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Digital Media Law

Jonathan Handel Esq.

www.digitalmedialaw.blogspot.com

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AFTRA is interested in merger with the Screen Actors Guild, but not if the effort is going to fail again. So we learn from an article appearing in the just-mailed Spring 2010 issue of AFTRA Magazine. The union makes clear that any such effort will encompass all of its members, and emphasizes that the goal is “creating one media and entertainment union for all actors, performers and broadcast journalists.”

SAG reacted favorably, with guild president Ken Howard remarking in an email to me, “I’m delighted to see AFTRA’s leadership speak out forcefully about something that I and other SAG leaders so strongly support. Joining SAG and AFTRA to create a single union is essential to performers’ maximizing their power. It’s undoubtedly an idea whose time has come.”

(AFTRA, for the non-laborites among my readers, is the American Federation of Television and Radio Artists. The Screen Actors Guild (SAG) and AFTRA share jurisdiction over scripted television programming.)

So far, nothing unexpected. But what is new is the letter’s proposal that the new union have “a structure where no single city or no single category of member—actor, recording artist or broadcaster—is able to unilaterally impose its will on everyone else.” That description could just as well apply to AFTRA’s own current structure. SAG’s governance is quite different, and a simple majority of the Hollywood branch can indeed “unilaterally impose its will on everyone else,” or at least stalemate the rest of the union, absent a Herculean effort to the contrary.

Adopting a more AFTRA-like structure is bound to sit poorly with SAG’s Hollywood-based Membership First Faction. That’s the same stale group that has previously disparaged AFTRA and that caused the year-long contract impasse that cost SAG dearly. However, even non-MF Hollywood members will need to be convinced that a sacrifice in control will bring greater dividends in the form of national cross-category unity. It may not be an easy task.

Meanwhile, also new is the article’s conceptualization of the effort not as merger, but as the creation of “A New Union for a New World,” in the words of the article title. What this means is actually not particularly different from merger, but the point is to underscore the need to create a merged union to increase labor’s power in an age of proliferating platforms.

The article stresses that power should be the main goal, with other factors – elimination of duplicative dues, easing the ability to qualify for pension and health plans, and reduction of redundant administrative costs – treated as secondary. I wouldn’t downplay those secondary advantages quite as much as the article does, but the point is clear.

What’s less obvious from the piece is how creation of a new, merged union would increase union leverage. The article, styled as an open letter from AFTRA elected leadership (Roberta Reardon, Bob Edwards, Ron Morgan, Matthew Kimbrough and Lainie Cooke), notes that on the management side, many of the same companies are the employers of actors, other performers and broadcast journalists. (This is less true of another category of AFTRA member, musicians, since only one of the big four labels, Sony Music, is owned by an audiovisual company.)

However, this is less significant than it seems. The fly in the ointment is that since these different categories are employed under different contracts, each with no-strike clauses, joint strikes would be impossible. Does that mean that the letter is no better than a misaddressed email?

Not necessarily. On the contrary, I think the article is on to something if the goal is to create a larger community of interest among the different categories of member. It will, however, take assertive cross education and meetings between different type of workers – in other words, cross-category community building – in order for this to play out. Even if cross-category strikes are impossible, solidarity picketing and informal pressure may not be – just as we saw when SAG supported the Writers Guild during the latter’s strike. That support ultimately was one key to ending the 100 day labor dispute.

Cross education won’t be easy. The article pictures a commonality of interest, citing “salary reductions and added work responsibilities facing broadcasters, declining quotes and reduced work opportunities for actors or record labels’ imposition of ‘360 deals’ on recording artists” as though they were one and the same thing. However, it takes a bit of digging to identify technology as the common factor, since its manifestations are somewhat different – and, thus, so are the implications for labor.

Is technology a strong enough thread out of which to weave a community of interest? After all, technological change affects nurses, autoworkers and lawyers too, yet that doesn’t mean that these groups have enough commonality to foster solidarity between them. Do media workers? Maybe so, but it will take more fleshed out examples to make the point., and hard work to accomplish the goal

Nonetheless, SAG-AFTRA merger is a smart move for media workers. It is, at the least, a step in the direction of creating a larger community of interest and it addresses the dues, pension and health plans, and administrative costs issues. Moreover, it would make it harder for management to play SAG and AFTRA off against each other in negotiations.

The article alludes briefly to “secondary micro-issues” that helped scuttle merger the last two times it was attempted. In my view, those issues deserve a fuller airing well in advance of a merger attempt. The key issues are merger or revision of the health plans, merger of the pension plans, and the name of the new union.

Merger or revision of the health plans seems doable. After all, companies change health plans with some frequency; why can’t two unions, or a new union, change health plans and converge to the same plan? Merger of the pension plans is a more technical issue, and there probably needs to be an au current study done.

The third issue is the one that makes for a nice political football: should the new union be called SAG, AFTRA, AIMA (a proposal during the last merger attempt), or something different? MF partisans have a clear opinion: “You’ll pry my SAG card from my cold, dead hands” seems to be the thinking. Indeed, some probably intend to be buried with their cards.

Extreme or not, there is a reality here: a SAG card is aspirational, whereas an AFTRA card is not. The buff young trainers at my gym sidle up to me and in a whisper beg to learn how they can get their SAG cards. Do I have any in’s with the staff? Is there something I can do? If only the answer were yes, I’d probably have dates every Saturday into eternity. An AFTRA card, in contrast, might be enough for a free workout on a slow day.

Why the difference? Three reasons, probably:

First, as SAG partisans point out, “SAG” is a brand name with greater name recognition, or brand equity, as trademark experts like to say. With due respect to my AFTRA friends, the SAG partisans are right: clearly, more of the general public has heard of SAG than of AFTRA.

