Winkle Bus Co.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1203 (N.L.R.B. 2006)

WINKLE BUS CO.
347 NLRB No. 108
1203
Winkle Bus Company, Inc. and United Food and
Commercial Workers Union, Local 371, AFL–
CIO, CLC. Cases 34–CA–10705 and 34–CA–
10774
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On October 19, 2004, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent filed
exceptions and a supporting brief.1 The General Counsel
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and conclu-
sions as modified only to the extent consistent with this
Decision and Order and to adopt the recommended Order
as modified.
In October 20033 the Union began a campaign to or-
ganize the Respondent’s Milford, Connecticut facility.
We adopt the judge’s findings that, in the course of op-
posing its employees’ unionization, the Respondent vio-
lated Section 8(a)(1) by maintaining an unlawful no-
solicitation policy, threatening union representatives with
arrest,4 placing employees’ union activity under surveil-
lance, threatening employees with arrest, coercively in-

1 There are no exceptions to the judge’s recommended dismissal of
complaint allegations that the Respondent violated Sec. 8(a)(1) by:
prohibiting discussion of the Union; interrogating employee Terry
Plona about her union activities on October 9 and December 10, 2003;
creating the impression that Plona’s union activities were under surveil-
lance; threatening plant closure; engaging in surveillance of employ-
ees’ union activities on October 23, 2003; threatening employee Xabier
Zabala with unspecified reprisals during a conversation in October or
November 2003; and violated Sec. 8(a)(3) and (1) by discontinuing the
practice of permitting Plona to take the bus home on breaks and grant-
ing her additional work assignments.
2 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.
3 All dates refer to 2003, unless otherwise stated.
4 In adopting the judge’s finding that the Respondent unlawfully
threatened to have nonemployee union officials arrested for leafleting
in front of its facility, Chairman Battista does not rely on Wild Oats
Markets, Inc., 336 NLRB 179, 180 (2001).
terrogating employee Zabala,5 threatening employees
with loss of benefits,6 and threatening employees with
stricter discipline and increased penalties.
A panel majority (Members Schaumber and Walsh)
also adopts the judge’s finding that the Respondent vio-
lated Section 8(a)(1) by asking employees to report union
threats or coercion.7 A different majority (Chairman

5 In light of our finding that the questioning of Zabala was unlawful,
we find it unnecessary to pass on the judge’s finding that the Respon-
dent also violated Sec. 8(a)(1) by coercively interrogating employee
Joel Cohen. Any such finding would be cumulative and would not
materially affect the remedy.
6 Member Schaumber agrees that the Respondent violated Section
8(a)(1) by threatening to stop giving paycheck advances if employees
unionized. In his view, however, this violation is more properly char-
acterized as threatening loss of “privileges.”
7 Member Schaumber agrees that, under extant Board precedent, the
Respondent violated Sec. 8(a)(1) in this case by distributing to its em-
ployees a letter that stated, in pertinent part: “If you are being threat-
ened or coerced by employees or the Union, please contact the National
Labor Relations Board’s Hartford office at [telephone number] imme-
diately or tell me.” See Tawas Industries, 336 NLRB 318, 322–323
(2000); CMI-Dearborn, Inc., 327 NLRB 771, 775–776 (1999). In his
view, Tawas and CMI-Dearborn were wrongly decided, in part because
a reasonable employee would not understand a request to report
“threats or coercion” to extend to protected concerted activity. See
Palms Hotel and Casino, 344 NLRB 1363 (2005) (employer lawfully
maintained rule prohibiting “any type of conduct, which is or has the
effect of being injurious, offensive, threatening, intimidating, coercing,
or interfering with fellow Team Members or patrons.”). However, in
the absence of a three-member majority of the Board willing to over-
rule Tawas and CMI-Dearborn, he applies that precedent for institu-
tional reasons for the purpose of deciding this case.
In Member Walsh’s view, Tawas Industries and CMI-Dearborn
were correctly decided under the settled principle that requests to report
union activity violate Sec. 8(a)(1) if they would reasonably be under-
stood as referring to conduct that employees might find “subjectively
offensive” yet which is nevertheless protected under the Act. E.g.,
Ryder Transportation Services, 341 NLRB 761, 762 (2004), enfd. 401
F.3d 815 (7th Cir. 2005). As the Board stated in Tawas Industries., a
request to report “coercion” is reasonably perceived by employees as
encouraging reports of activities that are protected under the Act be-
cause “employees are unlikely to understand that [these requests]
mean[] only such actions as those that have been held to be coercive
under Section 8(b)(1)(A).” Supra at 322 (quoting CMI-Dearborn, Inc.,
supra at 776). The Board has repeatedly held that such requests tend to
chill lawful union organizing activity because they “have the dual effect
of encouraging employees to report . . . the identity of card solicitors
… and of correspondingly discouraging card solicitors in their pro-
tected organizational activities.” Ryder Transportation Services, supra
at 762. Furthermore, in Member Walsh’s view, the Respondent’s use
of the term “harassed” in the letter also fostered the impression that it
was asking employees to report protected activity. See, e.g., Brandeis
Machinery & Supply Co., 342 NLRB 530, 533 (2004); Niblock Exca-
vating, Inc., 337 NLRB 53, 61 (2001), enfd. 59 Fed. Appx. 882 (7th
Cir. 2003). Although the sentence within the letter that expressly asked
employees for reports referred only to coercion or threats, nevertheless,
in the context of the letter’s preceding statement that the Respondent
had already received reports of employees being “harassed or coerced,”
employees would reasonably understand that the company considered
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1204
Battista and Member Schaumber) reverses the judge’s
finding that the Respondent violated Section 8(a)(1) by
threatening employees that unionization would be futile.
Asking Employees to Report Union Threats or Coercion
In November, the Respondent distributed a letter to
employees with their paychecks. The letter, which is set
forth in full in the judge’s decision, included the follow-
ing statement:
Some of you have come to me and expressed concerns
that some employees are being harassed or coerced into
signing authorization cards. The law supports your
right to say no to the Union or to employees who try to
pressure you into signing a card. It is illegal for the Un-
ion salespeople or employees to threaten or coerce you
into signing a card. If you are being threatened or co-
erced by employees or the Union, please contact the
National Labor Relations Board’s Hartford office at
[telephone number] immediately or tell me. If you
have been pressured into signing a card and now want
to change your mind, like some employees who have
spoken with me, the attached page explains how to re-
voke one.
There is no record evidence, nor does the Respondent argue,
that the Company had in fact received reports of union mis-
conduct or that any such misconduct had taken place.
The judge found that this statement violated Section
8(a)(1) because it impermissibly called on employees to
report on their coworkers’ union activity. This finding
comports with settled Board law, and we therefore adopt
it. See Tawas Industries, supra, 336 NLRB at 322–323;
CMI-Dearborn, supra, 327 NLRB at 775–776. The dis-
sent argues that Tawas Industries is distinguishable be-
cause there, the employer asked employees to report
“anyone expressing ‘views’ that others might ‘feel’
threatening or coercive . . . .” We disagree.
The notice at issue in Tawas stated:
It has been reported that employees feel they are being
subjected to threats and coercion because they are ex-
pressing their views (either pro or con) regarding the
[union] affiliation.
If you feel that you are being subjected to such actions,
please report such incidents to the Company and we
will take the appropriate action, or you may directly
contact the Regional Office of the National Labor Rela-
tions Board.

“harassment” to fall within the range of activity it wished to be re-
ported.
By its terms, the Tawas notice states that some employees
felt they were subjected to threats and coercion because they
had expressed a view on the union issue, and asks any em-
ployee who feels he was “subjected to such actions,” i.e.,
threats and coercion, to report it to the employer or to the
Board (emphasis added). This request cannot meaningfully
be distinguished from the request made by the Respondent
in this case.8
The dissent also notes that, in Tawas, the employer fol-
lowed its request for reports of coercion with the state-
ment that it would “take the appropriate action,” supra at
322, whereas here, the Respondent did not state that it
would do anything upon receiving the requested reports.
However, the Board finds overbroad requests to report to
be unlawful even where they are not accompanied by any
statement that the employer would take adverse action.
Bloomington-Normal Seating Co., 339 NLRB 191 fn. 2
(2003), enfd. 357 F.3d 692 (7th Cir. 2004); Eastern
Maine Medical Center, 277 NLRB 1374 (1985). Our
finding that the November letter was unlawful is in ac-
cord with this settled principle.
The dissent’s attempt to distinguish CMI-Dearborn is
similarly unavailing. According to the dissent, the em-
ployer in that case requested reports of “scare tactics” as
well as coercion, while here the request was only to re-
port threats and coercion. However, the CMI-Dearborn
Board adopted the judge’s decision that found that the
employer’s request to employees referred to every con-
tact that the employees might subjectively regard as
“scare tactics” or “coercion,” and expressly rejected the
employer’s argument that employees are likely to under-
stand “coercion” to mean only those forms of union co-
ercion that the Act prohibits. 327 NLRB at 776. It could
not be clearer that the judge considered the request to
report “coercion” to be, in itself, unlawful.9
Alleged Statement of Futility
In December, the Respondent posted a copy of an arti-
cle from the December 3 edition of the New Haven Reg-
ister which stated that the Board would conduct a hearing

8 The dissent argues that the Tawas notice was subjective because it
asked employees to report if they “felt” coerced. Again, we disagree.
The Tawas Board viewed the notice in that case as impermissibly call-
ing for the reporting of “subjectively offensive conduct” because its use
of the term “coercion” “was likely to encourage employees to report
protected conduct to management.” Id. at 322. The Board did not rely
on the notice’s use of the word “feel.”
9 The dissent also observes that the request in this case encourages
employees to report either to the Respondent or to the Board, whereas
the request in CMI-Dearborn only asked employees to report to their
employer. The dissent does not explain why this distinction mitigates
the tendency of the request to chill protected union activity. Extant
Board law is clear that it does not. See Tawas, supra.
WINKLE BUS CO. 1205
in February 2004 over allegations that an unrelated em-
ployer in the area, W. B. Mason, Inc., “refused to negoti-
ate a contract for its newly unionized employees” after an
“organizing vote” in August 2002.10 The article reported
that “after the union vote, the company raised drivers’
salaries $3 an hour” and quoted a union official’s charac-
terization of the raise as “just a tactic to make the em-
ployees think they don’t need the union . . .”11 Also ac-
cording to the article, the employer attended “a few” ini-
tial bargaining sessions and then stopped negotiating in
the summer of 2003 after receiving a petition signed by a
majority of employees saying they no longer wished to
be represented. A union representative accused the com-
pany of “dragging their feet” and stated that the union
wanted the company to come to the bargaining table and
sign off on “a fair contract.”
When employee Cohen saw the article and stopped to
read it, the Respondent’s manager, Laurie Winkle, ap-
proached and, according to the credited testimony, asked
him, “Do you want to wait for years for a raise like those
people?”
The judge viewed this statement as a threat that it
would be futile for employees to select the union as their
collective-bargaining representative, and concluded that
it therefore violated Section 8(a)(1). We disagree.
It is well settled that, absent threats or promise of
benefit, an employer is entitled to explain the advantages
and disadvantages of collective bargaining to its employ-
ees in an effort to convince them that they would be bet-
ter off without a union. Langdale Forest Products Co.,
335 NLRB 602 (2001). The Board normally treats such
comments as statements of opinion protected by 8(c)’s
free speech proviso. Id. An employer violates Section
8(a)(1), however, by threatening employees that attempts
to secure union representation would be futile. Well-
stream Corp., 313 NLRB 698, 706 (1994). An unlawful
threat of futility is established when an employer states
or implies that it will ensure its nonunion status by
unlawful means. Ready Mix, Inc., 337 NLRB 1189,
1190 (2002). On the other hand, it is well established that
‘“words of disparagement alone concerning a union or its
officials are insufficient for finding a violation of Section

10 In fact, the complaint alleged that the respondent failed to bargain
in good faith by refusing to schedule timely negotiating sessions and by
withdrawing recognition from the union. The administrative law judge
found no merit to these allegations and dismissed the complaint. W. B.
Mason Co., JD 114-04 (Nov. 29, 2004). The Board subsequently
adopted the judge’s decision in the absence of exceptions.
11 The article does not say that the raises were alleged to be unlaw-
ful, and the judge’s decision in W. B. Mason makes clear that they were
not.
8(a)(1).”‘ Trailmobile Trailer, L.L.C., 343 NLRB 95
(2004) (quoting Sears, Roebuck & Co., 305 NLRB 193
(1991)). Instead, such comments are protected by Sec-
tion 8(c).12
Applying these principles, we find that Winkle’s off-
hand comment did not unlawfully threaten that union
representation would be futile. The comment did not
follow from the text of the newspaper article the em-
ployee was reading. The article described a situation
where employees received a wage increase “after the
union vote.” By contrast, Winkle’s rhetorical question
refers to a delay in getting a raise. The comment thus
lawfully identified one of the possible consequences of
unionization, i.e., that collective bargaining might have
to run its course before employees received any raises.
Winkle did not state or imply that the Respondent would
ensure its nonunion status through unlawful means, or
that it would withhold raises that employees would oth-
erwise receive in retaliation for their decision to choose
union representation. Accordingly, we find that Win-
kle’s remark was not a threat of futility.
In finding that Winkle’s remark was an unlawful
threat, the judge relied on Federated Logistics & Opera-
tions, 340 NLRB 255 (2003), enfd. 400 F.3d 920 (D.C.
Cir. 2005).13 The case is distinguishable. In Federated
Logistics, the employer stated that if the union was se-
lected negotiations “would start from zero and would

