When labor relations are being discussed, you can take Tolstoy’s opening sentence in Anna Karenina (“Happy families are all alike; every unhappy family is unhappy in its own way.”) and turn it on its head. That’s because while every slap-happy workplace is content in its own, unique way, every work stoppage is more of less exactly, painfully the same. No matter what the industry, the union, the nature of the dispute, or the mechanism that triggers the showdown, all strikes tend to have the same contour.
What do we know so far about the 10,000-member Writers Guild of America’s (WGA) strike against the Alliance of Motion Picture and Television Producers (AMPTP? We know that Teamster Local 399 has refused to cross the picket line, putting their own jobs in jeopardy. We know that Jay Leno gave a little pep talk, in which he said, “I’ve been working with these people [writers] for 20 years. Without them I’m not funny. I’m dead.” We know that the parties began tentative negotiations way back in July, and that the WGA, seeing little progress and no advantage to prolonging the agony, pulled the plug at midnight on Monday last.
And we know that one of the major sticking points is how to divvy up the supplemental payments (residuals) and other fees tied to new technologies, such as DVDs, iPods, cell phones, and the Internet. The producers, who couldn’t tell a gigabyte from a troglodyte (nothing pejorative intended; just a reminder that these are business folks, not computer programmers or designers) are pretending that instead of being the starry-eyed beneficiaries of these wondrous and wildly lucrative new sources of income, they invented the gadgets themselves. This stance is nothing particularly new. Indeed, going back to when cable and VHS hit the market, the writers had to scratch and claw for a few pennies of the windfall profits.
This being Tinsel Town and all, the producers are displaying extraordinary chutzpah. For example, they’ve actually gone on record saying that there isn’t sufficient money in Hollywood, that the pie isn’t large enough to share with the WGA, that, God bless the writers, there simply isn’t enough revenue to go around. Not enough money in Hollywood to go around. Being able to say that across the table with a straight face is deserving of an Oscar.
It also makes one pine (almost) for the bad old days. A Kimberly-Clark representative once told a group of AWPPW union reps who were lamenting the fact that the company hadn’t agreed to a larger raise, “Y’all could be earning more money if you’d gone to college.” Well, gee. Still, as simplistic and piggish as his remark was, at least he didn’t pretend that this Fortune 100 company couldn’t afford a decent raise.
We also know that a federal mediator is involved. A commissioner from the FMCS (Federal Mediation and Conciliation Service), Juan Carlos Gonzales, has been working with the parties ever since things got really hairy, which, despite all the saber-rattling that went on during the approach to this bargain, wasn’t until crunch time.
Mediators are routinely assigned to all contract bargains: those involving the WGA, AWPPW, Steelworkers, Teamsters, everybody. It’s standard procedure. During the first week the mediator will call the company and union representatives, introduce him or herself, and remind everyone that they’re there to help, just a phone call away. Although they continue to check in from time to time, rarely are they ever invited into a bargain. Not until there’s trouble, either when a strike has been called or one appears imminent.
Historically, it has always been the union who makes that first call, looking for any port in the storm to keep from shutting down a facility. It’s different for the company. Besides not wanting to appear weak or needy, management has little respect for the federal government, whether it’s outside “agitators” like OSHA or the NLRB, or confiscatory tax collectors, like the IRS. In their view, management’s job is to manage; they don’t need some government flunky to advise them how to run their business. Only when a shutdown has occurred does management aggressively turn to the feds.
And in regard to mediators, there’s already an interesting wrinkle to this strike. Because new and emerging technology is so important a component, and because future technology is still vastly uncharted territory, there’s an outside chance that this work stoppage could be a short one. With the help of a savvy mediator, it’s possible that the WGA and AMPTP could agree on what is called a “reopener” clause. This scenario has already been speculated upon by labor observers.
A reopener is where the parties agree to renegotiate certain portions (usually no more than one or two sections) of the contract much earlier than the contract’s formal expiration date. The issues to be addressed are very specific and very clearly delineated. No extraneous topics are permitted to be discussed. Typically, reopeners occur during periods of high inflation, where neither party wants to lock itself into a fixed wage, choosing instead to reopen the wage portion of, say, a 4-year contract every 12 months.
A reopener also serves as a de facto cooling off period. It gets the membership back to work without locking them into a risky four or five-year commitment to something too volatile to predict, and allows the company to catch its breath. While unions like reopeners for all the obvious reasons, companies are wary of them not only because they require what seems like endlessly protracted bargaining sessions, but because the more times the company meets to negotiate, the more it’s obliged to make moves, even infinitesimal ones. And if you make enough moves, even tiny ones, you risk moving off your core position.
Still, if technology-present and future-is the sticking point, and the mediator is persuasive, the AMPTP may agree to a staggered settlement, especially where unsettled media issues are involved. Instead of using a crystal ball to write future contract language, new technologies can be addressed sequentially, as they appear on the market. It’s a longshot. Given the high stakes, and the producers’ winner-take-all mentality, reopeners aren’t likely. But it’s almost a certainty that Gonzales will float the idea. And if he doesn’t get results, the FMCS will send in reinforcements. The last WGA strike, in 1988, lasted 22 weeks and cost the industry an estimated $500 million.
Federal mediators exist for one reason, and with one goal in mind: To get signatures on the dotted lines. They don’t care what’s “fair,” what’s sufficient, who wins or who loses; they’ll do almost anything to get signatures. Some years ago, I was on a negotiating team that shut down a manufacturing facility for 58 days. A week or two after the strike, as both sides were still licking their wounds, the union compared notes with management’s negotiators. We found out how mediators operate. It was enlightening.
When the mediator met privately with the union team, late in the strike, he bellowed. “Even if management wanted to give you what you asked for, their hands are tied,” he shouted. “They have no room to move, guys. Not an inch. This whole deal is in corporate’s hands. I was in the room when they talked on the phone. Right now, corporate is so pissed at you for going on strike, they don’t care if you stay out forever. In fact, they hope you do, so they can hire replacements. If you hotshots know what’s good for you, you’ll get back in there and work out a deal. I’ve been doing this job for 18 years, and I’ve never seen a management team more locked into a position. It’s over, fellas. You’re done.” Scary stuff.
But when he was meeting with the company, his spiel went like this: “These union guys are like some kind of kamikazes. I mean, they’re crazy men. I mean, I’ve never seen anything like it. And I’ve been doing this for 18 years. I swear to God, these guys aren’t just fearless, they’re nuts. They’re willing to ride this bargain right over falls, if that’s what it takes. Unless you make a move, this strike will go on forever. Believe me, they don’t give a rat’s ass. They’re crazy. They’re dug in. If you don’t sweeten your offer, you’re finished. I guarantee it. ” Etc.
On the last day we met for 22 consecutive hours and finally hammered out a 4-year agreement. When it was over, the mediator shook hands with every bleary-eyed negotiator in the room, from both sides. He wished us luck, picked up his briefcase, and rode off into the sunset. He had another union-management bargain to mediate.
DAVID MACARAY, a Los Angeles playwright and writer, was president and chief contract negotiator of the Assn. of Western Pulp and Paper Workers, Local 672, from 1989 to 2000. He can be reached at: firstname.lastname@example.org