Variety (May 1941)

Wednesdayt May 14, 1941 S7 TAX UNDER AM N Y. Court Deciaon May Meet Standby Fees As Running Afoul Of the Anti-Racketeering Statute Decision that ' may set a far- reaching precedent regarding mu- ■icians' union relations, but .ap- parently overlooked In show biz circles thus far, was handed down recently in the U. S. Circuit Court of Appeals in New York. At least by ImpUcation, the opinion sets forth that, under certain circumstances, union demands for etand-by orches- tra fees may run afoul of the ahtl- . racketeering law. Although the case involved did not even indirectly concern musicians or the musicians' union, the collection of stand-by orchestra charges was cited by the court as a possible ex- ample of violation of the statute. Case under consideration was a criminal one involving charges brought by the Government against the teamsters' union under the anti- racketeering lav(. Majority opinion, containing the allusion to musicians' union prance, was written by Jus- tice Learned' Hand, considered in legal circles as among the most in- fluential jurists In New York State. Justice Hand's opinion, reversing the conviction of the defendants in a lower court, was that the teamsters' union officials had nbt violated the •tatute because the union members Vfm 'ready and able' to fill the Job; the employers had been forced to of- fer. Unwillingness or inability to fill them would have classified the de- mand'for jobs as attempted extor- tion, and thus criminal under the law, the Jurist wrote. He' then continued, 'In the case at bar the accused were for the most part willing to do the work; indeed the fact that, especially after ' Mmc of the operators finally yielded •nd signed contracts, members of the union served as drivers shows that at least the primary motive was to get the jobs. The position of the ac- cused, when the operators refused to employ them, was like that of 'stand-by' orchestras, so-called. If a conductor brings an orchestra from outside into a territory of a union powerful enough to coerce him, he must either employ local musicians In .their place or. pay an amount equal to their aggregate wages if they had played. In such cases It may be doubtful whether the local players can in fact substitute for the outsiders, and that might condemn them; but there was no such doubt here, for the accused were competent drivers.' SnbiUtntlon Angle It was noted that Justice Hand used the words 'might condemn them' in cases where it 'may be doubtful whether the local players can In fact .-substitute for the out- sidera' However, it Is generally ad- mitted that as a practical matter, few stand-by musicians could actu- ally substitute for the men whose importation requires the payment of Etand-by fees. If the local musicians could actually substitute. It is argued, there would be no nfeed for import- ing outsiders. In most cases, outside musicians brought into a territory are either members pf a name or? chestra or band with a boxoifice draw, or are men specially trained or qualified for a specific assignment. In neither instance, it is claimed, could local musicians replace them without careful selection plus pro- hibitively lengthy rehearsal. Stand-by assignments are rotated amon^ the tmemployed members of the. unions. The latter are rarely even present when outside men are playing an engagement involving stand-by fees. General practice is for the employer merely to pay the aggregate amount of money involved to the union. However, if an em- 4 ployer insists, the stand-by men must be on the spot and, at least theoretically, ready to work If needed. But few managements con- sider it necessary or advisable to raise that issue with the union. Phil Harris' Reward Los Angeles, May, 13. Phil Harris was given a gold lifetime pass by Fanchon & Mar- co Wolf for breaking the two- week stage record at the Par- amount theatre here. . Band, given equal credit for the draw with Hoad to Zanzibar' on the screen, rolled up a fort- night's gross of $52,134. orce Tucker Off Local Tot o'Gold'Show Tommy Tucker's band may be forced off the local New York Tot o' Gold' Program for Tums after it completes the current 13-week stretch, which ends July 13. "Tucker ! has a date to appear before the ; executive board of N. Y. local 802 of I the American Federation of Mu- sicians soon, at which time he will < be told whether or not he can con- ' tinue. Reason for 802's objection to I Tucker's continuing is that the lat- . ter's band is classed as a travelling outfit, that is, it's composed almost . entli'ely of non-802 members. I Union raises the objection that the ! show is strictly for New York audi- I ences, going out over WMCA, WHN, ' and 'WNE'nr. Figure that under that I setup only an 802 band should play jit. Tucker was told-to hand in a I two-week notice a month or so ago, I but MCA, band's booker, and Stack- . Gdble, agency for the show, pre- vailed upon the union to allow the band to finish the 13-week stretch on the grounds that much cash had been spent exploiting the program. Tucker is thinking of trying to re- tain the assignment by rebuilding his band, for the broadcasts