12 Sec. 8(c) of the Act provides that “the expressing of any views,
argument, or opinion … shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act, if such expres-
sion contains no threat of reprisal or force or promise of benefit.” 29
U.S.C. § 158(c).
We do not agree with any implication in the dissenting opinion that
an employer violates Sec. 8(a)(1) merely by telling its employees that it
intends to oppose unionization by lawful means, or that bargaining may
be delayed while it exercises its lawful right to contest a union’s certifi-
cation in court. Such a statement is unlawful only if, in context, it
discloses a “threat of reprisal or force or promise of benefit.” Sec. 8(c).
While a threat to tie up the representation issue through meritless litiga-
tion may be unlawful, no such threat was made in this case. Indeed,
unlike the cases cited by our dissenting colleague, the Respondent
made no statement of any type concerning litigation or any other in-
tended action on its part.
In light of the above, Member Schaumber does not pass on whether
the Board correctly found unlawful the statements concerning possible
delays in bargaining while litigation ran its course in Intermountain
Rural Electric Assn., 253 NLRB 1153, 1160–1161 (1981), and Kent
Bros. Transportation Co., 188 NLRB 53, 59 (1971), enfd. 458 F.2d 480
(9th Cir. 1972), cases cited by the dissent. Compare, Histacount Corp.,
278 NLRB 681, 689–690 (1986) (employer lawfully told employees
that if the union won the election, it would file objections and it would
be about 2 years before bargaining would begin). See also W. E. Carl-
son Corp., 346 NLRB No. 43, slip op. at 1 fns. 2, 11, 14 (2006) (threat
to intentionally delay negotiations violated Sec. 8(a)(1)).
13 Chairman Battista dissented in Federated Logistics.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1206
negotiate from that.” The employer also stated that, con-
trary to its practice of granting annual merit increases,
“[employees] wouldn’t get any raises.” On these facts,
the Board found that the employer’s comments imparted
the message to employees that their wages and benefits
were endangered not because of the uncertainties of the
collective bargaining process, but simply because they
selected the union as their collective bargaining represen-
tative. None of those facts, however, are present in this
case. Winkle did not tell Cohen that bargaining would
start from zero. Nor did she imply that scheduled wage
increases would be withheld. Indeed, there is no record
evidence that the Respondent had any past practice of
periodic wage increases. Unlike the statements found
unlawful in Federated Logistics, Winkle’s comment
simply and accurately indicated that wage increases
could be delayed because of the uncertainties of the col-
lective-bargaining process.14 For these reasons, we find
that the statement was not unlawful.
Our dissenting colleague asserts that Winkle’s state-
ment was unlawful because it threatened to draw out
contract negotiations in the same allegedly unlawful
manner used by the employer in the newspaper article,
and that “if the employees selected the Union as their
bargaining representative they would not receive a wage
increase—generally a key goal of collective bargain-
ing—‘for years.’” We disagree. Winkle did not say that
the Respondent would prolong contract negotiations.
Moreover, the reality of collective bargaining is that ne-
gotiations can be prolonged for lawful reasons, and the
prolongation may not be the fault of the employer.15 Our
colleague thus reads far too much into this comment
when he interprets it to say that any such delay would be
due to unlawful acts on the Respondent’s part. 16 Win-
kle’s reference to the newspaper article about another
employer (Mason) does not require a different result.

14 See generally General Electric Co., 332 NLRB 919 (2000) (em-
ployer’s handbill lawfully asked if employees were willing to face the
possibility of “long, bitter negotiations” and a “long and ugly strike”);
Coleman Co., 203 NLRB 1056 (1970) (employer lawfully stated that a
vote for the union would put the parties back at the bargaining table, a
“long and expensive process,” and could result in a strike).
15 For example, in W. B. Mason, the judge found that the union—not
the employer—was responsible for the lack of progress of negotiations
and chastised the union for its dilatory tactics.
16 Contrary to each of the cases cited in the dissent, the Respondent
did not forecast any intransigence in bargaining. The dissent draws an
unwarranted inference in concluding that employees would reasonably
understand Winkle’s reference to “those people,” i.e., the employees
mentioned in the newspaper article, as suggesting that the Respondent
was laying the blueprint by which the Respondent would behave in
future negotiations.
According to the article, the Mason negotiations lasted
for a year and ended only after a majority of unit em-
ployees indicated in a petition that they no longer wanted
the union to represent them. And, as noted above, the
article made clear that the Mason employees did not have
to wait “years” for a raise but instead received one “after
the union vote.” On balance, we find that the General
Counsel has not proven that Winkle’s statement was a
threat that unionization would be futile.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Winkle
Bus Company, Inc., Milford, Connecticut, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Delete paragraph 1(i) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.
CHAIRMAN BATTISTA, dissenting in part.
My colleagues find that the Respondent violated Sec-
tion 8(a)(1) of the Act by distributing a letter to employ-
ees encouraging them to report, to the Board or manage-
ment, fellow employees who threaten or coerce them. I
disagree.
In November, the Respondent distributed a letter to all
employees. The letter contained the following statement:
Some of you have come to me and expressed concerns
that some employees are being harassed or coerced into
signing authorization cards. The law supports your
right to say no to the Union or to employees who try to
pressure you into signing a card. It is illegal for the Un-
ion salespeople or employees to threaten or coerce you
into signing a card. If you are being threatened or co-
erced by employees or the Union, please contact the
National Labor Relations Board’s Hartford office at
[telephone number] immediately or tell me. If you
have been pressured into signing a card and now want
to change your mind, like some employees who have
spoken with me, the attached page explains how to re-
voke one.
I do not agree with the judge’s finding, adopted by my col-
leagues, that this statement violated Section 8(a)(1).
The letter asks employees to report on coercion. Of
course, coercion is prohibited in Sections 8(a)(1) and
8(b)(1)(A) of the Act. The Act contemplates that each
employee’s decision to support, or oppose, union repre-
sentation is to be free from coercion from any source.
Acts of coercion directed at employees are not protected
WINKLE BUS CO. 1207
by Section 7. See generally Staten Island University
Hospital, 339 NLRB 1059 (2003). Similarly, threats
against an employee based on his Section 7 activity are
also prohibited by Section 8(a)(1) and 8(b)(1)(A). See,
e.g., Ogihara America Corp., 347 NLRB No. 10 , slip
op. at 16 (2006); August A. Busch & Co. of Massachu-
setts, 334 NLRB 1190, 1205 (2006). Thus, an employer
may lawfully assure employees that it will not allow
them to be threatened or coerced, and it may ask them to
report such conduct. Liberty House Nursing Homes, 245
NLRB 1194, 1197 (1979). Such requests are lawful be-
cause threats and coercion directed at employees are
properly within the Respondent’s “legitimate concerns.”
Arcata Graphics, 304 NLRB 541, 542 (1991).
The Respondent’s letter asked only that employees re-
port unprotected conduct either to the Board or to man-
agement. Such requests do not reasonably tend to chill
employees in the exercise of their Section 7 rights. First
Student, 341 NLRB 136 (2004) (request to report inci-
dents where employees were forced or intimidated into
supporting the union was lawful). On the contrary, they
assist in assuring employees the free exercise of those
rights.
Tawas Industries, 336 NLRB 318, 322–323 (2000),
and CMI-Dearborn, Inc., 327 NLRB 771, 775–776
(1999), cited by the judge in support of his finding that
the request was unlawful, are not to the contrary. Tawas
involved an employer’s request that “if [employees] feel
that [they] are being subjected to threats and coercion”
because of the “express[ion of their views],” the respon-
dent would “take appropriate action.” Tawas, supra, 336
NLRB at 322. Thus, anyone expressing “views” that
others might “feel” threatening or coercive would rea-
sonably fear employer retaliation. By contrast, in the
instant case, the Respondent did not ask employees to
report conduct simply because they felt threatened or
coerced . My colleagues argue that the Tawas notice was
not subjective. I disagree. The trigger for employee re-
ports in that case was that an employee expressed his
view regarding the union, and “feels” that he/she is being
subject to threats or coercion. The notice goes on to state
that “if you feel” you are being subjected to the above,
you are to report the incident.
Further, the employer in Tawas threatened to disci-
pline anyone who had been reported. The Respondent
here did not state what, if anything, it would do to em-
ployees who were so reported. Indeed, in the Respon-
dent’s letter, employees were asked to report such con-
duct to the Board’s Hartford office, giving its telephone
number, or to tell the Respondent.1
In CMI-Dearborn the employer requested that em-
ployees report threats, coercion, or “scare tactics” to
management, and offered its protection to employees.
CMI-Dearborn considered “scare tactics” to be a broad
term that might encompass “lawful campaign activities,”
327 NLRB at 776. Indeed, the employer’s request en-
compassed each and every “contact” that the employees
might subjectively regard as either scare tactics or coer-
cion. It should be noted that employees there were to
report, in the disjunctive, “scare tactics or coercion.”
Thus, “scare tactics” alone would trigger a report. There
is no such broad term as “scare tactics” used in the in-
stant case. Finally, as Tawas, employees in CMI-
Dearborn were given no option, as employees were
given here, to report alleged misconduct to the Board.
In view of the above, I do not find that the Respon-
dent’s letter violated Section 8(a)(1).
MEMBER WALSH, dissenting in part.
The judge found that the Respondent violated Section
8(a)(1) of the Act by threatening that, if its employees
selected union representation, it would be “years” before
they received a pay increase. The majority reverses that
finding. I dissent.
The credited evidence shows that, in December 2003,
the Respondent’s manager and co-owner, Laurie Winkle,
approached employee Joel Cohen as he was reading a
newspaper article that Winkle had posted at the facility
and asked him, “Do you want to wait for years for a raise
like those people?” The article, which was captioned,
“W. B. Mason faces hearing on union,” reported that the
Board was conducting a hearing on allegations that a
local firm had “refused to negotiate a contract for its
newly unionized employees” since a union’s victory in a
Board-supervised election in August 2002. The article
recounted allegations that the employer had failed “to
negotiate in a timely manner” with the union and the
employer’s response that it had ceased negotiations after
receiving an antiunion petition from its employees in the
summer of 2003.
Contrary to my colleagues, I agree with the judge that
Winkle’s statement to Cohen was an unlawful statement
of futility. The statement plainly implied that if the em-
ployees selected the Union as their bargaining represen-
tative they would not receive a wage increase—generally
a key goal of collective bargaining—“for years.” The

1 I do not say that a threat of adverse action is a sine qua non of a
violation. I simply note that this is a relevant factor to be weighed. It
was present in Tawas, and it is absent here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1208
Board has repeatedly found that employer statements
predicting excessive delay in bargaining are coercive,
particularly where, as here, they are made by an em-
ployer who, by committing numerous other unfair labor
practices, has amply demonstrated to her employees her
propensity to violate their protected rights.1
The context in which Winkle delivered her state-
ment—Cohen’s scrutiny of the newspaper article that the
Respondent had itself posted—exacerbated the coercive
effect of her statement. The main theme of the article
was that the Board was conducting a hearing on allega-
tions that Mason had unlawfully delayed negotiations for
an initial contract with a newly certified union.2 Winkle’s
reference to the article would reasonably be interpreted
as implying that if the employees unionized, she would
continue her already demonstrated pattern of unlawful
opposition to union representation by delaying agreement
on a contract, as the report alleged Mason to have done.
The majority claims that Winkle’s “offhand comment”
“did not follow from the text of the newspaper article”
and, analyzing the statement and the article in isolation
from one another, proceeds to find the statement lawful.
I disagree with the mode of analysis and the result. In-
deed, in view of the Respondent’s contemporaneous
unlawful conduct, the timing of the statement (when

