Crown Bolt, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 2004

343 N.L.R.B. 776 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 86
776
Crown Bolt, Inc. and Wholesale Delivery Drivers,
Salespersons, Industrial and Allied Workers,
Local 848, International Brotherhood of Team-
sters, AFL–CIO. Cases 21–CA–33846, 21–CA–
33850, 21–CA–33915, and 21–RC–20192
November 29, 2004
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND MEISBURG
On December 29, 2000, Administrative Law Judge
Lana H. Parke issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
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 as
modified below and to adopt the recommended Order.2
A unit of employees at one of the Respondent’s facili-
ties voted against union representation by a 34-vote mar-
gin. During the critical period prior to the election, Re-
spondent’s production manager told employee Gilbert
Astorga that at the end of the year when the lease was up
Respondent’s owner would move the facility if employ-
ees voted for union representation. We agree with the
judge’s finding that this remark constituted a threat and
violated Section 8(a)(1). Astorga related the threat to
two others, but the record fails to reveal whether those
two told anyone else. Applying Springs Industries, 332
NLRB 40 (2000), the judge presumed that the threat had
been widely disseminated and recommended that the
election be set aside. For the reasons explained below,
we will overrule Springs Industries, but prospectively
only. Accordingly, we will set the election aside and
direct a second election.
Background
The Respondent manufactures hardware fixtures at its
Cerritos, California facility. Responding to employee
overtures, Teamsters Local 848 (the Union) launched an
organizing campaign at the Cerritos plant in January or
February 2000.3 In late February or early March, the
Union petitioned for an election in a unit of production

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.
2 We shall substitute a new notice in accordance with our decision in
Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
3 All dates are 2000 unless otherwise indicated.
and warehouse employees at the Cerritos facility. The
election was held on April 13. After challenges were
resolved, a revised tally of ballots issued showing that
the unit employees had voted against representation by
the Union by a margin of 182 to 148. The Union timely
filed 13 objections, 8 of which it later withdrew,4 and
also filed 3 unfair labor practice charges. After an inves-
tigation, the General Counsel issued a consolidated com-
plaint alleging several 8(a)(3) and independent 8(a)(1)
violations. Among the latter, the complaint alleged that
in March, the Respondent, by Rudy Garcia, threatened an
employee that the Cerritos plant would close if the em-
ployees selected the Union as their representative. A few
weeks before the hearing in this matter, the Board issued
its decision in Springs Industries, supra, in which it held
that all plant-closure threats are presumed disseminated
throughout the plant absent evidence to the contrary.
In her decision, the judge dismissed every unfair labor
practice allegation except one: Garcia’s alleged plant-
closure threat.5 In finding that this threat was made, she
credited Astorga’s testimony that about a month before
the election, Garcia, a production manager, told Astorga
that the lease was up at the end of the year, and that if the
employees voted union the Respondent’s owner would
close the plant and go somewhere else. The judge also
found that Astorga related Garcia’s threat to two indi-
viduals: employee Leonard Arias, who was no longer
employed by the Respondent at the time of the hearing,
and Union Organizer Manny Valenzuela. There is no
record evidence that Arias or Valenzuela told anyone
else about the threat; there is also no evidence that they
did not. Based on this record, and applying Springs In-
dustries, the judge found that the Respondent had failed
to rebut the presumption that Garcia’s threat had been
disseminated among employees sufficiently widely to set
the election aside. Accordingly, she recommended sus-
taining Objections 2 and 4, which correspond to the
8(a)(1) plant-closure threat violation, and setting aside
the election.
Discussion
The Respondent urges us to overrule Springs Indus-
tries and to reinstate the evidentiary requirement of
Kokomo Tube Co., 280 NLRB 357 (1986), where the
Board found a threat of plant closure made to a single
employee insufficient to overturn an election in the ab-

4 A few days before the hearing, the Union notified the judge that it
was withdrawing Objections 1, 3, 5, 6, 8, 10, and 12. Earlier, the Union
withdrew Objection 7 with the Regional Director’s approval. Accord-
ingly, we correct the judge’s inadvertently mistaken statement, in fn. 23
of her decision, that the Union never filed an Objection 7.
5 The judge also recommended overruling Objections 9, 11, and 13.
Absent exceptions, we adopt pro forma the judge’s recommendation.
CROWN BOLT, INC. 777
sence of evidence of dissemination. In other words, con-
sistent with the Board’s fundamental allocation of evi-
dentiary burdens in representation cases, Kokomo Tube
imposed on the objecting union the burden of proving
dissemination of a threat. Springs Industries relieved the
objecting union of this burden by expressly overruling
Kokomo Tube and holding that a plant-closure threat is
presumed disseminated among employees sufficiently
widely to set aside an election absent evidence to the
contrary. In sum, Springs Industries shifted the burden
from the objecting party, requiring the employer to prove
that the threat was not disseminated or not disseminated
sufficiently to have impacted the election results.
According to Springs Industries, presuming dissemina-
tion “of at least the most serious threats, such as threats
of plant closure,” represents the Board’s “traditional
practice.” In support of this proposition, the Board cited
General Stencils, Inc., 195 NLRB 1109 (1972), enf. de-
nied 472 F.2d 170 (2d Cir. 1972). In General Stencils,
the employer’s general manager threatened an employee
with plant closure. Based in significant part on this
threat, a Board majority granted a remedial bargaining
order. In doing so, the Board presumed dissemination of
the threat, stating that “[a] threat of such serious conse-
quences for all employees for selecting the Union will,
all but inevitably, be discussed among employees,” and
that “while there may exist a situation in which a serious
threat may, in fact, remain isolated, the burden of prov-
ing such an unlikely event rests with the Employer.” Id.
at 1110. Springs Industries echoes General Stencils,
stating that because a plant-closure threat is “arguably
the most serious of all the ‘hallmark’ violations” of Sec-
tion 8(a)(1) and “necessarily carries with it serious con-
sequences for all employees in the event of a union elec-
tion victory,” it “will, all but inevitably, be discussed
among employees.” 332 NLRB at 40. The Board ac-
knowledged that its precedent on this issue “has not been
entirely uniform,” comparing Coach & Equipment Sales
Corp., 228 NLRB 440 (1977) (presuming dissemination
of a plant-closure threat), with Kokomo Tube, supra (de-
clining to presume dissemination of a plant-closure
threat). 332 NLRB at 40–41. However, it denied that
Kokomo Tube had overruled General Stencils or Coach
& Equipment Sales, pointing out that Kokomo Tube did
not even discuss those decisions. Id. at 41 fn. 7.
We agree with the Springs Industries majority that a
threat of plant closure is a grave matter. We also ac-
knowledge that Kokomo Tube created uncertainty by
declining to presume dissemination of a plant-closure
threat without expressly overruling General Stencils or
Coach & Equipment Sales and without the kind of analy-
sis provided by former Chairman Miller in his dissent in
General Stencils, supra, and former Member Hurtgen in
his dissent in Springs Industries, supra. Nevertheless, for
the reasons more fully set forth below, we agree with the
Respondent, former Chairman Miller and Member Hurt-
gen that Kokomo Tube represents the better evidentiary
rule in requiring the party that seeks to rely on dissemi-
nation throughout the plant to show it. We return to that
rule by our decision today.6
First, the Springs Industries presumption is contrary to
the general rule that the burden of proof should rest on
the party who “seeks to change the present state of affairs
and who therefore naturally should be expected to bear
the risk of failure of proof or persuasion.” John William
Strong, ed., McCormick on Evidence § 337 (4th ed.
1992). This basic rule has been emphasized in represen-
tation cases. Because “[t]here is a strong presumption
that ballots cast under specific NLRB procedural safe-
guards reflect the true desires of the employees,” NLRB
v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir.
1991), “the burden of proof on parties seeking to have a
Board-supervised election set aside is a ‘heavy one,’”
Kux Mfg. Co. v. NLRB, 890 F.2d 804, 806 (6th Cir. 1989)
(quoting Harlan #4 Coal Co. v. NLRB, 490 F.2d 117,
120 (6th Cir. 1974)). By shifting the burden of proof
from the objecting party to the party seeking to uphold
the results of a Board-supervised election, Springs Indus-
tries runs counter to the burden-allocation norm.
Second, the rationale for the Springs Industries pre-
sumption invites a broader undermining of the burden-
allocation principle the Board follows. The majority in
Springs Industries appealed to the Board’s “traditional
practice,” as exemplified by General Stencils. However,
the Board majority in General Stencils relied on deci-
sions that extend the dissemination presumption beyond
plant-closure threats, and even beyond threats altogether:
Standard Knitting Mills, Inc., 172 NLRB 1122 (1968)
(presuming dissemination of threats of plant closure and
loss of benefits); Garland Corp., 162 NLRB 1570 (1967)
(presuming dissemination of interrogations and threats of
loss of benefits), enf. denied 396 F.2d 707 (1st Cir.
1968); W.T. Grant Co., 168 NLRB 93 (1967) (presuming
dissemination of a variety of coercive statements, none
of which were threats); Darby Cadillac, 169 NLRB 315
(1968) (presuming dissemination of promises of bene-
fits). The Springs Industries majority also relied on a

