PART I KOHLER AND THE AUTO WORKERS UNION 1. KOHLER OF KOHLER

FIFTY MILES north of Milwaukee and just west of Sheboygan lies one of the prettiest towns in the United States. There is a winding river with smooth meadowland on either bank, here a copse, there a village green, and everywhere clusters of comfortable homes set in wide lawns. The streets are broad and spotless, and the city dweller, struck by what seems to him an uncanny quiet, is relieved when he sees children along the margins, making kids’ noises, playing the same games that kids play all over the country. As he moves on, if it is summer, he hears reverberating yells such as come only from an indoor-outdoor swimming pool in full swing. Then he is at the village recreational-cultural-educational center. Adjoining the Olympic-size swimming pool in its enclosure of gigantic sliding glass doors, he finds a theatre whose design and acoustics have been praised by all visiting artists, from Marian Anderson to Cesare Siepi. Next to that stands a big gymnasium, and beyond that a cluster of school buildings which would grace any college campus—schools which enhance the town’s appeal and play their part in the brisk bidding for the village homes when they go up, as they all too rarely do, for sale.

Kohler Village, pop. 1715, did not just happen. It is a community with a purpose, built deliberately around a plan, intended to realize a dream. The dream was that of an Austrian immigrant, John Michael Kohler, who saw that his thriving business could not expand properly in Sheboygan and who felt that living and working could be combined with pleasing results in the right environment. It has taken a long time, a persevering dedication, and downright business acumen—for the whole plan would dissolve if the business failed—to make it all come true. But the necessary ingredients were there. The plan has not failed. John Michael Kohler would more than likely be pleased if he could see what his sons, their associates, and the villagers have wrought with the business he founded in 1873.

Merging with the village, neither dominating it nor lost in it, is the means of production which provides income for most of the village people, as well as for a large number of residents of nearby communities. With a payroll of over four thousand, Kohler of Kohler is the largest employer in Sheboygan County. Its plants and buildings do not mar the countryside, although they cover more than two hundred acres. They give off no dirt. What noise they make is in audible outside the fence which surrounds them. There is a new engine plant, big enough to contain eight football fields. But like the older plant buildings, the offices, and the foundries, it has a pleasing line, charmingly old fashioned in comparison with some kinds of modern construction, yet thoroughly functional and in harmony with the other plant buildings. Futuristic notes are supplied by a maze of power lines, and by a row of prodigious tanks for the storage of butane (Kohler was once the largest industrial user of butane in the country, and perhaps still is). The contents of these silvery tanks could blow up the whole county if carelessly handled or sabotaged. But the Kohler people do what they can and must to preclude either.

With all its charm and peace and quiet, Kohler Village is pretty isolated. Transients, business callers, visiting artists, single persons working at the plant, school teachers and others need a place to stay in the Village for longer or shorter periods. The homes, practically all owned in fee-simple absolute by the people who live in them, are not available for such purposes. Even the few owned by the Kohler Company are occupied by lessees. Hence the American Club, a rambling building with hotel facilities, has been provided by the company. The Club faces the main offices across a broad mall and a wide road called High Street, and is within walking distance of all the places which either transients or longer term residents need to reach. It is quiet and comfortable, an architectural gem, with spacious rooms and accommodations easily the equal of the best commercial hotels. The bar is first rate and the food is even better. The plumbing is by Kohler.

Kohler Village was—and is today—what few other industrial communities anywhere in the world have been: a combination of beauty and utility, of tranquility and industriousness, of peace and productivity. Houses in the village command thousands of dollars more than similar houses elsewhere in the area. The taxes are low. The schools are famous. One hears that “it’s a great place to bring up kids.” One hears almost equally often that Kohler has very rarely, even during the depths of the depression, laid off an employee. Kohler workers stay with the company a long time; well over one thousand belong to its Twenty-Five Year Club. The firm has had group life, health, and accident insurance since 1917; an informal pension fund since time immemorial, which was fully funded in 1949; and a company-paid workmen’s compensation program before state law started to compel such plans in Wisconsin, in 1911. Himself an immigrant, John Michael Kohler was deeply opposed to the exploitation of immigrant labor which was prevalent in many areas when he founded his company. In every respect, he stood for labor relations far in advance of his time, and his sons built soundly on his attitude. As a result, a deep loyalty to the company developed over the years, both among its employees and in the community. Kohler came to be known as “a good place to work” and “a place where you got a square deal.”

2. THE SEQUENCE OF EVENTS BEFORE THE STRIKE

KOHLER VILLAGE was not quiet on April 5, 1954. Marching in solid ranks before the main entrance to the plant early that morning were some two thousand persons. They were there to prevent anyone from going to work, and they succeeded. As one eye witness put it, “employees attempting to enter the plant were slugged, kneed in the groin, kicked, pushed, and threatened,” almost always by the group of militants who had come from out of town to “help.” For fifty-four days, despite restraining orders, agreements by union officials to obey those orders, and efforts of the Kohler management and nonstriking employees, the plant was shut, in the words of one union officer, “as tight as a drum.” It was many more months before persons might go to their jobs in peace without fear of reprisals to themselves, their homes, and their families. The life of surrounding communities was torn and disrupted. All is not entirely calm, even today. And the recent decision of the National Labor Relations Board has reawakened animosities which had been lying dormant in the slumber which precedes oblivion.

Before the NLRB’s decision can be properly understood it is necessary to consider the sequence of events which led to the violation of the peace of Kohler Village, and to pursue the tortuous occurrences which followed. When we have done that we shall undertake a careful examination of the decision.

On April 17, 1952, the leaders of the Kohler Workers Association (KWA) a small union of Kohler employees, voted to affiliate with the United Automobile Workers of America (UAW). This decision, unlike others made by the leaders, was kept secret, “because,” as one of the KWA leaders testified under oath before the McClellan Committee, “we wanted to be sure the affiliation went through a lot of people who were still sympathetic with the KWA and the company . . . so we expunged this from the record so it wouldn’t go in the paper.” Ten days later, however, the proposition of affiliation with the UAW was put up to the membership. With time for little reflection on the issue, the membership approved the affiliation. Not quite two months later, in an NLRB-conducted election held on June 10-11, 1952, Local 833 of the UAW was selected as bargaining representative by a slight majority of the Kohler employees participating in the election, receiving 52.6 per cent of the votes cast. The NLRB thereupon certified Local 833 as the exclusive representative of Kohler employees.

