Efforts by Record Companies, the American Federation of Musicians, and Truman's Cabinet to Resolve the 1948 Recording Ban
Pinta, Emil R., ARSC Journal
On 14 December 1948, The New York Times announced the end of an 111/2-month strike against recording companies by the American Federation of Musicians (AFM), led by its president, James Caesar Petrillo. (1) The deciding factor for the recording ban was a finding that the AFM welfare fund, paid for by royalties from record companies, was in violation of the Taft-Hartley Labor Act. Major record companies affected by the ban included Capitol, Columbia, Decca, M-G-M, Mercury, and RCA Victor, but the ban affected contracts with over 770 recording and transcription companies. (2) It ended when the U.S. secretary of labor and attorney general held that a modified version of the fund did not violate Taft-Hartley. (3)
The 1948 recording ban cannot be understood apart from the Taft-Hartley Act. While there are detailed histories of the 1948 AFM strike, (4) none examine the strike in the context of the social and political pressures that led to the passage of Taft-Hartley; nor do they provide details of the maneuvers by Truman's cabinet, the AFM and record companies to bring the fund into compliance with the act. (5)
The Taft-Hartley Act
The antecedents for Taft-Hartley began with the Great Depression and President Roosevelt's New Deal policies. One intention of the New Deal was to benefit workers and the economy by stimulating the organization of labor. (6) Labor laws drafted in the 1930s were largely designed to protect workers and prevent abusive tactics by employers to prevent unionization. (7) In 1935, Congress passed The National Labor Relations Act, commonly called the Wagner Act--a law with sweeping labor provisions. (8) The Wagner Act took a more pro-labor stance than previous laws and encouraged the organization of unions through its administrative agency, the National Labor Relations Board (NLRB). The Wagner Act enumerated a list of unfair labor practices by employers to discourage or prevent unionization. (9)
Wage freezes to head off inflation were put into practice during World War II. One consequence of wage freezes was the proliferation of non-wage benefit packages to keep and attract workers. These included union welfare funds set up through agreements between labor and management for pensions and health and life insurance. The gradual proliferation of large welfare funds under the control of union leaders, who had little or no accountability, concerned government officials. (10)
Following the end of World War II there was a sharp jump in unemployment as war contracts were cancelled and soldiers returned home. Wage freezes and price controls expired at end of June 1946, and were rapidly followed by inflation of as much as 25% in some basic commodities. (11) The resulting economic upheaval produced a flurry of strikes nationwide. In the 12 months following the war, there were 4,630 strikes involving 5 million workers. Citywide strikes shut down several industrialized cities, including Rochester, NY, Stamford, Conn., and Lancaster, PA. (12)
The result was a shift in public sentiment against labor and union leaders. The public became weary and irritated by the extreme number of strikes. Letters arrived at the White House referring to "union tyrants" and demanding tighter restrictions on unions and labor bosses. (13) Representative Fred A. Hartley, Jr., one of the authors of Taft-Hartley, wrote: "The positions of labor and management were reversed ... Labor was in the saddle and riding hard." In his opinion, labor leaders had become equal in power to the elected heads of government and had forgotten the reasons why they had been given authority. "So," Hartley explained, "we wrote the Taft-Hartley Act." (14)
The Taft-Hartley Act, officially the Labor-Management Relations Act of 1947, (15) was cosponsored by two Republican members of Congress: Representative Hartley of New Jersey and Senator Robert A. Taft of Ohio. It was passed by both chambers of Congress and sent to President Truman on 9 June 1947. (16)
In addition to limiting other practices by labor, Taft-Hartley addressed union welfare funds that had proliferated during and after the war. Congress was concerned that corrupt labor bosses might misuse these funds for their own purposes. Section 302 (c) (5) placed restrictions on these funds regarding their purpose, the recipients of such funds, auditing and management of funds, and required such funds to be "equally represented" by employees and employers in their administration. Unlike other sections of Taft-Hartley, violation of Section 302 was a crime with a maximum penalty of $10,000 or imprisonment for one year, or both. Criminal charges applied to both employers and union representatives of employees.
The Taft-Hartley Act was quickly attacked by labor who called it a "slave labor bill." Organized labor began a campaign calling for a veto by Truman. Petrillo wired Truman that the AFM had adopted a resolution calling for veto of the bill that would make "slaves" of workers. (17) (Figure 1)
Truman vetoed the Taft-Hartley bill on 20 June 1947. (18) The House overrode the President's veto with little discussion. During the Senate deliberations, there was no mention of the welfare-fund clause, although other controversial aspects were debated. On 23 June 1947, the Senate overrode the President's veto and the bill became law. (19)
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Background to the 1948 Recording Ban
The American Federation of Musicians began in 1896 as an affiliate of the American Federation of Labor. In 1940 James Caesar Petrillo (1892-1984) was elected the third president of the AFM, replacing Joseph Nicholas Weber, who had occupied this position for 40 years. (20)
Petrillo had been elected president of Chicago Local 10 of the AFM in 1922 and remained president of his local union for 40 years. He developed a reputation as a tough-talking, brash, and often controversial leader. His negotiating tactics were compared to those of a barroom fighter. However, even his critics admitted he was honest and could be trusted. (21)
In February 1936, Petrillo announced that the Chicago local would not allow its musicians to make recordings without permission of its executive board. In doing so, Petrillo was fighting the displacement of musicians' jobs by recorded music--what he termed "canned music" and "dehumanizing entertainment." (22) His opinion was at odds with that of his predecessor, Weber, who in 1926 stated: "There is absolutely nothing to fear from radio ... radio will have the same result as the phonograph ... it will ultimately increase the employment of musicians." (23)
Petrillo realized that the strike would have little effect, and that records could easily be made outside the jurisdiction of Chicago Local 10, but he was making a point. It was a point that demonstrated his aggressive stance against recording companies and helped win votes in 1940 for his unanimous election as president of the International AFM of the U.S. and Canada. He remained president until 1958, overlapping years when he was also president of his local Chicago union. (24)