6 The dissent’s introduction suggests that our action today overrules
an unbroken line of precedent dating from the 1950s. Obviously, that is
not so. The requirement in Kokomo Tube that an objecting party bear
the burden of proving dissemination of a threat was no mere single case
aberration. In fact, Kokomo Tube was the law from 1986 until over-
ruled by Springs Industries in 2000, and it was consistent with the
overall allocation of evidentiary burdens that has been in effect since
the Board began conducting representation elections.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD778
belief that it is “virtually inevitable” that plant-closure
threats will be a topic of conversation among employees.
We discuss the merits of that belief below. The point
here is that it is not at all clear what would constrain the
Board from deciding that other kinds of coercive state-
ments are also likely to “make the rounds,” justifying
presuming their dissemination as well sufficient to set the
election aside. Further, if the dissemination presumption
were allowed to stand, there is no apparent basis for de-
clining to extend it to other kinds of coercive statements,
undermining the general rule that places a heavy burden
of proof on the party seeking to set aside the results of a
Board-supervised election.7
Third, the presumption is unnecessary. Presumptions
of fact are often created “to assist in certain circum-
stances where direct proof of a matter is for one reason or
another rendered difficult.” Panduit Corp. v. All States
Plastic Mfg. Co., 744 F.2d 1564, 1581 (Fed. Cir. 1984),
implicitly overruled on other grounds by Richardson-
Merrell, Inc. v. Koller, 472 U.S. 424, 432 (1985). Ac-
cording to Springs Industries, however, dissemination of
any plant-closure threat sufficient to set an election aside
is all but inevitable, so direct proof of that fact should be
easy. As then-Member Hurtgen pointed out in his partial
dissent in Springs Industries, if dissemination of these
threats is all but inevitable, then it would reasonably be
expected that some employees could testify to dissemina-
tion. Similarly, former Chairman Miller, dissenting in
General Stencils, observed: “A chain of dissemination is
a relatively easy matter to establish through testimony of
employees who participated in the transmission.” 195
NLRB at 1114. The Second Circuit firmly agreed with
the Chairman. In denying enforcement of the Board’s
order in General Stencils, it referred to the General
Counsel’s burden of proving dissemination as “exceed-
ingly slight” and one of which he should not be relieved.
NLRB v. General Stencils, Inc., 472 F.2d 170, 173 (2d
Cir. 1972).
Fourth, as easy as it is for a party asserting the coer-
cive effects of an employer’s threat to prove its dissemi-
nation throughout the plant, it is correspondingly difficult
for an employer to rebut the Springs Industries dissemi-
nation presumption. To do so, the employer must estab-
lish “through record evidence either that the employees
threatened did not tell other employees about the threat,
or that those employees whom they told did not in turn
tell any other employees about the threat.” Springs In-

7 Our dissenting colleagues do just that. They would not only affirm
Springs Industries, but extend it. They say that “any threat or promise
sufficiently coercive as to make it a likely topic of workplace conversa-
tion should be presumed disseminated.” We say it is far better to have
evidence of dissemination before invalidating a Board election.
dustries, supra at 40 fn. 4.8 Thus, to find out whether it
has a nondissemination defense, and to prepare that de-
fense in advance of the hearing, the employer needs to
know the identity of the employees allegedly threatened.
However, in many instances the employer will not have
that information in advance of the hearing; and even if
the employer does know that much, it could not compel
its employees to name those told of the threat, and it is
unlikely that employees will volunteer such information.9
These obstacles, present in any R case, are exacerbated
in a consolidated C and R case, where Board procedures
make it even more difficult for the employer to obtain the
information it needs to prepare a nondissemination de-
fense. In communicating with charged parties, Board
agents are specifically instructed to “avoid providing
details that would likely disclose the identity” of wit-
nesses. NLRB Casehandling Manual (Part One) Investi-
gation § 10054.4. Moreover, the employer has no ad-
vance access to witness statements because such state-
ments remain confidential until after the witness has tes-
tified at the hearing. Id. § 10060.5. Neither may an em-
ployee alleged to be the object of 8(a)(1) conduct (such
as threats) be named in the complaint. NLRB Casehan-
dling Manual (Part One) Formal Proceedings § 10264.2.
Finally, the Supreme Court has cautioned the Board
that our presumptions of fact “must rest on a sound fac-
tual connection between the proved and inferred facts.”
NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 787 (1979)
(citing Republic Aviation Corp. v. NLRB, 324 U.S. 793,
804–805 (1945)). The Court described this connection in
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775
(1990), as one in which “proof of one fact renders the
existence of another fact ‘so probable that it is sensible
and timesaving to assume the truth of [the inferred] fact
. . . until the adversary disproves it.’” Id. at 788–789
(quoting E. Cleary, ed., McCormick on Evidence § 343,
at 969 (3d ed. 1984)). As mentioned, our dissenting col-
leagues rely on the assumption that dissemination of a
plant-closure threat is not only probable, it is “all but
inevitable.” The dissent must concede that there is no
empirical evidence supporting such an inevitability with-

8 We do not necessarily agree with former Chairman Miller’s obser-
vation in General Stencils, supra at 1114, that the employer must secure
“the denial of most or all of the employees in the affected group.” We
believe that the burden is as we have stated it above, and that this bur-
den is substantial.
9 Unlike our colleagues, we do not find that an employer’s ability to
interview supervisors and sift through the plant for cooperative em-
ployees and to compel testimony of other less cooperative employees
justifies shifting the traditional burden of proof. Our colleagues also
say that the employer can lawfully interrogate supervisors and employ-
ees as to dissemination. We agree as to the former, but under extant
Board law the lawfulness of interrogating employees will depend on the
circumstances.
CROWN BOLT, INC. 779
out regard to the circumstances, much less evidence suf-
ficient to support a probability that the dissemination is
always sufficient to set aside an election. While common
intuition suggests that a clear and unequivocal threat of
plant closure is more likely than not to be disseminated,
we cannot turn a blind eye to the reality that the probabil-
ity of the dissemination of a threat of plant-closure and
the extent of its dissemination may be reduced by the
circumstances, including the manner in which the threat
is conveyed, to whom, by whom and under what circum-
stances, and the size and makeup of the unit. Words that
convey a threat of plant closure to one person may not
necessarily carry the same meaning to another. Words
spoken by a plant owner or hospital chief executive offi-
cer in a formal meeting have a different level of serious-
ness than different words used during casual conversa-
tion by a low-level plant supervisor.
The issue we address here concerns the kind of proof
that the Board should require from an objecting party
before invalidating a vote cast by employees in a Board-
conducted representation election. Our dissenting col-
leagues do not dispute that the objecting party generally
bears the burden of proof in this respect. By acknowl-
edging that an employer can rebut the presumption of
dissemination they would impose, they concede that,
however commonsensical dissemination may seem to be,
there are occasions when a threat of plant closure is not
objectionable because there is no dissemination sufficient
to set aside an election. They also do not contend that
the objecting party lacks access to evidence of dissemi-
nation.10
Instead, the dissent claims that the Board should ad-
here to the Springs Industries presumption because it is a
traditional evidentiary practice and it is a more practical
one from the standpoint of administrative efficiency. As
previously stated, we regard the overall allocation of
burdens of proof in objections cases as the controlling,
and more venerable, evidentiary practice. Furthermore,
we question the view that requiring an employer to prove
nondissemination achieves any administrative efficiency.
In any event, where the serious matter of determining the

10 The dissent reasons that the objecting party would encounter diffi-
culty in securing the testimony of employee witnesses against their
employer. This argument proves too much or too little. On the one
hand, employees would seemingly be as reluctant, if not more so, to
testify about the threat itself than about its dissemination. Surely, the
dissent is not suggesting that we rely on this reluctance to shift the
burden of proof entirely to the employer to refute a bare allegation of
an objectionable threat. On the other hand, absent any evidence of
employer intimidation of witnesses or interference in the hearing proc-
ess, there is no basis for finding that employees are so fearful of reprisal
that they will not tell the truth about what they said or heard.
validity of employee choice on a question concerning
representation is involved, we find the dissent’s reasons
insufficient to justify substituting a presumption for ac-
tual evidence of dissemination.
Accordingly, for the foregoing reasons, we will over-
rule Springs Industries, General Stencils, Coach &
Equipment Sales, and all other decisions in which the
Board has presumed dissemination of plant-closure
threats or other kinds of coercive statements, to the ex-
tent that those decisions so presume. Where proof of
dissemination of coercive statements, including threats of
plant closure, is required, the objecting party will have
the burden of proving it and its impact on the election by
direct and circumstantial evidence. Again, we adhere to
the view that a threat of plant closure in retaliation for or
to thwart protected activity is a very severe threat and
highly coercive of employees’ rights. However, the se-
verity of a threat is one factor, among several, to be con-
sidered in deciding whether to set aside an election. See
Caron International, 246 NLRB 1120 (1979) (noting the
factors the Board considers in resolving the question
whether misconduct affected the results of an election;
factors include the number of violations, their severity,
the extent of dissemination, and the size of the unit). In
our view, the increased severity of a threat should not
shift away from the objecting party the burden to prove
dissemination and the extent thereof. However, the evi-
dence supporting the factors other than dissemination
(the number of violations, severity of violations, and the
size of the unit) may be such as to affect the extent of the
dissemination evidence required before an election
should be set aside.
It remains to decide whether to apply the rule we an-
nounce today retroactively to all pending cases, including
this one. “The Board’s usual practice is to apply all new
policies and standards to all pending cases in whatever
stage.” Levitz Furniture Co. of the Pacific, 333 NLRB
717, 729 (2001) (internal quotations omitted). Moreover,
in representation cases, the Board has recognized a pre-
sumption in favor of applying new rules retroactively.
Randell Warehouse of Arizona, Inc., 330 NLRB 914 fn.
1 (2000); North Macon Health Care Facility, 315 NLRB
359, 361 (1994). That presumption is overcome, how-
ever, where retroactivity will have ill effects that out-
weigh “the mischief of producing a result which is con-
trary to a statutory design or to legal and equitable prin-
ciples.” Levitz, supra (internal quotations omitted).
Here, we find that retroactivity would have ill effects
that outweigh other concerns. At this late date, remand-
ing for proof of dissemination of Garcia’s threat would
be an exercise in futility. Unlike documentary evidence,
which persists through time, the evidence of threat dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD780
semination resides in people’s memories—and memories
fade, and people move on. Arias, one of the two indi-
viduals Astorga told about the threat, has long since left
the Respondent’s employ. He may be difficult or even
impossible to locate. In addition, more than 4 years have
elapsed since the hearing in this matter. Even assuming
that Arias could be located, neither he nor Union Agent
Valenzuela could reasonably be expected to recall, with
reliable specificity, whether they related the threat, and to
whom. Similar obstacles to eliciting reliable proof of
dissemination could be expected in other pending cases.
Thus, fairness to the objecting union favors limiting our
new rule to prospective application.
In light of these considerations, we will apply the rule
we announce today prospectively only. In all pending
cases involving plant-closure threats, we will continue to
apply Springs Industries and rebuttably presume that the
threat was widely disseminated. Applying that presump-
tion here, we find that the Respondent failed to rebut the
presumption: although Astorga related Garcia’s threat
only to Arias and Valenzuela, the Respondent did not
establish that those two individuals did not relate the
threat to others. Thus, we adopt the judge’s recommen-
dation that Objections 2 and 4 be sustained, and we af-
firm her conclusion that the election must be set aside.11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Crown Bolt, Inc., Cerritos,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election in Case 21–
RC–20192 is set aside, and the case is remanded to the
Regional Director for Region 21 to conduct a second
election at a time and place to be determined by her.
[Direction of Second Election omitted from publica-
tion.]
MEMBERS LIEBMAN AND WALSH, dissenting in part.
Since the 1950s, at least, the Board rightly has recog-
nized that when an employer threatens to close a plant if
the union wins a representation election, the threat very
likely will make the rounds of the workplace.1 It is, after

