Snap-On Tools, Inc

National Labor Relations Board - Board Decisions

Jun 16, 2004

342 N.L.R.B. 5 (N.L.R.B. 2004)

SNAP-ON TOOLS, INC.
342 NLRB No. 2
5
Snap-On Tools, Inc. and International Union, United
Automobile, Aerospace & Agricultural Imple-
ment Workers of America, UAW. Cases 10–
CA–33020, 10–CA–33096, and 10–RC–15186
June 16, 2004
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On April 22, 2002, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Charging
Party and the General Counsel filed cross-exceptions and
supporting briefs, and the Respondent filed answering
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified below.3
This combined representation and unfair labor practice
case arises in the context of an organizational campaign
conducted in a bargaining unit of production and mainte-
nance employees at the Elizabethton, Tennessee manu-

1 No exceptions were filed to the judge’s dismissals of (1) allega-
tions that the Respondent granted a benefit by sending letters to non-
network physicians assuring them of payment, processing claims for
employees whose physicians refused to do so, and reimbursing $15 for
ophthalmologist examinations; (2) the aspect of Objection 1 concern-
ing the assignment of David Shouse to duties other than his normal
duties; (3) Objection 2 alleging that Shouse engaged in electioneering
when he entered into the voting area with a disabled employee; (4)
Objection 5 alleging the publication of threats of violence directed at
supervisors by nonemployee union members; (5) the aspect of Objec-
tion 7 concerning the Respondent’s payment of benefits pursuant to its
prepetition announcement; and (6) Objection 9 alleging the singling out
of employee Warren Taylor by posting a message on an electronic
bulletin board concerning the return of union cards.
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 As the Union has excepted to the judge’s failure to order that the
notice of the new election include, pursuant to Lufkin Rule Co., 147
NLRB 341 (1964), a statement of the reason for the election being set
aside, we order that such language be included in the notice of the new
election. Fieldcrest Cannon, Inc., 327 NLRB 109, 110 fn. 3 (1998); see
NLRB Casehandling Manual (Part Two), Representation Proceedings,
Sec. 11452.3.
The Union has also excepted to the judge’s failure to include special
notice and access remedies and to award the Union its organizing ex-
penses. We find that these remedies are not warranted in this case.
facturing facility of Snap-On Tools, Inc. (the Respon-
dent). The International Union, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, AFL–CIO (the Union) lost the election. The judge
found that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by videotaping
employees’ handbilling at the plant gate, and by granting
benefits and announcing a contemplated change in retiree
benefits. The judge further found that the Respondent
violated Section 8(a)(3) and (1) of the Act by issuing a
final warning to employee David Markland. The judge
dismissed complaint allegations that the Respondent vio-
lated Section 8(a)(1) by directing employees Markland
and Herb Smith not to discuss Markland’s altercation
with employee Wanda Burrow and by creating the im-
pression that union activities would inevitably lead to
strike violence. The judge also found that the Respondent
engaged in objectionable conduct affecting the election.4
Accordingly, he recommended that the election be set
aside and that a new election be held.
As set forth below, we reverse the judge and find that
(1) the Respondent violated Section 8(a)(1) by creating
the impression that union activities would inevitably lead
to strike violence, (2) the Respondent did not engage in
objectionable conduct through employee Shouse’s al-
leged list keeping, and (3) the Respondent did not violate
Section 8(a)(3) and (1) by issuing a final warning to em-
ployee Markland. We adopt the judge’s decision in all
other material respects.5

4 The judge sustained election objections that were coextensive with
the unfair labor practices he found: announcement of retiree benefits
(Objection 7 and/or Objection 13) and surveillance (Objection 11). He
also found that the Respondent interfered with the election by falsely
attributing potential violence to a statement made by employee Harold
Sheppard (Objection 4), by predicting a 1-week strike if employees
selected the Union (Objection 4), and by engaging in list keeping (Ob-
jection 1). As stated below, we adopt these findings, except for the
finding that the Respondent engaged in list keeping.
5 In so doing, however, we find it unnecessary to pass on the election
objections that the judge recommended be dismissed (Objections 3, 8,
10, 12, and part of Objection 7).
Further, we agree with the judge’s finding that the Respondent vio-
lated Sec. 8(a)(1) by changing its normal practice of panning the park-
ing lot with a surveillance camera to pointing the camera at the plant
gate where employees were handbilling. Security guard Polly Grind-
staff, an admitted agent of the Respondent, testified that before hand-
billing began, the surveillance camera normally panned back and forth
during shift changes. She said she normally switched the camera into
panning mode “about a half hour before shift change.” However, the
record establishes that once handbilling began, the camera remained
fixed on the handbillers. Ron Hendrix, an international union represen-
tative, testified that when employees were present handbilling, “90
percent of the time” the camera would be pointed at the gate where they
were handbilling. Employee John Large testified that before the hand-
billing, “the camera did a sweeping motion from one side of the park-
ing lot to the other side, and then back,” but that “the camera stayed on
us when we were handbilling.” “The well-established rule is that absent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

6
1. The General Counsel has excepted to the judge’s
dismissal of the complaint allegation that the Respondent
created the impression that employee union activities
would inevitably lead to strike violence. We find merit in
this exception.
The General Counsel’s evidence concerning this alle-
gation was contained in a booklet entitled, “It’s Time to
Vote No,” which the Respondent distributed within the
week before the election. The booklet stated in part:

Some employees have said that if there is a strike at
Snap-On, they would cross the picket line and come to
work. But don’t be too quick to ignore the reality of
how difficult crossing the picket line might be. After
all, a Union strike is not successful if people “break
rank” and fail to honor a picket line. Indeed, one Union

proper justification, photographing or videotaping employees as they
engage in protected concerted activity violates Section 8(a)(1) of the
Act.” Robert Orr-Sysco Food Services, 334 NLRB 977 (2001). The
Respondent contends that the change in the videotaping was in re-
sponse to and was justified by legitimate safety concerns. The record
fails to support this claim. Grindstaff—who was responsible for chang-
ing the operation of the camera—testified that no one in Snap-On man-
agement ever requested that she utilize the security camera in any par-
ticular manner and that she had discretion in utilizing the camera. She
also testified that no handbillers or other union supporters had told her
that people were driving unsafely when coming through the gate. Ac-
cordingly, safety concerns could not have been the true reason Grind-
staff changed the operation of the camera. Under these circumstances,
we agree with the judge that the Respondent engaged in unlawful sur-
veillance when it altered its normal practice and pointed its camera at
the gate where its employees were engaged in protected activity.
We also agree with the judge’s finding that the Respondent engaged
in objectionable conduct when, 8 days before the election, it posted a
memo entitled, “Employee Strike Costs.” This memo listed strikes at
the Respondent’s other facilities, the duration of the strike, and the cost
to employees. The last item was the following:
2001 Elizabethton 1 week $936.00
The memo was posted throughout the plant. Several hours later, it was
taken down. When it was reposted, it omitted the duration of any poten-
tial strike at Elizabethton, and the cost was revised to $842.00. The
judge found that the Respondent’s memo was objectionable because it
predicted, without qualification and without factual basis, that there
would be a 1-week strike if the employees selected the Union. The
judge further found that the reposted document did not repudiate the
objectionable language. We agree with the judge that the Respondent
engaged in objectionable conduct in this regard.
Member Schaumber would not find that the Respondent predicted a
1-week strike if the employees selected the Union, thereby interfering
with employee free choice. Eight days before the election, the Respon-
dent posted a memo entitled, “Employee Strike Costs” that listed the
facilities at which strikes had occurred. The list included the Respon-
dent’s Elizabethton facility with notations of “2001,” “1 week,” and
“$936.00.” Member Schaumber does not find this entry constitutes a
prediction of a 1-week strike if employees selected the Union. Rather,
in his view, the entry was merely an estimate of how much a strike at
Elizabethton was likely to cost if one occurred. Therefore, contrary to
his colleagues, Member Schaumber would not adopt the judge’s finding
that the Respondent’s posting of the list constituted objectionable con-
duct.
supporter at Snap-on who claims to have been a UAW
member for 17 years in Detroit recently spoke of using
a high-powered rifle to shoot anyone who crossed the
picket line as well as a Judge! [Emphasis in original.]

This example resulted from an alleged conversation be-
tween security guard Grindstaff and employee Sheppard.
Grindstaff stated that she told Sheppard that if there was a
strike, 1500 people would be lining up for jobs, and that he
replied, “Not if somebody was over there in that field with a
high-powered rifle and shot the first son of a bitch that
crossed the line, and then went down there and shot the
Judge that issued the order.” Grindstaff furnished the Re-
spondent a written statement in which she stated that
Sheppard said, “Someone should be over in the field with a
high-powered rifle & shoot everyone who comes through
the gate, starting with the judge who wouldn’t let them stop
people from crossing a picket line.”
Sheppard denied having this conversation with Grind-
staff, but acknowledged that in conversation with other
employees, he had spoken of an incident involving a
United Mine Workers strike in which people got shot and
a judge was injured.6 Sheppard explained that the Re-
spondent’s statement referred to him because he was “the
only one who had worked at Chrysler.” Although
Sheppard asked the Respondent to retract the statement,
the Respondent refused to do so on the ground that “there
were no names mentioned.”
The Board has held that an employer violated Section
8(a)(1) of the Act by stating that bomb threats and van-
dalism occur when “outsiders” get involved, where there
was a complete lack of evidence as to who was responsi-
ble for the bomb threats and vandalism. The Board held
that the employer blamed the union and was in effect
“telling the employees if you don’t want vandalism and
bomb threats (and who would) then get rid of the Un-
ion.” CDR Mfg., 324 NLRB 786, 790 (1997). See also
Kawasaki Motors Corp., U.S.A., 257 NLRB 502, 510–
511 (1981), enfd. mem. 691 F.2d 507 (9th Cir. 1982),
cert. denied 459 U.S. 1202 (1983) (employer that “rea-
sonably conveyed the thought that the Union was respon-
sible for making bomb threats” violated Section 8(a)(1)
of the Act because “no evidence of linkage between
such threats and the Union” was ever advanced).
The Respondent’s statements are similar to those
found unlawful in CDR Manufacturing and Kawasaki,
and likewise lack evidentiary support. Here, there was no
evidence that the Union made the threat of strike vio-
lence. Most significantly, the only report the Respondent
had regarding Sheppard’s purported remark referred to

6 The judge did not decide whether there was, in fact, a conversation
between Grindstaff and Sheppard.
SNAP-ON TOOLS, INC.

