Not unexpectedly, AI is increasingly affecting the collective bargaining relationship, and the following case discussion will address both legal and practical aspects of the AI impact on bargaining.
In May, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) filed an unfair labor practice (ULP) charge against Llama Productions for its use of artificial intelligence (AI) to re-create the iconic voice of Darth Vader in the video game Fortnite. The union alleged that by unilaterally replacing bargaining unit work with AI-generated voices, the company “failed and refused to bargain in good faith with the union.” Further, the union claimed that unilateral changes were made to its members’ terms and conditions of employment without giving proper notice or the opportunity for good-faith collective bargaining. The union was concerned that using AI in this way replaced the work of voice actors “who previously did the work of matching Darth Vader’s iconic rhythm and tone in video games.”
Although the ULP was withdrawn in July following a contract settlement, there are lessons to be learned from the events leading up to the filing of the charge. The company’s use of the AI-generated Darth Vader Fortnite voice became possible after the company reached an agreement with the family of James Earl Jones, the original voice of Darth Vader. Jones’ family stated that they “felt that the voice of Darth Vader was inseparable from the story of Star Wars.” He “always wanted fans of all ages to continue to experience it.” However, the wishes of Jones and his family, implemented unilaterally by the company, would not necessarily have controlled the outcome of the ULP proceedings.
Rather, the decision would have hinged on the National Labor Relations Board’s interpretation of the bargaining agreements between the parties and how this use of AI is classified. The company was at risk of a violation unless the management rights clause was crystal clear in its favor, and it was at risk of a violation if there were arguable protections stemming from other provisions in the parties’ contract or past practices. The company likely could have avoided the challenge to begin with if it had bargained with the union to impasse before implementing its decision to use an AI-generated voice. While this tactic takes time, it entails less risk and could have resulted in success for the company before the next contract negotiations rolled around.
Although this particular ULP was withdrawn, the overarching truth is clear — AI and other technological advancements are here, and they will have major consequences for the future of your business, including labor relations and negotiations. As the AI Darth Vader voice case demonstrates, technological advances — including AI but also other advances like robotics — may have a major impact on future staffing decisions in a wide variety of industries.
When disputes like this arise, the language in the collective bargaining agreement (CBA) and past practices are of critical importance. The management rights clause generally defines the scope of employers’ rights, such as to what extent AI and other technology may be integrated into the workplace and possibly replace human labor. Other contract clauses may expand upon, or restrict, those management rights, and past practice must be considered.
The authors thank Zach Rohrbaugh, Summer Associate, for his contributions to this article.
