Schwartz v. Associated Musicians of Greater NY, Local 802

• Decision Date: 29 December 1964
• Docket Number: No. 7,Docket 28639.,7
• Citation: 340 F.2d 228
• Parties: Julius SCHWARTZ, Buddy Kane, Robert Curtis, John C. Rosenmerkel, William Arnold, Frances Baron, Leonard O. Gaskin, Louis V. Schwartz, Herbert Wasserman, Judith Bregman, Solomon Kosarin and Glen Williams, Plaintiffs-Appellants, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

340 F.2d 228 (1964)

Julius SCHWARTZ, Buddy Kane, Robert Curtis, John C. Rosenmerkel, William Arnold, Frances Baron, Leonard O. Gaskin, Louis V. Schwartz, Herbert Wasserman, Judith Bregman, Solomon Kosarin and Glen Williams, Plaintiffs-Appellants, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA, Defendant-Appellee.

No. 7, Docket 28639.

United States Court of Appeals Second Circuit.

Argued September 22, 1964.

Decided December 29, 1964.

Godfrey P. Schmidt, New York City, for plaintiffs-appellants.

Emanuel Dannett, New York City (Ashe & Rifkin, Henry Kaiser, Jerome Adler, David I. Ashe and Eugene Mittelman, New York City, on the brief), for defendant-appellee.

Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Plaintiffs appeal from summary judgment dismissing the first count in a two-count complaint, and holding that union "local tax" was not violative of law, in the United States District Court for the Southern District of New York, Richard H. Levet, District Judge. We find no error in the grant of summary judgment, and affirm the judgment.

The courts have already passed on another aspect of this controversy. In Wittstein v. American Federation of Musicians, etc., 326 F.2d 26 (2 Cir. 1963), cert. granted 376 U.S. 942, 84 S.Ct. 798, 11 L.Ed.2d 766 (1964), reversed 85 S.Ct. 300 (Dec. 7, 1964), an order granting summary judgment in favor of the plaintiffs on the second count of a two-count complaint was reversed by the Supreme Court.¹ Now before us is another order of the court granting defendant's motion for summary judgment on the first count of that complaint.

Involved here is the claim by the plaintiffs, sidemen² in the defendant Local, in behalf of themselves and others similarly situated, that a tax imposed on them by the Local was violative of Section 302 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186, Section 101 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 411, and the Local's by-laws and standing resolutions. The tax, payable only when the member was active,³ made the sideman personally responsible for its collection.

The district court, in dismissing the suit, held that there were no genuine issues as to any of the material facts raised by the pleadings and the supporting affidavits and concluded as a matter of law that: (1) the percentage levies were "membership dues" within the meaning of Section 302; (2) no violation of Section 101 was committed by the Local when it made the sidemen directly responsible for the payment of the tax since the obligation was from its inception an obligation of the sidemen; and (3) the collection of the tax directly from the sidemen was a lawful procedure under the Local's by-laws and standing resolutions. We hold that the case was ripe for summary proceedings and that the district court's disposition was proper.

The Local tax, first introduced in 1943, has since that time undergone considerable modification in the process of developing into the form that the plaintiffs found so objectionable. In September 1943, the Local adopted the following resolution:

"RESOLVED, That effective as of October 1, 1943:

"(a) There shall be payable by and collected from all members a 1 per cent tax on all engagements based on scale price therefor;

"(b) Said 1 per cent tax shall likewise be levied on all salaries paid to officers of our Local and to all members thereof regularly employed by the Union;

"(c) All income realized from items (a) and (b) above mentioned shall be allocated to the General Fund of our Local."

A standing resolution adopted September 9, 1955 increased the 1 percent tax on all engagements to 2 percent.⁴ In 1960 another standing resolution was passed reducing the tax to 1½ percent and directing that the orchestra leader be held responsible for its collection and payment.⁵ The leaders objected to this directive and sought judicial relief. An injunction was obtained prohibiting the Local from demanding or accepting the tax from the leaders, and we affirmed, excepting in our opinion only the situation where the sideman furnished written authorization to the leader directing him to pay the tax to the Local. See Carroll v. American Federation of Musicians of the United States and Canada, 295 F.2d 484 (2 Cir. 1961).

