American Federation of Musicians v. Stein

• Decision Date: 16 June 1954
• Docket Number: No. 12051.,12051.
• Citation: 213 F.2d 679
• Parties: AMERICAN FEDERATION OF MUSICIANS et al. v. STEIN.
• Court: U.S. Court of Appeals — Sixth Circuit

213 F.2d 679 (1954)

AMERICAN FEDERATION OF MUSICIANS et al. v. STEIN.

No. 12051.

United States Court of Appeals Sixth Circuit.

June 16, 1954.

Emanuel L. Gordon, New York City, Jordan Stokes, III, Nashville, Tenn., of counsel, for appellants.

Harry Lester, Nashville, Tenn., for appellee.

Before ALLEN and McALLISTER, Circuit Judges, and STARR, District Judge.

McALLISTER, Circuit Judge.

This is an appeal from an order granting a preliminary injunction issued to prevent impending irreparable injury. Appellants contend that the district court was without jurisdiction to issue the preliminary injunction inasmuch as there was no diversity of citizenship; that the issuance of the temporary injunction was in violation of the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., since the relief was granted in a controversy that involved a labor dispute; and that the district court had no power to enjoin a labor union from placing the name of appellee, as an employer, on its unfair list, to publicize the existence of a labor dispute in violation of the First Amendment to the Constitution.

Appellee is a citizen of Tennessee and is engaged in the business of booking entertainment for public shows and exhibitions. In 1951, he entered into a contract with a band leader to play two performances in Memphis, Tennessee. The band failed to appear as scheduled, and thereafter, appellee was advised by the American Federation of Musicians, of which the band leader was a member, to submit his claim to the arbitration board of that union. Appellee did so, but claims that the matter was so long delayed without any action being taken, that when the same band leader came again to Tennessee, appellee sued him and, as a result, the band leader settled appellee's claim of damages by a money payment. Thereafter, the American Federation of Musicians placed appellee's name on its unfair list, and circulated this list in its official journal throughout the United States and Canada, in many issues of the magazine. It appears that for a time thereafter, appellee was not following his booking business, but that when he had an opportunity to reenter it, he found he was boycotted by musicians, as a result of the "unfair" listing. He, therefore, filed a complaint on July 30, 1953, in the District Court for the Middle District of Tennessee, claiming damages and asking for the issuance of an injunction to prevent the American Federation of Musicians from circulating his name in its unfair list. Among the allegations in his complaint, appellee set forth that his name was placed on the unfair list merely because he had sued the band leader and thus enforced his claim for damages; that the placing of appellee's name on the unfair list constituted an automatic boycott of appellee by each and every member of the union; that, as a result, appellee had been totally and illegally prevented from pursuing his profession and denied the right to earn his livelihood in his accustomed and rightful manner; and that the listing of his name on the unfair list was libelous per se, and done with intent to injure and defame appellee and damage him in his business.

The parties named defendant in this suit, after amendments not here relevant, were the American Federation of Musicians, a voluntary organization with its principal offices in New York City; James C. Petrillo, as its President; and George Cooper, as the representative of the American Federation of Musicians, Local Union No. 257, with offices in Nashville, Tennessee. No question of service is raised on this appeal. A motion for injunction was filed by appellee, which was noticed for hearing for August 5, 1953, at Nashville, Tennessee; and on that day, the motion came on for hearing before the Honorable Elmer D. Davies, and was adjourned to August 7. Counsel appeared generally for defendant George Cooper, and for Local No. 257 of Nashville, and entered a special appearance for the American Federation of Musicians, a voluntary, unincorporated association, for the purpose of resisting the issuance of a temporary injunction, on jurisdictional grounds.