only, with only-802 men. Local has been paying increasing attention lately to violations of its rules. It was never as hot on the trail of infractions as it is now. Last week an 802 delegate ordered 'Wal- ter Page, non-802 bassist with Count Basic's band. Off a record date at Decca studios. Page was on hand with several other musicians to pro- vide background for recordings to be made. by pianist Pete Johnson. Such, minor and comparatively un- important infractions never got that much attention in the past Frank Dailey Still Sans Baton-Wielder Frank Dailey still has not come to i terms with anyone to take over 1 batonning of the band he has built I to continue where the band he sold jto Buddy Rogers left off. DaUey I handed the latter crew over to ; Rogers several years ago to devote ' all his time to operating Meadow- I brook, Cedar Grove, N. J. New I band, along the same lines, has been I rehearsing for weeks at the Jersey spot, and an offer was about to be ' made to vocalist- Jack Leonard to ' direct It when the singer was noti- fied that he would be inducted Into the Army after his current Para- ! mount theatre, N. Y. date. ' Dailey originally had figured on ' using the new outfit at his place dur- ing the summer months when it's hard to get top band names because of the amount of road work skedded by most bands. He has since taken Sonny Dunham's new band for the 12 weeks, beginning July 10. DANCE LODEliS EXEMPTS Trusjbusters Fight vs. AFM Stalled All Contracto With Em- ployers Will Garry Roster of Musicians and Give Their Social Security Ac- count Numbers WORDING By Congressional, Supreme Court Apathy on Issue of Standby Bands Post-Induction Discs Employers and not the leaders of name bands will assume respon- sibility for the payment of social security taxes under the new con- tract forms for hotel, cafe and one- nighter engagements which the .American Federation of Musicians has ordered into effect as of June 1. Booking offices are to receive these sample forms some time this week and in a letter, accompanying the form, James C. Petrillo, AFM prez, will warn licensed agents that the use of any other form wlU be In 'violation of their, licenses. The let- ter also will state that this contract is the one which has been adopted by the International Executive Board for the purpose of protecting our members under the Social Security Laws and upon which favorable de- cisions have been received' by our members from the Internal Revenue Department' • ' In conformance with this assign- ment of tesponsibility to employers the back of each contract will carry the names of the band's members, their social security numbers and the j wages each is to receive on tne en- gagement The contract form fur- ther stipulates: "The employer shall at all' times have complete control of the services which the employees will render un- der specifications of this contract. - On behalf of the employer the Leader will distribute the amotmt received from the employer to the employees, including himself, as indicated on the opposite side of this contract or in place thereof on 'separate memo- randum supplied to the employer at or before commencement of the em- ployment hereunder and take and turn over to the employer receipts therefor from each employee, in- cluding himself.' If It can .be worked out with Army officials, Columbia Rec- ords wlU continue recording Jack Leonard after the singer is drafted. He's to be inducted May 26 after a current date at the Paramount theatre, N. Y. Before donning a uniform Leonard expects to cut a quartet of sides, which, wiOi four not yet rejeased, will form a backlog large enough to last a couple of months. If Army okay; future cuttings, they'll probably be done on furlough. Ballroom Appeals Detroit May 13. An appeal has been' made here from the ruling that ballrooms and., not orchestra leaders must pay the' unemplojrment compensation bene-: fits for.unemployed musicians.' The' State Compensation Commission' here had made the ruling that all j spots where orchestras play are re- I quired under the law to pay bene-^ fits for those who subsequently be- come unemployed. At present time | Michigan law provides a maximum of $16 a week for 16 weeks for those, who are out of work. The Graystone Ballroom has ap- \ pealed the ruling in a motion filed before Circuit Judge Vincent M.| Brennan on the grounds that it was up to the orchestra leaders to pro-1 vide the money out of their earn- ings for those who may become un- employed. Since the issue has many, ramifications the court ordered both sides, to file briefs within 15 days. ZINN ARTHUR, DRAHEE, FORMS ARMY UNIT Paramount-Proser Agree on Booking Of Name Bands Mbnte Proser last week cleared up all 'opposition' angles between his Dance Carnival In Madison Square Garden and the N. Y, Paramount at ■ huddle with Robert Weltman, theatre's managing director, and Harry Kalcheim, Paramount stage show booker. Outcome was that ihe "Paramouiit men assured Proser he can have -name bands after they play the Paramotint and that he must not bill them as 'coining* to the Garde;] ballroom setup untQ after the Par dates are completed. On