Petrillo’s War

By Mary Austin

he contemporary music enthusiast who eagerly devours the multitude of new recordings that glut the music market each week T might find it difficult to imagine a time when the major recording

studios in the United States were silent. It would be difficult to conceive of a period when the only new records made were recordings of vocal arrangements or harmonica music. Yet such a time did occur and lasted for twenty-seven months. During that time union musicians were barred from making any mechanical musical reproduction. The decree came from James Caesar Petrillo, president of the American Federation of Musicians, on June 8, 1942. To understand why the Federation felt it necessary to effectively muzzle the recording studios and how it could accomplish this so easily, it is helpful to examine both the conditions leading up to the ban and the man who ordered the ban.

The man appears to have been a complex character who was simultaneously loved and hated, respected and feared by his contemporaries. It could not have been his education that commanded respect; it took Petrillo nine years to get to the fourth grade, and that was the end of his formal education. It couldn’t have been his devotion to music, for although the trumpet player had his own orchestra by the time he was fourteen, he lost his lip after only a few years and resorted to a more profitable enterprise. First he opened a cigar stand; later he ran a saloon. But fate and Prohibition worked together to bring James Petrillo into a

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situation that would enable him to exert a profound influence over the music, recording and broadcast industries.

When his saloon closed, Petrillo returned to music and joined the American Musician’s Union, an independent Chicago union. At age twenty-two he was elected president, and he served three years. When he was finally defeated for that office, he found defeat difficult to swallow. Out of spite Petrillo joined the Chicago branch of the American Federation of Musicians (AFM), his former union’s chief rival, and worked tirelessly until he had raised that union’s membership from 4,000 to 11,000. His efforts paid off. In 1922 he became president of the Chicago local 10. He was thirty years old.

Petrillo served as president for eighteen years, until elected to the national presidency in 1940. He is still listed in the union periodical as “President Emeritus.” The enemies he accrued during those years are evidenced by the fact that he had to ride in a bullet-proof automobile, and always had at least six body-guards in his employ. The devotees he accrued during those same years also gave ample evidence of their devotion. When Petrillo let it be known that he desired a country house, his “boys” presented him with an estate valued at $llO,OOO.l The feeling was mutual, but it is clear that Petrillo was interested in musicians, not music. He is often quoted as saying, “What’s the difference between Heifetz and a tavern fiddler?”2

The union members could hardly doubt his loyalty; Petrillo often stated publicly that his actions were always for the benefit of his boys. And sometimes those actions evoked much public dismay. One such incident occurred in July of 1942 when the union chief ordered the broadcast of the National High School Orchestra cancelled. The concert was the culmination of a summer camp for 160 young musicians who came from forty states. For twelve years NBC had broadcast these concerts from Interlochen,Michigan, but that year Petrillo decreed, “When amateur musicians occupy the air it means less work for professionals.”3 It didn’t seem to matter that most of the amateur musicians were not old enough to join the union. His action caused a great public outcry. Editorials and commentaries across the nation referred to the “Czar of the AFM,” “the Mussolini of Music,” and predictably, “Little Caesar.” Said the Cleveland Plain Dealer, “Petrillo isn’t a very smart dictator. Even Hitler makes us believe he likes ~hi ldren .”~ But Petrillo remained unmoved.

Petrillo knew that his power over the musicians extended to radio stations as well. Network stations depended on union musicians for both sustaining and commercial programs. Big sponsors like the American Tobacco Company or General Foods would never have used non-union musicians, even if any could have been hired. Since networks depended on their sponsors, and affiliated stations depended on the networks, Petrillo’s power extended to even the tiniest broadcast stations. Thus it was well within the “Czar’s” power to draw in reins on both broadcast stations and the recording industry.

Various economic conditions also had a role in precipitating the recording ban. As early as 1934 the increased use of mechanical devices had

PETRILLOS’ WAR 13

been recognized as a threat to the employment of musicians.5 Mass unemployment had resulted from the introduction of sound motion pictures. Gone were the days when movie houses employed full orchestras or even one lonely piano player. The decline of public interest in vaudeville threw many more musicians out of work. To add insult to injury, most dance halls, theatres and neighborhood bistros replaced the live, card-carrying musicians with a machine called the juke box. It carried no union card, paid no union dues, and unfortunately for Petrillo’s boys, it was protected by law. A clause in existing law said that the reproduction of a musical composition by coin-operated machine could not be called a public performance unless a fee was charged for admission to the place where the reproduction occurred.6 So Petrillo could not legally ban the juke boxes by calling them competition; even though the damage to musicians was obvious. In addition to the juke box dilemma, radio, the medium which had initiated so many jobs for musicians originally, was now taking jobs away. In the early days of radio, most music programming was live. The majority of radio stations had their own orchestras. But by the late thirties radio was depending more on recorded music and less on live musicians.

