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September 3, 1964

Rudolph GUARNACCIA et al., Plaintiffs,
Herman D. KENIN, as President, et al., of American Federation of Musicians, Defendants. AL GURTON et al., etc., Plaintiffs, v. Max L. ARONS and Al Manuti, Defendants

The opinion of the court was delivered by: TENNEY


Plaintiffs, by Order to Show Cause, seek a preliminary injunction enjoining the defendants as officers of the American Federation of Musicians (hereinafter referred to as 'AFM') 'from effectuating or attempting to effectuate' a ruling of the International Executive Board (hereinafter referred to as 'Board') which had declared two resolutions previously put to, and passed by, the membership of Local 802, Associated Musicians of Greater New York (hereinafter referred to as 'Local 802'), null and void.

 Plaintiffs bring this action on their own behalf and on behalf of all other members of Local 802.

 This action is one facet of a continuing controversy, others of which have been the subject of prior litigation in this Court. See, e.g., Gurton v. Manuti, 235 F.Supp. 50 (S.D.N.Y. May 8, 1964); Rothstein v. Manuti, 235 F.Supp. 48 (April 13, 1964 Per Levet, J.); Rothstein v. Manuti, 235 F.Supp. 39 P18,650 (S.D.N.Y.1963), and in the New York Supreme Court, New York County, Rothstein v. Manuti, 49 CCH Lab.L.Rep. P51,024 (S. Ct.N.Y. March 4, 1964).

 From the opinions rendered in the cases cited supra, and the affidavits filed herein, it would appear that the plaintiffs, as members of Local 802, are a faction of the Local at odds with the incumbent leadership. The dispute centers around the role that full-time or part-time musicians, such as plaintiffs, should play in the functioning of the Local vis-a-vis the non-active or occasional musicians who make up a majority of the membership.

 The incumbent officers of Local 802, as individuals, are named defendants in the second motion to be decided herein, viz., Gurton v. Arons, 64 Civ. 2292, (July 23, 1964).

 The present complaint alleges a violation of Section 101(a)(1) & (2) of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter referred to as 'LMRDA'), 73 Stat. 522, 29 U.S.C. § 411(a)(1) & (2) (Supp.1963).

 The jurisdiction of this Court is based on Section 102, LMRDA, 73 Stat. 523, 29 U.S.C. § 412 (Supp.1963).

 The conduct which plaintiffs allege violates those Sections consists of the action of the Board of AFM in declaring null and void two resolutions duly passed at a by-laws meeting of Local 802, held on May 18, 1964.

 There is no substantial dispute as to the facts.

 In February 1964, Local 802 submitted to a referendum vote of the entire membership a proposition amending the Local's By-Laws to provide that election of officers of the Local 'shall be held by a referendum secret mail vote' conducted by the Honest Ballot Association. The election procedure adopted as part of the referendum contain the following provisions:

 Article VI, Section 3 provides:

 'Each duly nominated and qualified candidate shall have the right either in person or through a representative, to inspect the membership rolls of the Local prior to the mailing of the ballots and to be present at the counting of the ballots by the Honest Ballot Association.'

 Section 8 of Article VI provides:

 'All members whose dues are paid through the third quarter of the election year shall be eligible to vote in the election of officers.'

 Section 9 provides that protests to the election can be filed with the Honest Ballot Association with a further appeal to the American Federation of Musicians, Local 802's parent group.

 'The Honest Ballot Association shall have authority to make any investigations, including the right to inspect any records, prior to or after the election has been completed, for the purpose of insuring an honest election.'

 As part of the referendum, but separately voted upon and approved 12,546 to 2,236, was the following:

 'Notwithstanding any other provisions of these By-Laws, this Article (i.e., the election of officers by secret ballot mail vote, etc.) can be repealed only by a referendum mail ballot vote of the members.'

 The referendum vote resulted in the adoption of the proposition by a vote of 12,654 in favor and 2,206 against.

 Thereafter, Messrs. Rothstein and Gurton (two of the named plaintiffs herein) proposed two amendments for consideration at the Local's by-laws meeting scheduled for May 1964. Article VIII, Section 1(b) of Local 802's By-Laws requires that all proposed by-law amendments and changes which are to be considered at the May by-laws meeting must be submitted to the Secretary of the Local on or before March 1st, and that the proposed resolutions so submitted be printed in the official journal of the defendant at least thirty (30) days prior to the meeting. Article VIII, Section 3, requires the Executive Board to publish its report on the amendments prior to the meeting. Both proposals were submitted prior to March 1, 1964.

 The Gurton proposal provided as follows:


 'The referendum of Feb. 15, 1964 provides for the conduct of the election of Local 802 officers, board members and delegates by mail ballot,

 and whereas;

 'the said Referendum Resolution does not provide adequate safeguards for establishing the eligibility and identity of those voting in a mail election,

 and whereas;

 'the said Referendum Resolution in fact repeals an important safeguard previously provide by Art. VI, Sec. 8 requiring every member who desired to vote to furnish documentary proof of his identity by means of a 'certificate, registration card, or license issued by a Municipal, State, or Federal governmental body, agency, department, or board', in addition to his Union card,

 and whereas;

 'the said Referendum Resolution fails to provide adequate machinery for ascertaining whether or not the members voting in a mail election are in good standing in Local 802 and in all other locals of the AFM to which they may belong, as provided by the Federation By-Laws;

 'Therefore be it resolved;

 'that a new section be added to Art. VI as amended to read as follows:

 'Sec. 12. No member shall be eligible to receive a ballot or to vote in a mail election of officers, board members, and delegates unless he shall have issued to him by the Secretary of the Local a Certificate of Eligibility to Vote, identifying him by name, address, and card number as an eligible voter. Such Certificate of Eligibility shall be obtainable by applying in person to the Secretary of the Local at any time between Sept. 1st through Sept. 30th of the election year during regular business hours of the Local. Such Certificate of Eligibility shall be issued only to each member who properly identifies himself, shows that he is in good standing in all locals of the AFM to which he belongs, and signs a register which shall also clearly set forth his card number and correct address; and

 'Be it further resolved;

 'that immediately after the close of the registration period the Secretary shall make the register available for inspection to all candidates who request such inspection. The Secretary shall further prepare printed copies of the list of all registered voters and their correct addresses and shall provide a copy of such list to each candidate for office on or before October 15th of the election year; and

 'Be it further resolved;

 'that upon enactment this amendment may not be repealed or amended either before or after its effective date except at a duly convened membership meeting, anything to the contrary in these By-Laws notwithstanding.'

 (s) Al Gurton.

 The Rothstein proposal reads:

 'WHEREAS: More than 5,000 members of Local 802 live outside a 75-mile radius of New York City and have no contact with the Local, its officials, and its affiairs; and

 'WHEREAS: Half of the membership did not vote in the last referendum on the subject of holding elections of officers by mail ballot, indicating that between 10,000 and 15,000 members living in New York are completely ...

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