Upon request of Local 833, the Kohler management entered into negotiations which continued from August of 1952 to February of 1953 before the parties could come to a mutually acceptable agreement. That agreement, scheduled to terminate on March 1, 1954, was hailed by the union’s leaders as “a real victory.” They estimated its wage gains, including fringe benefits, at eighteen cents per hour. Moreover, the contract contained a quarterly wage-reopening provision which the union soon utilized.

At the earliest possible date, May 23, 1953, the union demanded an additional increase of fourteen cents an hour. It finally settled for three cents. Later, in October of 1953, the company began compiling data on the incentive earnings of its employees pursuant to a request by the union. The union took the position that there were substantial inequities in the system of payment of incentive earnings. Although disagreeing that there were such inequities, and feeling rather convinced that the union was merely looking for the bitterest possible source of contention, the Kohler management nevertheless believed that it should go along with the union representatives’ request for information in order to demonstrate its good faith. Later, when reviewing the facts to this point, the NLRB found that the Kohler Company “fully met its obligation to bargain in good faith.”

With the termination date of the contract coming on March 1, the company began as early as December 12, to invite meetings with the union negotiators in order to form a new contract. Again, on January 15, the management urged an early exchange of contract proposals so that negotiations might not be impaired by the pressure of an imminent expiration date.

Curiously enough, the union leaders seemed to be dragging their feet at this stage. However, contract proposals were exchanged on January 25, and on February 2, negotiations began, with a nine to five schedule on normal workdays. Between February 2 and April 3, the parties had twenty meetings, consuming a total of at least a hundred hours. Agreement was reached on several points, the number of issues was substantially reduced, and, while disagreement persisted on the major points, even there the issues were narrowed.

There was some shadow boxing at this stage of the negotiations, but apparently the union negotiators were mainly responsible. Both the NLRB and its trial examiner found that the company’s bargaining representative, Mr. Lyman C. Conger, repeatedly urged that the parties “get down to the meat of this contract.” It was only after considerable such prodding, said the NLRB, that the union “reluctantly agreed to turn its attention to the major proposals.”

The major issues which divided the parties in the course of the February negotiations, and which continued to divide the parties throughout the dispute, according to the union’s principal negotiator, Mr. Robert Burkart, were these: arbitration, union security, seniority, pensions, insurance, general wages, and a paid lunch period for employees in the company’s enamel shop. These were to become known as the “seven major issues.” On all the company made one or another concession. This is true even of the union-security issue, upon which the company held deep convictions. It felt, and still feels, that union leaders do not have a right to make union membership a condition of employment, any more than company executives have a right to insist upon non-union membership. Yet the company was willing to go along with checking-off union dues, if voluntarily authorized to do so by the individual employees involved. On the other issues, company concessions were more substantial, but still not substantial enough for the union negotiators. The NLRB trial examiner said: “[The Kohler Co.] maintained its position on the various issues by supporting arguments which were legitimate, and, in the main, reasonable, though they failed in persuasion.”

With negotiations pretty well deadlocked, the union proposed on February 25, just a few days before the March 1 termination date, that the 1953 contract be extended for one month. The company counteroffered to extend the contract for a full year, with its quarterly wage reopener. The union having rejected this offer, the company on the next day offered a general increase of three cents an hour, together with such proposals as it had made during the February negotiations on the other issues. These were to include all the agreements thus far reached. The union negotiators declined this offer, too.

On March 2, the company announced to both the union and the employees involved that termination of a government contract on June 30, 1954, would necessitate ending the employment of the temporary workers in the company’s shell department. These employees had been hired originally under the understanding that (1) their employment was contingent upon the government contract and (2) if other jobs were available for them upon termination of the contract they would be transferred to such jobs with seniority dating back to their original time of hiring. The reader should bear this in mind, as well as the fact that the announcement was made before the company could have known that there would be a strike in progress as of the date of the termination of the shell contract.

Between March 3 and March 8, the parties met with government mediators. The result of these meetings was again a stalemate. The union negotiators listed the same seven issues which had stalled negotiations previously, declaring they had reached their “basic” position on them. They were apparently serious about this, for Mr. Burkart even refused the request of the mediators that the parties go over the issues again. In view of the deadlock, the union negotiators said, a strike vote would be taken on March 14. The view of the Kohler negotiators was similar. On March 10, in response to a request from the mediators, they summarized the issues and the company’s views, and said that the company had reached its final position. Thus, as of March 10, both parties agreed that they were at loggerheads.

The strike-vote was held on March 14. Of 3344 Kohler employees eligible to vote, only 1253 actually voted. Of these, 1105 voted in favor of striking and 148 against. It should perhaps be noted that a frequent reaction of employees who do not want to strike, but do not quite dare oppose the union organizers or union leaders openly, is to be absent at at the time a strike vote is taken.

Negotiations were resumed on March 17-19 but were again fruitless. The union representatives declared that further meetings would be a waste of time, and the company negotiators agreed. The meeting of March 19 closed with a blunt suggestion by Mr. Jess Ferrazza of the UAW that the company prepare for a strike.

The parties did not meet again till April 2. On that and the next day discussions were conducted under the pall of an announcement that a strike would be called on April 5. During the meeting of April 2, Mr. Harvey Kitzman, another UAW representative, suggested that the union and the company discuss the matter of company operations during the strike. Mr. Kitzman thought that arrangements could be made for those few who, the union thought, should be allowed to enter during the strike. He offered the kind of “pass” arrangement which the UAW leadership generally tries to obtain in advance when there is to be a strike. This device admits only supervisors, maintenance men, and office workers. Mr. Conger declined the suggestion, saying that the company intended to make its own decision on whether or not to keep the plant open for those of its employees who wanted to work.

Thus ended the pre-strike negotiations.

3. THE STRIKE BEGINS:
VIOLENCE AND BARGAINING IN THE SUMMER OF 1954

AT FIVE O’CLOCK on the morning of April 5, when the two thousand tightly ranked pickets blocked the three regular entrances to the Kohler plant, the strike began; and it was clear that the Kohler contract proposals had definitely been rejected. One of the first steps taken by the company that day was an official announcement to all supervisory personnel that the three-cent increase rejected by the union was to go into effect immediately. Work was almost at a standstill; attempts by large numbers of non-striking personnel to enter were rebuffed by the massed pickets—not only that day but every day thereafter for fifty-four days. Hence for almost two months there were only a few employees to enjoy the three-cent increase. But there is no doubt that those at work received the increase instantly, and that it was effective for the rest as of April 5, 1954. Kohler’s Bulletin for Supervision under date of April 5, 1954, announced that:

Effective today (April 5) all employees in the bargaining unit who report for work will receive the three cents per hour wage increase.

