by STEVEN LEIGH MORRIS
[dropcap]On[/dropcap] July 21, 2016, Actors’ Equity Association, the national stage actors/stage managers’ union, filed a Motion to Dismiss the lawsuit Ed Asner, et al v. AEA, in the California Central District Court, Western Division. The Asner suit was filed by union members and two non-union plaintiffs against AEA.
For the uninitiated, here’s some background on the 30-year dispute between AEA and its Los Angeles members.
In the 1989 out-of-court settlement of a prior lawsuit between AEA members and its union, AEA permitted its actors to work for expense stipends in theaters of up to 99 seats that were also bound to ticket price caps, in order for Equity actors not to be financially exploited. The Asner suit was filed by union members (including Ed Asner, Amy Madigan, Vanessa Stewart, French Stewart, Tom Ormeny, Maria Gobetti, Lawrence Pressman, Veralyn Jones, Gary Grossman), and two non-Equity plaintiffs (local theater producers Simon Levy and John Flynn). The plaintiffs are fighting for the rights of union members to be cast in 99-seat theaters for stipends, whereas the union is insisting that such theaters must now pay union actors minimum wage for rehearsals and performances, which would increase production costs at these tiny theaters up to five-fold — resulting in the closure of such theaters or their engagement of non-Equity actors. The union has offered a few workarounds, such as a membership company exception, a “self-produced” exception, and a 50-seat theater exception. However, under the 99-Seat Plan, the union provided health and safety protections for its actors. Under its new plan, AEA offers no such protections in any theaters that don’t adhere to its minimum wage standard.
The Plaintiffs have until August 4 to file a response to the union’s Motion.
In what may be the mother lode of ironies, with hundreds of hundreds of judges in the Central District, Western Region, the Asner case has landed the same judge, Terry J. Hatter, Jr., who heard the Salome Jens, et al v. AEA case back in 1989.
For the most part, the Motion doesn’t disagree with the plaintiffs’ findings, i.e. that starting in 2013, AEA lodged an administrative campaign to eliminate the 99-Seat Theater Plan, which had been in effect for almost 30 years — despite a Review Committee (an equal blend of plaintiffs or their delegates from the 1988 lawsuit, and AEA representatives) that was intended to act as a safety net for the Plan. Nor does it disagree with the assertion that it was biased in the support of its “promulgated” (replacement) plan for the 99-Seat Theater Plan. Nor does it contest the 67% repudiation of its new plan by local membership in a 2015 advisory referendum. Rather, it argues that all of these factors are irrelevant or have no legal standing, and that it abided to the letter of the 1989 Settlement Agreement.
The Motion stands on two pillars:
I. That the union’s arguments meet an “applicable standard for the motion to dismiss,” and
II. That all of the plaintiffs’ claims should be dismissed out of hand
Under Pillar I, the Motion argues that the plaintiffs “infer the possibility of misconduct” but do not prove it. That alone, the Motion asserts, is grounds for dismissal.
The Motion then goes on to suggest that the Court should not take jurisdiction of any case that deals with a labor union’s internal workings, unless there’s evidence of fraud, or other violations of federal law — which the Motion asserts is not the case.
Furthermore, the Motion says, “courts grant unions ‘substantial deference’ in the interpretation of their own internal union documents… and unions have broad latitude in adopting ‘reasonable rules’ to govern the institution and the responsibilities of its members.”
The Motion also argues that plaintiffs Simon Levy and John Flynn, neither being AEA members and both being “employers,” have no standing in a complaint about internal union processes, and that the case should also be dismissed because litigation was partly funded through a GoFundMe campaign, which included contributors who were non-union members.
In short, the Motion instructs the court to mind its own business. Then it moves on to Pillar II: why all — not some, but all — of the plaintiffs’ arguments should be dismissed.
Let me count some of the ways:
The “breach of contract” (of the Settlement Agreement) argument doesn’t pass muster, the Motion claims. How so?
First, the Plaintiffs’ say that the union refused to remain impartial in advocating for its new proposal. The union replies, “So what?” Nothing in the Settlement Agreement requires the Union to remain impartial towards its own proposals.
The Settlement Agreement says nothing specific about anybody remaining impartial. The question, obviously, will fall on the intent, and whether or not an interpretation of intent is admissible. Was it not the intent of the Settlement Agreement to institute and fair and impartial process for making changes to the Plan? The letter of the law versus the spirit. What did Judge Hatter believe, when he signed off on that 1989 Agreement?
