Much Ado . . .

Changes to L.A. theater under the new 99-Seat Contract can be seen only under a microscope

BY STEVEN LEIGH MORRIS

We’ve had enough time to reflect on the changes to Los Angeles’s theater scene in the aftermath of the latest national stage actors’ union skirmish with L.A. theater, a battle which more or less wound down in late 2016. (Prior battles were fought in the 1970s and 1980s.) And what has actually changed, big picture? Not much.

However, the 21 local theaters that used to work with union actors and are no longer able to do so — because they can’t afford the terms of the new Contract and don’t qualify for any of the union’s exceptions — may have a different view of things. This is also not great news for union actors — that in a field of over 90% unemployment, their opportunities to get on local stages for whatever reason have been diminished by 21 theaters.

Few realize that it was as far back as 2012 that the NYC-based union, Actors’ Equity Association (AEA) launched its campaign to eliminate L.A.’s 99-Seat Plan, which had been in place for decades and determined how union actors were permitted to work in theaters of 99-seats or less, i.e. the vast majority of L.A. area theaters. That Plan was an AEA-sanctioned internal code that, by 2012, permitted union actors to work in those intimate theaters for expense stipends of what was then $9 per performance and included health and safety protections provided by the union. (It was the local stage equivalent of a Screen Actors Guild indie film agreement, permitting a necessary first step towards larger projects.) By 2016, many of the more established 99-seat theaters were voluntarily paying actors up to $25 per performance.

By 2012, AEA was already moving to shut that system down. The March 20, 2012 AEA Council minutes that were leaked to Stage Raw contains the following:

If paying theatre jobs are going to be brought back to the L.A. area, Equity will have to deal with the 99-Seat Theatres. The Working Group [an internal AEA committee] does not want to take the Actors who are working in 99 Seat Theatre for $9 per show and move them to a Hollywood Area Theatre Contract where they would be earning $260 a week. That is going from one non-livable wage to another non-livable wage. The goal here is to establish an atmosphere in L.A. where there can be a plethora of decently paying Equity theatre jobs. The Chair acknowledged that this is going to be a big project that is going to take a long time to achieve. Changes to the 99 Seat Plan cannot begin until the first three steps of the proposed process are completed. The Membership will have to be prepared for the changes that will be happening to the 99 Seat Plan and that will have to be done through organizing and educational campaigns.

The union’s “organizing and educational campaigns,” however, didn’t play so well in L.A.

Two years after these minutes were recorded, in 2014, a clandestine local group called Re-Imagine Los Angeles Theatre crafted an anonymously written “call for action” that mimicked AEA’s 2012 goals and, in many ways, its strategies — as though it were itself a local subsidiary of AEA. Re-Imagine delegates were working almost undercover in order to gather signatures in support of this “call for action.” Particularly odd are instructions on the cover page:

DO NOT COPY

THIS DRAFT DOCUMENT IS FOR INDIVIDUAL, IN-PERSON READING ONLY.

DO NOT COPY, SCAN OR SHARE THIS DOCUMENT AT THIS TIME.

Well, that was 2014. It’s not “this time” any more, so it’s worth reporting that among the many claims in this “call for action” was that the 99-Seat Plan was in violation of California labor law’s requirement of minimum wage for all employees, and therefore needed to be rescinded. This reasoning was in lockstep with AEA’s proposal for a new 99-Seat Contract mandating that minimum wage be paid to all of its actors throughout rehearsals and performances in any theater in L.A. County of 99-seats or less.

Theaters, journalists, critics, and many actors in membership companies, raised the specter of an existential crisis from the union’s new budget-busting mandate for these hundreds of tiny venues that had a far deeper investment in art and creative experimentation than in commerce, or in a minimum wage, let alone a living wage. (These were theaters where actors often found refuge in art from commerce.)