7
“someone” being in a field with a rifle. As Grindstaff
admitted, Sheppard never made any statement even re-
motely suggesting that he would shoot anyone. Further,
the Respondent refused Sheppard’s request that it retract
the statement. When the Respondent, in the absence of
any reasonable basis, stated that a current employee (re-
ferring unmistakably to Sheppard) had spoken of using a
high-powered rifle to shoot anyone who crossed the
picket line, the Respondent, as did the employers in CDR
Manufacturing and Kawasaki, created fear among its
employees that would reasonably tend to discourage
them from engaging in union activities. Accordingly, we
find that the Respondent violated Section 8(a)(1) in this
regard.7
2. The Respondent excepts to the judge’s findings that
employee Shouse was an agent of the Respondent and
that he engaged in objectionable list keeping. We find
merit in these exceptions.
During the morning voting session, Shouse was in a
position from which he could observe employees as they
returned to work after voting. Shouse was standing next
to the Respondent’s attorney. Several employees testified
that it looked like Shouse was watching employees as
they left the voting area and that it looked like Shouse
was writing something down.
The Board applies common law principles when exam-
ining whether an employee is an apparent agent of an
employer. The test is whether, “under all the circum-
stances, ‘the employees would reasonably believe that
the employee in question was reflecting company policy
and speaking and acting for management.’” Waterbed

7 In recommending that this allegation be dismissed, the judge relied
on Hampton Inn, 309 NLRB 942, 943 (1992). That case is distinguish-
able. In Hampton Inn, the employer posted a notice entitled, “WHAT
CAN THE UFCW GIVE YOU?” The notice included the following
statements: “[t]he right to throw brickbats at cars of nonstrikers—even
if they are your friends,” and “[t]he right to fear for your safety and the
safety of your loved ones if you oppose United Food and Commercial
Workers Union strikes.” (Emphasis in original.) These statements were
general references to possible strike violence, which were not attributed
to any individual. The Board found that the statements were not threats
of strike violence and were, instead, expressions of “opinion as to one
possibility of what might happen should the Union win.” Id. at 943. In
contrast, the threat here was specific—shooting those who crossed a
picket line—and was attributed to a Snap-On employee. Further, the
Respondent had no reasonable basis for believing that a Snap-On em-
ployee would take the action threatened.
Chairman Battista concurs in the result. However, in doing so, he
notes that, unlike CDR Manufacturing and Kawasaki, the Respondent
here did not say that the Union would cause violence. In the instant
case, the Respondent predicted that a union member would resort to
violence. However, even the more limited prediction was not based on
fact. It was based on a union member’s statement that “somebody”
could resort to violence. Thus, the Respondent’s prediction was with-
out factual basis. In these circumstances, Chairman Battista joins his
colleagues in finding a violation.
World, 286 NLRB 425, 426–427 (1987) (citations omit-
ted). “The burden of proving any type of agency rests
with the party asserting that relationship,” i.e., the Charg-
ing Party/Petitioner in the instant case. Millard Process-
ing Services, 304 NLRB 770, 771 (1991), enfd. 2 F.3d
258 (8th Cir. 1993), cert. denied 510 U.S. 1092 (1994).
In this case, the judge’s conclusion that Shouse was the
Respondent’s agent was based solely on the ground that
it was “undisputed that Shouse was present with the [Re-
spondent’s attorney] at various times.” The fact that
Shouse, an hourly employee who had been selected by
the Respondent to serve as a substitute observer, was
seen standing near the Respondent’s attorney, without
any other evidence of agency status, is insufficient to
satisfy the Charging Party/Petitioner’s burden. Accord-
ingly, we reverse the judge’s agency finding.
We also reverse the judge’s determination that Shouse
engaged in list keeping. As discussed above, the evi-
dence shows that Shouse could observe employees as
they returned to the plant after they voted, that Shouse
stated the names of several employees after they had
voted, and that he appeared to be writing something
down. From this, the judge inferred that Shouse was
keeping a list of persons who had voted. This inference is
not supported by the record as a whole. No one actually
testified to having seen a list of any kind. Employee
Timothy Timbs testified that it looked like Shouse was
writing something, but Timbs also stated that he “could
not see” what Shouse was actually doing. Employee Roy
Ward stated that he believed that Shouse spoke either
“yes” or “no” after he and another employee had voted
and that “it looked like . . . they were marking some-
thing.” Ward did not further describe the “something.”
The judge himself admitted that “no employee who ob-
served Shouse or heard his name being spoken saw a
list.” Considered as a whole, we find that this testimony
is insufficient to support the inference of list keeping
made by the judge. Accordingly, we reverse the judge
and overrule this objection.8
3. The Respondent excepts to the judge’s finding that
it violated Section 8(a)(3) of the Act by issuing a warn-
ing to employee Markland for “giving false replies or
testimony to the company.” The General Counsel and the
Union except to the judge’s dismissal of the allegation
that the Respondent violated Section 8(a)(1) of the Act

8 Member Walsh finds it unnecessary to pass on the judge’s findings
that Shouse was the Respondent’s agent and that he engaged in objec-
tionable list keeping. The Respondent’s critical-period surveillance,
announcement of benefits, and threats of strikes and violence interfered
with the employees’ free choice of representative and are sufficient
grounds upon which to order a new election. Accordingly, he finds no
need to pass on the list-keeping objection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

8
when it prohibited Markland and employee Smith from
discussing a workplace altercation that Markland had
with coworker Burrow. We find no merit to either alle-
gation.
The facts surrounding Markland’s altercation with
Burrow, the Respondent’s direction not to talk about it,
and the Respondent’s warning to Markland are set out in
detail in the judge’s decision. On May 16, 2001,9 Mark-
land, in the course of processing an order, realized that
there was no storage number on a routing slip that Bur-
row had given him. Markland went to the dispatch office,
which was a cubicle with a sliding glass window, and
slid the window open. When Burrow approached the
window, Markland held up the routing slip and said that
there was no storage number on it. Then, according to
Markland, Burrow reached through the window and
slapped him on his cheek. He stepped back and asked her
why she did that. He then walked away, and Burrow fol-
lowed, attempting to apologize.
According to Burrow, she reached through the window
and patted Markland’s face, telling him that she would find
the order. She said she attempted to touch him again, to
“take it back,” but he turned and left. She then apologized.
Markland reported the incident to supervisor Tony
Irick, Human Resources Manager Chamberlain, and
General Supervisor Larry Cooper. He said that Burrow’s
slap was an emotional shock and that he was too upset to
work. He requested and was granted a gate pass to go
home. Later that day, Markland swore out a warrant
against Burrow for assault, which he later withdrew on
advice of his counsel.
Chamberlain interviewed Burrow as well as employees
McFarland and Shouse, who Markland claimed were
present when Burrow allegedly slapped him. Burrow
admitted only to playfully tapping Markland on the
cheek. Neither McFarland nor Shouse reported any
physical contact with Markland. The following day,
Chamberlain and Cooper told Markland that they felt he
was “blowing things out of proportion,” that he had not
been slapped, that they had seen no signs of physical
contact, and that he was creating a hostile work environ-
ment for Burrow by talking about the incident on the
shop floor.
Later that day or the next, Plant Manager Gary Olden-
burg came to Markland’s workstation and told him that
he could not speak for Burrow but that, on behalf of the
Respondent, he was sorry the incident had happened.
According to Markland, Oldenburg additionally stated
that Burrow had a “reputation” and that he had seen her
“kind of slap around and hit on people as a gesture of

9 All dates hereafter are 2001.
expression.” Oldenburg demonstrated by patting Mark-
land’s shoulder.
Markland then returned to Chamberlain and Cooper
and told them that Oldenburg had said that he had seen
Burrow slap and hit people. Oldenburg, who was then
asked to join the impromptu meeting, claimed that Mark-
land misquoted him—that he merely had said that he had
seen Burrow “touch people.” Markland disputed Olden-
burg’s denial. Markland was again told that he was blow-
ing things out of proportion, to “drop it and let it go,” and
not to talk to anyone on the floor about the incident, as
he was creating a hostile environment on the floor.
Several days later, on May 22, Markland was called
into the office, and after requesting a witness, was joined
by employee Smith. Markland was presented with a final
written warning for the “major offense” of “giving false
replies or testimony.” The warning set forth a chronology
of events beginning with Markland’s altercation with
Burrow. It noted that, although Markland had reported
that Burrow had slapped him hard, neither Supervisor
Irick, to whom he had first reported the slap, nor Cham-
berlain or Cooper had seen a red mark or any other evi-
dence of a slap to Markland’s face, and that neither wit-
ness who Markland identified (apparently McFarland and
Shouse) had seen any physical contact or heard the sound
of a slap. The warning further recounted Markland’s
claim that Plant Manager Oldenburg had told him that
Oldenburg had seen Burrow hit people previously but
that Oldenburg had denied this statement and had said
that he had told Markland merely that he had seen Bur-
row pat someone as a friendly gesture. The warning then
noted that Markland had responded by asserting that
Oldenburg was not being truthful. The warning stated
that Markland “in effect . . . called the plant manager a
liar.” The warning further stated:

In summary our investigation shows that you have
written and verbalized false statements about your con-
versation with Plant Manager Gary Oldenburg and you
have directly accused him of lying. The unfounded al-
legations that you have made against Wanda Burrow
have created a great deal of stress for both her and her
husband, Eddie Burrow, and have also created a great
deal of unrest among the employee population.

The warning concluded by stating that it was a final written
warning and that further activities of this nature would result
in discipline up to and including termination. Markland and
Smith were both directed not to speak about the incident.
We find, contrary to the judge, that the Respondent’s
warning to Markland did not violate Section 8(a)(3). Un-
der the test set out in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
SNAP-ON TOOLS, INC.

