Wal-Mart Stores, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 351 NLRB No. 17 130 Wal-Mart Stores, Inc. and United Food and Com- mercial Workers International Union.1 Case 19– CA–27720 September 28, 2007 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH This case centers on the discharge of an employee, un- represented by a union, who first invoked, and then in- sisted on, his then-existing right under the Board’s Epi- lepsy Foundation decision to have a coworker present during an investigatory interview that an employee rea- sonably believes could result in discipline.2 As we will explain, we find the discharge unlawful, despite the sub- sequent overruling of Epilepsy Foundation.3 I. The procedural history of the case, which has returned to the Board following a remand to the administrative law judge, is complicated. While the case was first pend- ing here, the Board overruled Epilepsy Foundation in IBM Corp., 341 NLRB 1288 (2004), holding that the right to a witness is available only to union-represented 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers International Union from the AFL–CIO, effective July 29, 2005. 2 Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002). There, the Board extended to nonunionized employ- ees the right granted to union-represented employees in NLRB v. J. Weingarten, 420 U.S. 251 (1975), now commonly known as the Wein- garten right. 3 On October 25, 2005, Administrative Law Judge Burton Litvack issued the attached supplemental decision. The Respondent, the Gen- eral Counsel, and the Charging Party each filed exceptions and support- ing briefs, and the Respondent and the Charging Party filed answering briefs and reply briefs. The Respondent argues that the exceptions of the General Counsel and the Charging Party should be stricken because they lack sufficient specificity and citation of legal authority under Sec. 102.46(b)(1) and (c) of the Board’s Rules and Regulations. We find that the challenged exceptions substantially comport with the requirements of Sec. 102.46, and accordingly they are accepted. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Deci- sion and Order. The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance 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. employees. (The IBM Board reaffirmed, however, that an employee may not be disciplined for merely requesting a witness. Id. at 1294.) Applying IBM retroactively (but without discussion of that point), the Board has previously held in this case that the Respondent did not violate the Act by denying em- ployee Kenneth Stanhope’s request for a witness and requiring him to continue with the interview. Wal-Mart Stores, Inc., 343 NLRB 1287 (2004). Our decision, how- ever, did not resolve the legality of Stanhope’s discharge. That issue was remanded to the judge, to clarify his original finding that the discharge was unlawful, based on Epilepsy Foundation. Id. at 1287–1288. We directed the judge, on remand, to apply IBM and to explain whether he had found that Stanhope was discharged for requesting a witness (which remained protected conduct under IBM) or, instead, for refusing to participate in the investigatory interview without a witness (conduct no longer protected, after IBM).4 After the remand decision issued, the Charging Party asked the Board to reconsider its decision to apply IBM retroactively. In an unpublished August 2, 2005 order, we denied the motion for reconsideration as to the denial of Stanhope’s request for a witness.5 As to Stanhope’s discharge, we held the motion in abeyance. We reasoned that it might be unnecessary to reach the issue of whether retroactive application of IBM was appropriate: if it was determined that Stanhope was discharged for merely requesting a witness (rather than for refusing to partici- pate in the interview), his discharge would be unlawful under either Epilepsy Foundation or IBM. On remand, the judge found (in fn. 6 of his supplemen- tal decision) that both Stanhope’s request for a witness and his refusal to participate in the interview “constituted equal motivating factors in Respondent’s decision- making process.” The judge (in fn. 9 of his supplemental decision) “emphasize[d] the importance of Stanhope’s 4 In his original November 8, 2002 decision, the judge rejected the Respondent’s defense that it would have discharged Stanhope for the conduct that was the subject of the investigatory interview, regardless of his invocation of his Epilepsy Foundation right. 343 NLRB at 1297. Rather he found that Stanhope was discharged “because he failed to cooperate in the investigation . . . by invoking his Weingarten [i.e., Epilepsy Foundation] rights—a precipitating factor equal in weight to any other.” Id. The General Counsel alternatively argued that the Respondent dis- charged Stanhope “because of his union sympathies and to discourage other employees from supporting a union.” Id. The judge rejected that theory. Because the General Counsel did not except to the judge’s determination, it is not before the Board. 5 We reasoned that “[b]ecause IBM now permits such denials, it would be futile to order the Respondent to cease and desist from doing what it is now permitted to do.” WAL-MART STORES, INC. 131 . . . refusal” to participate in the investigatory interview without a witness, in weighing the Respondent’s motives for the discharge. Ultimately, the judge concluded that the Respondent had carried its burden of establishing that Stanhope would have been discharged even if he had not requested a witness (the only protected activity he en- gaged in, under IBM). Consistent with IBM, the judge treated Stanhope’s refusal to participate in the investiga- tory interview as unprotected insubordination, on which the Respondent could and did rely in discharging him. In footnote 10 of his supplemental decision, the judge observed that: [T]he Board’s reasoning in IBM Corporation is central to my findings on remand, particularly concerning the crucial nature of Stanhope’s . . . refusal [to participate in the investigatory interview], and therefore whether said decision should be retroactively applied to Stan- hope’s decision is a matter of significance. The judge’s decision thus squarely presents us with the question of whether to apply IBM retroactively. We begin by reviewing the facts of the case. Then, applying the burden-shifting analysis of Wright Line,6 we find that Stanhope would not have been discharged had he not pursued his then-existing Epilepsy Foundation right by requesting a witness and then refusing to partici- pate in an investigatory interview when his request was denied. We must therefore consider, under the Board’s estab- lished retroactivity standard, whether it would work a “manifest injustice” to apply the new rule of IBM to Stanhope’s discharge. We conclude that retroactive ap- plication of IBM would be inappropriate here, and so we grant that part of the Charging Party’s motion for recon- sideration previously held in abeyance. Stanhope’s discharge, in short, turned on conduct that we must treat as statutorily protected. The discharge thus violated Section 8(a)(1) of the Act, and Stanhope is enti- tled to reinstatement and to a make-whole remedy, which we now order. II. The central episode in this case is a March 10, 2001 encounter between Stanhope and fellow employee Cyn- thia (Cindy) Adams at the Respondent’s Wasilla, Alaska store.7 The next day, Adams complained about the inci- dent to her supervisor and later prepared two written 6 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans- portation Management Corp., 462 U.S. 393 (1983). 7 All dates are in 2001 unless otherwise indicated. statements, at the request of Bruce Manderson, co- manager of the store. The judge declined to credit Ad- ams’ statements for their truth and similarly declined to credit her hearing testimony,8 but he found that the Re- spondent believed that the statements represented what had happened between Adams and Stanhope.9 Adams’ first statement reported as follows: Stanhope approached her during her lunchbreak and, after ex- changing a few brief comments about Adams’ father, asked Adams what she thought of “the union.”10 Adams replied that she did not want a union. Stanhope remarked that Adams’ father was prounion, and she should listen to her father. Stanhope then criticized the Respondent’s management, asserting that “Walmart was all f–ken [sic] pricks and that they would f–ken [sic] lie to your face without ever batting an eye.” Stanhope added that the employees “needed a union to stop management and to make it safe” for employees. During this time, Stanhope “got in [Adams’] face”: he did not touch her, but twice followed her when she tried to leave the area. Stanhope “made [Adams] feel like he was going to talk to [her] about it again.” She was “scared of him and really just want[ed] him to leave [her] alone.” “[T]he way [Stan- hope] talks gets more intense and venomous each time we talk,” Adams wrote, adding, “I don’t’ feel that’s right.”11 On March 16, after receiving Adams’ statements and discussing them, Manderson and Co-Manager Marlene Munsell decided to meet with Stanhope. Manderson asked him to report to the training room, telling him that Manderson and Munsell needed to go over something with him. Stanhope replied that he would go with them, but stated that if the conversation “turns into something I don’t like, I’ll ask for an independent witness.” Mander- son replied that his request would be denied. According to Manderson’s testimony, which the judge credited over that of Munsell,12 once in the training room, Munsell informed Stanhope that a report had been 8 In his original decision, the judge cited Adams’ demeanor, as well as contradictions and inconsistencies between her written statements and her hearing testimony. 