Legally Speaking, It Depends: Guilds or Unions – Part 2

Continuing on from part one, we'll look more closely into the legal and business issues that arise from representation by either a Union or a Guild. Most of the following applies pretty much equally whether the representation is Union or Guild (hence the nomenclature adopted below, Union/Guild.) Hopefully you remember the distinction from the last time. Will there be a test? It depends...

Producers can hire Union/Guild members, if and only if they are signatory to that particular Union/Guild's agreements.

A Signatory Producer is one who has signed a binding agreement to abide by the terms of that Union/Guild's negotiated, standard agreements.

Union/Guild members are forbidden by Union/Guild rules to work for any producer who is not complying with the standards set by those agreements.

The agreement reached in negotiations between major production players and each Union/Guild becomes the basis of the Minimum Basic Agreements (MBA) that the respective Union/Guild requires signatory producers to abide by when hiring their members. (It's more complex than that, trust me, but let's leave it there for now.)

The term Scale refers to the basic minimum salary or pay scale allowable under the particular MBA terms for a project of a qualifying type. It is a specified floor. There is no specified ceiling as noted below.

Chris Green, Supervisor of Communications with the Producers Guild of America kindly pointed out that I made a misstatement in the first part of this two part column. Through my poor choice of shorthand language, I intimated that the PGA was the entity who negotiates renewal of the Guild and Union contracts with the WGA, DGA, SAG etc. I'm sorry I convoluted the issue.

The actual association that is directly involved in those negotiations is the group of producers known as the Alliance of Motion Picture and Television Producers (AMPTP), which is essentially a group of studios, networks and large production entities. Because of their size, power and sheer volume of Union/Guild employment handled by these producers, they lead the way.

The PGA is a collective of independent, individuals. The majority will be signatory producers with the various Guilds from which they need to employ members, but, they do not as a rule have a hand in the negotiated contracts that form the MBAs.

Now that that's clearer, time to muddy things up a bit more.

Regardless of whether they were involved in the negotiations of the Union/Guild contractual terms, a signatory producer usually hires a Union/Guild member to a personal services contract. It is technically not, as colloquially referred to, a “Union Contract” as the Union/Guild is NOT a party to the deal. The only Union/Guild contracts in the mix are those between the Signatory Producer and the Union/Guild to abide by the standard terms, and the contract between the member and his or her respective Union/Guild.

Important to note: Union/Guild members must take care to abide by their Union/Guild rules. If a member works for a non-signatory producer, it is the member him or herself that is in breach of their Union/Guild agreement, not the producer. Similarly, caution should be used by the Signatory Producer, since signing with the Union/Guild whether or not you've hired their members yet for the project puts restrictions on aspects of how you can go about your job as producer.

It should be noted that the contract signed by the member is a personal contract, meaning, the terms can be negotiated to the best advantage of that person. The MBA sets out minimums, but, if a member has clout, power or prestige enough to negotiate better than the minimums, they have every right to do so. The Union/Guild has fought to make sure the core of their constituents, most of whom have little or no personal negotiation power, can earn a decent living and work in safe conditions. But the opportunity to go beyond that base is the goal for every member.

It may sometimes feel harsh, but, for the Union/Guild to maintain its collective power at the bargaining table, it must keep both sides abiding by the agreed terms in place of their respective Union/Guild agreements. Their diligence toward adherence is key to their ability to help better the industry for all involved.

Because being lax in any one area can lead to less power at the bargaining table, Union/Guilds tend to zealously protect their territory – or what they perceive is their territory. This results in legal and business compromises and conventions that place parameters within which all the Union/Guilds ply their trade.

These boundaries cause friction between disparate groups attempting to bring in new members or retain their current membership. It is at the borders of different jurisdictions (to borrow a descriptor from the legal field) where tensions heat up.

What I will term intra-jurisdictional disputes arise when two like minded Union/Guilds battle over who gets to represent the workers within a particular area. As an example, until their recent merger, this conflict was evident in the different workers' areas covered by the Screen Actors Guild and the American Federation of Television and Radio Artists (AFTRA). As the name implied, AFTRA predominated in representing Television and Radio artist members in the broadcast arena while SAG predominated in Film Theatrical works. There were conflicts when the definitions crossed those borders, as in who represented a Made-for-TV movie? What if an intended film doesn't get a theatrical release and instead heads straight to television? And what of the poor member who worked in areas covered by both unions? They usually had to be members of both, pay both dues and take great care while working under one contract or another depending on whose claim was strongest at the time.

Luckily the similarity of both Union/Guilds led to them recently merging their memberships and coverage areas. That doesn't mean all intra-jurisdictional tensions are gone. For example, I imagine more battles are ahead as more film properties head from film to theatrical stage where Actors Equity is the longstanding, reigning Guild. Intra-jurisdictional disputes are not limited to actors as all other Union/Guilds have jurisdictional boundary disputes of one kind or another.

