Carroll v. Associated Musicians of Greater New York, 112-115

• Decision Date: 30 April 1963
• Docket Number: Dockets 27769-27772.,No. 112-115,112-115
• Citation: 316 F.2d 574
• Parties: Joseph CARROLL, Charles Peterson and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiffs-Appellants, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK and Al Manuti, as President, Max L. Arons, as Secretary, and Hi Jaffe, as Treasurer of Local 802, Associated Musicians of Greater New York, Defendants-Appellees. Joseph CARROLL, Charles Peterson and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiff-Appellants, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Herman D. Kenin, as President of said Federation, Stanley Ballard, as Secretary of said Federation, and George V. Clancy, as Treasurer of said Federation, Associated Musicians of Greater New York, Local 802, and Al Manuti, as President of Local 802, Max L. Arons, as Secretary of Local 802, and Hi Jaffe, as Treasurer of Local 802, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

316 F.2d 574 (1963)

Joseph CARROLL, Charles Peterson and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiffs-Appellants, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK and Al Manuti, as President, Max L. Arons, as Secretary, and Hi Jaffe, as Treasurer of Local 802, Associated Musicians of Greater New York, Defendants-Appellees.

Joseph CARROLL, Charles Peterson and Charles Turecamo, as Treasurer, Orchestra Leaders of Greater New York, Plaintiff-Appellants, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Herman D. Kenin, as President of said Federation, Stanley Ballard, as Secretary of said Federation, and George V. Clancy, as Treasurer of said Federation, Associated Musicians of Greater New York, Local 802, and Al Manuti, as President of Local 802, Max L. Arons, as Secretary of Local 802, and Hi Jaffe, as Treasurer of Local 802, Defendants-Appellees.

Nos. 112-115, Dockets 27769-27772.

United States Court of Appeals Second Circuit.

Argued October 3, 1962 and March 19, 1963.

Decided April 30, 1963.

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

Emanuel Dannett, New York City (McGoldrick, Dannett, Horowitz & Golub, Herbert D. Schwartzman, Eugene Mittleman, and Jerome H. Adler, New York City, Henry Kaiser and George Kaufmann, Washington, D. C., on the brief), for defendants-appellees American Federation of Musicians of United States and Canada, Herman D. Kenin, as President of said Federation, Stanley Ballard, as Secretary of said Federation, and George V. Clancy, as Treasurer of said Federation.

David I. Ashe, Ashe & Rifkin, New York City for defendants-appellees Associated Musicians of Greater New York Local 802, and Al Manuti, as President of Local 802, Max L. Arons, as Secretary of Local 802, and Hi Jaffe, as Treasurer of Local 802.

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

LUMBARD, Chief Judge.

Joseph Carroll and Charles Peterson, orchestra leaders, appeal from a judgment of the District Court for the Southern District of New York dismissing their complaints in two actions which sought to enjoin the defendant musicians unions from collecting certain taxes, surcharges and welfare plan payments.¹ The complaints assertedly were class actions. Judge Levet held that no class existed, or if it did, there was insufficient proof either that the members were so numerous that they could not be brought before the court or that the plaintiffs adequately represented any such class. He also held that Carroll and Peterson had no standing to challenge the union exactions because they are no longer members of the union and the exactions are required only of members. We affirm.

The 1½ percent tax and the 10 percent traveling surcharge are described in Cutler v. American Fed. of Musicians, 316 F.2d 546 (2 Cir., 1963), decided this day. Welfare plan payments are made to the Local pursuant to its standing resolution which requires the leaders to collect from the purchaser of the performance one dollar per performer for each engagement and remit it to the Local.

After the commencement of this action, Carroll and Peterson were expelled from the union. Since they are not members of the union, they are not required by the union to make any of the payments which they challenge in this action.

We agree with Judge Levet's conclusion that they have no standing to seek injunctive relief against the collection of payments not demanded of them. The reason for their expulsion does not appear in the record. Nowhere is it contended that Carroll and Peterson were expelled for a violation of the union regulations which they were challenging nor do they seek reinstatement. If these two leaders were expelled from the union because they brought this action, or were denied reinstatement on the ground that they contested the exactions, the district court...