NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Wal-Mart Stores, Inc. and United Food and Commercial 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, unrepresented by a union, who first invoked, and then insisted on, his then-existing right under the Board’s Epilepsy Foundation decision to have a coworker present during an investigatory interview that an employee reasonably believes could result in discipline.[2] As we will explain, we find the discharge unlawful, despite the subsequent 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 pending 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 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 employee 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, however, 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 In an unpublished August 2, 2005 order, we denied the motion for reconsideration as to the denial of Stanhope’s request for a witness.[5] As to Stanhope’s discharge, we held the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 participate in the interview), his discharge would be unlawful under either Epilepsy Foundation or IBM.

On remand, the judge found (in fn. 6 of his supplemental 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
. . . 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 engaged in, under IBM). Consistent with IBM, the judge treated Stanhope’s refusal to participate in the investigatory 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 Stanhope’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 participate in an investigatory interview when his request was denied.

We must therefore consider, under the Board’s established retroactivity standard, whether it would work a “manifest injustice” to apply the new rule of IBM to Stanhope’s discharge. We conclude that retroactive application of IBM would be inappropriate here, and so we grant that part of the Charging Party’s motion for reconsideration 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 entitled 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 Cynthia (Cindy) Adams at the Respondent’s Wasilla, Alaska store.[7] The next day, Adams complained about the incident to her supervisor and later prepared two written statements, at the request of Bruce Manderson, co-manager of the store. The judge declined to credit Adams’ statements for their truth and similarly declined to credit her hearing testimony,[8] but he found that the Respondent 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 exchanging 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 [Stanhope] 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.” Manderson 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 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 employee. 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 another 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 Stanhope 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 incident. 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 investigation 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 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 admitted into evidence, that he could not distinguish among the factors by assigning them specific weight or by stating 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 disciplinary record. The record does, however, reflect discharges of several other employees who, the Respondent argued, had engaged in misconduct similar to that attributed 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 misconduct of the same sort before being discharged, and were not terminated immediately for a single incident. (Co-Manager Munsell, notably, testified that an employee’s use of profanity did not always precipitate discharge.) 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 address those disciplinary incidents.[15] In his original decision, 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 discipline, Respondent would have immediately terminated [Stanhope] notwithstanding its unlawful motivation.

Id. at 1297. In his supplemental decision, the judge similarly 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, supports 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 Foundation were controlling.

Under the Wright Line framework, where a discharge is allegedly predicated on an employee’s protected insistence on his Weingarten right to a witness, the General Counsel must first establish that the employee’s protected 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 protected 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 protected 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 motivating factor in the decision to discharge him. As described, Manderson acknowledged that Stanhope’s refusal 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, regardless 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. As explained, Manderson admitted that he could not distinguish among the factors that led to Stanhope’s discharge—including his request for a witness and his refusal to participate in the investigatory interview without one—by assigning them specific weight or by stating whether any one factor alone justified Stanhope’s discharge. Tellingly, Manderson also acknowledged that Stanhope would not have been terminated on March 17 had he answered Manderson’s questions orally, as requested. 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 Respondent’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 Manderson’s admissions. “[T]o establish [its] affirmative defense [under Wright Line], ‘[a]n employer cannot simply present a legitimate reason for its action but must persuade 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 No. 45, slip op. at 5 (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 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 expressed 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 unwelcome. For Manderson to describe this incident as creating 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 reasonable 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, indeed, have been fired. That evidence, however, does not tip the balance here. Only two of the cited cases involved 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 “inappropriate language and suggestive remarks toward another person.” Neither case closely resembles Stanhope’s situation: Adams was a fellow employee, not a supervisor, 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 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 supports a finding that Stanhope’s discharge was unlawful.

iv.

We turn, finally, to the question of whether, with respect 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 propriety 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 announced and to parties in other cases pending at that time so long as this does not work a “manifest injustice.”

. . . .

In determining whether the retroactive application 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 accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application.

SNE Enterprises, Inc., 344 NLRB 673, 673 (2005) (citations omitted).

We agree with the General Counsel and the Charging Party that, consistent with the Board’s traditional approach 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 preexisting law.” SNE Enterprises, supra at 673.

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 Relations 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 employee 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 Foundation. 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 insistence on a witness, we find, was an invocation of those rights, and not some random demand.

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 suggesting 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 accomplishment of the purposes of the Act.” SNE Enterprises, supra at 673. In our view, this factor does not favor retroactivity here.

