J. P. Stevens & Co., Inc. v. National Labor Relations Board, Textile Workers Union of America, Afl-Cio v. National Labor Relations Board, 449 F.2d 595, 4th Cir. (1971)

449 F.
2d 595
76 L.R.R.M. (BNA) 2804, 65 Lab.Cas. P 11,601
J. P. STEVENS & CO., Inc., Petitioner,

v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
TEXTILE WORKERS UNION OF AMERICA, AFL-CIO,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 14456, 14530.
United States Court of Appeals,

Fourth Circuit.
Argued Jan. 6, 1971.
Decided March 22, 1971.
Rehearing Denied Oct. 13, 1971.
W. S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen,

Charlotte, N. C., on the brief), for petitioner in No. 14,456.
Patricia E. Eames, New York City, Attorney, Textile Workers Union of
America, AFL-CIO (Cornelius J. Collins, Jr., New York City, on the
brief), for petitioner in No. 14,530.
James P. Hendricks, Atty., N. L. R. B. (Arnold Ordman, General Counsel,
Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost,
Asst. General Counsel, and Frank H. Itkin, Atty., N. L. R. B., on the
brief), for respondent.
Before BOREMAN, BRYAN and BUTZNER, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge:
The National Labor Relations Board's order of March 12, 1970, 181 NLRB No.
97, is adverse in two respects to J. P. Stevens & Co., Inc., an employer at
Roanoke Rapids, North Carolina, and adverse in another regard to the Textile
Workers Union of America, AFL-CIO, the charging party. In this action the
employer and the union ask for vacation of the order insofar as it is against
them, and the Board seeks entire enforcement of it. We sustain the company's
contention, overrule the union's, and to this extent limit the effectuation of the
Board's decision.
2
A violation of section 8(a) (1) and (3) of the NLRA, 29 U.S.C. Sec. 158(a) (1)
and (3), was declared by the Board against Stevens upon the finding that the
company had in two ways impermissibly coerced "employees in the exercise of
the rights guaranteed" them in Section 7, 29 U.S.C. Sec. 157, to join and assist
labor organization. In this, statements of management were found offensive for
telling the employees that the company would learn which of them had signed
membership cards by the union's use of the cards to demand recognition.
Another breach was seen in the discharge of one Arnold Ray Hux allegedly due
to his union activity.
The Board refused a similar anti-union implication to the termination of Betty

S. Allen by Stevens, although the Examiner had thought otherwise. No
discussion of this ruling would be helpful, because her release was
unequivocally dictated by her physical assault upon an overseer. The union's
argument to the contrary was rightfully denied.
I. The statements to which objection is made were conveyed to the assembled

employees by the respective superintendents on November 1, 1968 at each of
the three Stevens textile plants in Roanoke Rapids. Repetition of the statements
by witnesses for the Board's General Counsel was not reliable, the Examiner
reported, because of their faulty memory. He preferred the recollection of the
speakers themselves, which he summarized in this way:
5
"This
version is that a situation could arise in which it would be necessary to
produce signed cards in a public courtroom and the corresponding signing
employees could be required to testify, and, by way of illustration, the
superintendents referred to a Board proceeding involving its Statesboro plant where
this procedure had taken place. In this connection, Lee [a superintendent] testified
that 'we covered the dangers of signing union cards, or repercussions that can come
from signing union cards,' while Crawford [a superintendent] testified that he
pointed out the 'danger' of an employer [sic] signing a union card thinking it could
never be seen."
6
The addresses were intended, the superintendents testified, to combat the

inducement of employees to sign cards upon the representation that they were
kept confidential. While the Examiner gave the finding on it no emphasis-
relegating it to a footnote-the superintendents explained that they had also

refuted the rumor that Stevens by reason of Board and court decisions had lost
the power to discharge or otherwise discipline its employees for cause. The
company's aim was to correct any misunderstandings.
7
The restatements of what was said, and why, embrace the entire content and
context of the superintendents' words. In our opinion they do not constitute
misdoing. Just how the Examiner and the Board could see illegality in them is
not readily perceived. At all events the conclusion seems to be a determination
of law, on which we are free to rule. However, even viewed as resolution of
fact it is without substantial evidential support and thus ineffectual. Universal
Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
(1951).
It startles the conscience to deny an employer-no matter its historical infractions

of the Act-the right to tell its employees the truth. Without conceding
inappropriateness of the occasion or absence of cause here, these
considerations, even if present, cannot override the stubbornness of the facts.
However unbefitting, verity can never amount to illegality. Yet the Board holds
just the opposite. The circumstances warranted the judgment of the employer
that explanations were owing the employees and were also the entitlement of
management.
Union cards are not confidential material. They are executed for presentation to
the employer. The remotest possibility of an employee's understanding that his
signature is a secret should be dispelled, even if the misconception exists only
in idle talk. Too, confirmation of the employer's retained authority to discipline
or discharge for cause is not to be disallowed. Aside from its manifest fairness,
the Act acknowledges the freedom of these remarks from the brand of
wrongfulness:
10 The expressing of any views, argument, or opinion, or the dissemination thereof,

