The Empire Strikes Back at Aristotle

Lawyers for the AFM recently filed a motion for summary judgment (in essence, asking the court to dismiss the lawsuit without a trial) in the long-running court case over work dues collected on promulgated agreements. It is a very interesting document.

Not being a lawyer, I found it hard to evaluate in terms of its strength as a legal argument. Reading it strictly as a layperson, though, I found it rather unconvincing, except for the ridiculous parts. Those convinced me that lawyers have truly remarkable minds.

The AFM's motion makes numerous arguments:

• “the AFM's interpretation of its own bylaws is reasonable and logical”
• the AFM's interpretation “is consistent with common sense”
• “extrinsic evidence supports AFM's interpretation.”
• “Plaintiffs have no coherent theory to distinguish AFM “Promulgated Agreements” from agreements requiring AFM work dues”
• “Plaintiffs lack standing”

The ridiculous ones are the ones about “extrinsic evidence” and distinguishing between “promulgated agreements” and “agreements requiring AFM work dues.” (Note the omission of the phrase used in AFM bylaws, which is “AFM-negotiated agreements.” It wasn't an accident, as you'll see.)

The motion describes “extrinsic evidence” as “including the consistent and unquestioned application of the Bylaw since 1991, the history and intent of the Bylaw, and the adoption and construction of identical language by Local 47.”

Regarding the first, the motion cites another decision that concludes:

“[t]his is . . . a case where all of the parties to a contract have uniformly adopted a practical construction of the contract. In such cases the construction by the parties is entitled to great, if not controlling weight, and is usually adopted by the courts in determining the proper construction of the contract.”…

Specifically, since January 1, 1992 - the effective date of the currently operative work dues Bylaw provision - the AFM, as well as every single AFM Local, has construed the language in Article 9, section 32(b) to require the remittance to the AFM of work dues for work done under any collective bargaining agreement to which the AFM served as the collective bargaining representative. Id. Because the AFM, AFM locals, and AFM members have, without exception, applied this construction of the bylaw provision over the past 17 years, this construction should be adopted by the Court.

This actually might be a good legal argument. But it's still ridiculous. Should it be a defense for someone who beats his wife to argue that, because she didn't complain about it for 15 years, he's is entitled to go on beating her regardless of her complaints in year 16?  If this argument works, then the law is an ass.

But the most ridiculous aspect to this argument is the “history and intent of the bylaw” argument.

In February 1991, the Blue Ribbon Committee proposed solving this problem in the following manner. First, the Committee proposed eliminating Federation work dues on “all musical services performed” in the electronic media industry, unless the work was performed pursuant to an agreement where the Federation served as the collective bargaining representative of the musicians…The proceedings make clear that the Convention only intended to eliminate Federation work dues for electronic-media work that was not done pursuant to a collective bargaining agreement to which the Federation was a party.

So why do the bylaws consistently refer to work dues on “AFM-negotiated agreements”? The AFM's lawyers have an answer for that too:

Because the Plaintiffs rely on a misreading of the word “negotiated” in Article IX, we would be remiss in failing to note that this word, though ultimately printed in the 1991 AFM Bylaws booklet, was not, in fact, enacted by the delegates to the 1991 convention...Rather, the language the convention adopted referred to the agreements in question as “Federation Labor agreements.” ...Those words, and not the words in the printed booklet, are the words that actually govern the parties' relationships and obligations.

The typo did it! But what about the resolution that every convention enacts to give the IEB authority to clean up the language that the Convention has passed?

The AFM's lawyers don't get into that thicket, and for a very good reason. Claiming that what's been in the bylaws book for 15 years doesn't matter because it's not what the Convention actually passed is to claim that no modifications the IEB has ever made to Convention business has any legal weight. That's actually a pretty ugly argument for the AFM's lawyers to make.

Imagine, for example, that the shoe is on the other foot. Imagine that the Convention passed the “AFM-negotiated agreement” language and the IEB changed it to “Federation labor agreement,” instead of the other way around. How well would the plaintiffs fare in claiming that the language has been wrong for the past fifteen years? And what would the AFM be claiming in that case?

Probably not what they're claiming now. We'd probably be reading, in their motion for summary judgment, about the IEB's unquestioned authority, granted to it by every Convention, to rewrite Convention language. We'd be reading about how, if the IEB got it wrong, the next Convention could fix it, but they didn't, so the IEB obviously got it right. We'd actually be reading what past practice has been - not what the AFM wishes it were for this, but only this, case.

But this assertion, as big a stretch as it is, leads the AFM's lawyers to an even bigger one.

