The opinion of the court was delivered by: LEVET
Two civil actions for permanent injunctions are involved herein. Two other actions involving alleged violations of the anti-trust laws will be tried subsequently. The first action here, 60 Civil 1169, is an action to enjoin defendants from collecting from plaintiffs payments for the 'Local 802 Single Engagement Welfare Plan,' and the second, 60 Civil 4025, is an action to enjoin defendants from the collection of certain payments, to wit, a 1 1/2% Local Tax and a 10% Traveling Surcharge, on the ground that all these exactions or impositions are allegedly forbidden by Section 302 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186, as amended. Jurisdiction is alleged to arise under Section 302(e) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186(e), and Title I of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq.
In addition, in both actions plaintiffs seek to permanently enjoin defendants from reprisals or interferences with plaintiffs' business based on the fact that these actions and proceedings before the National Labor Relations Board have been instituted; plaintiffs also seek reasonable counsel fees.
The proposed findings of fact, conclusions of law and briefs of the parties having been received, the court, after considering the pleadings, evidence, exhibits, briefs and stipulations of the parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.
1. Plaintiffs Joseph Carroll and Charles Peterson, at all times relevant herein, were and are orchestra leaders engaged in the so-called 'single engagement' field (Carroll, 258; Peterson, 347, 349-352) and at the commencement of these actions were members of defendants American Federation of Musicians of the United States and Canada ('Federation') and Associated Musicians of Greater New York, Local 802 ('Local 802'). Neither Carroll nor Peterson is presently a member of defendant unions. (Peterson, 347-348; Carroll, 259).
2. Although plaintiff Orchestra Leaders of Greater New York ('OLGNY') is alleged to be an informal unincorporated association comprising at least 50 members of a class allegedly represented by plaintiffs Carroll and Peterson, I find that there is a lack of evidence establishing that OLGNY is an association representing orchestra leaders, that it is presently in existence, that it has any members other than Carroll and Peterson, that it has in any way been damaged or aggrieved by any conduct of defendant unions or that it has any interest in these actions.
3. The plaintiffs purport to bring these actions 'for themselves and for all of the members (so numerous as to make it impracticable to bring them all before the court) of Local 802 who are similarly situated. * * *' (See Complaint, 60 Civil 1169, par. 20; Complaint, 60 Civil 4025, par. 18).
I find that there is a lack of credible evidence that such class exists, and even if found to exist, that its members are 'so numerous as to make it impracticable to bring them all before the court,' or that the plaintiffs here fairly insure adequate representation of such class.
4. Defendant Local 802 is a labor union affiliated with the defendant Federation and with the AFL-CIO. Local 802 represents, among others, members who are leaders and sidemen* in the single engagement field. (Pl. Ex. 56, p. 110) Under Federation By-Laws, the territorial jurisdiction of defendant Local 802 consists of the five boroughs of New York City and Nassau and Suffolk Counties (Pl. Ex. 12, Section 6, p. 5; Cutler, 80-81; Arons, 453).
5. Defendants Al Manuti, Max L. Arons and Hi Jaffe are President, Secretary and Treasurer respectively of defendant Local 802.
6. Membership in a local affiliated with Federation implies membership in the Federation (Pl. Ex. 29, Sections 10 and 11, p. 34; Arons, 430).
7. Defendant Federation is a labor union affiliated with the AFL-CIO and it is comprised of 683 local unions, including defendant Local 802, located throughout the United States and Canada. (Ballard, 665, 667).
8. Defendants Herman D. Kenin, Stanley Ballard and George V. Clancy are President, Secretary and Treasurer respectively of the defendant Federation.
II. THE SINGLE ENGAGEMENT INDUSTRY
9. A single engagement is defined in the By-Laws of defendant Local 802 (Pl. Ex. 29, Art. X, p. 63) and is a musical performance generally for one night but always for less than one week, including, but not limited to, such types of functions as weddings, commencements, debutante parties, fashion shows, sports events, college or high-school dances or other social events. (Cutler, 69, 242-243; Arons, 438, 457; Pl. Ex. 53, p. 39).
10. In the single engagement field, defendant Local 802, as a matter of policy, does not bargain collectively with member orchestra leaders. (Pl. Ex. 53, pp. 45, 68; Pl. Ex. 56, p. 110; see also Jaffe, 581-582).
