American Federation of Musicians of United States and Canada v. Carroll/Dissent White

Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.

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. Indeed, their business practice was to lead 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 fulfilling engagements.

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.' The first task, leading, certainly possesses 'economic interrelationship(s) affecting legitimate union interests,' 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.

Brotherhood of International Local 24 of Teamsters etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), is a difficult case, but an important one, with which I fully agree. Oliver, 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. 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 ownerdrivers. 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 but entrepreneurial profit as well,' the union should be free of antitrust liability for imposing this minimum rate on charges by leaders when they actually lead. Oliver so holds.

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 Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (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 Brennan:

'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 689, 85 S.Ct., at      1602.

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 pricefixing 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 732-733, 85 S.Ct., at 1626.