343 NLRB at 1296 fn. 30, 1298. The judge described her as a “mendacious witness, one who could not be trusted.” Id. at 1298 fn. 36. 9 Stanhope did not testify. 10 The Respondent’s employees are not represented by a union. 11 Adams’ statement is quoted at length in the judge’s original deci- sion. 343 NLRB at 1291. 12 343 NLRB at 1294 (original decision). The judge observed that “Manderson’s demeanor, while testifying, was that of a more candid witness” than Munsell. Id. He also noted that Munsell’s testimony seemed tailored to the Respondent’s legal position, while Manderson’s was not. Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132 filed stating that he had used foul language. Munsell asked Stanhope what he could tell her about the incident. Stanhope then stated that he wanted his own witness at the meeting. Munsell replied that although he had the right to ask for a witness, she had the right to deny his request. Manderson added that if Stanhope insisted on having a witness they would send him home and they would continue the investigation without his input. Stanhope then denied that he used foul language and stood up to leave the room. Manderson told Stanhope to sit down and Stanhope did. Munsell next asked Stanhope if he had had a heated conversation with another em- ployee. Stanhope replied that he did not know what she was talking about. Manderson told Stanhope that he was being sent home for the day so that the Respondent could continue its investigation and Stanhope could prepare a written statement. Following the meeting, Munsell, Manderson, and an- other official (Regional Personnel Manager Stacy Simon) decided that if Stanhope failed to provide a written statement of the incident, the Respondent would make its decision based on the information at hand. The next day, March 17, Manderson approached Stan- hope and asked that he follow him to his office. Stanhope refused to do so without a witness present. Manderson replied that Stanhope could not have a witness and again asked that he come to his office to speak about the inci- dent. Stanhope again refused to do so without a witness and, Manderson testified, said “just go ahead and fire me right here, right now.” Manderson replied that the inves- tigation would have to be concluded without Stanhope’s input. Manderson asked Stanhope if he had a written statement, and Stanhope replied that he would not write one. Manderson, according to his testimony, then told Stanhope that he was terminated for creating a hostile work environment and using foul language. As credited by the judge, Manderson’s testimony was that Stanhope’s refusal to cooperate in the investigation of the Adams incident—which encompassed Stanhope’s March 16 request for a witness and his March 17 refusal to participate in the investigatory interview without such a witness—was one factor in the Respondent’s decision to discharge him.13 The other factors were Stanhope’s 13 At the hearing, Manderson initially denied that Stanhope’s refusal to cooperate in the investigation without having his own witness pre- sent was a factor in the decision to terminate him. Hearing Tr., vol. I, p. 106. The General Counsel then confronted Manderson with an affida- vit, later admitted into evidence, that he had provided during the course of the Board’s investigation of the underlying unfair labor practice charge. In identifying the factors considered in discharging Stanhope, Manderson’s affidavit referred to Stanhope’s “[getting] in [Adams’] failure to supply a written statement, his use of profanity in the incident with Adams, and Adams’ distress over the incident. Manderson acknowledged, in an affidavit ad- mitted into evidence, that he could not distinguish among the factors by assigning them specific weight or by stat- ing whether any one factor alone justified Stanhope’s discharge. Manderson also acknowledged that Stanhope would not have been terminated on March 17 had he provided a written statement or answered Manderson’s questions orally, as requested. There is no evidence that Stanhope had a prior disci- plinary record. The record does, however, reflect dis- charges of several other employees who, the Respondent argued, had engaged in misconduct similar to that attrib- uted to Stanhope in connection with the Adams incident. The General Counsel offered rebuttal evidence that all but two of those employees had engaged in prior mis- conduct of the same sort before being discharged, and were not terminated immediately for a single incident. (Co-Manager Munsell, notably, testified that an em- ployee’s use of profanity did not always precipitate dis- charge.) The General Counsel also introduced evidence concerning three employees who were disciplined, but not discharged, for assertedly similar misconduct.14 The Respondent was not permitted to call witnesses to ad- dress those disciplinary incidents.15 In his original deci- sion, the judge stated that he could not find: that Stanhope’s alleged misconduct differed in degree so substantially from similar acts of misconduct, which did not result in immediate discharge, to conclude that, rather than disciplining him with a lesser degree of dis- cipline, Respondent would have immediately termi- nated [Stanhope] notwithstanding its unlawful motiva- tion. face,” Adams’ adverse reaction to Stanhope’s conduct, Stanhope’s use of foul language, Stanhope’s lack of cooperation, and Stanhope’s fail- ure to supply a written statement. In his affidavit, Manderson stated that he could not distinguish among the individual factors by giving them a specific weight or answer whether any one factor merited Stan- hope’s discharge. Following a series of questions concerning the affidavit, Manderson was asked “[B]y insisting upon having a witness and not providing anything without it . . . was that [Stanhope’s] refusal to cooperate with the investigation?” Hearing Tr., vol. I, p. 113. Manderson replied, “That was part of it.” Id. 14 The evidence involving the discipline of employees other than Stanhope is described in the judge’s original decision. 343 NLRB at 1294. 15 343 NLRB at 1294 fn. 28. As we explain below, the judge’s re- fusal to permit the Respondent to introduce this evidence was, at worst, harmless error. WAL-MART STORES, INC. 133 Id. at 1297. In his supplemental decision, the judge simi- larly did not find evidence related to the discipline of other employees persuasive. III. We understand the judge, in his supplemental decision on remand, to have found, as a factual matter, that the Respondent would not have discharged Stanhope, had he not refused to participate in the investigatory interview of the Adams incident. The record here, in any case, sup- ports such a finding. Stanhope’s refusal to participate, as explained, was statutorily protected activity at that time, under Epilepsy Foundation. This case accordingly turns on whether the Board’s subsequent IBM decision should be applied retroactively. In reaching our answer to that question, we first analyze the case as if Epilepsy Founda- tion were controlling. Under the Wright Line framework, where a discharge is allegedly predicated on an employee’s protected insis- tence on his Weingarten right to a witness, the General Counsel must first establish that the employee’s pro- tected activity was a motivating factor in the employer’s discharge decision. The burden of proof then shifts to the employer to establish that it would have taken the same action for legitimate reasons, absent the employee’s pro- tected conduct. Safeway Stores, 303 NLRB 989, 995 (1991).16 Here, the record is clear that Stanhope first requested the presence of a witness at an investigatory interview that he reasonably believed could lead to discipline and that he then refused to participate in the interview when his request was denied. Stanhope’s actions were pro- tected in their entirety under Epilepsy Foundation and in part (the request for a witness) under IBM, as well. The testimony of Co-Manager Manderson, in turn, establishes that Stanhope’s protected activity was a substantial moti- vating factor in the decision to discharge him. As de- scribed, Manderson acknowledged that Stanhope’s re- fusal to cooperate with the investigation was a factor in his discharge and that this refusal included Stanhope’s continuing insistence on a witness. Thus, the burden shifted to the Respondent to prove that it would have discharged Stanhope when it did, re- gardless of his protected activity. On the record here, the Respondent has failed to carry its burden. To begin, the admissions of Co-Manager Manderson create a serious obstacle for the Respondent’s defense. 