9
455 U.S. 989 (1982), to establish the violation, the Gen-
eral Counsel must show by a preponderance of the evi-
dence that Markland’s protected activity was a motivat-
ing factor in the Respondent’s decision to issue the warn-
ing. Thus, the General Counsel must show that Markland
engaged in union activity, that the Respondent had
knowledge of that activity, and that the Respondent
demonstrated antiunion animus. Once the General Coun-
sel has made the required showing, the burden shifts to
the Respondent to demonstrate that it would have taken
the same action even in the absence of the protected un-
ion activity.
The judge found that Markland was a known union
supporter. During the campaign leading up to the March
21 election, Markland wore a union shirt for a short pe-
riod of time and then began wearing union buttons. Thus,
it is undisputed that the Respondent was aware of Mark-
land’s support for the Union.
We find, however, that the General Counsel failed to
show that antiunion animus was a motivating factor in
the Respondent’s issuance of the warning to Markland.
While Markland engaged in union activity during the
campaign leading up to the March 21 election, the warn-
ing was not issued to Markland until May 22, 2 full
months after the election was held. Thus, the warning
was remote in time from Markland’s union activity and
proximate to the events for which Markland was purport-
edly disciplined. Thus, the Respondent warned Mark-
land shortly after: Markland’s claim—which the Re-
spondent’s investigation found unsupported—that Bur-
row had slapped him; Markland’s persistent protestations
concerning this event; the disruption that this issue
caused among employees; and Markland’s further state-
ment, which the Respondent found to be false, that Plant
Manager Oldenburg had told Markland that he had seen
Burrow hit other people.
Nor do we find that the 8(a)(1) conduct that the Re-
spondent engaged in prior to the election warrants a con-
trary result. Those violations were not directed at Mark-
land, involved wholly unrelated conduct, were remote in
time from Markland’s discipline, and the warning was
directed solely at Markland’s subsequent behavior,
which was wholly unrelated to union activity.
Moreover, contrary to our dissenting colleague, we
do not find that the Respondent treated Markland in a
disparate manner. The Respondent did not discipline
either Markland or Burrow for their altercation. Rather,
the Respondent disciplined Markland for his subsequent
conduct of making unfounded allegations against Burrow
and making false statements about his conversation with
Oldenburg. Therefore, contrary to our dissenting col-
league, the fact that the Respondent did not also disci-
pline Burrow does not show that the Respondent’s disci-
pline of Markland constituted disparate treatment. Fur-
ther, while, as our colleague notes, there is no indication
in the record that the Respondent had disciplined any
employee other than Markland for disputing what a supe-
rior had said, the crux of the conduct for which the Re-
spondent disciplined Markland was his making un-
founded or false statements. While it may be that no em-
ployee had previously engaged in precisely the same type
of misconduct as Markland did, the Respondent was not
thereby precluded from validly disciplining Markland for
such misconduct.
Our colleague also suggests that the Respondent was
concerned about getting Markland to drop his complaints
about Burrow so as not to create a hostile work environ-
ment for Burrow (who had expressed her opposition to
the Union), and the Respondent was not similarly con-
cerned about creating a hostile work environment for
Markland (a union supporter). Our colleague’s sugges-
tion has no merit. The Respondent was concerned about
a hostile work environment for Burrow because she was
the one accused of slapping people. The reason why
there was no similar concern about Markland was that he
was the accuser, not the accused. The fact that Burrow
was against the Union, and Markland was for the Union,
was irrelevant.
In these circumstances, we find that the General Coun-
sel has failed to show that the warning was motivated by
antiunion animus. Accordingly, we dismiss the complaint
allegation that the Respondent’s issuance of the warning
violated Section 8(a)(3). Even if we were to find, which
we do not, that the General Counsel established his re-
quired initial showing under Wright Line, we would find
that the Respondent has succeeded in demonstrating that
it would have taken the same action against Markland
even in the absence of his protected union activity.10

10 Member Walsh agrees with the judge, for the reasons stated by
him, that the General Counsel established that Markland’s union activ-
ity was a motivating factor in the Respondent’s decision to issue the
final warning to Markland. The warning was not, as his colleagues
maintain, “remote in time” from Markland’s support for the Union in
the election, particularly in light of the fact that the representation mat-
ter was still pending at the time the warning was issued. Further, the
Respondent displayed its unlawful motivation, not only by its 8(a)(1)
conduct around the time of the election, but also by treating Markland
in a disparate manner. Thus, the Respondent was concerned only with
getting Markland to drop his complaints about Burrow so as not to
create a hostile work environment for Burrow, who had expressed her
opposition to the Union. There is no indication in the record that Bur-
row—who admittedly touched Markland without his consent—was
warned about creating a hostile work environment for Markland, who
was concededly known to be a union supporter. There is also no indica-
tion in the record that any other employee had ever been disciplined for
disputing what a superior had said. In these circumstances, the judge
properly found that the General Counsel met his initial burden under
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

10
We agree with the judge that the Respondent’s direc-
tion to Markland and Smith not to discuss the altercation
did not violate Section 8(a)(1). The incident between
Markland and Burrow was a private, one-on-one alterca-
tion, unrelated to any term or condition of employment.
Furthermore, as the judge pointed out, the prohibition
imposed by the Respondent was limited to the discussion
of the altercation between Markland and Burrow. By its
own terms, the prohibition did not apply to the discipline
imposed on Markland or any other matter affecting terms
and conditions of employment. Finally, Markland’s own
testimony reveals that when he spoke of the incident to
coworkers, he “just told them that [he] got slapped and
that was it.” Thus, Markland’s conversations with other
employees were limited to the altercation, which, as
stated above, was unrelated to a term or condition of em-
ployment. Accordingly, inasmuch as the record fails to
show any nexus or link between the Respondent’s direc-
tive and activity protected by the Act, we affirm the
judge’s dismissal of this allegation.11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Snap-On
Tools, Inc., Elizabethton, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(c).
“(c) In the absence of any reasonable basis, creating
the impression that employee union activities will inevi-
tably lead to strike violence.”
2. Delete paragraph 2(a) and reletter the subsequent
paragraphs.
3. Substitute the attached notice for that of the admin-
istrative law judge.
[Direction of Second Election omitted from publica-
tion.]

Wright Line and that the Respondent failed to establish that it would
have taken the same action against Markland in the absence of his
union activity.
11 Member Walsh finds that the Respondent violated Sec. 8(a)(1)
when it instructed Markland and Smith not to discuss this altercation.
Even assuming that the altercation itself did not involve a term or con-
dition of employment, the restriction the Respondent placed on Mark-
land and Smith regarding the incident would reasonably be construed
by them as encompassing the Respondent’s actions taken as a result of
the altercation. These actions—discipline against Markland, but not
against Burrow—undoubtedly related to terms and conditions of em-
ployment. As such, the prohibition on discussing the altercation would
necessarily interfere with the employees’ right to act in concert regard-
ing terms and conditions of employment and is in violation of Sec.
8(a)(1) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT engage in surveillance of your activities
on behalf of the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, UAW, or any other labor union.
WE WILL NOT grant benefits or announce retiree bene-
fits to you in an effort to discourage you from supporting
the Union.
WE WILL NOT, in the absence of any reasonable basis,
create the impression that employee union activities will
inevitably lead to strike violence.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.

SNAP-ON TOOLS, INC.

Sally R. Cline, Esq., for the General Counsel.
Stephen M. Darden and Christopher D. Owens, Esqs., for the
Respondent.
Lesley A. Troope, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Elizabethton, Tennessee, on February 11 through
14, 2002,1 pursuant to a consolidated complaint that issued on
September 28.2 The complaint, as amended, alleges various
violations of Section 8(a)(1) of the Act and the discriminatory
warning of employee David Markland in violation of Section
8(a)(1) and (3) of the Act.3 In the same document, the Regional

1 All dates are in 2001 unless otherwise indicated.
2 The charge in Case 10–CA–33020 was filed on April 19 and the
charge in Case 10–CA–33096 was filed on June 4.
3 The misspelling of Markland as “Mackland” in portions of the
transcript is corrected.
SNAP-ON TOOLS, INC.

11
Director, having issued an Order Directing Hearing on Chal-
lenged Ballots and Objections in Case 10–RC–15186, consoli-
dated that case for hearing with the unfair labor practice cases.
The Respondent’s answer denies all violations of the Act. I
find, with certain exceptions, that the Respondent did violate
the Act as alleged 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 General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Snap-On Tools, Inc. (the Company), is a
Wisconsin corporation engaged in the business of manufactur-
ing hand tools at various locations including its plant at Eliza-
bethton, Tennessee, from which it annually sells and ships
products valued in excess of $50,000 directly to customers
located outside the State of Tennessee. The Respondent admits,
and I find and conclude, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits, and I find and conclude, that Inter-
national Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW, the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Elizabethton Snap-On plant operates three shifts and em-
ploys over 200 employees. The Plant Manager is Gary Olden-
berg. The Union began organizational activity in January 2001.
Plant Manager Oldenberg, in a letter to employees dated January
30, acknowledged that he was aware of the union activity.
The petition for an election in Case 10–RC–15186 was filed
on February 7. A Stipulated Election Agreement was approved
on February 21. The election was held on March 21. The tally
of ballots reflected that the Union received 100 votes whereas
107 employees voted for no representation. There were 10 chal-
lenged ballots. Following the opening of the hearing all parties,
without acknowledging the eligibility or ineligibility of any
challenged voter and without waiving their right to challenge
the same voters in any future election, agreed to waive all chal-
lenges and open the 10 challenged ballots. The revised tally
reveled that the Union received 107 votes and that 110 employ-
ees voted for no representation.
The complaint alleges that, prior to the election, the Com-
pany engaged in surveillance, granted benefits to employees
and announced benefits to retirees in order to discourage em-
ployees from supporting the Union, and created the impression
that union activities would invariably lead to strike violence.
Following the election, the complaint alleges that the Respon-
dent issued a discriminatory warning to employee David Mark-
land and directed employees not to speak to other employees
about an altercation on the plant floor in order to prevent em-
ployees from engaging in protected concerted activity.
The Union filed objections to the election, several of which
are coextensive with the preelection complaint allegations. This
decision shall first address the complaint allegations and then
the objections to the election that are not coextensive with any
complaint allegation.
B. The Complaint Allegations
1. Surveillance
The complaint alleges that the Respondent engaged in sur-
veillance by videotaping employees’ union handbilling at the
plant gate. The facts relating to this allegation are not in signifi-
cant dispute. The Company has, for a number of years, operated
surveillance cameras. One of these cameras observes the gate
that is the entrance to the employee parking lot. Polly Grind-
staff is an employee of a security agency named Guardsmark
who is assigned to, and is an admitted agent of, Snap-On.
Grindstaff acknowledged that, prior to the handbilling that be-
gan on January 29, it was normal for the surveillance camera to
pan back and forth during shift changes. Her normal procedure
was to switch the camera into panning mode “about a half hour
before shift change.” The camera would begin to videotape at
that time and throughout the panning process. In the course of
each pan, the camera would pick up the gate upon which it was
pointed at all times other than at shift change. Grindstaff ex-
plained that the camera would pan the parking lot during shift
changes to monitor employee conduct such as dropping bubble
gum on the hoods of cars in hot weather, recording accidents
for which there “might need [to be] a record,” or catching “em-
ployees coming in late or something like that.”
Ron Hendrix, an International Representative of the Union,
was in charge of the organizational campaign at Elizabethton.
He testified that, when employees were present handbilling,
“90 percent of the time” the camera would be pointed at the
gate where they were handbilling and that employees would
comment, “we’re on Candid Camera.” Hendrix observed that
some potential recipients of union handbills, “if they were right
there where the cameras would see them, they wouldn’t take
handbills.” He explained that, when the cars were lined up before
the gates opened, they were out of camera range and that “some of
those employees would take it [union literature] if they were lined
up in that line . . . [b]ut they wouldn’t if they . . . were pulling in.
They would just drive right by us.”
The Board, in Robert Orr-Sysco Food Systems, 334 NLRB
977 (2001), summarized precedent relating to interference with
organizational activity involving surveillance cameras.

