Caibao Meat Products, Inc., 02-CA-236943

National Labor Relations Board - Board Decisions

Mar 6, 2007

349 N.L.R.B. 471 (N.L.R.B. 2007)

CIBAO MEAT PRODUCTS
349 NLRB No. 47
471
Cibao Meat Products, Inc. and Local 169, UNITE-
HERE, AFL–CIO. Case 2–CA–36943
March 6, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On September 25, 2006, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
General Counsel, the Respondent, and the Charging Party
each filed exceptions and supporting briefs. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings,1 findings,2 and conclusions (as
amended below), to amend the remedy,3 and to adopt the
recommended Order.

1 The Respondent has excepted to certain of the judge’s evidentiary
rulings. Specifically, the judge allowed the General Counsel to intro-
duce into evidence the minutes of the September 30, 2004 meeting of
the UNITE Washable Clothing, Sportswear and Allied Industries Fund
Board of Trustees and two related Resolution and Merger Agreements.
The Respondent argues that the judge erred in admitting these docu-
ments because they should have been produced before the hearing
pursuant to a subpoena it served on the Charging Party. We find no
merit in the Respondent’s exception. “[T]he Board affirms an eviden-
tiary ruling of an administrative law judge unless that ruling constitutes
an abuse of discretion.” Aladdin Gaming, LLC, 345 NLRB 585, 588–
589 (2005). Here, there was no abuse of discretion in allowing the
General Counsel to introduce relevant documents even assuming, ar-
guendo, that the Charging Party improperly failed to produce them.
Moreover, the Respondent did not request additional time or other
relief when the documents were introduced at the hearing. For all these
reasons, the Respondent has failed to show that the judge’s ruling re-
sulted in prejudice or a denial of due process.
2 The Respondent has also excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We adopt the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by failing to make payments to the UNITE
Washable Clothing, Sportswear and Allied Industries Funds and their
successors, UNITE National Insurance Fund and UNITE National
Retirement Fund, for its employees’ coverage after March 1, 2005. The
judge also found that the parties reached a lawful impasse in bargaining
on February 10, 2006, and thus limited the remedy period to that date.
The General Counsel has excepted to the judge’s finding and argues
that the issue of whether the parties ever reached a good-faith impasse,
and the amount of contributions owed, should be resolved in a compli-
ance proceeding. We find merit in the General Counsel’s exception. At
the hearing, the judge received some limited evidence regarding a pos-
sible impasse, and then specifically stated that she was not trying an
impasse case, effectively precluding further evidence on the issue. We
therefore do not pass on the judge’s finding of impasse and find that
any such determination is best left to compliance proceedings. See
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5) and
(1) by failing, since March 1, 2005, to make contributions
to the UNITE Washable Clothing, Sportswear and Allied
Industries Funds and their successors, UNITE National
Insurance Fund and UNITE National Retirement Fund, as
required by the parties’ March 15, 2001 to February 28,
2005 collective-bargaining agreement, we shall order the
Respondent to make all required contributions that have
not been made since March 1, 2005, including any addi-
tional amounts due to the funds in accordance with Mer-
ryweather Optical Co., 240 NLRB 1213, 1216 (1979).4
We shall also order the Respondent to reimburse unit em-
ployees for any expenses resulting from its failure to make
such required payments or contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981). Such amounts are to be
computed in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Cibao Meat Products, Inc., Bronx,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Rhonda Gottlieb, Esq., for the General Counsel.
Irene Donna Thomas, Esq. (Thomas & Associates), of Brooklyn,
New York, for the Respondent.
Stuart Lichten, Esq. (Schwartz, Lichten & Bright, P.C.), of New
York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This case
was heard in New York, New York, on June 5, 2006. The Com-
plaint alleges that Respondent, in violation of Section 8 (a) (1)
and (5) of the Act, has unilaterally ceased making payments to

Springfield Transit Management, Inc., 281 NLRB 72 fn. 3 (1986).
Accordingly, we have amended the remedy (and, correspondingly, par.
2 of the judge’s Conclusions of Law) to remove the time limit imposed
by the judge.
