At the same time, Raphaelson felt pressured by producer Bernie Hyman to show more allegiance to the studio than he felt at the time.97 Raphaelson and many others were looking for some kind of balance between declaring war against the studio moguls and kowtowing to their demands. But there was no middle ground. Moreover, time was running out.
In May 1936 the membership gathered to vote on amalgamation. Many writers were bracing for fireworks at the meeting; the Hollywood police department was even summoned in case things got out of hand. Instead, the event turned into what many described as a lovefest. A number of the conservative members called for a vote, not about amalgamation but rather for the principle of amalgamation with the Authors League of America. This resolution, they declared, would allow the Guild to maintain some autonomy as members hammered out the details. The process seemed reasonable, and the membership voted overwhelmingly in favor. Then, in a good faith effort, three liberals on the board stepped down so that the membership could vote in three conservatives.98 The conservatives then explained to the assembled writers that everyone would be released from the prohibition on signing contracts that extended beyond 1938, and with this surprising turn of events, the membership voted to rescind Article XII. Writers were happy, the meeting was declared an overwhelming success, and the membership adjourned to the bar at the Hollywood Athletic Club to celebrate.
But three days later, two of the newly elected conservative members of the board, film lyricist Bert Kalmar and Morrie Ryskind (writer of Animal Crackers and Stage Door), resigned.99 Within days, the staunchly conservative Rupert Hughes, writer of Souls for Sale, declared secession. Within the week, 125 members of the SWG—about a quarter of its membership—swayed by the fears of the conservative writers, walked away. The rug had been pulled out from under the Guild, and within the month, all 125 ex-members had joined the newly formed rival association, the Screen Playwrights.
Screen Playwrights: Artists or Employees?
[I was] not only soliciting members, but fighting off this company union that was springing up in all the studios, which sprang full-armed from the brow of Louis B. Mayer one night. Like Pallas Athena.
—Philip Dunne interviewed by Thomas Stemple, Oral History Collection, American Film Institute, Louis B. Mayer Library, Los Angeles
The exact origin of the Screen Playwrights (SP) is disputed. Some say it was conceived by a group of conservative writers disgruntled with the SWG, namely Mahin, Rogers, McGuinness, and Patterson McNutt, writer of Curly Top. Others say the idea was hatched in Irving Thalberg’s office at MGM.100 Either way, the association’s allegiance was to management. The professional success and plum writing assignments that were awarded to its core members during those ensuing months, as well as the new opportunities that arose for writer-producer or writer-director contracts for the SP members, reinforced the argument that theirs was a sweetheart deal. Ceplair and Englund detail how MGM gave the SP free access to office space, meeting rooms, secretaries, and lawyers. The founding of the SP, they argue, “may not have been a conspiracy, merely a set of coincidences,” but its leaders “acted conspiratorially from the outset.”101 As Dunne said when asked about the SP’s origins: “You say by MGM and we thought by MGM, but we can’t be sure. That’s the way it smelled to us.”102 As became clear over time, the SP had formed well before the May vote on amalgamation and had plotted to gut the union and lure away writers.
The bylaws of this new association clarified its leaders’ intention to attract top storytellers. Membership was by invitation only, and additional requirements defined the group as Hollywood elites. Members had to have worked at one of the major studios for at least two years, or, if they were freelancers, they had to have had at least three pictures produced in the prior two years. Studio heads and members of the SP played off the ambivalence of writers torn between staying with the SWG or joining the SP. As Dore Schary explained, “Contracts were offered. And raises were offered. And suggestions were made that they would lose jobs. There was real coercion. Quite a few fellows caved in under pressure. Quite a few were signed to contracts—new contracts. Some took raises and sold out. Some quit the Guild. A lot of them quit the Guild.”103 Erwin Gelsey, who scripted Flying Down to Rio and Swing Time, called the SP a company union, implying that it was devised by the studios to destroy the SWG. Gelsey remembered that he was regularly pushed to join SP, although he never did.104 The pressure on successful writers to join was intense—and the rewards were great. Among those who joined were P. G. Wodehouse, Grover Jones (writer of Lady and Gent), Howard Green, Howard Estabrook (writer of Cimarron), and Herman Mankiewicz. Declaring the Screen Playwrights the more sensible organization, the studios acted immediately to recognize the legitimacy of the SP. Together, the studio heads and the SP campaigned to destroy the Guild, declaring its remaining members to be leftist radicals.
