Filed But Not Served: Unpacking the Los Angeles' Pro99 Lawsuit Against Actors' Equity Association

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The federal lawsuit has been filed, but not served and now we wait for a response from Equity.

By now you’ve probably heard that some Los Angeles-based Equity plaintiffs, many of them well-known actors, including Ed Asner, French Stewart, Amy Madigan and Ed Harris, have filed a lawsuit in a California Federal court against their own union, Actor’s Equity Association (AEA). If you’d like to read the full 37 page complaint that was filed you can do so here.

There’s also an excellent recent article in American Theatre from our very own Jason Rohrer. We are always happy when our writers take flight with other outlets and this latest is another winner from the Roar. Here’s a little scoop he got from the plaintiff’s lawyer:

The plaintiffs’ lead attorney, Steven J. Kaplan, said last night after filing, “Bringing a lawsuit helps to focus people’s attention. We are hopeful that by filing the lawsuit, we will move Equity to take the concerns of its members and parties to the 1989 settlement seriously.

“Equity has extra time to think about how it wants to respond,” he continued. “The plaintiffs are members of Equity, for the most part, and far from hostile to the union, they are major supporters. They want to give the union the opportunity to sit down with them if they’re so inclined. Now that there’s a lawsuit pending, we are hopeful that the union will take the time to meet with our clients.”

And that’s important to understand here, the plaintiffs have filed but not yet served their beloved union with this suit. They are, as it states in the press release, holding off, “in the hope that the Union would respond to their request to meet and confer about a mutually acceptable resolution of the small theater controversy.”

Uh, sorry to break this to y’all, but, fat chance. Equity has been after this dragon for a long time and they are not going to back down because of what they probably deem to be a few technicalities and some egregiously bad behavior, which is the basis of this lawsuit.

Here’s what McColl had to say straight from the text of the complaint:

“When pressed about following the conditions in the Settlement Agreement, McColl said, ‘We are fully aware of the Settlement Agreement and make no mistake, the Settlement Agreement was a mistake and Equity would not make the same mistake again.’”

And let’s be very clear here, folks, while officially this is a membership complaint against its own union, at its philosophical core, this is Los Angeles Intimate Theater Against Actors’ Equity Association. Pure and simple. Don’t hear much coming from the mid-sizers and the LORT companies do you? Exactly. This is Pro99 vs. AEA, 2015. We are smack dab in the middle of a classic David and Goliath struggle. It just so happens that in this case, Goliath and David happen to share some relations. A lot of relations. They all happen to be members of the same supposedly “professional” union.

Here’s basically what everything hinges on, as stated by this federal suit:

5. Federal Law Claims. Equity also violated two federal statutes. First, by interfering with the ability of members to continue to volunteer their time to Equity Waiver theatre and thereby develop their creative skills and be seen by audiences and potential employers, Equity breached its duty of fair representation. Equity also violated the equal rights guarantee in section 101(a) of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411(a): It deprived members of the equal right to participate in the deliberative and voting processes that were to precede any act by the Union to make substantial changes to the Equity Waiver system, failed to post “Pro and Con” statements on its on-line ballot, as required by the Settlement Agreement, for the first three days of balloting, thereby depriving some Union members of equal access of information about the referendum, and directed some members how to vote in the referendum.

And here are the main complaints, the first:

53. Defendant Equity’s elimination of the Equity Waiver system and the 99- Seat Theatre Plan, and Equity’s prohibition on the performance of volunteer acting at small theatres, without complying with Paragraph 4 of the Settlement Agreement, as described in Paragraph 35 above, constitute breaches of the Settlement Agreement.

And here is the meat of what the plaintiff’s are alleging Equity violated in the Agreement:

35. Equity Adopts New 99-Seat Theatre Plan Without Complying with Settlement Agreement Procedures. On February 6, 2015, Executive Director McColl announced to the Union’s membership that the National Council had developed and approved a proposal for a new 99-Seat Theatre Plan, endorsed the new Plan and urged Equity members to support it. In adopting this new 99-Seat Theatre Plan, the National Council failed to comply with the procedures established in the Settlement Agreement. For one thing, the National Council itself was not authorized by the Settlement Agreement to adopt a proposal. Rather, the National Council’s role was limited to processing proposals submitted by other interested parties through the multi-tiered procedure set forth in Paragraph 4 of the Settlement Agreement, and was required to wait until that process was exhausted before acting on any proposal. Instead, the National Council acted immediately by approving the proposal and then spending Union resources in an effort to obtain support from members at the referendum stage.

(a) The Settlement Agreement contemplates that a proposal will be made by the Review Committee, the Union’s Western Advisory Board, or an individual member or executive of the Union, for a change to the 99-Seat Theatre Plan. Once a proposal is made, the Union must provide the membership and Review Committee with details of the proposed change at least 45 days before the Union acts upon it. (Exh. A, ¶ 3.)

(b) The National Council did not provide the Review Committee and Equity membership with the details of the proposal 45 days before it acted on the proposal, as required by Paragraph ¶ 4(a)(i) of the Settlement Agreement.

© Instead, Equity immediately approved and endorsed the proposal and made the proposal its own. No meetings were held with the Review Committee before the National Council acted on the proposal by endorsing it. (Exh. A, ¶ 4(a)(ii).)

(d) The National Council did not consider a request by any Union member for an advisory referendum of the Los Angeles County membership, but rather decided that an advisory referendum should be held without any request.

(e) The Union deprived members of a fair referendum because, instead of remaining neutral until the process was exhausted, it actively supported and promoted the proposal, expending Union funds in the process.

This will probably be the main focus of the suit if it goes forward, failure to comply with the Agreement, because the bad faith stuff, while clearly provable, may not be enough to overturn this. Here are more of the main complaints.

