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November 2, 1962

BEN CUTLER Et. al., Plaintiff.

The opinion of the court was delivered by: LEVET

This action was originally begun on July 20, 1962 by the individual plaintiffs Ben Cutler, Dan Terry, Ralph Flanagan, Marty Levitt, Vic Ash, Claude Garreau (d/b/a Allen Meritt) and Angie Bond in their own behalf and as representatives of a class of all orchestra leaders who are either employers or self-employed persons. On October 16, 1962 a number of other parties were permitted to intervene as co-plaintiffs.

The complaint states a single cause of action for certain declaratory and injunctive relief alleging that the defendants are violating Section 302(a), (b) and (c) of the Labor-Management Relations Act, as amended, 29 U.S.C. § 186, by requiring certain payments by "employers" to the defendant unions.

 Specifically, this action seeks:

 (1) A declaratory judgment of illegality respecting (a) a certain so-called "local tax" of 1 1/2 heretofore imposed and collected from plaintiff and other orchestra leaders and self-employed musicians who are members of Local 802, and (b) a so-called "traveling surcharge" of 10% imposed and collected by the defendant Federation for all musical engagements outside the home local of the sidemen or self-employed musicians involved; both alleged to be in violation of Section 302 of the Labor-Management Relations Act of 1947, as amended.

 (2) Temporary and permanent injunctions (a) forbidding defendants, their officers, agents, servants, employees and attorneys and all persons in active concert or participation with them (who receive actual notice of such injunction order by personal service or otherwise) from imposing or collecting or from attempting in any way to impose or collect the said "local tax" and the said 10% 'traveling surcharge"; and (b) visiting upon plaintiffs, because of this action or because of plaintiffs' refusal to pay the said "local tax" or the said 10% "traveling surcharge", penalties and reprisals.

 The present action is part of a controversy between the defendant unions and certain orchestra leaders. It has precipitated for actions in this court in addition to the present one (viz., 60 Civil 1169, 2939, 4025 and 4926). The five actions involve two basic charges against the defendant unions. First, that the defendant unions have violated Section 302 of the Labor-Management Relations Act, as amended, 29 U.S.C. § 186, and, second, that the defendant unions have conspired together with other orchestra leaders to violate the federal anti-trust laws.

 Two of the actions (60 Civil 1169 and 60 Civil 4025) were brought by Joseph Carroll, Charles Peterson and Orchestra Leaders of Greater New York (hereinafter "OLGNY") on their own behalf and for an alleged class for violation of Section 302 (hereinafter the "Carroll actions). These actions were tried before me on March 5 to 9, 1962.

 The Carroll actions dealt, as does this action, with the legality of the local tax and the traveling surcharge which are required to be paid to the unions under their By-Laws. In an Opinion, Findings of Fact and Conclusions of Law dated June 25, 1962, I dismissed the complaints on the ground that Carroll and Peterson, being no longer members of the Union, did not have standing to secure the relief sought.

 In this case, the plaintiffs moved for a preliminary injunction on July 20, 1962, by order to show cause. On September 27, 1962, I rendered an Opinion with Findings of Fact and Conclusions of Law directing the entrance of a preliminary injunction against the defendants inuring to all of the then plaintiffs. An order to this effect was signed on October 16, 1962.

 Thereafter and by stipulation dated October 24, 1962 and confirmed by order dated October 24, 1962, the attorney for the plaintiffs in this action and the attorneys for the two above-mentioned defendants agreed that, upon the pleadings in this case; the transcript of the testimony and the exhibits in the trial in Carroll et al. v. Associated Musicians of Greater New York et al., 60 Civil 1169, and in Carroll et al. v. Associated Musicians of Greater New York et al., 60 Civil 4025, D.C., 206 F.Supp. 462, which took place on March 5 through 9, 1962; the affidavits and exhibits submitted by the plaintiffs in support of their motion for preliminary injunction dated July 20, 1962, the affidavits and exhibits submitted by the defendants in opposition thereto; and upon all other proceedings heretofore had herein, this court shall make findings of fact and conclusions of law and shall direct the entry of appropriate judgment but solely with respect to (a) the cause of action asserted by the plaintiff Ben Cutler, and (b) the class action alleged in the complaint herein.

 Based on the record as stipulated, I make the following Findings of Fact and Conclusions of Law.



 1. Plaintiff Ben Cutler at all times relevant herein was and now is an orchestra leader engaged in the so-called "single engagement" field and at the commencement of this action was and now is a member of defendants American Federation of Musicians of the United States and Canada ("Federation") and Associated Musicians of Greater New York Local 802 ("Local 802").

 2. Defendant Federation is a labor union or labor organization within the meaning of the Labor-Management Reporting and Disclosure Act of 1959. It is affiliated with the AFL-CIO and its principal office and place of business is at 425 Park Avenue, New York, N.Y. It is an international union comprising 683 local unions, including defendant Local 802, and is located throughout the United States and Canada. (Ballard, 665, 667) *fn1"

 3. Defendant Local 802 is a labor organization within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 and is affiliated with the defendant Federation. Its principal office and place of business is located at 261 West 52 Street, New York, 19, N.Y. Local 802 represents, among others, members who are leaders and sidemen *fn2" in the single engagement field. Under Federation By-Laws, the territorial jurisdiction of Local 802 consists of the five boroughs, of New York City and the Counties of Nassau and Suffolk. (Pl.Ex. 12, Section 6, p. 5; Cutler, 80-81; Arons, 453) *fn3"

 4. Membership in a local affiliated with Federation implies membership in the Federation. (Pl.Ex. 29, Sections 10 and 11, p. 34; Arons, 430).


 5. 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)

 6. 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)

 7. 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 of 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.Ex. 7, 11, Arts. 15, 16, 26, 27; Deft.Exs. AE, AL, AQ, AR, AR1)

 8. Cutler fulfills engagements outside the State of New York, in which he usually operates and in which his principal office is located. (See Cutler 154-155, 185)

 9. 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)

 10. 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)

 11. Plaintiff Cutler devotes his full time to his profession as leader. He never serves as sideman and his relationship with his clients or customers, who are normally engaged in other businesses or professions than his, is transient in nature.

 12. In the course of his business, plaintiff Cutler, among other things, customarily does the following:

 (a) Organizes his own bands (Cutler, 72);

 (b) Maintains his own offices where he employs steady and/or part-time employees (Cutler 77-78);

 (c) Acquires business as a result of his own contacts, reputation, and personal solicitations (Cutler, 78-79);

 (d) Engages in and pays for advertising (Cutler, 80-85, 87, 127-128, 261-262; Peterson, 360) and prominently displays his name wherever his engagements are played, thus indicating that the orchestra is the Ben Cutler Orchestra (Cutler, 116, 260, 347);

 (e) Negotiates and signs engagement contract with purchasers of music (Cutler, 91);

 (f) Generally leads or conducts his own orchestra (Cutler, 77) and appoints subleaders to lead when he does not do so himself (Cutler, 73);

 (g) Decides on how his orchestras are to render their pieces; choses the tempo and decides on the dynamics, tone coloring, volume and the type of syncopation, if any, which is to characterize the performance of his orchestras (Cutler, 117-118);

 (h) Decides, subject to union minimum requirements, on the number (Cutler, 91, 95) and qualifications of sidemen who are to play in his orchestras (Cutler, 72, 91);

 (i) Calls for rehearsals and trains his orchestras if he deems it necessary (Cutler, 129, 130); and

 (j) Corrects sidemen during a performance if necessary and otherwise disciplines or discharges those who are unsatisfactory (Cutler, 121-122).

 13. 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 ...

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