Pappas v. American Guild of Variety Artists

• Decision Date: 05 November 1954
• Docket Number: No. 53 C 1246.,53 C 1246.
• Citation: 125 F. Supp. 343
• Parties: James PAPPAS, doing business as Vine Gardens, et al., Plaintiffs, v. AMERICAN GUILD OF VARIETY ARTISTS, an unincorporated association, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

125 F. Supp. 343

James PAPPAS, doing business as Vine Gardens, et al., Plaintiffs, v. AMERICAN GUILD OF VARIETY ARTISTS, an unincorporated association, et al., Defendants.

No. 53 C 1246.

United States District Court, N. D. Illinois, E. D.

November 5, 1954.

Milton T. Raynor, John Moser, Stanford Clinton, and Manuel Weisman, Chicago, Ill., for plaintiffs.

Alfred Kamin, Jacobs, Kamin & Ratner, and Korshak & Rothman, Chicago, Ill., for defendants.

CAMPBELL, District Judge.

This suit is brought by individual and corporate operators of cafes and places of entertainment in the Chicago area, an association which represents them, and several individual performers, against the American Guild of Variety Artists (AGVA), its President and Administrative Secretary, and certain other guilds affiliated with AGVA. A group of booking agents were also parties plaintiff, but were dismissed by agreement. The plaintiffs seek injunctive relief under the provisions of Section 302 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C.A. § 186, which prohibits employers from making payments of any kind to representatives of their employees except under certain specified conditions. The complaint alleges that AGVA has unilaterally created a welfare fund for the benefit of its members, and has demanded that all employers of members, including the operators who are named plaintiffs, contribute to the fund; that such contributions, if made, would be unlawful under Section 302; and that when the plaintiff operators refused to contribute to the fund, AGVA employed certain economic sanctions against them, including, in four instances, a strike against their establishments. The plaintiffs seek an injunction restraining AGVA and all other defendants from making further demands for contribution to the welfare fund, and from further employing economic sanctions of any type to secure compliance to such demands.

AGVA has moved to dismiss the complaint, and submits, among other points, that the parties are not members of an industry affecting commerce, as the term is used in the Labor Management Relations Act. If that be true, this court lacks jurisdiction.

Section 302 is expressly limited to industries affecting commerce, and that term is defined in the Act as "any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce." 29 U.S.C.A. § 142(1). This language is similar to that used in the former National Labor Relations Act, 29 U.S.C.A. § 152(7), and it indicates beyond doubt that Congress intended to exercise the full sweep of its power to regulate interstate commerce. In National Labor Relations Board v. Fainblatt, 1939, 306 U.S. 601, 607, 307 U.S. 609, 59 S.Ct. 668, 672, 83 L.Ed. 1014, it was stated:

"The Act on its face thus evidences the intention of Congress to exercise whatever power is constitutionally given to it to regulate commerce * * *. Examining the Act in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis."

Again, in Polish National Alliance of U. S. of North America v. N. L. R. B., 1944, 322 U.S. 643, 647, 64 S.Ct. 1196, 1198, 88 L.Ed. 1509, the Court stated:

"By that Act, Congress in order to protect interstate commerce from adverse effects of labor disputes has undertaken to regulate all conduct having such consequences that constitutionally it can regulate. * *"

This view of the Act, and subsequent acts designed to regulate national labor affairs, has not been altered in the many cases which have followed Fainblatt and Polish National Alliance, and it is with this view in mind that the court turns to the allegations of the instant complaint.

Paragraphs 17 through 21 of the complaint, which contain all references to interstate commerce, recite the following allegations:

"17. The Operators are engaged in a business affecting interstate commerce. They import or cause to be imported into the State of Illinois, goods, wares and merchandise in an amount in excess of One Million ($1,000,000.00) Dollars annually.

"18. The wrongful acts committed by the defendants against the plaintiff Operators, as alleged herein, are also being committed, or are being attempted, everywhere in the United States of America against hotels using variety entertainment, circuses, cafes, theaters employing variety artists, fairs and ice skating shows. The goods, wares, and merchandise moving in interstate commerce with respect to such places of business is substantially in excess of One Hundred Million ($100,000,000.00) Dollars annually.

"19. The wrongful acts of the defendants not only affect the Agents who are plaintiffs herein, but agents and club date bookers who are also engaged in representing variety entertainers and arranging for variety entertainment presentations throughout the United States of America.

"20. The wrongful acts committed against the Performers who are plaintiffs herein also involve all performers appearing as variety entertainers anywhere in the United States of America.

"21. In addition, these proceedings affect interstate commerce in that the performers entertain or desire to entertain on instrumentalities of commerce, such as television and radio, or appear in motion pictures, which is an industry engaged in interstate commerce."

The complaint thus alleges two distinct types of conduct which, according to plaintiffs, transform an industry which would otherwise be purely local in nature into one which affects interstate commerce. First, it is alleged that the plaintiff operators, who are engaged in the entertainment business, import large amounts of merchandise into the State of Illinois. Second, it is alleged that the entertainers who are employed by the operators, and the booking agents who represent the entertainers, perform as entertainers or serve as agents in states other than Illinois. It is doubtful that the second type of conduct is sufficient to bring the members of this segment of the entertainment industry within the scope of the Act, but the doubt need not be resolved here, for, in the opinion of the court, the first type of conduct — the importing of merchandise into Illinois — is itself an activity which might vest this court with jurisdiction under the Act. That is, if other relevant considerations were put aside, it might be decided on the basis of the allegations contained in paragraphs 17 and 18 of the complaint, that the operators are members of an industry affecting interstate commerce. cf. National Labor Relations Board v. Denver Building Council, 1951, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284.

I

For the past three decades, the case of Federal Base Ball Club of Baltimore v. National League, 1922, 259 U.S. 200, 42 S.Ct. 465, 466, 66 L.Ed. 898, has controlled the many federal decisions which have underscored the intrastate nature of the entertainment industry. It was decided in the Federal Base Ball Club Case that professional baseball clubs are not amenable to suits under the Anti-Trust Acts, since baseball exhibitions are "purely state affairs." Since the decision is of paramount importance here, it is well to note the following language of the Court:

"The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U.S. 648, 655, 15 S. Ct. 207, 39 L.Ed. 297, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendant, personal effort, not related to production, is not a subject of commerce. * * *"

As could be expected, the last words quoted—"personal effort, not related to production, is not a subject of commerce" —have had a significant effect upon subsequent decisions affecting the entertainment industry. This effect may best be illustrated by a description of three decisions, each involving a separate segment of the entertainment industry. First, in Hart v. B. F. Keith Vaudeville Exchange, 2 Cir., 1926, 12 F.2d 341, 344, 47 A.L.R. 775, it was decided that persons in the...