At the heart of the argument against the SWG was the definition of writers’ labor: were they artists or workers? The SP appealed to the egos of its brethren by declaring all writers working for the studios to be creative artists. The SP regarded with contempt the idea that writers were simply employees. The argument here was not just theoretical, but legal. If writers were creative writers—not employees—then they would not be covered by the Wagner Act, which applied only to workers. The SP leaders thought they still might hold sway and the writers might find it undignified to be part of a union, even if they used the more rarefied term “guild.” The SP was the studios’ best chance to break the Guild. The SP and the producers argued that screenwriters were independent, professional artists in contract with producers as individuals, and, as such, they were ineligible for the protection of collective bargaining as defined by the Wagner Act.105 Wage cuts soon appeared in SWG writers’ contracts when they came up for renewal. There was talk in Variety that studios were considering paychecks of no more than $1,000 a week for the top scribes.106
Paradoxically, the idea of declaring their writers to be artists was the best legal option available to the studios. By elevating their scribes to a seemingly sublime status, the studios also managed to deprive writers of their bargaining power. Previously, producers had been threatened by the notion of a writer as an artist. As Ben Hecht said, “In the court of the movie Owner, none criticized, none doubted. And none dared speak of art. In the Owner’s mind art was a synonym for bankruptcy. An artist was a saboteur to be uprooted as quickly from the company’s pay roll as a Communist with a pamphlet.”107 But now the situation for “artists” was turned completely on its head. Suddenly, the use of the term “artist” became an opportunity for the producers to define themselves as something other than employers of traditional workers. Consequently, a trade union like the Guild would be unnecessary. The SP began ratting out to producers any writers they deemed possible communists; the association even claimed that the Guild was a communist organization. Dudley Nichols said of the SP, “They imagine any writer bold enough to stand up for his reasonable rights must be a radical.”108
Tensions grew between the two groups. As historian Nancy Lynn Schwartz observes, the issue centered not just on unionism but also involved paternalism. To lure writers into the SP, studio heads used words like “betrayal,” “loyalty,” “obligation,” and “family.” Schwartz notes that producers not much older than their writers would patronize them “with claims of, ‘You’re like a son to me,’ [with] their salutations of, ‘Hello, boys,’ and [with] the [shows of] devotion that benevolent father figures like Louis B. Mayer extracted from his darling daughters Anita Loos, Bess Meredyth, and Frances Marion. . . . The susceptibility to and need for paternalism by the young migrants in Hollywood cannot be underestimated.”109 This paternalism had been part of the fabric of the studio system for more than a decade, and its power over writers was significant. Through these tactics and the work of the SP, the Guild’s numbers dwindled to a precious few. Those who stayed in the SWG were angry and prepared for battle against the group that Frances Goodrich called the “Screen
Playrats” and Sam Ornitz, writer of Little Orphan Annie, referred to as “the company-suck cabal.”110 The SWG ceased holding public meetings, its few holdouts driven underground for almost a year. Those who stuck around were among the faithful: Lillian Hellman, John Howard Lawson, and Donald Ogden Stewart. Producers were particularly paranoid about these renegade writers. One of Thalberg’s biographers said of this group: “Seen from the producers’ perspective, what had started out as an attempt to form a writers’ union now seemed more like a communist attempt to infiltrate, subvert, and perhaps ultimately control the motion picture industry.”111 Members of the SWG had their phones tapped (they were never sure by whom), and their employers considered them leftist, communists, and Reds.112 Still, they held on—in part because they believed in the Guild, but also because they were all successful writers. And producers, no matter how much they hated them as Guild members, needed their scripts.
