Written Testimony of Ned H. Guthrie

My name is Ned Cuthrie. I am a musician from West Virginia. I am president exeritus of the Appalachian Regional Musicians Union, Local 136 of the American Federation of Musicians. Local 136 is headquartered in Charleston, West Virginia, my hometown. There are nineteen West Virginia counties and six Virginia counties in the area which my Local is

responsible to be of service to and, when requested, to represent professional musicians that are members of the APH, while at the same time, act as a reliable liaison to commercial and community entertainment venues. Local 136 van chartered March 18, 1907, and it has maintained quarterly Bembership Beetings ever since. Bylaws and minimum pay scales have been properly established by the rank-and-file membership, by majority vote, in accordance with U.S. labor

I voluntarily became a member on May 19, 1930, and have continued in good standing since then. My performing itinerary carried me into venues in every state of

the Nation except the states of Maine and Mississippi, and in all of those states and with all of the orchestras that I traveled and on all of the hundreds of engagements I worked, it was understood by the venue owners, the orchestra leaders, the sidemusicians, and the booking agents that the venue owners were the controllers and the performing orchestra leaders and sidemusicians were employed to follow house policy of the venues under the Form-2b Contract, which stated such conditions and were standard in the entertainment business. Performing leaders and sidesusicians were listed as employees and the venue was listed

as employer and partained to labor aspects. Only by volunteer commitment would the venue ever assume FICA, vorkers compensation, and unemployment insurance responsibilitias. Such contracting was standard with symphony boards, recording companies, broadcasters, motion picture producers, hotel lounges and nightclubs. Musicians

operated in that manner from 1896--at the time the AFM was formed--until 1935, when, without ever considering the music profession world, Congress adopted the National Labor Relations Act, which, in fact, validated our method of plying our trade. In doing so, Congress was addressing industrial and labor situations. In 1947, still with no attention given the NLRA with to the entertainment business, Congress modified TaftHartley. That was 12 years after NLRA, and entertainers continued to work universally under the premise of NLRA until the mid-1960s, about twenty years after Taft-Hartley, when, unexpected by the musicians, the NLRB asserted jurisdiction over live musical entertainment, and, a few years later, unaccountably allowed hotels, lounges, and clubs to repudiate their status as the employers of the musicians they hired. The decades-old understanding that lounges and clubs vere musicians' employers was destroyed, and the economic condition of musicians in the single engagement field has deteriorated ever since.

I was elected as a trustee of my Local in 1969. I and two other trustees were named in a $200,000 lawsuit for trying to represent one of our local bands in a broken contract dispute and wrongful threats to band members by a defaulting club proprietor. At that time, I was handed a cease and desist order by an armed U.S. deputy marshall, in my music store of all places, with cumulative penalties of $1,000 a day if I did not comply with the order to refrain from withholding services of musicians at the defaulting club. The charge was an alleged secondary boycott. At the same time, I was handed a civil suit by the deputy in the amount of $200,000. That is what happened to me as a union official trying to secura fair and honest dealings; however, to no avail.

Kany problems arise from allowing the purchaser of musical services to evade employer responsibilities. As an unsuspecting leader of a seven-piece partnership band in Charleston, I once drove 123 miles over snow-covered Wast virginia mountains to fill an engagement for the Metropolitan

Life Insurance Company, which was staged at the luxurious Greenbrier Hotel and Resort in White Sulphur Springs, West Virginia. We were engaged to play for a stage show, a banquet, and community/audience participation vocalizing. This was at a nationwide gathering of Metropolitan Life's top officials, sales personnel, and their guests. For the one day and night engagement we played for acts from the Broadway play Li'l Abner, followed by two hours of dinner music and the audience singing. A vice president of Metropolitan Life conducted my orchestra and selected the songs for the singing. He led the band.