The obvious consequence of this injunction was to make it difficult for the Local effectively to collect the tax from the leaders; the Local's Executive Board responded by passing a resolution permitting the collection of the tax directly from the sidemen. Leaders were required to furnish the Union with the names and card numbers of all sidemen who performed single engagements, thereby making it possible for the sidemen to be billed individually. In the December 1961 issue of "Allegro," the official publication of the Local, the Union confirmed the apparent purpose behind this new procedure by printing a notice which stated in part:

"Because of the restriction on the existing methods of tax collection imposed on Local 802 in the injunction obtained by the Orchestra Leaders of Greater New York, the Union, pending final disposition of the case, is now obliged to collect taxes directly from the sidemen on single engagements * * *."

Subsequently, the Carroll action was dismissed on procedural grounds,⁶ and in July 1962 a similar action was commenced by one Ben Cutler and others against the defendant and the Federation, culminating in the issuance of a new preliminary injunction in October of that year. See Cutler v. American Federation of Musicians, etc., 211 F.Supp. 433 (S.D. N.Y. 1962), aff'd 316 F.2d 546 (2 Cir. 1963), cert. denied 375 U.S. 941, 84 S.Ct. 346, 11 L.Ed.2d 272 (1963). Prior to the granting of the injunction, the August 1962 issue of "Allegro" contained the following statement:

"The obligation to pay the 1½% tax is imposed by our By-Laws upon each and every member of the Local. Do not be misled by the false statements and advice now being disseminated that only leaders collect and pay the tax to the Union. A pamphlet has been issued by `The Positive Action Ticket\' to that effect. But that same pamphlet has conveniently overlooked the following language in the same Standing Resolution * * from which their leaflet quotes:

"`There shall be payable by and collected from all members a 1½% tax on all engagements based on scale price.\'

"Language couldn\'t be clearer than this. The tax is `payable by * * * all members\' and it is to be `collected from all members.\'

"The obligation of the leaders is only a means designated to help the Union collect the tax from all members. Since this provision was inserted only for the benefit of the Union, the Union can waive it and insist that the members themselves, who are primarily responsible for the payment of the tax, should pay it directly."

From December 12, 1961, through December 1962, the Local implemented its new collection policy by sending bills for the tax to those sidemen whose names had been reported by the leaders. Over 25,000 bills were issued, and many were paid upon receipt. To further facilitate collection, a dues authorization form was prepared by the Local for use by the sidemen and was distributed commencing January 1963. Those sidemen who signed these forms thereby authorized the leaders for whom they performed to pay over 1½ percent of their wages to the Local "as dues," a procedure expressly excepted from our first decision in Carroll v. American Federation of Musicians of the United States and Canada, supra.

The Local tax was in this posture when the complaint in this action was filed in August 1963 — the tax was a direct tax on the sidemen collectible either by billing those sidemen whose names were reported by the leaders or by awaiting payment from the leaders in those cases where the performing sidemen had signed authorization forms. Since August 1963 the work tax has been both repealed and reinstated. By resolution passed at the membership meeting on September 9, 1963, the tax was abolished while the annual dues were increased from $24 to $80, effective January 1, 1964, and by a membership referendum vote two months later, the tax was reinstated and the annual dues reduced to $30, again effective January 1, 1964. To cover the interim period from September 9 through December, the Executive Board passed a resolution on September 12, 1963, whereby the tax, as it existed in August, was continued until the effective date of the new resolution, i. e., January 1, 1964.⁷

I.

The basic issue raised by this appeal is whether the action was ripe for summary disposition. The summary judgment procedure provided for by Rule 56 of the Federal Rules of Civil Procedure can be availed of to bring an action to final conclusion only when the pleadings, depositions, and admissions on file together with any affidavits, show that there is no genuine issue as to any material fact.

Concededly, an important factual issue, crucial to the outcome of this case, is raised by the complaint, and were we to confine our examination to the pleadings alone, we would be compelled to conclude that summary proceedings were inappropriate here. Plaintiffs alleged in their complaint that the tax as it was introduced in 1943 was intended to be a tax levied on and collected from the leaders and that only when the defendant recognized the illegality of collecting the tax from the leaders did it attempt to effect the collection directly from the sidemen as some form of membership dues. We can discern no factual basis for supporting these claims. The chronological development of the levy, as described in the opposing affidavits, and the language of the resolutions themselves, make it unmistakably clear that the tax was and always has been a tax on the membership as a whole. What was changed was merely the method of collecting it.

Plaintiffs'...