"(c)
whether in written, printed, graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the provisions of this subchapter, if
such expression contains no threat of reprisal or force or promise of benefit." 29
U.S.C. Sec. 158(c).
11
The superintendents' reiterations of indisputable conditions of employment

were untainted by "fear, favor or affection". In their setting they were not
utilized as a scourge, nor as a "threat of reprisal, or force or promise of benefit".
12
II. Hux's discharge on November 11, 1968 was ascribed to his refusal to report
12
II. Hux's discharge on November 11, 1968 was ascribed to his refusal to report
for Saturday work. The Board found that Hux, an active participant in the
organizational campaign, had been discriminatorily separated for union activity.
This imputation is unacceptable, given the circumstances under which he was
fired.
13
With the company since 1959 as a size mixer, Hux well knew that his
employment included Saturday assignments. Actually, his attendance record
indicates that he had previously worked Saturday shifts. During the 18 months
preceding his dismissal, however, with the knowledge of his supervisors he
held a weekend job at a gas station. Hux testified that they had warned him that
this extra engagement must not interfere with his Saturday obligations to the
company. There is evidence to indicate that despite this caution, Hux had in
prior instances refused Saturday work. Specifically, there was uncontradicted
testimony that in June or July 1968-just 4 or 5 months prior to his discharge-he
had told his employer, with some emphasis, that he would never respond to a
Saturday call. He had been requested to come on Saturdays only sporadically in
the preceding six or more months. This was not because of hostility to his union
convictions, but for the reason that the machine operated by him was utilized
on weekends only at irregular and unforeseeable intervals.
14
On Friday, November 8, Hux was informed of the need for him on the
following day. He declined the shift, notwithstanding his supervisors'
protestations that a qualified size mixer was required. Whether Hux located and
offered a substitute size mixer for his Saturday assignment is not settled in the
evidence. True, he attested to it but the supervisors wholly contradicted him.
Although the Examiner had found his recollection on other points
untrustworthy, in this instance his testimony was credited. Accepting this
appraisal, we note that Hux's overseer informed him that the basis of the
overseer's insistence was that the "job was his" and he "would have to run it".
We cannot fault the company for requiring a specially skilled employee to
perform his particular work assignment, nor can we impute anti-union
motivation to this legitimate management demand. Upon returning to the plant
on Monday, Hux was terminated on account of his absence on Saturday.
15
Thus it is clear that Hux was disemployed for cause. The evidence does not
provide a different inference of what actuated the expulsion.
16
With the company exonerated of any violation of the Act with respect to
statements of management and the discharge of Hux, the Board's order will not
be enforced against Stevens. It will be sustained as to the layoff of Betty S.
Allen.
17
Order enforced in part, and set aside in part.
18
BUTZNER, Circuit Judge (concurring in part and dissenting in part):
19
I agree that the Board's refusal to order the reinstatement of Betty S. Allen is
supported by substantial evidence.
20
I dissent from the denial of enforcement of the Board's order. The Board's
finding that J. P. Stevens & Co., Inc., violated Sec. 8(a) (1) of the Act by
making coercive statements is based on the following summary of its
superintendents' speeches to employees:
21
"[T]hat
a situation could arise in which it would be necessary to produce signed
cards in a public courtroom and the corresponding signing employees could be
required to testify, and, by way of illustration, the superintendents referred to a
Board proceeding involving its Statesboro plant where this procedure had taken
place. In this connection, Lee [a superintendent] testified that 'we covered the
dangers of signing union cards, or repercussions that can come from signing union
cards,' while Crawford [a superintendent] testified that he pointed out the 'danger' of
an employe[e] signing a union card thinking it could never be seen."
22
I reject the company's defense that it was simply exercising its right to tell its
employees the truth. The superintendents told only half the truth. The unspoken
half is that, notwithstanding the protection afforded by law, the company has a
well-deserved reputation of discharging union adherents on pretext of cause.1
23
When the whole truth is known, there can be no doubt that the speeches were
coercive. Cf. N. L. R. B. v. Finesilver Mfg. Co., 400 F.2d 644, 645 (5th Cir.
1968). The Board was warranted in adopting the following finding of the trial
examiner:
24 as the employees could not but be well aware, [Stevens] was given to ferreting
"For,
out the identity of union supporters and, armed with such knowledge, to
discriminating against them. Bearing in mind also that two of the superintendents
referred to the dangers signers would face as a result of public exposure of their
identity, and that the superintendents gave the employees no counteracting
assurances, the employees could reasonably, if not necessarily, regard the
superintendents' remarks as a warning that card signing carried with it the possibility
of both exposure to [Stevens] and retaliation by it."
25
Reliance on Sec. 8(c) of the Act is misplaced. The statute on its face makes a
clear distinction between the protected "expressing of any views, argument or

