Teknion, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 337 (N.L.R.B. 1999)

ELECTRICAL WORKERS IBEW LOCAL 3 (TEKNION, INC.) 337
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL–CIO and Teknion,
Inc. Case 29–CC–1267
September 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 17, 1999, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Charging Party filed a brief in support of the judge’s
decision and an answering brief. The General Counsel
filed a brief in support of the judge’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local Union No. 3, Interna-
tional Brotherhood of Electrical Workers, AFL–CIO,
Flushing, New York, its officers, agents, and representa-
tives, shall take the action set forth in the Order.

Scoff B. Feldman, Esq., for the General Counsel.
Norman Rothfeld, Esq., for the Respondent.
Stephen J. Sundheim, Esq. (Pepper Hamilton, LLP), for the
Charging Party.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. However, in affirming the judge’s
discrediting of the testimony of Respondent’s business representative,
Howard Cohen, we do not rely on the judge’s consideration of, inter
alia, the Respondent’s history of violating Sec. 8(b)(4). Further, in
adopting the judge’s refusal to draw an adverse inference from the
General Counsel’s failure to call any witnesses to corroborate the testi-
mony of the Charging Party’s director of sales, Chris Stevenson, re-
garding the October 14, 1998 meeting, we emphasize that the proper
inquiry in determining whether an adverse inference may be drawn
from a party’s failure to call a potential witness, as explicated in Inter-
national Automated Machines, 285 NLRB 1122, 1123 (1987), is
whether the witness may reasonably be assumed to be favorably dis-
posed to that party.
2 In adopting the judge’s recommended broad remedial order, we
rely particularly on the fact that as recently as July 1996, the Respon-
dent consented to entry of an order by the Second Circuit Court of
Appeals requiring the Respondent to comply with its obligations under
prior outstanding court judgments and not to further violate Sec. 8(b)(4)
of the Act. The Respondent’s violation of Sec. 8(b)(4)(ii)(B) in the
instant case, just a little more than 2 years later, sufficiently demon-
strates that the Respondent has a proclivity for violating the Act, and
thus warrants our adoption of the judge’s recommended broad order.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Brooklyn, New York, on May 11, 1999. The
charge was filed by Teknion, Inc. on October 14, 1998,1 and
the complaint was issued January 12, 1999. The complaint
alleges that the Respondent, Local Union No. 3, International
Brotherhood of Electrical Workers, AFL–CIO, violated Sec-
tion 8(b)(4)(ii)(B) of the Act, on or about October 14, by
threatening three neutral employers with a work stoppage with
the object of threatening, restraining, or coercing these em-
ployers in order to cause one of them to cease using, selling,
handling, transporting, or otherwise dealing in the products of,
and to cease doing business with, the Charging Party. The
Respondent filed its answer to the complaint on January 22,
1999, denying the alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the arguments
made by the parties at the hearing and in their briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Charging Party (Teknion), a corporation located in
Mariton, New Jersey, markets and manufactures modular of-
fice workstations. Teknion annually purchases and receives at
its New Jersey facility goods and supplies valued in excess of
$50,000 directly from entities located outside the State of New
Jersey. Securities Industry Automation Corporation (SIAC), a
corporation, provides communication automation services in
support of business activities from its facility in Brooklyn,
New York, where it annually purchases and receives goods
and supplies valued in excess of $50,000 directly from entities
located outside the State of New York. The Respondent
amended its answer at the hearing to admit that the Charging
Party and SIAC are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
James G. Kennedy & Company, Inc. (Kennedy), a corpora-
tion located in New York, New York, is a general contractor in
the construction industry and annually purchases and receives
at its New York facility goods and supplies valued in excess of
$50,000 directly from entities located outside the State of New
York. PEM, Inc. (PEM), a corporation located in Long Island
City, New York, is engaged in the construction industry as an
electrical contractor and annually purchases and receives at its
New York facility goods and supplies valued in excess of
$50,000 directly from entities located outside the State of New
York. The Respondent did not admit, deny, or otherwise an-
swer these allegations of the complaint, effectively admitting
them.2
Accordingly, based on the admissions of the Respondent, I
find that the Charging Party, SIAC, Kennedy, and PEM are
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I further find, based on the
