Full opinion text
LEVET, District Judge. 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 ease 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. 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 Plaintiffs Charles Turecamo and Dan Terry have withdrawn from the action. 3.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 perf >rm 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 copyists. 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 A1 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 A1 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, sub-leaders 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. 1(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 INTERRELATIONSHIP 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 sub-leaders 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 would 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 marking 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 orchestras other than as leaders or subleaders are referred to as sidemen. 40. Sidemen are employees (conceded by plaintiffs in marking 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, ineluding 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; 10); (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. BL1, 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); (b) 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 sidemen 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 for 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 performance and the actual performance: (a) selecting the orchestra leader (1501-02, 2754-55); (b) determining the number and types of instruments to be used (1499-1501, 1518, 2754-55); (c) employing a contractor to hire sidemen (the A&R man sometimes designates particular sidemen who are to be hired or avoided) (1518-19, 2756-58, 2762); (d) deciding on the number and instruments of the musicians who are to perform (1503, 1518-19, 2754-56); (e) determining the compositions to be played (1496, 1519-20, 2754-55); (f) determining the seating arrangements and microphone placements for musicians (1504-05, 2758-60); (g) determining when and where the actual recording session is to take place (1503-04, 2758, 2773); the recording session usually takes place at studios owned or leased by the recording company (id.); (h) sometimes furnishing instruments to the musicians performing services (2764); (i) determining the musical characteristics of the orchestra’s performance including tempo, dynamics, tone coloring, volume, type of syncopation, and sometimes the nature of a sideman’s performance (1508-11, 2761-62, 2763, 2775-76); (j) sometimes requiring the addition of instrumentation to a recording after the original recording session (“sweetening”) ; often this subsequent sweetening takes place in the absence of the orchestra leader (1522). 65. All musical services must be performed to the satisfaction of the A&R man (1481-82,1506-08, 1511, 2756, 2760, 2770, 2763). If the final recording does not meet with the approval of the A&R man, it will not be issued (1521, 2764). 66. The recording company pays compensation by individual checks payable to each of the musicians employed (2767-68, 2750; Ex. HP) or by a check payable to the leader or contractor for the total scale wages of leaders and sidemen which is transmitted to Local 802, less employer deductions (1491-91a, 1546-47,2766-67). In the latter case, the recording company also sends a payroll record designating the gross and net amounts payable to each musician (id.; Ex. EN). 67. The recording company withholds and pays over to the appropriate governmental agencies federal and state withholding taxes and social security taxes for all musicians, including the orchestra leader. The recording company also pays disability insurance for each of the musicians, including the orchestra leader (1494, 2750, 2786; Ex. HP). The recording company makes contributions to a pension welfare fund on behalf of each musician, including the orchestra leader (Exs. BS, pp. 29-30, EQ-ES). 68. Featured artists enter into royalty contracts with recording companies. Under those agreements there are deducted from the royalties otherwise owing to the featured artist, production costs such as wages paid to an orchestra leader; wages paid to sidemen; costs of arranging and composing, and the wages of choral groups (1541-42, 2784-86). If there are no royalties or an insufficient amount of royalties, the recording company bears these expenses without reimbursement (1542, 2784). 