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FAROWITZ v. ASSOCIATED MUSICIANS OF GREATER NEW YO

May 11, 1965

Milton FAROWITZ, Plaintiff,
v.
ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, A.F. of M., Defendant



The opinion of the court was delivered by: LEVET

The plaintiff, Milton Farowitz (hereinafter 'Farowitz'), alleging jurisdiction by reason of Title I of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter 'LMRDA'), 73 Stat. 522, 29 U.S.C. §§ 401-415, seeks a permanent injunction (a) requiring defendant, Associated Musicians of Greater New york, Local 802 (hereinafter 'Local 802'), to cancel and void the 'unlawful expulsion of Farowitz'; (b) requiring defendant to reinstate plaintiff to full membership in the defendant union; and (c) a judgment awarding to plaintiff money damages resulting from defendant's alleged unlawful expulsion.

The expressed basis of the expulsion by Local 802 was the plaintiff's publication of a bulletin which defendant claims advised its members not to pay certain so-called union 1 1/2% Local taxes and thus, in the words of the union, struck 'at the life blood' of the union. The plaintiff, however, contends that he has been deprived of freedom of speech (the right to express any 'views, arguments and opinions') which is guaranteed in the 'Bill of Rights,' subchapter of LMRDA, 29 U.S.C. § 411(a)(2).

 The pertinent statutory provisions, 29 U.S.C. § 411(a)(2), (4), read as follows:

 '(2) Freedom of speech and assembly. -- Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

 '(4) Protection of the right to sue. -- No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, that any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof: And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.'

 Certain relevant definitions are set forth in 29 U.S.C. § 402:

 '(e) 'Employer' means any employer or any group or association of employers engaged in an industry affecting commerce (1) which is, with respect to employees engaged in an industry affecting commerce, an employer within the meaning of any law of the United States relating to the employment of any employees or (2) which may deal with any labor organization concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and includes any person acting directly or indirectly as an employer or as an agent of an employer in relation to an employee but does not include the United States or any corporation wholly owned by the Government of the United States or any State or political subdivision thereof.

 '(o) 'Member' or 'member in good standing', when used in reference to a labor organization, includes any person who has fulfilled the requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization.'

 Local 802 defends on three grounds:

 (1) Plaintiff's right of free speech is limited by the right of Local 802 'to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.' 29 U.S.C. 411(a)(2). In short, Local 802 pleads fiscal self-preservation.

 (2) Plaintiff did not exhaust his intra-union remedies as required by the first proviso of 29 U.S.C. 411(a)(4), above stated.

 (3) A certain employer or certain employers financed, encouraged or participated in this action contrary to the prohibition in the second proviso of 29 U.S.C. § 411(a)(4).

 Prior proceedings in this case included an application by plaintiff for a preliminary injunction in May, 1963, which resulted in an Opinion, Findings of Fact and Conclusions of Law, dated May 28, 1963, and an order granting the preliminary injunction, dated June 7, 1963. After an appeal by defendant, the order was affirmed by the Second Circuit on April 29, 1964, 330 F.2d 999.

 It was conceded that Joseph Carroll and Ben Cutler were employers in the single engagement field (184-185) and that Peterson's corporation (Charles Peterson Theatrical Productions, Inc.) was an employer in the single engagement field. (185, 186) It was stipulated that the court might take judicial notice of other actions involving the parties in this court. (364, 365)

 The case was tried to the court without a jury. After hearing the testimony of the parties, examining the exhibits, the pleadings, the stipulations of counsel, the briefs and proposed findings of fact and conclusions of law, this court makes the following Findings of Fact and Conclusions of Law:

 FINDINGS OF FACT

 PRELIMINARY

 1. Plaintiff is a sideman *fn1" in the single and steady engagement field and prior to November 14, 1962 was and for years had been a member in good standing of defendant Local 802. Plaintiff, now a life insurance underwriter, was a full-time musician until November 14, 1962, playing the trumpet.