1 See, e.g., Airtex, 308 NLRB 1135, 1135 fn. 2 (1992) (finding
unlawful statement of futility where employer found to have committed
other unfair labor practices predicted that negotiations for an initial
contract would last 1 year); Arkansas Lighthouse for the Blind, 284
NLRB 1214, 1220 fn. 43, 1228 (1987), enf. denied on other grounds
851 F.2d 180, (8th Cir. 1988) (same, where employer stated it would
fight the union if it took 3 to 10 years). In Airtex, supra at 1135 fn. 2,
the Board further observed that the offending statement was addressed
to an employee who was personally subjected to other unlawful threats
and promises. Similarly, in the instant case, Winkle’s remark was
addressed to an employee, Cohen, who was the object of other unlawful
conduct.
Relying on Sec. 8(c), my colleagues imply that an employer’s state-
ment of futility will not violate the Act unless the employer threatens to
use unlawful means against the Union. But Board law holds otherwise.
For example, an employer that demonstrates a propensity to act unlaw-
fully by committing other unfair labor practices may violate Sec.
8(a)(1) by warning that it will exercise its lawful right to delay agree-
ment to a contract by challenging the union’s certification through
litigation. See, e.g., Intermountain Rural Electric Assn., 253 NLRB
1153, 1160–1161 (1981); Kent Bros. Transportation Co., 188 NLRB
53, 59 (1971), enfd. 458 F.2d 480 (9th Cir. 1972). Compare, Hista-
count Corp., 278 NLRB 681, 689–690 (1986). In any event, as ex-
plained above, Winkle’s remark is intelligible only as a threat to refuse
to bargain in good faith, that is, to render her employees’ choice of
union representation futile by unlawful means.
2 Among other things, the article reported allegations that Mason had
“refused to negotiate a contract,” was “dragging its feet” in negotiating,
and had “fail[ed] to negotiate in a timely manner[,] indicat[ing] a fail-
ure to bargain in good faith.”
Cohen was reading the article), Winkle’s initiation of the
conversation, and Winkle’s plain reference to the article
and the alleged unfair labor practices to which the Mason
employees had been subjected, Winkle must have in-
tended to convey the message that the Respondent’s em-
ployees could expect similar treatment if they voted for
the Union. But whatever Winkle intended, it defies be-
lief to suggest that, after his boss asked, “Do you want to
wait for years for a raise like those people,” Cohen
would not have drawn a connection between the allega-
tions of illegality discussed in the newspaper article and
the prospect of the Respondent’s continuing its own anti-
union efforts.
In sum, Winkle’s statement cannot reasonably, or even
plausibly, be interpreted, as my colleagues do, as a mere
reference to the “reality of collective bargaining,” that
“negotiations can become prolonged for lawful reasons.”
Rather, it was an obvious threat to use unlawful means to
nullify the Respondent’s employees’ right to be repre-
sented by a union. Accordingly, I would find the viola-
tion.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or distribute any policy that
prohibits you from engaging in solicitation protected by
Section 7 of the Act in nonwork areas of the Milford
facility or during nonwork times such as breaks, lunch,
waiting time, and before and after work.
WE WILL NOT threaten union representatives who en-
gage in lawful union activity at, or near, the Milford fa-
cility with arrest.
WE WILL NOT engage in surveillance of your union ac-
tivities.
WE WILL NOT threaten to call the police in response to
your protected union activity.
WINKLE BUS CO. 1209
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT ask that you report to us about the union
support or activities of other employees.
WE WILL NOTthreaten that if you select the union as
your representative we will discontinue the practice of
giving cash advances to employees.
WE WILL NOT threaten you with stricter discipline or
increased penalties because employees engage in pro-
tected union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the rule entitled “Solicitation on
Company Property/Time” and remove that rule from our
employee handbook.
WE WILL distribute to you new copies of the employee
handbook, with the unlawful solicitation rule removed.
WE WILL distribute to you a written notice explicitly
advising that employees are permitted to engage in so-
licitation in nonwork areas of the Milford facility, and
during nonwork times such as breaks, lunch, waiting
time, and before and after work.
WINKLE BUS CO.
Quesiyah S. Ali, Esq. and William E. O’Connor, Esq., for the
General Counsel.
Nick Grello, Esq., Hartford, Connecticut, and Christian Winkle,
IV, Esq., Milford, Connecticut, for the Respondent.
DECISION
PAUL BOGAS, Administrative Law Judge. This case was
tried in Hartford, Connecticut, on July 7 and 8, 2004. The
United Food and Commercial Workers Union, Local 371,
AFL–CIO, CLC (the Union), filed the initial charge on Decem-
ber 11, 2003, and amended that charge on January 21, 2004,
March 4 and 29, 2004. The Union filed the second charge on
February 20, 2004, and amended that charge on March 30,
2004. The Director for Region 34 of the National Labor Rela-
tions Board (the Board) issued the order consolidating cases
and the consolidated complaint on March 31, 2004. The com-
plaint alleges that Winkle Bus Company, Inc. (the Respondent)
interfered with employees’ union activities in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) by
engaging in a wide range of activities including threats, interro-
gation, surveillance, and the prohibition of lawful solicitation
and discussion. The complaint also alleges that the Respondent
discriminated in violation of Section 8(a)(3) and (1) of the Act
by giving a union supporter additional work hours, and ceasing
to allow that employee to drive one of the Respondent’s buses
to her home during breaks. The Respondent filed a timely an-
swer in which it denied all the substantive allegations in the
complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Milford, Connecticut (the facility), provides
schoolbus and related transportation services. During the 12–
month period ending the month before issuance of the com-
plaint, the Respondent derived gross revenues in excess of
$250,000 from these activities, and received at its Connecticut
facilities goods valued in excess of $5000 directly from points
outside the State of Connecticut. The Respondent admits, and I
find, that it is an employer engaged in commerce with the
meaning of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a bus company whose primary business is
transporting students to and from schools in the State of Con-
necticut. It has about 180 employees at facilities in Milford,
Orange, and West Haven, Connecticut. Laurie Winkle is the
manager of the Respondent’s Milford facility, and also an
owner of the Company.1 During the relevant time period, Flo
D’Angelo was the dispatcher-secretary at the Milford facility.2
In October 2003, after receiving a request from one of the
Respondent’s employees, the Union began an effort to become
the collective-bargaining representative for the approximately
75 employees who worked at the Milford location. The Union
formed an organizing committee at the Respondent’s facility,
distributed authorization cards and literature to employees, and
invited employees to attend meetings. For its part, the Respon-
dent distributed materials to drivers encouraging them to op-
pose unionization, and also held a number of meetings at the
Respondent’s facility between late October and early December
2003. D’Angelo generally conducted these meetings, but Win-
kle also attended and spoke.
The record indicates that the Respondent’s bus drivers typi-
cally had morning routes and afternoon routes and that in-
between there was often a lengthy break period. Some of the
drivers were assigned preschool routes or other extra work
during that break period, but others used the time for their own
purposes.

1 The Respondent admits that Winkle is a supervisor within the
meaning of Sec. 2(11) of the Act, and an agent of the Company.
2 The Respondent denies that D’Angelo was a supervisor within the
meaning of Sec. 2(11) or an agent of the Company. The record shows
that D’Angelo, as a dispatcher, had the authority to use her independent
judgment to assign work to employees, transfer drivers from one route
to another, and resolve problems that drivers had with their routes. In
its employee handbook, the Respondent identifies the dispatcher posi-
tion as supervisory. General Counsel Exhibit (GC Exh.) 2 (“Our Com-
pany” sec.). In 2003, D’Angelo conducted multiple meetings on behalf
of the Respondent, at which she articulated the Respondent’s position
regarding the Union. Winkle herself was present at these meetings.
Company correspondence to employees listed D’Angelo as someone to
contact with questions regarding the union campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1210
B. Respondent’s Written Policy Prohibiting Solicitation
The record contains two different written statements of the
Respondent’s policy on solicitation. The earlier one is a memo-
randum from Laurie Winkle that is dated April 3, 1995. The
Respondent posted this memorandum on its bulletin in 1995
and, apparently, has never taken it down.3 That memorandum
states:
Due to some apparent confusion about Winkle Bus
Company’s policy regarding solicitation/distribution of lit-
erature and information, as well as the posting of nonwork
items on the bulletin board, I want to take the opportunity
to reaffirm the following:
SOLICITATION/DISTRIBUTION/POSTING
To prevent disruption in the operation of the facility,
interference with work, and inconvenience to other em-
ployees, no solicitation or distribution of literature of any
kind during working time is permitted. An employee who
is not on working time (such as an employee who is on
lunch or on break) may not solicit or distribute literature to
an employee who is on working time. Whether on work-
ing time or not, no employee may distribute literature of
any kind in any working areas of the facility. No solicita-
tion or distribution of literature of any kind is permitted on
company property by anyone not an employee of Winkle
Bus Company.
Postings on the company bulletin board are to be lim-
ited to work-related items. All items to be posted must be
approved in advance by me.
Thank you for your cooperation and if you have any
questions (sic) please see me.
Respondent’s Exhibit (R. Exh. 3) (emphasis in the original).
The General Counsel has not alleged that the solicitation policy
in the 1995 memorandum violates the Act.
The second statement of the Respondent’s policy on solicita-
tion is included in the employee handbook and sets forth a
broader prohibition on solicitation. The Respondent distributes
this handbook to all employees at the start of each school year,
and to new employees when they began work. The version of
the employee handbook that the Respondent issued during the
time period covered by the complaint was one that had been
revised in July 1999. The solicitation policy in that handbook
reads:

3 I do not credit Winkle’s testimony that the information posted on
April 3, 1995, has subsequently been included in the packet of materi-
als distributed to employees at the beginning of each school year. If
this were the case, it would have been easy for the Respondent to intro-
duce the packet into evidence; however, it did not do so. See Gales-
burg Construction, 267 NLRB 551, 552 (1983) (adverse inference
drawn from respondent’s failure to produce documents in its control
that were vital to its defense). Moreover, Xabier Zabala, a current
employee who I found very credible, stated that he did not believe the
information in the April 3, 1995, posting was included in the packets he
received.
Solicitation on Company Property/Time: Soliciting
money or support for any cause from fellow workers, pas-
sengers or others on Company time or Company property
is prohibited. This solicitation is also prohibited on one’s
own time, if the solicitation involves a fellow worker who
is on duty.
General Counsel’s Exhibit (GC Exh. 2) (employee handbook,
revised 7/99) at page 5. This is the solicitation policy that the
General Counsel alleges is unlawful. At trial, Winkle reaf-
firmed an element of the handbook policy, stating that the Re-
spondent permitted solicitation only when employees were not
“on Company time.” (Transcript (Tr.) 192–193.)
C. October 9, 2003 Exchange Between Winkle and Plona
Terry Plona is a bus driver who contacted the Union about
providing representation to employees at the Milford location.
She also supported the union campaign by distributing authori-
zation cards, informing employees about union meetings, and
serving on the union organizing committee. Some of these
activities had begun by early October 2003, but the record does
not reveal the precise date they began, or when Winkle first
found out about them.
On October 9, 2003, Winkle spoke with Plona and that con-
versation is the subject of a number of the allegations in the
complaint. Winkle and Plona offered contradictory accounts of
what transpired between them. Plona’s testimony was that,
after she completed her morning routes, Winkle came on the
bus that Plona was operating, and asked what she was “doing.”
Plona responded, “What do you mean, what am I doing?” Ac-
cording to Plona, Winkle said, “Terry, you know what you’re
doing, we don’t allow soliciting on the property, you know, we
don’t want to allow—we’re not going to allow a union in here;
if the Union came in here, we would move all the buses out of
town.” Winkle told Plona that the no-solicitation policy had
been on the bulletin board for the past 8 years. According to
Plona, Winkle then asked if Plona had any “issues” or “prob-
lems” that she “needed to discuss.” The two went up to Win-
kle’s office, where Winkle gave Plona assignments for charters,
i.e., for extra, out-of-town, work. These assignments were
voluntary and meant extra income for Plona. Prior to the start
of the union campaign, Plona had sought such assignments, and
Winkle had invited Plona to an August 27, 2003 meeting of
employees at which Winkle announced that the Respondent
would soon be offering charter assignments to interested em-
ployees. According to Plona, on October 9, Winkle also prom-
ised her certain pre-school assignments that were about to be-
come available. As with the charters, these extra assignments
would have meant increased earnings for Plona.
Winkle admits that she spoke to Plona in October, but denies
the majority of Plona’s account. According to Winkle, she
never mentioned the Union, never threatened to move the buses
out of town, and never told Plona that the company prohibited
solicitation on the property.
In Winkle’s account, Plona came to her office for a discus-
sion of additional assignments. Winkle says she told Plona that
a preschool route was becoming available, and that Plona could
have the assignment. According to Winkle, she subsequently
assigned the preschool route to Plona.
WINKLE BUS CO. 1211
Unfortunately, I found neither Plona nor Winkle to be a very
credible witness regarding disputed matters. Plona’s testimony
had significant contradictions and inconsistencies. See, e.g.,
Transcript 65–67 (inconsistency about whether Winkle first
discussed additional work on bus “charters” during the August
before the Union drive started, or only much later, on a date
after the drive was underway) (Tr. 67–69). (Plona gives incon-
sistent, evasive, answers regarding whether she currently had a
license to drive a bus.) After contradictions were exposed dur-
ing cross-examination, Plona began to stonewall—repeatedly,
and without pausing to think, responding that she did not recall
relevant facts (see Tr. 78–80), even regarding matters about
which she had previously testified with confidence. Winkle’s
testimony, likewise, had significant internal contradictions. For
example, she said she did not recall having “any discussions”
with the union representatives when she saw them at the Mil-
ford facility on October 15, 2003—a date she allegedly threat-
ened them—but she then conceded that she spoke with them on
that date. (Tr. 213, 247–248.) Winkle appeared unusually
nervous during her examination—searching the hearing room
with her eyes before, while, and after answering questions—
and her testimony gave the impression of being more calculated
than forthcoming. Moreover, Winkle’s far-fetched assertion
that the policy on solicitation, which the Respondent had dis-
tributed annually since July 1999, was somehow revoked by a
memorandum that the Respondent posted on its bulletin board
in April 1995, as well as her unwillingness to concede during
cross-examination that the April 1995 memorandum did not
state that it was revoking the July 1999 policy (Tr. 241–244),
all reflect negatively on her reliability as a witness.
There were no other witnesses to the October 9 conversation
between Winkle and Plona, and the record is devoid of addi-
tional evidence that provides meaningful corroboration for
either witness’ version. Given the evidence, and my assess-
ment of the credibility of the witnesses, I find that the General
Counsel has failed to show by a preponderance of the evidence
that Winkle made any of the statements on October 9 that are
alleged to constitute: oral promulgation of a rule prohibiting
discussion of the Union at the facility; interrogation about un-
ion activities; the impression of surveillance; and, threats of
plant closure. The record before me does not establish that
these statements were not made, but it fails to establish that
they were.
Winkle did not deny that she asked if Plona had any “issues”
or “problems” that she “needed to discuss,” and so, in the ab-
sence of contradictory evidence, I credit Plona’s facially plau-
sible testimony that Winkle made this inquiry. I also find, as
both Winkle and Plona agree, that on October 9 they discussed
additional work for Plona, and that, shortly thereafter, Winkle
did assign additional routes to Plona. I also find that Plona had
previously made her interest in accepting additional assign-
ments known to Winkle, and that on August 27, 2003—prior to
the start of the Union campaign—Winkle informed Plona and
other drivers that charter assignments would soon be made
available to those who wanted them. The record also showed
that Plona had been assigned additional work in the form of
pre-school routes during two of the previous three school years,
and that during the third year she chose to care for her infant
daughter rather than perform the additional work. Documen-
tary evidence shows that one of the Respondent’s customers
placed an order for additional preschool bus routes near the
time of the October 9 conversation.4
D. October 15, 2003 Encounter Between Winkle and Union
Officials Outside the Facility
On October 15, 2003, three union officials came to the Re-
spondent’s Milford facility to distribute literature and authori-
zation cards to the Respondent’s busdrivers as they returned
after completing their afternoon routes, and left for home in
their private vehicles.5 Those union officials were Vincent
Murolo (business representative and organizing director), Peter
Sena (business representative and organizer), and Kerri Hoehne

