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The Way Forward: Restoring Power to the People Through a Higher Unionism

by Myron Meisel

In the battle for creative autonomy and artistic expression, the survival of dedicated small theater in Los Angeles has finally reached an urgent pass. If Actors’ Equity Association (AEA) is not otherwise prevented from implementing its scorched-earth diktat on December 14, the choices for local AEA actors and the options for local theater become sparse and stark. The great purge of the local theater scene will have commenced, and once embarked upon, will become ever harder to restrain, let alone stop, within the confines of AEA rules and power.

There is a petition signed by over 60 theaters endeavoring to ignore AEA’S edict until the current litigation is sorted out. I find this to be an illusory strategy, wishful thinking, a passive-aggressive response where the aggression is transparently a bluff. Understandably, people are shell-shocked and prone to feelings of helplessness. AEA can, and almost certainly will, aggressively enforce any deviations of its rules against individual members and, to the extent it has a contractual relationship, against member companies.

At worst, the authorities will truncheon the demonstrating malcontents into submission. At best, there will be more lawsuits with ambiguous outcomes, even as AEA ruthlessly proceeds to demolish the current, successful administrative models of established organizations doing impressive work. I do not pretend to understand why there has not been an effort to restrain AEA from proceeding, but then I have no inside information or awareness of anyone’s strategies and tactics, or lack thereof.

So, if the disingenuous AEA plan takes effect, as the title of Lenin’s tome would have it: What Is To Be Done?

 The only answer may be for actors, and for the companies with whom they choose to work, to seize their own power to organize for their own benefit and welfare. Everyone must hang together, or surely they will be hanged separately.

You may ask, as Tevye put it, what right does a critic or commentator have to prescribe or exhort on behalf of what perhaps ought to be regarded as an internal conflict between actors and their organization? No right. Instead: an interest, a concern, and indeed, an obligation, to speak out as voice for the audience, the community, the culture, the body civic and the business health of Los Angeles, all of which involves vital concerns of all of us.

The evisceration of a unique theater environment that many, including, I believe, most actors who participate voluntarily in the practice of their theater art and craft, will prove an irreversible loss of a fragile and novel ecology of creative energy and irreplaceable achievement that may mean nothing to distant New York bureaucrats, but constitutes an essential element of our own local identity, pride and value. Besides, there is a high-profile federal lawsuit pending, and that makes the matters in controversy subject to general public discussion and concern. That is why the Los Angeles Drama Critics’ Circle took the unprecedented step of weighing in early in the controversy to express its dismay, and why it recently reiterated its stand in light of disheartening developments over the ensuing 18 months.

And make no mistake: The unyielding goal sought by AEA long before it initiated any action has always been to eliminate the 99 Seat Plan and its progeny into irrelevance, and, ultimately, into oblivion. If that were ever in doubt, no question now remains as to their intention. I believe there is a pathway to preserve and materially improve the current system successfully, despite AEA’s opposition, and achieve equitable goals for all actors and artists motivated to create theater for their own benefit and that of their audiences and the public.

Words That Dare Not Be Spoken

 The words that dare not be spoken, in my proposal, will make many good people angry. They are historically unsavory, and not without reason, as they have been misappropriated by deplorable folk. Nevertheless, the time has come to divest them of their bad associations and understand them for what they can do to secure the rights of Los Angeles theater actors, and first they must become part of the conversation by removing the stigma by saying them aloud:

“Financial Core” (make sign of the cross here).

Someone has to say these words, because as we now stand, they are, however improbably, the last, best hope for the future. They have been associated with anti-union sentiment, not least with respect to their abuse by certain truculent members of the Screen Actors Guild (and even some writers and directors), primarily in the late 1970s to mid-1990s, although I believe (without full knowledge of the facts) that those who chose this legal option were relatively few, however obnoxiously vocal and politically misguided.

There are a great many, severe misunderstandings about financial core on all sides, not helped by some ambiguities in the Supreme Court decisions interpreting that the right is one established by the original foundational labor law, The National Labor Relations Act of 1935 (aka The Wagner Act) and, subsequently modified and limited by The Taft-Hartley Act. The original 8-0 ruling in NLRB vs. General Motors (https://caselaw.findlaw. com/ us-supreme-court/373/ 734.html) was issued by the 1963 Warren Court, the most liberal U.S. Supreme Court ever assembled in American history (new member Justice Arthur Goldberg, as the former Secretary of Labor, recused himself). Unanimity was probably assured by allowing the most conservative justice, Byron White, to pen the opinion.

