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After the Fallout: Effects of  Equity’s new Agreement for LA

By Steven Leigh Morris

We have the first evidence of the impacts from Actors’ Equity Association’s new, promulgated 99-Seat Agreement in Los Angeles County theaters.

The idea underlining the Agreement was that it was supposed to incentivize producers to pay union actors a living wage – the first step being minimum wage to actors and stage managers for all rehearsals and performances in theaters of all sizes – replacing a system of volunteerism with steadily rising expense reimbursements. The narrative of providing, for the first time ever, a living wage to LA’s stage actors, and thereby spiting producers who were profiting off their backs like Walmart execs, might make for an inspiring if overwrought HBO flick, but it’s as grounded in the empirical reality of 2017 LA theater as a Polar Bear wandering across the Mojave Desert.

The on-the-ground situations and positions are now so bizarre, the only reliable conclusion to be had is that we live in post-truth era, where nothing is what it seems. Everybody is wrong, and everybody is right. (I hope that’s a helpful conclusion.)

We Don’t Get No Stinkin’ Members

Let’s start with the companies that do not fall under the protection of the “membership company” carve-out, an exception that actually permits those actors to take a “pay” cut from $15/performance (actually an expense stipend, not a salary) to zero, while union health and safety protections are removed.

This is a peculiar way for the union to fight for workers’ rights, but that’s another story.

In reality, under the old Plan, many of these theaters were voluntarily paying actors up to $25/performance, which for shows lasting under two hours, exceeded the minimum wage.  

Exhibit A: The Boston Court Performing Arts Center– one of the poster children for the “they’ve got all this $$$, yet they still can’t pay their actors minimum wage” complaint. Boston Court is currently negotiating with AEA to sign the new Agreement. Co-artistic director Michael Michetti explained that it was always his theater’s intention to move to a union contract, that they had pleaded with the union for a tiered system that would allow them to arrive at the terms of the current contract with steady pay increases over three years, but the union said no.

Michetti explains the real life fallout: “Our 2017 season will be comprised of only three plays, not our usual four, and will employ the smallest number of actors in our history in order to afford to be in compliance.”

Those actual numbers are 10 actors for the entire 2017 season of three plays, contrasted against 19 actors in 2016 (also three plays, in preparation for the arrival of the new Agreement), and 21 actors in 2015 (four plays), and 21 actors in 2014 (four plays). These figures do not include understudies and stage managers. So for Theatre @ Boston Court, an intimate theaters with one of the larger budgets in the region, the Agreement has resulted in a 25% reduction in the number of plays produced, and a 50% reduction in the number of actors cast (not including understudies and stage managers).

Then there’s the Fountain Theatre, which is now also poised to sign the very Agreement that it insisted, in public, would not and could not pencil out financially for them. That it could and it will pencil out provides grist for the mill of all the union advocates who charged (in every sense of that verb) that intransigent producers were bluffing in order to continue impoverishing actors – an overblown accusation that fails to account for what the actual costs to the Fountain Theatre will be to the range and ambitions of its future productions — now that, like Boston Court, the Fountain has cast its lot with continuing to use union actors.

[Note: See UPDATE at the bottom of this article.]

Meanwhile, Theatre Unleashed, the Odyssey, 24^th Street and Skylight theaters have announced their intention to use only non-Equity actors.

Over at Playwrights’ Arena, which presents only new plays by largely little known local scribes, artistic director/producer Jon Lawrence Rivera pretty much blew a fuse after he inquired to AEA how he might keep his production of Bloodletting going at the tiny Atwater Village Theatre. (The production opened in 2016 with some AEA actors under the old 99-Seat Plan, and Rivera wished to extend it into January.) Under the new Agreement (which took effect in December), he explained, his Actors would actually be receiving a pay cut of about 10%, since, under the old 99-Seat Plan, he had been paying them $25/performances, slightly over minimum wage while also being over-and above the $15/per show requirement of the old Plan.

The union’s first response was not to return his call, but instead to contact his actors and perform a sleuth-like investigation of what was going on at Rivera’s theater. Rivera then furiously lit into the union, in writing, for its lack of courtesy. His sharply worded email instigated apologies from AEA reps, and the accommodating suggestion that Rivera’s production actually qualified for another of its three carve-outs – the Showcase Code – in which Rivera wasn’t required to pay his actors anything at all.

Rivera says he’s happy to use the Showcase Code, and will continue paying his cast $25/show, voluntarily, even though there’s no union requirement that he do so. Naturally, this calls into question the union’s “greedy producers/living wage” mantra, and pretty much vaporizes the images of Sally Field in Norma Rae. It’s actually Rivera, the employer, who’s Norma Rae, while the union is just fine with its members volunteering. I warned you, it’s 2017, and nothing is what it seems.