Nothing in the AFM's bylaws limits work dues to work done under ratified agreements…

No; the bylaws limit work dues to “AFM-negotiated agreements,” and negotiated agreements must be ratified. How do they get around that one?

[T]he AFM has determined [that AFM Bylaw Article 5 only addresses the right of members to ratify agreements — not proposed agreements — entered into with
employers ...In the context of ratification rights, the AFM has determined that the sets of proposals created by the AFM to offer to employers to reach what the Plaintiffs call a “promulgated agreement” in the videogame and other electronic media industries are not subject to membership ratification because, inter alia, these proposals are not collective bargaining agreements negotiated with employers... Once, but only once, the terms and conditions embodied in a proposal are agreed to by both the employer and the AFM, does the document become a collective bargaining agreement and an “AFM-negotiated Agreement.”

Very cool. In the blink of an eye - at the moment of acceptance by an employer of the AFM's “sets of proposals” - something goes from a set of proposals to an “AFM-negotiated agreement” without ever needing to pass through the Hell of Article 5, Section 33(a) of the AFM bylaws, which says:

Any CBA negotiated or renegotiated by the AFM or a Local or any negotiated extension of an existing agreement for a period of more than six months beyond its expiration date shall be subject to a secret ballot ratification.

Now it's negotiated, and now… it's only a proposal! 2+2=4 except when it's 2+2=5. “Black” means “black” on page 5 but “white” on page 6. It's enough to make one glad that one isn't a lawyer.

But I don't blame the lawyers. They have a legal obligation to make illogical arguments that fly in the face of common sense, if that's what it takes for their clients to prevail. I blame the AFM for disregarding its bylaws. It's clear that, reading the bylaws as a whole, there is no such thing as an “AFM-negotiated agreement” that hasn't been ratified unless the IEB violated the bylaws by not holding a ratification vote.

Negotiated agreements must be ratified. Dues are only collected for negotiated agreements. Therefore, dues are only collectable on ratified agreements. That's called "Aristotlelian logic," and it's the way that educated people in the West have been taught to reason for millenia. It's an odd concept for the AFM to be at war with.

That's why I hope the AFM loses this lawsuit. Unions should indeed be "accorded deference to interpret their bylaws." But “deference” does not mean allowing the union to decide that a word means two different things at the same time. We might as well all fall down a hole in the ground and end up in Alice's Wonderland:

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean--neither more nor less.'

'The question is,' said Alice, 'whether you CAN make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master-- that's all.'

That is indeed the question. Is the IEB the master? Or are the bylaws?

Comments

[aREALrecordingmusician]

QUITE SO, 802 - AND IT ALWAYS COMES BACK TO JUST ANOTHER WAY TO BASH THE RMA, THE WHIPPING BOY FOR ALL THOSE WHO CAN'T QUITE HACK IT.

[802fiddler]

It seems that the latest "hook" around here is the audition/tenure process. Since all recording business (film, records, jungles,TV etc.) comes under the heading of free-lance gigs, the whole idea of tenure is nonsense. As far as I know, auditioning for a free-lance job is not allowed by the AFM.

Next hook - I mean case.......

[Keys88]

802,

You're right of course, there's more to getting and keeping a gig playing in an orchestra than just auditioning, but auditioning would help open the door and keep talent, rather than one's political views, as the focus of the selection process. I agree there would need to be some sort of measure as to whether someone "plays well with others", but I'm sure something could be worked out if the will was actually there to implement an effective audition process.

Sadly, that isn't the case, and we're left with politics and the current good-ole-boy (and girl) system where a musician's career hangs by a thread based on the whims of a few large contractors. Sure, talent must be there in order to get the gig, but since there are far more talented players than gigs, politics quickly becomes one of the deciding factors. Tenure, properly earned, is a good thing. Tenure, awarded to oneself because of political connections, is nothing more than cronyism. Big difference.

[802fiddler]

Further thoughts on auditions -

I have known a number of cases wherein the orchestral candidates played perfectly, sight-read phenomenally and, (figuratively) had the score been turned upside-down, would have still read it off perfectly.

These players didn't make tenure because they couldn't fit in with their sections. Auditions aren't everything.

[802fiddler]

Sorry Anonymous - I meant from Keys88:

[802fiddler]

From Anonymous:

aReal? Antony? 802? The thought of competing on an even playing field (blind auditions) must scare the hell out of you guys

I played in 5 ICSOM orchestras. Other studio musicians have played in well-known chamber groups or have been university faculty instructors on their instruments. Further, there's a union rule prohibiting musicians from auditioning for free-lance work which, since the demise of full-time studio orchestras, is what current film work has been.

