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 purchasers 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 subleader with four or more musicians must be
paid 1 1/2 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.
Page 391 U. S. 100
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
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. 391 U. S. 102
391 U. S.
(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 wage 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. 391 U. S.
(b) The allowable area of union activity under the
Norris-LaGuardia Act is not restricted to an immediate
employer-employee relation. P. 391 U. S.
(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. 391 U. S.
(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
391 U. S.
(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. 391 U. S.
372 F.2d 155, vacated and remanded.
Page 391 U. S. 101
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This action for injunctive relief and treble damages alleging
violations of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C.
§ § 1 and 2, was brought in the District Court for the Southern
District of New York against the petitioners in No. 309, American
Federation of Musicians and its Local 802. [Footnote 1
] The question is whether union practices of
the petitioners affecting orchestra leaders violate the Sherman Act
as activities in combination with a "non-labor" group, or are
exempted by the Norris-LaGuardia Act as activities affecting a
"labor" group which is party to a "labor dispute." [Footnote 2
] After a
Page 391 U. S. 102
five-week trial without a jury, the District Court dismissed the
action on the merits, holding that all of the petitioners'
practices brought in question "come within the definition of the
term labor dispute' . . . , and are exempt from the antitrust
laws." 241 F.
Supp. 865, 894. The Court of Appeals for the Second Circuit
reversed on the issue of alleged price-fixing, but in all other
respects affirmed the dismissal. 372 F.2d 155. Both parties sought
certiorari, in No. 309 the petitioners from the reversal of the
dismissal in respect of alleged price-fixing, and in No. 310, the
respondents from the affirmance of the dismissal in the other
respects. We granted both petitions, 389 U.S. 817. We hold that the
District Court properly dismissed the action on the merits, and
that the Court of Appeals should have affirmed the District Court
judgment in its entirety.
The petitioners are labor unions of professional musicians. The
union practices questioned here are mainly those applied to "club
date" engagements of union members. These are one-time engagements
of orchestras to provide music, usually for only a few hours, at
such social events as weddings, fashion shows, commencements, and
the like. [Footnote 3
purchaser of the music, e.g.,
the father of the bride, the
chairman of the events, etc., makes arrangements with a musician,
or with a musician's booking agent, for an orchestra of a conductor
and a given number
Page 391 U. S. 103
of instrumentalists, or "sidemen," at a specified time and
place. The musician in such cases assumes the role of "leader" of
the orchestra, obtains the "sidemen" and attends to the bookkeeping
and other details of the engagement. Usually the "leader" performs
with the orchestra, sometimes only conducting, but often also
playing an instrument. When he does not personally appear, he
designates a "subleader" who conducts for him and often also plays
A musician performing "club dates" may perform in different
capacities on the same day or during the same week, at times as
leader and other times as subleader or sideman. The four
respondents, however, are musicians who usually act as leaders and
maintain offices and employ personnel to solicit engagements
through advertising and personal contacts. When two or more
engagements are accepted for the same time, each of the respondents
will conduct, and, except respondent Peterson, sometimes play, at
one and designate a subleader to perform the functions of leader at
the other. [Footnote 4
The four respondents were members of the petitioner Federation
and Local 802 when this suit was filed. [Footnote 5
] Virtually all musicians in the United
States and the great
Page 391 U. S. 104
majority of the orchestra leaders are union members. There are
no collective bargaining agreements in the club date field.
engagements are rigidly regulated by unilaterally adopted union
bylaws and regulations. Under these bylaws and regulations,
(1) Petitioners enforce a closed shop and exert various
pressures upon orchestra leaders to become union members.
(2) Orchestra leaders must engage a minimum number of sidemen
for club date engagements.
(3) Orchestra leaders must charge purchasers of music minimum
prices prescribed in a "Price List Booklet." The prices are the
total of (a) the minimum wage scales for sidemen, (b) a "leader's
fee" which is double the sideman's scale when four or more
musicians compose the orchestra, and (c) an additional 8% to cover
social security, unemployment insurance, and other expenses. When
the leader does not personally appear at an engagement, but
designates a subleader and four or more musicians perform, the
leader must pay the subleader one and one-half times the wage scale
out of his "leader's fee."
