Digital Media Law: January 2009

Saturday, January 31, 2009

Hollywood Labor’s Long-Term Future: More Unrest

After a year and a half of Hollywood labor turmoil, we’re finally nearing a SAG deal and the end of this negotiating cycle. Will this be the beginning of a new era of labor peace in the industry?

Unfortunately not. Silicon Valley is not going to suddenly take an Ambien and stop innovating. That means that a scant two years from now, when negotiations for 2011 renewals of the guild and union contracts begin, negotiators will be challenged with even newer forms of “new media,” new business models, and new economic realities.

Thus, the cycle of anxiety, distrust and failed bargaining may begin again. And so on when those renewals expire three years later, and again three years after that, and so forth. Hollywood is now yoked to the computer, Internet and consumer electronics industries, all of which evolve at breakneck speed, dragging slower-moving Hollywood along like a clumsy partner in a three-legged race. That has toxic consequences for the entertainment industry’s labor relations, including, notably, an increased risk of strikes, stalemates and slowdowns.

What to do? I suggest that Hollywood guilds, unions and management form a joint New Media Working Group. This body should have members from management and from the Writers Guild (WGA), Directors Guild (DGA), Screen Actors Guild (SAG), AFTRA, IATSE, and management. Perhaps the AFM (musicians union) should be included as well; I don’t know enough about that union to venture an opinion.

The function of the Working Group would be to analyze and report on developments in new media and the possible resulting effect on existing labor agreements and relationships. The goal would be to track those changes on an ongoing basis and generate various options for addressing them in the collective bargaining agreements.

By doing this work on an ongoing basis, it might be possible to reduce the paroxysms of last-minute activity that characterize the negotiating process today. And, by conducting this work jointly, it might be possible to bring the various unions, and management, onto the same page in their subsequent negotiations: that is, to ensure that everyone has a common knowledge base from which to work.

To do its work, the committee should meet quarterly or even monthly. It will need research support (sharing of data) from all parties, and a budget for purchase of research reports and other such expenses, consultants as necessary, and perhaps a staff person who would travel regularly to Silicon Valley. The committee would build relationships with major players and information sources—agencies, attorneys, other guilds, academics, research firms, tech companies, and the like.

Silicon Valley will continue to innovate, and new media will continue to evolve. Yet, when it comes to guild agreements, the entertainment industry seems content to snooze between contract renewals. Isn’t it time to try a different approach?

Portions of this article previously appeared December 14, 2007, as Memo to DGA - Please Propose a Tri-Guild New Media Adjustment Committee.

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Friday, January 30, 2009

Screen Actors Guild President Calls Actors “Frightened Little Children”

In an extraordinary interview with The Wrap, SAG President Alan Rosenberg said that “actors are frightened little children,” and referred to his opponents—a majority of the SAG board—as “liars and manipulators.”

Rosenberg also said of himself that “my life sucks,” and then, accompanying himself on guitar, actually sung a plaintive folk song of his own devising, whose lyrics included such lines as “Al and Doug and Doug Allen?, they stand up way too hard . . . I will bury them right in my own backyard.” The song is cast in the voice of an ungrateful union member: “I don’t care about nobody. No, I only care about me.” In the interview, Rosenberg notes that he’s not a singer, a guitar player, or “even a songwriter” (all of which is evident), but adds that his first cousin is rock and roll star Donald Fagen of Steely Dan.

The spoken-word portion of the interview also includes a defense of fired national executive director Doug Allen, and the conversation comes just days after an email from Rosenberg to SAG members in which he practically beatified Allen. Describing Allen in the interview as “extraordinary” and “the best thing that’s ever happened to our union,” Rosenberg adds “Here I am—my partner was fired. . . . It’s certainly disappointing.” Taken together, the letter and interview suggest a strong friendship, as well as professional partnership, between Rosenberg and Allen.

Rosenberg’s pain is palpable: “I’m angry. . . . Sad. Disappointed. The last two days I feel sort of isolated. I’m shut out from planning meetings. I feel isolated from the operations of the union.” Let it be said, no one should take any pleasure from Rosenberg’s suffering. Sympathy is a better reaction.

That sympathy, however, can only be mustered with conflicting emotions. After all, this is the man who presided over a 28 hour board meeting at which he suppressed the board’s moderate majority by abusing parliamentary procedure and calling his own lawyers “liars” (apparently a theme with Rosenberg), yet in the interview he cops merely to having done “a little filibustering.”

Rosenberg, whose term as president ends in September, adds that “I’ve seen all my hard work of the past three and a half years amounting to nothing.” It’s hard to empathize, given that both the outgoing Rosenberg and the ousted Allen have left the union with seven contracts that have expired (or nearly so, in one case), as well as having riven the union with conflict.

The last few days, which follow Monday’s firing of Allen just a day after the SAG Awards, seem to have been a time for unusually candid interviews (although none with Allen himself). A series in Back Stage magazine’s Blog Stage blog provides additional examples. For instance, a Rosenberg ally, SAG 1^st VP Anne-Marie Johnson, acknowledges that she wants to strip the rival AFTRA union of jurisdiction over actors, and all but implies that her and Rosenberg’s Membership First faction would fire newly installed interim National Executive Director David White if they regain power.

The second interview in the Back Stage series features NY board member and Membership First opponent Richard Masur, who says that SAG should accept the new media terms of the AFTRA deal as is. I agree that SAG should abandon as unattainable for this negotiating cycle its demands for an improvement in new media, but I do hope there’s room for bettering the AFTRA deal in other ways, as I intend to discuss in another post.

Finally, Paul Christie, another NY board member and former 2^nd national VP, puts forth the sensible idea of merging SAG not just with AFTRA, but with several other entertainment unions as well. He acknowledges, however, that this is a long-term goal: “I don’t think at the present time, with our history, too many people would want to get in bed with us, at least not yet. We’re pretty bizarre suitors at this point.”

“Bizarre” is a good way of summing up the developments of the last 12 months or so. Next up: a two-day meeting Tuesday and Wednesday between SAG’s new negotiators and the AMPTP team (representing the studios). The fact that it’s a two-day get-together suggests that it’s intended as something more than a mere meet-and-greet. Good stuff.

Thus, the union’s new management is off to a fast start, but there’s some real work to do to arrive at a deal. I’m hoping we’ll see an agreement by the end of February or early March. That would be followed by a three-week voting period on ratification.

Because a significant portion of the board—the Membership First faction—is likely to oppose the deal, the ballot materials will include both pro and con statements. As a result, ratification could still be uncertain. The chance of a strike, on the other hand, is close to zero.

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Wednesday, January 28, 2009

SAG-AMPTP Meeting Tentatively Planned for Early Next Week

Sources close to the situation tell me that SAG and the AMPTP (studios) are planning for a meeting early next week, perhaps Tuesday. The sources, who spoke on condition of anonymity, caution that the logistics are still being arranged, and that it is as yet unsure whether all the necessary people can be available at that time, in which case a different date would need to be chosen. This would be the first meeting under the new SAG administration. SAG and the AMPTP told me they had no comment.

UPDATE: I'm now told the meeting is definitely on for Tuesday and Wednesday. It's not clear if this will be a formal negotiating session, but a two day meeting does sound like more than a mere meet and greet. The AMPTP and SAG again had no comment.

On a separate matter, I'm told that David White, SAG's new interim National Executive Director, received one or two standing ovations at his first meeting with SAG staff yesterday, with about 40 people present.

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Also, check out KPCC's Airtalk two days ago, featuring Jay Fernandez (Hollywood Reporter), Alan Rosenberg and me:

Podcast: http://www.npr.org/rss/podcast.php?id=510128

Streaming: http://www.publicradio.org/tools/media/player/kpcc/news/shows/airtalk/2009/01/20090127_airtalk1
(from http://www.scpr.org/programs/airtalk/ )

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SAG Email Imbroglio

Yesterday, the Screen Actor’s Guild’s new Interim National Executive Director, David White, sent an email to members, setting a tone of unity and moving forward. It was a very hopeful sign of the new era in place at SAG headquarters. The message was calm, eloquent and forward-looking—in other words, something entirely new from SAG HQ.

Hours later, SAG President Alan Rosenberg sent out his own email to members, and we were reminded yet again how tough the road to a ratified deal will be for SAG, let alone the road to unity. That email reads like a dispatch from an alternate reality, starting as it does with the disingenuous complaint that fired NED Doug Allen was terminated by a written document called an assent rather than in “a face-to-face Board meeting, where the significant minority would have had an opportunity to voice its opinion.” There was a Board meeting, of course, just two weeks ago. Rosenberg presided over it and used 28 hours of procedural abuses to suppress the Board majority whose resulting actions he now complains of.

Rosenberg playing the wounded democrat is peculiar enough, but two paragraphs later he dons clerical garb, and the missive becomes an elegy to Allen, who apparently was so noble that a madding crowd had no choice but to dispatch him: “Doug Allen was fired because he was simply too good, too strong, and too much a unionist.” It’s hard to know whether to criticize language like this or be embarrassed by it. Rosenberg then tells us, Allen “gave us . . . courage” and “we were profoundly moved by his love for and dedication to actors.”

Beatification complete, the email turns to a darker purpose: firing the first shot of the September 2009 campaigns for SAG board and, critically, President. The most stunning—and presumptuous—part of the email is this:

Make no mistake . . . if there is any gain made [in contract negotiations], or if we are ultimately able to resist one of the massive roll backs . . . it will not be due to the skill of this new “negotiating team”. Anything that is won from this point forward will still be the result of the enormously hard work put in by Doug Allen and the [pre-existing] majority of the negotiating team.

In case we were wondering about the Membership First election strategy, there it is: heads I win, tails you lose. In other words: the good aspects of the ultimate deal are to be credited to Rosenberg’s Membership First faction (and to the former NED), and the inevitable compromises are to be hung round the neck of the moderates and set ablaze.

A corollary is that MF will probably oppose ratification of any deal the negotiators arrive at. Indeed, the threshold question is whether Rosenberg and/or SAG 1^st VP Anne-Marie Johnson, both of whom are members of the new negotiating task force, will try to spike a deal. In any case, a paragraph or two later, the email ends with the obligatory “In unity,” but the phrase seems reflexive at best.

Copies of both emails are below.

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A Message from Interim National Executive Director David White

Dear Screen Actors Guild member,

As I enter my first full day today as your new Interim National Executive Director, I have reflected on a Los Angeles Examiner story from 1937 that once hung on the wall of my Screen Actors Guild office when I served as General Counsel.

The article chronicled the moment when the studios had finally recognized the Guild as the labor representative for actors in the motion picture industry. A grainy photograph captured members celebrating the news together, the joy in their faces richly evident. That moment, and the incredible work that it took Guild members to reach that moment, have served as the foundation for 75 years of history that has followed.

In my previous tenure at the Guild, I worked alongside several elected National Boards, two presidents (current President Rosenberg and former President Melissa Gilbert) and three National Executive Directors. My intention now, as Interim National Executive Director, will be to work with your current National Board to navigate through a period that is brimming with both challenges and opportunities – from completing our TV/Theatrical negotiations; to preparing for and securing a new Commercials contract as well as several other smaller but critically important labor agreements; to repairing relations with our sister unions; and addressing a polarized political system that is perceived by too many of our members as being close to broken. As we confront these efforts together, my overarching goal is this: to help restore your confidence that this is a union where strong and wise decisions are made despite political differences.

The greatest challenge facing this union is to find a way for democratic leadership to flourish – for disagreement and debate to build into unity and power. The Guild’s diversity of opinion should, and must, serve as a source of strength and solidarity. I believe in the Guild’s capacity for this. And that is why today I offer two messages to each and every member: First, I will be at the office each day to work with your talented staff and your National Board to achieve objectives that advance your interests as actors; and, second, it is time to turn the page on the most destructive aspects of the Guild’s internal politics.

In this swiftly changing environment, we will not be successful if we do not work together. This effort will take an entire union – all members, from background actors, to stunt performers, to voice over actors; those working in film television, commercials, industrials and video games; dancers and singers; middle-class actors, to high-profile ones, to struggling artists working each day to break through for their first chance. We must work together. Because if not, the well-known words that a previous leader offered to a once-divided collection of citizens will matter to us now: united we stand; divided we fall.