What scares me is seeing what the AFM is devolving to.

[802fiddler]

From Blanc:

802fiddler -- yes, I'll take a market operating freely over one controlled by RMA any day.

Fine! Then I hope he's prepared to be paid Bratislava (T. Lee's favorite locale) rates while having to pay US rent/mortgage.

[Disillusioned Dizzy]

NOW THAT 'DOWNBEAT' HAS MORPHED INTO 'KEYS88', WE SEE THAT NOTHING HAS CHANGED: SAME BS, SAME VITRIOL, DIFFERENT NAME.

[Keys88]

I'm not that familiar with the symphony orchestra blind audition process, perhaps some of the symphony folks here could discuss that further.

My concern is that the current situation in LA for film scoring orchestras is rife with cronyism, fear, and a good-ole-boy club mentality where talent in some cases takes a back seat to politics when it comes to choosing an orchestra from the many, many qualified players who want to be doing this work. If there is to be tenure, let it be earned in a formal program over time where one's proven talent is the basis for granting it. Auditions should be held regularly, and until someone achieves tenure, they should be obligated to audition again (blind, to eliminate politics) on a regular basis to ensure open competition with newcomers. Let them have an annual contract to be on the "list" with the major contractors so there is at least some token amount of job security, even if it's only being on a list (vs not being on a list).

There is no formal system for newcomers to become recording musicians in LA, short of a lot of butt kissing and sucking up, and hoping that one of the "old boys" will drop out of the business for some reason, be forced out for one reason or another, throw a few sessions to them out of pity, or retire. Politics is rife, and the cozy relationship between the RMA and the major contractors (they come to RMA and Local 47 meetings, notebooks in hand to keep track of who's naughty and who's nice!) has led to an incestuous situation where politics can be at least as important as talent, which is now merely a prerequisite. It's an unhealthy situation where fear, cronyism, obligatory conformity, and a good-ole-boy mentality are far too common. Add to this the fact that many contractors have their hands in every pot, getting scale wages, special payments, and a cut of the payroll if they do that service. Simply put, a few of these people can make or break a recording musician's career. Far too much power in the hands of a political few.

Our young people should be given opportunities to compete for spots in these orchestras without having to degrade themselves by sucking up to the status quo keepers. Blind auditions, perhaps held annually as a "qualification" for newcomers and requalification for those not yet achieving tenure, would go a long way to eliminate the dangers of a politically-based selection system including sexism, ageism, and cronyism. It would properly return the focus to one's talent, rather than one's political connections.

[Anonymous]

No comment on the idea of blind, open auditions (like the symphony folks already have) for film scoring orchestras? Robert, you're a symphony guy, what's your take on this?

aReal? Antony? 802? The thought of competing on an even playing field (blind auditions) must scare the hell out of you guys

Well, *re*auditioning in blind auditions would scare the hell out of symphony players, that's for darn sure!

It depends on what you mean by auditioning for film scoring orchestras. If you mean, an audition for every new film that comes along, then it's not at all comparable. If you mean, audition once, do well enough to get tenure/called back, then keep up enough skills and good behavior to not get fired/not called back, then, well, both fields are frighteningly similar ;)

[Keys88]

No comment on the idea of blind, open auditions (like the symphony folks already have) for film scoring orchestras? Robert, you're a symphony guy, what's your take on this?

aReal? Antony? 802? The thought of competing on an even playing field (blind auditions) must scare the hell out of you guys. You won't even talk about it! I wonder how you guys would do in blind auditions compared to the latest crop of conservatory graduates, or veteran symphony players, or the "hobbyists" try so hard to discredit, or even the B-list guys you've put out of work by driving the buyout jobs to Seattle, etc.

That's the real test of talent. The rest, as they say, is politics.

[aREALrecordingmusician]

"I cannot and will not enter into any further discussions on these matters....all it does is further incite hatred already in place with further slanted nonsense." - Antony Cooke

I'm with you, bro. This is pointless; the inmates have taken over the asylum.

[Keys88]

Antony says unnamed people at the AFM want to "take down recording musicians"... huh? The AFM survives, in part, based on the work dues paid BY recording musicians. His statement defies common sense. Spin, spin, spin...

[Rick Blanc]

Antony, it is becoming impossible to take you seriously.

[Antony Cooke]

It seems I've stirred up a hornets' nest! What many people have suspected is in play regarding the agenda of some to take down recording musicians has certainly been confirmed by all that we read here. It's always easy to blame someone or something for one's inabilities to succeed in any chosen field. Never have scapegoats been more targeted or maligned than those who staked their futures and careers on the good faith and contracts of legitimately negotiated AFM contracts.

