The opinion
SOBELOFF, Circuit Judge
(concurring specially):
While I agree with the disposition of this case on its facts, I do not share the court’s reluctance to reconsider and disavow a doctrine established by this circuit in a short series of cases, for at least one of which I confess partial responsibility.
In NLRB v. Threads, Inc., 308 F.2d 1, 9 (4th Cir. 1962), in which I concurred, we made the logic-defying statement that prior (or presumably simultaneous) unlawful labor practices can “not transform protected free speech into unlawful and unprotected speech.”
This is too broad a statement to be supported. The nation’s constitutional tenets protecting freedom of speech do not reject the familiar premise that something said in one context may be entirely permissible while in a different situation the same statement may be forbidden and even render the speaker subject to punishment. Thus, in Justice Holmes’s classic example, a false cry of fire, conceivably tolerable in some places, will not be protected if shouted in a crowded theater. See Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247 , 63 L.Ed. 470 (1919). See also, Ginzburg v. United States, 383 U.S. 463 , 86 S.Ct. 942 , 16 L.Ed.2d 31 (1966), where the context of speech determined its legality.
The freedom of speech specifically protected by section 8(c) of the Labor Act must be hedged by similar restrictions. It is one thing for an employer to state that a union may operate to the employees’ “serious harm” where he conscientiously abstains from committing unfair labor practices; it is quite another for him to make the same statement in the midst of flagrant violations, including threats to discharge and actual discharges of union adherents because of the employer’s anti-union animus. Both the Second and the District of Columbia Circuits have recently taken the view that an employer’s notice pointing out that a union might prove harmful “may take a different coloration by virtue of the accompanying circumstances” and that an otherwise innocuous remark may “take on a darker hue when viewed in the perspective of the particular setting.” J. P. Stevens & Co. v. NLRB, 380 F.2d 292 , 302, 303 (2d Cir. 1967); Amalgamated Clothing Workers, etc. v. NLRB, 124 U.S.App.D.C. 365 , 365 F.2d 898 , 910 (1966).
Because the attendant violations in this case are too isolated and remote from the posting of the notice, I would agree that they may not be relied upon here to convey a sinister connotation to the otherwise valid notice. But we should not hesitate to join our sister circuits in establishing a “circumstance” test under which any employer statement must bear examination in light of the totality of his conduct in order to discern whether the statement constituted a direct or implied “threat of reprisal or force or promise of benefit.” In so doing we shall merely be reaffirming this court’s recent pronouncement per Judge Boreman in NLRB v. McCormick Concrete Co., 371 F.2d 149, 152 (4th Cir. 1967): “The fact that these statements considered alone and out of the context in which they were made may not amount to threats of economic reprisal is of no moment because their effect must be considered in toto.”