Second, “SAG” symbolizes the glamour of the movies; AFTRA symbolizes the technology of TV. Would you rather be 20 feet tall on a movie screen or 20 inches tall on a TV screen? Leave aside the reality that most people watch most movies on home video anyway, movies still have a cachet that television doesn’t.

Third, anyone can get an AFTRA card if they pay the initiation fee. In contrast, SAG is an exclusive club, albeit one with 126,000 members, two-thirds or more of whom don’t work as performers in any given year. Here again, the reality isn’t nearly as seductive as the perception, but so it goes.

So are we stuck in a world where SAG has to discard its name, which I think it will never do, or AFTRA has to accept “SAG” as the name of a merged union, which is also unlikely? No. The solution is easy, and it’s the same approach that was chosen when two rival union federations, the American Federation of Labor (AF of L) and the Congress of International Organizations (CIO) merged in 1955. The name of the merged organization? The American Federation of Labor and Congress of International Organizations – unwieldy, but no one calls it that. They call it the AFL-CIO. Short and simple.

And so would be the obvious equivalent for SAG and AFTRA: “SAG-AFTRA.” It’s short, easy to pronounce – easier than AFTRA-SAG – and it puts the union with the larger membership and more name recognition first. It’s a name that may be the best hope for a merger – or creation of a new union, call it whichever you prefer.

Will a new name require mental adjustment? Of course. No doubt the transformation of the Screen Writers Guild and Television Writers Guild into the Writers Guild of America required adjustment too. Ditto the mergers and name changes that led to the Directors Guild.

But SAG hardliners, ask yourself this: would you rather adjust to a new name, or do you prefer to deny health care to yourself and your family when you split work between the two unions and fail to meet either one’s threshold for coverage? Do you like paying two sets of dues and watching management play ping pong with two unions?

Sunset Boulevard got it wrong: the pictures – and the salaries – are getting smaller. It’s the companies that got bigger. Maybe it’s finally time for the unions to get bigger too.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Check out my residuals chart there too. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

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Court Docs Surface Accusing Jesse James of Sexual Harassment Back in 2000

Copyright 2009 Evan Agostini / Getty Images

ET has obtained court papers detailing a sexual harassment case brought against Sandra Bullock‘s husband Jesse James by a former female employee in 2000.

In the papers, Deann McClung accused James of sexually harassing her while she worked at his motorcycle company, West Coast Choppers. She claimed he exposed his genitalia to her, “touched and/or attempted to touch” her without her consent, posted pornography in the workplace, and made sexual and degrading comments toward her and other women.

McClung claimed that James fired her in January of 2000. Court records state that the case was dismissed in May of 2001. James and Bullock wed in 2005.

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SAG moves Towards Joint Bargaining with AFTRA

Jonathan Handel

The SAG National Board yesterday passed a resolution, by a surprising 82% to 18% vote, directing the guild’s president and National Executive Director to “seek engagement with AFTRA in a joint bargaining agreement for negotiation of the Television/Theatrical Contract,” as quoted in a SAG press release. This move is as I predicted in a blog post three weeks ago, based on conversations then with a confidential source.

Those negotiations, scheduled for October 1 – November 15 of this year, would take place “under the terms of Phase One, modeled on the agreement used successfully in the 2009 Commercials Contract negotiations,” per the resolution. Phase One is the 1981 agreement between the two unions under which they have jointly bargained with the studios for almost three decades, with the notable exception of 2007-2009.

The margin was unexpected, since the board is almost evenly divided between factions that support joint bargaining (Unite for Strength and an independent in Los Angeles, and most or all members of the New York and regional boards) and a group (Membership First) that has generally expressed bitter opposition to joint bargaining under Phase One, a framework that gives SAG and AFTRA equal weight on the negotiating committee. (Because of the lateness of the hour, it was not possible to explore this issue with sources, and a call to a SAG spokesperson was not immediately returned.)

The resolution also directs the President, Ken Howard, and National Executive Director, David White, to “bring a recommendation to the National Board at the earliest opportunity.” The urgency presumably stems in part from the fact that AFTRA’s next national board meeting is February 27 meeting, and more generally from the constraints created by the October 1 date and the various processes leading up to it, as I have previously discussed. The TV/theatrical contract doesn’t expire until June 30, 2011, but the agreement reached last year between the studios and SAG mandates early bargaining, specifically, from October 1 through November 15.

The SAG press release is below.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

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SAG National Board of Directors Meets via
Videoconference in Los Angeles and New York

Los Angeles, (January 31, 2010) – Screen Actors Guild National Board of Directors voted today to seek engagement with AFTRA in a joint bargaining agreement for negotiation of the Television/Theatrical Contract. Approved 82 to 18 percent, the resolution states:

“It was moved and seconded that in light of SAG’s historically productive negotiating partnership with AFTRA, the SAG National Board of Directors directs President Ken Howard and National Executive Director David White to seek engagement with AFTRA in a joint bargaining agreement for negotiation of the Television/Theatrical Contract, under the terms of Phase One, modeled on the agreement used successfully in the 2009 Commercials Contract negotiations. President Howard and NED White shall bring a recommendation to the National Board at the earliest opportunity.”

Screen Actors Guild President Ken Howard said, “I am very pleased with the vote and thank the Board for their leadership and foresight on this important issue. I so appreciate the Board’s cooperative spirit in this discussion and throughout the day, and feel confident that our Guild is moving in the right direction.”

In other actions, the National Board voted unanimously to create a National Performance Capture Committee to address the unique concerns and experiences of members who render performances that are recorded using “performance capture” technology across all media, and to advise the Guild on all matters pertaining to work in this rapidly growing area.

