Opposition Brief — Kohler Co. v. National Labor Relations Board

Opinions below: \ i Sri see aul ge

Jurisdiction - - --_- wnweadbatwictaceascseltscss Jeuu pa

Questions presented___......_--------.-L-2 22. |

Statute involved: 22... fcccelec llc dees

Bea eOt . oan en eye eeeeee etn. |

A. The Board’s findings of feet. 23803 ese’:

B. The initial decisions of the Board and the

court of appeals. _...-.---2¢--222----

C. The supplemental decisions of the Board

and the court of appeals-- Mians cdeecekes .,

CITATIONS

Cases:

_, Auto Workers v. Winisuais Board, 351 US.

International Ladies? Garment Workers? Union

v. National. Labor Relations Board, 237

Kohler Co., 108 NLRB 207; enforced, ‘National

_ Labor Relations Board v. Kohler Company,

‘National Labor Relations Board v. Blades -

. Mfg. Corp., 344 F. 2d 998__...-.--1_-..--

National Labor Relations Board v. Clearfield ;

* Cheese Co., 213 F. yd mantadedbiads ht

- National 5 pS Relations Board v. Fanethel

Metallurgical Corp., 306.U.S. 240__.-_--- 5

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Casee-—-Contintied

National Labor Relations Board v. Ford Radio rags

~~ & Mica Corp., 258 F. 2d 457..-.-------- 24

‘National Labor Relations Board v. Longview

Furniture Co., 206 ¥. 24°274_.--_..----.- 23

* National Labor Relations Board v. Puerto Rico...

Rayon Mills, 293 F. 2d 941_.._-:---.1.-- 22

National Labor Relations Board v. ThayerCo.,

213 F.. 2d 748, certiorari denied, HAB UB.

<A cma hesiat atin nnd mince oe eke ‘21, 22, 2A

National Labor Relations Beard v. Wallick, 198:

, PME ABB cesSl. diksclis cesoiaiaey Lostas cil 92

National Labor Relations Board. Wichita Tele- |

vision Corp,, 277 F. 2d 579, certiorari

R.

Li - | denied, 364 U.S, sre ae

Universal Camera Corp. v. National Labor Re-

lations Board, 340 U.S. 474.-----.--4..- sf

W. T. Rawleigh Co. v. National Labor Relations

Board, 190 F. 2d 832 9 0) REET aa coer Ame 24

. Statute:

National Labor Relations Act,’ ener

Gl Stat, 186, 73 Stat. ‘519, 29 U.S.C. 151,

bata | oan

... ieee B(a)(1) - gp sont lone WF 3 16,17

Section SfeS).-.-------2=-2-2.2 82) 17

eer ey Sn en RR ERR —

OcrosER | TERM; (1965

athe Supreme

no ue ope Me, Be tt

Koutar Company,’ PETITIONER °

_ «Namionat Lazor RevaTions Boas

,

-&

| AND

Loca. 833, UAW-AFL-CIO INTERNATIONAL UNION,

.. Unrrep AUTOMOBILE, AIRCRAFF “AND AGRICULTURAL |

,, ImpuemEnt Workers OF AMERICA |

tots s ’

ON PETITION FOR A WRIT OF CERTIORARI TO THE ‘UNITED

STAPRS COUR? OF APPEALS FOR PHE DISTRICT OF COLUMBIA

"pprey FOR THE NATIONAL LABOR RELATIONS BOARD

To of

second opinion’ (Pet. 38-39) is réported at 345 F. 2d

ings. . “Supp

ich was, printed for the use of the court: below’ in the later

proceeding and is paginated consecutively with. the Joint Ap-

pendix. References preceding a semicolon are to the Board’s.

findings; succeeding references are to the supporting evidence.

. © ql) ria

z

2

_ The initial decision and order of the Board: (J.A.

8-412) are reported: at 128 NLRB 1062. Its supple-

~ mental decision and order. (Supp. J.A. 2339-2378) a are

. reported at 148 NLRB 1434. ,

JURISDICTION

The judgment of the court of appeals was entered

on April 20, 1965 (Pet. 38-39). ‘The petition for a _

writ of certiorari was filed on July 16, 1965. The

jurisdiction ‘of this Court is invoked under 28 U.S.C.

_ 1254(1) and Sections 10 (e) and (f) of the National

Labor Relations Act, as s amended.

QUESTIONS PRESENTED

1. Whether, where strikers have been ‘discharged

for misconduct in connection with an unfair labor

practice strike, the Board may order the strikers re-

- instated with back pay, if such remedy is necessary to -

Zs effectuate the policies of the N ational Labor Piplatione

Act. |

3. Whether the court of plete exceeded its review-

ing authority in remanding the first proceeding to the °

- National Labor Relations Board to reconsider whether

a strike among the: Company’ s employees. was an un-

| 5h labor practi¢e strike from its neepHOn,,

STATUTE INVOLVED |

Phe pertinent provisions of the National’ Labir Re

lations Act, as amended (61 Stat. 136, 73 Stat. 519,

. 29 U.S.C. Sees. 151, et seq.), are ia —

of the petition for certiorari. }

~e

38

"a. ‘THE BOARD’S FINDINGS OF FACT

' 1. ‘THE COMPANY'S LABOR BOLICY PRIOR: TO THE UNION’S

: CERTIFICATION

In 1952, Local 833, UAW-AFL-CIO, the respond- 2

ent Union, was .certified by the Board as the exclu- :

' sive bargaining representative of petitioner Kohler’s

production and maintenance employees (J.A. 129-130). |

For almost 20 years prior thereto, the employees had

been represented by the Kohler Workers Association.

' Kohler instigated the formation of the KWA as a

means of combating the organizational efforts’ of. the.

AFL,’ and it was in effect a “‘Company dominated”

- labor organization, (Supp. J.A. 2343-2345). - s

_ In 1950, the Union began a campaign to displace the.

