Featherbedding Files Entry 19

Some Notes from Paul Chevigny, Gigs.

Throughout its existence, the union has been disrupted by “technological unemployment” (Chevigny, Gigs, 23)

“James C. Petrillo, having witnessed the shrinkage of jobs, was determined to resist the next great decimation after he became president of the AFM in 1940” (Chevigny, Gigs, 24)

“The use of musical recordings for broadcasts threatened to eliminate hundreds of jobs in radio, without any compensation to the musicians; a strike by musicians against the broadcasters could simply replace the musicians with recordings. To forestall the broadcasters, Petrillo called his most notorious job-action, a boycott of all recording sessions by union members, that ran for many months in 1942 and 1943. The band made Petrillo’s name synonymous in the press with ‘dictatorial’ and ‘featherbedding’ labor tactics. Hardly daunted, Petrillo called a similar ban in 1948. Both of these resulted in payments into trust funds established for musicians” (Chevigny, Gigs, 24)

“More importantly, the bans resulted in a national outcry against Petrillo, and in legislation directed against organized labor in general and the musicians union in particular. A direct result was the Lea Act of 1946, which introduced penalties for threats and other tactics to induce broadcasters to use musicians they did not want. In the Taft-Hartley Act of the next year, the featherbedding provisions as well as perhaps the secondary boycott restrictions were influenced by experiences with the musicians’ union”

Petrillo “came out of an environment in which all music was played live, in which one did not hear music except when produced by an individual or an orchestra… He was interested in work for live musicians, and in particular he organized the thousands who had been thrown out of work. Thus Petrillo never invested much effort in getting royalties for the musicians who made recordings, who were only a small fraction of the union, but instead saw to it that the trust funds were used to employ other musicians in concerts” (Chevigny, Gigs, 24)

Petrillo preferred direct action; as a result “a large part of the public, including a great many musicians, came to dislike him intensely” (Chevigny, Gigs, 25)

The union set minimum pay scales for venues, depending on size and type; thus a small jazz club could have a lower scale than a popular dance spot; “Leaders as well as side musicians were union members; representatives would come around to make sure that only union people were at work, and that there were no more people on the stand than the contract called for. The leader had to discipline the band in accordance with union rules, on pain of being tried and fined by the union.” (Chevigny, Gigs, 26)

(…)

“It is easy to see how a wooden application of the traditional factors for the employee/independent contractor distinction could lead to the conclusion that almost any musician, but especially a jazz musicians working in clubs, is an independent contractor. The musician brings her own tools (unless she plays an acoustic piano), displays great skill, is paid by the job—usually one of short duration—and is typically a luxury rather than a necessity in the business of selling food or liquor. And if she is a jazz musician, she does not want to get much direction from the club owner about what she plays. She plays something at least a little different every night and the better she is, the more discretion she has in playing it. From the point of view of her playing, the jazz musician is practically the musical embodiment of an independent contractor: independence is one of her defining characteristics” (Chevigny, Gigs, 33)

Here is a case where the formalistic test is misleading, unless the factors are interpreted in a sophisticated way: “The employer supplies the pace of work, and usually controls the work in a general way. He chooses the musicians for their style of music, and expects them to play within it. He dictates the times the musicians will show up, and when the music will be played. Although he pays by the job, he often pays the same amount each night, even to varying groups of musicians. And so forth”—upshot—it is almost always possible for an employer to argue that the jazz musician is an independent contractor (Chevigny, Gigs, 33)

 

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