 2. Defendant Local 802 is a labor organization within the meaning of the LMRDA of 1959, 29 U.S.C. § 402(i). It is affiliated with the American Federation of Musicians of the United States and Canada (hereinafter called 'Federation' or 'AFM'). Membership in Local 802 results in membership in the Federation.

 3. Local 802 and Federation and their members are involved in an industry which in the single (and the steady) engagement field is an industry affecting interstate commerce. See Cutler v. American Federation of Musicians, supra, 211 F.Supp. at 435; Carroll v. American Federation of Musicians, 295 F.2d 484, 486 (2nd Cir. 1961).

 4. A single engagement is defined in the By-Laws of defendant Local 802 (Ex. 26, Art. X, p. 63) and is a musical performance generally for one night but always for less than one week, including, but not limited to, such types of functions as weddings, commencements, debutante parties, fashion shows, sports events, college or high school dances or other social events. See also Carroll v. Associated Musicians of Greater New York, 206 F.Supp. 462, 465 (S.D.N.Y.1962), aff'd, 316 F.2d 574 (2nd Cir. 1963). In the steady engagement field the musicians are engaged on a longer term basis by hotels, restaurants, night clubs, theatres, symphony associations, etc.

 5. The By-Laws of Local 802 in force at the time relevant in this action provide:

 'There shall be payable by and collected from all members a 1 1/2% Tax on all engagements based on scale price, therefore: Leaders shall be held responsible for the collection and payment of this Tax.' (Pl. Ex. 28, at p. 66)

 In a subsequent court action, Schwartz v. Associated Musicians of Greater New York, Local 802 (S.D.N.Y.), it was decided by this court on October 29, 1963, 237 F.Supp. 149, and affirmed by the Court of Appeals, 304 F.2d 228 (2d Cir. 1964), that the tax constituted membership dues and that it was the obligation of every member to pay it.

 EVENTS LEADING TO EXPULSION

 6. This court in Carroll v. Associated Musicians of Greater New York, 206 F.Supp. 462 (S.D.N.Y.1962), aff'd, 316 F.2d 574 (2d Cir. 1963), determined on June 25, 1962 that the compulsory collection of the 1 1/2% Local tax and the 10% Traveling surcharge by employer-leaders in the single engagement field violated Section 302 of the LMRA, 29 U.S.C. 186.

 7. A similar conclusion was reached in Cutler v. American Federation of Musicians, supra. The Cutler action was instituted on July 20, 1962 and the decision rendered on November 2, 1962, before the plaintiff herein was notified of his ouster. Judgment was entered on November 14, 1962 and affirmed April 30, 1963.

 8. In August, 1962 (433), after the decision in Carroll v. Associated Musicians of Greater New York, a statement entitled, 'Official Statement By the Executive Board,' *fn2" concerning the tax, was issued. It proclaimed that the court decision was applicable to the exaction of the Local tax from leaders only. The individual members were still obligated to pay the tax. (Ex. H)

 9. Both before and after the issuance and publication of the Local's Official Statement' (Ex. H), at times after June 25, 1962 and prior to his expulsion on November, 14, 1962, the plaintiff distributed a handbill entitled, 'THEY ARE UNLAWFUL' on the Exchange Floor *fn3" of the Local. The handbill read as follows:

 '* * * THEY ARE UNLAWFUL * * *'

 '1. THIS IS THE STATEMENT OF THE DECISION RENDERED BY FEDERAL JUDGE LEVET CONCERNING THE 10% TAX AND THE 1 1/2% LOCAL 802 TAX. AFTER LISTENING TO THE EVIDENCE FOR ONE SOLID WEEK, THE JUDGE MADE THE STATEMENT THAT YOU SEE ABOVE. DON'T TAKE OUR WORD FOR IT LISTEN TO WHAT THE JUDGE WHO HEARD THE CASE RULED. THE STATEMENT ABOVE IS AN EXACT QUOTE FROM THE COURT RECORD. THESE TAXES 'ARE UNLAWFUL', WHY PAY IT?

