PART II THE NLRB DECISION 6. HIGHLIGHTS OF THE DECISION

ON AUGUST 26, 1960, more than six years after the UAW had first charged Kohler with unfair practices and after two years of hearings before its trial examiner, the NLRB handed down its decision. While condemning the union’s violence and refusing to uphold some of its charges against the company, the Board’s decision in its main thrust amounts to a serious blow to the Kohler Company and a deadly one to a large number of the persons who applied for and accepted jobs which the strikers had vacated.

The Board ruled that the company had bargained lawfully in good faith up to the date of the strike. Therefore the strike could not be held to have been caused by an unfair practice. Instead, the Board held, the strike was in the beginning simply the result of a lawful economic dispute—an “economic” rather than an “unfair labor practice” strike, in the more technical language of labor law. But after the strike began, according to the Board, the company did not continue to bargain in good faith, and thus the strike was converted to an “unfair labor practice” strike and prolonged as such. This alleged conversion and prolongation of the strike brought into play a set of rules carrying serious consequences for the company and the striker-replacements.

The law specifically declares that employers and unions must bargain in good faith. It declares equally specifically, however, that neither party is under any obligation to make a concession or come to an agreement with the other. In short, good-faith bargaining may result in an impasse, with the parties failing to come to an agreement. At such a point, the union is free to call a strike, and the employer is free to attempt to carry on his business by offering employment to anyone who wishes to work, whether previously employed or a new applicant. If, after the employer has hired new workers on a permanent basis, the strikers apply for reinstatement, the employer is under no obligation to restore the strikers to their jobs. Under the law as it has developed, the NLRB is explicitly denied the authority to compel any employer to take back “economic” strikers whose jobs have been filled. The striker-replacements are entitled to keep those jobs.

Exactly the converse is true when a strike has been caused or prolonged by employer unfair labor practices. Then the position of the striker-replacements is precarious, and the position of the strikers is secure. In an unfair-practice strike, the strikers are entitled to have their jobs back upon application for reinstatement. If it is necessary for the employer to discharge the replacements in order to provide jobs for the strikers, he must do so.

Thus, when the NLRB held that the Kohler Company failed to bargain in good faith after the strike began—and that this failure prolonged the strike—the consequence was that the strikers were entitled to get their jobs back, upon application. The further consequence was that Kohler had to discharge as many replacements as would be necessary in order to supply jobs to strikers who actually applied for reinstatement. No one could tell, when the decision was finally handed down some six years after the strike began, how many strikers would apply for reinstatement. A large number of the prestrike Kohler employees abandoned the strike shortly after it started—if indeed they could ever be said to have taken a voluntary part in the strike at all. These were people who very promptly went back to work. Hundreds of others would not be applying for reinstatement for a number of reasons—death, retirement, removal from the area, jobs elsewhere, and so on. Still, while making full allowance for all such contingencies, it was a certainty at the time of the decision that there would be hundreds of applications for re-employment from strikers who would want to return to Kohler—possibly more than a thousand. Hundreds of the persons who had braved the picket lines and suffered the continued intimidation of the UAW might have to be let go in order to provide jobs for the strikers who had left.

As we shall see in the next chapter, there is much to question and much to doubt in the NLRB’s decision that the Kohler Company failed to bargain in good faith after the strike began. It is even more doubtful that the Kohler Company was in any rational sense responsible for prolonging the strike. Therefore, there is reason to believe that the NLRB’s decision will be reversed in the appeal which has been filed in federal court. But the present rules are such that the employer cannot in a case of this kind put off reinstating the strikers while waiting for a decision from the appellate court. For if the decision of that court affirms the NLRB, the employer will have to give back pay to the strikers for the whole period between their application for reinstatement and the actual date when they are given jobs. At $18 per day for 1500 strikers, the cost to the Kohler Company would come to $135,000 per week or over $8,000,000 per year. Few employers can afford such a risk, especially since it often takes as much as two years for a court to reach a decision on the validity of an NLRB order.

Hence, even though the NLRB decision may ultimately be reversed, in a case of this kind the union and the Board win, although they are legally in the wrong, while the employer and the striker-replacements lose, although they are legally in the right. Herein lies one of the most serious injustices of current labor policy and law. Those who wonder why it is that employers do not more stoutly resist arrogant union demands will find part of the reason in these circumstances. The ultimate situation has been predetermined so that it is often a case of heads the union wins and tails the employer loses.

