Gallagher Elevator Co.

National Labor Relations Board - Board Decisions

Jul 13, 2007

350 N.L.R.B. 27 (N.L.R.B. 2007)

350 NLRB No. 27
Gallagher Elevator Company and International Un-
ion of Elevator Constructors. Case 3–CA–26200
July 13, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER,
AND KIRSANOW
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and an
amended charge filed by the Union on February 16 and
April 25, 2007, respectively, the General Counsel issued
the complaint on April 27, 2007, against Gallagher Ele-
vator Company, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) of the Act. The Respondent
failed to file an answer.
Thereafter, on May 30, 2007, the General Counsel
filed a Motion for Default Judgment with the Board. On
June 5, 2007, 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 allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively notes
that the answer must be received by the Regional Office
on or before May 11, 2007, or postmarked on or before
May 10, 2007. Additionally, the Respondent was ad-
vised that an answer could also be filed electronically by
using the E-Filing system on the Agency’s website and
that if no answer was filed, the Board may find, pursuant
to a Motion for Default Judgment, that the allegations in
the complaint are true. Further, the undisputed allega-
tions in the motion disclose that the Region, by certified
letter dated May 16, 2007 notified the Respondent that
unless an answer was received by May 23, 2007, a Mo-
tion for Default Judgment would be filed. Nevertheless,
the Respondent did not file an answer to the complaint.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business at 135 South Divi-
sion Street, Buffalo, New York, herein called the Re-
spondent’s Buffalo facility, has been engaged in the in-
stallation, repair, and maintenance of elevators and re-
lated equipment.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, provided services valued in
excess of $50,000 to the Niagara Frontier Transportation
Authority, M&T Bank and Erie County, which are enti-
ties located within the State of New York, and which are
directly engaged in interstate commerce.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(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
At all material times, Thomas Granville has held the
position of the Respondent’s president and has been a
supervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
The following employees of the Respondent, herein
called the unit, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All Elevator Constructor Mechanics, Elevator Con-
structor Helpers and Elevator Constructor Apprentices
employed by Respondent and engaged in the installa-
tion, repair, modernization, maintenance and servicing
of all equipment referred to in Article IV, Paragraph 2
and Article IV(A) of the 2002–2007 collective-
bargaining agreement between Elevator Constructors
of America and the International Union.
At all material times, Elevator Constructors of Amer-
ica, herein called ECA, has been an organization com-
posed of various employers engaged in the business of
installing, repairing, modernizing, maintaining, and ser-
vicing elevator cars and elevator systems, one purpose of
which is to represent its employer-members in negotiat-
ing and administering collective-bargaining agreements
with the International Union.
At all material times, Respondent has been an em-
ployer-member of ECA, and has authorized the ECA to
represent it in negotiating and administering the collec-
tive-bargaining agreement with the International Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all material times, the International Union and its
constituent Local 14 have been the designated, exclusive
collective-bargaining representative of the unit, and at all
times have been recognized as the representative by Re-
spondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which is effective from July 9, 2002 to July 8, 2007.
At all material times, based on Section 9(a) of the Act,
the International Union and its constituent Local 14 have
been the exclusive collective-bargaining representative of
the unit.
Since on or about August 16, 2006, the Respondent
has failed and refused to adhere to the terms of Article
XII (Vacations) of the collective-bargaining agreement
effective from July 9, 2002 to July 8, 2007.
The Respondent engaged in the conduct described
above without the International Union’s or Local 14’s
consent.
The terms and conditions of employment, described
above, are mandatory subjects of bargaining.
Since on or about December 6, 2006, the Respondent
has failed and refused to process a grievance filed by the
Local Union.
On or about December 28, 2006, the International Un-
ion, by letter, requested that the Respondent furnish the
International Union with the following information:
1. Payroll records for the year 2006, beginning
Jan. 1, 2006 thru Dec. 31, 2006 for all IUEC mem-
bers employed by Gallagher Elevator Company.
2. The information used to calculate the vacation
pay for all IUEC members working for Gallagher
Elevator Company during the period Jan. 1, 2006
thru Dec. 31, 2006.
3. The number of hours worked by each IUEC
member employed by Gallagher Elevator Company
for the year 2006 beginning Jan. 1, 2006 thru Dec.
31, 2006.
4, Payroll records for vacation pay, paid to IUEC
members on or before Jan. 15th and June 15th 2006.
5. The amount of vacation pay due each IUEC
member on or before Jan. 15th, 2007 working for
Gallagher Elevator Company.
The information requested by the International Union,
as described above, is necessary for and relevant to the
performance of the International Union and Local 14 of
