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AMES v. ASSOCIATED MUSICIANS OF GREATER NEW YORK

January 19, 1966;

Marty AMES et al., Plaintiffs,
v.
ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AFM, et al., Defendants


Levet, District Judge.


The opinion of the court was delivered by: LEVET

LEVET, District Judge.

The plaintiffs in the above-entitled action move for a preliminary injunction enjoining the above-named defendants from -

 "(i) Enforcing or applying LOCAL 802 MUSICAL ENGAGEMENTS WELFARE FUND and the provisions unilaterally made by defendant unions and applied by them and the other defendants with respect to or in connection with that Fund, until decision on the motion for preliminary injunction brought on by this Order to Show Cause;

 "(ii) Imposing upon and applying to plaintiffs the other LOCAL 802 and AFM [American Federation of Musicians] Bylaws set forth in EXHIBIT E annexed to the complaint;

 "(iii) Imposing upon plaintiffs the current 'Memorandum of Agreement' dated in December, 1963, or any part thereof, concluded between certain hotels, nightclubs and restaurants on the one hand and defendant LOCAL 802 on the other hand;

 "(iv) Collaborating for the purpose or with the effect of requiring plaintiffs to renegotiate with their clients any written or oral contracts for a future musical engagement in order to make such contracts conform with the unilateral exactions or impositions contained in said EXHIBIT E;

 "(v) Requiring orchestra-leader-employers and their clients to use the fictional, false and fraudulent 'Form B' contracts;

 "(vi) Combining or collaborating in any way for the purpose or with the effect of visiting any reprisal or retaliation upon any plaintiff or any employee of any plaintiff, because of plaintiffs' participation in this action or because of plaintiffs' failure or refusal to comply with EXHIBIT E annexed to the complaint * * *."

 BACKGROUND

 The history and background of this case insofar as set forth in certain decisions by this court may be ascertained from the following opinions:

 
Cutler v. American Federation of Musicians of United States and Canada and Associated Musicians of Greater New York Local 802, 211 F. Supp. 433 (S.D.N.Y.1962), aff'd 316 F.2d 546 (2nd Cir., 1963), cert. denied 375 U.S. 941, 84 S. Ct. 346, 11 L. Ed. 2d 272; Carroll v. Associated Musicians of Greater New York, Local 802 and American Federation of Musicians of the United States and Canada, 235 F. Supp. 161 (S.D.N.Y.1963); Schwartz et al. v. Associated Musicians of Greater New York Local 802, 237 F. Supp. 149 (S.D.N.Y.1963), aff'd 340 F.2d 228 (2nd Cir. 1964); Cutler v. American Federation of Musicians of the United States and Canada and Associated Musicians of Greater New York Local 802, 62 Civ. 2552, opinion January 2, 1964, not reported (S.D.N.Y.); Cutler v. American Federation of Musicians of the United States and Canada and Associated Musicians of Greater New York Local 802, 62 Civ. 2552, opinion September 23, 1964, not reported (S.D.N.Y.); Farowitz v. Associated Musicians of Greater New York Local 802, A.F. of M., 241 F. Supp. 895 (S.D.N.Y.1965); Carroll et al. v. American Federation of Musicians of United States and Canada et al., 241 F. Supp. 865 (S.D.N.Y.1965).

 The basic difficulties here arise in large part from the ambivalent characters of the orchestra leaders as both employers and employees and from their consequent relationships to the union.

 The papers upon which this motion is made include:

 1. A complaint of 125 paragraphs which is endorsed by the attorney for plaintiffs and verified by eight of the individual plaintiffs. The complaint is anything but simple, concise and direct as required by Rule 8 of the Federal Rules of Civil Procedure. "It is indeed a veritable compendium of prolixity." See Associated Orch. Leaders of Greater Philadelphia v. Philadelphia Musical Society, 203 F. Supp. 755, 756 (E.D.Pa.1962).

 2. Certain affidavits of Ben Cutler, one of the plaintiffs herein.

 3. An affidavit of the attorney for the plaintiffs.

 RELIEF SOUGHT UPON THIS MOTION

 For the purpose of this motion, the immediate relief sought may be summarized as follows:

 1. THE WELFARE FUND

 An injunction against defendant Local 802 restraining it from enforcing the payments of $1.00 for each member, including the leader, to the Local 802 Musical Engagements Welfare Fund for each single engagement performance taking place within the jurisdiction of said Local and making the leaders responsible for collection of the contribution and payment into the fund.

 2. FILING CONTRACTS

 An injunction against Local 802 restraining enforcement of a section of the By-Laws (Article IV) making it a violation for a member (apparently including a leader) to fail to file properly executed contracts on official blanks furnished by the Local as specified by Article X of the By-Laws. This objection apparently relates to wage scales, the " B " form contract and the requirement for renegotiation of contracts under Exhibit E.

 3. HOTEL AND RESTAURANT CONTRACTS

 An injunction against the enforcement of the restaurant contract called "Memorandum of Agreement" with hotels, etc.

 4. REPRISALS

 An injunction against any reprisals or retaliation against plaintiffs for participation in this action or because of failure to comply with Exhibit E.

 PLAINTIFFS' AND DEFENDANTS' ALLEGATIONS OF INJURY.

