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CARROLL v. AMERICAN FEDN. OF MUSICIANS OF THE UNIT

May 17, 1965

Joseph CARROLL, Charles Peterson, and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiffs,
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 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 Hy Jaffe, as Treasurer of Local 802,Defendants



The opinion of the court was delivered by: LEVET

The plaintiff-orchestra leaders claim that the defendants American Federation of Musicians of the United States and Canada ('Federation' or 'AFM') and Associated Musicians of Greater New York Local 802 ('Local 802') have violated the antitrust laws. I have endeavored to categorize the multitude of alleged violations, making a sufficient number of Findings of Fact in each category to adequately define them. I have not found it either necessary or desirable to include every union regulation which might possibly be included in each category. The dispute in this case centers primarily on the applicable law and the interpretation to be given to the facts, rather than the facts themselves.

The court directed a consolidated trial in 60 Civil 2939 and 60 Civil 4926. The single set of Findings of Fact and Conclusions of Law relates to both actions.

 Since the class suit was not sustained, this opinion relates exclusively to the plaintiffs in the action. Nevertheless, the court has found evidence presented as to other orchestra leaders who in certain respects are similarly situated to the plaintiffs relevant in making findings relating to some of plaintiffs' practices.

 The parties stipulated that the testimony in 60 Civil 1169 and 60 Civil 4025 is part of the record in this case (1019-20). Consideration of damages was reserved for a time subsequent to the decision on liability.

 This case having been tried, the court, after considering the pleadings, evidence, exhibits, briefs and stipulations of the parties and the proposed findings of fact and conclusions of law, makes the Findings of Fact and Conclusions of Law listed below. *fn1"

 FINDINGS OF FACT

 I. THE PARTIES

 A. Plaintiffs

 1. Plaintiffs Joseph Carroll, Charles Peterson, Ben Cutler and Marty Levitt, at all times relevant herein, were and are orchestra leaders, and at the commencement of these actions were members of defendants AFM and Local 802. Neither Carroll nor Peterson is presently a member of defendant unions (Stipulated Fact 1).

 2. Plaintiffs Charles Turecamo and Dan Terry have withdrawn from the action.

 3. At all times relevant herein, plaintiff Peterson was an employee of corporations known as Charles Peterson Theatrical Productions, Inc. ('Peterson, Inc.') and Carlton M. Hub, Inc. ('Hub, Inc.'). Peterson was the sole stockholder of Peterson, Inc. and now controls Hub, Inc. (1755, 1983-84). Peterson always handled his musical engagements through Peterson, Inc. until recently when he began to use Hub, Inc. too (1756, 1983, 1986, Exs. GB, GG, GD).

 4. Plaintiff Peterson was expelled from the defendant unions for various reasons, including his failure to abide by the union minimum wage scale (2117-18; Exs. FR-FY).

 5. Plaintiff Carroll was expelled from Federation for failing to furnish Local 38 of the Federation with information pertaining to an engagement which he performed in Westchester County. He was also expelled by Local 802 for violation of various of its By-Laws, including his failure to abide by Local 802's wage scales (Carroll v. Associated Musicians of Greater New York, Local 802, 235 F.Supp. 161 (S.D.N.Y.1963)).

 6. There is no evidence that plaintiff Orchestra Leaders of Greater New York ('OLGNY') has in any way been damaged or aggrieved by any conduct of defendants or that it has any interest in these actions (see Stipulation of plaintiffs' counsel in letter to this court dated November 13, 1964).

 7. Plaintiff Levitt performs services on club dates (577) and on steady engagements in hotels and ballrooms (564, 571).

 8. Substantially all of plaintiff Cutler's services are performed in the club date field. (2227) He has also made one or two recordings and appeared on one television program (2560; St.Min. 83-84; Exs. 310, DR). In the steady engagement field he has performed in hotels, restaurants and nightclubs (2227; St.Min. 70-71).

 9. Plaintiff Peterson is primarily engaged in the club date single engagement field. He has also worked in concerts and in the steady engagement field in certain hotels and dance halls between 1945 and 1950 (1742-43; St.Min. 854-858).

 10. Plaintiff Carroll is 'almost exclusively' engaged in the club date single engagement field. He served as a leader in the steady engagement field at the Stork Club between 1945-48 (1425).