69. The recording company enters into a Form B Contract with the orchestra leader with respect to each recording session at which phonograph records are made (2765-66, Exs. DH, HO), which provides that the “employer [record company] shall at all times have complete control over the services of employees under this contract and the leader shall, as agent of the employer, enforce disciplinary measures for just cause, and carry out instructions as to selections and manner of performance” (id.). 70. Cutler performed as a leader in the making of a recording (St.Min. 83-84). There is no evidence that Cutler’s manner of performance and the degree of control by the recording company differed from that referred to above. 71. Paragraph 12(d) of the collective bargaining agreement between the recording companies and defendant unions provides (Ex. BS): “All present provisions of the Constitution, By-Laws, rules and regulations of the Federation (except those relating to requiring membership in the Federation) are made a part of this agreement to the extent to which their inclusion and enforcement as part of this agreement are not prohibited by any presently existing and valid law. No changes in the Federation’s Constitution, By-Laws, rules and regulations which may be made during the term of this agreement shall be effective to contravene any of the provisions hereof.” 72. The recording company has genuine and effective control over the rendition of services by musicians engaged by it including the orchestra leader. VIII. MINIMUM PRICE REGULATIONS 73. Local 802’s “Price List” Booklet requires each sideman to be paid minimum wages for single or steady engagements. Their wages are based upon a number of factors, including the type of engagement involved; the number of hours played; whether the sideman plays more than one instrument; whether playing is continuous or non-continuous; whether the musician has to transport certain bulky instruments; whether the musician is required to furnish an organ or music folios; whether the musician is required to rehearse; whether there is a show lasting more than twenty minutes; and whether uniforms (other than tuxedos) must be furnished by the musicians (Stipulated Fact 14). 74. Local 802’s “Price List” Booklet requires each leader to receive certain minimum compensation for the services rendered by him. Thus, Rule 1 of the Price List Booklet provides as follows: “RULE 1. ‘Regulations for Establishing Leaders’ Fees in Single Engagements Unless Otherwise Provided for.’ ” “A. An engagement played by one member shall charge in addition to the Union Scale of the engagement 25 per cent additional as Leader (Personnel Manager) fee. “B. An engagement played by two members shall charge in addition to the Union scale of the engagement 50 per cent additional as Leader (Personnel Manager) fee. “C. An engagement played by three members shall charge in addition to the Union scale for the engagement 75 per cent additional as Leader (Personnel Manager) fee. “D. Where four or more men are employed the Leader shall charge and receive double the regular scale, i. e., 100 per cent additional as Leader (Personnel Manager) fee.” (Stipulated Fact 17) 75. Similarly, Local 802’s “Price List” Booklet provides as to steady engagements : “RULE 10. On all steady engagements the Leader (Personnel Manager) shall charge 25 per cent additional when only one (1) man is employed, 50 per cent additional when two (2) men are employed, 75 per cent additional when three (3) men are employed, and for all engagements of four (4) men or more he shall charge double the price per man, except where otherwise provided.” (Stipulated Fact 18) 76. Local 802’s “Price List” Booklet provides that the subleader shall receive the following as his minimum wage for single engagements: “Rule 2. In the absence of the Leader (Personnel Manager), the member representing him for any part or all of the engagement shall receive one-half the extra charge made in conformity with Rule 1, unless otherwise provided. “A. On all outside (Single) engagements, on which the orchestra is called upon to rehearse and/or play a show and for which there is an extra charge. The Musician who actually conducts the rehearsal and/or show shall receive double the extra charge regardless as to who contracts the engagement, number of musicians employed or who stands in front of the orchestra.” (Stipulated Fact 24) 77. Similarly, in connection with steady engagements the “Price List” Booklet provides: “Rule 11. In the absence of the Leader (Personnel Manager) the member representing him for all or part of the engagement shall receive one-half the extra charge made in conformity with Rule 1, unless otherwise provided.” (Stipulated Fact 25) 78. Thus, the subleader must receive as his minimum wages for conducting a four-piece band on a single engagement, one and one-half times the sideman’s scale, or double the sideman’s scale if a rehearsal or show is involved (Stipulated Fact 26). 