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January 15, 1963

Joseph CARROLL, Plaintiff,
ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, and American Federation of Musicians of the United States and Canada, Defendants

The opinion of the court was delivered by: LEVET

This action, the fifth, continues unabated this 'battle of injunctions' between the parties and adds the latest chapter to the rhapsody of their contest. *fn1" Presently the plaintiff Carroll seeks injunctive relief requiring the nullification of his expulsion from defendant unions; his reinstatement as a member and the prevention of imposition by the defendants of any retaliatory measures or any interference with his business. The action is premised on the allegation that, in expelling him, the defendants violated Section 101(a)(2), 101(a)(4), 101(a)(5) of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. § 411.

The controversy has a long and dissonant history, without a knowledge of which the present action and its present disposition cannot properly be readily understood.

 Two of the actions (60 Civ. 1169 and 60 Civ. 4025) charged the defendants with violating Section 302 of the Labor Management Relations Act (LMRA), as amended, 29 U.S.C. § 186, by exacting from plaintiffs, as employers, (a) a 10% Traveling surcharge; (b) a 1 1/2% Local tax and (c) a welfare overcharge of $ 1.00 per man per engagement. These actions were tried before me on March 5-9, 1962. After finding that the plaintiffs (Carroll and others) were acting as employers in the single engagement field and that, as such, these exactions were illegal, the complaints were dismissed because the plaintiffs lacked standing to challenge the taxes, having failed to show that as ex-members they were obligated to pay the illegal taxes or that they were subject to any reprisals by the defendants for failure to do so. (206 F.Supp. 462 (S.D.N.Y.1962).) Hereinafter these actions are referred to as the '302 actions.'

 In the other two actions (60 Civ. 2939 and 60 Civ. 4926), which remain to be tried, the plaintiffs, Carroll and others, allege that the defendant unions conspired with certain orchestra leader-employers to fix prices in violation of the Federal anti-trust laws. Specifically these actions were directed against certain price lists issued by defendants. 60 Civ. 2939 is directed against the price list governing single and steady engagements promulgated by Local 802. 60 Civ. 4926 similarly attacks the 'General Scale Increase for Special Class Club Dates,' promulgated by the defendants.

 In the Cutler action, I found that Cutler, an orchestra leader operating in a manner essentially identical to the plaintiff Carroll, was an employer when operating in the single engagement field and, as to him, the local tax and the traveling surcharge were illegal as violative of Section 302, 29 U.S.C. § 186. (See Opinion, Findings of Fact and Conclusions of Law, filed November 2, 1962.)

 At the hearing held in this case both sides stipulated that the court might enter final judgment in this case (as to injunctive relief) based on a record consisting not only of the papers filed in this case but in all the prior proceedings, testimony and exhibits in the other actions.

 After considering this record as stipulated to by the parties, the court makes the following Findings of Fact and Conclusions of Law: *fn2"



 1. Plaintiff Joseph Carroll, at all times relevant herein, was and is an orchestra leader engaged in the so-called 'single engagement field' *fn3" (302 Carroll 258) and until January 2, 1962, was, and for many years had been, a member of defendant unions.

 2. Defendant American Federation of Musicians of the United States and Canada (Federation) is a labor union or labor organization within the meaning of Section 3, subdivision (i) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 402(i). 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 located throughout the United States and Canada. (302 Ballard 665, 667)

 3. Defendant Local 802 is a labor organization within the meaning of Section 3, subdivision (i) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 402(i), 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 *fn4" 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. (302 Pl. Ex. 12, Section 6, p. 5; 302 Cutler 80-81; 302 Arons 453)

 4. Membership in a local affiliated with the Federation implies membership in the Federation. (302 Pl. Ex. 29, §§ 10, 11; 302 Arons 430)


 5. The single engagement field is an industry affecting interstate commerce. Orchestra leaders, such as plaintiff, fulfill engagements outside the state in which they usually operate and in which their principal offices are located. (302 Pl. Exs. 19, 21, 40, 41; 302 Cutler 154-55, 185; 302 Carroll 265-68; 302 Peterson 349-53, 383-87, 397-99) 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. See, e.g., Ballard Aff. Ex. A, pp. 104, 109, 114-15; 302 Pl. Ex. 7, p. 23. Defendants' own publications and practices, such as their 10% Traveling surcharge, their rules and regulations pertaining to traveling members, their mileage charges, demonstrate that defendants 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. (302 Def. Exs. AE, AL, AQ, AR, AR1)

 6. Plaintiff Carroll devotes his full time to his profession as orchestra leader, and his relationship with his clients, who are normally engaged in other businesses or professions, is transcient in nature. As an orchestra leader, plaintiff regularly employs sidemen who are members of defendants, to whom he regularly pays union wages, and who work under union standards prescribed by defendants.

