Bacino v. American Fed. of Mus. of US & Canada
| Decision Date | 05 January 1976 |
| Docket Number | No. 75C0011WD.,75C0011WD. |
| Citation | 407 F. Supp. 548 |
| Parties | Ted BACINO, Plaintiff, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Francis E. Hickey, Rockford, Ill., for plaintiff.
Marvin Gittler, Chicago, Ill., for defendants.
The plaintiff, Ted Bacino, is a musical director. He filed the present action to recover damages resulting from conduct which is alleged to be an unfair labor practice. Morry Hill and the American Federation of Musicians (A.F.M. or International) have moved to dismiss the complaint against them for various jurisdictional reasons.
In his one count complaint, the plaintiff alleges that he is a resident of Rockford, Illinois, engaged in the occupation of directing musical stage productions or shows. Most recently he was under contract with Charles W. Hoenes, producer of Henrici's Summer Theatre in Rockford. For the past several years the plaintiff has also been the director of the Starlight Summer Theatre musical productions sponsored by Rock Valley College, a community college located in Winnebago County.
In September or October 1974, the plaintiff alleges that the defendants "maliciously, falsely, unreasonably and without just cause, placed Rock Valley College, Dr. Karl Jacobs, President of Rock Valley College, and plaintiff" on the National Unfair List of the A.F.M. because the college and the plaintiff refused to employ union musicians in the summer theatre productions. (Complaint ¶ XII.)
Beginning on or about February 1, 1975, the plaintiff alleges that the defendants, A.F.M., Rockford Musical Association Local 240 (RMA), and Morry Hill, through their agents, began a campaign of threats and harassment designed to threaten, coerce, or restrain Hoenes and Henrici's from doing business with the plaintiff.1 More specifically, he alleges that on February 10, 1975, the defendants threatened to close the musical production being directed by the plaintiff at Henrici's unless Rock Valley College executed a collective bargaining agreement with the defendant unions, thereby allowing union musicians to play at the summer theatre. The threat was to be executed by having union musicians who worked for Henrici's refuse to play at any further performances until the college and the unions signed an agreement. At some point, the union apparently relaxed its position, telling Hoenes and Thomas Allen, Henrici's manager, that the production would be stopped beginning on February 21, 1975, unless either (a) Rock Valley executed a collective bargaining agreement, or (b) the plaintiff's services were terminated. On February 20, 1975 Hoenes terminated the plaintiff's employment.
The plaintiff contends that as a direct result of the defendants' threats and coercion, his services were terminated, and he suffered damages in the amount of $300,000.
Following the plaintiff's termination, he filed Unfair Labor Practice Charges with the National Labor Relations Board (N.L.R.B.) and instituted this lawsuit.2 The charges before the N.L.R.B. are still pending.
The statutory basis of the plaintiff's complaint is that the defendants' conduct was an unfair labor practice as defined by Section 8(b)(4) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (1970).
Jurisdiction over the complaint is conferred by Section 303 of the Labor Management Relations Act, 29 U.S.C. § 187 (1970).
The parties agree that Morry Hill is the Secretary-Treasurer of the RMA. The only question presented by the motion is whether the complaint states a cause of action under Section 303.3
The defendant argues that Section 303 prohibits a labor organization from engaging in any conduct or activity that is defined as an unfair labor practice, and therefore, no cause of action can be stated against an individual union member. This conclusion is supported by virtually all the authorities. See, e. g., Universal Communications Corp. v. Burns, 449 F.2d 691, 693 (5th Cir. 1971); Meier S. Pohlman Furniture Co. v. Gibbons, 233 F.2d 296, 306 (8th Cir.), cert. denied, 352 U.S. 879, 77 S.Ct. 101, 1 L.Ed.2d 80 (1956); Garrison v. International Union of Operating Engineers, 283 F.Supp. 771, 773 (S.D.N.Y.1968).4
The plaintiff argues that the motion should be denied because the proofs may show that the defendant was acting in his individual capacity and not as an agent of the union. In support of this position, he relies on DuQuoin Packing Co. v. Amalgamated Meat Cutters, 321 F.Supp. 1230 (E.D.Ill.), which held that individual members of a union could be held liable under Section 301 for breach of a no-strike clause if the evidence established that they had acted solely on their own behalf, and not at the request of their union.5
There are two answers to the plaintiff's argument. First, DuQuoin has, by implication, been overruled by Sinclair Oil Corp. v. Oil, Chemical, & Atomic Workers, 452 F.2d 49 (7th Cir. 1971), which reached the opposite conclusion. And second, the lawsuit arises not under Section 301, but under Section 303, which only makes unfair labor practices by labor organizations unlawful. An individual, unauthorized act, is not prohibited by Section 303.
Therefore, the conclusion reached is that the complaint does not state a cause of action against Morry Hill. An order will enter dismissing the action as to him.
The American Federation of Musicians has moved to dismiss the plaintiff's complaint against A.F.M. for insufficiency of process or, alternatively, for improper venue. Fed.R.Civ.P. 12(b)(3), (5). The plaintiff opposes the motions, arguing that the court has in personam jurisdiction and that venue is proper in this district and division.
The factual background of the jurisdictional dispute is not complex. The A.F.M. is a voluntary unincorporated labor association which is headquartered in New York City. It maintains no office or place of business in Illinois, and the Illinois Secretary of State is not authorized to accept service of process. The RMA is one of its chartered locals. Each defendant was served with a summons and a copy of the complaint by the United States Marshals Service. The returns show that the International was served at its New York City headquarters, while service on the Local was made on Morry Hill, the Local's Secretary-Treasurer.6
Based on these facts, the defendant argues alternatively that in personam jurisdiction is lacking or that venue in this district is improper. Labor Management Relations Act, § 301(c), 29 U.S.C. § 185(c)(1970). The gravamen of the arguments, however, is that the Local is an autonomous entity, and therefore, service on it did not constitute service on the International. For his part, the plaintiff argues that the Local is an agent of the International and service on the former is adequate to confer in personam jurisdiction over the latter. Neither party places any reliance on the New York service, and, therefore, the court will give it no further consideration.7
Before turning to the specific issue of agency, a review of the applicable statutes and rules regulating service of process in disputes of this nature is necessary. Section 303(b) provides that an individual who is injured in his business or property by an unfair labor practice may institute a damage suit in the district courts subject to the limitations of Section 301. Section 301(d) provides:
The service of summons . . . of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization.
This section must, however, be read in conjunction with service of process provisions of the Federal Rules of Civil Procedure. Rule 4 provides:
Thus, when Section 301(d) is read in conjunction with Rule 4, it is clear that service of process in a Section 303 action may be made on the agent of a labor...
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