KWA as the employees’ bargaining representative,

but it lost a Board election to the KWA, which was |

aided. by the Company (Supp. J.-A, 2345; J.A. 884-

885). In the summer of 1951, the Union continued

its. effort to organize the employees. ‘The Company

countered by engaging in conduct which the Board

found. to constitute ‘unfair Tabor _ practices." Thus,

Company officials instructed supe rs. to find any

Union adherents in.their departments and to seek out

pretexts for effecting their discriminatory. discharge.

Company supervisors threatened to discharge or take .

“other nega against Union adherents, offered bene-

2 The Coniipahy repulsed the AFL in 1934, in @ violent strug:

gis, which involved the use of tear,.gas and the State militia

against’ the strikers (Supp. J.A. 9343).

. 8See Kohler Co., 108 NLRB 207, enforced in eget :

Relations Board v.. Kohler Co., 220 F, 2d 3 A aia ».

~ = > me wget TE aoe: “

sina AES NIC RTIAE 7 Sane Tait cn

4

fits to- employees who abandoned the Union, and

warned an employee that he “was under surveillance

by roving guards.’’ And the Company discharged an

employee for his union see (Supp. J.A. 2345-

2346.)

‘On April 4, 1952, fle Union filed a. réprtenitation

petition. with the Board covering the Company’s pro-

- duetion dnd maintenance employees (Supp: J.A.

- 2346)... The KWA membership voted to affiliate with ©

the Union. The Company, charging that this action

' Zesilted from the “double dealing” of KWA officials,

began refusing to entertain grievances from KWA

stewards, and withdrew other KW.A privileges (Supp.

J.-A. 2346-2347). In addition, the Company attacked

- the Union as an organization that.was “quick to resort _

to’ foree,”” wanted to ‘ereate’’ employer-union hos-

tility, and was a threat. to “17 years of industrial

peace’’ (Supp. J.A. 2347; J,A. 838, 1825-1336, 1339-

4340, wa, 072 att. 2282-2291). :

-. Notwithstanding the Company’s anti-onion .cam-

paign, the: Union won the election held on June 10

and 11; 1952, and was certified by the Board (Supp. —

| S.A. 2347; 2181-2182). Immediately: thereafter, the

_ Company withdrew the last forms of assistanee which

the KWA liad received (Supp. J.A. 2347; 2502-2508).

2, EXECUTION AND ADMINISTRATION OF THE 1953 CONTRACTS

The KWA had begun contract negotiations late in

1951, but had been unable to reach any agreement with

the Company to replace the existing eontraet which ex-

pired on January 30, 1952 (Supp. J.A. 2347; J.A. 2263-

2264). In August ‘1952 ‘the Union supplanted the

_ KWA. aft the bargaining table and contract talks re-

5

sumed (Supp. J.A. 2347; J.A. 1051). No agreement | :

having been reached by the middle of February 1953,

‘the employees authorized the Union to eall a strike

(Supp. J.A.: 2347; J.A: 1050, 9208-2209). . Antici-

petie a walkout, the Company had made plans to

quarter on the premises a large “plant protection”

foree, comprised. in part of regular supervisory ‘per-

sonnel, which would keep an around-the-elock vigil.

(S.A. 1049-1051). ‘ However, no strike oecurred, be- .

- eanse on: March 1, 1953, after the intervention of gov-

- ernment mediation and eonciliation serviees and the

issuance of the Board complaint with respect to the

Company’s earlier unfair labor practices (n. 3, p. 3

supra), the Company agreed to its first contract with

an “outside” union. (Sapp. J.A. 2347 5 5 RAST -RABt, JA.

1050): : |

On May 23, 1953, pursuant to a 3-months’ wage

. reopening clause in the contract, the Union requested

a wage renegotiation (Supp. J.A: 2348; J.A. 1192).

These talks also proved fruitless until the employees

again voted to authorize a strike and beth the Com-

pany and the Union again’ initiated strike prep- ~

arations similar to those undertaken earlier in the

‘year (Supp. FA. 2348; 2510, J.A; 1048-1058, 1066~

- 1067).° On August 20 the parties executed | as ple-

“Thus, the Company ‘brought about 300 cots ‘Sho th slant,

made arrangements for the delivery of special stockpiles of

"coal and food, erected five or six watch towers on the roofs of

- various Company buildings, and purchased 8 twelve-gauge |

_ shotguns with 500 rounds of ammunition and tear gas guns

with 75‘ rounds (Supp. J.A. 2347-2348; J.A. 1049-1058, 1066-

1067). The Union, for its part, had. setup @ soup kitchen’ and

rest room facilities and brought in sound trucks (J.A. 13;

2208-2209). =,

Mental agreement providing for a 3-cent wage in- .

crease. -This. agreement also provided for a joint

committee to study and to negotiate about inequities

~ in-the wage structure. bisa J.A, 2349-2350; 2501-

2502.) DS

In’ @ctober 1953;the Union notified the Cenipeny

that it wanted to negotiate regarding wage inequities,

7

and requested the Company to supply it with:the aver-

age incentive earnings on operations inyolying some

65 percent. of’ the unit employees im order to enable

the Union to- formulate a proposal (Supp. J.A. 2350;

J.A. 544-545; ‘582, 1197, 1566): Some. two months

later the Company supplied a small portion of this

information, regarding the pottery division (Supp.

‘JA. -2350; 2511-2512, J:A. 582, 1359, 1567). How-

ever, it failed to supply information with respect to

the énamelware division until: August 1954 (10 months

after the- Union’s ‘initial a. notwithstanding

Company. Attorney: Ly nger’s representation to.

the Union, in February _ that such information

was presently-on his desk; atid it never supplied the.

information’ pertaining ‘to other divisions, ’ notwith- -

standing the Union’s’ repeated ‘requests (Supp. J.A.

