SAG and a magical mystery tour through US labor law


Something mysterious seems to happen to basic principles of American labor law when they get interpreted by the current leadership of the Screen Actors Guild.  Facts go in one door and out comes a very odd view of how the law applies to those facts.

Some time back I pointed to the odd contention by SAG’s Membership First crowd that unions did not have to honor employment contracts with its staff. Based on that silly idea MF took the view that they could fire senior union staff and ignore the freely negotiated protections provided in their employment contracts such as severance payments. 
Of course, when push came to shove, SAG got sound legal advice and paid up when they dumped Greg Hessinger and Bob Pisano. 
If, as is a possibility, Doug Allen is asked to take a hike (sorry, no pun intended) after the fall elections, it will likely cost the Guild some cash if he has a severance provision that protects him. 
Of course, the cost of that severance provision pales in comparison to the potential daily toll of $180,000 lost to SAG members who are now working without the protection of a ratified union contract. And now that the AMPTP deadline on retroactivity has come and gone, it looks like that is a permanent loss for SAG members.
But the latest legal flap, as I understand it, emerged after a post was made to a SAG-sponsored list-serv for members of the Regional Board (“RBD”) of the Guild by one of the members of that Board. All members of the RBD have access to the list-serv and can post notices there that are seen by all other RBD members who log in.
The material posted there supported the candidacy of the opposition slate, Unite For Strength.
This brought forth a blistering email from SAG NED Doug Allen arguing that this was a violation of federal labor law. The support for that argument, however, is quite thin as I will explain. 
In fact, given the unusual nature of the Allen email (how many times does he intervene in such disputes?) just as a union election campaign is getting underway, when it is widely understood that the executive serves at the pleasure of the incumbent Membership First party, it could be viewed as a violation of federal labor law itself.
Why?
The key to understanding federal labor law in this area is that the central statute, the Labor Management Reporting and Disclosure Act of 1959, aka the LMRDA or the Landrum-Griffin Act, is the “Bill of Rights” of rank and file union members protecting them against “abuse by benevolent as well malevolent entrenched leaderships.”  The full text can be found here, the site of the well respected and valuable Association for Union Democracy.
Thus, the purpose is to provide a counter-weight to the power of the incumbent leadership to intimidate those in the opposition.
Yet, here the incumbent leadership is attempting to use federal labor law as a club to prevent the exercise of rights by the opposition!
It is true that Article IV of the LMRDA prohibits the use of “union moneys” to promote the candidacy of someone running for union office.  But it is not clear how that applies in the present instance.
First, there does not appear to have been any money spent.  The list serv is a commons, free to all of its members and it did not cost SAG members a penny to have the post made by this RBD member. While some courts and on occasion the Department of Labor have attempted to expand the word “moneys” to include other union assets, it is not clear that a court would uphold that approach to cover a union hosted list-serv.
Second, it is not even clear that the LMRDA applies to elections to the Guild’s board of directors.  The Act, on its face, applies to union “officers” which has been interpreted by the Secretary of Labor to include executive boards. Such interpretations will receive deference by a court, but they are not binding.
The Guild, of course, has a National Executive Committee separate from its National Board. Depending on how a court interpreted the role of the National Board it might not qualify as an executive board at all.
Third, a list-serv is an online space where union members gather to engage in discussion about union issues. In that case it would seem that the right of union members to free speech in union meetings (Article I of the LMRDA) applies:    
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
In fact, if one were to view the list-serv as an expenditure of union moneys it is still possible for the union to expend moneys “necessary” for the conduct of the election itself, and this can include opportunities for debate and discussion about candidates for the election. Unless the National Board has passed a rule preventing the use of the list-serv space to exercise free speech rights, then the exercise of power by the incumbent leadership via their control over the NED would seem to be a classic example of the abuse of power that the LMRDA is designed to prevent.
If there is a concern by union officers (President, VP, Sec’y-Treas., etc.) or staff (NED, General Counsel) that a union space could facilitate LMRDA violations then it is their responsibility to enforce the law.  In fact, rank and file union members cannot violate the LMRDA. So, here, if there is any concern about inappropriate campaigning, it seems the Guild staff and officers may have failed to put in place measures to prevent that. 

*hot Pilfering of official SAG email list, which was then used for electioneering purposes, has been discovered. !!