Since negotiations with the union have reached an impasse, we are putting this increase into effect.

Repeatedly from April 5 to the end of May, groups of Kohler employees tried to get back to their jobs, but despite all their efforts to breach the massed pickets, they could not force their way in to the plant. Allan Graskamp, president of Local 833, as well as higher officials of the UAW, such as Emil Mazey, admitted before the McClellan Committee that the mass picketing was designed to prevent nonstrikers from going back to work. Although it is a basic right of every American to work during a strike, Mr. Mazey took the position that “no one has a right to scab despite the law.” His view, shared by most of the other union officials, was that workers who do not join in strikes are like traitors to their country—and that they should be treated as such. The Sheriff of Sheboygan County repeatedly refused to exercise his authority, or to do his duty, in aid of the workers who wished to continue at their jobs. The Mayor of Sheboygan failed to protect their homes and family life from vandalism and degrading assaults.^*

Both sides were apparently aware that, but for the mass obstructive picketing, large numbers of Kohler employees would report for work. Mr. Conger indeed often expressed the opinion that the UAW’s precarious grip upon the loyalty of the Kohler workers was the most important single fact in the case, that the union’s insistence upon a compulsory unionism agreement was what really prevented an early agreement, and that there would have been no need for mass picketing if the workers had really wanted to strike. The NLRB’s trial examiner recognized these things when he said:

Obviously picketing on the scale and in the manner as here conducted was reasonably calculated to bar, and had the necessary effect of barring, ingress and egress to and from the plant. The Union recognized that this was so; its boastful banner headline in its newspaper on April 8, correctly described the situation: ‘SHUT DOWN LIKE A DRUM.’ That the Union hoped and intended to keep it so was plain from all the evidence down to the time that the enforcement proceedings, brought by WERB, forced the Union to open its picket lines on May 28.

The trial examiner also concluded from all the evidence that the union’s strike strategy committee “turned on and off the type of picketing at will.”

The Kohler people moved early for an injunction against the union’s obstructive tactics, citing the obvious violation of both state and federal law which those tactics involved. On April 15 the company asked the Wisconsin Employment Relations Board (WERB) to take the steps necessary to restrain the mass picketing. The union did not challenge the charge that its conduct violated state law. Instead, on May 4, the union moved to adjourn the WERB hearing on the ground that it needed time to prepare a suit in federal court to challenge the state agency’s jurisdiction. (Incidentally this challenge went all the way to the Supreme Court of the United States, with the Court finally holding that the WERB had jurisdiction to control picket line force and violence.)

During the WERB hearings Mr. Conger announced to the UAW representatives that the company did not intend to tolerate the flagrant invasions of human rights of which the union was guilty. It would not bargain with a gun at its head, and it intended to discharge or deny reinstatement to all strikers who participated in illegal conduct. Mr. Graskamp answered this by saying that “you are going to take everybody back—every striker back.” The union was thus put on notice very shortly after the strike began that the company would take a stern view—within its legal and moral rights—of the union’s unlawful violence. The company learned too at this early date that the union intended to insist, as a condition to settling the strike, upon the reinstatement of even strikers guilty of unlawful conduct.

In spite of his indignation, Mr. Conger agreed to an adjournment of the WERB hearing when, pursuant to a request by the WERB, the union promised to keep its picketing within legal bounds. Mr. Conger also agreed to negotiate with the union, and the parties actually met on Friday, May 7, 1954. That meeting produced no results. The union then proposed meetings over the week end. When Mr. Conger declared that he saw no reason to meet before the following Monday, the union negotiators broke off, and resumed the mass picketing the next day. Even the NLRB’s trial examiner had considerable difficulty understanding this sequence of events. He said: “What is mystifying about this part of the case is why under all the circumstances the union chose to end the WERB truce by resuming mass picketing.”

With the violence growing daily, with community bitterness constantly increasing, and the Kohler employees who wanted to get to their jobs unable to enter the factory, the WERB on May 21 finally issued a comprehensive order against the union’s obstructive mass picketing and violence. The following day, May 22, is notable in this chronicle in two ways. First, President Walter Reuther of the UAW visited the Sheboygan strike headquarters. Second, the union leaders officially announced that the WERB order of May 21 was not enforceable and that, in any event, they intended to disregard it. Again, therefore, attempts by large numbers of Kohler employees to return to work were frustrated.

By May 28, the WERB had had enough. It took its order against illegal violence to court for enforcement. With this final and much delayed resort to the real courts of the land, one phase of the unlawful conduct ended. Under threat of a comprehensive court order, the union leaders promised again to obey the original decree of the WERB. At the same time, persuaded by the judge’s suggestion that it credit the promise at least until it was broken, the Kohler management agreed once more to meet with the union leaders and to discuss with them the contract issues which they had already covered so many times.

On and off throughout the month of June, 1954, Mr. Conger and the company’s negotiating team met with the union representatives, going over and over all the previous proposals and even considering new issues raised by the union—and this in spite of the fact that acts of violence were being committed by union members and imported international union agents throughout this period. Thus the company continued to compile information on incentive earnings which the union negotiators had been asking for. While the pressure of other problems created by the union made it impossible for the company to deliver the data relevant to the alleged inequities precisely when the union leaders wanted it, there was never any question of ultimate compliance, and Mr. Burkart had agreed that “inequities were a side issue.” Moreover, the company came to an agreement with the union during the June negotiations on procedures for dealing after the strike was ended with the striking temporary shell department employees whose jobs were to terminate, as the union knew, on June 30.

On June 24, Mr. Conger again protested the union’s violent tactics. As soon as mass picketing was prevented by the injunction, a campaign of vandalism and violence started. A non-striker’s telephone might ring at intervals all night. If he picked it up he would hear threats and obscenities. In the morning his car’s paint might be ruined by acid, or sugar in his gasoline tank might put the engine out of commission. A “paint bomb” might be hurled through a window of his house and shatter against the wall, ruining rugs and furniture. His livestock might sicken, and investigation would reveal that they had been poisoned. A count placed the number of such incidents at more than four hundred, but the count was limited to those who came forward with affidavits, and it is therefore probably low.