The statistics paint a sad picture for the 138,000 AFM members at this time. Of the 800 existing radio stations in 1942, fewer than 300 employed live musicians. One-third of those stations employed only one musician.7 An estimated 50-60% of the union members were unemployed. And it must be remembered that musicians had been among the hardest hit during the depression of the 30’s.

The capitulation of the networks in 1941 to the demands of the American Society of Composers, Authors and Publishers (ASCAP), was salt in the wound to Petrillo, for it appeared that the copyright laws protected only the rights of authors, composers and publishers, and not the interpreters of m u s k 8 Earlier court cases had established that the performing artist had a “property right in his rendition as recorded” and “that the commercial use of a record without the authority of the artist constituted unfair competition with the artist.”g Petrillo later used this point of law to defend his ban by pointing out that recording could cause musicians to “scab” their own strikes. This actually occurred once when musicians employed by Ringling Brothers and Barnum and Bailey Circus went on strike for higher pay. They were replaced by a recording of their own music. Situations like this seemed to illustrate to Petrillo a trend that had to be stopped. The recording ban was his way of stopping it.

The news media reported Petrillo’s June 8 decree to a stunned group of recording companies and radio stations, for it was not until the middle of July when the parties involved received formal notification from the union. The notification, if we are to believe reports in the trade magazines at the time, took the form of poorly reproduced copies of a letter from James Caesar Petrillo, whose signature was rubber-stamped at its conclusion. In the notice Petrillo stated simply that union musicians would no longer accept employment to make recordings or transcriptions. Particularly frustrating was the fact that he offered no conditions under which

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musicians would resume recording. Petrillo did not believe that the ban would force the entertainment

industry to employ more musicians, but he did believe that the ban would eventually force record companies to consent to a contract formulated on his terms. His terms would include a per record royalty payment to the union treasury.

The ban was to begin on August 1, 1942, when the current contract between the AFM and the recording companies expired. During the last weeks of July there was a flurry of editorial response and legal motions from various camps in a futile attempt to thwart the ban. Federal Communications Commission (FCC) Chairman, James Lawrence Fly, under pressure from both the Congress and the public wrote a letter to Petrillo demanding details and an explanation for the ban. U.S. Attorney General Biddle authorized the filing of a n injunction suit under the anti- trust laws in an effort to stop the ban before it started. The Justice Department issued a lengthy memo which attempted to set forth the positions of both sides.“ The department believed that although it would be fair for the union to wish to create more work for its members, its action was selfish and unfair in at least two ways. First, the memo said it would be unjust to force employers and the consuming public to pay for the union’s private system of unemployment relief, and second, it would be unfair for union members to be absolved from the competitive necessity of learning a new job in times of rising unemployment. The memo ended by predicting the dire effects of the union ban on radio stations, advertising agencies, motion pictures, electrical transcription companies, recording companies and the entertainment industry as a whole. The National Association of Broadcasters (NAB) held press conferences and issued statements calculated to portray Petrillo as a selfish villain. Neville Miller, president of the NAB, said that Petrillo was mistaken to believe that the ban would result in more work for musicians. “All it means is that millions of people will hear less music.”12

On July 29, Elmer Davis, Director of the Office of War Information, made a last effort to quell the ban threat. In a highly publicized letter to Petrillo, the director reminded him of the union’s earlier pledge to “do everything possible to aid in the fight for freedom.” Davis maintained that Petrillo’s edict would hinder the dissemination of war information by causing many small radio stations to c10se.l~ The point of the letter was clear. It was Petrillo’s “patriotic duty” to withdraw the ban.

Nevertheless, on August 1, 1942, recording studios throughout the country went silent. The ban was 100% effective. Most of the parties involved seemed at this point to adopt a wait-and-see attitude. The governmental offices involved were not so sure who had the authority to do what. In October the Justice Department charged the union with a “wrongful and unlawful combination and conpiracy in restraint of trade and commerce in phonograph records, electrical transcriptions and radio broadcasting.”” Thus they started the long and slow legal processes that would, they hoped, terminate the ban. The record companies surveyed their

PETRILLOS’ WAR 15

vast stocks of unreleased rcordings and decided they could outwait the musicians. The radio stations continued to broadcast whatever was available to them, live or recorded.

