372 F.2d 155 (2nd Cir. 1967), 75, Carroll v. American Federation of Musicians of United States and Canada

Docket Nº:75, 76, 30445, 30446.
Citation:372 F.2d 155
Party Name:Joseph CARROLL, Charles Peterson and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiffs-Appellants, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Herman D. Kenin, as President of said Federation, Stanley Ballard, as Secretary of said Federation, and George V. Clancy, as Treasurer of said Federat
Case Date:January 30, 1967
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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372 F.2d 155 (2nd Cir. 1967)

Joseph CARROLL, Charles Peterson and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiffs-Appellants,


AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Herman D. Kenin, as President of said Federation, Stanley Ballard, as Secretary of said Federation, and George V. Clancy, as Treasurer of said Federation, Associated Musicians of Greater New York, Local 802, and AL Manuti, as President of Local 802, Max L. Arons, as Secretary of Local 802 and Hi Jaffe, as Treasurer of Local 802, Defendants-Appellees.

Nos. 75, 76, 30445, 30446.

United States Court of Appeals, Second Circuit.

January 30, 1967

Argued Nov. 28, 1966.

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Godfrey P. Schmidt, New York City, for plaintiffs-appellants.

Emanuel Dannett, New York City (McGoldrick, Dannett, Horowitz & Golub, New York City, for appellees American Federation of Musicians of United States and Canada, Herman D. Kenin, Stanley Ballard and George V. Clancy; Ashe & Rifkin, New York City, for appellees Associated Musicians of Greater New York, Local 802, Al Manuti, Max Arons and Hi Jaffe; Henry Kaiser, Washington, D.C., Jerome H. Adler, David I. Ashe, New York City, George Kaufmann, Washington, D.C., and Eugene Mittelman, New York City, on the brief), for defendants-appellees.

Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiffs-appellants are orchestra leaders, who in a series of suits over the past several years, have challenged the legality of numerous activities and regulations of the appellees. 1 The present actions instituted by appellants, Peterson and Carroll, in which Ben Cutler and Marty Levitt were allowed to intervene, as claimed class actions on behalf of themselves and as representatives of other orchestra leaders, charged the American Federation of Musicians and its New York affiliate, Associated Musicians of Greater New York, Local 802, with nine separate violations of the antitrust laws, none of which is protected by either the Clayton Act 2 or the Norris-LaGuardia Act. 3

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The first complaint was filed in July, 1960 and the other, brought to include a challenge to an increase in the musicians' wage scale adopted after the July suit was started, was filed in December, 1960. Both actions sought preliminary and permanent injunctive relief, as well as treble damages for alleged injuries. The district court, sitting without a jury after a trial of five weeks, dismissed the complaints and entered judgment for the defendants. Carroll v. American Federation of Musicians, 241 F.Supp. 865 (S.D.N.Y.1965). The appeal to this court presents the question of whether various practices of the unions violate the Sherman Act. 4

The American Federation of Musicians, an affiliate of the AFL-CIO, consists of 683 local unions and has a membership of more than 260,000. Almost all of the musicians in the United States, referred to in the trade as sidemen, and most of the orchestra leaders and subleaders, who act as substitute orchestra leaders, are members of the Federation or its locals. Local 802, with 30,000 members, has virtual control of labor in the music industry in the New York area. The appellants were members of Local 802 when this action was brought, but Carroll and Peterson have been expelled from membership since that date.

Essential to an understanding of the issues presented is a definition of terms and a description of the practices which distinguish the industry.

Musical engagements are generally classified as either 'steady,' those lasting for longer than one week, or 'single,' usually one day or one performance affairs but including all engagements lasting less than one week. The much sought after steady engagements are rare in comparison with the number of single engagements.