4 During the trial, the Respondent agreed that, posttrial, it would
provide the General Counsel with the documents that were used to
create R. Exh. 1 so that the General Counsel could point out any inac-
curacies in that exhibit. R. Exh. 1 summarizes Plona’s work assign-
ments and was relevant to the question of whether the Respondent had
unlawfully assigned additional work to Plona. After the trial had
closed, and prior to the submission of briefs, the General Counsel filed
a motion to supplement the record with a new exhibit, GC Exh. 7 (the
parties sometimes refer to this as GC Exh. 8) which is comprised of the
underlying documents provided by the Respondent after trial. The
Respondent opposed admission of the new exhibit, and moved to strike
references to it in the General Counsel’s Brief. In response, the Gen-
eral Counsel argued that the underlying records encompassed by the
new exhibit show that R. Exh. 1 contained an inaccuracy. Since, I
agree, that the GC Exh. 7 corrects or clarifies some of the information
in R. Exh. 1, I receive GC Exh. 7 into evidence, and deny the Respon-
dent’s motion to strike references to that exhibit from the General
Counsel’s brief.
5 The three union officials testified that the events at-issue took place
on October 15. Winkle testified that she saw the union officials at the
facility on October 15, but also that some of the exchanges at-issue
took place during a later visit by the organizers on October 23. I found
the testimony of the three union officials, which was consistent regard-
ing the date and was also corroborated to some extent by the accounts
of bus drivers who were present, to be credible, and therefore find that
the events all took place on October 15. I also credit the Union organ-
izers’ generally consistent account of Winkle’s statements and behavior
toward them, despite some inconsistencies that were demonstrated
regarding less significant aspects of their respective testimonies about
that day. The organizers’ account of Winkle’s behavior towards them
was corroborated to some extent by the testimony of Joel Cohen, a
driver who, while he could not hear Winkle’s statements, did observe
that she was gesturing at the organizers and was red in the face. I also
gave some limited weight to the testimony of Plona, who, though not a
very credible witness in general, gave an account of Winkle’s state-
ments and behavior that was plausible and generally consistent with
that of the organizers. In its brief, the Respondent makes much of the
fact that Hoehne testified that she did not recall seeing Plona at the
incident on October 15, but that is not surprising since Hoehne did not
know who Plona was at the time and, in any case, Plona was inside her
bus and likely obscured to some extent. For the reasons discussed
above, Winkle was a less than credible witness, and her milder account
of what she said to the union organizers was not corroborated by any
other evidence. I credit the generally consistent accounts of the three
union organizers over Winkle’s testimony about the disputed state-
ments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1212
(organizer). The organizers situated themselves outside the two
gates to the Respondent’s bus yard. For much of the time the
organizers stood in the driveways that led from the gates to the
road, standing closer to the road than to the gates. At other
times they traversed the space between the driveways. Appar-
ently, the drivers tended to return from their routes at about the
same time, and they lined up to pass through the Respondent’s
entrance gate, which was only wide enough to admit one vehi-
cle at a time. It is reasonable to infer that when a bus driver
whose turn it was to proceed through the gate stopped in the
driveway to take materials from one of the organizers, this
pause would cause some delay for the other drivers who were
waiting to use the entrance. However, the record does not show
how a long a delay this was or whether it was significant. The
road that runs in front of the Milford facility has only one lane
in each direction, so any delay that kept the buses from turning
off the road, would also tend to delay whatever other traffic
existed along that road.
After the union organizers had engaged in these activities for
a few minutes, Winkle approached and yelled that they had “no
business being” there, and had to “[g]et out.” Then she told
them, “If you don’t leave, I’m gonna call the cops and have you
arrested.” These statements were made in the presence of em-
ployees, and within the hearing of at least one employee—
Plona. Sena responded that they had a right to give out the
leaflets and invited Winkle to “go ahead” and contact the po-
lice. Subsequently, Winkle went to the other gate—generally
used for exiting the yard—and closed or blocked it so that all
the drivers were forced to enter and exit through a single, one-
lane, entrance gate. Winkle later returned to the entrance gate
where she lingered, picking up twigs. It was not unusual for
Winkle to spend quite a bit of time out in the bus yard, but on
this occasion she also stopped to tell drivers that they did not
have to accept literature from, or talk with, the organizers, and
that they should keep moving so as not to block traffic. Sena
told Winkle not to engage in surveillance of the organizing
activities, and Winkle responded that she was simply picking
up sticks. Although many of the bus drivers had accepted the
union literature prior to Winkle’s appearance near the front
gate, there was a marked decline in bus drivers’ willingness to
do so after Winkle arrived.
The record is unclear as to whether the organizers were on
public property, as opposed to the Respondent’s property, at the
time of their October 15 confrontation with Winkle. The record
does show that the organizers remained outside the Respon-
dent’s gates and that there was no sidewalk along the side of
the road in front of the Respondent’s property. All three union
organizers testified that they were on public property, however,
the record does not provide a basis for concluding that they
were correct. Sena stated that he had not consulted “zoning,” to
determine where the Respondent’s property ended, but ex-
plained that he generally judged where public property began
by reference to the placement of telephone poles, which, he
said, were on public property. He testified that it was his un-
derstanding that, even in the absence of a sidewalk, there is a
“buffer zone” of public property between private property and a
public street. Neither Hoehne nor Murolo explained why they
believed they were on public property. Winkle testified that, in
her view, the area between the gate and the street was the Re-
spondent’s property. She stated that she believed this because
there was 30 to 35 feet between the gate and the street. Neither
side presented documentary evidence showing the location of
the gate and the street relative to the Respondent’s property
line. This record provides an inadequate basis for determining
whether the organizers were on private property at the time of
the confrontation.
E. Encounter Between Winkle and Plona on or about
October 19, 2004
On or about October 19, 2004, Winkle had another encounter
with Plona. Once again, Winkle and Plona provided contrary
accounts of what occurred. Given my assessment of the credi-
bility of these witnesses, I find that the record fails to establish
the truth, by a preponderance of the evidence, of either witness’
account of disputed matters, except to the extent that those
accounts are corroborated by credible evidence. Fortunately, in
this case a third witness—Joel Cohen—testified about a signifi-
cant portion of the exchange. I found Cohen a very credible
witness based on his demeanor and testimony. Cohen testified
in a clear, certain, very forthcoming and measured way. He did
not appear to strain to conform his account to any party’s ad-
vantage. For example, while he was present during the October
15 incident discussed above, and testified about what he saw,
he conceded that he was unable to hear what was being said. In
discussing an incident on October 23, he willingly admitted
that, although he did not know it at the time, he was running
late when Winkle directed him to stop talking and begin his
route. Cohen left the Respondent’s employ when asked to ap-
pear for what Winkle described as a governmentally—
mandated random drug test, but the record provides no basis for
inferring that Cohen would hold the Respondent’s compliance
with this externally imposed requirement against the Respon-
dent, or that Cohen was otherwise biased against his former
employer. Cohen was not shown to have any personal stake in
the outcome of this proceeding.
I find that the record establishes the following. On October
19, Plona was at the Milford location after completing her
route. She and her daughter were waiting for Plona’s husband
to arrive and drive them home. Plona began approaching vari-
ous bus drivers who had completed their work but still needed
to put fuel in their buses before returning home. As the other
drivers waited for turns at the fuel pump, Plona approached
them shouting, “Meeting—big meeting—big meeting at
Denny’s.” Cohen was one of the drivers waiting to put gas in
his bus. He did not consider himself to be “on the clock,” at
this time because, like most of the Respondent’s drivers, he was
paid by the “run,” not by the hour, and he had already com-
pleted his run. Plona came to the window of Cohen’s bus and
began to talk to him. Winkle heard Plona exhorting employees
to attend the meeting, and called to her from the office window.
Winkle shouted, “Terry, I told you not to talk to anybody.” She
also shouted, “Terry, that is enough.” Plona responded that she
was not talking about the Union. Winkle continued, “I’m going
to get the police and throw you off the property.” Plona an-
swered that she could talk to whomever she wanted. There
were several drivers nearby when this exchange took place.
WINKLE BUS CO. 1213
Subsequently, Winkle approached Plona’s daughter, who was
sitting near the office, and said, “[Y]ou need to go with
Mommy now. Mommy’s leaving. You need to get up and go
with Mommy.” Plona and Winkle agree that Winkle touched
Plona’s daughter at this time, but Plona says that Winkle
grabbed the girl by her shoulder or backpack and pulled her up,
whereas Winkle says that she merely “tapped” her.
The record showed that Winkle was generally intolerant of
employees having personal conversations during “working
time”—regardless of whether the conversation was about un-
ions or something else. The record does not, however, show
that Winkle generally interfered with drivers who were talking
when they had completed their routes, or who were waiting
between routes or for a turn at the pump. Nor does the record
show that Winkle considered drivers to be on “working time”
during those hours, or whether she distinguished in that regard
between drivers paid by the “run” and those paid by the hour.
Moreover, even assuming that Winkle objected to personal
conversations during employee “waiting time,” the record did
not show that her objections ever took a form as intimidating as
a threat of arrest when those conversations involved matters
unrelated to unions.
F. Encounters Between Winkle and Cohen on October 20 and
October 23, 2003
On October 20, 2003, Winkle and Cohen met alone in Win-
kle’s office. At this meeting Winkle stated, “[T]here are peo-
ple here trying to organize the Union.” Then Winkle added, “I
don’t know whether you’re for that or not.” Cohen responded
that he was in favor of the Union and explained the reasons he
supported it. Winkle did not respond to Cohen’s statements
regarding his union support or otherwise continue the conversa-
tion, and Cohen left.
Three days later, on the morning of October 23, 2003, Cohen
was at the Milford location, talking to another driver, Don
Johnson. Both drivers had finished certain preparatory work,
but neither had begun their morning routes. Johnson was sit-
ting in his bus, and Cohen went to talk to him. Winkle ap-
proached them and told Cohen that she was not paying him to
talk on her time. Winkle did not mention the Union and the
record does not show that Cohen was talking to Johnson about
the Union, or that Winkle believed he was. Cohen conceded
that he was late starting his route when Winkle spoke to him,
but testified that he had not previously been told when to start
the route and was preparing to leave at the same time he was
accustomed to leaving.
G. Winkle Prohibits Plona From Taking Minibus
Home During Break
The Respondent uses full-size schoolbuses for most of its
work, but also has a number of minibuses that it employs pri-
marily for transporting preschool children—aged 3 to 4 years.
The Respondent permits drivers who operate the full-size
schoolbuses to take those buses home during breaks, or over-
night, as long as neighbors and the local authorities do not
complain about where the buses are being parked. Many of the
Respondent’s drivers take advantage of the Respondent’s pol-
icy and drive the full-size buses home in order to avoid unnec-
essary trips to the bus yard. With respect to the minibuses, the
Respondent’s policy is more restrictive because those vehicles
are in short supply. The Respondent keeps many of its mini-
buses available in the yard, rather than permitting drivers to
bring them home. However, the Respondent does permit a
driver to take the minibus home if that driver has a specific
minibus assigned to him or her and the driver uses that minibus
to complete routes in both the morning and the afternoon.
Plona drove a full-size schoolbus during the months leading
up to October 2003. In October Plona continued to use the full-
size schoolbus for her regular morning and afternoon runs, but
also began to use a minibus to perform the preschool route that
she had been assigned that month and which she performed
during the period between her morning and afternoon routes.6
She did not have a specific minibus assigned to her. Plona had
long been permitted to take the full-size schoolbus home during
a break between her morning routes. The Respondent never
revoked Plona’s authorization to do this, and Plona continued
to return home in her full-size bus during the morning. When
Plona started performing the preschool route using a minibus
she asked Winkle for permission to take the minibus home in
the afternoon. On November 3, 2003, Winkle denied that per-
mission. Although her testimony on the subject lacked clarity,
it appears that Plona claims that at a previous point in her em-
ployment, she had driven a minibus to her home during breaks.
It is not clear whether she claims the Respondent had explicitly
authorized this, or that it was done with the Respondent’s
knowledge. The record does not reveal whether Plona had a
specific minibus assigned to her at the time she says she used a
minibus to drive home. Plona conceded that not all drivers
were permitted to drive the minibuses home, and the record
does not show that the Respondent permitted any drivers to
take a minibus home who did not have a specific minibus as-
signed to them for both morning and afternoon routes.
H. Encounter Between Winkle and Zabala
In October or November 2003, Winkle was in the yard giv-
ing direction to a busdriver named Xabier Zabala, who was
sweeping buses. There were no other persons in immediate
proximity to them. At some point, Winkle asked Zabala, “Are
you in the Union.” Zabala replied, “no.” Winkle commented,
“[T]hat’s fine, because in your case the Union is not good for
you.”7

6 As discussed above, Plona had requested additional work, and took
the preschool assignment voluntarily.
7 Winkle denied this conversation, but I credit Zabala’s account. I
found Zabala a credible witness based on his demeanor and testimony.
He testified in a calm and certain matter, and showed no signs of at-
tempting to embellish or exaggerate his account. The record provides
no reasonable basis for believing that Zabala was biased against the
Respondent or in favor of the Union. My credibility findings with
respect to Zabala are made independently of his status as a current
employee of the Respondent at the time of his testimony. I neverthe-
less note that these findings are consistent with the Board’s view that
the testimony of a current employee that is adverse to his employer is
“given at considerable risk of economic reprisal, including loss of em-
ployment . . . and for this reason is not likely to be false.” Shop-Rite
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
I. WINKLE’S NOVEMBER 2003 LETTER TO EMPLOYEES
In November 2003, the Respondent distributed a letter to
employees. The letter reads as follows:
Dear Winkle Bus Company fellow employee:
We have heard that the Union sales people are continu-
ing to work very hard to sell you on the Union, and in the
process, are telling many of you things that are simply un-
true. I feel it is important that you know the truth about
some of these things so that you won’t be misled.
The Union has said that Winkle Bus can make changes
to your benefits and wages right now and that doing so
would not be illegal. They are trying to make you believe
that we are simply not willing to make changes. This is
just not true. The Union salespeople know full well that
when employees are actively trying to organize a union, a
company can’t legally make changes. The National Labor
Relations Board, the federal agency that administers labor
laws, says that this is the case.
The Union has said to some of you that it wants to
have a debate with me about the Union. What the Union
salespeople are not telling you is that they can make broad
promises and statements about what they claim they can
get for you. The law prohibits and forbids the Company
from making any promises to you and drastically restricts
what the Company can say. These restrictions place Win-
kle Bus in the position of violating the law if we discuss
any plans or programs that might benefit you. This is why
the Union is now talking about “debates” and why we
simply cannot agree to one.
Some of you have come to me and expressed concerns
that some employees are being harassed or coerced into
signing authorization cards. The law supports your right
to say no to the Union or to employees who try to pressure
you into signing a card. It is illegal for the Union sales-
people or employees to threaten or coerce you into signing
a card. If you are being threatened or coerced by employ-
ees or the Union, please contact the National Labor Rela-
tions Board’s Hartford office at 860–240–3522 immedi-
ately or tell me. If you have been pressured into signing a
card and now want to change your mind, like some em-
ployees who have spoken with me, the attached page ex-
plains how to revoke one.
Finally, some employees tell me that the Union is say-
ing that it is willing to waive initiation fees and dues for
employees for some period of time. Don’t be fooled by
this “promise”. The Union knows that if it can convince
enough of you to sign up, it stands to make thousands and
thousands of dollars from your dues money each year for a
long, long time. The Union is a business and doesn’t
make these kinds of promises unless it thinks that it will
stand to benefit from a bigger payout in the long run.
As always, if you have any questions, please feel free
to come and talk with me or Flo.

