by STEVEN LEIGH MORRIS
The National Stage Union is Sued (Yet Again) by Its Own Members
[dropcap]If[/dropcap] the showdown between the New York-based actors/stage managers union, Actors’ Equity Association (AEA, or Equity), and the L.A. theater community were a soap opera, I’d have changed the channel long ago. This show has been on the air since 1986, and these guys really need to come up with some fresh storylines.
For the uninitiated, last year, AEA announced that it was terminating the 99-Seat Theater Plan, an agreement between the union and its L.A. County membership that’s been in place since 1989, though it’s been regularly modified since then.
The Plan governed the way most of L.A. theater was performed for almost 30 years. It permitted its 7,000-8,000 union actors to volunteer in L.A. County theaters of no more than 99-seats, should they wish to do so, for reasons of artistic fulfillment and/or professional advancement. Examples of the latter include multiple examples of shows produced under the 99-Seat Plan transferring — often with the actors who created those roles — to larger theaters under contract within Los Angeles as well as to other cities, including Chicago and New York.
The Plan also presented a boon of opportunity to playwrights, whose new works wouldn’t stand a chance in theaters with higher production budgets. But that’s another story.
As volunteers under the Plan, union actors had the right to leave at any time. The actors were guaranteed minimal expense stipends per performance from the producers along with union health and safety protections. The 99-seat cap was designed to ensure that producers wouldn’t exploit the actors financially. A ticket price cap was also built in, for exactly the same reason, along with a cap on the number of performances for all such productions. This was all agreed to in the 1989 out-of-court settlement of a contentious lawsuit filed by a number of actors against their union in September, 1988. Those plaintiffs, led by actress Salome Jens and including some of the same plaintiffs who returned for another round in 2015 (Tom Ormeny, Maria Gobetti, Joseph Stern and Gary Grossman), believed that in a field (the theater) with such pervasive unemployment, the union had been unreasonably restricting their right to work under conditions and for reasons that they (the actors) found useful.
Among the litany of complaints in the current lawsuit is that Equity refused to meet for an entire year with the L.A.-based “Review Committee” that was created in the 1989 out-of-court settlement. Among the purposes of the Review Committee was to advise the union on its proposed changes to the Plan. On learning in November, 2013, that the union intended to end the Plan, the Review Committee requested a meeting with Equity to discuss these rumblings. Equity’s 99-Seat Plan Administrator, Michael Van Duzer, granted that meeting eight months later, in July, 2014. But shortly before that meeting, Equity’s Executive Director Mary McColl fired Van Duzer, cancelled the meeting, and never scheduled another.
Now let’s flash back for a moment, to the mid 1980s. You’ll find the complaints on both sides to be almost identical to today’s. This failure of the union to meet with representatives of L.A.’s small theaters, for example, was a pattern that had unfolded about 30 years prior.
Here’s from an article by L.A. Times theater writer Sylvie Drake, reporting on a pro-“Equity Waiver” rally in 1986. (The Equity Waiver Plan is the 99-Seat Theater Plan’s predecessor.)
Compounding the problem, however, is Equity’s refusal to meet with Waiver producers and hyphenated actor-producers, even unofficially. This, several speakers emphasized, has only fueled their concerns and paved the way for an inordinate amount of speculation.
Queried about this refusal to communicate, Equity Western Regional Director Edward Weston said Monday, “I cannot talk to them, specifically because of legal advice. It’s very technical, but has to do with previous court actions brought against Equity.
“I can tell you that they’re acting on incomplete information. They’re laboring under the misapprehension that there’s been some sort of final decision. If there are to be changes — let me stress the if — the membership will make them. [The membership] will decide whether to keep the Waiver as it is, continue it with modifications or eliminate it altogether.”
Two years later. Here’s a letter to the Editor, Los Angeles Times, April 2, 1988 (about five months before the Salome Jens lawsuit was filed):
We are totally opposed to Actors’ Equity’s new “Actors’ 99-Seat Theater Plan” that would reinstate union regulation in our smaller theaters… We feel that it is important to have the choice to do Equity Waiver theater. If the new plan is implemented, it will surely kill this very special kind of theater that we, as devoted actors, cherish. LOU & CARLA FERRIGNO, Los Angeles
And the opposition view, April 23, 1988:
It is not surprising that the producers of Equity Waiver theaters think so little of the actors who volunteer their time. What I find disturbing is that nearly half of Equity’s members have such low self-esteem. If we allow these “work-for-no-pay” producers to bust our union, we will open wide the door to the legitimate producers, who will soon have us working for minimum wage. THOM McCLEISTER, Venice
(It is somewhat ironic, in light of the letter above, that the union is currently advocating for minimum wage as a baseline standard.)