79. Local 802 not only establishes minimum compensation for sidemen and orchestra leaders on single and steady engagements, but also requires orchestra leaders to charge purchasers prices which are not less than the aggregate of the minimum compensation payable to sidemen and leaders (Exs. 178, 179, 186-195; Stipulated Fact 27). 80. Other locals also set per man and leader minimum wages (Exs. 173-77). 81. The resolutions of May 17, 1960 and October 27, 1960: (a) In the club date field establishments are classified by Local 802 as “Glass A” or as “Special Class.” Class A rates are higher than Special Class. (b) In March 1960, resolutions were submitted by members of Local 802 for consideration at the April Price List meeting. One of the resolutions so submitted provided that the minimum scale wages of sidemen performing services on Class A club dates would be increased (Ex. Q). (e) The April 1960 Price List meeting was scheduled to take place on April 18, 1960. Prior to the April Price List meeting, plaintiff Cutler, as well as other leaders, made known to Local 802 officers objections to the adoption of the proposed resolutions (1229-30,1397-1402). (d) The April Price List meeting was adjourned for lack of a quorum (Ex. LI). The Executive Board, on May 17, 1960, passed the resolutions referred to above, to become effective with respect to club date engagements booked after June 15, 1960 (Exs. LI and JQ). Such action was taken pursuant to a standing resolution in the By-Laws granting to the Executive Board authority to adopt price list resolutions where they were not acted upon at a price list meeting because of the absence of a quorum (3263; Ex. 12, Section 3, p. 57). (e) After the increase in rates for club date Class A engagements became effective, members of Local 802 appeared and requested that Special Class engagement minimum rates be increased in order to maintain the traditional differential between Class A and Special Class club date engagements (3264-65). (f) On October 29, 1960, the Executive Board adopted a resolution increasing the rates of Special Class club dates (Stipulated Fact 16; Ex. CE). 82. Local 802, in order to insure that minimum wages and other working conditions are being observed, employs approximately 30 business representatives whose function it is to visit establishments at which members of defendant unions are engaged (622-23, 666, 3834). 83. Local 802 also furnishes to its members in certain fields (e. g., the club date field, the broadcasting field) “Price List” booklets which set forth the minimum wages and working conditions in those fields. IX. MINIMUMS 84. Local 802 has regulations requiring the employment of minimum numbers of musicians for the various rooms of hotels, catering establishments and ballrooms in the club date single engagement field. These regulations vary according to the establishing, function, day and time and apply to all club date single engagements attended by more than 75 persons (Exs. 178-185; 3238-39). 85. Federation and Local 802 have been parties to collective agreements with the purchasers of music for certain steady engagements pursuant to which the purchasers have agreed to employ a specified number of musicians (Network Television Agreement, Ex. BL 1-3; Radio City Music Hall Agreement, Ex. BH; Philharmonic Agreement, Ex. BZ-1: Metropolitan Opera Agreement, Ex. CB). X. FORM B CONTRACT 86. Article 13, Section 33 of Federation’s By-Laws provides: “Members of the A. F. of M. are not permitted to sign any form of contract or agreement for an engagement other than that issued by the A. F. of M.” (Ex. 300). The form of contract issued by the AFM is the Form B Contract (Exs. Y, Z, EC). 87. The Form B Contract was first adopted in 1941 (Ex. Y, Art. XVI, pp. 170-79). It was recommended in order that orchestra leaders could qualify for social security benefits (3375). The language of the Form B Contract was formulated after discussions with the Treasury Department (Ex. EC 44-45) and then submitted to the Commissioner of Internal Revenue for a ruling on the question of liability for Social Security taxes (Ex. EC 45-46). The Commissioner ruled that the hotel employing the musicians in question was the employer for purposes of the Social Security tax (Ex. EC 47). 88. Since 1941, the Form B Contract has been amended from time to time and at present there are various types in use for different types of engagements. Each type designates the purchaser of the music as the employer and the leader as an employee (Exs. Z, Z-l, Z-2, DFDI). 