LOCAL 77 v. American Federation of Musicians

• Citation: 812 F. Supp. 509
• Decision Date: 02 December 1992
• Docket Number: Civ. A. No. 92-3386.
• Parties: The PHILADELPHIA MUSICAL SOCIETY, LOCAL 77 v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA.
• Court: U.S. District Court — Eastern District of Pennsylvania

812 F. Supp. 509

The PHILADELPHIA MUSICAL SOCIETY, LOCAL 77 v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA.

Civ. A. No. 92-3386.

United States District Court, E.D. Pennsylvania.

December 2, 1992.

Lynne P. Fox, Bernard N. Katz, John P. Winicov, Meranze & Katz, Philadelphia, PA, for plaintiffs.

William T. Josem, Cleary & Josem, Philadelphia, PA, John M. West, Bredhoff & Kaiser, Washington, DC, for defendant.

MEMORANDUM

KATZ, District Judge.

Both sides have requested this court decide this action on the basis of their cross-motions for summary judgment and a hearing. This action arose over a dispute between an international union of musicians and one of its locals over the right to designate the number of local musicians to play on theatrical tours.

The following are uncontested:

1. The court has jurisdiction over plaintiff's claim for breach of the Federation's Bylaws under section 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a).

2. Plaintiff ("Local 77") is a local union chartered by defendant American Federation of Musicians, and is a labor organization pursuant to section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5).

3. Plaintiff is a local union comprised of individual Union members who engage in the performance of musical services.

4. Defendant American Federation of Musicians of the United States and Canada (the "Federation") is an international labor organization representing professional musicians engaged in the performance of musical services. The Federation is a "labor organization" within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5). The Federation's headquarters is located in New York City, New York, and the Federation regularly conducts business within the jurisdiction of this court.

5. Pursuant to the Federation Bylaws, the Federation negotiates collective bargaining agreements with various employers on behalf of the musicians they employ in various industries. The Federation conducts its collective bargaining program in two ways: first, the Federation itself conducts certain major collective bargaining negotiations, primarily where the affected musicians consist of members of more than one local union and, second, in other instances the Federation's local unions conduct negotiations on their own behalf.

6. The Federation is recognized as the exclusive representative of musicians employed by employers in numerous industries and, in those instances, the Federation conducts collective bargaining negotiations on behalf of those musicians, including, for example, musicians employed by the phonograph record manufacturers, the theatrical motion picture and TV film producers, the TV networks, and the producers of radio and TV commercial announcements. The Bylaws authorize the Federation to conduct those collective bargaining negotiations and provide that the agreements reached in those negotiations shall be binding on all affected members. Article 13, Sec. 23(a), states:

All members of the Federation, by virtue of their membership, authorize the Federation and its Locals to act as their exclusive bargaining representative with full and exclusive power to execute agreements with employers governing terms and conditions of employment. The Federation, by entering into collective bargaining agreements, does so for the benefit of all members of the Federation and each member is bound by the terms of such collective bargaining agreements. A Local of the Federation enters into collective bargaining agreements for its members and for Federation members who perform within the jurisdiction of the Local. Each member of such Local and each Federation member who performs within its jurisdiction is bound by the terms of the collective bargaining agreements executed by such Local. Similarly, the Federation licenses and enters into agreements with booking agents for the benefit of all members of the Federation each member is bound by the terms of such agreements.

7. In conducting Federation negotiations, the Federation's longstanding practice is for the President to appoint a Federation Negotiating Committee consisting of officers (elected members of the International Executive Board), Federation counsel, and staff personnel. The officers of the major local unions whose members are covered by the terms and conditions of employment established by the Federation agreements are customarily appointed to an Advisory Committee that provides input and advice to the Negotiating Committee. Under the Federation Bylaws, all Federation negotiated agreements are subject to a contract ratification procedure in which eligible musicians — based upon prior employment under the agreement being ratified — are eligible to vote (Article 13, Section 23(b)).