 7. Plaintiff Carroll fulfills engagements outside of the State of New York, in which he usually operates and in which his principal office is located. (302 Pl. Exs. 19, 21, 40, 41; 302 Carroll 265-68)

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

 (a) Organizes his own band (302 Carroll 260);

 (b) Maintains his own offices, where he employs steady and/or part-time employees (302 Cutler 77-78; 302 Peterson, 347, 360);

 (c) Acquires business as a result of his own contacts, reputation and personal solicitation (302 Carroll 261-62);

 (d) Engages in and pays for advertising and prominently displays his name wherever his engagements are played, indicating that the orchestra is the Joseph Carroll Orchestra (302 Cutler 80-85, 87, 116, 127-28, 260-62, 347; 302 Peterson 360);

 (e) Negotiates and signs contracts with purchasers of music (302 Carroll 260-61; 302 Cutler 91; 302 Peterson 359);

 (f) Leads or conducts his own orchestra (302 Carroll 260) and appoints sub-leaders to lead when he does not do so himself (302 Carroll 276);

 (g) Decides on how his orchestras are to render their pieces, chooses 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 (302 Carroll 269-70);

 (h) Decides, subject to union minimum requirements, on the number (302 Carroll 264) and qualifications of sidemen who are to play in his orchestras (302 Carroll 262);

 (i) Calls for rehearsals and trains his orchestras if he deems it necessary (302 Carroll 275);

 (j) Corrects sidemen during a performance, if necessary, and otherwise disciplines or discharges those who are unsatisfactory. (302 Carroll 273)

 9. 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 his orchestras in rendering performances.

 10. Carroll pays all expenses connected with the performances of his orchestras, including, among other things, subject to union minimums, sidemen's salaries (302 Carroll 262-63); uniforms, if any, worn by his sidemen during engagements (302 Carroll 270); mileage fees, cartage fees, food and lodging for his orchestras (302 Carroll 265, 277); sheet music racks; and special arrangements of music to be played by his orchestras. (302 Carroll 270)

 11. Carroll, in connection with the employment of his sidemen, withholds and pays over to the appropriate governmental agencies federal and state withholding taxes and social security. In addition, he pays workmen's compensation and disability insurance on behalf of his sidemen. These items are paid because, under the particular governmental regulations involved, orchestra leaders are regarded as 'employers.' (302 Carroll 274)

 12. This court has heretofore found that as to orchestra leaders who act as employers in the single engagement field, the 10% Traveling surcharge defined and promulgated by defendants in Article 15 of the Federation's Constitution is not legally collectible from said orchestra leaders. (See Cutler v. American Federation of Musicians, 62 Civ. 2552 (S.D.N.Y., November 2, 1962); cf. Carroll v. American Federation of Musicians, 206 F.Supp. 462.)


 13. On May 18, 1961, plaintiff was rehearsing with a seven-man orchestra for a show to be performed on May 19-20, 1961 at the Scarsdale High School with a dance to follow on Saturday night, May 20, at the Bonnie Briar Country Club. On May 18, 1961, he informed a business agent of Local 38 of the number of musicians at each performance. On May 19, 1961, plaintiff informed John Ravese, secretary of Local 38, of the engagement. Ravese requested plaintiff to inform him of the amount palintiff was being paid for the engagement. Plaintiff refused to do so. (Ravese Aff., pp. 1-2)

 14. On May 29, 1961, Ravese wrote plaintiff:

 'This is to advise that you are charged with failure to file contract, or in lieu thereof a notification containing essential details for your engagements at Scarsdale High School on May 18, 19, 20, This is a violation of Article 17, Sections 1, 2, of the National by-laws and Article XIII, of the Local by-laws.

 'Accordingly, you are summoned to appear before the Executive Board of this Local to answer said charge on Monday, June 19, 9:00 P.M. at this office 132 Larchmont Ave., Larchmont, N.Y.' (Ravese Aff., Ex. 1)

 15. Article 17, Section 1 of the National By-Laws in substance requires a member of the Federation or a leader to submit his contract for the engagement to the Local in whose jurisdiction it is to be performed, or, in lieu thereof, to file a written statement explaining the conditions under which it is to be played, including the amount of money contracted for. (Ballard Aff., Ex. A)

 16. In response, plaintiff appended a note to the letter of May 29, 1961, stating that the union delegate was informed of the details of the engagement at the rehearsal on May 18, 1961 and that Ravese himself had been informed by phone on May 20. Plaintiff requested the amount of the traveling surcharge which was due on the engagements. Plaintiff stated that the Form B contract would never be used by him as long as it remained in its present form. The note then stated:

 '5/18 7 men just a show in a

 high school

 No dancing -- how ...

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