The Directors Guild of America is disputing a Writers Guild of America strike rule that forbids writer-directors from making minor script changes.
The conflict revives a decades-old battle — which went all the way to the U.S. Supreme Court in 1978 — over the WGA’s jurisdiction. Though the Supreme Court ruled against the WGA, the guild has continued to argue that “hyphenate” members are prohibited from making minor script modifications during a strike.
The dispute turns on eight types of activities — including cutting material for time, making adjustments in dialogue, and changing stage directions — that the WGA sees as writing work under its jurisdiction.
The DGA sees those activities — known as “(a) through (h) services” because of how they are identified in the contract clauses in WGA’s Minimum Basic Agreement — as part of a director’s job. According to the DGA, directors are required to keep performing those services.
The conflicting advice affects writer-directors who belong to both guilds. The WGA has threatened to discipline members who violate the strike rules, which can include a fine, suspension or expulsion. The DGA has said that studios must indemnify directors from costs of any WGA discipline, but that directors must perform those services if the request is made in writing.
The clause regarding minor script changes has been in the WGA contract since 1966, and it’s been a source of heated dispute for almost as long.
The clause specifically enumerates the limited “writing services” that are not covered by the contract when performed by non-writers. The contract defines a writer as anyone employed to write literary material, but also anyone hired for any other purpose — a director, producer, actor, etc. — who writes or revises literary material. The “(a) through (h)” services are an exception to the latter definition. They are the handful of writerly things that a producer or director can do without becoming a “writer” under the contract.
The dispute has been over how to read that clause during a strike. The WGA maintains that those services — when performed by a writer or hyphenate — constitute covered writing.
In the 1973 writers strike, numerous writer-producers and writer-directors crossed picket lines to work as producers and directors. When working in those capacities, they were acting as supervisors — and were thus not on strike.
But the WGA accused those many of those members — including big names like Sam Peckinpah, Michael Crichton and Philip Kaufman — of violating the strike rules, which forbade members from working in any capacity for struck companies, according to a 1975 National Labor Relations Board ruling. The strike rules also prohibited hyphenates from going on the studio premises without guild permission.
The guild held disciplinary trials against 15 people and approved penalties against 10 of them. Two of them — John Mantley and David Victor — were expelled from the WGA and fined $50,000 apiece; others received lesser fines and/or suspensions.
The studios and networks filed an NLRB complaint challenging the guild’s right to impose discipline for activity that is not covered by its contract.
The WGA argued — then as now — that it had the power to fine or expel directors and producers who performed “(a) through (h)” services. The guild argued that even though those services were excluded from the contract, they were nevertheless writing services under the guild’s jurisdiction.
Sidney J. Barban, the administrative law judge who handled the case, disagreed.
“The argument misses the point,” Barban wrote in 1974, saying the issue was not whether such functions qualified as “writing,” but rather whether they were covered under the contract. He also found that such services “are accepted as a normal part of the duties and responsibilities of the executives and supervisors.”
The NLRB adopted Barban’s conclusions. It ordered the WGA not to threaten any discipline — including fines, expulsion, blacklisting and ostracism — against members for performing supervisory duties during a strike.
The case, American Broadcasting Cos. v. Writers Guild of America West, ultimately went to the Supreme Court, which upheld the NLRB ruling in June 1978. On a 5-4 vote, the court found that the WGA had violated the National Labor Relations Act by threatening supervisors with union discipline, thereby depriving employers of their chosen representatives for grievance and collective bargaining purposes.
In the ruling, the court stated that “(a) through (h)” services are “expressly not covered by the contracts between petitioners and respondent.” The court also cited Barban’s conclusion that such services fall under the normal duties of executives and supervisors.
By that point, the heated feelings of the 1973 strike had cooled somewhat. The expulsions had long since been rescinded and the fines had been dramatically reduced. None were ever paid.
Mantley, who was executive producer of “Gunsmoke” at the time of the strike, was quoted in Variety the day after the court’s ruling.
