First implemented in the 1993 contract between Local 802 and the League of American Theatres and Producers, the Special Situations exception allows shows that qualify — under certain criteria — to utilize fewer than the agreed upon minimum for the theatre in which the show is scheduled to appear.

During the 2003 Broadway negotiations, while much focus was placed on the “minimums,” the Special Situations clause underwent drastic revisions, and, to this day has been the subject of much controversy. In the end, the language was significantly modified in several ways.

Now that over three years have past, it is important that we examine our experiences under the new contract as we prepare for the negotiations ahead. The Broadway agreement will expire on March 4, 2007.

In this report, I will review the areas of the contract that were drastically changed as a result of the 2003 negotiations, many of which have proved to be extremely problematic.

In addition, I will provide an overview of every production which utilized fewer than the agreed upon minimum, over the life of the current contract — as well as the specific problems we faced.

Moreover, I will review how this administration has resolved each of these disputes, in an effort to best position ourselves to address these problems at the bargaining table in the negotiations ahead.

THE CONTRACT LANGUAGE

Of all the changes that befell the Special Situations clause of the Broadway contract in 2003, the following have proved to be the most problematic:

1) New criteria — “The criteria for determining whether a production calls for a smaller orchestra are: ( i ) the musical concept expressed by the composer and/or orchestrator”…

The union has maintained the position that the intent of the new language was not that a composer or orchestrator could dictate the minimum of a show by simply claiming a certain number of musicians to be his/her concept. In fact, at the first Special Situations hearing (“All Shook Up”), in which the union initially prevailed, the panel’s decision noted, “…the stated concept for this musical was not proven sufficiently to require a reduction in the minimum…”

That victory, however, was short lived when another newly added provision was invoked by the League — one that allowed either party to challenge the Special Situations panel’s decision in arbitration.

2) Arbitration — “In the event that the Employer/Producer or the Union does not agree with the Committee’s determination, either party may submit the matter to binding arbitration” …

As many will recall, we suffered a devastating loss in that arbitration — particularly on two grounds. First, although the union maintained that the intent of this language was that it be used only if there was a question of a procedural violation, the arbitrator disagreed and ruled that she could not only overturn the panel’s decision, but re-decide the case herself. Second, the arbitrator also gave total deference to the “concept” of the orchestrator — while having no trouble substituting her judgment over the artistic expertise and unanimous opinion of the expert panel.

3) Disclosure of Information — Timely Notification — Prior to the new agreement, producers requesting Special Situation status for an upcoming show were required to submit the request initially to the Local 802 Executive Board. The board could then approve the request, if it felt that the reasons for the reduction in the minimum fell within the criteria required by the contract.

Although the Executive Board often granted outright what it believed to be valid requests, the League fought hard, and succeeded, in eliminating that step during the 2003 negotiations.

As a result, it soon became clear that the elimination of this step created several problems. First, in the prior contract, the requirement for the producers to submit their request to the union provided for an exchange of information that was critical to the union’s ability to evaluate the case. It also gave the union the opportunity to ask questions of the creative team and seek as much information as possible in order to make an informed decision —not to mention prepare a defense if the union disagreed.The contract now merely requires that the producer notify the union of its intentions, with no explanation whatsoever.

Needless to say, the removal of the former first step unwittingly left the parties with no contractual procedure for learning the issues before submission to the committee — making adequate preparation for the hearing virtually impossible. Thus, 802 and the League have instituted a series of informal meetings whenever a producer makes a Special Situations request, in order to give the union a chance to hear the producer’s position, evaluate it and respond to it. This, however, has proved to be a far more time consuming process. That, coupled with a lack of a hard deadline for the producer to notify us in the first place, has resulted in the failure to adjudicate some requests prior to the first paid public performance.

4) Actors playing musical instruments — Many of you will recall the mockery of the minimums that was inflicted upon us by the producer of “Saturday Night Fever,” back in 2000. The show failed to convince the Special Situations panel that it qualified for a reduction in the minimum. But, instead of hiring the six additionally required musicians, they passed out toy keyboards to six vocalists as a “sham” to circumvent the decision of the Special Situations panel. To add insult to injury, that travesty was upheld in arbitration.