“If an employee in a union shop unit refuses to respect any union-imposed obligations other than the duty to pay dues and fees, and membership in the union is therefore denied or terminated, the condition of membership is nevertheless satisfied and the employee may not be discharged for non-membership even though he is not a formal member.”

At the time, the ruling was regarded as a significant pro-labor victory, particularly since the above quotation simply affirmed the statutory language and was found not to affect the efforts underway to establish union shops. The recognition by the Court of the right of union members to remain union members against the wishes of their union, of the right to financial core participation in union benefits was a corollary holding, later clarified in greater detail in the 1988 Communications Workers of America vs. Beck case, in which it was determined that financial core obligation does not include “the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment.”

Essentially, electing financial core status means that a worker is no longer a participating member in the business of the union, but is a union member nevertheless. He or she can neither vote nor hold office nor attend meetings — although under the circumstances that have unfolded over the past year, West Coast voters have almost no say in AEA policy, regardless; so the utility of a West Coast vote, the efficacy of presence at meetings and the prospects for holding office appear largely imaginary for most local theater actors. Nevertheless, as a beneficiary of union representation in collective bargaining, contract administration and grievance procedure, the worker must pay all dues allocated to those functions, if not those spent on lobbying and other such activties (including, it may be noted, campaigning against a non-binding referendum generating more opposition than any proposal in AEA history). Though figures change with circumstances, the dues discount under financial core ranges, for example, from 10-12% at the Writers Guild, to about 3% at the Screen Actors Guild, the latter being widely regarded as a disingenous allocation.) However, financial core workers may work on any non-contract productions if they so choose, where active members may not.

I would submit that Los Angeles actors (and other artists) create their own contract, built upon the bones of the old 99 Seat Plan, with their companies and the participating 99-seat houses. It must initiate desired improvements, create a practical schedule for improving compensation where feasible, guarantee working conditions superior to those in AEA’s pending rules, and provide for private mediation for grievance and mandatory impartial arbitration of grievances and convincing enforcement remedies. Companies may exceed the benefits afforded. Actors will know, with certainty, when they otherwise volunteer their time and creative effort, that an openly-arrived at agreement, ratified by those who are directly impacted, will protect their rights and interests.

Obviously, assuming financial core status is considered anathema among unionists, and that is an opprobrium not to be taken lightly. However, the current threat represents a unique situation and opportunity that I believe may eventually be substantively distinguishable in principle.

For one, in this instance, AEA is behaving as an implacable adversary to the will, needs and desires of its Los Angeles membership. It is for just such reasons that Congress and the 1963 Supreme Court allowed for financial core status. If AEA prevails, its 7,000 to 8,000 Los Angeles members, in the face of the current 90% unemployment rate, will eventually be prohibited from working on the stage as they choose, even for their own personal benefit and satisfaction, under virtually any conditions. Even the membership company carve-out is vulnerable to the union flame thrower, since such a carve-out exists in no other U.S. city. From my perspective, the union is behaving more as a dictating management than a representative body. Their slavish use of the classic management strategies for suppressing worker organization has been a dead giveaway.

Certainly, the election structure within the organization (and admittedly, that is an internal matter) is prohibitively biased against any opportunity for Los Angeles area members to be heard in areas of their unique concern. Many municipalities have had to reform, under court order, their at-large election districting because it was transparently contrived to deny, in some cases, majorities of minority voters from ever electing one of their own to office. (See, an example among many, the city of Costa Mesa, or Gwinett County, Georgia). Note the immediate resurgence of voter suppression as soon as the Voting Rights Act was stripped of its pre-clearance provision: It stings to think so, but it’s an analogy that, however imperfect, has some applicability to Los Angeles union stage actors.

People have scratched their heads over how little AEA seems to care about the working conditions currently guaranteed by the Transitional Plan. Similarly, does any reasonable person believe that the institution of minimum wage payments will result in one single actor becoming able to make a living doing local theater? No, and neither does AEA. It’s merely a straw argument to figleaf its intention to eventually scorch the earth so no unionized theater will exist in Los Angeles except for those that offer contract pay, even if that’s little or no theater at all.

Oh, except for all the touring companies of commercially successful shows that hire non-union actors with impunity because the union is too toothless to bring those abuses to heel. And, in their eyes, those contract jobs that do remain will go disproportionately to their New York members, the ones who have their respect and pretty near sole attention. (Angeleno actors make great understudies, and those are good gigs.)