 11. The plaintiffs in practicing their professions:

 (a) maintain their own offices where they employ steady and/or part-time employees (567; St.Min. 71, 76-81, 258-59, 347, 360);

 (b) acquire business as a result of their own contacts, reputations, and personal solicitations (567; St.Min. 78-79, 261-62, 360);

 (c) engage in and pay for advertising (567; St.Min. 80-85, 87, 127-128, 261-262, 360) and prominently display their names wherever their engagements are played, thus indicating that the orchestra is, e.g., the Charles Peterson Orchestra (St.Min. 116, 260, 347).

 12. Because of Carroll's and Peterson's expulsions from the union, they were thereafter precluded from actively taking part in their engagements either as conductors or instrumentalists (1777-79, 1936-37, 2039-44, 2110-12). (See F.F. XV.)

 B. The Defendants

 13. Defendant Local 802 is a labor union affiliated with the defendant Federation and with the AFL-CIO. The territorial jurisdiction of defendant Local 802 consists of the five boroughs of New York City and Nassau and Suffolk Counties (Ex. CJ, Section 6, p. 5; St.Min. 80-81, 453).

 14. Local 802 has over 30,000 members. They perform musical services as conductors, instrumentalists, arrangers and copyists. Local 802 represents, and has traditionally represented, among others, members who are orchestra leaders, subleaders and sidemen, and has collective bargaining agreements with various employers (Stipulated Fact 2).

 15. Membership in a local affiliated with Federation implies membership in the Federation (Stipulated Fact 4).

 16. Defendant Federation is a labor union affiliated with the AFL-CIO and it consists of 683 local unions (including defendant Local 802) located throughout the United States and Canada (Stipulated Fact 5).

 17. Defendant Federation has over 260,000 members, who perform musical services as conductors, instrumentalists, arrangers and copyrights. The Federation represents, and has traditionally represented, among others, members who are orchestra leaders, subleaders and sidemen, and has collective bargaining agreements with various employers (Stipulated Fact 6).

 18. Almost all orchestra leaders and sidemen in the United States are members of AFM or one of its locals (84, 164-65, 1105).

 19. The AFM publishes and is governed by its 'Constitution, By-Laws and Policy' (Exs. 300, 12, 160, 161, 162, 163, 164, 164a, 164b). Likewise, Local 802 publishes and is governed by its Constitution and By-Laws (Exs. 165-172, 141, 29) and other booklets including Price Lists and Wage Scale Booklets (Exs. 173-195, 205-209, 306).

 20. Defendants Al Manuti, Max L. Arons and Hyman B. Jaffe are President, Secretary and Treasurer, respectively, of defendant Local 802 (Stipulated Fact 3).

 21. Defendants Herman D. Kenin, Stanley Ballard and George V. Clancy are President, Secretary and Treasurer, respectively, of the defendant Federation (Stipulated Fact 7).

 22. There is no evidence that any of the defendants who are officers of the defendant unions have committed, as individuals, any of the acts complained of by plaintiffs.

 23. The defendants Al Manuti, Max L. Arons and Hyman B. Jaffe, together with other members of Local 802, are members of Local 802's Executive Board (the 'Executive Board') (Ex. CJ, Section 4, p. 5).

 II. DEFINITIONS

 24. 'Single engagements' are engagements generally for one day, but always for less than one week (Stipulated Fact 8). All other engagements are referred to as 'steady engagements' (id.).

 25. For convenience of reference in this opinion, certain types of engagements sharing some common characteristics will be referred to as groups. Thus, a 'club date' is a single engagement such as a wedding, commencement, bar mitzvah, debutante party, fashion show, or other social event (Stipulated Fact 8; St.Min. 69, 242-43, 438, 457-59, 806). Steady engagements at hotels, nightclubs, dance halls or restaurants will be called 'hotel' steady engagements. Single engagements other than club date single engagements (3108, 3183-84, 3830-31, 3841), e.g., TV, recording, and all steady engagements, will be referred to as the 'non-club date' field.

 III. MUSIC INDUSTRY GENERALLY

 26. Members of defendant unions perform services as orchestra leaders, subleaders and sidemen on club dates and for hotels, restaurants, nightclubs, recording companies, broadcasting companies, theatres, steamships, and for The Radio City Music Hall, The Metropolitan Opera, The New York Philharmonic Society, and The City Center of New York (see F.F. I(A), supra, III, XIV, infra).