4 To the extent that an employee has made personal contributions to
a fund that were accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
the Union’s pension and health and welfare plans. The Respon-
dent denies that it has engaged in any violation of the Act and it
asserts that Section 302 of the Taft-Hartley Act prohibits the
payments.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the parties on August 18, 2006, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of business
in the Bronx, New York, is engaged in the processing and non-
retail sale of meat and related products. Annually, Respondent
sells and ships from its Bronx, New York, facility goods valued
in excess of $50,000 directly to points outside the State of New
York. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act and that Local 169, UNITE-HERE, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The parties agree that the following employees of Respondent
constitute an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act:
All full-time and regular part-time production employees,
mechanics and drivers, employed by the Employer at and
out of its facility located at 630 St. Ann’s Avenue, Bronx,
New York. Excluded are all other employees including of-
fice clerical employees, sales persons, confidential employ-
ees and guards, professional employees, and supervisors as
defined by the Act.
The Respondent and the Union were parties to a collective-
bargaining agreement with a term from March 15, 2001 to Feb-
ruary 28, 2005. Articles 18 and 19 of the agreement, respec-
tively, required Respondent to make monthly contributions to the
Amalgamated Washable Clothing, Sportswear & Allied Indus-
tries Fund Pension Plan and to the Health and Welfare Plan.
(hereafter the Washable Fund) Respondent admits that since
March 9, 2005 it has failed to make payments to either of these
plans or these plans’ successors. The last payments covered the
period ending February 28, 2005.
It is undisputed that on June 15, 2003 the name of the Wash-
able Fund was changed to UNITE Washable Clothing, Sports-
wear and Allied Industries Fund. (hereafter the UNITE Wash-
able Fund) Respondent continued to make its monthly contribu-
tions to the UNITE Washable Fund after the name change. On
April 1, 2005 the UNITE Washable Fund merged with the
UNITE National Insurance Fund and the UNITE National Re-
tirement Fund, however the UNITE Washable Fund continued to
maintain an independent existence until a date not specified in the
record.
B. Relevant Documentary Evidence
The relevant language of the collective-bargaining agreement
is as follows:
Article 18. Pension Benefits
18.1 The Employer shall be a contributing employer to the
Amalgamated Washable Clothing, Sportswear & Allied In-
dustries Fund – The Pension Plan of Local 169; the Em-
ployer shall receive copies of the current trust agreement
and any amendments as adopted. Employees shall receive
benefits of the Pension Plan of the Amalgamated Washable
Clothing, Sportswear and Allied Industries Fund as de-
scribed in the Summary Plan Description of the Pension
Plan of Local 169 and/or as established by the Trustees.
The Employer shall contribute twenty dollars ($20.00) per
month per each non-probationary employee to the Pension
Plan
The Employer shall, at the request of the Union, allow the
Union or its representative to examine and copy the Em-
ployer’s payroll records of bargaining unit employees as to
insure compliance with this section of the Agreement.
Article 19. Insurance Benefits
19.1 The Employer shall be a contributing employer to the
Amalgamated Washable Clothing, Sportswear & Allied In-
dustries Fund – Health and Welfare Plan; the Employer
shall receive copies of the current trust agreement and any
amendments as adopted. All full-time employees with the
years of service as defined in Section 19.2 and 19.3 . . . shall
. . . receive all the benefits as described in the Amalgamated
Washable Clothing, Sportswear and Allied Industries
Fund’s Summary Plan Description of the Health and Wel-
fare Plan and/or established by the Trustees. . . . (sic)
19.2 All full time employees who have been employed for
one year shall receive individual health insurance coverage.
The Employer shall contribute one hundred and seventy dol-
lars ($170.00) per month for each employee to the Fund.
19.3 All eligible full time employees who have been em-
ployed for two years shall receive the family health insur-
ance coverage. The Employer shall contribute two hundred
dollars ($200.00) per month for each eligible employee to
the Fund.
19.4 The Employer shall, at the request of the Union, allow
the Union or its representative to examine and copy the Em-
ployer’s payroll records of employees as to insure compli-
ance with this section of the Agreement.
