Actors’ Equity Association vs. Los Angeles Theater

 

by Steven Leigh Morris

PART I:
The National Stage Union is Sued (Yet Again) by Its Own Members

If the showdown between the New York-based actors/stage managers union, Actors’ Equity Association (AEA, or Equity), and the L.A. theater community were a soap opera, I’d have changed the channel long ago. This show has been on the air since 1986, and these guys really need to come up with some fresh storylines.

For the uninitiated, last year, AEA announced that it was terminating the 99-Seat Theater Plan, an agreement between the union and its L.A. County membership that’s been in place since 1989, though it’s been regularly modified since then.

The Plan governed the way most of L.A. theater was performed for almost 30 years. It permitted its 7,000-8,000 union actors to volunteer in L.A. County theaters of no more than 99-seats, should they wish to do so, for reasons of artistic fulfillment and/or professional advancement. Examples of the latter include multiple examples of shows produced under the 99-Seat Plan transferring — often with the actors who created those roles — to larger theaters under contract within Los Angeles as well as to other cities, including Chicago and New York.

The Plan also presented a boon of opportunity to playwrights, whose new works wouldn’t stand a chance in theaters with higher production budgets. But that’s another story.

As volunteers under the Plan, union actors had the right to leave at any time. The actors were guaranteed minimal expense stipends per performance from the producers along with union health and safety protections. The 99-seat cap was designed to ensure that producers wouldn’t exploit the actors financially. A ticket price cap was also built in, for exactly the same reason, along with a cap on the number of performances for all such productions. This was all agreed to in the 1989 out-of-court settlement of a contentious lawsuit filed by a number of actors against their union in September, 1988. Those plaintiffs, led by actress Salome Jens and including some of the same plaintiffs who returned for another round in 2015 (Tom Ormeny, Maria Gobetti, Joseph Stern and Gary Grossman), believed that in a field (the theater) with such pervasive unemployment, the union had been unreasonably restricting their right to work under conditions and for reasons that they (the actors) found useful.

Among the litany of complaints in the current lawsuit is that Equity refused to meet for an entire year with the L.A.-based “Review Committee” that was created in the 1989 out-of-court settlement. Among the purposes of the Review Committee was to advise the union on its proposed changes to the Plan. On learning in November, 2013, that the union intended to end the Plan, the Review Committee requested a meeting with Equity to discuss these rumblings. Equity’s 99-Seat Plan Administrator, Michael Van Duzer, granted that meeting eight months later, in July, 2014. But shortly before that meeting, Equity’s Executive Director Mary McColl fired Van Duzer, cancelled the meeting, and never scheduled another.

Now let’s flash back for a moment, to the mid 1980s. You’ll find the complaints on both sides to be almost identical to today’s. This failure of the union to meet with representatives of L.A.’s small theaters, for example, was a pattern that had unfolded about 30 years prior. 

Here’s from an article by L.A. Times theater writer Sylvie Drake, reporting on a pro-“Equity Waiver” rally in 1986. (The Equity Waiver Plan is the 99-Seat Theater Plan’s predecessor.)

Compounding the problem, however, is Equity’s refusal to meet with Waiver producers and hyphenated actor-producers, even unofficially. This, several speakers emphasized, has only fueled their concerns and paved the way for an inordinate amount of speculation.

Queried about this refusal to communicate, Equity Western Regional Director Edward Weston said Monday, “I cannot talk to them, specifically because of legal advice. It’s very technical, but has to do with previous court actions brought against Equity.

“I can tell you that they’re acting on incomplete information. They’re laboring under the misapprehension that there’s been some sort of final decision. If there are to be changes — let me stress the if — the membership will make them. [The membership] will decide whether to keep the Waiver as it is, continue it with modifications or eliminate it altogether.”