Respondent’s failure to admit, deny, or otherwise answer the
allegation, that the Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
1 All dates are in 1998 unless otherwise indicated.
2 NLRB Rules and Regulations, Sec. 102.20.
329 NLRB No. 34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
II. ALLEGED UNFAIR LABOR PRACTICES
In the fall of 1998, Kennedy was the general contractor and
PEM the electrical subcontractor on a construction project for
SIAC, referred to in the record as the Renaissance Plaza pro-
ject. Part of that project involved the installation of office
workstations manufactured by the Charging Party. These
workstations are sold with prefabricated wire harnesses and
receptacles that can be snapped together at the site. This fea-
ture of the Charging Party’s product allows the purchaser to
reconfigure its office space after installation by simply discon-
necting the prefabricated wiring, moving the individual work-
stations to the desired location, and reconnecting them in a
new configuration by snapping the wires together again.
Someone using these modular workstations can also easily add
new outlets for additional electronic equipment by snapping
additional outlets into the workstations. The prefabricated
wire harnesses and receptacles are assembled by the Charging
Party’s nonunion employees.
Under the terms of its contract with Kennedy, PEM em-
ployees would complete the electrical installation of the
Charging Party’s workstations by snapping the wire harnesses
and outlets together at the site. The employees of PEM have
been represented by the Respondent for a number of years.
The General Counsel alleges that, at a meeting on October 14,
the Respondent’s business representative, Howard Cohen,
threatened Kennedy and PEM with a work stoppage in order to
force them to put pressure on SIAC to cease using the products
manufactured by, and to cease doing business with the Charg-
ing Party. There is no allegation that any work stoppage ever
occurred.
There is no dispute that a telephone conversation occurred
on October 9 between Cohen and the Charging Party’s execu-
tive vice president, Brian Schatzinger. Schatzinger testified
that he initiated this call after receiving a report from the SIAC
project indicating that there had been a work stoppage by
members of the Respondent. According to Schatzinger, he
asked Cohen why the electricians had stopped working at
SIAC. Cohen replied that it was a “theft of labors,” telling
Schatzinger that “this is work that his men could be doing.”
Cohen then asked Schatzinger if he was with Teknion in 1991.
When Schatzinger said that he was, Cohen told him that he
should be familiar with the fact that the Union did the work
then and that they should be doing it now. According to
Cohen, Schatzinger asked him in this conversation what the
problem was “with the partitions, with the wiring,” on the
SIAC job. Cohen acknowledged telling Schatzinger that he felt
it was electricians’ work. Cohen denied that Schatzinger asked
him if there was a work stoppage and he further denied any
knowledge that there ever was a work stoppage at SIAC.
It is also undisputed that a meeting took place on the SIAC
jobsite on October 14. Cohen had requested this meeting with
representatives of SIAC, Kennedy, and PEM for the specific
purpose of discussing installation of the Teknion workstations.
John McCarthy-O’Hea, Kennedy’s project manager for the
job, and two representatives of PEM, John and Richie, whose
last names are unknown, were at this meeting. Although in-
vited, no one from SIAC attended the meeting. Chris Steven-
son, the Charging Party’s director of sales, did attend the meet-
ing even though the Charging Party had not been invited. Only
Stevenson and Cohen testified at the hearing about this meet-
ing and, as to be expected, their versions of what was said
differ.
Stevenson testified that Cohen said at this meeting that his
men were not going to install Teknion’s electric harnesses, that
this was work that he felt the Charging Party was stealing from
the Union and that this was adding to their unemployment.
