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

• Decision Date: 17 June 1964
• Citation: 231 F. Supp. 845
• Parties: Ben CUTLER, Dan Terry, Ralph Flanagan, Marty Levitt, Vic Ash, Claude Garreau (d/b/a Allen Meritt), and Angie Bond, et al., Plaintiffs, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA and Associated Musicians of Greater New York, Local 802, Defendants.
• Court: U.S. District Court — Southern District of New York

231 F. Supp. 845

Ben CUTLER, Dan Terry, Ralph Flanagan, Marty Levitt, Vic Ash, Claude Garreau (d/b/a Allen Meritt), and Angie Bond, et al., Plaintiffs, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA and Associated Musicians of Greater New York, Local 802, Defendants.

United States District Court S. D. New York.

June 17, 1964.

Godfrey P. Schmidt, New York City, Anthony J. Shovelski, Andrew P. O'Rourke, New York City, of counsel, for plaintiffs.

McGoldrick, Dannett, Horowitz & Golub, New York City, Emanuel Dannett, Herbert D. Schwartzman, Eugene Mittelman, New York City, of counsel, for defendant American Federation of Musicians of United States and Canada.

Ashe & Rifkin, New York City, David I. Ashe, New York City, of counsel, for defendant Associated Musicians of Greater New York, Local 802.

LEVET, District Judge.

Plaintiffs presently seek to establish "defendants' liability for the legal fees of, * * * Godfrey P. Schmidt," their attorney. The disposition of the present motion can be adequately understood only with a knowledge of the entire course of litigation between these plaintiffs and defendants.

The plaintiff Ben Cutler together with many of his co-plaintiffs in this and a variety of actions are members of the defendant unions and orchestra leaders in both the single and steady engagement fields.¹ Alleging themselves to be the employers of the union-member-musicians in their orchestra, they seek to operate free and clear of certain union regulations.

The present case is itself a sequel to Carroll v. American Fed. of Musicians, 206 F.Supp. 462 (S.D.N.Y.1962), aff'd 316 F.2d 574 (2d Cir. 1963) hereinafter Carroll 302 action, in which orchestra leaders, similarly circumstanced to the plaintiffs in this action, sought to enjoin the parent Federation and its Local 802 from demanding from the plaintiffs the Federation's 10% traveling surcharge, Local 802 1½% tax and contributions to Local 802's Single Engagement Welfare Fund, which the Carroll plaintiffs contended were violative of Section 302 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 186. Although ultimately holding that the Carroll plaintiffs lacked standing to challenge the taxes, I found the method of collecting these taxes, surcharges and contributions violative of Section 302.

Basically, the Federation's 10% traveling surcharge required Federation members who performed "miscellaneous out-of-town engagements" to be paid but not to actually receive an amount equal to 10% of the minimum wage established by the Local in whose jurisdiction the engagement takes place. The Federation By-Laws required either the Local or the orchestra leader to collect the 10% and transmit it to the Federation. The Federation retained 4/10ths of the traveling surcharge, an equal amount was returned to the Local in whose jurisdiction the engagement was played and the remaining 2/10ths was returned to the orchestra leader.

The present action followed shortly after the dismissal of the Carroll 302 action and was originally brought by Cutler and six other named plaintiffs in their own behalf and as representatives of a class of all orchestra-leader-employers. After the granting of a preliminary injunction, the parties stipulated that, based upon the trial record of the Carroll 302 action and other material documents, "this court shall make findings of fact and conclusions of law and shall direct the entry of appropriate judgment but solely with respect to (a) the cause of action asserted by the plaintiff Ben Cutler, and (b) the class action alleged in the complaint herein." The resulting final judgment enjoined the defendants from collecting the challenged taxes from the plaintiff Cutler in the single engagement field and dismissed the class action alleged in the complaint. The judgments on both the preliminary and permanent injunctions were affirmed by the Court of Appeals, 316 F.2d 546 (2d Cir.), and certiorari denied, 375 U.S. 941, 84 S.Ct. 346, 11 L.Ed.2d 272 (1963). Successive applications for intervention, made both during and after the appellate proceedings, have burgeoned the ranks of the plaintiffs to their present number of over 100.

In the light of the Cutler decisions, the Federation decided at its annual convention in June, 1963 to revise its fiscal policies by abolishing the 10% traveling surcharge and substituting therefor an increase in the per capita dues of its approximate 282,000 members. A group of union members, including the plaintiff Cutler, successfully enjoined that portion of the convention's Resolution No. 11 which increased the per capita dues as violative of Section 101(a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. § 411. Wittstein v. American Fed. of Musicians, 223 F.Supp. 27 (S.D.N.Y.), aff'd 326 F. 2d 26 (2d Cir. 1963), cert. granted 376 U.S. 942, 84 S.Ct. 798, 11 L.Ed. 766 (1964). As part of Resolution No. 11, but unaffected by the Wittstein decision, was a provision which established "minimum wages for traveling engagements at 10% in excess of applicable local scale." Subsequently, the plaintiffs in this action and Wittstein sought unsuccessfully to enjoin this provision. Cutler v. American Fed. of Musicians, 34 F.R.D. 253 (S.D.N.Y.1964).

