the rule to such notice shows it to have been inadequate.
First, the lack of any formal notice is glaring. Fashion Associates contends that the series of events which it alleges comprised an "abrogation" of the parties' prior agreement reveals the Union's subjective understanding that Fashion Associates had withdrawn from the SAA. No other notice is claimed to have been given and the court cannot but conclude that no other notice occurred. In the absence of any legal authority for the proposition that the Union's subjective understanding of whether a contract existed affects the notice required,
or that Union abrogation may constitute employer withdrawal,
Fashion Associates' argument must fail. The uncontroverted facts demonstrate that Fashion Associates simply did not withdraw from the SAA in the manner required by law, in that the Union was not on notice of such withdrawal.
Moreover, the facts set forth by Fashion Associates bolster the conclusion that the notice given was inadequate. It is clear that the abrogation alleged was based upon the Union's attempts to end "double breasting" by organizing certain nonunion employees of Fashion Associates. Though Fashion Associates contends that this was in breach of the parties' agreement, the provision of the collective bargaining agreement allegedly breached is nowhere indicated; nor does the court believe that the union would ever have impliedly agreed to abandon all organizational efforts. In any event, the Union's efforts were, by definition, directed at employees not governed by the agreement then in effect. Indeed, far from repudiating its agreement with Fashion Associates, the Union's actions indicated an attempt to expand that relationship. Even if this behavior broke some unwritten rule governing the parties, it is difficult to understand how defendant's resistance to it would constitute notice of withdrawal from the agreement between it and those employees already unionized. Actual notice was required in a "timely, adequate and unequivocal" fashion. It did not occur.
Finally, to the extent that Fashion Associates' putative withdrawal from the SAA occurred in connection with negotiations regarding the renewal of the existing collective bargaining agreement in early 1982,
see Finkelstein Aff. (7/11/84) paras. 12-14, even written notice would not have been adequate. Rather, at that point, either "mutual consent" or "unusual circumstances" would have been required for Fashion Associates to withdraw. Neither is claimed by Fashion Associates, or established by the facts averred. Indeed, the Union's lack of consent is apparent from its numerous subsequent efforts to enforce the agreement as against Fashion Associates. See, e.g., Id. para. 19.
And, as even an impasse, followed by a strike or an interim agreement with an individual employer, do not comprise the "unusual circumstances" justifying unilateral withdrawal subsequent to the commencement of negotiations, Bonanno, supra, 454 U.S. at 412-17, 102 S. Ct. at 725-27, it is difficult to accept that a threat to organize, apparently set forth in the context of a renegotiation of the parties' relationship, can constitute unusual circumstances. Indeed, such is the content of any renegotiation.
The NLRB rule promulgated in Retail Associates, Inc. and adopted by the courts has a salutary effect which Fashion Associates here attempts to undermine. The rule recognizes that "multiemployer bargaining has continued to be the preferred bargaining mechanism in many industries," Bonanno, supra, 454 U.S. at 410, 102 S. Ct. at 724, and "a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining." N.L.R.B. v. Truck Drivers Local Union No. 449, 353 U.S. 87, 95, 77 S. Ct. 643, 647, 1 L. Ed. 2d 676 (1957).
It neither forces employers into multiemployer units nor erects barriers to withdrawal prior to bargaining. At the same time, it [seeks] to further the utility of multiemployer bargaining as an instrument of labor peace by limiting the circumstances under which any party may unilaterally withdraw.
Bonanno, supra, 454 U.S. at 412, 102 S. Ct. at 725. In general, the rule reflects "an increasing emphasis on the stability of multiemployer units." Id. at 410, 102 S. Ct. at 724. It is this stability, as well as the fairness provided by adequate notice, which is at stake in a case such as this: parties ought not be able to withdraw from multiemployer bargaining situations in a manner disadvantageous to one party, either by virtue of poor timing or inadequate notice. Moreover, to adopt Fashion Associates' suggestion that the adequacy of the notice given turns on a party's subjective evaluation thereof would be to negate the advantages of clarity and administrability inherent in such rule. Whether actual notice, written or otherwise, has been given is a relatively simple and straightforward matter; assessing the parties' respective beliefs engenders a far more problematic inquiry. Cf., Ruefenacht v. O'Halloran, 737 F.2d 320, 332-33 (3d Cir.1984) ("uncertainty of application" "benefits neither the parties nor the court . . ."). Nor, finally, should a court lightly disregard a rule set forth by an administrative agency such as the NLRB, which as the Bonanno Court observed with respect to this particular rule, "evolved and [is] still evolving, as the Board, employing its expertise in light of experience, has sought to balance the 'conflicting legitimate interests' in pursuit of the 'national policy of promoting labor peace through strengthened collective bargaining.'" 454 U.S. at 413, 102 S. Ct. at 725, quoting N.L.R.B. v. Truck Drivers, supra, 353 U.S. at 95, 96, 77 S. Ct. at 647.