Supermarket, 231 NLRB 500, 505 fn. 22 (1977); see also Flexsteel
Industries, 316 NLRB 745 (1995), enfd. 83 F.3d 419 (5th Cir. 1996).
Sincerely,
Laurie Winkle
The Respondent distributed this letter to employees with their
paychecks.
J. Encounters Between Winkle and Cohen in November
and December 2003
On three occasions in November and December 2003, Win-
kle made comments to Cohen about what unionization would
mean to the Respondent’s employees. On the first occasion,
Winkle and Cohen were in the yard before Cohen began his
afternoon run. Out of the presence of other employees, Winkle
told Cohen, “[I]f the Union comes in, I’m not going to give
anymore advances on paychecks.” The record shows that Win-
kle had previously advanced funds to Cohen and other employ-
ees.
The Respondent’s drivers are required to sound their buses’
horns when backing up. In November, Cohen was backing up
his bus in the Respondent’s yard and failed to use the horn.
Winkle approached Cohen and informed him of his mistake.
Also present was an individual who is identified in the record
as a “trainer” named Tony.8 Winkle told Cohen: “I’m going to
start writing this down. If you have two write-ups, it’ll be a
day’s suspension without pay. And if the Union comes in, I’m
going to negotiate that into a contract.” Cohen’s experience
was that, in the past, the Respondent had responded to such
conduct by talking to the employee, without any written record
being made of it.
The third occasion took place in December 2003. Winkle
had posted a newspaper article that reported on conflicts the
Union was having with a different employer whose employees
had voted in favor of union representation the previous year.
The article discussed allegations that the employer had failed to
bargain in good faith, and had unilaterally granted employees a
wage increase after the union was voted in. Cohen saw the
article and stopped to read it. As he did so, Winkle approached
and asked, “Do you want to wait for years for a raise like those
people.”9

8 The Respondent argues that I should draw an adverse inference
from the General Counsel’s failure to call Tony as a witness. However,
the Respondent does not explain why it would not be just as proper to
draw an adverse inference against the Respondent for also failing to
call Tony as a witness. At any rate, the Board has held that since by-
stander employees are not presumed to be favorably disposed towards
any party it is not proper to draw an adverse inference against a party
for failing to call such a witness. Torbitt & Castleman, Inc., 320 NLRB
907, 910 fn. 6 (1996), affd. on point 123 F.3d 899, 907 (6th Cir. 1997);
see also International Automated Machines, Inc., 285 NLRB 1122,
1123 (1987) (adverse inference is only proper if it can reasonably be
assumed that the witness was favorably disposed to the party against
whom the inference is drawn).
9 The Respondent argues that Cohen’s account should not be cred-
ited because the comment Cohen reports Winkle making would have
been “nonsensical” since the article dealt with an employer who
granted employees a pay raise immediately after they chose union
representation. I do not believe the statement is as nonsensical as Re-
WINKLE BUS CO. 1215
K. Plona’s December 10, 2003 Conversation with Winkle
and D’Angelo
On December 10, the Respondent had a meeting with em-
ployees. After the meeting, Plona decided to go to the Respon-
dent’s upstairs office in what she described as an effort to
“break the ice.” Present in the office were Winkle, D’Angelo,
and a secretary. D’Angelo asked Plona if she had been paid by
the Union for her organizing activities, and Plona responded
that she had not been paid. Winkle then told Plona “[Y]ou can
call the Union and let them know there’s no contest.”10
L. Complaint Allegations
The complaint alleges that the Respondent interfered with
employees’ Section 7 rights in violation of Section 8(a)(1):
since about June 11, 2003, by maintaining a policy that prohib-
ited solicitation on “Company time or Company property”; on
or about October 9, 2003, by promulgating, and subsequently
maintaining and enforcing a rule that prohibited employees
from discussing the Union at the facility; on or about October
9, 2003, by interrogating employees about their union activi-
ties; on or about October 9, 2003, by creating the impression
among employees that their union activities were under surveil-
lance; on or about October 9, 2003, by threatening that it would
close the plant if employees selected the Union as their collec-
tive-bargaining representative; on or about October 9, 2003, by
soliciting employee complaints and grievances and impliedly
promising that it would improve employees’ working condi-
tions; on or about October 15, 2003, by threatening union rep-
resentatives with arrest and engaging in surveillance of em-
ployees’ union activities; on or about October 19, 2003, by
threatening employees with arrest for discussing the Union and
their terms and conditions of employment; on or about October
20, 2003, by interrogating employees regarding their union
activities; on or about October 23, 2003, by engaging in sur-
veillance of employees’ union activities;11 in late October or
early November 2003 by interrogating employees about their
union sympathies and impliedly threatening employees with

spondent attempts to portray it, since the article involves laws under
which an employer cannot freely grant wage increases to employees
who have recently selected a union as their collective-bargaining repre-
sentative, but will often have to bargain with the union before granting
any such raises.
10 The findings regarding this December 10 encounter are based en-
tirely on Plona’s testimony. Although I did not find Plona a very credi-
ble witness, I note that her account of the December 10 meeting was
uncontradicted. I recognize that D’Angelo died prior to the trial. How-
ever, Winkle was present during the exchange, and although she testi-
fied at length she never denied Plona’s account of what D’Angelo said
during the meeting. Since Plona’s account is not disputed, and because
it is not facially implausible, or contrary to record evidence, I credit her
account.
11 On its face, par. 9(b) of the complaint can be read to allege that the
Respondent threatened union representatives with arrest on both Octo-
ber 15 and 23, 2003. A trial, counsel for the General Counsel indicated
that the paragraph was inartfully drafted, and that the General Counsel
was alleging that union officials had been threatened with arrest on
October 15, but not on October 23. Tr. 157–159.
unspecified reprisals if they selected the union as their collec-
tive-bargaining representative12; in or about November 2003,
by distributing letters asking employees to inform the Respon-
dent about the union activities of other employees; in or about
November 2003, by threatening employees with loss of bene-
fits, stricter enforcement of disciplinary rules, and increased
penalties; in or about December 2003 by informing employees
that it would futile for them to select the Union as their collec-
tive-bargaining representative; and, on or about December 10,
2003, by interrogating employees about their union activities.
The complaint further alleges that the Respondent discrimi-
nated against employee Terry Plona because of her union and
concerted activities: on October 9, 2003, by granting her addi-
tional work hours; and, on November 3, 2003, by ceasing to
allow her to take her bus home on breaks.
Analysis and Discussion
I. WRITTEN POLICY ON SOLICITATION
The complaint alleges that, since about July 11, 2003, the
Respondent has violated Section 8(a)(1) of the Act by maintain-
ing an unlawful prohibition on solicitation. As discussed
above, the record shows that since at least that date, the Re-
spondent has routinely distributed an employee handbook to its
bus drivers that contains a rule prohibiting any solicitation on
“Company time or Company property.” Such a rule is pre-
sumptively invalid because “[t]he expression ‘company time’
does not clearly convey to employees that they may solicit on
breaks, lunch, and before and after work. Laidlaw Transit Inc.,
315 NLRB 79, 82 (1994). Similarly, the use of the phrase
“Company property,” is invalid because its “overbroad” and
can be interpreted “to restrict solicitation and distribution in
breakrooms or cafeterias, places where employees do not per-

12 Par. 9(e)(ii) of the complaint originally alleged that, in late Octo-
ber or early November 2003, the Respondent had “threatened its em-
ployees with loss of wages if they selected the union as their collective
bargaining representative.” During the presentation of its case-in-chief,
the General Counsel moved to amend that paragraph to delete the alle-
gation regarding “loss of wages” and substitute an allegation that the
Respondent had “impliedly threatened its employees with unspecified
reprisals.” Tr. 88. I granted the motion to amend, over the Respon-
dent’s objection that it came “too late.” Tr. 89. Pursuant to Section
102.17 of the Board’s rules, “at the hearing and until the transfer of the
case to the Board,” the administrative law judge may grant a motion by
the General Counsel to amend the complaint “upon such terms as may
be deemed just.” See also Pincus Elevator & Electric Co., 308 NLRB
684, 684–685 (1992) (“Under Section 102.17 of the Board’s Rules and
Regulations, a judge has wide discretion to grant or deny motions to
amend a complaint.”), enfd. mem. 998 F.2d 1004 (3d Cir. 1993). In this
case, the General Counsel made its motion to amend early in the pres-
entation of its case-in-chief, during the testimony of the second of its
six witnesses. This gave both parties the opportunity to fully litigate
the new allegation, which they did. The new allegation was similar to
the one for which it was substituted, and involved the time period and
general type of allegation that much of the rest of the complaint con-
cerned. Under these circumstances, it did not significantly, or unjustly,
prejudice the Respondent to allow the General Counsel to amend the
complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
form work activities but technically are ‘company property.’”
Id.
The Respondent does not dispute that the solicitation policy
it includes in its employee handbook is unlawful (R. Br. 43),
but attempts to avoid a violation by arguing that the policy was
no longer in effect during the relevant time period. Although it
continued to distribute the handbook policy to employees in
2003, the Respondent argues that the policy was revoked by a
memorandum that Winkle issued on April 3, 1995, and posted
on the facility’s bulletin board. That memorandum, which has
remained posted, sets forth specific, narrower, prohibitions on
solicitation, but does not inform employees of any circum-
stances when solicitation is permitted. The 1995 memorandum
does not state that it is revoking the handbook policy or even
mention that policy.
The Respondent’s argument fails for a number of reasons.
First, the Respondent did not revoke the unlawful handbook
policy by issuing the 1995 memorandum. Four years after the
Respondent claims it rescinded the unlawful policy, it still in-
cluded that unlawful policy in a new version of its employee
handbook. Moreover, the Respondent has continued to distrib-
ute that unlawful policy to all employees even after July 11,
2003. Indeed, at trial Winkle confirmed that the unlawful pro-
hibition was still in effect, stating that solicitation was permit-
ted when the employees were not “on Company time.” This
unlawful formulation, which can be read to prohibit solicitation
during breaks and other periods that are the employee’s own
time, comes from the handbook, not the earlier memorandum.
Second, even if the Respondent no longer intended to give ef-
fect to the overbroad policy in the handbook, it would not avoid
a finding of violation since the Respondent continued to main-
tain and distribute the unlawful policy. The mere existence of
an overbroad policy chills employees’ exercise of their Section
7 rights, even if the Respondent no longer intends to enforce
the unlawful restriction. See Alaska Pulp Corp., 300 NLRB
232, 234 (1990), enfd. 944 F.2d 909 (9th Cir. 1991); Brunswick
Corp., 282 NLRB 794, 795 (1987).
Third, under applicable precedent, in order to avoid a finding
of violation for its overly broad solicitation rule, the Respon-
dent would have to demonstrate that it eliminated the impact of
the unlawful rule by conveying to employees a clear intent to
permit solicitation during break times and other nonwork peri-
ods, and in nonwork areas. Laidlaw Transit Inc., 315 NLRB at
82–83; Wellstream Corp., 313 NLRB 698, 703 (1994); Ichikoh
Mfg., 312 NLRB 1022 (1993), enfd. mem. 41 F.3d 1507 (6th
1994); see also Teletech Holdings, 333 NLRB 402, 403 (2001)
(“a narrowed interpretation of an overly broad rule must be
communicated effectively to the employer’s workers to elimi-
nate the impact of a facially invalid rule”). This, the Respon-
dent undoubtedly failed to do. The most obvious reason is,
again, that the Respondent continued to routinely distribute the
overbroad solicitation policy to employees long after it posted
the April 3, 1995 memorandum. This timing would indicate to
employees that, if anything, the policy in the 1999 version of
the handbook superseded the policy in the April 1995 memo-
randum—not, as the Respondent now claims, the reverse.
Moreover, the 1995 memorandum does not mention the em-
ployee handbook, much less state clearly that it is revoking,
narrowing, or modifying, the solicitation policy contained in it.
More specifically, the 1995 memorandum does not state that,
despite the contrary policy stated in the handbook, the Respon-
dent will permit solicitation during breaktimes and other non-
work periods, and in nonwork areas. Indeed, the 1995 memo-
randum does not identify a single circumstance in which the
Respondent would permit solicitation. Winkle conceded at trial
that the Respondent did nothing to inform employees that the
overbroad solicitation had been narrowed, other than to post the
1995 memorandum. Given these facts, it is an understatement
to say that reasonable employees would not consistently as-
sume that the policy the Respondent was distributing to them in
2003 had been revoked 8 years earlier by the April 1995 memo-
randum. Many employees would consider themselves bound
by the unlawful no-solicitation policy in the handbook. At best,
the Respondent’s two pronouncements regarding solicitation
create confusion among employees about what is permitted,
and such confusion itself has the effect of unlawfully discour-
aging employees from engaging in solicitation protected by
Section 7 of the Act. See Farr Co., 304 NLRB 203, 215 (1991)
(An employer that maintained an unlawful no-solicitation pol-
icy in its handbook, did not escape liability by issuing a memo-
randum containing a lawful policy, since “legal confusion”
would result even if all employees were aware of both pro-
nouncements.); see also Teletech Holdings, 333 NLRB at 403
(When an employer communicates a narrowed interpretation of
an overly broad rule, “[a]ny remaining ambiguities concerning
the rule will be resolved against the employer, the promulgator
of the rule.”). Indeed, as noted above, it seems that even Win-
kle had trouble keeping track of the Respondent’s supposed
change in policy—reverting to the handbook language during
her testimony and stating that the Respondent permitted solici-
tation when employees were not “on Company time.”
For the reasons discussed above, I conclude that, since July
11, 2003,13 the Respondent violated Section 8(a)(1) of the Act
by its maintenance and distribution of the overly broad no-
solicitation policy in its employee handbook.
II. ALLEGED 8(A)(1) VIOLATIONS ON OCTOBER 9
The General Counsel alleges that Winkle made a number of
statements that violated Section 8(a)(1) of the Act during a
conversation with Plona on October 9, 2003. As discussed
above, the evidence failed to establish that Winkle made any of
the statements during the October 9 conversation that are al-
leged to constitute: oral promulgation of a rule prohibiting dis-
cussion of the Union at the facility; interrogation about union
activities; the impression of surveillance; or threats of plant
closure. Therefore, I will recommend that the complaint allega-
tions that Winkle violated Section 8(a)(1) by making such
statements on October 9 be dismissed.
With respect to the October 9 conversation, this leaves only
the allegation that Winkle unlawfully solicited employee com-