While the decision on responsibility for having prolonged the strike was the most serious of the NLRB rulings against the Kohler Company, there were others. The Board held that the company had violated the National Labor Relations Act also in “discharging” the temporary shell department employees who had gone out on strike; in “discharging” one Alex Dottei; in making inquiries concerning strikers and their leaders during the strike; in attempting, through a supervisor, to induce one of the strikers to return to work; in attempting, again through a supervisor, to induce a union agent to forego prosecuting certain grievances; and, finally, in “evicting” certain of the strikers from the American Club and from company-owned farm homes. We shall consider these rulings in detail in a subsequent chapter.

As mentioned earlier, the decision did not go entirely against the company. While the UAW insisted that the Kohler Company broke the law when it discharged ninety-one strikers involved in violent and obstructive acts, the NLRB held that the company actually could have fired every single striker who participated in the mass picketing, the employment office picketing, and the home demonstrations. Certainly, the Board held, the Kohler Company was well within its rights in selecting some for discharge. Besides holding, contrary to the union’s charge, that the company had bargained in good faith prior to the strike, the Board also held that the company had a legal excuse for refusing to meet with the union from April 5 to May 28, from June 29 to August 5, and from August 18 to September 1 (1954)—during the periods in which union violence went to extreme lengths. Finally, the Board dismissed charges that in nineteen individual cases the company had engaged in unlawful interrogation of strikers who returned to work.

Although we shall not be dealing further with these dismissed charges, at least not in any direct or systematic way, the Board’s view of the company’s right to discharge the strikers who had participated in misconduct calls for one observation. The upshot of the whole NLRB decision is that because the Kohler Company did not choose to discharge all the strikers—even though it might lawfully have done so—it is compelled to restore them to employment, even if it should be at the expense of the striker-replacements who braved the picket line.

Summed up, the decision must be characterized, not merely as a defeat for the company, but as an injustice to hundreds of human beings. Individuals will bear the penalty. In not a single instance was the company ordered to give a striker any back pay. There was no money penalty attached to any of the rulings against the Kohler Company. On the other hand, hundreds of men who went to work at Kohler will lose their jobs. Furthermore, those still working there will find themselves under the jurisdiction of a union which has been found guilty of unlawful obstruction and grievous violence in innumerable instances, but which has nevertheless been restored to its position as bargaining representative. In a word, the NLRB has rewarded the guilty and punished the innocent.

The accuracy, justice, and legal validity of the NLRB’s decision are the subject of the following chapters.

7. THE NLRB ON WHAT PROLONGED THE STRIKE

THE LEGAL DOCTRINE on strike prolongation is easily stated. An economic strike is converted to an unfair-practice strike and prolonged as such if two facts exist:

1. The employer commits unfair labor practices, and

2. The evidence discloses to a fair and rational mind that but for those unfair practices the strike would be settled.

It is not enough, in other words, that the employer commits unfair practices after the strike begins. Those unfair practices must cause the prolongation of the strike. If the strike would continue anyway, naturally the unfair practices cannot be held responsible for prolonging it. Moreover, prolongation does not exist where a union shows by its actions that it is waiving intervening unfair practices and continuing to negotiate on the issues which brought about the strike in the first place. In short, there must be both unfair practices and a causal relation between them and the continuation of the strike.

Ostensibly applying these rules, the NLRB held that the following items were unfair practices, and that they prolonged the strike:

1. The three-cent increase granted on April 5, the day the strike began.

2. The company’s delay or failure to supply certain wage information requested by the union.

3. The “discharge” of the striking temporary shell-department employees.

4. The company’s attitude in the September negotiations with Judge Murphy and the union.

5. The increase granted on August 5, 1955.

6. The company’s offer to cancel the discharge of Alex Dottei.

1. The Three-Cent Increase

The NLRB’s ruling that the granting of the three-cent increase on April 5, 1954,^* constituted an unfair labor practice is based upon the assumption that the company at the same time kept in effect the provisions of the old (1953) contract with the UAW. Giving the nonstriking employees both the three-cent increase and the old contract, the Board said, was more than the company had offered the union. Negotiations reached an impasse, the Board said, because the company’s final offer to the union before the strike had been a three-cent increase with the new 1954 proposals—or the old (1953) contract unchanged for another year without any wage increase. Had the company offered the union what it gave the nonstrikers, the Board concluded, the union would have accepted it and the strike would then have ended forthwith.

