Wittstein v. AMERICAN FEDERATION OF MUSICIANS OF US & CAN.

• Citation: 326 F.2d 26
• Decision Date: 18 December 1963
• Docket Number: 28564.,247,Dockets 28563,No. 246,246
• Parties: Eddie WITTSTEIN et al., Plaintiffs-Appellees, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant-Appellant. Julius SCHWARTZ et al., Plaintiffs-Appellees, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

326 F.2d 26 (1963)

Eddie WITTSTEIN et al., Plaintiffs-Appellees, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant-Appellant.

Julius SCHWARTZ et al., Plaintiffs-Appellees, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant-Appellant.

Nos. 246, 247, Dockets 28563, 28564.

United States Court of Appeals Second Circuit.

Argued November 20, 1963.

Decided December 18, 1963.

Dissenting Opinion December 23, 1963.

Certiorari Granted March 9, 1964.

Godfrey P. Schmidt, New York City, for plaintiffs-appellees.

Emanuel Dannett, New York City, (Henry Kaiser and George Kaufmann, Washington, D. C., Jerome H. Adler, Herbert D. Schwartzman, Eugene Mittelman, and McGoldrick, Dannett, Horowitz & Golub, New York City, for defendant-appellant, American Federation of Musicians of the United States and Canada and David I. Ashe and Ashe & Rifkin, New York City, for defendant-appellant, Associated Musicians of Greater New York, Local 802, on the brief), for defendant-appellant, American Federation of Musicians of the United States and Canada, and defendant-appellant, Associated Musicians of Greater New York, Local 802.

Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.

Certiorari Granted March 9, 1964. See 84 S.Ct. 798.

MEDINA, Circuit Judge.

As a result of our decision in Cutler v. American Federation of Musicians, 2 Cir., 1963, 316 F.2d 546, cert. denied, December 9, 1963, 84 S.Ct. 346, holding invalid the 10 per cent travelling surcharge imposed by certain provisions of the By-laws and Constitution of the Federation, an attempt was made to supply funds deemed necessary to take the place of the travelling surcharge by presenting for adoption at the ensuing Annual Convention of the Federation held in June, 1963, a resolution increasing per capita membership dues. When this resolution was passed these consolidated actions were brought by individual members of the unions to challenge the validity of the dues increase on the ground that it violated the provisions of the Labor-Management Reporting and Disclosure Act of 1959, Section 101(a) (3) (B), 29 U.S.C. § 411(a) (3) (B). Judge Levet sustained this contention and held the action of the Convention in passing the increase of dues resolution void, on the ground that the Act required that each delegate cast only one vote, whereas the roll call method pursued at the Convention allowed the votes of the delegates to be weighted in such manner as to count as votes by the number of members in the locals represented by the delegates, and not by counting the vote of each delegate as a single vote. His opinion, Wittstein v. American Federation of Musicians, S.D. N.Y., 1963, is reported at 223 F.Supp. 27. Numerous other miscellaneous points are raised, especially in the brief of appellees, but, as we agree with Judge Levet on the principal question of law involved, we do not find it necessary to discuss the other points.

The two cases were disposed of by summary judgments for plaintiffs. In Wittstein, et al. v. American Federation of Musicians of the United States and Canada the judgment is final. In Schwartz, et al. v. Associated Musicians of Greater New York, Local 802, American Federation of Musicians of the United States and Canada, only the first count of the complaint was dismissed, as other questions than those discussed in this opinion were raised, but Judge Levet made the customary finding and order prescribed by Rule 54(b) of the Federal Rules of Procedure. Thus appeals by the Federation and by Local 802 are properly before us.

The controlling language of the 1959 Act, Section 101(a) (3) (B), 29 U.S.C. § 411(a) (3) (B), applicable specifically to "Dues, Initiation Fees, and Assessments" provides that rates of dues and initiation fees payable by union members shall not be increased except

"(B) in the case of a labor organization, other than a local labor organization or a federation of national or international labor organizations (i) by majority vote of the delegates voting at a regular convention, or at a special convention of such labor organization held upon not less than thirty days\' written notice to the principal office of each local or constituent labor organization entitled to such notice, or (ii) by majority vote of the members in good standing of such labor organization voting in a membership referendum conducted by secret ballot, or (iii) by majority vote of the members of the executive board or similar governing body of such labor organization, pursuant to express authority contained in the constitution and by-laws of such labor organization: Provided, That such action on the part of the executive board or similar governing body shall be effective only until the next regular convention of such labor organization."