13 In reality, the Respondent maintained the unlawful solicitation rule
since at least July 1999. The July 11, 2003, date is dictated by the 6-
month charge filing period under Sec. 10(b). The original charge in
this case was filed on December 11, 2003.
WINKLE BUS CO. 1217
plaints and grievances, and impliedly promised to improve
working conditions. The record shows that Winkle did make
the statements that the General Counsel alleges constitute this
violation. Specifically, on October 9, after Plona completed her
morning routes, Winkle asked Plona if she had any “issues” or
“problems” that she “needed to discuss,” and said that Plona
would receive the additional work assignments that Plona had
been seeking. An employer violates Section 8(a)(1) when it
solicits, and promises to remedy, employee grievances as part
of an effort to discourage union activity. Hospital Shared Ser-
vices, 330 NLRB 317 (1999); Reliance Electric Co., 191 NLRB
44, 46 (1971), enfd. 457 F.2d 503 (6th Cir. 1972). The promise
to remedy grievances need not be explicit to constitute a viola-
tion. “There is a compelling inference that [the employer] is
implicitly promising to correct those inequities he discovers as
a result of his inquiries and likewise urging on his employees
that the combined program of inquiry and correction will make
union representation unnecessary.’” Embassy Suites Resort,
309 NLRB 1313, 1316 (1992), enf. denied on other grounds 32
F.3d 588 (D.C. Cir. 1994), quoting Reliance Electric, 191
NLRB at 46.
In this case, I conclude that the record fails to establish that
Winkle’s October 9 inquiry was part of an effort to discourage
union activity. The evidence does not show that the Respon-
dent was aware of the Union’s recently inaugurated campaign,
or of Plona’s involvement in it, as of the time that Winkle made
her inquiry. There is no evidence that, as of October 9, union
literature or paraphernalia, or other indications of the Union’s
campaign, were on view at the facility, or that anyone had con-
tacted the Respondent about whatever efforts were being
made.14 Moreover, the evidence did not show that it was un-
usual for Winkle to inquire whether employees had problems or
issues they wished to discuss. Given these facts, as well as the
facially innocent nature of Winkle’s inquiry, I conclude that the
record fails to establish that Winkle was attempting to solicit,
and promising to remedy, grievances, in an effort to discourage
union activity.
For the reason stated above, I conclude that the Board should
dismiss the complaint allegations that the Respondent violated
Section 8(a)(1) on October 9, 2003, by: promulgating, and sub-
sequently maintaining and enforcing a rule that prohibited em-
ployees from discussing the Union at the facility; interrogating
employees about their union activities; creating the impression
among employees that their union activities were under surveil-
lance; threatening that it would close the plant if employees
selected the Union as their collective-bargaining representative;
and, soliciting employee complaints and grievances and impli-
edly promising that it would improve employees’ working con-
ditions.

