The decisive blow came last December. After years of vociferous wrangling, legal and otherwise, a federal judge in Los Angeles dismissed a lawsuit filed by Ed Asner and a group of plaintiffs against Actors’ Equity Association, which contested the union’s actions in its campaign to organize the region’s small theatres, with the goal of requiring them to pay minimum wage to actors. And so on Dec. 14, a predetermined deadline for Equity’s new 99-Seat Theatre Agreement kicked in, and the old L.A. 99-Seat Plan—a pact that for nearly 30 years had allowed Equity members to work in theatres under 100 seats in L.A. County for small performance stipends, as essentially volunteers, leading to a local theatre scene that blossomed in quantity, if not in numbers of paid work weeks for union actors—was kaput.
Two months later the L.A. theatre scene is divided along several predictable and some less inevitable fault lines. Some 61 theatres, deemed “membership” companies by Equity, can avail themselves of a sizeable loophole that allows them to continue to use union actors, even charge them dues, without even the modest protections of the old 99-seat plan. A number of other theatres are playing ball with the new rules; by Equity’s tally, 25 theatres and/or producers have reached agreements with the union, among several they’re in talks with. Still other companies have flatly said they can’t or won’t use the new agreement, earning them a place on the union’s Do Not Work list. (At least one company on that list, the Academy Repertory Theatre, has contested their inclusion, protesting that the membership exception should be extended to them but that Equity has rebuffed their plea to reconsider.)
Meanwhile, some Equity members are murmuring about financial core, “fi core” for short—a controversial means by which a union member can essentially renounce union membership while still working under union contract protections (or in this case, without them). Still others talk of continuing to fight or appeal to overturn the union’s decision, or of a long game that includes electing more AEA councilors sympathetic to the Pro-99 cause.
For its part, the union is declaring victory. Said Equity executive director Mary McColl, “Across the country we have small theatres that pay fair wages and are thriving. With minimum wage standards now in effect in Los Angeles, we’re seeing new income opportunities for our members.”
If success is measured by work weeks under paying contracts, the union may be justified in crowing about progress. If even a few theatres sign on to a new agreement that didn’t exist before, that can fairly be touted as new contract work. But many Equity members in L.A., who voted 2-to-1 against Equity’s plans for their region in a non-binding referendum back in April 2015, see things differently. As Rebecca Metz, an actor who has worked in a number of 99-seat productions, put it, using what she admitted were entirely hypothetical numbers: “If you add 100 minimum-wage contract weeks per year at a loss of 1,000 stipend-paying 99-seat plan weeks, is that a win? A big portion of the L.A. membership would say no; Equity would probably say yes. People anticipate a fractional gain in minimum-wage contract weeks versus a huge loss in non-contract weeks. Financially that doesn’t make enough of a difference to justify the loss of opportunity.”
But for Ann Colby Stocking, an Equity actor who backs the union’s new agreement after working on and off in low-paying 99-seat plan productions over the years, “The win for me is that I don’t have work knowing that I’m not respected and not cared about—not thought of as an equal. Emotionally I couldn’t watch everyone around me getting paid and me not being paid. I don’t know what producers thought we were doing all these years—not paying attention? We knew how much the designers were getting paid, how much directors were getting paid. But as much as they said they loved actors, couldn’t do it without us, when we asked to be paid more, the producers could just never find a way to do it.”
Among the 99-seat theatres with larger budgets and relatively robust operations (many of which were already typically paying above the required 99-seat plan stipends) are Pasadena’s Theatre @ Boston Court and Hollywood’s Fountain Theatre. The former has signed the first full-season agreement with Equity, while the Fountain has opted only to use the new agreement on the first show in its just-announced season, Robert Schenkkan’s Building the Wall, which runs March 18-May 11; according to artistic director Stephen Sachs, the theatre plans to look at the needs of each show on a case-by-case basis going forward. Meanwhile the Sierra Madre Playhouse has reportedly signed the agreement for two shows in their coming season, but doesn’t plan to continue.
For her part, Jessica Kubzansky, co-artistic director of Boston Court (a mini-performing arts center with a budget close to $1 million, though not all of that goes toward the venue’s theatre efforts), said that to make the new pay scale work, the theatre will have to employ the fewest actors ever on its stage in a given season: 10 actors in 3 plays. Last season featured 19 actors in 3 plays, and the previous season put upwards of 21 actors into 4 plays (not counting some additional special engagements and tours).
