General Kinetics, Inc., 89 (2007)

General Kinetics, Inc. and/or General Kinetics, Inc., Debtor-in-Possession and International Brotherhood of Electrical Workers, Local Union No. 459, AFL–CIO. Case 6–CA–35509

September 28, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman and Walsh

The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the amended complaint. Upon a charge and amended charge filed by the Union on February 21 and March 29, 2007, respectively, the General Counsel issued the complaint on April 2, 2007, against General Kinetics, Inc. and/or General Kinetics, Inc., Debtor-in-Possession (collectively called the Respondent), alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer.

On June 18, 2007, the General Counsel filed a Motion for Default Judgment with the Board. Thereafter, on June 25, 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 stated that unless an answer was filed by April 16, 2007, all the allegations in the complaint could be considered admitted. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated June 6, 2007, notified the Respondent that unless an answer was filed within 3 business days of the receipt of the letter, a motion for default judgment would be filed.

In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel’s Motion for Default Judgment.[1]

On the entire record, the Board makes the following

Findings of Fact

i. jurisdiction

At all material times, the Respondent, a Virginia corporation with an office and place of business in Johnstown, Pennsylvania (the Respondent’s facility), has been engaged in the manufacture of blast-proof cabinetry for high-tech electronics. During the 12-month period ending January 31, 2007, the Respondent, in conducting its business operations described above, sold and shipped from its Johnstown, Pennsylvania facility goods valued in excess of $50,000 directly to points located outside the Commonwealth of Pennsylvania.

Since about February 9, 2007, the Respondent has been a debtor-in-possession with full authority to continue its operations and to exercise all powers necessary to administer its business.

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 International Brotherhood of Electrical Workers, Local Union No. 459, AFL–CIO (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, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act:

Larry Heimendinger

—President & Chief Executive Officer

Richard Munczenski

—Vice President & Manager

Franco DeBlasio

—Chief Financial Officer

Jennifer Cline

—Human Resources Manager

The employees of the Respondent described in the collective-bargaining agreement between the Respondent and the Union, which was effective from June 1, 2004, through May 31, 2007, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.

At all material times, the Union has been the exclusive collective-bargaining representative of the unit and has been recognized as such by the Respondent. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective from June 1, 2004, through May 31, 2007.

At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit.

About early to mid-January 2007, the Respondent advised the Union that the Respondent intended to cease its manufacturing operations, close its facility, and file a bankruptcy petition.

On or about January 17, 2007, the Union requested that the Respondent bargain collectively about the effects of the closure of its facility.

Since about January 17, 2007, the Respondent has failed and refused to bargain collectively about the effects of the closure of its facility.

The subject set forth above relates to wages, hours, and other terms and conditions of employment of the unit and is a mandatory subject for the purposes of collective bargaining.

Since about January 17, 2007, the Union, by letter, has requested that the Respondent furnish the Union with information related to the closure of the Respondent’s facility.

On about February 5, 2007, while at the Respondent’s facility, the Union verbally renewed its request that the Respondent furnish the Union with information related to the closure of the Respondent’s facility, and also requested the following information:

(a) A copy of the seniority list for all employees in the unit and their respective rates of pay.

(b) A complete list of unit employees who participate in the 401(k) plan, set forth in article VII, section 2 of the collective-bargaining agreement.

(c) Identification of each unit employee’s level of contribution to the 401(k) plan.

(d) Documentary proof that the Respondent had deposited into the unit employees’ respective 401(k) plan accounts the deductions that the Respondent had made from the unit employees’ paychecks for participation in the 401(k) plan.

(e) A summary of the vacation benefits to which each unit employee was entitled pursuant to article V of the collective-bargaining agreement for 2006 and 2007.

(f) Documents showing the number of floating holidays that each unit employee had used during 2007, pursuant to article VI of the collective-bargaining agreement.

(g) Documents showing that the employees laid off by the Respondent in 2006 had previously been made whole by the Respondent for all outstanding contractual benefits.

(h) Identification, by employee, of all outstanding monies owed to the unit employees by the Respondent for the health insurance deductibles that the unit employees have paid since July 2006, pursuant to article VII of the collective-bargaining agreement.

On about February 7, 2007, while at the Respondent’s facility, the Union verbally requested that the Respondent provide the Union with a copy of the unit employees’ 401(k) plan.

The information requested by the Union is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit.

Since about January 17, 2007, the Respondent has failed and refused to provide the Union with the requested information described above.

Since about January 21, 2007, the Respondent has failed to continue in effect all the terms and conditions of the collective-bargaining agreement by:

(a) Failing and refusing to remit to its unit employees regular and overtime wages, as required by articles III and IV of the collective-bargaining agreement.

(b) Failing and refusing to remit to its unit employees vacation benefits, as required by article V of the collective-bargaining agreement.

(c) Failing and refusing to remit to its unit employees floating holiday benefits, as required by article VI of the collective-bargaining agreement.

(d) Failing and refusing to provide its unit employees with hospitalization and other health insurance benefits, as required by article VII of the collective-bargaining agreement.

(e) Failing and refusing to make 401(k) plan contributions to its unit employees’ 401(k) plan accounts, as required by article VII, section 2 of the collective-bargaining agreement.

The subjects set forth above relate to wages, hours, and other terms and conditions of employment and are mandatory subjects...