July 15, 2013 5:00am PT by Jonathan Handel
Joan Rivers Faces Potential Fine, Expulsion in WGA East Trial (Analysis)
With the WGA East sending Joan Rivers off to a trial board for alleged violations related to Fashion Police, the star will be facing what’s likely to be a tough tribunal – and a fine that could be as high as all the money she’s made on the hit E! show in the past year, plus expulsion from the union.
What’s more, she might not be able to bring an attorney when she faces off against those who accuse her of writing Fashion Police jokes while her union writers are on strike. The WGAE rules say that a member at a trial board “may be represented by a Current member in good standing,” but there’s no provision for lawyers.
And yet, as tough a jam as it may seem, Rivers, a WGA member, might have some defenses -- and might even be able to prevent a hearing from taking place at all. Let’s take a look at the accusations against Rivers, the procedure that comes next and her possible arguments.
The guild hasn’t released the charging document. However, Michael Winship, WGAE president, previously said in a statement: “The question of whether [Rivers] has, in fact, violated our working rules will be decided by the trial board. We cannot pre-judge the outcome, but we can say that it is a very serious matter when a member is accused of writing and showrunning on a non-covered show and continuing to do so after the other writers have decided to go on strike for reasonable pay and benefits.”
Strangely enough, the WGA West’s and East’s current strike/unfair lists do not include E!, Rivers or Rivers' company, Rugby Productions. However, there’s little doubt that the WGA West has facilitated a walkout against the producers of Fashion Police, whomever exactly they might be. Rivers and E! have denied that Rivers plays any role in producing the show.
In any case, a strike is not required in order for there to be a violation of WGAE rules. Working Rule 8 provides, “No member shall accept employment with, option or sell literary material to, any person, firm or corporation who is not a signatory to the applicable Minimum Basic Agreement.” Rule 2 broadens the other rules: “Each member shall comply with these Rules in spirit as well as in letter.”
And the penalty? “Violation of this Rule (8) shall automatically subject the member to a fine, the maximum amount of which shall not exceed one hundred percent (100%) of the remuneration received from such non-signatory.”
Art. X.B.1(b) of the guild’s Constitution says that charges must be filed not later than one year after the violation occurred or could reasonably have been discovered. That might limit the fine.
In addition, though, Art X.A.1 adds to the pain: A guilty member “may be suspended, declared not in good standing, expelled from membership in the Guild, be asked to resign, be censured, fined or otherwise disciplined or any combination of the foregoing.”
The procedure is complex: The trial board is appointed within 30 days after the matter is referred to the guild’s Disciplinary Committee, which happened last week. After that, a copy of the charge is mailed to the member. The trial board, by majority vote, decides on guilt or innocence and penalty, if any, after the hearing.
Next, the guild’s Council -- its board of directors -- reviews the trial board’s report at the first or second regular Council meeting following receipt of the report. The Council can affirm, reverse or modify the trial board’s decision, or even order a new trial. Then the member can appeal to the membership of the Guild at the next full membership meeting, but the penalty imposed stands until and unless reversed by the members. Finally, the Council can once again consider the matter, and can decide by a 2/3 vote to reduce or terminate the penalty.
Is Rivers writing on or showrunning Fashion Police? That might emerge as a critical question. For one thing, she’s not listed in either capacity on IMDb records. Presumably, staff writers on the show will testify that she is nonetheless performing those functions, but there’s no way to be certain without access to the evidence.
However, the question of writing is not as simple as it might seem. For shows like Fashion Police, the guild’s collective bargaining agreement excludes “material written by the person who delivers it on the air unless such person has written material for delivery by another person as well as by himself/herself on that particular program.” So, if Rivers writes only for herself, she’s not performing covered writing services.
As to showrunning, that appears to be outside the guild’s purview, particularly if the member isn’t also writing. If so, then Rivers probably can’t be disciplined for showrunning on a non-covered show.
Moreover, although Rivers' manager and E! have denied that she has management authority over the show, she might be better served by arguing that she is a showrunner and does have influence over whether the show signs with the WGA or not. The WGA argues that she is, and does, whereas Rivers has publicly said that she doesn’t have such influence.
That’s ironic, because if she is a showrunner and does have this influence, she can argue that the guild is bringing charges against her in order to coerce the show into signing with the guild. That’s improper under federal labor law, according to one management-side labor lawyer THR spoke to. That might allow Rivers and E! to bring a complaint with the National Labor Relations Board – and perhaps ask that the guild trial process be enjoined.
Another labor lawyer disagreed with that analysis, and suggested that a federal labor law claim would be a stretch, at best. This lawyer added that the NLRB is unlikely to pursue a claim where the law is unclear.
One thing that wouldn’t help Rivers, according to several experts, is to resign from the union or elect financial core status (which is essentially equivalent to resignation). Since the alleged violations occurred before any resignation, union discipline such as fines would be enforceable even after resignation. In any case, Rivers has not suggested that she would resign.
So, the whole matter is complex. Can the guild police Fashion Police, or does the union’s legal proceeding amount to an ill-fitting suit? Only time will tell.
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Email: jhandel99 at gmail dot com