APPEAL TO BE HEARD ON JAN. 13
The following appeal will be on the agenda of the special membership meeting called for Jan. 13 at 3 p.m. in the Local 802 Club Room.
In accordance with the bylaws of Local 802, Article V, Section 8, I hereby appeal the October 7th, 2008 decision of the Executive Board to deny the processing of my charges against President Mary Landolfi and Executive Board member Jay Schaffner for acts of bad faith and unfair dealing in withholding information, making false statements and permitting (or causing) the destruction of documents in the possession of Local 802.
The very act of the Board’s conducting a “procedural review” of my charges violates Article V, Section 7, paragraph (d) and (j) which mandate that (d) charges against officers “shall be processed in accordance with this Section.” and that (j) “The Trial Committee shall conduct the same procedural review as that set forth in Section 4(a) of this article”. (Underline added). It is clear from those sections that the bylaws require that a procedural review is to be conducted by the body that is to hear the charges.
The procedure for charges against officers is clear in the bylaws of Local 802 and is as follows: Charges are heard at a membership meeting, if the membership votes to pursue these charges, a trial committee is elected and that committee conducts the procedural review. The presumption that the officers of this union have the right to prevent the processing of charges against themselves is not only contradicted by 802 bylaws but contrary to common sense, union democracy and officer accountability .
Submitted by David Finck
APPEAL PROCEDURE under Article V, Section 8, with regard to procedural rejections of bylaw charges
Below is an excerpt of a memo written by Local 802 counsel Harvey Mars in response to the above appeal. Click here for full memo.
On Sept. 23, 2008, pursuant to Article V, Section 4(a), the Local 802 AFM Executive Board unanimously rejected charges filed on Sept 21, 2008 by union member David Finck against union officers Mary Landolfi and Jay Schaffner on the basis that those charges were untimely. The Executive Board’s decision was not appealed or otherwise challenged by Mr. Finck.
On Oct. 7, 2008, the Executive Board again rejected as untimely new charges filed by Mr. Finck, dated Sept. 25, 2008 that cited and relied upon the same facts as set forth in his rejected Sept. 23, 2008 charge.
Mr. Finck, via his attorney, Arthur Z. Schwartz, objected to the Executive Board’s procedural rejection of his client’s charge and requested that it be reconsidered by the Executive Board. Mr. Schwartz’s letter also contained a proposed resolution for submission to the membership during a general membership meeting.
In response to Mr. Schwartz, union counsel wrote to him asserting that the Executive Board was justified in reviewing Mr. Finck’s charges for procedural defects in accordance with its interpretation of the scope of Article V, Section 4(a).
Mr. Schwartz then replied, requesting confirmation that his client’s appeal would be permitted. Union counsel stated that the next course of action for Mr. Finck was for him to appeal the Executive Board’s decision to the AFM’s IEB and that an appeal to the membership was not available.
The issue now presented is whether under Article V, Section 8 of the union’s bylaws Mr. Finck has the right to appeal to the union’s membership the Executive Board’s procedural rejection of his charges.
Union counsel concludes that under the bylaws, as they are presently written, Mr. Finck is not entitled to appeal to the membership. However, in an abundance of caution to avoid any possible appearance of impropriety or constraint of bylaw procedures and because over 100 union members have requested a special membership meeting to consider Mr. Finck’s appeal, counsel recommends, on a non-precedential basis, to schedule such a meeting.
BYLAW RESOLUTION #1 FOR FEB. 11
The following resolution will be on the agenda of the Feb. 11 membership meeting.
Whereas several hundred 802 members are typically working at the Lincoln Center complex on union election days, frequently with little or no time or opportunity to get to the Union offices to vote, and
Whereas a voting site in Lincoln Center would make it possible for a far greater number of members to vote in 802 elections, and
Whereas a portable trailer suitable in size for a voting station can easily be rented for modest cost and placed on Amsterdam Avenue right behind Lincoln Center, if an indoor location directly on the Lincoln Center Campus cannot be found until the ongoing major renovations and construction are complete,
Therefore be it resolved that Article VI of the Local 802 AFM bylaws be amended by adding the words that appear below in bold print and by removing the words that appear below which have been struck through.