The Kohler employee who dared now to withhold himself from the strike which had originally been voted by a minority of the total labor force was ringed by a terror which engulfed him in sadistic threats and cruelty. Sometimes the terrorism would become blatant, as when the strikers and the “men from Detroit”—the international’s organizers sent down by the central UAW—would make a tavern their own special haunt. One non-striker was trapped in such a place and so terribly beaten that he suffered three broken ribs and later contracted pneumonia. But probably more devilish than beatings or the destruction of cherished possessions was the most open of the visible pressures—a device the union called “visiting at home.” A man would return from work to find that the way to his house—his own front lawn—had been packed by strikers, strike sympathizers, and the omnipresent “men from Detroit.” Among them would have been gathered as many of his own personal friends and neighbors as possible. Through jeers and catcalls and obscenities, and surrounded by a crowd of the merely curious, he would have to make his way to his front door.

The union leaders thus applied pressures which made the entire community a veritable hell. And all this took place curiously and numbingly outside the law. A man could not retaliate, sue, or even effectively call the police, for those law officers who were not impotent because of political sympathies were restrained by the fear of provoking further violence and causing greater suffering to the community.

Fair play became a mockery in Sheboygan. While the negotiations were going on, violence never slackened. The man who was beaten and suffered three broken ribs in the “union” tavern to which he had unwarily gone was Willard Van Ouerkerk. His age was about fifty, his height was five feet six, and his weight was one hundred and twenty-five pounds. His attacker was one of the “outsiders,” a “Detroit man” sent in to “help.” His age was twenty-seven, his height was six feet three and a half, and his weight was two hundred and thirty pounds.

Mr. Conger finally announced that because of the violence against Kohler employees and because the negotiations were developing no signs of any disposition on the part of the union to accept the company’s proposals, the negotiations would have to be broken off if the violence continued. Jess Ferrazza said: “The trouble hasn’t even started yet. We haven’t gone into high gear yet but we are just about to do so.” Mr. Kitzman said, “I hope you will never go the route of soliciting employees because then the trouble will start.” It was at this time that Mr. Mazey said “No one has a right to scab despite the law.” Meetings on June 25 proved futile. Violence and vandalism continuing unabated, on June 29, Mr. Conger broke off negotiations.

The June negotiations play an important part in the NLRB’s decision, and for this reason it will be of service to note carefully what the trial examiner had to say of those negotiations:

Negotiations were carried on almost daily from June 1 to 25. On the surface, at least, substantial progress was made toward reaching an agreement. Burkart testified that during those meetings [the Kohler Co.] made ‘the most important concessions’ which it had made, and his summary of negotiations of June 20 showed numerous concessions and changes proposed or agreed to on the major issues of seniority, pensions, and insurance, as well as on the other matters. Speaking on the Union’s radio program during this period, Burkart similarly acknowledged that improvement had been made in the contract, and Graskamp referred to the Company’s apparent bargaining in good faith on major issues. The daily strike bulletins also carried similar comments on the Company’s apparent sincere willingness to explore avenues of agreement.

While the Company was thus bargaining in good faith, making many concessions, the union’s campaign of terrorism was reaching a new height. At about this time Mr. John Gunaca, together with other thugs imported by the union from Michigan, savagely mauled William Bersch, a sixty-five year old Kohler employee, and his son William Jr. The elder Mr. Bersch was beaten so badly that he had to stay in a hospital for eighteen days. Moreover, he had to return to the hospital seven times after that and in fact never fully recovered his health to the day of his death. Mr. Gunaca fled to Michigan, where for over four years he was protected by the governor of that state against attempts by Wisconsin authorities to secure his extradition. When he finally returned to Wisconsin to face trial, in 1959, Mr. Gunaca was found guilty of the assault on the Berschs and sentenced to three years. Earlier, Mr. William Vinson of the UAW had been convicted of the assault on Mr. Van Ouerkerk and sentenced to a one to two year term, of which he served thirteen months. These are but two of the hundreds and hundreds of acts of violence, vandalism, obstruction, and harassment which occurred during the summer of 1954 and for the next two years. The interested reader will find a fuller account in parts 21 to 26 of the McClellan Committee’s Hearings and in my book, Power Unlimited: The Corruption of Union Leadership.^*

After negotiations were cut off on June 29, the company issued a routine announcement—entirely in accordance with its earlier announcement of March 2 and with the understanding of the union as a result of the June negotiations on the subject—that the employment tenure of the striking temporary shell-department employees was terminated. Shell-department employees who had chosen not to strike were transferred to permanent status in other departments of the plant. The shell contract was exhausted, and there was no more work in the shell department, but there was plenty of work elsewhere in the plant. Therefore, following its past practice and in compliance with an understanding embodied in the 1953 collective agreement, the company made these transfers. Had the striking shell-department employees applied for other work in the plant, the company would undoubtedly have done the same thing for them. This inference cannot be gainsaid, for the company restored hundreds to their jobs during the summer of 1954. In fact, it never did deny reinstatement to any striker who applied, except for ninety or so persons who had been guilty of serious misconduct, and as to them the NLRB upheld the company’s position entirely. One more thing: setting aside a single dubious incident which we shall consider later, it is clear from the record that the company took not a single step to induce any one to come to work during the strike. While granting jobs without discrimination to striking applicants, the Kohler Co. never once advertised for or solicited employees during the strike. It did not need to do so. Despite the union’s reign of terror, applications for employment were abundant whenever workers could make their way to the employment office. At least a half of these applicants were strikers or former Kohler employees.

As employment at Kohler grew during June and July—and quite possibly because of that fact—the union’s campaign of violence and intimidation increased. So much so that the company refused to meet with the union throughout July. Mr. Conger firmly repeated the company’s avowal that violence and lawlessness would not be rewarded or encouraged in any way. However, when federal mediators suggested further meetings in August, the Kohler management agreed to meet with the union, and from August 4 to 13 several meetings were held. The seven major issues (arbitration, union security, seniority, pensions, insurance, general wages, and a paid lunch period in the enamel shop) which had dominated all past negotiations continued to dominate the August meetings. On August 10, the union submitted what it described as significant modifications of its demands on these issues.^* Mr. Conger declared that the union’s demands were in substance the same as they had previously been. As an example he cited the union’s “change” from a standard compulsory union membership clause to a demand for maintenance of membership, together with automatically renewed check-off of union dues from year to year. He was substantially correct on this. The union shop permitted by the Taft-Hartley Act does not differ greatly from the kind of check-off of union dues which the union was asking for on August 10.