During this extraordinary period for both our union and country, I am again reminded of the achievement of the Guild’s founders as recounted in that 1937 Los Angeles Examiner story. Their achievement came as a result of a supreme effort by a group of committed performers willing to set aside their differences in pursuit of that shared purpose. The result: they built an organization whose membership card today remains the ultimate benchmark for professional performers. The triumph of the Guild’s founders cannot be overstated – nor can the sacrifice, wisdom and political maturity that was required to achieve it.

I enter this interim role with the grand history of the Screen Actors Guild rooted firmly in my mind. I did not seek this position, but I am honored to act as its temporary custodian. You have my pledge that I will direct all my energies to steadying this historic organization and ensuring its success. I thank the Guild’s National Board for the confidence and trust they have placed in me on your behalf. And I look forward to working together, in solidarity.

David White

Interim National Executive Director

Screen Actors Guild

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Date: Tue, 27 Jan 2009 16:36:33 -0800

To: SAG Members

Subject: A Message from National President Alan Rosenberg

My Fellow Screen Actors Guild Members,

Yesterday, on January 26th, a slim majority of our National Board voted to fire our National Executive Director and Chief Negotiator, Doug Allen. This was not accomplished in a face-to-face Board meeting, where the significant minority would have had an opportunity to voice its opinion and where Mr. Allen would have had a chance to face his accusers and address their concerns. Instead, this drastic action was accomplished by “written assent”, the most undemocratic provision allowed by our Constitution.

As your twice-elected National President, I feel that it is my responsibility to give you my perspective on yesterday’s events, although my ability to do so is somewhat limited. The same majority, 52.52%, that fired Mr. Allen also voted to change our Board policy that designated the National President to be one of the official spokespeople for the Guild. As of yesterday, the only two people who are permitted to officially speak for Screen Actors Guild are our newly appointed interim NED, David White, and John McGuire, our Senior Advisor from New York. The members now have no official voice. I appreciate the fact that Mr. White thinks it is preposterous to silence a duly elected national officer, and so has permitted me this forum, provided I inform you that what I am about to write represents my opinion. However, although I am not writing on behalf of the Guild, I believe I do speak for the nearly 48% percent of the Board who are deeply concerned about what was done yesterday and about how these changes were accomplished.

Many of us believe that Doug Allen was fired because he was simply too good, too strong, and too much a unionist. His greatest sin was in challenging the idea that we be bound by the concept of “pattern bargaining”, under which actors have been disadvantaged for decades. Doug gave us the courage to accept the fact that we had a legal right to pursue an agreement that addressed the specific needs of actors; that it is unreasonable to think that the DGA or WGA, without asking any questions pertaining to actors’ participation in “new media”, could strike a deal that would adequately address the concerns of our 120,000 members and the diverse nature and needs of a membership that includes middle class actors, background actors, stunt performers, singers, dancers and our biggest stars. I, and the majority of our negotiating committee, were amazed by Doug’s skill as a negotiator and team leader, and by his diigence and breadth of knowledge. We were profoundly moved by his love for and dedication to actors.

I have no doubt that, if our Board had demonstrated any solidarity whatsoever, Doug and our committee would have arrived at an acceptable deal some time ago. Instead, members of that Board engaged in a systematic effort to sabotage these negotiations by passing motions that prescribed courses of action, and then repudiating those motions, thereby throwing our leadership into a state of chaos and our membership into a state of confusion. This was done consistently and, I believe, intentionally, so that our progressive leadership would be made to appear inept, which would pave the way towards a return to the go-along-to-get-along days of yore.

Now there is a new lead negotiator in the person of John T. McGuire. Our Negotiating Committee has been replaced by a new, more moderate Task Force. You can expect that not long after this new team enters the Bargaining Room, they will be offered some “plum”, some concession from the AMPTP that was said, heretofore, to be unattainable. This will be given by our employers, not as an act of good will, but as a demonstration of the fact that “reasonableness” will be rewarded, while “militancy” will be punished. Make no mistake, if this should occur, if there is any gain made, or if we are ultimately able to resist one of the massive roll backs that has been demanded, it will not be due to the skill of this new “negotiating team”. Anything that is won from this point forward will still be the result of the enormously hard work put in by Doug Allen and the majority of the negotiating team that has been in place since our W and W caucuses began a year ago this February. I am enormously proud of that team, led by Doug , of which I was a member.

We were able to change the discussion about these existing deals from the obfuscatory claims that they were somehow “groundbreaking” to a sobering dialogue, illuminating just how damaging these new media deals might be to the prospects of a middle class actor’s ability to make a living.

You should know that the ability to get things accomplished by “written assent” was also available to the progressive leadership that held the majority in the Boardroom prior to the most recent election. That Draconian option was never employed, however. Despite what has been said about that majority, they always made democracy their highest priority. They understood that a slim majority of 52% or 53 % gave no one the right to ride roughshod over a significant minority; they understood what the use of such a tactic would do to democracy in our union; they never desired to open that Pandora’s Box. Unfortunately, now it has been opened and precedent has been set. I, and the previous Board majority, have always been willing to compromise on any issue. Compromise is the way things get accomplished in a contentious democracy such as ours. To date, I have not been approached by a single Board member from New York, the RBD, or from the ironically named slate “Unite for Strength”, to try and find common ground on any issue. If these elected officials desire to move forward in any significant way in the name of the members, this behavior must change.

In unity,

Alan Rosenberg

Tuesday, January 27, 2009

SAG – Msg from New National Executive Director

SAG’s new Interim National Executive Director just sent to members, and posted on SAG.org, a message setting a tone of unity and moving forward. I’ve included a copy below.

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A Message from Interim National Executive Director David White

Dear Screen Actors Guild member,

David White

Interim National Executive Director

Screen Actors Guild

Monday, January 26, 2009

SAG No News Press Release

SAG's out with a press release confirming what was first reported about 10 hours ago ... though in fairness, they've had a rough day over there in the SAG Communications department. The press release also gives short bios of the two new highly-qualified people stepping in to right the ship, David White as interim NED and John McGuire as Chief Negotiator.

Here's the release:

FOR IMMEDIATE RELEASE

SCREEN ACTORS GUILD STATEMENT REGARDING NATIONAL BOARD ACTIONS OF JANUARY 26, 2009

Los Angeles (January 26, 2009) -- The Screen Actors Guild National Board of Directors by written assent today terminated the employment of Doug Allen and appointed former Guild general counsel David White to replace him as interim national executive director. The board further appointed longtime Guild senior advisor John T. McGuire as chief negotiator.

The board also disbanded the TV/Theatrical Negotiating Committee and directed that it be replaced with a Taskforce directed to complete these negotiations on behalf of the board of directors.

All actions are effective immediately.

The assent was received and verified by Guild legal counsel and Screen Actors Guild’s outside counsel.

White has assumed his role as interim national executive director and will work from the Guild’s national headquarters office in Los Angeles beginning Tuesday, January 27, 2009.

“This is a difficult time for Screen Actors Guild and a particularly challenging period for working actors,” said White. “I am deeply committed to the Guild and its members and I believe that, working with the national board, we can help guide this transition.”

“I look forward to working closely with this talented and dedicated staff, many of whom I know well from my years as the Guild’s general counsel,” he added.

During his tenure as Screen Actors Guild’s general counsel, White directed the organization’s legal and governance staff and played a central role in the Guild’s contract negotiations and strategic planning efforts. He later co-founded and served as the managing principal of the consulting firm Entertainment Strategies Group (ESG). A graduate of Stanford Law School and a Rhodes Scholar, White was previously a labor and employment attorney at the Los Angeles firm of O’Melveny & Myers.

He has consulted for Chapin Hall Center for Children at the University of Chicago and a variety of urban development projects in the United States, England and South Africa. He currently serves as chairman of the Board of Trustees of his alma mater, Grinnell College and is the former co-chair of the American Bar Association’s Sports & Entertainment Labor Law Standing Committee. He also serves as a Mayoral-appointed commissioner of Los Angeles for urban area planning and development.

John T. McGuire is currently the Guild’s senior advisor. During his nearly 40 years with the union, he participated in or led more than 30 contract negotiations covering actors. From 1983 to 2001, he was Screen Actors Guild’s associate national executive director, the second highest ranking executive position. Prior to 1983 he served as the New York executive director.

McGuire graduated from Fordham College with a B.A. degree in History and from Fordham Law School with a J.D. degree in law. He has represented the union internationally at meetings with performer organizations around the world. He serves as a trustee of the SAG-Producers Pension & Health Plans, as well as vice president and founding director of the American Museum of the Moving Image, president of the Council of Motion Picture & Television Unions of New York City, secretary of the Motion Picture Players Welfare Fun and as a trustee of the Screen Actors Guild Foundation. He is a member of the board of the Industry Advancement & Cooperative Fund and is vice president of the International Federation of Actors.

Guild senior executives issued an email reminding Guild employees to continue to pursue the organization’s core mission of serving and protecting the interests of Screen Actors Guild members.

SAG National Executive Director Firing – How it Went Down

The SAG board’s moderate majority fired National Executive Director Doug Allen today by using a document signed by board members and called a “written assent.” Much to my surprise, Allen chose not to fight and instead emailed the SAG staff acknowledging that he had been terminated and saying goodbye. A copy of the email is below.

Perhaps one reason Allen agreed so readily is that—as has not previously been reported—the assent provides that his contract will be paid out in full. The assent itself has not previously been released. However, I’ve received a copy. See below.

A natural question is how the process unfolded. I spoke to two sources close to the situation who laid out the following narrative:

At around 11:00 a.m. Monday morning, a group of board members went to SAG’s LA headquarters. The group included Unite for Strength leader Ned Vaughn, NY board member Sam Freed, board members Ken Howard, Pamela Reed, Stacey Travis, Gabrielle Carteris and two others whose names I don’t know.

The group, which was not accompanied by counsel, presented the written assent to SAG General Counsel Duncan Crabtree-Ireland and SAG outside counsel Bob Bush—both of whom SAG President Alan Rosenberg had allegedly derided two weeks ago as “liars” who “don’t know what [they’re] talking about.”

Crabtree-Ireland and Bush withdrew for 15-20 minutes with the document while the actors waited in the Foundation Room. The two lawyers then returned and acknowledged that the document was in order. Doug Allen then came to the meeting room and asked the actors if there was anything that any of them wanted to say to him directly. There was an awkward silence, then one of the actors answered “Thank you for your service.” Allen replied “You’re welcome,” then stalked out, slamming the door.

Also worth noting: The written assent also dissolves the Negotiating Committee and replaces it with a 10-member task force. The Hollywood members include three Membership First partisans: SAG President Alan Rosenberg, 1^st VP Anne-Marie Johnson, and board member Clancy Brown; plus independent board member Morgan Fairchild, and Unite for Strength leader and board alternate Ned Vaughn.

Thus, Membership First retains a majority of the Hollywood membership on the task force, just as they have within the Hollywood Division board itself (though not the national board). One hopes that they’ll use their presence constructively, not obstructively. New York members of the task force are 2^nd VP Sam Freed and board members Mike Hodge and Matt Servitto. The Regional (RBD) members are Mike Pniewski and Nancy Duerr.

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From: Doug Allen

Sent: Monday, January 26, 2009 1:02 PM

To: Everyone Everywhere

Subject: Message from Doug Allen

I have been informed by SAG counsel that the National Board has terminated my employment as National Executive Director and Chief Negotiator of Screen Actors Guild. I am disappointed in the board’s decision, which was made by written assent, and I am proud of my record as SAG’s NED and Chief Negotiator.

I wish Screen Actors Guild and its members success and I have been honored to serve them. I have particularly enjoyed leading the wonderful men and women on the SAG staff and serving with SAG’s National President Alan Rosenberg and National Secretary-Treasurer Connie Stevens.

I have made some wonderful friendships with many SAG elected leaders, members and staff and will cherish those friendships forever.

My best wishes to you all,

Doug Allen

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[Here’s the written assent]

Pursuant to the Screen Actors Guild Constitution, Article V, Section 1. (J.) (4.), the following actions are hereby authorized through written assent by a majority of the members of the SAG National Board of Directors.

I. Effective immediately, Doug Allen is terminated as an employee of Screen Actors Guild. Upon receipt of this document, he is to cease and desist in all work on behalf of this union. He is no longer the National Executive Director and has no authority to take any action, make any statement on behalf of this union or direct any Guild employee to take any action. Nor may he authorize the expenditure of any moneys which the Guild possesses. He is to immediately vacate the premises under the supervision of Bob Bush or, in his absence, such other person that the General Counsel may select, and may remove only his personal effects. Further, he is no longer Chief Negotiator of the TV/Theatrical or Commercials Contracts. The compensation due him under his contract will be paid in full, through its expiration date. This order will commence and satisfy any notice period regarding his employment termination applicable under his employment agreement.