When Petrillo assumed leadership of the international organization, the membership numbered 134,000. By the end of 1948 the membership had increased to 237,000, and Petrillo became the highest paid union leader in the U.S. (25) Two goals he had as AFM president were to unionize the Boston Symphony Orchestra, the last major U.S. orchestra not in the union, which he accomplished in 1942, and to gain union support for a recording ban. (26)
Petrillo waged war against all forms of canned music that replaced musicians' jobs. From Petrillo's perspective, it was an example of the technological displacement of labor that began in the 1850s when the first steam calliope had replaced musicians aboard a Mississippi steamboat. (27) The technology in Petrillo's time included records and "piped in music" over telephone lines (via transcriptions such as Muzak) that replaced musicians in restaurants; jukeboxes in bars and saloons that replaced musicians in these establishments; records and transcriptions broadcast over radio that replaced station orchestras; and movie soundtracks that replaced theater musicians. (Figure 2)
Of particular significance was the replacement of musicians in movie theaters by the "talkies." While most people today probably visualize a single piano player or organist providing music for a silent film, full orchestras were often employed in the movie palaces of large cities. (28) Petrillo estimated that within several years after the introduction of sound movies, 18,000 musicians lost their jobs. (29) Moreover, unlike many other jobs for musicians, movie theaters provided regular, steady employment in locations close to musicians' homes. (30)
The broadcasting of records was another thorny issue. Radio stations, which had formerly employed full-time musicians, began substituting phonograph records and transcriptions for live performers. By the early 1940s, more than one-half of the nation's radio stations employed no musicians at all, using recorded music for their programming. (31)
It seemed to Petrillo that some compensation should be paid to musicians for creating a product that was now causing their own demise. Musicians who make records, unlike composers and lyricists, have no copyright protection for performances of their works broadcast over traditional radio. (32) It irritated Petrillo that ASCAP (American Society of Composers, Authors & Publishers) was entitled to royalties for music broadcast by radio stations, while musicians received no royalties. (33)
Petrillo handled this problem by coercing radio stations, under threat of strike, to hire "standby" orchestras and AFM musicians as "pancake turners" and disc jockeys. (34) The practice of requiring some radio stations to keep musicians on hand, who did not actually play, particularly angered members of Congress. In 1946 Congress passed the Lea Act, commonly referred to as the "anti-Petrillo act," outlawing coercive practices by unions that required broadcast stations to employ in excess of the number of employees needed to perform services, and to pay for services that were not performed. (35)
In June 1942, Petrillo announced a strike against recording companies beginning on 1 August. (36) In calling the recording ban, the AFM bypassed points of play, i.e., broadcast stations, jukeboxes and restaurants, and went straight to the points of origin of recorded music, i.e., the recording studios. Petrillo eventually demanded royalties to be paid by record and transcription companies for each recording that would go into a union welfare fund for unemployed musicians.
The AFM recording ban of 1942 lasted 27 months for RCA and Columbia, ending in November 1944. Decca signed earlier agreements with the AFM in September 1943. Over one hundred other record companies were also signatories on contracts that ended the strike. Contracts were set to expire at the beginning of 1948. (37)
[FIGURE 2 OMITTED]
To end the ban, record and transcription companies agreed to pay royalties on a sliding scale of between one-quarter of a cent to 5 cents for each record made with a selling price of under $2; and 2.5% of the selling price for records above this amount. Transcription royalties amounted to 3% of gross revenues. (38) Royalties went into the union welfare fund, the Recording and Transcription Fund. Petrillo called the settlement "the greatest victory for a labor organization in the history of the labor movement." (39) The Recording and Transcription Fund was used primarily to pay unemployed musicians for performances and concerts that were free to the public. Record royalties amounted to $1.7 million in 1946, and $2 million in 1947. (40)
In 1947 the union fund paid for over 10,000 admission-free performances throughout the U.S. and Canada, including over 2,000 performances in veterans hospitals, over 2,000 teen-age dances (said "to combat juvenile delinquency") and numerous concerts in public schools, recruiting armories, parades and other venues. (41) In a testimonial to the benefits of the fund, the recreational director of a large hospital on New York's Welfare Island (now Roosevelt Island) wrote that the "Radio and Transcription Petrillo Fund" enabled a full orchestra to gave concerts twice a month at the hospital, and that twice a week strolling musicians provided music to bedridden patients. She said, "They have filled the hall with music instead of gloom." (42)
With the passage of Taft-Hartley in June 1947, all activities funded by the Recording and Transcription Fund were put in jeopardy.
The 1948 AFM Recording Ban
The AFM Recording & Transcription Fund violated several provisions of Taft-Hartley. Section 302(c)(5), referred to as "health and welfare fund" provisions, specified that these funds had to be "for the sole and exclusive benefits of the employees of such employers [contributing to the funds]" and that "employees and employers are equally represented in the administration of such fund." Thus, only those musicians responsible for contributions to the AFM fund, i.e., the recording musicians, could receive payments from the fund. Importantly, the AFM fund had to be under joint control of the union and recording companies.
Other restrictions placed on funds by Section 302(c)(5) were a written agreement between employer and employees, placement of funds into a separate trust, appointment of an impartial umpire to settle disputes between employers and employees, and an annual audit. Sections 302 (a) and (b) made it illegal for employers to pay money to any union representative of employees, and for representatives to accept money, unless provisions of Section 302(c)(5) were met.
Few AFM musicians were involved in making records. In 1948, no AFM musicians were permanently employed by recording companies. Of the 225,000 musicians with the AFM in February 1948, only about 3% were regularly involved in recording. (43) Therefore, the great majority of AFM musicians receiving benefits from the fund were not those responsible for contributions to the fund.
