court case.

I believe there is a perception that some of the recording musicians are engaged in a take-no-prisoners type of go for broke action to make one big stand in the face of growing acceptance of the promulagated (aka "buyout") agreements. Until both sides - recording musicians and AFM - believe there is a real possibility for movement and compromise in the other's position, I fear we're going to see a continuation of the "counterstrikes" you mention, perhaps escalating into something bigger and more damaging to all concerned.

Another player in the mix are well-funded national lawyers who are looking very carefully at Local 47's treatment of financial core players, especially at actions like denying them access to rehearsal rooms where groups and orchestras they are employed by rehearse, that may have the potential to interfere with these musicians' employment. This looming issue is even more reason for the parties involved in the promulgated agreement situation to dismiss the lawyers, sit down, and get things resolved.

A final personal note: as a composer, I know many recording musicians in Los Angeles and have a huge amount of respect for what they do. They truly are the best in the world, and they deserve to be treated as such. It saddens me greatly to see all of this political turmoil eating up the time and energy of such wonderfully creative people who we as composers are utterly dependent on to turn our music into art that everyone can enjoy.