II. Effective immediately, David White, former General Counsel of Screen Actors Guild, is hereby engaged as the Interim National Executive Director of Screen Actors Guild. In light of the vacuum created by the termination of NED Doug Allen, and the precarious position the Guild finds itself in, we deem it critical to hire an Interim NED with the industry experience, professional skills, and familiarity with the Guild’s operations to immediately help us return this union to a stable footing.

III. Effective immediately, John T. McGuire, the Senior Adviser to Screen Actors Guild is hereby named Chief Negotiator for all contracts. In light of the vacuum created by the termination of Doug Allen, we deem it critical to appoint a Chief Negotiator with the professional skills, and standing in the industry to immediately step in and successfully complete the TV/Theatrical negotiations, the uncompleted Basic Cable, Animation and Interactive Agreements, and lead us through the imminent Commercial Contract negotiations. Mr. McGuire will, in consultation with Mr. White, be responsible for all contract negotiations and enforcement.

IV. Effective immediately until the October 2009 National Board Plenary, Guideline II of the National Committee Guidelines (dealing with Taskforces) is suspended.

V. Effective immediately, the TV/Theatrical Negotiating Committee is disbanded and is no longer authorized to continue negotiations on the TV/Theatrical Agreement or, because of its interrelated nature, the Live Action Basic Cable Agreement. In its place, a Taskforce is hereby formed to complete these negotiations on behalf of the Board of Directors. The Taskforce shall be comprised of the following 10 Members: HWD; Alan Rosenberg, Anne-Marie Johnson, Clancy Brown, Morgan Fairchild, Ned Vaughn, NY; Sam Freed, Mike Hodge, Matt Servitto, RBD; Mike Pniewski, Nancy Duerr, and 10 Alternates (to attend only if needed and at request of absent member): HWD; Stacey Travis, Leigh French, Jane Austin, NY; John Rothman, Sam Robards, RBD: Roy Costley, Molly Ballard, Abby Dylan, Katherine Howell, Mary McDonald-Lewis. The Taskforce will work with the Chief Negotiator, John McGuire, with the assistance of Ray Rodriguez and any staff of their choosing, to complete these negotiations and bring their recommendations back to the National Board.

VI. Effective immediately, no one other than the Interim National Executive Director and John T. McGuire, or their designee, is authorized to communicate on behalf of Screen Actors Guild to other organizations, the general public or the press on any subjects whatsoever, including the actions contained in this document. This pertains to all SAG staff and elected officers.

VII. Michelle Bennett and all staff in the Governance Department, under guidance from the Guild’s general counsel, are hereby instructed to develop and implement a fraud-proof security system to regulate the use of the voting remotes used by Board members to cast their votes.

VIII. Effective immediately, the Guild retains the law firm of Schwartz, Steinsapir, Dohrmann & Sommers LLP to advise the National Board and represent the Guild in negotiation of the terms of a written contract with David White. The Guild further authorizes the payment of $10,000 to Schwartz, Steinsapir, Dohrmann & Sommers LLP as a deposit toward costs and fees incurred by the Guild, with the balance to be refunded to the Guild upon the termination of the firm's services.

IX. If any of the actions contained herein is deemed unenforceable under the Constitution and Bylaws of the Guild, all other actions shall remain valid and shall be implemented.

X. These actions are being authorized by separate written agreements of a majority of the members of the National Board of Directors pursuant to Article V, Section 1. (J.) (4.) of the SAG Constitution and Bylaws.

As provided for by Article V, Section 1. (J.) (4.) of the SAG Constitution and Bylaws, I hereby give my written assent to the foregoing resolution in its entirety.

Signature __________________________________ Date ____________________

Board Member (Print Name) ___________________________________

Division ____________________________

Vote Weight ________

SAG Moderates File Document to Fire National Executive Director

The civil war at the Screen Actors Guild has gone nuclear. As expected, the moderates on the SAG National Board today delivered a document to SAG headquarters that ousts Doug Allen as National Executive Director and dissolves the negotiating committee. Allen is replaced by two people: SAG’s former General Counsel David White as interim NED and SAG Senior Advisor John McGuire as Chief Negotiator. Guild president Alan Rosenberg is unmentioned in the document and would remain in place until his term ends in September.

The document, called a written assent, is signed by a majority of SAG’s national board (including Unite for Strength board members and most or all others who are not part of Membership First), as provided for in SAG’s constitution. The question now becomes whether SAG will accede to the assent, as it were. SAG will probably try to find some deficiency in the document, which I haven’t examined as it has not been released. Ultimately, I’d expect a lawsuit. This process will not be quick.

The SAG moderates’ statement is below.

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A Message to Members from the SAG National Board Majority

Today we took an important and necessary action to address the leadership crisis at Screen Actors Guild. Representatives from SAG’s National Board majority delivered a “written assent” document to SAG headquarters which authorized the following: Doug Allen is immediately replaced as National Executive Director by former SAG General Counsel David White, who will serve as interim NED; Guild Senior Advisor John T. McGuire is appointed as Chief Negotiator of all SAG contracts; the TV/Theatrical Contract Negotiating Committee is replaced by a Taskforce which will complete negotiations on behalf of the Board of Directors.

In a meeting two weeks ago, a majority of the board sought to make the crucial changes now contained in the written assent, but were derailed by President Alan Rosenberg and a minority of board members through endless parliamentary games and improper behavior. By filibustering for over 28 straight hours, they prevented the Board from ever taking a vote on the majority’s proposal.

This unprecedented level of obstruction has paralyzed the Guild.

Written assent is included in SAG’s constitution to allow a majority of the Board to take action outside the boardroom if necessary. While extraordinary circumstances may require the use of written assent, we do not believe it is a desirable way to conduct Guild business. In this case, the unrelenting obstruction by a minority of board members has left us no alternative.

This action has the support of all but one of the National Board members from SAG’S New York and Regional Branch Divisions, and all in the Hollywood Division except those affiliated with the group Membership First. The signed written assent documents were delivered today to SAG headquarters in Los Angeles.

Upon implementation of the approved motion, Interim National Executive Director David White will assume control of all Guild operations and will coordinate with Chief Negotiator John McGuire to contact the AMPTP to undertake resolution of TV/Theatrical Contract negotiations, which ground to a halt nearly seven months ago. The leaner TV/Theatrical Taskforce will work alongside Mr. McGuire as the "eyes and ears of the board," providing input and support as contract negotiations are concluded.

Beyond the stalled TV/Theatrical negotiations, there is much work to be done and SAG members can rest assured that we have secured an exemplary leader in David White. A Rhodes Scholar, Mr. White has extensive industry experience and was SAG's General Counsel from 2002 to 2006. He knows the Guild and its contracts, and has the respect of our staff and the entertainment community. Our Chief Negotiator, John McGuire, is a 40-year SAG staff veteran who has negotiated over 30 contracts and is held in enormous esteem throughout the industry and the labor movement. We have complete confidence in his ability to deliver the best possible contracts for our members.

These much needed changes will allow SAG to chart a new course. We will work to secure a TV/Theatrical Contract that can be sent to members with a positive recommendation, and to effectively resolve all our outstanding contracts, including the Commercials Contract. We will also work to rebuild vital relationships in the entertainment and labor communities, and to reestablish Screen Actors Guild as a respected and powerful institution, protecting and defending performers nationwide.

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In its entirety, the written assent accomplishes the following:

- Removes Doug Allen as National Executive Director;

- Engages David White as interim National Executive Director;

- Names John McGuire as Chief Negotiator for all contracts, including the TV/Theatrical Contract currently in negotiation;

- Replaces the TV/Theatrical Negotiating Committee with a Taskforce, which will represent the Board of Directors;

- Directs that only interim NED David White, John McGuire, or their designee may communicate on behalf of Screen Actors Guild to other organizations, the general public, or the press;

- Retains the law firm of Schwartz, Steinsapir, Dohrmann & Sommers LLP to advise the National Board and represent the Guild in negotiation of the terms of a written contract with David White;

- In response to voting irregularities at the last Board meeting, instructs SAG staff to develop and implement a fraud-proof security system to regulate the use of the voting remotes used by Board members to cast their votes.

*In the interest of compliance with the AFTRA-SAG non-disparagement agreement under the AFL-CIO, Members of SAG’s National Board majority who are also AFTRA officers or board members wish to officially record themselves as abstaining from this statement.

SAG Awards: Impressions from the Red Carpet

The SAG Awards sparkled. Women in beautiful dresses, perfectly accessorized; men crisply attired in suits or tuxes; and flash cameras and video everywhere—it was quite a scene. There was drama …

… and romance:

Boldface names made their way down the red carpet: the bolder the name, the faster they moved. Oops, there went Brad Pitt (Benjamin Button). Too late. But Alec Baldwin (30 Rock) did pause for a moment:

He picked up an award later that evening for male actor in a comedy series. Meanwhile, the unofficial award for cutest kids went to the ones playing adman Don Draper’s children in Mad Men. Kiernan Shipka looks sweet …

… but advised me that if she won an award (she did, as part of an ensemble), it would go next to her Tae Kwon Do trophies. Easy there tiger! Meanwhile, her cast-mate and fellow winner Aaron Hart is a handsome little fellow …

… but he hasn’t let success go to his towhead: when I asked what actors he admires, he said he doesn’t want to be an actor when he grows up. He didn’t offer an alternative though, so maybe he’ll reconsider. Other sightings on the red carpet included Maulik Pancholy (30 Rock & Weeds), who won an award as part of the 30 Rock ensemble:

...Charles Carver & Max Carver (Desperate Housewives):

... and several Dexter cast members:

Finally, we swept ourselves off the red carpet and into the depths of the Shrine Auditorium. The awards show began, and proved early on that it would move at a brisk clip. House’s Hugh Laurie had one of the best lines of night, commenting that he “actually had $100 on [fellow nominee] James Spader. This is just not my night.” But, of course, it was his night, and many other winners’ and nominees’ as well. Among the winners was a happy Laura Linney:

SAG politics weren’t completely absent from the festivities, of course. Alec Baldwin and Sally Field both took home statues, despite being targets of a blacklist aimed at nominees who opposed the union’s position on a strike authorization. Field may have had this in mind during her acceptance speech, since she made a point to mention her 45 years as an actor, her stepfather’s and mother’s careers as actors, and, indeed, her stepfather’s service on the SAG board back when Ronald Reagan was president (of the Guild, not of the country).

SAG’s current president, Alan Rosenberg, touched on union politics too—but not SAG politics—saying that “We look forward to the day when all workers have a free choice to join a union.” That’s an allusion to the Employee Free Choice Act—proposed legislation that would make it easier to unionize.

At the end of the ceremony came the big awards, for motion picture cast (Slumdog Millionaire):

... male lead, Sean Penn (Milk), who looked like he wished he were somewhere else:

... and female lead, Meryl Streep (Doubt), who chatted on the phone with someone who was somewhere else:

The evening ended with the obligatory after-party. Notables seen amid the crush included Alec Baldwin, Anthony Hopkins, and SAG National Executive Director Doug Allen.