In October 1947, after Petrillo became aware that provisions of Taft-Hartley would outlaw the union fund, he vowed that no AFM musician would ever record again. (44) Subsequently, a second strike against recording companies began 1 January 1948 when contracts with recording companies expired. (45)
In the International Musician, the official journal of the AFM, Petrillo enumerated his reasons for calling the 1948 recording ban. These included loss of jobs by musicians due to various forms of "canned" music--as in the 1942-1944 ban--but he left little doubt that the critical factor was criminalization of the Recording and Transcription Fund. Petrillo said, "[I]t is now a criminal offense ... for any employer to pay, or any union to receive, monies of this kind." (46) Other contemporary news articles identified the passage of Taft-Hartley as the deciding factor for the ban. (47)
Petrillo now waged war not only against recording companies but against Congress and the Taft-Hartley Act. The AFM's position was that Congress had interfered with the "harmonious arrangements" it had with recording companies by making the heads of the union and recording companies subject to fine and imprisonment. (48) The record companies also had been agreeable to continuing the royalty system established at the end of 1944. (49) At the June 1948 AFM convention, resolutions were passed to campaign for repeal of the Taft-Hartley Act and to defeat members of Congress who voted in favor of the law. (50) In October 1948, one month before elections, International Musician posted the names of the members of Congress who had voted to override the President's veto.
Petrillo complained that since its inception, the union fund was the object of unfair propaganda by members of industry, who attacked it as being a "slush fund" to pay AFM officers. Petrillo vehemently denied this accusation, stating that "not one penny has been paid to an officer of the Federation," and that proof of this was on file in the audits of the fund available in major public libraries. (51)
Petrillo accused broadcast stations and newspapers of a systematic campaign of "vilification." (52) The AFM pointed to references to Petrillo in the media as a "despot, "czar," "tyrant," and even a "public enemy." (53) TIME magazine, in an issue that featured Petrillo on its cover and a foot pressing down a stack of 78-rpm records, sarcastically called him the "grand sachem, lord paramount and international president" of the AFM. (54)
There were several possible tactics to get around the requirement that only the employees of those employers contributing to the fund could receive benefits. The Times reported that the union was working on a plan to have all employers of musicians contribute token amounts to the fund, therefore making all AFM musicians eligible for fund payments. (55) This plan, an obvious attempt to circumvent the law, never came to fruition.
As the 1948 ban wore on, it was reported that Petrillo would end the ban if some method could be found to legalize payment into the union fund. (56) There was a suggestion that the fund could become a "public foundation" similar to the United Mine Workers welfare fund. Another suggestion was that the record companies could provide a salary increase to recording musicians equivalent to royalty revenues, who would then pass these on to the union fund, eliminating the employer-employee conflict. Petrillo stated that he was opposed to any plan where the AFM would be a bank through which funds passed. (57)
In October 1947, when the 1948 ban was announced, recording companies had settled in for another shellac war. Companies intensified recording sessions to build up a stockpile of records. Frank Sinatra announced that he expected to increase the number of his recording sessions and to have a six-year stockpile by year's end. (58) However, finding orchestral accompaniments for vocalists and additional time in recording studios became difficult as companies scrambled to build a backlog of masters. (59)
Vocalists were not members of the AFM, so they continued to make records accompanied by choral groups and small vocal ensembles--as they did in the previous ban. (60) During both recording bans, record companies pressed reissues and--to the joy of collectors - some records and "takes" not previously released. Because Petrillo did not regard the harmonica as a musical instrument, harmonica players were not members of the AFM, and records were made during both bans with harmonica accompaniments. Petrillo changed his opinion regarding the harmonica in October 1948, after which harmonica players were required to be union members. (61)
It was expected that the sale of jazz and popular records would be most affected by the ban because their emphasis was on new styles of music and new performers. Nearly 70% of discs were in this category. Classical music would be least affected. Larger record companies had an advantage because they had unreleased classical albums and had connections with musical organizations overseas to import classical records. (62) Some companies, such as Decca, which also owned the World Broadcasting transcription company, were able to release previously recorded popular singles taken from their transcription repertoire. (63)
Gradually, the ban began to take its toll on record companies and related businesses, including pressing plants and sellers. In June 1948 a plant that pressed Columbia records suspended operations in Ohio "because people just aren't buying records anymore." (64) In the same month Decca closed two pressing plants because of a slump in record sales. (65) In December, TIME reported record sales had declined by 40% from the previous year. (66)
It was also a matter of concern for both the AFM and the major record companies that "bootleg" records, i.e., records by non-union musicians or by union musicians who worked anonymously, were being manufactured by smaller record companies. Union musicians who disagreed with the ban offered to break ranks and record against union rules, and some booking agents arranged for non-union bands to make recordings. (67) There was also an influx of records manufactured in other countries, and some vocalists went abroad to make recordings. In some instances, voice tracks made by vocalists in the U.S. were added to instrumental tracks recorded in Europe. (68) Records made by union and non-union musicians were sometimes passed off as being made in other countries. (69)
AFM musicians and the welfare fund were also adversely affected. Even though recording musicians comprised a small percentage of the union membership, it was estimated that musicians would lose $5 million in annual earnings from making records, another $2 million in earnings from transcriptions, and that the union fund would lose $3 million in royalties. (70)
Resolution of the 1948 Recording Ban
In July 1948, the record companies and the AFM began negotiations to modify the welfare fund to meet requirements of Taft-Hartley. Both sides were concerned that violations of Section 302 could impose criminal penalties on the heads of recording companies and the AFM. Representative Hartley weighed in on the problem and implied that some solution might be possible because the act he authored was "flexible." (71)