their duties as the exclusive collective-bargaining repre-
sentative of the unit.
Since on or about December 28, 2006, the Respondent
has failed and refused to furnish the International Union
with the information requested by it.
CONCLUSIONS OF LAW
By failing and refusing to adhere to the terms of article
XII (Vacations) of the collective-bargaining agreement
effective from July 9, 2002 to July 8, 2007, Respondent
has been failing and refusing to bargain collectively and
in good faith with the exclusive collective-bargaining
representative of its employees, within the meaning of
Section 8(d) of the Act, and has thereby engaged in an
unfair labor practice in violation of Section 8(a)(5) and
(1) of the Act. By failing to process a grievance and by
failing to provide requested information, Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees, in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
adhere to the terms of article XII (Vacations) of the col-
lective-bargaining agreement, we shall order the Respon-
dent to adhere to the terms of its agreement with the Un-
ion, and to make the unit employees whole for any loss
of earnings and benefits attributable to its unlawful con-
duct. Backpay shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987). In addition, having found that the Respondent
has failed and refused, since December 6, 2006, to proc-
ess a grievance filed by the Local Union, we shall order
the Respondent to process the grievance. Finally, having
found that the Respondent has failed to furnish the Union
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees, we shall order the Respondent to furnish the
Union with the information it requested.
ORDER
The National Labor Relations Board orders that the
Respondent, Gallagher Elevator Company, Buffalo, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Union of Elevator Con-
structors, as the exclusive collective-bargaining represen-
tative of the employees in the following appropriate unit:
GALLAGHER ELEVATOR CO. 3
All Elevator Constructor Mechanics, Elevator Con-
structor Helpers and Elevator Constructor Apprentices
employed by Respondent and engaged in the installa-
tion, repair, modernization, maintenance and servicing
of all equipment referred to in Article IV, Paragraph 2
and Article IV(A) of the 2002–2007 collective-
bargaining agreement between Elevator Constructors
of America and the International Union.
(b) Failing and refusing to adhere to the terms of arti-
cle XII (Vacations) of the July 9, 2002 to July 8, 2007
collective-bargaining agreement.
(c) Failing and refusing to process a grievance filed by
the Local Union since December 6, 2006.
(d) Failing and refusing to provide the Union with the
information it requested on December 28, 2006, that is
relevant and necessary to the performance of their duties
as the exclusive bargaining representative of the employ-
ees in the unit.
(e) In any like or related manner interfering with, re-
straining, 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) Honor the terms and conditions of article XII (Va-
cations) of its July 9, 2002 to July 8, 2007 collective-
bargaining agreement with the Union.
(b) Process the grievance that was not processed since
December 6, 2006.
(c) Furnish the Union with the information it requested
on December 28, 2006, that is relevant and necessary to
the performance of their duties as the exclusive bargain-
ing representative of the employees in the unit.
(d) Make whole the unit employees whole for any loss
of earnings and other benefits they may have suffered as
a result of its failure to adhere to the terms of article XII
(Vacations) of the collective-bargaining agreement, with
interest, as set forth in the remedy section of this Deci-
sion.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Buffalo, New York, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 August 16, 2006.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with International Union of Elevator Con-
structors, as the exclusive collective-bargaining represen-
tative of our employees in the following appropriate unit:
All Elevator Constructor Mechanics, Elevator Con-
structor Helpers and Elevator Constructor Apprentices

1 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employed us and engaged in the installation, repair,
modernization, maintenance and servicing of all equip-
ment referred to in Article IV, Paragraph 2 and Article
IV(A) of the 2002–2007 collective-bargaining agree-
ment between Elevator Constructors of America and
the International Union.
WE WILL NOT fail and refuse to adhere to the terms of
article XII (Vacations) of the July 9, 2002 to July 8, 2007
collective-bargaining agreement.
WE WILL NOT fail and refuse to process grievances filed
by Local Union 14 since December 6, 2006.
WE WILL NOT fail and refuse to furnish the Union with
the information it requested on December 28, 2006, that
is relevant and necessary to the performance of its duties
as the exclusive bargaining representative of our employ-
ees in the unit.
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 honor the terms and conditions of article XII
(Vacations) of our July 9, 2002 to July 8, 2007 collec-
tive-bargaining agreement with the Union.
WE WILL process all grievances that have not been
processed since December 6, 2006.
WE WILL furnish the Union with the information that is
relevant and necessary to the performance of its duties as
the exclusive bargaining representative of the employees
in the unit.
WE WILL make whole our unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our failure to adhere to the terms of article XII
(Vacations) of the collective-bargaining agreement, with
interest.
GALLAGHER ELEVATOR COMPANY