11 In setting aside the election, the judge, applying Board precedent,
found that it is not virtually impossible to conclude that Garcia’s threat
affected the results of the election. In the absence of exceptions, we do
not pass on the judge’s finding or the precedent upon which it was
based.
1 See, e.g., Springs Industries, 332 NLRB 40 (2000); Petaluma Hos-
pital, 271 NLRB 412 fn. 1 (1984); Coach & Equipment Sales Corp.,
228 NLRB 440 (1977); General Stencils, Inc., 195 NLRB 1109, 1110
(1972), enf. denied 472 F.2d 170 (2d Cir. 1972); Standard Knitting
all, an extraordinarily powerful message, for it implies
the end of every employee’s job. Today, the majority
jettisons the Board’s established practice, overruling
Springs Industries and reinstating an evidentiary re-
quirement that, in fact, represented an unexplained depar-
ture from precedent. We cannot agree with a holding so
at odds with long-recognized realities.2
The Board has said that dissemination of plant-closure
threats is “all but inevitabl[e].” General Stencils, supra;
Springs Industries, supra. It has characterized the suppo-
sition that such threats would not be discussed as “totally
unrealistic,” Continental Investment Co., 236 NLRB 237
(1978), and “the ultimate in naiveté,” C & T Mfg. Co.,
233 NLRB 1430 (1977). The accuracy of these state-
ments cannot be seriously questioned.3 Accordingly, as
the Board stated in Springs Industries, presuming dis-
semination of at least the most serious threats represents
the Board’s “traditional practice.”4 Going against that

Mills, Inc., 172 NLRB 1122 (1968); Plum Creek Logging Co., 113
NLRB 800, 813 (1955).
2 We do agree with our colleagues that the Respondent violated Sec.
8(a)(1) of the Act by threatening to close its Cerritos, California plant if
its employees at that plant voted in favor of union representation. We
also agree that the election results, tainted by this threat, must be set
aside.
3 Indeed, the Board’s commonsense practice of rebuttably presuming
that a threat of plant closure will be disseminated among employees is
entirely consistent with another well-accepted analogous principle: that
of the “lore of the shop.” The Board can assume that certain unfair
labor practices, such as threats of plant closure, “live on in the lore of
the shop and continue to repress employee sentiment long after most, or
even all, original participants have departed. The Board is not com-
pelled to infer that past practices have attenuated, especially practices
striking directly at the heart of the security of the employees, such as
threats to close the plant . . . . [T]he Board could find that regardless of
turnover the taint of the practices would continue.” Bandag, Inc. v.
NLRB, 583 F.2d 765, 772 (5th Cir. 1978); see also Aldworth Co., 338
NLRB 137, 152 (2002), enfd. 363 F.3d 437 (D.C. Cir. 2004); Garvey
Marine, Inc. v. NLRB, 245 F.3d 819, 828 (D.C. Cir. 2001); NLRB v. Q-
1 Motor Express, Inc., 25 F.3d 473, 481–482 (7th Cir. 1994), cert.
denied 513 U.S. 1080 (1995); Piggly Wiggly v. NLRB, 705 F.2d 1537,
1543 (11th Cir. 1983). If the Board can reasonably assume that plant
closing threats will be repeated to new employees for months or years
after an election, it can, a fortiori, assume that they will be dissemi-
nated throughout the bargaining unit during the election campaign.
4 See, e.g., Mid-South Drywall Co., 339 NLRB 480, 481 (2003);
Jonbil, Inc., 332 NLRB 652, 668 (2000); Springs Industries, 332
NLRB 40 (2000); Spring City Knitting Co., 285 NLRB 426, 448
(1987); Sears Roebuck de Puerto Rico, Inc., 284 NLRB 258, 263
(1987); Times Wire & Cable Co., 280 NLRB 19, 38 (1986); Stop N’ Go
Inc., 279 NLRB 344, 354 (1986); Petaluma Hospital, 271 NLRB 412
fn. 1 (1984); Pace Oldsmobile, Inc., 265 NLRB 1527, 1529 (1982), enf.
denied 739 F.2d 108 (2d Cir. 1984); Gordonsville Industries, Inc., 252
NLRB 563, 603 (1980), enfd. mem. 673 F.2d 550 (D.C. Cir. 1982);
Coca-Cola Bottling Co., 250 NLRB 1341, 1343 (1980); Northern Tele-
com, Inc., 250 NLRB 564, 565 (1980); Ste-Mel Signs, Inc., 246 NLRB
1110 (1979); Hitchiner Mfg. Co., 243 NLRB 927, 928 fn. 4 (1979),
enfd. 634 F.2d 1110 (8th Cir. 1980); C & T Mfg. Co., 233 NLRB 1430
(1977); Petersburg Mfg. Co., 233 NLRB 1236, 1237 (1977); Coach &
CROWN BOLT, INC. 781
traditional practice, the majority invokes Kokomo Tube.5
In fact, as the majority is compelled to admit, the
Kokomo Tube Board failed even to acknowledge that it
was departing from precedent, let alone to explain why it
was doing so. In truth, the Board’s failure to presume
threat dissemination in Kokomo Tube was simply an ab-
erration.6
The majority reasons that the union should bear the
burden of proving dissemination because the burden of
proof on election objections generally rests on the object-
ing party. However, burdens of proof are often allocated
based on “the judicial estimate of the probabilities of the
situation,” with the burden being placed on “the party
who contends that the more unusual event has occurred.”
John William Strong, ed., McCormick on Evidence § 337
(4th ed. 1992). “[Courts] ask: ‘what will be the probable
state of facts in most cases?’ so that the burden of show-
ing an idiosyncratic course of events can be placed on the
party asserting the unusual.” Charles Alan Wright &
Kenneth W. Graham Jr., 21 Federal Practice & Proce-
dure: Evidence § 5122, at 557 (1977). Thus, histori-
cally, the Board has rightly placed on the employer the
burden to prove what would be a highly idiosyncratic
fact—namely, that contrary to every likelihood, employ-
ees did not talk with each other about their employer’s
plant-closure threat.
We disagree with former Chairman Miller’s dissenting
view in General Stencils, supra at 1114, that
“[n]ondissemination is virtually impossible to prove ex-
cept by the denial of most or all of the employees in the
affected group.” That seriously overstates the em-
ployer’s burden under the Board’s traditional rule. As
our colleagues acknowledge, the employer’s task is sim-
ply to establish “either that the employees threatened did
not tell other employees about the threat, or that those
employees whom they told did not in turn tell any other
employees about the threat.” Springs Industries, supra at
40 fn. 4. If an employer finds itself having to put most or
all unit employees on the stand, then obviously it does