The Washable Pension Plan and the Health and Welfare Plan
were governed by a single document entitled Amalgamated
Washable Clothing, Sportswear and Allied Industries Fund
Agreement and Declaration of Trust as amended January 1, 2000.
The relevant portions of this document are as follows:
The Trustees
4. B . . . The Trustees shall have the right at any time and
from time to time to modify, change, amend or terminate to
any extent any or all of the terms and provisions of the Plan
. . . .
The Declaration of Trust was amended on June 15, 2003 to
change the name of the Fund to The UNITE Washable Clothing,
Sportswear and Allied Industries Fund. The 2003 Declaration
CIBAO MEAT PRODUCTS 473
retained the language of 4B quoted above concerning the powers
of the trustees to modify, change, amend or terminate to any
extent the provisions of the plan.
At a meeting of the UNITE Washable Fund trustees held on
September 30, 2004 the trustees discussed a proposed merger
with the UNITE National Insurance Fund and the UNITE Na-
tional Retirement Fund.1 The trustees discussed actuarial reports
showing that if the Washable Fund did not merge with the Na-
tional Fund the existing employer contribution rates would not be
sufficient to maintain the level of benefits. However, the pro-
posed merger would protect the current level of benefits to em-
ployees and would protect fund assets against market fluctuations
and provide cheaper administrative costs. The trustees then re-
solved to accept the merger offer of the UNITE National Insur-
ance Fund and the UNITE National Retirement Fund with the
UNITE Washable Fund.
On March 30, 2005 the trustees of the UNITE Washable Fund
and the UNITE National Fund entered into a merger agreement.
The resolution of the trustees provides that the merger would
become effective as soon as various required governmental ap-
provals were obtained.
On June 7, 2005 the administrator for the UNITE National
Fund sent a letter to Respondent stating that the Washable Fund
and the UNITE National Fund had merged effective April 1,
2005 and providing a new address for the remittance of employer
contributions of health and pension benefits.
C. The Facts
Lutzi Vieluf Isidor is the acting president of Respondent. Isi-
dor oversees the day-to-day operations of the business. She is
responsible for maintaining the payroll records and other records
of the company. In addition, during the time that Respondent
was contributing to the Washable and UNITE Funds, Isidor
mailed the monthly checks and employee information sheets to
the Funds. Isidor testified that in September 2004 the Union sent
an auditor to examine the company’s books. Before the auditor
came to the premises he had asked for certain records which
Isidor believed did not pertain to payroll. Isidor testified that she
provided the auditor with payroll records only. While the auditor
was at the company he told Isidor that the figures for employee
Andre Pulmario did not make any sense and thought that Pul-
mario was not getting the correct amount of pay. Isidor believed
that the pay formula for the employee was correct and she so
informed the auditor.
In December 2004 a trustee of the UNITE Funds filed a com-
plaint against Cibao in the United States District Court, Southern
District of New York, alleging, inter alia, that “The Employer
refused to provide all payroll documents, including weekly pay-
roll reports, quarterly tax filings, and year-end reports.”2 The
company’s answer in that proceeding admitted that the company
did not provide quarterly payroll tax reports and year end reports
to the auditor. The Union discontinued the proceeding with
prejudice on August 1, 2005.

1 The trustees heard a report from the Washable Fund’s accountants
about delays in gaining access to payroll data for an ongoing audit
program.
2 William Towne v. Cibao Meat Products, Inc., 04 CV 9916.
Isidor testified that after the auditor requested records she
thought did not pertain to benefit fund payments she “decided
there was something else there.” Isidor did not want the union
auditors to have anything to do with Cibao because “it should be
employee records that they ask for and nothing else.” Isidor
testified that this was the reason the company wanted to discon-
tinue the health and welfare payments to the Union funds.3
Alejandro Fuentes is the assistant manager and a business
agent for Local 169, UNITE. He is the chief negotiator for the
unit of Cibao employees. Fuentes recalled that he began negotia-
tions with Cibao for a successor collective-bargaining agreement
in January 2005. Heinz Vieluf, the owner and president of Ci-
bao, conducted the negotiations on behalf of Respondent.4
Fuentes testified that at the conclusion of an early bargaining
session he asked Vieluf to extend the contract beyond its expira-
tion date. Vieluf replied that Fuentes should put his proposal in
writing. Before Fuentes could send such a written proposal to
Vieluf he received a letter dated February 15, 2005 from Vieluf.