. 2350, J. A.’ 21-23, 1505 546-547; 568, 589-583, ~~

810-811, 1531-1536, 1566-1568, 1586-1588, 2102). -

the Union pointed out to the Company, it was inipoaaibte

- for the Union to present, any common-sense plan on in-

equities without’ the: incentive-earnings information

~ (Supp. JAS 2350; J7A. 592, 1586).

Meanwhile, the incentive. workers in the brass die

* casting department ‘were complaining to the Union

that’ ‘nibeequctiely” imposed artificial limitations had

Z « r ; ¥

i & Y Pt . . = 7

S niullified Sher! wage increase sities given -therh

by the 1953 contract and its supplement (Supp. J.A. -

" 2350, J. A. 23; 1537-1539, 1560, §569-1570).. When

the Company expressed doubt as to the truth of this .

allegation, the Union asked for the’ average earnings

of the incentive workers in the;brass die department -

for the last three months of 1952 and the last three

months of 1953 (Supp. J.A. 2350, J.A. 23; 1558-1559,

1569-1570, 1536-1538, 2036). The Company never

supplied this information (Supp. J. A. —— J.A. 23;

886-887, 905, 1105-1106).

The ,1953 contract provided for a grievance pro-

" cedure (Supp: J.A: 2391-2398). However, Attorney _

Conger frequently disparaged those employees who —

attempted to utilize this procedure by referring to

them as “malingerers and finaglers’’ (Supp. J.A.

2351; J.A. 1594-1595, 891-893). The Company mani- .

fested such an uncooperative attitude toward the whole

grievance procedure that many employees felt it: use; ©

__less. to submit grieyances, and the Union found it diffi- .

eult to persuade employees to serve as job grievance

stewards (Supp. J.A. 2351; J.A. 454). Moreover, be-\

- fore and during the siepotintions which preceded’ the

1954 strike (pp. 8-12, infra) the Company threatened

reprisals against stewards because it believed that they — -

' were too active in pressing grievances, and offered a

' promotion to a chief steward if he would stop processing |

grievances (Supp. J-A. 2351, J. A. 49-50; 825-826, }

833-835)... 3

_ Company President Herbert Kehler testified at the

Board hearing that from the time the Union came into

784-099—65—2

ww 4 ‘

the plant, it hail been: attempting to “take the life” of |

the Company and to obtain “dictatorial power’’; that .

“from the day we signed the first contract” he be-

lieved that the Union was going to eall a strike as

soon as it ‘could drench. [the employees’] minds’? ;

and that the Company’ s execution of the 1953 agree-

-* ment did not signify any change in his: hostility to the

Union (Supp. J.A. 2349; J.A. 426-445). Attorney

. ‘Conger; the Company’s cnlesiedl negotiator, expressed | | :

«like. views’ ‘during a grievance meeting in September =~

1953. At that meeting, Union Representative Burkart

- urged Conger to “let bygones be bygones” and try to. |

_ develop a mutually beneficial relationship (J.A. 455).

When. Burkart then.likened the relationship between

the parties toa marriage, Conger replied, aé * * if it

"is, it sure as hell was a shotgun wedding” ( Supp. J. A.

2348 ; J.A. 455). .

- 8, THE NEGOTIATIONS IN 1954 PRIOR TO THE STRIKE OF APRIL 6

-In December ‘1953, both parties served notice that.

they desired to modify the-1953 contract, due to ex-

" pire on February 28, 1954 (J.A. ‘15; 2030-2031), , In

January -the parties exchanged contract proposals |

fol. 15; 2034-2035, Supp. J.A. 2438-2489), The

Union nahh inter alia, a general wage increase and

an. “adjustment of all existing [wage]. inequities”

G -A. 2034-2035).. The Company, however, offered .

- no-wage inerease or other new benefits, while propos-

ing contract terms designed to reduce nonmonetary

_ benefits significantly (Supp. J.A. 2352-2353, J.A.

| 157-158, 168-169; 530, 534, 578-579, 662). Thus, the

', Company’s proposal deleted the provision in the 1953

contract. eaitkig for joint stiiay- and ssn! of the

- wage inequities problem, and removed from the. scope 2

of the arbitration clause ‘grievances’ involving dis-

charges, incentive pay standards, day work pay stand-. _

ards, ipteentive rates, merit increases; and changes in —

"working sthedules (Supp. JA. 2352-2353 ; 2436, 2442,

2446, 2455, 2472, 2480, 2486-2487). Moreover, during __

the subsequent negotiations (pp. 9-12, infra) the Com- \.

pany also insisted on excluding from the scope of the

.. arbitration clause ‘questions pertaining to inequitable —

shop rules and compliance with the contract provi-

' gions regarding job-transfers’and observance of senior-

ity in effecting layoffs (J. A. 15-16; 463, aah Supp.

' .J.A. 2386, 2490-2491). ° |

Negotiating sessions. ‘began on Mebiunty 2, 1954,

and were held from time to time until early August

1955; at the close.of the Board hearing, in April 1956, a4

. no agreement had yet been reached. | Company Nego

‘ _tiator Conger devoted considerable time to vitupera-~~

tive attacks on’ ‘unions in general and the Union in

: particular, especially when the Union songht to dis- <

" ~~euss particular contract_issues_(Supp. J.A. 2352; 3

- J.A. 576-577, 459-460, 892-894, 895, 908-909). -Com- . |

pany representatives dissipated further..time | by is-

suing ultimata asserting that thé, Company’ S$ position ©

was “fixed” or “final,” and by. insisting that the nego-

, \tiations weré futile and “a waste of ‘time’? (Supp.

J.A. 2352; J.A. 470-471, 613-614, 648-649; 654, 791, }

1401, 1407, 1548, 1574, 1590, 1592, 2071-2074). The —.