In July, the major record companies presented a plan to the AFM called the "Institute Plan." In this plan, which was rejected by Petrillo, the disbursement of the union fund would be decided by a group comprised of representatives from industry, the union and the public. It was reported that Petrillo did not want his union to have a minority vote in the distribution of the fund. (72)
Milton Diamond was hired as special counsel to the AFM to draft a new fund agreement. He had extensive experience in labor law and the record industry, and was a senior partner in a law firm that included Franklin D. Roosevelt, Jr., as a partner. (73) In August 1948, it was announced that the union was working on its own plan to present to the recording companies. (74)
The essential feature of what became known as the "Diamond Plan" called for the appointment of an independent trustee to manage the welfare fund's disbursement. The fund would continue to be supported by record and transcription royalties. The plan was initially received with skepticism from the record manufacturers, who were concerned that it did not meet Taft-Hartley requirements. They wanted reassurance from the government that the new plan would be legal. An additional concern for both sides was that even if the present administration approved the plan, the results of the general election in November 1948 could bring about a change in administration who might interpret the plan differently. (75)
By October, record companies and the AFM were meeting regularly to hammer out an agreement acceptable to all parties. The essentials of the Diamond Plan were eventually accepted by the recording companies, but there was disagreement regarding royalties. Record companies wanted to pay a blanket 1% of the selling price of each record, stating that the sum paid to the AFM fund would be essentially the same as in the 1944 agreement, but each manufacturer would save thousands of dollars annually in bookkeeping costs. The introduction of the long-playing (LP), microgroove record by Columbia in June 1948 created a special problem. Petrillo wanted royalty payments on a per song basis for LPs rather than the selling price. (76) Another point of contention was payment of retroactive royalties for records sold during the ban. (77) The plan also included new labor agreements with minimum wages for musicians who made phonograph records and transcriptions. (78)
Agreement between the AFM and manufacturers was eventually reached in late October. In reaching the agreement, the AFM agreed not to receive retroactive royalties for discs released during the ban. Royalties paid into the fund were 1% of the retail price of disks that were $1 dollar or less, and a sliding scale above this price. Royalties for transcriptions were the same as in the previous agreement--3% of gross revenues. Special arrangements were made for recordings having "the content of two or more ordinary phonograph records," such as LPs, that included a percentage of the selling price of the record plus a percentage of the suggested retail price of each component. (79)
The new trust fund became known as the Music Performance Trust Fund (MPTF). The Diamond Plan required the MPTF to be distributed on a per capita basis to local union branches and for the trustee to decide the locations and sponsoring agencies of the free concerts. Samuel R. Rosenbaum, an attorney, board member of the Philadelphia Orchestra, and a former radio station executive, was named the fund's trustee. He was chosen by the record companies and was favorably regarded by the AFM. Contracts were written for a five-year period. (80)
All that was necessary was a ruling from the federal government that the plan was legal under Taft-Hartley. Attorneys for the union and recording companies presented the plan to U.S. Attorney General Tom C. Clark for his opinion. (81)
However, all parties, including Petrillo, were caught off guard by the surprise victory of Truman over Governor Thomas E. Dewey on 2 November 1948. While the AFM had enthusiastically supported Truman--with 99% of AFM members voting a straight Democratic ticket--the fund agreement had been reached with the expectation that Dewey would be the next president. Accordingly, Petrillo had been willing to forgo retroactive royalties on discs sold during the ban. Insiders believed he would have been unwilling to concede this point if he had known Truman would be re-elected. Variety ran the headline: "Truman Election Cost AFM Million in Disk Settlement." (82)
With Truman in the White House and a Democratic-controlled Eighty-first Congress, a repeal of Taft-Hartley in the near future was expected. Meanwhile both the AFM and recording companies waited on a ruling from Attorney General Clark on the legality of the union fund. But Clark was reluctant to provide a ruling. The attorney general's office does not usually provide opinions to private parties as to whether an action is against the law in advance of the action being performed. To deliver an advance opinion for the Diamond Plan, specifically, and Taft-Hartley, in general, was considered "precedent-setting." (83)
To circumvent this problem, the Department of Labor approved the agreements between the AFM and recording companies. (84) The DOL drew up a memorandum to this effect, and on 10 December 1948 Secretary of Labor Maurice J. Tobin sent a letter to Attorney General Clark requesting his opinion as to whether the new agreement violated Section 302 of the Taft-Hartley Act. He pointed out that an independent trustee would be named by the recording companies, and that successive trustees would be selected by the secretary of labor. Tobin stated that the purpose of the fund was to provide employment for instrumental musicians "whether or not members of the union, and thereby promote an appreciation of instrumental music by the general public." (85)
In his opinion on 13 December 1948, responding to the DOL memorandum, Clark held that since the trustee was not a representative of employees, and would not represent labor unions or employees, the trust and labor agreements between the AFM and recording companies did not violate the Taft-Hartley Act. (86) These pronouncements by the chief law enforcement officer of the U.S. and the secretary of labor made it unlikely that anyone else in authority would question legalities of the welfare fund. Recording companies quickly resumed their business of making records with AFM musicians. (87)
Truman and members of his administration likely welcomed the opportunity to chip away at some aspect of the Taft-Hartley Act. Truman considered his veto of Taft-Hartley to be largely responsible for his upset victory over Dewey; and considered his election as President to be a mandate from the people to have Taft-Hartley overturned. (88) Legalizing the AFM welfare fund, which appeared in violation of Taft-Hartley, could be seen as one small victory.