Two years later. Here’s a letter to the Editor, Los Angeles Times, April 2, 1988 (about five months before the Salome Jens lawsuit was filed):

We are totally opposed to Actors’ Equity’s new “Actors’ 99-Seat Theater Plan” that would reinstate union regulation in our smaller theaters… We feel that it is important to have the choice to do Equity Waiver theater. If the new plan is implemented, it will surely kill this very special kind of theater that we, as devoted actors, cherish. LOU & CARLA FERRIGNO, Los Angeles

And the opposition view, April 23, 1988:

It is not surprising that the producers of Equity Waiver theaters think so little of the actors who volunteer their time. What I find disturbing is that nearly half of Equity’s members have such low self-esteem. If we allow these “work-for-no-pay” producers to bust our union, we will open wide the door to the legitimate producers, who will soon have us working for minimum wage. THOM McCLEISTER, Venice

(It is somewhat ironic, in light of the letter above, that the union is currently advocating for minimum wage as a baseline standard.)

And finally, here’s L.A. Times Chief Theater Critic, Dan Sullivan, September 1988, the same month the Jens lawsuit was filed:

Our hope for the next decade is that small theater finds many rubrics, many forms… Actors’ Equity will have a great deal to say about that. The producers maintain that Equity wants to pull Waiver theater up by the roots, as it did in San Francisco. This is doubtful. Equity has 8,000 members here, as opposed to a relative handful up north. A good many of these members are dying to work before an audience, even if the recompense is less than a regular job would bring them.

They need an outlet. The 99-seat-and-under houses give them that outlet. Kill it and you kill a lot of hope, promote a lot of unrest. If Waiver theater didn’t exist, Equity would have to invent it. In fact, it did.

Despite Sullivan’s “they’ll never do it here” prediction, the union suddenly announced last year that it was terminating the Plan. This was a particularly strange announcement because the aforementioned out-of-court settlement created the aforementioned Review Committee (consisting of some of the 1988 plaintiffs, and representatives from the AEA side). The Review Committee was created to be a kind of safety net for the Plan, to advise the union on any “substantive changes” to the Plan that the union proposed.

Nonetheless, starting in 2014, the union rolled right over the Review Committee by insisting that it was not making any substantive changes to the Plan that would require the Review Committee’s input; rather, it was “eliminating the availability of the 99-Seat Theater Plan” in its entirety. According to the union’s logic, putting something to death does not rise to the legal standard of a substantive change. It’s sort of like a guy accused of murdering his mother arguing, “Look, at some point she was going to die anyway, so what’s the problem?”

The union rolled in with a new plan entirely of its own making, based on what it claimed were the results of surveys it had taken — surveys with leading questions such as, “Would you like more pay?”

Equity’s new plan replaces the actors’ expense stipends with minimum wages for rehearsals and performances in these theaters. It also re-classifies the performers from volunteers-by-agreement to employees-under-contract. This new plan, in theory, would increase production budgets for these tiny theaters up to five-fold, presuming they continue to use Equity actors. Keep in mind that by the union’s own design, these theaters were not intended to turn any kind of profit.

Yet the new plan also includes a few workarounds.

A limited number of established “membership theaters,” for example, could continue to use union actors as volunteers as they had been, but without mandated minimum expense stipends. The union is withdrawing its health and safety protections for its members in those theaters.

Equity’s plan also contains a new 50-seat theater option where actors don’t need to be on salary, but with budget and performance restrictions for the theaters.

And so on.

But here’s where things start to get truly surreal, if you recall the Western Regional Director Edward Weston’s 1988 assurances that if any changes were to come, “the membership will make them” — which is also consistent with federal law, enforced by the National Labor Relations Board.

Last year, the new plan was put to an advisory referendum of the L.A. membership. The union lobbied hard to kill the 99-Seat Plan and promote its new plan, employing phone banks and a PR campaign that included Charlayne Woodard writing in Variety that the time had passed for L.A.’s actors to be “hobbyists.” Woodard wrote that the time had come for L.A.’s actors to be professionals, to make a “living wage” — which is quite the challenge when there’s90% unemployment for L.A.’s stage actors in any given week, and when the tiny minority of union actors who are employed on L.A. stages work an average of 16.7 weeks per year — according to Equity’s own figures.

Most of the membership understood that, with these stark realities, minimum wage for rehearsals and performances wouldn’t make much difference to their lives, but it would likely result in either the closing of the very 99-seat theaters that afforded them opportunities to work, or that those theaters would turn to non-union actors for their productions. The vote drew a historically high percentage (44.6%) of local Equity voters, and an outcome unprecedented for its lopsided result — a 67% repudiation of the union’s new plan.