14 The first date when the record shows that Winkle was aware of
the campaign was October 15—when union officials came to the Re-
spondent’s facility to distribute union literature.
III. ALLEGATION THAT WINKLE GRANTED CONVERSATION IN
VIOLATION OF SECTION 8(A)(3)
The General Counsel alleges that the Respondent violated
Section 8(a)(3) and (1) when, shortly after Winkle’s October 9
conversation with Plona, Winkle granted Plona additional work
assignments in an attempt to cause Plona to lose interest in the
Union. It is well settled that an employer violates Section
8(a)(3) and (1) of the Act when it grants benefits to an em-
ployee for the purpose of causing him or her to lose interest in
unionization. Insight Communications Co., 330 NLRB 431,
457 (2000); Marriott Corp., 310 NLRB 1152, 1158 (1993).
I find that the record fails to establish that the Respondent
granted Plona benefits in an effort to discourage her from sup-
porting the Union. First, as discussed above, the record does
not show that Winkle even knew about the union campaign
either at the time of the October 9 conversation when she prom-
ised Plona additional work, or shortly thereafter when she actu-
ally assigned the work. Moreover, Plona had been seeking
such assignments during the period leading up to October 9,
and the extra work at issue here—preschool routes and charter
routes—were of a type that Plona had done in the past. The
record also shows that a preschool run was added to the Re-
spondent’s schedule at about the time of the October 9 conver-
sation, and that about 5 week earlier, prior to the start of the
Union campaign, Winkle had assured Plona that additional
charter assignments would soon be offered to drivers who
wanted them. Given this record, I cannot conclude that the
reason Winkle offered Plona the extra work was to try to cause
Plona to lose interest in unionization.
For the reasons discussed above, I conclude that the allega-
tion that the Respondent violated Section 8(a)(3) and (1), by
assigning additional work to Plona on October 9, or shortly
thereafter, should be dismissed.
IV. ALLEGATION THAT RESPONDENT VIOLATED SECTION 8(A)(1) BY
THREATENING AND SURVEILLING UNION REPRESENTATIVES ON
OCTOBER 15
An employer violates Section 8(a)(1) Act when it threatens
to have a nonemployee union official arrested for engaging in
activity protected by Section 7 at its facility, unless the em-
ployer meets a threshold burden of proving that it had a prop-
erty interest that entitled it to exclude the individuals. Corpo-
rate Interiors, Inc., 340 NLRB 732, 744–745 (2003); Swardson
Painting Co., 340 NLRB 179 (2003); A&E Food Co., 339
NLRB 860, 861–862 (2003); Wild Oats Markets, Inc., 336
NLRB 179, 180 (2001); Golden Stevedoring Co., 335 NLRB
410, 413–414 (2001); Indio Grocery Outlet, 323 NLRB 1138,
1141–1142 (1997), enfd. 187 F.3d 1080 (9th Cir. 1999), cert.
denied 529 U.S. 1098 (2000); Bristol Farms, Inc., 311 NLRB
437, 438–439 (1993). Applying this standard to the facts of
this case, I conclude that the Respondent violated the Act on
October 15, 2003, when Winkle attempted to expel the union
organizers and threatened to have them arrested if they would
not leave voluntarily.
The record shows that at the time Winkle attempted to expel
Murolo, Sena, and Hoehne, they were distributing union litera-
ture to the Respondent’s drivers—an activity protected by Sec-
tion 7. See Bristol Farms, supra (handbilling in front of em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
ployer’s store is Sec. 7 activity). Thus, the Respondent has the
burden of demonstrating that it had a property interest that enti-
tled it to exclude the union officials. It is undisputed that the
three nonemployee union organizers remained outside the Re-
spondent’s gates while they were engaged in the Section 7 ac-
tivity. Winkle stated that she believed the Respondent’s prop-
erty extended beyond its gates and that the organizers were on
the Respondent’s private property, however no other evidence
was presented to support Winkle’s belief. In particular, the
Respondent presented no documentary evidence showing
where the Respondent’s property lines were or indicating that
its property extended to the locations outside the gates where
the organizers were situated. For their parts, each of the three
organizers stated that they were on public property. Sena ex-
plained that he based his belief on his position relative to tele-
phone poles, which he understood to stand on public property.
As discussed above, on the record in this case I am unable to
make a finding about whether the organizers were on public
property or the Respondent’s private property. I conclude that
the Respondent has failed to meet it initial burden of showing
that it had a property right that entitled it to exclude the union
officials.
The Respondent argues “if a union organizer stopped a bus
on the way into the facility, it is inevitable that traffic would be
backed up in both directions” on the road outside the facility
and that Winkle therefore “had the right to bring [her] reason-
able concern about public safety to the attention of the police.”
(R. Br. at 26–27.) The Respondent failed to show that the few
moments it would take a driver to receive union literature from
one of the organizers was significantly contributing to any traf-
fic problems. At any rate, the claim that Winkle made the
threat because she was concerned about traffic is belied by her
decision to block one of the two driveways to the facility—
thereby forcing all the buses to enter and exit through a single,
one-lane, gate. Winkle must have known that this action would
significantly slow the traffic coming to the facility from the
road, and would exacerbate the traffic problem the Respondent
claims she was concerned about alleviating when she threat-
ened the union officials.
For these reasons, I conclude that the Respondent violated
Section 8(a)(1) on October 15, 2003, by threatening to have the
union representatives arrested.
The General Counsel also alleges that Winkle’s actions on
October 15 constituted unlawful surveillance of employees’
union activities. The Board has held that “management offi-
cials may observe public union activity, particularly when such
activity occurs on company premises, without violating Section
8(a)(1) of the Act, unless such officials do something out of the
ordinary.” Arrow Automotive Industries, 258 NLRB 860
(1980), enfd. mem. 79 F.2d 875 (4th Cir. 1982); Metal Indus-
tries, 251 NLRB 1523 (1981) (same). The employer’s actions
are evaluated from the perspective of the employee and are
unlawful if they would reasonably cause an employee to be-
lieve that his or her activities are under surveillance. Tres
Estrellas de Oro, 329 NLRB 50, 50–51 (1999).
I conclude that the observation at issue here constitutes more
than ordinary observation of public union activity and amounts
to unlawful surveillance. Although the record shows that it was
not unusual for Winkle to spend some of her workday outside
at locations around the facility, her activities in this case were
unusual. Most significantly, I note the fact that Winkle blocked
one of the two gates to the facility, thereby ensuring that all the
bus drivers had to pass by her position when they entered or
exited the facility and could not receive literature or other in-
formation from the union representatives without her scrutiny.
See Flexsteel Industries, 311 NLRB 257 (1993) (Under Sec.
8(a)(1), employees should be free to participate in union orga-
nizing campaigns without the fear that members of manage-
ment are “peering over their shoulders.”). There is no obvious
explanation for Winkle’s unusual decision to block the gate
other than a desire to make intrusive surveillance of employees’
union activities possible, and, indeed, the Respondent has not
offered an innocent explanation for her action. Compare, Fair-
fax Hospital, 310 NLRB 299, 310 (1993), enfd. mem. 14 F.3d
594 (4th Cir. 1993), cert. denied 512 U.S. 1205 (1994) (Al-
though “employer’s mere observation of union activities that
are conducted in public does not violate Section 8(a)(1) . . . ,
Board law does not authorize an employer to use patrolling
cars, cameras, and videotapes to enhance its identification of
those who are lawfully engaging in protected Section 7 con-
duct.”), and Sands Hotel & Casino, 306 NLRB 172 (1992),
enfd. mem. 993 F.2d 913 (D.C. Cir. 1993) (surveillance unlaw-
ful where guards made observation of union activity more in-
trusive by using binoculars). Winkle further magnified the
coercive effect of her surveillance by attempting to expel the
union organizers, see Hoschton Garment Co., 279 NLRB 565,
566 (1986) (surveillance unlawful where employer did not
merely observe union activity, but rather attempted to prohibit
it), and by advising the drivers under her observation that they
did not have to accept the union literature. Winkle’s activities
were out of the ordinary and had the tendency to unreasonably
chill the exercise of employees’ Section 7 rights. It is not sur-
prising under the circumstances that bus drivers were much less
willing to accept information from the union organizers as a
result of Winkle’s actions.
Those actions would cause employees to fear that their em-
ployer was attempting to specifically identify them in order to
take action, such as discharge or other discipline. See Fairfax
Hospital, 310 NLRB at 310.
I conclude that the Respondent violated Section 8(a)(1) of
the Act by engaging in intrusive surveillance of employees’
union activities on October 15, 2003.
V. ALLEGATION THAT RESPONDENT VIOLATED SECTION 8(A)(1)BY
THREATENING EMPLOYEES WITH ARREST ON OCTOBER 19
On October 19, 2003, after completing her work, Plona re-
peatedly announced an upcoming union meeting to busdrivers,
including Cohen, who were waiting for a turn to fuel their
buses at the Respondent’s pumps. Winkle, who could hear
what Plona was saying, shouted to Plona from the office
“Terry, I told you not to talk to anybody.” When Plona per-
sisted, Winkle shouted, “I’m going to get the police and throw
you off the property.” The Board has held that an employer
violates Section 8(a)(1) when it responds to employees’ pro-
tected union activity at or near its facility by threatening to call
WINKLE BUS CO. 1219
the police. Roadway Package System, 302 NLRB 961 (1991);
the All American Gourmet, 292 NLRB 1111 at fn. 2 (1989).
The Respondent argues that Winkle was generally intolerant
of employees engaging in personal conversations during “work-
ing time”—regardless of whether the conversation was about
unions or something else. While that is true, the evidence did
not show that Winkle’s intolerance of conversation regarding
nonunion matters extended to times when the drivers had com-
pleted their routes and were simply waiting for a turn at the gas
pump before returning home. Even assuming that Winkle ob-
jected to conversations during an employee’s waiting time, the
record did not show that her objections ever took a form as
intimidating as a threat to contact the police when the conversa-
tions involved matters unrelated to unions. At any rate, the
Board has indicated that employee “waiting time” is akin to
“break time,” and that an employer violates the Act by prohibit-
ing solicitation during such periods. See Orbit Lightspeed
Courier Sytems, Inc., 323 NLRB 380, 389–390 (1997).
For these reasons, I conclude that the Respondent violated
Section 8(a)(1) of the Act when Winkle threatened to call the
police because Plona would not cease her protected union ac-
tivities on October 19, 2003.
VI. ALLEGATION THAT RESPONDENT VIOLATED SECTION 8(A)(1)
BY INTERROGATING COHEN ON OCTOBER 20
The General Counsel alleges that, on October 20, 2003,
Winkle interrogated Cohen about his union sympathies in vio-
lation of Section 8(a)(1). At the time of the encounter, Winkle
and Cohen were alone in Winkle’s office. Winkle said,
“[T]here are people here trying to organize the Union,” then
added, “I don’t know whether you’re for that or not.” Cohen
told Winkle that he was in favor of the Union and explained the
reasons he supported it. Winkle did not continue the conversa-
tion and Cohen left. An interrogation is unlawful if, in light of
the totality of the circumstances, it reasonably tends to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. Matthews Readymix, Inc., 324 NLRB 1005, 1007
(1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery
Worldwide, 309 NLRB 185, 186 (1992); Liquitane Corp., 298
NLRB 292, 292–293 (1990). Relevant factors include, whether
the interrogated employee was an open or active union sup-
porter, whether proper assurances were given concerning the
questioning, the background and timing of the interrogation, the
nature of the information sought, the identity of the questioner,
and the place and method of the interrogation. Stoody Co., 320
NLRB 18, 18–19 (1995); Rossmore House Hotel, 269 NLRB
1176, 1177–1178 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985).
The Board has viewed the fact that an interrogator is a high-
level supervisor as one factor supporting a conclusion that
questioning was coercive. See, e.g., Stoody, supra.
Based on the factors articulated by the Board, I conclude that
Winkle’s statements to Cohen constituted an unlawful interro-
gation. First, Winkle was a management official, an owner of
the company, and the highest-ranking official of the Company
at the facility. Second, prior to meeting with Winkle, Cohen
was not shown to have publicly revealed his views regarding
the union campaign, or to have assisted the Union in any open
or active manner. Third, the meeting took place in Winkle’s
office, out of the presence of other employees, a factor that
would tend to make the exchange more intimidating to a rea-
sonable employee. Fourth, prior to the meeting, the Respon-
dent had already committed multiple unfair labor practices. On
two occasions, for example, Winkle threatened to call the po-
lice unless individuals ceased their union activities. Cohen
heard Winkle make one of those threats, and in the other in-
stance he observed Winkle confronting the union organizers.
Moreover, the Respondent has not presented evidence showing
an innocent purpose for the meeting or for Winkle’s comments.
To the contrary, the evidence shows that Winkle effectively
ended the conversation once Cohen revealed his views regard-
ing the union campaign. Application of the factors discussed
above, leads me to conclude that the interrogation of Cohen
was coercive and violative of the Act.
The Respondent argues that Winkle’s statements to Cohen
were not an interrogation because she did not ask him a ques-
tion, but simply made declarative statements. This argument
fails under applicable precedent. The Board has repeatedly
held that the fact that an employer uses declarative statements,
rather than questions, to elicit information from an employee
about his or her union sympathies or activities does not mean
that such activities are lawful. For example, in Kuna Meat Co.,
304 NLRB 1005, 1010 (1991), enfd. 966 F.2d 428 (8th Cir.
1992), an employer was found to have engaged in an unlawful
interrogation, even though its inquiries were posed as “declara-
tive statements” that its official “waited for [the employee] to
either agree or disagree” with. In Belcher Towing Co., 238
NLRB 446, 459 (1978), enfd. in relevant part 614 F.2d 88 (5th
Cir. 1980), an employer violated the Act when its official made
provocative statements to employees about union activity,
which, while declarative in nature, were “designed to bring
forth employee sentiments about union representation.” See
also Eddyleon Chocolate Co., 301 NLRB 887, 898 (1991) (“Al-
though . . . statement was declarative in form rather than inter-
rogative, it was clearly intended to elicit” information regarding
employee’s participation in union activities.); Wykle Research,
Inc., 290 NLRB 1062, 1069 (1988) (“declarative statements”
are unlawful interrogation where they are “interrogative in
purport if not in form”); Ebb Tide Processing, Inc., 264 NLRB
739, 744 (1982) (“declarative statement” made to employee
was made “solely to confirm her participation in the grievance .
. . was unlawful interrogation”). As discussed above, the evi-
dence shows that Winkle’s purpose for meeting with Cohen in
her office and making the declarative statements she did was to
elicit information about Cohen’s sentiments regarding union
representation.
For these reasons, I conclude that, on October 20, 2003,
Winkle coercively interrogated Cohen in violation of Section
8(a)(1) of the Act.
VII. ALLEGATION THAT RESPONDENT VIOLATED SECTION 8(A)(1)
By Engaging in Unlawful Surveillance of Employees’ Union
Activities on October 23
The Respondent alleges that the Respondent engaged in sur-
veillance of employees’ union activities on October 23, 2003,
when Winkle interrupted a conversation between Cohen and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1220
another driver, Johnson, and told them they were not being paid
“to talk on her time.”
The record does not support the allegation that Winkle was
engaging in surveillance of union activities in this instance.
The evidence did not show that Cohen and Johnson were en-
gaged in protected activity, or that Winkle had any reason to
believe they were, when she told them to stop talking. The
General Counsel does not claim that Winkle mentioned the
Union at all during the exchange. More importantly, Cohen
himself stated that he was late starting his bus route when Win-
kle interrupted his conversation, and he also testified that Win-
kle was generally intolerant of employees stopping for personal
conversations when they had work to do. These facts simply
do not support the unlawful explanation that the General Coun-
sel attempts to attach to Winkle’s statement to Cohen and John-
son. The much more likely explanation is that Winkle was
doing what she frequently did—making sure that the Respon-
dent’s drivers did not spend time talking when they had work to
do.
I conclude that the allegation that the Respondent violated
Section 8(a)(1) by engaging in surveillance of employees’ un-
ion activities on October 23, 2003, should be dismissed.
VIII. ALLEGATION THAT RESPONDENT VIOLATED SECTION 8(A)(1)
By Interrogating and Threatening Zabala in October or No-
vember 2003
The General Counsel alleges that during a conversation in
October or November 2003, Winkle approached employee
Zabala and made statements that constituted unlawful interro-
gation and the implied threat of unspecified reprisals. On the
occasion in question, Zabala was sweeping buses and Winkle
was giving him directions. Then, while they were out of the
presence of others, Winkle asked, “Are you in the Union?”
Zabala said, “no,” and Winkle commented, “[T]hat’s fine, be-
cause in your case the Union is not good for you.”
Turning first to the allegation of unlawful interrogation, I
find that the General Counsel has established a violation under
the standards discussed above. See Matthews Readymix, supra;
Stoody Co., supra; Emery Worldwide, supra; Liquitane Corp.,
supra; Rossmore House, supra. Winkle was the highest-ranking
official at the facility and the questioning took place out of the
presence of others, and against the backdrop of the Respon-
dent’s multiple unfair labor practices. The Respondent does
not claim that Zabala was openly prounion, and yet Winkle
asked him directly whether he was in the Union. Winkle did
not give Zabala any assurances to counter the coercive element
in her questioning.
For the reasons discussed above, I conclude that in October
or November 2003, Winkle coercively interrogated Zabala in
violation of Section 8(a)(1) of the Act.
Turning to the allegation of an unlawful threat, I conclude
that Winkle’s statement to Zabala that “in your case the Union
is not good for you” was simply a general statement of Win-
kle’s opinion regarding the merits of union representation, not a
threat. While Section 8(a)(1) prohibits certain speech and con-
duct deemed coercive, employers are free under Section 8(c) of
the Act to express their views, arguments, and opinions regard-
ing unions as long as such expressions are unaccompanied by
threats of reprisals, force or promise of benefit. Eckert Fire
Protection, Inc., 332 NLRB 198, 203 (2000); L.S.F. Transpor-
tation., Inc., 330 NLRB 1054, 1066 (2000), enfd. 282 F.3d 972
(7th Cir. 2002). In this instance, Winkle’s statement did not
refer to any future action by the Respondent, much less contain
a threat of retaliatory action by the Respondent or anyone else.
See Salvation Army Residence, 293 NLRB 944, 965 (1989)
(employer’s statement that it was going to be “rough” if the
union was selected was too vague and ambiguous to constitute
a threat and was not necessarily a reference to future action by
the Respondent). Under the facts present here, Winkle’s state-
ment that the Union would not be good for Zabala was an ex-
pression of opinion that falls within the protection of Section
8(c) of the Act, not a threat of retaliation by the Respondent.15
For the reasons discussed above, I conclude that the allega-
tion that Winkle threatened Zabala with unspecified reprisals in
violation of Section 8(a)(1) during a conversation in October or
November 2003 should be dismissed.
IX. ALLEGATION THAT THE RESPONDENT VIOLATED
SECTION 8(A)(3) AND (1)
On November 3 by Discontinuing the Practice of Permitting
Plona to Take the Bus Home on Breaks
The General Counsel alleges that under the standards an-
nounced in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393
(1983), the Respondent violated Section 8(a)(3) on November
3, 2003, by discriminatorily ceasing its practice of permitting
Plona to take the bus she was using home during breaks. I
reject this contention because the evidence fails to show either
that the Respondent changed its practice with respect to Plona,
or that it applied its policy disparately in her case. As found
above, both before and after November 3, 2003, the Respon-
dent permitted Plona to take home the full-size bus that she
used for her morning and afternoon routes. It is true that the
Respondent did not permit Plona to take a minibus home, but
the evidence did not establish that the Respondent had given
Plona permission to take a minibus home during the period
leading up to November 3. Indeed, due to the shortage of
minibuses, the Respondent’s policy was that only a driver who
had a specific minibus assigned to him or her, and who used
that bus in both the morning and the afternoon, would be per-
mitted to take a minibus home. The record did not establish
that Plona met either of those criteria. Nor did it show that any

