# Local 833, UAW-AFL-CIO, International Union, United Automobile, Aircraft & Agricultural Implement Workers v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · January 26, 1962 · 300 F.2d 699 URL: https://www.frixlaw.com/law-library/cases/6922786 ## Case - **Full name:** LOCAL 833, UAW-AFL-CIO, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA v. NATIONAL LABOR RELATIONS BOARD, Kohler Company, Intervenor NATIONAL LABOR RELATIONS BOARD v. KOHLER COMPANY, Respondent KOHLER COMPANY, a Wisconisn Corporation v. NATIONAL LABOR RELATIONS BOARD - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 26, 1962 - **Citations:** 300 F.2d 699; 112 U.S. App. D.C. 107; 49 L.R.R.M. (BNA) 2485; 1962 U.S. App. LEXIS 6089 - **Precedential status:** Published - **Opinion:** Dissent by Miller - **Judges:** Bazelon, Miller - **Cited by:** 36 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/6922786 ## Opinion text WILBUR K. MILLER, Chief Judge (dissenting). The strike at the Kohler plants, which the Union began April 5, 1954, was still in progress on August 26, 1960, when the Board entered the order which is now before us on the parties’ petitions for review and the Board’s petition for enforcement. The fact that unlawful mass picketing and acts of violence immediately began is shown by the following quotation from the Board’s decision and order: “From April 5 until May 28, 1954, except for 3 days early in May, Respondent’s plant was ‘shut down bike a drum’ by the mass picketing of up to 2,500 pickets.* The pickets stationed in front of the Respondent’s plant moved in a double line along the sidewalk across the driveways and plant entrances, in both directions for 2 city blocks. In addition to the main picket line, another group of pickets formed in the roadway to meet groups of nonstrikers who ap *708 proached the picket line to enter the plant. This advance guard, on a number of occasions, would physically block, push, shove, and prevent the nonstrikers from entering the plant. In addition, when nonstrikers approached the plant entrances, the double line of pickets would close any space in the line, and engage in conduct that has been commonly called ‘belly to back’ picketing while the advance guard was attempting to prevent the nonstrikers from even reaching the picket line. Those other entrances to the plant not affected by the above described picketing, were also barred, and while the picketing at those gates was not conducted on the grand scale described above, it was nevertheless effective in preventing ingress to or egress from the plant. In many instances the pickets refused to permit entrance to the plant property despite requests of the police to let the workers into the plant, and on those occasions when nonstrikers were attempting to enter the plant the pickets yelled and shouted such things as ‘Hold the line,’ ‘No one gets through,’ and ‘Go home scab, go home.’ “In addition to the foregoing, the Union also put into effect and maintained during this period a ‘pass’ system under which persons desirous of entering the plant, the main office, the employment office, or even the medical department were required to procure passes from the Union’s strike headquarters some distance away. ** ” An order of the Wisconsin Employment Relation Board, entered May 21, 1954, prohibited this unlawful mass picketing and other illegal conduct of the Union. When a proceeding to enforce that order was begun, the Union agreed on May 28 to comply with it. Kohler had refused to negotiate during the mass picketing, but negotiations were resumed June 1, 1954, pursuant to the Union’s agreement to discontinue its unlawful practices. But on June 29, Kohler again broke off negotiations, and in his report the trial examiner found its action was justified by continued violence and vandalism for which the Union was responsible. In its decision and order the Board concurred. In August, 1954, negotiations were resumed but were soon discontinued by Kohler because the homes of non-striking employees were being “picketed” in what the trial examiner called “disgraceful spectacles of mob proportions.” I quote from the examiner’s “concluding findings” : “The evidence plainly justifies Respondent’s assertion that the Union was encouraging the home demonstrations. The conduct involved was sufficiently serious to warrant Respondent in suspending negotiations while the conduct continued. Certainly, the demonstrations, which had become widespread and which had reached scandalous proportions, constituted coercion and intimidation of nonstriking employees of the most flagrant type. It is therefore concluded and found that Respondent was justified in breaking off negotiations on August 18.” Although the trial examiner found “the Union was encouraging the home demonstrations,” — an understatement, I think —he held there was no evidence that any striker participated in those mob scenes at the direction or suggestion of the Union, and that certain of the dischargees who were present were discriminatorily discharged. But a majority of the Board held “the Respondent [Kohler] had a valid ground for discharging all those strikers who were identified as being present at the home demonstrations.” Proceedings to enforce the Wisconsin Board’s order, which also prohibited home