H. W. Wesley Electric Co, 1260 (1992)

Harold W. Wesley, Jr. d/b/a H. W. Wesley Electric

Company and International Brotherhood of Electrical Workers, AFL-CIO, CLC, Local Union No. 850. Case 16-CA-15370

July 10, 1992

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH

Upon a charge filed by the International Brotherhood of Electrical Workers, AFL-CIO, CLC Local Union No. 850 (the Union) on December 18, 1991, and an amended charge filed on February 20, 1992, the General Counsel of the National Labor Relations Board issued a complaint on February 24, 1992, against Harold W. Wesley, Jr. d/b/a H. W. Wesley Electric Company, the Respondent, alleging that it violated Section 8(a)(5) and (1) by failing to make contributions to the Union's health and welfare, pension, vacation, and fringe benefit funds, failing to deduct union dues from the pay of unit employees and remit the dues to the Union, and failing to use the union hiring hall as its sole source of referral of applicants for employment. Copies of the complaint and notice of hearing were served on the Respondent. The Respondent filed a timely answer which admits certain factual allegations and neither admits nor denies other factual allegations.

On April 6, 1992, the General Counsel filed a Motion for Summary Judgment. On April 8, 1992, the Board issued an order transferring proceeding to the Board and 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.

On the entire record, the Board makes the following

Ruling on Motion for Summary Judgment

In its answer to the complaint, the Respondent admits that it was obligated under the terms of its collective-bargaining agreement with the Union to make monthly payments to the Union's health and welfare, pension, vacation, and fringe benefit funds and that, since about July 18, 1991, the Respondent has failed to make the required payments without notice to or bargaining with the Union. In addition, by its failure specifically to deny other factual allegations in the complaint as required under Section 102.20 of the Board's Rules and Regulations,1 and in the absence of

good cause shown, the Respondent effectively admits that it was obligated under the terms of its collective-bargaining agreement to deduct dues from the wages of bargaining unit employees and remit the dues to the Union, and to use the union hiring hall as its sole source of referral of applicants for employment. The Respondent also effectively admits that, since about July 18, 1991, in the case of the dues deduction, and since September 1, 1991, in the case of the hiring hall referrals, the Respondent has discontinued these obligations, also without notice to or bargaining with the Union.

It is well settled that an employer who is a party to an existing collective-bargaining agreement violates Section 8(a)(5) and (1) of the Act when it modifies the terms and conditions of employment established by that agreement without obtaining the consent of the Union. Rapid Fur Dressing, 278 NLRB 905, 906 (1986). Here the Respondent has admitted that it has unilaterally failed to comply with its obligations under the contract. The Respondent asserts in defense that

one or more of the employees from the Union formed an alliance, partnership or other type of joint venture, and thereby contacted Respondent's major contracts and obtained and solicited in excess of seventy percent (70%) of Respondent's business, which has caused him to be unable to make payments to the Union's health and welfare, pension, vacation and fringe benefit fund [sic], and to further being unable to deduct Union dues from the employees' wages to remit these to the Union.

In addition, the Respondent asserts that it is

. . . financially unable to meet the financial obligations imposed on him under the provisions of the collective bargaining agreement between Respondent and the National Association of Electrical Contractors, Inc., West Texas-New Mexico Chapter, and the International Brotherhood of Electrical Workers, AFL-CIO, CLC Local Union No. 850.

The Respondent's defenses, taken together, amount to nothing more than a claim that the Respondent is financially unable to meet its obligations under the contract. Financial necessity, however, even if proven, does not constitute an adequate defense to an allegation that an employer has unlawfully failed to abide by the provisions of a collective-bargaining agreement. Tammy Sportswear Corp., 302 NLRB 860 (1991); Raymond Prats Sheet Metal Co., 285 NLRB 194, 196

1 Sec. 102.20 provides, in pertinent part,

any allegation in the complaint not specifically denied or expained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be

admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown.

(1987); Oak Cliff-Golman Baking Co., 202 NLRB 614, 616 (1973).2

Accordingly, the Respondent has admitted all the facts material to a resolution of the unfair labor practice issues raised by the substantive complaint allegations and has not raised an adequate defense to those allegations. Because there are no material facts in dispute, and in the absence of any cause to the contrary having been shown by the Respondent, we grant the General Counsel's Motion for Summary Judgment.

On the entire record, the Board makes the following

FINDINGS OF FACT

  1. JURISDICTION

    The Respondent, a sole proprietorship owned by Harold W. Wesley, Jr., doing business as H. W. Wesley Electric Company, maintains its principal office and place of business at Plainview, Texas, where it has been engaged as an electrical contractor in the...

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