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WITTSTEIN v. AMERICAN FEDN. OF MUSICIANS OF UNITED

October 28, 1963

Eddie WITTSTEIN et al., Plaintiffs,
v.
AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant. Julius SCHWARTZ et al., Plaintiffs, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, American Federation of Musicians of the United States and Canada, Defendants



The opinion of the court was delivered by: LEVET

These consolidated actions are brought by members of the defendant unions challenging certain recent fiscal enactments of both the parent Federation and its Local 802. The complaint in Wittstein challenges the procedure at the Federation's recent annual convention by which a resolution was enacted, purporting to abolish the so-called 10% Traveling surcharge tax and substituting therefor an increase in the per capita dues of members of the Federation. The complaint in Schwartz is framed in two counts, the second of which is substantially identical to the cause of action asserted in the Wittstein complaint. This opinion is expressly directed to govern the disposition of the Wittstein complaint and the second count of the Schwartz complaint. The first count in Schwartz challenges a provision of Local 802's By-Laws which, for the present purposes, is sufficiently unrelated to the cause asserted in the Wittstein complaint to be the subject of a separate opinion.

The complaints challenge the procedure by which the resolution was adopted as violative of both the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. § 401 et seq., and the defendant Federation's own Constitution and By-Laws. A declaratory judgment is sought seeking to enjoin the defendant Federation from carrying into effect the resolution on its effective date of January 1, 1964. The Federation has moved for summary judgment.

 In order to place the action of the convention in its proper reference, it is necessary to briefly review the legal history of the Federation's 10% Traveling surcharge. Article 15 of the Federation's By-Laws requires that Federation members who perform a 'miscellaneous out-of-town engagement' be paid, but not to actually receive, an amount equal to 10% Of the minimum wage established by the local in whose jurisdiction the engagement takes place. This additional amount is known as the 'traveling surcharge.' The orchestra leader does not actually turn over the additional 10% To his musicians (sideman) because Federation By-Laws provide that the local in whose jurisdiction such engagement is performed must collect the traveling surcharge from the orchestra leader and transmit the amount to the Federation. Should the Local fail to collect the surcharge from the leader, the leader is required to transmit the surcharge directly to the Federation. In a prior action brought by the plaintiff Cutler, the collection of the 10% Traveling surcharge from Cutler, when engaged as an employer in the single engagement field, was held to be violative of Section 302 of the Taft-Hartley Act, 29 U.S.C. § 186. Cutler v. American Fed. of Musicians, 211 F.Supp. 433 (S.D.N.Y.1962), aff'd 316 F.2d 546 (2 Cir. 1963), petition for certiorari filed, 32 U.S.L. Week 3103 (U.S. Sept. 16, 1963) (No. 473). At the convention, the officers of the Federation sought to abolish the 10% Traveling surcharge and substitute therefor an increase in the per capita dues of its 282,000 members.

 STATUTES INVOLVED

 The pertinent portion of the Act involved is as follows:

 'SUBCHAPTER II. -- BILL OF RIGHTS OF MEMBERS OF LABOR ORGANIZATIONS

 ' § 411. Bill of rights; constitution and bylaws of labor organizations

 '* * * *

 '(3) Dues, initiation fees, and assessments. -- Except in the case of a federation of national or international labor organizations, the rates of dues and initiation fees payable by members of any labor organization in effect on September 14, 1959 shall not be increased, and no general or special assessment shall be levied upon such members, except -- '* * * *

 '(E) in the case of a labor organization, other than a local labor organization or a federation of national or international labor organizations (i) by majority vote of the delegates voting at a regular convention, or at a special convention of such labor organization held upon not less than thirty days' written notice to the principal office of such local or constituent labor organization entitled to such notice, or (ii) by majority vote of the members in good standing of such labor organization voting in a membership referendum conducted by secret ballot, or (iii) by majority vote of the members of the executive board or similar governing body of such labor organization, pursuant to express authority contained in the constitution and bylaws of such labor organization: Provided, That such action on the part of the executive board or similar governing body shall be effective only until the next regular convention of such labor organization.'

 The defendant Federation is conceded to be a labor organization in an industry affecting commerce as defined in 29 U.S.C. § 402(i) and is a labor organization other than a local labor organization or a federation of national or international labor organizations within the meaning of 29 U.S.C. § 411(a)(3) (B). See Cutler v. American Fed. of Musicians, supra.

 The relevant article of Federation's Constitution is Article 5 and of the Federation's By-Laws, Article 28. Article 5 is as follows:

 'ARTICLE 5 -- REPRESENTATION AND DELEGATES

 'All Locals of this Federation of one hundred and fifty members or less shall be entitled to one delegate. All Locals shall be entitled to one delegate for each one hundred members or a major fraction thereof, not exceeding three delegates for any one Local, but each Local shall be entitled to one vote for each one hundred or major fraction thereof, but no Local shall cast more than ten votes, and the number each Local is entitled to shall be computed from the last report made on January 1st before the convention by the Local, according to the books of the Treasurer. On questions affecting a change in the laws, each Local may, upon roll call, cast as many votes as it has members, as per book of the Treasurer, A.F. of M. All laws so passed shall be referred to a convention committee consisting of the Executive Board, A.F. of M., and chairmen of all committees, who may sanction or veto same, their action to be final. Roll call shall be demandable and had under this Article on demand of ten delegates or five Locals.'

 Article 28 of Federation's By-Laws in the pertinent parts are as follows:

 'ARTICLE 28 -- CONVENTION PROCEEDINGS -- THE ORDER OF BUSINESS SHALL BE:

 'Section 1. Appointment of Credentials Committee by the President.

 Report of Committee on Credentials.

 Standing introduction of Delegates attending Convention for the first time.

 Appointment of other committees.

 Reading of rough minutes of previous session.

 Report of officers.

 Communications and ...


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