Company resisted, on grounds of “principle,” the

Union’s repeatedly scaled-down union-security pro-

posals - A. 164-168; 670-671, 678-679, 688-689, 760- |

8:

10

162; 1539-1541, 1553, 1557, 1570-1571), .. However,

. when the Union pointed out that the Company .had

offered ; to sign a union-security agreement with the

KWA, Company Negotiator Howe declared that he -

“wasn’t taking a principle, position,” but that an’ or-_

_ ganization without a union shop was “weaker” and

“easier * * * to deal with” (J.A. 524, 603, 1540-1541).

On.February 23 the Union proposed. that: thé 1953:

contract be extended for one month (Supp. J.A.

*2353, J.A. 16; 461-462). ‘On February 25 the Com-

pany rejeeted the Union’ 8 proposal, offering instead

- to extend the existing contract for one year without |

a wage increase (Shpp. J.A. 2353-2354 ; JA. 465,

_ 2038-2039).\ On the following day the Company _

- tendered the Union the alternative of a 3-cent wage a

_ inerease, conditioned on the Union’s acceptance of the . _

Company’ s other outstanding demands, including the

deletion’ of the provision for negotiations on wage

inequities and the limitations on the scope of the

arbitration clause (Supp. J.A. 2353-2354; J.A. 2040).

Throughout the subsequent negotiations the Company

insisted on the Union’s acceptance of one or the other

of these two “packages” (Supp. J.A. 2354; J.A. 31,

33-34, 168-169, 171-173, 176; 476-477, 508-509, 531, .

544, 662, 668, 1269-1271, 1297-1298, 1399, 1582, 1589,

1846-1847, 2071-2072, 2153, 2159-2162). °°

On February 28-Union negotiators. advised a Union

ae meeting attended by about 2,000 employees that the -

~ “Company wasn’t bargaining in any better faith to

arrive at the terms of a new agreement than they had

gen the old agreement on grievances during the past.

_year,’’ and-that unless the Union negotiators had the .

. ot

yY é . S

e .

SS — wer

|e 5 . ss : oe .

| strike weapon at their disposal, the Company would

~ notnegotiate a new contract (J.A. 480-482, 603). The

membership thereupon authorized a strike vote, and

rejected, with only one dissent, the Company’s propo-

ss sals of February 25 and 26 (J.A. 483): On Mareh 14

the Union held. another membership meeting, also

‘attended by some 2,000 employees, at ‘which - Union

officials again asserted that “thé Company * * *

- ‘would not bargain sincerely unless the membership

“A approved the s rike vote.” © The membership voted

by an 88 percent majority to reject the Company’ a

proposals and to authorize the Union’s executive board

to call a strike (J.A. 17; 484-485, 646).

On March 15 the Company began: elaborate strike :

preparations. It once more erected watch towers at

various points atop the Kohler buildings, and outside

of these towers installed large ‘swivel-mounted flood-.

lights (J.A. 10631064). It stockpiled. coal, procured ’

a 10 to 14 day supply of food for 300 persons, and

readied its cot inventory for_use (FA. 20; 1062-1063, A

ae 1066). The Union, too, renewed its strike prepara- .

. tions, setting up soup kitchens, rest room facilities, ey

and sound trucks (J.A.17).. orgy hen

Following an 11-day break in the alnnisdiahes the .

parties: met again in early April (J.A. 17; 2189).

The Union expressed willingness to compromise on

__specifie-major issues, but: Conger replied.-that “as far

as they were concerned there wasn’t any. more | 2 %-

they had made this clear on. several occasions, and

they. were making it clear again’ (J.A.: 647-654).

The Union accused the. Company of bargaining in bad — 7

beers withowt any desire to reach an mn sgrenpenh, =

order. to pom the ‘Union. to- strike (J.A. 651-652). :

At the. ‘moment of break-off,. Conipany negotiators

remarked that they had seen ‘the ‘strike coming for a -

' long time, and that if the parties had to have a show-

down, Sat might as well come now.” :(J.A. 18, 140; 475,.

615-617, 652-653, 791, (1372, 1549-1550, 1575, 1592-

1593). The strike began. on Monday sicitaici April .

ie 5, 1965 (SA. 18: 476}. tb gk

rahi) THE PERIOD FROM - apni. 5 5°TO MAY 28, 1954

“Brom April 5 ‘to’ May . 28, except for. three days

| early in May, the plant’ ws shut down. ‘Theré-was

mass. picketing by up to °2 500 "pickets. Violence

erupted in many instances, and the Union engaged in

so-called -“hélly-to-back e picketing, with roving pa-

_ trols, which prevented. non-strikers from entering the . He

-. plant. (J.A. 65-66; 242-243') This type of picket- —~

ing ceased on May 28, pursuant to an order of the _—

~ Wiscohsin Employment Relations Board,’ and the

. ‘parties agreed to resume negotiations as “of June 1,

when the plant reopened (J:A. 182-187).

Be THE BARGAINING SUBSEQUENT TO JUNE 1,1084.°... +

“On on about J une 1, 1954, Sud as the parties were

} returning ‘to the bargaining table, the Company, while...

purporting to maintain the terms of the expired con-

tract, unilaterally and without notice to the Union ~

instituted’ a 3-cent, wage ‘inerease (effective- as -of

* April 5) (J.A. 31,171; 419-420, 751, 753, 878, 1123-

1124, 1557-1558). At no time either prior to or after

this unilateral wage increase did the Company offer

“¢ to execute a contract incorporating the terms and.

*See Auto Workers v. Wisconsin Board, 351 US. 266.