89. Article 16, Section 1A of Federation’s By-Laws, provides that on traveling engagements (Ex. 300): “A. Any individual member, or leader, in every case before an engagement is played, must submit his contract for same to the local union in whose jurisdiction same is played, or in the absence of a written contract, file a written statement with such local fully explaining therein the conditions under which same is to be fulfilled, naming the place wherein same is to be played, the amount of money contracted for, the hours of the engagement, as well as the names of the members who will play same and the locals to which they belong, the actual amount of money paid each individual sideman, which cannot be less than the wage scale specified in Article 15 of these By-laws and (except in Canada) their Social Security numbers.” The written contract referred to is the Form B Contract (Ex. 300, Art. 13, § 33). 90. Local 802, in practice, does not require the use of the Form B Contract on club date single engagements; it accepts reports (in person, by telephone, or by mail) of details of the engagement sufficient to show that union scale has been complied with. It also accepts contracts other than Form B Contracts (656-63, 3597-99). In addition, it accepts contracts (Form B or other types) which specify as the total- price or wage “union scale” rather than any dollar amount (3597-3604, 3837). 91. Local 802 does require the use of the Form B Contract on steady engagements, although it does not insist that a Form B Contract be filed prior to every engagement (665-66). 92. Any member failing to use the Form B Contract, where it is required in practice, is subject to penalty (Stipulated Fact 30). 93. Local 802 requires that an engagement as a leader shall not be effective unless first approved by the Executive Board (Ex. 165, Art. 4, § 5). XI. REGULATIONS PERTAINING TO TRAVELING MEMBERS A. 10% Surcharge 94. A tax called the “10% Traveling Surcharge” was assessed by the AFM on engagements played by members outside the jurisdiction of their home Local until 1964 (Ex. CM, Art. 15, § 1). 95. The 10% Traveling Surcharge was defined in the Constitution and ByLaws of the AFM as “An additional 10% based on the price of the Local in whose jurisdiction the engagement is being played * * * added to the price [of the engagement] * * *.” (Ex. CM, Art. 15, § 3) 96. Federation’s By-Laws provided that the leader was responsible for collecting and transmitting the traveling surcharge tax to Federation (Ex. CM, Art. 15, Sec. 7) and that the tax was to be distributed as follows: jio was to be retained by Federation, 4/io was to be paid to the local in whose jurisdiction the traveling engagement took place, and Via was to be distributed to members of the orchestra playing the engagement (id.). 97. In April 1963, AFM’s 10% Traveling Surcharge tax as it was then administered was held by the Second Circuit to violate Section 302 of the IMRDA in Cutler v. AFM, supra. 98. Federation’s June 1963 Annual Convention adopted a resolution abolishing the traveling surcharge tax, effective January 1, 1964 (Ex. LG). 99. At the June 1963 Convention, a new 10% wage differential on traveling engagements (the “traveling engagement wage differential”) was adopted. Article 15 of the 1964 Federation By-Laws provides that in the case of a steady traveling engagement the “minimum wage to be charged and received by any member” shall be “no less than the wage scale of the local in whose jurisdiction the services are rendered, plus 10% of such local wage scale”; and that, in the case of a single engagement, the minimum wage to be charged and received shall be “no less than either the wage scale of the local in whose jurisdiction the services are rendered or the wage scale of the home local of the member performing such services, whichever is greater, plus 10% of the wage scale of the local in whose jurisdiction the engagement takes place.” (Ex. 300, Art. 15, § 2) 100. The purpose of the traveling engagement wage differential is to protect work opportunities for local musicians within their respective local union jurisdictions (3675, 3725-28). B. Illustration of Application of the Traveling Engagement Wage Differential-Engagements Performed by Local 802 Members in Local 88 Westchester 101. The Local 802 scale for club dates is higher than the union scale in the jurisdiction of Local 38, Westchester County, New York (741). 102. Pursuant to Article 15, Section 2 of Federation’s By-Laws, members of Local 802 who perform club date single engagements in the jurisdiction of Local 38 in Westchester County are required to charge the Local 802 scale plus 10% of the Local 38 scale (Ex. 300). 103. As a result of the higher Local 802 scale and the 10% wage differential, the minimum union scale price which must be charged by a Local 802 orchestra leader performing in the jurisdiction of Local 38 is higher than the minimum union scale price which must be charged by a Local 38 leader performing in the same jurisdiction. 