According to Stevenson, Cohen said that he felt that the Union
could manufacture the wiring onsite and hard wire the work-
stations.3 Stevenson testified that he and McCarthy-O’Hea
discussed Cohen’s statements after the meeting and then went
to SlAC’s of ices across the street to inform Mike Anderson,
SlAC’s employee in charge of the project, what had happened
at the meeting. Anderson is no longer employed by SIAC and
did not testify at the hearing.
Cohen denied saying that the Respondent’s members would
not install the Teknion harnesses and he denied mentioning
unemployment in the Union. According to Cohen, he merely
stated his opinion that the workstations should be “field-
wired” by electricians, as historically done. He acknowledged
describing the Charging Party’s prefabricated wiring as a
“theft of our work.” Cohen further acknowledged that he asked
the Kennedy representative to present the Union’s case to
SIAC, with the hope that SIAC would agree with the Union
and have the electricians field-wire the workstations.
The record reveals that 2 days after this meeting, McCarthy-
O’Hea sent SIAC a change order that would have PEM hard-
wire the workstations. The change order would cost SIAC
almost $23,000, including an additional $20,860 to be paid to
PEM to hard-wire the workstations instead of installing them
as originally planned. The record further reveals that SIAC
returned the prefabricated wiring to the Charging Party in De-
cember for a credit of $21,419.84. There is no dispute that the
job was completed with the workstations hard-wired by mem-
bers of the Respondent, as requested by Cohen at the October
14 meeting.
In order to determine whether the Respondent violated Sec-
tion 8(b)(4)(ii)(B) on October 14, as alleged in the complaint, I
must answer three questions: (1) What did Cohen say at the
October 14 meeting? (2) Does whatever he said amount to a
“threat, restraint or coercion” within the meaning of Section
8(b)(4)(ii)? and (3) If so, what was the object of Respondent’s
action? See Sheet Metal Workers Local 27 (AeroSonics, Inc.),
321 NLRB 540, 547 (1996).
The first question turns on a credibility resolution with re-
spect to the conflicting testimony of Stevenson and Cohen.
The Respondent argues that Stevenson should not be credited
because his testimony was uncorroborated, because it was
inconsistent with his pretrial affidavit and because he was
“less than candid” regarding his failure to bring contempora-
neous notes with him to the hearing. The Respondent further
argues that an adverse inference should be drawn from the
General Counsel’s failure to call any other witnesses who were
at the meeting. While it is true that Stevenson’s testimony is
uncorroborated, the same is true of Cohen’s testimony. The
other individuals who were at the October 14 meeting were
equally available to the General Counsel and the Respondent
and, because they are not parties in this proceeding and were
neutral in the dispute between the Charging Party and the Re-

3 Hardwiring the workstations would require the electricians to run
wire from the main power source in the building to each workstation
and separately wire each receptacle. Because the wire would run
through several workstations on the way from the power source to an
outlet, it would be more difficult to re-configure the workstations in the
future.
ELECTRICAL WORKERS IBEW LOCAL 3 (TEKNION, INC.) 339
spondent, it cannot be said that they would be predisposed to
testify favorably to one side or the other. Under these circum-
stances, an adverse inference is not warranted. Queen of the
Valley Hospital, 316 NLRB 721 fn. 1 (1995); Laborers Local
190 (ACMAT Corp.), 306 NLRB 93 (1992); and International
Automated Machines, 285 NLRB 1122, 1123 (1987).
The claimed inconsistency between Stevenson’s testimony
at the hearing and his pretrial affidavit was insignificant. In his
pretrial affidavit, Stevenson stated that Cohen said at the Oc-
tober 14 meeting that the Union “was not going to install Tek-
nion’s harnesses based on the fact that it was work that could
be done by the Union.” At the hearing, Stevenson recalled
Cohen saying that the Union’s members were not going to
install Teknion’s “components” because it was work Cohen
felt Teknion was stealing from the Union and that it was add-
ing to the Union’s unemployment. The gist of the statements
attributed to Cohen by Stevenson, in both his affidavit and on
the witness stand, is that the Respondent’s members were not
going to handle the Charging Party’s products, whether called
harnesses or components, because of a claim to the work. The
slight variation at the hearing does not warrant a conclusion
that Stevenson was not truthfully attempting to recall what
transpired at the meeting. Similarly, I find that Stevenson’s
explanation for not bringing his notes to the hearing was rea-
sonable and sufficiently “candid” and that there was no at-
tempt to conceal exculpatory evidence.