16 Cf. Sodexho Marriott Services, 335 NLRB 538, 540–541 (2001) (finding discharge unlawful where employee was discharged specifi- cally for remaining silent after asserting Epilepsy Foundation right to witness). As explained, Manderson admitted that he could not dis- tinguish among the factors that led to Stanhope’s dis- charge—including his request for a witness and his re- fusal to participate in the investigatory interview without one—by assigning them specific weight or by stating whether any one factor alone justified Stanhope’s dis- charge. Tellingly, Manderson also acknowledged that Stanhope would not have been terminated on March 17 had he answered Manderson’s questions orally, as re- quested. Manderson’s admissions, then, strongly support the conclusion that Stanhope’s protected conduct was inextricably intertwined with the other reasons for his discharge, proffered by the Respondent. The Respondent argues that Stanhope would have been discharged in any case, based on his misconduct toward Adams and its effect on her, as reported to the Respon- dent’s managers. The Respondent emphasizes that, as a result of Stanhope’s refusal to provide his own version of the Adams incident, it had only her account to go on.17 Stanhope’s discharge, the Respondent argues in turn, was consistent with its response to similar types of employee misconduct. We are not persuaded, particularly in light of Mander- son’s admissions. “[T]o establish [its] affirmative de- fense [under Wright Line], ‘[a]n employer cannot simply present a legitimate reason for its action but must per- suade by a preponderance of the evidence that the same action would have taken place even in the absence of protected activity.’” Weldon, Williams & Lick, Inc., 348 NLRB 822, 826 (2006), quoting W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).18 We accept the judge’s finding—despite his own, flat refusal to credit Adams—that the Respondent genuinely accepted Adams’ first written statement as accurately recounting the incident with Stanhope. What Adams described was a single encounter, during which Stanhope urged her to support a union and used two profane 17 The Respondent does not argue that Stanhope’s refusal to provide a written statement was itself an act of insubordination. Rather, it cites the refusal as amounting to a failure to rebut Adams’ accusations. We would be reluctant, in any case, to effectively hold Stanhope’s silence against him, in the context of a denial of his Epilepsy Foundation rights. See Sodexho Marriott Services, supra, 335 NLRB at 540–541 (rejecting employer’s argument that employee’s refusal to answer ques- tion during investigatory interview was refusal to obey work order). 18 We read the judge’s supplemental decision to say that, treating Stanhope’s refusal to participate in the investigatory interview as un- protected, the Respondent (in the judge’s words) had “established that it would have discharged Stanhope notwithstanding his act of request- ing an independent witness.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134 phrases to criticize the Respondent’s management (“all f–ken [sic] pricks” who would “f–ken [sic] lie to your face”). There was no claim that Stanhope ever touched Adams or that he intended to harass or intimidate her in any way (whatever the effect of his actions might have been). None of Stanhope’s words or conduct betrayed any animosity toward Adams; indeed, Stanhope ex- pressed solicitude toward Adams’ father. Nor is there any claim that Adams ever verbally communicated to Stanhope that his attempt to persuade her to support a union, or his criticisms of management, were unwel- come. For Manderson to describe this incident as creat- ing a “hostile work environment”—the phrase he used, along with a reference to Stanhope’s “foul language,” in telling Stanhope that he was fired—was, by any reason- able standard, an exaggeration, which raises some doubt about the Respondent’s professed motives. The issue, however, is not whether the Respondent acted reasonably in discharging Stanhope: an employer lawfully could maintain a very strict policy against the use of workplace profanity or against conduct that upsets a coworker, at least if that conduct is not protected by the Act.19 The issue, rather, is whether the Respondent would have taken the same action, even if Stanhope had not engaged in protected activity. The Respondent points to evidence of disciplinary action taken against other employees as showing that Stanhope would, in- deed, have been fired. That evidence, however, does not tip the balance here. Only two of the cited cases in- volved employees (Brian Serjeant and Steven Humphries) who, like Stanhope, were terminated for a first offense. One case (Serjeant) involved a discharge for insubordination towards a supervisor, which included profanity; the other (Humphries) was based on “inappro- priate language and suggestive remarks toward another person.” Neither case closely resembles Stanhope’s situation: Adams was a fellow employee, not a supervi- sor, and Stanhope’s words, in context, had no sexual overtones. And, as noted, Co-Manager Munsell admitted that the use of profanity was not automatic grounds for 19 The General Counsel does not argue before the Board that Stan- hope’s conduct toward Adams was protected under the Act, despite the fact that Stanhope sought to elicit Adams’ support for a union. We accordingly do not pass on that issue. As a general matter, attempts to enlist a coworker’s support for a union are protected under Sec. 7 of the Act, but such efforts may lose the protection of the Act, if improper (e.g., coercive) means are used. See generally Ryder Truck Rental, 341 NLRB 761, 761 (2004) (“It is well settled that the Act allows employ- ees to engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.”). discharge.20 Nor is the nature of Stanhope’s conduct so clearly egregious that discipline would seem inevitable, even without prior disciplinary precedent. In sum, under Epilepsy Foundation, the record sup- ports a finding that Stanhope’s discharge was unlawful. IV. We turn, finally, to the question of whether, with re- spect to Stanhope’s discharge, we should apply the Board’s decision in IBM retroactively or instead should treat Epilepsy Foundation as the governing law. The Board has recently summarized its traditional approach to the issue of retroactivity: Under Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 203 (1947), the pro- priety of retroactive application is determined by balancing any ill effects of retroactivity against “the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.” . . . . Pursuant to this principle, the Board has stated that it will apply an arguably new rule retroactively to the parties in the case in which the new rule is an- nounced and to parties in other cases pending at that time so long as this does not work a “manifest injus- tice.” . . . . In determining whether the retroactive applica- tion of a Board rule will cause manifest injustice, the Board will consider the reliance of the parties on preexisting law, the effect of retroactivity on accom- plishment of the purposes of the Act, and any par- ticular injustice arising from retroactive application. SNE Enterprises, 344 NLRB 673, 673 (2005) (citations omitted). We agree with the General Counsel and the Charging Party that, consistent with the Board’s traditional ap- proach to such questions, retroactive application of IBM in the circumstances of this case would cause “manifest injustice.” Accordingly, we grant the Charging Party’s motion for reconsideration in this respect. A. First, we examine the “reliance of the parties on preex- isting law.” SNE Enterprises, supra at 673. 