8. There are also circumstances in which collective bargaining negotiations are conducted by local unions. Constituent locals conduct such negotiations with various employers within their respective jurisdictional boundaries established when the local is granted a charter. Those jurisdictional boundaries are subject to being changed by the International Executive Board pursuant to the provisions of the Bylaws (Article 4, Sec. 1 and Sec. 11).

9. Plaintiff functions in certain circumstances as a collective bargaining representative for its members.

10. In those instances where a local, like the plaintiff, negotiates a collective bargaining agreement with a particular employer, that agreement establishes the terms and conditions of employment for the musicians covered by that agreement.

11. In those instances were a local, like the plaintiff, negotiates a collective bargaining agreement, it has been designated by its members as the representative of their own choosing to conduct those negotiations.

12. Collective bargaining agreements negotiated by local unions sometimes contain, among other things, a clause specifying the minimum number of local union musicians who shall be allowed to play for an engagement of any kind that takes place in an establishment (venue) covered by that agreement within the jurisdiction of that local. Those clauses are commonly referred to as "local union minimums." Such local union minimums apply, by their terms, to all performances that take place in an establishment covered by the agreement within the local's jurisdiction — including performances under the Federation's Pamphlet B theatrical touring musical agreement.

13. Because local minimums apply to all musical performances, when a Pamphlet B production takes place in a venue covered by the minimum, the producer is required to employ the regular complement of Pamphlet B musicians plus the total number of local musicians provided for in the local's minimum.

14. The Federation has for many years engaged in collective bargaining with the League of American Theaters and Producers (the "League"), a multi-employer organization acting on behalf of each of its members who is engaged as a principal in producing a legitimate first-class commercial theatrical production, including bus and truck, in an out-of-town theater. These Pamphlet B negotiations establish the terms and conditions of employment for all theatrical touring musicians, who typically are employed for a period of time ranging from several to many months, during which time the show tours from city to city as scheduled by the producer. The producers of theatrical touring musicals usually hire a core number of musicians who rehearse before the show goes on tour and thereafter travel with the production, providing musical services throughout the tour. The number of musicians hired varies from production to production, normally ranging from as few as four musicians to in excess of 20 musicians, depending upon the original musical score, the nature of the production, the complexity of the music and such other factors as the producer may choose to take into account.

15. The touring musicians covered by Pamphlet B are but one type of "traveling" musician subject to the Federation's jurisdiction. More common are the traveling musicians who reside in the jurisdiction of one local (the "home" local), who are employed for a short term engagement in another jurisdiction and then return to their home local upon completion of that engagement. This type of traveling musician is not covered by collective bargaining agreements. Their terms of employment are unilaterally established by the locals in whose jurisdictions they perform, pursuant to the authority conferred on them by the Federal Bylaws (Article 5, sections 11-13).

16. The last Pamphlet B agreement, effective April 1, 1988 through March 31, 1991, contained a Rule 61 which provided as follows:

The Employer agrees to adhere to the minimum number-of-musician requirements in those theaters where there is an existing contract between a Local Union and the theater where the performances are to take place. The Employer also agrees, prior to any tour, to notify the President's Office of the Federation of the minimum number of Local musicians that will be employed throughout the tour in those theaters where there is no contract between the Local Union and the theater, providing for a minimum number of musicians.

17. That Pamphlet B agreement was extended by mutual agreement, and negotiations for a successor agreement began in July 1991. The negotiations consumed approximately ten (10) days of full-scale bargaining until an agreement was reached six months later — on or about January 29, 1992.

18. The Federation Negotiating Committee convened a meeting of all affected local unions at Federation headquarters in New York City commencing on September 26, 1991. Even in advance of the meeting, some of those locals had voiced their concerns about the Federation's evincing any flexibility at the bargaining table with respect to local minimums. At that meeting, Federation President Mark Tully Massagli and...