Archive for June 2008

Negotiations Watch: LAST, BEST & FINAL OFFER!

As predicted, the AMPTP has made its “last, best and final offer” to SAG on TV-Theatrical.  SAG has issued a statement in response.

SAG Statement

The Screen Actors Guild national negotiating committee has bargained with the AMPTP for the last 42 days and remains committed to negotiating a fair deal for actors as soon as possible.

The AMPTP today delivered a last-minute, 43-page offer that upon initial examination appears to be generally consistent with the AFTRA deal, particularly in its provisions relating to new media. The union is reviewing the complex package and will prepare a response to management once that analysis is complete.

The parties are scheduled to meet Wednesday, July 2, at 2:00 p.m.

“This offer does not appear to address some key issues important to actors. For example, the impact of foregoing residuals for all made-for-new-media productions is incalculable and would mean the beginning of the end of residuals,” said Screen Actors Guild National Executive Director and Chief Negotiator.

The Screen Actors Guild Codified Basic and Television Agreements covering television programs and motion pictures expire tonight at midnight. Work will continue and all SAG members should report to work and to audition for new work past the expiration date until further notice from the Guild.

Well known entertainment attorney Jonathan Handel says the producers will meet with SAG Wednesday to explain their position, but will not entertain counteroffers.

Our analysis: As we understand the term “last, best and final offer” this is a first step in a legal process that allows the AMPTP to impose the terms of the offer even if it’s not accepted. The only alternative to that sort of move is to strike, something that now seems impossible, because the Allens aren’t now believed to be able to get the 75% vote of the membership to authorize a strike. However, imposing the terms could change attitudes.

AMPTP Statement Below.

June 30, 2008

Statement of the AMPTP

Our industry is now in a de facto strike, with film production virtually shut down and television production now seriously threatened.  In an effort to put everyone back to work, the AMPTP today presented SAG our final offer - a comprehensive proposal worth more than $250 million in additional compensation to SAG members, with significant economic gains and groundbreaking new media rights for all performers.

Our $250 million offer is consistent with the four other labor agreements already reached this year with DGA, WGA, AFTRA Network Code and AFTRA Prime-Time Exhibit A.  In addition, our offer addresses issues that SAG identified as being of utmost concern to its members, including tailoring our new media framework for SAG in areas such as feature films and significant gains for working actors.

In short, our final offer to SAG represents a final hope for avoiding further work stoppages and getting everyone back to work. That is our goal, and we hope it is shared by the members of SAG.  The economic consequences of a work stoppage would be enormous.  If our industry shuts down because of the unwillingness of SAG’s Hollywood leadership to make a deal, SAG members will lose $2.5 million each and every day in wages.  The other guilds and unions would lose $13.5 million each day in wages, and the California economy will be harmed at the rate of $23 million each and every day. 

As SAG’s leadership considers our final offer, we will continue for now to work under the terms of the old contract as current productions wind down.

Background Materials

Negotiations History and the De Facto Strike

SAG’s Hollywood leadership has, by its own design, created the difficult predicament that SAG’s working actors now find themselves in.  Immediately after the WGA settlement, on February 14, 2008, we invited SAG to engage in early negotiations but the Guild’s Hollywood leadership insisted that only last-minute bargaining can bring notable gains.  Calls for early talks were further ignored as SAG engaged in a W&W process that got underway months later than usual because of the Hollywood leadership’s longstanding campaign against AFTRA.

Since talks finally began on April 15th, we have spent 42 days attempting to convince SAG’s Hollywood leaders that we should build upon the New Media Framework already established in four different labor agreements this year, with DGA, WGA, AFTRA Network Code, and AFTRA Prime-Time Exhibit A. 

In early June SAG’s Hollywood leadership announced an anti-AFTRA campaign, and since that time SAG’s Hollywood negotiators have squandered almost a month of negotiating time trying to defeat AFTRA’s tentative agreement instead of making its own deal. 

The result of SAG’s stalling is a de facto strike that is inexorably bringing our entire industry to a full stop.  Our final offer is designed to bring an end to this de facto strike and put our industry back to work.