On a further point, the Settlement Agreement requires that either the Review Committee, or the Western Regional Board, or an “individual member or executive of the union” proposed the “substantial change” (death) to the 99-Seat Plan. That didn’t happen, the plaintiffs claim. Untrue, replies the union. The Western Regional Board made the proposal to the National Council.
And so on.
Plaintiffs argue that they didn’t meet with the Review Committee. Yes we did, the union says, three times in February 2015.
In regard to the union’s repeated refusals to meet with the Review Committee, the Asner complaint recites as follows:
“It was not until June 13, 2014 that [Equity’s 99-Seat Plan administrator, Michael] Van Duzer advised the Plaintiff-side members that a joint Review Committee meeting would be held on July 18, 2014. . . In July 2014, Equity Executive Director Mary McColl terminated Van Duzer’s employment. Equity canceled the July 18, 2014 full joint Review Committee meeting and never rescheduled it.”
As an example of Equity’s shape-shifting interpretations on whether or not the Review Committee was even a viable entity, I wrote a column for Stage Raw in September, 2014 with the following statement, based on information I’d received from Review Committee members:
“Mary McColl, Executive Director of Actors’ Equity Association, will be spending the latter half of the week in Los Angeles to meet with both the 99-Seat Plan Review Committee (on Wednesday) and to hold a “town meeting” forum with Equity actors here (on Friday, 2 p.m. 5636 Tujunga Ave., NoHo, rsvp here) to discuss the artistic ecology of LA theater.”
This statement was met swiftly with a request for retraction by Maria Somma, Equity’s Director of Communications. McColl was not meeting with the 99-Seat Plan Review Committee, Somma insisted, but with “individual producers.”
Furthermore, in an Equity statement in February 2015, outlining the process by which its new plan was being implemented, “in strict adherence to the 1988 [sic] out-of-court settlement,” there is, weirdly, no mention of the Review Committee being involved at any step — as though the union were trying to will the Review Committee out of existence, but then bring it back into existence for three meetings in February, 2015, in order to demonstrate compliance with the out-of-court settlement.
What was or was not “strict adherence” will be up to the judge to determine.
Other issues point to the “DFR” or Duty of Fair Representation which is an ancillary requirement of federal labor law as it applies to labor unions. The Plaintiffs argue that in the process of eliminating the availability of the 99-Seat Plan, in the way in which the union’s National Council rolled right over local membership’s 67% percent repudiation of its new plan in the 2015 advisory referendum, the Duty of Fair Representation was violated.
Union attorneys have a couple of responses to that: First, that the DFR doesn’t apply to in-house agreements (such as the 99-Seat Plan) between the union and its members. Rather, it applies to collective bargaining agreements between a union and employers.
They also argue that the DFR doesn’t apply to a non-binding “advisory” referendum. Representation, the union asserts, was never meant to mean that a group of members should get what they want because they give their advice through an opinion poll. The Motion insists that representation is granted through elected representatives, i.e. the union’s National Council, and that therefore the referendum is irrelevant. Which begs the question: Why did they hold the referendum to begin with? Answer: Because it was a requirement of the Settlement Agreement — even though the two sides are now arguing over who was or wasn’t allowed to call the referendum in the first place.
In the meantime, the Plaintiffs have filed an independent (of the court) complaint with the National Labor Relations Board against AEA for the union’s alleged violation of “industrial democracy,” based on the same issue of a local membership giving a landslide opinion (with record turnout) against a union policy, and the union choosing to override the outcome. Depositions are now being taken from both sides.
There was some apprehension on the plaintiffs’ side that the NLRB would not accept jurisdiction over the case, for exactly the reasons outlined by the union in its Motion to Dismiss. However, the NLRB has accepted the case, which would appear to undermine Equity’s position on this issue. Any judgment by the NLRB will be entered into the court record and will trump any dissenting opinion on that front.
Attorneys for Equity include one New York-based law firm and one Glendale, California firm: The former (Cohen, Weiss and Simon LLP) includes Susan Davis, Evan Hudson Plush and Wendy M. LaManque. The Glendale-based firm of Bush Gottlieb has Ira L. Gottlieb, Lisa C. Demidovich and Bush Gottlieb signing the Motion on AEA’s behalf.
The Plaintiffs’ attorneys are Steven J. Kaplan (Law Offices of Steven J. Kaplan) and Martha S. Doty (Alston and Bird). Both firms are Los Angeles-based.
Editor’s note: A previous version mistakenly referred to the 99-Seat Theater Plan as an “Agreement” rather than a “Code.”