THERE'S A FINE LINE IN STRIKE RULES FOR LENO (VAR, THR, DHD, NYT)

By Nancy Vialatte

The WGA has sent an official message to Jay Leno � you can�t write jokes for yourself without breaking the guild's strike rules because NBC is a struck company. NBC, however, has fired back insisting that the guild's rules are illegal.

On Wednesday night, which marked Leno�s (and other latenight talkers�) return to air, the �Tonight Show� host delivered a self-written monologue saying, "I write jokes and wake my wife up in the middle of the night and say, 'Honey, is this funny?' So if this monologue doesn't work, it's my wife's fault�We are not using outside guys. We are following the guild thing. We can write for ourselves."

On Thursday, the guild said it believed differently: "A discussion took place today between Jay Leno and the Writers Guild to clarify to him that writing for 'The Tonight Show' constitutes a violation of the guild's strike rules."

NBC, for its part, said "The WGA agreement permits Jay Leno to write his own monologue. The WGA is not permitted to implement rules that conflict with the terms of the collective bargaining agreement between the studios and the WGA."

Yet given that the previous contract expired when the WGA went on strike on Nov. 5, it's not clear what that means. Although the current contract has lapsed, NBC's position is that under federal labor law, the terms of the previous agreement hold during a strike, and that the guild has no legal foundation to insist that Leno not perform material he has written for himself. (VAR)

Moreover, the network contends he's allowed to do so under the American Federation of Television & Radio Artists agreement pertaining to the latenight shows. But in response, WGA spokesman Neal Sacharow said the AFTRA exception does not apply to Leno because he has �always been employed as a writer on the show.�

Leno met with WGA West president Patric Verrone and members of the "Tonight Show" writing staff on Monday, at which time Leno articulated his intent to proceed with a self-generated monologue.

At that meeting, the guild said "they were going to give him a pass because of his support for the strike," a source told the Hollywood Reporter.

Further, an NBC spokesperson told Nikki Finke, "Patric Verrone said, 'We're going to look the other way.' And there were a lot of witnesses in that room�So if Patric Verrone now disputes that he told Jay he could do the monologue, why weren't there further actions by the WGA between Monday and Wednesday?"

On Thursday, the spokeswoman told Finke, "Jay called Verrone to restate and re-discuss what had been agreed to on Monday. And at that point Verrone said, 'You're in violation.' And Jay said, 'I'm not. We talked about this on Monday. And I support the writers. I support the union. I'm within my legal right to do this monologue.' "

The NBC spokesperson characterized it as "a cordial conversation". But the network and Leno were surprised by the WGA terse statement. (DHD)

A guild source told Finke, "The meeting was about (Leno�s) feeling that he was being mischaracterized as the bad guy for going back and doing the show. He wanted the guild to get the message out that he supported the writers. And we certainly agreed with that."

"But it wasn't until close to the end of the meeting, when we had gotten to the point where Jay understood our position was that we were not trying to make him look like a bad guy, that he said, "OK, I'm going to do the show, and I'm going to do my monologue,'� the source said. �And what I think Patric said was, 'You're taking one for the team. And we understand that.' "

In an interview Thursday evening, Verrone told the New York Times, �The sense of it was, Jay was going to play by the book.� He said that Leno had brought up his work as a guest host in a strike in 1988, and �I can understand that there may have been some confusion for Jay about that.�

He said that when speaking with Leno on the phone on Thursday, �I made it absolutely clear that he cannot write for the show.�

But one of Leno�s writers who attended the meeting with Verrone supported Leno�s version that he had been given some assurance that he could write his monologue.

�Jay said, �Let me get this clear: I�m allowed to write my monologue,�� the writer told the NYT. �Verrone said, �Well, since you are taking one for the team, we won�t hassle you about that.��

Asked what the guild would do if Leno performed a monologue anyway, Verrone said any violation of strike rules would be brought before a Strike Rules Compliance Committee.

NBC executives told the NYT Thursday evening that Leno would continue to write and perform his monologue based on the contract between the guild and all production companies that was in effect when the strike began. That contract cannot be superseded by the strike rules imposed by the guild, said Andrea Hartman, executive vice president and deputy legal counsel of NBC.

�The strike rules cannot contradict the scope and express terms of the overall agreement,� Hartman said.

According to an appendix in the contract, which NBC said remained in effect during the strike, the definition of �literary material� specifically excludes �material written by the person who delivers it on the air.�

But Verrone said the guild interpreted that rule differently, saying that it covered only performers who were not also hired as writers for a production.

Still, Nikki Finke wonders why, if Leno told the WGA he was going to do his monologue, a bell doesn�t go off for the guild members to ask him HOW he's doing that monologue?

"In retrospect, it should have been clarified right then and there," a WGA source told Finke. "But the exchange came at the end of a long and difficult meeting and we were wrapping it up and it was one of the last exchanges in the meeting."

What makes the situation so delicate is that the WGA perceives Leno as very supportive of striking writers. He's been delivering food and drinks to the scribes walking the line for two months now. So the WGA, which has repeatedly made it clear it's picketing NBC and not Leno, may not want to make an example of a high-profile member like Jay for breaking its strike rules. Earlier today, a WGA spokesman told me: "We are not interested in a battle here between Jay and the Guild," and doubted there would be any probe. Now the WGA seems to be backing away from that position. "If our members decide that there's been a violation of the strike rules, there is a procedure that will be followed," the WGA insider told me. (DHD)

The guild's strike rules, issued several weeks before the scribes walked out, read:

"As soon as a strike is called, you must immediately stop writing for any and all struck companies," the WGA rules say. "You may not continue to write or complete writing started before the strike for a struck company. You may not start writing on a new project during a strike. You may not perform writing services even if you work at home or at your own office rather than at the company's premises."

Under the strike rules, Leno could be punished via expulsion, suspension, fines and censure but a hardline response could backfire in terms of generating sympathy for Leno.

The issue of Leno's monologue was met with confusion on the picket line at the Burbank studios where "Tonight" tapes. Screenwriter Mike Preister told THR he was "disappointed" in the host.

"I was surprised to see him do a monologue," Preister said. "Everyone is trying to figure out if he broke the rules."

TV writer Doug Molitor said he was curious in particular about Leno's "Writer Town" bit that showed footage of "writers' house" - shacks with signs of various TV shows posted on the outside.

"It looked like a written bit to me," he said. "Who wrote that? An editor didn't sit down and think of that. ... It will hurt our efforts if Jay is buying material from non-guild members or scabs."

Still, if Leno is able to continue to perform material he writes for himself, it might open the door for the other hosts to do the same, posits the NYT.

THERE'S A FINE LINE IN STRIKE RULES FOR LENO (VAR, THR, DHD, NYT)

By Nancy Vialatte

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