In a chapter out of Through the Looking-Glass, the union then argued that the 2/3 majority opinion to preserve the 99-Seat Plan wasn’t really a majority opinion at all. Union councilors have continued to argue on social media that if one includes all the eligible union members who did not vote, what looks like a clear mandate is actually a minority view. Perhaps Actors’ Equity Association has oracles who can discern the opinions of its members who choose not to vote in its referendums, and believes that, furthermore, these oracle-interpreted non-votes should be considered as evidence.

Now, for a moment of international perspective: The Brexit advisory referendum put to voters across Great Britain on whether to leave the European Union passed by 52% to 48% — a comparative squeaker. Even so, the British government honored the vote, however reluctantly. Even the British government, with stakes exponentially higher than Actors’ Equity Association, didn’t dare to introduce all the people who didn’t vote as a rationale for changing a result they didn’t like.

The same cannot be said of Actors’ Equity Association. With its inverted conclusion of who won its referendum, the union then made a few tweaks to its new plan, put it before its National Council, which voted it in. The union then created a “Transitional Plan” for L.A. theaters to use in the interim until its new plan kicks in. And it pronounced the 99-Seat Plan dead upon the arrival of its new plan.

Because of this, and the union’s increasingly hostile pronouncements against the opponents of its designs, local membership exploded in a rage that comes from betrayal. If you want to infuriate actors (L.A.’s current 7,000+ Equity actors constitutes the largest contingent outside of New York), give them a vote on the future of their artistic life then overrule their mandate.

So, late last year, 18 particularly enraged Equity actors (including Ed Asner, Amy Madigan, Veralyn Jones, Lawrence Pressman, French Stewart and Vanessa Stewart) filed a lawsuit against their own union, echoing the lawsuit of 1988. The latter suit (Asner versus Actors’ Equity) was based largely on the way the safety net (The Review Committee) — created to prevent exactly this kind of outcome — had been summarily ignored and then dismissed by AEA, but it also references the mishandling of the referendum.

The plaintiffs filed the lawsuit but waited on serving it, with the hope of bringing both camps together for “facilitated discussions” in Los Angeles and New York. Last week, the union announced that the talks had broken down, and that even its “Transitional Plan” will expire on December 14, 2016 — after which the union’s new plan will take effect.

Since Equity’s announcement, what had been a cone of public silence has been lifted. The union has put out three statements assailing its opponents, in an attempt to marginalize them on the national stage, and the plaintiffs’ side has responded with equal vigor.

One letter to Equity Members, signed by “Actors’ Equity Association,” describes its opponents as “a concentrated group of members and producers” and includes the following allegation: “This group has openly threatened Equity staff and Councilors and blacklisted members of their own community for speaking on behalf of fair pay.”

“There have been awful things said by people on both sides,” says Equity actor Leo Marks, who also asserts that the issue is not fair pay, or minimum wage, or a living wage. The issue is the right of professional actors to carve out their own opportunities, as entrepreneurs, in a field with rampant unemployment.

“What’s really dismaying at this stage is that [the union’s National Council] is choosing to vilify the entire L.A. community just to win their lawsuit,” says Marks. “On the one hand they’re pretending that the Pro-99 movement boils down to a concentrated group of radicals, which is demonstrably untrue. Then they’re claiming that there’s blacklisting going on by the community, which is also, simply not true.”

(To support Marks’ assertion, union actress Ann Colby Stocking has been among the most outspoken advocates of the union’s new plan, speaking in multiple forums on Equity’s behalf. She has nonetheless worked at least twice, since the referendum, under the same 99-Seat Plan that she and her union condemn. The union is very familiar with what “blacklist” means: denial of employment by a group for one’s stated views — a charge against the L.A. theater community that’s clearly refuted by the evidence.)

Adds Marks, “We stand for the same things that our fellow members across the country stand for. We don’t want to work for free. We want better pay, protections, and opportunities. The new plan strips us of opportunities, strips us of protections, and promises us better pay that those of us who have worked here know isn’t realistic: Two tangible losses for one illusory gain. That’s why we’re against it. “

It’s now highly probable that Asner versus Actors’ Equity will be served in the coming weeks. The suit — at least the way it was originally filed — demands some monetary damages, but mostly injunctions: restore the 99-Seat Plan, restore its Review Committee, restore the process to the way it was intended, and move forward in good faith.