These provisions apply to the Federation, which is a labor organization other than a local labor organization or a federation of national or international labor organizations within the meaning of the Act, and the Federation is conceded to be a labor organization in an industry affecting commerce as defined in Section 3(i) of the Act, 29 U.S.C. § 402(i).

Article 5 of the Federation's Constitution contains the basic rules governing "Representation and Delegates," as follows:

"All Locals of this Federation of one hundred and fifty members or less shall be entitled to one delegate. All Locals shall be entitled to one delegate for each one hundred members or a major fraction thereof, not exceeding three delegates for any one Local, but each Local shall be entitled to one vote for each one hundred or major fraction thereof, but no Local shall cast more than ten votes, and the number each Local is entitled to shall be computed from the last report made on January 1st before the convention by the Local, according to the books of the Treasurer. On questions affecting a change in the laws, each Local may, upon roll call, cast as many votes as it has members, as per book of the Treasurer, A. F. of M. All laws so passed shall be referred to a convention committee consisting of the Executive Board, A. F. of M., and chairmen of all committees, who may sanction or veto same, their action to be final. Roll call shall be demandable and had under this Article on demand of ten delegates or five Locals."

And the By-laws, in Article 28, relating to Convention Proceedings and the order of business at such conventions, prescribe

"Section 2. For Rules of Order, Robert\'s Revised Manual shall be the guide unless otherwise provided, and the manner of voting shall be viva voce, unless otherwise ordered. The vote at elections or the vote on roll call shall be in accordance with Article V of the Constitution."

The procedure at the June, 1963 Convention followed this pattern to the letter. We find nothing to support appellees' protestations to the contrary. Two voice votes of the delegates were inconclusive, there was a demand by five locals or more for a roll call. At the roll call the votes of the delegates were weighted in such fashion as to record in favor of or against the resolution not the number of delegates but the number of members of the local represented by the delegates. Thus Local 802, represented by two delegates,¹ cast 28,438 votes against the resolution.²

As we read the Constitution and the By-laws, the decisive vote was required to be by roll call, on proper demand, and such a demand must be complied with, irrespective of the result of any prior voice or standing vote. Thus, even if the voice vote had been clearly one way or the other, and even if a standing vote thereafter taken had been equally plain for all to see, the roll call, on proper demand, would decide the issue. Otherwise the provisions of the Constitution and By-laws make no sense. Indeed, we have no reason to doubt that a proper demand for a roll call would have to be acceded to, even if made prior to the taking of any voice or standing vote.

Moreover, as appellants claim to be the case, the weighted voting is to all appearances the most "democratic" method, in the sense that each member is duly "represented," and it is a method of voting widely recognized as fair and proper by a number of unions. Not only are similar provisions to be found, with some variations of detail, in many representative union constitutions or bylaws, but it may fairly be said that the passage of the Labor-Management Reporting and Disclosure Act of 1959 was not brought about by any abuses found to have flourished under the aegis of the weighted voting system.

We think what we have just said clears the air. We may now leave aside confusing irrelevances and digressions and address ourselves to the simple, central issue: in the context of Section 101(a) (3) (B), 29 U.S.C. § 411(a) (3) (B), do the words "by majority vote of the delegates voting at a regular convention" mean one vote for each delegate?

As we are unable to perceive any other meaning attributable to the phrase, we hold: that each delegate at the 1963 Convention was entitled to one vote, no more, no less; that the resolution as passed was void, as violative of the plain requirements of the Act; and that the judgments appealed from must be affirmed.

The Act thus construed does not "virtually disenfranchise thousands of appellants' members" as the statute provides an alternative method of increasing dues by referendum, in which case the issue would be determined "by majority vote of the members," rather than "by majority vote of the delegates." Voting by stockholders of corporations is not, we think, an analogous situation. The same is true of methods prescribed by the federal or state constitutions or by legislation for the nomination or election of various public officials. Nor is it of significance that Title IV of the Act apparently permits the election of officers of unions by a weighted vote. The considerations the Congress may well have...