“To be clear, like everyone we want artists to be paid what they’re worth—which, by the way, is much more than minimum wage,” Kubzansky said. “It was always our intention to arrive at a contract in some way. However, this is not how we would have chosen to do it. It’s very challenging. I think the 99-seat plan was a very special and amazing nurturing ground for artistic risk, artistic growth, artistic expression, and I’m very concerned about our community without that.”
The Fountain Theatre’s Sachs was blunter in his diagnosis.
“It’s crippling for everyone, especially for actors,” said Sachs, a writer/director whose play Bakersfield Mist is in an extended return engagement at the Fountain after runs all over the country and in London, and whose theatre’s annual budget is around $500,000. “What’s so upsetting to me is that it’s going to take work away from actors. Some theatres are going to be forced to close, others will have to change their programming and do shows with smaller casts. Instead of creating more opportunities for Equity members, it’s going to reduce them.”
To illustrate, he notes that Building a Wall, a two-hander, replaces a show he’d originally planned for 9 actors, and that another 10-actor play has been pushed to 2018.
“For theatres like ours that have been around for 27 years, that have a solid infrastructure, we are going to survive, no matter what happens,” said Sachs. “There are dozens and dozens of smaller theatres operating on a shoestring, and many of them are going to go away and fold. It’s tragic.”
But small theatres have other options for survival. At the Skylight Theatre Company, whose budget is around $250,000, artistic director Gary Grossman has joined those who’ve said they won’t use the new Equity agreement—a list that includes the Odyssey Theatre Ensemble, Matrix Theatre Company, Victory Theatre, and Playwrights’ Arena. The Skylight’s current show, Queerwise’s collectively created Shades of Disclosure, about persons with HIV/AIDS, happens not to include any Equity members, making the choice easier. But Grossman added that the theatre is “presently in callbacks for our second production of the season, and I’m encouraged by the large pool of talent,” including SAG/AFTRA members who aren’t Equity members, as well as “AEA talent that either are willing to risk sanction or go fi-core.”
Why not at least try the new agreement? Grossman estimated it would cost “about $100,000 more per year” to work under the new terms, which is why he has concluded he’s “not prepared to sign the 99-seat agreement; I wish I was able to. Should it come to a time that I’m able to do the agreement—if the agreement is altered or fixed in some way—I’m going to look at it on a show-by-show basis.”
He also indicated that his wait-and-see attitude may extend beyond the immediate season. “It’s going to take around six months for us to really understand where this is all really going to be headed,” he said, invoking an appeal that’s pending with the National Labor Relations Board and mentioning some lingering resentment about not only Equity’s tactics but in particular about the new agreement’s membership “carveout,” which “allows part of the community to use volunteers while the other can’t. That’s made an uneven playing field.”
Sacred Fools is one such beneficiary, though artistic director Padraic Duffy said he thinks of the membership exception as “a stay of execution. Most membership companies are under the assumption that it will go away at some point. So we’re trying to treat it as a chance to try to grow, to plan for the future, and to support the companies that haven’t got the same protection.”
With an estimated 115 members and a budget just under $200,000, Duffy said that Sacred Fools would have to radically alter its aesthetic and producing model to work under a minimum-wage-paying agreement. “We rarely do a show with fewer than 5 people,” said Duffy. “We’re a big, messy, crazy democracy. Obviously quality of work is important, but we also find quantity to be important. It would change our culture to do shows with fewer people.” Some theatres, he reasoned, “aspire to be midsize, and others aspire to remain hole-in-the-wall collectives.”
Still others wish to remain on the continuum between non-contract and contract work. DJ Kurs, artistic director of Deaf West Theatre, pointed out that the 2015’s Broadway revival of Spring Awakening began its life under the old 99-seat plan in the fall of 2014, then moved to a contract run at the Wallis Annenberg Center for the Performing Arts before heading to Broadway; the Wallis run in turn led another collaboration with the midsize theatre, on a production of Albee’s At Home at the Zoo.
These larger-theatre runs have been gratifying and remunerative, but Kurs said he’s concerned about losing the low-overhead laboratory mode afforded by the old 99-seat plan.
“I’m afraid that the changes fostered by Equity will diminish the playing field,” said Kurs. “At worst, there will be fewer opportunities for deaf theatre artists to develop and to bring their craft into the mainstream.” Kurs might have been speaking for many in the L.A. theatre scene, on either side, when he concluded, “I don’t know what the future holds for us.”
