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July 1, 1971

Musicians' Protective Union Local No. 274, A.F. Of M. et al., Plaintiffs
American Federation Of Musicians Of United States And Canada, Defendant

Becker, D. J.

The opinion of the court was delivered by: BECKER


Preliminary Statement

 We hold that the order of the International expelling the Local under these circumstances is valid. The holding, in a sense, culminates an interesting chapter in the history of the labor movement, in that: (1) the American Federation of Musicians International has attempted for many years to end a pattern of segregation which historically had developed throughout the country in musicians unions; and (2) Philadelphia, the home of the two locals involved, is the only area in the country which still has dual unionism in the musicians sphere. We note at the outset that our deliberations will concern more than an analysis of the racial patterns within the International's local affiliates. For the case also requires us to probe: (1) the fundamental relationship between the international union and its local affiliates; and (2) the role of the courts in dealing with matters of the internal industrial jurisprudence of labor unions.

 The case was tried to the Court on a stipulation of facts supplemented by some additional testimony. This opinion constitutes our findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52a.

 The Court's Jurisdiction

 Plaintiff, Musicians Protective Local No. 274 A.F. of M. ("Local 274") is the predominantly black local. It sues to enjoin defendant, The American Federation of Musicians of The United States and Canada (the "International") from implementing its order dated March 31, 1971 cancelling Local 274's charter. It also seeks invalidation of the expulsion. This being a dispute between two labor organizations, jurisdiction attaches under § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a). Defendant has abandoned its original contention that the Norris LaGuardia Act, 29 U.S.C. § 101 acts as a jurisdictional bar. Plaintiff has abandoned its claim to jurisdiction under § 102 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412, and its contention that the suit may be maintained as a class action on behalf of Local 274's individual officers and members.

 Dual Unionism Based Upon Race -- The Historical Background

 Local 274 was organized in 1934 by a travelling band known as "Edwards Collegians", the members of which held International membership through Local 607, Huntingdon, West Virginia. The Local was chartered as a Philadelphia affiliate of the International on January 1, 1935. All of its original members were black. At that time Philadelphia already had a musicians local -- Local 77 A.F. of M. ("Local 77"), none of whose members were black. Local 77 is the principal musicians' union in Philadelphia; it presently has over five thousand members (Local 274 has about five hundred members). Both locals then had, and continue to have, identical work and geographic jurisdictions, and according to the stipulation of facts, there was no reason, other than segregation by race, for their separate existence. Official publications of the International, prior to 1961, recognized the basis of this separation by listing Local 274 as a "colored" local to distinguish it from its white counterpart, Local 77.

 The history just recited is not indigenous to Philadelphia. The record reflects that the International first began its efforts to eliminate dual unionism based upon race in 1954, at which time such dual unionism existed in thirty-eight localities throughout the United States. The International's efforts were an attempt to comply with the mandate of evolving public law and the policy of its own conventions. The Civil Rights Department of the International was assigned the responsibility for effecting the merger of the segregated locals. Over the course of the next several years, as a result of the International's policy, mergers of dual locals occurred in thirty-seven localities. *fn3"

 At the 70th Convention of the International in June 1967, Resolution No. 25 was proposed which called for a "factual and exhaustive report designed to prove to the membership as well as to the world at large the material benefits of Federation mergers to date . . . ." The resolution as proposed would have had the Civil Rights Department "desist, and immediately discontinue its enthusiasm toward mergers" until there was evidence, in the form of a report, showing the merits of such mergers. As the resolution was finally adopted by the Convention, however, the latter language was deleted. In response to the resolution, the Report submitted by the International President of the 1968 Convention stated:

"The elimination of dual unionism will improve the economic lot of all members and that it can be achieved without the submerging of minorities or the abridgement of any of their rights."

 Since then, the International has continued its efforts to eliminate racial segregation in its local affiliates unabated.

 On January 26, 1965, in an effort to deal with the Philadelphia situation, James Caesar Petrillo, Director of the International's Civil Rights Department (and former International President) contacted President James Adams of Local 274, and the leadership of Local 77, requesting a meeting with officials from both locals to work out a plan of voluntary merger. Through seven meetings between 1965 and 1970, conducted under the auspices and mediation of the International, no agreement for a voluntary merger was ever reached. *fn4"

 The Order of Merger, The Hearing Thereon, and The Order Cancelling Local 274's Charter.