(4) Orchestra leaders are required to use a form of contract,
called the Form B contract, for all engagements. In the club date
field, however, Local 802 accepts assurances that the terms of club
date engagements comply with all union regulations and provide for
payment of the minimum wage. Union business agents police
Page 391 U. S. 105
(5) Additional regulations apply to traveling engagements. The
leader of a traveling orchestra must charge 10% more than the
minimum price of either the home local or of the local in whose
territory the orchestra is playing, whichever is greater.
(6) Orchestra leaders are prohibited from accepting engagements
from or making any payments to caterers.
(7) Orchestra leaders may accept engagements made by booking
agents only if the booking agents have been licensed by the unions
under standard forms of license agreements provided by the
The District Court assumed, and the Court of Appeals held, that
orchestra leaders in the club date field are employers and
independent contractors. [Footnote
] Respondents argue that petitioners' involvement of the
orchestra leaders in the promulgation and enforcement of the
challenged regulations and bylaws creates a combination or
conspiracy with a "non-labor" group which violates the Sherman Act.
Allen Bradley Co. v. Union, 325 U.
, 325 U. S. 800
Los Angeles Meat & Provision Drivers Union v. United
States, 371 U. S. 94
Mine Workers v. Pennington, 381 U.
. But the Court of Appeals concurred in the
finding of the District Court that such orchestra leaders, although
deemed to be employers and independent contractors, constitute not
a "non-labor" group, but a "labor" group. 372 F.2d at 168.
The criterion applied by the District Court in determining that
the orchestra leaders were a "labor" group
Page 391 U. S. 106
and parties to a "labor dispute" was the
"presence of a job or wage competition or some other economic
interrelationship 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
241 F. Supp. at 887. The Court of Appeals held, and we agree,
that this is a correct statement of the applicable principles. The
Norris-LaGuardia Act took all "labor disputes" as therein defined
outside the reach of the Sherman Act and established that the
allowable area of union activity was not to be restricted to an
immediate employer-employee relation. United States v.
Hutcheson, 312 U. S. 219
312 U. S.
-236; Allen Bradley Co. v. Union, supra,
325 U. S.
-806; Los Angeles Meat & Provision Drivers
Union v. United States, supra,
at 371 U. S. 103
Milk Wagon Drivers' Union v. Lake Valley Farm Prods.,
311 U. S. 91
"This Court has recognized that a legitimate aim of any national
labor organization is to obtain uniformity of labor standards and
that a consequence of such union activity may be to eliminate
competition based on differences in such standards."
Mine Workers v. Pennington, 381 U.
, 381 U. S. 666
The District Court found that the orchestra leaders performed work
and functions which actually or potentially affected the hours,
wages, job security, and working conditions of petitioners'
members. [Footnote 9
findings have substantial support in the evidence, and, in the
light of the job and wage competition thus established, both courts
correctly held that it was lawful for petitioners to pressure the
orchestra leaders to become union members,
Page 391 U. S. 107
Los Angeles Meat Drivers, supra,
and Milk Wagon
to insist upon a closed shop, United
States v. American Federation of Musicians,
318 U.S. 741,
affirming 47 F. Supp.
, to refuse to bargain collectively with the leaders,
see Hunt v. Crumboch, 325 U. S. 821
impose the minimum employment quotas complained of, United
States v. American Federation of Musicians, supra,
the orchestra leaders to use the Form B contract, see Teamsters
Union v. Oliver, 362 U. S. 605
), and to favor local musicians by requiring
that higher wages be paid to musicians from outside a local's
jurisdiction, Rambusch Decorating Co. v. Brotherhood of
105 F.2d 134.
The District Court also sustained the legality of the "Price
"In view of the competition between leaders and sidemen and
subleaders which underlies the finding that the leaders are a labor
group, the union has a legitimate interest in fixing minimum fees
for a participating leader and minimum engagement prices equal to
the total minimum wages of the sidemen and the participating
241 F. Supp. at 890. The Court of Appeals, one judge dissenting,
disagreed that the "Price List" was within the labor exemption,
stating that "the unions' establishment of price floors on
orchestral engagements constitutes a per se
the Sherman Act." 372 F.2d at 165. The premise of the majority's
conclusion was that the "Price List" was disqualified for the
exemption because its concern is "prices," and not "wages." But
this overlooks the necessity of inquiry beyond the form. MR.
