Ulene v. La Vida Sportswear Co.

WOOD, P. J.

This is an appeal from an order denying a petition to confirm arbitration awards.

[336]

An employers’ association, whose members were engaged in the business of manufacturing garments, entered into a collective bargaining agreement with two unions which represented employees of garment manufacturing companies. A provision of the agreement was that each employer would pay weekly to a board of trustees, for the benefit of the employees, a certain percentage of the employer’s total weekly wage payments. Such payments were to be credited to two funds—a retirement fund and a welfare fund. The respondent La Vida Sportswear Company (referred to as defendant) was one of the employer-members of the association, and beginning in 1957 it made payments under such provision of the agreement.

The agreement provided that in the event an employer failed to make such a payment, the board of trustees might consider such failure to be a dispute under the agreement and in such event submit the matter for arbitration to Adolph Zalkus, who was designated in the agreement as the permanent arbitrator.

The agreement expired on December 31, 1961. About two months thereafter, John Ulene, one of the trustees, allegedly acting on behalf of the trustees, and asserting that La Vida had failed to make certain payments on account of the two funds, referred the alleged disputes to the arbitrator, who thereupon gave notice to La Vida that at a certain time an arbitration hearing on said disputes would be held at his office. La Vida did not appear at the hearing. After receiving evidence regarding the alleged failure to make payments, the arbitrator determined that La Vida owed $879.19 on account of the retirement fund, and owed $3,858.32 on account of the welfare fund. Notice of such awards was served on La Vida.

Thereafter, John Ulene, as a trustee, allegedly acting on behalf of the trustees, filed a petition in the superior court for confirmation of the awards. The petition included allegations which were in substance the same as the statements hereinabove made regarding the facts. It was also alleged therein that La Vida was engaged in interstate commerce.

In response to the petition, Josephine Martinez filed a declaration stating, among other things, that she was the sole owner of La Vida; that the disputes did not arise prior to December 31, 1961 (the date of the expiration of the collective bargaining agreement) ; that a court order requiring arbitration had not been obtained; and that the La Vida company had been sold through an escrow and that creditors,