picketing, were begun and as a result such conduct by the Union was en *709 joined on August 30. This ended the home picketing. The next acts of violence were in the employment office picketing which occurred in December, 1954, and January, 1955. This activity was thus described by the Board: “The Respondent also relied on participation in the employment office picketing as a grounds for the discharge of some of the strikers now in issue. The employment office picketing occurred generally in December 1954 and January 1955. The scene of this picketing was the entrance to the employment office and the approaches to that entrance. The pickets, usually numbering from 15 to 25, normally did not form a picket line as such, but assembled in groups along the sidewalk in front of the employment office. On occasion, when the job applicants approached to enter the employment office building, some of the pickets, and on occasion all of the pickets, would interpose themselves between the approaching applicants and the entrance to the employment office. In many such instances the applicants either had to push their way through the pickets or walk around them, but in the latter event the pickets sometimes again shifted to interpose themselves between the applicant and the door. On many occasions the applicants could not make their way into the employment office until the Kohler Village Police came over and ordered the pickets to open up. Frequently there were instances when groups of pickets actively blocked, pushed, shoved, bumped, spat upon, tripped, kicked, and otherwise impeded the entrance of persons into the employment office. * * ¡¡< * * # “Chairman Leedom and Members Rodgers and Jenkins, constituting a majority of the Board, find that where it has been shown on the record that the dischargees were present at those employment office incidents, the Respondent had valid grounds for discharging them. * * #» On March 1, 1955, Kohler discharged 90 strikers because of misconduct in connection with the strike. In the General Counsel’s complaint against Kohler, which initiated the case before us, he alleged that 78 of them had been discharged because of their union membership or activities or because they had otherwise engaged in concerted activities. But the Board found that these strikers were lawfully discharged because they had participated in and actively supported unlawful activities which intimidated non-strikers in the exercise of their legal rights. 1 The Board found, however, on the basis of incidents relatively insignificant in comparison with the strikers’ unlawful behavior, that Kohler had refused to bargain collectively with the Union, that it had discouraged union membership, and had engaged in other unfair labor practices. It ordered Kohler to bargain collectively with the Union, to furnish it with information concerning incentive earnings, and to offer all striking employees (except those found by the Board to have been lawfully discharged and except those who had been permanently replaced prior to June 1, 1954, 2 ) immediate and full reinstatement to their former positions, and. to make them “whole * * for any loss of earnings which they may suffer by reason of Respondent’s [Kohl-er’s] refusal, if any, to reinstate them * * The Board also ordered Kohler to offer certain striking employees, who had been evicted from living quarters *710 owned by Kohler, immediate occupancy of their former quarters and to make them whole for any loss they might have suffered by reason of eviction. In case No. 15,961, the Union seeks review of the portion of the Board’s order which held the 78 dischargees had been lawfully discharged. It argues that the case should be remanded to the Board to determine whether reinstatement of the discharged strikers would effectuate the policies of the Act. Although Section 10(e) of the Act, 29 U.S.C.A. § 160 (c), provides: “ * * * No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged * * * if such individual was suspended or discharged for cause. * * *» the Union contends the conduct of the discharged strikers should be compared with alleged unfair practices on the part of Kohler — in a sort of balancing of equities, I suppose; that, having made such comparison, the Board should determine whether reinstatement of the discharged strikers would effectuate the policies of the Act and, if it so determined, should order their reinstatement, despite the flat provision of Section 10(c). In their opinion, the majority of the Court accept the Union’s argument, and set aside “So much of its [the Board’s] order as denies reinstatement to seventy-seven discharged employees 3 * * * ” and remand the case to the Board for further proceedings. Among the bases for this ruling, my brothers cite National Labor Relations Board v. Thayer Co., 4 saying, “ * * * [T]hat view of the Board’s remedial powers is correct.” The majority disregard Section 10(c) of the Act because, they say, “ * * * [I]n its decision the Board did not mention the ‘for cause’ provision of § 10(c). * * * Thus it clearly appears that the Board did not rely on § 10(c) in refusing reinstatement.” I disagree. I do not think Section 10 (c) can be disregarded in this fashion. And I do not read the Thayer opinion as support for the majority’s decision. The facts are quite different. In the Thayer case 103 discharged strikers were ordered by the Board to be reinstated. The court said: “ * * * It is undisputed that those employees who wished to continue working during the strike were able to do so. The Board and the trial examiner both drew the ‘factual inference’ that the pickets did not intend or seek to prevent employees from entering or leaving the plants. 