opinion" and the unprotected "threat of reprisal." The superintendents' guarded
warnings of "repercussions'? and of the "danger" of signing a union card
rightfully can be viewed as a "threat of reprisal" that forfeits the protection of
Sec. 8(c). N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 616, 89 S.Ct. 1918,
23 L.Ed.2d 547 (1969).
26
The Board's ruling that the dismissal of Hux violated Sec. 8(a) (3) is well
supported. Its decision is based on findings that other qualified employees were
readily available to fill in for Hux, that the company's refusal to accept a
replacement for an employee absent by necessity from a regular tour of duty
was contrary to its practice, and that Hux-a known proponent of the union-was
treated differently from other employees whose jobs were filled by substitutes.
The company, it should be noted, readily secured a substitute on Saturday. It is
familiar law that "to support a finding of Sec. 8(a) (3) violation, it is enough
that a discriminatory motive was a factor in the employer's decision."
Winchester Spinning Corp. v. N. L. R. B., 402 F.2d 299, 304 (4th Cir. 1968).
And the Board may rely on circumstantial evidence of discrimination. N. L. R.
B. v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 85 L.Ed. 368 (1941);
Corrie Corp. of Charleston v. N. L. R. B., 375 F.2d 149, 152 (4th Cir. 1967).
27
Finally, although the company attacks the Board's remedy as too broad, and the
union challenges it as too narrow, I believe that it lies within the Board's
administrative competence for reasons discussed by Chief Judge Brown in J. P.
Stevens & Co. v. N. L. R. B., 417 F.2d 533 (5th Cir. 1969).
ORDER DENYING PETITION FOR REHEARING

28
Upon consideration of the petition of the respondent, National Labor Relations

Board, for a rehearing and of its suggestion for a rehearing en banc, it is
29
Ordered that the second paragraph of 597 of the opinion be, commencing "It
startles," and it is hereby deleted, but with this exception, the said opinion be
confirmed; and it is further
30
Ordered that the petition and suggestion in all other respects be denied, neither
a majority of the judges who rendered the decision in this case, nor a majority
of the Circuit Judges in regular active service having voted to grant the petition
or the suggestion.
31
WINTER, CRAVEN and BUTZNER, Circuit Judges, dissenting from this
order, with HAYNSWORTH, Chief Judge, not participating.
See, e. g., J. P. Stevens & Co., Inc. v. N. L. R. B., 380 F.2d 292 (2d Cir.), cert.
denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967) (Stevens I);
Textile Workers Union of America, A.F.L.-C.I.O. v. N. L. R. B., 388 F.2d 896
(2d Cir. 1967), cert. denied, J. P. Stevens & Co. v. N. L. R. B., 393 U.S. 836,
89 S.Ct. 112, 21 L.Ed.2d 107 (1968) (Stevens II); J. P. Stevens & Co., Inc. v.
N. L. R. B., 406 F.2d 1017 (4th Cir. 1968) (Stevens III and IV); J. P. Stevens &
Co., Inc. v. N. L. R. B., 417 F.2d 533 (5th Cir. 1969) (Stevens V). Stevens'
conduct is noted, not to prejudge its actions currently under review, but to
disclose the context in which employees could reasonably interpret statements
by the company. See N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, 231, 69
S.Ct. 541, 93 L.Ed. 638 (1949)
Other Stevens cases are: Black Hawk Corp., 177 NLRB No. 120 (1969), enf'd
in part, 431 F.2d 900 (4th Cir. 1970) (Stevens VI); J. P. Stevens & Co., Inc.,
179 NLRB No. 47 (1969), pending review, Nos. 28,631 and 29,037 (5th Cir.)
(Stevens VII); J. P. Stevens & Co., Inc., 181 NLRB No. 97 (this proceeding)
(Stevens VIII); J. P. Stevens & Co., Inc., 183 NLRB No. 5 (1970) (Stevens IX);
Black Hawk Corp., 183 NLRB No. 34 (1970) (Stevens X).

J. P. Stevens & Co., Inc. v. National Labor Relations Board, Textile Workers Union of America, Afl-Cio v. National Labor Relations Board, 449 F.2d 595, 4th Cir. (1971)

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449 F.

J. P. STEVENS & CO., Inc., Petitioner,

United States Court of Appeals,

W. S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen,

The Board refused a similar anti-union implication to the termination of Betty

I. The statements to which objection is made were conveyed to the assembled

The addresses were intended, the superintendents testified, to combat the

relegating it to a footnote-the superintendents explained that they had also

It startles the conscience to deny an employer-no matter its historical infractions

10 The expressing of any views, argument, or opinion, or the dissemination thereof,

The superintendents' reiterations of indisputable conditions of employment

Order enforced in part, and set aside in part.

BUTZNER, Circuit Judge (concurring in part and dissenting in part):

clear distinction between the protected "expressing of any views, argument or

ORDER DENYING PETITION FOR REHEARING

Upon consideration of the petition of the respondent, National Labor Relations

WINTER, CRAVEN and BUTZNER, Circuit Judges, dissenting from this

order, with HAYNSWORTH, Chief Judge, not participating.

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