The Economic Impact of an Industry Work Stoppage

If SAG rejects our offer and continues with its misbegotten anti-AFTRA campaign, SAG’s Hollywood leaders will unnecessarily harm not only SAG members and sister Guild members, but also the tens of thousands of below-the-line workers whose families depend on our industry and the millions throughout California whose businesses benefit from our industry’s growth.  With each passing day after June 30th, there will be less work for those whose livelihoods depend on our industry. 

SAG participated in the WGA strike and saw first-hand the economic damage it inflicted on the industry and the thousands of workers and businesses that had no stake in the fight.  If our industry shuts down because of the unwillingness of SAG’s Hollywood leadership to make a deal, SAG members will lose $2.5 million each and every day in wages.  The other guilds and unions would lose $13.5 million each day in wages, and the California economy will be harmed at the rate of $23 million each and every day.  A halt in production will also bring economic harm to a number of communities around the country where film and television production bring millions of dollars into local economies.

Roadblocks

The producers were put in a challenging position by having to bargain separately with AFTRA and SAG for the first time since 1980.  After 17 days of tough negotiations, we reached a tentative agreement with AFTRA but have yet to do the same with SAG after more than twice as much time at the negotiating table. 

With four major agreements concluded with the Guilds this year alone, the Producers entered the SAG talks with eight narrowly tailored proposals meant to get an agreement that much quicker. Unfortunately, SAG came in with 36 proposals – including several true deal-breakers – and thus put itself in the position of having to work harder to find common ground.  While we have made some progress, SAG continues to hold to several of these unacceptable proposals including increases in DVD residuals, restrictions on product integration and excessive increases in money and schedule breaks, stand-in minimums and mileage increases.

In addition, SAG is seeking to undermine the New Media Framework that we have constructed with three other Guilds.  This includes a demand that SAG have exclusive jurisdiction in content made for the Internet, which would prevent AFTRA from having the shared jurisdiction that it bargained for only a month ago.

Making the Framework Work

So far this year, the Producers have reached four major Guild agreements – DGA, WGA and two with AFTRA – that build on a fundamental set of new media terms. These terms are groundbreaking for a number of reasons.  First, at no point has the industry ever established so many residual formulae and jurisdictional agreements in one negotiation cycle.  Through a series of major concessions, the Producers have established standards for permanent downloads, Internet streaming, made-for new media productions and the use of clips in new media.

The New Media framework offers terms that are rich by traditional standards but also gives the Producers some flexibility to adapt and experiment.  Most of the residuals are based on a percentage of revenue that matches the best existing residuals in the SAG contract.  Further, the New Media framework allows full access to the Companies’ un-redacted new media deal memos and includes a Sunset Clause so that the parties can revisit the terms in three years with a better understanding of how the market is developing.  The New Media Framework has been adapted to the unique needs of SAG by preserving performers’ right of consent over non-promotional uses of their clips in new media, and securing a definition for “covered actors” in low-budget original made-for new media.  In short, the Producers have now proven they can make the framework work for all Guild members, and there is no reason we should not be able to do the same with SAG.

The AMPTP’s Final Offer

Our final offer is worth more than $250 million to SAG members over the course of the three-year deal, over and above what SAG members would have made under their old contract.  Our final offer includes significant gains in minimums, pension and health contributions and terms for working actors.  In addition, we have offered groundbreaking new media terms – with fair and appropriate modifications for actors — that have already served as the cornerstone of four other major Guild agreements this year, including one that ended the 100-day WGA strike. 

We hope that SAG’s Hollywood leadership will not make the tragic mistake of misleading their members by suggesting that additional stalling will lead to a better offer at a later time.  We have compromised again and again this year to reach four major labor agreements — agreements that satisfied the DGA, WGA and AFTRA — and we have now reached the end of this process.

AMPTP Final Offer Fact Sheet

The Producers’ final offer includes groundbreaking terms and residuals for actors in all forms of new media, as well as significant increases in minimums, pension and health contributions and terms affecting working actors.

MINIMUMS:

Increase minimums by 10% over the course of the contract – 3.5%, 3%, and 3.5%.

Increase network primetime rerun ceiling by 2.5% in the first and third years of the contract.

PENSION & HEALTH:

Increase contributions by 0.5% in second year of contract, bringing SAG’s pension and health rate to 15% - the highest Guild rate in the industry.