Meanlingless Ratios

Let’s move on to sorting out post-truth policies. The new 99-Seat Agreement offers some tantalizing ratios: “If the total number of cast members is between 1 and 4, at least 2 Actors must be covered by this Agreement; if the total number of cast members is between 5 and 10, at least 4 Actors must be covered by this Agreement; if the total number of cast members is more than 10, at least 5 Actors must be covered by this Agreement.”

“Covered by this Agreement” means that number must be union actors. Those not covered by the agreement would be non-union actors.

Michetti said that whether or not Boston Court hires Equity or non-Equity actors, based on the ratio permitted under the new Agreement, the theater will pay all actors equally.

“Boston Court has always maintained a ‘favored nations’ policy.” Michetti explained. That sounds benevolent, and it is benevolent; however, the theater actually has no choice: The minute one actor is being paid a salary, all employees performing the same job (acting) fall under the minimum wage rubric of California State Labor Law. The key distinction is that the union actors will have the workplace, safety and grievance protections provided by AEA, whereas the non-union actors will not.  

Another producer explained that for a production in which he was planning to employ 14 actors and was cringing at the cost – over $20,000 just for rehearsals, before the show starts its first preview – union reps, trying to be amenable, explained that the Agreement (which sets a pay rate minimum at the local minimum wage) need only be applied to five union actors, rather than 14. “But what about the other, non-union actors?” he asked.

The producer relayed the response as “We don’t care.” Meaning, we don’t care about the non-union actors. Naturally, the union doesn’t care. If one of the non-union actors files a complaint with the State Labor Commission for the company’s failure to pay minimum wage, it’s the producer, not the union, who will be liable.

In short, in terms of costs to producers, the ratio of union to non-union actors permitted under the new Agreement is entirely meaningless. If the producer wishes to hire 14 actors, there is no savings by having only five of them be in the union. That producer said that his only option was to bypass the Agreement and hire an exclusively non-AEA ensemble.

And Then There’s the Knotty Problem of Financial Core

The final item of post-truth truth derives from the issue of financial core, the Constitutionally protected right of union workers who disagree with their union politically to pay dues reflecting administrative costs, but not the costs of the union’s political lobbying. The original Supreme Court ruling was a workers’ rights initiative that continues to infuriate unions across the country, permitting union workers who disagree politically with their union, to remove themselves from all of their union’s rules and restrictions (i.e. they may work in both union and non-union shops), while not being expelled from the union. The reasons that financial core ruling is anathema to unions is that its permission for financial core dissidents to work union and non-union shops undermines the ability of unions to negotiate collective bargaining agreements for its full members.

“Not being expelled from the union” is a crucial point generally muffled by unions themselves.

“I wouldn’t expect most labor unions to be organs of truth when it comes to financial core,” said Richard Kopenhefer, a partner in the Labor & Employment Practice Group at Sheppard, Mullin, Richter & Hampton LLP’s Century City office. Yet that wasn’t entirely true, either.

Several local union actors called AEA to inquire about the distinction between going financial core and resigning from the union. They were each referred to Membership Director John Fasulo in the New York office, who consistently served up the claim that there is no difference.

I put in a call to Fasulo in order to obtain verification of his claim. That inquiry was returned a few days later via an email from West Coast Regional Director/Assistant Executive Director Gail Gabler, who explained that because I am not an AEA member, the union was not at liberty to discuss its financial core policy with me; however she advised union members to contact AEA directly.

Meanwhile, the inquiring actors explained their conversations with Fasulo to me, based on notes they’d taken; some provided recorded conversations they’d had with Fasulo.

Fasulo explained to one actor that a political protest – the instigating reason for a financial core request – concerned a member’s objection to the union’s endorsement or lobbying for, say, a political candidate or political cause, and had little to do with the way AEA had promulgated its new Agreement in Los Angeles. When one actor pressed Fasulo that he objected to the way AEA had spent his dues for the express purpose of eliminating L.A.’s 99-Seat Plan, Fasulo conceded that such a complaint could be construed as political.

He noted that by claiming that [financial core] status, an actor is rescinding membership, and that such an actor wouldn’t be a card carrying member, wouldn’t have any benefits, such as to audition with union members, to vote, to attend meetings, or anything like that – that it’s essentially like a resignation.

For the purposes of acting, the actor inquired, could he still work on an Equity contract, correct?

Fasulo replied that would be correct, but that anyone can work on an Equity contract — that anybody who is offered an Equity contract can work on an Equity contract.

The actor asked whether a producer  could still hire him as an financial core person and that would count toward the number of Equity contracts they have in a show?

Fasulo replied that he would be counted as a non-union member. (That point may not be true.)

The actor asked whether he would exist anywhere as a union member, like in some data base.