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15th ANNUAL SCREEN ACTORS GUILD AWARDS® RECIPIENTS

THEATRICAL MOTION PICTURES

Outstanding Performance by a Male Actor in a Leading Role

SEAN PENN Harvey Milk "MILK" Focus Features

Outstanding Performance by a Female Actor in a Leading Role

MERYL STREEP Sister Aloysius Beauvier "DOUBT" Miramax Films

Outstanding Performance by a Male Actor in a Supporting Role

HEATH LEDGER Joker "THE DARK KNIGHT" Warner Bros. Pictures

Outstanding Performance by a Female Actor in a Supporting Role

KATE WINSLET Hanna Schmitz "THE READER" The Weinstein Company

Outstanding Performance by the Cast of a Motion Picture

"SLUMDOG MILLIONAIRE" Fox Searchlight Pictures

RUBINA ALI Youngest Latika
TANAY HEMANT CHHEDA Middle Jamal
ASHUTOSH LOBO GAJIWALA Middle Salim
AZHARUDDIN MOHAMMED ISMAIL Youngest Salim
ANIL KAPOOR Prem
IRRFAN KHAN Police Inspector
AYUSH MAHESH KHEDEKAR Youngest Jamal
TANVI GANESH LONKAR Middle Latika
MADHUR MITTAL Oldest Salim
DEV PATEL Older Jamal
FREIDA PINTO Older Latika

PRIMETIME TELEVISION

Outstanding Performance by a Male Actor in a Television Movie or Miniseries

PAUL GIAMATTI John Adams "JOHN ADAMS" HBO

Outstanding Performance by a Female Actor in a Television Movie or Miniseries

LAURA LINNEY Abigail Adams "JOHN ADAMS" HBO

Outstanding Performance by a Male Actor in a Drama Series

HUGH LAURIE Gregory House "HOUSE" FOX

Outstanding Performance by a Female Actor in a Drama Series

SALLY FIELD Nora Walker "BROTHERS & SISTERS" ABC

Outstanding Performance by a Male Actor in a Comedy Series

ALEC BALDWIN Jack Donaghy "30 ROCK" NBC

Outstanding Performance by a Female Actor in a Comedy Series

TINA FEY Liz Lemon "30 ROCK" NBC

Outstanding Performance by an Ensemble in a Drama Series

"MAD MEN " AMC

BRYAN BATT Salvatore Romano
ALISON BRIE Trudy Campbell
MICHAEL GLADIS Paul Kinsey
JON HAMM Don Draper
CHRISTINA HENDRICKS Joan Holloway
JANUARY JONES Betty Draper
VINCENT KARTHEISER Pete Campbell
MARK MOSES Herman “Duck” Phillips
ELISABETH MOSS Peggy Olson
JOHN SLATTERY Roger Sterling
RICH SOMMER Harry Crane
AARON STATON Ken Cosgrove

Outstanding Performance by an Ensemble in a Comedy Series

"30 ROCK" NBC

SCOTT ADSIT Pete Hornberger
ALEC BALDWIN Jack Donaghy
KATRINA BOWDEN Cerie
TINA FEY Liz Lemon
JUDAH FRIEDLANDER Frank Rossitano
JANE KRAKOWSKI Jenna Maroney
JACK McBRAYER Kenneth Parcell
TRACY MORGAN Tracy Jordan
MAULIK PANCHOLY Jonathan
KEITH POWELL Toofer

SAG HONORS FOR STUNT ENSEMBLES

Outstanding Performance by a Stunt Ensemble in a Motion Picture

"THE DARK KNIGHT" (Warner Bros. Pictures)

WADE ALLEN

RICK AVERY
DEAN BAILEY
RICHARD BURDEN
FRANK CALZAVARA
MARK CHADWICK
BRIAN CHRISTENSEN
GEORGE COTTLE
TOBIASZ DASKIEWICZ
JUSTO DIEGUEZ
MARIE FINK
JEAN-PIERRE GOY
MARK HARPER
ADAM HART
JAMES HEISNER
SY HOLLANDS
TERRY JACKSON
PAUL JENNINGS
LUKE KEARNEY
MATT LeFEVOUR
RICK LeFEVOUR
TOM LOWELL
TONY LUCKEN
DANIEL MALDONADO
JON MALDONADO
JAMES MAMMOSER
KEVIN MATHEWS
TOM McCOMAS
TIM McHENRY
NATALIE M. MEYER
RICK MILLER
MARK MOTTRAM
CHRIS NOLTE
ANDY NORMAN
CARL PAOLI
LINDA PERLIN
BRIAN PETERS
SCOTT PHILYAW
BUSTER REEVES
KEN REMER
RICHARD RYAN
JEFF SHANNON
KEVIN SORENSEN
JODI STARNES
TOM STRUTHERS
TODD ROGERS TERRY
JIM WILKEY
RICH WILKIE

Outstanding Performance by a Stunt Ensemble in a Television Series

"HEROES" (NBC)

ROBERT ALONZO
HEATHER ARTHUR
ALLISON CAETANO
CHRIS CARNEL
DANE FARWELL
TIM GILBERT
TROY GILBERT
RYAN JAMES HAPPY
CHRIS HOWELL
HORACE KNIGHT
WILL LEONG
JIM LEWIS
RICK MARCUS
AUSTIN PRIESTER
SIMON RHEE
MARK RICCARDI
PAT ROMANO
SPIKE SILVER
LEE SMITH
ERIK STABENAU
NANCY THURSTON
XUYEN “SAMMY” VALDIVIA
MARK WAGNER
MARCUS YOUNG

Screen Actors Guild Awards 45th Annual Life Achievement Award

James Earl Jones

Saturday, January 17, 2009

Inside the SAG Boardroom

Sources from inside SAG’s marathon board meeting blasted Screen Actors Guild President Alan Rosenberg as a “corrupt and dirty chair,” asserting that he and his Membership First allies repeatedly abused parliamentary rules throughout the “surreal” 28-hour national board meeting earlier this week in order to suppress the SAG board’s moderate majority.

In support of their contentions, the approximately 10 sources—including board members from across the country—described a previously-unreported litany of Membership First’s alleged delaying tactics, and provided a detailed chronology of the meeting. The sources requested anonymity due to the possibly-confidential nature of the meeting and fear of retaliation. I sought comment from Rosenberg, SAG, and others, but 1st VP Anne-Marie Johnson responded in an email that SAG, its staff, officers and board members would not comment.

As a result of the alleged abuse, the board meeting ended Tuesday afternoon with no substantive action taken on any agenda item. In particular, no vote was ever taken on the moderates’ so-called omnibus motion that would have fired SAG National Executive Director Doug Allen (not just removed him as chief negotiator, as has been reported elsewhere), replaced the negotiating committee, and reopened negotiations with the AMPTP. The move to fire Allen led Rosenberg to step down from the chair temporarily to deliver an obscenity-laced response:

You want a fucking civil war in this union? You do this, you will get a fucking civil war. I’ll lead it.

Instead of a vote on the omnibus motion, no fewer than 26 separate votes took place on procedural motions, during which Membership First members allegedly spoke well in excess of their allotted 3-4 minutes each, sometimes speaking against their own motions so as to delay proceedings.

When challenged during the meeting regarding the lengthy speeches, Rosenberg, sitting as the chair of the meeting, allegedly contended that “the clock is broken” or that he was “not sure how to run it”—referring to the clock intended for timing member speeches and limiting them to the prescribed lengths. However, the clock was declared functional again when the moderates spoke, according to the sources. Rosenberg also allegedly asserted on one or more occasions that there were problems with the voting equipment, necessitating 10-15 minute searches for Guild staff to provide assistance, a source of further delay.

Membership First members were allegedly allowed to speak well in excess of prescribed limits, with one member holding onto the mic for 17 minutes in the guise of a question. Sometimes, the same question would be asked repeatedly, sometimes by the same person. Other times, people would speak briefly, then stand silently at the mic for several minutes. Rosenberg, the sources said, would frequently interject to express agreement with concerns the Membership First members raised, violating the neutrality that the moderates said was the chair’s duty. He would also himself speak “interminably” from the chair.

Over-long statements from the floor by Membership First members were frequently allowed under the guise that they were questions, sources said. Extended questions were allegedly allowed by Rosenberg even where the motion on the floor was not supposed to be subject to debate under the applicable rules. According to the sources, Membership First members frequently shouted “point of order” or “point of information,” delaying proceedings with what moderates described as frivolous speeches and extended questions.

One result of these factors was that the board members held a debate on a motion to extend the Monday session of the meeting by 3 hours, but the vote on this motion didn’t come until 8 hours after the original 10:00 p.m. adjournment time had passed.

The moderates described repeatedly objecting to Membership First’s tactics to no avail, as Rosenberg swatted away their objections, even ignoring the contrary advice of SAG’s in-house and outside counsel, who were present during parts of the meeting (most of the rest of the staff, including Doug Allen, were not present for most of the meeting). Indeed, on one occasion, Rosenberg told the attorneys—SAG’s own lawyers—that they were “liars,” said one source. On another occasion, he allegedly told them “you don’t know what you’re talking about.”

Referring to the extended delay and tactics viewed by the moderates as obstructionist, Rosenberg allegedly answered: “You might as well give up now. This is what you can expect for the next two years. Count on it!” He made comments to this effect on multiple occasions, said the sources. Sources added that Rosenberg repeatedly threatened to have some of the moderates evicted, even calling for the on-site security guard to add muscle to his threat.

Another Membership First member, when asked by a moderate if the purpose of the parliamentary maneuvering was to waste time until the meeting was set to adjourn, sneered in agreement: “You understand that then, don’t you?” he allegedly said.

Among the many motions allegedly introduced by Membership First were multiple motions to adjourn the meeting. These were introduced even though no substantive business had been conducted and many board members had been flown in from around the country, and lodged in hotels, at Guild expense.

Another occurrence, according to the sources and as reported by other media outlets, was a voting irregularity committed on Tuesday by several Membership First members. This involved one member attempting to vote on behalf of three or four other members (media reports to date have only reported two), which is described by the sources as a violation of SAG rules. When one of the participants in the alleged irregularity was confronted, she responded in part with a bizarre discussion of her personal biography, according to a source:

My father was a veterinarian. I used to go all over the South with him. I know poverty. I’ve seen kids without clothes. I’m an ordained minister. I’m about helping people.

The hurdles for the moderates were that they faced, in their description, a highly biased chair, and that they had only a simple majority (i.e., more than 50%) of votes on the Board, but not the 2/3 (i.e., 66.67%) supermajority apparently necessary to close off debate and force a vote on the omnibus motion. They won many motions by about a 55% majority, but since they did not control 2/3 of the board votes, they were unable to muster 2/3, although they came within less than one-quarter percent of that figure in one case.

The sources decried Rosenberg’s conduct as “egregious,” “abominable,” “belligerent,” “threatening,” “abusive,” “intimidation,” “reprehensible,” “partisan,” “not even-handed, not fair,” “not neutral,” “hostile,” “despicable,” “malfeasance,” and “intended to slow the meeting down.”

The sources who used the term “corrupt chair” and “dirty chair” acknowledged that these descriptions of Rosenberg were not in any way meant to imply that he was financially corrupt, and no source suggested that he was.

Full disclosure: I have previously blogged very critically about Membership First and its positions. I do agree with a few of its positions on the SAG contract, although not on their approach to the key 3 positions (2 re new media and one re DVD residuals). I have previously blogged both approvingly and critically about the moderates and their positions, although more often approvingly.

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Here’s a reconstruction, in outline, of the meeting, based on information supplied by the above sources. Motions were often introduced one after the other, leading to several, stacked motions pending at any given time, with voting on older motions deferred, while newer motions were debated.

In all, 26 separate votes were held on various motions. Debate was lengthy, because of the tactics described above. Other motions were made and withdrawn without a vote. The omnibus motion never reached a vote.

In the reconstruction below, the actual voting is identified as vote #1, #2, etc., through vote #26. The timestamps below are my best reconstructions. They are difficult to assign, because the debate apparently jumped around, and different sources had somewhat different recollections, making a precise and linear presentation difficult. In some cases, I do not know the results of the votes, and have accordingly omitted them.

Monday, January 12, 2009

Approx. 9:00 or 9:30 a.m.:

Meeting starts.

1. Meeting rules are discussed.

Mon. 11:00 a.m.

2. Moderates move to go into executive session. Motion gets debated but not voted on.

Mon. 1:00 p.m.

3. Membership First makes multiple motions to adjourn the meeting—i.e., end the meeting altogether, even though it has only started a few hours earlier, people have flown in from around the country, and nothing has been accomplished. Motion is debated, and defeated (vote #1). Note: Some sources recall the first of these motions as being at 5:00 or 6:00 p.m., rather than 1:00 p.m.

4. A recess is called.

5. Membership First moves that the motion for an executive session is out of order. Motion is debated, and defeated (vote #2).

6. Membership First moves to set the executive session at a time certain (i.e., to delay it, by not having it happen immediately). Motion is debated, and defeated (vote #3).

7. Membership First again moves to set the executive session at a time certain, even though the identical motion had just been defeated. Motion is debated, and again defeated (vote #4).

Mon. late afternoon / early evening:

8. Motion to go into executive session is finally voted on (vote #5). It passes. All told, the debate on motions regarding executive session has consumed at least 4 hours.

9. Rosenberg then declares that the motion to go into executive session is out of order, even though it has already passed.

10. Moderates challenge the decision of the chair. Rosenberg replies that, ok, now everyone who wishes to can speak to the issue. Twenty-two separate Membership First board members speak. Debate lasts about 3-1/2 hours.

