Recently, California Governor Gavin Newsom raised some eyebrows when he announced that state government officials anticipated publishing guidelines for the reopening of Hollywood production facilities by Memorial Day. The Governor’s announcement took many in the industry by surprise, given that producers and unions continue to wrestle with the legal obligations and operational complexities involved in safely reopening film and television productions with the ever-present threat of COVID-19. Faced with this monumental task and the fluid nature of the pandemic, most production houses do not anticipate any return to work before July 1. Regardless of the precise timing of Hollywood’s return to work, the various union collective bargaining agreements (Basic Agreements) are clear that producers and unions will share responsibility for ensuring a safe and healthy workplace for industry employees. Given the outsized roles that the Hollywood Guilds play in shaping industry employment policy, strategic labor relations will be key to the success or failure of producers’ reopening plans.
As a general matter, employers are not obligated to bargain over the terms and conditions of employment that are already covered by a collective bargaining agreement (CBA). Alternatively, if a union demands to negotiate a term of employment that is not covered by a CBA, a duty to bargain may arise. All of the Basic Agreements cover the subject of safety in the workplace to some extent, but the details of a producer’s reopening plans in response to this unprecedented health crisis ultimately will determine whether a union has the power to keep production closed until a negotiated deal is reached for reopening. Traditionally, labor relations in Hollywood have been more collaborative than adversarial because of the unusual strength and visibility the Guilds possess. It is often in a producer’s best interests to meet with the union to discuss labor relation matters regardless of whether a duty to bargain exists, in an effort to win buy-in from the union. Successful labor relations keep productions on time and avoid the potential for costly and disruptive legal disputes. Given that the DGA, IATSE, and SAG-AFTRA have publicly announced that they are coordinating their pandemic back-to-work strategies, it is likely that planning for reopening will involve some amount of negotiation between the producers and the unions.
Perhaps with this in mind, the newly negotiated DGA contract contains an exhibit consolidating and detailing employer and union member safety responsibilities on set. The new DGA contract set the pattern for negotiations to follow with the other unions, so we may see similar workplace safety provisions in subsequent contracts (the WGA is in negotiations now). Directors occupy the unique (and often awkward) position of being union members and quasi-management employees who bear a certain level of responsibility for ensuring safety on a shoot. Exhibit 2 of the 2020 Memorandum of Agreement for the DGA Basic Agreement memorializes this shared responsibility in detail. It also provides the following protection for employees: “No Employee shall be discharged or otherwise disciplined for refusing in good faith to work on a job that exposes him or her to a clear and present danger to life or limb.” The IATSE’s Basic Hollywood Agreement contains a similar provision protecting employees’ rights to refuse to work based on a reasonable, good faith fear of danger to their lives. These provisions—which generally track the Occupational Safety and Health Administration’s guidance protecting employees from exposure to dangerous job conditions—have the potential to take on particular importance for union members during reopening. Although similar protections already exist by statute, the inclusion of these provisions in labor contracts provides a potential tool, short of a strike or lawsuit, for union members to voice complaints or refuse to work if they deem reopening plans to be insufficiently protective of their health.
Given the shared interests of employers and employees in a workplace safe from COVID-19, the likelihood of a strike over reopening plans is low. The DGA, WGA, SAG-AFTRA, and IATSE Basic Agreements all contain “No Strike” provisions prohibiting union members from striking if a dispute arises over the terms and conditions of employment. Many of the contracts require the unions to use best efforts in good faith to require their members to work in the event of any wildcat action (unauthorized strike) by a subset of union members. Some of the contracts further prohibit “sympathy” strikes in support of another striking union. Conversely, in the event of a strike, certain provisions of the Basic Agreements inoculate union members from certain consequences and liabilities that would otherwise flow from the work stoppage. For example, the DGA contract prohibits employers from disciplining DGA members who refuse to cross a picket line duly authorized by the Guild. The WGA agreement suspends members’ liability for breach of contract during a strike as long as the member honors his or her contract (or signs a new agreement at the producer’s request) after the work stoppage concludes. These protections are not unfettered. A strike by WGA members empowers the production company to suspend its contractual obligations to writers for the duration of a strike and allows the employer to cancel writer contracts in the event of a strike. Given the fierce competition for industry jobs (especially in this fragile economic moment) and the thoughtful planning under way by all sides on reopening, the likelihood of an industry-wide strike is low despite these relatively union-friendly strike provisions in the Basic Agreements.
Producers and unions share the goal of shielding the workplace from COVID-19 and maintaining healthy employees in this pandemic. Any pandemic safety plan must address conditions at reopening but also must evolve over time to account for new developments in virus response and a potential resurgence of the virus through the end of the year and into 2021. Producers who successfully win buy-in and genuine cooperation from unions will undoubtedly chart a smoother course through these choppy waters. Shared interests in Hollywood labor relations traditionally lead to deals, not strikes, but these are unprecedented times and sound labor relations will be key to success.