20 In finding that the Respondent failed to carry its rebuttal burden, we do not rely on three incidents cited by the General Counsel (involv- ing employees Beatty, Estes, and Young), in which the Respondent issued discipline short of termination for conduct arguably similar to Stanhope’s. Thus, the judge’s refusal to permit the Respondent to call witnesses to address these incidents was, at most, harmless error. WAL-MART STORES, INC. 135 When he requested a witness and refused to participate in the investigatory interview without one, Stanhope did not refer to Epilepsy Foundation by name, nor did he explicitly invoke his rights under the National Labor Re- lations Act. Nevertheless, we have little difficulty in inferring that Stanhope relied on Epilepsy Foundation (to his detriment, as we have seen).21 It is hard to imagine why Stanhope, an at-will em- ployee unrepresented by a union, would have insisted on a witness in an investigatory interview conducted by his employer, unless he believed that he had a legal right to do so. As the judge stated in his supplemental decision (fn. 10), it is doubtful “that Stanhope would have placed his job at risk on two occasions unless he understood the then current state of Board law and was relying on it for protection.” For their part, as the hearing testimony reflects, the Respondent’s managers were aware of Epilepsy Founda- tion. The Respondent had a written policy for dealing with employees who sought to exercise their Epilepsy Foundation rights, which is part of the record here.22 Most important, Co-Manager Munsell explicitly told Stanhope that he had the right to request a witness and that the Respondent had the right to deny his request.23 It seems clear, then, that employees and managers in the Respondent’s workplace were aware of their Epilepsy Foundation rights and responsibilities. Stanhope’s insis- tence on a witness, we find, was an invocation of those rights, and not some random demand. 21 Stanhope’s reliance on Epilepsy Foundation was not an issue in the proceedings before the judge. We did not remand the question of retroactivity to the judge. 22 The Respondent’s policy statement refers to an Internet website sponsored by the Charging Party and directed at the Respondent’s employees, advising employees of their Epilepsy Foundation rights. In this connection, we note the existence of an apparent effort by the Charging Party in this case to publicize the existence of Epilepsy Foun- dation rights among at least some of the Respondent’s employees. See Sam’s Club, 349 NLRB 1007, 1010–1011 (2007) (discussing employer rule prohibiting employees from wearing “badge backers” with state- ment of Epilepsy Foundation rights). 23 This was a correct statement of the law, assuming that Munsell meant that the Respondent could lawfully deny the request, if it then terminated the interview. See Weingarten, supra, 420 U.S. at 258–259. Our dissenting colleague states that there is no evidence of Stanhope’s reliance on Epilepsy. He surmises that Munsell incorrectly conveyed to Stanhope that the Respondent had a right to deny his request without discontinuing the interview and that Stanhope would have corrected her had he been knowledgeable about his rights. Yet, our colleague ac- knowledges that Manderson “clarif[ied]” that the investigation would proceed without Stanhope if he continued to insist on a witness. In our view, Stanhope’s repeated insistence on a witness over the course of 2 days is sufficient circumstantial evidence that he was aware he had such a right, even if he did not appreciate the fine points of that right. The facts here distinguish this case from Epilepsy Foundation itself, in which the Board chose to apply its decision retroactively and found that the employer had violated the Act in discharging an employee. There, we found “no evidence in the record even remotely suggest- ing that the [employer] was relying on the state of Board law when it decided to take action against” the employee. 331 NLRB at 679.24 B. We next consider the “effect of retroactivity on ac- complishment of the purposes of the Act.” SNE Enter- prises, supra at 673. In our view, this factor does not favor retroactivity here. The Board’s decision in IBM regarded Epilepsy Foun- dation as reflecting a “permissible interpretation” of the Act, and thus the Board’s choice to withdraw Weingarten rights from unrepresented employees was purely a “mat- ter of policy.” 341 NLRB at 1289. Declining to apply IBM retroactively, then, would have, at most, a marginal effect on accomplishing the Act’s purposes, because the Act permits the opposite legal rule. Under the circumstances of this case, moreover, the purposes of the Act might well be frustrated by retroac- tive application of IBM, which could discourage employ- ees from exercising their statutory rights (as articulated by the Board), for fear that the Board might later cut back on statutory protections and leave employees ex- posed to employer reprisals. Similarly, finding retroactiv- ity here might encourage employers to violate the Act (as interpreted by the Board at the time), in hopes that the Board will reverse itself in the relatively near future and apply its new rule to the employers’ benefit.25 24 The United States Court of Appeals for the District of Columbia Circuit disagreed with the Board on this point, finding that the “em- ployer obviously acted in conformity with the prevailing law.” Epi- lepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir. 2001) (declining to enforce Board’s decision on retroactiv- ity). 25 In this respect, too, this case differs from Epilepsy Foundation. There, retroactive application of the decision effectively protected an employee’s assertion of a statutory right that, at the time, he did not possess. But the employee’s conduct was not a statutory unfair labor practice, and thus finding retroactivity did not create an incentive to violate the Act (as it would here). Correspondingly, while the prospect of retroactive application of a decision establishing a new right for employees might discourage em- ployers from exercising a lawful managerial prerogative, such a pre- rogative is not a matter of statutory right. In short, because Sec. 7 establishes employee rights, not employer rights, employees and employers stand in different positions under the Act. To hold, as we do here, that the Board’s retroactivity analysis properly takes those different positions into account does not—despite the dissent’s insistence—create an improper double standard. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136 C. Finally, we consider whether any “particular injustice” would arise from retroactive application of IBM. SNE Enterprises, supra at 673. We find just such an injustice here. As we have suggested, applying IBM retroactively would effectively permit the Respondent to punish Stan- hope for relying on his then-existing rights under the Act, as interpreted by the Board in Epilepsy Foundation. That result is unjust, and it weighs heavily against retroactiv- ity.26 Requiring the Respondent to rescind Stanhope’s dis- charge and to reinstate him, meanwhile, does not preju- dice any legitimate managerial interest here. The Re- spondent’s actions violated the law in effect at the time, and the evidence does not suggest that the Respondent was ignorant of the law—just the opposite. As for rein- stating Stanhope, we must recall that the judge discred- ited Adams’ account of the underlying incident on which the Respondent ostensibly based Stanhope’s discharge. Thus, the judge found no credible evidence that Stanhope engaged in any misconduct at all, whatever the Respon- dent might have believed at the time. The harm to Stan- hope—the loss of his job, for invoking his statutory rights—caused by retroactivity is not counterbalanced by harm to the Respondent’s legitimate managerial interests flowing from our adherence to prior law.27 D. Weighing the relevant factors, then, we conclude that retroactive application of IBM would lead to a manifest injustice. That conclusion compels us to grant the Charging Party’s motion for reconsideration, which re- quires a showing of “extraordinary circumstances” under Section 102.48(d)(1) of the Board’s Rules and Regula- tions. Insofar as our remand decision held—without providing any analysis—that IBM was controlling here, it reflected a “material error” within the meaning of Sec- tion 102.48(d)(1), warranting reconsideration. See gen- erally Desert Aggregates, 340 NLRB 1389 (2003). Under the circumstances here, we do not share the dis- sent’s concerns that reconsideration undermines the Board’s general interest in the finality of its decisions.28 26 Cf. Levitz Furniture Co. of the Pacific, 333 NLRB 717, 729 (2001) (rejecting retroactive application of new rule limiting circum- stances in which employers may unilaterally withdraw recognition from unions). 27 Cf. Epilepsy Foundation, supra, 331 NLRB at 680 (citing em- ployer’s other 8(a)(1) violations in concluding that retroactive applica- tion of new rule to find violation was proper). 