President’s Report: Special Situations Panel Says No to “All Shook Up”

802 Wins First Decision Under New Broadway Contract

Volume CIV, No. 11November, 2004

David Lennon


First implemented in the 1993 contract between Local 802 and the League of American Theatres and Producers, the Special Situations exception allows shows that qualify — under certain criteria — to utilize fewer than the agreed upon minimum for the theatre in which the show is scheduled to appear.

During the 2003 Broadway negotiations, this clause was the subject of much discussion, negotiation and controversy. In the end, the language was significantly modified in several ways.

Prior to the new agreement, producers requesting Special Situation status for an upcoming show were required to submit the request initially to the Local 802 Executive Board. The board could then approve the request, as it did many times, if it felt that the reasons for the reduction in the minimum fell within the criteria required by the contract.

If the board did not agree that the request was valid, the matter would be submitted to a panel comprised of two members of the union, two members of the League, and three “neutrals.”

Although the Executive Board often granted outright what it believed to be valid requests, the League fought very hard to eliminate that step during the 2003 negotiations. The concept of asking the union for permission was “philosophically” objectionable to the League.

As a result, this step was removed from the contract and the new language calls for the Special Situations panel to convene each and every time a producer makes such a request.

The criteria under which a production could qualify for Special Situation status was also modified. In part, that criteria now states:

“The Committee shall decide the issue based primarily on artistic considerations. If a production meets the criteria set forth in any of the following categories it shall qualify as a Special Situation and shall be permitted to perform with the requested smaller orchestra. The criteria for determining whether a production calls for a smaller orchestra are: (i) the musical concept expressed by the composer and/or orchestrator; (ii) whether the production is of a definable musical genre different from a traditional Broadway musical.”


A further modification to the Special Situations clause involved a total revamping of the list of “neutrals” designated to serve on Special Situations Committees.

In the past, Paul Gemignani, Wally Harper, Luther Henderson, Danny Troob, Jonathan Tunick and Harold Wheeler were named as the designated neutrals. These individuals, all union members, were selected to serve on the panels based on their musical expertise and intimate knowledge of Broadway musicals.

In the 2003 negotiations, the League insisted on replacing all of them with individuals whom they believed would hold no particular bias toward the union. The procedure for the selection of neutrals in the new agreement allowed both sides to propose a list of neutrals subject to the agreement of the other side.

Since the ratification of the Broadway agreement, the League proposed nine neutrals, five of whom were accepted by Local 802. Local 802 proposed three neutrals, only one of whom was accepted by the League.

Additional mutually agreed upon neutral persons may be added to this list. Both the Broadway Theatre Committee and the Local 802 Executive Board have been involved in the evaluation of any proposed neutrals.


On June 8, Local 802 received the initial request for panel consideration of Special Situation Status for “All Shook Up” from producers Jonathan Pollard and Beth Williams of Clear Channel Theatrical.

A musical based on the songs of Elvis Presley, “All Shook Up” had just concluded a four-week run at Goodspeed-at Chester. The show is scheduled to open in December at the Cadillac Palace Theatre in Chicago, and on Broadway in March 2005.

Originally slated to open at the Marquis Theatre, where the minimum orchestra size is 19, a change in venue to the Palace Theatre occurred shortly after the request was made. This did not impact the producers’ request since the minimum at the Palace is 18 and the producers were proposing an orchestra size of 15.

The basis of the producers’ request was stated in their letter to the union as follows:

“It has been the intention of the creative team as they have been developing this new musical over the last couple of years to create a sound for the show that emulates a typical early-Elvis-type “band”; a sound that is not consistent with the traditional “Broadway” sound.”


On Sept. 30, the Special Situations Committee convened to hear the first case under the new terms of the Broadway agreement.

The neutrals serving on the Special Situations Committee selected to adjudicate the producers’ request for “All Shook Up” were Judith Daykin, Jane Hermann and Joseph Melillo. Executive Board members Jack Gale and Maura Giannini represented 802 on the panel. Paul Libin and Alicia Parker represented the League.


Another first in these proceedings was the far more prominent role taken by the League in the hearing itself. In the past, the producers making the request presented their own case. This time, the League chose to have legal counsel present to argue the case on the producers’ behalf.

As expected, given the new makeup of the panel, the League first presented its version of the parties’ negotiating history in regards to Special Situations.

They emphasized the point that no written words between the parties were arrived at arbitrarily.

Much focus was also given to the newly modified language concerning the “orchestrator’s concept.” The League argued that a show would qualify for Special Situations simply by virtue of the orchestrator and/or composer stating, “I want this to be performed with this number of musicians,” a position with which the union totally disagreed. They finally conceded that the “concept” had to be reasonable and expressed by the music.

But most disturbing was the League’s presentation to the panel of the request for “All Shook Up” itself.

