By: Leo T. Reed
There have been a lot of rumors floating about, some true, some not so true, about meal periods, meal penalties and meal money, and what this union is doing about them. So I decided it was time to clear things up.
First of all, meal money does not buy out meal penalties, especially the 2nd meal when the Teamsters are working long hours alongside with IATSE members. There are other instances that will be explained. You are entitled to meal penalties in most instances. There are a couple of morons that are spreading false rumors. Let me explain the history of meal periods, meal penalties, and meal money. Here we go!
When Hollywood first began producing motion pictures, directors and actors got to eat whenever the crew was moving equipment around for a scene or location change. The crew, on the other hand, simply didn’t get to eat. Needless to say, that did not go over well with the employees’ unions, including Local 399.
The first Local 399 agreement (there were no Black Books back then) to provide for meal periods was negotiated in 1941, and it was negotiated on an industry-wide basis covering all crafts. The penalty for working more than 6 hours without a meal was triple time until broken, with no less than a half hour at these penalty wages. Wouldn’t that be nice to get back. Of course, special equipment drivers were only being paid $1.50 per hour, so a typical meal penalty (which is actually double time, because time would have to be paid anyway) would be about $1.50 for a half-hour violation. By 1965, the penalty and been reduced from double time on top of your regular rate to single time on top of the rate.
In 1979, the meal period provisions of the contract were changed to look very much like they do today:
First ½ hour meal delay or fraction thereof – $10.00
Second ½ hour meal delay or fraction thereof – $12.50
Third and each succeeding ½ hour meal delay or fraction thereof – $15.00
Perhaps Matt Loeb and I should think about that for next year’s negotiations.
About the same time that the language of the contract was changing (the early 1980s), a practice began developing in the industry, the practice of paying what is now known as “meal money.” As you know, most drivers (but not all) are broken for the first meal a half-hour before the IA film crew and are back to work a half hour before the IA. Thus, if the IA crew works six hours past their first meal (as they usually do), the drivers will already be a half hour into meal penalty ($10.00). And if the drivers spend another half-hour closing up the trucks, etc., that would be another half-hour penalty ($12.50), for a total penalty of $22.50.
In addition, during this same period when TV series were quite popular and were shooting short days, one shot, almost no reshoots (like what only Clint Eastwood still does today), production companies like Stephen J. Cannell started paying production drivers $7.50 cash for breakfast (even though most of them were fed) and $12.50 cash for the second meal, for a total of $20.00 in cash. At the end of the usual short day, the IA crew left, but the Teamsters still had to help load, lock, and drive their trucks back to the lot. The drivers were entitled to a second meal period or meal penalties, but the $20.00 cash was very attractive. It was cash, tax free at the time; $100.00 dollars a week. (Some stated that it was beer money that the spouses would never know about). The members were satisfied and looked the other way on their meal penalties, and so did the former administration.
By 1988, when my predecessor, Earl Bush, was still running the local, there was still studio seniority and, frankly, a lot of drivers with studio seniority were abusing the system. For example, if a dispatcher sent a driver on a run five hours into his or her shift, the driver would make sure that the run took more than an hour and then collect a meal penalty. Purportedly to end this sort of abuse, paragraph 85(d) of the Black Book was agreed to by Earl (following the infamous strike). This provision still provides:
No employee shall be entitled to meal penalties unless he or she has informed his or her supervisor, no less than one (1) hour prior to a meal penalty being triggered, that a meal period is due. The foregoing shall not apply when, under the circumstances, prior notice is impracticable.
I say “purportedly” because, although I was president of Local 399 at the time, I was excluded from the 1988 negotiations by Earl. He did not allow our attorney, the committee, and I in the final negotiation days to participate. After we took office I asked the AMPTP to provide me with copies of any notes and proposals related to the subject.
In the meantime, indeed probably at the same time the Hollywood unions were putting them in their collective bargaining agreement, the State of California was providing for half-hour meal periods after five (not six) hours of work in all of its wage orders, including Wage Order 12 (the wage order applicable to the motion picture industry). Unfortunately, the wage orders did not provide for a penalty (at least not one going to the employee, only to the state) if the required meal period was not provided. That changed in 2000.
In 2000, all of the wage orders, including Wage Order 12, were changed and section 226.7 was added to the Labor Code. The net effect of these changes was that any employee who didn’t get a meal period after 5 hours of work, including employees in the motion picture industry, was entitled to an extra hour of pay at his base hourly rate.
The studios’ first reaction to these changes was to lobby for an amendment to Wage Order 12 that would allow them to break employees after six, instead of five hours because of industry long hours – provided that there were a penalty phase if not fed after 6 hours. Then, in 2001, Warner Bros. made the feature “Training Day.”
During production, the director decided to use “French Hours” (no meal periods or sit-down meals) pursuant to Paragraph 18(j) of the Black Book and a dispute arose as to whether they were properly invoked. When the IA settled its grievance cheaply, Local 399’s lawyer strongly recommended that I do the same. Because I usually follow my lawyer’s advice, I agreed, but also told Local 399’s lawyer to seek the state penalties, which he did and collected them. The studios were not happy.
Once again, the studios dispatched their lobbyists to Sacramento, this time seeking an amendment to the law that would exempt employees in the motion picture industry who were covered by a collective bargaining agreement like the Black Book from the meal period and penalty provisions of all state law. This I did not think was reasonable, so I dispatched Local 399’s lobbyist to Sacramento to block the legislation. Local 399’s lobbyist won. Now comes the 2004 negotiations.