And finally, here’s L.A. Times Chief Theater Critic, Dan Sullivan, September 1988, the same month the Jens lawsuit was filed:
Our hope for the next decade is that small theater finds many rubrics, many forms… Actors’ Equity will have a great deal to say about that. The producers maintain that Equity wants to pull Waiver theater up by the roots, as it did in San Francisco. This is doubtful. Equity has 8,000 members here, as opposed to a relative handful up north. A good many of these members are dying to work before an audience, even if the recompense is less than a regular job would bring them.
They need an outlet. The 99-seat-and-under houses give them that outlet. Kill it and you kill a lot of hope, promote a lot of unrest. If Waiver theater didn’t exist, Equity would have to invent it. In fact, it did.
Despite Sullivan’s “they’ll never do it here” prediction, the union suddenly announced last year that it was terminating the Plan. This was a particularly strange announcement because the aforementioned out-of-court settlement created the aforementioned Review Committee (consisting of some of the 1988 plaintiffs, and representatives from the AEA side). The Review Committee was created to be a kind of safety net for the Plan, to advise the union on any “substantive changes” to the Plan that the union proposed.
Nonetheless, starting in 2014, the union rolled right over the Review Committee by insisting that it was not making any substantive changes to the Plan that would require the Review Committee’s input; rather, it was “eliminating the availability of the 99-Seat Theater Plan” in its entirety. According to the union’s logic, putting something to death does not rise to the legal standard of a substantive change. It’s sort of like a guy accused of murdering his mother arguing, “Look, at some point she was going to die anyway, so what’s the problem?”
The union rolled in with a new plan entirely of its own making, based on what it claimed were the results of surveys it had taken — surveys with leading questions such as, “Would you like more pay?”
Equity’s new plan replaces the actors’ expense stipends with minimum wages for rehearsals and performances in these theaters. It also re-classifies the performers from volunteers-by-agreement to employees-under-contract. This new plan, in theory, would increase production budgets for these tiny theaters up to five-fold, presuming they continue to use Equity actors. Keep in mind that by the union’s own design, these theaters were not intended to turn any kind of profit.
Yet the new plan also includes a few workarounds.
A limited number of established “membership theaters,” for example, could continue to use union actors as volunteers as they had been, but without mandated minimum expense stipends. The union is withdrawing its health and safety protections for its members in those theaters.
Equity’s plan also contains a new 50-seat theater option where actors don’t need to be on salary, but with budget and performance restrictions for the theaters.
And so on.
But here’s where things start to get truly surreal, if you recall the Western Regional Director Edward Weston’s 1988 assurances that if any changes were to come, “the membership will make them” — which is also consistent with federal law, enforced by the National Labor Relations Board.
Last year, the new plan was put to an advisory referendum of the L.A. membership. The union lobbied hard to kill the 99-Seat Plan and promote its new plan, employing phone banks and a PR campaign that included Charlayne Woodard writing in Variety that the time had passed for L.A.’s actors to be “hobbyists.” Woodard wrote that the time had come for L.A.’s actors to be professionals, to make a “living wage” — which is quite the challenge when there’s 90% unemployment for L.A.’s stage actors in any given week, and when the tiny minority of union actors who are employed on L.A. stages work an average of 16.7 weeks per year — according to Equity’s own figures.
Most of the membership understood that, with these stark realities, minimum wage for rehearsals and performances wouldn’t make much difference to their lives, but it would likely result in either the closing of the very 99-seat theaters that afforded them opportunities to work, or that those theaters would turn to non-union actors for their productions. The vote drew a historically high percentage (44.6%) of local Equity voters, and an outcome unprecedented for its lopsided result — a 67% repudiation of the union’s new plan.
In a chapter out of Through the Looking-Glass, the union then argued that the 2/3 majority opinion to preserve the 99-Seat Plan wasn’t really a majority opinion at all. Union councilors have continued to argue on social media that if one includes all the eligible union members who did not vote, what looks like a clear mandate is actually a minority view. Perhaps Actors’ Equity Association has oracles who can discern the opinions of its members who choose not to vote in its referendums, and believes that, furthermore, these oracle-interpreted non-votes should be considered as evidence.