The board also approved 83 percent to 17 percent the unanimous recommendation of the finance committee to authorize the extension of existing initiation fee reductions in targeted markets across the country and to have the Guild’s Joint Strategic Planning and Finance Committee review the initiation fee structure nationwide.

Reports
The national board received reports from elected leadership and staff including:

• President Howard memorialized those members who have passed away over the last year reading each name aloud and calling for a moment of silent remembrance. Howard also recognized the recent loss of former Houston Branch President and board member Jim Huston, who passed away January 28, 2010.

Mary McDonald-Lewis, Regional Branch Division board member from Portland, Oregon, delivered a special tribute to Huston, saying, “He stood with his brothers and sisters through the best of times and the worst of times, and did so with resolve.“

• Secretary-Treasurer Amy Aquino delivered a report on the Guild’s second quarter financial results noting that SAG’s revenue and expenses are closely tracking the projections for fiscal year 2010. Aquino also provided an update on investment performance indicating recoupment of certain losses in the Guild’s investment portfolio when compared to the prior year.

• National Executive Director David White reported on the strategic planning efforts underway at the Guild and preparation for negotiations. White updated the board on new institutional and member service initiatives including a revitalized organizing strategy and program. White applauded SAG committee members and staff for their innovative and thoughtful work in key areas including the 2010 SAG Awards, government relations and legislative activities, new media outreach activities, and the LifeRaft Live Streaming partnership with SAG Foundation, among other efforts.

The Board also appointed Deputy National Executive Director of Contracts Ray Rodriguez to the Screen Actors Guild-Producers Industry Advancement & Cooperative Fund (IACF) board and addressed a number of governance matters, including a constitutional amendment regarding written assent procedures; an amendment to Branch rules of procedure; advisory recommendations from the annual national membership meeting; amendments to the election guidelines; and a recommendation to study the feasibility of electronic voting.

The meeting adjourned just after 5:00 p.m. PST.

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Jonathan Handel Esq.

Digital Media Law

www.jhandel.com

A SAG strike in the upcoming negotiating cycle is “difficult to envision,” a source from SAG’s moderate faction, Unite for Strength, told me, though he/she cautioned that avoiding one will require that management negotiate reasonably and he/she wouldn’t take the strike option off the table (as, indeed, no union could).

The source also said SAG’s upcoming January 31 national board meeting will probably feature a move towards resurrecting joint bargaining with AFTRA, adding that he/she was confident that bargaining later this year would indeed be jointly conducted. If the board does act on January 31, look for AFTRA’s board to respond at its February 27 meeting.

The source, who spoke on condition of anonymity, suggested the SAG-AFTRA unity move might come in the form of a resolution committing SAG to engage in joint bargaining and empowering someone – David White (SAG’s National Executive Director), Ken Howard (SAG’s elected president) or an appointed committee – to engage in talks with AFTRA towards that goal. (Indeed, Howard has already had informal contacts with AFTRA president Roberta Reardon, as Back Stage has reported.) Successful joint negotiations are, the source indicated, a steppingstone to merger with AFTRA, a goal that UFS has consistently espoused.

The bargaining in question is with the AMPTP (studio alliance) regarding the TV/theatrical contract. Those negotiations were conducted jointly for 27 years under the “Phase I” agreement, but AFTRA suspended that agreement during the last round of negotiations after provocative attempts by SAG (under previous leadership) to modify the agreement to AFTRA’s disadvantage.

Those negotiations will commence October 1, 2010 and run for 6 weeks. The current contract doesn’t expire until June 30, 2011, but the early bargaining is taking place pursuant to a clause included in the current agreement (ratified in June 2009) at the AMPTP’s insistence.

And a heads up: the rest of this article is pretty much insider baseball, so proceed if you want the nitty-gritty details on what the year ahead may hold for Hollywood labor, and SAG in particular.

Negotiating Priorities

The source listed various possible priorities for the negotiations, while cautioning that such a list is obviously subject to change over the next nine months, or at least the next five or six, since I’m told by a source with knowledge of AFTRA scheduling that that union would probably want to arrive at a package of proposals by June or so. (The SAG source’s timing suggests a somewhat later date.)

A more fundamental reason the following list is preliminary is that SAG (and AFTRA) have not yet begun the “wages and working conditions” (W&W) process of canvassing members and soliciting their input on issues of concern. Nor has SAG appointed a Negotiating Committee for the upcoming talks. With those caveats in mind, the priorities the source listed were as follows:

(1) New Media. SAG is not particularly happy with the compromises made in new media. One possible move, depending on what SAG learns from data supplied by the producers (pursuant to an information sharing provision of the new media sideletter to the TV/theatrical agreement), is that SAG might seek a shortening of the time period during which the studios pay low fixed dollar amount residuals for ad-supported streaming of television programs. After the fixed residual period, the contract specifies a percentage of gross receipts. Thus, shortening the fixed residual cycle would move up the point at which potentially more lucrative percentage residuals are paid.

Regarding information sharing, by the way, SAG may have an opportunity to review information from other guilds in addition to what the producers supply, as the source told me that SAG president Ken Howard has had conversations with the presidents of other guilds/unions and hopes that all will share information.

(2) Basic Cable. The SAG basic cable contract is separate from the TV/theatrical agreement, but expires at the same time. (AFTRA doesn’t have a basic cable contract per se; it negotiates one-off deals with the producers, though the deals each have similarities.) In light of the growing number of scripted programs on basic cable – and even the possibility that NBC might one day cease broadcasting and become a basic cable channel – improvements in the basic cable agreement are important to actors.

Here, the UFS source indicated, a priority may be strengthening terms related to working conditions. The TV/theatrical agreement has many provisions regarding meal breaks, overtime, turnaround (the time between end of work one night and call time (start of work) the next day) and the like, whereas the basic cable agreement is less protective of actors in these areas. The actors’ goal here would be to obtain more protections.

