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Schwartz v. Associated Musicians of Greater New York Local 802

December 29, 1964

JULIUS SCHWARTZ, ET AL., PLAINTIFFS-APPELLANTS
v.
ASSOCIATED MUSICIANS OF GREATER NEW YORK LOCAL 802, AMERICAN FEDERATION OF MUSICIANS OF UNITED STATES AND CANADA, DEFENDANT-APPELLEE.



Author: Smith

Before LUMBARD, Chief Judge, MOORE and SMITH, Circuit Judges.

SMITH, C. J.:

Plaintiffs appeal from summary judgment dismissing the first count in a two-count complaint, and holding that union "local tax" was not violative of law, in the United States District Court for the Southern District of New York, Richard H. Levet, District Judge. We find no error in the grant of summary judgment, and affirm the judgment.

The courts have already passed on another aspect of this controversy. In Wittstein v. American Federation of Musicians, 326 F.2d 26 (2 Cir. 1963), cert. granted 376 U.S. 972 (1964), reversed - U.S. - (Dec. 7, 1964), an order granting summary judgment in favor of the plaintiffs on the second count of a two-count complaint was reversed by the Supreme Court.*fn1 Now before us is another order of the court granting defendant's motion for summary judgment on the first count of that complaint.

Involved here is the claim by the plaintiffs, sidemen*fn2 in the defendant Local, in behalf of themselves and others similarly situated, that a tax imposed on them by the Local was violative of Section 302 of the Labor Management Relations Act of 1947, 29 U.S.C.A.§ 186, Section 101 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 411, and the Local's by-laws and standing resolutions. The tax, payable only when the member was active,*fn3 made the sideman personally responsible for its collection.

The district court, in dismissing the suit, held that there were no genuine issues as to any of the material facts raised by the pleadings and the supporting affidavits and concluded as a matter of law that: (1) the percentage levies were "membership dues" within the meaning of Section 302; (2) no violation of Section 101 was committed by the Local when it made the sidemen directly responsible for the payment of the tax since the obligation was from its inception an obligation of the sidemen; and (3) the collection of the tax directly from the sidemen was a lawful procedure under the Local's by-laws and standing resolutions. We hold that the case was ripe for summary proceedings and that the district court's disposition was proper.

The Local tax, first introduced in 1943, has since that time undergone considerable modification in the process of developing into the form that the plaintiffs found so objectionable. In September 1943, the Local adopted the following resolution:

"RESOLVED, That effective as of October 1, 1943:

"(a) There shall be payable by and collected from all members a 1 per cent tax on all engagements based on scale price therefor;

"(b) Said 1 per cent tax shall likewise be levied on all salaries paid to officers of our Local and to all members thereof regularly employed by the Union;

"(c) All income realized from items (a) and (b) above mentioned shall be allocated to the General Fund of our Local."

A standing resolution adopted September 9, 1955 increased the 1 percent tax on all engagements to 2 percent.*fn4 In 1960 another standing resolution was passed reducing the tax to 11/2 percent and directing that the orchestra leader be held responsible for its collection and pay ment.*fn5 The leaders objected to this directive and sought judicial relief. An injunction was obtained prohibiting the Local from demanding or accepting the tax from the leaders, and we affirmed, excepting in our opinion only the situation where the sideman furnished written authorization to the leader directing him to pay the tax to the Local. See Carroll v. American Federation of Musicians of the United States and Canada, 295 F.2d 484 (2 Cir. 1961).

The obvious consequence of this injunction was to make it difficult for the Local effectively to collect the tax from the leaders; the Local's Executive Board responded by passing a resolution permitting the collection of the tax directly from the sidemen. Leaders were required to furnish the Union with the names and card numbers of all sidemen who performed single engagements, thereby making it possible for the sidemen to be billed individually. In the December 1961 issue of "Allegro," the official publication of the Local, the Union confirmed the apparent purpose behind this new procedure by printing a notice which stated in part:

"Because of the restriction on the existing methods of tax collection imposed on Local 802 in the injunction obtained by the Orchestra Leaders of Greater New York, the Union, pending final disposition of the case, is now obliged to collect ...


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