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ROTHSTEIN v. MANUTI

December 6, 1963

Murray ROTHSTEIN et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
AL MANUTI, AL Knopf, Max L. Arons, and Hy Jaffe, as President, Vice-President, Secretary and Treasurer, respectively, of Associated Musicians of Greater New York, Local 802, Associated Musicians of Greater New York, Local 802, an unincorporated labor organization; and the Honest Ballot Association, as agents for and acting on behalf of Associated Musicians of Greater New York, Local 802, Defendants



The opinion of the court was delivered by: LEVET

The plaintiffs, by order to show cause, seek a preliminary injunction enjoining a referendum and the implementation of certain resolutions amending the by-laws of the defendant Local 802. Plaintiffs, members in good standing of Local 802, are professional musicians who act as sidemen in both the single and steady engagement fields. *fn1" They sue in their own behalf and as representatives of a class variously alleged in the complaint to be the entire union membership and that portion of the membership which has petitioned the Local protesting certain actions. The defendants, in addition to the Local itself, are its officers and the Honest Ballot Association which, pursuant to one of the challenged resolutions, is conducting the referendum sought to be enjoined. The verified complaint alleges that the challenged resolutions are violative of Sections 101 and 501 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 535, 29 U.S.C. §§ 411, 501 (LMRDA) and Section 302 of the Labor Management Relations Act of 1947, as amended, 73 Stat. 537, 29 U.S.C. § 186 (LMRA).

There seems to be little dispute as to the facts. On September 9, 1963, Local 802's annual By-Law meeting was held. The members present approved Resolution No. 3 (Complaint Ex. C) by a vote of 683 to 319, thereby amending the By-Laws to abolish the 1 1/2% Work tax *fn2" and increasing the annual membership dues from $ 24.00 to $ 80.00, effective January 1, 1964. The sum of $ 80.00 was to include the per capita tax of the American Federation of Musicians, Local 802's parent body. (Arons Aff. p. 3)

 At the same meeting, two other resolutions were enacted amending Article VIII, Section 1 and Article VII, Section 7 of the By-Laws. The amendment to Article VII, Section 1 replaced the annual September By-Law meeting with three annual By-Law meetings to be held in February, May and October respectively, and provided:

 '* * * all resolutions adopted at the February and May meetings shall go into effect on July 1st, and all resolutions adopted at the October meeting shall go into effect on January 1st, unless the Resolution itself provides for a later effective date.' (Complaint Ex. D)

 The second lowered the quorum requirement for meetings from 500 to 250. (Complaint Ex. E) The membership did not act on Resolutions No. 21, 26, 36, 37, 38 and 39 at the meeting because prior to their being reached on the agenda there was a failure of a quorum. (Arons Aff. p. 4)

 On September 12, 1963, the Local's Executive Board, acting pursuant to Article VIII, Section 3 of the By-Laws, adopted Resolutions No. 21, 26, 36, 37, 38 and 39. Article VIII, Section 3 provides:

 'In the event of the failure to obtain a quorum at * * * the By-Law (September) meetings, the Executive Board has the power to act on all proposed amendments for the * * * By-Laws * * * submitted by the membership and as published in the Journal as provided for in the By-Laws.' (Complaint Ex. B, p. 57)

 All the resolutions adopted by the Executive Board had been, prior to the September 9th meeting, published in the Journal. (Arons Aff. p. 4)

 Resolution No. 36 provided inter alia for the continuance of the 1 1/2% Work tax through December 31, 1963 and the automatic expulsion from membership for failure to pay the work dues within two weeks of a steady and four weeks of a single engagement. (Complaint Ex. F)

 Resolution No. 21 amended a pre-existing By-Law which prohibited union members working in theatrical shows in which they invest money by preventing its evasion 'under the name of a corporation or other business entity, and/or an agent, nominee or member of his family.' (Arons Aff. pp. 13-14) Resolution No. 26, introduced by the plaintiff Gurton, changed the date for regular meetings of the Local to the 'third Monday of each month' at 3:00 P.M. (ibid.). The record before this court on this motion is barren as to what was effectuated by Resolutions No. 37, 38 and 39 other than the characterization in Aron's affidavit that they 'merely made minor changes in the wording of some of the By-Laws to conform with the Court decisions * * *.' (id. at 14)

 After the membership became aware of the action at the September 9th meeting increasing the dues to $ 80.00 per year, many members protested the increase to the officers of the Local. (Arons Aff. Ex. 1) The Executive Board upon consideration (see Arons Aff. Ex. 2) voted unanimously, with one member absent, pursuant to Article VIII of the By-Laws to submit the issue of membership dues increase to a referendum vote. Article VIII of the By-Laws provides:

 'Referendum

 '* * * *um

 '2. A referendum shall be had on any particular proposal submitted:

 '(a) A referendum on said proposal is voted for by a majority of the entire Executive Board; (Complaint Ex. B, p. 58)

 '* * * *fer

 '7. (a) If the membership approves any proposal in the referendum which constitutes an amendment to or alteration or change of an existing By-Law, it shall go into effect in the manner provided for by the By-Laws, as and if it had been passed at the next ensuing September (By-Law) meeting.' (Id. at pp. 59-60)

 The official Notice of Referendum was mailed to the membership of Local 802 on October 15, 1963 and published in the October, 1963 issue of ALLEGRO, the official organ of Local 802. The notice provided in part:

 '* * * Under the authority of Article VIII of the By-Laws, the Executive Board unanimously voted on September 30, 1963 to submit to a Referendum of the entire membership an Amendment to the By-Laws of Local 802 which repeals the action taken at the September Meeting. The Executive Board's proposal reduces the $ 80.00 a year membership dues to $ 30.00* and reinstates the '*Note: We cannot go back to $ 24.00 a year annual dues because at the June 1963 Convention of the A.F.M. it was voted that the dues of every member of every Local be increased by $ 6.00 a year. This $ 6.00 is to be paid as per capita dues to the Federation.'

 1 1/2% Work dues.

 The referendum was to be conducted by the defendant Honest Ballot Association. The notice closed with the statement: 'THE EXECUTIVE BOARD RECOMMENDS TO THE MEMBERSHIP THAT IT VOTE YES ON ...


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