15 If Winkle had made a prediction that specific consequences—e.g.,
plant closure, reduction in benefits—would flow from unionization, the
inquiry would be different. Pursuant to the Supreme Court’s decision
in NLRB v. Gissel Packing Co., the analytical question posed would
then have been whether Winkle’s statement constituted an unlawful
threat of retaliation in response to protected activity, rather than a law-
ful, fact-based prediction of economic consequences beyond the em-
ployer’s control. 395 U.S. 575, 617–619 (1969). As noted above, on
this occasion Winkle did not predict specific adverse consequences and
did not indicate that the Respondent would take any action at all—
retaliatory or otherwise—as a result of unionization.
WINKLE BUS CO. 1221
other drivers who failed to meet the criteria were permitted to
take minibuses home.
For the reasons discussed above, the allegation that the Re-
spondent violated Section 8(a)(3) and (1) on November 3,
2003, by ceasing to allow Plona to take her bus home during
breaks, should be dismissed.
X. ALLEGATION THAT WINKLE’S NOVEMBER 2003 LETTER ASKING
EMPLOYEES TO REPORT UNION COERCION VIOLATED
SECTION 8(A)(1)
The General Counsel alleges that Winkle’s November 2003
letter to employees asking them to report any coercion or har-
assment by the Union to Winkle or the Board violated Section
8(a)(1) of the Act. The focus of this allegation is the portion of
the letter which states: “Some of you have come to me and
expressed concerns that some employees are being harassed or
coerced into signing authorization cards . . . . If you are being
threatened or coerced by employees or the Union, please con-
tact the National Labor Relations Board’s Hartford office at
[telephone number] immediately or tell me.” In Tawas Indus-
tries, 336 NLRB 318, 322 (2001), the Board considered very
similar language and found it to be violative of Section 8(a)(1).
The employer’s notice in Tawas stated: “It has been reported
that employees feel they are being subjected to threats and co-
ercion because they are expressing their views (either pro or
con) regarding [union representation]. If you feel that you are
being subject to such actions, please report such incidents to the
Company and we will take the appropriate action, or you may
directly contact the [NLRB].” Id. In Tawas, the Board stated
that such statements by an employer violate the Act “‘because
they have the potential dual effect of encouraging employees to
identify union supporters based on the employees’ subjective
view of harassment and discouraging employees from engaging
in protected activities.’” 336 NLRB at 322 (quoting Hawkins-
Hawkins Co., 289 NLRB 1423 (1988)). The language em-
ployed by the Respondent here, which requested that employ-
ees report prounion threats, coercion, and harassment, has the
same “potential dual effect.” Winkle’s invitation is equivalent
in all material respects to that found to be unlawful in Tawas,
except that Winkle’s is somewhat more offensive because it
only asks employees to report prounion coercion, not, as in
Tawas, coercion for or against unionization. The language
Winkle used in the letter is also comparable to that held to be
unlawful in CMI-Dearborn, Inc., 327 NLRB 771 (1999). There
an employer was found to have violated Section 8(a)(1) by
stating: “[We] will protect you from any threats, coercion or
scare tactics used by union pushers to get you to join the union.
If anyone tries these tactics on you, we urge you to report it [to
management] immediately.” Id. at 775–776. Moreover, the
Board has commented specifically on an employer’s use of the
term “harassment” to describe the union activity employees are
being asked to report about. In Fixtures Mfg. Corp., the Board
explained that the problem with an employer using the term
“harassment” is that it is ambiguous and “employees might
reasonably think that they are being asked to report on such
protected activities as repeated efforts by the Union to persuade
them to sign cards.” 332 NLRB 565 fn. 4 (2000); see also Lib-
erty House Nursing Homes, 245 NLRB1194, 1197 (1979)
(same). Similarly, in this case, Winkle’s reference to harass-
ment by union supporters could lead reasonable employees to
think that they were being asked to report on protected activity.
The Respondent, while arguing that Winkle’s letter was not so
vague as to invite employees to inform on fellow workers pro-
tected activities, does not cite a single case in which language
similar to that used by Winkle’s was held to be lawful.
For the reasons discussed above, I conclude that Winkle’s
November 2003 letter to employees asking them to report on
union activity was a violation of Section 8(a)(1) of the Act.
XI. ALLEGATION THAT THE RESPONDENT VIOLATED
SECTION 8(A)(1) BY THREATENING LOSS OF BENEFITS IN NOVEM-
BER OR DECEMBER 2003
The evidence showed that prior to November 2003, Winkle
had advanced funds to employees. In November or December,
Winkle approached Cohen, and told him that if employees se-
lected the Union as their representative “I’m not going to give
anymore advances on paychecks.” The General Counsel al-
leges that Winkle’s statement constituted a threat of loss of
benefits in violation of Section 8(a)(1). I agree. Pursuant to the
Supreme Court’s decision in NLRB v. Gissel Packing Co., su-
pra, the question is whether Winkle was making a lawful, fact-
based, prediction of economic consequences beyond the em-
ployer’s control, or was simply threatening to retaliate in re-
sponse to protected activity. 395 U.S. at 617–619; see also
Tawas Industries, Inc., 336 NLRB at 321. In this case, Winkle
failed to present any objective, legitimate facts showing that the
discontinuation of cash advances would result from factors
beyond the employer’s control. Instead the evidence indicates
that Winkle was simply threatening to retaliate for a prounion
vote by discontinuing an informal practice that was within her
control and had been enjoyed by employees. Such a threat
would reasonably tend to coerce employees in the exercise of
their Section 7 rights.
I conclude that Respondent violated Section 8(a)(1) in No-
vember or December 2003 by threatening to discontinue giving
cash advances to employees if the Union was selected by em-
ployees as their representative.
XII. ALLEGATION THAT THE RESPONDENT VIOLATED SECTION
8(A)(1) BY THREATENING COHEN WITH STRICTER DISCIPLINE AND
INCREASED PENALTIES
In November or December 2003, Cohen made a mistake by
backing up his bus without sounding the bus’ horn. Winkle
observed the error and told Cohen: “I’m going to start writing
this down. If you have two write-ups, it’ll be a day’s suspen-
sion without pay. And if the Union comes in, I’m going to
negotiate that into the contract.” In the past, Winkle had talked
to employees when they made such mistakes, but had not made
a written record. An employer violates Section 8(a)(1) of the
Act by threatening that it will more strictly enforce rules or
policy because of employees’ protected activity. Miller Indus-
tries Towing Equipment, Inc., 342 NLRB 1074 (2004); Mid-
Mountain Foods, Inc., 332 NLRB 229, 237–238 (2000), enfd.
269 F.3d 1075 (D.C. Cir. 2001). Bryant & Stratton Business
Institute, 321 NLRB 1007, 1030 (1996), citing Long-Airdox
Co., 277 NLRB 1157 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1222
I conclude that Winkle coerced and restrained employees in
the exercise of their Section 7 rights, and thereby violated Sec-
tion 8(a)(1), when she threatened to begin giving employees
some type of written discipline for conduct that had previously
resulted only in verbal counseling. Winkle made this threat
during the union campaign and explicitly linked the increase in
severity to the possibility of employees choosing union repre-
sentation. Moreover, she made the threat to Cohen, an em-
ployee who, in October, she had unlawfully interrogated and
discovered to be prounion. The Respondent does not argue that
the statements that Cohen attributed to Winkle are lawful, but
rather argues that I should credit Winkle’s denials that she
made the statements. For the reasons discussed above, I found
Cohen a more credible witness than Winkle.
I find that the Respondent violated Section 8(a)(1) in No-
vember or December 2003 by threatening stricter discipline and
increased penalties because of employees’ protected activity.
XIII. ALLEGATION THAT THE RESPONDENT VIOLATED SECTION
8(A)(1) IN DECEMBER 2003 BY INFORMING EMPLOYEES THAT IT
WOULD BE FUTILE TO SELECT THE UNION
The General Counsel argues that Winkle violated Section
8(a)(1) by informing employees that it would be futile to select
the union as their collective-bargaining representative.
This allegation refers to the incident in December 2003 when
Cohen was reading a newspaper article that Winkle had posted
at the facility and Winkle approached Cohen and asked, “Do
you want to wait for years for a raise like those people?” The
newspaper article concerned employees who had recently voted
in favor of union representation and reported on allegations that
the employer was delaying negotiations for a contract, and had
unlawfully granted a wage increase without bargaining. In a
similar case, Federated Logistics & Operations, the Board
affirmed that an employer violated Section 8(a)(1) by commu-
nicating the “message . . . that the selection of the Union would
be a futile act as the employees would receive no wage in-
creases until the parties negotiated a contract which could take
a long time.” 340 NLRB 255, 266 (2003); see also Woodview
Rehabilitation Center, 265 NLRB 838, 841 (1982) (employer
statement that employees would not receive prompt pay raises
if they selected the union held to be an unlawful threat of futil-
ity). In reaching its decision in Federated Logistics, the Board
noted that the employer’s statements were made in the context
of numerous other unfair labor practices. 340 NLRB at 255–
256.
I have considered Winkle’s statement to Cohen in tandem
with the newspaper article that Cohen posted and referenced.
In essence, Winkle’s message to Cohen was that if, like the
employees in the article, the Respondent’s drivers selected the
union as their representative, then wage increases would have
to be bargained over and it would take “years” before they re-
ceived a pay raise. This is essentially the same message that
was found to be an unlawful threat of futility in Federated Lo-
gistics, supra, and, as in that case, I find that the message here
constituted an unlawful threat. Winkle did not blunt the threat
by telling Cohen that the Respondent could or would continue
to grant any increases that it had routinely given to drivers in
the past. Nor did Winkle state any objective, lawful, basis for
her prediction that it would take “years” to negotiate a wage
increase. It is also worth noting that, as in Federated Logistics,
Winkle’s threat was made in the context of the Respondent’s
numerous other unfair labor practices.16
I conclude that the Respondent violated Section 8(a)(1) in
December 2003 by threatening Cohen that it would futile for
employees to select the Union as their collective-bargaining
representative.
XIV. ALLEGATION THAT RESPONDENT VIOLATED SECTION 8(A)(1)
BY INTERROGATING PLONA ON DECEMBER 10, 2003
The General Counsel alleges that on December 10, 2003,
D’Angelo unlawfully interrogated Plona in violation of Section
8(a)(1). On that occasion, Plona decided to got to the Respon-
dent’s office to try to “break the ice.” Once Plona arrived in
the office, D’Angelo asked her, in the presence of Winkle,
whether the Union had paid Plona for her organizing activities.
Plona responded that she had not been paid.
As discussed above, the Board answers the question of
whether an interrogation is unlawfully coercive by considering
“the totality of the circumstances.” Matthews Readymix, Inc.,
supra; Emery Worldwide, supra; Liquitane Corp., supra. In this
case some of those circumstances favor the view that the ques-
tioning was coercive. In particular, I note that the questioning
took place in the Respondent’s office out of the presence of
other bus drivers and against the backdrop of the Respondent’s
multiple unfair labor practices. However, I conclude that those
circumstances are outweighed in this instance by other factors.
Perhaps most important, I note that it was Plona herself who
initiated the meeting and chose when, where, and with whom it
took place. The record indicates that Plona sought out Winkle
and D’Angelo in the office completely of her own accord as
part of what she described as an effort to “break the ice” with
the Respondent. By the time of the exchange, Plona had not
only publicly espoused support for the union for over a month,
but had engaged in organizing activity under Winkle’s nose
and, in at least one instance, in defiance of Winkle’s demand
that she stop. I believe that by approaching Winkle and
D’Angelo in the office to “break the ice,” Plona was, in effect,
raising the issue of their disagreements over the union cam-
paign. The evidence showed that once Plona got there
D’Angelo asked a single question—whether Plona was being
paid by the Union. The General Counsel does not claim, and
the evidence does not show, that any other questions were
posed or that D’Angelo’s question was accompanied by any
type of threatening behavior or comment. Under those circum-
stances, I conclude that D’Angelo’s question was more in the
nature of verbal jousting than of an attempt to coerce Plona in
the exercise of her Section 7 rights. This type of question about
an employees’ openly declared union sympathy does not rise to
the level of a violation given the facts present here. See Key-
stone Lamp Mfg. Corp., 284 NLRB 626, 635–636 (1987), enfd.

16 The Respondent argues that I should not credit Cohen’s account,
but provides no argument for finding Winkle’s actions lawful in the
event that Cohen is believed. For the reasons discussed earlier, I have
credited Cohen’s testimony over Winkle’s denials.
WINKLE BUS CO. 1223
mem. 849 F.2d 601 (3d 1988), cert. denied 486 U.S. 1041
(1989); see also Miller Electric Pump & Plumbing, 334 NLRB
824 (2001) (“Although an employer does not necessarily vio-
late the Act when it questions open and active union adherents
about their union sentiments, a violation does occur if the em-
ployer statements contain express or implied threats or prom-
ises.”)
For the reasons discussed above, I conclude that the allega-
tion that the Respondent violated Section 8(a)(2) by coercively
interrogating Plona on December 10, 2003, should be dis-
missed.17
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent interfered with employees’ exercise of
Section 7 rights in violation of Section 8(a)(1) of the Act: since
July 11, 2003, by maintaining and distributing an overly broad
no-solicitation policy; on October 15, 2003, by threatening
union representatives who were engaged in protected activity in
the vicinity of the Milford facility with arrest; on October 15,
2003, by engaging in intrusive surveillance of employees’ un-
ion activities; on October 19, 2003, by threatening to call the
police in response to Plona’s lawful union activities; on Octo-
ber 20, 2003, by coercively interrogating Cohen about his union
sympathies; in October or November 2003 by coercively inter-
rogating Zabala about his union sympathies; in November 2003
by distributing a letter to employees that asked them to report
on the union activity of other employees at the Milford facility;
in November or December 2003, by threatening that if employ-
ees selected the Union as their representative the Respondent
would discontinue its practice of giving cash advances to em-
ployees; in November or December 2003, by threatening Cohen
with stricter discipline and increased penalties because of em-
ployees’ protected union activities; and in December 2003, by
threatening that it would be futile for employees to select the
Union as their representative.
4. The Respondent was not shown to have committed the
other unfair labor practices alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In addition, I shall recommend that
the Respondent be ordered to rescind the rule entitled “Solicita-
tion on Company Property/Time,” remove the rule from its
employee handbook, and distribute new copies of the handbook
that do not contain the unlawful rule, to all employees at the
Milford facility. I shall also recommend that that the Respon-
dent be ordered to distribute to all employees at the Milford

17 Because I conclude that D’Angelo’s did not coercively interrogate
Plona, I need not reach the Respondent’s contention that D’Angelo was
not a supervisor or agent of the Company.
facility a notice explicitly advising that they are permitted to
engage in solicitation in nonwork areas of the Milford facility,
and during nonwork times such as breaks, lunch, waiting time,
and before and after work. See West Pac Electric, 321 NLRB
1322 (1966) (“[i]t is well established that the Board has broad
discretion in determining the appropriate remedies to dissipate
the effects of unlawful conduct); see also Maramont Corp., 317
NLRB 1035, 1037 (1995) (the Board has broad discretion to
fashion a “just remedy”).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 18
ORDER
The Respondent, Winkle Bus Company, Inc., Milford, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or distributing a policy that prohibits so-
licitation for purposes protected by Section 7 of the Act during
nonworking time and in nonworking areas of the Milford facil-
ity.
(b) Threatening union representatives who engage in pro-
tected union activity in the vicinity of the Milford facility with
arrest.
(c) Engaging in surveillance of employees’ union activities.
(d) Threatening to call the police in response to any em-
ployee’s protected union activity.
(e) Coercively interrogating any employee about union sup-
port or union activities.
(f) Requesting that employees report to the Respondent
about the protected union activities of other employees.
(g) Threatening to discontinue the practice of giving em-
ployees cash advances if the employees select a union as their
representative.
(h) Threatening any employee with stricter discipline or in-
creased penalties because employees engage in protected union
activities.
(i) Threatening any employee that it would be futile to select
a union as their representative.
(j) 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) Rescind the rule entitled “Solicitation on Company Prop-
erty/Time” and remove that rule from the Respondent’s em-
ployee handbook.
(b) Distribute new copies of the employee handbook, with
the unlawful solicitation rule removed, to all employees at the
Milford facility.
(c) Distribute to all employees at the Milford facility a writ-
ten notice explicitly advising them that employees are permit-

18 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1224
ted to engage in solicitation in nonwork areas of the facility,
and during nonwork times such as breaks, lunch, waiting time,
and before and after work.
(d) Within 14 days after service by the Region, post at its fa-
cility in Milford, Connecticut, copies of the attached notice
marked“Appendix.”19 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for

19 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.”
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since July 11, 2003.
(e) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.