104. Notwithstanding the differential in scale price in favor of Local 38 members, Local 802 members, including plaintiff Cutler, have performed engagements in the jurisdiction of Local 38, both prior and subsequent to 1960 increases in Local 802 scale (Exs. GK-GT, HE, HF, LI, JQ, CE, GK-GR; 2572-91; Stipulated Fact 16). Plaintiff Cutler, both before and after the 1960 increases in Local 802 scale, almost without exception, bid for jobs in Westchester at prices in excess of union scale (2587-90). C. Restrictions on Job Solicitation by Traveling Members 105. Under Federation’s By-Laws a traveling member performing a steady traveling engagement is not permitted to solicit or accept a single engagement either in or out of the jurisdiction in which the steady engagement is being played during the tenure of the steady engagement (Ex. 300, Art. 17, § 14).. 106. Under Federation’s By-Laws, a member of a Local may not form a traveling orchestra to compete with or fill engagements in his home local (Ex. 300, Art. 17, § 24). For example, a member of Local 802 may not form an orchestra to perform an engagement within Local 802’s jurisdiction unless that orchestra consists entirely of members of Local 802. 107. Traveling orchestras which establish headquarters in the jurisdiction of any Local are not permitted to compete for or accept and play engagements in that jurisdiction (Exs. CM, 300, Art. 17, §23). 108. An out-of-town orchestra leader playing a steady engagement in a particular jurisdiction is prohibited from playing a single engagement in that jurisdiction for some other client during the period of the steady engagement (Exs. CM, Art. 17, § 14; 300, Art. 17, § 14) or remain in the jurisdiction after completing a steady engagement to solicit another steady engagement (Exs. CM, Art. 17, § 17; 300, Art. 17, § 17). Nor may members of a traveling orchestra be used by the manager of a company with which they travel, or by the local employer, to displace the local orchestra or any member thereof, if the displacement interferes with the contract under which the local orchestra is employed (Exs. CM, Art. 16, § 31; 300, Art. 16, § 27). 109. A traveling band may not play a radio or TV engagement which is local in character (not on a network) (Ex. CM, Art. 23, § 1). D. The Local Work Dues Equivalent 110. Since January 1, 1964, Federation’s By-Laws have provided for the payment by traveling members of local work dues equivalents to locals which require such payments. Local work dues equivalents are payments equal in amount to the work taxes which locals impose upon their own members in connection with earnings from jobs performed within the jurisdiction of such locals. Such payments are based upon a percentage of the members’ earnings from such jobs (Ex. 300, Art. 2, § 8(c)). 111. Prior to January 1, 1964, Federation’s By-Laws provided that traveling members could not be required to pay local work dues equivalents on engagements to which the Federation traveling surcharge tax applied (Ex. CM, Art. 16, §26). 112. Under Federation’s By-Laws, local work dues equivalents may be imposed only by a local which “uniformly requires its own members to pay the same percentage of their scale wages in connection with the rendition of the same classification of services.” (Ex. 300, Art. 2, § 8(c)). Local work dues equivalents may not exceed 4% of the scale wages and may not be imposed on wages of traveling members “derived from symphony or opera services.” (Ex. 300, Art. 2, § 8(E), (F)). E. Transfer Members 113. Under Federation’s By-Laws, a member of one local who moves his residence to a place within the jurisdiction of another local and who indicates his wish to become a member of such other local, is called a transfer member (Ex. 300, Art. 14); and Federation locals are required to accept applications to grant full membership to transfer members who have resided in their jurisdictions at least six months (id., § 2). 114. Under Federation’s By-Laws, Art. 14, a transfer member may not solicit or perform any steady engagement within that local’s jurisdiction for a period of three months after the date he is granted transfer membership (id., § 7). He is also prohibited from performing engagements outside the jurisdiction of the transfer local, except that he may do so with orchestras consisting of members of the transfer local after three months (id., §§ 8, 9). XII. BOOKING AGENTS 115. Persons who act as “bookers, agents, representatives and managers of members, orchestras or bands, or who secure engagements and contracts for such members, orchestras and bands” are referred to as “booking agents” (Ex. 300, Art. 25, § 1). 