10:10am PT by Eriq Gardner
How MGM's 'Ben-Hur' Evolved Into a Pending Fight Before the National Labor Relations Board
It's with no small measure of irony that Ben-Hur, the iconic film about a prince-turned-slave's revenge, has instigated a modern-day labor brawl. That's thanks to MGM's decision to reboot the film, and specifically, the musicians hired to perform the score.
Last April, the American Federation of Musicians of the United States and Canada filed a lawsuit against MGM and Paramount — and the complaint seemed simple enough at the time. The guild accused the studios of failing to pay proper wages, benefits and residual compensation to the musicians on the 2016 remake. MGM and Paramount responded by arguing that the musicians were subcontracted and therefore not covered by the union agreement. In October, a California federal judge rejected MGM's motion for judgment on the pleadings and allowed the litigation to proceed.
Now, the dispute has escalated to the point where one side implies union-busting and the other side suggests witness tampering. The case has gotten so heated that it has provoked AFM to file charges against MGM to the National Labor Relations Board.
According to AFM, MGM and Paramount have unlawfully coerced musicians employed in the scoring of Ben-Hur by conditioning their employment on a promise not to adhere to union economic standards, not to communicate with the guild about this film project and not to exercise rights to bargain collectively over terms and conditions of their employment.
The ramifications of musicians taking work not sanctioned by the union are beginning to reverberate. As a result of this movie and the subsequent legal proceedings, questions are being presented about a guild's ability to discipline its own members and an employer's ability to find out about such activity.
The case is now in the discovery phase. Both sides want information. And there's been no shortage of accusations that the legal process is being abused.
In December, for instance, Magistrate Judge Michael Wilner noted that "AFM is undoubtedly authorized to conduct legitimate disciplinary proceedings to enforce union rules," but added, "There is a strong and pungent whiff of abuse of the Court's process here. It sure looks like the union used Rule 45 subpoenas in its lawsuit against MGM and Paramount simply to gain evidence against its wayward members."
Recently, MGM has been investigating.
In court papers filed late last week, MGM told the judge that it had learned that AFM fined music conductor Mark Graham $10,000, but "held in abeyance" three-quarters of that amount pending the guild's satisfaction with his future behavior.
The studio wants permission to find out about other musicians disciplined by AFM.
"Discovery regarding the AFM’s actions, including actual and/or threatened sanctions against percipient witnesses in this lawsuit is indisputably relevant to the credibility of those witnesses’ testimony," writes MGM's attorney Adam Levin. "The AFM’s refusal to produce this potentially relevant discovery appears to be based on an unfounded interpretation of the National Labor Relations Act, which does not allow unions to secretly discipline and cut deals with persons who are witnesses in civil litigation."
But AFM has a different read on what's going on.
In late November, the guild quietly filed charges at the NLRB against MGM and the law firm of Mitchell Silberberg & Knupp.
The studio is accused of violating a provision of labor code that prohibits employers from interfering with employees' exercise of labor rights. Specifically, AFM alleges it is unlawful that MGM would interrogate union members about intra-union disciplinary matters and other confidential protected union activity.
The NLRB may eventually get around to issuing a decision about this, but in the meantime, a judge is holding a hearing next week to examine MGM's efforts to compel disclosures about intra-union communications and disciplinary actions.
Jennifer Garner, attorney for AFM, argues to the court that after coercing musicians to take economic sub-standard work, MGM and Paramount now wish to complete the unacceptable bargain.
"The Ben-Hur employers promised anyone who capitulated to these yellow dog terms that their acceptance of such employment would be protected from disclosure to the representative union," she writes in a bid for a protective order. "Thus, in actuality, it is the Ben-Hur employers who have violated the musicians’ rights and have resorted to economic and political coercion to silence them and/or curry their favor as witnesses in this action."