The opinion of the court was delivered by: WEINFELD
Plaintiff, an orchestra leader-employer, seeks a preliminary injunction to enjoin the defendant American Federation of Musicians of the United States and Canada (hereinafter called Federation), an international union comprising 675 locals with a membership of 280,000, from expelling him from membership for refusal to pay what is referred to as "work dues equivalents" imposed by a number of its locals. He also seeks to preserve his status as Federation member pending final determination of this suit.
The immediate controversy centers about plaintiff's refusal to make payments to two locals of which he was not a member, but within whose jurisdictions he had performed. The basic issue is the validity of Federation bylaws which permit locals to require nonlocal members to pay a percentage of their wages derived from performances within the locals' jurisdiction.
The plaintiff, who alleges this is a class action brought on behalf of some 5,000 other orchestra leader-employers similarly situated, seeks a declaratory judgment that the bylaws in question are void and that payments made thereunder violate Section 302 of the Labor Management Relations Act of 1947, as amended,
and Section 101(a)(3) of the Labor-Management Reporting and Disclosure Act of 1959.
Plaintiff heads and conducts an orchestra of sixteen musicians, called sidemen, who travel with him throughout the United States performing engagements of various durations. Plaintiff holds membership in two Federation locals, Local 802, named as a defendant herein but not served with process, and Local 47. Each sideman is also a member of at least one Federation local. Plaintiff and sidemen alike pay such dues as may be imposed by their own locals, both in fixed periodic amounts and, where the local requires, based upon a percentage of the scale wage earnings.
Prior to 1964, traveling members
of Federation who performed in jurisdictions other than their own paid either a ten per cent "traveling surcharge" to Federation
or, if not subject to this tax and if the local in whose jurisdiction they performed so required, a tax based upon earnings (not exceeding four per cent), provided it was also imposed upon the local's own members. At the 1963 Federation convention the ten per cent "traveling surcharge" payable to the national organization was abolished effective January 1, 1964.
The convention adopted a resolution, Recommendation 11, which authorized locals to require traveling members to pay a percentage of their scale wage earned within their jurisdictions, so long as the levy was uniformly imposed on members and nonlocal members without discrimination.
Thereafter, in March 1964, the Federation's International Executive Board codified this resolution in the following bylaw:
"Each local may impose such dues (whether regular, periodic or based upon earnings), fees and assessments as shall be lawfully adopted by such Local, subject to the following conditions and limitations:
"(C) A Local may require any traveling member of the Federation who is not a member of such Local to pay a percentage of his scale wage earned from services rendered in connection with any performance within its jurisdiction, provided the Local uniformly requires its own members to pay the same percentage of their scale wages in connection with the rendition of the same classification of services."
Payments based upon earnings which a local may impose are limited to four per cent.
The payments based upon a percentage of earnings payable by a local's own members have been referred to as "work dues"; those by traveling members, as "work dues equivalents." Failure of a traveling member to make any payment lawfully imposed by a local subjects him to automatic expulsion from the Federation.
During the year 1964, following the passage of Recommendation 11 by the convention and its implementation by the Executive Board, plaintiff and his sidemen performed in the jurisdictions of various Federation locals of which they were not members. Plaintiff refused to pay the "work dues equivalents" imposed by Local 148, Atlanta, Georgia, and Local 444, Jacksonville, Florida, which were in accord with those imposed under their bylaws upon their own members -- two per cent (80 ) and four per cent (96 ), respectively. Thereupon, those locals preferred charges with Federation. Although there is a dispute as to whether plaintiff ever filed an answer to the charges, it is beyond question that he did not pay the "work dues equivalents" required by those locals, as well as others, within whose jurisdiction he performed while a traveling member of Federation.
On October 25, 1964 plaintiff was advised that the International Executive Board had sustained the charges preferred against him by the two above named locals, had awarded them, respectively, 80 and 96 , "the work dues equivalents," had fined him $ 25 in each instance, and that unless the fines and awards were paid by November 20, 1964, suspension would follow.
On November 19, 1964 plaintiff commenced this action and obtained a temporary restraining order to preserve the status quo pending determination of his claims.
Plaintiff's basic contentions are that the "work dues equivalents" levied by a local within whose jurisdiction he played, but of which he was not a member, are unlawful under Section 101(a)(3)(A) of the Labor-Management Reporting and Disclosure Act of 1959,
which prohibits an increase of dues or the imposition of assessments except as prescribed therein, and that Section 302(a) of the Labor Management Relations Act of 1947
prohibits him as "an employer" from paying any money or "other thing of value" to a union representing his employees. He predicates his asserted right to injunctive relief on the ground that expulsion from Federation membership will deprive him of the services of Federation musicians and his long-time booking agent and, in consequence, of his livelihood.
The defendant not only denies that either statute is offended, but asserts that no case has been made out to justify preliminary relief, since plaintiff has shown on likelihood of success.