116. Since 1936, Federation has required booking agents to enter into license agreements with Federation as a condition to representing or acting in behalf of Federation members (3370-73; Ex. JX). 117. Pursuant to the provisions of Federation’s By-Laws, each such booking agent must enter into a standard form of license agreement with Federation under which he agrees not to charge more than a 10% commission on steady engagements, a 15% commission on single engagements, not to book non-union musicians, and not to book orchestras for less than union scale wages and working conditions (3373-74; Ex. 300, Art. 25, pp. 151-59). Federation makes no charge for the license agreement (533, 999). 118. The regulation of booking agents was considered at Federation’s 1936 Convention. At that time, many booking agents charged exorbitant fees to members and booked engagements for musicians at wages which were below union scale (1016-17, 1121-24, 3370-73). The President’s report made at that Convention stated (Ex. JX): “Many booking offices or agents do not now charge the standard wage for musicians and, in other cases where they do so, same is not paid to the musicians. This condition could only develop with the connivance of some contracting members or leaders who, in collusion with agents, frustrate the efforts of the union to enforce its wage scale. These leaders, or contracting members, by thus violating the laws of their organization, gain an advantage over other leaders in securing employment. As a result, a great percentage of the orchestras doing jobbing work or filling casual engagements, play for less than the union scale, and, in cases where the union tries to control the situation through the deposit of contracts with the union, false contracts are often deposited.” 119. Following the submission of that report, Federation adopted provisions relating to booking agents which are substantially the same as those presently in effect (3370-74). Subsequent to the adoption of the regulations governing booking agents, the abuses just referred to were, to a large extent, eliminated (1017, 1123-24). XIII. Caterers 120. Many club date single engagements take place in catering halls which are rented by purchasers of the music. Catering halls do not supply orchestras, but some proprietors of catering halls recommend particular orchestras to prospective purchasers and receive commissions from the orchestra leaders (757-59, 773-74, 2350-55, 2361-63, 3246-48). 121. Local 802’s By-Laws contain the following standing resolution (Ex. CJ, pp. 75-76): “A. Caterers, banquent managers and others connected directly or indirectly with halls, hotels and all similar establishments which provide facilities for public or private functions, are prohibited from engaging leaders or musicians, for such affairs. “B. Caterers or establishments violating the above may be placed on the Unfair List for such time and under such conditions as shall be determined by the Executive Board. “C. The payment or promise of payment, or any gift or consideration whatever, to the above is contrary to the principle of fair competition among members of this local, and any member guilty of such offense shall be fined not more than Five Hundred Dollars ($500.-00) or suspended, or both.” This standing resolution has been in effect for approximately fifteen years (3246). 122. In 1947, prior to the adoption of the By-Laws relating to caterers, Local 802 appointed a committee to investigate conditions in hotels and catering halls. The committee’s preliminary report, which was printed in the February 1947 issue of ALLEGRO, stated (Ex. JN): “The objective of this committee’s important assignment can be stated simply: the elimination of the caterer from the music business and the restoration to the musician of his right to earn a living without any restrictions and pressures upon him. Your committee believes, and knows that in that belief it reflects the unanimous opinion of the membership, that all money spent for music should go to musicians and not to chiselers. We oppose any caterer booking orchestras because that obviously leads to a depressing of union scales. The caterer must be barred from compelling people to use a specific orchestra.” The committee found evidence of “monopoly” and “collusion.” XIV. COLLECTIVE BARGAINING 123. Defendant unions do not bargain collectively with purchasers of music or with orchestra leaders with respect to wages and working conditions applicable to single engagements (26, 252-54, 3262; St.Min. 581-82). 