The law on the subject is that an employer may give to employees directly any increase which has been offered to and rejected by the union. Further, an employer may even give employees directly a wage increase which has not previously been offered the union—if in the process the employer has not disparaged the union, or undermined it in the eyes of the employees, or otherwise made a mockery of the collective-bargaining principle.

None of these rules justified the three-cent increase, in the Board’s opinion. Although the parties continued bargaining for more than a year after the increase was granted, said the Board, Kohler had disparaged the union and flouted the collective bargaining process by both the increase and its subsequent conduct. The Board’s position is perhaps most comprehensively put in this statement:

In the instant case ... the [company] did not first offer to or discuss with the Union that wage proposal it ultimately placed in effect, namely, the 1953 contract plus the three-cent wage increase. Nor did it suggest to the employees that it had discussed this matter with the Union or that the Union had rejected it. Instead, it placed the increase in effect without notice and without discussion or negotiation with the Union, thereafter denied it the opportunity of accepting the 1953 contract plus a three-cent wage increase, and at the same time frequently proclaimed that it would not reward the Union for having struck. Moreover, the [company] did not treat this wage increase as an allowance of the Union demands, but rather, steadfastly refused to offer the Union that same wage proposal already placed in effect, and in September bluntly stated that if the Union wanted to renew the old arbitration clause, it could do so only on the condition that it take the entire old contract, without the three-cent raise.

There are a great many errors in that reading of the facts and of the evidence in the case, but we need concern ourselves only with the basic flaws. The most fundamental of these is the Board’s assumption that the company gave the nonstrikers both the three-cent increase and the 1953 contract. This is an error that no person conversant with labor relations should make. The simple fact is that the company could not have given the nonstrikers the 1953 contract.

In the nature of things a collective-bargaining agreement can only exist when there are the two parties—management and union—to sign it and to administer it. This is especially true of collective agreements which provide for arbitration—as did the 1953 contract. Both parties in such agreements must participate in the process leading up to arbitration, and in the selection of an arbitrator. Once this is understood, it becomes evident that the company did not give to employees directly that which it denied to the union; it did not, because it physically could not give the employees the 1953 contract. And that being true, the Board’s holding that the Kohler Company committed an unfair practice in giving the three-cent increase cannot be valid.

Statements made and quoted in the Board’s own opinion, although apparently considered by the Board to support its conclusion, establish that Kohler did not continue the old contract in effect. Thus the Board quotes the company publication, People, as having announced to the employees on March 10 (after the 1953 contract had expired), “that the check-off authorizations expired with the contract and were no longer recognized.” The company did assure the employees, on March 10, that the pension and insurance plans would continue unchanged. But for a company which had had pension and insurance plans for fifty years before the union came upon the scene, there is nothing in that announcement to surprise anyone. The company said to the union negotiators before the strike that it intended after March 1—and until a new contract was formed—to “continue the past practice and operate along the lines of the expiring contract.” But here again there is a vast difference between continuing “along the lines” of a contract and operating under a contract.

A phase in the handling of this issue which has a most singular air of duplicity is the way in which the Board introduced a further quotation from the March 10 issue of People. The quotation soon to follow was prefaced by the Board with these words: “With respect to the other contract provisions, [the company] said ...” This would suggest that the quotation was intended to assure the employees that the 1953 contract would remain in effect, when, as even a cursory reading would suggest, such was not its purport at all. On the contrary, this quotation calls attention to the fact that many employee rights and privileges existed long before the union came to Kohler and explicitly reminds the employees that the contract has terminated:

Some employees seem to be of the opinion, either through confusion or misrepresentation, that the Company now may take away rights and privileges that they have enjoyed over the past years (many of which were in effect long before there ever was a contract with this union). Such is not the case. While there is no contract in effect at this time, many times in the past the company has operated without a contract. It plans no radical changes in its policies which have been carefully worked out over the years even though no contract exists. [Italics supplied]

For the Board to cite the foregoing items as support of its holding that Kohler continued the old contract in effect during the strike is obviously impermissible. The company could not—by itself—without a union to participate in the agreement—keep the old contract in effect; and all the evidence just cited is firm proof that the company understood that fact. Thus the Board erred in holding that the company gave both the old contract and the three-cent increase to the employees, and that error of fact led to the legal error of holding the company guilty of an unfair practice in granting the three-cent increase which the union had rejected.