“I am absolutely delighted because I have always tried to behave in what I thought was an honorable fashion, and I am delighted that the court has supported my position,” he said. “I think it will clarify the entire situation of the hyphenates in regard to future strikes.”
The WGA has since sought to remove the “(a) through (h)” exception from its contract. According to a Variety story from 1984, that was one of the guild’s demands of the studios during contract negotiations that year.
Yet the exception — and the dispute over it — have remained.
To support its view, the WGA points to a 1987 Supreme Court ruling, NLRB v. IBEW, that upheld union discipline against two supervisor members. In that case, the court found that the supervisors’ grievance and collective bargaining duties had to real, and not speculative, in order for union discipline to run afoul of federal law.
“ABC is no longer good law,” said Tony Segall, general counsel of WGA West. “Under the IBEW decision, you actually have to have evidence they perform these duties. ABC would have come out differently had they followed the rule in IBEW.”
At the same time, the WGA concedes that it cannot prevent members from serving purely as directors or producers during the strike, so long as those members don’t perform any writing services. But it has continued to argue that the “(a) through (h)” items constitute writing services that are prohibited.
During the 2007-08 strike, the WGA warned hyphenates (by this point, they were called “showrunners” in TV) that they could face union discipline for performing “(a) through (h) services.” The studios argued that hyphenates could go ahead and perform those functions, despite what the guild said. The DGA agreed with the studios, taking the same position then as it does now.
But neither the studios nor the guild have pressed the issue recently by filing an NLRB complaint. No cases have addressed the topic head-on since the 1978 ruling.
During the 2023 strike, Disney has already advised its showrunners that they can keep performing “(a) through (h)” functions during the strike. The WGA responded on Twitter, saying that those services are “specifically defined in the Guild contract as writing services and therefore constitute struck work that Guild members are prohibited from doing during a work stoppage.”
The WGA also accused Disney of engaging in “familiar union-busting tactics.”
The DGA has now also chimed in, opining that “(a) through (h)” services are not covered by the WGA contract, and thus are not subject to the strike.
“Even though their own agreement excludes these services from coverage, the WGA has threatened to discipline hyphenate members who provide ‘(a) through (h) services’ on struck projects,” the DGA told its members. “Hyphenate directors, however, are required by the ‘no strike clause’ in the DGA Basic Agreement to continue providing directing services during the WGA strike, and their responsibilities traditionally include ‘(a) through (h)’ services.”
The DGA has also issued a statement of solidarity with the WGA during the strike. The chair of the DGA negotiating committee, Jon Avnet, appeared on stage at a WGA rally at the Shrine Auditorium on May 3.
Nevertheless, the dispute about strike rules shows that the two guilds are not necessarily on the same page in all respects.
In a statement, the DGA said it supports the WGA’s efforts to get a fair deal from the studios.
“At the same time, the DGA has a duty to clarify information about our members’ rights and responsibilities in their contracts, including potential actions that could put them in breach of contract,” the DGA said. “We have advised our members accordingly of their rights and responsibilities so they can make informed decisions regarding their employment. Although we differ from the WGA in our position on the specific legal and contractual issues in this one area, we remain in support of the writers’ ultimate objective: a fair deal with the AMPTP.”
The (a) through (h) services outlined in the WGA’s Mininum Basic Agreement are:
(a) Cutting for time
(b) Bridging material necessitated by cutting for time
(c) Changes in technical or stage directions
(d) Assignment of lines to other existing characters occasioned by cast changes
(e) Changes necessary to obtain continuity acceptance or legal clearance
(f) Casual minor adjustments in dialogue or narration made prior to or during the period of principal photography
(g) Such changes in the course of production as are made necessary by unforeseen contingencies (e.g., the elements, accidents to performers, etc.)
(h) Instructions, directions, or suggestions, whether oral or written, made to writer regarding story or screenplay