Equipment Sales Corp., 228 NLRB 440 (1977); Viele & Sons, Inc., 227
NLRB 1940, 1949 fn. 22 (1977); The Meat Cleaver, 200 NLRB 960,
965 (1972), enfd. sub nom. NLRB v. Asher, 492 F.2d 1189 (9th Cir.
1974); General Stencils, Inc., 195 NLRB 1109, 1110 (1972), enf. de-
nied 472 F.2d 170 (2d Cir. 1972); Stoutco, Inc., 180 NLRB 178 (1969);
Standard Knitting Mills, Inc., 172 NLRB 1122 (1968); Plum Creek
Logging Co., 113 NLRB 800, 813 (1955).
5 Kokomo Tube Co., 280 NLRB 357 (1986).
6 The majority disagrees with our characterization of Kokomo Tube,
asserting that the objecting party’s burden of proving dissemination of a
threat “was no mere single case aberration” because Kokomo Tube was
the law from 1986 to 2000. In those 14 years, however, Kokomo Tube
was never applied by the Board to require an objecting party to prove
dissemination of a threat of plant closure. We stand by our characteri-
zation.
not have a nondissemination defense. The majority also
says that the burden of proving dissemination is an easy
matter. This ignores the reality that employees are often
reluctant, even afraid, to testify against their employer,
complicating the burden on the objecting party.7 Fur-
thermore, since nondissemination is rare, the more prac-
tical rule from the standpoint of administrative efficiency
is to presume the common event of dissemination and to
require proof only of the rare one.8
The majority acknowledges that “a clear and un-
equivocal threat of plant closure is more likely than not
to be disseminated,” but contends that a variety of cir-
cumstances sufficiently diminish that likelihood to make
proof of dissemination the better rule. We disagree with
our colleagues’ assessment of the impact of these cir-
cumstantial variations. A threat of plant closure is so
explosive, implying such serious and wide-ranging con-
sequences for the lives of employees and their families,
that it will almost certainly be talked about no matter
where the threatener stands in the corporate hierarchy or
how casually he or she drops it into the conversation.
Regardless of the varying circumstances our colleagues
cite, dissemination of a plant-closure threat is “so prob-
able that it is sensible and timesaving to assume the
truth” of that fact “until the [employer] disproves it.”
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,
788–789 (1990) (internal quotations omitted). In the rare
event that such a threat is not taken seriously or disre-
garded entirely, it should be easy for the employer to
show that it was not disseminated.
Our colleagues are troubled by the prospect that other
coercive employer statements besides plant-closure
threats might be presumed disseminated under the ra-

7 The majority says that our argument in this regard “proves too
much” because “employees would seemingly be as reluctant, if not
more so, to testify about the threat itself than about its dissemination.”
To establish a violation, however, requires only one brave employee
willing to testify to the threat itself. Under the majority’s new rule, by
contrast, it could take many similarly brave employees to overturn the
results of an election tainted by that threat. The majority also says our
argument “proves too little” because, absent evidence of intimidation or
other interference, employees will not be so fearful of reprisal that they
will not tell the truth. Our concern, however, is more about getting
them on the stand in the first place. The majority fails to appreciate the
dilemma that its new rule imposes on the objecting union. If the union
forgoes the dissemination testimony of reluctant employees, it risks
losing the chance of a rerun election altogether. But if it compels their
testimony, it may get another election—but then it likely will have
incurred the hostility of employee witnesses who will vote in that elec-
tion.
8 Without explanation, the majority questions whether the Springs
Industries presumption achieves efficiencies. The majority also seeks
to make a virtue of inefficiency by championing the “more venerable”
principle that places the burden of proof on the objecting party. We
also adhere to that principle, but it does not compel the Board to require
proof of what is practically a foregone conclusion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD782
tionale of Springs Industries. The Board has already
demonstrated, however, that it has no intention of apply-
ing Springs Industries without regard to the nature of the
particular employer statement. See Bon Appetit Man-
agement Co., 334 NLRB 1042, 1044 fn. 12 (2001) (de-
clining to presume dissemination of threat to one em-
ployee to reduce her wages). On the other hand, we see
no reason to impose any a priori limitations on the appli-
cation of the Springs Industries presumption in other
contexts. Any threat or promise sufficiently coercive as
to make it a likely topic of workplace conversation
should be presumed disseminated, absent proof to the
contrary by the party asserting the improbable fact of
nondissemination. While plant-closure threats obviously
fall into this category, there is no reason to assume that
only such statements possess the requisite degree of co-
erciveness; and the Board has not so assumed. To the
contrary, it has in other cases presumed dissemination of
coercive employer statements in cases that did not in-
clude threats of plant closure.9
Finally, the Respondent contends that it is unfair to re-
quire employers to prove nondissemination because the
necessary evidence is too difficult to obtain. Before
abandoning the Board’s traditional presumption on this
issue, however, our colleagues should ask whether the
problem they purport to solve really exists. Neither the
Respondent nor the majority cites a single case in which
an employer has criticized the dissemination presumption
as unfair or inappropriate. In truth, our colleagues exag-
gerate the employer’s evidentiary difficulties. The com-
plaint typically will, and the objections may, disclose the
identity of the employer’s agent responsible for the
threat. In any event, the Act places no constraints on an
employer’s interrogation of its supervisors to find out
who said what, and to whom. Thus informed, in order to
prepare a nondissemination defense, the employer may
lawfully question its employees, subject to certain limita-
tions and safeguards.10 To the extent employees decline
to be interviewed, the employer may subpoena their at-
tendance at the hearing; and if additional employees are
identified at the hearing as having heard the threat, the
employer could ask the judge for a continuance and sub-
poena those individuals as well. As a matter of due
process, the employer would be entitled to a full oppor-
tunity to establish the facts necessary to its defense. The

9 See, e.g., Vinyl-Fab Industries, 265 NLRB 1097, 1098 fn. 7 (1982)
(threats of layoff, discharge, and more onerous working conditions);
Continental Investment Co., 236 NLRB 237 (1978) (threat to discharge
an entire work force); Warehouse Market, Inc., 216 NLRB 216, 217
(1975) (threats of reprisal, interrogations, promises of benefits).
10 See Johnnie’s Poultry Co., 146 NLRB 770, 775 (1964), enf. de-
nied 344 F.2d 617 (8th Cir. 1965).
Respondent does not contend that it pursued the forego-
ing measures and found them unavailing. Instead, it ad-
vances a bare assertion of unfairness, unsupported by any
evidence. Thus, we reject the Respondent’s assertion
that the rule of Springs Industries is somehow unfair to
this Respondent or to employers generally. For the rea-
sons explained above, we would adhere to that rule.
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 any 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 threaten our employees that we may
close our facility if they select Wholesale Delivery Driv-
ers, Salespersons, Industrial and Allied Workers, Local
848, International Brotherhood of Teamsters, AFL–CIO,
as their collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
CROWN BOLT, INC.
Ann Weinman, Atty., for the General Counsel.
Jamie L. Johnson, Atty. (Brobeck, Phleger & Harrison LLP), of
Los Angeles, California, for the Respondent.
Manny Valenzuela, Wholesale Delivery Drivers, Salespersons,
Industrial and Allied Workers, Local 848 International
Brotherhood of Teamsters, AFL–CIO, of El Monte, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This consoli-
dated case was tried in Los Angeles, California, on September
26 and 28, 2000,1 pursuant to a report on objections in Case
21–RC–20192, order directing hearing, order consolidating
cases and notice of hearing and order consolidating cases, con-
solidated complaint and notice of hearing, issued by the Re-
gional Director for Region 21 of the National Labor Relations

1 All dates are in 2000 unless otherwise indicated.
CROWN BOLT, INC. 783
Board (Region 21) on July 10 and July 27, respectively. The
consolidated complaint is based on charges in Cases 21–CA–
33846, 21–CA–33850, and 21–CA–33915, filed by Wholesale
Delivery Drivers, Salespersons, Industrial and Allied Workers,
Local 848, International Brotherhood of Teamsters, AFL–CIO
(the Union) against Crown Bolt, Inc. (Respondent).
The consolidated complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act) by denying employee Manuel Leon (Leon) a regularly
scheduled wage increase, imposing more onerous work condi-
tions on employees Jose Martinez (Martinez) and Leon by
prohibiting them from speaking with their coworkers, imposing
more onerous work conditions on employees Gilbert Astorga
(Astorga) and Martinez by prohibiting their continued use of
Respondent’s computers and prohibiting contact between them.
The consolidated complaint further alleges that the Respondent
undertook these actions because employees Leon, Martinez,
and Astorga had engaged in union and other protected con-
certed activities and to discourage employees from engaging in
such activities.
The consolidated complaint also contains allegations that
Respondent violated Section 8(a)(1) of the Act by granting an
employee a wage increase so as to dissuade support for the
Union, threatening an employee with facility closure if the
Union was selected as the employees’ representative, and offer-
ing an employee a management position so as to dissuade sup-
port for the Union, and thereby interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights.
Respondent filed its answer on July 10. Respondent denies
that any of its actions or its supervisors’ statements to employ-
ees was unlawful under the Act.
On April 20, the Union filed objections to an election con-
ducted April 13, among employees in a stipulated unit of pro-
duction and warehouse employees. The objections allege that
Respondent engaged in certain conduct during the critical labo-
ratory period, which interfered with the election. By letter dated
September 22, served on all parties, the Union, through its
counsel, Lourdes M. Garcia, withdrew Objections 1, 3, 5, 6, 8,
10, and 12. At the commencement of the hearing, the General
Counsel moved to amend the complaint to conform with Re-
spondent’s description of position and title of individuals al-
leged to be supervisors and agents of Respondent in paragraph
5 of the consolidated complaint, which motion was granted
without objection.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following