On August 13,^* in a formal reply to the union’s proposal of August 10, the company once more offered what it had offered in previous negotiations, plus of course the concessions it had made from time to time, as for example in the June negotiations. It repeated its position on the seven major issues and went over them carefully with the union on August 13. The problem concerning re-employment of strikers guilty of misconduct was also discussed. On this the union’s position was still the same: “everybody was going back to work with full benefit rights and without discipline of any kind.” Mr. Kitzman said that the strike could not be settled on the basis of the company’s offer, and Mr. Conger said that it could not be settled on the basis of the union’s demands. Mr. Graskamp asked whether the company had made its final offer and whether there was any possibility of further concessions. When Mr. Conger repeated that the offer was final, Mr. Graskamp said: “If this is the company’s final offer, the hinges on the door are in good working order and you can use them.” The Kohler people then left the room.

Although the federal mediators attempted to induce further meetings, the union announced on August 16 that the membership had voted to reject the company’s offer of August 13. This fact made further meetings seem useless, but another series of occurrences forced a wider breach between the parties. Starting about August 4—again just as the company renewed negotiations—nonstriking Kohler employees in Sheboygan were subjected to a frightening series of “home demonstrations.” Mobs sometimes numbering in the hundreds would congregate at the homes of nonstrikers, heckling them, calling them dirty names, and frightening their wives and children. For the trial examiner they were “disgraceful spectacles of mob proportions, with as many as four hundred, five hundred and even seven hundred persons assembled.” Following its firm resolution to refuse to bargain with “a gun at its head,” the Kohler management on August 18 declared that it would not meet further with the union representatives until the vicious and unlawful pressures upon the people and the workers of the community ceased. The parties did not meet again in August 1954.

*

Thus ended the second stage of the dispute. Despite the union’s succession of unlawful strike tactics, its resistance to legal process, and its dishonoring of its repeated promises to desist from its illegal violence, the company did not completely break off relations. At the barest suggestion of any sincere intent by the union to abandon unlawful violence, Mr. Conger was quick to resume negotiations. He met with the union on May 7, in the midst of the mass picketing, on the basis of a promise (which was not kept) that the coercive picketing would be ended. He met again with the union for almost the whole month of June and engaged in serious negotiations concerning which the union leaders expressed satisfaction, despite the fact that union agents engaged in a succession of brutal assaults in the face of a promise to obey the Wisconsin court’s order of May 28 against coercion. On the suggestion of federal mediators, in August, the Kohler management met with the union again. It offered the same contract proposals that it had been making all along, together with such modifications as had been agreed upon in the interim. When the union people stood fast on their earlier demands, and when the home demonstrations reached an intolerable height, the meetings were broken off once more.

4. THE SEPTEMBER NEGOTIATIONS

BY SEPTEMBER of 1954 it was apparent that the UAW had made a serious and (from the point of view of its members) a very costly error in striking against the Kohler Company. The union learned by then that without large scale violence and mass obstruction it could not shut down the plant, could not keep Kohler employees and other residents of Sheboygan County from applying for work at the factory. And, slowly but surely, the Kohler management’s efforts to secure legal protection of its rights and of the rights of employees who wished to work were bearing fruit; the union’s violent interferences were being confronted by the law. Matching the UAW’s persistent use of intimidation against those who chose to work, the company with equal persistence pursued its legal remedies.

It was a slow process. The company’s losses during the early months of the strike while the union had the plant virtually barricaded were enormous. The personal harm done to those who wished to work during the strike and to their families was shameful. But by the end of August, when specific court orders prohibited the mass picketing and the home demonstrations, things were picking up at Kohler. Employment and production, though not yet up to prestrike levels, were climbing rapidly. Careful observers on both the union and the management side could, and some did, conclude that Kohler was winning the strike.

The union’s reaction was typical. When on August 30 the home demonstrations were held by Judge Arold F. Murphy to be a violation of the standing injunction, the UAW changed its tactics again. It began to picket the Kohler employment office in an obstructive and coercive manner. It also took the first steps toward the nationwide boycott of Kohler products by means of which, it publicly threatened, the company could be destroyed.

Under the circumstances, the Kohler management might lawfully and justifiably have continued to refuse to meet further with the union, or it might at least have taken a firmer stand in negotiations; for it would have been economically feasible as well as understandable and lawful for the company to stiffen its bargaining position. The Kohler management chose, however, neither to decline further meetings with the union nor to withdraw any of the contract offers it had previously made.

After holding that the union’s home demonstrations violated the injunction, Judge Murphy gratuitously offered his services as a mediator between the union and the company, saying that he had had successful experience in that role and that, although neither party had to accept his services since he had no legal standing, still he might be able to do “some good.” With the background provided by six months of bargaining with the UAW on the stalemated issues, Mr. Conger expressed the opinion that further meetings would be futile. In spite of that feeling, however, Mr. Conger agreed to meet with Judge Murphy, the federal conciliators, and the union negotiators.

Several meetings were held in September. At times all of the parties just mentioned met together; at times Judge Murphy met with one or more members of the union’s bargaining team; at times with Kohler negotiators alone. Early in September, after having met with the union negotiators, Judge Murphy suggested to the Kohler negotiators that the strike might be settled if they would offer the union “seven cents or even five cents” (including the three cents already granted). All the other issues, he insisted, could be forgotten except the arbitration issue; and even on the latter, he said, the union was prepared to accept a clause limiting arbitration to discharges.

As we shall see, both the NLRB and its trial examiner took the position that these suggestions by Judge Murphy constituted a binding offer by the union to concede on all the other issues if the company would only raise its wage offer to “seven cents or even five cents.”

This conclusion is in conflict with the facts. In the first place, Judge Murphy himself stated that the union would continue to insist upon the arbitration of discharges—a proposal which the parties had discussed previously and upon which they had reached an impasse.

In the second place, the record establishes that Judge Murphy had not transmitted accurately to the Kohler negotiators even the wage increase that the union negotiators had hinted that they might accept. Mr. Harvey Kitzman, one of the union negotiators, testified that the union had told Judge Murphy “that we would take seven cents and [an additional] three cents for the skilled trade workers”—not “seven cents or even five cents.”