 On November 24, 1970, the new International President, Hal C. Davis, sent to the two locals an IEB Order requiring that they merge into one local. Accompanying the Order was a Plan of Merger.

 The Order and Plan set out in detail the steps both locals should take to effectuate the merger, and set January 1, 1971 as the date for compliance. The Order and Plan provided, inter alia, that each member of the two unions should enjoy equal rights, privileges and benefits in the merged union. No member of either local was required to pay initiation fees to the merged union. Moreover, the Plan of Merger provided that, for the period from January 1, 1971 until June 7, 1976, only former members of Local 274 could be nominees for the following offices: Administrative Vice-President, Associate Secretary, two members of the Executive Committee, one member of the Examining Committee, two members of the Trial Board, one member of the Auditing Committee, two delegates to the Central Labor Union, Philadelphia, and two delegates to the Central Labor Union, Camden. The Administrative Vice-President and the Associate Secretary were to be delegates ex officio to the International Convention. All other offices in the merged local were open to all members. The surviving entity of the merger was to be designated as "Philadelphia Musicians' Association, Local 77-274, A.F. of M."

 The Order directed an authorized officer of each local to notify the International President on or before December 14, 1970, of its intention to comply with the Order, and of steps taken to fulfill that intention. The members of Local 274, at a special meeting called December 6, 1970, voted not to subscribe to the Order of Merger, and authorized the borrowing of $5,000 from its mortuary fund for legal fees to challenge the merger order. Local 77, on the other hand, agreed to abide by the Order.

 On December 7, 1970, Local 274, by its counsel, in response to the Order, requested the International to hold a hearing on the question of whether the Order of Merger was proper or even authorized under the Constitution and By-Laws of the International. On January 22, 1971, Phil Lampkin, the travelling International representative assigned to and responsible for the locals in the area, having learned that a notification of compliance with the Order of Merger had not been received in the President's office by December 14, 1970, presented charges against Local 274. Thereafter he notified International President Davis of these charges, recommending either that the IEB place the Local in trusteeship, revoke its charter, or take whatever other action the IEB deemed appropriate.

 In response to the foregoing, President Davis notified the Local of the charges, and pursuant to Article 6, Section 7 of the By-Laws, *fn5" designated International Vice-President Victor W. Fuentealba as a Subcommittee of the IEB to set a hearing for trial on the charges as required by the By-Laws. A hearing was held on March 12, 1971. At the hearing, counsel for Local 274 argued that the Constitution and By-Laws did not authorize the Order of Merger. Counsel further argued that Local 274 complied with the Order because it responded, as required by its terms, before the deadline date of December 14, 1970, in the form of counsel's letter of December 7th to the International. *fn6" This letter was offered into evidence along with the minute books of Local 274's meetings. The matter was then taken under advisement. Thereafter, upon consideration of the hearing report and the Recommendation of the Subcommittee, the IEB found the charges sustained and on March 31, 1971, issued the order cancelling Local 274's charter.

 Does Segregation Exist in The Musicians' Unions in Philadelphia -- Resolution of The Factual Issue.

 Local 274 has maintained throughout the course of this litigation that it is not a segregated local and therefore is not in violation either of the Civil Rights Act of 1964 (see infra) or of the International's policy. It asserts that membership has always been open to whites and that, even though there were no white members prior to the 1940's, the Local has never followed a policy of exclusion based upon race. The Local 274 officials who testified were emphatic on this point. They further contend that it is Local 77 that is the segregated local, since out of more than five thousand members, only 20 are black. Pointing out that the International has never conducted a hearing to determine whether Local 274 is in fact segregated, it is Local 274's position that the Order of the International Executive Board, even if based on lawful public policy, was invalid because, factually, Local 274 is not segregated.

 This brings us to a threshold question: what is the yardstick for determining segregation? Is it Local 274's racial balance? Is it Local 274's "policy"? Or is it the entire Philadelphia situation, past, present and foreseeable future? ...

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