Legally Speaking, It Depends – Guild or Union, Part 1

*Note: This is the first of a two part article series...

Guild or Union? Which is which and is there a difference? It might come as a surprise to some even inside our industry but there is an actual difference and knowing the subtleties involved, could possibly save some embarrassment or miscommunication. At the very least, you can come off as one "in the know". "What are the differences and are they relevant to me?" you might ask. And as always, my answer is, "It depends..."

First, let's start with some standard definitions to give us all the same starting points.

As the old story goes, David with just his slingshot, did an okay job on his own against a much bigger and more powerful opponent. The rest of us could use a little help when facing "the man."

Negotiation is always about power. The ones with power can dictate terms to the weaker parties at the table. When a group of weaker powered individuals join as a united front to negotiate with a common, powerful, opposing party, the playing field can be more level with regard to power. This allows for a more advantageous outcome for the collective.

Collective bargaining is when a group of less powerful individuals who share similar goals, unite in negotiations with a common, more powerful opponent.

The term applies in any unbalanced power situation whether the group is organized, ad hoc or represented by an official organization empowered to negotiate on the group's behalf.

As we've seen in the copyright arena, a distinction is often made based on the worker's relation to the employer. In the context of collective bargaining, these distinctions are important again.

Usually, this means there is a separation of dependencies sufficient to establish independence. The specific requirements to establish the difference are complex and different in different jurisdictions, but, always include a complex array of factors. These can be factors such as:

And a raft of other varying factors too numerous and vague to mention here.

All those factors I alluded to above? If they're determined in the opposite for the most part from an independent contractor, then the person is considered an employee. Typically an employee has the accoutrements we expect of an employee, a pension, a desk or workspace, an expected work schedule, a job description to follow, continuity from project to project, etc.

Usually, you don't have to determine whether an individual is either an employee or independent contractor. Their specific job determines that and why do we care about this distinction in the context of this article, anyway?

and

Seemingly indistinguishable on their face, there are significant enough differences, both legally and in practice, to warrant attention to the distinctions. For example, independent contractors tend to be individually specific to what they bring to the job (in legal terms, "Unique Services") so seniority has no real meaning when considering employing say one Guild writer versus another. In the union realm, seniority has a significant impact on the employment of those who have earned higher salary levels because of their experience. Without protections for seniority the union electricians hired, would always be the younger and least expensive ones, since the a job done well by either would be indistinguishable from the other.

Unions and Guilds can also differentiate from other professional organizations that don't deal with employment issues as a main raison d'être. Groups like the American Medical Association (AMA) for doctors, and the state bar associations for lawyers, tend not to be collective bargainers for their membership, but focus on the self regulation and licensing of their professions.

Having accepted definitions is all fine and good, but, often the confusion comes in how the terms are used in day to day language.

In everyday conversations, it is common to hear both Guilds and Unions referred to by the common term "Union" even by those who are aware of the distinctions between the two. Also, it is de rigueur to refer to anyone who works for a production as an "employee" regardless if they are actually an independent contractor, staff employee or, often likely status unknown. Though common parlance doesn't seem to make a difference, the differences are there and can trip up the unwary.

Historically, Guilds are older. They were originally formed during the trade expansion, where classes of craftsman's wares were sought after by the shipping company owners to trade with their new expanding markets. Guild halls were formed where craftspeople gathered and shared skill secrets, trained apprentices and held their ground when negotiating deals for their wares with the usually more powerful merchant classes.

The traditional Unions as we know them today, weren't formed until the industrial age. When factory workers got fed up with being exploited as individuals, they self organized. First on single factory floors, then later those collectives joined together and formed very powerful negotiation bodies to demand safer working conditions and better treatment of the workers in entire industries.

Collective bargaining organization's heydays are in the past as well. For all the good that unions have accomplished, you might be surprised to learn that the highest percentage of the unionized workforce never rose above 35% of total workers, that back in 1953. The total percentage of workforce that is unionized today hovers around 11.3% as of 2013.

Some industries, such as the auto workers and entertainment industries, skew the norm and have a significant percentage of unionized workers even today compared to the rest of the workforce.

There are numerous examples of both Guilds and Unions in the entertainment industry.

As for Guilds, there are the Writers Guild (WGA),Directors Guild (DGA), SAG/AFTRA, Editors and Cinematographer's guilds among many others. As for Unions, a couple examples are the Stage Hands et al (IATSE) and Electricians (IBEW) Unions. And there are some organized groups that are difficult to classify. An organization I referred to in my last column calls itself the Producers Guild, but, producers are the ones on the opposite side of the negotiating table when renewing the DGA, WGA and SAG/AFTRA contracts. Can they really be both the employers and the employees when it comes to nomenclature? Since they are legitimately on both sides of the table, depending on the situation, should we have yet another term for their collective bargaining organ?

In part two we'll explore the legal and operational issues pertinent to Unions and Guilds as well as how individuals can best use them to their fullest advantage. How?

As always, it depends...

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