Basic cable residuals are much less lucrative to actors than broadcast residuals, but the source did not focus on seeking improvements in this area. Significant improvements may not be achievable, given the lower budgets and smaller audiences of most basic cable programs.

(3) Spanish Language Organizing. This is a growing area of programming, and one that the source cited as a negotiating priority. However, it was not clear to me how this would affect the TV/theatrical agreement itself. Interestingly, the source stated that SAG does not have a negotiating department at present, an issue I did not have a chance to contact SAG’s spokesperson about.

(4) Pension and Health (P&H). Concern in these areas is driven by two factors: (a) The various union pension plans are suffering from diminished assets due to the stock market crash and diminished contributions (which are based on earnings) due to the weakness of the industry, the soft economy, and wages lost due to the 2007-2009 work stoppages. (b) Also under stress are the health plans, which are challenged by the ever-increasing cost of health care, and which may be subject to taxation as “Cadillac plans” under the new health care reform legislation working its way through Congress. For these reasons, P&H may be bigger factors in the upcoming negotiations than they have been in the recent past.

(5) Resynchronizing SAG Minimums. AFTRA reached agreement on its current deal by June 30, 2008, and received a 3.5% bump in minimum wage rates. In contrast, SAG’s deal wasn’t ratified until almost a year later. As a result, SAG received its first increase almost a year after AFTRA, and is therefore at a lower wage rate for the duration of the current contract. A priority for SAG is raising those rates, not just for the obvious reason, but also because synchronizing the two union’s wage rates is a necessary precondition to merger.

It’s clear that the AMPTP would want any increase for SAG wage rates to be paid for by SAG foregoing another economic priority. (The AMPTP, SAG and AFTRA had no comment for this article on any matters.) That raises the question of how to reduce the bite of resynchronization. I suggested one possibility: rather than SAG seeking an immediate double-size increase at the beginning of the 2011-2014 agreement, the guild could instead seek acceleration of its annual increases, resulting in a gradual rise to parity. (Warning – some math ahead. Skip to the next section if you’re phobic . . . .)

Here’s how this approach would work. If the agreement follows the customary pattern, AFTRA will receive annual increases on July 1, 2011, July 1, 2012, and July 1, 2013. Those increases will probably be between 2.5% to 3.5% per year. (They’re 3.5% per year under the current agreements.) SAG will receive an annual increase on July 1, 2011 as well, but that still leaves it one increment (i.e., 3.5%) behind AFTRA.

To bring SAG up to parity, the agreement could give SAG its next increase 9 months later (say April 1, 2012), rather than the 12 months that AFTRA will wait. That brings SAG up to parity with AFTRA, but only for the 3 month period until AFTRA’s July 1, 2012 increase kicks in. But then the agreement could give SAG its next increase 9 months after its April 1, 2012 increase – i.e., on January 1, 2013. Now SAG will match AFTRA for a period of 6 months, until AFTRA’s July 1, 2013 increase kicks in. Then, the agreement could give SAG an increase 9 months after its January 1, 2013 increase, i.e., on October 1, 2013. Now SAG will match AFTRA for the remaining 9 months of the contract (i.e., through June 30, 2014). At that point, the unions will stay synchronized, because the 2014-2017 will commence by giving both unions an increase on July 1, 2014.

Now look at the boldface portions of the preceding paragraph: 3 months plus 6 months plus 9 months equals 18 months that SAG will be synchronized with AFTRA. In other words, SAG will be at AFTRA wage levels for half the contract term. That’s a compromise halfway between the current situation, which is no parity, and an approach that gives full parity immediately upon commencement of the 2011 contract. By splitting the difference, SAG’s other priorities would take less of a hit – at a cost, of course, of delaying full parity.

The point of all this is that parity need not be an all or nothing proposition. This approach is a way to incrementally restore parity. And, by varying the 9 months in my example, the tradeoff between time to parity and cost of parity can be tuned to whatever negotiators deem appropriate.

A different approach would be to give SAG its increases at one year intervals, just like AFTRA, but to give SAG larger increases than AFTRA receives, such that by the end of the contract term, SAG is at the same level as AFTRA. Here again, the approach can be tuned, but perhaps not as precisely, since SAG would have to reach parity in exactly 3 years, 2 years or 1 year.

Framework for Joint Bargaining

Moving on from math, let’s talk about joint bargaining. The UFS source pointed out that the jointly-bargained commercials contract was not actually bargained under Phase I, but rather under a freestanding joint bargaining agreement. That agreement includes a non-disparagement agreement that clamped down on anti-AFTRA rhetoric coming from SAG’s hardline Membership First faction.

My source also said that the non-disparagement agreement was essential to the success of those negotiations (and I’m sure AFTRA would agree). Yet, according to the source, it would be difficult to include the non-disparagement clauses in Phase I, since the Phase I agreement is part of SAG’s constitution, meaning that revising Phase I would require jumping through various hoops, such as a 2/3 vote which might not be achievable, given MF’s representation on the board).

The solution? Extending the freestanding joint bargaining agreement to cover the TV/theatrical negotiations, or creating a new such agreement. So, than Phase I, we may see this reboot, or remake, or sequel instead. It’s just like going to the cinema, if your idea of a good movie includes Roberts Rules of Order.

Negotiating Committee

The UFS source told me that the joint negotiating committee would have 50-50 representation from SAG and AFTRA, with equal weight for each member. That’s a given, in that AFTRA would agree to nothing less.