Besides the error of holding that the company gave the nonstrikers both the three-cent increase and the old contract, the Board and its trial examiner gave the evidence a highly questionable interpretation when they concluded that the Kohler Company in the September negotiations insisted on withdrawing the three-cent increase as a condition of a renewal of the 1953 contract. In the first place, as a simple matter of fact, the Kohler negotiators never withdrew their offer to renew the old contract; it was the union which had found the greatest fault with that contract, insisting upon changes in forty-eight of its seventy provisions. The old contract was available at all times to the union after April 5, 1954.

Moreover, the Kohler negotiators, Mr. Conger and Mr. Hammer, testified that they had taken the position in the September negotiations that the union could have had both the old contract and the three-cent increase which had already been granted. When the union negotiators asked whether the three-cent increase would remain in effect if the union accepted the old contract, Mr. Conger replied, according to his own testimony, that as the increase had already been put in effect there was no way of revoking it.

Such testimony must be credited because its credibility is inherent: as a practical matter it would have been impossible for the company to revoke such an increase, once granted. Yet instead of Mr. Conger’s statement the trial examiner and the NLRB chose to credit the inherently implausible union testimony to the effect that the company would have revoked the three-cent increase if the union accepted the old contract.

The Board’s characterization of the three-cent increase as an unfair practice depends on two assumptions: (1) that the old contract accompanied the increase; and (2) that the company never offered the union both the old contract and the increase. Both assumptions have failed: the first as being contrary to fact, and the second as being unsupported by convincing evidence in the record. As to the second, indeed, the convincing evidence is to the contrary.

There is a further weakness in the Board’s position. According to the Board, the three-cent increase caused the strike to continue. But here too all the evidence is to the contrary. Throughout the summer of 1954 the negotiations continued. When they broke off, as they did several times, it was never because of the three-cent increase; indeed, that matter was never even mentioned. Two other reasons were always cited: (1) the Kohler position that it would not bargain with a gun at its head, i.e., while the union was engaging in extremely violent tactics; and (2) that an impasse was reached on the same seven major issues which produced the deadlock as early as February 1954.

While the record is full of evidence to this effect, perhaps the most convincing such item is the union’s own letter of August 10, 1954, setting forth, in the form of demands, the basis on which the union would settle the strike.^* Listed in that letter are the seven major issues. The letter does not even mention the three-cent increase, let alone provide a basis for the Board’s conclusion that the strike was continuing because that increase had been granted.

Thus, even assuming that the three-cent increase had never been offered the union before it was given directly to the employees, no reasonable mind could fairly conclude that it prolonged the strike. The union continued the strike because the company refused to yield on the seven major issues, not because of the three-cent increase.

This is established finally by the fact that the union’s first charges against the company, filed on July 12, 1954, made no mention of the three-cent increase as an unfair practice. The union knew about the increase as early as April 8, 1954. Its failure to charge the increase as an unfair practice on July 12 should convince even the most reluctant mind that the increase played no role in prolonging the strike. If the union did not know of the increase till July 15, as it once weakly protested, the Board’s view that the increase prolonged the strike from June 1 onward becomes even more vulnerable. For it is impossible that a fact unknown to the union could have induced it to continue a strike which it would otherwise have ended.

2. The Failure To Supply Wage Information

The Board also held that the Kohler Company committed an unfair practice which prolonged the strike by failing to supply the union with information relating to the wages of the company’s incentive workers. As early as January 20, 1954, the union requested in writing that the earnings of each division be forwarded to it as they were gathered. The information was needed, said the union, in order to promote informed bargaining on alleged inequities in the company’s incentive-pay methods.

While the Board’s explanation of its reasoning on this issue is extremely complicated and confusing, it seems to proceed along these lines: The law requires employers to furnish wage information with reasonable promptness when such information is required for intelligent bargaining; with respect to a part of the wage information, Kohler did not provide it promptly enough; with respect to the remainder, the company did not provide it at all—and this complete failure was traceable to the company’s position that the information was not available or necessary for bargaining. Furthermore, the Board concluded, these unfair practices “contributed to the prolongation of the strike.”