11. The challenge to the chair is sustained (vote #6), i.e., the moderates prevail.

Mon. 11:00 p.m.

12. A motion to close debate is made. The motion is debated (18 Membership First members speak on the motion), and voted on (vote #7). It receives a majority, but not a 2/3 majority, and therefore fails.

Tues. 12:25 a.m.

13. Another motion to close debate is made. The motion is debated and voted on (vote #8). It receives a majority, but not a 2/3 majority, and therefore fails.

14. Rosenberg rules that it will take a 2/3 vote to extend the meeting past 10:00 p.m. At the time of the ruling, it is already more than 2 hours after 10:00 p.m. The motion is debated and voted on (vote #9).

15. A motion is made that the meeting run continuously through 1:00 p.m. the next day. The motion is debated and voted on (vote #10)

16. Membership First moves to recess the meeting. The motion is debated, voted on, and defeated (vote #11).

Tues. approx. 2:00 or 3:00 a.m.

17. A motion is made to end debate. The motion is debated, and voted on (vote #12).

18. Another motion is made to end debate. The motion is debated, and voted on (vote #13).

19. A substitute motion is now on the floor that refers to extending the meeting to 1:00 p.m. The motion was originally introduced on Monday, and it was understand that the reference to “1:00 p.m.” meant Tuesday afternoon. However, it is now Tuesday early a.m., and an argument ensues as to whether the substitute motion would now mean that meeting would go on until Wednesday at 1:00 p.m.

20. Accordingly, a motion is introduced to amend the substitute motion by adding the words “Tuesday, January 13” to the proposed ending time. Ten Membership First members speak to the motion. The motion is voted on, and passes (vote #14).

21. However, during the voting, a moderate member notices a Membership First member (call him/her “MF1”) holding three electronic voting devices. Each board member is supposed to use only his or her own such device. Realizing that two other Membership First members (“MF2” and “MF3”) are absent, but that their votes are nonetheless displayed on-screen, the moderate shouts out words to the effect “MF1 is voting for MF2 and MF3!” It is later discovered that MF1 has voted on behalf of a third absent Membership First member (who apparently did not know this had happened) and perhaps a fourth.

22. Screaming and yelling ensue. Rosenberg pounds his gavel. MF2 and MF3 reenter the boardroom from a side room or area where at least one them has been sleeping. Rosenberg questions MF1. MF2 and MF3 also speak.

23. Moderates move to throw MF1, MF2 and MF3 out of the meeting. They later withdraw the motion, realizing that debate on it would be a further source of delay.

24. There is a challenge to the chair to stop MF1, MF2 and MF3 from voting, later withdrawn.

25. Rosenberg punishes MF2 and MF3 (and perhaps MF1 – unclear to me) by directing that their votes on the specific pending motion not be counted.

26. There is a motion to sustain the punishment imposed by the chair. Membership First member(s) object, even though the chair (Rosenberg) is himself a member of Membership First. Thus, the motion is debated. Most Membership First members speak in favor of it, even though Membership First member(s) had objected to it. It passes by a vote of approximately 94% to 6%, suggesting that the debate was an empty exercise (vote #15).

27. A motion is made to table the motion to extend the meeting to 1:00 p.m. The motion is debated, then voted on (vote #16). Moderates prevail, by 66.55% to 33.45%.

Tues. approx. 6:00 a.m.

28. Moderates make a motion to extend meeting from 10:00 p.m. the previous night (i.e., 8 hours ago) to 1:00 p.m. Tuesday. Motion is debated, and passes (vote #17).

29. Membership First makes a motion that the motion to table the motion to extend the meeting was out of order—despite the fact that the motion was already passed (two motions ago). The motion is debated, voted on (vote #18) and defeated.

Tues. 7:00 a.m.

30. Membership First makes a motion to adjourn the meeting. The motion is debated, then voted on (vote #19), and defeated.

UPDATE (POSSIBLY ERRONEOUS TIMESTAMP DELETED)

31. Moderates are finally able to introduce the omnibus motion to fire SAG National Executive Director Doug Allen, replace the negotiating committee, and reopen negotiations. However, the motion is not voted on.

32. Membership First makes a motion to publicly report (on the SAG website and magazine) the votes on the omnibus motion. The moderates say they agree with the motion. Membership First members then proceed to debate their own motion, despite the general agreement on it. It passes by a vote of 94.69% to 5.31%, suggesting that the debate was an empty exercise (vote #20).

33. Membership First makes a motion to leave (i.e., remove) confidentiality of executive session and invite Doug Allen back in the room. The motion is debated and voted on (vote #21).

34. A motion is made to deny consideration. The motion is debated and voted on (vote #22).

35. Membership First makes another motion to leave confidentiality of executive session and invite Doug Allen back in the room. The motion is debated and voted on (vote #23).

36. Membership First makes a motion to separate the main motion (i.e., the omnibus motion). The motion is debated and voted on (vote #24).

UPDATE (POSSIBLY ERRONEOUS TIMESTAMP DELETED)

37. Membership First again makes a motion to separate the main motion. The motion is debated and voted on (vote #25).

38. Membership First yet again makes a motion to separate the main motion. The motion is debated and voted on (vote #26).

Tues. approx. 11:00 a.m.

39. The omnibus motion is now on the table for discussion, but only two hours remain until scheduled adjournment. The motion is debated extensively. However, it is never voted on.

Tues. 12:40 p.m.

40. Moderates make a motion to extend the meeting to 2:00 p.m. However, the motion is never voted on.

Tues. approx. 1:25

41. The meeting is adjourned. No substantive action has been taken, according to the moderates and according to a SAG press release.

Thursday, January 15, 2009

SAG Awardsgate: Frances Fisher Makes Amends

Last week’s flap over politicization of the SAG Awards seems so, well, last week, what with the marathon SAG Board meeting earlier this week that started on Monday, ground on into the night, and ended 28 hours later as a failed attempt at union democracy, the moderate majority thwarted by an endless filibuster.

In any case, if you still remember the brouhaha, you’ll recall that it revolved around two anonymous emails that were forwarded by Frances Fisher to various people. When I wrote my piece on this incident, I emailed Fisher for comment, but received none as of press time.

Thus, it was almost a blast from the past to finally receive an email from Fisher this morning, responding to my five-day old email by promising that I’d receive yet another email, this one from her publicist. Late in the afternoon, the promised email arrived. Here it is:

Please see the following statement below from Frances Fisher to be released as a statement from her and her publicist, Elizabeth Much.

My intention in forwarding the anonymous emails regarding the SAG Awards was to alert my private email list of opinions and feelings that were circulating. Artistic merit should be the only criteria for award selection. I apologize directly to Josh Brolin, Kevin Spacey, Susan Sarandon, Michael C. Hall, Sally Field, Alec Baldwin, Steve Carell and Tony Shalhoub for any discomfort my actions may have caused. My desire is to serve my Guild in the most professional and upstanding manner that the membership and creative community deserves.

Frances Fisher

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Tuesday, January 13, 2009

SAG - Hardliners Successful

As of earlier this afternoon, a source inside the room tells me Membership First beat back the majority (composed of moderates) on the SAG Board and prevented passage of a resolution that would have removed Doug Allen as Chief Negotiator and dissolved the Negotiating Committee and rescinded the Strike Authorization Vote.

UPDATE: Here's SAG's press release:

FOR IMMEDIATE RELEASE

SCREEN ACTORS GUILD NATIONAL BOARD MEETING ADJOURNS WITHOUT ACTIONS

LOS ANGELES, January 13, 2009 -- SAG President Alan Rosenberg sent the following message to Screen Actors Guild national board members and alternates today:

“At the end of the National Board plenary meeting this afternoon, a group of board members submitted a document to the Guild that purports to deal with the employment of the National Executive Director and the continuing approach to negotiations. After analyzing the document, Screen Actors Guild’s in-house and outside counsel have concluded that the document does not constitute a valid written assent, for several reasons, including a lack of sufficient signatures and the absence of any language on the document demonstrating the intent of the signers to grant their assent to the proposal. Guild National Executive Director and Chief Negotiator Doug Allen and the National Television and Theatrical Contract Negotiating Committee remain committed to advancing the cause of actors and our crucial contract negotiations.”

No substantive actions were taken by the Guild’s national board, which met at SAG’s national headquarters January 12 and 13 for almost 30 hours straight.

No mailing date has been set for the previously approved TV/Theatrical strike authorization referendum.

We have no further comment.

XXX

SAG Board Meeting Grinds On Into the Night

The SAG National Board meeting, which began about 9:00 a.m. Monday morning, apparently continues as of this hour, 3:45 a.m. Tuesday, or more than 18 hours later. I left the site of the meeting, SAG’s LA headquarters at about 2:00 a.m. As I left, food arrived, suggesting more long hours for the sleep-deprived board, including the jet-lagged New Yorkers and regional (RBD) members. Since Tuesday’s session was scheduled to start at 9:00 a.m., and end as a “hard out” (i.e., firm deadline) at 1:00 p.m., they’ll probably just continue straight through. Maybe they’ll dim the lights and doze off in their chairs.

The scene, it must be said, was a bit surreal. In the lobby, a few bored security guards and one or two other people hung out as janitors washed the floors under harsh lighting. Meanwhile, inside the James Cagney Room, the oversize SAG board – 71 people if all members attended or were represented by alternates – were holding an undoubtedly contentious meeting, accompanied by an unknown number of staff members. For portions of the meeting, the Board was in executive session, and National Executive Director Doug Allen was seen walking the lobby.

Earlier in the evening, there was drama out back of the building, where Board member Seymour Cassel enjoyed a cigar and told me (and, a few minutes earlier, Bloomberg, and, several hours earlier, Variety) that Allen had been ousted as Chief Negotiator (but not as NED). SAG 1^st VP Anne-Marie Johnson caught sight of Cassel talking to me and furiously banged on a plate glass window to get his attention and draw him back inside.

That was not to last: less than an hour later, Cassel was back out again, this time complaining bitterly that his comments had been posted on the Internet (despite my having told him beforehand that I blogged for the Huffington Post and my own blog, jhandel.com), then walking quickly to the parking garage and apparently departing the scene.

In any case, a SAG spokeswoman disputed Cassel’s statement that Allen was out. Her denial was at first a bit vague, but was later explicit, telling me and a Bloomberg reporter that Allen had not been ousted and that no vote had been taken. Where things stand now inside the meeting room is unknown.

Monday, January 12, 2009

SAG Board Meeting Starts

The SAG National Board meeting began this morning at 9:00 a.m. accompanied by light informational leafleting from pro and con sources. The meeting is expected to be contentious. The leafleting was not. About 20 pro-hardline leafletters showed up, and about 5 anti-strike folks. Spotted among the hardline group were Ed Asner and National Board member Frances Fisher.

A notable absence was the organizer of the anti-strike contingent, who stated in an email that he had showed up, then decided to leave when he saw how small the turnout was and because he felt the large picket signs he and a (SAG?) member had brought were too large to be appropriate.

Also strange: I saw SAG President Alan Rosenberg entering the meeting at about 10:15, i.e., about an hour after it had started. I don’t know if he had been in already and left the meeting, but it looked like he was coming from the parking lot, which suggests he had just arrived. No idea what this means. More later, as developments warrant.

Sunday, January 11, 2009

SAG A-List Blacklist

The dark times at SAG just got darker. This time, the culprit is an email being circulated that advocates a No vote on awards for stars who oppose a strike authorization. Among the targets: Alec Baldwin, Josh Brolin, Steve Carell, Sally Field, Michael C. Hall, Susan Sarandon, Tony Shalhoub, and Kevin Spacey. The email urges SAG members not to vote for those stars in the upcoming SAG awards, for which they’ve been nominated.

Meanwhile, in another sign of how SAG politics have divided Hollywood, a rally is set for this Monday, January 12, at the commencement of the SAG national board meeting in LA. The rally, occurring 8:30 a.m. at SAG’s 5757 Wilshire Blvd. headquarters, is organized by location manager and Teamsters member Scott Bigbee, in support of SAG actors who oppose a strike. Bigbee notes that the rally is not organized by the Teamsters union itself, and is hoping that attendees will include members of all Hollywood unions and others who would be affected by a strike.