 '2. FEDERAL JUDGE LEVET RULED THAT THE LEADERS CANNOT ACCEPT NOR DEMAND FROM YOU THE 10% TAX AND THE 1 1/2% TAX AND GIVE IT TO THE UNION.

 '3. THE BY-LAWS OF THE LOCAL AND THE FEDERATION SAY THAT 'THE LEADER SHALL BE RESPONSIBLE FOR THE PAYMENT OF THE SIDEMAN'S TAXES'. THIS HAS BEEN RULED 'UNLAWFUL' BY THE COURT. THEREFORE, THERE IS NOTHING IN THE UNION RULES THAT SAY 'YOU THE SIDEMAN MUST PAY IT TO THE UNION'.

 '4. NOW MOST IMPORTANT OF ALL IS THIS INFORMATION: CHARGES HAVE BEEN FILED WITH THE-NATIONAL LABOR RELATIONS BOARD AGAINST LOCAL 802, THE AMERICAN FEDERATION OF MUSICIANS AND LEADERS CONCERNING THESE TAXES. THE CHARGE IS THAT THE LEADERS HAVE BEEN ILLEGALLY FORCING YOU TO GIVE THEM THIS TAX MONEY SO THAT THE LEADERS CAN PASS IT OVER TO THE UNION.

 '5. THE FEDERATION OR ITS LOCALS CANNOT FORCE A LEADER TO COLLECT TAXES FROM THE SIDEMAN.

 '6. IF THERE ARE ANY THREATS BY THE UNION OR THE LEADER REGARDING THESE TAXES, NOTIFY ME BY MAIL AND WE WILL GO TO COURT IMMEDIATELY.'

 'MILT FARROW 14-25 Sunnyside Street Far Rockaway 91 Queens, N.Y.'

 (Ex. 1)

 THE CHARGES, THE TRIAL, AND THE EXPULSION

 10. On September 10, 1962, plaintiff was charged by Local 802 through its sergeant-at-arms, one Benjamin J. Schwartz, of violations of Article IV, Section 1, paragraphs (k), (jj) and (i), in that 'defendant publicly issued a leaflet to members of Local 802 A.F. of M. advising them and urging them not to pay the 1 1/2 per cent tax required to be paid by the working members in accordance with the bylaws of Local 802 A.F. of M.' (Ex. 2)

 11. Article IV, Section 1, paragraphs (k), (jj) and (i) of the defendant's By-Laws provide:

 '(k) To violate or fail to comply with, or to cause or induce or advise anyone else to violater or fail to comply with the constitution or bylaws of the price lists contained in Article 10 as the same now exist, or as they may be hereafter enacted, changed, or amended; * * *

 '(jj) To commit any act of bad faith or unfair dealing which has for its purpose the injuring of the local or any of its officers or members, or the American Federation of Musicians, its locals or the officers and members thereof, respecting the affairs and welfare of the local or of the American Federation of Musicians or any of its affiliated locals, or respecting in general the welfare of the musical profession; * * *

 '(i) To fail to comply with the instructions or orders of the executive board or any other proper authority of the local; * * *' (Ex. 28)

 12. Prior to the time of the charges made against Farowitz, no officer of Local 802 spoke to him about the circulation of the handbill (i.e., Ex. 1). (26)

 13. A hearing on the aforesaid charges was originally scheduled for October 9, 1962 (see p. 16a of Appendix to Appellant's Brief in appeal from the preliminary injunction order) but was postponed to October 30, 1962 (see pp. 17a-21a of said Appendix), at which time Farowitz appeared before the Trial Board of Local 802 and testified, raising the defense of freedom of speech.

 14. At the trial of the charges on October 30, 1962, an off-the-record offer was made to Farowitz by Earl Shendell, Chairman, and other Trial Board members to the effect that 'You (i.e., Farowitz) don't have to be expelled if you are willing to print a retraction of this pamphlet.' (28-30) Farowitz said that one member directed that his defense remarks be stricken (30) and during the trial the Chairman and other members ordered parts of the questions and answers ...


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