11. A substantial number of Local 802 members serve as leaders each year. Of these members who serve as leaders, the large majority also as sidemen on other occasions during the same year. Local 802 provides an 'Exchange Floor' to aid members in securing single engagements. Members of Local 802 who are engaged by purchasers of music to act as leaders use the facilities of the 'Floor' to select sidemen, and member sidemen likewise utilize these facilities to secure jobs with leaders. Frequently, members of Local 802 will exchange engagements so that a member engaged as a leader for one engagement becomes the sideman for the same musician whom he engaged as a sideman for the prior engagement. (Pl. Ex. 58; Deft. Ex. K; Arons, 463, 465-466; Sontag, 805-808, 817-818).
12. Plaintiffs Carroll and Peterson fulfill engagements outside of the State of New York in which they usually operate and in which their principal offices are located. (Pl. Ex. 19, 21, 40, 41; Cutler, 154-155, 185; Carroll, 265-268; Peterson, 349-353, 383-387, 397-399).
13. Travel by orchestras in the single engagement field composed of members of defendant unions is contemplated by defendant unions and regulated by them in various ways. Thus, among others, Section 2 of Article 17 of the By-Laws of the Federation (Pl. Ex. 11, p. 114) provides:
'If the Local Union in whose jurisdiction an engagement is to be played has a Local law requiring its members to file a written contract with the Local prior to each engagement, the traveling member or the traveling leader must so file such contract with such Local Union.'
Section 13 of Article 15 (Pl. Ex. 11, p. 104) provides:
'An orchestra playing miscellaneous out-of-town engagements (i.e., single engagements involving travel) in the jurisdiction of a Local which maintains a higher price than their own Local, must charge the price of the Local in whose jurisdiction they are playing, plus 10% Of the price of the Local wherein playing.'
Section 14 of Article 16 (Pl. Ex. 11, p. 109) provides:
'For all traveling engagements the employer is required to at all times make payment for services in money of the country from which the engagement emanates, unless an amount in excess of the stipulated salary sufficient to cover the rate of exchange is paid.'
Similarly, Rule 4 of defendant Local 802's Price List (Pl. Ex. 7, p. 23) in pertinent part provides:
'Rule 4. For all single engagements beyond the limits of Greater New York (except engagements on Long Island covered below) or the jurisdiction of Jersey City Local, No. 526, in addition to railroad fare, board and lodging, the following extra charges shall be made: 'If within 25 miles, per man ...$ 3.00 'If within 50 miles, per man ... 5.00 'If within 75 miles, per man ... 7.00 'For each additional 25 miles or less, extra, per man ... 2.00'
In short, defendants' own publications and practices, such as their 10% Traveling Surcharge, their rules and regulations pertaining to traveling members, their mileage charges, their regulations pertaining to steamship performances, etc., demonstrate that defendant unions represent members (both leaders and sidemen) in the single engagement field whose engagements require a constant continuous stream of trade and commerce between the States of the United States. (Pl. Exs. 7, 11, Arts. 15, 16, 26, 27; Deft. Exs. AE, AL, AQ, AR, AR1).
14. Defendant unions require their members to use a form of contract known as the 'Form B' contract, which contract designates the purchaser of music as the 'employer' and the musicians, including the leader, as 'employees.' (Pl. Ex. 13; Ballard, 695-696, 698; Cutler, 136; Arons, 471) The Form B contract or, at least, the details of such contract must be filed with Local 802 by member orchestra leaders performing within the jurisdiction of Local 802 and such contracts are not deemed effective unless approved by Local 802. (Pl. Ex. 53, p. 55; Pl. Ex. 56, pp. 127-128; Arons, 455-456) Any member failing to use said Form B contract is subject to penalty by the Federation. (Pl. Ex. 11, Art. 13, 33; Ballard, 697-699).
15. Plaintiffs Carroll and Peterson have used the Form B contract prescribed by defendant unions. (Deft. Exs. T, U; stipulations of counsel, 653-659).
16. The purchaser of music is not in fact the employer of the sidemen and of the leader and, consequently, the purchaser is sometimes unwilling to assume the responsibility of an employer. (Cutler, 170ff; Ballard, 722-724) Accordingly, the Form B contract as prescribed by defendant unions has in the past been subject to exception by rider which exonerates the purchaser who signs it from certain responsibilities as an employer, such as the withholding of taxes and the making of customary employer contributions, such as social security. (Pl. Exs. 25 p. 7, 79, 93 pp. 12-13).
17. Plaintiffs Carroll and Peterson devote their full time to their profession as leaders and never serve as sideman and their relationship with their clients, who are normally engaged in other businesses or professions than said plaintiffs, is transient in nature.
