SAG-AFTRA Battles Non-Union Commercials as Contract Talks Approach

SAG-AFTRA had issued a "do not work" order on Jessica Alba’s Honest Company for preparing to shoot non-union commercials before the company reversed course.

At least 160 union members have been found to be working on non-union commercials over the past two years and subjected to disciplinary hearings as a result, sources say.

It was only two days after SAG-AFTRA issued a "do not work" order on the Honest Company that the brand signed on to the union's commercial contract on Aug. 22. "An agreement was always our intent,” said founder and actor Jessica Alba at the time. “I’m looking forward to a productive partnership."

But not all brands are star-driven or have quite the do-good identity as Alba’s firm. Ever since the 2000 commercials strike taught advertisers by necessity how to create spots without union actors, SAG-AFTRA and its predecessors have fought a rising tide of non-union advertising. One such commercial, an NBA spot, featured a unionized crew and even unionized basketball players, but non-union actors. SAG-AFTRA picketed that Venice, California, shoot on Aug. 23.

Today, the performers’ union is locked in at least two significant disputes. One, with global ad agency Bartle Bogle Hegarty, will decide whether the signatory to the union’s commercials contract can altogether withdraw its signatory status, unilaterally. That attempt triggered a Sept. 20 strike against BBH, and picketing on Sept. 27 that drew an angry crowd of hundreds. “We continue to affirm our legal right to not renew our participation as a signatory to the SAG-AFTRA contract,” said an agency spokesperson. A spring decision is expected on a National Labor Relations Board complaint that the NLRB filed at SAG-AFTRA’s urging.

The other dispute centers on whether a signatory company called Executive Media Services is a bona fide producer of commercials or an impermissible front that allows non-signatories to access union talent when desired while continuing to make non-union commercials as well. “Do you need to hire union talent but aren't a signatory?” the company’s website asks. The union’s problem with such “signatory services” is that they allow non-signatories to avoid union contracts except when a union shoot is dictated by casting decisions, such as a desire for big stars. An arbitration is scheduled for October 22 and the union says it’s investigating several other such companies. Meanwhile, at least 160 SAG-AFTRA members have been caught working on non-union commercials over the past two years and subjected to disciplinary hearings as a result, union sources say. 

All this comes against the backdrop of upcoming spring renegotiations of the commercials contract itself. (The chief negotiator for the advertisers and agencies declined to comment.) Preparations began last month — the union met with talent agents on Sept. 17 and 20 — and continue Oct. 1 with about six weeks of “wages & working conditions” meetings to hear from performers across the country. The larger backdrop: turmoil in the advertising industry as traditional agencies lose market share to (often non-signatory) digital shops, and ad-supported television loses share to subscription streamers and online ads.

“Advertisers are trying to do more with the same amount [of spending],” says SAG-AFTRA national director of commercials Lori Hunt. And, “there’s a proliferation as non-signatory digital agencies eat away at TV advertising too.”

The result is a swirl of digital issues confronting the union and driving a need to update the contract. Indeed, BBH says that its work “is not well served by a contract that was designed for a traditional media landscape,” although the agency didn't explain why it hasn’t sought to negotiate new terms. Internet and mobile ads are governed by one part of the agreement, while social media ads are the province of a low-budget waiver in which much is negotiable, says Hunt.

That’s scarcely a formula for providing terms and conditions that would benefit the new frontier of YouTube and Instagram creators and influencers, complains Kevin E. West, a leader of an avowedly non-partisan and non-political group called UnionWorking that is nonetheless critical of the union’s leadership. The group is seeking celebrity support, often a fraught endeavor at SAG-AFTRA.

There’s also the tricky issue of “edits,” in which one commercial shoot results in multiple ads. In the old days, that might mean several spots tailored for different local auto dealers, but technology now arriving can automagically generate thousands of spots from a single shoot, with the product substituted (Coke? Iced tea? Dasani water?), the dialog customized to the viewer’s name, and even the actor replaced as the spot is deployed worldwide. How to compensate performers for this kind of reuse? “We have to be open and flexible,” says Hunt speaking generally, but right now “It’s a big hot mess.”