Cibao Meat Products Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2006

02-CA-036943 (N.L.R.B. Sep. 25, 2006)

JD(NY)-42-06
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

CIBAO MEAT PRODUCTS, INC.

and Case No. 2-CA-36943

LOCAL 169, UNITE-HERE, AFL-CIO

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 Complaint alleges that Respondent, in violation of
Section 8 (a) (1) and (5) of the Act, has unilaterally ceased making payments to the Union’s
pension and health and welfare plans. The Respondent 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 demeanor 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 engaged 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 bargaining within the meaning of Section 9 (b) of the Act:

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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 office clerical employees,
sales persons, confidential employees 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 February 28, 2005. Articles 18 and 19 of the agreement,
respectively, required Respondent to make monthly contributions to the Amalgamated
Washable Clothing, Sportswear & Allied Industries 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 Washable Fund was changed to
UNITE Washable Clothing, Sportswear and Allied Industries Fund. (hereafter the UNITE
Washable Fund) Respondent continued to make its monthly contributions 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 Retirement 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 Industries Fund – The Pension Plan of Local 169; the
Employer 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 described 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 Employer’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 Industries 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
Welfare Plan and/or established by the Trustees. … (sic)

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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 dollars ($170.00) per month for each employee to the Fund.

19.3 All eligible full time employees who have been employed for two years shall
receive the family health insurance 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 Employer’s payroll records of employees as to
insure compliance 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 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
National Retirement Fund.1 The trustees discussed actuarial reports showing that if the
Washable Fund did not merge with the National Fund the existing employer contribution rates
would not be sufficient to maintain the level of benefits. However, the proposed merger would
protect the current level of benefits to employees and would protect fund assets against market
fluctuations and provide cheaper administrative costs. The trustees then resolved to accept the
merger offer of the UNITE National Insurance 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 approvals 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
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.

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Lutzi Vieluf Isidor is the acting president of Respondent. Isidor 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 Pulmario 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 complaint 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 payroll 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.

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
discontinue 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
negotiations with Cibao for a successor collective-bargaining agreement in January 2005.
Heinz Vieluf, the owner and president of Cibao, 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 expiration 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 negotiations. After the meeting,
you asked if Cibao would be interested 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
2 William Towne v. Cibao Meat Products, Inc., 04 CV 9916.
3 Respondent’s Brief quotes from and attaches a “Declaration” submitted by Isidor in the
district court proceeding. This document was not offered during the instant proceeding. Isidor
was called by Respondent 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.

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agreement past February 28, 2005.

Fuentes did not recall that Respondent ever proposed to discontinue 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 Respondent 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 planning its own insurance
benefit for the employees. The company said it would discontinue the fund benefits at the end
of the contract 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 correspondence introduced into evidence by Respondent shows that on
February 3, 2006 Respondent asserted in writing that the negotiations 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 Respondent “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”. (emphasis 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, permissive 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’ “differences” 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 proposals 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 “differences.” With respect to the
union security clause of the existing contract the Union now proposed an agency fee shop and it
proposed 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 Respondent’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

5 The February 3 letter was not offered into evidence but it is quoted in the February 7 letter
which is in evidence.

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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 provided, 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 rejecting the Union’s proposal
for an agency shop and stating that it 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 answered 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 employees 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
unlawful abuse of authority by the Funds, that allowed implementation of changes to the CBA
before the parties reached an overall impasse 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
Respondent’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 company 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 informed 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 Respondent made any other changes in its
employees’ terms and conditions of employment.

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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 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
employees 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
informed 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 impose unilateral alterations in benefits and benefit plans at the expiration of a contract
absent the existence of a good faith impasse. 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 union to request bargaining when it
receives sufficient notice to permit meaningful bargaining over an employer’s proposal to
change terms or conditions of employment. …

When parties are engaged in negotiations for a collective-bargaining agreement,
however, their obligations are somewhat 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 documents relating to wages paid to
6 Respondent has not made any legal argument to show why such an action on the part of
the auditor would have been improper.

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employees is not an emergency privileging an employer to cease making payments to health
and pension funds.

Respondent’s argument that the auditor’s request was “illegitimate” 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
opposed 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 payments 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
bargaining impasse exists. Factors such as the parties’ bargaining history, their good faith, the
length of time spent in negotiations, the importance of the issues about which the parties
disagree, 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
Respondent’s final letter of February 10 restated its longstanding positions on various issues
and provided answers to the questions asked by the Union in its prior letter. Significantly, in
discussing 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 “incentive” 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 incentive” 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 discussion 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 unremedied unfair labor practice. In Titan Tire Corp., 333 NLRB
1156, 1158-59 (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,

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not all unremedied unfair labor practices committed during negotiations will give rise to
the conclusion that impasse was declared improperly, thus precluding unilateral
changes. Alwyn 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 affected 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 parties to
come to an agreement. The instant record does not reveal whether the unilateral cessation of
payments to the employee 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 labor 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 contributions 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 & Welfare 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

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established by the Trustees.” This contract language gave the trustees wide latitude to
determine benefits for the covered employees. In addition, the Agreement and Declaration 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 Trustees 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 Declaration 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 employees 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, 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 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 successor UNITE National Insurance Fund and UNITE National
Retirement Fund for its employees’ coverage from March 1, 2005 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 unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Respondent must make whole the UNITE Washable Clothing, Sportswear and Allied
Industries Fund and its successor UNITE National Insurance Fund and UNITE National
Retirement 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 contributions, 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

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 purposes.

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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’ benefit 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 effectuate 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, ensuing from its failure to make
required payments to the Funds.

(c) Preserve and, within 14 days of a request, or such additional 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 records, 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 facility in the Bronx, New York,
copies of the attached notice 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
conspicuous 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 employees employed by the Respondent at any time since
March 1, 2005.
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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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(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.

Dated, Washington, D.C., September 25, 2006.

____________________
Eleanor MacDonald
Administrative Law Judge
JD(NY)-42-06
Bronx, NY
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 violated 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 protection
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, restrain, 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 Retirement 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.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.