The well-established rule is that absent proper justifica-
tion, photographing or videotaping employees as they en-
gage in protected concerted activity violates Section 8(a)(1)
of the Act. F. W. Woolworth Co., 310 NLRB 1197, 1197
(1993); Saia Motor Freight Line, Inc., 333 NLRB 784
(2001). It also constitutes objectionable conduct, Mercy
General Hospital, 334 NLRB 100, 104–105 (2001), and
warrants direction of a new election unless the impact on
election results is de minimis, [I]d. at 8. These rules apply
not only where a videotape is shot with a handheld camera,
but also where, as here, the videotape is created with a ro-
tatable security camera purposefully directed at protected
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

12
concerted activity. See, e.g., Mercy General Hospital, supra;
U.S. Ecology Corp., 331 NLRB 223, 235 (2000); Dyna-
tron/Bondo Corp., 323 NLRB 1263, 1269 (1997), enfd. in
relevant part 176 F.3d 1310 (11th Cir. 1999); Frontier Hotel
& Casino, 323 NLRB 815, 837 (1997), enfd. in relevant part
sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C.
Cir. 1997). At the same time, however, the Board “recog-
nize[s] that an employer has the right to maintain security
measures necessary to the furtherance of legitimate business
interests during the course of union activity.” National Steel
& Shipbuilding Co., 324 NLRB 499, 501 (1997), enfd. 156
F.3d 1268 (D.C. Cir. 1998). Thus, it is neither unlawful nor
objectionable when a rotatable security camera, operating in
its customary manner, happens to record protected con-
certed activity on videotape. Cf. Mercy General Hospital,
supra, slip op. at 6 (finding no justification for videotaping
where direction security camera was pointing “did not result
from the established way in which the camera was operat-
ing”); Frontier Hotel & Casino, supra at 837 (finding no
justification for videotaping where security camera focused
on union activity and did not rotate to scan parking lot “as
was customarily the case”). Id. at slip op. 1–2.

Grindstaff, who made known to employees her opposition to
the Union, admitted that when employees were handbilling she
“watched the gate to make sure no unauthorized people came
on the property” and utilized the camera for that “sometimes.”
She did not contradict the testimony of Hendrix that the camera
was pointed towards employees handbilling at the gate 90 per-
cent of the time. Grindstaff admitted that there were no inci-
dents of trespass or violence, nor did she receive any reports of
improper driving. Grindstaff's testimony that the normal proce-
dure was for the camera to pan back and forth during shift
change confirms that, when employees were handbilling, she,
an admitted agent of the Respondent, altered the normal proce-
dure regarding the surveillance camera. The Respondent’s ar-
gument regarding known union adherents publicly handbilling
being able to be observed is not the issue. The Board made
clear in Mercy General Hospital, supra at 105, the substantive
difference between being “merely observed” and being photo-
graphed. That the gate would have incidentally been videotaped
for a portion of every scan does not validate the Respondent’s
position. The continuous observation of handbilling prevented
employees who desired to receive union literature anonymously
from doing so. Consistent with Board precedent, I find that the
alteration of the Respondent's normal practice of panning the
parking lot with a surveillance camera that was taping during
shift change by pointing that camera at the gate where employ-
ees were engaged in protected Section 7 activity violated Sec-
tion 8(a)(1) of the Act.
2. Grant of benefits to employees
The Company is self-insured but contracts the administration
of its employee health insurance. On September 11, the Com-
pany advised all employees by letter that the Company was
changing the insurance company that administered its health
insurance program from a company identified as Harrington to
Aetna. Employees were also advised that their deductible was
being increased and that the weekly employee contribution for
medical benefits was being increased. These same changes
were confirmed to employees at a meeting held in September or
October. At that meeting, employee Franklin Coleman recalled
that Plant Manager Oldenberg stated that “he did not expect
anybody to like it, but neither he nor anyone else could do any-
thing about it.”
Following the Company’s announcement that it was changing
the administrator of its medical plan to Aetna, several employees
learned that their physicians were not in the Aetna network and
complained about this to Human Resources Manager Carletta
Chamberlain. Chamberlain communicated these concerns to
Company headquarters in Wisconsin. The Company took no
action to recruit physicians into the Aetna network. As early as
September 22, the Company advised employees that it was their
responsibility to recruit their physicians into the Aetna network.
By e-mail dated December 1, in a response to one of Chamber-
lain’s e-mails, Director of Corporate Benefits Paul Prickett reiter-
ated that “we encourage employees to ask their providers to join
whatever network we contract with.”
This issue exploded in January 2001 when employees who
had previously been unaware of the significance of the change
in administrators discovered that their physicians were not in
the Aetna network and that they would, therefore, be required
to make copayments of 30 percent to their non-Aetna physi-
cians. At Chamberlain's urging, Prickett came to the facility
and addressed the Elizabethton employees on January 24. The
meeting became heated. Employee Taylor testified that,
“[w]hen Prickett was there it was our problem.” Employee
Herb Smith recalled that Prickett stated that the employees
should contact their physicians and “appeal to their sense of
loyalty” in order to have them join the Aetna network. Em-
ployee Franklin Coleman recalled that Prickett was not helpful,
that he stated “we were just going to have to live with it.” Vice
President Bill Wythe was present at this meeting. Although
Chamberlain testified that Wythe “clearly saw a problem,” he
made no commitment to do anything, and he did not contradict
any statement made by Prickett.
The last response to employee concerns prior to January 30
is in e-mail correspondence from Prickett on January 26 at 3:12
p.m. In that document, Prickett informed Chamberlain that he
and Paula Swafford of his office “will be working together with
Aetna to pursue resolution of all the issues discussed during our
meetings. We have a conference call tentatively scheduled for
Monday to begin working through those issues.” The e-mail
requested that Chamberlain send her notes of the meeting, and
she did so at 4:34 p.m. Prickett’s message concludes with the
statement that he would “ask them [Aetna] to have their pro-
vider relations people get in contact with some of those [physi-
cians] who have dropped [out of the Aetna network].”
On January 30, in a memorandum to all employees, Plant
Manager Oldenberg informed the employees that “Carletta
[Chamberlain] and Sherry [Leonard] have placed some calls to
doctors . . . .,” and that he “personally spoke with the Chairman
of the State of Franklin Physician's Group.” The memorandum
concludes as follows:

As I mentioned to you in our meetings two weeks ago, I feel
we can work together to improve this situation.

SNAP-ON TOOLS, INC.

13
It is my understanding that some of you are seeking represen-
tation from a third party. Again, I ask that you give this seri-
ous thought and ask you to not sign authorization cards if
asked to.

On February 2, the Company distributed an undated memo-
randum from Oldenberg and Chamberlain that advised that the
Company “is committed to resolving the problems you are
experiencing with your health care coverage.” The memoran-
dum states that “we will be working . . . with your doctors to
resolve these problems.” The memorandum then sets out other
actions the Company would be taking while working with the
health providers, including processing claims if the employee's
physician refused to and making monetary payments to em-
ployees. The memorandum states a commitment by the Com-
pany, for the next 120 days, to “advance you funds and allow
you to repay us once you have been reimbursed by Aetna” if a
provider demanded up-front payment and a commitment to
“[p]rovide for 90% coverage for those providers out of network
under the Aetna plan parameters . . . .” These benefits were
reconfirmed to employees in a more detailed memorandum
distributed on February 6.
Michael Bryant, president of the UAW Local Union that
represents hourly employees at the Snap-On plant in Johnson
City, Tennessee, a city located 10 miles from Elizabethton,
testified that employees at that location were experiencing the
same problem regarding non-Aetna network health providers.
He met with Prickett and Wythe, apparently on January 24, and
asked that the Company take action to have physician groups
join the Aetna network. Bryant testified that two large physi-
cian groups, which also served Elizabethton employees, did,
thereafter, become network providers. Employees at Johnson
City were not offered or granted the 120 days of financial assis-
tance announced at Elizabethton on February 2.
Chamberlain testified that, after Prickett’s visit, there was
discussion regarding providing to employees “what we had
promised them.” She identified herself, Oldenberg, Prickett,
Vice President of Human Resources Sharon Brady, and Fred
Hay, whose position was not identified, as being involved in
development of the reimbursement plan. Of those five indi-
viduals, only Chamberlain and Oldenberg testified, and neither
of them addressed the substance of the discussion regarding
implementing a reimbursement plan. Although testifying that
this occurred after Prickett's visit, there are no notes or e-mails
establishing the dates of any such discussions, the substance of
those discussions, or the approval of the reimbursement plan.
The Respondent contends, in its brief, that it had a “remedial
program” in place before any union activity. Prickett’s com-
ments to employees on January 24, and his e-mail to Chamber-
lain on January 26, belie any such contention. Insofar as Cham-
berlain's testimony that discussion relating to reimbursement
began in January be construed as implying that it began before
January 30, I do not credit it. Prior to obtaining knowledge of
employee union activity, there is not one iota of evidence that
the Respondent had, or intended to implement, a “remedial
program” of any sort. The last document before January 30.
reflecting any intent to do anything is the e-mail of January 26,
from Prickett to Chamberlain in which he informed her that he
had a conference call tentatively set with Aetna for Monday,
which would have been January 29, in which he intended to ask
Aetna “to have their provider relations people get in contact”
with physicians who had dropped out of the Aetna network.
There is no mention of any intention by Snap-On to use its own
managers to recruit physicians. There is no mention of any
planned meeting regarding a reimbursement plan. Oldenberg’s
memo of January 30, distributed shortly after the Respondent
learned of organizational activity, refers only to action by local
management to recruit providers into the Aetna network. It
makes no mention of expending company funds to reimburse
employees adversely affected by the change to Aetna.
Although Chamberlain testified to wanting to provide “what
we had promised,” the employees were receiving exactly what
they had been promised, a $15 copayment to network providers
and 30 percent copayment to nonnetwork providers. On Janu-
ary 24, prior to the Respondent learning of their union activity,
the absence of providers in the network was the employees’
problem. Prickett told them that they “were just going to have
to live with it.”
The undated memorandum from Oldenberg and Chamber-
lain, that was distributed to employees on February 2, addresses
the employees’ financial concerns for the first time. It advises
that the Respondent would advance funds if the provider de-
manded payment up front, and would provide 90 percent, in-
stead of 70 percent, of the cost of non-Aetna network physi-
cians for 120 days. The details regarding the imple-mentation
of this hastily conceived benefit were not distributed until Feb-
ruary 6. There is no evidence of the discussions regarding
granting this benefit. Neither Brady nor Prickett, the corporate
officials that Chamberlain identified as being involved in the
development of this reimbursement plan, testified.
The Supreme Court has long recognized the inherent coer-
cion in “conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reasonably
calculated to have that effect.” NLRB v. Exchange Parts Co.,
375 U.S. 405, 409 (1964).
The record is devoid of any evidence regarding the substance
of discussions that led to the decision to assist employees fi-
nancially. This record compels the conclusion that the employ-
ees’ organizational activity was the basis for that decision. This
conclusion is confirmed by the absence of any commitment to
do anything but talk with Aetna as of January 26, the absence
of any mention of financial assistance when Oldenberg advised
employees that local management officials had begun contact-
ing health providers while contemporane-ously requesting em-
ployees not sign union authorization cards, and the failure of
Snap-On to provide the same financial relief to the employees
of its Johnson City facility where employees were already rep-
resented by the UAW.
I find, as alleged in the complaint, that the Respondent granted
benefits, specifically the solicitation by management officials to
have physicians join the Aetna network, advancement of funds if
a physician demanded up-front payment, and reimbursement at
90 percent of the cost of nonnetwork physicians, in an effort to
discourage its employees from supporting the Union in violation
of Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