The SAG portion of the committee will have 11 members from Hollywood, 4 from New York and 4 from the Regional Branch Division (i.e., everywhere else). Since the Hollywood Division, which is controlled by MF, appoints the Hollywood members of the Negotiating Committee, does that mean that the partisan split in the Committee will be 11 MF and 8 moderates? Not necessarily. SAG president Ken Howard is a Hollywood member, and it would be very bizarre for MF to refuse to seat him (and, in fact, to refuse to make him chair of the committee).

If Ken Howard gets a seat, that yields a 10 to 9 balance in MF’s favor – but only if MF is determined not to appoint any other moderates (UFS or independents) to the Hollywood contingent on the committee. If MF is not united, or if they fail to bring all of their national board members (or alternates sitting for them) to the Hollywood board meeting, then they may not be able to insist on controlling all 10 seats. The result could be 10 to 9 or so in the moderates’ favor.

In any case, most or all of the AFTRA appointees will likely be moderate in temperament, giving moderate voices a majority on the joint committee. This is what angers MF, and is why they tried in 2007-2008 to modify Phase I to AFTRA’s disadvantage.

As for when the Negotiating Committee would be appointed, the source noted that that wouldn’t happen until AFTRA had responded at its February meeting to SAG’s January initiative (assuming that’s when things play out). SAG’s next national board meeting after AFTRA’s February meeting is in April. So, at that meeting, the SAG national board would create the new Negotiating Committee and ask the divisional boards to appoint their respective members.

For Hollywood, this appointment process would happen at the next monthly Hollywood board meeting, which would probably be the May monthly meeting (it could be the April meeting, depending on when in April the Hollywood and national board meetings fall, but I suspect that the divisional board meetings precede the national board meetings).

Another note re the Negotiating Committee: the old Negotiating Committee – the one that the SAG board disbanded in January 2009 when the moderates acted by written assent (also firing the previous SAG National Executive Director) – well, the old Negotiating Committee actually still exists, or was resurrected, and is now the Standing Negotiating Committee. That’s the committee that administers the contract, granting waivers and such. Also, the Negotiating Task Force (which replaced the Negotiating Committee) still exists, though it’s dormant. In any case, these factoids are apparently of academic interest; a new Negotiating Committee will be appointed for the upcoming negotiations, though obviously some of the members will be the same.

Upcoming Board Meetings

The schedule of national board meetings for SAG and AFTRA is: Jan. 31 (SAG), February 27 (AFTRA), April (SAG), June 10 (AFTRA), Sept. 25 (AFTRA), and Oct. (SAG). Thus, if SAG does not act decisively at its January 31 meeting, a special meeting of the SAG board may be necessary in order for the process to play out so that the Negotiating Committee can be appointed and the W&W begin in a timely fashion.

Will AFTRA Agree to Joint Bargaining? Will the AMPTP?

Ideally, the unions will decide that they should indeed bargain jointly. The last thing the industry, or the unions, need is more uncertainty and inter-union conflict. All that bought last time for SAG was a one year stalemate that got SAG a worse deal than it could have obtained a year earlier, and at a cost of tens of millions of dollars in lost wages due to suspended motion picture production.

Admittedly, the suspension of Phase I did help AFTRA become viewed by the industry as a more significant player than in the past. Also, AFTRA feels burned by SAG’s actions towards it in 2007-2008 (again, this was under a previous SAG administration). Thus, AFTRA is likely to require a significant degree of reassurance from SAG that despite SAG’s still messy politics, a SAG commitment to joint bargaining would be honored. Making things even more difficult, reviving joint bargaining will require that neither union feels it is apologizing for the 2008 breakdown. It’s an extremely delicate dance.

There’s also the question of whether the AMPTP will agree to negotiate jointly, since (as far as I can tell) they don’t have to. They’ll almost certainly agree though: doing otherwise would look like the organization was actively seeking labor discord. In addition, since the AMPTP has generally found AFTRA easier to deal with, why wouldn’t they want them in the room with SAG? After all, the AMPTP engaged in joint bargaining under Phase I for 27 years. Also, separate bargaining could (and probably would) result in different contract proposals, further complicating negotiations.

Will the Early Negotiations Result in an Early Deal?

Early negotiations are one thing, but an early deal is another. SAG doesn’t have a history of reaching early agreement. However, another factor is the DGA. Their contract doesn’t expire until mid-2011 (concurrent with SAG and AFTRA Ex. A, and just two months after the WGA), but they like to negotiate early. If SAG doesn’t reach an agreement during this fall’s early negotiations, which end November 15, then the holidays pretty much ensure that there will be no further negotiating opportunities until January.

At that point, the DGA may step in and do its deal – just as it did in January 2008, after the WGA failed to do a deal (and remained on strike) in fall 2007. In other words, SAG has a chance to set the template, but only if it reaches an early agreement. Let’s hope it does, since otherwise we may see stockpiling of motion pictures (i.e., accelerated production) in early 2011, followed by a disruptive slowdown (i.e., a de facto strike or de facto lockout).

What about the WGA?

Speaking of the WGA, what role are they likely to play this time? It’s too early to predict with confidence. On the one hand, WGA members last year elected a new, more moderate president, are unlikely to want a second strike, and were never as dissatisfied with the new media deal as SAG was and probably still is. On the other hand, the WGA board is still under control of former president Patric Verrone and his allies (though who knows whether this might change in the fall) and the executive director is still David Young. With SAG negotiating in fall of this year, and the DGA negotiating most likely in January or so of 20111, I’m guessing the WGA will play a less central role this time around, but that could easily change.

The SAG Elections

Add this to the mix: Late summer and fall will bring the SAG elections, which make people even more irritable than the Santa Ana winds that arrive concurrently – though, thankfully, not as irritable as Raymond Chandler famously described in Red Wind: “On nights (when Santa Anas blow) every booze party ends in a fight. Meek little wives feel the edge of the carving knife and study their husbands’ necks. Anything can happen.” On the positive side, notes Chandler (and brushing past the quaint sexism of days gone noir), “you can even get a full glass of beer at a cocktail lounge.”