In a nutshell, the League proceeded to present an entirely new version of why the producers were requesting Special Situation status for this show. Not only was there no mention of the creative team’s intention to “emulate a typical early-Elvis type Band,” as stated in the producers’ initial request, it was quickly evident that the League did not wish to share that letter of request with the panel.

The “concept” that was put forward by the League was expressed by the creative team. Now it was their goal to achieve a “gospel” sound to the show.

Although the union did not believe that the new information presented at the hearing by the League was any more valid than the original concept, needless to say, the union was thrown into somewhat of a quandary given the fact that we had prepared our case based on the producers’ claims outlined in their written request. Immediately following the League’s presentation, Local 802 called for a caucus.


As in any proceeding, a party may not selectively submit one theory of the case and then withdraw it, change it, or — worse yet — withhold it. The union was not about to allow the League to present a new set of “facts,” which we believed was merely an attempt to distance itself from its initial request when that “concept” didn’t quite fit the contractually required criteria for Special Situation status.

First, we submitted the producers’ initial letter of request to the panel to ensure that they had all the information submitted to Local 802 by the League.

Second, we reminded the panel that the League had just pointed out that the parties did not choose their words arbitrarily, and that virtually every word was the subject of intense negotiation. It was the union’s position that the League could therefore only take one of two positions in regards to that letter. Either the expressed “concept” therein was false, or they stood behind the position espoused in that letter which brought the panel together in the first place and the new “concept” was invalid. Either way, we argued the application must be denied.

It was not the union’s position that one version should be considered over another. Rather, all evidence submitted by the League needed to be considered in its totality and rejected.

Strangely, both the music director and the orchestrator insisted that their concept had not changed since the producers’ June 8th letter to the union.

The union proceeded to make its case. Upon receipt of the request, we first began to investigate whether or not the reduction in orchestra size was required under the terms of the contract.

After obtaining a list of the show’s musical numbers, it soon became evident that the proposed instrumentation of 15 — two keyboards; two guitars; bass; drums; percussion; three trumpets; one trombone and four reeds — did not satisfy the criteria for Special Situation status under the contract.

First, the musical numbers of the show spanned the entire career of Elvis Presley, way beyond his “early” years. That fact is significant in that the instrumentation utilized by Elvis for many of the musical numbers far exceeded the Palace Theatre’s minimum of 18.

Second, we were able to demonstrate that the instrumentation utilized by Elvis in any and all performance mediums — Live Performances/Concerts, Television Appearances, Film & Soundtracks and Recordings — throughout his entire career at no time resembled, let alone emulated, as the producers claimed, a “typical Elvis band,” early or otherwise.

Third, it was important to note that if the musical numbers of the show were solely derived from Elvis’ early years and if the proposed instrumentation was truly indicative of the instrumentation utilized by Elvis in his early years — guitars, bass, drums and keyboard, and the request was for far less than 15 — the request would have at least been consistent with the “early Elvis” sound.

Contrary to the League’s frequent assertions that 802 has an interest only in preserving jobs, we have always maintained, and indeed demonstrated, that it is incumbent upon the union to recognize and accept valid Special Situation requests in order to preserve the artistic integrity of Broadway.


Finally, testimony was provided by Harold Bradley, vice president of the AFM and president of Local 257 (Nashville) , who was an actual member of Elvis Presley’s band.

Bradley’s first-hand account of his experiences playing with and for Elvis dispelled any claims that a typical Elvis band of any kind, early, gospel or otherwise, required no more than 15 musicians.

Contrary to the League’s assertions, in order to qualify for Special Situation status, a show’s producer must demonstrate that they are requesting to use fewer musicians than the mutually agreed upon minimum not merely because they wish to. Nor does the show qualify if they have found a way to orchestrate for fewer than the mutually agreed upon minimum.

In order to qualify as a Special Situation, they must prove to the panel’s satisfaction that the show requires fewer than the mutually agreed upon minimum, and that utilizing a larger orchestra would do damage to the artistic concept.

The fact is that, contrary to the producers’ claim, this show did not qualify under any interpretation to the language.


In its ruling, the panel agreed with the union and stated:

“The majority of the Committee had difficulty reconciling the stated desire of the orchestrator with respect to his view of the orchestration as requested and the written request of the producers, the oral testimony and the written rebuttal of the orchestrator in this case.

The majority opinion of the Committee found that the stated concept for this musical was not proven sufficiently to require a reduction in the minimum from that which comprises a conventional Broadway orchestra.”


One final and important modification to the Special Situations clause is the addition of either party’s right to challenge the panel’s decision in arbitration. The League has chosen to appeal this decision to an arbitrator. The parties agreed to this provision only in the event of some gross procedural error. However, the League seems determined to question the very procedure it fought so hard to modify and the wisdom of the panel’s decision, a panel whom they will most certainly see again in future cases. Local 802 believes that the panel’s decision will ultimately be upheld in arbitration. We will keep you posted.