In the 2003 negotiations, the union was able to get a prohibition on the assignment of musician duties to actors. Unfortunately, it was only under the condition when a producer applied for and lost an application for Special Situation status. When “Sweeney Todd” came to Broadway last season, we soon learned that the League believed it could avoid this restriction by simply not applying for a Special Situation — since the prohibition specifically applied in the context of having lost in a Special Situations hearing.

5) The “Neutrals” — A further modification to the Special Situations clause involved a total revamping of the list of “neutrals” designated to serve on Special Situations Committees.

In the past, Paul Gemignani, Wally Harper, Luther Henderson, Danny Troob, Jonathan Tunick and Harold Wheeler were named as the designated neutrals. These individuals, all union members, were selected to serve on the panels based on their musical expertise and intimate knowledge of Broadway musicals.

At the 2003 negotiations, the union negotiators agreed to replace all of them with individuals whom the League believed would hold no particular bias toward the union. While the new neutrals are reputable people within the industry, they are in fact producers themselves.

6) Lastly, no one can and should ever forget the chilling week in 2003 when all Broadway shows were being rehearsed with virtual orchestra machines. Since we did not achieve — nor attempt to achieve — a ban on the virtual orchestra machine (in fact, no such thing existed at the time), it is also critical to the future of live Broadway orchestras that we revisit the proper and improper use of electronic instruments.

SPECIAL SITUATIONS — THE EXCEPTION OR THE RULE?

The following list is an overview of every production which has sought a reduction in the minimum over the life of the current contract, the specific problems we have faced in relation to the 2003 contract revisions I have outlined above, as well as the steps we have taken in an attempt to fix these problems.

1) “All Shook Up” — opened at the Palace Theatre in March 2005. Theatre minimum: 18. Actual orchestra size: 15.

Status: The union won at the Special Situations Committee hearing. The League had the decision overturned in arbitration. Problem: New criteria re: the “concept” of the composer/orchestrator. Also the new arbitration clause, and the arbitrator’s decision itself. Solution: The union filed a petition to vacate the arbitration award in US District Court (decision pending). Also, the union sought to address the arbitration issue in the subsequently negotiated Actor/Musician agreement (see section 3 below).

2) “Lennon” — opened at the Broadhurst Theatre in August 2005. Theatre minimum: 12 — Actual orchestra size: 10.

Status: The union agreed this production qualified under the contract as a Special Situation. A consent decision was reached. Problem: None per se, however, the union achieved language in the decision that delineates the proper and improper use of synthesizers in a Special Situation show, i.e., “the synthesizers will be used to produce only keyboard sounds…and will neither emulate, augment or reinforce other instruments, strings or otherwise.”

3) “Sweeney Todd” — opened at the Eugene O’Neill Theatre in November 2005. Theatre minimum: 8. Actual orchestra size: 8, but all 8 were actors in the show.

Status: 802 coordinated negotiations with Equity. New Actor/Musician agreement reached. Problem: Actors counted toward musicians’ minimum. Solution: The union negotiated a new Actor/Musician agreement, achieving a prohibition on assigning musician duties to actors as a subterfuge to circumvent the minimums. This new agreement prohibits such abuse regardless of whether or not the producer applies for a Special Situation. It does allow for an actor to be counted toward the minimum if he/she is in fact performing valid musician duties, i.e., performing on a musical instrument that is integral to the orchestration of the show. In addition, this agreement includes dispute resolution through the Special Situations procedures. However, the panel’s decision is final and binding, and not subject to arbitration.

4) “Jersey Boys” — opened at the August Wilson Theatre in November 2005. Theatre minimum: 12.

Status: The union agreed to classify 3 actors as Actor/Musicians, under the new Actor/Musician agreement. Problem: Actors counted toward musicians’ minimum. Solution: New Actor/Musician agreement.