Several bills to amend Taft-Hartley were introduced during the Eighty-first Congress, but there was dissension among proponents of the bills, and they eventually languished in committees. History professor R. Alton Lee believes that unwillingness to compromise by staunch Taft-Hartley opponents prevented the introduction of a viable bill to significantly amend the act. (89) By the time of President Eisenhower's administration, interest in amending or repealing Taft-Hartley had waned. (90) Lee takes this as an indication that Taft-Hartley didn't make "slaves" out of workers as some opponents predicted. (91)
The MPTF is known today as the Music Performance Fund--considered the world's largest sponsor of live, admission-free, professional music programs. (92) In 2008, the Los Angeles Times reported that the MPF was in jeopardy due to music downloads and file-sharing via the Internet, which have diminished royalties from record companies. Web-generated sales are not in the fund agreements between the AFM and record companies. Since the 1980s, annual record royalties to the AFM fund have gone from $20 million to $3.4 million. (93)
The technological displacement of musicians' labor has gone from steam calliopes in the 1800s; to recordings, jukeboxes and movie soundtracks in Petrillo's day; to Internet sharing and digital downloads today. The "menace of mechanical music," denounced by Sousa and Petrillo, takes on a modern form in today's MP3 file-sharing and iTune downloads. As Mark Coleman points out in his history of sound technology, the "echoes" from the past regarding threats to the music industry are "pitch perfect" in today's digital era. (94)
In 1948, the AFM was caught in a post-World War II backlash of sentiment against labor unions that led to the passage of the Taft-Hartley Act. Its welfare-fund provisions were designed to prevent misuse by union leaders. These provisions outlawed the AFM welfare fund established at the end of the 1942-1944 ban, which was paid for by royalties from record companies. Although there was never any evidence that AFM leaders had used the union fund for their own purposes, Taft-Hartley was a critical factor in causing and prolonging a second strike by the AFM against record manufacturers that lasted nearly a year.
Both the AFM and recording companies suffered as the 1948 ban wore on--as well as the general public who were deprived of countless records by their favorite artists. In mid-1948, the union and recording companies began negotiations to modify the union fund to bring it into compliance with Taft-Hartley. Negotiations were complicated by uncertainty regarding the presidential election of 1948. By late October, agreement between the union and record companies had been reached. The most important change was the appointment of an independent trustee to manage the fund's disbursement. Riding high on Truman's surprise victory--and regarding this as a mandate to overturn Taft-Hartley--members of Truman's cabinet took the highly unusual step of declaring a modified AFM union fund, the Music Performance Trust Fund, to be in agreement with the Taft-Hartley Act.
(1.) Louis Stark, "Records Ban Ends as Clark Upholds Petrillo Accords: Attorney General Finds Union Does Not Violate Taft Act in Its Welfare Trust," New York Times, 14 December 1948, pp.1,39.
(2.) "Last Record Made as Contract Dies," New York Times, 1 January 1948, p.1.
(3.) Stark, "Records Ban Ends," New York Times.
(4.) Robert Leiter, The Musicians and Petrillo (New York: Bookman Associates, 1953); Robert A. Gorman," The Recording Musicians and Union Power: A Case Study of the American Federation of Musicians," Southwestern Law Journal 1983; 37:697-787; George Seltzer, Music Matters: The Performer and the American Federation of Musicians (Metuchen, NJ: Scarecrow Press, 1989); James P. Kraft, Stage to Studio: Musicians and the Sound Revolution, 1890-1950 (Baltimore: Johns Hopkins University Press, 1996); Tim Anderson," 'Buried Under the Fecundity of His Own Creations': Reconsidering the Recording Bans of the American Federation of Musicians, 1942-1944 and 1948," American Music 2004; 22:231-269.
(5.) Histories of the recording industry sometimes overlook the 1948 AFM strike. Several books, including an encyclopedia of recorded sound, provide information about an earlier 1942-1944 ban, but ignore the 1948 ban. See Guy A. Marco, Encyclopedia of Recorded Sound in the United States (New York: Garland Publishing, 1993); Oliver Read and Walter L. Welch, From Tin Foil to Stereo: Evolution of the Phonograph (Indianapolis: Howard W. Sams & Co., 1976). One history of recorded sound in America neglects to mention either ban. See Andre Millard, America on Record: A History of Recorded Sound (New York: Cambridge University Press, 1995).
(6.) R. Alton Lee, Truman and Taft-Hartley: A Question of Mandate. (Lexington KY: University of Kentucky Press, 1996), pp.6-7.
(7.) Herbert R. Northrup and Gordon F. Bloom, Government and Labor: The Role of Government in Union-Management Relations (Homewood IL: Richard D. Irwin Inc., 1963) pp.22-25; Fred A. Hartley, Our New National Labor Policy: The Taft-Hartley Act and the Next Steps (New York: Modern Industry Books, 1948), pp.8-9.
(8.) 49 US Statutes 449.
(9.) These practices included interfering with the rights of employees to organize for the purpose of collective bargaining; interfering with the formation of any labor union; discouraging membership in any labor organization; discriminating against employees who file charges under the act; and refusing to bargain collectively with representatives of employees. See Hartley, Our New National Labor Policy, p.106.
(10.) Marie Gottschalk, The Shadow Welfare State: Labor, Business, and the Politics of Health Care in the United States (Ithaca NY: Cornell University Press, 2000), pp.41-47.
(11.) Lee, Truman and Taft-Hartley, p.16.
(12.) Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill NC: University of North Carolina Press, 1994), p.193.
(13.) Lee, Truman and Taft-Hartley, p.18.
(14.) Hartley, Our New National Labor Policy, pp.107-108.
(15.) 61 US Statutes 136.
(16.) Lee, Truman and Taft-Hartley, pp.77-79. The Eightieth Congress, 1947-1948, had Republican control of both houses for the first time since 1930. See Gottschalk, The Shadow Welfare State, p.45. Section 101 of Taft-Hartley began by amending the Wagner Act with policy statements that included eliminating "certain practices by some labor organizations ... which impair the interests of the public in the free flow of commerce." While retaining provisions of the Wagner Act against unfair labor practices by management, Section 8 (b) established unfair practices by unions. These included certain strikes and boycotts, such as "secondary boycotts" when a boycott of products against a second employer is encouraged who does commerce with an employer under an authorized strike; and coercing an employer to pay for services which are not performed. This last provision was directed at union featherbedding and written with the AFM in mind. See Northrup and Bloom, Government and Labor, p.94; US Congressional Record 93, 23 June 1947, p.7529. Other provisions of Taft-Hartley (Sec. 206 and Sec. 9 [h]) established a procedure for the President to bring an injunction against strikes in national emergencies; and a "loyalty" clause that required signed affidavits by union representatives involved in collective bargaining that they were not members of the Communist Party.