7

- |

conditions of employment which it had thus put into.

effect—namely, a renewal of .the old contract with a~

- 3-cent hourly increase (Supp. J.A. 2354; J.A.31, “33-

34, 168-169, 171-173, 176; 476-477, 508-509, 581, 544,. |

- 662, 668, 1269-1271, 1297-1298,- 1399, 1582, 1589, mae ; ice

1847, 2071-2072, 2153, 2459-2162). i ate

The parties “tet for a while, but the talks broke

__off in mid-August.’ *. They were resumed i in early Sep-

“tember at the urging of J udge Murphy, a State court

judge “(J.A. 192; 135-156, 956-959, 2189). At, one

- of these meetings, a federal conciliator observed that:

acceptance by the Union at this time of the 3-cent

"wage increase which Kohler had previously put into

— effect unilaterally “¢would amount to complete capitu-

“lation” (J.A. 193; 972). Company Negotiator Conger

~ agreed, and then. declared ‘that their offer was their

best/ offer, and their last offer * * * that. there had.

be n. a bitter strike in 1934; that it resulted in twenty

years of: labor peace, and that he was going to insist. *

ae,

that this strike bring to ‘the Company twenty years ae 2

of labor peace” (J.A.. 193; 972-973). Conger added,

' ©One of the topics diavubeed 3 in the kewl negotiations was a ef

‘the disposition of temporary employees in a Shell Department |

which had been making munitions for the government under

Ces

* & contract that’ was about, to expire. On July 1, the Company

discharged the 53 Shell Department eniployees: who were on ..-

. Strike, and transferred to other departments the 29 Shell De- -

_° partment employees who were working. In its prior .discus-.

sions with the Union, the Company had never indicated that

_ it contemplated such disparate treatment: for the Shell Depart-

ment employees. Later, the Company unilaterally decided to ~

rehire the employees in the Shell Department who had been on _

: strike, but accorded them even less seniority than ‘that accorded

new employees. (J.A. 176-179; 499-503, 584-586, 619-620, —

634, 866-876, ol a eee ee. yee

om

2 - - ™ Ses ie . a . o> - - +

a Sates tk Gases SloK ry su NG. ahi aides oo pA oA aa teSas De ten Se

js i

“We are gaing to teach the Union a lesson” WA.

193; 972-973). :

After meeting separately with Union and Company —

representatives, Judge Murphy indicated to the Com- —

pany:-that all other outstanding issues could: be

“gona and the strike settled, by a "T-cent: or a.

§-eent icrease, which ineluded the 3 cents previously,

_ granted . (J.A, 194-196; 974, 982, 2227-2228). “AL «

. though Conger had ‘previously advised’ Judge Murphy

that the door was not closed on they estion of in-*

creases, he now ‘flatly refused any’ ineréases,

" (J.A. 169, 193-194 ; 966-969, 2226-2228). .

Between the.end’ of. September 1954 and August —

1955; the Company and the Union met on several occa-

sions, but these meetings were no more fruitful than —

before.’ In early August 1955, the Company, uni- _ -

‘laterally and without prior notice to the Union, put—

into effect a wage increase of 5 cents an. hour (J.A.

| Be 211-212, Supp. J.A. 2339-2340).

6. OTHER COMPANY CONDUCT DURING THE STRIKE

” Besiadine in April 1954, the ‘Company retained

the services of certain detective agencies, chiefly the

Madson Detective Agency (J.A. 386-388; 1898-1899,

7 ¥ Daging hearings before the Senate’ Subcommittee on Labor

‘ais Public-Welfare in June 1955, Company Attorney’ Howe —

that, in discussing contract terms, the Union had |

- failed to mention the Universal Rundle Corporation, a Kohler

competitor with whom the UAW-CIO had recently signed a.

contract. “incorporat[ing] practically what we have offered the

union and they have refused for a year to take”. (J.A. 207-

om 2138). When Union Representative Kitzman then offered —

‘ en ee

207-208 ; 2139-2141).

&

oe.

——--———

—

\ a . =e ° = = a. i

“1911-1914, 2248-2956).. ) , throwmgh Mad- |

sin pigiinciceanaich a ie ghee a

and anti-union espionage (S.A: 388 21. @,

‘1914, 2248/2249, 2293-9317). ', (ditions eubegpetii to’ OES eet, ae

the Company the possibility of “‘bugging’’ a- hotel ; eG

_ where wniop representatives and Board trid! counsel = |

"were lodgéd during the heaping’ in this case with a: | a

device capable of monitoring conversations anywhere - = ».

_in the building (J.A- 61, 64, 390-391 ;: -1903-1905, 1907- Sake

. 1910; 2296-2304). Another Madson report to’ the ,

- Company detailed a proposal fér a system of secret: val

' infermants .in the plant who werp to ‘report on “any

‘labor movement, infiltration, or problem” (J A. 61,

391; 2304-2307). The detectives also investigated the ae .

private life of a counsel assigned to the’ case ,

. (S.A. 62-63; --1903-1905;: 2166-2167). [\

_ Iw late June 1954, one of the Company’s foremen| ©

attempted to persuade a highly skilled worker, Forst- . | ;

“ner, to‘abandon the strike by promising him various ~ ~~ = -

special benefits and by urging his wife to use her ee i

‘influence to secure her get s return to work (J.A.

ber 1954 and ously Fasnaany 1955 the Company avieted

‘ various strikers from their Company-owned living

‘quarters because of their participation in the ‘strike

(J.A. 52, 233-234, Supp. J.A. 2319). ire te Rae: Senge.

?

*

7. ‘Tam DiscHARGE OF THE! STRIKERS

P Although mass picketing. by ‘striking employees

batted. ingress tothe plant from April 5 through

My. Be, 3064. (p33, ace deadaccaeiiuae teed

ae a

: a ee oe

did not have that effect.’ During the month of August.

1954, however, a series of ‘demonstrations occurred . |

around’ the homes of’ various non-strikefs. Only a

small percentage of those present were strikers; the —

groups were made up mainly of neighbors, passers-by,

and sympathizers with the Union.. During December |

1954 and Januafy 1955, groups of pickets patrolled -

in front of the Coming’? employment :office. Gen-

“erally; these groups attempted to impede the entrance

. of job. applicants into the office. - A: 65-66, 69-70,

242.2943, 246-250.) .