Simultaneous with the foregoing, the plaintiff Cutler, together with two of his co-plaintiffs in this case, successfully intervened in two companion actions brought by the original Carroll 302 plaintiffs challenging certain union regulations as violative of the anti-trust laws. Carroll v. American Fed. of Musicians, 33 F.R.D. 353 (S.D.N.Y.1963). The proposed intervenor's complaint sought a permanent injunction:

"(b) requiring defendants to terminate union memberships of all members who are orchestra-leader, employers."

The plaintiffs' attorney in all these cases has been Godfrey P. Schmidt, Esq.

The plaintiff Cutler is also President of the National Association of Orchestra Leaders (NAOL). The other officers are Eddie Wittstein, Vice-President, Joe Carroll, Secretary, and Charles Peterson, Treasurer, all of whom have been plaintiffs in one or more of these actions. Among NAOL's Board of Directors are Di Rienzo, Greco, Levitt and Kenton, all of whom have also been plaintiffs in one or more of these actions. NAOL itself is apparently a nationalized successor to Orchestra Leaders of Greater New York (OLGNY), a group which was a plaintiff in the Carroll 302 action and as to which I found, 206 F.Supp. at 464-465:

"2. Although plaintiff Orchestra Leaders of Greater New York (`OLGNY') is alleged to be an informal unincorporated association comprising at least 50 members of a class allegedly represented by plaintiffs Carroll and Peterson, I find that there is a lack of evidence establishing that OLGNY is an association representing orchestra leaders, that it is presently in existence, that it has any members other than Carroll and Peterson, that it has in any way been damaged or aggrieved by any conduct of defendant unions or that it has any interest in these actions."

While apparently limited in membership, OLGNY filed several unfair labor practice charges against the Federation charging, among other things, that the defendants "force or require employers or self-employed persons, to wit, members of Orchestra Leaders of Greater New York to join a labor organization, to wit, Associated Musicians of Greater New York, Local 802, and American Federation of Musicians of the United States and Canada," (Ballard Aff. Ex. 5) and against Local 802 asserting that it "imposes minimums for all engagements in the single engagement field." (id. Ex. 19)

NAOL has recently also filed unfair labor practices charges against the defendants alleging the unilateral imposition of wage scales without collective bargaining. (Ballard Aff. Ex. 12) Ben Cutler, as President of NAOL, has written several letters to the Federation seeking the refund of previously collected surcharges and offering to collectively bargain with the union. (id. Exs. 14, 23) NAOL has also written, over the signature of Charles Peterson, several letters to other orchestra leaders and Locals of the Federation charging that certain taxes and their methods of collection are illegal. (id. Exs. 25, 26, 27, 29)

Recently, two other actions were begun, in both of which Cutler is a plaintiff. The first, Bond v. Harris, D.C., 228 F.Supp. 265, challenges certain contracts negotiated by Local 802 and the Hotel Association of New York City governing musical services to be performed in hotels. See 228 F.Supp. 265 (S.D.N.Y. 1964) In the other action, Kenton v. American Fed. of Musicians, 64 Civ. 1273, orchestra leaders seek the refund of monies previously collected by the Federation as traveling surcharges. In both actions Godfrey P. Schmidt represents the plaintiffs.

The plaintiffs have limited their present application to counsel's work in the preparation and trial of the Carroll 302 actions, the obtaining of a final injunction with respect to the plaintiff Cutler in this action and the completion of the Wittstein case. (Schmidt, Jan. 8 Aff., pp. 6-7) It is stated that no claim beyond the present application will be made by plaintiffs or their counsel for any fees for legal work made necessary in completing the trial of this action.

I.

One begins with the rather well-settled rule recently reiterated by the Court of Appeals of this circuit, Fleisher v. Paramount Pictures Corp., 329 F.2d 424, 426 (2d Cir. 1964):

"* * * American courts have traditionally refused to include counsel fees in a losing party's bill of costs, except in the most extraordinary of instances, and have virtually never awarded such fees in an action at law. Every litigant, regardless of the seeming frivolity of his claims, is entitled to have them determined on their merits, and not to be `taxed out of court.'"

This rather rigid rule has been somewhat relaxed by the "historic equity jurisdiction of the...