124. Defendant unions have for many years bargained collectively with purchasers of music in various non-club date fields (2984-95). Thus, there are presently in effect (or have recently expired and are in the process of negotiation), among others, the following collective agreements to which either or both of the defendant unions are parties: (a) Collective agreement between Federation and phonograph recording companies, effective January 1, 1959 (Ex. BS). (b) Collective agreements between Federation and both NBC and CBS covering network radio and television, dated May 18,1964 (Ex. BL-1, BL-3). (c) Collective agreements between Federation and both NBC and CBS covering local radio and television, dated May 18, 1964 (Ex. BL-2, BL-4). (d) Collective agreement between Federation and television film producers (blank form) (Ex. BM). (e) Collective agreement between Federation and various makers of television video tape, effective July 1,1964 (Ex. HX). (f) Collective agreement between Federation and television film producers (Ex. HY). (g) Collective agreement between Federation and television producers relating to pay television motion pictures (Ex. HZ). (h) Collective agreement between Federation and television video tape producers (Ex. BN). (i) Collective agreement between Federation and Independent Motion Picture Producers (Ex. BO). (j) Collective agreement between Federation and Producers of Non- Theatrical Documentary & Industrial Films (Ex. BQ). (k) Collective agreement between Federation and advertising agencies covering television and radio commercial announcements (Ex. BT). (l) Collective agreement between Federation and producers of electrical transcriptions (Ex. BV). (m) Collective agreement between Local 802 and The League of New York Theatres, Inc., dated June 25, 1964 (Ex. BI). (n) Collective agreement between Local 802 and Shubert Interests Operating Legitimate Theatres in New York City, dated September 2, 1968 (Ex. BJ). (o) Collective agreement between Local 802 and both American Export Lines Inc. and United States Lines Co., dated April 24,1963 (Ex. IB, IB 1). (p) Collective agreement between Local 802 and Radio City Music Hall, dated September 30, 1963 (Ex. BH). (q) Collective agreement between Local 802 and The Metropolitan Opera, dated July 1,1961 (Ex. CB). (r) Collective agreement between Local 802 and the Philharmonic-Symphony Society of New York (Ex. BZ, BZ 1). (s) Collective agreement between Local 802 and New York City Opera, dated March 12, 1962 (Ex. BX). (t) Collective agreement between Local 802 and New York City Ballet, dated March 1, 1962 (Ex, BY). (u) Collective agreement between Local 802 and Music Publishers Protective Ass’n, Inc., dated September 21, 1964 (Ex. IC). (v) Collective agreement between Local 802 and hotels or restaurants (Ex. BK). (w) Collective agreements between Local 802 and Cafe Geiger dated November 16, 1962, with letter of correction dated April 17, 1963 annexed (Ex. IA). (x) Collective agreement between Local 802 and Michael Gaynor, regarding Flatbush Terrace, dated January 24, 1964 (Ex. CV). (y) Collective agreement between Federation and the three major networks relating to TV film, dated as of May 1, 1964 (Ex. 10). (z) Collective agreement between Local 802 and National Broadcasting Company, Inc., dated August 5, 1955 (Ex. IP). (aa) Collective agreement between Local 802 and WNEW Radio New York, dated July 23, 1964 (Ex. KL). Similar agreements have been entered into with other stations (Exs. KJ, KK). 125. The collective agreements referred to above set forth the hours and working conditions of all musicians, including orchestra leaders, covered by those agreements. Those agreements were the result of negotiations between Federation or Local 802, or both of them, and the purchasers of music, or an association of purchasers of music (2995, broadcasting 2258-66; theatres 2992-93; steamships 3225-27; Radio City Music Hall 3020-22; Metropolitan Opera 2852-55; New York Philharmonic 3192-3; New York City Center Opera 2992; New York City Center Ballet 2992; hotels, restaurants and nightclubs 2988-89, 2991-92, 3197-3205, 3210, Exs. IT-JB). 126. Defendant unions, before bargaining collectively with the purchasers of music, conducted meetings of their members to formulate the demands to be bargained for (hotels, restaurants and nightclubs, 3214-17, Ex. JC; Yorkville restaurants, 3224; steamships, 3226; theatres, 3283). No special invitations were sent to orchestra leaders to participate in the negotiations with the purchasers of the music (891-892, 1060). Upon completion of negotiations with purchasers, but prior to the execution of the collective agreement, members of defendant unions were given the opportunity to approve or disapprove of the proposed agreement (television networks 3183-4, Ex. II; recordings 3184-5, Ex. JT; television film 3186-87, Ex. IN; Radio City Music Hall 3022; New York