SAG-AFTRA’s national election committee has found that KTLA “crossed the line from journalistically appropriate news coverage” of the union’s ongoing election to “improper promotion” of candidates running on the union’s opposition MembershipFirst slate, which is headed by presidential candidate Matthew Modine.
The committee’s decision, which urges the L.A. local news station to provide “equal access” to candidates running on the ruling party’s Unite for Strength slate, which is headed by presidential candidate Fran Drescher, stems from an Aug. 4 interview that entertainment reporter Sam Rubin conducted with Joely Fisher, a MembershipFirst candidate for national secretary-treasurer, and Rubin’s Aug. 11 interview with Sheryl Lee Ralph, a MembershipFirst candidate for L.A. Local vice president. Rubin is also an L.A. Local board candidate running on their slate.
The election committee, whose members were proposed by SAG-AFTRA president Gabrielle Carteris and approved by the national board, determined that the interviews in question amounted to an “improper” employer contribution to MembershipFirst candidates because the station has declined to offer equal time to candidates on the other slate, even though Rubin prefaced his interview with Fisher by saying that “candidates from both groups are very much welcome on our show here.”
If KTLA refuses to grant equal time to Unite for Strength candidates by Tuesday, the committee said in its decision, “We will have to determine whether this violation was outcome-determinative in the election once the ballots are counted” on Sept. 2. And that could result in a re-run of the election, for which KTLA, the protesters claim, could be on the hook for the cost of the re-balloting, to the tune of hundreds of thousands of dollars.
The ruling comes in response to a complaint filed with the committee by Camryn Manheim, SAG-AFTRA’s national secretary-treasurer, and nine other members of Unite for Strength, who claimed that KTLA’s airing of the interviews with Fisher and Ralph amounted to improper employer contributions to their campaigns.
“As someone who cares deeply about our union,” Manheim said, “I am so disheartened to learn Membership First either willfully broke the law or they have a blatant misunderstanding of the law. In either case, it raises serious questions about their ability and fitness to lead our union. Our members deserve better.”
“Considering the totality of the circumstances, we find that KTLA resources were used to promote members of the Modine/Fisher/MF slate and to denigrate candidates of the UFS slate in violation of Section 401(g) of the federal government’s Labor-Management Reporting and Disclosure Act.”
“In particular,” the committee ruled, “we note: a) the timing of the broadcast, i.e. shortly after ballots were mailed to the members; b) Rubin’s status as both a KTLA employee and MF candidate; c) the promotional tone of the broadcast; d) the display of the MF website address and logo during the interview; and e) the subsequent denial of equal access to candidates on the opposing slate.
“By permitting an employee running for office to interview and promote a candidate running on the same slate during work time, while displaying the MF campaign logo and website address during the interview, KTLA crossed the line from journalistically appropriate news coverage of the election to improper promotion of MF candidates and denigration of UFS candidates.”
MembershipFirst attorney Robert Allen has called the complaint “meritless,” and scoffed at the notion that Rubin or anyone else had done anything wrong. “This is what he does for a living – he interviews people. That is the ordinary business practice of this show. He offered to interview people from the other faction, and they never took him up on the offer. It’s not a violation of the Labor Code for a newsperson to interview a candidate running in a union election, so long as they offer equal time to other candidates.”
“News programs have the First Amendment right to interview people of public interest, including those who may be running for union office,” he said. “The Labor Code was never meant to disallow the fair reporting of candidates’ positions where all candidates are offered access to express their views. This complaint shows their weakness and fear that if the truth gets out, they will surely lose this election.”
“The committee’s decision is built on a house of cards,” Allen said today. “It’s based entirely on cases involving union publications, not independent news organizations.” He also said that the decision is “partisan” because “it was made by an election committee made up entirely of members hand-picked by Gabrielle Carteris, who is the head of Unite for Strength.”
“I have no objection to the other side being given equal time,” he said, “but it should be their counterparts to our people who were interviewed, and they should be asked the same questions.”
The election committee, however, noted that the LMRDA “prohibits the use of employer funds to promote or denigrate the candidacy of any person,” and that Department of Labor regulations “provide that employer resources include both direct and indirect expenditures. An employer may not contribute anything of value to support the candidacy of any individual in an election.”
Those rules, the committee said, also specify that if remedial actions are taken to neutralize disparate treatment by an employer, “there is no outcome-determinative violation” – meaning that a re-run of the election could be averted if KTLA provides equal time to the other side. But Rubin, the committee said, should not be allowed to conduct the interviews.
“As KTLA has on multiple occasions provided significant promotional time to MF candidates,” the committee said in its decision, “we strongly encourage KTLA, by no later than August 24, 2021, to provide an equal opportunity to three candidates from the UFS slate to appear on a program under the same terms and conditions as the MF candidates. KTLA should allot the same amount of time at the same time of day, provide a neutral interviewer who is not a candidate for office, and display the candidates’ pictures, the UFS web address, and the UFS logo with the same prominence and in the same manner that the MF candidates’ pictures, the MF web address and the MF logo were displayed.”
“The program should be advertised in the same manner the Fisher interview was advertised. We would also strongly encourage KTLA to post a statement during this program and on its website expressly stating that KTLA is providing equal access to UFS candidates in order to cure a prior federal labor law violation and that KTLA does not and will not promote any candidate in the SAG-AFTRA election. If KTLA fails to provide equal access and to issue a statement, we will have to determine whether this violation was outcome determinative in the election once the ballots are counted.”