In the third place, Judge Murphy was simply in no position to bind the union in any way, for he was not, and he knew he was not, an authorized union agent. He knew that he was not authoritatively conveying an offer to the company from the union. He knew that what he was doing was the precise contrary: he was seeking to persuade the company to make a higher wage offer than it had made during the whole preceding six months of negotiations with the union, in the hope that such an offer would move the dispute off dead center. These facts emerge from Judge Murphy’s testimony before the McClellan Committee. The Committee’s Chief Counsel at one point asked the judge whether he had gone to the company “with the understanding . . . that you could speak for the union and perhaps settle the strike.” Judge Murphy’s reply indicates his complete understanding that he was only seeking a further concession from the company which, he hoped, might lead ultimately to an agreement. This is his reply to the Chief Counsel’s question:

I had the feeling that there was some chance of my getting an offer from the Kohler Company officials of some increase in wages which I thought would break the log jam or be the important opening wedge to final negotiations.

This testimony was rejected by both the NLRB and the trial examiner. In reaching their conclusion that Judge Murphy was making a binding offer on behalf of the union, the Board and its trial examiner also ignored even more illuminating testimony. Conclusively refuting the finding that he was acting on a specific authorization from the union, Judge Murphy testified that:

The mere mention of the words ‘five cents’ was purely my own device, but I said I was sure I was authorized to make the statement because I had confidence that I would be able to sell the idea of five cents to the union. Of course, I could not give anybody any assurance of that.

In the circumstances it is not surprising that the Kohler management was skeptical. Mr. L. L. Smith, Kohler Executive vice president, a man who had participated in some of the previous negotiations with the union, said that he very much doubted whether the judge’s opinion was well-founded. The Kohler negotiators were strongly convinced, in particular, that the union would insist that all the strikers be reinstated, even those whom Kohler intended to discharge because of their participation in illegal violence. Contrary to the NLRB’s finding, this problem was not raised for the first time in the September negotiations. It had been raised several times previously, and each time the union negotiators had insisted that every striker would have to be reinstated, even those who had been responsible for the most seriously unlawful conduct. The Kohler people found it difficult to believe, finally, that the union was ready to abandon the firm stand it had taken on the seven major issues which had deadlocked the parties ever since February of 1954.

Later in the month, when the company met, not with Judge Murphy alone, but with him and the union’s full negotiating team, including both Mr. Kitzman and Mr. Mazey (the highest official of the UAW who participated in the negotiations), the company’s skepticism was confirmed. Judge Murphy opened this meeting by reviewing what he felt were the basic issues separating the parties at that time. His view as expressed then was that “the question of wages, a general wage increase, the question of arbitration, and return of strikers to their jobs were the three basic issues that were keeping the union and the company from reaching a settlement.”

But Mr. Mazey took sharp exception to Judge Murphy’s opinion. Testifying in the NLRB hearing, Mr. Mazey said:

I disagreed very sharply with Judge Murphy. I said that the balance of the issues were still in the picture, and that the question of the return of strikers to the job was not an issue, that the Union would insist on every striker being returned to his job without discrimination if a settlement were to be reached with the Company.

When asked what he meant by “the balance of the issues,” Mr. Mazey said he was referring to the “familiar seven issues.”

Mr. Smith’s skepticism thus proved to be sounder than Judge Murphy’s optimism. Although the judge had not been discouraged by the company’s remarks concerning the futility of further meetings with the union, and had insisted on further meetings after Mr. Smith questioned the idea that the union would settle for “seven cents or even five cents,” he finally understood the difficulty after listening to Mr. Mazey. Mr. Kitzman, who had obviously used the judge as a cats-paw to lure a higher offer from the company without committing the union to anything, was present at the last September meeting. He did not demur at Mr. Mazey’s final word on the union’s position. Judge Murphy asked for no further meetings.

While declining to make the higher wage offer which Judge Murphy solicited, the Kohler negotiators continued to offer to the union in the September negotiations the proposals which had been hammered out during the preceding six months of negotiations. Mr. Conger’s uncontroverted testimony suggested that the company was not inflexible even on the wage issue. Although the NLRB and its trial examiner took the position that Mr. Conger had insisted on the three cent increase or the old contract, this seems an unreasonable inference when the facts are considered. Mr. Conger testified to the effect that it would have been practically impossible for the company to withdraw the three cent increase, once it had been made, as of course it had been. Thus, in his view, the union should have been and actually was in no doubt that the three cent increase would have remained in effect if the union had accepted the old contract, as the company repeatedly offered.

The outstanding fact in regard to the September negotiations is, however, that they occurred. In spite of its sincere and hard earned conviction that further meetings were futile, the company did meet and treat with the union at Judge Murphy’s request, even though the judge had no official standing and no authority to compel such meetings. Of almost equal significance is the fact that the company at all times during the September negotiations was prepared to enter with the union into the agreement which it had earlier proposed, together with the concessions made in the course of the marathon negotiations in which it had been engaged for the previous six months. It was no more and no less willing to compromise than it had been, despite the fact that in September it was in a much stronger economic position than it had enjoyed at any prior time during the strike.

It may be well to mention at this time that there is nothing in the law which compels either party to make any concessions during collective bargaining, whether directly or at the suggestion of a mediator such as Judge Murphy. Indeed no principle is more clearly established in the law of collective bargaining. The Kohler negotiators’ refusal to make the offer suggested by Judge Murphy could therefore in no sense be regarded as unlawful or as a refusal to bargain in good faith. But of this more later.

The final point to note concerning the September negotiations is that if the company’s stand was firm, the union’s was no less so. It seems probable that the union was expecting its new weapon, the nationwide boycott of Kohler products, to force the company to yield. But this was not to be.

5. THE BOYCOTT, THE CLAYBOAT RIOT, AND CONCLUDING EVENTS

“OBVIOUSLY KOHLER CO. has lost some orders because of the boycott,” said Mr. Lucius P. Chase, Kohler’s General Counsel, in testifying before the McClellan Committee. He went on to say, however, that the company had not been seriously hurt as of the spring of 1958, although the UAW’s nationwide secondary boycott had then been carried on for almost four years. “We believe,” he said, “that the losses have been more than offset by other business which we are receiving directly as a result of the stand we have taken. . . . Our company is at least holding its own competitively. National magazines have quoted our competitors to this effect. Our production is the best we have ever had, both in output per man hour and the quality of our product. This comes from the finest work force in our history, mostly veteran employees.” The most important thing the company had proved, Mr. Chase thought, was that the American people would support a business which acted on principle:

We believe we have demonstrated that a company need not succumb to union violence and coercion, but can successfully take a stand for principles in which it believes.

