Monday, June 25, 2007

Civil Disobedience and African-American Delegates

Robert Levine, the AFM Observer, provides an outstanding service to the entire membership with his blog—the live updates during the convention were particularly valuable, and I know several who were glued to their screens awaiting his latest post.

I essentially agree with his analysis of the Montreal issues, but not with his take on the issue of African-American merged-local delegates. I think he imposes a lofty standard of "civil disobedience" on the AFM delegates:

"The proper course of action would have been for the delegates to demand, as part of letting the merged-locals delegates vote, that the AFM immediately send a letter to the Department of Labor informing them of the convention's action and demanding an investigation."

Even Henry David Thoreau (the modern founder of "civil disobedience") would not meet that standard:

"I do not wish to quarrel with any man or nation. I do not wish to split hairs, to make fine distinctions, or set myself up as better than my neighbors. I seek rather, I may say, even an excuse for conforming to the laws of the land. I am but too ready to conform to them." (Civil Disobedience)

If the "law of the land" made sense, the delegates would be but too ready to conform to it. The fact is, that the "law of the land" was never cited, was not adequately explained, and remains totally misunderstood.

The delegates were told that "the law" allowed merged-local African-American delegates to participate in all aspects of conventions (even running for national office) except voting for officers (and that the bylaw permitting this—Art. 17 § 4(b)—was perfectly "legal," so long as merged-local delegates were not allowed to participate in voting for officers). Thus, an African-American merged-local delegate could run for national office, but not be allowed to vote for himself or herself (or anyone else) in that election.

As far as the delegates know, "the law of the land" is entirely arbitrary.

Robert Levine contends that the reasoning of the "law of the land" is that any member of the union has an equal right to run for local office. This cannot be the rationale for the law. By this logic, Art. 17 § 4(b) of the AFM Bylaws would be illegal on its face (and it's not). By this logic, it would be impermissible for merged-local delegates to run for office, vote for resolutions, and participate in conventions (and it's not). By this logic, African-American merged-local delegates should not exist at all (and lawfully, they do).

Thus, with the AFM's newfound "All You Have To Do Is Ask" philosophy, I have posed these questions to Jeff Freund, AFM General Counsel, and await a response—"for I will cheerfully obey those who know and can do better than I."


Bruce said...


I disagree with your contention that the Article 17 Sec. 4(b) delegates are legal.

The problem with the set-aside African-American delegate positions is that Sec. 401(e) of the LRMDA provides that every member in good standing is eligible to run for union office, subject to "reasonable qualifications."

The courts have spent a good deal of time slapping down unions over candidacy restrictions. The usual restrictions concern meeting attendance requirements. See Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50 L.Ed.2d 502 (1977) as an example (union bylaw requiring candidates to have attended half of the general membership meetings in the last three years held to be illegal).

During the runup to the 1989 AFM convention in which the 1987 election was rerun, the DOL instructed the AFM that as to that election the racial qualification for the extra delegate provided in Article 17 Sec. 4(b) of the AFM bylaws was not a "reasonble qualification." The AFM did not, and inded could not argue that racial qualifications were reasonable in 1988 and cannot argue that they are now.

The way it was presented in 1988 was that the racial qualifications were impermissible in a DOL-supervised election. The way it was presented to the AFM in 2007 was that racial qualifications were impermissible.

It might be argued that elections for the position of voting delegate to the international convention is different than elections for local office. The law applies whenever a position is required to be elected by secret ballot. See Chao v. Amalgamated Transit Union, Afl-Cio, Clc, 141 F.Supp.2d 13 (D.C., 2001).

I would note that the non-voting delegates from the player conferences are not required to be elected from the general membership of the union. If they voted, they would be.

Whether illegally selected delegates may participate in activities other than the election of AFM international officers is beside the point. The issue here is whether illegally chosen local delegates may elect AFM officers, something the DOL has shown an interest in in the past. The convention stood on what it felt was principle and left the AFM open to being slam-dunked by the DOL, something the AFM can ill afford at the moment.

I've had a very few gripes about Jeff's presentations at the convention (for example his inadequately researched position given to the Law Committee that ICSOM and the RMA were creations of the AFM), but I felt his explanation to the convention on this issue was spot on. Delegates jumped at the chance to grandstand on the issue and the convention got swept away. Stampedes rarely lead to good results.

Bruce Schultz
Local 94
Tulsa OK

June said...

Reading Bruce Schultz's comment about the DOL, legal opinion and the African American delegates, it seems that maybe the close elections in 2001 and 2005 should have been re-run. Tom Lee won by only 11 votes in 2001 and Sam Folio won by only 16 votes in 2005. It is possible that those votes could have made a difference in those elections. I remember in 2001 that Chicago, St. Louis and Washigton DC were supporting Tom Lee and all three had African American delegates. It is possible that there were more locals but I can't remember. Tom Lee and Sam Folio would have been the one's to challenge this is their elections had gone the other way. My point is that maybe we wouldn't be in as bad a finacial and leadership situation suffering abuses under Tom Lee if this ruling had been applied.