During the meetings with. J ies Murphy in Sep- . _

tember 1954, the Company. first indicated that it was

_ going to discharge certain striking employees for mis-

conduct: ‘On February 18, 1955, the Union wrote the

Company requesting the right to negotiate concerning

the strikers. whom the Company would not reinstate.

On March 1, 1955, the Company notified 91 strikers

‘that because of their strike’ miscondiict . they would

not be reinstated. That same day the Company wrote

the Union informing it of the action taken. At no

time did the Company comply with the Union’s

demand to bargain over the discharges. (J.A. 204;

e 435, Dera 1298-1299, 2110, piace ale v

a

- B. THE INITIAI+ DECISIONS OF THE BOARD AND THE coURT

: 3 OF APPEALS

‘come ita original decision, the Board found that the

Company had refused to bargain in good faith with

the, Union on and after June 1, 1954, in violation: of

Sections 8(a) (5) and (1) of the Act, by unilaterally

putting wage increases into effect; by discharging the. hs

@. ¢ ee

__ striking Shell Department employees and transferring —

- the xidn-striking employees in that department with-

out notification to or consultation with the Union; by

delaying and. refusing to furnish pertinent wage in-

formation for purposes of bargaining ; by refusing to

negotiate with the Union with respect to the identity

of employees whom the Company considered ineligible

_ for reinstatement: upon termination of the strike; and

_ by otherwise failing to meet its statutory obligation

* to bargain in good faith (J.A. 23-24, 26, 28-32, 41, 43, ~

46, 73-74, 151-156, 179-182, 199-200, 203). The

Board also found that the Company had violated ~

Sections 8(a) (3) and (1) by discrimmating. against

- the Shell-Department employees and discharging Alex

_ Dottei (one of the strikers discharged in March 1955)

‘because of their participation in strike activities

(J.A. 40-41, 73, n. 69, 179+182).'--Finally, the Board -

found that the Company’ had interfered with, re-

strained, and coerced its employees,.in violation of

Section 8(a) (1), by engaging in surveillance and anti-

~ union espionage, by evicting certain strikers from

" Company-owned dwellings, by seeking to discourage —

‘Union stewards from processing employee grievances,

and by certain other conduct (J.A. 40-41, 42, 47-51,

52, 61, 218-219, 224-225, 232, 233-234, 392-393).

The Board (one Member dissenting) further found

that, in the negotiations preceding the strike which

began on April 5, 1954, there had been no generalized

© refusal to bargain on the Company’s part (J.A. 13, °

8 be is

18-20, . 29-30,. 138-139, 144-147 ) The Board con-

eluded, therefore; that- the strike had been caused not °

by unfair labor practices but by the failure of the

parties to agree-on a contract, but that the strike had

been prolonged, and thereby converted into an unfair

labor practice strike, by the violations of the Act com-

mitted. by the Company on and after June 1, 1954

(J.A. 38-41, 43, 46, 62, 361, 391-392).

_ Since the strike had been converted into an unfair

labor strike, all strikers not replaced as of June 1,

1954, Were entitled upon application to be reinstated

to their former positions unless they had engaged in

_ Such misconduct as would disqualify them from rein-

statement. The Board found that, of the 78 strikers

named in the complaint who were discharged in March

1955, all but 1 (Dottei, supra) had engaged in activi-

ties serious enough to disqualify them for reinstate-

ment (J.A. 69, 73).

The Board ordered the Company to cease and desist

from the unfair labor. practices found; to bargain in

_ good faith with the Union; to offer the strikers, upon

application, reinstatement to their former or substan-

| tially equivalent positions (exéept the 77 who the

Board found lad been lawfully discharged for mis-

conduct), dismissing, if necessary, any replacements

hired after June 1, 1954; and to reimburse the strikers

entitled to reinstatement for any lost wages (J.A..78- -

.83). | |

*The Board found one instance of refusal to bargain pre-

ceding the strike, viz, the refusal to furnish information relat-

ing to the brass die casting department (pp. 6-7, supra) ; it

concluded, however, that this refusal had been unrelated to the

contract negotiations (J.A. 29). |

19 | .

The court of appeals (Judge Miller dissenting) held

that the Board’s findings of unfair. labor practices.

were “amply supported. by the record considered .as

a whole,’’ and enforced the Board’s order designed to.

remedy these practices (Supp. J.A. ‘2319-2320, 2330-

2331). However, the court remanded. the case ‘to —

the Board. for further consideration of the ‘Board’s

» finding: that the strike had not been: seaused. by. unfair

- labor practices and that 77 strikers had disqualified

themselves for reinstatement (Supp. .J.A. 2331).”

The court: concluded that the Board, in finding that

the strike had not been an unfair labor practice: strike

at ‘its inception, had “improperly ‘ignored the. infer-

ences to be drawn from Kohler’s pre-1953 labor rela-

- tions history in assessing its intent at the bargaining

table in 1954’? (Supp. J.A. 2328). ‘The court further

-coneluded that the Board’ had erred in’ failing to

weigh the ‘misconduct of the 77 strikers: against the

Company’s anteeedent-unfair labor practices, in‘ de-

- termining whether their misconduct was sufficient to

disqualify: them for reinstatement Rebaeanh J. A. ioe

2322-2321). - | |

o. THE SUPPLEMENTAL DECISIONS OF THE BOARD AND THE

court OF APPEALS | OJ

“Upon further review of the ‘evidence with respect

to the cause of. the strike, the Board (one Member

oF ‘The Company filed a petition. for deittiorni ‘with respect to,

' inter alia, this portion of the court’s decision, The Court. de-

nied this petition. 870 U.S. 911. The Company does not now

challenge the propriety of the unfair 7 Bractics —.