There are so many misconceptions flying around now that's it's not possible to address any of them. Emotions have taken over. The AFM leadership under Tom Lee has most successfully created a monster to hate within its own ranks. The last AFM Convention was witness to one colossal assault on recording musicians - on its very own members in good standing. What other union has done this and still would expect success? Young musicians with any aspirations at all will probably run away from the AFM as fast as they can. Why would they invite such tyrannical attacks on their future potential for success? What possible trust could they put in AFM contracts, when all of a sudden they might become pariahs?

If the AFM can only attack its own, then it is a sad day. The RMA, long the only voice speaking for those who are good enough to make a living in recording - and an AFM Player Conference at that - was formed because the AFM was unwilling, or incapable of providing for these members' interests. To see it so assaulted without the slightest discomfort from official places in the AFM is extremely disturbing, to say the least. I cannot and will not enter into any further discussions on these matters, because all it does is further incite hatred already in place with further slanted nonsense.

The AFM has been nowhere to be seen in trying to help where recording work truly was in peril (TV, records, and jingles), but in attack mode against those who are successful in film scoring. Apparently the AFM is to become an organization of wannabe's. God help anyone who aspires to excel as a musician, and be rewarded as such.

[Rick Blanc]

Thank you Keys88, a little reality is refreshing!

[Keys88]

Too much kool-aid tends to deaden critical thinking!

Sadly, some of these people actually think that they're more talented than those who are not fortunate enough to be working as much. They seem to forget that the FIRST THING you learn when you go to LA is that there are way more talented musicians than there are opportunities to play and record. That's when the political issues kick in - having some luck, not to mention a fair dose of sucking up and kissing butt as necessary to get "in" with the contractors. Simply put, more work does not necessarily mean more talent.

Since when do the (few) major LA contractors hold open, blind auditions for film/TV session work? Huh? Seems like that would only be fair, so you don't end up with politically-chosen people who occupy positions for years like deadwood, desperately trying to fool themselves and others into believing that it's really only their talent that got them there (and keeps them there). In the face of blind, open auditions, I wonder how many of today's "elite" recording musicians might have their workload quickly reduced to the "hobbyist" level they have such contempt for. Talk about open, fair competition, not to mention giving newer folks a shot at the work. But somehow, I don't think we'll see the RMA pushing for anything like that anytime soon. Too many "jobs for the boys" to protect at ANY COST.

The next generation of recording musicians deserves better than to have to wait in line while the current chosen few focus only on the short term and themselves while they desperately drive the system into the ground, trying to squeeze out everything they can get before the whole thing collapses.

[Rick Blanc]

An inference based on nothing -- an emotional reaction to criticism.

[aREALrecordingmusician]

"Your command of the language seems weak, reflecting unfavorably on your capacity to think critically." - Ric Blanc

Boy, what a snit. You think you're SO good. Unfortunately, your bitterness seems to imply the rest of the world doesn't.

[Rick Blanc]

802fiddler -- yes, I'll take a market operating freely over one controlled by RMA any day.

[aREALrecordingmusician]

Perfectly stated, 802!

[Rick Blanc]

aREAL -- I hope for your sake you are better with understanding notes on a page than you are with words on a page. You are passionate for sure but are you educated? Your command of the language seems weak, reflecting unfavorably on your capacity to think critically.

[802fiddler]

The obvious point is that many of us understand that the RMA doesn't represent OUR interests.

Correct! If you are satisfied with the AFM's hobbyist structure; if you think that recording should be done everywhere in the USA at whatever rates are decided on by part-time musician dominated locals; if you think that AFM recording contracts should be negotiated by AFM-IEB members who know little about the business but think that recording musicians should be taxed to support the AFM's terminally flawed structure; if you believe that the 1961 Guild's (RMA forerunner) settlement with the AFM that brought us pension, health and royalties was wrong - then the RMA doesn't represent YOUR interests.

[aREALrecordingmusician]

"the RMA doesn't represent OUR interests. On the contrary in fact." - Ric Blanc

Which means it does.

[Rick Blanc]

Now aReal wants to tell us what to believe too. Don't believe your eyes and ears! Look at the Emperor's new clothes! Beautiful babe. Awesome dude. That the RMA is pursuing its own interests is not in dispute -- otherwise there wouldn't be an RMA. The obvious point is that many of us understand that the RMA doesn't represent OUR interests. On the contrary in fact.