As for the last point, if I die this week, it’s because I was holding my breath.

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Part II:
The Cultural Divide: Reverberations and Repercussions

The central offices of Actors’ Equity Association are located in New York City — heart of the nation’s theater industry. New York has a Broadway district comprised of 40 commercial theaters of 500 seats or more, the kinds of theaters that exist hardly anywhere else in the nation.

Los Angeles, for example, has only one such commercial venue, the Pantages Theatre on Hollywood Boulevard, owned by the Nederlander Organization.

Yes, it’s true, a city with almost four million people in a county with a population of over ten million has just one commercial theater that presents tours of Broadway musicals. One painful irony is that those tours are often performed by non-union actors, which puts into stark relief the economics of commercial theater outside of New York City.

There have been multiple attempts to sustain Broadway-style commercial houses in Southern California. Most have closed or sat dormant for years. The Shubert Theatre in Century City was eventually torn down. Other quasi-commercial theaters unable to sustain themselves as Broadway-style houses include the Hollywood Playhouse on Las Palmas, the Coronet Theatre on La Cienega, and, arguably, the Ricardo Montalban Theatre on Vine Street (formerly the James A. Doolittle Theatre).

Yet there are hundreds of theaters across L.A. County, thanks largely to the 99-Seat Plan, and almost all are registered non-profit 501(c)-3 (“charitable”) entities. Even seemingly commercial theaters such as Center Theatre Group (with its Ahmanson Theatre, Mark Taper Forum, and Kirk Douglas Theatre), the Geffen Playhouse in Westwood, The Pasadena Playhouse, East West Players (Little Tokyo), the Broad Stage (Santa Monica), the Wallis Annenberg Center for the Performing Arts (Beverly Hills), The Thousand Oaks Civic Arts Center, The La Mirada Theatre, and beyond the county: South Coast Repertory in Costa Mesa, La Jolla Playhouse and The Old Globe Theatre in San Diego — these are all non-profit entities, some of which are owned by municipalities. The Ahmanson Theatre and Mark Taper Forum, for example, are governed by the county-owned Performing Arts Center of Los Angeles County (which also administers The Dorothy Chandler Pavilion and Disney Hall).

And these are our big players.

To understand the cultural divide between Actors’ Equity Association and the L.A. theater community requires some comprehension of what it must be like to arrive at work, or to the theater district, on a subway, in a city of eight million people where 40 commercial theaters chug along, decade after decade — where Broadways’ biggest current hit, Hamilton, lists its top-tier tickets for $850 a pop (and that’s before the scammers get to them). The very idea of such a phenomenon occurring in Los Angeles theater redefines the term pipe dream.

To further understand the cultural divide is to grasp that America’s labor union movement was born in New York City, in reaction to the commercial culture described above.

The history of Actors’ Equity Association is the history of organizing performers and stage mangers through collective bargaining, in order to quell predatory and abusive business practices by the likes of theater owner-manager-profiteers such as the Shubert brothers at the beginning of the 20th century.

The union earned its purpose through a clear divide between profiteers and their victims. The union stood up to the profiteers and stood up for the victims — people who struggled to earn their livings in their chosen field but were consigned to poverty by business owners who made their fortunes off their workers’ backs through systems of underpayment, non-payment, etc. This is not a problem that has by any means gone away in the United States; however, it is also not a problem that has anything to do with the 99-Seat Theater Plan in Los Angeles County, as it’s been framed by Actors’ Equity Association. As has been often stated, producers under the 99-Seat Theater Plan do not, and cannot, make a profit off the actors’ backs, or off of anybody’s backs. They cannot make a profit at all. At best, or worst — depending on the point-of-view — in a few rare instances, they can draw a modest salary in institutions that are decades old. The question is, to what degree does drawing a modest salary render them “exploiters?” More on that in a moment.

AEA’s ideological template remains both fixed and fixated. And that is the template Equity has brought to Los Angeles, repeatedly. It has no bearing on people, often Equity actors themselves, running theaters at a financial loss, by design, for motives as far removed from those of the Shubert Brothers as Jupiter is from the Sun.