- sustained by the court of appeals. iT

10'The Union had filed a petition to review challenging these

findings.

ietetitinsy cooncodel that the strc hind been catised

bythe Company’s failure : to ' bargain in’ good faith

. @nd therefore had been an unfair labor practice strike

from “its inception (Supp. JA: 2342-2354). ‘The:

Board: then-‘evaludted the misconduct of each of the

71 discharged strikers in the light of the Company’s .

unfair'labor practices. 'The'Board (one Member dis-

_ gentitig) ‘coneluded that the policies of the Act would

best! be effectuated by’ the reinstatement of those em-

ployees whose misconduct was limited to participation

in' the thass -picketig of ‘the plant between April 5 _

and May '28; 1954; in the operation of the related pass

system durmg that time; in démonstrations before:

the homes ‘Gf nonstaikers: during August 1954; and

in picketing ‘ofthe employment offtee during Decem- —

ber 1954 and January 1955 (Supp: J-A. 2355-2359).”

y, the Board ¢oxcluded that ¢ertain other mis-

eonduct, ouch ‘as bumping, shoving, ‘shouldering, and

verbal harassment of: nonstrikers, and the temporary

detention of certain trucks ‘and railroad cars’ leaving

the Company’s premises, was not in the citcumstances —

‘so serious as to bar the reinstatement of these partici-

pating (Supp. J.A, 2359-2361). However, the Board

. decided to withhold. reinstatement from those strikers

who had. either engaged in violent physical assaults

on, “nonstrikers or threatened the families of non-

_ strikers (Supp. J.A. 2361-2366).

Supplementing ‘the remediad portions of. the prior

_ order, which had heen enforced by the court of. ap-

' 2:30 "Dhe ‘Frisk Examiner’s secount of thess activities is found

in the record as follows: mass picketing-at J.A. 242-243; home

demonstrations at J.A. 249-250; exploymene eee picketing at

| JA. 251, 255. |

‘peals,’ the: Board: ordered the Ceaipany +o .offer full

reingtatement not only to those strikers replaced after

June: 11954, :but also, to those replaced prior to) that

date, In. addition, the Board ‘ordered the Compat

_ to offer full reinstatement to the: 57 discharged strik-

ers whose reinstatement, the Board had determined

‘would: effectuate. the policies: of ‘the: Act.” : Finally,

the Board! ordered the Company. to make both groups

of strikers: whole: for any’ loss of pay they may have

suffered as. a result of; the Company’s failure to rein-

state them on and\after January 26, 1962,-the date of

the court of appeals’ first decision (Supp. J.-A. 2368).

The court. of appeals: (Judge Miller dissenting)

_ enforeed the Board’s supplemental order in full: The

court stated: “The Board properly applied the prin- ©

ciples ‘announced in our initial decision, and its de- —

terminations are supported by. substantial evidence

on the record eee as a: whole” | (Pet 89). |

a 15, DOSIS ase ne ae 5 ad j Oe ee

| ‘tL, The Scone ‘quent, presented. is the validity

_ of the, Thayer principle, announced in Judge Magru-

: der’ a celebrated opinion in National, Labor Relations

Board v. Thayer Co., 213 F. 2d. 148 (C.A. 1), certio,

. Pari denied, -348 U.S. 883. That principle, we submit,

is correct as a matter of law and eminertly sound and

practical. In the years since the Thayer decision, the

contours of the peipeiple have become pas well

Wswabbdsensel |

| sr Stull wed oleh Ga.tlia lle Geng ‘of! thede

died diiting the course of the Board proceedings; and 17 were

Sei re eee ea

| 92

- defined. Its validity./has ‘not been questioned in any

- eireuits*,; Accordingly, :there ‘is even less reason’for

' the Court: to review the Thayer pginciple at'this time —

_ than there .was when Thayer itself was rae and

: this Court denied certiorari. nde

_ .» When an unfair labor practice is ean the Beard

_ ig required to enter a remedial order that:“will effec-

tuate the policies of’’ the Act (4 10(c)).: To this end

the: Board is expressly authorized in the same’ section

to order. “‘reinstatement of employees”. Thayer held

that the Board may order the reinstatement ‘of em- .

ployees even though they were ‘not: discharged for .

engaging in an activity affitmatively protected by sec- —

tion 7 of the Act, if such an order, is necessary to

‘remedy an unfair labor practice found by the Board

to have been committed. by the employer, and if the

discharge of the employees was not for cause. The re-

sult is that even though some employees may have en-"

gaged in misconduct and thereby forfeited the affirma- |

tive protections of section 7,, the Board may, in appro-.

priate circumstances, order their reinstatement as part

' of the rémedy for the employer’s unfair labor practice.

Such a provision is often necessary for the remedy -

to be adequate. If the main gt 8 unfair labor prac- |

.1,. Thayer has been , ‘Sdlowed. in National Laon. Belations =,

Board y. Puerto Rico Rayon Mills, 293 F. 2d 941, 947 (C.A.. -

1), and Kohler Oo. v. National Labor Relations Boutd, 300 F. ;

2d 699, 703-704 (C:A.D.C.):: Gee ‘also; National Labor’ Rela-

tions Board v. Wallick, 198 F: 2d 477, 484 (C.A. 3); National

Labor Reélations Board v. Wichita Television Corp., 277 F.2d —

579, 585 (C.A. 10), certiorari denied, 364 U.S..871. The deci-

sions relied on by petitioner to demonstrate a conflict among the

Circuits are clearly distinguishable. See nn. 14-15, pp. —

infra. . é

- ©

* fruits of his illegal conduct. . A striking example is

93 oe. oe

- tice was so aggravated’ as to’ provoke the employees’, -

misconduct which led to their discharge, reinstate:

ment may be required’ to. restore thé status ‘quo’ ante

_ the unfair labor practice. It: may’ also be the only

_ remedy that can prevent the-employer from severel

debilitating the union and thereby enjoying the '

provided: by ‘the present case, in which, if. the dis-

- charges are upheld, the local union involved will lose

every: one of the thirteen strike leaders, constituting | |

the bulk” of the “union’s leadership.’ Nor. would an

- order reinstating such employees have the effect of

- condoning misconduct. ‘Numerous ‘sanctions; ‘inelud-

ing union unfair labor practice ‘proceedings: by the

Board, may be available. with respect to the em-

ployees’ misconduct. _ * |

N othing in’ the Act prevents the Board front a exer-

cising its broad’ and’ flexible rémedial powers in this

Biciicocr It is true that the Board ‘may ‘not order :