57. Defendant unfairly interfered with Plaintiffs’ rights to receive the benefits of the contract by repeatedly refusing in bad faith to convene joint Review Committee meetings, adopting a proposal to eliminate the Equity Waiver system and taking action on that proposal before following the procedures outlined in Paragraph 4 of the Settlement Agreement, attempting to sway the Union membership by conducting biased surveys and focus groups, pressuring 99-Seat Committee members to vote in favor of the resolution, organizing and paying for telephone banks intended to prevail on Union members to vote for the referendum, refusing to confer with the Plaintiff-side members of the Review Committee or any other person to consider the advice of the 2-1 majority of Union members who voted to reject the proposal, and resolving to implement the proposal before the Paragraph 4 process was followed.

61. Executive Director McColl failed to act as a reasonably careful fiduciary with respect to Union funds by violating the Settlement Agreement as described in Paragraphs 30 through 47 of this Complaint.

66. By eliminating the Equity Waiver system in violation of the Settlement Agreement and over the unambiguous objections of two-thirds of its Los Angeles members who voted in the March-April 2015 referendum, and by doing so arbitrarily and in bad faith, Equity deprived members of opportunities to develop their artistic and creative talents. It also deprived members of opportunities to perform and work collaboratively on new projects, to develop their artistic talents and to volunteer for work they are passionate about when remunerative work is not available. In so doing, Equity undermined the ability of members to improve their skills through volunteer activities, obtain exposure to potential employers hiring for remunerative work, and to volunteer on artistic projects that have the potential to become successful productions operated under union contract. 

71. Equity deprived Los Angeles members of their right equally to deliberate over a proposal to make a substantial change to the Equity Waiver system, and to participate in the deliberations and referenda of the organization, when it adopted and endorsed the plan to eliminate the Equity Waiver system without remaining neutral, as required by the Settlement Agreement, until after it followed the process established in Paragraph 4 of the Settlement Agreement.

72. Equity violated the equal rights of Los Angeles members by omitting from the electronic ballot the opposition statement submitted by the Plaintiff-side members of the Review Committee, so that for the first three days of voting, union members who voted electronically during the first three days were not afforded the same opportunity as others to read the opposition to Equity’s proposal to terminate the Equity Waiver system.

73. Equity violated the equal rights of Los Angeles members when it endorsed the plan to eliminate the 99-Seat Theatre Plan without first giving all Union members an equal opportunity to hear contending positions within the Union before the National Council itself adopted and promoted its position.

74. Equity violated the equal rights of Los Angeles members when it directed members of the 99-Seat Committee to vote in favor of the referendum, as described in Paragraph 39 above.

The Plaintiffs again, in toto, are Ed Asner, Tom Bower, Gregg Daniel, Ed Harris, Veralyn Jones, Karen Kondazian, Amy Madigan, Lawrence Pressman, Michael A. Sheppard, French Stewart and Vanessa Stewart and the original Review Committee folks are included as secondary plaintiffs.

Here are a few things that could happen:

1) AEA will not come to the table and will allow this to go to court. They’ve been waiting to do this for years and they’ve already invested a tremendous amount of time and money in the effort and now feel that they are all in. They also believe that they’ve followed the letter of the original Settlement Agreement.

2) The only hope for the Pro99 lawsuit is proving a technicality, if they can do that in court, then this will start all over again. It will remain to be seen whether Equity wants to do it all over again. If not, everything stays the way it was.

3) Equity could lose and then do this all over again and then still have the councillors vote any way they would like them to, because as stated in the agreement, the vote is “non-binding” and “advisory”. This is the language of the original agreement and it makes it difficult for the majority voice to have any effect whatsoever.

4) The suit goes forward and Pro99 loses. And then we begin a new era of non-union, clandestine, smaller budget shows in LA Theater and many companies will go bye-bye.

5) AEA could do the right thing, pull the proposals and come to the table to actually negotiate.

This last point does not have much of chance of happening, seeing as how McColl and Gabler have behaved up to this point.

However, a glimmer of hope does remain in this respect and this is it:

Without the over 2000 votes from Pro99 the newest AEA president, Kate Shindle, would not have unseated the clueless Nick Wyman, and the main reason she garnered those votes was by saying things like, “How the heck has Equity allowed its communication strategies to function so poorly?” and saying that her own union’s behavior has “turned into such a misfire” and that “we can do better”. She has said that she is listening and that the needs of LA members would be heard, and therefore, if she has a shred of honor in this respect, she will do everything in her power to do the right thing here, drop the proposals and bring everybody together. This is what leaders do. Let’s see if she understands this and decides to lead. Your moment is now, Madam President!

It will be interesting to see when and how Equity responds, I predict it will be pretty soon and they will say something to the effect, “We have followed the letter of the agreement and the councillor votes have been tallied, we have offered what we think are workable proposals and we will not be revisiting the matter again.”

And then the grind will begin and this epic saga will head to the hallowed halls of justice.

It’ll be interesting to hear reports from the Membership meeting today. Almost makes me want to go now. Almost.

Comments (2)

Default user

The membership meeting was not terribly productive. Pro99 offered an olive branch; anti-99 tried to beat us with it.
As far as the enumerated possibilities, the smart money is on number one, I’m afraid. AEA has responded to us, and it came in the form of a double-down, coupled with an attempt to pit members from other communities against us; an attempt that, I’m sad to say, seems to be working.
Equity’s public pronouncement of girding for battle is the equivalent of burning their ships behind them. Despite the plaintiffs’ attempts to leave AEA room to re-consider, union leadership have now put themselves in a position from which it would be very difficult to back down. The plaintiffs may as well go ahead and serve their suit. Let’s get this tragic, unnecessary ball rolling, so we can get it the hell over with.

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I tend to agree, Bill.


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