The letter stated:
On Friday, February 11, 2005, we met … for contract nego-
tiations. After the meeting, you asked if Cibao would be in-
terested in extending the contract until the parties reached
agreement on a new contract. . . . .
Be advised that after careful consideration, Cibao will not
agree to extend the current agreement past February 28,
2005.
Fuentes did not recall that Respondent ever proposed to dis-
continue payments to the health and welfare and pension funds as
of the expiration date of the collective-bargaining agreement.
Heinz Vieluf testified that in January 2005 the Union gave Re-
spondent its demands in the negotiations. Vieluf testified that
Respondent’s attorney said that the company wanted to stop
paying the employee benefit funds when the contract terminated
because it was looking at other plans. At a negotiation session on
February 11, 2005, according to Vieluf, Respondent gave the
Union a counterproposal and stated that the company was plan-
ning its own insurance benefit for the employees. The company
said it would discontinue the fund benefits at the end of the con-
tract term. At the end of the February meeting Fuentes asked
whether Vieluf would extend the contract. Vieluf asked for a
proposal in writing for the next meeting. A few days later Vieluf
sent Fuentes the February 15 letter quoted above stating that the
contract would be terminated.
The Union and Respondent continued their negotiations
throughout 2005 and until mid- February 2006. The correspon-

3 Respondent’s Brief quotes from and attaches a “Declaration” sub-
mitted by Isidor in the district court proceeding. This document was
not offered during the instant proceeding. Isidor was called by Re-
spondent and she testified at the hearing. No reason has been shown
why the declaration was not offered at that time. Had it been offered
and admitted General Counsel would have had an opportunity to cross-
examine Isidor on its contents. Respondent’s contention that the
document was incorporated by reference into an exhibit in the record is
without merit. I shall not rely upon Isidor’s declaration attached to
Respondent’s Brief.
4 At the time of the instant hearing Vieluf was no longer president of
the company but he was still an owner.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD474
dence introduced into evidence by Respondent shows that on
February 3, 2006 Respondent asserted in writing that the negotia-
tions had reached an impasse.5 The Union disputed this assertion
in a letter dated February 7, 2006. In this letter the Union asked
for clarification of the employer’s wage proposal and stated its
wish to discuss the company’s severance proposal. The Union
quoted Respondent’s February 3 letter to the effect that Respon-
dent “would seriously consider the union’s health and welfare
plan so long as the officers/trustees of the health and welfare plan
become signatories to the collective bargaining agreement.” (em-
phasis in original) The Union stated a belief that this condition
requested by the company was beyond the Union’s control. The
Union agreed to changes proposed by the company concerning
various articles in the existing contract relating to seniority, per-
missive leaves and sick leave. The Union’s letter stated a desire
to explore the company’s proposal on severance pay and it closed
with a request to meet at an early date to discuss the parties’ “dif-
ferences” further.
Counsel for the Respondent replied by letter of February 8,
2006 clarifying its wage proposal, reaffirming its position on
health insurance and expressing frustration that no agreement had
been reached on severance pay. The letter requested that the
Union provide a list of “differences” regarding severance pay.
Counsel’s letter closed by stating that in the absence of new pro-
posals from the Union it would consider as a “final offer” its
written proposals of January 30 as clarified on February 3 and
modified on February 8. Counsel stated that if she did not have a
response by the next day the company would assume that the
Union had no further proposals and “we will then make plans to
implement our final offer.”
The Union replied on February 9, 2006 listing various “differ-
ences.” With respect to the union security clause of the existing
contract the Union now proposed an agency fee shop and it pro-
posed a change to the time period stated in the union security
clause. The Union continued its proposal to continue the current
pension plan but stated that it was willing to consider a different
plan. The letter discussed what the Union believed to be Re-
spondent’s misapprehension about the current pension plan. The
Union asked for more information about the company’s proposal
for a severance plan, including questions about the organization
of the plan, about what kinds of accounts would be established
and their tax consequences and the costs of administration. The
Union pointed out that it could not respond to the company’s
proposal that it “will provide health insurance.” The Union asked
for details about what kind of health insurance would be pro-
vided, what the carrier and administrator would be and what
benefits would be provided. The Union asked for a summary of
the suggested insurance plan. The Union agreed to abandon its
request for a cash raise and agreed to the employer’s proposal for
percentage increases; the Union proposed annual 4% increases.