Although Stevenson’s testimony was not corroborated by
other witnesses, it was corroborated by actions taken shortly
thereafter by others who were at the meeting. Within days,
SIAC had changed its plans to use the Charging Party’s pre-
fabricated wiring. Instead, it elected to have the workstations
hard-wired by PEM’s employees represented by the Respon-
dent, at a considerable increase in cost and at the expense of
future flexibility in reconfiguring the workstations. This is
precisely the result sought by Cohen in requesting the meeting.
I find it highly unlikely that SIAC would have chosen such a
course of action in response to a simple expression of opinion
by Cohen that the work should be done this way.
In evaluating the respective credibility of Stevenson and
Cohen, I have also considered the Respondent’s history of
violating Section 8(b)(4).4 In light of the Respondent’s well-
documented resort to unlawful secondary activity in pursuit of
claimed work, I find it unlikely that Cohen would have ex-
pressed his “opinion” regarding who should be wiring the
workstations without backing up his arguments with the threat
to withhold the labor needed to finish the installation of these
workstations. I also note that Cohen admitted at the hearing
that he viewed the Charging Party’s prefabricated wiring as a
“theft of our work,” lending credence to the testimony of
Schatzinger and Stevenson that Cohen used a similar expres-
sion in his conversations with them on October 9 and 14, re-
spectively .
Based on the above, and considering the demeanor of the
witnesses, I find that Stevenson’s version of the October 14
meeting is the more credible and that Cohen did tell those at
the meeting that the Respondent’s members would not install
the Charging Party’s workstations with the prefabricated wir-

4 The Board and the courts have held that consideration of such
background evidence is appropriate in evaluating a respondent’s current
conduct, as well as for determining an appropriate remedy. NLRB v.
Electrical Workers Local 3 (Northern Telecom), 730 F.2d 870, 879 (2d
Cir. 1984).
ing. I further find that such a statement constituted conduct
proscribed by Section 8(b)(4)(ii) of the Act because it was a
threat that the Respondent would induce or encourage its
members employed by PEM on the SIAC job to refuse to han-
dle the Charging Party’s products. Although it was an em-
ployee of the Charging Party who provided the evidence that
such a statement was made, the threat was clearly directed at
PEM, the contractor employing its members, and there is no
dispute that PEM was present when the statement was made.
Because PEM was under contract to Kennedy, which likewise
had a contract with SIAC, the threat was clearly intended to
put pressure on Kennedy and SIAC as well to get them to
change the planned installation of the Charging Party’s prod-
ucts in order to use the Respondent’s members to hard-wire or
field-wire the workstations. Cohen admitted that this was his
purpose in asking to meet with Kennedy, PEM, and SIAC on
October 14. Cohen’s statement thus falls within the ambit of
Section 8(b)(4)(ii) even if the statement was ostensibly di-
rected only at Stevenson. See Tri-State Building & Construc-
tion Trades Council (Blackman Sheet Metal Works), 272
NLRB 8 fn. 1 (1984), enfd. 781 F.2d 569 (6th Cir. 1986); and
Iron Workers Local 40 (Spancrete Northeast), 249 NLRB 917,
920 fn. 12 (1980).