On April 12, 1937, the US Supreme Court upheld the Wagner Act by a vote of five to four. Within a week of the ruling, the Screen Playwrights and the Producers’ Association signed a five-year contract. Producers also signed a contract with the Screen Actors Guild guaranteeing a ten-year closed shop. These contracts amounted to a shrewd attempt to cut the SWG out of the conversation once and for all. If there was going to be a union, then the studios would put their own in place, but it would be difficult for the SWG to prove that the SP was a company union. Instead, the SWG petitioned the National Labor Relations Board to recognize it as the sole organization authorized to represent writers as workers in negotiations with their employers, the studios. As part of this plan, the SWG asked the Authors League for autonomy, which the League granted. The Guild then began working with the Screen Actors Guild and the Screen Directors Guild (later the Directors Guild of America) to form the Inter-Talent Council, which encouraged mutual recognition and promised mutual protection from a rumored idea in Hollywood that studios wanted to place all workers under the jurisdiction of IATSE.113 At the time, only the SAG had been recognized by the studios, which made it somewhat wary of the partnership. But the guilds all saw that there was power in affiliation with other like-minded, above-the-line creatives in Hollywood. In a special election, Dudley Nichols was elected president of the SWG and promptly headed off to Washington to encourage the NLRB to resolve the dispute over which organization should be the legal bargaining agent for Hollywood writers.
In June, the SWG held a public meeting, and members planned a vocal counteroffensive to the SP.114 Slowly, members lured colleagues back to the SWG, until it had a near-complete majority again. The NLRB hearings—held to study whether Hollywood’s writers were considered employees under the Wagner Act—took the better part of a year. It was a tough and bitter battle. The lawyer for the SWG was Leonard S. Janofsky, who had previously served as an attorney for the NLRB.115 In turn, the studios came to the table with nineteen attorneys.116 Screenwriter Julius Epstein remembered being called to the hearing. The trial lawyers asked him, “How did they coerce you? How did they try to get you to vote against—not to join the Guild?” Epstein recalled, “They had the biggest lawyer in California, Leo McCarthy, and he was doing the crossexamination. I had seventy zingers prepared to wow them. I get on the trial. I said ‘Walter MacEwen [executive assistant to Warner Bros. producer Hal B. Wallis] called me into his office and said, ‘You don’t want to join the Guild.’ He said, ‘Witness is excused.’ And I was left with seventy zingers.”117
According to the findings released by the NLRB in June 1938, 70 percent of all motion pictures shown globally at the time were produced in the United States, and 90 percent of these were made in Los Angeles County. Writers were workers with no control of the final product made by their industry—and their industry engaged in interstate commerce. For these reasons, screenwriters were entitled to protection under the Wagner Act. The NLRB declared that the five-year contract between the SP and the producers could not preclude collective bargaining and that the collective bargaining agent for Hollywood writers still needed to be decided. Writers had three choices: they could to be represented by the Screen Playwrights, by the Screen Writers Guild, or by no official organization whatsoever. The Labor Board directed that an election be held within twenty-five days.118
The NLRB decision resonated beyond the writers’ right to unionize. The board set a precedent by laying out policy for all labor guilds yet to be recognized by the studios. Leo Rosten, an academic who also wrote Sleep, My Love, affirmed the importance of the NLRB hearing and its findings: “The obstinacy and indiscretion with which the producers opposed Hollywood writers in their fight for recognition, basic working conditions, and a code of fair practices, is one of the less flattering commentaries on the men who control movie production. The National Labor Relations Board changed that. . . . In their dealings with the writers . . . the producers demonstrated that they had no workable concept of employee relations.”119 Rosten’s scathing report made clear to all who read it that writers, though often well paid for their work, were treated appallingly when they dared to negotiate in good faith with the studios. It was clear to the NLRB that screenwriters were workers and thus employees under federal law. Now the writers had to choose a bargaining agent.