14
The complaint alleges three other actions listed in the Re-
spondent’s February 2 memorandum as constituting a grant of
benefits: sending letters to nonnetwork providers assuring them
of payment, processing claims for employees whose physicians
refused to do so, and reimbursement of $15 for ophthalmologist
examinations. The memorandum refers to the $15 contribution
as having been announced previously and, although there is no
evidence regarding when it was announced, there is no evi-
dence that it had not been announced prior to the employees'
organizational activity. There is no evidence that the assurance
of payment and commitment to process claims either were mat-
ters of concern to employees or were not purely ministerial
actions. The General Counsel’s brief does not address any of
these three actions. In the absence of evidence that these three
actions constituted the granting of a benefit after the Respon-
dent learned of the employees’ union activity, I shall recom-
mend that the complaint be dismissed in that regard.
3. Announcement of benefits for retirees
On January 31, employee Warren Taylor and several other
employees advised Human Resources Manager Chamberlain
that employees were organizing on behalf of the Union. They
identified several of their concerns, including unjust writeups,
retiree benefits, and health insurance. Early in the organiza-
tional campaign the Union distributed a leaflet regarding retiree
benefits, quoting from two retirees, one who received a
monthly benefit of $316 from Snap-On but who had to pay
Snap-On $319 for his medical insurance.
One week before the election, in response to an employee
question regarding retiree benefits, Oldenberg stated that he
“shouldn’t say anything about it now, but . . . we’re looking at
a program now that would offer lower premiums.” Employee
Herb Smith recalled Oldenberg stating that there was “[g]ood
news that he would probably be giving us real soon coming
from corporate pertaining to the retiree health care.” I do not
credit Oldenberg’s testimony that he said nothing and that
Chamberlain read to employees an internal memorandum dated
March 19. Chamberlain did not testify to any such reading and
was not called as a rebuttal witness.
The record contains two memoranda that are virtually identi-
cal. One of the memoranda is dated March 19, 2 days before
the election, and identifies the author, Sharon Brady, as “Cor-
porate Vice President Human Resources.” The other is dated
April 2 and does not state Brady's position. Both are directed to
“Facility Management” and state that, beginning in 2002, the
Company will offer an opportunity to elect an alternative plan
providing for lower medical premium contributions but higher
out of pocket costs. The text of both memoranda is identical,
including the final sentence that states, “Feel free to share this
with your employees.”
Notwithstanding this sentence, Chamberlain initially testified
that, after receipt of the March 19 memorandum, she spoke
with Brady who informed her that she “preferred that we wait
until she had further information” before sharing the content of
the letter. In later testimony, Chamberlain changed her testi-
mony, testifying Brady gave approval for Oldenberg to share
the contents of the memorandum with employees, but “asked
that it not be posted until the letter that would actually go to
retirees was actually prepared and sent out to them.” Thereafter,
according to Chamberlain, Brady sent the April 2 memorandum
“for posting.” No rationale for not simply giving permission to
post the March 19 memorandum was stated.
Although Corporate Director of Human Resources Tony
Patanella credibly testified that retiree benefits had been under
discussion for several months, whatever changes were contem-
plated regarding retiree benefits were not anticipated to occur
until 2002. The Union had raised this issue at the beginning of
its campaign. The Respondent’s argument that retiree benefits
are not a mandatory subject of bargaining ignores the fact that
they can be a permissive subject of bargaining and that they
were a campaign issue. See Gordonsville Industries, 252 NLRB
563, 577 (1980).
The complaint alleges that the Respondent's announcement
of this benefit violated Section 8(a)(1) of the Act. In Arrow
Elastic Corp., 230 NLRB 110 (1977), the administrative law
judge reasoned that, when evaluating the propriety of an an-
nouncement of benefits, that the burden should be upon the
Employer “to show that its announcement was reasonably
timed as a sequential step in, and a byproduct of, a chronology
of conception, refinement, preparation and adoption so as to
lead one reasonably to conclude that the announcement would
have been forthcoming at the time made even if there were no
union campaign.” Id. at 113. See also Gordonsville Industries,
supra at 577 fn. 22.
In the instant case the Respondent presented no evidence
whatsoever justifying the timing of its announcement 2 days
before the election of a change that was not going to occur until
some 9 months in the future. Indeed, the employees at Eliza-
bethton, where the Union had raised the issue of retiree bene-
fits, learned of this benefit even before the beneficiaries, the
retirees, had received a letter advising them of the forthcoming
change. Counsel for the General Counsel argues that Oldenberg
was correct when he noted that he should not have responded. I
agree. The Respondent announced a contemplated future
change in retiree benefits at the 11th hour before the election in
order to discourage employees from supporting the Union. In
so doing, it violated Section 8(a)(1) of the Act.
4. Predictions of violence
The complaint alleges that the Respondent created the im-
pression that employee union activities would inevitably lead to
strike violence. The General Counsel’s evidence concerning
this allegation comes from a booklet entitled, “It’s Time to
Vote No” distributed by the Company to all employees within
the week prior to the election and prior to March 19. The book-
let, in referring to the right of employees to cross a picket line,
tells the employees that they should not be “too quick to ignore
the reality of how difficult crossing the picket line might be.” It
continues with the following statement:

Indeed, one Union supporter at Snap-on who claims to have
been a UAW member for 17 years in Detroit recently spoke
of using a high-powered rifle to shoot anyone who crossed the
picket line as well as a Judge!”

The foregoing example resulted from a report by Security
Guard Polly Grindstaff of an alleged conversation that she had
SNAP-ON TOOLS, INC.

15
with employee Harold “Hydro” Sheppard. Grindstaff describes
the conversation as a “cuss fight.” Sheppard denies that any
conversation occurred.
According to Grindstaff, in the course of a conversation with
Sheppard, she told him that the employees did not need a Un-
ion, “that a union was no good in the state of Tennessee that [it]
had the Right To Work Law.” She continued by pointing out
that, if there were a union and the employees chose to strike,
“there would be fifteen hundred people lined up at the front
gate wanting a job.” Grindstaff states that Sheppard responded
saying, “Not if somebody was over there in that field with a
high-powered rifle and shot the first son of a bitch that crossed
the line, and then went down there and shot the Judge that is-
sued the order.” Grindstaff reported this alleged conversation to
Chamberlain who had her reduce it to writing. In the written
statement, Grindstaff reports that Sheppard stated:

Someone should be over in the field with a high-powered rifle
& shoot everyone who comes through the gate, starting with
the judge who wouldn’t let them stop people from crossing a
picket line.

Sheppard, who had worked at Chrysler in Michigan, denied
having the conversation that Grindstaff recounted. He did ac-
knowledge that, in conversation with other employees, he had
related an incident that he had been told about by his father-in-
law involving a United Mine Workers strike in which people
got shot and a judge was injured.
The Respondent did not contact Sheppard to confirm the ac-
curacy of the report it received from Grindstaff. The statement
Grindstaff attributed to Sheppard contains no assertion that he
would take any violent action.
Sheppard had undergone surgery and was not working when
the Company’s publication was distributed. When it was
brought to his attention, Sheppard was upset. He explained that
he was “the only one who had worked at Chrysler.” He was
concerned that he had not made the statement being attributed
to him, and he wanted the Company to retract it because he
would be blamed for anything that happened. Sheppard came to
the gate where prounion employees, including Taylor and John
Large were handbilling and informed them that he wanted to
get the statement retracted. Sheppard, accompanied by Taylor,
went to the plant where they spoke with Plant Manager Olden-
berg. Large followed and joined them. Sheppard explained that,
because of the reference to 17 years of UAW membership,
everybody knew that the statement referred to him and that “it
would put my life in danger if something did happen.” He de-
nied making the statement contained in the Company’s booklet,
“I . . . made no [allegation] that way.” Corporate Director of
Human Resources Patanella came out of an adjacent office and
joined the conversation. He read the statement and informed
Sheppard that “there were no names mentioned and they [were]
not going to retract it.” I do not credit Oldenberg’s testimony
that he does not recall Sheppard’s request for retraction.
I need not decide whether there was a conversation between
Sheppard and Grindstaff since the Company accepted Grind-
staff's account and made no effort to contact Sheppard to con-
firm her report. Grindstaff's account is the only report that the
Company had regarding Sheppard’s purported statement, and
that account states clearly that the reference was to “someone”
being in a field. Sheppard, who does not own a gun, never, as
Grindstaff admitted, made any statement even remotely sug-
gesting that he would shoot anyone. Despite this, the Company
published a statement that a current employee who had been a
member of the UAW for 17 years, an unmistakable reference to
Sheppard, “recently spoke of using a high-powered rifle to
shoot anyone who crossed the picket line.” (Emphasis added.)
The Respondent’s false attribution of potential violence by
Sheppard did not threaten violence by the Respondent. The
statement referred to violence “not by it [the Respondent] but
by prounion supporters, i.e. conduct beyond its control.” Hamp-
ton Inn, 309 NLRB 942, 943 (1992). I shall, therefore, recom-
mend that this allegation of violation of Section 8(a)(1) of the
Act be dismissed. It shall, however, be considered as objection-
able conduct.
5. David Markland
David Markland was a known prounion employee. He wore
a union shirt for a short period of time but found it uncomforta-
bly warm and then began wearing buttons identifying him as a
supporter of the Union. No management official who testified
denied knowing that Markland supported the Union.
On May 16, employee Wanda Burrow came to Markland’s
workstation with a routing paper for a specific order of
wrenches and asked if he could process the order that day.
Markland replied that he could if he got the wrenches. Burrow
recalls Markland looking into a tub for the wrenches at the
point. Burrow left the routing paper with him. When he looked
at the routing paper, Markland discovered that there was no tub
number or storage location written on it. Markland went to the
Dispatch Office, a cubical with a sliding glass window where
orders are exchanged. Upon coming to the window, he ob-
served Burrow, Betty McFarland, and David Shouse in the
office. He slid the window open. When he did this, Burrow
approached the window. Markland held up the routing slip and
told her that “there was no storage number or tub number on
the paper to tell me where these wrenches were.” Burrow re-
calls him stating that the order was “not out there.” Neither
McFarland nor Shouse were paying any attention to the conver-
sation, and they were not facing the window.
At that point, according to Markland, Burrow “reached through
the window and slapped me on the . . . left hand side of my cheek”
with her right hand. Markland testified that the slap “stung,” and
that he “was shocked.” He stepped back and asked Burrow “ why
she did it,” that he “did not deserve that” He laid the routing slip
down and walked away. Burrow followed him and sought to
apologize, but Markland told her that he was too upset, that it
would be better “for us not to be around each other.”
Burrow’s account of the incident, although differing is some
respects, is not significantly different. She recalls stating that
she thought Markland had told her that the order was out there
and that he replied by asking, “[D]id you think the tub that I
had my head stuck in was the order?” Although denying slap-
ping Markland, Burrow admits that she “reached through the
window and patted his face,” while telling him that she would
find the order. Markland reacted stating, that she “should not
have done that.” Burrow attempted to touch Markland again, to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