Perhaps the most incendiary Equity position is that the 99-seat theaters are standing in the way of developing more mid-size contract theaters, and that L.A.’s actors who support these tiny theaters are therefore harming their own financial interests. This is like blaming the homeless for poverty in America while calling yourself “progressive.”

Contract theaters emerge from benefactors, patrons, and a friendlier arts funding environment than what currently exists in Southern California. There is no evidence that the existence of the 99-seat theaters, with or without union actors, has any bearing on the kinds or quantity of funding that pours into, say, Center Theatre Group, the Wallis Annenberg Center for the Performing Arts, the Geffen Playhouse, or even the more modest mid-size theaters in the region.

According to its 2013-2014 IRS filings, the annual budget for Pasadena’s A Noise Within, a comparatively young mid-size theater, hovered at around two million dollars. Contrast that against the budget of the Fountain Theatre, a 99-Seat Theater that’s been around for 26 years, and is one of the handful of such established theaters that maintains a small paid staff. The Fountain’s budget of about $500,000 is one-quarter that of A Noise Within, and the Fountain is one of the higher budget 99-seat theaters. Grants are almost always tied to annual budget, so it’s specious to argue that The Fountain Theatre is somehow impeding the existence of mid-size theaters, or blocking the emergence of new contract houses.

The assertion is also historically inaccurate. From 1980 to 2000, an era of comparative prosperity, and in the midst of an already robust 99-seat theater scene, a number of mid-size theaters emerged, sometimes from the 99-seat theaters themselves: The Los Angeles Theatre Center (a downtown four-theater complex) emerged from the 99-seat L.A. Actors’ Theatre in Hollywood; Little Tokyo’s East West Players and Burbank’s Colony Theatre, both contract houses, each grew out of 99-seat theaters in East Hollywood and Silver Lake, respectively. More recently, in the economic slowdown, fewer theaters have transitioned from 99-seat theaters to mid-size houses, but we have seen the appearance of Independent Shakespeare Company, A Noise Within, The Broad Stage, and the Wallis Annenberg Center for the Performing Arts — all contract houses emerging in the company of the current 99-Seat Theater Plan.

Furthermore, the union is speculating, recklessly, that sending the production budgets of money-losing intimate theaters through the roof will compel them to rise to more professional standards. This presumes that these theaters will continue to use Equity actors, the ratio of which using the 99-Seat Plan has been hovering at around 50% of casts. Unlikely. Remedial economics suggests that these theaters will likely resort to non-Equity actors, or close, as has happened in San Francisco, Dallas, and Chicago. More on that below.

Rather than blaming L.A.’s economic malaise in the arts on the people who are trying to create art, perhaps the union might consider that State arts funding in California ranks fifth from the bottom in the nation, and that philanthropy nation-wide is shifting from the traditional arts towards non-traditional arts and areas of social justice. Perhaps the poverty out here has to do with factors slightly more existential than the 99-Seat Theater Plan, which is a response to poverty rather than the cause of it.

As noted above, the 34% of the nation’s union stage actors who found any contract employment at all during the year worked for an average of 16.7 weeks.

67% of those work weeks occurred in the Eastern region. While only 17% of those work weeks unfolded across the West, from Seattle to San Diego. (The remaining 15% came from the Central region.)

Furthermore, of the union’s stated 50,000 members across the nation, in any given week, 3,783 were working in the Eastern region, contrasted against only 974 across the West. And that’s where the 90%+ unemployment figure in any given week comes from, given the 10,454 union members in the West that Equity cites in its annual report of the 2013-2014 season.

That same report cites over 8,000 members in Los Angeles alone. This means that in any given week, over 7,000 of them were doing something other than working on the stage in contract work. Which brings us back to Dan Sullivan’s assertion in the L.A. Times in 1988: “They need an outlet. The 99-seat-and-under houses give them that outlet. Kill it and you kill a lot of hope, promote a lot of unrest.”

