SAG-AFTRA President's Counsel Criticizes Election Challengers for "Threat of Baseless Litigation"

Getty Images; Jon Kopaloff/FilmMagic
SAG-AFTRA president Gabrielle Carteris; MembershipFirst candidate Matthew Modine

The letter comes in response to a Monday missive that renewed memories of past litigation.

The SAG-AFTRA election became a battle of lawyer letters Thursday as counsel for president Gabrielle Carteris and for seven other leaders of her Unite for Strength/USAN slate issued a missive blasting MembershipFirst candidate Matthew Modine and members of his slate for “once again attempting to interfere in SAG-AFTRA’s democratic process and elections by threatening or supporting the threat of baseless litigation against SAG-AFTRA” either directly or “in concert or coordination” with others.

The letter comes in response to a lawyer letter sent to the union Monday on behalf of unnamed “significant SAG-AFTRA Union members” that demanded that SAG-AFTRA strike Carteris from the ballot for alleged election violations or else get sued. Thursday’s reply was scathing.

“This tactic follows a long-term pattern of conduct in which you and people working in concert and coordination with you have filed or supported the filing of frivolous lawsuit after frivolous lawsuit,” said the letter, referencing a history of over a decade of unsuccessful MF-affiliated lawsuits that included SAG president Alan Rosenberg suing his own union in 2009.

“As current and former fiduciaries to the Union by virtue of your service on its board(s), you owe a duty of loyalty to SAG-AFTRA and have an obligation to protect the Union and its membership,” continues the letter, written by Pamela Jeffrey of Levy Ratner.

It adds that “Violating these duties to further personal political ambitions and vendettas can be construed as a violation of your fiduciary duty,” but “can be construed” is vague and the letter does not cite any cases in support. However, in response to an inquiry, Jeffrey pointed to a statute that requires union officers “to refrain from dealing with [the union] as an adverse party,” adding that this statute is broadly construed according to a federal court of appeals case applicable in California.

The letter then says that unless the recipients cease and desist, Carteris and the seven others “will consider … legal action against you and other current and former board members.”

“I was shocked and amazed by the letter,” one of the 20 recipients told The Hollywood Reporter on condition of anonymity. “It’s baseless, clearly an attempt to intimidate candidates running in the election — and in fact I had nothing to do with the original letter.”

The author of that Monday letter, Pierce Bainbridge’s Robert E. Allen, said in a statement to THR that Jeffrey had failed to “substantively respond[] to the specific accusations [in the Monday letter] or even deny[] them,” and instead was attempting to goad Allen into revealing the identity of his clients. He added that if Jeffrey thought any of the addressees of her letter were represented by Allen, she violated a Bar rule that prohibits a lawyer from communicating directly with a represented party.

The Initial Allegations — Confidentiality

Allen’s Monday letter that prompted the Thursday reply alleges that Carteris used “insider and highly confidential information,” in that her official candidate statement mentions the union’s new Netflix deal. That pact was indeed not public at the time Carteris submitted her statement (as statements were due June 28 and not revisable thereafter), but by the time the statements were posted, July 24, the deal had already been announced. The letter does not address this nuance.

Asked to explain, Allen said, “Others presumably not authorized to know of that information had to have seen it as part of the election process.” It’s not clear whom he means, since presumably only union Governance staff see the statements before they’re released. “Further, and more importantly, how could she know on June 28 that the deal would pass? What if the board rejected the deal?”

Bargaining and Ratification

Also a target of the letter is an element in Carteris’ statement regarding Netflix: “I’ve championed legislation to eliminate sexual harassment, ageism on IMDb, and to protect members’ digital image/voice rights. Negotiated a direct, comprehensive agreement with Netflix …”

Does the second sentence imply that Carteris herself negotiated the Netflix deal? If so, says the letter, this violates Article XI(A) of the union’s constitution, which the letter claims requires a negotiating committee to handle bargaining. But that Article actually only requires a committee for national multi-employer agreements or others that the union board designates, neither of which encompass the Netflix pact.

