prescribed by union regulations for the leader of an orchestra. That "leadership" meant no more than this is forcefully demonstrated by the fact that Roberts, the original "leader" later became a "side man" when DeWilliams, a "side man" under Roberts' "leadership", assembled, at plaintiff's request, a group of musicians for a subsequent engagement at plaintiff's establishment. The power of these "leaders" to hire and fire particular members of the group can hardly be deemed significant in view of the power of the plaintiff to terminate the services of the group in its entirety and render them unemployed.
Griff Williams v. United States, 7 Cir., 126 F.2d 129, the authority most strongly relied upon by plaintiff, presents the converse situation of that of the case at bar and forcefully illustrates the distinctions I have made. In that case the question was presented whether the leader of an orchestra was the employer of a group of musicians so as to be responsible for the tax on their compensation imposed by the Social Security Act. The Circuit Court of Appeals for the Seventh Circuit reversed the holding of the District Court that Williams and his musicians were employees of the establishment in which they furnished the music and held that Williams was the employer of the musicians in his orchestra. In that case, however, Williams was engaged in business for himself. He engaged twelve or fourteen musicians to play in an orchestra known as "Griff Williams and his Orchestra". They performed at a number of establishments during the taxable year. Williams paid the expenses of obtaining bookings, and he paid the men salaries in accordance with contracts he made with them. The gain or loss, after receipt of the contract price from the establishments at which engagements were obtained and the payment of the salaries and other expenses, was the gain or loss of Williams. Whether the musicians had or did not have employment depended, from an economic viewpoint, on the continued operation of the business of Williams and not on the particular establishment in which they were furnishing the music, and he was held to be their employer within the meaning of the Social Security Act.
A consideration of other elements bearing on the existence of the relationship of employment is of little assistance, since they do not bear predominantly in one or the other direction. Control of the premises upon which the work was performed was in the plaintiff, but the instruments, with the exception of the piano, were furnished by the musicians. Payment was made to the leader by a check to his order only, and he in turn paid the members of the orchestra, although it seems clear that plaintiff knew that the total sum it was paying was the amount of the union scale for the number of musicians engaged, and that the leader merely distributed the proceeds of the check on that basis. The "manner" of performing was largely in the control ofthe leader, although plaintiff designated the general nature of the music to be played, the place where it was to be played, and such matters as when intermissions were to be taken.
The authorities cited are likewise of limited assistance. A number of cases presenting the question of whether members of an orchestra were employed, within the meaning of a State Compensation Act, by their leader or by the establishment in which they played engagements, have been cited by both plaintiff and defendant. No readily discernible line of cleavage may be found. Slight variations in the terms of the contracts or in the extent of the control by the establishment over the manner in which the services were rendered have been regarded as tipping the scale in one direction or the other. Each case, therefore, must be governed largely by its own facts and by the scope and purpose of the statute involved.
In my opinion the plaintiff, engaged in a business enterprise involving the furnishing of music to its patrons, was, under the facts of the case at bar, the employer of all the members of the several orchestras which played at its establishment within the meaning of the Social Security Act of 1935, and it is therefore subject to the excise tax imposed by that Act. Accordingly, I make the following
Conclusions of Law:
1. The plaintiff was the employer of both the leaders and musicians of the several orchestras which played at the General Wayne Inn during the taxable period in question, within the meaning of § 804 of the Social Security Act of 1935, and was, accordingly, subject to the tax imposed by that Act.
2. Judgment is hereby entered for the defendant.
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