In the 30-years since Sullivan made that prediction, dozens of theater companies have sprung up under the Plan, and a few have evolved fairly sophisticated administrative structures, some with paid staff, along with their reputation for top-tier work: The Fountain Theatre, Theatre @ Boston Court, and the Odyssey Theatre spring to mind. There aren’t many that include paid staff, but among the complaints made about the 99-seat-plan is the inequity of a theater that pays staff but claims it can’t afford to pay actors more than expense stipends. The most often cited example is Ron Sossi, who gave up a lucrative career as a television producer to run the three-theater Odyssey Theatre complex. After 40 years of building, maintaining, and operating the theater, 27 years under the 99-Seat Plan, Sossi draws an annual salary from it of about $60,000, supplementing his income, like other staff members at that theater, with teaching at local colleges. These are people who are working in that building 12 months a year. But one argument in support of the union position is that Sossi and his likes are profiteering off the actors’ backs.

So let’s compare the Odyssey Theatre to the kind of theater that the almost everybody admires, Southern California’s biggest rags-to-riches success story, South Coast Repertory in Costa Mesa. SCR is an acclaimed three-theater, mid-size theater complex that sub-contracts L.A. theater companies, as well as employing its own actors on Equity contracts. It’s a robust and indispensable organization.

If the Odyssey Theatre’s $25 expense stipend per performance were extrapolated out to 50 weeks for a hit show running Tuesdays–Sundays, with two shows on Saturdays and Sundays (a performance schedule in many regional theaters), each actor at the Odyssey Theater would be receiving $10,000 for the year, or 1/6 the salary rate of the artistic director. An outrage, you might say.

According to SCR’s 2012 Form 990 filing, Artistic Director Marc Masterson drew an annual salary from SCR of $212,425. (And that was four years ago.)

An actor in SCR’s second stage works on a LORT D contract for a minimum of $618 a week, which, extrapolated out to 50 weeks a year, were there employment year-round, would be $30,900, or 1/7 the salary rate of the artistic director, which is an even smaller cut than at the Odyssey Theatre.

So if Sossi is profiteering of the actors’ backs, as has been alleged, couldn’t the same be said of Masterson? Which is nothing against either Sossi or Masterson, or what they deserve, or what they earn. It’s only an illustration of how the science of “fair pay” is actually a highly interpretive art.

The larger question is whether staff salaries at a handful of 99-Seat Plan theaters in Los Angeles is sufficient reason to eliminate a Plan that benefits almost 200 other theaters, and thousands of actors, playwrights, designers, directors, and attendant industries.

How do we find equity?

Yet another sampling in the union’s dubious claims comes in Equity’s letter to its membership: With all its workarounds, the union says, gutting of the 99-Seat Plan will only affect 26 theaters.

Plaintiff Gary Grossman, who produces mostly new plays at his Skylight Theatre, has a different view — citing the restrictions on 50-seat theaters in its new plan: The union won’t allow them to produce more than three shows per year, and those must operate with “severe budget caps,” not to mention the new restrictions on all the membership companies.

“They’re not referring to any of the new restrictions they’ve imposed,” says Grossman. “The staff theaters are definitely going to be affected. I don’t know where they get 26 from.”

Grossman then turns to his wish list for Equity: “Help us create a plan where some of these small theaters that are more financially capable right now, help them to become mid-size houses. That’s growth. That’s an avenue for success. But all Equity is trying to do right now is restrict. And we’re fighting that. We’re saying no.”

Grossman and the union agree on one point: That none of this is going to destroy L.A. theater, though they agree on that point for opposite reasons. Grossman says the smaller theaters aren’t going anywhere, whereas the union believes they do damage.

“We’re going to be fine,” Grossman says — a view shared by producer Jay McAdams, who runs the 24th Street Theatre, near USC, with his wife, Debbie Devine. That theater produces highly sophisticated theater productions — targeted for youth but grappling with adult themes — that tour domestically and internationally.

Both Grossman and McAdams believe that if Equity succeeds in its attempt to kill the 99-Seat Theater Plan, the vast majority of these theaters will simply turn non-union, or to a different union. There are an estimated 100,000 SAG/AFTRA (Screen Actors’ Guild/American Federation of Television and Radio Actors) members in the L.A. area, contrasted against the 7,000 AEA members.

“What’s the choice?” McAdams asks rhetorically. “They’re forcing our hand, the way I see it. There are some wonderful actors in Equity, and some wonderful actors who aren’t in Equity.”

