# J. P. Stevens & Co. v. National Labor Relations Board

> Court of Appeals for the Fourth Circuit · December 30, 1968 · 406 F.2d 1017

URL: https://www.frixlaw.com/law-library/cases/8880097

## Case

- **Full name:** J. P. STEVENS & CO., Inc. v. NATIONAL LABOR RELATIONS BOARD, and Textile Workers Union of America, AFL-CIO, Intervenor (two cases) TEXTILE WORKERS UNION OF AMERICA, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** December 30, 1968
- **Citations:** 406 F.2d 1017
- **Precedential status:** Published
- **Opinion:** Concurrence by Winter
- **Judges:** Boreman, Butzner, Winter
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8880097

## Opinion text

WINTER, Circuit Judge
(specially concurring):
Except for Paragraph II — the portion of the opinion which relates to the “serious harm” notice in Stevens III — I agree wholeheartedly with the language of Judge Butzner’s opinion and the manner in which it disposes of these cases. With this exception, I concur in the opinion. As to the “serious harm” notice, I would enforce those portions of the Board’s order which would require Stevens to cease and desist from posting the notice and require Stevens to post a notice that it would not henceforth post or mail notices saying that “a union will operate to your serious harm if it gets into the plant.”
For reasons convincingly stated by Judge Sobeloff in his special concurrence in N. L. R. B. v. Kayser-Roth Hosiery Co., 388 F.2d 979, 981 (4 Cir. 1968), there comes a time when constitutionally protected speech may lose its shield of inviolability by reason of abuses in its exercise. In Stevens III that time is at hand. The flagrant, systematic and widespread §§ 8(a) (1), (3) and (4) violations which were committed in Stevens, I, II, III and IV, and the fact that at least the Board has found that Stevens has not brought itself into full compliance with the Act in Stevens V, make apparent that, rather than a constitutionally and statutorily protected expression of opinion (§ 8(c)), Stevens’ statement to its employees that a union would operate to their “serious harm” was a threat to intimidate its employees and deny them their § 7 rights — a threat carried out when the employees persisted in their efforts to organize.
It is true that in N. L. R. B. v. Threads, Inc., 308 F.2d 1, 9 (4 Cir. 1962), and in Wellington Mill, etc. v. N. L. R. B., 330 F.2d 579 , 583 (4 Cir. 1964), cert. den., 379 U.S. 882 , 85 S.Ct. 144 , 13 L.Ed.2d 88 (1965), we characterized what was said as “unqualifiedly privileged.” The characterization was made, in each instance, where there was lacking the history of repeated and extensive employer misconduct to deny employees their § 7 rights, present in the case at bar. Threads and Wellington thus hold only that the “serious harm” language standing alone is not violative of employees’ rights. In Kayser-Roth, supra, we were *1031 unwilling to dispose of the contention that the “serious harm” language was violative of § 8(a) (1), without considering the circumstances surrounding its use, and even more recently in N. L. R. B. v. Greensboro Hosiery Mills, Inc., 398 F.2d 414 (4 Cir., 1968), in which Judge Butzner unqualifiedly concurred, we strongly intimated that a “serious harm” notice could violate the Act “by virtue of accompanying circumstance.” These later expressions are an aspect of the doctrine, firmly established in this Circuit, that any statement, not inherently coercive, may become such when measured in the context of the circumstances in which it was made, i. e., N. L. R. B. v. McCormick Concrete Co., 371 F.2d 149 (4 Cir. 1967). While we may have disagreed with the Board in the past that a “serious harm” notice is inherently coercive, we should not consider ourselves foreclosed from holding one to be coercive when the overwhelming evidence of the surrounding circumstances unerringly points to that result.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8880097. Public record. Not legal advice.