The opinion of the court was delivered by: 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 ...