The ban was not without effect, however, and did cause some changes in the entertainment industry. Amid the waves of previously unreleased music, and reissues of old songs, there came bootleg songs that had been recorded in Mexico or elsewhere outside the U.S.A. In New York, WNEW’s “Make Believe Ballroom” program began importing records of English bands from Great Britain.15

The lack of musicians with instruments did change the face of those few new records that eventually were produced during the strike. Typical is the listing that appeared in the “Record Week” column of Newsweek magazine in January, 1943.16 It described a new song recorded by Ethel Merman which was performed “without instrument accompaniment to evade the Petrillo edict against recording.” Instead, Ms. Merman was accompanied by a male quintet. The popular singer Dick Haymes got his start with the Benny Goodman Band, but during the strike he made several records accompanied only by the “Song Spinners,” a n all-vocal group. Some of the vocal groups gained popularity in their own right. The Mills Brothers was one of the most popular groups who used their voices to imitate musical instruments. Unfortunately, by July of 1943, Mr. Petrillo had also banned vocal accompaniment. Union loyalty forced compliance since most performers belonged to the American Federation of Radio Artists, another union organization. Petrillo never formally notified the performers; they had to read about it in the papers. “I am not a great guy for sending letters,” remarked Petril10.l~

The strike changed things not only for singers like Ethel Merman, Dick Haymes, Frank Sinatra and Perry Como, but also for other highly paid but less known performers. A prime example lies in the story of Harry Frankel who was “Singing Sam the Coca Cola Man.” In 1941 when he was hired by Coca Cola, Frankel’s situation was ideal. He earned $175,000.00 a year by making five &minute programs per week for Coca Cola. These programs were sent in record form (known as transcriptions) to 176 non-network radio stations. Singing Sam had to work only two days to record enough programs for two weeks of broadcasts; that is, until the ban on musical transcriptions in 1942. Coke cancelled the programs and Singing Sam slipped into oblivion.18

Although the ban against recording by union musicians did leave a mark on the character of music at the time, the strike itself does not appear to have done much harm to the recording industry or the broadcast industry. In fact, quite the reverse seems to be true. During the twenty-seven month duration of the ban, it was found that the eager public would purchase a record company’s unsold discs as well as any new releases of old songs. Actually, the recording companies made more money than they would have without the ban because they were able to clean out their inventory of unsold records. The radio industry fared equally well. In 1944 the gross sales of advertising time in the radio industry were close to $400

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million, twice the receipts of 1942 when the ban had started.19 The monetary value of broadcast stations increased rapidly during this time, some stations appreciating by ten times the original investment.20 The logical question here is, if everyone was doing so well, why did Petrillo and the AFM emerge with a victory?

There were many factors that demanded a settlement among the warring parties, primary among them was public pressure. Many new songs would become popular in motion pictures (film soundtracks were not included in the ban), or in stage plays or live radio programs, but would not be available to the public on records. There was much discontent among performers whose popularity had been promoted by their recordings; they wanted to begin turning out records once again. The break came just thirteen months after the ban started when Decca capitulated and signed a n agreement with the AFM. Decca was a smaller company than either Columbia or RCA-Victor and did not have the large reserves to fall back on. The agreement made in 1943 with Decca insured royalty payments that would be made directly to the union treasury on a per record basis. The payments ranged from 114 cent to 5 cents per record sold. Over one hundred smaller companies followed suit, but RCA-Victor and Columbia held out. Without the united front the effort was hopeless. Soon performers whose contracts with the two large companies had expired signed new contracts with the record companies that had already made agreements with the union. When Jascha Heifetz left RCA-Victor after twenty-five years to sign with Decca, the two major companies panicked. But they tried to hold fast to what they considered a matter of principle. They objected to paying royalties directly into the AFM treasury with no assurance that the money would actually be used to help unemployed musicians. They hoped that the legal courses they were following would bear fruit. It was a false hope.

The US. Supreme Court had dismissed the anti-trust action against Petrillo saying that the case was a labor dispute outside the jurisdiction of the anti-trust statutes. The recording and transcription industry agreed that it was a labor dispute and certified the question to the National War Labor Board (NWLB). Petrillo told the NWLB that his union was simply no longer interested in making recordings, therefore it was not a labor dispute under their jurisdiction.