The author of the blacklist email is unknown, although one prominent SAG board member, Frances Fisher, did forward the email to some SAG members. Fisher apparently forwarded the email without comment, and told another SAG member that she was not taking a position on the email’s proposed tactic. In that case, it is unclear why she forwarded the email. An attempt to reach Fisher via email was unsuccessful as of the time this article was posted.

For its part, SAG itself came out against the email. The Guild’s Awards Show Committee stated that the SAG Awards have “always been and will always remain non-political,” and added that it was “unfortunate that a few people have chosen to attempt to politicize” the awards.

At least one recipient of the email, Julie Garfield, compared it to the 1940’s-50’s blacklist of alleged communists in Hollywood—a blacklist that brought down her father, leading man John Garfield, and, apparently, contributed to his death of a heart attack at age 39. That blacklist involved investigation by Congress’s House Committee on Un-American Activities (HUAC) and wiretaps and surveillance by government agents.

The comparison seems a bit extreme, with all respect to Julie and her family’s heartrending experience, but the point is not lost: for someone (anonymous, no less) to urge a blacklist of fellow actors for taking a legitimate position on a union issue seems inimical to the spirit of the SAG Awards and the principle that unions are supposed to (try to) unite. It’s a sign how divided the Guild is that the pro-strikers’ bare knuckle politics have led to this.

I’ll be speaking more about SAG this Thursday, on the Ninety Nine Seats podcast. You can also subscribe to my blog (jhandel.com) for more about SAG, or digital media law generally. Go to the blog itself to subscribe via RSS or email. You can also follow me on Twitter or friend me on Facebook, or subscribe to my Huffington Post articles.

Wednesday, January 7, 2009

SAG Contract Graveyard

Where do SAG contracts go when they expire? Who knows, but wherever it is, it’s getting more crowded by the day. The Guild's got a lot of unfinished business, it turns out. Here’s the tally of contracts that have expired or will do so shortly, in order by expiration date:

Agency Franchise Agreement (expired 2002). This is the agreement between the talent agents and SAG. As SAG itself explains, the Franchise Agreement’s expiration means that SAG members have less protection from agents who, for instance, seek commissions greater than 10%, or a longer contract term length (for the representation) than the previously-effective franchise agreement allowed. AFTRA, DGA and WGA all have franchise agreements in place.
TV/Theatrical Agreement (expired June 30, 2008). This is the agreement that has been the subject of turmoil for the last nine months or more.
Basic Cable Agreement (was set to expire June 30, 2008, then extended to December 19, 2008, and now expired). As Variety reports, this contract with about 20 cable companies expired last month, and no date has been set for negotiations. Ironically, this is the agreement that SAG accuses AFTRA of undercutting with one-off deals. Now there isn’t even a deal in place to undercut. SAG members continue to work under the terms of the expired agreement.
Interactive Media Agreement (expired December 31, 2008). This is the agreement with video game companies. It expired, but automatically extends itself unless either party actually sends a notice of termination to the other. But by not negotiating an explicit renewal, SAG has failed to obtain any increases or other improvements that might be possible. UPDATE: I left this one out of the original post; thanks to Voiceguy for alerting me to it.
TV Animation Agreement (expires January 15, 2009). I’m informed that this contract for voiceover work expires next week and that no talks have been set.
Basic Cable Animation Agreement (expires January 15, 2009). Another voiceover contract, with expiration next week and no talks set.
Commercials Contract (was set to expire 2006, then extended to October 29, 2008, then again to March 31, 2009). On this one, at least, SAG, and AFTRA, working jointly, are making progress. They meet Friday to start crafting a contract proposal. However, no date has been set for negotiations; the expiration is approaching quickly; the ad industry has said it won’t grant another extension; and SAG staff and Board members are naturally preoccupied with the TV/Theatrical agreement. Will they be able to negotiate the Commercials agreement with the ad industry while simultaneously struggling internally and with the AMPTP (and possibly even running a strike, should that come to pass)? We’ll see. SAGWatch opines that the road may be rocky. I agree.

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Tuesday, January 6, 2009

SAG: What Might Happen at Next Week's Board Meeting

The SAG National Board is meeting next Monday and Tuesday, Jan. 12-13, and speculation is rampant over whether SAG will send out the postponed strike authorization ballot (as well as whether the negotiating team will be replaced). But what if, rather than send out the authorization ballot, SAG leaders decide instead to send out the deal itself for a vote?

That’s just one of the intriguing possible outcomes of next week’s meeting. Here’s why it might happen: support for the strike authorization vote is eroding. Rather than risk defeat, the hardliners who control the Guild may instead push for the deal to be sent out to the members for ratification. If so, the deal might be accompanied by a recommendation that the membership vote No, or there might not be any recommendation included at all.

Either way, the accompanying informational materials would no doubt highlight the failings in the deal, also referred to as the last best and final (LBF). They might use language similar to that in last summer’s push poll, stating that a Yes vote means “accepting the flawed deal,” and a No vote means “empowering the Negotiating Committee to continue seeking a fair deal” (these quotes are hypothetical language that the ratification materials might use; they’re not quotes from anything that SAG has actually said to date).

And what are those failings? We know that, certainly from the hardline perspective, they include lack of jurisdiction over some original new media content; lack of residuals for virtually all original new media content; and lack of increases in DVD (home video) residuals. Those alone will be enough for some members to vote No on the deal. But many moderate members will not be persuaded that those items are reason enough to vote No.

However, there are other aspects of the deal that could doom it to a No vote even among moderates. Those include the studios’ rollback of force majeure protection; imposition of the possibility of “French hours” (meals become catch-as-catch-can, rather than there being a designated meal break); the dilution of “union security” in new media (I’ll explain that in a moment); lack of any compromise on product integration; and perhaps other issues on SAG’s list of outstanding issues. (Several of these are issues I’ve previously suggested are negotiable if SAG were to drop the new media and DVD residuals issues.)

(“Union security,” by the way, does not mean bodyguards at SAG meetings, although those may be advisable, given the acrimonious divisions in the Guild. Rather, union security is the requirement that an actor must join the union if they want to work a union job 30 or more days after the first union job they work. In other words, non-SAG members can work one union job even though they’re not a member of the union, but if they want to work another union job 30 or more days later, they have to join. The studios are proposing that this 30 day period be lengthened to 90 days in new media, which would increase competition from non-union actors and diminish the power of the union in new media.)

If SAG leadership sends out the deal and achieves a No vote, they would then use this result in two ways: (1) They would go back to the studios and make the point that the deal is un-ratifiable, and must therefore be amended. (2) They would reflect the vote back to the members, and use it as the basis for arguing that the next logical thing to do is to approve a strike authorization. If the deal is defeated by more than 75% of those voting, this would obviously strengthen the leadership’s hand.

The moderates and independents in the board room may have a hard time opposing this gambit. After all, the hardliners would argue that such a move represents union democracy: “let the members decide,” they’ll say. That may be tough for the moderates and independents to oppose, especially since the moderates in LA (in particular) are mindful of how their actions might look to voters in next September’s SAG elections. The hardliners will also sell this approach as a compromise, just as the October resolution (mediation followed by strike authorization if/when mediation failed) was viewed by moderates (who themselves proposed it) as a compromise. The hardliners would also point out that that this approach eliminates (for the time being) the possibility that leadership might suddenly, and improvidently, pull the trigger and call a strike. That latter possibility is, of course, one of the strong arguments, in many people’s eyes (including my own), against a Yes vote on strike authorization.

Given the attractiveness of this scenario to the hardliners, and the difficulty the moderates and independents would have opposing it, I’m guessing this outcome has a reasonable degree of probability. That said, I’m not placing any bets, because there are many possible outcomes of the board meeting. Below are some of them. Oh, and by the way, the Hollywood Board is meeting next Thursday. That meeting’s agenda will presumably depend (at least in part) on what happens at the National Board meeting next Monday and Tuesday. In any case:

[BTW, you can follow me on Twitter at http://twitter.com/jhandel]

What will be sent out to the membership?

1. The offer on the table gets sent out. Possible, and would be a clever strategy. See above. UPDATE: Turns out Nikki Finke had discussed this possibility a while back.

2. The strike authorization vote gets sent out. Increasingly unlikely. Support for this seems to be eroding. But the Negotiating Committee could still decide to send this out nonetheless.

3. Nothing gets sent out. Quite possible.

Who will the negotiators be?

4. No change in negotiating team. Quite possible. In order to effect change of the negotiating team, the moderates in LA (Unite for Strength), the NY board members, the regional board members, and the independents in LA and elsewhere all have to be united on a strategy. That’s a degree of unity and resolve they haven’t always shown so far. Any defections, and they’ll have a hard time standing up to the unity that the hardliners (Membership First) have displayed. But, of course, if the NED and current Negotiating Committee remain in place there are unlikely to be any new negotiations with the studios. Stalemate would continue.

5. The National Executive Director, Doug Allen, is fired from his job. Unclear how likely this is. Some moderates are uncomfortable with such a move, because the last two NEDs were fired summarily, and those moderates are afraid that firing this NED would politicize the job, as though it isn’t already. They are also wary of the cost of settling out the NEDs roughly half-million dollar per year contract. Also, it might be difficult to find an acting NED on short notice, although the job might be split between NED and Chief Negotiator, on an interim basis.

(One might ask whether the NED could be fired for cause, thus avoiding a payout, on a theory that his failure to achieve a contract constitutes performance so subpar that he is not competently performing his job. That seems a stretch, particularly since the NED has presumably been following the instructions of the Board that he take a hard line, but it’s hard to analyze such a question without seeing the contract and knowing details about the interactions between the NED and National Board.)

6. The National Executive Director is retained, but is relieved of his role as chief negotiator. This is possible. However, some have said that the NED’s contract requires that he be allowed to be chief negotiator (I don’t know, since the document isn’t public). In that case, relieving him of his role as chief negotiator would be a breach of his contract, which would require that his contract be settled out. However, if this approach is doable without breach, then it becomes a distinct possibility, and there are probably a variety of people that the moderates could approach to serve as chief negotiator. Some moderates may also believe that stripping the NED of this role might lead him to resign voluntarily, though I think this is unlikely, given the prestige and compensation of the job, and the NED’s general instinct to fight.

7. The Negotiating Committee is dissolved and replaced with a task force consisting of the same people. Possible. A task force would have less power than a committee, and might be under more control from the National Board. However, if the task force consists of the same people, it will continue to be controlled by hardliners, which means that little or nor progress in negotiations could be expected.

8. The Negotiating Committee is dissolved and replaced with a task force consisting of altogether different people. Unlikely. This, in combination with a change in chief negotiator (items 2 or 3 above), would be likely to restart negotiations. However, bringing new people on in this fashion is likely to be resisted by at least some NY and regional members on the Negotiating Committee, who will (understandably) feel themselves unfairly punished for the conduct of others (the hardliners on the Negotiating Committee).

9. The Negotiating Committee is dissolved and replaced with a task force consisting of moderates only. Unlikely. Under this scenario, the task force would retain the moderates from the Negotiating Committee (thus avoiding the objections to scenario #5), but the hardliners would all be replaced. This would result in vociferous protest from the hardliners that the views of many union members are being trampled. To oppose this position would require that the moderates exercise a degree of bare-knuckle politics they have so far avoided.

10. The Negotiating Committee is dissolved and replaced with a task force consisting of mostly the same people, but a small number of different people. Possible. This would be cosmetic, just as the addition of Unite for Strength members to the Negotiating Committee in Sept.-Oct. was essentially cosmetic. As long as the three key Membership First people (David Jolliffe, Anne-Marie Johnson, and Kent McCord) remain on the Committee or task force, there’s no real change.

11. The President, Alan Rosenberg, will remain in power. Almost certainly. I mention this just to point out that Rosenberg’s term doesn’t expire until September. Thus, he remains in place unless he were unexpectedly to resign—in which case Anne-Marie Johnson, 1^st Vice President, and likely candidate for President in September, would presumably become acting president. That’s highly unlikely (I know of no move to suggest that he resign).

Note: For more discussion of issues involved in changing the NED and Negotiating Committee, see What Happens if the Challengers Win Control of the SAG Board?

Putting it all together: what will happen next?

12. If nothing is sent to the members and the negotiating team has little or no change, then we remain in stalemate. Unless the negotiating team has a sudden change of heart regarding new media and DVD, there’s unlikely to be further negotiations any time soon.

