NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,430, DEMUN INCORPORATED dba DEMUN MARKET and MEATCUTTERS UNION LOCAL NO. 88, aw UNITED FOOD AND COMMERICAL WORKERS INTERNATIONAL UNION, AFL-CIO., (Aug. 15, 1994), National Labor Relations Board, (Aug 15, 1994)

DEMUN INCORPORATED dba DEMUN MARKET and MEATCUTTERS UNION LOCAL NO. 88, aw UNITED FOOD AND COMMERICAL WORKERS INTERNATIONAL UNION, AFL-CIO.

314 NLRB No. 120.Case No. 14-CA-22659. August 15, 1994

Before Devaney, Browning and Cohen.

Unilateral Changes by Employer--Insurance Benefits--Economic Hardship Defense.--Although an employer claimed that its refusal to remit pension and welfare fund payments to a union was motivated by economic hardship, that fact did not constitute a valid defense to charges that the employer violated its bargaining duty. The employer did not notify the union that it was necessary to modify the parties’ collective bargaining agreement and simply made the changes unilaterally. Section 8(a)(5).

Back reference: ¶3145.305.

From Text of Board’s Decision

The Respondent admits the operative facts giving rise to the unfair labor practices alleged in the complaint. It acknowledges that it has, since June 16, 1992, recognized the exclusive representative status of the Union, that recognition was embodied in a collective-bargaining agreement which was effective from June 16, 1992, through September 18, 1993, and that the unit alleged in the complaint is appropriate for collective bargaining. It also admits that, on the dates alleged in the complaint, it has failed to remit payments to the welfare fund and pension fund to which it was obligated to contribute under the collective-bargaining agreement.

As an explanation for its unilateral failure to adhere to the contract, the Respondent claims financial hardship and that the business “was not there” to pay employee benefits. However, a claim of financial difficulty, “even if proven, does not constitute an adequate defense to an allegation that an employer has unlawfully failed to abide by provisions of a collective-bargaining agreement.” Zimmerman Painting & Decorating, [1991-92 CCH NLRB ¶16,639] 302 NLRB 856, 857 (1991).

Therefore, we find that the Respondent has not raised any issue properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.

. . .

The Respondent has failed and refused to continue in effect all the terms and conditions of the collective-bargaining agreement by (1) since February 25, 1993, failing to remit payments to the contractually established pension fund; and (2) since about March 1, 1993, failing to remit payments to the contractually established welfare fund.

The contractual provisions by which the Respondent failed to abide relate to wages, hours, and other terms and conditions of employment in the unit and are mandatory subjects for purposes of collective bargaining.