Sam Denov and Burl Lane v. Chicago Federation of Musicians, Local 10-208 and American Federation of Musicians of the United States and Canada

703 F.2d 1034, 113 L.R.R.M. (BNA) 2134, 1983 U.S. App. LEXIS 29216
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 31, 1983
Docket82-1681
StatusPublished
Cited by15 cases

This text of 703 F.2d 1034 (Sam Denov and Burl Lane v. Chicago Federation of Musicians, Local 10-208 and American Federation of Musicians of the United States and Canada) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sam Denov and Burl Lane v. Chicago Federation of Musicians, Local 10-208 and American Federation of Musicians of the United States and Canada, 703 F.2d 1034, 113 L.R.R.M. (BNA) 2134, 1983 U.S. App. LEXIS 29216 (7th Cir. 1983).

Opinion

PELL, Circuit Judge.

Appellants Sam Denov and Burl Lane appeal from the district court’s order granting the appellees’ motion for summary judgment in an action brought under the Labor-Management Reporting and Disclosure Act of 1959 (the Act), 29 U.S.C. §§ 401-531, to nullify a dues increase approved at the 1980 convention of the American Federation of Musicians (AFM). The appellants first contend that the dues in *1036 crease is invalid because the union’s convention delegate selection system violates section 101(a)(1) of the Act, 29 U.S.C. § 411(a)(1), by giving small locals disproportionately greater representation than large locals. Second, they contend that the dues increase violates section 101(a)(3), 29 U.S.C. § 411(a)(3), which specifically governs the procedures for increasing dues.

I. FACTS

Appellants Denov and Lane are members of the Chicago Federation of Musicians, Local 10-208 (CFM or the local) and of AFM, an international union, by virtue of the local’s affiliation with it. In June 1980, when AFM held its convention, CFM had 11,156 members and was one of 526 local affiliates of AFM, which had nearly 300,000 members.

Article 5 of the constitution of AFM sets out the system for the selection of delegates by the locals for AFM conventions.

All locals of 200 members or less shall be entitled to one delegate. All locals of not less than 201 members and not more than 400 members shall be entitled to two delegates. All locals of more than 400 members shall be entitled to three delegates. A merged Local ... shall be entitled to one additional Delegate....

As a merged local, CFM was entitled to four of the 994 delegates at the convention. CFM’s delegate strength thus was about one-tenth of what it would have been on a proportional basis. Although voice votes are the most common method of voting, article 5 also provides that proposals to change the bylaws may be subjected to a roll call vote if fifteen locals or thirty delegates demand it. In a roll call vote, each local may cast as many votes as it has members; thus CFM could cast 11,156 votes in a roll call vote.

On June 17, 1980, the delegates, by voice vote, approved a recommendation to amend their bylaws to establish minimum work dues of one percent of each member’s scale wages. The proposal directed that one-half of this was payable to the international and one-half to the local. The amendment also provided that the work dues of any local that were in effect as of July 1,1980, would be increased one percent of scale wages. Prior to the convention, Local 10-208 levied work dues of two percent on its members; the effect of the implementation of this proposal was to increase work dues to three percent, of which one-half percent was due the international. No one at the convention requested a roll call vote.

The proposal also provided that a local could apply to the International Executive Board for waiver of the increases. The appellants say that since June 1980, about forty of the 526 locals have successfully petitioned for a waiver of the increases. CFM, however, has not petitioned.

On December 3,1980, the appellants filed a three-count action against CFM and AFM. Count I asserted that the delegate selection system constituted a violation of section 101(a)(1) of the Act, which provides for equal voting rights for union members. Count II charged that the vote and dues increase violated section 101(a)(3)(A), which provides that a local cannot increase dues except by a secret ballot. Count III asserted a violation of section 101(a)(3)(B), which requires that a dues increase considered at a special convention be preceded by thirty days’ notice. The appellants asked the court to enjoin the local from collecting its one-half percent and to require AFM to apportion delegates more closely to the size of the local.

On June 11,1981, Judge Shadur dismissed Counts II and III, but denied the motion to dismiss Count I. Denov v. Chicago Federation of Musicians, Local 10-208, 517 F.Supp. 980 (N.D.I11.1981). The court said that whether the convention representation scheme was “reasonable” under section 101(a)(1) was a question of fact that precluded dismissal. Id. at 985. The court held that success on Count II was precluded by our decision in Ranes v. Office Employees International Union, Local No. 28, 317 F.2d 915 (7th Cir.1963), which held that section 101(a)(3)(A) was inapplicable where the increase in dues payable to the local was attributable to action by the international *1037 with which it was affiliated, as here. 517 F.Supp. at 986. Judge Shadur held that Count III was foreclosed because the convention was regularly scheduled, not special, and hence the section 101(a)(3)(B) notice requirement was inapplicable. Id.

On August 14, 1981, the case was reassigned to Judge Parsons. On August 19, both parties filed motions for summary judgment. On December 31, 1981, the district court granted the appellees’ motion. The court held that section 101(a)(1) “did not set forth the structure of one-man one-vote for delegate voting of dues in an annual convention,” and said that the delegate selection process was reasonable for purposes of the Act. The court entered final judgment in favor of the appellees on April 21, 1982. This appeal followed.

II. JURISDICTION

Before reaching the merits, we must consider the appellees’ claim, rejected by Judge Shadur, that the district court had no jurisdiction to consider the appellants’ challenge to the convention representation system. The appellees contend that the appellants cannot bring an action under Title I of the Act, 29 U.S.C. §§ 411-415, because the claim is essentially one under Title IV, id. §§ 481-483. Because an action under Title IV is the exclusive remedy for a violation that comes within it, id. § 483, and because only the Secretary of Labor may bring a Title IV action, id. § 482, the appellants cannot maintain their action in this case if we hold that the case is predominantly governed by Title IV, see O’Doherty v. Brotherhood of Railway, Airline & Steamship Clerks, 618 F.2d 484, 486 (8th Cir.1980).

The test of whether a case is properly brought under Titles I or IV is whether the issues raised “basically relat[e] ... to eligibility of candidates for office”; if they do, the case “fall[s] squarely within Title IV of the Act and [is] to be resolved by the administrative and judicial procedures set out in that Title.” Calhoon v. Harvey, 379 U.S.

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703 F.2d 1034, 113 L.R.R.M. (BNA) 2134, 1983 U.S. App. LEXIS 29216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sam-denov-and-burl-lane-v-chicago-federation-of-musicians-local-10-208-ca7-1983.