Both AEA and SAG/AFTRA fall under the rubric of the AFL-CIO, and are supposed to have reciprocity, but there’s an open question on whether there’s the capacity, or even the desire, to enforce that reciprocity. SAG/AFTRA, which also sees harrowing unemployment among its ranks of TV, film, and radio actors, has equivalent contracts to the 99-Seat Theater Plan for small-budget and independent films — the entrepreneur wing. So far, SAG/AFTRA has remained conspicuously quiet about getting involved in the Equity controversy. It’s likely that SAG/AFTRA has no interest in trying to hunt down people who were in a play a couple of years ago.

McAdams estimates that to hire artists at Equity’s minimum wage requirement would cost him $12,000 just for three actors, including workers’ comp and payroll tax. “If you’re doing a show that costs $30,000, that’s more than 1/3 of the budget, and that’s just for a three-person show.” He adds that most L.A. theaters who want to do larger-cast shows or classics will find such a financial burden unworkable.

For the most part, those 7,000 Equity members in Los Angeles are going to be the victims of their union’s policies should Equity prevail; their already slim opportunities to work will grow even slimmer, or they’ll be working in productions with considerably lower production values, or working under a membership plan with their former union protections gutted, while waiting for the other shoe to drop. No other city has anything equivalent to the 99-Seat Plan, or a carve-out for membership companies, and the union’s oft-repeated argument has been that it wants to bring Los Angeles into compliance with other cities under its jurisdiction.

To quote AEA Executive Director Mary McColl in American Theatre last year:

“This kerfuffle, this challenge we’ve got going on in L.A., is impacting what’s happening nationally, especially when we talk to producers. They say to us, ‘What’s going in L.A.? Why can’t we get in on the 99-seat plan?’ I’ve read on social media that we’re systematically stamping out the 99-seat plan all across the country, like we’re Mubarak’s army moving in. But the 99-seat plan doesn’t exist anywhere else but Los Angeles.”

Perhaps that’s because Mubarak’s army stamped it out. “Equity got rid of a similar plan in Dallas, and in San Francisco,” McAdams says. “They’ve been doing this all around the country.”

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Part III:
A Blue Sky Proposal

Let’s pretend for a moment. Let’s pretend we’re in the theater. Let’s try some suspension of disbelief.

Let’s pretend that Los Angeles has over 7,000-8,000 Equity members, whereas Chicago has 1,829, and San Francisco has 1,143, Seattle has 450 (while Dallas and San Diego don’t even make it to Equity’s top ten list). We’re not pretending yet. This much is actually true, if you believe Equity’s 2013-2014 figures. And I’d like to. I’d like to believe that Equity wants to tell the truth, and that it wants to resolve this “kerfuffle.”

Let’s pretend that all those Equity actors, congregated in our expansive, expensive, smog-laden, drought-inflicted hills and valleys, adjoining the mighty Mojave — the hottest, largest, driest desert in the land — let’s pretend that we want to do something useful for those Equity actors that’s also useful for the local culture.

Let’s pretend that the geography, and the economics, and climate, and all these actors who roll into Los Angeles year after year, decade after decade, all of that, let’s pretend that what works in Minneapolis-St. Paul — a beautiful place in its own right — let’s pretend that theater in a desert has different requirements from theater by a lake, where it rains once in a while.

Let’s pretend that what’s best for a place with hundreds of actors may not be best for a place with hundreds of thousands — if you add in the SAG/AFTRA people, and the actors who haven’t yet joined a labor union, but who still keep showing up.

Let’s pretend that over the past three decades, Equity and its members used a plan by which, acknowledging the obscene dearth of contract work in Los Angeles County, permitted Equity actors to work on stages of 99 seats or fewer, almost for free. Because they figured it’s better to do Chekhov and Shakespeare and a new play by a local scribe than to do nothing but work at Target. Let’s pretend that, given their employment rate in the theater of 10%, they actually made their living wages in some arena other than the stage. Maybe film, TV. Maybe Costco. Maybe Mimi’s Cafe in Glendale. Maybe El Pollo Loco. Maybe the University of Redlands.