13. If nothing is sent to the members but the negotiating team is changed significantly, then talks will probably restart. If the negotiators take new media jurisdiction and residuals, and DVD residuals, off the table, they may have enough leverage to make gains in other areas. One thing new negotiators would be able to say to the AMPTP, that the current team cannot, is that if the AMPTP doesn’t give the new team some sort of concession, that the new team will unite with the hardliners and jointly urge the members to strike. A joint call by moderates and hardliners for a strike could indeed result in one. The AMPTP knows this, and accordingly may be more willing to deal with a revised team of negotiators.

14. If the strike authorization vote goes out (regardless of whether the negotiating team is changed or not), then see SAG: When Will There be a Deal? for discussion of possible outcomes and timing (but add two weeks to the timetable, because the ballots were originally scheduled for Jan. 2). I’m guessing the strike authorization would fail if sent out, but it’s tough to know.

15. If the deal goes out (regardless of whether the negotiating team is changed or not), then the timeline would look like this: deal is sent out in third or fourth week of January (it will take some time to prepare the informational materials to be mailed out with the ballot). A 3 week voting process takes us to the second or third week of February. If the deal fails to achieve ratification (which would be my guess, since it will be pretty hard to campaign for the deal as it now stands, as I explained at the beginning of this article), then allow another 2-3 weeks of probably fruitless negotiation with the studios, followed by a strike authorization ballot (3 week voting process), and we’re at at least April 1 before a strike could happen, assuming the authorization passes. If it doesn’t pass, then we’re back to stalemate.

——–

Thursday, January 1, 2009

SAG: No Good Reason to Strike

There’s turmoil planned for the upcoming Jan. 12-13 SAG National Board meeting, reports the LA Times. SAG’s National Executive Director Doug Allen and the current negotiating committee may find themselves bounced out unceremoniously by the moderates—or they may not. The strike authorization vote, postponed from its original Jan. 2 mailing date, may get canceled altogether—or it might not.

In light of this uncertainty, it’s still critical to ask whether a strike authorization and possible strike make sense. SAG’s hardline leaders and their supporters have made a lot of statements in support of both an authorization and a strike itself. Do their statements stand up to scrutiny? I say no, but you be the judge. Here are SAG’s most oft-repeated arguments, and my analysis.

You may also want to refer to my articles SAG & The Studios: What Are They Fighting Over? and Studios Release Final Offer to SAG.

BTW, there are three UPDATES below—a new "SAG Statement" item 3 items down, some further discussion about the cbs.com item 11 items down, and some corrections and further analysis in the Asner item about 15 items down.

SAG Statement: A strike authorization is not a strike.

Analysis: True, but disingenuous. The SAG leadership, which could have had a deal nine months ago, has instead stumbled from one ill-considered strategy to another, most of which involved attacking AFTRA in some way or another. Throughout the turmoil, one constant has remained: the leadership is wedded to demands that the studios won’t agree to, and seems at least as concerned about internal politics as about actually making a deal. Granting SAG leaders a strike authorization means they’ll almost certainly use it, unless the moderates on the National Board indeed try to stop them and in fact succeed in doing so.

SAG Statement: “Will a SAG TV/Theatrical strike ‘shut down the Industry?’ NO WAY!” (Doug Allen email)

Analysis: Also disingenuous. This statement attempts to imply that a strike would not cause pain to the industry—yet, a strike is useless unless it causes pain. The statement is just spin intended to minimize the significance of voting yes on a strike authorization. The writers strike cost the industry $25 million per day, and there’s no reason to believe a SAG strike would be any less devastating. There’s also good reason to believe a SAG strike, if one happens, would be long and bitter, as I’ve previously discussed.

The email goes on to say that “jobs in commercials, basic cable, video games and industrials would continue during a TV/Theatrical strike.” This is true, but other than commercials, these contracts are small potatoes, as SAG’s own figures demonstrate. And even though commercials are significant, how many actors can earn a living just from commercial work—especially in an economy in which television ad spending is declining?

The email then says that “jobs would continue on more than 800 independent movie projects by producers not associated with AMPTP companies.” This is deceptive. SAG issued several hundred “guaranteed completion contracts” (strike-proof contracts) to non-studio producers (I have no way of knowing if 800 is an accurate number, but let’s assume it is). However, not every one of these turned into a production. Many indie projects fail to materialize, usually for lack of financing (especially in an environment of financial crisis). Also, some of the projects that did come together are presumably already completed (or principal photography is), since these contracts started being issued in March or so. Also, of course, indie projects usually involve fewer actors and lower pay than studio projects. Bottom line: these independent movie projects would only amount to a small fraction of the normal film and SAG television work.

Next, the email says that “jobs would continue … on more than 800 independent new media projects under SAG’s new media agreement.” This is also deceptive, because (based on SAG statements to the press several months ago) this number appears to represent the number of Internet letters of adherence that SAG has issued since the inception of these letters in 2001, not the number of Internet agreements currently active and outstanding. In addition, Internet projects involve far fewer actors and far lower pay than film or TV projects.

Finally, the email contains a rather intriguing statement:

Also, actors on any shows signed to AFTRA before the effective date of such a strike would be required by their personal contract and AFTRA’s CBA [collective bargaining agreement] to report to work on any AFTRA-covered projects in its jurisdiction (primarily dramatic network primetime and pay TV shows, and movies made for television or DVD.)

This is true, but what’s odd is the limitation to “shows signed to AFTRA before the effective date of such a strike.” It’s unclear why this would not also apply to shows signed to AFTRA after a strike. SAG seems to be suggesting the possibility that dual cardholders need not, or must not, report for work on shows that signed to AFTRA after a strike. The reasoning behind this apparent implication is unclear.

UPDATE—SAG Statement: The arguments over jurisdiction, residuals, and other issues are not about rich, millionaire actors; they're about middle-class actors.

Analysis: Absolutely true. Powerful actors have the leverage to have their agents and lawyers negotiate their deals, which are significantly better than the terms of the Guild's collective bargaining agreement. Some people, especially some members of the public, believe the debate is about greedy actors, especially millionaires, trying to grab more than what they deserve. That's not true, or fair.

SAG Statement: The terrible economy is no reason not to (potentially) strike. After all, SAG itself was founded during the Depression.

Analysis: The terrible economy significantly increases the number of actors and other workers who would, as a result of a strike, lose their healthcare, their homes, their livelihoods, and their ability to remain in the entertainment business at all. Does SAG have enough of a reason to cause such harm in the middle of the worst economy in many decades? Read the rest of this blog article and decide for yourself.

SAG Statement: The effect on non-actors is no reason not to (potentially) strike. After all, SAG represents actors, not below the line workers, writers, directors, or other people who work in, or supply goods and services to, the entertainment business.

Analysis: A discussion of whether this point of view is or is not selfish will generate a lot of anger but not change anyone’s mind. The more useful analysis is the same as the preceding “SAG Statement” item regarding the economy.

SAG Statement: What SAG wants is not better than what the other unions got, just different.

Analysis: That’s just silly. SAG is seeking more inclusive new media jurisdiction than AFTRA and the other unions (DGA, WGA, and IATSE) got; broader new media residuals coverage; increased DVD residuals; and consent and compensation for product integration. Those things are all better than what AFTRA and the other three got, not just different.

SAG Statement: All SAG wants is what the other unions got: a chance to negotiate.

Analysis: SAG and the studios held 46 negotiating sessions, but SAG didn’t like its options. The real problem is that SAG deleveraged itself—i.e., weakened its negotiating position—by refusing to negotiate early, and then by attacking AFTRA to the point that AFTRA ended the Phase 1 joint bargaining relationship the two unions had had for 27 years. As a result, AFTRA and IATSE did their deals first, leaving SAG as the caboose in a train led by the DGA, WGA, AFTRA and IATSE. Even now, however, it’s likely that there will be some room to negotiate on traditional media issues if SAG drops its demands in new media and DVD.

SAG Statement: SAG can’t wait three years to negotiate new media.

Analysis: Yes, it can, and it will be better positioned if it does. In three years:

SAG will have financial data on the performance of new media shows and copies of contracts, because the deal on the table requires studios to share this info.
There will be no strike fatigue as there is now from the WGA strike.
The WGA deal will expire at virtually the same time as SAG’s (2 months before SAG’s), allowing the threat of a dual strike. Such a threat might even succeed in increasing the DVD residual as well, which is long overdue. On the other hand, if SAG doesn’t accept the deal on the table, the studios are likely to revise the expiration date, since they do three year deals. Indeed, although the WGA contract expired at the end of October 2007, the new contract commenced in February and expires at the end of May 2011. In other words, expiration dates do get adjusted as more time passes without a deal. Adjustment would desynchronize the SAG and WGA expirations and dramatically reduce both unions’ leverage.
The AFTRA deal will expire at the same time, which will allow joint negotiation if SAG can repair its rift with AFTRA, as it now seems to be doing with the commercials process.
The economy will (hopefully) be better. If it isn’t, then many people and companies will be out of business and a SAG improvement on new media will be the least of anyone’s worries.

In contrast, by refusing to accept the deal on the table now, none of the above applies, and instead:

SAG members have lost and continue to lose losing millions in film and TV increases—increases which AFTRA members are enjoying now. The increases are 3.5% annually, in an economy where most workers are enduring wage freezes, wage rollbacks, layoffs, and increased workloads for those who remain and must handle work formerly performed by their now laid off colleagues.
SAG risks losing the increases even on a going forward basis, since the studios at some point may take them off the table or reduce them, in light of the weakened economy.
SAG will have (and currently has) zero support from the industry, zero support from the public, and only partial support from its own members. This is a formula for SAG leadership’s own actions breaking the union, not a formula for a better deal.

In my view, a strike would end badly for SAG:

There would be a deal no better and possibly worse than what SAG could have had 9 months ago.
A large number of pilots will be AFTRA. This is already happening.
There will be more primetime reality and game shows, and less scripted programming, reducing job opportunities for actors. And, incidentally, this migration (which, of course, is already happening) helps AFTRA, since these shows are often under its jurisdiction (for the hosts and judges).
A significant number of SAG members will go fi-core, and the divisions within the ranks will harden and intensify.
If a strike goes on long enough, as it might, the studios may pressure AFTRA to seek jurisdiction over digitally-shot theatrical films, despite AFTRA’s statement now that it doesn’t seek such jurisdiction.

Also, I think the studios are unlikely to punish the unions (DGA, AFTRA and IATSE) that were easier to deal with and made compromises, by rewarding SAG for being tough to deal with. Imagine the firestorm they’d be buying themselves by doing this. Also, as a somewhat lesser factor, it is understood that Nick Counter wants to retire, and he’s probably unwilling to have his last big deal be caving to SAG (and hurting the DGA, AFTRA and IATSE).

SAG Statement: There’s a ton of original content being made on the Internet.

Analysis: Not using professional actors there isn’t. If you’re an actor, ask yourself: When’s the last time you auditioned for an original show made for the Internet? (“Original” means not based on an existing TV show.) Maybe never. And the stuff that’s up there is not making much money. SAG cites Hulu as making $12m in profit, but that ignores the fact that this is a small amount of money, and that Hulu is mostly move over content, whose residual formula SAG does not appear to be challenging (it’s not in SAG’s list of outstanding issues). (“Move over” content means existing TV shows that are then replayed on (i.e., moved over to) the Internet.)

SAG Statement: You can already buy a set top box or new TV with an Internet connection and therefore new media is here now (Justine Bateman video on SAG website).

Analysis: Misleading, because few people buy these things. They’re too hard to use and too expensive. And many websites, including broadcast network websites (and YouTube, which would be the big draw), are not available on some or all of these boxes. Until these devices become user-friendly, inexpensive, and capable of accessing a wide range of Internet content, they’ll remain novelties.

Even Apple, which has had so much success with the iPod and iPhone, can’t get people to buy the Apple TV box—which most people haven’t heard of even though it’s been out for about 2 yrs. Indeed, Steve Jobs describes that box as a “hobby” for Apple rather than a true business.

Plus, in this down economy, who’s going to spend precious cash on new set top boxes and TVs? As one independent industry analyst said, “Consumers are reluctant to pay for another service and find a home for another box in their living rooms to duplicate much of the content they already get from cable.” Not surprisingly, electronics and appliances sales were down 27% this holiday season as compared to last.

With these realities in mind, electronics companies are going to be cautious about rolling out new and better products. And, these realities, combined with the credit crunch, mean that entrepreneurs will be hard-pressed to find capital for startups that might develop such products. All of this will retard development, let alone consumer adoption, of the devices that SAG points to.

