The opinion
IRVING R. KAUFMAN, Chief Judge
(concurring and dissenting):
I concur in Judge Anderson’s opinion with the exception of that portion holding that Gleason’s request for his employees’ statements to the Board did not violate § 8(a)(1).
In Henry L. Siegel v. NLRB, 328 F.2d 25 (2d Cir. 1964), we held that an employer violates § 8(a)(1) if he bludgeons his employees into furnishing copies of their statements. Such coercion, we reasoned, inhibited the workers’ right under § 7 to an effective Board investigation of unfair labor practices. Gleason, unlike Siegel, merely requested his workers’ statements. But, it seems to me that the tone or careful wording of the employer’s wishes may in the end, have the same effect. Indeed, the coercion and chilling effect we decried in Siegel inheres in the request itself. The employee cannot fail to be aware that a refusal to comply will be interpreted — and remembered — as an admission that the statement contained matter that he did not wish his employer to see. See Texas Industries v. NLRB, 336 F.2d 128 , 134 (5th Cir. 1964). And, even if the solicited employee’s compliance is purely voluntary, the knowledge that a request has been made will have a corrosive effect on the frankness of other employees.
Furthermore, to hold that an employer may not demand his workers’ statements will not unduly handicap the employer’s preparation for the hearing. 1 When the General Counsel calls an employee as a witness, it is the Board’s practice to provide the employer forthwith with a copy of the employee’s statement. 29 C.F.R. § 102-118 (b). And, where circumstances warrant, the employer may obtain a continuance to meet surprise testimony. Retail Clerks Int’l Ass’n v. NLRB, 125 U.S.App.D.C. 389 , 373 F.2d 655, 658 (D.C. Cir. 1967). Finally, the employer may interview his workers before the hearing, concerning matters relevant to the complaint. Such questioning sweeps far less broadly than a request for Board statements since the Board investigator must, if he is effectively to ascertain all possible violations and prepare the complaint, ask the worker questions concerning a wide range of union activities and potential witnesses. Cf. IBM v. Edelstein, 526 F.2d 37 , 41-44 (2d Cir. 1975).
Finally, to hold that Gleason’s conduct is not a § 8(a)(1) violation runs counter both to firmly established Board precedent and to the decisions and reasoning of several circuits. A long line of Board cases, to which we must accord some deference, see Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965), has held requests such as Gleason’s to be inherently coercive and therefore unlawful, e.g., Bayliner Marine Corp., 215 NLRB 11 (1975); Kay Corp., 209 NLRB 11 (1974); Waggoner Corp., 162 NLRB 1161 (1967); Braswell Motor Freight Lines, 156 NLRB 671 (1966), enforced 386 F.2d 190 (6th Cir. 1967). Moreover, Board orders based on this rationale have been upheld by several circuits. These courts rested their holdings upon the very grounds that should mandate enforcement in this case: (1) the compulsion latent in any request for statements and (2) the availability to the employer of less drastic alternatives, such as interviews with the employees. Texas Ind. v. NLRB, supra; NLRB v. Winn-Dixie, Inc., 341 F.2d 750 (6th Cir.), cert. denied, 382 U.S. 830 , 86 S.Ct. 69 , 15 L.Ed.2d 74 (1965); Surprenant Mfg. Co. v. NLRB, 341 F.2d 756 (6th Cir. 1965); Montgomery Ward & Co. v. NLRB, 377 F.2d 452 *484 (6th Cir. 1967); Retail Clerks Int’l Ass'n v. NLRB, supra.
I do not agree that Robertshaw Controls Co., Lux Time Div. v. NLRB, 483 F.2d 762 (4th Cir. 1973), cited by the majority, is at variance. In that case, five employees sought relief from the Company after they allegedly were harassed by organizers for a labor union. The personnel manager of the Company responded by reprimanding the union activists. The Board subsequently investigated the disciplining by the Company of the union organizers, and received statements from the five workers who had complained against the union recruiters. At the Company’s request, the five satisfied employees, who had from the inception looked to the Company for its protection, yielded copies of the statements they had made to the NLRB investigators. These employees, whose sua sponte complaints had precipitated the reprimand of the union proselytizers, obviously wished to help the Company defend its action taken at their behest. Accordingly, the court properly found no coercion inherent in the Company’s requests for copies of its “allies’ ” statements to the Board. For these reasons, the court stressed that it “reach[ed] the decision in this case upon its particular and somewhat unusual facts.” 483 F.2d at 770 (emphasis added). To extend the Robertshaw rationale to cover the strikingly different factual setting of this case 2 would be to push it beyond the limit of its logic.
. It is not insignificant that, even were this an ordinary civil case, investigatory reports such as those Gleason requested would be immune from pre-trial discovery. See IBM v. Edelstein, 526 F.2d 37 , 41-44 (2d Cir. 1975).
. As the majority notes, Gallagher and Phillips ultimately testified in the company’s behalf. The Connellys, however, did not. It is also significant that Gleason apparently requested the statements of Gallagher and Phillips before they agreed to testify.