But let’s pretend that these people are still actors, union actors, despite their official employment in other fields. Let’s pretend they don’t particularly care whether or not they receive minimum wage from their work in theaters of 99 seats or fewer. Sure, they’d like to be paid more; they’d like to be paid what Mark Rylance gets paid, but they’d prefer their tiny theaters (that they had a share in creating) not close, or that they wouldn’t be locked out of these theaters because their union told them they needed to be more professional — because minimum wages for all the actors when you’re putting on Romeo and Juliet, those wages just don’t pencil out for them. That big grant they were hoping for, the one from the Department of Cultural Affairs? It didn’t come in. Does that really mean they’re no longer actors? Does that really mean they’re no longer professionals?

Let’s pretend that the creation of the 99-Seat Plan wasn’t contentious. Let’s pretend it was friendly. Let’s pretend we’re all friends.

Take a deep breath.

Let’s try that again. Let’s pretend we’re all friends.

Let’s pretend we believe in fairness, but we also believe in circumstances.

Let’s pretend that if a theater has a budget — an actual budget, year after year, that exceeds $1 million — not because of a one-time fundraising campaign for a new building, but because that’s what it earns in contributions and in revenue, year after year — let’s pretend that, under such circumstances, it should probably be using an Equity contract for its actors.

Let’s pretend that if a theater has a budget — an actual budget, year after year, that’s only $20,000, it still deserves to exist with the best actors it can find, if it pleases its community, even if it can’t pay its actors minimum wage for rehearsals and performances. Let’s pretend that even that kind of poverty isn’t a reason to kill it off, or to constrict it from doing the best shows it possibly can, with a set, or musicians, or whatever.

Let’s pretend we set a cap for when theaters can use Equity actors as volunteers. Let’s pretend that volunteering in non-profit theaters is legal in California, because it actually is. So long as everybody volunteers. Nobody is allowed to volunteer if somebody else is getting a salary to do the same kind of work. That’s not pretend. That’s California State labor law. Let’s get back to pretending.

Let’s pretend that if a theater of up to 99 seats has an annual budget of no more than $600,000 — which covers almost all of the 99-seat theaters in Los Angeles County, let’s pretend they’re allowed to use Equity actors as volunteers with expense stipends, established under the best practices program of the Theatrical Producers League of L.A. The purpose of all this is to get a show off the ground. Let’s say a couple of months. Say 20 performances? 30 performances?

Let’s also pretend that the theater can set its own ticket prices. There’s a reason for that.

Let’s pretend that’s a couple of months at four shows a week. Let’s pretend that after that time, the show is a hit. Agreed, hit shows where the actors continue to volunteer are potentially exploitive. So let’s say that after 30 performances, or 20 performances, the producers must convert their volunteers to employees and start working with base-line Equity contracts. That’s the reason not to cap ticket prices, because that’s the income that’s going back into actors’ salaries, if the show’s a success.

This model combines the best of the 99-Seat Theater Plan with Equity’s ache for more union contracts. It preserves the 99-seat theater scene that’s evolved over decades and that union members have declared, unarguably, that they want to keep. And it also incentivizes commercial success, and the move to Equity contracts.

Just try it, for heaven’s sake. What’s to lose? After eight months of facilitated discussions, nobody could agree to such a common-sense solution?

Let’s pretend you’re willing to try out a scheme that drives Equity actors out of an entire swath of L.A. theaters, against their stated wishes, with no proof that will lead to more contract work.

Now let’s pretend that you’re willing to try out a scheme that actually holds the promise of contract work at the end of every show produced in the dozens of 99-seat theaters that have evolved over the last 30 years. There are hundreds of such shows every season. Let’s pretend it’s better to use the 99-seat theaters as a springboard to contract work rather than condemning them to exile, or condemning Equity members to exile from them.

One more thing: what if it’s not a show in a theater that does seasons, but a one-off? How about a budget cap of, say $30,000? $40,000?

Same idea. Give them a couple of months to find their audience, then convert volunteers to employees.

Let’s pretend there’s nothing to lose in trying out something that offers opportunities rather than restrictions.

This post first appeared on @ThisStage magazine. Steven Leigh Morris is the Executive Director of LA STAGE Alliance, and is the founding editor of the community-funded digital arts venture Stage Raw (www.stageraw.com). Morris chaired the Jury for the Pulitzer Prize for Drama in 2012, and served on that Jury in 2011. He received the Critic of the Year prize for his print reviews by the National Entertainment Journalism Awards in 2011.