Negotiating or not – who is right?

While the AMPTP contends that negotiations are over and their last, best and final (“LBF”) offer is on the table, take it or leave it, SAG contends it is still negotiating.  And the Guild leadership attempted to reinforce that message yesterday at a meeting of several hundred of the party faithful described here and here.
Can both sides be right?
As far as federal labor law sees it SAG is actually right – negotiations continue until a deal is signed.  The problem is that even the formal declaration of an impasse – which some theorize the Producers might be contemplating, and which would allow them to impose unilaterally their LBF offer – is a form of negotiations.  
An impasse is not expected to be permanent but only a form of pressure on the union to come to terms.  It is a form of negotiations “by other means.” Of course, a union too can engage in negotiations “by other means” such as a strike or other job action. 
As I suggested recently, the problem is that being right does not mean very much for the Guild right now. The membership approved the AFTRA deal (well at least the dual cardholders) and memories of the 100 day WGA strike are still fresh.  While it is true that in any negotiations what the employer calls the LBF may not really be the LBF, here the problem is that SAG is on well tread territory – the weight of three other unions agreeing to the very same framework on new media, for example, makes the potential for SAG to even budge the needle very unlikely.
What the Guild needs is leverage and, absent a serious long term campaign aimed at re-building actor power in the entertainment industry, the only leverage they have is their hold-out value – the ability to hold hostage the entire industry because the Guild’s “go it alone” strategy left them “last in line.”
But hold up value has a limited shelf life. If that is your only card to play, you have to know when and how to play it.
The SAG’s NED Doug Allen – presumably the architect, together with SAG President Alan Rosenberg, of the failed “go it alone/last in line” strategy – claimed in an email earlier this week that what was really at stake was “Now Media” (a new take on “new” media), although this is still only a $254 Million business (as opposed to $25 Billion for DVDs). 
Thus, it looked initially like the recent not so secret side bar might have been an attempt to signal a willingness to drop DVD residuals, draw a temporary line in the sand on sub 15K per minute new media while hoping to settle for decent language on the remaining issues including product placement, clip use and force majeur. 
That might have been a smart way to cash in the hold out option.
But the tough tone of the Saturday meeting indicates that, in fact, the Guild’s Membership First party controlled leadership has not budged on DVDs or anything else and that the Guild is, in fact, willing to risk the imposition of an impasse by the Producers.  The leadership may think that will look heavy handed and might help them gin up their limited base of support in the wider membership, which might also have the added advantage of helping Membership First in what is likely to be a tough re-election campaign in the fall.
No doubt the Producers have thought this through and will simply allow production to continue under the terms of the older and less generous contract.  Ironically, then SAG will be the low cost union in town relative to AFTRA, which Membership First activists have been known to call a “scum bag” union – one of the more absurd formulations ever hurled in American labor history.
Of course, if thousands, not hundreds, had shown up at the SAG meeting yesterday, the picture as the week begins might look a little different. But the attendance confirms that it is status quo as far as SAG leadership’s support in the union – it is limited to the party faithful who backed the development and implementation of the failed “go it alone/last in line” strategy.
As a result, SAG members will continue to work without the protection of a fully executed union contract for weeks, if not months, to come.

SAG, studios face disconnect

Jonathan Handel on SAG/AMPTP Stalemate