In any case, those elections will no doubt be a referendum on the upcoming negotiations. Indeed, in a case of awkward timing, the new board will likely be seated in late September, just days before the early negotiations are set to start. That could be a bit disruptive. However, as with last year, the only national board members in Hollywood whose terms are up are from Membership First, since the UFS members (and moderate Morgan Fairchild) were elected in 2008 to 3 year terms. Thus, on the national board, MF can only lose ground or, at most, hold their current numbers. On the Hollywood board, the possibilities are more wide open, but given UFS’s commanding results in the 2009 elections, it’s quite possible MF will lose ground there as well.

What Else Will AFTRA be Doing?

In another quirk of scheduling, the AFTRA daytime agreement expires November 15 of this year. That’s the portion of the AFTRA agreement that AFTRA always negotiates solo, without SAG. AFTRA will probably want to negotiate starting in September as it has in the past, or perhaps a bit earlier in order to avoid bumping up against the Oct. 1 start date for SAG negotiations. Either way, AFTRA will be in the negotiating room before SAG (indeed, while SAG is still preoccupied with its elections).

There’s yet another wrinkle to this: the daytime agreement has new media sideletters that are similar to the new media sideletters for the AFTRA primetime agreement (and SAG, WGA and DGA agreements). Thus, since AFTRA will presumably be negotiating before SAG, then AFTRA daytime negotiators may be discussing new media issues before SAG does, just as was the case in 2008, in fact.

This timing may give AFTRA a first cut at revisions to the new media deal – a fact that’s unlikely to sit well with the Membership First faction of SAG, just as it didn’t in 2008. Of course, it’s also possible that AFTRA will defer a discussion of new media until October 1, if the two unions are bargaining jointly.

(BTW, I’m using “daytime agreement” as a convenient shorthand. The gory details are as follows: AFTRA has one contract that’s relevant here, called the Network Code, or “Net Code” to its friends. Exhibit A of the Net Code deals with primetime programs, and was jointly negotiated with SAG’s TV/theatrical agreements for several decades until the last negotiating cycle. The “front of the book” portions of the Net Code (i.e., most everything other than Exhibit A) deal with daytime dramas (soap operas) and other areas in which there’s no overlap with SAG and is always negotiated by AFTRA alone. Most of the guild agreements now have two sideletters relating to new media, but the Net Code has four such sideletters, of which two relate to the front of the book and two to Ex. A, although the distinction is actually rather murky.)

What Else Will SAG Discuss at its January Board Meeting?

The UFS source gave me a preview of likely subjects at the January board meeting. In addition to SAG-AFTRA joint bargaining, they include:

(1) Revising the SAG-AFTRA non-disparagement agreement so that supporters of candidates for SAG or AFTRA board can speak freely about the other union without the possibility that the supporter’s union would be sanctioned for disparagement. Currently, the non-disparagement agreement includes such an exemption for the candidates themselves, but statements by their supporters during an election do not have this protection.

(2) Amending the procedure for written assent so that the assent would have to be circulated to all board members, not just those who agree with the assent (which was the approach the moderates took with the January 2009 written assent).

(3) Reducing the initiation fee for actors who join one of SAG’s regional branches rather than LA or New York.

——

That’s a full agenda, considering that it’s a one-day video meeting rather than a two-day in-person confab.

The Corporate SAG

Now for something unexpected: a situation that puts SAG behind the looking glass, this time sitting on the management side of the table. That will happen this year, because some portion of the SAG staff is itself unionized, and is represented by Teamsters Local 986. In that context, SAG is actually management. About 50 SAG staff are members, and the Teamsters representation dates back to February 2001. Interestingly, it took five or six months to achieve a contract, and a strike authorization vote was necessary.

In any case, the contract run for 3 years, and this iteration expires June 1. Negotiations have sometimes been difficult in the past – at one point, staffers worked without a contract while negotiations continued for three months past expiration.

Certainly this round of negotiations have the potential to be bumpy, in light of the economy generally and, more particularly, the layoffs imposed by the union in 2009. Also aggravating the situation from staffers’ point of view are the significant pay increases that some guild execs received in 2008 (at a time, it should be noted, when the guild was under different leadership).

One question this history raises is whether the represented employees will get the typical 3% annual increases. My guess is probably so (after all, SAG itself secured 3.5% increases for its members). A harder issue is whether the Teamsters will push for a No Layoffs clause. I’m guessing they will. It’s a tough stance for a union to take in this economy, but the Teamsters have leverage by virtue of the calendar: SAG (as employer) can ill-afford to let the 986 contract expire and then be in a labor dispute with its own staff into the early fall as negotiations between SAG (as a union) and the AMPTP bear down. The PR fallout would be too unpleasant.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

Posted via web from MovieDriver – Hollywood Teamster

ABC’s new sci-fi drama “V” opens with the sudden appearance of alien spaceships floating in the sky over all the major cities of our fair planet. A frightened humanity is soon confronted by a vision of preternaturally beautiful humanoid aliens who smile, bat their eyelashes, and speak in soothing tones. They’ve just stopped by to load up on provisions for a while, then they’ll be moving along. No reason to be alarmed – “Peace, always.” But as anyone who saw the original miniseries back in 1983 knows, beneath those lovely humanoid exteriors are cold-blooded reptilian killers whose arrival bodes ill for all Mankind.

