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Austin Actors
Bill McCright

Texas Production Business Blames Law for Inequity
by Bill McCright

March 2000

OK! Maybe it's not that bad. But, in Texas - actors are blaming, casting directors are misinterpreting, producers are scratching their heads about, and agents are dumbfounded by the Texas Right-to-Work law. It's really very simple. Take a look at http://www.nrtw.org/c/txrtwlaw.htm.

Any questions? No? Well, there should be. Although the average state Right-to-Work (RTW) law is simple in intent, the implications are very broad. Simply put, a RTW law allows a person the 'right to work' with or without joining a union. There are currently twenty-one states in the US that have RTW laws. They are:

  • Alabama
  • Arizona
  • Arkansas
  • Florida
  • Georgia
  • Idaho
  • Iowa
  • Kansas
  • Louisiana
  • Mississippi
  • Nebraska
  • Nevada
  • North Carolina
  • North Dakota
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Virginia
  • Wyoming

History:

Briefly, the US House and Senate passed an act in 1947 called the Labor Management Relations Act, 1947. It is most often referred to as the Taft-Hartley Act and has been amended a few times since 1947. It provides guidelines " . . . for the mediation of labor disputes affecting commerce, to equalize legal responsibilities of labor organizations and employers, and for other purposes."

A large part of the Act sets down rules for, among other things -

  • The rights of employees to form, join, and support labor organizations
  • Collective Bargaining
  • Union Elections and Membership
  • Unfair Labor Practices
  • Authority of the National Labor Relations Board

Section 14(b) of the Act:

"Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law."

In 1947, Texas was one of the first states to enact a Right-to-Work law.

(The Texas law is found in Texas Codes Ann. Title 3 §§ 101.003, 004, 052, 053, 102, 111, 121, 122, 124.)

Implications:

First, please understand the Taft-Hartley Act does not apply to all workers in all trades. For example, the Railway Labor Act applies to railroad workers; the Taft-Hartley Act does not. The application to your specific job should be checked with a labor attorney. In general, the Act does apply to actors as employees. If you are considered an independent contractor, you may not be covered. Always, be sure you are treated as an employee.

The Taft-Hartley Act only applies to the employer/employee relationship. It does not apply to a performer's relationship with his agent or union. The Dallas office once got a call from a performer who claimed his agent had violated the Texas RTW law by asking him if he belonged to SAG or AFTRA. Your agent is not your employer, you are the agent's employer. An agent is allowed to ask your Union status.

Let's consider some ramifications if a producer or his representative, {i.e., a casting director, (collectively 'producer')} asks you if you are a member of Screen Actors Guild (SAG) or the American Federation of Television and Radio Artists (AFTRA).

If you state or in any way reveal you are a member and you lose the job to a nonmember, it may be possible you could sue for discrimination based on membership in a union. That works the other way, too. If a nonmember reveals his lack of membership to the producer and a member is hired, the nonmember may conceivably sue for discrimination based on non-membership. It is, therefore, unwise for a producer to ask you if you are a member or not. Proving such discrimination may be difficult.

Also, if you volunteer your membership or non-membership to the producer (such as on your résumé), you have put the producer in a very unpleasant position. That producer is stuck in a 50/50 situation, not knowing whether to hire you because you might claim he did or did not hire you based on your membership status. This is not a good way to build a cordial working relationship with a producer.

In non-RTW states, like California and New York, it is usually readily apparent that a performer is or is not a member, based on the list of SAG or AFTRA principal roles on the résumé. Most members proudly display their affiliation at the top of their résumés. Not only is it all right to ask a performer his union status, he can be denied a role on a Union project if he is not a paid-up member. The signatory producer may also be fined for hiring a non-member on a Union project under the SAG and AFTRA Union Security clauses of their respective collective bargaining agreements (CBA) with the producer.

We, therefore, have a bit of a paradox in Texas. Many signatory producers who come here from California or New York are used to obeying the Union Security clause of the CBA and will insist that only paid-up members of the Union can be hired. But, since they shouldn't ask questions about your union status, they don't understand how they can obey the Union CBA and Texas RTW law at the same time. Our office occasionally gets calls from producers asking how to 'get around' one or the other. We explain how RTW works and guide them to compliance with both. On occasion, we have had to call or even show up on a set to explain to the producer that he may be in violation of one or the other.

That leads to the most common misconception about RTW. Just because Texas is a RTW state does not mean that Union contracts are null and void! The Union contracts are negotiated between the Union and the producer. They are binding instruments on all parties. With separability clauses in place, even though one section of the CBA is deemed unenforceable, the rest of the Agreement is left intact.

So, if a producer of a Union-contracted project tells you that you are not entitled to overtime, or travel, or meals, or lodging " . . . because Texas is a Right-to-Work state," they are mistaken. If that ever happens to you, please call the Union office.

The Screen Actors Guild does have what is called the Travel Day Pay Waiver which is available in Texas under limited circumstances for a SAG Motion Picture or Television Program. If the producer auditions in Austin, Houston, or Dallas, a performer living in one of those cities may waive a day's pay for travel to and/or from a location within 500 miles of the performer's permanent residence.

But, the producer must request the Waiver from either the Houston or Dallas office, and the performer must agree to it. It is not automatic or mandatory. The SAG Travel Day Pay Waiver allows the producer to deduct only the salary for the day of travel; it does not waive mileage, meals, or housing. It may be used for Day Players only and not for Weekly, 3-Day, Stunt, or any other classification of performer. The Waiver is not available on any AFTRA projects or on any industrial, commercial, or interactive projects.

?If you have any questions about SAG or AFTRA rules in Texas, please call our Houston office at (713) 972-1806 or Dallas at (214) 363-8300. And, a disclaimer here - No one in either the Houston or Dallas office is a lawyer. We will not give you legal advice. We can only try to explain how Union rules may apply in your particular situation. If we feel you have a valid claim, we can request assistance from the legal departments of either SAG or AFTRA or from our local counsel. You certainly should consult your own attorney for specific legal advice.

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