18. In the course of their business, said plaintiffs, among other things, customarily do the following:
(a) Organize their own bands (Cutler, 72; Carroll, 260; Peterson, 359-360);
(b) Maintain their own offices where they employ steady and/or part-time employees (Cutler, 77-78; Peterson, 347, 360);
(c) Acquire business as a result of their won contacts, reputations, and personal solicitations (Cutler, 78-79; Carroll, 261-262; Peterson, 360);
(d) Engage in and pay for advertising (Cutler, 80-85, 87, 127-128, 261-261; Peterson, 360) and prominently display their names whereever their engagements are played, thus indicating that the orchestra is the Joseph Carroll Orchestra or the Charles Peterson Orchestra (Cutler, 116, 260, 347);
(e) Negotiate and sign engagement contracts with purchasers of music (Cutler, 91; Carroll, 260-261; Peterson, 359);
(f) Generally lead or conduct their own orchestras (Cutler, 77; Carroll, 260; Peterson, 359) and appoint subleaders to lead when they do not do so themselves (Cutler, 73; Carroll, 276; Peterson, 393);
(g) Decide on how their orchestras are to render their pieces; choose the tempo and decide on the dynamics, tone coloring, volume and the type of syncopation, if any, which is to characterize the performances of their orchestras (Cutler, 117-118; Carroll, 269-270; Peterson, 359-360);
(h) Decide, subject to union minimum requirements on the number (Cutler, 91, 95; Carroll, 264) and qualifications of sidemen who are to play in their orchestras (Cutler, 72, 91; Carroll, 262; Peterson, 359-360);
(i) Call for rehearsals and train their orchestras if they deem it necessary (Cutler, 129, 130); Carroll, 275; Peterson, 359-360); and
(j) Correct sidemen during a performance if necessary and otherwise discipline or discharge those who are unsatisfactory (Cutler, 121-122; Carroll, 273).
19. There is no evidence that purchasers of music contributed, or had the ability to contribute, musical skill or direction which would give them genuine or effective control over the individual methods employed by Carroll and Peterson and their orchestras in rendering performances.
20. Carroll and Peterson pay all expenses connected with the performances of their orchestras, including, among other things, subject to union minimums, sidemen's salaries (Cutler, 91-92; Carroll, 262-263); uniforms, if any, worn by their sidemen during engagements (Cutler, 11; Carroll, 270); mileage fees, cartage fees, food and lodging for their orchestras (Cutler, 111-115; Carroll, 265, 277); sheet music racks; and special arrangements of music to be played by their orchestras (Cutler, 119, 129-130; Carroll, 270).
21. Said plaintiffs, in connection with the employment of their sidemen, withhold and pay over to the appropriate governmental agencies federal and state withholding taxes and social security. In addition, they pay workmen's compensation and disability insurance on behalf of their sidemen. These items are paid because, under the particular governmental regulations involved, orchestra leaders are regarded as 'employers' (Cutler, 125-126, 138; Carroll, 274).
22. Art. 15 of the By-Laws of the Federation provides a definition of 'Miscellaneous Out-of-Town Engagements,' which corresponds in duration with Local 802's definition of 'single engagements' (see Finding of Fact No. 9). (Compare Pl. Ex. 11, Art. 15, §§ 1 and 2, with Pl. Ex. 29, Art. X, p. 63)
23. Federation members who perform a 'miscellaneous out-of town engagement' are paid, but do not actually receive, in addition to their wages, an amount equal to 10% Of the minimum wage established by the local in whose jurisdiction the engagement takes place. This additional amount is known as the 'Traveling Surcharge.' (Pl. Ex. 11. Art. 15; Art. 16, § 1A; Art. 17 § 1)
24. The leader does not actually turn over the additional 10% To his sidemen because Federation By-Laws provide that the local in whose jurisdiction such engagement is performed must collect the Traveling Surcharge from the leader, who is a member of the Federation, and transmit such collection to the Federation. (Pl. Ex. 11, Art. 15, § 7) If the local fails to collect the surcharge from the leader, who is a member of the Federation, such leader must transmit the surcharge directly to the Federation. (Pl. Ex. 11, Art. 15, § 8)
25. The provisions of Federation's By-Laws relating to the Traveling Surcharge are applicable without regard to whether the member of the Federation who pays, collects or transmits the Traveling Surcharge may for some purposes be deemed to be an employer or an employee. (Pl. Ex. 11, Art. 15, §§ 1-3)
26. Defendants never obtain from any of the member sidemen involved any writing authorizing deduction of any part of the 10% Traveling Surcharge from their wages. (Pl. Ex. 53, pp. 67-68; Cutler, 153, 208; ...