This theme kept echoing through my brain while reading the LA Times interview last week with Carol Lombardini, new president and chief negotiator of the Alliance of Motion Picture and Television Producers*. When questioned about past and future negotiations with film industry labor representatives, she was careful to make nice, speak softly, and – with one glaring exception — strike an eminently reasonable tone. Lombardini professed to be a “good listener,” adding that that she favors “getting out in front of negotiations” and “having regular communication with the guilds and unions so that we can share perceptions.”

So far, so good: getting all the interested parties talking to each other well before the current contract expires could be our best hope of avoiding the Mother of All Strikes in 2011. This line of thinking is encouraging, and a marked change from the my-way-or-the-highway stance of her mentor and predecessor, former AMPTP ramrod Nick Counter. I do not wish to speak ill of the dead, and since Mr. Counter only recently shuffled off this mortal coil, let’s just say I’d be surprised if he’s not already hard at work in the Great Beyond. Anyone who toiled so long and tirelessly against the guilds and unions in service of the Producers Alliance is supremely well qualified for a high ranking position on the Devil’s staff in Hell.

On the surface, Ms. Lombardini seems an affable middle-aged woman with a genial smile, which comes as a welcome relief from her hard-line former boss. Remember, though, the AMPTP remains as ruthlessly focused on the bottom-line as any cold-hearted banker, Wall Street crook, or Mafia Don. They’d never allow anyone lacking the requisite spine of steel and iron fist to step into Nick Counter’s blood-stained boots.

This interview wasn’t an in-depth grilling of Ms. Lombardini, but merely her initial presentation to the public — an opportunity to lob softball nostrums about “increased dialogue” and a guarded optimism that “people will… find a way to get this done.” Asked about the potential Doomsday Scenario of a combined SAG/WGA/DGA strike when the current contracts run out, she replied “I hope not. Everybody endured some battle scars from the last round.”

Uh, no shit, Carol – especially those of us who work below-the-line, and had nothing whatsoever to do with causing that strike, yet ended up as road-kill smeared on the shiny, ArmorAll-polished tires of the Escalades and Mercedes driven by the respective combatants in the last strike.

Not that I’m bitter, or anything.

It was only towards the end that this interview took a darker turn, as Ms. Lombardini’s genial mask slipped just enough to allow a glimpse below the smiling surface. When the new face of the AMPTP was asked whether she intended to ask for “rollbacks from talent” she replied: “I don’t necessarily mean wages will be cut, but maybe there are more efficient ways to produce. We have to look at whether on crews, for instance, we can assign work to a smaller group of people.”

Excuse me? The question was about wage reductions for above-the-line “talent”, but her reply was a bullet aimed directly at below-the-line crew. Carol Lombardini’s idea of cutting a deal to save the industry from a crippling strike apparently involves slashing the crew size so that those of us who do the heavy lifting in Hollywood will get the crap beaten out of us even more than we do now.

It’s not enough that the producers have already forced so many of us into a 20% pay cut while working longer hours on the odious cable rate, or that come August of 2011, hanging on to our health care will be infinitely more difficult for all but those lucky souls who have steady feature work or crew on long-running hit television shows – now it seems the bastards want to cut down on the actual numbers of people on the crews, thus putting even more of us out of work and into the gutter.

This is the kind of delusional, penny-wise-and-pound-foolish “thinking” that drives the rank and file crazy. In a job where time is money, a proper size crew is essential to getting the work done in a safe and efficient manner. Modern film-making is not some cookie-cutter, assembly-line process, but a labor-intensive business doing specialized custom work that requires truckloads of heavy, bulky, complicated equipment. If the crew size is reduced, fewer trained hands on set means everything will take longer to happen, the shooting days will lengthen, and more people will get hurt. This will have the perverse effect of driving the producer’s expenses up, not down.

A couple of weeks ago I spent the better part of a week day-playing on a network sit-com that has yet to air. Perusing the crew list, I counted no less than ten producers: four “Executive producers,” four “Co-Executive” producers, and two “Consulting Producers.” Granted, this is television, where producers spring up like mushrooms** after a rain — but seriously, what the hell are ten producers doing on a twenty-two minute sit-com? I can understand why a $200 million feature involving many far-flung locations and hundreds of CGI shots might need to spread the producing duties around, but a simple sit-com? The entire time I was there (working my ass off, BTW), most of those clowns just sat on their well-paid asses (in their own personal directors chairs, naturally) staring blankly at the quad-split monitors while the rest of us brought their show to life.

I don’t mean to denigrate the job of a producer. Every show needs a good Executive Producer as the money-man/head of production, and a smart, savvy Line Producer to kick butt, take names, and make sure the machine keeps rolling forward. I suppose there might even be a reason for a “Co-Producer” to help pick up the slack – although what he/she would do that the UPM doesn’t remains a mystery to me — but anything more than that stinks of above-the-line featherbedding. So if Ms. Lombardini is really serious in her desire to lower production costs and thus help Hollywood and the AMPTP stay competitive in this dog-eat-digital-dog world, I suggest she start by cutting some of that very expensive above-the-line fat rather than saw the legs off the Industry by slashing crew size.

I wouldn’t hold my breath waiting for that happy day.

So there you have it: under Carol Lombardini’s soothingly humanoid exterior beats the cold reptilian heart of a very different beast. The producers plan, it seems, is to mollify the “talent” with minimal cuts to their bloated paychecks while shoveling the serious shit downhill onto the backs of those who do the serious sweating in Hollywood.

At least we know where we stand now. The lizard queen has spoken.

* Otherwise known as the Evil Empire… ** Another form of fungus that also thrives on bullshit..

www.hollywoodjuicer.blogspot.com

This is from a Below the Line point of view. I completely agree with the article. So much money is wasted “above the Line” and on Marketing, it is ridiculous. Go up to Valencia and stop by Deluxe Media to see 3 warehouses full of crap for the Movies. Most of this crap sits for years and is NEVER used. But the ONLY way to cut costs, they say, is by cutting the crew…BULLSHIT..