“How could the National Board not designate an agreement with one of the largest employers of SAG-AFTRA workers in the country?” responded Allen. “While I do not know for sure, I heard rumors that the Netflix proposal was brought to the Negotiations Committee for approval and recommendation to the National Board. Why would the Netflix proposal go through the Negotiations Committee if the Netflix agreement was not designated?”

According to sources, the completed Netflix pact did indeed go to the Negotiation Committee for review — but that committee played no part in the negotiations. And in any case, nor did Carteris negotiate the agreement: THR has learned that the deal was negotiated by staff.

The Monday missive also asserts that “Carteris and the National Board’s failure to submit the Netflix agreement to the SAG-AFTRA membership for ratification” violates Article XI(B)(2) of the constitution, but that Article doesn’t explicitly require sending anything to the membership. A preceding section, Article XI(B)(1) does, but only for national multi-employer agreements, which the Netflix deal isn't.

Nor does federal law require member ratification: “There is nothing in the Act which requires that collective bargaining agreements be submitted to the membership for ratification,” says a Department of Labor website. “Procedures concerning this matter would be controlled by the constitution and bylaws of the union involved.”

“[Article] XI(B)(2) specifies when an agreement does not need to be sent out,” responds Allen. “The clear implication is that it needs to be sent out for ratification by the membership if the adverse is true,” he argues. “[Articles] XI(B)(1) and (2) have to be read together, and it does not make sense that an agreement ‘to be used in widespread or industry-wide application affecting a substantial portion of the membership’ would not need to be ratified by the membership.”

Videos

The letter also asserts that union videos featuring Carteris, displayed on the SAG-AFTRA website and allegedly in membership areas of the union’s headquarters, constitute impermissible use of union funds to promote Carteris’ candidacy. But the letter doesn’t cite any particular videos nor explain why the union president can’t lawfully communicate with members about union business. And a brief search of the website turned up few videos with Carteris, although there is a podcast series hosted by Carteris and national executive director David White featuring such topics as the commercials contract, technology, sexual harassment and more. There are many more videos on the union’s YouTube channel, of course, addressing similar topics.

“[Federal labor law] makes clear that a union can not advantage one set of candidates over an other,” says Allen. “Clearly Ms. Carteris has been advantaged by videos of her playing in the Membership common areas. A video of she and one of her endorsers (Alan Alda) on the front page of the SAG-AFTRA website actually announcing the beginning of the Elections. A promotional video of Ms. Carteris using the actual SAG-AFTRA video intro.”

Backstory

Ten years after the now-incumbent UFS party and its New York-based USAN affiliate wrested control of SAG from MF, the battle still rages on. A decade since that power shift, which set the union on the course to merge with AFTRA, and seven years since that merger, UFS remains in power and touts both its record and vision of the future, while MF — which has roots in predecessor parties — remains critical of the merger, UFS’ record and vision, and offers a competing view. Factionalism, especially in Los Angeles, remains high.

As in past elections, independents are running as well, but they usually have a tough time beating slate candidates.

This year, national president and secretary-treasurer positions are up, both of which carry two-year terms. Forty-five national board seats are up as well (out of an 80-member board including officers), along with all local officer, local board and convention delegate positions.

The candidates for national president are Carteris, Modine, incumbent secretary-treasurer Jane Austin (former MF), Abraham Justice and Queen Alljahye Searles. Running for national secretary-treasurer are Jodi Long (MF), Camryn Manheim (UFS), Chuck Slavin (hyperlinked because he appears to be the only non-slate candidate with a candidacy website) and Rob Stats. The executive vice president and other vice presidents will be elected at the union’s convention in October.

National officer ballots were mailed to all eligible SAG-AFTRA members nationwide on July 29, with a return deadline and tabulation on Aug. 28. Election results are expected to be announced that evening. The same schedule will apply to the Los Angeles and New York Local elections. Schedules vary for other local elections.

Voter guides for the national officer elections and for each local with contested elections can be found on the 2019 SAG-AFTRA Candidate Elections webpage. For a more party-oriented view: MF slate and UFS slate / USAN slate.

Aug. 2, 1:40 a.m. Updated to include Jeffrey's response regarding statute and case law.