JUSTICE WHITE's opinion in Meat Cutters v. Jewel Tea,
381 U. S. 676
381 U. S. 690
n. 5, emphasized that "[t]he crucial determinant is not the form of
the agreement -- e.g.,
prices or wages -- but its relative
impact on the product market and the interests of union members."
It is therefore not dispositive of the question that petitioners'
regulation in form establishes price floors.
Page 391 U. S. 108
The critical inquiry is whether the price floors in actuality
operate to protect the wages of the subleader and sidemen. The
District Court found that the price floors were expressly designed
to, and did, function as a protection of sidemen's and subleaders'
wage scales against the job and wage competition of the leaders.
The Court said:
"As a consequence of this relationship, the practices of
[orchestra leaders] when they lead and play must have a vital
effect on the working conditions of the non-leader members of the
union. If they undercut the union wage scale or do not adhere to
union regulations regarding hours or other working conditions when
they perform, they will undermine these union standards. They would
put pressure on the union members they compete with to
correspondingly lower their own demands."
241 F. Supp. at 888. The Court of Appeals itself expressed a
similar view in saying:
"even those orchestra leaders who, as employers in club dates,
lead but never perform as players, are proper subjects for
membership because they are in job competition with union
sub-leaders; each time a non-union orchestra leader performs, he
displaces a 'union job' with a 'non-union job.'"
372 F.2d at 168. And, of particular significance, the Court of
Appeals noted that, where the leader performs
"the services of a sub-leader would not be required and the
leader may in this way save the wages he would otherwise have to
pay. Consequently, he could make the services of his orchestra
available at a lower price than could a non-performing leader."
372 F.2d at 166.
Page 391 U. S. 109
Thus, the price floors, including the minimums for leaders, are
simply a means for coping with the job and wage competition of the
leaders to protect the wage scales of musicians who respondents
concede are employees on club dates, namely sidemen and subleaders.
As such, the provisions of the "Price List" establishing those
floors are indistinguishable in their effect from the collective
bargaining provisions in Teamsters Union v. Oliver,
358 U. S. 283
), which we held governed not prices, but the
mandatory bargaining subject of wages. The precise issue in
was whether Article XXXII of a multi-employer,
multi-state collective bargaining agreement between the Teamsters
Union and a bargaining organization of motor carriers dealt with a
mandatory subject of bargaining. Article XXXII provided that
drivers who own and drive their own vehicles should be paid, in
addition to the prescribed driver's wage, not less than a
prescribed minimum rental for the use of their vehicles. We held
that the article was a wage, and not a price, provision,
"The inadequacy of a rental which means that the owner makes up
his excess costs from his driver's wages not only clearly bears a
close relation to labor's efforts to improve working conditions but
is, in fact, of vital concern to the carrier's employed drivers; an
inadequate rental might mean the progressive curtailment of jobs
through withdrawal of more and more carrier-owned vehicles from
service. . . ."
358 U.S. at 358 U. S.
We disagree with the Court of Appeals that
"[t]he circumstances constituting a possible threat to the
employment of sub-leaders or the displacement of a sideman . . .
are not at all comparable,"
372 F.2d at 166. The price floors here serve the identical ends
served by Article XXXII in Oliver I.