Fasulo said he’d be part of the union data base because he had been a member, but he wouldn’t still be a member. That in the future if he wanted to rejoin, he’d have to pay the re-intiation fee, currently $1,100.00, and have his application approved by an executive committee, but there’s no guarantee that application would be approved.

Most of what Fasulo reported is consistent with the law, but not all.

The big sin of omission lies in what the National Labor Relations Board information officer described as “the murky” area of financial core – the part of the law that forbids unions from expelling dissidents who request financial core status.

Here are two seemingly contradictory truths: a financial core dissident is a “dues-paying non-member” of the union. He/she may not be a “member” but remains in the union. He/she may lose all manner of union privileges — the right to go to the front of the line in auditions, the right to attend union meetings, the right to run for union office, the right to vote for union officers – but remains in the union, though such actors are not permitted to  represent themselves as a union members.

Furthermore, as Kopenhefer points out, contradicting Fasulo’s explanation, “In a mixed-member show, a [financial core dissident] is the equivalent of an Equity member,” rather than a non-union actor, when it comes to calibrating ratios. “When they are working at larger theaters under a union contract, the union must even take grievances from a financial core dissident, and process them. When they’re working on a union show for the purposes of employment, they are exactly like a union member.”

This raises the question of how a financial core dissident gets hired into mid-size theaters such as the Geffen Playhouse, Center Theatre Group or South Coast Repertory, which employ only full union members.

According to Fasulo, under such a circumstance, the actor must provide the union with its Equity contract and apply for re-admission to the union – and, as already noted, there’s no guarantee that such admission will be granted, the result of which could be the active blocking of employment.

The Geffen Playhouse casting director Phyllis Schuringa notes that in matters of casting, her theater defers to the union, that all actors at the Geffen, “must be in good standing with the union.”

This theoretical circumstance flies in the face of what the National Labor Relations Board describes as the obligation of both the union and the theater not to “impede the terms and conditions of employment” of financial core dissidents.

Under such a circumstance, the dissident could file an action with the NLRB for an unfair labor practice, which it would investigate, seeking evidence of “what was said” or of a union policy or action that blocked employment.  

The NLRB adds that the union has a wide berth to determine how it treats financial core dissidents, so long as it doesn’t “impede the terms and conditions of employment.”

So, yes, a financial core actor might be compelled to audition with non-union actors for an Equity job. The NLRB says that so long as the actor is able to audition, the union is within its rights to compel that restriction. However, if the actor can legitimately argue that, because of that condition, he or she was denied employment, there might be a case for the NLRB to investigate.

Welcome to 2017. Long may we prosper.

UPDATE 6 p.m. 1/14/17: The Fountain Theatre was unable to respond to Stage Raw’s inquiry by the time this article first posted, but the theater wishes to go on record:

“The Fountain Theatre has stood at the center of the battle against Actors’ Equity Association’s attempt to dismantle and fragment the intimate theatre community of L.A. with its Promulgated Plans that favor some of our theatres and disfavor others. We have hosted countless Pro99 and Review Committee meetings at our theatre. We offered our name in pledges of support. Our Producing Director served as a volunteer on the Review Committee, dedicated incalculable hours over nearly two years of meetings, conference calls and intense negotiations with Equity representatives, and even took the bold step of including his own name as a plaintiff in the lawsuit against the union on behalf of the L.A. intimate theatre community.

“Our position has been that the Fountain Theatre would continue to operate under the 99-Seat Plan, as we always have, even in defiance of the December 14th deadline, until the court made a ruling, which it did on December 8^th. Sadly, the decision was not in our favor. We are angry and heartbroken because we believe that everyone will suffer: the intimate theater community, the members of Actors’ Equity who will lose opportunities, and the citizens of Los Angeles who will be deprived of the benefits that the 99-Seat Plan has provided. But we, as an organization, need to move forward.

“Since the Court’s ruling, we have struggled with the challenge of extending our current production, produced under the 99-Seat Plan, with Equity actors who now are threatened with reprisals by their union. We have told Equity that we will not sign the new agreement going forward, and have negotiated terms only for the extension of our current production. We do so under protest and duress. Our position that Equity’s tactics are harmful and destructive to our theatre community has not changed. But the Fountain Theatre will not become a non-union theatre. We are committed to delivering to our audiences the highest level of work possible. That necessitates, in addition to talented non-union actors, access to the echelon of professional, trained and experienced Equity talent pool.

“The Fountain will fight to remain a safe haven for all actors to exercise their art. We blacklist no one. Our doors — and our stage — are open to the finest artists we can find.

“All of us in the intimate theatre community find ourselves in difficult, unchartered territory. Issues remain unresolved. More challenges lie ahead. Further action may be taken. Our common goal, together, must be to ensure that Los Angeles continues to be a city where meaningful, high-quality theatre is created and to maintain the spirit, artistry and integrity of our intimate theatre community.”