As previously reported, on Sept. 30, the Special Situations Committee convened to hear the first case under the new terms of the Broadway agreement. The request for consideration of Special Situation Status came from the producers of the musical “All Shook Up,” a musical based on the songs of Elvis Presley, scheduled to open at the Palace Theatre on March 24. The Neutral Committee unanimously denied the request. Subsequently, however, the League of American Theatres and Producers challenged the wisdom of the expert panel’s decision and filed an immediate appeal to the American Arbitration Association, in accordance with the terms of the new agreement. On Dec. 18, the arbitrator reversed the expert panel’s decision and determined that “All Shook Up” should be granted Special Situation status, thereby allowing the producers to use only 15 musicians rather than the house minimum of 18.

BACKGROUND

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, this clause was the subject of much discussion, negotiation and controversy. In the end, the language was significantly modified in several ways.

First, 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, as it did many times, if it felt that the reasons for the reduction in the minimum fell within the criteria required by the contract.

If the board did not agree that the request was valid, the matter would be submitted to a panel comprised of two members of the union, two members of the League, and three “neutrals.”

Although the Executive Board often granted outright what it believed to be valid requests, the League fought very hard to eliminate that step during the 2003 negotiations. The concept of asking the union for permission was “philosophically” objectionable to the League.

As a result, this step was removed from the contract and the new language calls for the Special Situations panel to convene each and every time a producer makes such a request.

Second, the League insisted on replacing all of the neutrals named in the prior agreement, each of who were union members, with individuals whom they believed would hold no particular bias toward the union. A procedure was agreed upon that allowed both sides to propose a list of neutrals subject to the agreement of the other side. Each of the neutral’s credentials were thoroughly scrutinized by the League and the union before they were included in the new agreement to ensure that they were respected experts in the field of musical theatrical production.

Lastly, another important modification to the Special Situations clause was the establishment of a procedure through which the committee’s determination could be either reviewed and/or revised, if either party disagreed with the committee’s determination, by the addition of either party’s right to challenge the panel’s decision in arbitration. The parties agreed to this provision only in the event of some gross procedural error.

THE REQUEST FOR “ALL SHOOK UP”

On June 8, Local 802 received the initial request for panel consideration of Special Situation Status for “All Shook Up” from the show’s producers. The basis of the producers’ request was stated in their letter to the union as follows:

“It has been the intention of the creative team as they have been developing this new musical over the last couple of years to create a sound for the show that emulates a typical early-Elvis-type ‘band’; a sound that is not consistent with the traditional ‘Broadway’ sound.”

At the Special Situations hearing, however, the League proceeded to present an entirely new version of why the producers were requesting Special Situation status for this show. Not only was there no mention of the creative team’s intention to “emulate a typical early-Elvis type Band,” as stated in the producers’ initial request, it was quickly evident that the League did not wish to share that letter of request with the panel. The “concept” that was put forward by the League was expressed by the creative team. Now it was their goal to achieve a “gospel” sound to the show.

The union did not believe that the new information presented at the hearing by the League was any more valid than the original concept. The Neutral Panel unanimously agreed with the union.

They found that the “stated concept for this musical was not proven sufficiently to require a reduction in the minimum from that which comprises a conventional Broadway orchestra.”

THE LEAGUE CHALLENGES ITS OWN EXPERTS

Upon learning of the committee’s decision, the League and the producers of the show filed an immediate appeal to the American Arbitration Association for the appointment of a labor arbitrator, in accordance with the new procedures’ inclusion of the right of either party to demand arbitration if it “disagrees” with the “committee’s determination.”

Thus, a two day hearing was held wherein the League argued to a labor arbitrator with no musical or theatre expertise, that she should overturn the unanimous determination of the panel of experts, most of whom had been selected by the League.

THE ARBITRATOR’S DECISION – A TRAVESTY

In her opinion and award, arbitrator Carol Wittenberg found “that the committee did commit a procedural violation in its deliberations,” claiming she was “not convinced that the committee exercised its artistic expertise as contemplated and as required by the contract” and stating that had the committee rendered its decision explaining its reasons for rejecting the producers’ request, e.g. why the musical team failed to establish that its “gospel concept” called for a smaller orchestra, she (the arbitrator) would have been hard pressed to substitute her judgment for the artistic expertise of the neutral experts.

Rather than referring the matter back to the committee of experts to render a more detailed decision, the arbitrator in fact did substitute her judgment over the artistic expertise and unanimous opinion of the expert panel.

The arbitrator gave no weight whatever to the panel’s decision, reversed it, and held that “All Shook Up” should be granted Special Situation status, thereby allowing the producers to use only 15 musicians rather than the house minimum of 18. The union will be pursuing any and all legal avenues of redress.

WILL THE EXCEPTION BECOME THE RULE?

Local 802 has apprised the Coalition of Broadway Unions And Guilds (COBUG) of the League’s determination to challenge the very procedure it fought so hard to modify. Given the unwavering support 802 received during the 2003 Broadway strike, these recent developments are troubling to say the very least. Will the League continue its assault on the minimums and full live Broadway orchestras through continued attempts to abuse the Special Situations exception to those minimums? Will the “exception” become the “rule”? If so, the “freeze” on minimums, in place until 2013, may be rendered meaningless.

If that proves to be the case, Local 802’s fight to maintain the artistic integrity of full live orchestras on Broadway may come sooner than you, or they, think. Time will tell.