(17.) Lee, Truman and Taft-Hartley, pp.82-84. While Congress was debating the Taft-Hartley Act, the American Federation of Labor, of which the AFM was an affiliate, spent $400,000 in a series of broadcasts over the ABC and Mutual radio networks to "awaken the nation" to the threat of Taft-Hartley. Actors and musicians who participated in skits and speeches for the AFL included Milton Berle, Gregory Peck, Dinah Shore, Benny Goodman and Melvyn Douglas. See Elizabeth Fones-Wolf, Waves of Opposition: Labor and the Struggle for Democratic Radio (Chicago: University of Illinois Press, 2006), pp.210-218.
(18.) Lee, Truman and Taft-Hartley, p.96. One of the reasons Truman gave to Congress for vetoing the bill was that it "would limit the freedom of employers and employees to establish and maintain welfare funds.[and] prescribe arbitrary methods of administering them and rigidly limit the purposes for which they may be used." See Harry S. Truman, "Veto of the Taft-Hartley Labor Bill [Letter to the House of Representatives]," 20 June 1947, in Public Papers of the Presidents of the United States: Harry S. Truman, Containing the Public Messages, Speeches and Statements of the President, January 1 to December 31, 1947 (Washington DC: U.S. Government Printing Office, 1963), pp.288-297. In his national radio address on the day of the veto, Truman called the bill "bad for labor, bad for management and bad for the country." See Harry S. Truman, "Radio Address to the American People on the Veto of the Taft-Hartley Bill," 20 June 1947, in Public Papers of the Presidents of the United States: Harry S. Truman, Containing the Public Messages, Speeches and Statements of the President, January 1 to December 31, 1947. (Washington DC: U.S. Government Printing Office, 1963), pp.298-301.
(19.) Lee, Truman and Taft-Hartley, pp.100-102; U.S. Congressional Record 93, 23 June 1947, p.7538.
(20.) Leiter, Musicians and Petrillo, pp.20, 73-74.
(21.) ibid., pp.45-53; "The Pied Piper of Chi," TIME Magazine, 26 January 1948, pp.18-22.
(22.) Leiter, Musicians and Petrillo, pp.58-59, 68. John Philip Sousa is generally credited with coining the term "canned music" in a 1906 article on the "menace of mechanical music." See John Phillip Sousa, "The Menace of Mechanical Music," Appleton's Magazine 1906; 8:278-284. Online at http://www.phonozoic. net/n0155.htm; accessed 9/9/09.
(23.) Anders S. Lunde, The American Federation of Musicians and the Recording Ban," Public Opinion Quarterly 1948; 12 (1): 45-56.
(24.) Leiter, Musicians and Petrillo, pp.68-74.
(25.) Ibid.,p.80; "The Pied Piper of Chi," TIME.
(26.) Leiter, Musicians and Petrillo, p.128; Seltzer, Music Matters, p.34.
(27.) Kraft, Stage to Studio, pp.230-231.
(28.) Rick Altman, Silent Film Sound (New York: Columbia University Press, 2004), p.275.
(29.) James C. Petrillo, "James C. Petrillo, President of the American Federation of Musicians of the United States and Canada, Explains Why Members of the American Federation of Musicians Have Not Been Making Recordings Since January 1, 1948," International Musician, February 1948:3, 7, 9-11, 15.
(30.) Kraft, Stage to Studio, p.24. Also of concern was the replacement of movie-theater pianists by mechanical player pianos. Between 1905 and 1925, most player-piano makers built instruments designed for movie houses, called "photoplayers." One elaborate mechanism manufactured by the Link Piano Co. of Binghamton, N.Y., had separate music rolls controlled by the film projectionist that played sad, dramatic, and other mood music "by the touch [of] a button." See Craig H. Roell, The Piano in America, 1890-1940. (Chapel Hill NC: U. of North Carolina Press, 1989), pp.50-52, 118. Neither of the two AFM recording bans prevented the recording of movie soundtracks. This issue for the AFM was partially resolved in 1944 with contracts that required specific numbers of musicians to be employed by movie studios on a full-time basis. Later arrangements collected royalties for films released to television. See Leiter, Musicians and Petrillo, pp.82-83; Seltzer, Music Matters, p.53.
(31.) Mary Austin, "Petrillo's War," Journal of Popular Culture 1978;12 (1):11-18.
(32.) William Howland Kenny, Recorded Music in American Life: The Phonograph and Popular Memory, 1890-1945 (New York: Oxford University Press, 1999), p.192; Jim Puzzanghera, "Beating the Drum for Radio Royalties: Sinatra Backs a Bill Mandating Payment for Performers When Their Songs Are Played," Los Angeles Times, 12 January 2008, pp.35, 40.
(33.) Broadcast royalties paid to ASCAP were the result of lengthy copyright battles fought by this organization, founded in 1914, and earlier composer and lyricist organizations. See Roell, Piano in America , pp.59-65; Allan Sutton, Recording the Twenties: The Evolution of the American Recording Industry, 1920-1929 (Denver CO: Mainspring Press, 2008), pp. 138, 204-205. In 1941 there was a ban by radio stations of records using ASCAP copyrighted music. This was a self-imposed ban by stations to protest higher royalties demanded by ASCAP and did not affect musicians who performed works. It ended when ASCAP agreed to accept royalties only slightly higher than pre-ban agreements. See Thomas A. DeLong, The Mighty Music Box (Los Angeles: Amber Crest Books, 1980), pp.225-235. At the time of this writing in September 2009, a bill before Congress, the Performance Rights Act, would grant performers of sound recordings copyright protection and compensation rights for recordings broadcast over terrestrial radio. See H.R.4789 -Performance Rights Act, U.S. Congress; online at http://www.opencongress. org/bill/110-h4789/show; accessed 9/9/09.
(34.) Leiter, Musicians and Petrillo, pp.142-146; Kraft, Stage to Studio, p.181.
