# Opposition Brief — Kohler Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0755%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 836 ## Text 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 (1) 784—099—65——1 M] wormrmmes _—_ oO bd tS = GO = © } | 1 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. 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- - - + 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0755%3A6. Public record. Not legal advice.