2 The admitted supervisors of Respondent and their titles are as fol-
lows:
Gerardo Ponce (Ponce)—Supervisor
Renso Valdez (Valdez)—Director of Warehouse Operations
Rudy Garcia (Garcia)—Manager
Ray Taccolini (Taccolini)—CEO
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engages in the manufacture, sale,
and distribution of hardware fixtures at its facility in Cerritos,
California, where it annually sells and ships goods valued in
excess of $50,000 directly to points outside the State of Cali-
fornia. Respondent admits and I find that it 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. LABOR ORGANIZATION
At all relevant times the Union has been, and is now, a labor
organization within the meaning of Section 2(5) of the act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent installed a new computer system for its opera-
tions in 1999 with the object of becoming Y2K compliant.
Implementation commenced in November 1999. The account-
ing/finance department was the first to receive the new com-
puter process. The system for the manufacturing and distribu-
tion department wasn’t addressed until after the first of the
year. Some computers, notably those in the production area
were designed for multiple use. Respondent experienced sig-
nificant and widespread malfunctioning of its computer system.
J. D. Edwards, the software firm contracted to set up the sys-
tem, conducted reviews and tests of the system. The consult-
ants reported to Mark Pelley (Pelley), executive vice president
of Respondent, that individuals without computer identification
and/or passwords were operating the computers, and there was
no way to trace errors or system breakdowns. The consultants
recommended tightening security to ensure that only authorized
employees use the system. Respondent therefore notified all
employees without assigned passwords that they could not use
the computers.3
B. The Union Campaign
Manny Valenzuela (Valenzuela), head organizer of the Un-
ion, received telephone calls in January or February from em-
ployees of Respondent. Valenzuela thereafter formed commit-
tees among the interested employees, provided authorization
cards for signature, passed out handbills, union buttons, T-
shirts, and pro-union stickers in the parking lot of the Respon-
dent. Principal supporters of the Union were Francisco
Montoya (Montoya), Martinez, Astorga, Leon, Miguel Phillips,
Veronica ______, and Vanessa ______,4 all of whom were
active in passing out literature and union items and in inform-
ing employees of meeting times and places.

3 The testimony of Pelley in this regard was uncontradicted. Where
not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, and/or unchallenged credible evidence.
4 Valenzuela could not recall the last names of these employees and
the record does not reflect them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD784
Respondent campaigned against the Union holding meetings
with employees and passing out literature.5 In about the begin-
ning of February, Respondent held a meeting with its managers
and supervisors and instructed them as to appropriate conduct
during a union campaign. Each was given a written statement
setting out the company’s commitment to maintain its nonunion
status and its intention to oppose any attempt at unionization.
The statement contained a list of “Do’s” and “Do Not’s,” which
supervisors were directed to follow.6 In late February or early
March, the Union petitioned Region 21 for an election in a unit
of the Respondent’s employees. A Stipulated Election Agree-
ment between the Union and the Respondent was approved on
March 16, 2000, and an election was conducted on April 13,
2000, resulting in a revised tally of ballots showing, inter alia,
148 votes cast for and 182 votes cast against the Union. There-
after, the Union timely filed objections to the election.7
C. Alleged Violations of the Act
The General Counsel’s unfair labor practice allegations fall
into two broad categories: (1) violations of Section 8(a)(3) and
(1) of the Act by denial of a wage increase to employee Leon;
imposition of more onerous work conditions on employees
Martinez and Leon by prohibiting talking to coworkers; impo-
sition of more onerous work conditions on employees Astorga
and Martinez by prohibiting computer use and contact between
them. (2) violations of Section 8(a)(1) of the Act by grant of a
wage increase; threat of company closure; offer of promotion.
1. Events respecting Manuel Leon
Consolidated complaint paragraph 6 (a) alleges that Respon-
dent denied employee Leon his regularly scheduled wage in-
crease in violation of Sections 8(a)(3) and (1)
Leon was employed by Respondent for 8 years, and had
transferred to the Cerritos facility at about the beginning of
January where he continued his job as a production packer. He
worked there until about the end of May when he suffered a job
injury, which is currently the subject of a workers compensa-
tion claim. Leon had not returned to work as of the hearing
date.

5 The parties stipulated that Respondent engaged in a campaign
against the Union. There is no allegation that any of Respondent’s anti-
union campaign activities in employee meetings violated the Act.
6 The list of “Do’s” advised supervisors to answer questions with
straightforward information, to state Respondent’s position on unioni-
zation, to listen to volunteered information, to tell employees that sign-
ing a union card is the first step to joining a union, to respond immedi-
ately to any potentially violent situation, and to inform the human re-
sources manager of any union activities or rumors thereof. The list of
“Do Not’s” directed supervisors not to spy on union activities, or create
that impression, not to threaten reprisal, retaliation, or force, not to
promise incentives, not to allege that current benefits would be taken
away, not to discuss complaints or petitions with groups of employees,
not to start or sign an antiunion petition, not to treat union sympathizers
unequally, not to ask employees how they intended to vote, not to en-
courage employees to withdraw their authorization cards, or to prohibit
wearing of union insignia.
7 The Charging Party stated at the hearing that the unfair labor prac-
tice allegations and evidence adduced to support them constitute the
basis of the objections. The Union did not introduce independent evi-
dence.
Leon actively supported the union campaign. It is undis-
puted that Respondent knew of his prounion activities.
Leon testified regarding the denial of a wage increase as fol-
lows:
Leon received yearly performance reviews during his
employment with Respondent. In about February, he had
a conversation with Valdez. Valdez asked him what he
“thought about all this,” referring to the union campaign.
Leon answered that the Union was there for a reason, and
then asked when he would have his review. About 2
weeks later, Valdez, having obtained Leon’s Buena Park
and Cerritos reviews, met with Leon. Also present was
Henry Magallon (Magallon), shipping supervisor. Valdez
gave Leon a written review showing a low review score
and no wage increase. Leon told Valdez that he didn’t ex-
pect anything else because he was “for the Union.” Val-
dez said the review had nothing to do with the Union.
Valdez told Leon that in 30 days he would be reviewed
again on his performance and that he might get a raise at
that time. This was not the first time Leon had been de-
nied a raise by Respondent. In a prior year, he had been
refused a raise at his annual review because he had been
missing too much work. Leon believed that Rich Gauger
(Gauger), supervisor at Respondent’s Buena Park facility
where Leon had spent the major part of the preceding
year, was biased against him because the supervisor be-
lieved that if an employee was not killing himself, he
wasn’t working hard enough.8
Valdez testified regarding the denial of a wage increase to
Leon as follows:
Employees’ work performances are reviewed yearly
by their supervisors. The supervisor gives each employee
a numerical rating on a review form, which is turned in to
Valdez who makes the final determination. Employees re-
ceive no wage increase unless the numerical total equates
to a “meets all expectations” rating. If the appraisal does
not result in a wage increase, Valdez talks to the supervi-
sor involved. If there is no basis to change the appraisal,
the employee is placed on a 90-day review. Regarding the
appraisal of Leon, Valdez received reviews from Gauger
and Ponce. As neither of the reviews reached the “meets
all expectations” rating, Valdez talked to Ponce who said
that Leon did not make enough production.
On April 6,9 Valdez met with Leon. Magallon was present.
Valdez showed Leon the reviews and told Leon that he would
be reviewed again in 90 days. Leon was not, however, re-
viewed again because of his intervening work injury and subse-

8 Leon did not relate Gauger’s alleged bias to union or concerted
protected activities, and there is no allegation that the work perform-
ance review by Gauger violates the Act.
9 Valdez and Leon are at wide variance on dates, and the General
Counsel argues that the discrepancy should count against Valdez’
credibility. However, if accurate recollection of dates were a touch-
stone for honesty, very little testimony could be credited. Here, both
parties appear to be in error about the date of the meeting, but fortu-
nately it is not a crucial fact.
CROWN BOLT, INC. 785
quent leave of absence. Leon’s union activity formed no basis
for the performance rating given to him or the decision not to
give him a raise increase.
The credible evidence regarding denial of a wage increase to
Leon reveals, essentially, that Leon received performance rat-
ings that did not entitle him to a wage increase under Respon-
dent’s policy.10 The question is whether the ratings were de-
valued because of Leon’s union activities. I find they were not.
Although Leon was a prominent union supporter, there is no
evidence that he was more prominent than the other named
supporters or that Respondent had in any way targeted him for
retribution. Although Valdez had asked Leon what he thought
of the union campaign, the question does not constitute a viola-
tion of Section 8(a)(1) of the Act or signify particular animosity
toward Leon. The Board has held that interrogation of employ-
ees is not unlawful per se11 and advises that “an employer may
engage in a dialogue with employees—that does not threaten or
otherwise coerce—about the . . . issues raised in a campaign.”
Sea Breeze Health Care Center, 331 NLRB 1131 (2000). Here,
Valdez sought no specific information about Leon’s or any
other employee’s union activity and expressed no disapproba-
tion or offense. As Leon was an open union supporter, Valdez
could not have been trying to determine his sentiments. In the
circumstances, the question was a noncoercive, casual inter-
change. The General Counsel has not presented any evidence
that Leon’s performance ratings were invalid or illegally
prompted. Indeed, Leon, himself, provided a possible motiva-
tion for the lower rating when he said that his prior supervisor
thought employees who were not “killing” themselves were not
working hard enough. Such a reason for the rating does not
relate to protected activities, is not unlawful, and, therefore,
cannot form the basis for a violation of the Act. The General
Counsel also has not presented any evidence that Leon’s per-
formance ratings were disparately imposed. As the Board has
pointed out, “an essential ingredient of a disparate treatment
finding is that other employees in similar circumstances were
treated more leniently than the alleged discriminate.” NACCO
Materials Handling Group, 331 NLRB 1245 (2000), citing
Thorgren Tool & Molding, 312 NLRB 628 fn. 4 (1993). In the
absence of any evidence showing disparate treatment, or that
the wage increase was wrongfully withheld, or that coercive
statements surrounded its denial, there is no 8(a)(3) violation.12