28 The remand decision did not finally decide the retroactivity issue with respect to Stanhope’s discharge; rather, the judge was asked to Nor, for reasons already explained, do we agree that Epi- lepsy Foundation’s holding on retroactivity supports ret- roactive application of IBM in the particular circum- stances of this case. Although the underlying statutory issue is the same (i.e., whether Weingarten rights should be available to nonunionized employees), the factors governing retroactivity lead to a different result on the facts of this case. V. In sum, we find that the Board’s decision in Epilepsy Foundation is controlling here. Under that decision, the Respondent’s discharge of employee Stanhope violated Section 8(a)(1) of the Act. We will therefore order the appropriate relief. See Epilepsy Foundation, supra, 331 NLRB at 680 fn. 14. ORDER The National Labor Relations Board orders that the Respondent, Wal-Mart Stores, Inc., Wasilla, Alaska, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees for engaging in protected concerted activities. (b) In any like or related manner interfering with, re- straining, 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 effectuate the policies of the Act. (a) Within 14 days of the date of this Order, offer Kenneth Stanhope full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges. (b) Make Kenneth Stanhope whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter- est computed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter notify Stanhope in writing that this has been done and that the discharge will not be used against him in any way. clarify the basis for his original holding that the discharge was unlaw- ful. The judge’s supplemental decision on remand, as we have ex- plained, squarely presented the retroactivity issue to the Board, by demonstrating that the legality of Stanhope’s discharge actually turned on the issue. Our decision today, then, represents the first fully articu- lated consideration of the question by the Board. WAL-MART STORES, INC. 137 (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Wasilla, Alaska, copies of the attached no- tice marked “Appendix.”29 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent 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 Respon- dent 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 involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since March 17, 2001. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. CHAIRMAN BATTISTA, dissenting. In finding a violation, my colleagues have overturned a prior holding of the Board and have disavowed another. I would not do so, and thus I would find no violation. In its prior decision in this case, the Board found that the Respondent did not violate Section 8(a)(1) of the Act by refusing to allow employee Kenneth Stanhope to have a coworker present during an investigatory interview.1 In doing so, the Board retroactively applied IBM Corp., 341 NLRB 1288 (2004), which had reversed Epilepsy Foun- dation,2 and held that the Weingarten3 right does not ex- 29 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 Wal-Mart Stores, 343 NLRB 1287 (2004). 2 331 NLRB 676 (1988), enfd. in relevant part 268 F. 3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002). In that case, the Board overruled E .I. DuPont & Co., 289 NLRB 627 (1988), and extended the tend to a nonunion workplace. Accordingly, the Board reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(1) by denying Stan- hope’s request for the presence of a coworker. However, the Board did not decide another issue in this case, whether Stanhope was discharged for simply asking for the assistance of a coemployee. Rather, the Board re- manded this issue to the judge to clarify whether the Re- spondent’s decision to discharge Stanhope was motivated by Stanhope’s March 16, 20014 request for a witness, as distinguished from Stanhope’s March 17 refusal to attend the investigatory interview. If the Respondent discharged Stanhope for simply requesting the assistance of another employee, there might well be a violation on the theory that one employee’s request for the aid of another is con- certed protected activity. On the other hand, if the Re- spondent discharged Stanhope for refusing to attend the interview without such assistance, there would not be a violation. For, under a retroactive application of IBM, there was no right to such assistance. The Charging Party moved for reconsideration of the retroactive application of IBM to this case. It argued that the retroactive application created a manifest injustice. The Board chose not to rule on the motion as it applies to Stanhope’s discharge. Rather, it held the motion in abeyance. That is, if the remanded portion of the case resulted in a finding that Stanhope was fired for making the request, there would be no need to resolve the retro- activity issue. On remand, the judge found no violation. He found that the Respondent discharged Stanhope for refusing to attend the interview without assistance, as distinguished from a discharge for asking for assistance. Thus, the issue is whether a discharge for refusing to attend the meeting without assistance was unlawful. Under IBM, it would not be unlawful. For, under IBM, there is no right to assistance. My colleagues avoid this result by refusing to apply IBM retroactively. Their conclusion cannot stand. As noted above, the Board decided, in its initial decision, to apply IBM retro- actively. Indeed, that holding was the reason for the Charging Party’s motion for reconsideration. Under Section 102.48(d)(1), a party may move for re- consideration based on “extraordinary circumstances.” There is no such showing here. There is simply a change of mind as to the appropriateness of retroactivity. Weingarten right to nonunion workplaces, affording such employees the right to have a coworker present during an investigatory interview which they reasonably believe could result in discipline. 3 NLRB v. J. Weingarten, 420 U.S. 251 (1975). 4 All dates are in 2001, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138 Clearly, a mere change of mind is not an “extraordinary circumstance” warranting reconsideration. Section 102.48 (d)(1) sets the bar at the very high level of “ex- traordinary circumstance” in order to achieve the socially desirable goal of finality. My colleagues say that a “material error” in an original decision is an “extraordinary circumstance” warranting a reconsideration of that decision. However, the claimed “material error” here is simply the contention that the Board should not have applied IBM retroactively to the facts in this case. Surely, a movant’s mere disagreement with an original decision is not a basis for taking the “ex- traordinary” step of reconsideration. If that were the case, a losing party could always obtain reconsideration, and the decisional process would be endless. Desert Aggregates, 340 NLRB 1389 (2003), cited by the majority, is clearly distinguishable. In that case, the Board’s original decision did not deal at all with the General Counsel’s contention that the employer’s offer of reinstatement was invalid. Thus, the General Counsel sought reconsideration, the respondent did not oppose, and the Board granted the motion. By contrast, the Board applied IBM retroactively to this case, and the Respondent opposes reconsideration. My colleagues’ response to the above is that, under the tests for retroactivity, there should be no retroactive appli- cation of IBM here. However, that is not the issue. The issue is whether there are “extraordinary circumstances” warranting a re-examination of the prior holding to apply IBM retroactively to the facts in this case. As discussed above, a change of mind is not sufficient to constitute an “extraordinary circumstance” within the intendment of the rule. In addition, the Board’s original decision was quite con- sistent with the Board’s principles on retroactivity. The Board’s usual practice is to apply new policies and stan- dards retroactively “to all pending cases in whatever stage.” See Aramark School Services, 337 NLRB 1063 fn. 1 (2002) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)); see also SNE Enterprises, 344 NLRB 673 (2005), where the Board retroactively applied its new Harborside rule (Harborside Healthcare, Inc., 343 NLRB 906 (2004)). Indeed, the Board applied this princi- ple when the shoe was on the other foot in Epilepsy, and the party seeking to avoid retroactivity was the employer. Apart from this fact, that case is indistinguishable as it relates to the retroactivity analysis. In Epilepsy, the employer discharged employee Arnis Borgs after he refused to attend an investigatory interview without a representative. Under Board law at that time, employees in nonunion workplaces did not have the right to a representative during an investigatory interview that the employee reasonably believed could result in disci- pline. Sears, Roebuck & Co., 274 NLRB 230 (1985), modified by E. I. DuPont & Co., above. Other than the fact that the employer’s actions were in accordance with applicable Board precedent, there was no evidence that the employer knew what the law allowed, much less relied on that precedent. In determining that the new rule should be applied retroactively in that case, the Board determined from the applicable facts that there was “no evidence in the record even remotely suggesting that the Respondent was relying on the state of Board law when it decided to take action against Borgs.” Epilepsy, 331 NLRB at 679. Similarly, in this case, other than the fact that Stanhope acted consistently with the applicable Board precedent, there is no evidence that Stanhope acted in reliance on that law. There is simply no testimony or documentary evi- dence establishing his knowledge of the rights enunciated in Epilepsy. If anything, the facts point in the opposite direction. The record shows that the Respondent’s