330 F.2d 999, *; 1964 U.S. App. LEXIS 5509, **;
56
L.R.R.M. 2082; 49 Lab. Cas. (CCH) P18,933
Milton FAROWITZ, Plaintiff-Appellee, v. ASSOCIATED MUSICIANS
OF GREATER NEW YORK, LOCAL, 802, A.F. OF M., Defendant-Appellant
No. 311, Docket 28434
UNITED STATES COURT OF APPEALS SECOND CIRCUIT
330 F.2d 999; 1964 U.S. App. LEXIS 5509; 56 L.R.R.M. 2082; 49
Lab. Cas. (CCH) P18,933
February 11, 1964, Argued
April 29, 1964,
Decided
CORE TERMS: leader, by-laws, membership,
orchestra, expulsion, collection, labor organization, percent tax, intraunion,
preliminary injunction, leaflet, urge, executive board, engagement, collecting,
sidemen, fail to comply, futile, urging, contractual, discipline, refraining,
interfere, futility, proviso, musical, impair, union member, musician,
distributed
COUNSEL: [**1]
Godfrey P. Schmidt, New York City (Andrew P.
O'Rourke and Anthony J. Shovelski, New York City, on the brief), for
plaintiff-appellee.
David I. Ashe, New York City (Ashe & Rifkin, New
York City, on the brief), for defendant-appellant.
JUDGES: Before LUMBARD, Chief Judge, and WATERMAN
and FRIENDLY, Circuit Judges.
OPINIONBY: LUMBARD
OPINION: [*1000]
This appeal, brought by the
Associated Musicians of Greater New York Local 802, A.F.M., presents two
questions. The first is whether a union member is protected against disciplinary
action by the union when he urges fellow members not to pay dues pursuant to the
union's by-laws which he has good reason to believe are illegal. The second
question is whether the district court was clearly erroneous in holding
preliminarily that under all the circumstances the plaintiff, Milton Farowitz,
did not have to exhaust his remedies within the union before bringing suit,
because it would have been futile to do so.
We hold that Farowitz was
protected in urging noncompliance with the union by-laws, and that, in light of
all the union litigation regarding the collection of 'taxes,' Judge Levet did
not err in not requiring Farowitz first to exhaust [**2] his remedies within the union. Accordingly we affirm
the preliminary injunction and direct that further proceedings be had not
inconsistent with this opinion.
This appeal is another chapter in the
proliferating litigation between Local 802 and its parent, the American
Federation of Musicians, on the one hand and various orchestra leaders and union
members on the other. On June 25, 1962, in Carroll
v. Associated Musicians of Greater New York, 206 F.Supp. 462 (S.D.N.Y.),
Judge Levet declared unlawful under 302 of the Labor Management Relations Act,
29
U.S.C. § 186, Local 802's practice of collecting through orchestra leaders
in the single engagement field, who themselves never act as sidemen, n1 the 1
1/2 percent tax on all musical engagements assessed upon all working members of
the local. n2 In July 1962 Local 802's Executive Board issued a statement that
Judge Levet had declared unlawful solely the leaders' collection of the tax but
that the membership nonetheless was obligated under the union by-laws to pay the
tax. n3
Both prior and subsequent to the issuance of the Executive
Board's statement, Farowitz, a member in good standing of Local [**3] 802, distributed leaflets entitled 'THEY ARE
UNLAWFUL' which urged the membership not to pay the tax on the ground that the
union constitution and by-laws provided no alternative to the orchestra leaders'
collection, which had been declared unlawful in the Carroll decision. n4
[*1001] On September 10, 1962, while
appeal was pending from Judge Levet's decision, Local 802 charged Farowitz with
violation of the union by-laws n5 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 by-laws of Local 802 A.F. of M.' After a hearing at which Farowitz
testified, the Trial Board on November 14 found him guilty as charged on the
ground that after the Executive Board had assured the membership of the legality
of the continued collection of the assessment Farowitz had continued to urge
non-payment and thereby had sought 'to undermine the very existence of the
Local.' The Trial Board decreed that Farowitz be expelled from membership in
Local 802.
Although the Federation's by-laws provide a right of appeal
to the International Executive [**4] Board,
Farowitz sought no further intraunion remedies. Meanwhile on April 18, 1963, we
filed our decision in Salzhandler
v. Caputo, 2 Cir., 316 F.2d 445, in which we held unlawful, under §
101(a)(2) of the Labor Management Reporting and Disclosure Act (L.M.R.D.A.), 29
U.S.C. § 411(a)(2), union discipline of a member who had accused officers of
the union of misappropriation of union funds. Eleven days after, on April 29,
1963, Farowitz instituted this action in the Southern District of New York,
alleging that his expulsion had been in violation of § 101(a)(2) of the
L.M.R.D.A. n6 and that as a result of his [*1002] expulsion he had been unable to secure work as
a musician. He sought injunctive relief and money damages. By order to show
cause obtained the same day he moved for a preliminary injunction. From Judge
Levet's order of May 28, 1963, which granted Farowitz' motion for a preliminary
injunction and denied its motion for summary judgment, Local 802 appeals.