GUEST STARS:

Increase the premium payment over the day player rate from 7.5% to 10%.

BACKGROUND PERFORMERS:

Increase the number of covered background actors in television from 19 to 20 and on features from 50 to 52.

MONEY BREAKS:

Increase the trailer money break from $2,500/week to $3,000/week.
Increase three-day performer overtime money break from $2,700 to $3,000.

SCHEDULE BREAK:

Increase weekly salary figure for Schedule B performers from $4,400 or less per week to $4,650 or less per week for TV and from $5,500 or less per week to $6,000 or less per week in feature film.

NEW MEDIA:

Establish residuals for streaming television programs and features.

Establish jurisdiction and residuals for derivative and original made-for New Media programs.

Doubling of residual rate for permanent downloads.

Preserve performers’ consent over non-promotional uses of clips in New Media.

Broad definition of “covered performers” in low-budget New Media productions.

Full access to Companies’ un-redacted New Media deal memos.

Sunset Clause to protect both sides in future negotiations.

Negotiations Watch - Day 42

They’re back at the table again, and heading down to the wire. No word on progress, though the SAG team is leaking and spinning to their favored mouthpieces that the last minute negotiations aren’t their fault.

 We’re not holding our breath on this one, but we still think the Allens may surprise those who’ve been reading the trades and the speculation that nothing will happen until the AFTRA Exhibit A ratification vote is announced.

Nikki Finke, Caught Again!

We’ve already chronicled the foibles of the blatantly self promoting blogger, but once again she’s in hot water, this time for using “statistics” that don’t even approach the truth.

In her latest in her self described “urgent” series about the so-far-failed TV-Theatrical negotiations, Finke, with no attribution, claims that AFTRA had a limited stake in its Exhibit A deal, which formerly was jointly negotiated with SAG’s TV-Theatrical contract, and implies that AFTRA, which brought back a tentative contract with substantial raises, somehow did something wrong.

“The employers cartel found a willing and ambitious collaborator, AFTRA. Whose total earnings over the last 3 years on the same contract totaled only $40 million. (SAG 99% AFTRA 1%.)”   (sic)

An AFTRA National Board member wrote to Finke and copied us on his message, advising her that the statistic she had used was not just misleading, because AFTRA doesn’t do theatrical, but not even in the right order of magnitude in terms of the earnings for television. 

The message also noted that AFTRA uses Exhibit A terms and conditions in a number of its other contracts, including basic cable. That, the board member said, makes the Exhibit A contract (formally, Exhibit A of the Network Code) very important to AFTRA.

What did Finke do? As is apparently her practice, rather than correct her mistake, she simply didn’t post the comment.

An AFTRA spokesperson says she had advised Finke more than a week ago that her statistics on AFTRA’s earnings, which apparently come from the Allens, were incorrect, issuing the following statement to her,

Either SAG’s Hollywood leadership is stupid or they think AFTRA’s members are stupid. What possible sense does it make to compare the dollar value of the increases in the new AFTRA primetime TV contract to total SAG earnings from all media over the last three years? That’s not apples and oranges — it’s fish and bicycles. What might make sense would be to compare the value of the increases AFTRA won to the increase SAG has won. The only problem with this is that SAG hasn’t won any increases for its members — perhaps because it’s been too busy trying to undermine the AFTRA deal to be able to negotiate one of its own.”

Somehow Finke managed not to use that one either. However, she did manage to find four posts that tell her how wonderful she is.

Share your Nikki Finke stories with us, if you like, either through comments or by e-mailing editor@sagwatch.net

SAG/NY Censorship Complaint draws Legal Support - Updated!

A big chunk of Andrew Solomon’s Blogstage entry this morning is devoted to the anger over NY Branch President Sam Freed being refused access to the SAG e-mail system to send off a message supporting AFTRA’s Exhibit A and objecting to the Allens’ anti-AFTRA campaign.

Solomon talked to some lawyers, including SAG’s. Here’s what he wrote.

“According to an email obtained by Strike Watch, “it has become policy at the guild to disallow the use of guild resources to express any position that does not strictly adhere to current guild policy.”

In the email Freed attempted to send, he stated, “The New York Board is on the record objecting to this official interference in the internal processes of another union. That unfortunately is what these recorded messages represent.”

