“Stay Woke” with a Lesson from “Wake”



In the wake of Judge Rafael A. Ongkeko’s ruling upholding an arbitration award which granted actor Bruce Willis millions in unpaid compensation against BD&P Company, LLC and producer Michael Benaroya following the failed production of the film “Wake”, the legal issue of unpaid wages is on the big screen at last.

So grab your popcorn, sit back, enjoy the following arbitration awards (brought to you by Bloomberg BNA), and “stay woke” when it comes to your compensation.

Look Who’s Arbitrating Too

  • Arbitrator Daniel F. Brent in 149993-AAA, 2011 LA Supp. 149993, held that a New York City-based opera theater company violated its collective-bargaining contract when it failed to pay employees for a scheduled rehearsal which it cancelled with less than seven days notice. The relevant contract provision stated “[a]t least seven (7) days notice of cancellation of any service must be given or full payment is immediately due.” Concluding that this provision “clearly and unambiguously” obligated the company to pay all contracted musicians for the canceled rehearsal service, Brent ordered the company to compensate the aggrieved employees in the amount of $2,943.54 in unpaid wages and work dues.
  • Arbitrator David L. Gregory in Long Island College Hospital, 121 LA 489, determined that a hospital did not violate its collective-bargaining contract when it refused to apply the requirement that “temporary employees” become union members to agency nurses who worked at the hospital. Denying the grievance, Gregory also denied the union’s claim for unpaid wages. Gregory found that the nurses were not in the bargaining unit and not “employees” of the hospital inasmuch as the nurses were employed by third-party agencies rather than the hospital and the contract’s “extensive, well-defined litany of employee” nurse classifications failed to expressly include third-party agency nurses.
  • Arbitrator Dudley E. Whiting in Oscar Joseph Stores, Inc., 41 LA 567, ruled in favor of the union where the collective-bargaining contract obligated the employer to pay wage increases on a specific date, but the employer failed to do so due to financial difficulties. Whiting noted that “[a]n arbitrator's authority to decide grievances does not empower him to modify the contract under which they arise.” Whiting refused to allow the employer to initiate increases at a later date and to pay retroactive increases in installments, as these proposed remedies would effectively modify the parties’ bargained-for contract. The award of unpaid wages also included a six percent interest on same “from the date due to the date paid.

Try Hard or “Die Hard”

Based on data obtained from Bloomberg BNA’s Arbitration Award Navigator, of the 873 arbitration awards involving wages, employers prevailed in 46.2% of cases, unions prevailed in 41.5% of cases, individuals prevailed in 0.6% of cases, and 11.8% of cases involved mixed prevailing parties.

Accordingly, despite Bruce Willis’s success in walking away as the winner, victorious against all odds much like McClane (spoiler alert!), arbitrators generally rule for employers in compensation-related cases. Because of this, the grieving party—whether it be the union or the individual—must try hard or “die hard” in asserting a claim for unpaid compensation in arbitration.


The Arbitral Sixth Sense

There’s no formula for calculating the outcome of a legal matter ahead of time. Sometimes your case possesses that je ne sais quoi to prevail in arbitration or in court, and sometimes it doesn’t. Parties are encouraged to craft collective-bargaining contracts that address the multitude of potential compensation issues that may arise—and to promote the policies enacted therein.

Whether you work in Hollywood, or in your hometown far from the city of stars, the contract is a product of your creation, so picture the possibilities, and think big picture.

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