Posted via web from MovieDriver – Hollywood Teamster

Digital Media Law – Jonathan Handel

www.jhandel.com

Thursday’s SAG election was a victory for the moderate coalition. Yet, strangely enough, the leaders of the losing hardline faction will all find seats on the national board, and will continue to be a shadow government within the union’s Hollywood board—a board on which, in contrast, none of the key moderate leaders will be voting members.

Yes, the moderates (Unite for Strength (UFS) / USAN / RBD / independents) won the national offices – President and Secretary-Treasurer – and picked up additional national board seats and many on the Hollywood board as well. But with SAG, the story is never simple.

In fact, paradoxically, 1st VP and failed Membership First presidential candidate Anne-Marie Johnson will continue as 1st VP, ex-president Alan Rosenberg will almost certainly be back on the national board in a matter of days despite winning only an alternate seat, MF leader David Joliffe will be on the Hollywood board and effectively on the national board, and MF leader Kent McCord continues on the national and Hollywood boards.

Meanwhile, none of the key moderate leaders will be on the Hollywood board—Unite for Strength leaders Ned Vaughn, Assaf Cohen, Ken Howard and Amy Aquino are all off of that board, at least as voting members (the latter two will serve ex-officio, as non-voting members). Tough independent and former presidential candidate Morgan Fairchild remains, but she’s not a member of the UFS slate and thus doesn’t occupy a leadership position in that group. UFS-ers Adam Arkin and Amy Brenneman also remain, and perhaps will emerge to fill the gap.

How could the election yield so much change in the national offices and so little in the Hollywood Division? Here’s the scenario:

1. The moderates seemingly have 27 seats on the Hollywood board out of 55 (because 27 = 6 seats pre-election plus 21 additional seats won in the election). That’s a tad less than half (49%). It would seemingly take peeling off one more vote from MF for the moderates to control the Hollywood board.

2. However, look closer. One of those 6 pre-election seats was held by Ken Howard. Under the SAG Constitution and By-Laws, a national officer can’t also be an elected member of the national board or a Divisional board. So, the day he became president, Howard lost his elected seat on the national and Hollywood boards, and, indeed, his name has been replaced on SAG website listings with “(1 TBD).” That leaves the moderates with 26 seats on the Hollywood board out of 54. That’s less than half by an even greater margin (48%). Now it would take 2 more votes, rather than just one, for the moderates to control the Hollywood board.

3. So, Membership First controls the Hollywood board, unless two people break ranks. If that doesn’t happen, then MF will fill the TBD vacancy. Whom will they appoint? Almost certainly Alan Rosenberg, whom they would elevate from national board alternate (which is the office he won on Thursday) to full national board member from the Hollywood division.

Thus, even though Rosenberg’s presidency was so discredited in many members’ eyes that he couldn’t even win a board seat, he’s likely to end up with on anyway. This would take place at the next Hollywood board meeting, which is scheduled for October 5 or 6 (I’m not sure which).

4. Elevating Rosenberg leaves his alternate seat vacant. So, MF would then vote to appoint its longtime leader David Joliffe as a Hollywood alternate (and Hollywood board member). That effectively appoints him to the national board, because one or more of MF celebrity board members (which include Martin Sheen, Ed Harris, Elliott Gould and Ed Asner) will usually be absent from national board meetings.

5. MF will also presumably vote to appoint newly reelected board member Anne-Marie Johnson as 1st VP (the VP office from Hollywood) and as Divisional chair, to the extent that she doesn’t automatically continue in these offices (it’s not clear to me what expired and what didn’t; note that the updated SAG website still lists her as 1st VP). This is possible because Johnson ran for two seats in this election—president, but also, as a backup, national board member. She won the latter.

6. As a result, MF will have skilled leadership as voting members in the Hollywood board room, namely, all four of its core leaders: Johnson, Rosenberg, Jolliffe and, continuing on the national and Hollywood boards, Kent McCord.

7. In contrast, Unite for Strength will have none of its leaders as voting members in the Hollywood boardroom: Ned Vaughn and Assaf Cohen didn’t win seats on the Hollywood or national boards, and Ken Howard and Amy Aquino, as national officers, are non-voting, ex officio members of the Hollywood board, as well as the NY and RBD (Regional Branch Division) boards. One wonders whether Howard and/or Aquino will be able to find time to attend every Hollywood board meeting. In any case, their formal roles would be very circumscribed; under the Constitution and By-Laws, they’re not even allowed to make motions or “initiate any other parliamentary procedures.”

8. Note also that the Hollywood board gets to appoint the Hollywood members of the TV/theatrical contract negotiating committee, if there is one, and that Hollywood has a majority on that committee. That suggests that negotiation will once again have to be handled by a task force appointed by the whole board, not by a committee appointed on a Division by Division basis. (It’s unclear to me whether the task force appointed earlier this year is still in existence.)

9. Remember too that it was the Hollywood board that passed a resolution expressing the goal that SAG “acquire actors of AFTRA,” i.e. in some mystical fashion divesting AFTRA of its actors and absorbing all of them in SAG. Anne-Marie Johnson ran for and won a seat on the AFTRA board—despite saying it was distasteful to run—giving her an internal platform for this goal as well. We can expect MF to seek to terminate the anti-disparagement agreement so that the Hollywood board will be free to express its anti-AFTRA views without financial repercussion to SAG.

Bottom line: SAG’s byzantine governance structure and geographical divisiveness will once again facilitate disunity. Among other things, the question becomes, will SAG and AFTRA be able to reestablish joint bargaining under the Phase 1 agreement? The divided governance certainly makes it harder.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

Posted via web from MovieDriver – posterous