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LOCAL 738 I.B. OF T. FOOD & ALLIED EMPLRS' HEALTH

March 16, 1989

LOCAL 738 I.B. Of T. FOOD AND ALLIED EMPLOYERS' HEALTH AND WELFARE FUND, Plaintiff,
v.
RANDOLPH PICKLE COMPANY, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Facts1

 Randolph and Teamsters Local Union No. 738 ("Union") were parties to a collective bargaining agreement ("CBA") for a three-year term from August 1, 1983 to July 31, 1986. CBA Article 33(B) imposed this obligation on Randolph:

 
The Employer agrees to make contribution to the Welfare Fund as follows:
 
Effective: July 1, 1983, eighty cents ($.80) per hour, not to exceed forty (40) hours per week.

 During 1984 Randolph did make contributions pursuant to Article 33(B), but only for hours actually worked by collective bargaining unit members at the straight time hourly rate. It made no contributions for vacation, holiday or overtime hours. In September 1986 Fund's trustees ordered an audit that revealed the absence of such contributions. On January 7, 1987 Fund advised Randolph it owed $ 9,464.20 and demanded payment.

 So much for the facts not in dispute. What is at issue is how the parties got into that position. That calls for a return to 1972 and two very different versions of the facts.

 At that early date the CBA between Randolph and Union had no provision for Fund contributions. According to Union Vice-President Herron Roberson ("Roberson"), who negotiated the 1972 CBA, *fn2" Randolph agreed to reopen the CBA on August 1, 1972 to add a provision requiring such contributions (Roberson Aff. para. 3). On September 28, 1982 Randolph Assistant Secretary Barry Nekritz ("Nekritz") *fn3" sent a letter to Roberson establishing the first contributions to Fund (id. Ex. B):

 
(2) Article XIV (d) is hereby deleted and the following paragraph will be inserted in its place:
 
(d) WELFARE PROGRAM
 
(1) It is agreed that the jointly administered Welfare Fund established November 1, 1946, shall be in full force for all regular employees covered by this Agreement and all powers and authority of the Welfare Fund Trustees originally granted are hereby re-affirmed and all acts done pursuant to the Trust Agreement of said Fund are hereby ratified.
 
* * * *
 
(2) The Employer agrees to make contribution to the Welfare Fund as follows:
 
Effective September 1, 1972
 
* * * *
 
(4) The welfare program provided hereunder will at no time cost employer in excess of 19 cents ($.19) per hour to the end of the term hereof and will be payable for a maxiumu [sic] of 40 hours per week per employee.

 Roberson signed that letter agreement on Union's behalf.

 Roberson also later negotiated the 1974 CBA. Its relevant provision read this way (Roberson Aff. Ex. C):

 
The employer agrees to make contribution to the Welfare Fund as follows:

 Except for changes in the per-hour payment amounts, that language was carried over verbatim into later CBAs -- in 1977, 1980 and 1983. Roberson id. paras. 6-7 says that at no time during the negotiation of the 1972 letter agreement or the 1974 CBA (1) did Randolph ever assert contributions to Fund would ...


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