The committee also noted “that our decision should not be read to preclude media outlets from broadcasting or distributing interviews by journalists who are unattached to any SAG-AFTRA slate of candidates for SAG-AFTRA office. Indeed, given the newsworthiness of the SAG-AFTRA election, numerous such interviews have already occurred. The KTLA broadcast involved special circumstances warranting a finding of a 401(g) violation – in particular the presence of a candidate interviewer from the same slate as the candidate interviewee, the display of the slate logo and website address during this promotional use of employer resources, and the admonition that members look out for their election ballots in order to vote in the upcoming election.”
During her interview, Fisher blasted the union’s current leadership and the candidacies of her opponents. “Almost exactly a year ago,” she told Rubin, “we talked about this contract that was being negotiated and we felt that there might’ve been some – nefariousness amongst the…what was happening in the boardroom and the negotiations. And then, a couple of weeks later, 12,000 members lost healthcare, including 8,200 seniors. And in the negotiations, they said that $54 million was being added to the healthcare plan, but they didn’t say – dot dot dot – that isn’t enough in two weeks it’s going to implode.
“So that’s one thing that we’re running on, Membership First. I’m running with Matthew Modine as president – myself as national secretary-treasurer. And we have a diverse, talented, passionate, and determined group of unionists on our slate. And we are the agents of change. It’s interesting that the other side has adopted the the word ‘change’ in some of their materials, but it is sort of, in our opinion, the same old, same old, because they are the slate that is responsible for what happened in the past three negotiations. It’s also interesting that our current president and secretary-treasurer are jumping ship. They are not seeking reelection and have passed the baton, or at least backed and supported, two fresh faces: two talented people; two accomplished people who have never stepped foot in our boardroom, or maybe even in the building that we have on Wilshire that we don’t own. So we, we are the agents of change.”
The election committee noted that Rubin “conducted the interviews during KTLA’s regularly scheduled programming – and thus on KTLA paid work time – using KTLA resources. Rubin is not a neutral journalist; as he acknowledged at the beginning of the August 4 program, he is a candidate for a Los Angeles Local Board seat on the MF ticket.” During this broadcast, Rubin interviewed MF secretary-treasurer Joely Fisher and asked her multiple questions about her candidacy and the MF platform. Fisher spoke at length about SAG-AFTRA’s recent contract negotiations and modifications to its health plan, criticizing the incumbents, who are candidates on the UFS slate, for their handling of these issues. She then claimed that the MF candidates are ‘the agents of change.’
Fisher also made comments that denigrated UFS incumbents, who are also candidates, stating that she and others thought there may have been some ‘nefariousness’ in the boardroom and that the incumbents were ‘jumping ship.’ She also questioned the qualifications and commitment of the UFS candidates for president and secretary-treasurer, stating that they ‘have never stepped foot in our boardroom, or maybe even in the building that we have on Wilshire…’ Notably, after the interview, which clearly promoted the Modine/Fisher/MF slate and denigrated the UFS slate, Rubin encouraged SAG-AFTRA members to ‘look for that ballot, it’s probably coming your way.’”
The committee went on to say “that while Fisher was promoting her slate and denigrating the opposition slate during the interview, KTLA displayed pictures of Modine and Fisher and the MF logo and included the address for the MF campaign website below Fisher’s name throughout the interview. KTLA also posted about the segment on its Twitter page and on its website. By including MF’s website address and logo and then promoting the interview on its platforms, we find that KTLA assisted MF candidates, including Rubin, a KTLA employee, in promoting his candidacy, as well as that of Modine, Fisher and the MF slate, to potential voters. By so doing, it created the impression that KTLA, a SAG-AFTRA employer, supported the MF slate.”
The committee further said that “although Rubin started his August 4 broadcast by stating that ‘candidates from both groups are very much welcome on our show here,’ KTLA flatly denied a request to provide candidates from the UFS slate an equal opportunity to appear on air. Although Section 401(g) does not ‘extend to ordinary business practices which result in conferring a benefit, such as, for example, a discount on the cost of printing campaign literature which is made available on the same terms to other customers,’ KTLA denied the benefit of this promotional broadcast time to other candidates. In fact, six days after counsel for UFS requested equal access for UFS candidates, KTLA allowed Rubin to interview fellow MF candidate Sheryl Lee Ralph on air. During this broadcast, Ralph highlighted the fact that she and Rubin were running for office. A day later, counsel for KTLA denied UFS’s request for equal access.”
A Unite for Strength official said that no one from the show ever reached out to them. “We were never contacted,” the UFS official said.
KTLA said earlier this month that it “is in the process of performing a thorough investigation” into the matter, but denied a request for “equal time” for Unite for Strength candidates.
The election committee, meanwhile, dismissed another complaint filed by the UFS protesters that alleged that an employer called Eleven Films “has repeatedly posted social media endorsements of the Modine/Fisher slate, urging an incalculable number of members to vote for this slate in the upcoming election. Eleven Films also prepared a Modine/Fisher MembershipFirst campaign video, which contained numerous movie clips that were not properly paid for. We believe that this video production was donated to the Modine/Fisher campaign – another unlawful employer contribution. Eleven Films also donated money to the Modine/Fisher campaign Go Fund Me.”
In dismissing that complaint, the committee noted that “counsel for MF asserted that Eleven Films is a personal loan-out tax vehicle for Tiffany and James Dugger, its sole owners. In support of this claim, counsel for MF provided a signed declaration from the Duggers stating that Eleven Films is a limited liability company that has no employees, issues no W-2s, and pays no payroll taxes. Based on the information provided, we find that there is insufficient evidence to establish that Eleven Films is an employer as defined under the LMRDA. Accordingly, we find no violation of the Election Policy or applicable federal law arising from Eleven Film’s donation, Twitter posts, or its production of a MF campaign video.”
Allen, MembershipFirst’s attorney, hailed this as “a victory” that shows “the lack of merit to their claims.”