The Union asked for an updated version of the company’s latest
offer and stated its belief that the parties were not at impasse.
Finally, the Union requested further bargaining sessions.
Counsel for Respondent replied by letter of February 10 reject-
ing the Union’s proposal for an agency shop and stating that it

5 The February 3 letter was not offered into evidence but it is quoted
in the February 7 letter which is in evidence.
would not agree to any proposal requiring employees to pay any
sums to the Union. The letter went on to state that “Cibao is not
interested in contributing to [the pension plan] where the trustees
would have access to our books and records.” The letter an-
swered some questions about the proposed severance plan and
stated that with respect to health insurance the company had
already provided a summary plan description to the Union in
April 2005. The letter rejected the Union’s demand for a 4%
wage increase and stated that on February 2, 2006 the company
had set a limit of 3.5%. The letter stated that the Union has “not
made a single contract proposal that would serve as an incentive
to increase wages by 4% to all employees, including those em-
ployees who have received a raise in the minimum wage. We
reject the offer.” Respondent’s letter closed by stating that the
Union had not shown that “the parties are not at impasse.”
The Union did not respond to this letter and did not request a
meeting after receipt of the letter. As far as the instant record
shows, there were no further exchanges of proposals and no more
negotiations between the parties. No collective-bargaining
agreement was reached. Respondent has not implemented its
“final offer”.
D. Discussion and Conclusions
The Respondent does not maintain that as a general rule an
employer is privileged unilaterally to cease making payments to
health and pension funds after the expiration date of the contract.
Respondent does not argue that the language of the collective-
bargaining agreement waives the continuance of payments to the
funds. Nor does Respondent urge that the Union consented to the
unilateral change during the negotiations. Respondent’s opening
statement took the position that the Respondent could lawfully
declare impasse in February 2005. Further, Respondent’s Brief
urges that the company “faced exigencies, based upon an unlaw-
ful abuse of authority by the Funds, that allowed implementation
of changes to the CBA before the parties reached an overall im-
passe on the entire collective-bargaining agreement.”
Fuentes did not recall any company proposal to discontinue
payments to the employee benefit funds as of the expiration of
the contract. I note that Fuentes did not testify that the Respon-
dent’s representatives had not made any such proposals. Based
on the uncontradicted testimony of Vieluf I find that in January
2005 Respondent’s attorney informed the Union that the com-
pany wanted to stop paying the funds and in February 2005 the
company said it would discontinue the fund benefits at the end of
the contract term. There is no testimony that Respondent during
the year of negotiations that followed February 2005 ever in-
formed the Union that it had ceased making the payments. None
of the correspondence introduced into evidence contains any
statement by Respondent that it had ceased making the benefit
fund payments. There is no evidence in the record that Respon-
dent made any other changes in its employees’ terms and condi-
tions of employment.
The testimony of Isidor shows that she became upset when the
Union auditor questioned whether a unit employee was being
paid properly. She refused to permit the Union auditor to see the
quarterly and yearly employee tax filings. Isidor did not believe
it was the function of the Union auditor to determine whether the
employees’ pay was being calculated correctly. In fact, the Brief
CIBAO MEAT PRODUCTS 475
filed by Counsel for Respondent makes clear that Isidor feared
that the auditor would inform the Union if he found hourly wage
violations.6 Isidor testified that because the auditor asked for
records that would have permitted him to ascertain whether em-
ployees were being paid correctly the Respondent no longer
wished to make health and pension payments to Union funds.
Finally, during the negotiations Counsel for Respondent in-
formed the Union that the company did not want to contribute to
a fund “where the trustees would have access to our books and
records.”
It is well-established that an employer may not make unilateral
changes in matters which are mandatory subjects of bargaining.