* To be sure, , the’ ‘Board’s isetetton in ordering’ reinstaie-

er of employees who have engaged in ‘misconduct _ is not |

absolute. If the employee misconduct is much graver than

the efployer misconduct, such an order is improper. See Wa-

tional Labor Relations Board v.' Fansteel Metallirgical Corp., -

6 1.8; 240 (sit-down strike) ; National Labor Rélations Board

ve. Longview Furniture Oo., 206 F. 9d 274 (CA. 4)” (criminal

assault)... The Board plainly didnot abuse its ‘discretion, ‘in

concluding i in the present case (see Supp. J.A. 2355-2366) that,

‘Kohler’s ‘blatant, long-continued, and highly ‘provocative inis-

conduct far outweighed in gravity its ‘employees’ misconduct

_ (mass ‘picketing, demonstrations, bumping, shoving‘ and shoul-

dering, ete. (see pp. 12, 20, supra)), and that application of the

Thayer principle’ was necessary to provide a complete remedy

for Kohler’s unfair labor practices; the Board denied reinstate-

ment to those Calera, Who had made ‘either violent physical

fey

($'10(e)). “But iit: is aiquestinn of faet in every case

',. whether: the’ discharge: of ‘employees: who ‘engagedin

some misconduct by::an’ émployer guilty ‘ofan'unfair -

_ labor: practiee ‘was! “for dause’’..: If ‘the! employer's. -

- itlegab conduct set in motion the ‘train of’ events Iead-

ing to‘ the employees’ discharge for ‘miseonduct--as

the Board 'fotmd in: the present 'case—theni the -basic”

cause of the ‘discharge: is not the employees’ but the

employer's: wrongdoing. ° Sueh a discharge is’ surely

not “for eause” within’ the statutory intent. “What is -

ounse'im one’ situation may ‘not 'be in another.” ° ‘Na-

tional ‘Labor Relations Board v: Thayer Co, =

bc er emma nom vista “olan 2a

reper ernie

assaults on, or threatened the familigs of, nonstrikers. In any

‘ event, the question whether the Thayer principle—assuming it

is valid-was correctly applied to 'the particular ‘factd of this

Le

’ Union v.

Of (CAD. de

= pal

ee a 7 item Beis on

sareeeny ty ona os ti io

misconduct, ‘8 contention wholly unrelated tp the, Uhayer

tn]

reinstatement’! of: erploysce discharged: “for cause’? — | .

Q

4

-

Pe 4

, ee eee os -

tilt Biatitioner alee soribenii that the amazt if appeals.

pases its reviewing : function. in) wemanding | the

case. to the. Board: for reconsideration (o£. the. question

_ whether the strike had been an ,unfair labor: practice _

| strike from its inception: In its initial, decision, the

* Board, in concluding that therehad ‘been: no. general

ized refusal ‘to bargain: prior-to.the,strike:in April

1954, and that consequently the-strike had. not-been -

eased by unfair labor, practices, hed ‘given little

= weight to the Company’s: pre-1953 attempts to prevent

an independent: union from gaining: a ‘foothold. ;;The - -

Board’s reasoning, was thai the Company's action: in

signing a eontraet with the Union in 1953 neutralized _

the past history (J.A; 11-20, 29-30). The court: of © .

appeals held that the Board had erred in discounting

the pre-1953 history merely because ‘of the 1953 con-

tract with the Union.. It: neoted_ that: the Company

subsequently committed three unfair labor practices

‘designed to frustrate the operation of the’ grievance ».

'° procedure-established: by; the contract, conduct which, |

whén viewed against the background of the Compaty’s —

_ long-continued and adamant opposition to ‘the’ uxiion,

* east ‘the gravest doubt on the-Company’s good faith

in the negotiations, preceding tié strike (Supp. J-A.

; 2327-2330). The- court” ‘accordingly remanded the -

case to the Board for reconsideration of this question.

The Board accepted the remand, reexamined the sd

ord in the light of the court of appeals’ opinion, an

concluded that the. Company had in fact refused Z

bargain in good faith prior to the strike and that this

* unfair labor practice had been a cause of; oe, eirike

(Supp. J A. aang y :

>t is: the’ duty of a reviewing court to: determine -

' whether'the findings of the Board are supported by —

__ substantial evidence onthe record considered as a

‘whole, ‘and if they are not, to set aside the Board’s

order: Universal Camera Corp. v. National. Labor

’ Relations Board, 340° U.S. 474..The record.in the

present case (see pp. 3-16, supra) clearly justified the

court of appeals in setting aside~the Board’s original .

order.on the ground that the Board given undue -

weight to the Company’s action in signing the 1953

contract. At all events the question whether the.court

correctly applied the Universal Camera principle to

the facts of this case does not have sufficient general _-

aka a Fae to warrant review by: this Court.

fh?

CONCLUSION

‘The: petition for a, writ of certiorari should sae

Respectfully ‘aeiaak: arch :

6

Ratpu §. Semrvan!

) « i Acting Solicitor General.

| demas Ounce tiivehe has hank :

@ . General Counsel,

Dominick, L, Manon, .

°, . | Associate General Counsel,

. Norton J. Come, .

Assistant General Counsel,

Se ee | Se

7 Attorney, . 3 ,

Ms National Labor Relations Board.

~ Avaust 1965.

- U.S. GOVERNMENT PRINTING OFFICE: 1965