 27. Plaintiffs and intervenors are in a market for musical services which includes states other than New York, as well as New York (1425, 2227, 2231).

 28. Musical employment is highly casual, and except for employment by symphonic orchestras, a few opera societies and on staffs of network owned radio and television broadcasters, job tenure and enduring employer-employee relationships rarely exist (3673).

 29. Musicians do not confine their activities to any one musical field. They seek engagements and perform services in any musical field where job opportunities exist (3291-96, 2156, 2159-65, 2417-18, 2875, 2889-90, 1159, 1160, Ex. CR). Thus, musicians who perform services as orchestra leaders, subleaders and sidemen in the club date field also perform services in non-club date fields (1160, 1314-15, 2417-18, 3074-75, 3291-96, 3661-62). Conversely, musicians who perform in the non-club date fields also work as leaders, subleaders, or sidemen in the club date field when they are not otherwise engaged (564, 571, 1818, 1820, 1860, 1927-29, 2154-57, 2159-65, 2227-28, 2290-91, 2417-18, 2430, 2889-90, 3074-75, 3291-96, 3661-62).

 30. The number of steady engagements is a small minority of the total number of engagements, single and steady (274-75, 350-51, 3108-09).

 IV. LEADERS GENERALLY

 31. Orchestra leaders, including plaintiffs, conduct at engagements at which they personally appear (839-41, 960, 1311, 1427; St.Min. 116, 393).

 32. Conducting is a musical service and orchestra leaders, when conducting, fulfill the same function, whether they are 'employers' (for any purpose) or 'employees' (Stipulated Fact 11), and whether they are working in the single engagement or the steady engagement field. (578-79, 713-16, 1054-56, 1182-83, 3535-36).

 33. Only a relatively small group of musicians act as leaders all or virtually all the time. Plaintiffs are included in this group (3666-67; Ex. 58).

 V. JOB OR WAGE COMPETITION OR OTHER ECONOMIC INTER-RELATIONSHIP BETWEEN LEADERS AND OTHER UNION MEMBERS

 A. Interrelationship between leaders and sidemen who occasionally lead

 34. A considerable number of musicians act only occasionally as leaders and act as sidemen the rest of the time (Exs. K, L, M; Stipulated Fact 10).

 35. Such musicians who work as sidemen in club date or non-club date fields perform as leaders in the hotel steady and club date fields. They bid for the same jobs as full-time leaders such as plaintiffs and perform the same musical service when they get a job. They also perform in the same places as full-time leaders (2291, 2553-54, 2571, 2395-96, 2411-12, 2422-23, 2427, 2428-30, 2874-75 2889-90, 2894, 3038-40, 3052-54, 3088-89, 3293, 3653-54, 3666-68, Exs. 58, DE, pp. 188-89, HE; F.F. 29).

 B. Interrelationship between leaders and subleaders

 36. Plaintiffs belong to a group of orchestra leaders operating primarily in the club date field and occasionally in the hotel steady field who regularly use subleaders for their engagements. They generally do this when they accept simultaneous engagements for more than one orchestra. Subject to instructions which are sometimes given by the leader, the subleader performs all the musical services which the leader who have performed had he been present (327, 565-66, 573, 582, 607 616-17, 812, 826-27, 708, 838, 965, 1010-11, 1193-94, 1864-66, 1896, 2604-06, 3045; St.Min. 73, 76, 130-31, 176, 276, 307, 314, 393, 801, 873-74).

 37. Subleaders are employees (conceded by plaintiffs in making defendants' proposed findings of fact).

 38. Each time plaintiffs personally conduct an orchestra in the hotel steady and club date fields they displace the services of a subleader who would otherwise have been engaged to conduct the orchestra (583-84, 565-66, 573, 582, 617, 704, 845, 812-14, 960-65, 1194, 1313, 1353, 1375-76, 1778-79, 2039-44, 2604-06; St.Min. 83-84; F.F. 36).

 C. Interrelationship between leaders and sidemen

 39. Instrumentalists who perform services in orchestra other than as leaders or subleaders are referred to as sidemen.

 40. Sidemen are employees (conceded by plaintiffs in making defendants' proposed findings of fact).

 41. Almost without exception all members of defendant unions who are now orchestra leaders (including the individual plaintiffs herein) worked as sidemen when they joined defendant unions and continued to work as sidemen for a number of years thereafter (Stipulated Fact 13).