The Board’s decision in IBM regarded Epilepsy Foundation as reflecting a “permissible interpretation” of the Act, and thus the Board’s choice to withdraw Weingarten rights from unrepresented employees was purely a “matter 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 retroactive application of IBM, which could discourage employees 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 exposed to employer reprisals. Similarly, finding retroactivity 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]

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 Stanhope 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 retroactivity.[26]

Requiring the Respondent to rescind Stanhope’s discharge and to reinstate him, meanwhile, does not prejudice any legitimate managerial interest here. The Respondent’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 reinstating Stanhope, we must recall that the judge discredited 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 Respondent might have believed at the time. The harm to Stanhope—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 requires a showing of “extraordinary circumstances” under Section 102.48(d)(1) of the Board’s Rules and Regulations. Insofar as our remand decision held—without providing any analysis—that IBM was controlling here, it reflected a “material error” within the meaning of Section 102.48(d)(1), warranting reconsideration. See generally Desert Aggregates, 340 NLRB 1389 (2003).

Under the circumstances here, we do not share the dissent’s concerns that reconsideration undermines the Board’s general interest in the finality of its decisions.[28] Nor, for reasons already explained, do we agree that Epilepsy Foundation’s holding on retroactivity supports retroactive application of IBM in the particular circumstances 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, 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 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 interest 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.

(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 designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records 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 notice 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 representative, 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 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 involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current 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 responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. September 28, 2007

Wilma B. Liebman	Member
Dennis P. Walsh,,	Member

(Seal) National Labor Relations Board

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 Foundation,2 and held that the Weingarten3 right does not extend to a nonunion workplace. Accordingly, the Board reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(1) by denying Stanhope’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 remanded this issue to the judge to clarify whether the Respondent’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 concerted protected activity. On the other hand, if the Respondent 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 retroactivity 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 retroactively. 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 reconsideration based on “extraordinary circumstances.” There is no such showing here. There is simply a change of mind as to the appropriateness of retroactivity. 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 “extraordinary 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 “extraordinary” 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 application 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 consistent with the Board’s principles on retroactivity. The Board’s usual practice is to apply new policies and standards retroactively “to all pending cases in whatever stage.” See Aramark School Services, Inc., 337 NLRB 1063 fn. 1 (2002) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)); see also SNE Enterprises, Inc., 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 principle 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 discipline. 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 evidence 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 discontinuing the interview). Although Munsell’s statement suggested an incorrect view of the law under Epilepsy, Stanhope 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 Respondent’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. Further, 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, reinstatement, 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

Also unsupportable is the majority’s statement that “employees and managers in the Respondent’s workplace were aware of their Epilepsy Foundation rights and responsibilities.” 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 consistent with Board law was insufficient to demonstrate reliance 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 application 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 investigatory 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 decisions 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. Allowing 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 Epilepsy is distinguishable. Their failure to articulate how it is distinguishable does not constitute reasoned decisionmaking.7

In sum, my colleagues, in a single case, have overruled the Board’s prior decision in Wal-Mart, and have, in essence, 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.

Dated, Washington, D.C. September 28, 2007

Robert J. Battista,

Chairman

National Labor Relations Board

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 activities.

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.

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 Washington, 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 Relations 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 Stanhope, who had a reasonable belief that the matters to be discussed 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 discharging 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 continue to participate in an investigatory interview, which he believed 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 participate 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 represented by a union; however, in Sears, Roebuck & Co., 274 NLRB 230 (1985), the Board reversed itself, holding that the Act compelled 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 permissible 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 reinstituted 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 requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence.” Id. at at 1289. Continuing, the Board held that in the nonunionized setting while an employee retains a Section 7 right to request the presence of a coworker during an investigatory interview, 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 request. Id. at 1295.2

In my underlying decision, I noted that two management representatives, Marlene Munsell, the store manager of Respondent’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 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 terminated 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 provide 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 Stanhope 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 employee said, no; that Manderson responded, in those circumstances, 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 Stanhope—his refusal to cooperate in the investigation of Adams’ allegations and his refusal to provide a statement, Adams becoming distraught over what occurred during her alleged confrontation with Stanhope, and the latter’s use of profanity during said incident. When asked if Stanhope insisting upon having a witness 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 investigation of Adams’ allegations was a factor in Respondent’s discharge 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 discipline against him and can not be disciplined for asserting said right, I reiterate my prior finding that the record evidence establishes that Stanhope’s demand on March 16 for a witness during his investigatory interview was a motivating factor6 in Respondent’s decision to discharge him.

Pursuant to the Board’s remand, I now must determine, in accord with the burden shifting analysis of Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.989 (1982), approved in NLRB v. Transportation 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 Respondent’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 profanity during the alleged confrontation, and Adams’ distraught reaction 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 encounter with Adams. While Munsell failed to mention Stanhope’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 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 his 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, including 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.” Nevertheless, Respondent asserts that Stanhope’s alleged misconduct was so severe as to warrant immediate discharge. While recognizing that not all instances of misconduct are the same and deserve different levels of discipline, given Stanhope’s unprotected 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 dur