Gurton v. Manuti

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Ashe & Rifkin, New York City, for defendant; David I. Ashe, New York City, of counsel
• Citation: 235 F. Supp. 50
• Decision Date: 08 May 1964
• Parties: Al GURTON and Murray Rothstein, each of them individually and on behalf of all other members of Associated Musicians of Greater New York, Local 802, American Federation of Musicians, similarly situated, Plaintiffs, v. Al MANUTI, as President, or Max L. Arons, as Secretary, or Al Knopf, as Vice President, or Hy Jaffe, as Treasurer of Associated Musicians of Greater New York, Local 802, American Federation of Musicians, Defendant.

235 F. Supp. 50

Al GURTON and Murray Rothstein, each of them individually and on behalf of all other members of Associated Musicians of Greater New York, Local 802, American Federation of Musicians, similarly situated, Plaintiffs,
v.
Al MANUTI, as President, or Max L. Arons, as Secretary, or Al Knopf, as Vice President, or Hy Jaffe, as Treasurer of Associated Musicians of Greater New York, Local 802, American Federation of Musicians, Defendant.

United States District Court S. D. New York.

May 8, 1964.

235 F. Supp. 51

Burton H. Hall, New York City, for plaintiffs.

Ashe & Rifkin, New York City, for defendant; David I. Ashe, New York City, of counsel.

LEVET, District Judge.

Plaintiffs, by order to show cause, seek a preliminary injunction enjoining the defendants, as officers of the Associated Musicians of Greater New York, Local 802, from "refusing to entertain the motions duly submitted by the two plaintiffs herein relative to the May 1964 by-law meeting * * *."

Plaintiffs bring this action in their own behalf as members of Local 802, Associated Musicians of Greater New York, and for the entire membership of the Local, "especially on behalf of those members of Local 802 employed either full or part time in the music profession as employees or `sidemen.'"¹ The action itself continues a controversy, other features of which have been the subject of two prior actions in this court, Rothstein v. Manuti, 235 F.Supp. 39 (S.D. N.Y.1963) and Rothstein v. Manuti, 235 F.Supp. 48, Opinion No. 29,855, April 13, 1964 and an action in the New York Supreme Court, New York County, Rothstein v. Manuti, 49 CCH Lab.Cas. ¶ 51,024 (1964). Briefly, the plaintiffs, as members of Local 802, are a faction of the Union at loggerheads with the defendants, the incumbent administration of the Local. The dispute apparently centers about the proper position in the Union of full-time or part-time professional musicians, such as the plaintiffs, vis-a-vis the non-active musicians who make up the greater majority of the membership. The background of this controversy may be gleaned from the opinions previously rendered.

The present complaint alleges violations by the defendants of Sections 101 (a) (1) and 101(a) (2) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. § 411 (hereinafter LMRDA). Jurisdiction is premised on 29 U.S.C. § 412. The conduct alleged violative of LMRDA consists in the main of the Executive Board of Local 802 refusing to accept for publication and consideration at the May By-Law meeting of the Local presently scheduled for May 18, 1964 two proposed By-Law amendments submitted by the plaintiffs Gurton and Rothstein.

There is no substantial dispute as to the facts. Article VIII, Section 1 of Local 802's By-Laws requires that all proposed By-Law amendments and changes which are to be considered at the May By-Law meeting must be submitted to the Secretary of the Local on or before March 1 and that the proposed resolutions so submitted be printed in the official journal of the defendant at least thirty days prior to the meeting.

235 F. Supp. 52

Article VIII, Section 3 requires the Executive Board to publish its report on the amendments prior to the meeting

Prior to March 1, 1964, both the plaintiffs Gurton and Rothstein submitted proposed amendments to the By-Laws. In view of their importance on this motion, they are set forth in full. The Gurton proposal reads:

"Whereas;

"The Referendum of Feb. 15, 1964 provides for the conduct of the election of Local 802 officers, board members, and delegates by mail ballot,

and whereas;

"the said Referendum Resolution does not provide adequate safeguards for establishing the eligibility and identity of those voting in a mail election,

and whereas;

"the said Referendum Resolution in fact repeals an important safeguard previously provide sic by Art. VI, Sec. 8 requiring every member who desired to vote to furnish documentary proof of his identity by means of a `certificate, registration card, or licence issued by a Municipal, State, or Federal governmental body, agency, department, or board', in addition to his Union card,

and whereas;

"the said Referendum Resolution fails to provide adequate machinery for ascertaining whether or not the members voting in a mail election are in good standing in Local 802 and in all other locals of the AFM to which they may belong, as provided by the Federation By-laws;

Therefore be it resolved;

"that a new section be added to Art. VI as amended to read as follows;

"Sec. 12 No member shall be eligible to receive a ballot or to vote in a mail election of officers, board members, and delegates unless he shall have issued to him by the Secretary of the Local a Certificate of Eligibility to Vote, identifying him by name, address, and card number as an eligible voter. Such Certificate of Eligibility shall be obtainable by applying in person to the Secretary of the Local at any time between Sept. 1st through Sept. 30th of the election year during regular business hours of the Local. Such Certificate of Eligibility shall be issued only to each member who properly identifies himself, shows that he is in good standing in all locals of the AFM to which he belongs, and signs a register which shall also clearly set forth his card number and correct address; and

Be it further resolved;

"that immediately after the close of the registration period the Secretary shall make the register available for inspection to all candidates who request such inspection. The Secretary shall further prepare printed copies of the list of all registered voters and their correct addresses and shall provide a copy of such list to each candidate for office on or before October 15th of the election year; and

Be it further resolved;

"that upon enactment this amendment may not be repealed or amended either before or after its effective date except at a duly convened membership meeting, anything to the contrary in these By-laws notwithstanding.

"/s/ Al Gurton"

The Rothstein proposal reads:

"WHEREAS: More than 5,000 members of Local 802 live outside a 75-mile radius of New York City and have no contact with the Local, its officials, and its affairs; and

"WHEREAS: Half of the membership did not vote in the last referendum on the subject of holding elections of officers by mail ballot, indicating that between 10,000 and

235 F. Supp. 53

15,000 members living in New York are completely divorced from and uninterested in local union affairs; and

"WHEREAS: Many persons who are uninterested and therefore uninformed about union affairs and officials will vote a mail ballot only because it is at hand, thereby diluting the votes of those who do care and whose livelihoods are involved; and

"WHEREAS: Many thousands of Local 802's members also belong to other locals of the AFM, and a mail ballot provides no method of checking on whether they are in good standing in these other locals, thus allowing members not in good standing in the AFM (and therefore not in good standing in Local 802) to vote;

"THEREFORE BE IT RESOLVED: that the Referendum Resolution enacted on or about February 15, 1964, and which is not to be effective until July 1, 1964, pertaining to election of officers by mail ballot, is hereby rescinded and annulled as if it had never been enacted. Election of all officers of the local shall be conducted by voting in person in accordance with the presently existing By-laws of the Local; and

"BE IT FURTHER RESOLVED: that upon enactment this amendment may not be repealed or amended either before or after the effective date thereof except at a duly convened membership meeting, anything to the contrary in these By-laws notwithstanding.

"/s/ Murray Rothstein"

By identical letters mailed to each of the plaintiffs and dated April...