Monday, January 7, 2008

Jay’s Probably Not Okay

Jay Leno’s writing his own monologues, even though he’s a WGA member. The WGA says that that violates the strike rules. NBC, Jay’s network, says the strike rules as applied contradict the Guild agreement with the studios and networks, and that the rules are therefore invalid.

Who’s right? My analysis suggests that the Guild is, though the law is complex and not free from doubt – and it’s not clear that the Guild should do anything about it even if it’s right. Here’s the scoop.

The Strike Rules

The strike rules say that WGA members can’t perform writing services for struck companies. See Strike Rule 1. Leno is writing, he’s a WGA member, and NBC is a struck company. Therefore, it seems, he’s violating the rules – if the rules are valid.

The Guild Agreement

But are those rules valid? That’s where it gets tricky.

The Guild agreement says that writing one’s own monologue is not covered by the Guild Agreement. See App. A, Art. 1.A.5.d, p. 413. The WGA says this exception only applies to non-WGA members, thus giving Jay no shelter, since he’s a Guild member. However, the plain language of the exception does not contain this carveout; the language says it applies to a “person,” not a “non-Guild member.”

So, the WGA’s interpretation appears wrong, unless they can show evidence to the contrary, such as bargaining history (discussions during past negotiations, for instance). I asked the Guild to explain their position; they said they’d do so, but they didn’t, despite multiple emails, a phone call and a page to the Guild spokesman.

The Rule Against Unilateral Changes

What this means is that the strike rules do appear to contradict the Guild agreement. So is NBC right? Not necessarily. Remember, the agreement expired Oct. 31. In the business world, an expired agreement is generally a dead letter, unless it specifies that certain provisions survive expiration (such as confidentiality language).

However, in collective bargaining, expired union agreements still have force. This is because both the union and management have a legally-imposed obligation to bargain in good faith. See 29 U.S.C. sec. 8(a)(5), (b)(3). Thus, they shouldn’t unilaterally change provisions of the union agreement even after expiration; they should discuss the matter, i.e., bargain in good faith. The leading case on this issue is NLRB v. Katz, 369 U.S. 736 (1962). (NBC supplied me with a list of others, as well.)

But – the obligation to bargain in good faith only applies to so-called mandatory subjects of bargaining, which means wages, hours and other terms and conditions of employment. See 29 U.S.C. sec. 8(d). Therefore, the prohibition against unilateral modification of the union agreement generally only applies to mandatory subjects, because the prohibition in based on the obligation to bargain, and the obligation is limited to mandatory subjects. See 1 John E. Higgins, Jr., The Developing Labor Law, sec. 13.II.A, at 773-75 (2006).

And, the issue of writing one’s own monologues does not seem to be a mandatory subject, although there may be some doubt here. Cf. 2 Peter Lareau, Nat’l Labor Relns. Act: Law and Prac., sec. 13.04[3], pp. 13-62.2 et sq. (2007). But, in any case, the rule against unilateral changes applies only where the change is “material, substantial and significant.” See Lareau, v. 2, sec. 12.02[2], p. 12-8 at n.17.1. This certainly doesn’t seem to apply to writing one’s own monologues, as contrasted with the broad scope of the Guild agreement (indeed, the whole subject of late-night shows is shoved in an Appendix at the back of the Guild agreement).

In any case, NBC disagrees, and says that the prohibition against unilateral changes applies to permissive (non-mandatory) subjects as well as mandatory ones. However, conspicuously, they wouldn’t explain why or offer cases on point. Now, one of the cases they cited to me on another issue does, arguably, support their position; it prohibits unilateral changes based on agreement of the parties, and doesn’t discuss the permissive nature of the matter that was changed. See Communications Workers Local 1170 (Rochester Telephone), 194 NLRB 872, 875 (1972), enf’d, 474 F.2d 778 (2d Cir. 1972). Also, I found at least one other case that does enforce a non-mandatory provision, but this was done because it was a provision that seemed specifically intended to survive expiration of the agreement. See UAW v. Yard-Man, 716F.2d 1476, 1482 6th Cir. 1983); 1 Higgins, sec. 13.II.A, at 775 n.75.

Most cases, though - including cases more recent than Rochester Telephone – appear to limit the prohibition to mandatory subjects. See 1 Higgins, sec. 13.II.A, at 773-75 (citing cases). If this is the rule – which is not a certainty - it means that the Guild can impose strike rules that contradict the Guild agreement. And that means that Leno is prohibited from writing his own monologues.

In summary, the strike rules probably contradict the Guild agreement, but the Guild appears to have the right to unilaterally change the expired agreement in this way, since writing one’s own monologue does not seem to be a mandatory subject or specifically intended to survive expiration of the agreement, and is a minor matter in the context of the agreement as a whole.

Should the Guild Impose Discipline on Leno?

For violating the strike rules (if such is the conclusion), the Guild can, apparently, fine Leno or even expel him from the union. The latter would be ridiculous. Even fining him seems ill-advised, because the violation is minor and unusual (writing jokes to be delivered by oneself is pretty specialized).

Also, Leno’s a supporter of the strike, and his first monologue was even a criticism of the companies and in support of the Guild. In addition, he went above and beyond the call of duty by paying the salaries of his non-writing staff while the show was off the air, a move the Guild applauded.

On the other hand, Leno does appear to be violating the rules, and it’s hard to set one standard for him and another, higher standard for everybody else. Still, does the Guild really want the PR backlash, especially in the face of the unclear nature of the law? It’s a hard call.

Disclaimer

I’m not a labor lawyer, and this article is based on about 12 hours of solo research, not the weeks of multi-lawyer research by labor lawyers necessary to produce a fully fleshed-out legal brief (which could run to 25-35 pages or more). In any case, this article is for informational purposes only, and is not intended as legal advice; if you need to know the answers, to the extent determinable, hire a labor lawyer. Also, this article expresses my own opinion, not that of the law firm with which I’m affiliated or its clients.

This article first appeared on the Huffington Post on January 7, 2008.

1 comment:

  1. You say the legality hinges on the union's right to change the constitution in a strike.

    What about the right of Jay (and Jon and Stephen and Bill too) as individuals to free speech?

    Should the union have the right to override the constitution with arbitrary rules?

    In an interview, WGAe President Michael Winship said Jon Stewart can't even write questions in advance for a guest.

    ReplyDelete