Guild spokeswoman Pamela Greenwalt stated Freed wasn’t allowed to send the email because he was not authorized to speak. “As reaffirmed by Screen Actors Guild’s Board of Directors at its March 29, 2008 meeting, SAG National President Alan Rosenberg and National Executive Director Doug Allen and their specific designees are the only official Guild spokespersons regarding the Guild’s negotiations,” Greenwalt wrote in an email.

According to Stephen Diamond, an associate professor at Santa Clara University School of Law, the withholding of union resources from a minority party is a violation of the Landrum Griffin Act of 1959, which established for union members a “bill of rights” that guarantees freedom of speech and other protections. Subsequent cases heard by the Supreme Court and the U.S. Court of Appeals have affirmed those rights, including members’ right access to mailing lists to express views that oppose the majority.

“The law is straightforward: Union officials bear a heavy burden to justify why they would restrain members to communicate opinions about matters on which they are to vote,” Diamond said.

Duncan Crabtree-Ireland, the guild’s general counsel and deputy national executive director, responded through a SAG spokesperson:

“Some … individuals allege that the Landrum-Griffin Act requires Screen Actors Guild to permit Guild officers to use Guild resources, including our email systems, to send messages in opposition to the Guild’s officially- and democratically-approved position on the AFTRA contract ratification vote. To the contrary, it is well-established law that the Landrum Griffin Act protects members in their exercise of their free speech rights, and does not apply to officers when they seek to use union resources they may have access to in that capacity to counteract the union’s own initiatives [emphasis Crabtree-Ireland’s].”

Diamond, a former candidate for the position of SAG national executive director, replied in an email: “Freed is both an officer and a member. Here he is trying to exercise his right as a member.  Federal courts have held that members ‘whose views are opposed to [the union’s]…[should] have an opportunity to present their views to other members of the union.’  In other words, SAG is not allowed to discriminate against Freed simply because he is also an officer.”

The case Diamond cites is Cotter v. Helmer, argued in front of the U.S. Court for New York’s Southern District.

A lawyer and a former SAG official who requested anonymity partially disputed Diamond’s interpretation and partially affirmed it: “Only the organization has the authority to set policy. However, the position being adopted by the current majority [Membership First] is nothing short of astounding. When their members were in the minority, they often requested the list to present an opposing view to whatever the majority had decided: merger, a contract referendum, or the agency agreement.”

Update: It turns out that Steve Diamond has a long post on Vallywood dealing with this subject. As usual, we think he’s worth a read!

Equity, Too

Actors Equity and the Broadway League have yet to finalize a deal covering work on the Main Stem and national tours. The contract was set to expire at 12:01 a.m. Monday morning, but, according to Backstage, quoting Equity spokeswoman Maria Somma, both sides have agreed “to extend the contract on day-to-day” while they continue to negotiate.

Equity’s NED is the former President of AFTRA, John Connolly.

Answering the Mail

Dear Editor,

Can you please give us your thoughts and opinions on what you think are the motivations of the MFer’s and the Allens for this anti-AFTRA campaign?  What do they stand to gain, in your opinion?

Also, for the suggestion box:  please post your email address (editor@sagwatch.net) prominently on your front home page, so that folks can easily write you.  I finally located  it again, but it’s a bit buried within the site and hard to find.

Thanks,

Michael

http://www.michaelmishaw.com

Michael -

Thanks for your question. First, the easy part: we’ve tried to make the contact more prominent, as you request - it’s on our About Us page, which is now called About Us/Contact. We’re trying to figure out how to put it on the front page. But none of us are really web experts. We’re just working with the software our ISP gives us - and it has some limitations.

Now for the hard part. Membership First’s motivations.

There are a couple of different schools of thought. We’re not sure any one of them is exactly right. The truth is probably a blend.

1. They’re deep into political power.

2. They truly believe that their strategies are intellectually and morally superior to everyone else’s ideas. The corollary to that is that they think everyone else’s ideas are stupid.

3. They don’t think anyone outside of Hollywood is serious about their craft.

4. They think that if they improve their own wages and working conditions, it will have a trickle down effect on the rest of the union, and that the trickle down is a good thing.