co- manager, Marlene Munsell, told Stanhope that she had the right to deny his request for a witness (without discontinu- ing the interview). Although Munsell’s statement sug- gested an incorrect view of the law under Epilepsy, Stan- hope said nothing in response. Common sense suggests that, had Stanhope understood his rights under Epilepsy, he would have told Munsell she had no right to deny his request. However, Stanhope said nothing and the Respon- dent’s co-manager, Bruce Manderson, was left to clarify that the investigation would proceed without Stanhope’s input if he continued to insist on a witness. Therefore, the obvious conclusion from these facts is that Stanhope did not act in reliance on preexisting law. The majority states that it is unimaginable that Stanhope would have risked his job unless he knew he had a right to a witness under Epilepsy. This is pure speculation. Fur- ther, it could just as easily have been said in Epilepsy that there was no basis to believe that the employer there would have knowingly risked legal proceedings, rein- statement, and backpay unless it knew it had the right to discharge Borgs under Board law. The majority further infers Stanhope’s knowledge of the law from the fact that the Respondent had a policy in place to respond to employees who exercised their Epilepsy rights, and because the Charging Party Union was posting information about Epilepsy on the internet. However, this too is speculation, and does not demonstrate that Stanhope, as opposed to the Respondent and the Union, knew the parameters of Board law.5 5 The majority’s inferences about Stanhope’s reliance on then- existing law are speculative, as shown by their own acknowledgement WAL-MART STORES, INC. 139 Also unsupportable is the majority’s statement that “employees and managers in the Respondent’s workplace were aware of their Epilepsy Foundation rights and re- sponsibilities.” The only supporting evidence is the fact that Stanhope’s actions were consistent with the rights he would have had under Epilepsy. Clearly, if acting consis- tent with Board law was insufficient to demonstrate reli- ance on that law in Epilepsy, Stanhope’s conduct, without more, must similarly fail in this case. Concerning the effect on the purpose of the law, the ap- plication of IBM here would effectuate the careful balance the Board has struck between the right of a nonunionized employee to request the presence of a coworker at an in- vestigatory interview, and the right of an employer in such circumstances to choose not to have another employee in attendance. Failing to apply it here frustrates the Board’s effectuation of that policy. Concededly, in Epilepsy, the Board stated that it would promote the purposes of the law by applying that rule retroactively. However, both deci- sions are permissible interpretations of the Act, and thus it can reasonably be said that the purposes of both policies would be served by their retroactive applications.6 Lastly, there is no particular injustice in applying IBM here. Al- lowing Stanhope’s discharge to stand does not amount to a great injustice, particularly in the absence of evidence that he was specifically relying on the protections afforded by Epilepsy at that time. In any event, it certainly is no more unjust than the Epilepsy Board saddling an employer with reinstatement and backpay for conduct deemed lawful under then-existing precedent. Finally, the majority has summarily concluded that Epi- lepsy is distinguishable. Their failure to articulate how it is distinguishable does not constitute reasoned decision- making.7 that “Stanhope’s reliance on Epilepsy Foundation was not an issue in the proceedings before the judge.” 6 The majority states in support that although the retroactive applica- tion in Epilepsy protected an employee’s assertion of a right he did not possess, it did not create an incentive for employees to violate the Act. Conversely, according to the majority, a retroactive application here would encourage employers to violate the Act. Preliminarily, the ma- jority’s distinction based on whether there will be an “incentive” to violate the law is inapposite because the issue is whether to apply a new rule to historical conduct that cannot be encouraged or discouraged. More importantly, taken to its logical conclusion, the majority’s argu- ment calls for differing standards depending on whether employees or employers are adversely affected by the retroactive application of the new rule. However, the majority cites no cases in support of differing standards for retroactivity. Indeed, the Board’s retroactivity standard clearly does not endorse a result-oriented approach. Rather, the stan- dard neutrally inquires whether the retroactive application would result in manifest injustice. 7 See SEC v. Chenery Corp., 332 US 194, 196–197 (1947) (“It will not do for a court to be compelled to guess at the theory underlying an In sum, my colleagues, in a single case, have overruled the Board’s prior decision in Wal-Mart, and have, in es- sence, disavowed the Board’s decision in Epilepsy. In doing so, they have demonstrated neither “extraordinary circumstances” warranting reconsideration nor a sound basis for departing (twice) from precedent. Accordingly, I dissent. 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 violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Kenneth Stanhope full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Kenneth Stanhope whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Kenneth Stanhope, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. WAL-MART STORES, INC. agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 140 S. Nia Renei Cottrell, Esq., for the General Counsel. Paul M. Ostroff, Esq. (Lane, Powell, Spears, Lubersky, LLP), of Portland, Oregon, for the Respondent. George Wiszynski, Esq., Assistant General Counsel, of Wash- ington, D.C., for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. The Regional Director for Region 19 of the National Labor Relations Board (the Board) issued the complaint in this matter, alleging that Wal-Mart Stores, Inc. (Respondent) had engaged in acts and conduct violative of Section 8(a)(1) of the National Labor Rela- tions Act on April 29, 2002. I presided at the trial on the merits of the allegations of the complaint on June 27 and 28, 2002, in Anchorage, Alaska, and, on November 8, 2002, based on the Board’s decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002), issued my decision, finding that Respondent had engaged in violations of Section 8(a)(1) of the Act by requiring an employee, Ken Stan- hope, who had a reasonable belief that the matters to be dis- cussed may have resulted in discipline against him, to continue to participate in an investigatory interview after it had denied his request for the presence of his own witness and by discharg- ing employee Stanhope. Subsequently, on December 16, 2004, the Board issued its decision in this matter and, based on its recent decision in IBM Corp., 341 NLRB 1288 (2004), reversed my finding of a violation of Section 8(a)(1) of the Act with regard to Respondent’s conduct of requiring Stanhope to con- tinue to participate in an investigatory interview, which he be- lieved might result in discipline against him, after denying his request for the presence of an employee witnesses and, with regard to the discharge of Stanhope, remanded the matter to me to clarify whether I found that Respondent discharged him for requesting a witness on March 16, 2001, or for refusing to par- ticipate in an investigatory interview without the presence of an employee witness on March 17.1 FINDINGS OF FACT In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court held that an employer violates Section 8(a)(1) of the Act by denying an employee’s request that his union representative be present during an investigatory interview, which the employee reasonably believes might result in disciplinary action against him. Subsequently, in Materials Research Corp., 262 NLRB 1010 (1982), the Board concluded that, in a nonunion setting, employees were entitled to the same rights, enunciated by the Supreme Court in J. Weingarten, as employees who are repre- sented by a union; however, in Sears, Roebuck & Co., 274 NLRB 1 On January 24, 2005, counsel for the Charging Party filed a motion for reconsideration with the Board, and, on August 2, the latter denied it in part and, in part, held the motion in abeyance to the extent that it concerned retroactive application of IBM Corp. to the matter of Stan- hope’s discharge. The Board was silent as to whether I should com- ment on this issue. 