Then there are what I'll term inter-jurisdictional disputes. Unions or Guilds tend to be formed within a single legal construct, usually with a national or other similar border structure. This simplifies the range of laws that a Union/Guild needs to adhere to while negotiating and enforcing their contractual terms. This leads to the presence of many Unions/Guilds across the globe that represent the same type of worker while they work within their individual borders. But what happens when a Union/Guild member in one country is called on by a production to ply their trade in another country not covered by their home Union/Guild agreements?

Global Rule One is an example of a quite controversial attempt by SAG/AFTRA to address this issue and maintain its bargaining power. The argument goes that since Hollywood is the leading producer of movies in the industry and SAG/AFTRA is the leading Guild for actors in Hollywood, when any Hollywood production goes overseas and uses SAG/AFTRA member actors, their SAG obligations supersede any Union/Guild demands that may dominate in the country of production. It is an attempt by SAG/AFTRA to maintain control over their members' hard won rights and usurp any wily producer's aim of using a SAG actor under less than SAG ideal terms. As you can imagine, the dominant Union/Guilds in those other countries don't take kindly to this imbalanced treatment.

Another legal issue that may surprise some in this industry is that by Federal law, it is illegal to run a closed, Union Shop. A closed shop is where only union/guild members are able to be hired for the job. Now you might be saying to yourself (or even out loud), “That's ridiculous. Of course there are union shops. This town's full of them.”

But if you look at the technical rules in each of those instances, there are ways (maybe convoluted and hidden from first, second or even third glance) where a non-union applicant can be considered for a job in what appears to be a “union shop”.

Now Union/Guilds have had plenty of time to finesse how to deal with the legal requirements. Sometimes the allowance is that non-union employees can be hired if they're new to the job and are quite likely headed toward joining the Union/Guild if they get enough experience. Sometimes the allowance is that as long as all the qualified Union/Guild members available have had a shot at securing employment first, then the rest of the roles can be filled by non-union workers. Many schemes have been worked out that fall just this side of the law to accommodate the needs of the Union/Guild without raising the ire of the government.

Union/Guilds need to be careful, though to not go too far in establishing their Union/Guild first agenda. If they actually close off employment opportunities to non-union candidates completely, and there is a legitimate complaint lodged in court, the Union/Guild and employer can face steep reaction that can tend to unravel the well negotiated and hard fought position the Union/Guild has achieved.

Union/Guild members have to pay to enter their association and pay to maintain membership. There are two distinct forms of that payment. Dues are payments toward the direct collective bargaining and employment issues handled by the Union/Guild. These support the payments to members during called strikes as well as pension and medical coverages. on the other hand are payments that support the secondary activities of the Union/Guild. Examples of these are advertising and lobbying costs for when the Union/Guild appeal to legislatures, Congress and the public for sympathetic new laws for their causes. Expenses such as these don't directly effect the cause of employment but do better the general working atmosphere and perceptions of the Union/Guild. Why the distinction? See below.

It seems counter-intuitive, but, you can be considered a member and not a member of a Union/Guild at the same time. How? It partially derives from seeking a resolution to the complications of allowing non-union workers in an otherwise Union Shop. An accommodation for allowing the benefits gained by Union/Guild negotiation of working conditions and contracts by those who also work next to the members is sought. Legally, an employer isn't allowed to differentiate between Union/Guild labor and non-member labor so these non-Union/Guild workers benefit from the gains fought for by the Union/Guild bargaining. Since you can't force a worker to have to join a Union/Guild (though they can be strongly encouraged to join and abide by the rules), a compromise has been reached in some Union/Guild situations.

There are different names for the situation of non-member members. I'll use the Writers Guild example which they call Financial Core Status. This is when someone works under a collective bargaining agreement negotiated by the Union/Guild but declines to be a full member in that Union/Guild. They take some of the benefits as long as they pay the Dues consistent with the costs of acquiring those benefits, but, none of the non-related costs (the Fees). This financial distinction has been recently upheld in a court case, Harris v Quinn, where the non-union fee requirements were struck down for non-union benefactor employees. The Financial Core Status members do not get every benefit, but, then they do not have every obligation (they can work during strikes, for example, which is beneficial because they are usually denied strike loans and the like).

This brings us to the last discussion question on the subject for now; “Who can become a Union/Guild member?”

Rules differ for different Union/Guilds but there is usually a regimen or list of criteria that must be met before one become a member. Some require an accumulation of particular experience prior to qualifying to apply. The Writers Guild, for example, uses a Units system, where a new writer has to write as a non-union writer gaining particular points for each type of writing until enough writing examples have been garnered to be allowed to apply. An actor has to earn enough experience through Union Waivers before they are allowed to apply.

Union/Guilds set their own rules as to how hard or easy it is to qualify and they can determine on their own criteria whether an individual merits joining. How can they discriminate? Remember that they can't run closed shop? Well, it works to the Union/Guild advantage sometimes too.

Of course, as with the last installment of this series, I've used vague, short-cut language and far too inaccurate terminology to describe what is a very complex schema. Hopefully I haven't gotten anything too drastically wrong and at best case, I've actually shone a new light on some of the darker recesses of the game.

Get invaluable advice in
The Writer's Legal Guide: An Authors Guild Desk Reference