ARTICLE VI: ELECTIONS
Section 1. Beginning with the election held in 1994 the election of officers, officials, Executive and Trial Board members and Delegates shall be held by a secret-ballot vote of the membership to be held on a date within the first week of December of each third year, and said date shall be designated by the Executive Board on or before September 15th of such year. In-person voting shall be conducted at the Local’s New York and Long Island offices, and beginning with the election held in 2009, the administration of Local 802 shall arrange for an in-person voting site at a location within or adjacent to the Lincoln Center for the Performing Arts, Inc. complex.
and members Members eligible to vote who make written request for absentee mail ballots, on or before October 15th of each election year may cast such ballots which must be received no later than the date designated for in-person voting. The term of office shall be for three years and all candidates who receive a plurality of all votes cast for an office shall be declared elected. Election of officers and members of the Executive Board shall constitute their simultaneous election as officers and members of the board of directors of the Greater New York Musicians’ Club Corporation.
Submitted by Fiona Simon, Kingsley Wood, Annamae Goldstein, Charles Urbont, Bob Biddlecome, Gail Kruvand
The Executive Board reports this bylaw favorably.
BYLAW RESOLUTION #2 FOR FEB. 11
The following resolution will be on the agenda of the Feb. 11 membership meeting. (See official notice of this meeting on the back cover of this issue.)
Whereas absentee ballot requests should be made and signed by the members to which the ballots will be sent, and
Whereas several recipients of absentee ballots in the Local’s 2006 election of officers told callers that they had not requested an absentee ballot, and
Whereas the bylaw requirement that absentee ballots be sent only to members who request them was intended to prevent a de facto return to the Union’s previous mail ballot system in which members received unsolicited ballots, and
Whereas members should be able to verify that proper requests for absentee ballots have been received and,
Whereas it is in the best interests of Local 802 and its members for the Union’s elections to be decided by members with at least some familiarity with its policies and functions, and
Whereas The Local’s bylaws currently make it possible for anyone to join the Union for as little as one quarter and vote in the December election without even paying dues for the quarter in which the election is held, and
Whereas a reasonable minimum period of membership should be required for participation in the Local’s election of officers,
Whereas the Local’s Journal is mailed to all members of Local 802 and is the only source of information about the Local’s affairs for thousands of these and,
Whereas 802’s incumbent officers have control of the Journal, its content and the information which it makes available to the membership and,
Whereas incumbent officers and employees of the Union have ongoing frequent and unlimited access to the Local’s computers, membership records and other information useful in political campaigns,
Therefore be it resolved that Article VI of the Local 802 AFM bylaws be amended as indicated below with the removal of the words shown with
strikethroughs and new words shown in boldface: Unchanged Sections are designated as such.
ARTICLE VI: ELECTIONS
Section 1. Beginning with the election held in 1994 the election of officers, officials, Executive and Trial Board members and Delegates shall be held by a secret-ballot vote of the membership to be held on a date within the first week of December of each third year, and said date shall be designated by the Executive Board on or before September 15th of such year. In-person voting shall be conducted at the Local’s New York and Long Island offices.
and members Members eligible to vote who make written request for absentee mail ballots, bearing their signature, on or before October 15th of each election year may cast such ballots which must be received no later than the date designated for in-person voting. If October 15th falls on a Saturday, Sunday, or other day on which the union is not open for business, the deadline for the receipt of absentee mail ballot requests shall be on the next business day. The term of office shall be for three years and all candidates who receive a plurality of all votes cast for an office shall be declared elected. Election of officers and members of the Executive Board shall constitute their simultaneous election as officers and members of the board of directors of the Greater New York Musicians’ Club Corporation.
Section 2. Election Ballot (Unchanged)
(a) The elections shall be conducted by the American Arbitration Association of New York City which shall have the power to appoint all personnel necessary for the conduct of the elections, obtain all necessary equipment, prepare, mail and receive all absentee ballots, count the number of votes cast for each candidate and upon completion of the count to forward a certification of the results thereof to the Executive Board.
(b) The American Arbitration Association shall be authorized to adopt such rules and instructions in connection with the conduct of the elections that are not inconsistent with the Constitution and Bylaws of the Local and of the American Federation of Musicians, the Labor-Management Reporting and Disclosure Act of 1959, or other applicable laws.
Each duly nominated candidate Any member shall have the right either in person or through a representative, to inspect the membership rolls of the Local and the requests for absentee mail ballots prior to the election and to be present at the voting and counting of the vote. The requests for absentee mail ballots shall be kept by the Recording Vice-President for a period of one year after the election, and shall be made available for inspection by any member no later than October 22nd of the election year. The authorization of a representative must be in writing and signed by the individual candidate.
(d) No votes will be valid which are cast for “write-in” candidates, i.e., candidates who have not been nominated in accordance with the provisions of Sections 6 and 7 of this Article.