When the 2004 negotiations began, drivers were receiving meal penalties when they deserved them, except at the end of a production day when, under the past practice, they got meal money instead. But if the IA film crew went into meal penalty at the second meal, so did the on-production drivers.
On the table during the negotiations was a proposal from Local 399 to increase the meal money being paid from $20 to $40. Most of the labor relations representatives in the room (who have never worked on a set) had no idea what meal money was, much less that it was being paid, so Local 399 explained it to them just as I have just now explained it to you. Indeed, Sony used Local 399’s statements about the time spent closing trucks, etc. to defeat its claim that cook drivers, who are never around at wrap, were entitled to meal money simply because they worked on production.
At the same time, management wanted the change in the meal period law that Local 399 was still blocking and a change to another law that many other unions were blocking. So a trade was proposed. If Local 399 would agree to stop blocking the laws and to support them, the producers would increase the meal money by $10 for each law passed. Now that sounded reasonable to me. As I said, drivers were receiving meal penalties when they deserved them, except at the end of a production day when they got meal money instead. And now that meal money would be $40.00. Local 399 agreed to the trade: double the meal money in exchange for the laws. It did not agree to waive all meal penalties in exchange for the increase.
The law that was passed in section 512(d) of the Labor Code and reads as follows:
If an employee in the motion picture industry or the broadcasting industry, as those industries are defined in Industrial Welfare Commission Wage Order Numbers 11 and 12, is covered by a valid collective bargaining agreement that provides for meal periods and includes a monetary remedy if the employee does not receive a meal period required by the agreement, then the terms, conditions, and remedies of the agreement pertaining to meal periods apply in lieu of the applicable provisions pertaining to meal periods of subdivision (a) of this section, Section 226.7, and Industrial Welfare Commission Wage Order Numbers 11 and 12.
Shortly after the first raise in meal money (to $30) went into effect in 2004, I began hearing that the $30 “bought out” all of a driver’s meal penalties. That certainly was not what I had agreed to. I would not trade away an hour’s pay under state law and any penalties drivers were due under the Black Book for $10 or even $20 extra dollars a day.
By April 2006, the talk of “buy-out” had grown so strong that I demanded a meeting with the then head of the AMPTP, the late Nick Counter. Nick, who was an honest man, agreed with me and confirmed this to me in a letter. He also confirmed that if a driver works alongside an IA crew and the IA crew goes into meal penalty, so does the driver. But Nick’s letter apparently hasn’t been good enough for the studios who have not been forthright.
I have now heard that the studios have gotten together and decided that Teamsters will never get meal penalties under the Black Book, either because the meal money buys them out or because drivers never give the one-hour notice purportedly required in all cases by Paragraph 85(d). Indeed, an independent producer complained that he shouldn’t have to pay meal penalties because he called all of the major studios and they told him they never do. But more upsetting to me, I began hearing that drivers who give the notice or who claim a penalty would lose their meal money and/or won’t work the next day. As recently as September 14, 2011, I heard that a UPM told a group of drivers that if any of them claimed a meal penalty, they would be fired. In a nutshell, this bullshit is going to stop.
First, meal money is now a contractual benefit. Indeed, by agreeing to extend meal money to all drivers (including the cook drivers on whose behalf Local 399 lost an arbitration) on the Saturday before our Sunday strike vote, the studios avoided a strike in 2007. It can’t be taken away from you unless you agree to give it up in negotiations, like the ones coming up in 2012. It is now a contractual benefit. I’m in no mood to give it up. Are you?
Second, threatening to replace a driver or replacing a driver if he or she exercises rights under a collective bargaining agreement is an unfair labor practice under Section 8(a) of the National Labor Relations Act. Local 399 is going to begin filing charges with the National Labor Relations Board if this doesn’t stop.
Third, I’ve instructed Business Agent Shanda Laurent to proceed with an arbitration against ABC Studios involving meal periods that is likely to have industry-wide ramifications.
Fourth, if the studios are going to insist on the over application of paragraph 85(d), then I think that a one hour notice should be given to your gang boss before every meal. Now I really do understand how hard it is to find a job in this economy and that my assurances that the Local will file an unfair labor practice charge if you are fired won’t feed your family if you are fired. On the other hand, working for substandard conditions (and not collecting a meal penalty when you are entitled to one is a substandard conditions) is a violation of the Local’s By-Laws and could subject you to fines and penalties. One way out of this dilemma is that there are usually a lot of drivers who go into penalty at the same time. If just one of those drivers calls their Business Agent, the studio won’t know who called and the Business Agent can give the notice on behalf of all drivers, not just the one brave enough to call. I will be expecting calls to the Business Agents every morning on every show shooting in Los Angeles telling them when the drivers ended their non-deductible breakfast so that they can call the UPM five hours later.
Fifth, section 7 of Wage Order 12 requires time cards to show “when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded.” Writing “½” or “lunch” on your time cards does not show when you ended your work period before lunch or when you began your work period after lunch. I will expect all drivers to begin recording their in and out times for all meal periods on their time cards.
FINALLY, THE LOCAL HAS INITIATED OTHER ACTIONS THAT I CANNOT ADDRESS IN THIS PUBLIC ARTICLE. Suffice it to say here that I want for you the meal penalties and meal money as was agreed by the parties back in 2004: $40 meal money and meal penalties when you deserve them (other than that hour or so at wrap when the IA crew went home with no penalties). If I can’t get that, I will try to get you something better.