At the conclusion of the engagement, while we were packing up our equipment, the MET vice president asked, "Wed, did you get your money?" I answered, "No, not yet." He replied, "It won't be long. I just gave your check to Harry Weissman.' That was the last I ever saw or heard from the NET vice president. The trouble was that Mr. Weissman disappeared and did not bring our money. Mr. Weissman was the booking agent in New York City that the MET engaged to assemble the band and acts for its show and dinner. At all times Mr. Weissman was acting for the MET, not the Ned Guthrie Orchestra. Ne did not work for Mr. Weissman. We worked for the MET. But, for some reason, the MET later said they did not owe the band. of course, I asked the AFK Local in Covington, virginia, in whose jurisdiction the Greenbriar lies, to help collect, as I asked the New York City Local to try to find Nr. Weissman. But he evidently could not be reached. NET, actor repeated requests again by other West Virginia interests, bas refused to pay us. This problem at the Greenbrier is a classic example of the problems musicians face earning a living in the casual engagement field. Greenbrier is a classic example of the problems musicians face earning a living in the casual engagement field.

The

Musicians need the help of Congress to restore to them the benefits of collective action and the hope of improving the

conditions they face in trying to earn a living and express their talents.

As addenda to this testimony, I am submitting a statement made by Senator John D. Rockefeller IV when he participated in a colloquy concerning Live-PALBA in a previous Congress and a letter of support from Doc Severinsen.

Mr. KILDEE. I thank you very much, first of all, for having this hearing and for taking the testimony of those people who are trying to build a more just society for every American. If some Americans are denied justice, the justice for all Americans is in jeopardy. Thank you very much, Mr. Chairman.

Chairman WILLIAMS. Thank you for being with us. Appreciate your testimony.

Mr. BALLENGER. Mr. Chairman, if I may, in kind of tongue-incheek fashion, say that your family's ability to wear the button underneath their lapel somewhat matches my mother's efforts to help Alf Landon in North Carolina back in the 1930s. She was unwilling to publicly admit she was a Republican because lynchings occurred in such matters as that.

Mr. KILDEE. I can understand the analogy, but I want to respond to it. I do recall that throughout history some people have had to show courage and protect themselves at the same time.

Chairman WILLIAMS. Well, tolerance has not always been the hallmark of every single American, but it seems to me that as years go by we become a somewhat more tolerant people. [The prepared statement of Mr. Fawell follows:]

STATEMENT OF HON. HARRIS W. FAWELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Thank you, Mr. Chairman. I am looking forward to today's hearing on the Live Performing Artists Labor Relations Act of 1993 (H.R. 226). After reviewing the legislation and the testimony submitted by the witnesses, I do have concerns about the bill and its impact on both employers and performing artists in the live performing arts industry. I would like to highlight several controversial aspects of the legislation.

It is my understanding that supporters of H.R. 226 would prefer that musicians and other performing artists have a chosen representative bargain on their behalf, because as independent contractors, live performing artists cannot, under current law, bargain collectively for the terms and conditions of their employment.

As I read the legislation, however, the issue is more complicated than just simply providing musicians who play in restaurants, bars, clubs, or other locations improved protections under the law. For one, H.R. 226 would create a new employeremployee relationship (which does not currently exist) by extending the National Labor Relations Act's (NLRA) coverage to independent contractors working in this industry. Currently, there is no such relationship-the Labor Board excludes performing artists from NLRA coverage because they are independent contractorsthat is, individuals who have control over the means and production of their work. In addition, by allowing employers and unions in the live performing arts industry to enter into prehire agreements, as in the construction industry, H.R. 226 would permit an exception to the rule that employers may bargain only with unions that have been duly elected by a majority of the employees as their representatives. The impact of this change could mean that musicians would lose the ability to determine their own work status and that unions in the live music industry could coerce performing artists into union membership and limit the artist's ability to negotiate for themselves the terms and conditions under which they choose to work.

Mr. Chairman, more detailed arguments will be presented today with regard to other questionable aspects of H.R. 226 and the negative impact it would have on the live performing arts industry. I am also certain that the proponents of the legislation will make a case on its behalf. I look forward to the testimony today and thank the witnesses for attending.

Chairman WILLIAMS. Let's ask our three witnesses to come together at the table and we will move things along. Mr. Massagli, Mr. Bradley and Mr. Roberts.

We will hear first from Mr. Massagli, president of the American Federation of Musicians. We appreciate your being with us. We