There has been a lot of speculation about the impact of the Producers’ so-called “final” offer. Of course, no one thinks this will be the actual final offer but it could be under certain circumstances.
When a collective bargaining agreement expires under federal law, as did the SAG/AMPTP contract at 12:01 AM Tuesday, most of the key terms of the pre-existing contract remain in force. Wages, hours and working conditions, for the most part, cannot be unilaterally changed.*
In fact, the parties to the agreement must continue negotiating in good faith, which means putting counter-offers on the table and considering them seriously.
However, in theory once a contract expires the parties to the contract are entitled to take actions to force an agreement. Hence, the employer can lock-out employees or the union can strike. In this sense, strikes and lock-outs are, to borrow from Clausewitz, bargaining “by other means.”
Only if the employer believes that an “impasse” has been reached in that bargaining can they cease the bargaining process and impose the terms of their “final” offer unilaterally.
So even though the Producers have called their last offer a “final” offer they have no legal basis yet to impose its terms on the industry. They must be convinced that the union is no longer bargaining in good faith. The rhetoric used by the Producers does suggest that they are laying the ground work for declaration of an impasse that would let them impose the final offer.
If SAG were to refuse to put counter-offers on the table, for example, and just stand pat on their last set of terms that might be enough. If SAG were to refuse to let its members vote on the terms of the deal that would be additional evidence of an impasse.
It does not appear, for example, that SAG has been willing to move very much in the last few weeks in light of their campaign to defeat the AFTRA deal. Of course, no one but members of the bargaining committee knows what has really been happening inside the room, so this may not capture the dynamic fully.
Determining whether or not impasse has been reached – because it has such a powerful effect on working conditions – is a complex legal process that is heavily fact-dependent. It is often subject to long drawn out litigation at the NLRB and in federal courts.
The real questions to be answered, of course, are not legal but political:
What is SAG willing to accept?
What leverage do they have left to force the producers to move closer to a desirable outcome?
Does Membership First have the political courage to make the compromises necessary to conclude a reasonable deal and begin the next stage in the life of the Guild?
If the Guilds’ members do not want to compromise and are not ready to strike, do they have the internal desire to work under conditions imposed by the Producers until a job action or other tactics might be more effective (in light of the apparent winding down of production)?
Those are not easy questions to answer.
Making them more complicated are the internal political dynamics. Can the leaders of the Membership First group come back to their members with a contract that is only marginally better than that signed by all the other unions?
The next week or so will be an interesting and precarious period for all involved.
*There are exceptions to this for certain terms that may or may not be that important in the current dispute: with no enforceable contract in place dues checkoff ends, so does grievance arbitration as well as union security protections.
But without a contract the employer no longer has an obligation to fulfill non mandatory subjects of bargaining, such as payments into a health plan for retirees. It would require careful analysis of the particular contract to determine the impact of the period after contract expiration.