 42. All members of Local 802 are entitled to have their names included in the directory of membership of Local 802 under whatever category they select. Each of the individual plaintiffs, while a member of the union, was included in the directory as an instrumentalist. For example, Cutler is listed under the heading 'saxophone,' and Carroll was listed under the heading 'drums' (Stipulated Fact 9).

 43. Plaintiffs other than Peterson (2039) belong to a group of orchestra leaders, operating primarily in the club date field and occasionally in the hotel steady field, who often, but not always, play musical instruments in addition to conducting at engagements at which they personally appear (524, 609-10, 826, 839-40, 957-58, 961-62, 1194, 1311-12, 1352, 1375, 1427, 2370; Ex. DE p. 37; St.Min. 117).

 44. An orchestra leader in playing an instrument, fills a requirement for an instrument in the orchestra just as any sideman does (194-95, 842, 1313-14, 1353, 1375-76, 3054-55).

 45. Each time plaintiffs play instruments in the hotel steady or club date field they displace the services of a sideman who otherwise would have been engaged to play the same instrument that the particular plaintiff played (F.F. 43, 44; 609-10, 842, 958-62, 1194-95, 1313-14, 1353, 1375-76, 1778-79, 3657).

 VI. EMPLOYMENT RELATION IN TELEVISION AND RADIO

 46. For many years Federation has entered into collective agreements with the three major television and radio broadcasting networks, viz., Columbia Broadcasting System, Inc., American Broadcasting-Paramount Theatres, Inc., and National Broadcasting Company, Inc. In addition, Local 802 enters into collective bargaining agreements with stations owned by the networks and with various other independently-owned stations, including WPIX (Exs. BL 1-4, BM, BN, BT, IO, IP, KJ, KM).

 47. The network agreements result from joint negotiations with the three networks and similar individual collective bargaining agreements are entered into with each of the three networks (2258-66).

 48. The network collective agreements relate primarily to two areas of broadcasting, viz.:

 (a) live and video tape broadcasting (Exs. BL 1-4) under an agreement dated May 18, 1964 for a term commencing March 1, 1964 and ending June 30, 1966; and

 (b) the recording of musical services on television film (Ex. IO) pursuant to an agreement dated May 1, 1964 for a term commencing May 1, 1964 and ending April 30, 1969 (2258-59).

 49. The cost of furnishing music is a considerable expense to the networks and other broadcasting stations (2258, 2302).

 50. Pursuant to collective agreements, each of the network broadcasting companies engages approximately 100 musicians, including orchestra leaders, who perform services on a regular annual basis (2262-63, 2268-69, 2305-06; Ex. BL 1-4). The musicians so engaged are generally referred to as 'staff musicians' (2264, 2268-69). The networks, in addition, also employ musicians on a single engagement basis (2264, 2292-93, Ex. BL 1-4).

 51. With regard to the services of musicians, whether employed either on a staff or a single engagement basis, each network broadcasting company, through the director of music operations or producer of a show:

 (a) hires the orchestra leader (2256-57, 2270, 2271, 2317);

 (b) hires each of the sidemen (2256-57, 2271, 2272-73);

 (c) decides, subject to union minimum requirements, on the number of leaders and sidemen who are to be engaged (2272-73);

 (d) determines, subject to contractual obligation, the compensation of musicians (2326);

 (e) selects the sidemen who will play for the orchestra leader (2272). (The musicians performing services for the broadcasting company play under the leadership of different orchestra leaders, some of whom are staff conductors and others, guest conductors (2269, 2277-78));

 (f) determines the compositions to be played (2273-74);

 (g) exercises control over the musical direction and decides how the orchestras are to render their pieces, including such things as tempo and variations in an arrangement (2275-76, 2280, 2311-12, 2319-20); sometimes the orchestra leader will provide guidance to the TV executive responsible for the program (2321);

 (h) calls for rehearsals (2274);

 (i) disciplines and discharges musicians who are unsatisfactory (2288-89, 2323; Ex. IP, pp. 13, 26);

 (j) pays all expenses connected with the performances of the orchestras, including the cost of arrangements, the orchestra leader's salary, the sideman's salary, doubling, cartage fees, wardrobe allowance, extra compensation where makeup or costumes are required, transportation, insurance of instruments (2272-73, 2281-84, 2317; Exs. BL 1, 3, par. 5; BL 4, p. 9; IP, pp. 18, 20, 21; IO);

 (k) furnishes paid vacations, meal periods and rest periods (2281-82);

 (l) makes payments on behalf of the musicians to a pension welfare fund (Ex. BL 1, 3, par. 9; 2281);

 (m) pays severance pay to laid-off musicians (2265).