The Board’s only attempt to support this conclusion is in the following quotation of one of the trial examiner’s findings:

The trial examiner found that the average incentive earning information requested was both appropriate and necessary to the performance of the Union function, and that the inequities question, although not among the seven major issues on which the contract negotiations foundered, was still a live issue, and one which, if resolved, could well have formed the foundation for reaching further agreements. . . . The Board agrees . . .

This statement recognizes that the negotiations foundered on the seven major issues. It also recognizes that the wage-information had nothing to do with those issues. The natural conclusion to be drawn from those admitted facts would be that neither a delay in supplying nor even an outright refusal to supply the wage-information could have prolonged the strike. But apparently the Board’s determination to hold that Kohler committed unfair practices and that those unfair practices prolonged the strike blinded it to the obvious conclusion. And it therefore proceeded to pile speculation upon speculation in order to make out some kind of a case for the holding that a minor delay in supplying a part of the wage information prolonged the strike.

The facts in the record relevant to this matter are clear. They are: first, there was only a minor delay, and that a completely justifiable one; second, Kohler never did refuse to supply any part of the information; third, the union agreed that the alleged inequities were only a “side issue”; fourth, so unimportant did the union negotiators consider the issue that they did not get around to examining the wage-information which the company actually supplied; fifth, the union negotiators agreed that settlement of the issue would best be postponed till the strike was ended and the men were back at work.

The bulk of the wage information sought by the union pertained to the company’s enamelware division. As a matter of fact, the trial examiner himself found—and the Board agreed with him—that the company’s “delay, prior to June 11, in delivering the enamelware earnings may well be excused on the grounds that there was no apparent urgency about supplying the enamelware information.” Throughout June the company’s negotiators were inundated with work. There were not only the daily negotiations with the union in June, but also the labor, vexation, and harassment which the union’s unceasing campaign of violence created.

Thus, although the wage information was on Mr. Conger’s desk on June 14, he simply could not get to it. And, as he testified, he felt that he should check it before transmitting it to the union. The Board rejected this explanation, saying that Mr. Conger should have transmitted the information first and checked it later. But it is not yet the Board’s function, nor does it have the authority, to make such a business decision. From June 28 to August 5, by the Board’s own holding, the company’s duty to bargain with the union was suspended, owing to the union’s violent and unlawful conduct. On August 5, when the parties next met, Mr. Conger presented the enamelware division wage-information. To call this an unreasonable delay is unreasonable in the circumstances confronting the Kohler management.

As to the wage-information pertaining to the company’s other divisions—amounting to thirty-five per cent of the total—although the company never did supply it, this failure was the result, not of any refusal, but of an agreement between the company and the union that the inequities issue could best be settled when the strike ended. In support of its contention that the company refused to supply the remaining thirty-five per cent, the Board quoted President Herbert V. Kohler’s letter of August 13, 1954. That letter said, among other things, that:

In the contract last year the company agreed to a procedure intended to reduce the number of existing wage classifications and eliminate any inequities. This procedure did not function due to the union’s insistence on another general wage increase thinly disguised as an inequity adjustment and on the union’s insistence that the company compile data not available and not necessary for bargaining.^*

Both the trial examiner and the Board read the concluding statement as a refusal by the Kohler president to supply the wage information which the union was currently seeking in the summer of 1954. How they could so construe it is extremely difficult to understand. For one thing, the whole paragraph obviously refers to experience in the preceding year, under the 1953 contract—not to the 1954 negotiations. For another, only a few days before this letter was written the company had actually supplied the union with the bulk of the wage information involved in the 1954 negotiations. It would have been senseless for the company to refuse to supply the very information, the bulk of which it had in fact just supplied.

Finally, the “data” to which reference is made in the letter did not relate to wage information at all. As the unrebutted testimony of Kohler witnesses shows, that “data”—sought by the unions in 1953—involved written job descriptions, not wage information. The company had agreed to supply wage information early in 1954 when the union requested it. It failed to supply job descriptions, because there were no such things.

The final proof that the Board and its trial examiner misconstrued the August 10 letter as a refusal to supply the remaining wage information comes from Mr. Robert Burkart, the union’s chief negotiator. Questioned directly by Mr. Conger at the NLRB hearing, Mr. Burkart said: “No, I have got to admit that, Mr. Conger, you never said that you wouldn’t give them [the wage information] to us.”