The board conducted hearings anyway, and in June of 1944 it issued a n order for Petrillo to lift the ban. He ignored the order. Three months later the board demanded that Petrillo show cause why he had not complied with the first order. He ignored them again. In August the board gave up and certified the question to the President of the United States. President Roosevelt was sure there were at least forty different laws with which Petrillo could be forced to lift the ban, but it isn’t clear whether he ever actually named any. In October the President requested Petrillo to end the strike. Petrillo refused. The President then referred the matter to the head of the Office of Economic Stabilization, who didn’t do much of anything. In a strongly worded, lengthy telegram to the Office, the president of Columbia Records, Ed Wallerstein, pleaded for help saying, “the economic pressures

PETRILLOS‘ WAR 17

on us now are such that we can no longer wait and must now either sign or go out of business.”21 On November 11, 1944, both Columbia and RCA- Victor signed agreements with the American Federation of Musicians rather than go out of business.

And the strike came to a halt. The terms of the agreement were similar to the previous agreement with Decca. Petrillo agreed to the setting up of a trust fund to be administered by a trustee appointed by the record manufacturers. The Music Performance Fund, as it was called, was to be used to finance free concerts to be given by musicians in various communities. It was hoped that the concerts would give needed employment to musicians as well as stimulate music appreciation.

In a statement to the press, Petrillo saw the agreements as “the greatest victory for a labor organization in the history of the labor movement.” He further noted that the AFM was the first labor organization to receive agreements that provided for direct payment of money to the union over and above payment for actual work done in the making of the recordings.22

When Petrillo had first asked for a flat rate to be paid to his union on a per record basis, the recording industrialists had not believed that the union boss could make good his threat to keep all of the musicians out of the recording studios. But Petrillo’s perseverance in the face of demands from trade organizations, government agencies, the media, and even the President of the United States resulted in a rather unusual period of music history.

NOTES

1Fbbet-t Coughlan, “Petrillo,” Life, 3 August 1942, p. 68. 2Coughlan, p. 68. .’Coughlan, p. 68. ‘“Petrillo’s Punches,” Newsweek, 27 July 1942, p. 65. ’In 1934 the New York Times contained many mentions of programs designed to aid

unemployed musicians. On December 7,1934, Mayor La Guardia broadcast an appeal for gifts to the Musicians Emergency Aid Fund. In his appeal the Mayor said that musicians were among the hardest hit by the depression, “their plight having been aggrevated by the increasing use of mechanical devices.” See “Mayor Broadcasts Appeal,” New York Times, 7 December 1934, p. 27, col. 8.

“liver Reed and Walter L. Welch, From Tin Foil to Stereo: Evolution of the Phonograph (Indianapolis: Howard W. Sams and Co., 1959), p. 396.

’Charlie Williams, “Mr. Petrillo’s Hopeless War,” 3 October 1942, p. 291. RReed and Welch, p. 396. %eed and Welch, p. 396. 1”“Recording Ban,” Business Week, 24 July 1943, p. 81. I1“FCC Inquiry,” New York Times, 24 July 1942, p. 21, col. 8. ”“Petrillo’s Punches,” Newsweek, p. 64. 13“Dance Programs Banned,” New York Tines, 29 July 1942, p. 15, col.1. 1AWilliams, “Mr. Petrillo’s Hopeless War,” p. 291. 1s“Recording Loophole?’ Newsweek, 26 July 1943, p. 14. 16“Record Week,” Newsweek, 18 January 1943, p. 64. ‘7“Petrillo’s Disarranger,” Newsweek, 5 July 1943, p. 84. ’8“Barbasol Man,” Newsweek, 18 January 1943, p. 70. IgBemard B. Smith, “Is There a Case for Petrillo?” New Republic, 15 January 1945, p. 77.

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ZoSmith, p. 78. Smiths article reports that station WINX had been built in Washington in

2'Rolan Gelatt, The Fabulous Phonograph: From Tin Foil to High Fidelity (Philadelphia:

'2"Discing Starts-Ban Over," Billboard, 11 November 1944, p. 26. The complete text of

1940 at the cost of $50,000 but was sold in 1944 for over $500,000.

J.B. Lippincott Co., 1954), p. 281.

Petrillo's statement appeared in this issue of Billboard.

Mary Austin is completing a Master's Degree in Radio/TV/Film from North Texas State University in Denton, Texas. She is currently employed as Public Information and Media Specialist with the Irving Independent School District, Irving Texas.