NLRB v. Katz, 369 U.S. 736 (1962). An employer may not im-
pose unilateral alterations in benefits and benefit plans at the
expiration of a contract absent the existence of a good faith im-
passe. Taft Broadcasting Co., 163 NLRB 475 (1967).
There is no evidence in the record that the parties had reached
impasse in February 2005 after the first two bargaining sessions.
The facts set forth above show that negotiations had just begun
and the parties had merely exchanged initial proposals. Indeed, it
was only on February 3, 2006 that Respondent began mentioning
a possible impasse in the negotiations. Thus, I reject the position
voiced in the opening statement of Counsel for Respondent that
the Respondent could lawfully declare impasse in February 2005.
Nor can it be said that the Union waived bargaining over the
cessation of health insurance and pension fund payments. The
Board has clearly set forth the applicable law in Intermountain
Rural Electric Assn., 305 NLRB 783, 786 (1991):
. . . In a nonnegotiation setting, it is incumbent upon a un-
ion to request bargaining when it receives sufficient notice
to permit meaningful bargaining over an employer’s pro-
posal to change terms or conditions of employment. . . .
When parties are engaged in negotiations for a collective-
bargaining agreement, however, their obligations are some-
what different. Because the parties are in fact bargaining on
various proposals, there is no need for additional requests
for bargaining on those proposals. During negotiations, a
union must clearly intend, express, and manifest a conscious
relinquishment of its right to bargain before it will be
deemed to have waived its bargaining rights. Absent such
manifestation by the union, an employer must not only give
notice and an opportunity to bargain, but also must refrain
from implementation unless and until impasse is reached on
negotiations as a whole. (footnotes omitted)
The Board’s discussion stated an exception to this rule based
on “an economic ‘business emergency’ that requires prompt
action” citing Winn-Dixie Stores, 243 NLRB 972 at 974 and fn. 9
(1979). Respondent herein does not cite an economic business
emergency. Respondent cites only the Union auditor’s wish to
see quarterly and year end employee tax filings and the fear that
the auditor would report to the Union if he found improper wage
payments to unit employees. An auditor’s request to see docu-
ments relating to wages paid to employees is not an emergency

6 Respondent has not made any legal argument to show why such an
action on the part of the auditor would have been improper.
privileging an employer to cease making payments to health and
pension funds.
Respondent’s argument that the auditor’s request was “ille-
gitimate” because the purpose was to advance union goals or to
acquire information for union goals is a misreading of the case
relied on by Respondent. In Central States v. Central Transport,
Inc., 472 U.S. 559, 571, fn. 12 (1985), the Supreme Court noted
that an audit request would be illegitimate if it were “to acquire
information about the employers to advance union goals.” The
meaning of this is clear. In the cited case the employer feared
that the auditors would gain information about employees who
were not covered by the pension plan and that the union would
use the information to organize non-unit employees. The “union
goals” referred to by the Court were organizational goals as op-
posed to representational goals related to unit employees. In the
instant case the auditor did not seek information relating to
non-unit employees and the only goals which could have been
furthered by his inquiries relate directly to the wages of unit
employees. Respondent equates its failure to continue pay-
ments to the employee benefit funds with a necessity to avoid
“unlawful abuse” of its books and records. Respondent’s Brief
makes clear that the potential “abuse” consisted of the auditor’s
possible notification to the Union that the unit employees were
not being paid their proper wages. Such a notification would
not have been an abuse. Indeed, it is hard to think of a more
proper function for a union than insuring that unit employees
are being paid their proper wages. Respondent’s argument on
this issue is without merit.
Respondent also asserts that the parties reached impasse in
February 2006. Since the company ceased making payments to
the funds after February 2005 this argument goes to the remedy
to be ordered herein.
The Board has commented that Taft Broadcasting, supra,
“sets forth the standards for determining whether parties have
exhausted the prospects of concluding an agreement and a bar-
gaining impasse exists. Factors such as the parties’ bargaining
history, their good faith, the length of time spent in negotia-
tions, the importance of the issues about which the parties dis-
agree, and the parties’ contemporaneous understanding of the
status of negotiations are all relevant parts of the analysis.”
Intermountain Rural Electric Assn., supra at 788.