The Price List has in
Page 391 U. S. 110
Article XXXII the objective to protect employees' job
opportunities and wages from job and wage competition of other
union members -- in the case of the Article, drivers when they
drive their own vehicles, and in the case of the Price List,
musicians on the occasions they are leaders, and play a role as
employers. Like the Article, the Price List is therefore "a direct
and frontal attack upon a problem thought to threaten the
maintenance of the basic wage structure. . . ." 358 U.S. at
358 U. S. 294
The majority of the Court of Appeals apparently regarded
Meat Cutters v. Jewel Tea, supra,
as militating against
this conclusion. The majority read the opinions of MR. JUSTICE
WHITE and Mr. Justice Goldberg in that case as requiring a holding
that "mandatory subjects of collective bargaining carry with them
an exemption . . . ," but that "[o]n matters outside of the
mandatory area . . . , no such considerations govern. . . ." 372
F.2d at 165. Even if only mandatory subjects of bargaining enjoy
the exemption -- a question not in this case and upon which we
express no view -- nothing MR. JUSTICE WHITE or Mr. Justice
Goldberg said remotely suggests that the distinction between
mandatory and nonmandatory subjects turns on the form of the method
taken to protect a wage scale, here a price floor. To the
Page 391 U. S. 111
contrary, we pointed out above that MR. JUSTICE WHITE's opinion
emphasized that the "crucial determinant is not the form of the
agreement . . . ," and cited Oliver I
as settling that
proposition. 381 U.S. at 381 U. S. 690
The reasons which entitle the Price List to the exemption
embrace the provision fixing the minimum price for a club date
engagement when the orchestra leader does not perform, and does not
displace an employee-musician. [Footnote 11
] That regulation is also justified as a means
of preserving the scale of the sidemen and subleaders. There was
evidence that, when the leader does not collect from the purchaser
of the music an amount sufficient to make up the total of his
out-of-pocket expenses, including the sum of his wage-scale wages
and the scale wages of the sidemen, [Footnote 12
] he will, in fact, not pay the sidemen the
prescribed scale. The District Court found:
"It is unquestionably true that skimping on the part of the
person who sets up the engagement [the leader] so that his costs
are not covered is likely to have an adverse effect on the fees
paid to the participating musicians. By fixing a reasonable amount
over the sum of the minimum wages of the musicians participating in
an engagement to cover these
Page 391 U. S. 112
expenses, the union insures that 'no part of the labor costs
paid to a [leader] would be diverted by him for overhead or other
241 F. Supp. at 891. In other words, the price of the product --
here, the price for an orchestra for a club date -- represents
almost entirely the scale wages of the sidemen and the leader.
Unlike most industries, except for the 8% charge, there are no
other costs contributing to the price. Therefore, if leaders cut
prices, inevitably wages must be cut.
The analyses of MR. JUSTICE WHITE and Mr. Justice Goldberg in
support our conclusion. Jewel Tea
not hold that an agreement respecting marketing hours would always
come within the labor exemption. Rather, that case held that such
an agreement was lawful because it was found that the marketing
hours restriction had a substantial effect on hours worked by the
union members. Similarly, the price list requirement is brought
within the labor exemption under the finding that the requirement
is necessary to assure that scale wages will be paid to the sidemen
and the leader. If the union may not require that the full-time
leader charge the purchaser of the music an amount sufficient to
compensate him for the time he spends selecting musicians and
performing the other musical functions involved in leading, the
full-time leader may compete with other union members who seek the
same jobs through price differentiation in the product market based
on differences in a labor standard. His situation is identical to
that of a truck owner in Oliver I
who does not charge an
amount sufficient to compensate him for the value of his labor
services in driving the truck, and is a situation which the union
can prevent consistent with its antitrust exemption. There can be
no differentiation between the leader who appears with his
Page 391 U. S. 113
the one who on occasion hires a subleader. In either case, part
of the union-prescribed "leader's fee" is attributable to service
rendered in either conducting or playing and part to the service
rendered in selecting musicians, bookkeeping, etc. The only
difference is that, in the former situation, the leader keeps the
entire fee, while, in the latter, he is required to pay that part
of it attributable to playing or conducting to the subleader. In
this respect, we agree with the view espoused by Judge Friendly in
his separate opinion, 372 F.2d at 168-170.
We think also that the caterer and booking agent restrictions
"are at least as intimately bound up with the subject of wages,"
Oliver II, supra,
at 362 U. S. 606
as the price floors. The District Court found that the booking
agent regulations were adopted because of experience that "many
booking agents charged exorbitant fees to members and booked
engagements for musicians at wages which were below union scale."
241 F. Supp. at 881-882. On the basis of these findings, the
District Court concluded:
"Because the activities of the booking agents here have and had
a direct and substantial effect on the wages of the members of [the
unions], I find that they are in an economic interrelationship with
the members . . . such that the [unions] are justified in
regulating their activities. . . . Furthermore, I find the
regulations to be reasonably related to their interest in
maintaining observance of union scale wages and working
241 F. Supp. at 893.
The finding concerning the caterer regulations was to the same
"The evidence discloses that caterers took advantage of their
position before the union adopted its regulations to, in effect,
book orchestras and they
Page 391 U. S. 114
continue to do so, at least to some extent. Caterers recommend
orchestras to customers and receive commissions from orchestra
leaders. These practices actually or potentially affect the wages
of the musicians involved."
