Two views: Recording musicians clash inside the AFM

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In his piece in UDR No. 177, Robert Levine, President of Musicians Local 8, criticized how Thomas Lee, International President of the American Federation of Musicians, dealt with a dispute with the Recording Musicians Association. We print Lee's letter to UDR and Levine's reply.

Thomas Lee objected:

Robert Levine's recent article - "New Democracy Battles in Musicians Union" - in your January/February issue describing the American Federation of Musicians ("Federation") and what he considers a "conflict" between recording musicians and the Federation's elected leadership", and most particularly me as Federation President, turns the notion of union democracy on its head. The thesis of his article is that, because literally a handful of recording musicians have not been able to bully the vast majority of union members into agreeing to their approach to collective bargaining and their approach to financing the Federation's activities, the Federation is an anti-democratic institution. Apparently his notion of democracy is one in which a tiny minority should control by dint of their economic power. I don't know from where Mr. Levine divined that definition of democracy, but it certainly isn't one that I am familiar with.

Before describing the so-called dispute that is at the core of Mr. Levine's article, let me explain a few things about the Federation's governing structure. The Federation is a craft union, comprised of over 242 local unions in large cities and small towns across the US and Canada, that together represent some 90,000 paid per capita musicians who work in every branch of the music industry - symphonic, live musical theater, club dates, recording (motion picture, sound recordings, commercial announcements, television, radio), weddings, restaurants, dinner clubs and many more. Local unions are governed by locally elected officers, who stand for election at least every three years (and in some instances, more frequently). These local unions bargain with local employers over local engagements. They also elect delegates to the Federation's convention that, until the last convention established a three-year convention cycle, met every two years. (As you know, Federal law would permit the Federation to never have conventions and to elect its officers every five years, but this "anti-democratic union" has decided that greater membership accountability is appropriate). These elected convention delegates in turn elect Federation officers - four titled officers (the President, US Vice President, Canadian Vice President, and Secretary Treasurer) and five general officers at large who together make up the International Executive Board (IEB). And while I'm on the subject of the IEB, since Mr. Levine's article paints me as the despot in charge of this anti-democratic machine, I should point out to you that the President doesn't even have a vote on the IEB except to break ties.

In addition to electing Federation officers, the convention delegates make Federation policy. And if you think the convention acts as a "rubber stamp" of the IEB, you haven't been at a Federation convention. It is no exaggeration to say that fully forty percent of the resolutions actually adopted by the 2007 convention delegates are grounded in resolutions submitted by rank and file members through their local unions. In short, the IEB is under the very direct and quite frequent control of the thousands of members who the Federation - through its locals and itself - represents.

These same members are also directly involved in the collective bargaining process through membership ratification of most local and Federation collective bargaining agreements - even though Federal law does not require ratification of agreements. Only in a very few circumstances, defined in the Federation's Bylaws, does the IEB ratify the Federation agreements reached with employers. All of the major collective bargaining agreements - Federation and local - in industries in which there are well-established bargaining relationships are subject to membership ratification.

That background sets the framework for the dispute at hand. In recent years, the Federation convention - comprised of democratically elected musicians who participate in all aspects of the musical industry across the US and Canada - has concluded that a source of musician income that is the direct result of Federation collective bargaining that was not previously subject to dues obligations ought to be subject to a dues obligation just like the earnings of every other working musician. That income source is payments to recording musicians from funds into which motion picture and record companies pay, based on the sale of certain recorded products to the listening and viewing public. Those funds - and the payment obligations on the companies to those funds and the distribution to musicians from those funds - are a direct result of Federation collective bargaining, yet for years they had mysteriously been exempt from the dues structure applicable to all other musicians working under Federation agreements. And those funds don't pay out small sums of money to musicians; six and in some cases seven-figure payouts annually to individual musicians are not uncommon. The delegates to the 2007 convention, elected democratically by local unions across the US and Canada, reached the considered judgment that these funds ought to be subject to a dues obligation to help advance the interests of all US and Canadian musicians, and they adopted appropriate legislation to achieve that result.

What did the recording musicians do when, by the democratic process, their union adopted this provision? They did the most undemocratic thing imaginable - they refused to abide by the will of the majority, engaged in obstructionist tactics to avoid paying the newly adopted dues obligation, sued the Federation to try to set aside a different dues provision that had been in the Bylaws for nearly 20 years and finally sued the Federation a second time challenging the 2007 convention action. Those lawsuits have not been brought to a conclusion, but we are confident that the Federation will ultimately prevail, because who can imagine a court upsetting the will of a majority of freely elected convention delegates?

As for Mr. Levine's description of the videogame issues and his concern that by adopting proposals for videogame producers that do not sufficiently limit the use of music recorded for videogames to videogames, there are a few critical facts he forgot to tell you. Because of the AFM's historic unwillingness to allow videogame producers the ability to more freely use music they record, virtually all videogames have been recorded non-union (often, unfortunately, by union musicians who actually want the work but who must record secretly because the work is not under contract). Not only has this non-union recorded music been freely available to be used in other media, the musicians who do the work without benefit of a contract have received no pension contributions and no health benefit contributions precisely because the work has not been done under a contract. We aim to fix that problem, and if it means that music that is recorded for video games under Federation agreements is made available for use in other media to the same extent that it would be available if it was recorded non-union, that's a small price to pay for creating more jobs for musicians with pension and health benefits. Moreover, what Mr. Levine also forgot to tell you is that the heart of the "opposition" to the Federation's new approach to video games is the same small group of musicians who are behind the dues law suits and that these musicians, no matter what they may say, oppose this new approach NOT because they think a better deal is available in the video game industry but because they are afraid that a new approach in this field will encroach on the Federation's motion picture agreement - a principle on which we just don't agree.