The evidence summarized above shows that the parties had
engaged in lengthy negotiations with numerous exchanges of
proposals. There had been significant movement by the Union
in its last letter to Respondent where it proposed changes to the
union security clause and agreed to change its wage demand
from a cash raise to a 4% percentage increase. The Respon-
dent’s final letter of February 10 restated its longstanding posi-
tions on various issues and provided answers to the questions
asked by the Union in its prior letter. Significantly, in discuss-
ing the wage issue Respondent remarked that the Union had
failed to offer “an incentive” to support its new demand for a
4% wage increase. This was a clear and explicit invitation to
the Union to discuss its wage proposal and explore what “in-
centive” might result in an agreement on wages. The subject of
wages is of paramount importance in reaching a collective-
bargaining agreement. Yet, the Union did not reply to this
letter and did not take up the invitation to discuss “an incen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
tive” for a wage increase. I conclude from the failure of the
Union to explore this opening that the Union had nothing more
to offer or discuss and that it was convinced that further discus-
sion would be futile. Based on this discussion I find that the
parties were indeed at impasse on February 10, 2006.
The General Counsel maintains that a lawful impasse could
not exist in February 2006 because there was a serious unreme-
died unfair labor practice. In Titan Tire Corp., 333 NLRB
1156, 1158–1159 (2001), the Board summarized the applicable
case law and observed that while a lawful impasse cannot be
reached in the presence of unremedied unfair labor practices,
not all unremedied unfair labor practices committed during
negotiations will give rise to the conclusion that impasse was
declared improperly, thus precluding unilateral changes. Al-
wyn Mfg. Co., 326 NLRB 646, 688 (1998), enfd. 192 F. 3d
133 (D.C. Cir. 1999). Only ‘serious unremedied unfair labor
practices that [a]ffect the negotiations’ will taint the asserted
impasse. Id., quoting Noel Corp., 315 NLRB 905, 911
(1994).
The Board went on to observe that the “central question” is
whether the employer’s unlawful conduct detrimentally af-
fected the negotiations and contributed to the deadlock. The
Board sought to answer the question whether the unfair labor
practice increased friction at the bargaining table and moved
the baseline for negotiations thus making it harder for the par-
ties to come to an agreement. The instant record does not re-
veal whether the unilateral cessation of payments to the em-
ployee benefit funds increased friction at the bargaining table.
Although the parties spent a lot of time and energy discussing
the employer’s proposals to substitute its own plans for the
Union sponsored plans this would normally have occurred even
in the absence of unilateral action. No specific evidence of
friction due to the unilateral action was introduced during the
course of the hearing. As to whether the unilateral action
moved the baseline for negotiations there was also no evidence
introduced on this issue. The testimony and correspondence in
the record do not contain any allusion to the unilateral action or
its effects on the negotiation process. Thus, I cannot find on
the record before me that Respondent’s unremedied unfair la-
bor practice precluded a finding of impasse on February 10,
2006.
Respondent urges that Section 302 of the LMRA prohibits
the payment of health and pension contributions to the UNITE
National Funds. Section 302 (a) (2) prohibits an employer from
paying money to a labor organization except, as set forth in 302
(c) (5) (A), where the payment is held in trust for medical and
pension purposes, and (B), “the detailed basis on which such
payments are to be made is specified in a written agreement
with the employer. . . .” Respondent argues that because the
collective-bargaining agreement referred to the Washable
Funds by name it would be illegal for it to continue contribu-
tions to the National Fund into which the Washable Fund was
merged. Respondent cites Moglia v. Geoghegan, 403 F. 2d 110
(2nd Cir. 1968), where the court held that the widow of a union
member could not collect his pension because his employer had
never executed “a written collective-bargaining agreement or
any other written agreement” with the union. 403 F.2d at 115.
