|REASONS FOR THE PROPOSED BILL OF RIGHTS AMENDMENT
This is easier to follow if you turn to the Bylaws on page 483 of the 2004 ATA Membership Directory, or page 458 of the 2003 directory. If legal English is not your strongest language, you may read the entire text of the section in Portuguese...
ARTICLE III is dedicated to Membership and defines the Classes in Section 1, Eligibility in Section 2, and Rights and Privileges in Section 3, the Section we seek to amend ever so slightly. Bear in mind that a right is a legal claim to freedom of action. It is by joining the ATA in the first place that an eligible person acquires rights, although privileges may be extended to nonmembers. In every case the language makes it clear that "members have the right" to perform various actions such as attend meetings, use facilities and receive publications "at special rates." These last three words imply that nonmembers may also--as a privilege-attend meetings, use facilities and receive publications--albeit not as cheaply. Now we come to the interesting part:
"They also have the right to take certification examinations, to vote, to hold association office, and to serve on the Board of Directors and all committees of the Association." There can be no question but that the pronoun "they" in the above declarative statement refers to ATA members. No one can seriously suggest that someone like, for instance, New York Attorney General Eliot Spitzer, who is not a member of the ATA, can serve on the Board of Directors or some committee of the Association, vote in our elections or hold association office. By the same token neither he nor anyone else can have the right to take certification examinations unless the bylaws are so amended as to grant him that right--that legal claim to freedom of action.
We (the Freelance Party) are interested in preserving these latter four rights as what they always were--pertinent rights which extend only to ATA members. We have nothing to gain--and plenty to lose--by trying to exclude nonmembers from conferences, certain facilities and publications. This is especially true if they are willing to pay a premium. For this reason, and because we need another 29 signatures or Board support to place the measure on the ballot, we are offering a narrower version of the amendment which unequivocally preserves the privileges we grant to nonmembers (access to some facilities, publications and conference attendance) without sacrificing the pertinent rights clearly and explicitly reserved to actual members in good standing since 1983.
The simplified language is offered below and posted at www.Freelanceparty.org, where you click on the link for the Bill of Rights amendment, #1 in the list, to see the text. This brings us to an explanation of why we bother to offer such an amendment in the first place. We offer this amendment as an alternative to possible legal action which could cost our Association money and goodwill.
|In 1988 the ATA Services Directory, by a "gentleman's agreement" excluded listings of associate members, although associate members continued to be listed in the Membership Directory
offered only to ATA members. The ATA Services Directory soon became a listing
on the Internet, yet only in November of 1997--when directly threatened with legal action--did the ATA Board of Directors relent and allow associate members this right granted to active members and not withheld from associate members by item
c in ARTICLE III, Section 3 of the bylaws. For nine years the rights of
associate members were quietly infringed, until Czech translator Radovan
Pletka made an issue of the cause at the San Francisco convention.
In June of 2001 the ATA Chronicle published the full text of a Board resolution to impose a number of changes affecting member rights and privileges:
1. Changing the name of the credential;
2. Creating impediments to associate members' exercise of their right to take certification examinations;
3. Withdrawing credentials already earned and valid "as long as you remain a member of the ATA" unless members attend ATA functions or incur other added expenses;
4. Offering certification testing to nonmembers, when the original intent published in the December 1981 ATA Chronicle was clearly to restrict the right to members.
Only the first of these four proposals was put to a vote by the membership. The others to Board seeks to impose the way its predecessors restricted associate member access to the online Services Directory. Yet all four of these proposals ought to be formally placed before the members and voted as amendments to the bylaws since they directly affect our fundamental rights.
We can imagine three possible outcomes:
1. A lawsuit or another threatened lawsuit to preserve the exclusive rights of ATA members.
2. Prosecution under the antitrust laws for unauthorized changes to a nonprofit trade association rules which benefit one class (corporate translation company executives and professional association managers) to the detriment of another class (independent translators who work primarily as subcontractors).
3. An amendment to the bylaws which simply reinforces the attribution of pertinent member rights in a way which admits of no second interpretation.
Three Possible Consequences
A LAWSUIT: Mr. Pletka and his attorney were very mild in their demands--associate member rights plus a discount (later waived) which could not possibly have equaled the amount he spent on the lawyer's fee. The legal argument, however, mentioned lost revenues suffered by associate members despite their having paid full dues for nine years. Had the issue gone to court even then, the ATA could have lost a considerable sum once the possibility of a class-action was perceived by attorneys. A Translators Guild populated by labor activists could possibly interest attorney-activists in pursuing such a course.
ANTITRUST PROSECUTION: Many former accredited translators are now certified owners of companies that outsource the actual labor of translation. To grant these people retention of a credential by virtue of their customary prospecting for new talent at trade association conventions is doubtless an advantage. Yet to threaten a professional translator with lost revenues due to revocation of credentials for not attending those same meetings or otherwise incurring expenses is to place the independent translator at a disadvantage financially and by way of ability to compete in the same marketplace. This unequal treatment of conflicting financial interests carries danger. Third-World pauper labor is already an advantage to the language corporation and an outsourced disadvantage to the workaday independent professional--even without dues-free certification. If to this situation we add mention of interlocking directorates--a single individual in charge of the nominating committees of both a national Translators Association and a National Judiciary Interpreters Association, for instance--ambitious prosecutors and attorneys for labor causes might develop an interest in the situation from an antitrust law perspective. This is especially true if unopposed candidates friendly to a given agenda were the result. [In 1990 the ATA and several other associations were investigated by the FTC over activities which were trivial by comparison, yet cost ATA something on the order of one half million dollars in legal fees and expenses.] Another such investigation might even raise the question of whether non-competition clauses included in so-called confidentiality agreements might bear some resemblance to market allocation. Clearly they would have a greater impact on freelance translators residing in the U.S. than on those living outside the jurisdiction of U.S. courts.
AMENDMENT BY VOTERS: If 50 voting members or a handful of Board members will sign and fax the new, improved Bill of Rights amendment to ATA Headquarters by September 23, 2004, ATA members will be able to make their own declaration as to the original meaning of the second sentence in the Rights and Privileges statement. If two-thirds of the voters approve the amendment, we can forget all about abridgment of rights, loss of revenue, unequal treatment and other such judgments which might result from forcing a hasty and ill-considered Board resolution. If the measure fails, then the appeal to democracy may at least serve as a mitigating circumstance cited to attenuate awards for damages or imposition of penalties should the matter subsequently end up in the courts.
THEREFORE, WE OFFER to the thoughtful consideration of all voting members the following amendment to the bylaws of the American Translators Association.
Section 3 - Rights and Privileges, Paragraph a, to wit:
a. Active members have the right to attend any of the Association's membership meetings, use all of its membership facilities, and receive all of its regular publications free or at special membership rates. They also have the right to take certification examinations, to vote, to hold Association office, and to serve on the Board of Directors and all committees of the Association.