If the boycott failed, it was not for lack of trying. The UAW clearly thought it was going to break Kohler economically. Mr. Donald Rand, UAW international representative in charge of the elaborate boycott machinery, told the Wall Street Journal in August of 1956 that he was heading the “most comprehensive boycott ever organized by labor.” He thought it no exaggeration to say that the UAW was “wrecking the company.”

The boycott was indeed comprehensively organized. The UAW assigned to it fifteen of its regularly employed international agents; several strikers worked full time on it; and many strikers took part in specific operations. Boycott headquarters operated on an almost military basis, with battle maps and all. Any Kohler customer might be visited in person, reached by phone, or directed or requested through the mail to quit using Kohler products.

Groups of strikers would follow trucks carrying Kohler products to their destinations. There they would picket the trucks, often in a threatening fashion. Frequently the drivers said they were menaced with bodily harm. At times the consignees of Kohler products would also be picketed.

Architects, builders, general contractors, and plumbing contractors in many areas were warned to quit specifying or using Kohler products. For example, Mr. John Fairbairn of Chicago said that his engineering firm was told by a UAW man on March 28, 1957, that it might encounter trouble on its construction jobs if it kept using Kohler products.

Plumbing supply houses in many areas throughout the country were a prime target of the boycott. Sometimes indirectly, sometimes explicitly, their proprietors were warned of serious reprisals unless they quit dealing in Kohler products.

The UAW attempted to induce the Journeyman Plumbers and Steamfitters International Union to adopt a policy of having its members refuse to install Kohler plumbing fixtures. The International refused to do so, but plumbers’ local unions in a number of areas complied, their members refusing to work with Kohler products.

Perhaps the most ominous feature of the boycott lay in the UAW’s efforts to induce local, state, and federal governments to refuse to award contracts to Kohler or to use its products in government projects. The UAW bombarded the U.S. Department of Defense with pleas and demands that no military contracts be awarded to Kohler. Through the political pressure long a UAW specialty, union agents induced city councils in many parts of the country to adopt resolutions abjuring the use of Kohler products. Corporation counsel in many of these cities advised that such resolutions were illegal or unconstitutional, so that in most instances they were repealed. But they remained in effect in some.

The UAW has always contended that it was using only permissible and justifiable solicitation and persuasion in seeking to induce people to refuse to use Kohler products. Its publicity always refers to the boycott as a “lawful, primary boycott,” not (an unlawful) secondary boycott. But the UAW has been very careful to avoid a court test of the accuracy of such protestations. In the three instances in which victims took the UAW to court on charges of unlawful secondary boycotting, the union avoided a trial by entering into consent decrees (which do not confess guilt but which escape further action at law by involving promises to discontinue the conduct involved).

While Mr. Chase felt that Kohler had gained as much business as it had lost as a result of the boycott, he made no attempt to gloss over the fact that the boycott had done real harm to some of the company’s small distributors. He said:

While the boycott in total may have a very slight effect on the Kohler Co., because we sell in forty-eight states, and what happens in a single market may not be of overwhelming importance to us, that local market may be the entire source of business for one of our distributors, and it is very serious for many, and because it is serious for many, of course, it is for us, too, even though it doesn’t affect our overall sales materially.

He also brought the McClellan Committee’s attention to the one-sided character of our labor laws, as they have been construed. Had the Kohler Company attempted to induce other firms to refuse to deal with the UAW or to hire Kohler strikers, it would have been held guilty of an unfair labor practice, with extremely serious consequences flowing from such a holding. Yet the UAW was privileged to spread economic harm all over the country, not only to Kohler, but to its entirely innocent distributors and other neutral third parties. The UAW’s agent in Washington tried to lead the McClellan Committee to believe that the Kohler Company had actually prevented the employment of some strikers. However, when Chairman McClellan asked whether he was charging that the Kohler Company “has actually been active in trying to prevent strikers from getting jobs?” the UAW’s agent replied that “I don’t have enough evidence to make such a charge.”

The nationwide boycott was started in September of 1954. The following month the UAW began a much more localized, and much more violent, course of interference with Kohler operations. Beginning about October 1, the union undertook to prevent applicants from entering the Kohler employment office. As one witness put it, “persons approaching the employment office had their progress blocked by a solid mass of pickets, were bumped, shoved, kicked, tripped, threatened, vilified, and spat upon.” An obvious violation of the Wisconsin injunction against coercive picketing, the employment office picketing was the target of a contempt action brought by the Wisconsin Employment Relations Board, the agency which the union had promised as far back as May that it would refrain from coercive acts. In May of 1955, the union was adjudged in contempt. The judge found Local 833 of the UAW and sixteen individuals guilty of contempt, assessed fines against them and sent one to jail.

In spite of the nationwide boycott and the unlawful employment office picketing, the Kohler management met with the union in November. Mr. Mazey suggested at that time that Kohler submit to arbitration of the strike issues. The meeting broke up when the company rejected the suggestion.

In December of 1954 and January of 1955, the company was faced with a decision involving certain strikers who were tenants of the American Club and two others who were leasing farm homes from the Kohler Company. No thought had been given to evicting the American Club tenants merely because they were on strike. In fact they occupied rooms there without interference for many months after the strike. However, when the Club management informed the company late in 1954 that there was a shortage of rooms, the strikers were asked to leave. All but two left without objection. The two who insisted upon remaining were firmly but gently evicted. No violence was used, and the two were given due notice of the company’s need for the rooms they were occupying. They left when the Club management told them that the rooms they had been occupying would be double locked against them.

The two strikers who had been occupying company owned homes under leases were allowed several extensions, at their request. One of these lessees was still occupying the home at the time of the NLRB hearing. The other left after termination of his extension, which had been granted on the understanding that he would surrender the premises in six months.