"I believe that this constitutes an economic interrelationship
which permits the defendants to regulate and prohibit the booking
activities of the caterers without violating the Sherman Act."
241 F. Supp. at 893.
The judgment of the Court of Appeals is vacated, and the cases
are remanded with direction to enter a judgment affirming the
judgment of the District Court in its entirety.
It is so ordered.
THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the
consideration or decision of these cases.
* Together with No. 310, Carroll et al. v. American
Federation of Musician of the United States and Canada et al.,
also on certiorari to the same court.
Peterson and Carroll, respondents in No. 309, filed the first
action in July, 1960, and the other in December, 1960. The latter
was brought to challenge an increase in the musicians' wage scale
adopted after the first complaint was filed. The other respondents
were allowed to intervene. By stipulation, the testimony in
Carroll v. Associated Musicians, 206 F.
, 316 F.2d 574, and Cutler v. American Federation
of Musicians, 211 F.
, 316 F.2d 546, was made part of the record.
§ 13(c), 47 Stat. 73, 29 U.S.C. § 113(c); see also
and 20 of the Clayton Act, 38 Stat. 731, 738, 15 U.S.C. § 17, 29
U.S.C. § 52.
"Musical engagements are generally classified as either
'steady,' those lasting for longer than one week, or 'single,'
usually one day or one performance, affairs, but including all
engagements lasting less than one week. The much sought after
steady engagements are rare in comparison with the number of single
"The predominant form of single engagement is the 'club date.' .
. . Single engagements also include the 'non-club date' field,
consisting of television appearances or recording engagements, etc.
. . ."
372 F.2d at 158.
Both the District Court and the Court of Appeals held that
respondents did not prove that they properly represented a class
under former Fed.Rule Civ.Proc. 23(a), 241 F.Supp. at 884-886; 372
F.2d at 161-163. The record sustains this conclusion. Supreme
Tribe of Ben-Hur v. Cauble, 255 U. S. 356
Hansberry v. Lee, 311 U. S. 32
all of the respondents either play an instrument or conduct their
orchestras unless they book more than one engagement for the same
time, we do not have before us a leader who merely books
engagements and never appears with his orchestra.
Carroll and Peterson have since been expelled from membership.
241 F. Supp. at 870. Both are still permitted to book
engagements and hire musicians to play at them, but cannot appear
with their orchestra either as conductors or instrumentalists.
See Carroll v. American Federation of Musicians,
"The distinction between the kinds of single engagements is
vital; the non-club date engagements are ordinarily governed by
collective bargaining agreements. . . . The same is usually true of
the steady engagement field. Local 802 has collective bargaining
agreements with the major users or 'purchasers' of live music
within its area such as recording companies, hotels, television and
film producers, opera companies and theatres."
372 F.2d at 158.
241 F. Supp. at 887; 372 F.2d at 159. We need not
decide the question.
The Court of Appeals also found
no evidence of a conspiracy between Local 802, or the
Federation, and orchestra leaders to eliminate competitors, fix
prices or achieve any other commercial restraint, nor was such a
finding made by the district judge. Rather, the record establishes
that all restraints were instituted unilaterally by the unions and
acquiesced in by the orchestra leaders.
372 F.2d at 164; see
241 F. Supp. at 891.
"[I]n the club date and hotel steady engagement fields . . .
orchestra leaders are in competition with employee members of the .
. . unions regarding jobs, wages and other working conditions. As a
result, they comprise a labor group in these fields."
241 F. Supp. at 887-888.
The "Price List" establishes only a minimum charge; there is no
attempt to set a maximum. Nor does the union attempt by its minimum
charge to assure the leader a profit above the fair value of his
labor services. The District Court found no evidence "which
indicates that the increment to the [leader] is unrelated to his
costs in that function." 241 F. Supp. at 91. See also
F.2d at 170 (Friendly, J., in separate opinion):
"A different result might be warranted if the floor were set so
high as to cover not merely compensation for the additional
services rendered by a leader but entrepreneurial profit as well.
But there has been no such showing here."