None of the holdings or dicta in the cited decision applies to the
instant case. It is uncontroverted that the Respondent was a
party to a written collective-bargaining with the Union and that
it lawfully made contributions to employee benefit funds for a
number of years. The requirement of a written agreement is to
satisfy the statutory aim that employer contributions are for a
proper purpose and that benefits reach only the proper parties,
and to prevent employers from tampering with the loyalty of
union officials and to prevent union officials from extorting
tribute from employers. National Leadburners Health & Wel-
fare v. O.G. Kelley, 129 F.3d 372, 375 (6th Cir. 1997). As the
Sixth Circuit pointed out, it has frequently been held that an
employer may be required to remit contributions to employee
funds where the employer is bound by the negotiations of an
employer association even where the employer has not signed
the actual agreement. Indeed, an employer-member of a multi-
employer association is bound by the association’s written
agreement to contribute to an employee benefit fund where the
association had no written authorization from the member and
the employer-member never signed the agreement. Trustees of
U.I.U. Health & Welfare Fund v. N.Y. Flame Proofing Co., 828
F.2d. 79 (2nd Cir. 1987).
The collective-bargaining agreement quoted above states that
the Respondent shall contribute to the Washable Pension Plan
and the Health and Welfare Plan and that the employees shall
receive benefits as described in the “Summary Plan Description
. . . and/or as established by the Trustees.” This contract lan-
guage gave the trustees wide latitude to determine benefits for
the covered employees. In addition, the Agreement and Decla-
ration of Trust which governed both benefit plans gave the
trustees the “right at any time and from time to time to modify,
change, amend or terminate to any extent any or all of the terms
and provisions of the Plan.” The evidence shows that the Trus-
tees used their powers to change the name of the Funds to the
UNITE Washable Fund in 2003 and to merge the Fund with the
UNITE National Funds in 2005. Both of these actions were
authorized by the broad language of the Agreement and Decla-
ration of Trust. The language and the purpose of Section 302
were satisfied by the existence of a written agreement between
Respondent and the Union herein which specified that employ-
ees shall receive benefits “as established by the Trustees.”
CONCLUSIONS OF LAW
1. Local 169, UNITE-HERE, AFL–CIO, is the exclusive
bargaining representative of the employees of Respondent in
the following appropriate unit:
All full-time and regular part-time production employees, me-
chanics and drivers, employed by the Employer at and out of
its facility located at 630 St. Ann’s Avenue, Bronx, New
York. Excluded are all other employees including office
clerical employees, sales persons, confidential employees and
guards, professional employees, and supervisors as defined by
the Act.
2. By failing to make payments to the UNITE Washable
Clothing, Sportswear and Allied Industries Fund and its succes-
sor UNITE National Insurance Fund and UNITE National Re-
tirement Fund for its employees’ coverage from March 1, 2005
CIBAO MEAT PRODUCTS 477
until February 10, 2006, Respondent has violated Section 8(a)
(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent must make whole the UNITE Washable Cloth-
ing, Sportswear and Allied Industries Fund and its successor
UNITE National Insurance Fund and UNITE National Retire-
ment Fund for its failure to make contributions covering the
period from March 1, 2005 until February 10, 2006, including
paying any additional amounts applicable to such delinquent
payments in accordance with Merryweather Optical Co. 240
NLRB 1213, 1216 (1979). In addition, the Respondent shall
reimburse unit employees for any expenses ensuing from its
failure, if any, to make such required payments or contribu-
tions, as set forth in Kraft Plumbing and Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Cibao Meat Products, Inc., Bronx, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making unilateral changes in terms and conditions of
employment by discontinuing payments to its employees’ bene-
fit funds.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole the UNITE Washable Clothing, Sportswear
and Allied Industries Fund and its successor UNITE National
Insurance Fund and UNITE National Retirement Fund in the
manner set forth in the Remedy section of this decision.
(b) Make whole the employees for any expenses, if any, en-
suing from its failure to make required payments to the Funds.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in the Bronx, New York, copies of the attached notice

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 1,
2005.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and pro-
tection
Choose not to engage in any of these protected activities
WE WILL NOT unilaterally discontinue payments to your
health and welfare and pension funds.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole the UNITE Washable Clothing,
Sportswear and Allied Industries Fund and its successor
UNITE National Insurance Fund and UNITE National Retire-
ment Fund for the payments we unlawfully failed to remit.
WE WILL make our employees whole for any expenses, if
any, resulting from our failure to make required payments to
the funds.
CIBAO MEAT PRODUCTS, INC.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”