In order to test this legal theory (that actors either volunteering, or working for stipends of less than the minimum wage were violating state law), local advocate David Mack filed complaints with the State Department of Industrial Relations on behalf of two actors, Ann Colby Stocking, performing at the Odyssey Theatre in 2013 (complaint filed in 2016), and Dolores Quintana, performing in the 2015 Hollywood Fringe Festival (complaint filed in 2017). Both claims demanded back pay for minimum wage for rehearsals and performances. Stocking had signed an agreement with the Odyssey Theatre acknowledging that she was a volunteer to be paid expense imbursement stipends under the then AEA-sanctioned 99-Seat Plan. The casting notice for Quintana’s Hollywood Fringe show (La Llorona, which was performed four times at Hollywood’s Theatre of NOTE) cited under “Pay” that there was “None,” though producers Matt DeNoto and Kathryn Mayer offered (and paid) expense imbursements.

The first ruling, on Quintana’s case, was issued on December 12, 2017; hearing officer Donald Banks determined that actors volunteering their services in some instances of “non-profit . . . community theater” — such as a fringe festival — violated no law. Banks rejected the entirety of Quintana’s demand. Stocking’s case, filed in April 2016, has yet to be ruled on, over three years since it was filed. 

(An investigator for the Labor Board told Stage Raw that the $9 – $25 stipends offered by theaters under the 99-Seat Plan required actors to submit expense receipts in order for those payments not to be considered salary — which would then have to meet the minimum wage standard in order to be legal. AEA’s new 99-Seat Contract steers clear of the stipend issue entirely, for reasons to be explained later.)

And so raged a battle that flashed across national TV and media outlets — between the advocates for art and the right to create it, versus living wage proponents of the labor movement.

From 2014 through 2016, there were meetings and town halls, some organized by the union for its L.A. members, and some by the larger L.A. theater community, which AEA studiously avoided and even tried to shut down.

(I organized one such town hall in 2016, when I was Executive Director of LA STAGE Alliance [LASA]. The town hall was scheduled to be held at The Los Angeles Theatre Center, a city-owned facility. Upon returning to L.A. from New York, I received word from agitated LASA staff that the Mayor’s Office had received a complaint from AEA that LASA was using a city facility for anti-union activities, and had requested that the pro-union Mayor shut it down. The city eventually regarded AEA’s request as an attempt to suppress an open discussion of civic issues, and the town hall went on as planned.)

There were marches protesting union actions by annoyed/furious/perplexed/brave union actors in front of AEA’s North Hollywood offices. And there was a lawsuit (dismissed in 2017) filed by local luminaries of stage and screen, including veteran actor and former Screen Actors’ Guild president Ed Asner, and actors French Stewart and Vanessa Stewart, against their own union. Passions soared. Screeds about art and commerce abounded, along with accusations: from the suppression of art to union busting. Tropes bounced off the stars. One would have thought this was happening in the 1930s, and that we were all trapped in Clifford Odets’s fist-pumping union play Waiting for Lefty, but in a production directed by Mel Brooks.

Upon reflection, in light of the outcomes, it was a battle unworthy of a battlefield. 

In 2016, AEA got its new Contract installed, and the old 99-Seat Plan expunged — in defiance of 2/3 of its local membership. In a 2015 referendum, despite the union’s “organizing and educational campaigns,” 67% of L.A. members said they wanted the flawed 99-Seat Plan improved but not jettisoned. Within a year, it was nonetheless jettisoned by union management, and replaced with the 99-Seat Contract. The union’s defiance of its own local membership strongly suggests — and is confirmed in retrospect — that this battle was never actually about a living wage or the professionalism of L.A. theater as had been advertised, or even about the divide between commercial theater and experimental theater, or any of the other lofty rhetorical platitudes that accompanied what was, all along, a strategy by a group of union administrators in New York to regain control of their second largest local membership, in Los Angeles.

It was, and remains, an argument about authority, and authoritarianism, about who tells whom how to behave in a professional membership organization. And in this regard, it holds a mirror up to the larger world.

