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The Directors Guild of America disputes a Writers Guild of America strike rule that prohibits writers and directors from making minor changes to the script.
The conflict rekindles a decades-old dispute over WGA jurisdiction that went all the way to the US Supreme Court in 1978. Despite the Supreme Court ruling against the WGA, the guild continued to argue that “hyphenation” members were forbidden from making minor script changes during a strike.
The dispute revolves around eight types of activities — including editing time footage, making dialogue adjustments and changing stage directions — that the WGA considers paperwork within its purview.
DGA considers these activities – known as “Services (a) to (h)” from their designation in the contractual clauses of WGA’s Minimum Basic Agreement – to be part of a Director’s job. According to the DGA, the managing directors are obliged to continue to provide these services.
The conflicting advice affects writers and directors belonging to both guilds. The WGA has threatened to punish members violating the strike rules with disciplinary action, which may include a fine, suspension or expulsion. The DGA has stated that the studios must reimburse the directors for the costs of any WGA discipline, but that the directors must provide those services if the request is made in writing.
The minor script change clause has been in the WGA contract since 1966 and has been a source of much controversy for almost as long.
Specifically, the clause details the limited “writing services” not covered by the contract when provided by non-authors. The contract defines a writer as anyone engaged in the creation of literary material, but also as anyone hired for another purpose – a director, producer, actor, etc. – who writes or edits literary material. The services “(a) to (h)” are an exception to the latter definition. These are a handful of writing activities that a producer or director can do without becoming a “writer” by contract.
The dispute revolved around the question of how to read this clause during a strike. The WGA considers that these services, when provided by an author or hyphenator, constitute covered writing.
In the 1973 writers’ strike, scores of writer-producers and screenwriters-directors crossed the picket line to work as producers and directors. In these functions they acted as supervisors – and therefore did not go on strike.
But the WGA accused many of those members — including big names like Sam Peckinpah, Michael Crichton and Philip Kaufman — of violating strike rules, which the National Labor Relations Board ruled in 1975 prohibited members from working in any capacity for striking companies to work . The strike rules also prohibit dashes from entering the studio lot without permission from the guild.
The guild conducted disciplinary proceedings against 15 people and approved sentences against 10 of them. Two of them – John Mantley and David Victor – were expelled from the WGA and fined $50,000 each; others received reduced fines and/or suspensions.
The studios and networks filed an NLRB complaint challenging the guild’s right to take disciplinary action for activities not covered by its contract.
The WGA argued – then as now – that it had the power to penalize or disqualify directors and producers who had performed “(a) through (h)”. The guild argued that while these services were exempt from the contract, they were nevertheless written services that fell within the purview of the guild.
Sidney J. Barban, the administrative judge handling the case, disagreed.
“The argument misses the point,” Barban wrote in 1974, saying the issue was not whether such functions would qualify as “writing” but rather whether they were covered by the treaty. He also noted that such services “are accepted as a normal part of the duties and responsibilities of managers and supervisors.”
The NLRB adopted Barban’s conclusions. It ruled that the WGA could not threaten disciplinary sanctions – including fines, expulsion, blacklisting and ostracism – against members for performing supervisory duties during a strike.
The case of American Broadcasting Cos. v Writers Guild of America West eventually went to the Supreme Court, which upheld the NLRB ruling in June 1978. By a vote of 5 to 4, the court concluded that the WGA had breached the National Labor Relations Act by threatening supervisors with union discipline, thereby depriving employers of their elected representatives for grievance purposes and collective bargaining.
In the decision, the court noted that benefits “(a) through (h)” were “expressly not covered by the contracts between plaintiff and defendant.” The court also cited Barban’s conclusion that such services are part of the normal duties of managers and supervisors.
By this time, the heated emotions of the 1973 strike had cooled somewhat. The expulsions had long since been lifted and the fines had been drastically reduced. Nobody was ever paid.
Mantley, who was executive producer on Gunsmoke at the time of the strike, was quoted in Variety the day after the court ruling.
“I’m delighted because I’ve always tried to behave honestly in my opinion and I’m pleased that the court has upheld my position,” he said. “I think it will clear up the whole dash situation in terms of future strikes.”
The WGA has since sought to remove the “(a) through (h)” exception from its contract. According to a 1984 Variety story, this was one of the Guild’s demands of the studios during contract negotiations that year.
But the exception – and the controversy about it – have remained.
In support of its view, the WGA cites a 1987 Supreme Court ruling, NLRB vs. IBEW, which upheld union discipline against two supervisors. In this case, the court found that for union discipline to conflict with federal law, supervisors’ grievance and collective bargaining duties had to be real and not speculative.
“ABC is no longer good law,” said Tony Segall, general counsel of the WGA West. “According to the IBEW decision, you actually have to have evidence that they are performing these tasks. ABC would have come out differently if they had followed the IBEW rule.”
At the same time, the WGA recognizes that it cannot prevent members from acting solely as directors or producers during the strike, so long as those members do not provide writing services. However, it is still argued that items “(a) to (h)” constitute prohibited writing services.
During the 2007/2008 strike, the WGA warned Hyphenate (they were now dubbed ‘showrunners’ on TV) that they could face union disciplining if they provided “(a) to (h) services”. The studios argued that despite the guild’s statements, dashes could still serve these functions. The DGA agreed with the studios and took the same position then as now.
But neither the studios nor the guild have recently addressed the issue with an NLRB complaint. In no case since the 1978 ruling has the issue been addressed directly.
During the 2023 strike, Disney has already advised its showrunners that they can continue to perform functions “(a) through (h)” during the strike. The WGA answered on Twitter that these services are “explicitly defined in the guild contract as typing services and therefore constitute strike work prohibited to guild members during a work hiatus.”
The WGA also accused Disney of using “known anti-union tactics.”
The DGA has now also joined and says that the services “(a) to (h)” are not covered by the WGA contract and are therefore not affected by the strike.
“Although its own agreement excludes these services from coverage, the WGA has threatened to penalize dash members who provide “(a) through (h) services” to affected projects,” the DGA told its members. “However, Hyphenate directors are required by the ‘no-strike’ clause in the DGA master agreement to continue to provide director services during the WGA strike and their responsibilities traditionally include ‘(a) through (h)’ services.”
The DGA also issued a statement of solidarity with the WGA during the strike. DGA Negotiating Committee Chairman Jon Avnet appeared onstage at a WGA rally May 3 at the Shrine Auditorium.
Nevertheless, the dispute over the strike rules shows that the two guilds do not necessarily agree on all issues.
In a statement, DGA said it supports WGA’s efforts to get a fair deal from the studios.
“At the same time, DGA has a duty to clarify information about our members’ rights and obligations in their contracts, including possible actions that could lead to breaches of contract,” DGA said. “We have adequately informed our members of their rights and responsibilities so that they can make informed decisions regarding their employment. While we differ from the WGA in our position on the specific legal and contractual issues in this one area, we continue to support the authors’ ultimate goal: a fair deal with the AMPTP.”
Services (a) through (h) listed in the WGA’s Mininum Basic Agreement are:
(a) Waste of time
(b) Bridging material required by temporal cutting
(c) Changes in technical instructions or stage directions
(d) Allocation of lines to other existing characters due to cast changes
(e) Changes required to obtain continuity acceptance or legal approval
(f) Incidental minor adjustments to dialogue or narrative made before or during filming
(g) Changes in the production process necessitated by unforeseen events (eg, weather conditions, cast member accidents, etc.).
(h) any direction, direction or suggestion, whether oral or written, to the author regarding the story or screenplay