5. Doug Allen, who we count as being among the Membership First group, is certainly motivated to keep his job. He was hired by Membership First and given marching orders that send him on the current path. He probably thinks if Membership First loses the upcoming election, he’ll be fired, as were his predecessors. (He’s probably right about that, too!)

There probably are other motivations that vary with the individual. Some undoubtedly think that whatever happens, SAG must survive as SAG (remember the SAVE SAG movement from 2003?)

Somebody from the group may want to chime in with more.

Eileen Henry’s Response to the New York Times Statistics

We noted some stats used by the New York Times in its article on the TV-Theatrical negotiations. Veteran New York SAG officer and P&H Trustee Eileen Henry copied us on her response to the author. We had wondered about the statistics, and apparently she does too!

– 

As a former NY President, 2nd National VP and National Board Member of Screen Actors Guild, (1995-2005) I don’t know who or how the “average income” of $52K was tallied but there has never been, at least during my years of service at SAG any conversation, study or analysis relating to this faux-fact. 

At the very least, this figure is erroneous and at best, disengenuous. It doesn’t jibe with another statement in the article, that “2/3 of the membership earn less than 1k.”  We HAVE had that conversation ad nauseum and I believe the “2/3″ is a low-ball estimate. 

I’ve supported myself for the past 20 years as a middle income actor in NYC working primarily under the Commercials Contract.  Yes, the business has changed in both TV/Film AND Commercials (a large part of the commercial change had to do with the devastating 6 month strike under the Commercials Contract).  But how does keeping actors out of work in TV and film after a 100 day WGA strike help their cause?  What is Doug Allen and Alan Rosenberg’s strategy to get more than the WGA, DGA and AFTRA? 

The defacto strike, caused by last minute negotiations has brought the TV and film business to a virtual halt and does nothing to help ANY actor earn an income.  It is foolish, irresponsible and some say negligent to think that SAG can get a better deal than the WGA(after a 100 day strike) DGA and AFTRA.  National leadership (both elected and staff) are avoiding the reality of the situation and certainly do not have unilateral support of the membership for this foolish waste of membership time and money.

With the Commercials Contract expiring in October of this year (no formal planning is underway as of yet) and no deal as of this writing for the TV/Theat Contract seems to me that the “middle people” are actually the last thing on Messrs. Rosenberg and Allen’s mind. 
Best,
Eileen Henry

Negotiations Update: June 30th

Yes, that’s today. The day on which the TV-Theatrical contract expires.

The AMPTP is out with its own trade ads, calling a strike “Harmful and Unnecessary.” The tag line is “Let’s Keep Working.”

The reality is a little different. Producers have gone into de facto lockout mode, shutting down production on many projects. The AMPTP admits as much, being quoted in Variety as saying,

“The industry is shutting down because SAG’s Hollywood leadership insisted on 11th-hour negotiations and dragging these talks into July so they can continue attacking AFTRA,” the AMPTP said. “The AMPTP has made four major guild agreements so far this year, and there is no reason we can’t make a fifth and final one with SAG and get the town back to working at full speed.”

There’s a full slate of major newspaper articles to go with the trades this morning. Most describe the SAG/AFTRA war and stick to the conventional wisdom, that the Allens won’t deliver a deal by the close of business, but will wait to hear the Exhibit A results before getting serious and finishing the TV-Theatrical deal.

The trades focus on yesterday’s revised statement saying a strike is not imminent.

There was no end of the negotiating day SAG statement, but we don’t eliminate the possiblity that the Allens finally have counted the votes in the room, something the AMPTP probably did a while ago, and know they can’t defeat Exhibit A. If they’re paying attention, and we think they finally are, they may have come to the conclusion that they might as well close out TV-Theatrical before they suffer a resounding defeat and lose what little leverage they now have.

We’ll know soon enough…

Did You Notice?

This is from the New York Times story on the TV-Theatrical negotiations.

“Most unions represent workers with wallets of similar size, but SAG is a hodgepodge of wildly varying careers. On one extreme, SAG represents stars like Will Smith, who will take home well over $20 million from his coming film “Hancock” once all the receipts are counted. The bulk of its members, about two-thirds, according to some estimates, make less than $1,000 a year from acting, either because they can find no work or because they have moved on to other careers but kept up their dues.