the other hand, those .bands that the Paramount has pre-booked for early fall dates will not be per- mitted to play for Troser during his June-July-August tun of the new monster ballrbom at the Garden. Though the Paramount execs now state that they don't consider the Proser setup as actual opposition to the Paramount, they feel that name bands playing the Garden Immedi- ately-prior to a booking at the Par can't help but hurt the b.o. at the theatre.' Ifi lowering any bars against bands goin^ Into the Garden from the Paramount .Weltman and Kal- cheim make it possible for Proser to get Vaughn Monroe, among others. Monroe goes into the Par May 21 for two weeks and -will play the Garden four weeks later. Benny Goodman, Charlie Bamet, and Larry Clinton's'*bands^will in- augurate the ballroom policy open- 'ing Memorial Day (30). Bands are all booked for two weeks, but be- cause of the musicians union ruling for one day of rest in every seven, the orchs will only work 12 days though being paid for 14. This also means that there will be a change of bands every 12 days. Proser had originally planned to augment the bands with' name sing- ers, but seems to have dropped that idea. Now the setup calls strictly for dancing and the various food and drink concessions. Admish will be 66c on weekdays, and S^c Saturday and Sunday. Washington, May IS. Congressional apathy and U. S. Supreme Court hostUity have stalled the Department of Justice campaign against the American Fed- eration of Musicians and discouraged Assistant Attorney Thurman Arnold's attempt to relieve radio stations, thectres, hotels, etc., of demands for standby orchestras. • Nothing official is admitted, but inquiry started months ago by Victor Waters has been suspended as result of recent court rulings that unioi^ cannot be charged with anti- trust law violations. Decision in St. Louis hodcarrlers case 'was definite bar to contemplated prosecution of James C. Petrillo and American sFederation of Musicians, of trhlch Petrillo Is prez. Hiough still con- vinced Petrillo deserves thorou^ woodshedding,' Arnold has about abandoned ' ope of finding way to break the 'musicians' hold .on radio and other music users. In viejv otf what the New Deal majority on (he highest bench ^as said, only Con- gress'can crack down. Without new legislation making the labor bosses answerable for restrain- ing competition and burdening Iti- terstate commerce, there's nothing the trustbusters can doi ' Cedar Point Encores Name-Band Policy; Benny Goodman Set Cleveland. May .18. John Kuebler, manager of Cedar- Point's stmmier resort near San- dusky, is following up lest yearns . big-name policy . which pulled Oui I ballroom out of the red . by setting 'Benny Goodman for lis June 14 opener. I After Goodman's abc-day date, , Cedar Point will swing into full- . week stands on June 20 v»lth Henry Busse; June 27, Bob Chester; July 4, Ben Bemie; July 11, Frankle Mas- ters; July 18, Raymond Scott; July <2S, OrrlD Tucker. All are set by MCA. I Larger names also being slated by , Geneva - on • the - Lake's ballroom which gets its season off Jxily 1 with I Jimmy Joy. Cecil Golly taking the wraps off Chippewa Lake Park-May 24, while Waldemere Park In nearby Erie, Pa., starts summer dances in its rebuilt hall - May. 29 with George King. Zinn Arthur, bandleader recently drafted, has been put in charge of organi2ing p dance band at Camp Upton, Yaphank, L. I. Leaders of bands at various posts have the right to requisition any man capable- of playing an instrunient, so long as he was enlisted in definite territories. For instance, Arthur can select any player inducted in Brooklyn, Queens and upstate New York. He already has 10 men and is allowed 32. i Johnny Mince, clarinet-sax, from ■ Tommy Dorsey's band, may become a member of Arthur's outfit. Lombardo's $7,000 Suit On Note Must Go to Trial Guy Lombardo lost bis plea for summary judgment against James BcUetU and Mai Hutt, tailors, in N. Y. supreme court Thursday (8), when Justice Philip McCook ruled triable issues existed. Lombardo wants $7,000, based on a promissory note. Lilliebell IiOmbardo, the band- leader's wife, lent the defendants the money Jan. 20, 193B, and received only the interest, $701, in return. The debt was subsequently assigned to her husband. Charge Bemie Breached Pact by Snbhing Band I Los Angeles, May' 13. ' Ben Bemle's orchestra wasn't there on broadcast hights, making , his $5,000 claim invalid, according to a contention in the bankruptcy case of -Ihe Victor Hugo restaurant, Bev- erly Hills nitery, now shuttered pending the outcome of the suit be- fore Hugh F. Laughran, referee. Contention la that iBemie put on a substitute band on nights when he was on the air, thereby violating the contract. Johnson to Asbnry Hotel Monterey, Asbury Park, N. J., is among the Jersey shore spots reopening earlier for the season due to the adjacent war camps and at- tendant boom. Instead of its usual mid-June unshuttering, the Monterey installs Johnny Johnson's band May 20. King Johnson (no relation) moves from the Westchester Country Club, Rye, N. Y., to the Hotel Shelton, N. Y.. to .succeed Jobnnv John.^nn*