For all of the above reasons, the court finds that Fashion Associates did not give the required notice to the Union that it was withdrawing from the SAA and thus, is bound by the collective bargaining agreement between the Union and the SAA which went into effect on June 1, 1982. The consequences of this finding are as follows:
First, the Union's motion for partial summary judgment will be granted.
Second, the matter will, under the applicable provisions of the collective bargaining agreement, be referred to arbitration, and Civil Action No. 84-1449 will be stayed pending the arbitrator's adjudication of this matter.
See, e.g., Bechtel Corp. v. Local 215, Laborers' International Union, 544 F.2d 1207, 1215 (3d Cir.1976) (stay of action pending arbitration appropriate because within trial court's discretionary power, and where arbitration may obviate the need for trial). Hence, Fashion Associates' renewed motion to enjoin arbitration on the basis of the existence of a contract is denied.
Third, because Fashion Associates did not properly withdraw from the SAA, it remained bound by the Association's decisions. See, e.g., N.L.R.B. v. Teamsters Union Local No. 378, 672 F.2d 741, 744 (9th Cir.1982) (agreement to participate in multiemployer bargaining "is an expression of the degree to which an employer is bound by the contracts negotiated by the unit"). One of these decisions was to utilize Marshall Rosenberg as arbitrator, a choice made despite Mr. Rosenberg's known past affiliation with the International Ladies' Garment Workers' Union, as a partner in a law firm which had represented various I.L.G.W.U. locals. Cert. of Bennet D. Zurofsky (6/11/84), Exh. A. at 255-32; Aff. of Sidney Reiff (6/22/84) para. 9.
Indeed, Mr. Rosenberg was not only reappointed to his position as arbitrator in the 1982 agreement here under dispute, Reiff Aff. para. 10, but had also been appointed in 1978, and reappointed in 1979, years as to which there is no dispute regarding Fashion Associates' membership in the SAA. Id. paras. 8-9. See also Aff. of Jerome Finkelstein (6/11/84) paras. 6, 7, 11; Finkelstein Aff. (4/11/84) para. 5. Each of these appointments occurred despite the knowledge of SAA officers of Mr. Rosenberg's past affiliations. Reiff Aff. paras. 8-10. Indeed, the current Executive Director of the SAA states not only that he has "always found Marshall Rosenberg to be scrupulously fair and impartial, and that he makes his decisions and fashions his awards with faithfulness to the governing collective bargaining agreement," but also claims that Mr. Rosenberg's past experience makes him a better, more efficient and more knowledgeable arbitrator in what is "a unique and very complex industry." Id. para. 11. See also Certif. of Bennet D. Zurofsky (6/11/84), Exh. E (list of multiemployer collective bargaining agreements, etc., for which Marshall Rosenberg serves as arbitrator).
Hence, the decision of the SAA to utilize Mr. Rosenberg's services, was made with the Association's full knowledge of the advantages and disadvantages of such appointment. It is a decision thus in accord with the notice requirement of Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 149, 89 S. Ct. 337, 339, 21 L. Ed. 2d 301 (1968), and one to which Fashion Associates, as an SAA member, was bound. See, e.g., Garfield & Co. v. Wiest, 432 F.2d 849 (2d Cir.1970), cert. denied, 401 U.S. 940, 91 S. Ct. 939, 28 L. Ed. 2d 220 (197); Merritt-Chapman & Scott Corp. v. Penn. Turnpike Comm., 261 F. Supp. 1, 7-8 (M.D.Pa.1966), aff'd, 387 F.2d 768 (3d Cir. 1967). Therefore, Fashion Associates' motions to vacate the underlying default judgment,
and to enjoin arbitration on the basis of Mr. Rosenberg's bias, are each denied, and the Union's motion for partial summary judgment as to Mr. Rosenberg's bias is rendered moot.
There remain two minor matters requiring the court's attention. First, Fashion Associates has moved to disqualify the Union's counsel from further participation in these lawsuits. This motion is based upon Fashion Associates' allegation that counsel is in a position where they will be required to act as witnesses herein. In particular, Fashion Associates contends that counsel will have to testify as to the origin of an April 25, 1984 letter modifying the collective bargaining agreement between the Union and the SAA, in order to add a clause inadvertently omitted previously; it is Fashion Associates' position that such letter resulted from the work of Union counsel. Additionally, Fashion Associates claims that Union counsel will have to testify as to their prior knowledge of Mr. Rosenberg's bias, as well as to certain alleged ex parte communications with Rosenberg. Finally, Fashion Associates points to factual averments made by Union counsel in affidavits, and argues that these statements warrant disqualification. See Finkelstein Aff. (5/29/84) para. 41.