Finally, I find that the object of Cohen’s threat at the meet-
ing, to get SIAC to change from using the Charging Party’s
prefabricated wiring to having the workstations field-wired,
was an illegal secondary one. The Respondent’s primary dis-
pute here was with Teknion over who would wire Teknion’s
workstations, Teknion’s nonunion employees who worked in
the factory where the workstations were prewired, or the Re-
spondent’s members who did the electrical installation work in
the field. The Respondent clearly had no dispute with SIAC,
the purchaser of these workstations, Kennedy, the contractor
doing the office construction, or PEM, the electrical subcon-
tractor on the job. This is clear from Cohen’s statements to
Schatzinger and Stevenson that it was the Charging Party who
was “stealing” the Respondent’s work. Thus, the Respondent’s
efforts to cause SIAC to stop using the Charging Party’s pre-
fabricated wire harnesses and receptacles was an illegal at-
tempt to enmesh neutral employers in its primary dispute with
Teknion, Sheet Metal Workers Local 27 (AeroSonics, Inc.),
supra; and Sheet Metal Workers Local 104 (Losli Interna-
tional, Inc.), 297 NLRB 1078 (1990).
Accordingly, I find that the Respondent has violated the Act
as alleged in the complaint.
CONCLUSIONS OF LAW
1. Teknion, SIAC, Kennedy, and PEM are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening Kennedy and PEM, on October 14, that
the Respondent’s members employed by PEM would not in-
stall Teknion’s workstations with prefabricated wiring, in or-
der to cause Kennedy and PEM to pressure SIAC to cease
using, selling, handling, transporting, or otherwise dealing in
the products of, and to cease doing business with Teknion, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(ii)(B) and
Section 2(6) and (7) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The General Counsel has requested a broad cease-and-desist
order in this proceeding based on the Respondent’s history of
violating Section 8(b)(4) of the Act. In 1988, the Second Cir-
cuit Court of Appeals stated that the Respondent had been
found to violate Section 8(b) of the Act at least 23 times since
1960. NLRB v. Electrical Workers Local 3 (Telecom Plus),
861 F.2d 44, 45 (2d Cir. 1988). The court cited from its earlier
decision in NLRB v. Electrical Workers Local 3 (Northern
Telecom), 730 F.2d at 880, in which it had called the Respon-
dent “an incorrigible secondary boycotter with a 2-decade long
history of secondary boycott activity.” As recently as July
1996, the Respondent consented to entry of an order by the
Second Circuit requiring the Respondent to comply with its
obligations under outstanding court judgments and not to fur-
ther violate Section 8(b)(4) of the Act. Based on the evidence
before me, it appears that the Respondent has not yet learned
its lesson. Because the Respondent has a proclivity for violat-
ing the Act, I agree with the General Counsel that a broad
order is appropriate here. Sheet Metal Workers Local 104
(Losli International, Inc.), supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Local Union No. 3, International Brother-
hood of Electrical Workers, AFL–CIO, Flushing, New York,
its officers, agents, and representatives, shall
1. Cease and desist from in any manner or by any means,
threatening, coercing, or restraining Securities Industry Auto-
mation Corporation, James G. Kennedy & Company, Inc.,
REM, Inc., or any other person engaged in commerce or in an
industry affecting commerce, where an object thereof is to
force or require Securities Industry Automation Corporation,
or any other person, to cease using, selling, handling, install-
ing, transporting, or otherwise dealing in the products of Tek-
nion, Inc. or any other producer, processor or manufacturer, or
to cease doing business with each other, Teknion, Inc., or any
other person.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
union office in Flushing, New York, and at other places where
it customarily posts notices to members in New York, copies
of the attached notice marked “Appendix.”6 Copies of the
notice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible offi-
cial on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT in any manner or by any means, threaten, co-
erce, or restrain Securities Industry Automation Corporation,
James G. Kennedy & Company, Inc., PEM, Inc., or any other
person engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require Securities
Industry Automation Corporation, or any other person, to
cease using, selling, handling, installing, transporting, or oth-
erwise dealing in the products of Teknion, Inc., or any other
producer, processor, or manufacturer, or to cease doing busi-
ness with each other, Teknion, Inc., or any other person.

LOCAL UNION NO. 3, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL–
CIO
6 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.”