SAG said the average annual income for its membership was $52,000 a year. The guild said it could provide no other economic statistics about its membership, however.

The Alliance of Motion Picture and Television Producers, the organization that negotiates on behalf of studios, said its analysis of SAG membership showed that fewer than 4,000 of its members could be considered middle-income actors, that is, people making $25,000 to $100,000 from acting in a given year. Only 5 percent of SAG’s membership earns more than $75,000 a year, according to the alliance.”

Our analysis: only 8% of SAG’s membership earns more than $25,000 per year in SAG work.

Who Says the Allens Don’t Listen?

So, a few hours ago, we posted a Negotiations Watch Update on the bizarre statement from Alan Rosenberg that had been placed on the SAG website. The statement - all of it - read like this:

“We have taken no steps to initiate a strike authorization vote by the members of Screen Actors Guild. Any talk about a strike or a management lockout at this point is simply a distraction. The Screen Actors Guild national negotiating committee is coming to the bargaining table every day in good faith to negotiate a fair contract for actors.”

We linked to it.

What did our fine friends at 5757 do? They changed the statement!!!

Now, that statement runs 651 words instead of the original 59. Instead of an out of left field statement denying something that no one had suggested, with the extra words the statement starts to fall into the larger Membership First/Allens pattern.

We know you’ll be shocked by this. It’s another attempt at super spin and AFTRA bashing, even though the new, revised statement insists it’s “not an attack on AFTRA.”

Here’s what it’s really about (we think). AFTRA’s National Board formulated its resolution ratifying the tentative Exhibit A contract like this:

A Yes vote is a vote to ratify the contract.

A No vote is a vote to reject the contract and to simultaneously authorize the National Board to call a strike.

Rosenberg today denied that SAG had sent out a strike authorization. Of course it didn’t. As we pointed out, if the Allens sent out that kind of referendum, they know they’d lose, and lose big. But AFTRA did send out its referendum, fully expecting that the vote would be to ratify the contract and not to authorize a strike.

So when Rosenberg wrote “Some have even implied that a strike is looming this week. Don’t let these scare tactics fool you,” what we think he really meant was that AFTRA isn’t going on strike. What he was trying to say is don’t worry about voting no on the AFTRA contract, because there isn’t going to be a strike.

Well, we think he’s right about that, because the Exhibit A contract is going to be ratified.

Rosenberg calls talk of a lockout a “distraction,”  though for those out of work because of the de facto lockout, it’s probably a little more than that.

That’s not the only spinning Rosenberg’s doing in the newer, bigger, bolder statement. By saying he’s refuting “blog” statements, Rosenberg runs off on a tear, saying the blog statements are wrong, particularly one on non derivative new media, and that AFTRA is wrong to ask members who work in broadcast to vote yes for Exhibit A.

Rosenberg didn’t identify the offending blog - but the accurate statement regarding the AFTRA contract’s test for professional (or “covered”) performer is on the AFTRA site.

A “covered performer” is an individual who has worked under a collective bargaining
agreement and has met any of the following criteria:
* has at least two television (including free, basic, pay or direct-to-video) or movie credits;
* has had 13 weeks’ employment as a performer in radio (including satellite radio) in a major market;
* has had at least two credits in a professional stage play (e.g., Broadway, Off-Broadway, LORT, COST, or CORST contract, or as part of an Equity National tour);
* has been employed as a performer on an audio book or as a royalty artist on a sound recording which has been commercially released by a major or bona fide independent label;
* has been employed as a principal performer, announcer, singer, or dancer in a national television or radio commercial, interactive game, or nonbroadcast/industrial production.

Rosenberg’s right - being a union member isn’t enough. But having a single credit, whether a union member or not, is enough. 

Rosenberg objects to AFTRA’s statement that Exhibit A “is important to all AFTRA members, including broadcasters.” However, broadcasters work the Network Code (Exhibit A is Exhibit A to the Network Code), particularly in the national news area, and in some prime time news shows like Dateline and 60 Minutes.

Our analysis: While the expanded Rosenberg statement certainly is a lot more clear than the original, in the end, it isn’t any more sensible. Rosenberg is still obsessing over AFTRA instead of the AMPTP.