Each of these contentions is utterly lacking in merit. First, the court has already addressed the April 25, 1984 modification of the collective bargaining agreement, holding that the Union was correct "that there is overwhelming evidence that [the] reporting requirements [contained in such modification], which had existed in the prior collective bargaining agreement from which the parties were working at the time the Consent Order was entered into, and which are implied by other express sections of the Collective Bargaining Agreement, were clearly contemplated by the language of the Order." Local 145, International Ladies' Garment Workers' Union v. Fashion Associates, Inc., Civil Action No. 83-3738, unpub. op. at 4-5 (D.N.J. June 13, 1984) (" Opinion "). Counsel's representations concerning this modification, including that regarding the parties' understanding of what was being agreed to with respect to the Consent Order entered March 13, 1984, Zurofsky Certif. (6/4/84) paras. 4-6,
is thus no longer at issue in this litigation. It may, of course, be at issue in the arbitration, but in that event, it should be raised there, and decided by the arbitrator to whom this matter has been referred.
Second, counsel's knowledge of Mr. Rosenberg's bias also does not warrant the disqualification of counsel, as the court has already ruled that such bias, even if it exists, is rendered irrelevant by the SAA's choice of Mr. Rosenberg, a choice to which Fashion Associates is bound. See supra at 83-84. Nor, as the court has noted, does the ex parte contact between the Union and Rosenberg, caused by Fashion Associates having sued both, give rise to any reason for disqualification under the disciplinary rules.
Finally, while Fashion Associates is correct that the affidavits of counsel are not always the optimal way to establish facts, the court does not find the affidavits of Mr. Zurofsky to have gone beyond the permissible scope of DR 5-101(B)(2), which allows such affidavits to "relate solely to a matter of formality [as to which] there is no reason to believe that substantial evidence will be offered in opposition. . . ."
It is true that the papers of both sides have been vitriolic and combative in tone, and, indeed, the court would prefer that this litigation be characterized throughout by greater moderation and congeniality. However, the argumentative nature of counsel's affidavits, while not deserving of approbation, also does not warrant disqualification, especially in light of the hardship that would thus be worked upon the Union, which has apparently been represented by the same firm for fifty years, and throughout this litigation throughout. See DR 5-102(A), citing DR 5-101(B)(4). Nor is there any evidence that Union counsel will testify contrary to the interests of their client, DR 5-102(B); in this situation the rule ought not be allowed "to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel." Kroungold v. Triester, 521 F.2d 763, 766 (3d Cir.1975), quoting DR 5-102(B), fn. 31. Fashion Associates' motion to disqualify counsel is denied.
Finally, Fashion Associates' motion for reconsideration of the court's Opinion and Order of June 13, 1984 is also denied. Such motion is based primarily upon two grounds. First, Fashion Associates argues that because the Consent Order found to have been violated constituted a settlement, and because the Union breached that agreement by bringing Fashion Associates to arbitration rather than bargaining in good faith, Fashion Associates should have been excused from performance of such settlement. This position demonstrates an arrogant disregard for the fact that, as the court stated, "violation of a consent order, such as the one at issue, is no less subject to contempt than that of an order not arrived at by consent." Opinion at 7, citing Interdynamics, Inc. v. Firma Wolf, 653 F.2d 93, 97 (3d Cir.), cert. denied, 454 U.S. 1092, 102 S. Ct. 658, 70 L. Ed. 2d 631 (1981). Moreover, the notion that it is the Union, rather than Fashion Associates, that has been acting in bad faith is belied by the facts of this case: not only has Fashion Associates defaulted twice and been found in contempt once, but it was given an opportunity to bargain with the Union prior to the Union's invocation of the contractual right to arbitration. See Finkelstein Aff. (5/29/84), Exh. B. Fashion Associates was bound by the Consent Order filed March 13, 1984 until that Order was vacated or modified. See Opinion at 7. It could thus be held in contempt, as it was for failure to comply with the terms of the Order.
Second, Fashion Associates now claims that the court's finding that the Union had not been granted access to a single record of Fashion Associates was in error, and claims that such records were in fact turned over. Finkelstein Aff. (6/25/84) para. 6. This is the first time such claim is made. See Opinion at 5. However, in any event, the court based its contempt finding on Fashion Associates' failure to comply with the Order in other respects as well -- for example, for failure to submit certain other records clearly contemplated by the Order. See Opinion at 8. That finding was entirely appropriate in light of the evidence then adduced, evidence which continues to persuade the court of Fashion Associates' contumacious disregard of its Order. The motion for reconsideration is denied.
The Union should submit an order in conformity with this Opinion.