10 I find Leon to be mistaken in recalling that Valdez said he would
be reviewed in 30 days. Under cross-examination, Leon admitted that
the period stated might have been 90 days, although he later changed
his testimony to say he was positive Valdez had said 30 days. All other
credible evidence including the testimony of Becky Gray, the human
resources manager and that of Montoya who was told he would be
reviewed again in 3 months, supports a finding that 90 days was the
established waiting period for another review.
11 Emery Worldwide, 309 NLRB 185 (1992).
12 Evidence regarding alleged imposition of more onerous work con-
ditions is set forth infra. It does not establish coercive conduct by
Respondent toward Leon. Leon also testified that sometime in Febru-
ary, Taccolini came to him, grabbed him “aggressively” and said, “I
want you to have one of these [a company flyer about the Union].”
There was no further explication as to what Leon meant by “aggres-
sively.” There is no allegation in the complaint regarding Taccolini’s
conduct, and although Leon appears to have resented it, there is insuffi-
Therefore, I find that the General Counsel failed to meet his
burden of proof to show that Respondent violated Section
8(a)(3) and (1) of the Act by withholding a wage increase from
Leon.
1. Events respecting imposition of more onerous
work conditions
(a) Consolidated complaint paragraph 6 (b) alleges that Re-
spondent imposed more onerous work conditions on employees
Jose Martinez (Martinez) and Leon by prohibiting them from
speaking with their coworkers in violations of
Section 8(a)(3) and (1)
Leon testified regarding this allegation as follows:
During his employment with Respondent, and prior to
the union campaign, Leon has had personal conversations
with employees during worktime without prohibition. In
March, Leon was engaged in conversation with other em-
ployees during worktime. Garcia told him he needed to be
quiet. Leon told Garcia that everybody was talking. Gar-
cia said that Leon, however, was talking too much. Perez
also spoke to Leon about talking, saying, “You’re doing a
lot of talking; I’ve never seen you do this much talking
and you are really doing a lot of talking.” Leon accused
Perez of singling him out. Perez said, “I’m not singling
you out. Don’t talk about Union stuff on Crown Bolt’s
time.”[13]
Leon said he was sure people would be disciplined if they
were just standing and talking, but would not be if they were
working while talking as long as the work got done, and as long
as employees did not turn from their work or use conversational
gestures. He stated that he was doing a little more talking than
he had in the past, but everyone at work was talking, and he did
not see management speaking about it to anyone but him. He
said that in the past employees had been told not to talk too
much and to get back to work. Leon was not disciplined for
excess talking.
Martinez testified regarding this allegation as follows:
Seventy-five to 80 percent of employees in the receiv-
ing area where Martinez worked prior to the election were
union supporters. Martinez’ work as a receiving clerk re-
quired him to go “pretty often” into the production area,
about 10 to 20 times a day. Two weeks prior to the elec-
tion, Martinez talked to a female employee in the produc-
tion area. Both were on the clock at the time. The conver-
sation was personal and lasted about 5 minutes or less.
Garcia said to him, “You don’t belong here; why don’t
you to go over there [indicating the receiving area] where
the rest of the union members are at.” Prior to that conver-
sation, Martinez had not had personal conversations with
other employees while on the clock.
Garcia testified regarding this allegation as follows:

cient evidence to support any finding that it was coercive, constituted
animosity toward Leon’s union activities, or was intended to convey
any threat.
13 Perez was unavailable and did not testify.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD786
In March, at about 5 a.m., he saw Martinez talking to several
employees for about 5 to 7 minutes. None was working as they
talked. Garcia asked Martinez if he was on the clock, as the
company rule was no talking during worktime. Garcia said he
was not strict about the rule, but that 5–7 minutes of talking
was going too far. Garcia denied saying anything about Marti-
nez returning to the union side, but only instructed Martinez
that he was on the clock, and he should go to work. Garcia
denied ever telling Leon not to talk to employees.
I credit Martinez’ testimony that he was directed to return to
the “union” area. He testified in a forthright and detailed man-
ner in cross-examination as well as direct, and admitted adverse
facts (e.g., the personal nature and length of his conversation)
without minimization. As to the talking itself, both Leon and
Martinez admitted they had been talking during actual work
hours. Leon admitted that he was sure people would be disci-
plined for talking that interfered with work and agreed that he
was doing “a little more” talking than formerly. Martinez ad-
mitted having a personal conversation with another employee
lasting about 5 minutes. Both were told not to talk during work
time. Additionally, Leon was told not to talk “on Crown Bolt’s
time,” and Martinez was directed to return to the “Union em-
ployees.”
While a prohibition of talking about union-related matters on
company time is overly broad as it could reasonably be con-
strued as including nonworking time spent at an employer’s
premises14 in the circumstances of this case, the statement to
Leon is not coercive. Respondent has a legitimate business
interest in controlling talking among employees while they are
actually working. There is no evidence that Respondent went
beyond its legitimate interest in telling Leon and Martinez to
restrict their talking. It is clear that employees were unre-
strained by Respondent in their exercise of concerted, protected
activities while at the company and while not actually working.
They were free to pass out flyers, promotional T-shirts, and
buttons and talk to employees during breaks or while immedi-
ately outside the facility or in the parking lot and to wear union
promotional tee shirts and buttons at all times.15
The direction to Martinez to return to the “union” area, while
revealing animosity toward the Union, was also not coercive. It
was known that the receiving department was a hub of union
activity, and Martinez was open in his union adherence. He
was not threatened or disciplined in connection with his being
told to return to his area or disadvantaged in any way. There is
no evidence that other employees exclusively occupied in per-
sonal conversations during actual worktime as were Leon and
Martinez were treated differently. Thus, there is no evidence of
disparate treatment, and an essential ingredient of an 8(a)(3)
finding is missing. See NACCO Materials Handling Group,
supra. Therefore, I find that the General Counsel failed to meet
his burden of proof that Respondent violated Section 8(a)(3)
and (1) of the Act by imposing more onerous work conditions

14 Litton Microwave Cooking Products, 300 NLRB 324 (1990).
15 Leon, Martinez, Montoya, and Astorga testified to the breadth of
their activities on behalf of the Union. The latter two employees were
not cautioned about talking.
on employees Martinez and Leon by prohibiting them from
speaking with their co-workers.
(b) Consolidated complaint paragraph 6 (c) alleges that Re-
spondent imposed more onerous work conditions on employees
Astorga and Martinez by prohibiting their continued use of
computers and prohibiting contact between them
Astorga testified regarding this allegation. He has been an
employee of Respondent for 2-1/2 years and a receiving associ-
ate for 2 of those years. He was aware that sometime before
Christmas 1999, Respondent installed a new computer system.
In early 2000, he participated in the union campaign by hand-
billing, talking to employees, and passing out T-shirts and but-
tons. About a month prior to the election, Taccolini came to
where Astorga was looking up product numbers on the com-
puter in the receiving area with Jose Martinez. Taccolini said
that things were getting pretty hectic outside. When Astorga
and Martinez looked at him, Taccolini said, “Oh! Am I harass-
ing you?” Astorga understood Taccolini to be referring to a
flyer handed out by the Union that morning advising employees
not to let Taccolini harass them. Taccolini told the supervisor
to “get these two union guys off the computer . . . get them
whatever they need, but I don’t want nobody on the computer
anymore.”16 The employees were later told that they would
have to go through supervisors for information formerly ob-
tained directly from the computer. Prior to that time, Astorga
had had unlimited access to computer information. Astorga
was aware there was a new computer system at work. He was
not given any training on the new system. Following Tac-
colini’s directive, Astorga went to specified individuals17 when
he needed information from the computer. Astorga did not use
the computer until sometime in May or June when he was given
a limited use password permitting computer access to parts
information. At that time, except for workers specifically as-
signed to do computer work, only Astorga was permitted use of
the computer. Two other receiving employees more senior than
he were not given passwords.
Martinez testified regarding the allegation of prohibited
computer use. As a receiving clerk, he used the computer to
locate items for about 5 hours every day. Other employees
using the computer as much as Martinez were Holmes, Astorga,
and Leonard Arias, order pullers. It was not necessary to use a
password as the computer was set up so that anyone could use
it. During the union campaign, Martinez passed out flyers and
talked to fellow employees about the Union. He and other
employees wore pins reading “Vote Yes” daily during the
month before the election. Sometime prior to the election,
Astorga was showing Martinez a different way to use the com-
puter when Taccolini spoke to them, saying things were “get-
ting pretty hectic outside.”