SAG Statement: Why wouldn’t CBS do all of its pilots next year on cbs.com instead of on their network (in light of the lower labor costs if SAG accepts the proposed deal)? (Justine Bateman video on SAG website)

Analysis: Because the overwhelming majority of viewers watch TV on TV, not on the Internet. Why would CBS abandon most of its viewers, and millions of dollars of ad revenue? It won’t. Most people watch far more programming on television than on the Internet.

UPDATE: There is, however, the risk that a network would do pilots under the guise of being for new media, but actually intending the pilot to be for a broadcast show. That’s a matter to be rectified by negotiating the contract language and/or, secondarily, by arbitration.

SAG Statement: “It’s not new media, it’s ‘NOW’ media ” (Doug Allen video on SAG website).

Analysis: Actually, it’s closer to “no media,” if you’re looking for slogans. See the preceding two “SAG Statement” articles for an analysis. Allen’s email claims that the Internet will be “the platform of choice for television programming not in decades but in months, or years.” Months? That’s ridiculous. Does Allen really think that television will disappear in a few months? Or even in a few years?

SAG Statement: The new media deal will be “the end of residuals as we know it.”

Analysis: This statement pretends that the rather distant future is today. It’s a form of fear-mongering that telescopes reality, and is built on two assumptions: (1) The assumption that broadcast networks will completely stop rerunning programs on their networks, and rerun programs only as move over content on their websites. (2) The assumption that broadcast networks and cable channels will completely stop creating scripted programs for their networks and channels, and create programs only as original made for new media content.

These are two big and speculative assumptions. Studios and networks would do these things only if the audience has virtually all disappeared from existing networks and cable channels, and all migrated to the Internet. That’s not going to happen any time soon, for reasons discussed in the preceding four “SAG Statement” items. Indeed, it may never happen at all; the future is a slippery thing.

So far, the Internet is a supplemental market, not a replacement market. That’s because the large audiences and large ad dollars are still in television, not the Internet. As long as this remains true—as long as the networks use their traditional networks and the Internet—then the Internet compensation/residuals will be additive to the compensation and residuals provided by traditional media.

Also, if this does happen—if the audience does move entirely to the Internet—the producers and networks are likely to make a lot less money than they have to date, as I discuss in Hollywood Under Siege. The business is changing, and becoming tougher for everyone. If there’s less money for producers, the reality is that there will be less money for talent as well.

SAG Statement: The proposed deal would strip SAG of jurisdiction in original made for new media productions—unless the budget for the production is over $15,000/min., which virtually none are today.

Analysis: This is misleading. The portion of this statement after the dash is true, but what SAG often omits (for example, in this Doug Allen video on the SAG website) is that, under the proposed deal, SAG would also have jurisdiction if there’s a “covered performer” in the cast (a SAG, AFTRA or Equity member with 2 TV or film credits, or 2 Broadway, off Broadway, or national touring credits, or with certain other credits). In that case, the production is covered (all of the actors on it, not just the “covered performer”). What this means is that productions would be non-covered only if they are truly experimental—i.e., the cast is composed only of actors who are non-union, or who have only a single TV or theatrical credit.

Also unstated by SAG is the fact that the studios can set up non-union sister companies anyway (this is called “double-breasting”)—as Disney already has, with a company called Stage 9. So then they can go non-union anyways, and SAG actors can’t even compete for those jobs (because of Rule 1). Is it better to let non-union actors—and AFTRA members—get experience in new media, while SAG members get frozen out? When I ask SAG leaders why they’re fighting over jurisdiction, in light of the fact that double-breasting makes the issue almost irrelevant, they say it’s the principle. That is, they’d rather fight for an empty principle, and lose millions in increases, cause people to lose jobs and their houses, and endanger the union as well as the industry. Where’s the logic in that?

SAG Statement: “The offer in new media … includes zero minimum compensation, zero overtime, zero residuals structure, zero forced call consideration” (Ed Asner LA Times op-ed).

Analysis: Not entirely true. Specifically:

Not true for move-over new media, which is most new studio/network media online today.
UPDATE: Only partially true for derivative new media content (new media programs based on an existing TV show or movie). See detail below.
UPDATE: Only partially true for original made-for new media content with at least one covered performer. See detail below.
UPDATE: Only partially true for original made-for new media content above $15,000/min. budget (but there are very few such productions, because this is a high budget level). See detail below.

UPDATE: Here’s the detail:

Derivative and Original—zero minimum compensation: Asner is correct. However, state and federal law set a minimum wage. In California, this is $8/hr. For a 12-hour day, this works out to about $100/day. This is low, but note that the SAG Ultra-Low Budget Agreement (summary here), which covers theatrical projects up to a $200,000 budget, also allows low day rates ($100/day for an 8-hr day, $175/day for 12-hr. day), so there is some precedent for very low day rates.
Derivative and Original—zero overtime: Asner is correct. However, state law provides for overtime.
Derivative—zero residuals structure: Not true. There are residuals for reuse of derivative content (a) in new media and (b) in traditional media. See offer pp. 9-12. Asner is wrong on this point.
Original—zero residuals structure: Not true. There is a residual structure. It's true, and not good, that for reruns of new media on new media, the residuals are mostly zero (see AMPTP offer pp. 17-18), as I've previously blogged (see item 2 here). Also, for reruns of new media on traditional media there are in fact residuals (see AMPTP offer pp. 18-19). So it's not accurate to say that there is “zero residuals structure.”
Derivative and Original—zero forced call consideration: Asner is correct.

I regret the errors in the original post.

SAG Statement: It’s critical to lock in a favorable deal now, because it will be impossible to change it later, as the 24-year old home video formula and the cable TV minimums and formulas demonstrate.

Analysis: It may not be easy to change the deal later, but it will be even harder to change the proposed deal now. See the analysis above under “SAG Statement: SAG can’t wait three years to negotiate new media.” In part, this is because SAG leadership mishandled the current negotiations, spending its energy (and members’ dues money) fighting AFTRA, rather than trying to present a unified front against the studios. In part, as well, it’s because the Writers Guild elected not to wait before striking, rather than wait eight months and threaten a joint strike with SAG. A unified strategy will be an option in three years, as discussed above, but only if SAG takes the deal while it’s still on the table in its current form.

SAG Statement: “Pattern bargaining” is not obligatory—that is, SAG is not legally required to accept the new media template accepted by the other unions.

Analysis: True, but a bit of a red herring, since the AMPTP has not made this argument, so far as I’m aware.

SAG Statement: The new media template accepted by the other unions doesn’t work for actors.

Analysis: AFTRA is a union of actors, as well as broadcasters and others, and AFTRA accepted the new media template on behalf of its 50,000-plus actor members—44,000 of whom are also members of SAG.

SAG Statement: The “pattern”—the new media template—is not even a pattern, because it differs from union to union (Frances Fisher video on SAG website).

Analysis: True in part. SAG cites three examples, and I have a fourth:

(1) The WGA deal sets minimums for writing for derivative new media productions, whereas the SAG deal on the table doesn’t. I agree with SAG—this seems unfair. However, note that it is not in SAG’s list of outstanding issues, which suggests that SAG has abandoned the issue.

(2) When a television episode is streamed on the Internet (i.e., move over new media) for 26 weeks, the writer or director receives a residual of “over $600” (for a half-hour show), but an actor who works as a day player receives a residual of only $22.77. This is (almost) true, but nonetheless misleading. That’s because the formula in both cases is identical: 3% of applicable minimum compensation. (The formula changes over time, and the WGA formula ultimately differs slightly from the formula in the DGA, AFTRA, and proposed SAG deals. The latter three stay synchronized.)

In other words, there is indeed a pattern that is maintained. However, the dollar figures are different because the applicable minimums (to which the percentage is applied) are different. In other words, writers and directors get paid more than day players. That’s no surprise: a writer or director works far longer than a single day. Also, (for purposes of the formula as Fisher describes it) there is only one writer or director on a show, whereas there are many actors on a show. Thus, the total residuals payable to a show’s actors is more than $22.77.

(I say “(almost) true” and “(for purposes of the formula as Fisher describes it)” because Fisher is not quite correct when she says that a director or writer receives a residual of over $600. Rather, all of the writers on the show (i.e., episode) split the WGA residual. For instance, if there are two writers, each would get a little over $300. Likewise, the director doesn’t receive the entire $600-plus DGA residual. Rather, he or she splits it with other DGA crew members (1^st AD, 2^nd AD and UPM) and with the DGA pension and health fund.)

(3) Actors have consent right over the use of clips on the Internet, whereas writers and directors don’t. This, of course, benefits actors (as Fisher notes).

(4) Under the SAG offer, derivative new media includes new media productions based on theatrical films (as well as television programs), whereas this is not the case in the DGA and WGA deals (nor in the AFTRA deals, of course, since AFTRA has no theatrical jurisdiction). This benefits actors, since the provisions regarding derivative new media content are better for talent than those regarding original new media content.

SAG Statement: Quality of life is lower in new media.

Analysis: Probably true, to some extent—just like at startup companies themselves. If you don’t want to take risks and experiment, stay in traditional media, just as, if you’re a risk-averse computer programmer or exec, you should work for a traditional company, not a startup. For that matter, the quality of life in a low-budget independent movie is probably lower than in a studio movie as well.

SAG Statement: The studio offer effectively eliminates the SAG contract’s force majeure provision, which has been in place for decades.

Analysis: True (see “Force Majeure” in this article). This is clearly something that the union should resist—and would be better able to do so if it dropped its economically meaningless and/or fruitless demands in new media and DVD. (For an explanation of force majeure, see item 4 in this article.)

SAG Statement: The studio offer fails to give actors consent rights and compensation for product integration.

Analysis: True (see “Product Integration” in this article). The union should fight some aspects of this. Again, it would be better able to do so if it dropped its demands in new media and DVD. (For an explanation of product integration, see item 3 in this article.)

SAG Statement: The proposed deal fails to increase DVD residuals, and an increase is long overdue.

Analysis: True, but SAG National Executive Director Doug Allen stated to me that this is his fifth priority at most (he put it after new media jurisdiction, new media residuals, force majeure, and product integration). That presumably reflects a recognition by SAG leadership that the issue is a non-starter. For further discussion, see item 5 in this article.

SAG Statement: The AMPTP is not even honoring the new media deal signed with the Writers Guild less than a year ago.

Analysis: Not persuasive. SAG cites two issues:

(1) The WGA says that the studios have failed to make proper payments on streaming, and that the studios blame technology problems. This is true in some cases (the studios admit it), but somewhat understandable. The new media deals are about 30 pages each of dense legalese, with dozens of details. You can’t reprogram computers for this stuff rapidly. And the studios have stated that they’ll pay interest on the late payments.

(2) The WGA complains that the studios have claimed that the new rates for downloading doesn't apply to any material produced before the WGA strike. True, the studios are making this claim, but the trouble for the WGA is that the studios may be right. The contract language in this area contains an explicit start date of February 13, 2008 for payment (the date the strike ended). Thus, the issue is at best ambiguous. The WGA cites 1971 and 1977 dates that don’t even appear in the applicable section. It’s just not true to imply that AMPTP has no justification for its position. (The WGA may also, but the AMPTP may have the better of the argument.)

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Digital Media Law

Saturday, January 31, 2009

Hollywood Labor’s Long-Term Future: More Unrest

Friday, January 30, 2009

Screen Actors Guild President Calls Actors “Frightened Little Children”

Wednesday, January 28, 2009

SAG-AMPTP Meeting Tentatively Planned for Early Next Week

SAG Email Imbroglio

Tuesday, January 27, 2009

SAG – Msg from New National Executive Director

Monday, January 26, 2009

SAG No News Press Release

SAG National Executive Director Firing – How it Went Down

SAG Moderates File Document to Fire National Executive Director

SAG Awards: Impressions from the Red Carpet

Saturday, January 17, 2009

Inside the SAG Boardroom

Thursday, January 15, 2009

SAG Awardsgate: Frances Fisher Makes Amends

Tuesday, January 13, 2009

SAG - Hardliners Successful

SAG Board Meeting Grinds On Into the Night

Monday, January 12, 2009

SAG Board Meeting Starts

Sunday, January 11, 2009

SAG A-List Blacklist

Wednesday, January 7, 2009

SAG Contract Graveyard

Tuesday, January 6, 2009

SAG: What Might Happen at Next Week's Board Meeting

Thursday, January 1, 2009

SAG: No Good Reason to Strike

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