WBAI-FM's Union Fights Secrecy at Pacifica

Lyn Gerry (redlyn@ix.netcom.com)
Fri, 20 Sep 1996 04:45:08 +0000

Workers at WBAI-FM Demand An End To Secrecy At The Pacifica

by Lyn Gerry
Former staff member and
UE Steward at KPFK-FM

September 20, 1996

On July 11, 1996 the Committee to Take Back KPFA, a San Francisco
Bay Area community group filed a complaint with the Corporation For
Public Broadcasting (CPB) on Pacifica Foundation's failure to comply
with laws requiring Board of Directors Meetings to be open to the public.
Pacifica receives $1.5 million annually from the CPB, which is funded by
Congress and distributes money to qualifying public broadcast entities.
Pacifica operates 5 non-commercial radio stations including KPFA-FM
in Berkeley, California.

Workers at WBAI-FM, Pacifica's New York station, have now joined the
demand for open and accountable decision-making at Pacifica, and
are considering legal action. Workers at WBAI are represented by
local 404 of the United Electrical Radio and Machine Workers of
America(UE). UE also represents workers at KPFA-FM and KPFK-FM,
Pacifica's Los Angeles station.

Since the beginning of 1995, Board meetings have been held behind
closed doors. Pacifica's Executive Director, Pat Scott, has claimed these
meetings are "retreats," and thereby exempt from the law. To meet
the criteria of a "retreat," however, policy decisions must not be

A number of controversial decisions appear to have been made in
these retreats, including the decision to hire counsel to pursue the
removal of unpaid staff from the collective bargaining units at
Pacifica stations. Various financial allocations, including pay
increases for top Pacifica management and contracting with The
American Consulting Group, who are listed as "union-busters" by the
AFL-CIO, appear to have also been made.

The annual budget authorization process, normally done at the close
of Pacifica's fiscal year in September was also done behind closed
doors in 1995. The upcoming Pacifica National Board Meeting,
to begin on September 26 in New York, has again been scheduled as
a "retreat."

The following two letters have been sent to the Pacifica National Board
and the WBAI Local Board.

WBAI/UE Local 404
September 18, 1996

All Pacifica National Board Members
All WBAI Local Board members

Dear Local Board member:
Attached you will find a letter from an attorney with whose name
you may be familiar. It is about the very serious topic of actions
which are endangering the entire Pacifica Foundation.
We believe that:
[] Pacifica National Board meetings must be open, as per law.

[] Minutes of all Pacifica National Board meetings must be made

[] The Pacifica National Board must stop its attacks on the Unions in
the Pacifica stations.

We know you share our concern for the continued survival of the
Pacifica Foundation and we know we can count on your good will in this

Yours truly,

R. Paul Martin
Chief Steward
WBAI/UE Local 404



Van Lierop, Burns & Schaap, LLP
Attorneys and Counsellors-at-Law
320 Convent Avenue
New York, NY 10031-6331

September 16, 1996

From: William H. Schaap
Re: CPB Guidelines and Pacifica Foundation Board Meeting

You have asked for our legal opinion regarding the plans
of the Pacifica Foundation to hold a board meeting in the near future, for three and a half days of
the four days of which they intend the meeting to be closed to the public.
You have also asked how this might impact on CPB funding and what
legal remedies, if any, might be available to concerned citizens.

The Law

The law is clear. Section 396(k)(4) of the Communications
Act, quoted in the CPB guidelines as to Open Meeting Requirements,
states, in pertinent part, that "Funds may not be distributed ... to the
licensee or permittee of any public broadcast station, unless the
governing body of any such organization ... holds open meetings
preceded by reasonable notice to the public." [Emphasis added.]

The law makes the following exceptions: "... matters
relating to individual employees, proprietary information, litigation and
other matters requiring the confidential advice of counsel,
commercial or financial information obtained from a person on a
privileged or confidential basis, or the purchase of property or services
whenever the premature exposure of such purchase would
compromise the business interests of any such organization."

If portions of any meeting are closed pursuant to the
exceptions, an explanation must be made public within a reasonable
time after the meeting. Any such explanations must be
made a part of the annual certification report to CPB, signed by two
specified officials of the organization.

This Particular Case

It seems highly unlikely that the Pacifica Foundation
board could be contemplating three and a half days of matters that fall
within the exceptions. Certainly general policy discussions relating to
unionization in general, general status of paid versus volunteer staff,
and related matters would not seem to fall within the exceptions.

This being the case, it seems hard to understand why the
Foundation has already made such an announcement, unless they
believe that the regulations in question will not be asserted by
anyone, or, conceivably, that the CPB will ignore any violations of the

Possible Remedies

The difficulty in considering your possible remedies is that, if
nothing is done before the board meeting, you may be limited to drastic
remedies only. That is to say, if improperly closed board
meetings take place--assuming you can prove, perhaps through
someone who was there--you would have a very strong case to
prevent CPB from making any further grants to Pacifica
Foundation. Putting aside the question of who would have standing to
bring a suit against CPB, which may be complicated and which we have
not researched, the appropriate party could sue to enjoin CPB from
giving any money to Pacifica. In this, ironically, you would probably,
almost immediately and whether you wanted to or not, find yourselves
with willing allies from the right. The most reactionary forces in
Congress, who share virtually none of your views, would also leap
at the chance to cut off Pacifica's funding; you might find yourselves
on the same side with amici curiae you never expected.

It is possible, although quite difficult, given the time constraints and
the costs involved, to take some action before the meeting begins.
You would have to commence a suit against both Pacifica
and CPB by extraordinary means, such as an order to show cause,
seeking to enjoin Pacifica from proceeding with a closed meeting on
the ground that the board has a fiduciary obligation not to
jeopardize its funding in such a gross and wanton manner. Indeed, it
seems likely that the individual board members of the Foundation
ought also to be named as individual defendants in
such a case. I find it hard to believe that Pacifica would not
capitulate to such an action, since opening the meetings to the public
does not, to say the least, obligate the board to vote as a
majority of the public in attendance might desire. On the other hand,
if the board does not believe that you are serious, and will not budge
until you actually file suit, this is the only way you could
do so that gave them the option to keep the funding. Were you to bring
suit after a closed board meeting, which might be much easier and
less expensive for you, there would be no decision
possible, if you win, than the cutoff of their funds. Whether you are
willing to create such a situation is, of course, up to you.

I hope this memorandum gives you some guidance.