5 There is substantial evidence on the whole record to support this finding. * * *» In addition, in another place in its opinion, the Thayer court said, “The picket lines were fairly well-behaved, and nonstriking employees were able to enter and leave the plants without serious incident.” It is apparent, therefore, that the Board did not find in the Thayer case, as it did here, that the strikers were guilty of unlawful violent conduct which was, as the majority say of this Union’s conduct, typical of “a bygone era.” Thus cause for discharge did not clearly appear, as it does here. There are some observations in the Thayer opinion as to the Board’s duty to determine whether reinstatement would effectuate the legislative purpose in cases where cause for discharge did not appear. I do not regard those observations as persuasive; but, if they are sound, they have no application in a case such as this where cause for the discharges so clearly appears. Moreover, the Thayer court did not leave Section 10(c) out of consideration because the Board had not relied upon it, as do the majority in this case. It said, “The actual questions in this case are whether under the circumstances the *711 strike conduct was cause for discharge, and if not whether reinstatement would effectuate the policies of the Act.” (My emphasis.) This is a clear statement, I think, that if there was cause for discharge, the Board could not reinstate and, therefore, could not consider the question whether reinstatement would effectuate the legislative policies. It is also a clear recognition of the efficacy of the “just cause” provision of Section 10(c). The strike which began April 5, 1954, was caused, the Board found, by a disagreement over contract terms, and not by Kohler’s refusal to bargain which the Union alleged. But the Board also found that the strike was prolonged by Kohler’s unilateral grant of a three-cent wage increase, which it said occurred June 1, 1954. Thus, after that date the continuance of the strike was held to be due to this alleged unfair labor practice on the part of Kohler. This is the significance of the date of June 1,1954, which I promised in footnote 21 would explain. I do not think the Board had the right to make this finding. The complaint alleged and Kohler’s answer admitted that the wage increase was put into effect on April 5, so there was no issue as to the date presented for decision. But, having found the strike was begun on April 5, without fault on Kohler’s part, the Board said a unilaterally granted wage increase of three cents “disparaged the Union and the collective bargaining process, and clearly falls within the proscription of Section 8(a) (5) and (1) of the Act.” This was held to convert the economic strike into an unfair labor practices strike. Even if this small increase had 'been put into effect on June 1, 1954, it could not justly and fairly be regarded as disparaging the Union and the collective bargaining process, in my opinion. The notion that the Union was ready on June 1, 1954, to settle the strike which began April 5, but was forced to prolong it by the unilateral grant of a three-cent wage increase on that day seems to me to be rather farfetched, — indeed, without foundation in reason. The majority opinion does not discuss case No. 16,182, which is Kohler’s petition for review. This omission is due, I suppose, to the fact that ease No. 16,031 — the Board’s petition for enforcement — which is discussed by the majority, is largely the reverse of Kohler’s petition for review. On the basis of matters which I regard as trivia — feeble efforts of Kohler to protect itself against open warfare — the Board’s order went largely against the employer. In ordering its enforcement, the majority opinion goes even further. I do not believe any purpose would be served by a detailed discussion of subjects not heretofore treated in this dissent ; suffice it to say I disagree with the majority opinion. Its refinements of reasoning do not impress me as sufficient to justify its reward of the Union for unconscionable conduct. I would deny enforcement in No. 16,031, deny the Union’s petition in No. 15,961, and grant the request of Kohler’s petition for review in No. 16,182. “Apart from those persons who obtained passes from the Union, only the office employees and supervisors were permitted to enter the plant property during the above-described period.” . Section 8(b) (1) (A) of the Act, 29 U.S. C.A. § 158(b) (1) (A), provides that “(b) It shall be an unfair labor practice f&r a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: * * . The significance of this date will be noted later. . Whether this figure should be 77 or 78, I do not know. . 213 F.2d 748 (1st Cir. 1954). . According to tbe Board, it was peaceful picketing. * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6922786. Public record. Not legal advice.