# American Federation of Musicians of United States and Canada v. Carroll

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## Dissenting Opinions

    White
    Douglas
United States Supreme Court
391 U.S. 99
American Federation of Musicians of United States and Canada et al. v. Carroll et al.
Certiorari to the United States Court of Appeals for the Second Circuit
No. 309. Argued: March 4, 1968 --- Decided: May 20, 1968
Respondents in No. 309, four orchestra leaders, brought this action for injunctive relief and treble damages, alleging that petitioners in No. 309, an international musicians union and one of its locals, violated §§ 1 and 2 of the Sherman Act. The challenged practices mainly concerned "club-date" engagements where an orchestra through arrangement with the purchaser of the music made by a musician or booking agent plays for a special occasion. The musician making the arrangements assumes the role of "leader," performs himself (or designates a "subleader"), and engages a number of instrumentalists ("sidemen"). Petitioners' practices result from unilaterally adopted union bylaws and regulations whereby petitioners with respect to orchestra leaders: pressure them to become union members; insist upon a closed shop; refuse to bargain collectively; impose minimum employment quotas; require them to use a special ("Form B") contract or (where Local 802 is concerned) to agree to all union regulations and pay minimum wages; require them to favor local musicians by making them pay higher wages to musicians from outside a local's jurisdiction; require them to charge music producers minimum prices prescribed in a "Price List Booklet" (which are the total of: the minimum wage scales for sidemen, a "leader's fee" which is double the sideman's scale when four or more musicians compose the orchestra, and an additional 8%; and a sub leader with four or more musicians must be paid 1½ times the wage scale out of the leader's fee); prevent them from accepting engagements from or making payments to caterers; and allow them to accept engagements by booking agents only if union-licensed. Respondents contended that petitioners' involvement of the orchestra leaders in these practices created a conspiracy with a "non-labor" group. The District Court dismissed the action on the merits, holding that the challenged practices "come within the definition of the term 'labor dispute' and are exempt from the antitrust laws" under the Norris-LaGuardia Act. The Court of Appeals, though otherwise affirming the dismissal, reversed on the alleged price-fixing issue, holding that the "Price List" was not within the labor exemption and that its establishment of price floors constituted a per se violation of the Sherman Act.
Held: Petitioners' involvement of the orchestra leaders in the promulgation and enforcement of the challenged regulations and bylaws does not create a combination or conspiracy in violation of the Sherman Act but falls within the exemption of the Norris-LaGuardia Act since the orchestra leaders were a "labor" group and parties to a "labor dispute." Pp. 102, 105-114.
    (a) The District Court correctly stated the criterion for determining that the orchestra leaders were a "labor" group and parties to a "labor dispute" as the "presence of a job or wave competition or some other economic relationship affecting legitimate union interests between the union members and the independent contractors. If such a relationship existed the independent contractors were a 'labor group' and party to a labor dispute under the Norris-LaGuardia Act." 241 F. Supp., at 887. Pp. 105-106.
    (b) The allowable area of union activity under the Norris-LaGuardia Act is not restricted to an immediate employer-employee relation. P. 106.
    (c) With respect to petitioners' practices (other than those described in (d) and (e), infra), the District Court found that the orchestra leaders performed work and functions actually or potentially affecting the hours, wages, job security, and working conditions of petitioners' members; and these findings, which were substantially supported by the evidence, warranted the conclusion that such practices were lawful. Pp. 106-107.
    (d) The "Price List" was lawful since its price floors were expressly designed to and did function as a protection of the wage scales of sidemen and subleaders, who are employees on club-dates, against the job and wage competition of the leaders. Teamsters Union v. Oliver, 358 U.S. 283. Pp. 107-113.
    (e) The caterer and booking agent restrictions, which were as closely connected with the subject of wages as were the price floors, were also lawful. Pp. 113-114.
372 F. 2d 155, vacated and remanded.
Ronald Rosenberg argued the cause for petitioners in No. 309 and respondents in No. 310. With him on the briefs were Henry Kaiser, Eugene Gressman, George Kaufmann, Jerome H. Adler, and David I. Ashe.
Godfrey P. Schmidt argued the cause and filed briefs for respondents in No. 309 and petitioners in No. 310.
Briefs of amici curiae were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Shayle P. Fox and Samuel H. Young for the National Association of Orchestra Leaders.

## Notes

* ↑ Together with No. 310, Carroll et al. v. American Federation of Musicians of the United States and Canada et al., also on certiorari to the same court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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