Cleveland Orchestra Com. v. Cleveland Fed. of Musicians, 14613.

• Decision Date: 30 April 1962
• Docket Number: No. 14613.,14613.
• Parties: CLEVELAND ORCHESTRA COMMITTEE et al., Plaintiffs-Appellants, v. CLEVELAND FEDERATION OF MUSICIANS, LOCAL NO. 4, AMERICAN FEDERATION OF MUSICIANS, AFL-CIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

303 F.2d 229 (1962)

CLEVELAND ORCHESTRA COMMITTEE et al., Plaintiffs-Appellants, v. CLEVELAND FEDERATION OF MUSICIANS, LOCAL NO. 4, AMERICAN FEDERATION OF MUSICIANS, AFL-CIO, Defendant-Appellee.

No. 14613.

United States Court of Appeals Sixth Circuit.

April 30, 1962.

Joseph E. Finley, Cleveland, Ohio, (Charles R. Miller, Cleveland, Ohio, on the brief), for appellants.

Mortimer Riemer, Cleveland, Ohio, for appellee.

Before MILLER, Chief Judge, and McALLISTER and O'SULLIVAN, Circuit Judges.

McALLISTER, Circuit Judge.

Appellants are, and represent, musicians employed in the Cleveland Symphony Orchestra, by the Musical Arts Association. They are also members of the musicians' union, Cleveland Local No. 4 of the American Federation of Musicians, AFL-CIO.

Appellants sought to prevent the union from entering into another long-term collective bargaining agreement with the Musical Arts Association, claiming that they had the right to ratify or reject such bargaining contract, and that the denial of such right by the union constituted discrimination against them and denial of equal rights as union members. Appellants also alleged that the union and its officers were interfering with their right to bring legal action, through harassment, coercion, and illegal disciplinary action. Their petition was filed under Title 29 U.S.C.A. § 411.¹

Appellee union's answer set forth that appellants had failed to exhaust their internal hearing procedures within the union prior to the bringing of their action; that the district court had no jurisdiction; and that appellants failed to state a claim against appellee upon which relief could be granted.

Upon appellee's motion for summary judgment, the district court held that appellants were not discriminated against by the union, and were not denied their equal rights by not being permitted the right of ratification or rejection of collective bargaining agreements executed by the union on their behalf. The court, accordingly, entered a summary judgment in favor of the union.

The single issue presented is whether the union members who are in the Cleveland Symphony Orchestra are denied rights under Title 29 U.S.C.A., § 411, because they are not given the right to ratify or reject collective bargaining agreements executed by the union on their behalf.

The pertinent facts, which are not in dispute, are as follows: Since 1918, the union has been the recognized collective bargaining agent for the symphony musicians, whose terms and conditions of employment are set forth in a comprehensive collective bargaining agreement heretofore executed between the union and the Musical Arts Association. The union's International Constitution defines a symphony orchestra, and establishes the union as the bargaining agent of the members of the symphony orchestra. The union's by-laws set forth the procedure whereby all union members may vote at a regular or special meeting to repeal or amend any part of its constitution, by-laws, or wage scale. The wage scale is a determination by the union members of wages to be paid to musicians for hire by hour and engagement. When one becomes a union member, he agrees to be governed by the union constitution, by-laws, and rules, not inconsistent with rights and procedures established by the Act; and the constitution and by-laws of the union express the terms of the contract which define the privileges secured and the duties assumed by those who become members. Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833.

Section 411 of the Act accords each member of a labor organization equal rights and privileges with such organization to nominate candidates, vote in elections or referendums, attend membership meetings, participate in the deliberations, and vote upon the business of such meetings, subject to reasonable rules and regulations in the organization's constitution and by-laws. In accepting membership, the members subject themselves to the provisions of the constitution and by-laws; and recognition of this subjection is expressly disclosed in the above section of the statute. Rizzo v. Ammond, 182 F.Supp. 456, 470 (D.C.N.J.). By becoming a member of a union, the worker, in effect, makes a contract that he is to be governed by the constitution and by-laws of the organization. Smith v. General Truck Drivers, 181 F. Supp. 14, 17 (D.C.Calif.).

Certain of the background of the present controversy is illuminating. In 1954, appellants sought adoption, by the union, of a resolution to amend the by-laws, which would require the submission of collective bargaining contracts to a vote of the members of the local, before their execution with the Musical Arts Association. This resolution was defeated, and, thereafter, in 1959, during the existence of the last prior contract between the union and the Musical Arts Association, appellants again presented demands which would require the union to obtain the approval of the Orchestra before entering into bargaining agreements or signing any contracts with the association. In reply to such demands, the executive board of the union stated that it would consult with appellants during the negotiations for a collective bargaining agreement, and would adopt appellants' suggestions and recommendations, which in the judgment of the officers of the union would serve the best interests of all of the members of the union. The union executive committee, however, refused to accept, as a prior condition, approval by the symphony musicians of such bargaining contract on the ground that it would be inconsistent with the authority of the union as it authorized collective bargaining of the symphony musicians. Subsequently, in December 1960, appellants were notified that the officers of the union "may extend the privilege of ratification of new contracts by secret ballot to members of the Cleveland Symphony Orchestra, provided, however, that there exists a complete mutual understanding and agreement," that the privilege of ratification was within the discretion of the union; and appellants were informed that such privilege, extended to the members of the orchestra, was not to be considered a precedent or waiver of the union's authority as the sole collective bargaining agent for the members of the musicians' union. Appellants, however, rejected this proposal.

The reason why appellants claim that they have been discriminated against and denied their equal rights as members under the statute is because of different treatment accorded them as members of the symphony orchestra, as compared with other musicians in the union.

This different treatment arises out of the fact that most of the members of the musicians' union work under, and are bound only by the wage scale agreed upon by the union members themselves. This wage scale is not a part of a collective bargaining agreement, but represents the determination of the members of the union that they will not work for less than the wages fixed in such scale, if anyone seeks their services for the categories of engagements specified therein. The "Wage Scale and Directory" are set forth in a booklet, which shows extensive schedules of rates of pay, by the hour and engagement, for almost every type of employment for musicians, such as hotels, night clubs, ballrooms, circuses, concerts, grand opera, funerals, ice shows, parades, symphony concerts, and numerous other designations.

Among these diverse employers are found few collective bargaining agreements, inasmuch as in such cases the musicians work merely according to the wage...