 52. The person vested with control over live and video tape broadcasts is the producer of the particular program involved. The producer of programs owned by the networks is an employee of the broadcasting company (2313-14).

 53. Music for television films generally consists of background music which is inserted after the performance has already taken place and been captured on film. The persons responsible for the music on television film are the musical director and producer, both of whom are employed by the network broadcasting company (2284-86, 2319-20). The musical director, working in conjunction with the producer of a particular program, customarily does the following things with regard to the services of musicians:

 (a) determines the type of music to be used in the film (2284-85, 2320);

 (d) determines the persons who are to compose and arrange the music (2284, 2320);

 (c) determines the orchestra leader to be used (2257, 2320);

 (d) determines the sidemen to be used (2257, 2320);

  (e) determines when the music is to be recorded on the tape which will be integrated with the film (2285-86); and

  (f) supervises the integration of the music with the film so that the music sound tract is coordinated with the filmed action (2286-88).

  54. The broadcasting companies withhold and pay over to the appropriate governmental agencies the usual employer deductions for all musicians, including orchestra leaders (2271). On rare occasions (less than six times a year for CBS), a broadcasting company engages the services of a name band and a lump sum is paid to the orchestra leader in payment for his services and the services of the sideman performing with him (2297, 2299-2300, 2323).

  55. The minimum union wages and working conditions relating to single engagements for networks are set forth in the collective agreements between the networks and defendant unions and are summarized in the booklet published by Local 802 entitled, 'Price List Governing Single Engagements Radio and Television' (Ex. GJ; 2327).

  56. The broadcasting companies have effective control over the rendition of services by musicians engaged by the broadcasting companies (2276-77, 2284-85, 2288, 2313-14, 2317, 2321).

  57. Plaintiff Cutler performed services as a leader for a telecast by Station WPIX, New York (Ex. DR-3). Plaintiff Cutler was paid by separate check and all employer deductions were made by Station WPIX (id.). There is no evidence that the degree of control exercised by the broadcasting company over the services of the musicians on Cutler's engagement differed from the control exercised by the broadcasting companies over musicians as set forth above.

  VII. EMPLOYMENT RELATIONSHIP IN RECORDING

  58. Federation has entered into collective agreements with manufacturers of home phonograph records ('recording companies'). An agreement with recording companies expired December 31, 1963, and at that time an understanding had been reached between Federation and the recording companies with respect to the terms of a new collective agreement, which has not yet been reduced to writing (134-35).

  59. The collective agreement between Federation and recording companies covers upwards of 1,000 recording companies and includes every major manufacturer of records in the United States and Canada (Ex. FG-1).

  60. Federation has been certified by the National Labor Relations Board ('NLRB') as the collective bargaining agent for all musicians, including orchestra leaders, who perform services for recording companies (Ex. BE).

  61. Musicians perform services of recording companies on a single engagement basis (1527, 2757).

  62. Recording companies are in the business of manufacturing phonograph records which embody musical performances of members of defendant unions (1465-66, 1504, 2752-53).

  63. An employee of the recording company known as the 'artist and repertoire representative' (the 'A&R man') has the ultimate responsibility for the musical product embodied in the phonograph recording. He actively participates in and has the last word in determining the nature of the various elements which comprise the recorded performance. In exercising this control the A&R man generally consults with the arranger-conductor and/or the vocalist, if any (2754-62, 2768-69, 2770-72, 2775-76, 1482, 1496, 1499-1502, 1504-05, 1508-11, 1518-19, 1522).

  (a) A substantial number, probably a majority, of the popular recordings made feature vocalists rather than orchestras (2754, 2769, 1523-24).

  (b) The conductor of the orchestra used for recordings is also usually the arranger (2755, 1501-02).

  64. The A&R man exercises the above-mentioned control over the following aspects of the preparation for the ...


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