16
“take it back,” but he turned away, laid down the routing paper,
and left. Burrow acknowledges that Markland looked “kind of
agitated.” She found the order and went to Markland. She be-
gan a conversation asking, “I have offended you, haven’t I?”
Markland responded that he did not like being hit by a woman,
moved to his desk, and sat down, not looking at Burrow. Bur-
row continued stating, “I’m sorry, I apologize, I did not mean
to offend you. I was only clowning around.” She testified that
Markland responded that “you cannot be clowning around with
this Union thing going on.” Markland did not testify that the
Union was mentioned at any time and no other witness testified
to any mention of the Union.
Burrow, although not in the unit, had expressed her opposi-
tion to the Union. Her husband, who was in the unit, wore
“Vote No” badges.
Markland reported the incident to his supervisor, Tony Irick,
and requested an appointment with Human Resources Manager
Chamberlain. He informed Irick that he was too upset to work
and wanted a gate pass to go home. Irick left and sometime
later returned with the gate pass and told Markland to stop by
and speak with Chamberlain and Larry Cooper, a former Gen-
eral Supervisor at the Elizabethton plant. Markland did so. He
told them that Burrow “had slapped me, and that I felt like I
didn't deserve it. I had did nothing to provoke it, and it was an
emotional shock to me, and that I was going home.” Chamber-
lain and Cooper remarked that they did not see any marks on
Markland’s face, but informed him that they would investigate.
They asked if there was anyone else present, any witnesses.
Markland informed them that McFarland and Shouse had been
present, but he did not know if they had observed the incident.
At this point, it had been over an hour since the incident oc-
curred. Markland did not request that any specific action be
taken against Burrow, stating, “That’s up to you guys.”
Markland went home. Later that day, he swore out a warrant
against Burrow for assault. He then withdrew the warrant upon
the advice of counsel. I find the taking out of the warrant, its
withdrawal, and the sending by the Company of its attorney to
the courthouse on the day this matter was scheduled to be liti-
gated to be immaterial to any issue before me.
Following Markland’s complaint, Chamberlain interviewed
Burrow who reported that Markland “must have been mad be-
cause he pitched the packet through the window,” an allegation
unsupported by McFarland and Shouse. Neither McFarland nor
Shouse reported any physical contact upon Markland, but Bur-
row admitted that she “had playfully tapped him on the cheek.”
On cross-examination, Chamberlain admitted that Burrow was
“hysterical, . . . very distraught, very upset,” and that, in the
interview, Burrow “wasn't making perfect sense.”
The following day, May 17, Markland spoke with Chamber-
lain and Cooper who told him that they felt that he was “blow-
ing things out of proportion,” that he had not been slapped, that
they had seen no signs of physical contact, that he was “creat-
ing a hostile work environment for Burrow by talking about
this on the floor with other people, and that as far as they were
concerned the matter was closed.” Markland, at the hearing,
acknowledged that rumor of the incident had begun to circulate,
that several people asked him about it, and that he responded he
“got slapped and that was it.”
Following this meeting, it is unclear whether it was later on
May 17 or 18, Markland spoke with Plant Manager Oldenberg.
Oldenberg came to Markland’s workstation and apologized,
stating that he could not speak for Burrow, but that on behalf of
the Company, he was sorry the incident happened. According
to Markland, Oldenberg continued, stating that Burrow “had a
reputation and that he had seen her kind of slap around and hit
on people as a gesture of expression.” He demonstrated by
patting Markland’s shoulder. Markland replied, “No, it wasn’t
like that.” Markland, who kept a notebook, made a note of what
Oldenberg said.
Markland returned to Chamberlain and Cooper on May 18
and told them that Oldenberg had said that he had seen Burrow
slap and hit people. He informed them that he made notes of
this conversation and presented his notebook, which bore a
UAW logo, but neither Chamberlain nor Cooper looked at it.
They asked Oldenberg to join them. He denied stating that he
had told Markland that he had seen Burrow slap and hit people,
that Markland was misquoting him, that he had said he had
seen her “touch people.” Markland did not recant his account of
what Oldenberg had told him, stating to Oldenberg that he
“knew that wasn’t so.” Markland was again told that he was
blowing things out of proportion, to “drop it and let it go,” and
to not talk to anyone on the floor about the incident, that he was
creating a hostile environment on the floor.
On May 22, Markland was called to the office. Markland re-
quested that he be permitted to have a witness, and employee
Herb Smith joined them. Markland was presented a final writ-
ten warning for the major offense of “[g]iving false replies or
testimony to the company in any matter relating to company
activities, business affairs, and like matters.” The warning sets
out the chronology of Markland’s complaint and refers to his
statement that Oldenberg had told him the he had seen Burrow
“hit people” whereas Oldenberg asserted that he had seen Bur-
row “pat” and had “patted you on the shoulder to demonstrate.”
The warning states that Markland had responded that Olden-
berg was not being truthful. It notes that Markland had made
“notes of the alleged conversation,” and then states that Mark-
land “[i]n effect . . . called the plant manager a lair.” It con-
cludes by referring to Markland’s “unfounded allegations”
against Burrow, that his falsely accusing Oldenberg “casts great
doubt upon the accuracy of the allegations” against Burrow.
At the hearing, Oldenberg acknowledged that there was a dif-
ference between disagreeing with another person’s recoll-ection
of an event and calling a person a liar, but he asserted that Mark-
land did call him a liar. Markland denied doing so. I have no
doubt that, if Markland had actually called Oldenberg a liar, the
warning would have so stated. I credit Markland. The warning
states that Markland “in effect” called the plant manager a liar.
When Markland was issued the warning both he and Smith
were directed not to speak about the incident with employees.
In assessing the evidence under the analytical framework of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), I find that Markland engaged in union activity and
that the Respondent was aware of that activity. Antiunion ani-
mus is established. The warning to Markland was an adverse
action. The General Counsel established a prima facie case and
it was incumbent upon the Respondent to demonstrate that it
SNAP-ON TOOLS, INC.

17
would have taken the same action in the absence of Markland’s
union activity.
Although Chamberlain testified that she viewed the incident
as a “she said, he said” situation, the Respondent ignored what
she, Burrow, said and characterized what he, Markland, said as
false. Burrow had admitted a nonconsensual touching, whether
it be described as a pat or a tap. Rather than take any formal
action against antiunion employee Burrow for her admitted
tapping or patting of Markland, the Respondent challenged his
characterization of the contact as a slap, told him that he was
blowing things out of proportion, and directed him to drop it
since he was creating a hostile work environment for antiunion
employee Burrow.
Markland, having had his veracity questioned, returned to
Chamberlain and Cooper after Oldenberg had corroborated that
Burrow would “kind of slap around and hit on people as a gesture
of expression.” Although Oldenberg denied making the remarks
attributed to him, Markland did not recant his straightforward
report of what Oldenberg had said, again offering his notes for
confirmation. Chamberlain and Cooper did not even look at the
notes. The Respondent repeated its admonition that Markland
“drop it and let it go” and directed that Markland not talk to any-
one on the floor about the incident. In so doing the Respondent
reconfirmed that it was not concerned about the complaint of
prounion employee Markland but was concerned about the effect
of the incident upon antiunion employee Burrow.
There is no evidence that Markland violated the Respon-
dent's admonition to drop the matter and cease talking about it.
He was never advised that he risked discipline by persisting in
asserting, in a closed door meeting with management, that
Oldenberg had made comments that Oldenberg was now deny-
ing. The Respondent presented no evidence relating to its deci-
sion to issue a final warning to Markland on May 22, 4 days
after the meeting of May 18.
The Respondent's policy on harassment prohibits, inter alia,
“[h]itting, pushing, or other aggressive physical contact,” and
provides that “[i]ntimidating, coercing, threatening, taking re-
prisal or discrimination against any employee for complain-ing
about harassment . . . is prohibited.”
The Respondent also has an open door policy. If that policy
is to be effective, employees must be accorded the right to state
their recollection of events and statements, even when their
recollection differs from that of a superior, without fear of dis-
cipline. Management may well discredit the employee and, in
instances such as insubordination or failure to carry out a su-
pervisor’s direction, discipline the employee for that offense.
By characterizing disagreement regarding an employee’s recol-
lection of words spoken as making a dishonest false statement,
the Respondent sabotages its own procedures. Oldenberg’s
acknowledgement that honest disagreement does not constitute
calling another a liar is consistent with the foregoing analysis.
Oldenberg could recall no other occasion upon which an em-
ployee had been warned for disputing what a superior had said.
Markland was purportedly warned for “[g]iving false replies
or testimony to the company in any matter relating to company
activities, business affair, and like matters.” Markland’s com-
plaint did not relate to company activities, business affairs, or
like matters. It related to the conduct of another employee.
Even though it is uncontraverted that the other employee had
tapped or patted Markland on his cheek without his consent, the
Respondent, whose antiunion animus is amply established on
this record, focused upon having Markland drop the matter so
as not to create a hostile work environment for antiunion em-
ployee Burrow. When Markland sought to support his allega-
tion, and stood by his account of what Plant Manager Olden-
berg had said, he was issued a final warning for “in effect”
calling the plant manager a liar. There is no evidence that any
other employee has ever been disciplined for disputing what a
superior had said.
In view of the foregoing, and the entire record, I find that
Markland’s union activity was a substantial and motivating
factor in the Respondent’s unexplained decision to discipline
Markland four days after he disputed Plant Manager Olden-
berg’s recollection of the conversation in which they had en-
gaged on May 17 or 18. The Respondent has not established
that it would have taken the same action against Markland in
the absence of his union activity. Consistent with the complaint
allegation, I find that the Respondent, by issuing a final warn-
ing to Markland on May 22 because of his union activity, vio-
lated Section 8(a)(3) of the Act.
The complaint alleges that the Respondent's direction to
Markland on May 18 and 22, and to Smith on May 22, not to
discuss the “altercation,” unlawfully prevented them from en-
gaging in protected concerted activity. Markland made an indi-
vidual complaint regarding the misconduct of another em-
ployee. He did not seek to enlist the assistance of any other
employee regarding his individual complaint. Neither Markland
nor Smith were directed not to discuss the action of the Re-
spondent, which, insofar as it resulted in discipline to the em-
ployee who made the complaint but no discipline against the
other employee, was a matter relating to terms and conditions
of employment. The complaint allegation is limited to the re-
striction of conversation regarding the “altercation.” The alter-
cation related to an incident between two employees. The Re-
spondent did not direct, and the complaint does not allege, that
employees were prohibited from discussing the manner in
which the Respondent had acted, actions that did indeed affect
their terms and conditions of employment. I shall recommend
that the allegations relating to discussion of the altercation be
dismissed.
C. Objections to the Election
The Petitioner’s Objections 1 and 2 relate to the activities of
employee David “Red” Shouse. Shouse was present at the ini-
tial preelection conference, purportedly as a potential alternate
observer, but he never served as an observer. Shouse did not
perform his regular job on the morning of the day of the elec-
tion. During the first voting session, from 6 to 8 a.m. on March
21, Shouse was present in the vicinity of the nurse’s station in a
position from which he observed employees as they returned to
the plant after they left the voting place. There is a glass display
case of various articles bearing the Snap-On name and logo in
this area.
Objection 1 alleges the creation of the impression of making
a record of employee voting activity. After employee Robert
Blevins left the voting place, he passed by the open area adja-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