Section 4. (Unchanged)
Section 5. (Unchanged)
Section 6. (Unchanged)
Section 7. One hundred members in good standing may nominate candidates. Such nomination must be on a form provided by the Recording Vice-President in accordance with Section 6, above, and must be filed with the Recording Vice-President of the Local on or before October 15th of the election year and accompanied by the signed acceptance of the nominee. If October 15th falls on a Saturday, Sunday, or other day on which the Local is not open for business, the nomination forms shall be due on the next business day. The Recording Vice-President shall give each candidate a photocopy of his/her nomination petition at the time he/she files said petition. Effective January 1, 1993, the nominee shall indicate on his/her nominating petition whether or not he/she is willing to accept appointment by the Executive Board to a full-time directorship pursuant to Article I, Section 5(gg), and such information shall be reflected on the election ballots in a manner to be determined by the American Arbitration Association. Also effective January 1, 1993, the Executive Board shall appoint any elected candidate for President who had expressed willingness to accept such appointment on his/her nominating petition to the position of executive director and any elected candidate for Recording Vice-President or Financial Vice-President who had expressed willingness to accept such appointment on his/her nominating petition to a position as assistant director.
Section 8. Eligibility to Vote.
(a) In order to be eligible to vote in the election of officers, a member must have paid his or her dues due for the third quarter of the election year on or before September 30th of that year, or on or before the first business day following September 30th in the event that that date is a Saturday, Sunday, or other day on which the Local is not open for business.
(b) Any member who first joins or rejoins the Local after the close of the
second fourth quarter (June 30) (December 31) of the year preceding the election year shall be ineligible to vote in that election year’s in the election of officers. Any member who first joins or rejoins the Local from January 1st, 2009 through February 11th, 2009 shall be eligible to vote in the December 2009 election of officers, officials, Executive and Trial Board members and Delegates.
Section 9. In the event there shall be any protest
or charges by any member concerning the conduct of the election after the election has been held, such protest or charges shall be made in writing by registered or certified mail and addressed to the American Arbitration Association by such member within one week after the tally and announcement of the results have been made, setting forth the exact nature and specification of the protest, and his/her claim as to how it has affected the outcome of the election. The American Arbitration Association shall have the right to appoint an impartial arbitrator to hear complaints or protests, or charges by any member concerning the conduct of the election; and that such complaints or protests, or charges shall be considered by the arbitrator at the time they are made if before or during the election. The decision of the arbitrator shall be appealable to the American Federation of Musicians pursuant to Article 15 of the Bylaws of the A. F. of M.
Section 10. (Unchanged)
Section 11. Campaign Contributions.
(a) No member who is an employer of other members, or who is an agent or representative of any employer, or who directs, hires or engages Local 802 members on a continuing basis, or who directs or engages on a continuing basis another person or persons to hire members on his behalf, shall be permitted to make any campaign contributions whatever, directly or indirectly, to any candidate for office in a Local 802 election of officers. This is meant to include members who act as leaders, contractors, agents, Broadway producers, personnel managers, partners in a booking office or officers of a booking corporation and any member continuously engaged in hiring or supervising or assisting in the hiring of other members.
(b) No candidates shall be allowed to solicit or accept campaign contributions of any kind from any of the persons listed in paragraph (a) above or from any employer, company, corporation or other entity that employs members of Local 802.
Section 12. All information, lists, labels, access to meeting space and other Union facilities which are available (or are made available) to any member or group of members seeking Local 802 office or actively supporting such members, shall be made available by the administration, upon request, to any and all candidates for office on the same terms. All election related data, tabulations and other information provided to the Union by the agency conducting the election, before, during or after the election, shall be made available to any member who requests them, subject to reasonable charges to the member for the cost of any materials involved.
Submitted by Bill Rohdin, Jack Gale, Michael Comins and Tino Gagliardi
The Executive Board reports this bylaw unfavorably.
While some of the proposals are simply unnecessary, impractical, or too vague, others run counter to the union’s established policy to promote member participation in union elections, not to discourage it. For example, we see no reason to change the by law relating to the current cut off of June 30 for voting eligibility for new members. The absence of any reasonable justification for changing this long standing rule might also present legal problems. We also see no reason to encumber participation in the election process by disallowing email requests for absentee ballots as has been the practice in this union and elsewhere. Similarly, the proposed change in Section 11(b) without the protective language in section 11(a) is so expansive as to include side musicians who occasionally act as leaders or even orchestra chairs who “hire” substitutes. Changing the existing language without regard to the special needs of our membership could put the whole election process at risk.