 Plaintiffs advance two principal claims of injury which they allege warrant injunctive relief. Plaintiffs argue that compliance with the contested union bylaws and regulations results in their violating federal law. (Cutler affidavit pp. 8-9). Non-compliance, it is claimed, would result in plaintiffs' inability to operate. (Cutler affidavit pp. 8-9).

 Also alleged as harm are violations of plaintiffs' rights of contract and damages to reputation through the use of the Form B contract.

 Defendants note, however, that Local 802 is abandoning the Form B contract. (Affidavit of Arons, President of the Local, pp. 3, 5).

 Defendants also point out injuries which they would sustain if preliminary injunctive relief were granted. An injunction would cause severe hardship by disruption of long-standing procedures and long established relationships before they have been shown to be clearly invalid.

 Moreover, a preliminary injunction would disrupt defendants' welfare payments scheme as well as wage schedules.

 PRELIMINARY INJUNCTIVE RELIEF

 In determining whether preliminary injunctive relief will lie, the court must balance the equities, considering the convenience of the parties and possible injuries to them. Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660, 88 L. Ed. 834 (1944).

 "[Considerable] weight is given to the need of protection to the plaintiff as contrasted with the probable injury to the defendant." Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 96 (4th Cir. 1950). See also Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2nd Cir.1953).

 Relief will lie only if the court is convinced with "reasonable certainty" that the complainant will succeed at the final hearing. Hall Signal Co. v. General Ry. Signal Co., 153 F. 907 (2nd Cir. 1907); see Societe Comptoir de L'Industrie Cotonniere Etablissements Boussac v. Alexander's Dep't Stores, Inc., 299 F.2d 33, 35, 1 A.L.R.3d 752 (2nd Cir. 1962).

 Relief will lie only upon a showing of irreparable harm. Societe Comptoir de L'Industrie Cotonniere Etablissements Boussac v. Alexander's Dep't Stores, Inc., 299 F.2d 33, 35 (2nd Cir. 1962); Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2nd Cir. 1953); Behre v. Anchor Ins. Co. of New York, 297 F. 986, 989 (2nd Cir. 1924).

 Relief is in the court's discretion. Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660, 88 L. Ed. 834 (1944); Societe Comptoir de L'Industrie Cotonniere Etablissements Boussac v. Alexander's Dep't Stores, Inc., 299 F.2d 33, 35 (2nd Cir. 1962); Behre v. Anchor Ins. Co. of New York, 297 F. 986, 991 (2nd Cir. 1924).

 The following special considerations are involved here.

 (1) Difficult questions of fact and law are present. See Carroll v. American Federation of Musicians, 295 F.2d 484, 486 (2nd Cir. 1961); Bond v. Harris, 228 F. Supp. 265, 267 (S.D.N.Y.1964); Carroll v. American Federation of Musicians, 60 Civ. 2939, S.D.N.Y., Oct. 19, 1960, (Bryan, J.) (unreported).

 (2) Certain of the practices under attack are of long standing. See Carroll v. American Federation of Musicians, 310 F.2d 325, 326 (2nd Cir. 1962); Carroll v. American Federation of Musicians, 295 F.2d 484, 486 (2nd Cir. 1961); Bond v. Harris, 228 F. Supp. 265, 267 (S.D.N.Y.1964); Carroll v. American Federation of Musicians, 60 Civ. 2939, S.D.N.Y., Oct. 19, 1960, (Bryan, J.) (unreported), pp. 2-3.

 (3) Irreparable harm to plaintiffs is absent. See Bond v. Harris, supra, 228 F. Supp. at 267; Carroll v. American Federation of Musicians, 60 Civ. 2939, S.D.N.Y., Oct. 19, 1960 (unreported).

 (4) There is a likelihood of irreparable harm to defendants. See Carroll v. American Federation of Musicians, 310 F.2d 325, 326 (2nd Cir. 1962); Carroll v. American Federation of Musicians, 295 F.2d 484, 486 (2nd Cir. 1961); Bond v. Harris, 228 F. Supp. 265, 267 (S.D.N.Y.1964); Carroll v. American Federation of Musicians, 60 Civ. 2939, S.D.N.Y., Oct. 19, 1960 (unreported).

 (5) This dispute is in an area involving reconciliation of apparently conflicting federal statutes.

 As Judge Friendly wrote in Carroll v. American Federation of Musicians, 310 F.2d 325, 327 (2nd Cir. 1962):

 
"In this area, where courts must reconcile the sometimes conflicting policies of four acts of Congress, [Clayton, Norris-LaGuardia, National Labor Relations Act, anti-trust laws] two of which explicitly deprive a Federal court of 'jurisdiction' to issue an injunction, * * * there is special need for restraint in granting interlocutory relief."

 The present case involves two acts of Congress which specifically deprive the court of jurisdiction to issue an injunction. Facts are alleged which could arguably constitute an unfair labor practice. Under the National Labor Relations Act the NLRB would be vested with primary jurisdiction. See San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). Also raised are issues which could be considered to involve a "labor dispute" which the court is barred from enjoining by the Norris-LaGuardia Act. (29 U.S.C. § 101 et seq.)

 These two Acts preventing injunctive relief must be reconciled with § 302(e) (29 U.S.C. § 186(e)) which grants the court jurisdiction to issue ...


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