A union, like a government, does not suffer opposition easily. Rather, it patronizes, then demonizes, then bears down upon it. (Democracy relies on opposition for its legitimacy.) Therein lies the source of polarized rage, both within the union or government encampments, and for those members or citizens who feel they deserve some place at the table, but have been denied it.

That the union chose to “promulgate” (their word, which means to impose) its Contract, not only deprived 2/3 of local membership a place at the table, it kicked over the chairs that they were sitting on at the time.

from BLAZING SADDLES, directed by Mel Brooks

And yet, in many ways, when the entirety of the union plan came out in the wash, it retained many virtues of the old 99-Seat Plan. It also retained many idiosyncrasies of local theater that opponents of the new union policy were so afraid of losing. But try telling that to people who have just suffered the indignity of lying splat on the floor after the chairs they were just sitting in got kicked over. 

Public relations continues to be AEA’s Achilles heel. But nor has the outcome of the power struggle in L.A. theater been particularly flattering to any of the players.

The union argued, for example, that certain long-standing, intimate theaters that had the means to pay staff and designers were perfectly capable of paying union actors a minimum wage for rehearsals and performances but simply refused to do so, that they were hiding behind the former 99-Seat Plan for cover. On this point, the union turned out to be right.

In East Hollywood and Los Feliz, the veteran Fountain and Skylight theaters — whose directors were originally among the most outspoken opponents of the union’s new terms, cited financial data on how the new Contract would crush them. Both have now signed it and continue to produce at a similar pace as before.

The Skylight had been presenting plays with non-Equity or Equity-defying actors until this year’s production of a new musical, Bronco Billy, which came with outside financiers who paid the Skylight to develop it, and to use the Skylight as a Broadway tryout. In order to get the quality of actors that such a tryout demanded, the Skylight became a signatory of the 99-Seat Contract. Now having been removed from the union’s “Do Not Work” list, the Skylight will have to cope with the Contract in the aftermath of Bronco Billy. How it does so remains an open question.

Clarifications: Since this article was posted, the Skylight Theatre’s Gary Grossman clarified that the Contract he signed with AEA was for one-show only, and that moving forward, the option was still open that the Skylight would resume productions as a non-union company. Also, The Fountain Theatre’s Stephen Sachs explained that there was nothing insincere about his theater’s initial concerns about the crushing impact of the Contract, which he says has placed the decades-old Fountain in a precarious and stressful situation.   

In Pasadena, the Boston Court Performing Arts Center, which was built from the ground up at 99 Seats in order to utilize the former 99-Seat Plan, had always paid its actors more than the Plan mandated, and it always aimed to produce under an Equity contract. Co-artistic directors Michael Michetti and Jessica Kubzansky both explained in 2016 that there was always a misplaced assumption of wealth at their theater, based on the newness of the facility (monies spent), and that the Center’s large budget included a music venue that had no administrative bearing on the theater. The latter, they claimed, was financially challenging. As they said they would, they signed the new union Contract, noting in 2016 that it would reduce the number of plays put on, as well as the number of actors hired. Stage Raw asked whether or not that outcome still holds, and received a generic response from Executive Director Kyle Clausen:

“During our history we have always compensated our actors, so while there is a learning curve to this new contract, we are continuing our programming as we are learning to incorporate what is required into our financial model.”

The more disturbing story is that of the 21 theaters, both new and veteran, that once used AEA actors and that must now produce plays with non-union or union-defying casts — the most established being The Victory Theatre Center and the Odyssey Theatre (commonly regarded as the granddaddy of L.A.’s small theater movement). And with that divide of Equity and non-Equity theaters, we start to look more like Chicago — the difference being a long and storied theater tradition there, and exactly the opposite here. 

Then there are the new internal rules, or codes, that grant all kinds of exemptions to the minimum wage standard. There’s a Self-Produced Project Code, which permits union actors to put on their own shows if independent of any support from an AEA-approved theater, and pay actors how they please; there’s the Membership Company Rule for L.A.’s membership theaters of 99-seats or less that were established prior to 2015. The Membership Company Rule allows such union-endorsed companies to “work without benefit of a contract,” meaning that those theaters may also pay union actors whatever they please. Gone from union jurisdiction under these codes and rules are the health and safety protections, as well as the mandated stipends that existed under the 99-Seat Plan. These deletions protect the union from any potential liability for violations of state labor laws by these productions.

