The opinion of the court was delivered by: SAROKIN
These related matters are before the court on various motions of the parties. These include the motion of Local 145, I.L. G.W.U. ("the Union") for summary judgment, and Fashion Associates' motions to enjoin ongoing arbitration between the parties, to vacate the default judgment in Civil Action No. 83-3738, entered November 28, 1983, to disqualify Union counsel and for reconsideration of the court's order of June 13, 1984 holding Fashion Associates and its President, Jerome Finkelstein, in contempt. Underlying most of these motions, and at the root of this litigation since its inception is but one issue: whether a valid collective bargaining agreement exists between the parties. The Union argues the existence of such an agreement based upon Fashion Associates' failure properly to withdraw from the multi-employer bargaining unit of which it had been a member since 1974, namely the Sportswear Apparel Association ("SAA"). Fashion Associates claims that disputed issues of fact surround such withdrawal and that, in particular, the Union's actions reveal an understanding that no agreement existed between the parties. It contends, inter alia, that until the court determines whether a contract exists, the arbitrator's jurisdiction to resolve the current dispute between the parties is in doubt, and thus, that all arbitration should be stayed pending the court's determination.
In support of its motion for summary judgment on the issue of the existence of a contract, the Union submits two pieces of evidence.
The affidavit of Sol Goldberg, Vice President of the I.L.G.W.U. and Director of the New Jersey Region of the I.L.G.W.U. states
I have caused a review to be made of all files known to the International Ladies' Garment Workers' Union, New Jersey Region, regarding Fashion Associates in order to determine whether the Union ever received a letter from Fashion Associates, Inc., wherein it unequivocally and in writing withdrew from the Sportswear Apparel Association, Inc. at any time prior to the negotiation and settlement of the contract covering the period June 1, 1982, through May 31, 1985, between the I.L.G.W.U. and the Sportswear Apparel Association, Inc.
There is no such letter in any of our files. I have also made inquiry of all known representatives of the Union who have had dealings with Fashion Associates, Inc., as to whether they recall ever receiving or seeing such a letter. None has any such recollection.
Goldberg Aff. paras. 3-5. Also submitted, appended to counsel's affidavit was the sworn testimony of Sidney Reiff, Executive Director of the SAA, stating that on December 22, 1983, he informed Jerome Finkelstein that Fashion Associates were "still members of the Association."
He was going to show that they were not members of the Association. I said show what you want, but we have no letter of resignation. We have never so notified the Union, so you're still a member of the Association.
Testimony of Sidney Reiff (5/9/84) at 36. See also Id. at 37.
Fashion Associates concedes that it gave no written notification of its "resignation" from the SAA. Aff. of Jerome Finkelstein (7/11/84) para. 29. Rather, it contends that, first, the Union abrogated its eight-year-old agreement with Fashion Associates by attempting to "organize all workers at the factory," and thereby, "to eliminate double-breasting," id. paras. 12-13, defined as "the practice of simultaneous Union and non-Union operations." Id. para. 18. Mr. Finkelstein states
In response to their demands, I immediately informed the Union that competitive pressures precluded any possibility that all manufacturing operations at the factory could be unionized but did offer to negotiate a change in our long-standing relationship. The Union's subsequent conduct confirms that the Union also recognized that the prior agreement was nullified.
After March, 1982, when the Union began to assert this position, Fashion Associates "immediately informed Mr. Reiff that we would no longer belong to his Association and that he could not bind our factory to any agreement between the Association and the Union." Thereafter, Fashion Associates ceased paying dues to the SAA. Id. para. 16. Fashion Associates does not claim that such resignation was communicated directly to the Union, but states that "the Union, of course, knew that Fashion Associates, Inc. was not represented or bound by any agreement between the Association and any I.L.G.W.U. local." Id. para. 18. Though stating that "the Union has repeatedly confirmed its understanding that no collective bargaining agreement was in effect," ibid., Fashion Associates points to only two facts in support thereof. First, it states that the Union continued to press for an end to double-breasting, through arbitration, id. paras. 19-22, and organization. Id. para. 20. Second, it notes that, in 1983, the Union failed "to remit vacation pay directly to its members," as it had done ...