Because of the intense competition for positions as leader, the
full-time leader "displaces" another union member simply by
securing an engagement for himself. Union members who act
principally as sidemen and subleaders but who act occasionally as
"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."
241 F. Supp. at 872.
Only two things can happen when the leader does not charge the
specified minimum; either he works below union scale or the
musicians he employs work below union scale. In either event, the
result is price competition through differences of standards in the
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins,
In my view, the Court is misled by the peculiar role of
bandleaders and the peculiar economics of the club date music
industry, and fashions a rule which, if comprehensible at all, has
unfortunate consequences for the delicate and difficult area of
conflict between antitrust and labor policy.
The four respondents in No. 309 (hereafter respondents) are
successful bandleaders whose success has made it unnecessary for
them to continue working from time to time as sidemen and
subleaders. However they do work as leaders. [Footnote 2/1
] Indeed, their business practice was to
Page 391 U. S. 115
individually whenever they obtained an engagement, hiring a
subleader only when they obtained two or more engagements at
conflicting times. Leading a band was obviously one important part
of their working careers; it was not, however, the only part.
Respondents also devoted much time and energy to organizing and
managing their businesses. They advertised, and in other ways
obtained engagements. They planned the music to be provided at
those engagements. They chose, recruited, and supervised the
subleaders and sidemen working for them. And they established and
directed the administrative operation necessary for obtaining and
The Court accepts the finding that respondents were a "labor"
group. I would think it beyond dispute that leading a band (a task
which usually includes also occasional playing of an instrument) is
"labor group work," but that it is equally beyond dispute that
managing and administering a business whose function is supplying
bands to fathers of brides is not "labor group work." [Footnote 2/2
] The first task, leading,
certainly possesses "economic interrelationship[s] affecting
legitimate union interests," [Footnote
] and the second clearly does not. The Court appears to feel
that, because respondents' work includes some "labor group" tasks,
all aspects of respondents' activities are proper subjects of union
concern. I see no reason why the law in this area cannot be
sufficiently flexible to grant the union antitrust immunity for
regulation of those activities of bandleaders which sufficiently
affect union members, while denying that immunity where the union
has no proper concern.
Teamsters Union v. Oliver, 358 U.
(1959), is a difficult case, but an important
one, with which I fully
Page 391 U. S. 116
agree. [Footnote 2/4
as I read it, holds that, where independent
contractors are doing work for an employer in competition with the
work of union members, the union can bargain with the employer to
make certain they are not doing that work at a lower wage than that
paid to members. [Footnote 2/5
Since, in Oliver,
an independent truck driver who claimed
to be charging the union rate for his labor but received in
addition less than his costs for equipment and gasoline would, in
fact, be cutting the union wage scale, the Court held that the
union did not violate the antitrust laws when it bargained about
the total amount -- including both wage and equipment costs -- that
the companies would pay to the independent owner-drivers. On the
facts before us, Oliver
is relevant, but not
across-the-board, as the Court seems to think. Here, when one of
respondents leads, he does work -- playing and leading -- which is
also done by union members, and for which the union has a proper
concern. The union thus has a right to see that the respondent does
not perform that work for less than the going scale for union
musicians and subleaders. Since the leader fixes a single charge to
compensate him for both leading and organizing, the union can
require the leader to make that charge not less than the union
scale for a subleader plus the leader's costs in obtaining the
engagement, hiring the musicians, and planning the program. Since,
as Judge Friendly said in his separate opinion below, the price the
union requires leaders to charge has not been shown to be "set so
high as to cover not merely compensation for the additional
services rendered by a leader
Page 391 U. S. 117
but entrepreneurial profit as well," [Footnote 2/6
] the union should be free of antitrust
liability for imposing this minimum rate on charges by leaders when
they actually lead. Oliver
The question is quite different, however, when we deal with
imposition of fixed minimum charges by leaders for engagements at
which they do not themselves lead. For such engagements the role of
the leader is solely that of entrepreneur: he obtains a customer
(partly, it appears, through the attraction of his reputation as an
established provider of music), makes the necessary arrangements
for servicing the customer, including employment and supervision of
staff, and maintains the administrative structure required for this
work: office, payroll clerk, permanent telephone listing, and so
forth. The union has of course a full right to impose on this
leader, who is in effect an employer, its minimum scale for work by
sidemen and subleaders. The musicians union, however, goes further.
