William J. Brennan, Jr.

“ 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 subleaders; each time a non-union orchestra leader performs, he displaces a 'union job' with a 'non-union job. ”

“ 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 compliance. ”

“ Union members who act principally as sidemen and subleaders but who act occasionally as leaders '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 labor market. ”

“ 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. ”

“ The District Court also sustained the legality of the 'Price List' stating, '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 leader.' 241 F.Supp., at 890. ”

“ 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. ”

“ 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. ”

“ To the 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. ”

“ 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. ”