I will give Mr. Levine this much - there is a serious threat to functioning union democracy within the Federation. But the threat doesn't emanate from the Federation leadership or the vast majority of its members. The source of that threat, plain and simple, is the handful of recording musicians who don't believe in democracy and who don't believe in trade union principles. And it is equally a threat that members like Mr. Levine, who achieved their positions in the union through the democratic process, have become the handmaidens of moral outrage when they know (or should know) that this outrage is baseless, makeweight and advances anti-democratic results.

Robert Levine replies:

President Lee's response vividly illustrates the points I tried to make in my article. I wrote that he "viewed the role of the player conferences far more narrowly than had his immediate predecessors." In his response, he wrote at length about the AFM's governance structure without once mentioning the existence of the player conferences, much less the critical role they have played in AFM governance since 1991. I wrote that "a particular sore point for the RMA was that AFM-promulgated videogame agreements gave employers complete freedom to re-use material recorded for videogames in other media with no additional payment to the musicians, which the RMA feared could lead to collapse of the whole re-use payment system." Lee describes these objections as those of a "small group of musicians" who are "afraid that a new approach…will encroach on the Federation's motion picture agreement - a principle on which we don't agree."

Yet he cites no basis for his belief that he knows the industry better than rank-and-file members who have spent their entire careers dealing with these employers, and in fact the AFM has done no serious research examining the relevant labor markets and trying to understand what effect these promulgated agreements might have on the wages of members currently working under other agreements. But this appears not to matter, because, according to Lee, that same "tiny minority" (which is actually several thousand AFM members) also try to "bully the vast majority of union members," "engage in obstructionist tactics," and "don't believe in democracy and … trade union principles." He doesn't neglect to mention that a few of these "handful" of bad apples also get "seven-figure payouts annually" from AFM agreements, although, as I mentioned in the article, the AFM is not given payroll information from that Fund. Most unions would consider well-compensated members an achievement to be protected, not a problem to be solved.

President Lee says that my "notion of democracy is one in which a tiny minority should control by dint of their economic power," and writes about the "90,000 paid per capita musicians who work in every branch of the music industry." What he doesn't say is that only a fraction of those 90,000 actually work under union agreements, and that an even smaller number actually make a living from that work. The conflict between providing services for those musicians who make a living from performing and the desire of the vast majority of members for someone else to pay for the union has nearly torn the AFM apart on several occasions. The temptation for delegates from the small locals that dominate Conventions to "stick it" to the working musicians has led, time after time, to a small group of members, with no voting power, being forced to fund a union dominated by members who seldom, or never, actually work as musicians. What has pulled the AFM back from the brink every time has been the recognition that democracy is as much about respecting the rights of minority groups as it is about majority rule.

But this IEB continues to consider de-conferencing the RMA, which the AFM has long formally recognized as representative of the minority known as the recording community, while Lee did not invite the RMA to appear at the upcoming IEB meeting to discuss the new Videogame Agreement, even though he is required to do so under IEB policy. As the IEB is considering ratifying the new agreement without submitting it to the affected members as the bylaws require, they may not be anxious to hear the RMA's views. And, to literally add insult to injury, this is happening smack dab in the middle of negotiations over a new film agreement - the same agreement that recording musicians are terrified that the Videogame Agreement will fatally undermine.

President Lee seems particularly upset that some recording musicians have sued the AFM; he describes that as "the most undemocratic thing imaginable." Yet reading even one issue of Union Democracy Review demonstrates conclusively that union democracy cannot survive without external enforcement of the rights of members, including judicial review when appropriate. Elections do not endow those elected with the authority to violate the law, or insulate them from accountability. "If the President orders it, it's legal" works no better for unions than for governments.

His characterization of the actual lawsuits is equally problematic. The first lawsuit does not try to "set aside a…dues structure that had been in the Bylaws for nearly 20 years." The lawsuit is an attempt to force the AFM to abide by the bylaws, which require work dues be paid to the AFM only on work done under "AFM-negotiated agreements." The AFM has been promulgating agreements in the recording workplace over the vociferous objections of the affected musicians, refusing to submit them for rank-and-file ratification process because they weren't "negotiated" - and then charging work dues on the affected, and disenfranchised, musicians on the basis that they became "negotiated" once an employer actually signed them.

Almost as telling as what President Lee writes is what he doesn't. There is no mention in his letter of the AFM's Javert-like pursuit of the owner of a blog critical of Lee, or of the AFM's fishing expedition through the RMA's internal correspondence, or that de-conferencing the RMA is still on the IEB's agenda, or of the electoral defeat of his IEB allies by an RMA chapter president in Nashville. These facts would indeed be hard to spin, even for a union politician of Lee's evident gifts.

President Lee may choose to believe that there is no civil war raging in his union, and that the anger of recording musicians is "baseless." Those of us forced to watch this slow-motion train wreck know only too well that the anger and conflict are real, and that the primary cause is the disdain this AFM President and International Executive Board have shown, time and again, for the AFM's long-standing and unique democratic traditions.