It requires that, for an engagement of four or more musicians, the
leader charge his customer not less than the sideman's scale times
the number of musicians (including the subleader), plus double the
sideman's scale to compensate the leader, of which one-fourth --
plus the sideman's scale -- goes to the subleader. The union is
clearly requiring that the leader charge his customer more than the
total of the leader's wage bill, even though the leader himself
does no "labor group" work.
There is no clear holding by this Court that a union is not
immune from antitrust liability when it requires that all the
employers with whom it deals charge uniform prices. It has
certainly been assumed, however, that the Norris-LaGuardia
exemption to the antitrust laws does not extend this far. In
Meat Cutters v. Jewel
Page 391 U. S. 118
Co., 381 U. S. 676
(1965), the entire Court joined opinions strongly suggesting there
is no antitrust immunity for a union which joins with employers to
fix the prices at which the employers sell to the public. I wrote,
in an opinion joined by THE CHIEF JUSTICE and MR. JUSTICE
"Jewel, for example, need not have bargained about or agreed to
a schedule of prices at which its meat would be sold and the unions
could not legally have insisted that it do so. But if the unions
had made such a demand, Jewel had agreed and the United States or
an injured party had challenged the agreement under the antitrust
laws, we seriously doubt that either the unions or Jewel could
claim immunity by reason of the labor exemption, whatever
substantive questions of violation there might be."
381 U.S. at 381 U. S. 689
Mr. Justice Goldberg in his separate opinion, joined by JUSTICES
HARLAN and STEWART, wrote:
"The direct and overriding interest of unions in such subjects
as wages, hours, and other working conditions, which Congress has
recognized in making them subjects of mandatory bargaining, is
clearly lacking where the subject of the agreement is price-fixing
and market allocation. Moreover, such activities are at the core of
the type of anticompetitive commercial restraint at which the
antitrust laws are directed."
381 U.S. at 381 U. S.
-733. MR. JUSTICE DOUGLAS, dissenting in Jewel Tea
and joined by JUSTICES BLACK and Clark, wrote:
"[T]he unions can no more aid a group of businessmen to force
their competitors to follow uniform store marketing hours than to
force them to sell at
Page 391 U. S. 119
fixed prices. Both practices take away the freedom of traders to
carry on their business in their own competitive fashion."
381 U.S. at 381 U. S. 737
Unions are, of course, not without interest in the prices at
which employers sell. As the majority points out, by seeing that
employers sell at prices covering all their costs, a union can
insure employer solvency and make more certain employee collection
of wages owed them. In addition, assuring that competing employers
charge at least a minimum price prevents price competition from
exerting downward pressure on wages. On the other hand, price
competition, a significant aid to satisfactory resource allocation
and a deterrent to inflation, would be substantially diminished if
industry-wide unions were free to dictate uniform prices through
agreements with employers. [Footnote
] I have always thought that this strong policy outweighed
the legitimate union interest in the prices at which employers
sell, and, until today, I had thought that the Court agreed. Of
course, the lack of discussion of this question in the majority's
opinion, and the failure to refer to the unanimous rejection
Page 391 U. S. 120
in Jewel Tea
of antitrust immunity for union efforts to
fix industry-wide prices, suggest that the Court takes this step
without full awareness of the implications and the likely
consequences. The step is nonetheless disturbing, and I must record
I am also in disagreement with the majority about certain of the
questions presented in No. 310. The musicians union imposes its
rules not only on respondents, who sometimes lead and sometimes
hire subleaders, but upon leaders who never lead personally. These
leaders are merely independent businessmen, performing no "labor
group" work, and the union has no proper interest in regulating
their activities. Even though the District Court found that the
union imposed its rules on these leaders, I believe the facts as
found below demonstrate that the union formed a combination with
those independent businessmen. [Footnote 2/9
] If the union and employers combined, I
have no doubt that some of the regulations agreed upon were
unlawful restraints of trade. Boycotting booking agents and
caterers who occasionally did business with employers not living by
the union's rules unreasonably restrained trade. So also did
combining with willing caterers and booking agents to impose
uniform business practices on bandleaders and to boycott those who
did not abide by the established rules and policies. Agreeing with
employers that the employers would not take their wares to other
cities without charging prices 10% higher than the local employers
charged was a
Page 391 U. S. 121
blatant violation of the Sherman Act. Horizontal division of
territories has always been held a per se
violation of §
1, e.g., Addyston Pipe & Steel Co. v. United States,
175 U. S. 211
(1899), and it should make no difference that the instigation for
this division came from the union and not from the employers. I am
unable to see how the practice at issue here is distinguishable
from an agreement by General Motors and Ford, at the behest of the
UAW, for GM to sell west of the Mississippi only at prices 10%
higher than those charged by Ford, while Ford would sell in the
East only at prices higher than GM's. Since union combinations with
nonlabor groups which restrain trade are not immune from antitrust
attack, Allen Bradley Co. v. Union, 325 U.