The NLRB invited all professional screenwriters in Hollywood to cast their votes. The Guild had 615 members and the SP had 158, but the producers did everything they could to sabotage the voting process.120 Studio heads issued an edict: writers could not vote on studio property. With strict rules and anti-union sentiment high on the lots, social events and drinking parties became the best places where writers sympathetic to the union could hold conversations with undecided writers over the course of the month leading up to the election. Frances Goodrich tells the story of luring writers up to Dashiell Hammett’s room at the Beverly Wilshire Hotel with the promise of cocktails:
Everyone was coming up there and ordering a drink, getting people to come in there and talk, getting them to join the SWG. Lillian Hellman came out of a room where she’d been talking to a writer named Talbot Jennings . . . and said, “Well if I get Talbot Jennings to join this thing, somebody’s got to pay for the abortion.” Albert [Hackett] added, “Dottie Parker was in another room talking to a writer named Everett Freeman, trying to get him to join the guild, and he said he didn’t think any creative writer should belong to a union. . . . And Dottie simply could not stand that and she lost her patience. “That sonofobitch, telling me that he’s a creative writer! If he’s a creative writer, then I’m [Queen] Marie of Romania.”121
Studios refused to provide lists of their employed writers, making it difficult to assess a potential member’s eligibility. Writers sympathetic to the SWG petitioned their fellow writers at each of the studios to vote for the Guild. They even appealed for support from the Inter-Talent Council. As announced in Variety, Robert Montgomery, president of SAG, called on writers to vote in favor of the SWG: “It is time for every writer to choose his side. We have no sympathy for fence-sitters. The issue is clear. No vote at all is just as bad as a vote for the Screen Playwrights. Either is a stab in the back, not only to writers but all creative talent. The Screen Actors Guild expects the great body of writers to do its simple duty—vote overwhelmingly for the Screen Writers Guild.”122 Montgomery’s position might seem strange, given the actor’s enthusiastic support of the investigations of the House Un-American Activities Committee only nine years later; but at the time, Montgomery and his union stood behind the more liberal-minded SWG. Finally, in the last days of June 1938, by a vote of 267 to 57 and with a majority of votes at every studio, the SWG won the election. The NLRB certified the election in August, and the vote was official. The SWG had won the right to bargain collectively for American screenwriters. Now the Guild had to secure a contract.
The Long Road to a First Contract
[Louis B. Mayer said,] “It needs more comedy. I want you to inject comedy in the comedy scenes.” For the Lion, the Strawman, and the Tin Man. Which I did. A week o
r so did it, adding laughs. As he told me then, I would get no screen credit, because I was not writing enough footage. But it didn’t matter. I was getting paid, that was the main thing.
—The Writer Speaks: Irving Brecher (writer of Go West and Meet Me in St. Louis; script doctor for The Wizard of Oz), 2007
Two years after the screenwriters voted in favor of it, the studios finally declared Hollywood a closed shop for them. The SWG wanted to guarantee that at least 80 percent of writing jobs would be given to its members, but producers demanded consideration for the SP members.123 By September 1938, the SWG had drafted a contract. It asked for a prohibition on switching a writer off a project midstream, an assurance that writing credits (“screenplay by” and “original story by”) would be determined by the Guild, a threeyear limit on contracts between writers and producers, and Guild control of contract dispute arbitration.
The producers flatly refused this proposal. The writers walked out and petitioned the NLRB for help. They soon realized that they would never get a fair contract until all ties between the studios and the now virtually defunct SP (officially disbanded in September 1939) were severed. By this time, Hollywood was a union town, from the above-the-line creative workers all the way to the below-the-line craftspeople. The Guild and the studios knew it was only a matter of time before a contract would be signed with the SWG. The contract with the Screen Playwrights was finally canceled in 1940.124 When regular bargaining began, the primary goal—beyond simple recognition of the SWG as the writers’ bargaining agent—was to set working conditions, wages, and the reservation of rights on material for independent writers (the minimum basic agreement). The Guild was fighting for long-term employees as well as independent contractors, many of whom felt disenfranchised.125 The Guild believed a two-tiered contract for employees and independent writers was essential to securing the rights of all professional screenwriters.
The Writers: A History of American Screenwriters and Their Guild Page 8