16 Astorga’s testimony of this conversation varied slightly as he re-
counted it in direct and cross-examinations, but no more than is ex-
pected in the retelling of a conversation. In essentials, his testimony
was consistent.
17 Greg Holmes (Holmes), warehouse clerk;Frank Rena, supervisor
in the receiving department; or Ed Roy (Roy), receiving supervisor first
shift.
CROWN BOLT, INC. 787
When Martinez questioned, “What?” in surprise, Taccolini
said, “Oh, am I harassing you?”
Taccolini then spoke to Roy, saying, “Do not let those Union
guys use the computer.” According to Martinez, only he and
Astorga were prevented from using the computer.18 The restric-
tion made his job harder as he had to go through Roy or Gomez
to obtain computer-generated information. As of the hearing,
he was still unable to use the computer.
Taccolini testified that because of significant problems with
the installation of Respondent’s new computer system, he told
Roy in early 2000 that certain people should not use the com-
puter at that time because of lack of training. He said nothing
about the restriction applying only to union supporters but di-
rected that only those with training and passwords should be on
the computer. He visited every department and told employees
of the restrictions. When asked if there were any particular
problems with the employees in the receiving department, Tac-
colini said he couldn’t say, that he just wanted to keep everyone
out who was untrained because it was a volatile system.
Roy testified that he was aware the new computer system
was subject to freezing and shutting off because of problems
with it, including too many people being on the system. Only
Holmes who helped with paperwork, Eric Hartung, acting re-
ceiver, and Roy were authorized users. Several employees,
including Astorga, made unauthorized use of the computer. As
instructed, Roy told employees that computer use would be
limited only to those employees with pass codes, that if em-
ployees needed access, they were to ask designated workers,
and if no one was available, they were to move to another order
and then come back. He was present when Taccolini saw two
employees using the computer. Astorga was one of them, but
Roy could not recall the other. Taccolini said that he did not
want “those people” on the computer. He did not say “Union
people.” Following this incident, Roy reminded all employees
that only authorized people were to use the computer.
I credit the testimony of Astorga and Martinez regarding
Taccolini’s statements during this conversation. I have found
both Astorga and Martinez to be truthful witnesses. Further,
Taccolini testified only generally about his instructions to em-
ployees on computer use and did not specifically address the
alleged conversation. Although Roy tacitly denied Taccolini’s
use of the word “union” in describing the employees who were
not to use the computer, I cannot fully credit his testimony. His
recall of the event was demonstrably weak as he could recall
only Astorga as being one of the employees restricted by Tac-
colini and could not recall the other at all. Roy did recall Tac-
colini saying he did not want “those people” on the computer,
which is a more definite specification than Taccolini testified
to. Therefore, I accept Astorga and Martinez’ testimony that
Taccolini, in fact, directed that those “union” employees were
not to use the computer.
Although I have accepted that Taccolini, in this instance,
couched his restriction on computer use as a restraint on “Un-

18 Under cross-examination, Martinez agreed that all computer use
by receiving associates was limited at that time. This minor discrep-
ancy in testimony appears inadvertent and does not alter my determina-
tion as to Martinez’ credibility.
ion” employees, I conclude Respondent did not violate Section
8(a)(3) and (1) of the Act by restricting employees’ computer
use, including that of Astorga and Martinez. The statements by
Taccolini regarding getting the “Union” guys off the computers
shows that Respondent was motivated, at least in part, by a
consideration of the union partisanship among employees. The
General Counsel has thus established that protected conduct
formed a motivating factor in Respondent’s restriction, so as to
shift the burden to Respondent to prove that it would have
taken the same action even without the protected activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). I find that Re-
spondent has met that burden. Although Respondent was ad-
mittedly opposed to the Union, and although there were in-
stances of strongly expressed supervisory animosity toward it,
Respondent’s explanations for restricting computer use com-
panywide were both reasonable and uncontroverted. Respon-
dent provided evidence that it had installed a new computer
system, that there were systemic problems with it, and that
unrestricted computer use was curtailed while the problems
were corrected. Although all of this evidence was presented
through supervisors of Respondent, there was acknowledge-
ment from employee witnesses that they were aware of com-
puter problems, and there is no evidence of disparate treatment.
The evidence as a whole indicates that all employees without
computer passwords, whether union supporters or not, were
restricted from computer use. Therefore, it is reasonable to
conclude that although consideration of the union activities of
its employees may have heightened Respondent’s interest in
curtailing uncontrolled computer use, it would have imposed
the same limitations in the absence of any union activity.19
Therefore, I find that General Counsel’s allegation that Re-
spondent violated Section 8(a)(3) and (1) of the Act by impos-
ing more onerous work conditions on employees Astorga and
Martinez by prohibiting their computer use and prohibiting
contact between them fails.
3. Events respecting the grant of a wage increase to an em-
ployee consolidated complaint paragraph 7 alleges that Re-
spondent granted an employee a wage increase to dissuade his
union support
Montoya, an open union supporter who had been employed
for more than 5 years with Respondent, testified that wage in-
creases were dependent on performance reviews that were
given employees on a yearly basis. In about the first part of
February, Ponce and Perez met with Montoya in the cafeteria.
Perez told Montoya that he would not receive a raise because
he did not know how to run the machines, but he would be
reviewed again in 3 months. Montoya objected saying he knew
the machines and appealed to Ponce, his direct supervisor, for
verification, which was given. Nevertheless, Perez said
Montoya would have to wait for 3 months. In early April,
Ponce spoke to Montoya in the presence of other employees
while they worked. Ponce said the employees should not vote
for the Union because it was not good and it would not help

19 There was no evidence presented to support the allegation of pro-
hibiting contact between employees Astorga and Martinez.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD788
them. Montoya responded that such was a personal decision
for each employee. On March 8, without further discussion or
review, Valdez notified Montoya that he would receive a 35-
cent raise.
Valdez testified that as director of production he makes wage
recommendations for production workers after review of a
supervisor’s rating. Montoya’s performance rating was com-
pleted by supervisor, Perez, and reviewed by Valdez in March.
The rating of 57 did not meet the “all expectations” criterion for
a raise. Valdez testified that if an appraisal did not justify a
raise, his procedure was to talk to the employee’s supervisor.
Although Valdez did not recall discussing Montoya’s work
with his supervisor, it appears from Montoya’s testimony that
his direct supervisor supported Montoya’s assertion of compe-
tency on the machines. There is no evidence of any threat or
promise made to Montoya because of his union adherence. The
statement by Ponce that the Union was not good and would not
help does not rise to a coercive level. See NACCO Materials
Handling Group, Inc., 331 NLRB 1245 (2000). It was Ponce
who interceded on Montoya’s behalf in the evaluation discus-
sion during the same period Montoya was an active union sup-
porter, and there is no evidence of any change in Montoya’s
union attitude to justify the reward of a raise if such were in-
tended. In the absence of any extrinsic evidence of the raise
being calculated to dissuade union adherence or to reward
abandonment of union support or to signal a departure from
company procedures, it is reasonable to infer that the raise was
based on Ponce’s commendation rather than on any wish to
discourage Montoya’s expressed support for the Union. There-
fore, I find that the General Counsel failed to meet its burden of
proof that Respondent granted an employee a wage increase to
dissuade his support for the Union.
4. Events regarding threat of plant closure
Consolidated complaint paragraph 8 alleges that Respondent
threatened an employee with plant closure if employees se-
lected the Union as their representative
Regarding this allegation, Astorga testified that about a
month before the election, Garcia spoke to Astorga as he
worked in the warehouse. Garcia told Astorga that Respon-
dent’s owner would close if the employees voted union, that the
lease was up at the end of the year, and the owner would close
and move. Garcia said the Union was no good. Astorga did not
tell any employee of the conversation except Arias, who is no
longer with the Respondent. He also told the union representa-
tive, Valenzuela.
Garcia unequivocally denied making any such statement and
pointed out that he worked a different shift than Astorga and
was, therefore, not present at the Company when Astorga was
working.
I accept Astorga’s testimony. As set forth above, I found
him to be careful in his testimony. He is still employed by
Respondent and is apparently considered an able and trustwor-
thy employee as, following the election, he was given a com-
puter password and access. As a current employee, testimony
adverse to his employer is given against self-interest, a factor
not to be regarded lightly. Moreover, he evinced no animosity
toward either the company or Garcia, and his manner and de-
meanor were convincing. I do not find Garcia’s working a
different shift to create an impossibility of his having had any
communication with Astorga. Although an explanation has not
been proffered by General Counsel as to how it transpired that
such a conversation occurred between two individuals who
worked different shifts, no evidence was submitted to establish
that neither Garcia nor Astorga was ever present at the com-
pany except during his own shift. Further, no evidence was
presented to controvert the statement attributed by Astorga to
Garcia that the facility lease was up at the end of the year, a
piece of information presumably within the particular purview
of management. Under all the circumstances, after a careful
examination of the testimony, and upon consideration of the
manner and demeanor of the witnesses, I find Astorga’s testi-
mony to be credible.
The Board and the courts view the threat of plant closure as
particularly coercive as it goes to the heart of the employment
relationship and employee job security. NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 588 (1969). Even if the statement made
is a friendly, off-the-cuff remark, an objective standard of de-
termining coerciveness is to be utilized. President Riverboat,
329 NLRB 77 (2000). Here, there was none of the qualifying
statements relative to negotiations with the Union or predic-
tions based on “objective facts” showing “demonstrably prob-
able consequences beyond [the] control” of the Respondent that
might have rendered the statement permissible under Gissel, id.
at 616–620. Moreover, the threat of plant closure here was
made in the course of Respondent’s waging a vigorous, albeit
primarily lawful, campaign against the Union, and demonstrat-
ing animosity by Taccolini’s designation of employees to be
restricted from computer use as “union” employees, and Gar-
cia’s direction to Martinez to return the “union” area. The
severity of Respondent’s misconduct is further compounded by
the fact that this violation was committed by Garcia who, as
manager of Respondent, occupies a position of significant au-
thority. This could only serve to strengthen and amplify in the
minds of employees the seriousness of the threat. Electro-
Voice, Inc., 320 NLRB 1094 (1996). When viewed in context
of Respondent’s antiunion campaign and expressed animosity,
the threat could reasonably be expected to carry compellingly
coercive weight.
As stated in Spring Industries, 332 NLRB 40, 40 (2000), the
Board’s practice is to presume dissemination of threats as seri-
ous as those of plant closure, “absent evidence to the contrary.”
Here, Astorga testified that he told one employee and the union
representative of the threat. Even though he told only two peo-
ple,20 under the reasoning of Springs Industries, id, “the threat
of plant closure . . . necessarily carries with it serious conse-
quences for all employees . . . [and] . . . will, all but inevitably,
be discussed among employees.” The presumption applies
unless rebutted.21 The burden of proving that the threat of plant