Local 802 contends that the order should be reversed on two grounds:
first, that Farowitz' expulsion falls within the proviso to § 101(a)(2) which
states that 'nothing herein [**5] 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'; and
second, that Farowitz failed to exhaust his intraunion remedies as required by §
101(a)(4) of the L.M.R.D.A., 29
U.S.C. § 411(a)(4). n7
We find that Farowitz' actions were protected
within the rationale of our decision in Salzhandler. In holding unlawful under §
101(a)(2) union discipline of a member because he had allegedly defamed officers
of the union, we stated: 'The statute abundantly evidence(s) the intention of
the Congress to prevent union officials from using their disciplinary powers to
silence criticism and punish those who dare to question and complain.' Local
802's contention here that Farowitz misrepresented the tenor of the Carroll
decision of the district court with a design to undermine the union's very
existence is unsupported by the facts. The leaflet Farowitz distributed on its
face did no more than conclude from the Carroll decision [**6] and the union by-laws that no permissible method of
collecting the tax remained. This was not an unreasonable reading of the by-laws
in the light of the district court ruling that orchestra leaders who were not
sidemen could not be required to collect the 1 1/2 percent tax. In urging that
the membership refuse to pay the tax Farowitz was suggesting one rational method
of testing its validity and forcing an alteration in union policy, such as an
amendment of the by-laws which might provide for a proper means of collecting
the dues or taxes from the membership.
We do not say that there may not
be some situations in which a union member would not be protected against
disciplinary measures if he were to urge other members to forego paying their
dues. Each case of course must turn on its own facts. All we decide is that a
member having such good reasons as here to believe that the collection of taxes
or dues runs afoul of the law has the right to call this to the attention of the
membership and to urge that they refrain from paying such assessments.
Thus it is clear that here, as in Salzhandler, the elements of the
proviso to § 101(a)(2) are not satisfied. A rule which subjects [**7] a member to expulsion for complaining of a tax which
he reasonably believes to be illegal is not a reasonable rule. A member's
responsibility to his union as an institution surely cannot include any
obligation that he sit idly by while the union follows a course of conduct which
he reasonably believes to be illegal because of what a court of law has stated.
As for Local 802's alternative contention that Farowitz had not
exhausted his intraunion remedies, it is clear that where there is reason to
believe that resort to an appeal within the union would be a futility it is not
necessary to follow such a course as a prerequisite to legal action. See Detroy
v. American Guild of Variety Artists, 286 F.2d 75 (2 [*1003] Cir.
1961). Judge Levet found that a further appeal by
Farowitz to the International Executive Board would have been futile, inasmuch
as the Federation has consistently taken a position contrary to Farowitz' and
has indeed been asserting its position in litigation since March 1960. While one
cannot necessarily equate the Federation's position on the 1 1/2 percent tax
with the view it would have taken on the propriety of Farowitz' expulsion, Judge
Levet [**8] was thoroughly advised of the
position of the union and its parent on these matters as several of the
litigated actions had already come before him, and it was not an abuse of
discretion for him to conclude that the likelihood of futility was so great that
preliminary relief ought not be withheld. The order here in issue granted merely
a preliminary injunction pendente lite; Judge Levet explicitly retained for
trial the question whether further intraunion proceedings at this juncture would
be futile, and this question is of course open for further examination prior to
determination of the action.
The order of the district court is
affirmed.
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n1. The term 'sidemen' refers to musicians who
perform in a band or orchestra but does not include the leader or conductor of
the band or orchestra.
n2. After making this finding, Judge Levet
dismissed the complaint since the plaintiffs were not members of the defendant
unions. On April 30, 1963, we filed decisions affirming the judgments of the
district court in Carroll and in Cutler
v. American Federation of Musicians, 2 Cir., 316 F.2d 546, a case involving
the identical question raised in Carroll as to the legality of the collection by
orchestra leaders of the 1 1/2 percent tax assessed by Local 802. [**9]
n3. The by-laws of Local 802 provide:
'There shall be payable by and collected from all members a 1 1/2% Per
cent tax on all engagements based on scale price, therefore: Leaders shall be
held responsible for the collection and payment of this tax * * *.'
n4.
Farowitz' leaflet in its entirety stated:
'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. NOT 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.' [**10]
n5. Article IV, Section 1, paragraphs (k), (jj) and (i) of Local 802's
by-laws make it cause for expulsion:
'(k) To violate or fail to comply
with, or to cause or induce or advise anyone else to violate or fail to comply
with the constitution or bylaws or 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.'
n6. Section 101(a)(2) provides:
'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.' [**11]
n7. Section 101(a)(4) provides, in pertinent part:
'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 * * *'
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