The predominate form of single engagement is the 'club date,' such as weddings, parties and dances, which provides employment for the largest number of musicians. Single engagements also include the 'non-club date' field, consisting of television appearances or recording engagements, etc. The distinction between the kinds of single engagements is vital; the non-club date engagements are ordinarily governed by collective bargaining agreements concluded by the union and the 'purchaser' of music. The same is usually true of the steady engagement field. Local 802 has collective bargaining agreements with the major users or 'purchasers' of live music within its area such as recording companies, hotels, television and film producers, opera companies and theatres. These agreements treat the 'purchaser' as the employer and the orchestra leader as its employee, little different from a sideman. Indeed, in this field such a characterization would

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ordinarily be justified, because in the recording industry, for example, in which all engagements are governed by such collective bargaining agreements, a regular employee of the recording company exercises general supervision over the orchestras hired. He selects the orchestra leader, who does the conducting and some arranging, hires the sidemen and determines their number, their instruments and the compositions to be played and exercises general control over the orchestra's performance. The recording company pays each musician, as well as the orchestra leader, individually and is responsible for the withholding of social security, federal and state taxes, as well as all bookkeeping. The practices are similar in most engagements covered by the union's collective bargaining agreements.

The club date field is entirely different in that it is not governed by collective bargaining agreements. Rather, the orchestra leader secures the engagement, either by himself or through booking agents and negotiates directly with the music purchaser, usually for a flat price, and the responsibility for collecting the fee, paying the sidemen, withholding taxes and keeping records is his. His remuneration is the difference between his costs, primarily the wages of sidemen, and the amount received from the music purchaser. The district court assumed, without explicitly finding, that orchestra leaders are employers or independent contractors when operating in this field. In light of the fact that an orchestra leader working a club date is no different from any other independent contractor, who employs his own laborers, we conclude, as we have in other contexts in this litigation, see, e. g., Cutler v. American Federation of Musicians, 316 F.2d 546, 549 (2 Cir. 1963), affirming 211 F.Supp. 433, 445 (S.D.N.Y.1962); Carroll v. American Federation of Musicians, 295 F.2d 484, 486 (2 Cir. 1961); Carroll v. Associated Musicians, 284 F.2d 91 (2 Cir. 1960), affirming 183 F.Supp. 636 (S.D.N.Y.1960), that orchestra leaders are employers in the club date field.

It should not be inferred, however, that orchestra leaders are a homogeneous class. Some of them act only as orchestra leaders, a few of whom employ more than one orchestra at a time. When the leader is not with his orchestra, he employs a sub-leader as his substitute. Others work only part-time in this capacity, accepting whatever engagements they can find, and work as sidemen or sub-leaders the rest of the time. Still others work as orchestra leaders part-time and are regularly employed outside of the music industry. While the majority of leaders' engagements are in the club date field, they also seek engagements outside of it, either in the single or steady date field. Obviously there is a great deal of fluidity in the industry. Very few orchestra leaders employ their own orchestras full-time. The normal practice is for an orchestra leader first to secure an engagement, determine how many sidemen will be needed, and then employ them through the union hiring hall.

Most engagements are secured through booking agents, who since 1936 have been regulated by the Federation and its local unions, because during the depression booking agents took advantage of the job shortages in the music industry by charging exorbitant commissions. Under present union by-laws, union members are forbidden to accept engagements from booking agents not licensed by the union. The licensing agreements limit the commissions of booking agents to 10% for steady engagements and 15% for single engagements; and the agents must agree not to book non-union orchestras or musicians or to book orchestras for engagements at less than the union scale. In the past, engagements were also secured through the owners of catering halls and their employees, for which the caterer received a commission. Present union by-laws forbid this practice.

The Federation exercises rigid and monolithic control over much of the music industry, and this is especially true of Local 802 in the New York area. Within the jurisdiction of the Local, the closed shop is enforced by numerous by-laws,

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and pressure is placed upon orchestra leaders in various ways to induce them to become union members. For example, union members are not permitted to work in an orchestra in which a non-member leader either conducts or plays or which bears the name of a non-member. 5 A nonunion orchestra leader may thus operate only if he hires sub-leaders to conduct. This is the situation of both Carroll and Peterson since their expulsion from the union. There are further restrictions which prevent union members from playing for proscribed or 'unfair' persons, for instance an orchestra leader who has employed non-union musicians.

Having achieved a virtual closed shop, Local 802 regulates the club date field in great detail. Under its by-laws, member orchestra leaders are required to follow the 'Price List Booklet,' which is actually a codification of...

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