(35.) 60 US Statutes 89; Christopher H. Sterling and John Michael Kittross, Stay Tuned: A History of American Broadcasting (Mahwah NJ: Lawrence Erlbaum Associates, 2002), pp. 333-334.
(36.) Roland Gelatt, The Fabulous Phonograph 1877-1977 (New York: Collier Books, 1977), pp.278-279; Anderson, "'Buried Under the Fecundity,'" American Music.
(37.) Leiter, Musicians and Petrillo, pp. 138-141; Russel Sanjek. American Popular Music and Its Business: The First Four Hundred Years, (New York: Oxford University Press, 1988), p.222.
(38.) Milton Diamond, "Petrillo's Case: New Light on an Age-Old Problem-Man vs. Machine," International Musician, March 1948:7-9, 3031, 34-42.
(39.) Kraft, Stage to Studio, p.160.
(40.) "The Pied Piper of Chi," TIME.
(41.) Petrillo, "James C. Petrillo, President," International Musician; Diamond, "Petrillo's Case," International Musician.
(42.) Beatrice Hill, "Musicians Contribution Praised," New York Times, 4 August 1947, p.16.
(43.) Petrillo, "James C. Petrillo, President," International Musician.
(44.) "Petrillo Bans Recordings 'Once and for All' on December 31," New York Times, 19 October 1947, pp.1, 5.
(45.) Ibid.; "Last Record Made as Contract Dies," New York Times, 1 January 1948, p.1. A clause in Section 302 of Taft-Hartley made its provisions inapplicable to contracts in force before the act until such contracts expired.
(46.) Petrillo, "James C. Petrillo, President," International Musician.
(47.) Stark, "Records Ban Ends," New York Times; Howard Taubman, "What Future Holds for Collectors, in View of AFM Decision to Quit," New York Times, 26 October 1947, p.X6; Howard Taubman, "Records Stoppage: Effects of the Impasse and Rumors of Its End," New York Times, 25 July 1948, p.X5; "Vote by Musicians May Stop All Disks," New York Times, 13 September 1947, p.2. "Petrillo Bans Recordings," New York Times; "See End-of-Summer Disk Truce," Variety, 14 July 1948, pp. 35, 41; "And the Ban Played Off," Newsweek, 27 December 1948, p.67. Law professor Robert A. Gorman, in a legal analysis of the effects of Taft-Hartley on the AFM, concluded that the most serious threat to AFM policies was Section 302, the health and welfare fund provisions. Other potential conflicts between the AFM and Taft-Hartley were its provisions outlawing secondary boycotts and union featherbedding. See Gorman, "The Recording Musicians and Union Power," Southwestern Law Journal. See also n.56.
(48.) Diamond, "Petrillo's Case," International Musician.
(49.) "See End-of-Summer Disk," Variety.
(50.) "Official Proceedings of the Fifty-first Annual Convention of the American Federation of Musicians," International Musician, August 1948, p.23.
(51.) Petrillo, "James C. Petrillo, President," International Musician.
(53.) Diamond, "Petrillo's Case," International Musician.
(54.) "The Pied Piper of Chi," TIME. Petrillo fought battles against adversaries with powerful abilities to sway public sentiment to their sides. The two major record companies were subsidiaries of companies that owned broadcast networks. RCA-Victor was the recording division of RCA, which also owned the NBC broadcasting system; and Columbia Records was a subsidiary of the CBS network. The radio industry, Petrillo's other main adversary, had strong ties with the newspaper industry, either as owners or subsidiaries. See Diamond, "Petrillo's Case," International Musician. According to one estimate, newspaper interests owned about one-quarter of the nation's radio stations. See Kraft, Stage to Studio, p.140.
(55.) "Vote by Musicians," New York Times.
(56.) An additional complication was that the AFM was accused of violating a section of Taft-Hartley separate from its welfare-fund provisions. Transcription companies, such as Muzak and the World Broadcasting Company, accused the AFM of a "secondary boycott" under Sections 8 (b) and 303 (a) (1). The transcription companies maintained that the ban amounted to a secondary boycott against the owners of radio stations, who were deprived of an important element of business. The regional director of the NLRB in New York agreed with the AFM that the strike was only against recording companies, and the case was dismissed in early December 1948. See Leiter, Musicians and Petrillo, p.167.
(57.) Taubman, "Records Stoppage," New York Times. Some accused Petrillo of continuing the strike in order to pressure Congress to re-write copyright laws to include musician royalties for recordings played over the radio and in jukeboxes. See "See End-of-Summer Disk," Variety.
(58.) Leonard Lyons, "Sinatra Labors to Beat Out Petrillo," Washington Post, 29 October 1947, p.B14.
(59.) "Pile of Masters Poses Col. Problem," Variety, 19 November 1947, p.47.
(60.) "Crosby, Como Do First Recordings Since Ban by AFM," Variety, 8 December 1948, p.35.
(61.) "Caesar and the Harmonica," TIME Magazine, 4 October 1948, p.74.
(62.) Taubman, "What Future Holds," New York Times.
(63.) "Decca No Longer Can Bolster Pop Issues via World," Variety, 11 August 1948, p.37.
(64.) "Record Firms to Close Plants," New York Times, 3 June 1948, p.29.
(65.) "Decca Folds Two Pressing Plants," Variety, 16 June 1948, p.39.
(66.) "Record Mixup," TIME Magazine, 27 December 1948, p.52.
(67.) "Many Musicians Offer Bootleg Aid in Recording Ban," Variety, 19 November 1947, p.47; "AFM Tells Carpenter to Ignore Standard's Demands for Waxing," Variety, 10 March 1948, p.45. It is not certain how many members of the AFM supported the 1948 recording ban. Only a small minority were recording musicians whose jobs were directly affected by the strike; whereas the AFM welfare fund theoretically benefited all members. Clearly, there were many AFM musicians who opposed the ban. See "Many Musicians Offer Bootleg," Variety; Seltzer, Music Matters, pp.54-58.
