NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,525, CARA-CAM, INC. and TEAMSTERS LOCAL NO. 436 aw INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO., (Oct. 31, 1994), National Labor Relations Board, (Oct 31, 1994)

CARA-CAM, INC. and TEAMSTERS LOCAL NO. 436 aw INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO.

315 NLRB No. 51.Case No. 8-CA-25931. October 31, 1994

Before Devaney, Browning and Cohen.

Unilateral Changes by Employer--Work Conditions--Union Welfare Fund Benefits.--By unilaterally discontinuing contributions to a union’s health, pension and welfare funds, claiming adverse economic conditions, an employer violated its bargaining duty. The payments were required under the parties’ collective bargaining agreement and the employer did not give the union advance notice of the changes or an opportunity to bargain over them. Section 8(a)(5).

Back reference: ¶3145.484.

From Text of Board’s Decision

The complaint alleged that the Respondent and Union were bound to a May 1, 1992, to April 30, 1995 collective-bargaining agreement, during the term of which the Respondent unilaterally ceased making contractually required contributions to the Union’s health and welfare and pension funds. Although properly served with copies of the charge and complaint, the Respondent did not file a timely answer.

On June 1, 1994, counsel for the General Counsel wrote the Respondent that no answer had been filed, and set a June 9, 1994 deadline for receipt of an answer. Subsequently, counsel for the General Counsel granted the Respondent further extensions to file an answer until June 21 and 27, 1994.

On June 24, 1994, the Respondent filed an answer to the complaint. The answer admitted, among other things, the Union’s representative status, and that the parties have been bound to a succession of collective-bargaining agreements. The Respondent also admitted unilaterally failing to remit required contributions to the Union’s health and welfare and pension funds beginning about July 1, 1993. [1] The Respondent affirmatively pled in its answer that, because of adverse economic circumstances, it has been unable to remit these required contributions.

On August 16, 1994, counsel for the General Counsel filed a Motion for Summary Judgment. Counsel argued that in view of the Respondent’s admissions to all of the factual allegations in the complaint, the pleadings raised no issues of material fact requiring a hearing.

On August 19, 1994, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Ruling on Motion for Summary Judgment

The Respondent admits to all the operative facts giving rise to the unfair labor practices alleged in the complaint. It admits that it is a member of the United Truckers Association of Cleveland, Ohio, and that it has designated the Association to act as its collective-bargaining representative. It also acknowledges the exclusive representative status of the Union and the appropriateness of the unit. It concedes that there have been a succession of collective-bargaining agreements between the parties, culminating in the current 1992-1995 contract. It also admits that, about July 1, 1993, it unilaterally ceased making contractually required health and welfare and pension contributions to the Union’s funds.

In defense of its unilateral action, the Respondent pleads financial difficulties. It is well settled, however, that “economic inability to pay does not constitute an adequate defense to an allegation that an employer has violated Section 8(a)(5) by failing to abide by the provisions of a collective-bargaining agreement.” Abernathy Excavating, [1993-94 CCH NLRB ¶15,247] 313 NLRB 68 (1993). Accordingly, we find that the Respondent has failed to present a meritorious defense to its unlawful conduct, and grant the General Counsel’s Motion for Summary Judgment.

On the entire record, the Board makes the following

Findings of Fact

I. jurisdiction

The Respondent, an Ohio corporation, with an office and place of business in Independence, Ohio, is engaged in the intrastate and interstate transportation of concrete aggregates and asphalt. Annually, the Respondent provided services valued in excess of $50,000 from its Independence, Ohio facility to Cleveland Trinidad Paving Company, an Ohio business directly engaged in interstate commerce. The parties admit, and we find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and(7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. alleged unfair labor practices

A. Representative Status of the Union

The following employees of the Respondent constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act:

All employees employed by members of the [United Truckers Association of Cleveland, Ohio] and of the employers who have authorized the Association to bargain on their behalf, but excluding office clerical employees, guards and supervisors as defined in the Act.

Since about 1965, and at all material times, the Union has been the designated and recognized exclusive representative of this unit under Section 9(a) of the Act. This recognition has been embodied in a succession of collective-bargaining agreements, the most recent of which is effective by its terms from May 1, 1992, until April 30, 1995. At all times since about 1965, the Union, by virtue of Section 9(a) of the Act, has been the exclusive representative of the Respondent’s employees for the purposes of collective bargaining.

B. Refusal to Comply with the Contract

About July 1, 1993, during the term of the 1992-1995 collective-bargaining agreement, the Respondent unilaterally ceased remitting on behalf of its employees contractually required contributions to the Union’s health and welfare and pension funds. These contractual provisions relate to wages, hours, and other terms and conditions of employment in the unit and are mandatory subjects for purposes of collective bargaining.

We find that by the above acts and conduct, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act, as alleged. [2]