230 (1985), the Board reversed itself, holding that the Act com- pelled the conclusion that the Weingarten principles do not apply in circumstances where there is no recognized or certified labor organization. Thereafter, in E. I. DuPont & Co., 289 NLRB 627 (1988), the Board overruled Sears, Roebuck & Co., concluding that the Act does not compel a conclusion that Weingarten rights do not apply in a nonunion workplace; rather, “the refusal to extend Weingarten to the nonunionized workplace was a permis- sible interpretation of the Act, and . . . adopting this interpretation was supported by significant policy considerations.” IBM Corp., supra, at 1288. Then, in Epilepsy Foundation of Northeast Ohio, supra at 679, the Board overruled E. I. DuPont & Co. and reinsti- tuted the standard set forth in Materials Research Corp., stating “that the rule enunciated in Weingarten applies to employees not represented by a union as well as to those that are.” Finally, in IBM Corp., the Board again reversed itself, stating “the policy consideration supporting that decision do not warrant particularly at this time” as “in recent years there have been many changes in the workplace environment, including ever-increasing require- ments to conduct workplace investigations, as well as new secu- rity concerns raised by incidents of national and workplace vio- lence.” Id. at 1289. Continuing, the Board held that in the non- unionized setting while an employee retains a Section 7 right to request the presence of a coworker during an investigatory inter- view, which the employee reasonably believes might result in discipline against him, and cannot be disciplined for asserting that right, the employer has no obligation to accede to the re- quest. Id. at 1295.2 In my underlying decision, I noted that two management rep- resentatives, Marlene Munsell, the store manager of Respon- dent’s retail department store in Wasilla, Alaska, and Bruce Manderson, the co-manager, testified at the trial. Based on their respective, uncontroverted testimony, I found that, on March 16, investigating allegations made by employee Cynthia Adams regarding a confrontation between Stanhope and her on March 10, the two management representatives met with Stanhope in order to obtain his version of the incident; that at the outset of the meeting Stanhope demanded that he be permitted to have his own 2 The foregoing history of Board decisions on the issue of the exten- sion of the Weingarten right to the nonunion workplace disconcertedly demonstrates that the Board has ruled and reversed itself no less than five times in just 24 years. In a legal setting which requires settled principles of law rather than partisan homily, practitioners, employers and labor organizations, Board personnel, including its administrative law judges, and the general public, including union-represented and nonunion employees, have not been well served by this ever changing case law. Rather than being based on some innovative or insightful analysis of the Act, these reversals of approach appear to be wholly dependent on the differing Board majorities. Moreover, that the legal analysis in each case is obviously well reasoned adds to the confusion, with the deplorable result being employers inconversantly engaging in unfair labor practices and nonunion employees unknowingly losing the protection of the Act or, worse, their jobs. What is required, of course, is clarity as to this aspect of Board law and adherence to the principle of stare decisions by Board members no matter the result. WAL-MART STORES, INC. 141 witness present during the interview;3 that Munsell denied his request;4 that Respondent’s representatives then continued the interview; but, after some verbal sparring, they abruptly termi- nated the meeting, sending Stanhope home for the remainder of the day with instructions to prepare a written statement of his recollection of the incident; and that, subsequent to the aborted meeting upon speaking to a company personnel manager, Manderson and Munsell decided that if Stanhope failed to pro- vide the requested statement they would make a decision on Adams’ allegations based on information previously gathered. I further found that, on March 17, Manderson approached Stan- hope at the store and requested that the latter follow him to an office; that Stanhope responded that unless he was permitted to have a witness present he would refuse to meet with Manderson; that Manderson refused to accede to Stanhope’s condition and said their meeting had to be private; that Stanhope again said he refused to meet with the facility’s co-manager unless a witness was present; that Manderson asked if Stanhope had prepared a written account of his confrontation with Adams and the em- ployee said, no; that Manderson responded, in those circum- stances, he would have to conclude the investigation without Stanhope’s input; and that, thereupon, Manderson told Stanhope he was terminated. Finally, I found that Manderson listed four factors as underlying Respondent’s decision to terminate Stan- hope—his refusal to cooperate in the investigation of Adams’ allegations and his refusal to provide a statement, Adams becom- ing distraught over what occurred during her alleged confronta- tion with Stanhope, and the latter’s use of profanity during said incident. When asked if Stanhope insisting upon having a wit- ness present and not providing anything without a witness present comprised his failure to cooperate, Manderson admitted “that was part of it”5 and conceded he could not distinguish between the weight Respondent accorded each of the foregoing factors in deciding to terminate Stanhope. Accordingly, as, during the investigatory interview on March 16, Stanhope requested the presence of an independent witness, as Store Co-Manager Manderson admitted Stanhope’s refusal to cooperate in the inves- tigation of Adams’ allegations was a factor in Respondent’s dis- charge decision and Stanhope’s insistence on the presence of a witness “was a part of it,” and as the Board concluded, in IBM Corp., supra, that a nonunion employee has a Section 7 right to request the presence of a fellow employee during an investigatory interview which, he reasonably believes, might result in disci- pline against him and can not be disciplined for asserting said 3 In accord with counsel for Respondent’s concession, the Board ap- parently agreed that by demanding the presence of a witness Stanhope thereby invoked his Weingarten right. 4 That Respondent viewed Stanhope’s demand for a witness as an act of insubordination and reacted with reprobation is clear as Manderson immediately reacted by threatening Stanhope that, if he persisted in demanding a witness, Respondent would send him home for the re- mainder of the day and continue the investigation without his input. As I noted in my initial decision, sending an employee home for the day is the last step of Respondent’s progressive disciplinary procedure. 5 According to Manderson, Stanhope’s failure to provide a written account of the alleged incident comprised the other part of his “refusal to cooperate.” right, I reiterate my prior finding that the record evidence estab- lishes that Stanhope’s demand on March 16 for a witness during his investigatory interview was a motivating factor6 in Respon- dent’s decision to discharge him. Pursuant to the Board’s remand, I now must determine, in ac- cord with the burden shifting analysis of Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de- nied 455 U.S.989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), whether Respondent established that it would have discharged Stanhope even absent his demand for the presence of a witness during the March 16 investigatory interview. In this regard, as mentioned above, Store Co-Manager Manderson listed four factors underlying Respon- dent’s decision to discharge Stanhope—his failure to cooperate in the investigation of Adams’ allegations, including not providing a written statement of his version of the incident, his use of profan- ity during the alleged confrontation, and Adams’ distraught reac- tion to what assertedly occurred during the alleged incident. As to Stanhope’s failure to cooperate during the investigation of his encounter with Adams, while Manderson admitted the former’s lack of cooperation included protected activity, his request for an independent witness during the March 16 investigatory interview, it also encompassed unprotected activity including refusing to attend the meeting on March 17 without the presence of a witness and refusing to supply a statement of his recollection of the en- counter with Adams. While Munsell failed to mention Stan- hope’s conduct during the investigation of Adams’ allegations as a reason for the former’s discharge, in accord with Manderson, she did assert Stanhope’s “gross misconduct” during the Adams incident as Respondent’s reason for discharging him.7 Regarding this, while Adams’ written version of the alleged incident and her assertions therein concerning Stanhope’s language, upon which Respondent relied, are of rather dubious validity,8 a surfeit of 6 The Board specifically noted that it was unclear whether I found Stanhope was discharged because he requested a witness on March 16 or because he refused to participate in an investigatory interview on March 17 without the presence of a witness, and I recognize that, pur- suant to IBM Corp., supra, while the former continues to constitute protected Sec. 7 activity, the latter conduct is now unprotected by the Act. However, after careful scrutiny of the record and based on Manderson’s less than precise admission at trial, I think that both what occurred on March 16 and 17 constituted equal motivating factors in Respondent’s decision-making process. 