(68.) Taubman, "Records Stoppage," New York Times; "U.S. Diskers Still Give the Eye to Continent for Backgrounds," Variety, 15 September 1948, p.43.
(69.) "See End-of-Summer Disk," Variety.
(70.) "New Petrillo Ban Approved by Musicians," Washington Post, 20 October 1947, p.B7.
(71.) "See End-of-Summer Disk," Variety.
(73.) Diamond, "Petrillo's Case," International Musician; "Second Day [of the annual meeting of the AFM]," International Musician, July 1948, p.25. Diamond had been chief attorney for Decca Records in 1943 when its royalty agreement with the AFM union fund was drafted. See Kenny, Recorded Music in American Life, p.192.
(74.) "Possibility of AFM Offering Disk Ban Solution," Variety, 18 August 1948, p.33.
(75.) "Petrillo's 'Disk Solution Plan' Unenthusiastically Rec'd by Mfrs.," Variety, 22 September 1948, p.35; "Diskers Reply to Petrillo on Peace Offer," Variety, 29 September 1948, pp.1, 20.
(76.) "6 Major Diskers Ask Blanket 1% of Sale Price in Petrillo Talks," Variety, 6 October 1948, pp.39, 52.
(77.) "AFM: 'Shoulda Stood in Bed,'" Variety, 20 October 1948, p.37.
(78.) "Labor Agreement on Recordings; Labor Agreement on Transcriptions," International Musician, January 1949, pp.5, 39.
(79.) "Trust Agreement with Record Companies; Trust Agreement with Transcription Companies," International Musician, January 1949, 4, 16, 33-34.
(80.) Stark, "Records Ban Ends," New York Times; "Signing the Recording Pact," International Musician, January 1949, p.8.
(81.) "Diamond, Disk Attorneys Meet Today (Wed.) with D. of J. on Settlement Plan," Variety, 10 November 1948, 42. Robert A. Gorman reported that Senator Taft, co-author of Taft-Hartley, gave an advance opinion that the modified union fund would be legal under his law. See Gorman, "The Recording Musicians and Union Power," Southwestern Law Journal.
(82.) "Petrillo on Truman and T-H," Variety,10 November 1948, p.42; "Truman Election Cost AFM Million in Disk Settlement," Variety, 10 November 1948, p.1.
(83.) "January 1 Seen Earliest Date for Disking In Settlement of Musicians Plan," Variety, 17 November 1948, p.1; "Clark Going Slow," Variety, 1 December 1948, p.40.
(84.) "D. of J. Couldn't and Wouldn't Nod, So Labor Dept. OK's Disk Settlement," Variety, 15 December 1948, p.43.
(85.) Stark, "Records Ban Ends," New York Times.
(87.) Most record companies began recording the day after the government approved the welfare fund. At RCA Victor on the afternoon of 14 December 1948, an unusual combination of popular artists and singers from the Metropolitan Opera Company made a noncommercial record of "I'm Just Wild About Harry" to be presented to President Truman. The record, a demonstration of gratitude to Truman and his cabinet, also included a season's greeting to the President by Petrillo. The popular artists were Perry Como, Tommy Dorsey and Fran Warren; the operatic artists were Marilyn Cotlow, Cloe Elmo, Thomas Hayward, Dorothy Kirsten, Jan Peerce, Gladys Swarthout, Ferruccio Tagliavini, Lawrence Tibbett and Leonard Warren. See Emil R. Pinta, "The First RCA Victor Recording of 1948: Petrillo, Truman and the AFM Recording Ban of 1948," Association for Recorded Sound Collections Journal 2008; 39:284-291. A photo of this recording session is on Billboard Magazine's cover of 1 January 1949. Online at http://books.google.com/books?id= 2hIEAAAAMBAJ&dq=billboard&source=g bs_navlinks_s; Accessed 12 December 2009.
(88.) Lee, Truman and Taft-Hartley, pp.234-235.
(89.) Ibid. p.178.
(90.) Ibid. p.168-178, 210.
(91.) The Taft-Hartley Act provides the basis for today's Multiemployer Pension Funds, also called Taft-Hartley Funds. A multiemployer plan must conform to Section 302 (c) (5) of the Taft Hartley Act, which makes it illegal for union representatives to receive money from employers unless 1) payments are held in trust; 2) the basis of payments is in a written agreement; 3) labor and management have equal representation in administering the fund; 4) there is an annual audit; and 5) the fund is separate from other monies, and is used solely for providing pensions. See Harriet Weinstein and William J. Wiatrowski. "Multiemployer Pension Plans," Compensation and Working Conditions Spring 1999:19-23.
(92.) "Music Performance Fund: Enriching Lives Through Music," Music Performance Fund. Online at http://www.musicpf.org/AboutUs2. html; accessed 22 August 2009.
(93.) Mike Boehm, "Hitting a Sound Barrier," Los Angeles Times, 14 June 2008, pp.55, 68. In 2008, record royalties to the AFM's Music Performance Fund consisted of 0.2% of sales for records, tapes and compact discs with a maximum payment of 2.2 cents per disc. Manufacturers could exclude the first 30,000 copies of each release before contributing to the fund. See Ibid.
(94.) Mark Coleman, Playback: From the Victrola to MP3, 100 Years of Music Machines, and Money (Cambridge MA: Da Capo Press, 2003), p.xviii.
EMIL R. PINTA, MD
Emil Pinta is a member of the emeritus faculty, department of psychiatry, The Ohio State University. He is a collector of vintage popular, jazz, opera and historical recordings. A longtime member of ARSC, he was a member of the archives committee in 1986 and 1987.…
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Publication information: Article title: Efforts by Record Companies, the American Federation of Musicians, and Truman's Cabinet to Resolve the 1948 Recording Ban. Contributors: Pinta, Emil R. - Author. Journal title: ARSC Journal. Volume: 41. Issue: 1 Publication date: Spring 2010. Page number: 24+. © Not available. COPYRIGHT 2010 Gale Group.
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