18
cent to the nurse’s station. He heard his name spoken by
Shouse. Shouse was standing next to an unidentified male indi-
vidual, identified at the hearing as attorney Christopher Owens,
who was sitting. Employee Bobby Hampton, as he was return-
ing to the plant after voting, noticed Shouse, Owens, and Sherry
Leonard, the plant nurse, sitting in the nurse’s station. It ap-
peared to Hampton that Shouse was “watching” employees as
they passed by after exiting the voting place. He did not hear
him say anything. Hampton called International Representative
Hendrix and told him that “we had somebody we thought was
counting votes.” Employee Timothy Timbs observed four peo-
ple after he left the voting place: Shouse, Owens, Leonard, and
Sandra Forbes, the plant receptionist. Shouse was sitting behind
the display case. Timbs testified that Shouse looked at Timbs
and “went back like he was writing something.” Timbs ac-
knowledged that he “could not see” what Shouse was actually
doing. Employee David Markland observed Shouse standing
just inside the door of the nurse’s station next to nurse Leonard,
who was sitting. He did not hear Shouse or Leonard say any-
thing. I do not credit Markland’s mistaken testimony that he
was able to observe Shouse before he entered the voting place.
Employee Roy Ward exited the voting place shortly after em-
ployee Randy Canter. Ward heard Shouse speak Canter’s name
and say the word “no.” Canter turned to approach Shouse who,
with a hand gesture, indicated that Canter should leave and he
did so. Shouse was standing next to nurse Leonard, who was
seated. As Ward passed, he believed he heard Shouse state his
name and the word “yes.” He noted that “it looked like . . . they
were marking something” and that he did not think it was “a
Christmas list.” Although Ward did not mention speaking with
Hampton after this, testimony by Hampton on rebuttal suggests
that they conferred prior to Hampton’s call to Hendrix reporting
the presence of Shouse. Neither Shouse, Owens, Leonard, nor
Forbes testified.
The Petitioner couches its argument in terms of surveillance.
I find that the evidence establishes a clear case of list keeping, a
practice condemned by the Board for more than half a century.
See Days Inn Management Co., 299 NLRB 735, 736 (1990)
and cases cited therein. I am mindful that no employee who
observed Shouse or heard his name being spoken saw a list, but
the keeping of a list can be inferred. In A. D. Julliard & Co.,
110 NLRB 2197, 2199 (1954), the Board acknowledged that it
“could be inferred from the circumstances, that the employees
knew that their names were being recorded by the Employer.”
The Employer presented no evidence explaining Shouse’s
speaking the names of employees who had voted in the pres-
ence of the Employer’s attorney as those employees returned to
the plant. I agree with employee Ward that the Employer was
not marking “a Christmas list.” The Employer argues that there
is no evidence of purported improper conduct prior to the time
that any employee voted. The Board, in Piggly-Wiggly, 168
NLRB 792 (1967), specifically stated that is its policy, in the
interest of free elections, to prohibit “the keeping of any list,
apart from the official voting list, of persons who have voted in
a Board election.” Ibid, emphasis added. The failure of the
Employer to present Shouse, Owens, or Leonard as witnesses
regarding the stating of names and appearing to write confirms
the inference that they were doing exactly what the testimony
suggests they were doing, making a list. It is immaterial that the
list was made after employees had voted. List keeping is objec-
tionable conduct. The Objection is framed with regard to the
conduct of Shouse. Insofar as it is undisputed that Shouse was
present with Owens at various times, I find that Shouse was
acting as an agent of the Employer and his conduct is attribut-
able to the Employer. This aspect of Objection 1 is sustained.
I do not find the assignment of Shouse to duties other than
his normal duties constitutes objectionable conduct. The Em-
ployer is free to assign its employees to various duties. Al-
though I have found the duties to which Shouse was assigned
were objectionable, I recommend the aspect of Objection 1
relating to his assignment to duties other than his normal job
duties be dismissed.
Objection 2 relates to the entry of Shouse into the voting
place with a disabled employee. International Representative
Hendrix and employee John Large, a Union Observer, both
testified that, at the end of the preelection conference prior to
the first voting session, there was a short conversation with the
Board Agent regarding disabled employees, and it was agreed
that such employees would be assisted by family members.
Corporate Director of Human Resources Tony Patanella, the
Employer’s representative at the preelection conference, recalls
that it was only agreed that no member of management could
assist a disabled employee. Disabled employee Steve Blevins
arrived at the plant, assisted by his wife Cathy Jean Blevins. As
Mrs. Blevins came through the door of the plant, she observed a
redheaded employee, who I find to be Shouse. Shouse was
coming out of the restroom. Mrs. Blevins requested him to
assist her in case her husband started to fall. They entered the
voting place and assisted Mr. Blevins to the voting booth. Mrs.
Blevins continued to steady her husband by holding onto his
arms. The curtain was closed. Shouse was outside the booth
and was not touching Mr. Blevins. Mrs. Blevins turned her
head. After marking his ballot, Mr. Blevins placed his ballot
into a challenge envelope and then dropped his challenged bal-
lot into the ballot box. Shouse and Mrs. Blevins assisted Mr.
Blevins out of the voting place. No protest was made to the
Board Agent. Union Observer Large reported what had oc-
curred to Hendrix after the first voting session. Notwithstanding
any agreement that had or had not been made, Mrs. Blevins, the
only family member present, requested assistance. There is no
evidence that Shouse engaged in any electioneering. I recom-
mend that this Objection 2 be dismissed.
Objection 3 alleges unlawful interrogation, an allegation
made in the initial charge but not alleged in the complaint. The
Petitioner cites two instances of alleged interrogation, the first
involving employee Warren Taylor on January 31 immediately
after Taylor and several other employees told Human Re-
sources Manager Chamberlain that they were organizing on
behalf of the Union. This was prior to the filing of the petition.
The second instance cited by the Petitioner occurred approxi-
mately 2 weeks before the election when prounion employee
Herb Smith was engaged in a conversation with Supervisor
Tony Church. General Supervisor Larry Cooper joined them
and asked Smith why he was thinking about supporting the
Union. Smith replied that he was “tired of the crap that was
going on in the plant,” noting specifically that seniority was not
SNAP-ON TOOLS, INC.

19
being adhered to, the retirement program was inadequate and
the health insurance issues. Cooper related his experience at
Sioux Tools, a plant that had been unionized and had closed.
Smith asserted that Cooper insinuated that the plant had closed
because of the Union by referring to various problems “that he
felt ultimately contributed to the closing of that plant,” but he
acknowledged that Cooper did not state that Sioux Tools closed
because of the Union. Smith testified that Cooper also asked
whether he would vote to go on strike “knowing that someone
would lose their house.” Smith replied that no one was going to
lose their house and that, if he “felt the need to vote to strike”
he would do so. The strike question was posed as a hypothetical
and Smith, an intelligent and articulate prounion employee,
negated the basis for the hypothetical when he responded that
no one was going to lose their house. Under prevailing case
law, this exchange on the plant floor that contained no threat
was not coercive. Rossmore House, 269 NLRB 1176 (1984). It
is not alleged as a Section 8(a)(1) violation, and it was not fully
litigated. Even if I were to find that this encounter constituted a
single instance of objectionable conduct, I would find it to be
de minimis since it involved only one employee and there is no
evidence that any other employee was aware of the conversa-
tion. I shall recommend that this objection be dismissed.
The Petitioner’s Objection 4 alleges threats of the inevitabil-
ity of strikes and strike violence. There is no complaint allega-
tion relating to statements regarding the inevitability of strikes
made in videos or at captive audience meetings. The Petitioner
adduced evident that, on March 13, the Employer posted a
memorandum entitled Employee Strike Costs that lists the year
of the strike, the location of the Snap-On facility at which the
strike occurred, the duration of the strike and the cost to em-
ployees. The last entry on the document lists Elizabethton as
follows:

2001 Elizabethton 1 week $936

The memorandum was posted throughout the plant. Several
hours after being posted, the Employer’s supervisors began
removing the memorandum. Chamberlain testified that the
memorandum was removed because of an inaccuracy regarding
the loss figure. When reposted, the memorandum omitted the
duration of any potential strike at the Elizabethton facility. The
revised memorandum includes Elizabethton as follows:

2001 Elizabethton $842

Telling employees that they must strike in order to obtain a
collective-bargaining agreement violates the Act. As explained
in Heartland of Lansing Nursing Home, 307 NLRB 152, 158
(1992), citing Devon Gables Lodge & Apartments, 237 NLRB
775 (1978), at 776:

The speakers stated flatly, without qualification, that, if the
Union won, a strike would occur. The logical inference from
these statements is that no matter how negotiations progressed
and no matter what the Union sought from Respondent the
employees would nevertheless have to strike to obtain a con-
tract. It is clear that the statements about the inevitability of
strike contained a threat that the Respondent would refuse to
bargain in good faith in order to insure a strike.

The Employer’s memorandum of March 13, predicated a
strike of a least 1 week at Elizabethton. Although there is no
evidence disputing Chamberlain's testimony that the initial
monetary figure was incorrect, the absence of the purported
duration of a strike in the second document establishes that the
Employer either realized or was advised that the first document,
without qualification, promised that, if the Union won, a 1-
week strike would occur. The replacement, omitting the length
of the strike, did not disavow the threat. See Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978). By predicting,
without qualification, that if the employees selected the Union
as their collective-bargaining representative there would be a 1-
week strike at Elizabethton, the Employer interfered with the
employees exercise of their Section 7 rights and engaged in
objectionable conduct. This portion of Objection 4 is sustained.
The second aspect of this objection relates to strike violence.
I have already found that the Employer’s publication of the
statement that a current employee “recently spoke of using a
high-powered rifle to shoot any who crossed the picket line”
was erroneous. The basis for the publication, a statement that
Grindstaff attributed to employee Sheppard, did not assert that
he would engage in violence. In Home & Industrial Disposal
Service, 266 NLRB 100 (1983), the Board overruled the portion
of Hickory Springs Mfg. Co., 239 NLRB 641 (1978), that had
held that predictions of future violence did not constitute objec-
tionable conduct. The Board quoted with approval the language
of the Court of Appeals for the Fifth Circuit that had rejected
the Board's position:

Men judge what others will do on given occasions by their
prior actions and, less reliably, doubtless, by their statements
about their intended future actions. So they assess what kind
of folk they are dealing with and how those folk are likely to
react if crossed. Even the implicit threat of a club or pistol on
the hip, without more, may be sufficient to influence signifi-
cantly the conduct of those who are cast in company with the
bearer. In short, we reject the view that such pervasive threats
of violence as these can be said, in effect as a matter of law,
not to have created a coercive atmosphere sufficient to con-
taminate the election because they were merely conditional
ones.
645 F.2d 506, 510 (5th Cir. 1981).