Besides, does anyone doubt that AEA already regards the entire small theater movement in Los Angeles to be so profoundly anti-union that it must be eradicated? True, invocating even the possibility of “financial core” will inflame them, but really it will just be processed by them as one more element of already existing bias.

An Immodest Proposal

Does anyone remember the symbolic resistance to the Vietnam War embodied in the burning of one’s draft card? Psychologically, it was at first a hard act to commit if one thought of the consequences to oneself, yet somehow when it was shared with others equally passionate, it became possible, for some even essential. And committed in large numbers, the practical risks meaningfully reduced.

With financial core status, actors can work unimpeded in Equity productions, and contentions to the contrary notwithstanding, they can present themselves to prospective employers as “AEA eligible.” It is a tough and deeply personal decision to make. But do not do it alone. The remorse that such a decision invites may be unwarranted. Companies can discuss and elect to declare their status collectively.

Collective action cannot, must not, stop there.

 All actors deserve to have their rights protected, their situation clearly defined, their working conditions suitable and specified.

What matters is that all these issues can be addressed either within individual companies, or far better still, across the entire community of artists and theaters. This is a case for real collective bargaining, at the grassroots level, not imposed by distant negotiators with no sincere comprehension of or empathy for the issues that matter on the local level.

This is no easy task. This course of action demands that a life of proud union membership and associated idealistic values be challenged, though not necessarily repudiated. Instinctively, it goes against our sense of ourselves as devoted adherents to the workers’ movement. Speaking only for myself, briefly a member of the Teamsters Union long ago, it feels like it contradicts principles forged in the emergence of our political consciousness. Yet the times demand it, if only to retrieve a measure of volition and control over an artist’s most personal needs and drives, which I would urge constitutes an even more important social and political mission.

To accomplish this daunting task will absolutely require the unceasing application of good faith, good will and shared values by everyone concerned. Yet, if there were ever a moment when such extraordinary conditions actually exist in the real world, it is now, when the local theater community has never been more united in its goals, more aware of its mutual interest and more committed to its artistic survival.

And to those to whom “divorcement” from full membership status in AEA troubles the conscience, I would propose a moral salve: Don’t take advantage of the “financial core” discount in dues, which I have no doubt AEA will account for in the same bad faith as studios calculate profit participations. If you feel fi-core members are “free riders”, don’t accept that perk and pay the full freight anyway, if you can, if pulling your fair share of the weight for AEA costs softens any sentimental dismay at disloyalty. And keep in mind that those additional dues will, among other things, go to finance the ongoing AEA campaign to muzzle and restrain its membership from practicing its art as individuals may feel the need to do so. I imagine many other local AEA members may feel appalled at the free, one-sided spending of their dues in opposition to their own cause, not to mention the accumulation of exorbitant lawyer fees as leverage over the plaintiffs in the case.

AEA will promulgate unimaginable amounts of disinformation and general calumny. There will be threats of blacklisting, which happens to be illegal. You will still be able to work for pay. You may also work for yourselves, voluntarily, for your own artistic needs, and you deserve to do so under appropriate and clearly defined conditions and circumstances.

There has also been some Chicken Little-like squawking about AEA enlisting the collusion of SAG-AFTRA to take joint action against those opting for core member status. SAG-AFTRA has no obligation to do so, has no true self-interest in doing so, and will not do so, not least because in all likelihood, such collusion would, in my opinion, carry a serious risk of criminal action, or at the very least, an actionable unfair labor practice. Expect some words, perhaps, but no action. Do not be deterred by the hand-wringing of the otherwise unsympathetic.

Recall the slogan of the meaningless referendum campaign: “Change, just not this change.” I say, solidarity forever, for union makes us strong. Union, yes. Just not this union. Stop asking permission for change. Make it with your own hands for the benefit of all.

If the work being done in 99-seat theaters is not deemed “professional” enough for AEA to endure, remove it from the jurisdiction of AEA. The sole impediment is AEA’s jurisdiction over its own members. Render unto the AEA, then, that which is the AEA’s, and let them do their job as they see fit in the budgetary realm they choose to consider worthwhile. And render onto yourselves and your own community, of actors, theaters and audiences, that which properly belongs to you, and only to you, and gratefully, to those of us in the audience and the community who appreciate and support what you create.

Stop seeking permission to do what you want, what you need, to do.

Build your own church.

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the power of the earth, the separate and equal station to which [they are entitled}…”

It cannot wait. It is, irresistibly, now or never. The time to strike is now. Feel the strength of your unity. Actors, act!

The opinions expressed by the author are his alone, and may not represent those of anyone else associated with Stage Raw.