7 She defined Stanhope’s misconduct as causing Adams to feel in- timidated, invading her space, use of foul language, and causing emo- tional distress severe enough so as to interfere with Adams’ ability to work. 8 A comparison of Cindy Adams’ testimony at trial and her written statement to Respondent, regarding the incident, reveals that the two accounts of her asserted confrontation with Stanhope are utterly incon- sistent and contradictory. Thus, her two versions conflict as to how the conversation began, what was said, and how it concluded. Moreover, I note that, while she recalled Stanhope as being red-faced and flinging his arms about in answering a question from me, she failed to describe Stanhope’s appearance in her account to Manderson. The foregoing convinces me that little, if any, credence should be afforded to Adams’ written or verbal accounts of the alleged March 10 incident, including its occurrence. Nevertheless, the record is clear that she provided a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 142 record evidence exists that Adams appeared to be upset and agitated by Stanhope’s behavior during the alleged incident, and the latter failed to deny the comments attributed to him by Adams. In these circumstances, the question remains—would Respondent have discharged Stanhope absent his invocation of his Section 7 right to request the presence of a witness during the March 16 investigatory interview? On this point, while there exists record evidence that Respondent previously had discharged, at least, eight employees for use of profanity, in- cluding uttering the word “f—k,” in the workplace and for other inappropriate conduct, only two of the eight associates were immediately terminated, with the other six associates initially received lesser levels of discipline for their respective acts of misconduct, including use of the word “f—k.” Never- theless, Respondent asserts that Stanhope’s alleged misconduct was so severe as to warrant immediate discharge. While recog- nizing that not all instances of misconduct are the same and deserve different levels of discipline, given Stanhope’s unpro- tected refusal to meet with Manderson on March 17 without the presence of an independent witness and his failure to provide a written account of his version of the alleged March 10 incident together with Adams’ agitated reaction to whatever occurred during her encounter with Stanhope and the latter’s failure to deny Adams’ allegations of his use of profanity during it, there exists record evidence sufficient to support Respondent’s posi- tion that Stanhope engaged in misconduct warranting immedi- ate discharge.9 Accordingly, I find that, in the foregoing cir- cumstances, Respondent has established that it would have discharged Stanhope notwithstanding his act of requesting an independent witness during the March 16 investigatory inter- view and that, therefore, Respondent engaged in no acts and conduct violative of Section 8(a)(1) of the Act by the discharge. written account of what assertedly occurred to Respondent, and the record establishes that Manderson and Munsell acted on it to the point of seeking Stanhope’s version of what allegedly occurred. Accord- ingly, while not believing it to be reliable or truthful, as Respondent acted on Adams’ written version of an incident, I shall likewise rely on it but only as the precipitating document for what occurred herein. 9 I am cognizant that my findings now contradict those in my origi- nal decision, which was based on the Board’s reasoning and holding in Epilepsy Foundation of Northeast Ohio, supra. In this regard, I empha- size the importance of Stanhope’s March 17 refusal to meet with Manderson in order to discuss Adams’ allegations unless he was able to have a witness present. In my original decision, coupled with his de- mand for a witness on March 16, Stanhope’s then protected act was central to my conclusion that his failure to cooperate in the investiga- tion of Adams’ allegations was a precipitating factor, equal in weight to any other, in Respondent’s decision to discharge him. However, given the reasoning of the Board in IBM Corp., supra, unlike his actions the day before, Stanhope’s March 17 refusal to meet with Manderson with- out the presence of a witness no longer may be considered as being privileged by Sec. 7 of the Act. Consequently, Stanhope’s only pro- tected act, his demand for a witness on March 16, is of reduced signifi- cance as a precipitating factor, and Respondent’s contention that Stan- hope’s March 17 conduct was itself an act of insubordination appears to be meritorious. In fact, one might reasonably argue that it independ- ently may have been of sufficient magnitude so as to justify Respon- dent’s termination of him. CONCLUSIONS OF LAW 1. Stanhope’s demand for the presence of a witness during the March 16 investigatory interview was a motivating factor in Respondent’s decision to discharge him. 2. Even absent Stanhope’s protected activity, Respondent would have terminated him.10 [Recommended Order omitted from publication.] 10 The crux of counsel for the Charging Party’s motion for reconsid- eration is that the Board should not retroactively apply the legal princi- ples of IBM Corp., supra, to the discharge of Stanhope and should adopt the result and remedy, which I set forth in my original decision. In this regard, inasmuch as the Board remanded the matter to me, as, in its Order, dated August 2, 2005, the Board was silent regarding whether I should comment on the matter of retroactivity, as the Board is holding the issue in abeyance pending my decision on remand, and as my re- mand decision is based on the reasoning of the Board in IBM Corp., I respectfully believe it appropriate to address the retroactivity issue. In doing so, I do not recommend any result but, rather, emphasize three points, which I believe the Board should consider in reaching its deci- sion on counsel’s motion. Initially, given my finding that Respondent would have terminated Stanhope notwithstanding his protected act on March 16, one may certainly conclude that the Charging Party’s motion should be easily denied. However, I note that the Board’s reasoning in IBM Corp. is central to my findings on remand, particularly concerning the crucial nature of Stanhope’s March 17 refusal to meet with Mander- son, and, therefore, whether said decision should be retroactively ap- plied to Stanhope’s discharge is a matter of significance. Next, the alleged discriminatee Stanhope did not testify at the trial. Therefore, of course, we have no direct knowledge and can only speculate as to whether, when he requested an independent witness on March 16 and refused to participate in a meeting on March 17 unless permitted to have a witness present, he was aware of the law under Epilepsy Foun- dation of Northeast Ohio, supra. However, the Board views Stanhope’s request for a witness as being tantamount to requesting the presence of a representative on his behalf, and I find it impossible to conceive that Stanhope would have placed his job at risk on two occasions unless he understood the then-current state of Board law and was relying on it for protection. Further, I believe the Board and court decisions in Epilepsy Foundation of Northeast Ohio, which, of course, involved almost the identical fact and legal situation as involved herein, represent clear case precedent for the Board in this matter. Thus, in its decision, in deter- mining whether to retroactively apply its ruling, which, of course, in- volved a changed view of the law regarding the extension of Weingar- ten rights to nonunion employees, to the employer, the Board utilized its longstanding legal analysis for said issue and concluded that doing so would not work a manifest injustice. 331 NLRB at 679. In particu- lar, the Board noted that there existed no evidence that the “employer ever” relied on the existing Board law or that it was at all receptive to the rights of its employees to engage in protected concerted activities. Id. at 679–680. However, inasmuch as the employer acted in confor- mity with the existing Board law and could not have been aware that the Board might change its view of the law, the District of Columbia Circuit refused to enforce the Board’s ruling, regarding retroactive application of the changed law to the employer. The court viewed it as a matter of “equity and fairness” not to apply the changed law to the employer. 268 F.3d 1095 at 1102. Arguably, of course, the same result should attach to Respondent’s discharge of Stanhope. Finally, noting the absence of testimony from Stanhope, it is significant that the court did not require actual knowledge of the law by the employer.