The Board then stated:

Consistent with the position taken by the circuit court, we believe
it unrealistic to conclude that a union agent’s threats of bodily
harm, damage to personal property, or the like, cannot, as a matter
of law, impact on an election merely because the threat in ques-
tion is couched in terms of possible future conduct. Such an ap-
proach does not take into account the tendency of such threats to
have a substantial and destructive effect on free and open cam-
paign discussion, as well as freedom of choice at the polling place
itself. A campaign environment in which a union threatens that
violent repercussions will ensue, should employees choose to op-
pose it in the future, is one in which there is substantial likelihood
that employees will be inhibited from expressing their actual
views, and is surely one which jeopardizes the integrity of the
election process. Id at 101.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

20
In the instant case, the Employer falsely attributed comments
relating to violence to a current employee who specifically, but
unsuccessfully, requested retraction. The Employer, by attribut-
ing a threat of strike violence to a current employee that its own
document confirms was a false attribution, engaged in objec-
tionable conduct. This aspect of Objection 4 is sustained.
Objection 5 alleges the publication of threats of violence di-
rected at its supervisors by nonemployee union members. In the
booklet, “It’s Time to Vote No,” under the heading “Violence,
UAW-Style,” the Employer refers to two vulgar messages left
on the Employer’s Straight Talk Message Line by a drunken
nonemployee union member. The booklet asserts that the non-
employee obtained Human Relation Manager Chamber-lain’s
name and telephone number at an organizational meeting.
There is no evidence of this. The booklet also asserts that the
nonemployee claimed “to have done harm to Carletta [Cham-
berlain]’s son.” There is no evidence of this. The drunken non-
employee alleges that he engaged in a homosexual act that
Chamberlain’s son purportedly “liked.”4 The document does
not point out that Chamberlain’s son is an adult and resides in a
state other than Tennessee. The entry concludes that this inci-
dent “opened the eyes of many Snap-On employees and made
us all realize that having a Union here is a threat to our friendly
atmosphere and good relationships. Just look what’s happened
to us already!” Contrary to the wording of the objection, the
report of the conduct of the nonemployee did not constitute a
threat. Although the publication materially misrepresents the
content of the vulgar telephone call, I do not find that it consti-
tutes objectionable conduct, and I recommend that this objec-
tion be dismissed.
The Petitioner’s Objection 6 was withdrawn.
Objection 7 alleges the solicitation of grievances and prom-
ise to remedy them, including employee health insurance bene-
fits. The solicitation allegedly occurred on January 31, prior to
the critical period, immediately after Taylor and several other
employees told Chamberlain that they were organizing on be-
half of the Union. In his initial testimony, Taylor testified, “I
think that she even asked what our grievances were.” On cross-
examination, Taylor testified that “we volunteered the issues as
a group” and that Chamberlain took notes. After listing their
concerns, particularly with regard to the health insurance situa-
tion, Chamberlain stated, “I don't blame you.” There is no pro-
bative evidence that Chamberlain solicited grievances.
The remainder of this Objection alleges that the Employer
granted improvements in employee terms and conditions of
employment including health insurance. I have found that the
grant of benefits did violate the Act. Although announced on
February 2, prior to the critical period, the first payment pursu-
ant to the reimbursement policy was not made until February
16, well after February 7 when the representation petition was
filed. The Petitioner, citing Scott Glass Products, 261 NLRB
906, (1982), argues that this action, occurring in the critical
period, constituted objectionable conduct.

4 The Charging Party, in its brief, correctly notes that the tape played
at the hearing was not properly transcribed. The transcript, at p. 621,
omits the words “and he liked it.”
I disagree. The Board, in Kokomo Tube Co., 280 NLRB 357
(1986) distinguished Scott Glass, and did not affirm the finding
of the administrative law judge that the “grant and payment of
the raise should properly be considered as a distinct violation.”
Rather, the Board held that, even though the benefit was not
actually received until after the petition was filed, insofar as the
benefit was effective prior to the filing of the petition, it did not
constitute objectionable conduct. Id. at 358 fn. 8.
Consistent with the forgoing precedent, I find that the Em-
ployer's actual payment of benefits pursuant to its prepetition an-
nouncement did not constitute objectionable conduct, and, there-
fore, I recommend that this aspect of Objection 7 be dismissed.
Objection 7 relates to solicitation and the granting of bene-
fits, “including” health insurance benefits. The Employer, con-
trary to my finding, argues that its announcement of retiree
benefits did not violate the Act, and further argues that it was
not encompassed in Objection 7. I need not engage in an ex-
tended analysis of whether the announcement is encompassed
in Objection 7. Whether I consider it to be encompassed in
Objection 7 is immaterial since this issue was alleged in the
complaint, and it was fully litigated. Thus, there is no question
that it is encompassed in Objection 13, the “catchall objection”
relating to “these and other acts.” White Plains Lincoln Mer-
cury, 288 NLRB 1133 (1988).
The Petitioner’s Objection 8 alleges that the Employer
looked disfavorably upon union supporters and thereby con-
veyed an implied threat of retaliation against them. There was
no evidence adduced in support of this Objection, and I rec-
ommend that it be dismissed.
Objection 9 alleges the singling out of employee Taylor by
posting a message on the Employer’s electronic bulletin board
advising that employees who wanted their union authorization
cards returned should “see Warren Taylor.” Taylor acknow-
ledges that, at a captive audience meeting of third shift employ-
ees, Plant Manager Oldenberg made comments suggesting that
several employees wanted their cards back. Taylor was aware
that AN employee had requested that his card be returned, and
it had been. He informed Oldenberg that if anybody wanted
their card back that “we,” referring to the employee Organizing
Committee, would get their card back “if we could.” He did not
grant permission for the Employer to use his name on the elec-
tronic bulletin board and was not asked if the Employer could
use his name. When he observed that his name was being used,
he informed his supervisor that he “did not like that.” Despite
his protest, the message continued to run for “a week or so.”
Taylor was an outspoken advocate for the Union and assumed
the position of spokesperson when responding to Oldenberg.
The message did not demean Taylor in any manner. The Peti-
tioner cites no case authority establishing that the foregoing
constitutes objectionable conduct. I recommend that this objec-
tion be dismissed.
The Petitioner’s Objection 10 alleges threats of specified and
unspecified reprisals in retaliation against employees who exer-
cised their right to engage in conduct protected by Section 7 of
the Act. The Petitioner’s brief does not separately allege any
specific threat in support of this objection, arguing that it is
proved by the videos shown at the captive audience meetings.
No statement in the videos is alleged as violating the Act. There
SNAP-ON TOOLS, INC.

21
is no probative evidence supporting this objection and I rec-
ommend that it be dismissed.
Objection 11 relates to surveillance and is coextensive with
the complaint allegation insofar as the conduct occurred during
the critical period. I have found that the Employer’s altering the
normal method of which it utilized its surveillance camera in
order to observe employee protected activity violated Section
8(a)(1) of the Act. Employee Warren Taylor's uncontradicted
testimony establishes that handbilling occurred at the gate for
two or three weeks after it began on January 29, thus placing it
well within the critical period that commenced on February 7,
less than a week and a half after the handbilling began. All
employees entering the gate were subjected to this surveillance,
thus this conduct was clearly not de minimis. See Mercy Gen-
eral Hospital, 334 NLRB 100, 108 (2001). This surveillance by
the Employer constitutes objectionable conduct, thus Objection
11 is sustained.
Objection 12 alleges that the Employer threatened that selec-
tion of the Union would be futile, that the Employer would
intentionally prolong and delay bargaining and that contract
negotiations would result in freezing employee wages and
benefits. In arguing that it has proved this objection, Counsel
for the Petitioner cites various statements in the videos shown
at the captive audience meetings held by the Employer. No
statements in the videos are alleged to violate the Act. Review
of the transcripts of the videos reveals that they were carefully
prepared and edited to convey the Employer's message. State-
ments such as UAW standing for “Unemployed Another
Worker,” an implied threat of job loss if uttered by a supervisor
of the Employer, are made as statements of opinion by the for-
mer Director of Human Relations of a plant in southwestern
Virginia that had closed. Cf. Venture Industries, 330 NLRB
1133 (2000). As such, they constituted campaign propaganda to
which the Union could respond. There are no unlawful threats
of futility, prolonged negotiations, or freezing of wages and
benefits. I recommend that Objection 12 be dismissed.
Assuming that the Employer’s announcement of retiree
benefits shortly before the election is not encompassed within
Objection 7, I find that it is encompassed within Objection 13,
it violated Section 8(a)(1) of the Act, and it constituted objec-
tionable conduct.
I have found that, after the petition was filed and prior to the
election, the Respondent engaged in violations of Section
8(a)(1) of the Act by engaging in surveillance and announcing
retiree benefits to employees. This conduct is encompassed in
the Petitioner’s Objections 11 and 13. Additionally, I have
found that the Employer engaged in objectionable conduct by
list keeping and threatening the inevitability of strikes and
strike violence as alleged in Objections 1 and 4.
I find that the foregoing violations of the Act that occurred
during the critical preelection period and correspond to the
Petitioner’s objections, together with objectionable conduct
alleged in the Petitioner's Objection 1 and 4, interfered with the
employees’ free choice of representation and that that the elec-
tion must be set aside and a new election held.
CONCLUSIONS OF LAW
1. By engaging in surveillance of employee union activities
and by granting health care benefits and announcing retiree
benefits in an effort to encourage employees to cease engaging
in union activities, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. By issuing a final written warning to an employee because
of his union activities, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
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 therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having discriminatorily warned David
Markland, it must rescind the warning and, within 3 days, no-
tify him in writing that this has been done and that the warning
will not be used against him in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Snap-On Tools, Inc., Elizabethton, Tennes-
see, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance of employee union activities
protected by Section 7 of the National Labor Relations Act.
(b) Granting benefits to employees and or announcing retiree
benefits to employees in an effort to discourage employees
from supporting the Union.
(c) Warning or otherwise discriminating against any em-
ployee for supporting the International Union, United Automo-
bile, Aerospace & Agricultural Implement Workers of Amer-
ica, UAW, or any other union.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the
discriminatory warning issued to David Markland on May 22,
2001, and within 3 days thereafter notify him in writing that
this has been done and that the warning will not be used against
him in any way.
(b) Within 14 days after service by the Region, post at its fa-
cility in Elizabethton, Tennessee, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

22
by the Regional Director for Region 10, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by 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-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ployees and former employees employed by the Respondent at
any time since January 30, 2001.
(c) 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 ALSO ORDERED that the complaint is dismissed insofar as
it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election is set aside and Case
10–RC–15186 is severed from Cases 10–CA–33020 and 10–CA–
33096 and remanded to the Regional Director to conduct a second
election when he deems the circumstances permit a free choice.