Philharmonic-Symphony Society of New York, Inc. 3193; hotels, restaurants and nightclubs 3219-3222, 3225, Ex. JD). XV. MONOPOLY 127. Defendant unions endeavor to foreclose non-union orchestras or leaders from the music field principally by not permitting members to play in the same orchestra as non-members (Ex. 300, Art. 13, §§5-7; Art. 18, § 26; Ex. 165, Art. 4, § 1(h)), by not permitting members to deal with unlicensed booking agents (Ex. 300, Art. 25, §§ 4, 22), by not permitting licensed booking agents to book engagements for non-members (Ex. 300, Art. 25 at p. 151), by securing the cooperation of television companies (2314-15), record companies (1469) and hotels (1704-06, 2341) in not hiring non-union bands and by precluding non-members from entering Local 802’s exchange hall where sidemen are hired for engagements (2108). DISCUSSION I. CLASS ACTION Plaintiffs claim that they represent a class of orchestra leaders largely engaged in the single engagement field who (a) are employers who regularly employ sidemen or employee musicians who are members of AFM, Local 802, or another Local affiliated with AFM; and (b) are independent contractors largely engaged in the single engagement field. (Complaints, 60 Civ. 2939, par. 24; 60 Civ. 4926, par. 17) It is also alleged that “this complaint raises common rights; and a common relief is sought herein; and the object of this action is the adjudication of claims which do or may seriously affect the specific property rights of plaintiffs and of said class * * (Complaints, 60 Civ. 2939, par. 23; 60 Civ. 4926, par. 16) The class action is defined in Rule 28 (a), Federal Rules of Civil Procedure: “Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is “(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it; “(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or “(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.” The three categories of class actions in Rule 23(a), (b), (c) are called respectively “true,” “hybrid” and “spurious.” Under the prevailing view a judgment in the true class action is conclusive on all members of the class represented, in a hybrid class action on all members of the class as to rights in the res, and in a spurious class action on only the persons named as parties. Dickinson v. Burnham, 197 F.2d 973, 979 (2d Cir), cert. denied, 344 U.S. 875, 73 S.Ct. 169, 97 L.Ed. 678 (1952) and cases cited. Since Hansberry v. Lee, 311 U.S. 32, 43, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741 (1940), commentators have urged the abolition of these distinctions in the effect of a judgment in the three types of class suits. Dickinson v. Burnham, supra, 197 F.2d at 979. The view advocated is reliance on the test of adequate representation to determine whether absent parties should be bound. Rank v. Krug, 142 F.Supp. 1, 154 n. 93 (D.Cal. 1956), modified on other grounds, State of California v. Rank, 293 F.2d 340 (9th Cir. 1961), modified on other grounds, Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15; City of Fresno v. State of California, 372 U.S. 627, 83 S.Ct. 996,10 L.Ed.2d 28 (1963). These divergent views have important practical ramifications. Since under the current view only the parties to the action are bound in a spurious class action, the issue of whether they adequately represent a class is only important as it relates to the right to intervene York v. Guaranty Trust Co. of N. Y., 143 F.2d 503, 528, n. 52 (2d Cir. 1944), rev’d on other grounds, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231 (1945). It is merely a device for permissive joinder. Carroll v. Associated Musicians of Greater New York, 206 F. Supp. 462, 469-470 (S.D.N.Y.1962), aff’d, 316 F.2d 574 (2d Cir. 1963). Nevertheless, I find that plaintiffs fail to adequately represent the class they purport to represent. This suit is part of a series of suits in which the same orchestra leaders are leading a challenge to various union activities. The present suit challenges many phases of union regulation. If successful in all respects it would substantially weaken the union. It would not be surprising if there was a division among the orchestra leaders in the union on this subject. The complaints themselves indicate that some orchestra leaders willingly cooperate with the union (e. g., Complaint, 60 Civ. 4926, pars. 24, 25, 41). Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115 (1940); Giordano v. R.C.A. 183 F.2d 558 (3rd Cir. 1950). This question of conflict among the members of the proposed class was treated in three prior decisions involving musicians unions. In all, it was a basis for rejecting the propriety of a class suit. Associated Orchestra Leaders of Greater Phila. v. Philadelphia Musical Soc. etc., 203 F.Supp. 755, 757 (E.