20 The fact that Valenzuela was one of the individuals Astorga told
of the threat does not lessen the probability of dissemination. Indeed,
as the union representative, Valenzuela is just as likely as an employee
to discuss the threat with employees.
21 The Board stated:
The presumption that a threat of plant closure by an employer
to one or more employees will be widely disseminated among the
CROWN BOLT, INC. 789
closure remained undisseminated and thus isolated rests with
the employer. Springs Industries, supra at fn. 6. Respondent
has not met that burden. Therefore, I conclude that, by Gar-
cia’s statement that Respondent would close if the employees
voted for the Union, Respondent violated Section 8(a)(1) of the
Act.
5. Events regarding an offer of benefit
Paragraph 9 of the complaint alleges that Respondent offered
an employee a management position so as to dissuade
union support
Leon testified that about 2 weeks before the election, Tac-
colini came to him at his workstation. According to Leon, Tac-
colini told him that he had seen him of Friday with the Team-
sters, and that he looked really sharp. Taccolini asked Leon
why he was doing this [supporting the Union]. Leon responded
that a lot of things were not right and told Taccolini of a num-
ber of work issues such as favoritism. Leon then testified “he
told me, Manuel, what are you talking about. He said, I offered
you a management position 3 years ago. And then, I said what.
No, you didn’t. And he said yes, I did. And it’s still there.
And I just shook my head. And so, we went on with our dis-
cussion. And I told him about some discrimination that I felt
was happening at the company . . . He walked away . . . And
then, he turned back around toward me again. And he told me
that discrimination is going to take you to your grave.” Ac-
cording to Leon, Taccolini had not offered him any manage-
ment job in prior years.
Taccolini testified that 4 or 5 years ago, he observed Leon
working the carousels. Taccolini told him he was doing a good
job, and that he could be considered for management. Accord-
ing to Taccolini, Leon responded that he was really not inter-
ested, that he was happy with what he was doing.
As to the instant allegation, Taccolini testified that he en-
gaged in a “little conversation” with Leon while Leon was
working. As he walked away, Leon asked him, “So, When are
you going to stop all the discrimination around here?”
Taccolini said, “Manuel, we have women, men, blacks, His-
panics, Asians, in our management, lead positions. Manuel,
you are going to take that discrimination thing to your grave
with you. It will never fly around here. Look at all of our
management.”
Taccolini also testified that he referred to a past conversation
with Leon, saying, “Manny, if you recall, I even offered you
four or five years ago a management position at Crown Bolt.”
According to Taccolini, in the April conversation, he made no
offer to promote Leon and did not make any statement that any
promotional opportunity was still open.22

employees is a rebuttable presumption. The employer may rebut
the presumption by establishing through record evidence either
that the employees threatened did not tell other employees about
the threat, or that those employees whom he told did not in turn
tell any other employees about the threat. [Spring Industries,
supra at fn. 4.]
22 Taccolini testified that Leon contacted Respondent’s human re-
sources department concerning the exchange. Taccolini provided the
Human Resources Department a written statement concerning what had
transpired. Respondent offered the statement in evidence as a prior
I credit the account of Taccolini over that of Leon. Leon’s
testimony, overall, was occasionally vague, sometimes vacilla-
tory, and marked by a quality of hostility toward Respondent,
none of which impressed me as to his candor. Moreover, to be
credible, an account of an oral exchange should demonstrate
congruity and plausibility. Those qualities are missing from
Leon’s version. It strains credulity to accept that Taccolini
should make a promotional offer to an employee who had re-
cently received a less-than-stellar performance review. The
exchange as related by Taccolini, however, carries verisimili-
tude in both content and motivation. Therefore, I find that the
General Counsel failed to prove that any employee was offered
a management position to dissuade his support for the Union.
IV. OBJECTIONS TO CONDUCT AFFECTING RESULTS OF ELECTION
The Union filed the petition in Case 21–RC–20192 on March
2, 2000. The election was conducted by Region 21 on April 13,
2000. Following a resolution of challenged ballots, a revised
tally of ballots issued showing that the Union received 148
votes and 182 votes were cast against the Union. The Union
filed Objections 1–13.23 The Regional Director issued a report
on objections, order directing hearing, order consolidating
cases, and notice of hearing, finding some of the conduct al-
leged in the Union’s objections violated the Act, and that the
issues therein constituted a single, overall controversy and
should be considered jointly with the unfair labor practices
alleged herein. Accordingly Case 21–RC–20192 was consoli-
dated with the instant unfair labor practice case.
Prior to the hearing, the Union withdrew Objections 1, 3, 5,
6, 8, 10, and 12, leaving extant Objections 2, 4, 9, 11, and 13.
At the hearing, the Union stated that the evidence relied on as
support for its objections was contained in the evidence pre-
sented by General Counsel in the unfair labor practice case.
In its Objection 2, the Union alleged that Respondent threat-
ened plant closure in an effort to discourage support for the
Union. As set forth above regarding the unfair labor practice
allegations, I find that Respondent did, in fact, threaten plant
closure. The threat occurred during the critical period. That
period started when the Union filed the petition in Case 21–
RC–20192 on March 2, and ended when the election was held
on April 13. The credited testimony of Gilbert Astorga re-
vealed that Rudy Garcia, a supervisor, threatened employee,
Astorga, about 1 month before the election. The threat consti-
tutes objectionable conduct as well as a violation of Section
8(a)(1) of the Act.
In its Objection 4, the Union alleged that the Employer har-
assed, coerced, and threatened union supporters in retaliation
for their support of the union. As set forth above regarding the
unfair labor practice allegations, aside from the credited evi-
dence of threat of plant closure, there is no evidence of harass-
ment, coercion, or threats of union supporters. However, inso-

consistent statement. The General Counsel objected. Inasmuch as the
Federal Rules of Evidence, Sec. 801.4.2 permits admission of prior
consistent statements only where there is an express or implied charge
of recent fabrication, or improper influence or motive, none of which
exists here, the offer was denied.
23 Through apparently inadvertent omission, there is no Objection 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD790
far as this objection relates to the threat of plant closure, the
evidence supports it.
In its Objection 9, the Union alleged that during the critical
period, Respondent imposed more onerous working conditions
on union supporters in retaliation for their union support. As
set forth above, the record evidence does not support the allega-
tions or any finding of objectionable conduct as to Objection 9.
In its Objection 11, the Union alleged that Respondent made
promises of benefits to discourage union support. The record
evidence does not support the allegations or any finding of
objectionable conduct as to Objection 11.
In its Objection 13, the Union alleged that Respondent im-
personated NLRB agents and held antiunion meetings with
employees in an effort to discourage union support. Although
evidence was adduced that Respondent held meetings with
small groups of employees as part of its antiunion campaign,
there is no allegation in the complaint that such conduct was
violative of the Act, and no significant evidence was presented
as to what occurred in the meetings. Therefore, the record evi-
dence does not support the allegations or any finding of objec-
tionable conduct as to Objection 13.
An employer’s preelection communications to employees
must not contain any threat of reprisal. NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). See also Dominion Engineered Tex-
tiles, Inc., 314 NLRB 571 (1994). The usual remedy for viola-
tions of Section 8(a)(1) during an election campaign is to order
a second election because such conduct interferes with the
“laboratory conditions” of the first election. Dal-Tex Optical
Co., 137 NLRB 1782 (1962). The only exception to this pol-
icy is where the conduct is so minimal or isolated that it is “vir-
tually impossible to conclude that [it] could have affected the
results of the election.” Super Thrift Markets, Inc., 233 NLRB
409 (1977). While General Counsel and the Union have failed
to prove the majority of their allegations, the allegation that has
been proven is too substantial and the voting margin too close
to permit other than a significant remedy. A warning of plant
closure, the dissemination of which is presumed, is a particu-
larly opprobrious threat. My findings herein require the conclu-
sion that the election should be set aside because of Respon-
dent’s objectionable conduct.
I recommend that Case 21–RC–20192 be remanded to the
Regional Director for appropriate action.
CONCLUSIONS OF LAW
1. By threatening employees with plant closure if employees
selected the above-named labor organization as their collective-
bargaining agent in violation of Section 8(a)(1) of the Act,
Crown Bolt, Inc. has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. The General Counsel has failed to prove its allegations in
paragraphs 6(a), (b), (c), and (d), 7, 9, and 10 of the Act.
3. The Union’s Objections 2 and 4 are sustained.
4. The Union’s Objections 9, 11, and 13 are overruled.
5. The unfair labor practices and campaign misconduct of
Respondent described above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, Crown Bolt, Inc., Cerritos, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees that it may close its facility if
the employees select the Union as their collective-bargaining
representative.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Cerritos, California, copies of the attached notice
marked “Appendix.”25 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by 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, Respon-
dent has gone out of business or closed the facility involved in
these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondent at any time since
April 1, 2000.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(c) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
25 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.”