Membership Company Rule theaters include Sacred Fools Theatre Company, Theatre of NOTE, IAMA Theatre Company, Rogue Machine, Pacific Resident Theatre, Echo Theater Company, Road Theatre Company, Ensemble Studio Theatre-L.A., Antaeus Company, and dozens more.

A few long-established ensemble theaters (Interact Theatre Company and New Musicals, Incorporated [NMI]) were denied Membership Company Rule status, for reasons that remain murky. Furthermore, NMI’s Executive Director Scott Guy says that after ten requests for a meeting with AEA to discuss the union’s ruling against his theater were all rebuffed, NMI refused to sign the 99-Seat Contract and was placed on the union’s Do Not Work list.

And finally, there is the 50-Seat Showcase Code, which permits any local producer using AEA actors to “work without benefit of a contract” if the theater has a capacity of no more than 50 seats and a budget of no more than $20k, to put on a play for no more than 16 performances.

(Note: the word capacity does not appear in the Code, just “50 seats,” but Stage Raw recently learned of a producer whom AEA denied use of the 50-Seat Code, despite there being precisely 50 seats in the venue, because the venue had the capacity to add more seats, should the need arise.) 

Playwrights’ Arena — L.A.’s premiere presenter of exclusively L.A. scribes — has found a happy home under that 50-Seat Showcase Code, though artistic director Jon Lawrence Rivera says that he has expansion plans that include Equity contract productions.

In other words, the landscape in 2019 is different from what it looked like in, say, 2012, in subtle rather than substantive ways. Which raises three questions:

Was AEA’s authoritarian approach, and the acrimony that ensued, really necessary?

Would the outcome have been so different had the 99-Seat Plan been emended, per the expressed will of AEA’s L.A. membership, to ensure that our more established and funded theaters rise to their occasions and pay actors the prevailing minimum wage — especially if those theaters could afford part-time or full-time staff?

And finally, back to those 2012 AEA Council minutes, how much does any of this contribute to theater actors making their living from the Los Angeles stage (the ultimate goal of any trade union, and the starting point of this entire cabal) — particularly when so many productions at the mid-size theaters that pay something approaching a living wage are cast from New York? Kudos to the Geffen Playhouse and South Coast Rep for casting so many local actors, but the Geffen and SCR can’t carry the entire region on their shoulders. 

What we have is a new handful of theaters that are now compelled to pay minimum wage (currently $13.25 per hour) for rehearsals and performances, from six to ten weeks at a stretch (the average length of rehearsals and performances for one production). That is going to pay nobody’s rent or mortgage in Los Angeles. Working at Starbucks is more secure, if that’s the standard, and offers better health care. Of course there’s TV/streaming work. Oh, right, that’s why everybody’s here to begin with.

Seven years have passed since those 2012 AEA Equity Council minutes were recorded, the 99-Seat Plan is dust, and the union’s new 99-Seat Contract does precisely what those minutes said should not happen — it moves actors at a very few theaters from one non-livable wage to another non-livable wage, while removing access for union actors to 21 theaters.

Unless attending theater in L.A. suddenly becomes hipper than Leaving Neverland, unless there’s some tectonic shift in the values of our culture — there have been tectonic shifts, but alas, not in our direction — for the time being, theater in Los Angeles will remain a vibrant, infuriating, misunderstood, abused, and sometimes breathtaking avocation; a largely part-time enterprise of inspiration mixed with sloppiness and rigor, and a paycheck that might cover a few sushi lunches and a few rides on Lyft. 

As for the “plethora of decently paying Equity theatre jobs [in Los Angeles],” that AEA envisioned in 2012, that would be sweet. I have no idea where the money will come from. I doubt they do either.