5) “The Woman In White” — opened at the Marquis Theatre in November 2005. Theatre minimum 19. Actual orchestra size: 15.

Status: The show opened prior to adjudication by the Special Situations Committee. Nevertheless, they went in under the minimum. The union filed a grievance. A tentative settlement has been reached (which will also include “Hot Feet,” section 6 below, and “The Drowsy Chaperone,” section 8 below). Problem: The show opened under the minimum, prior to adjudication by the Special Situations Committee. Solution: The union negotiated a grievance settlement, which will set forth a much-needed procedural timeline, including adjudication prior to the first paid public performance.

6) “Hot Feet” — opened at the Hilton Theatre in April 2006. Theatre minimum: 19. Actual orchestra size: 12.

Status: The producer did not apply for Special Situation status. The union grieved. The show opened (and closed) prior to resolution of the grievance. Problem: The producer did not apply for Special Situation status, but nevertheless went in under the minimum. Solution: (Pending settlement with “The Woman In White”; see section 5 above).

7) “The Wedding Singer” — opened at the Al Hirschfeld Theatre in April 2006. Theatre minimum: 14.

Status: The union agreed to classify 2 actors as Actor/Musicians, under the new Actor/Musician agreement. Problem: Actors counted toward musicians’ minimum. Solution: New Actor/Musician agreement.

8) “The Drowsy Chaperone” — opened at the Marquis Theatre in May 2006. Theatre minimum: 19. Actual orchestra size: 16.

Status: The producer did not notify the union within the timeframe required under the contract. The union filed a grievance. The show opened prior to resolution of the grievance. Problem: Failure to notify the union as required under the contract. The show opened under the minimum. Solution: (Pending settlement with “The Woman In White”; see section 5 above).

9) “The Times They Are A Changin’” — opened at the Brooks Atkinson Theatre in October 2006. Theatre minimum: 8. Actual orchestra size: 5.

Status: The union agreed that the production qualified as a Non-Legitimate Attraction. Therefore, per the collective bargaining agreement, no minimums apply. Problem: None.

10) “Mary Poppins” — opens at the New Amsterdam Theatre in November 2006. Theatre minimum: 19. Actual orchestra size: 17.

Status: The union lost at the Special Situations Committee hearing. Problem: New criteria re: the “concept” of the composer/orchestrator. (New “London’s West End” language also cited.) Moreover, the “All Shook Up” arbitration ruling was cited. Solution: The union has submitted the decision to arbitration (decision pending).

11) “Company” — opens at the Barrymore Theatre — in November 2006. Theatre minimum: 9. Actual orchestra size is 9, but all 9 are expected to be actors in the show.

Status: The union will evaluate the Actor/Musician designation(s).

12) “High Fidelity” — opens at the Imperial Theatre in December 2006. Theatre minimum: 18. Actual orchestra size: 10.

Status: The union does not agree that this show qualifies for Special Situation status. Special Situations Committee hearing is scheduled on Nov. 3, 2006.

13) “Dr. Seuss’ How The Grinch Stole Christmas!” — opens at the Hilton Theatre in November 2006. Theatre minimum: 19. Actual orchestra size: 15.

Status: A grievance settlement has been reached. Problem: Potential dispute regarding the theatre owner’s (Live Nation) obligations under the contract. Solution: A strong grievance settlement, larger issues to be clarified in the upcoming Broadway negotiations.

14) “Spring Awakening” — opens at the Eugene O’Neill Theatre in December 2006. Theatre minimum: 8.

Status: The union is presently evaluating an application for Actor/Musician designation.

15) “The Pirate Queen” — opens at the Hilton Theatre in April 2007. Theatre minimum: 19. Actual orchestra size: 12.

Status: The union is presently evaluating the Special Situations application.

GOING FORWARD

Has the “exception” become the “rule”? If so, the “freeze” on minimums, in place until 2013, may be rendered meaningless.

Based on the experience, it is clear that significant changes need to be made to bring the system back to the way it was originally intended.