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BENNER v. PHILADELPHIA MUSICAL SOCY.

September 4, 1964

Jules BENNER et al.,
v.
The PHILADELPHIA MUSICAL SOCIETY, LOCAL 77, OF the AMERICAN FEDERATION OF MUSICIANS, American Federation of Musicians, Charles Musumeci as President of Local 77, A. A. Tomei as Secretary of Local 77, Don Diogenia as Treasurer of Local 77, and Herman Kenin as President of the American Federation of Musicians



The opinion of the court was delivered by: LORD, III

On January 15, 1962, I entered a temporary restraining order as follows:

'AND NOW, this 15th day of January, 1962, with the consent of counsel for the parties in the above captioned matter, it is hereby ordered by the Court that the restraining order issued on January 5, 1962 shall be modified to cover only the below noted acts and shall be extended until January 30, 1962 or such other time as a hearing may be scheduled. Defendants are enjoined from the following acts:

 '1. Visiting economic reprisals or other sanctions or penalties upon plaintiffs for failure to collect the local 'tax'.

 '2. Visiting economic reprisals or other sanctions or penalties upon plaintiffs for failure to collect the 'surcharge'.

 '3. Visiting economic reprisals or other sanctions or penalties upon plaintiffs for bringing the instant action or for bringing the unfair labor practice charges referred to in the instant Complaint before the National Labor Relations Board.'

 There was then, and still is, pending in the federal courts in New York law suits involving the same questions that were before me, and rather than litigate simultaneously in two districts the temporary restraining order here was continued in force with the consent of the parties. F.R.Civ.P. 65(b). There is now before me a motion that the defendants be adjudged in contempt for violation of the order of January 15, 1962. I have already ruled orally from the bench that there are no violations of sections 1 and 3 of the order, so that we are now concerned only with an alleged violation of section 2.

 The background of that part of the order is this:

 Before January 1, 1964, whenever an orchestra traveled for a single engagement into the jurisdiction of a local other than its own, the American Federation of Musicians, i.e., the national union, required the leader of that orchestra to collect and pay to the American Federation of Musicians a 'traveling surcharge' of 10% Of the prevailing scale of the Local whose jurisdiction was invaded. The American Federation of Musicians, in turn, distributed the monies so received, 40% To the invaded Local, 40% To the American Federation of Musicians and 20% To the 'sidemen', i.e., the members of the orchestra other than the leaders. In Carroll v. American Fed. of Musicians of United States & Canada, 295 F.2d 484 (C.A.2, 1961), the court held that the single engagement leader was an employer; that the payment of the surcharge to the American Federation of Musicians was a payment by an employer to a union, a practice forbidden by § 302 of the Labor Management Relations Act unless it fell within a specific exception in that section; that it was not so excepted and hence was illegal. Cf. Associated Orchestra Leaders of Greater Philadelphia et al. v. Philadelphia Musical Society, Local 77, of American Federation of Musicians et al., 203 F.Supp. 755, 758 (E.D.Pa.1962). Thus, the intendment of the order was to prevent sanctions or reprisals by the union against the leaders for failure by the latter to make payment which violate § 302, and to prevent employment by the union of alternative means of collection which violate § 302.

 The American Federation of Musicians has now sent letters to the plaintiff orchestra leaders, of which the following is typical:

 'Prior to January 1, 1964, you performed 'miscellaneous traveling engagements' as defined in Article 15, of the A.F. of M. By-Laws, on the dates and at the place listed on the attached sheet. 'You have withheld from members of the Federation who performed on these engagements, and retained for yourself, the amount of Traveling Surcharge to which these members were entitled as part of their minimum wage. 'Our computation, made in accordance with Article 15, Sections 12, 13 and 14 of the A.F. of M. By-Laws (1962 Edition), indicates that you have retained and presently owe to these members the total amounts listed beside each traveling engagement. 'You are therefore requested to comply forthwith with the following:

 '1. For each engagement listed deliver to the International Treasurer:

 '(a) a full and complete list of the names, addresses, locals, and, except for canadian engagements, the Social Security numbers of each and every Federation member who performed on each such engagement; and

 '(b) your remittance by check or money order in favor of each such member of his share of the total amount which you have failed to pay to such member.

 '2. For each traveling engagement not listed on the attached sheet which you performed during the five year period expiring December 31, 1963, and in connection with which you have retained the amount of the ...


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