On January 4, 1955, Kohler met with the union negotiators in Chicago, with the parties, in the words of the NLRB’s trial examiner, “covering the seven major issues without result save to agree that they were the points in dispute.” These were of course the same seven issues upon which the parties had been deadlocked since February of 1954. At this point in his report the trial examiner seemed to understand what was really keeping the parties from a strike settlement. As we shall see, at other points the trial examiner, like the NLRB after him, took another view of the facts.

On February 8, 1955, the NLRB hearings began. They were to continue on and off for more than two years, compiling a record of over twenty thousand pages. Mr. Herbert V. Kohler, president of the company, was the main witness in the first sessions, which lasted for two days. One of the features of his appearance was an announcement that the company intended to deny reinstatement to all strikers guilty of unlawful conduct. On February 25, the UAW asked for a list of the strikers who were to be denied reinstatement and asserted a right to negotiate with the company on the issue. Responding to this request on March 1, the company submitted to the union a list of strikers to whom re-employment was being denied. On the same day the company directly discharged the same strikers. As an example of the trial examiner’s peculiar way of putting the facts of the case, here is how he writes up the two events just mentioned:

On March 1, without notice to the Union, [the company] discharged ninety-one strikers ‘because of misconduct in connection with the strike.’ On the same date, [the company] wrote the Union, acknowledging the letter of February 25, and informed the Union that ninety-one strikers whose names were listed would not be re-employed.

Even though his own adjacent sentences show that the company gave the union notice, he sees fit to say that it did not.

The parties’ next meeting also was in Chicago, on April 21. With both sides stating that they had not changed their positions at all, there was little discussion of the issues. Mr. Mazey made the remark that with the discharge of ninety strikers there were now ninety-seven issues rather than the seven which had deadlocked the parties since the beginning.

The now almost legendary clayboat riot occurred on July 5, 1955. A ship with clay imported by Kohler from Cornwall, England, docked at Sheboygan scheduled to unload on July 5. The UAW has, as usual, disclaimed any responsibility for the riot which occurred that day and prevented unloading the boat. But the facts indicate clearly that the union was responsible for the large crowd which gathered, for the picketing which physically obstructed the unloading operations, and for the damage done to the unloading equipment of the Buteyn Brothers, the small firm which undertook to perform the unloading operation for the Kohler Company.

Thus Mr. Robert Treuer, an international representative of the UAW, admitted that it was his intention in a radio broadcast “to invite Kohler strikers and others down to the dock when this clayboat came in.” Other witnesses testified that the union had engaged in a telephone campaign as a means of amassing the great crowd that gathered. A number of disinterested witnesses swore that Mr. Donald Rand (the same person who, as chief of the nationwide boycott, expressed the opinion that it would “wreck the company”) was in charge for the union at the Sheboygan docks. Mr. Rand denied that he was anything more than an interested spectator. But even the McClellan Committee’s Chief Counsel, Mr. Robert F. Kennedy, no enemy of the UAW, found this hard to believe. At the hearings he said to Mr. Rand:

You were there at seven o’clock in the morning at the arrival of the equipment, at eleven o’clock in the morning at the arrival of the crane and where all the damage was done, and six o’clock at night when they came to try to pick up their equipment. . . . You were there three times and three incidents occurred.

Mr. Rand continued to deny that he bore any responsibility for the unlawful violence which occurred that day. The equipment of the Buteyns, small contractors merely trying in good faith to carry out their obligations to an old customer, sustained six to seven thousand dollars worth of damage, including injury to five engines because of insertion of “some foreign material.” Insurance covered only part of the cost. Tom Shields, the Kohler Company’s construction manager, was severely beaten. Other people were molested. The police chief testified before the McClellan Committee that the “entire area was out of control—beyond reach of normal law and order.”

Although put on notice by the Kohler management that the City of Sheboygan would be liable in damages if it did not provide the protection necessary to get the clay boat unloaded, the Mayor of Sheboygan, Mr. Rudolph J. Ploetz, continued to be more interested in supporting the strikers’ obstruction than in carrying out his duties as Mayor and restoring order. The City of Sheboygan was later found guilty of a dereliction of its duty and ordered to pay damages; but the Kohler Company suffered an immediate defeat. The clay boat left the Sheboygan docks for Milwaukee. There too, however, the city authorities found it less dangerous to surrender to union pressure than to carry out their municipal duties. Like the citizens of Sheboygan, the taxpayers of Milwaukee later had to pay thousands of dollars for this dereliction on the part of its administration. And Kohler still did not have its clay. It could find no port nearer than Montreal which would resist union pressure. From Montreal the clay was shipped by rail to Kohler.

Despite the long catalogue of disastrous experiences, the Kohler management continued to meet with the union, whenever requested. There were unproductive meetings on July 27-29 and again on August 1-2, 1955. On the latter date, Kohler offered the union an increase of five cents per hour for all incentive workers and ten cents per hour for all non-incentive workers, together with various other proposals. The union asked for increases of ten cents and fifteen cents, respectively, as well as reinstatement of all strikers, even those guilty of misconduct. The next day, August 3, the union held a mass meeting during which, it reported to Kohler, the membership rejected the company’s strike settlement proposals. Thereupon the company put into effect the increase which it had offered to the union and which the membership had rejected, notifying the union of this action on the same day.

*

The events of August 1955 are the last ones of substantial significance in the dispute betweeen the Kohler Company and the UAW. The nationwide boycott continued for years after that, with some traces evident even up to 1960. Moreover, hundreds of acts of vandalism against nonstrikers and their homes and other property occurred after August 1955. But no conduct of the company after that date was considered of substantial legal significance by either the NLRB or its trial examiner, and that fact provides the basis for drawing this portion of the chronicle to a close with the events of August.

The report of the NLRB’s trial examiner and the decision of the NLRB itself are the items to which we now turn. If the facts and the conclusions drawn from those facts seemed to present a different aspect to the NLRB and its trial examiner from the aspect they have in this account, the reader will have to decide for himself, on the basis of the recorded evidence, where the truth lies. Fortunately, the legal issues raise no great problem, even for the nonlegal reader. The applicable law is fairly simple, and with few exceptions there is no dispute about what the applicable law is. The big issues in this case involve the facts, and what the facts mean. As to those, the intelligent reader is competent to judge.

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^* Later, both the mayor and the sheriff were to concede that they had received financial support from the union in their election campaigns.

^* (N. Y.: Ronald Press, 1959.)

^* The union’s letter of Aug. 10 and the company’s reply of Aug. 13 are reproduced in Appendices A and B, respectively.