The opinion of the court was delivered by: CROAKE
This is a motion for a preliminary injunction brought on by Order to Show Cause. Plaintiffs are professional musicians known as "sidemen." A sideman is a musical freelancer who makes himself available for specific, short-term engagements on a random basis rather than undertaking steady employment with a band or orchestra. Name orchestra leaders are thus free to play single engagements as frequently or infrequently as they can obtain them, and with orchestras of varying size, by using sidemen as members of these orchestras and paying them on a per engagement basis.
Joseph B. ("Joe") Carroll is an orchestra leader who frequently employs sidemen. Carroll has differed with the American Federation of Musicians (A.F.M.) on occasion and in December 1961 he was expelled from that Union.
At various times subsequent to Carroll's expulsion, plaintiffs in the present action performed as sidemen in his orchestra. For this they also were expelled from the Union in accordance with Art. IV, § 1, para. H, of the by-laws of Local 802, A.F.M., which makes it a violation of the by-laws:
(H) To perform in or with a band or orchestra which is led or conducted by a non-member of the Union or in which a non-member plays an instrument or performs any other work of a musician.
Aggrieved by their expulsion from the Union, plaintiffs brought this action pursuant to § 102 of the Labor-Management Reporting and Disclosure Act of 1959 (L.M.R.D.A.),
which grants a right to sue in federal court for violations of other sections of the same statute. The other section allegedly violated here is § 101(a)(5) which provides:
(5) Safeguards against improper disciplinary action. No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been; (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. 29 U.S.C. § 411(a)(5).
Plaintiffs allege that the charges against them were not specific and that they were not given a full and fair hearing. In so far as it refers only to the procedures followed, this allegation is frivolous. It is hard to imagine how the charges might have been more specific
and the procedures employed provided at least the mechanics of a full and fair hearing.
Plaintiffs' claim runs deeper, however, than a simple allegation that they were not given a procedurally fair hearing prior to expulsion. They argue in essence that the by-law under which they were expelled is patently unfair and has been held to violate the National Labor Relations Act (N.L.R.A.).
As a result, plaintiffs argue, no proceeding that applies this by-law, however "full and fair" it might be procedurally, can be anything but arbitrary and unfair in a substantive sense.
Plaintiffs' argument rests on the recent decision of the National Labor Relations Board (N.L.R.B.) in American Federation of Musicians v. Glasser, et al., 165 N.L.R.B. 110. In that case the Board outlawed certain applications of a provision of the by-laws of the A.F.M. similar to the Local 802 by-law under which the present plaintiffs were expelled. This section of the A.F.M. by-laws provides:
A member of the Federation cannot play with suspended or expelled members or with non-members in the jurisdiction of a local or of the Federation on competitive engagements unless it be with the consent of the Federation, or in cases wherein the laws of the Federation provide otherwise. Engagements are considered competitive if musicians receive pay for their services or if the employer, in the absence of free services of musicians, would be obliged to pay for such. Art. 13, § 5. Constitution By-laws and Policy of the A.F.M. (1966).
The Board held that application of this provision to an employer who is subject to the jurisdiction of the N.L.R.B.
was an unfair labor practice. The theory was that to discipline an employer union member who played with a non-member employee is coercive within the meaning of §§ 8(b)(1)(A) and 8(b)(2) of the N.L.R.A.
Plaintiffs argue that a fair reading of this decision requires that for the same basic reasons (viz., that it is coercive) a union cannot discipline employees who play with or under the direction of a non-member employer. Plaintiffs allege that whether the member leader is expelled for playing with non-member employees or member employees are expelled for playing with non-member leaders the result is the same: To wit, a closed shop is effectively enforced by the union in violation of the N.L.R.A.
The argument is ingenious and this court is not without sympathy for the awkward position in which plaintiffs find themselves. But they are in the wrong forum; their argument is essentially that their expulsion was an unfair labor practice and this court has no jurisdiction to determine or remedy unfair labor practices. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959); Garner v. Teamsters, Chauffeurs & Helpers Local Union, 346 U.S. 485, 98 L. Ed. 228, 74 S. Ct. 161 (1953).
If the by-law in question or its equivalent had been squarely held to constitute an unfair labor practice in its application, then there might exist some question as to whether a union tribunal applying it in spite of such holding was affording a "full and fair hearing" within the meaning of § 101 (a)(5) of the L.M.R.D.A. Cf. Vars v. International Brotherhood of Boilermakers, etc., 320 F.2d 576 (2d Cir. 1963). Here, no such determination has been made by the Labor Board. Neither is the by-law in question so patently unlawful or unfair as to render its application a sham. There is thus no basis ...