On the hearing, an affidavit of Mr. Petrillo, one of the defendants, was filed, setting forth that he had just returned from Europe on August 4, 1953; that he had been advised that a carbon copy of the notice of motion had been received in his office on August 3; that neither he nor anyone in his office had at that time received a copy of the complaint; that neither George Cooper nor Local 257 had ever been designated or authorized to act as an agent or representative of the American Federation of Musicians for any purpose whatever; and that the American Federation of Musicians was a labor organization, an unincorporated association, with executive offices in New York City and Newark, New Jersey, and that it did not do business in the State of Tennessee. An affidavit of Mr. Cooper was also filed; and Mr. Stein, the plaintiff, and Mr. Cooper, one of the defendants, were sworn as witnesses.

The evidence thus introduced pertained to the relationship as between the local union and the American Federation of Musicians, as well as to the relationship between defendant Cooper, the president of the local and the Federation. It also disclosed the nature of the contractual relationship between third persons who contract with members of the American Federation of Musicians; the obligations of such members to the Federation, and the rights of the local unions in such contracts. It also appears from the evidence that the contract entered into between appellee and traveling musical organizations was governed by bylaws, regulations, and resolutions of the American Federation of Musicians; that delegates of the local union participated in forming the rules and regulations under which the American Federation of Musicians operates; that the local union has a jurisdiction for which it is responsible in the State of Tennessee and in part of the State of Kentucky; and that it collects and forwards dues to the American Federation of Musicians.

After the presentation of the foregoing evidence, the district court entered an order setting forth that it appeared that unless a temporary injunction issued, the plaintiff would suffer irreparable damages, "inasmuch as his name will be carried on the `unfair list' published monthly in defendants' official magazine, and which will prevent him from making contracts with musicians for the fall season, which will begin shortly." In deciding to issue the temporary injunction, the district court stated to counsel in open court: "Let the injunction be granted and this will require going into several issues of fact relative to the jurisdiction. The defendant in this case will have the right to rely upon the same defenses raised at this time upon the hearing of the cause." It does not appear that the allegations of the complaint were traversed or that any answers were filed or that any written objections were interposed to the motion for injunctive relief, either by the defendants appearing specially or generally. As far as the record discloses, no arguments were advanced and no legal authorities cited by the defendants. There appear to have been no briefs filed before the district court on matters of fact or of law. The preliminary injunction, in view of the remarks of the district court, could be said to partake of the nature of a temporary stay such as is subject to being vacated on motion at any time upon a showing of fact or law that its continuance is not justified. In fact, it appears that defendants-appellants did file a motion to dissolve the preliminary injunction on August 26, 1953, and noticed it for hearing on September 1, 1953. However, before the district court heard the motion to vacate, appellants filed their notice of appeal to this court.

We are of the opinion that the granting of the preliminary injunction should be sustained. In Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 6 Cir., 53 F. 98, 101, a case heard before Judge Jackson (later Justice Jackson, of the Supreme Court) and Judge Taft (later Chief Justice Taft, of the Supreme Court), the court said: "The object and purpose of a preliminary injunction is to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined upon strictly legal proofs, and according to the course and principles of courts of equity. * * * The legal discretion of the judge or court in acting upon applications for provisional injunctions is largely controlled by the consideration that the injury to the moving party, arising from a refusal of the writ, is certain and great, while the damage to the party complained of, by the issuance of the injunction, is slight or inconsiderable."

In passing upon the issue then before the court, Judge Jackson referred to what was said by Lord Cottenham in Great Western R. Co. v. Birmingham & O. J. Ry. Co., 2 Phil.Ch. 602:

"It is certain that the court will in many cases interfere and preserve property in statu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, any opinion as to such rights. It is true that the court will not so interfere if it thinks that there is no real question between the parties; but, seeing that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. In order to support an injunction for such purpose, it is not necessary for the court to decide upon the merits in favor of the plaintiff";

and in Glascott v. Lang, 3 Mylne & C. 455, it was stated by the same judge that —

"In looking through the pleadings and evidence for the purpose of an injunction, it is not necessary that the court should find a case which would entitle the plaintiffs to relief at all events. It is quite sufficient if the

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