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January 31, 1973

Don Glasser, Plaintiff
American Federation of Musicians Of the United States And Canada, and Willard Alexander, Inc., Defendants

Griesa, D.J.

The opinion of the court was delivered by: GRIESA


The plaintiff in this action, Don Glasser, is an orchestra leader and a member of defendant American Federation of Musicians ("AFM"). The dispute in this action, and in related arbitration and New York state court proceedings, is about whether plaintiff is obligated to pay a $3,000 commission for an orchestra engagement to a booking agent, Willard Alexander, Inc. The complaint in this action seeks to vacate, and to prevent enforcement of, an arbitration award made by AFM's International Executive Board directing plaintiff to pay Alexander the $3,000. Federal jurisdiction is invoked under Sections 101 and 102 of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411 and 412.

 Plaintiff moves for a preliminary injunction against the enforcement of the arbitration award. Plaintiff also moves for leave to serve an amended complaint. While the original complaint was directed solely to AFM, the proposed amended complaint would add Alexander as a defendant and would assert against Alexander a claim for damages for allegedly bringing about an unlawful arbitration proceeding.

 The motion is denied in all respects. The arbitration proceeding and award have been held to be valid by the New York Court of Appeals. In Matter of Arbitration Between Willard Alexander, Inc., Respondent, and Member Don Glasser, Appellant, 31 N.Y. 2d 270, 338 N.Y.S.2d 609, 290 N.E.2d 813 (1972). That decision is res judicata on all essential points, including the issue of violation of federal labor law raised in this action. Even in the absence of res judicata, it is clear that there are no valid claims under the provisions of the LMRDA relied upon by plaintiff.

 In addition to denying plaintiff's motion I am directing that the action be dismissed. The same reasons which dictate denial of plaintiff's motion also disposed of this case in its entirety.

 The controversy arises out of two engagements for plaintiff and his orchestra to perform at Roseland Dance City in New York. The contracts for these engagements were signed July 1, 1968 by plaintiff and a representative of Roseland. On each contract plaintiff listed Willard Alexander, Inc. as booking agent. Alexander is a booking agent licensed by AFM to do business with that organization's members.

 The first engagement at Roseland was performed in June and July 1969 and the second engagement was performed in December 1969 and January 1970. At the time of the first engagement Alexander requested that plaintiff pay a $3,000 commission. Plaintiff refused, claiming that Alexander did not in fact act as a booking agent on these engagements.

 Section 6 of Article 9 of AFM's bylaws provides that every contract relating to booking services for members shall be deemed to include a provision that disputes about the contract between a member and a booking agent shall be arbitrated by the International Executive Board of the AFM. Section 6 further provides that the courts of the State of New York, or of any state in which a party to an arbitration resides, shall have jurisdiction in reference to any matter arising out of the arbitration.

 On December 30, 1969 Alexander instituted an arbitration proceeding before the International Executive Board of AFM seeking recovery of the $3,000 claimed from plaintiff. On January 26, 1970 an AFM official sent a letter notifying plaintiff of the proceeding. At this time plaintiff was on the road with his orchestra, and did not receive the letter until February 26, 1970. On the latter date plaintiff's attorney wrote AFM stating the view that the matter was something for the courts to adjudicate. Neither plaintiff nor his attorney participated in the arbitration proceeding. On May 15, 1970 the International Executive Board of AFM handed down its award, holding that Alexander was entitled to recover $3,000 from plaintiff. A copy of this award was sent promptly to plaintiff's attorney.

 On June 2, 1970 plaintiff commenced his action in this Court.

 On December 15, 1970 Alexander moved in Supreme Court, New York County, to confirm the arbitration award. This motion was made under C.P.L.R. § 7510, which permits an application to confirm an arbitration award to be made within a year.

 Plaintiff appeared in the New York court proceeding and opposed confirmation of the award. The motion to confirm was granted in Special Term. Plaintiff appealed, and a divided Appellate Division affirmed on December 21, 1971. 38 A.D. 2d 546, 327 N.Y.S. 2d 282. The Court of Appeals unanimously affirmed on November 1, 1972, with Chief Judge Fuld writing the opinion. Willard Alexander, Inc. v. Glasser, 31 N.Y.2d 270, 338 N.Y.S.2d 609, 290 N.E.2d 813.

 In the state court proceedings, plaintiff argued (1) that there was no binding agreement to arbitrate the dispute in question, and (2) that Section 101(a) (4) of the LMRDA, 29 U.S.C. § 411(a) (4), would be violated by enforcement of the requirement in the AFM bylaws to submit the dispute to arbitration. The latter statute is concerned with ensuring that labor organizations will not prevent their members from having appropriate access to the courts. The New York Court of Appeals rejected each of plaintiff's arguments, holding that there was a valid and binding arbitration agreement between plaintiff and Alexander, and that Congress did not intend in the LMRDA to prohibit the type of arbitration which was conducted by the AFM between plaintiff and Alexander.

 The New York Court of Appeals decision is res judicata as to the claims asserted in this action by plaintiff against both AFM and the proposed additional defendant, Alexander. The fact that the proceeding in the New York courts was commenced after commencement of action in this Court does not prevent giving res judicata effect to the final decision which has now been reached by the New York Court of Appeals. Chicago, R.I. & P. Ry. v. Schendel, 270 U.S. 611, 615, 70 L. Ed. 757, 46 S. Ct. 420 (1926); Restatement of Judgments § 43 (1942). The fact that one of the parties here -- AFM -- may not, strictly speaking, have been a party to the New York judicial proceedings is also no reason for holding res judicata inapplicable. Plaintiff had a full and fair opportunity to try in the state court proceedings the very claims made in this Court; and such claims were in fact tried in the state courts. Under these circumstances, even if AFM is considered to be a non-party in the state court proceedings nevertheless AFM may assert the doctrine of res judicata. Zdanok v. Glidden, 327 F.2d 944 (2d Cir.), cert. denied, 377 U.S. 934, 12 L. Ed. 2d 298, 84 S. Ct. 1338 (1964); Elder v. ...

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