(1945); Mine Workers v. Pennington,
381 U. S. 657
(1965), I think respondents should be permitted to show that these
unlawful and unimmunized restraints of trade injured them, and
should be able to recover the trebled amount of such damages as
they can establish.
By combining with a nonlabor group, the musicians union has
obtained effective control of the entire club date industry. The
device for this control has been imposition of union membership and
union rules on cooperating bandleaders, and on some who did not
want to cooperate. I am sure the Clayton and Norris-LaGuardia Acts
never intended to give unions this kind of stranglehold on any
industry. It may be that the Court views this industry as having
special problems of supply and demand requiring special treatment
under the antitrust laws. If this is the case, the Court should
frankly say so and seek to confine the misguided rules of law it
announces. More appropriately, the Court should leave to Congress
the task of making special provisions in the antitrust laws for the
special circumstances of the music industry. On more than one
Page 391 U. S. 122
has seen to it that the full rigors of the antitrust laws are
not felt by industries which cannot survive under competitive
conditions. [Footnote 2/10
Court treads dangerous ground in seeking on its own motion to deny
to a particular industry the normal competitive conditions
envisioned by the antitrust laws, conditions usually viewed as
essential for maintaining service and prices at satisfactory
Rather, they worked as leaders until their insubordination
resulted in expulsion from the union. See 241 F.
, 870 (D.C.S.D.N.Y.1965).
See Columbia River Packer Assn. v. Hinton, 315 U.
241 F. Supp. at 88.
See Meat Cutters v. Jewel Tea Co., 381 U.
, 381 U. S. 690
n. 5 (1965).
The union could have bargained for restrictions on contracting
out of work by the employer. Fibreboard Paper Products Corp. v.
NLRB, 379 U. S. 203
372 F.2d 155, 170 (C.A.2d Cir.1967).
As one commentator has concluded,
"Although the Court split on the application of this
proposition, all the justices agreed that the antitrust laws would
be offended by a collective bargaining agreement binding employers
to charge a certain price for their goods."
P. Areeda, Antitrust Analysis 52 (1967). See also Mine
Workers v. Pennington, 381 U. S. 657
381 U. S. 663
"If the UMW in this case, in order to protect its wage scale by
maintaining employer income, had presented a set of prices at which
the mine operators would be required to sell their coal, the union
and the employers who happened to agree could not successfully
defend this contract provision if it were challenged under the
antitrust laws by the United States or by some party injured by the
J. T. Dunlop, Wage Determination Under Trade Unions
(1950); C. E. Lindblom, Unions and Capitalism (1949); E. S. Mason,
Economic Concentration and the Monopoly Problem (1957).
United States v. Parke, Davis Co., 362 U. S.
(1960). See also Albrecht v. Herald Co.,
390 U. S. 145
390 U. S. 150
n. 6 (1968). I cannot believe that the Court intends its n. 8 to
hold that unilateral demands, enforced by threats, combined with
willing cooperation or reluctant acquiescence by leaders (who may
join the union and, in any event, obey its rules), cannot amount to
a combination in restraint of trade.
§ 1 of the the Capper-Volstead Act, 42 Stat. 388,
7 U.S.C. § 291 (agricultural cooperatives); § 2 of the
Webb-Pomerene Act, 40 Stat. 517, 15 U.S.C. § 62 (foreign trade
associations); § 6(b)(1) of the Act of Nov. 8, 1966, 8 Stat. 1515,
15 U.S.C. § 1291 (1964 ed., Supp. II) (joint agreements by
professional football clubs).