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October 17, 1979


The opinion of the court was delivered by: BRIEANT


By complaint filed August 30, 1979, plaintiff Wm. Chalson & Co., Inc. (hereinafter "Chalson"), sought declaratory and injunctive relief against the defendant Amalgamated Jewelry, Diamond & Watchcase Workers Union Local No. 1, I.J.W.U. (AFL-CIO), (hereinafter "the Union") to prevent the conduct of an arbitration, more particularly described below, and to: (1) declare that plaintiff is not a party to or bound by the provisions of a collective bargaining agreement between the Union and Associate Jewelers, Inc., dated as of March 21, 1979, described below, or by any agreement to arbitrate any disputes or grievances with the Union; (2) enjoin the Union permanently from instituting or proceeding further with any arbitration against plaintiff pursuant to the March 21, 1979 agreement; and (3) grant such other, further and different relief as plaintiff may be entitled to receive in this action.

 By motion docketed September 11, 1979, Chalson moved for a preliminary injunction enjoining the Union from proceeding with a Demand for Arbitration against plaintiff, on the ground that there was no contract between plaintiff and defendant requiring arbitration between the parties. By a document entitled as a Notice of "Cross-Motion," docketed September 18, 1979, the Union moved for an order pursuant to 9 U.S.C. § 4 which order would (1) compel plaintiff to proceed to arbitration under a certain collective bargaining agreement as demanded by defendant in its Demand for Arbitration; and (2) dismiss the action; and (3) grant such other and further relief as may be proper.

 At the hearing on these motions held before me on October 4, 1979, no formal transcript was taken. Counsel for both parties, however, although they dispute the inferences to be drawn from the uncontested facts, agreed in open Court that there is no contested issue of fact and no necessity for an evidentiary hearing in this Court. It was also conceded that the arbitration had been demanded to take place on October 24, 1979, and that the American Arbitration Association had declined to adjourn the arbitration, except upon receipt of a court order. Counsel agreed that affidavits submitted by both sides could be considered, and that the motions would be regarded as made for permanent relief in the nature of Summary Judgment, pursuant to Rule 56, F.R.Civ.P.

 It was also conceded at oral argument that the contract under which arbitration was sought is an instrument which was executed and ratified by the Union on April 21, 1979, but dated as of March 21, 1979, the date as of which the new wage scales therein set forth were to be effective. Counsel agree that arbitration is not now being sought under the prior collective bargaining agreement which expired on February 28, 1979, although a superficial examination of the documents submitted might suggest otherwise.

 The Court has subject matter jurisdiction of this action pursuant to 29 U.S.C. § 185, as well as 9 U.S.C. § 4 and 28 U.S.C. § 1331.

 Stated below are undisputed facts. The Union has represented the production employees of the plaintiff as their collective bargaining agent since at least 1935. Plaintiff is a manufacturing jeweler in the fine diamond and precious metal branch of the industry. It has approximately nine employees engaged as full-time and regular part-time polishers, stone setters, jewelers and waxers. Plaintiff's office and clerical employees, professionals, guards and supervisors were never represented by the Union.

 There are in excess of fifty small manufacturers of fine, high quality jewelry, sold to premium retail stores, which are located in the New York City area, and conduct manufacturing operations similar to those of plaintiff. For at least twenty years, these manufacturers engaged with this Union in what the Court for convenience will describe as joint "industry-wide bargaining" through Associate Jewelers, Inc. (hereinafter the "Association"), which in turn acted jointly with a companion group, Jewelry Manufacturers Association, Inc. As a result of this multiemployer collective bargaining between the Association and the Union, a labor contract ("the old contract") came into existence, which regulated the relationships between plaintiff and the Union. The Union gave notice in writing to the Association by letter dated December 11, 1978, of its intention to terminate the old contract as of February 28, 1979, the date on which it expired by its own terms, and to negotiate a new agreement. The Associations urged their members to "lock-out" the rank and file members of the Union effective March 1, 1979. Many did so, and the locked-out union members organized picket lines at the respective premises. Chalson, however, did not actually lock-out its employees at any time. After one or two hours of work lost on March 1st because the employees thought they were locked out, Chalson's business opened, and remains open, employing the same persons as in February.

 Collective bargaining between the two employer Associations and the Union began on March 7, 1979, and negotiating sessions were held on the 9th, 14th, 16th, 20th, 22nd and 28th of March, and on April 5th, 10 and 16th of 1979. On the 16th of April, the settlement was agreed to between the bargaining teams, resulting in a contract which was ratified by the rank and file on April 21st, and as noted above, was dated as of and became effective for purposes of wages and fringe benefits, retroactively to March 21, 1979.

 Prior to March 16, 1979, the negotiations had deteriorated to a point beyond that usually experienced in the skilled trades. The depth and degree of divisiveness existing between the Union and the "bosses" over the terms of the new contract is made clear by reference to Vol. 1, No. 1 of a so-called "Information Bulletin" dated March 13, 1979, issued by the Executive Board of the Union, and distributed to its members. Couched in the rhetoric of forgotten union-management struggles of the 19th century, the Bulletin describes the then current state of the dispute. We reproduce it herewith with its original format:

 Dear Member:

 Some bosses have been telling you half-truths about the mediation and contract negotiations. HERE IS THE REAL TRUTH!

1. The bosses want us to return to the eight-hour day and forty-hour week. WE SAID NO !
2. The bosses want to change jewelers and polishers classifications and reduce their ...

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