The remaining thirty-five per cent of the wage information sought by the union was not furnished, according to the uncontroverted testimony of Mr. Conger, because the company and the union agreed in August to handle the matter of wage inequities after the strike was ended. Indeed this testimony was corroborated by Mr. Burkart. Answering the observation that “you did not list the adjustment of inequities in the seven points you mentioned,” Mr. Burkart said:

No, we were not aware of the fact that there was any disagreement on this point. We felt it was impossible to adjust inequities, when the plant was not operating, and we are not there on the scene, and we figured that would be adjusted by continuing to negotiate on inequities after we returned into the plant again, as we had attempted to do before the strike occurred. It is not a point in dispute so far as the settlement of the strike is concerned at the present time.

Needless to say, the NLRB did not quote this testimony. To have done so would have been to expose the error of the Board’s finding that the wage-information matter had prolonged the strike.

The Board did, however, make much of a vague statement by Mr. Burkart to the effect that the union had asked for the wage information after the August meetings. According to the Board, that subsequent request established the union’s continued interest in the wage information. But this builds a large conclusion on a very small basis. Mr. Burkart had been asked when the last time was that the union “made any reference” to the wage information. His reply was—“I would say in the month of September.” This falls far short of convincing testimony: among other things it lacks definite dates, and it is obviously inconsistent with his testimony that inequities were “not a point in dispute.”

Perhaps the most persuasive indication that the wage-information matter could have had nothing to do with prolonging the strike is to be found in the union negotiators’ neglect of the information with which the company did in fact provide them. The bulk of the information sought by the union—that pertaining to the enamelware division—was provided by the company early in August, 1954. As of June 10, 1955, Mr. Burkart had not even looked at it. He testified that day at the NLRB hearing as follows:

We were certainly very busy with other matters, and it was not necessary for me at that time to start getting into this particular problem. I was aware that such a document was in the possession of the local union, but I was busy on other affairs and did not get into that particular question. There was no bargaining on the matter of inequities in the offing at that time. We were busy with the company on the seven major points in the contract, so this then was more or less of a side issue.

Needless to say, this too was testimony to which the NLRB made no reference in its decision. But it is now before the reader, and he may make an informed judgment on the question whether the wage-information affair—admittedly a side issue according to the union spokesman himself—prolonged the strike.

3. The Striking Shell Department Employees

The NLRB gave scant attention to the question of the legality of the termination of the employment of the striking shell department employees. In fact, rather than explain how the termination was an unfair labor practice, the Board simply adopted the trial examiner’s conclusion that it was; and it similarly avoided the problem of demonstrating a casual relationship between the termination and the prolongation of the strike. This is what the Board said:

. . . the Board finds, in agreement with the trial examiner, that on or about July 1, in violation of . . . the Act, [the company] discriminatorily discharged the striking shell department employees, . . . for the sole reason that they were on strike, and that the [company] thereafter discriminatorily failed to offer them reinstatement on the same basis as those nonstrikers similarly situated. The Board also finds, in agreement with the trial examiner, that in June [the company] violated . . . the Act by discharging the striking temporary employees and by transferring the nonstrikers to other departments without notification to and without negotiation or consultation with the Union as their exclusive bargaining representative. The Board also agrees with the trial examiner’s finding that these unfair labor practices contributed to the prolonging of the strike. . . . While the Board agrees with the trial examiner that the [company’s] discharge of the striking temporary shell department employees and the transfer of nonstriking shell department employees to other departments without prior notification to and without prior negotiation or consultation with the Union in June may not have directly prevented the reaching of a contract agreement in June, such unlawful conduct does further demonstrate the [company’s] lack of good faith during the June negotiations.

The facts, already stated generally in Chapter 3, are these. Employment in the shell department was temporary and known by everyone concerned to be tied to the government shell contract. Moreover, by the terms of the 1953 collective agreement between the union and the company, the company reserved the right to transfer or release all temporary employees “whenever there is no work available for them in such temporary department.” As early as March 2, not only before the strike but even before anyone knew that there would be a strike, the Kohler Company announced to both the union and the temporary employees that both the shell department contract and their employment would terminate on June 30. Thus it would be correct to say that the employment of the temporary shell department employees was actually terminated on March 2, to be effective as of June 30—indicating as clearly as possible that the shell department employees were not discharged because they had gone on strike.

During the June negotiations the parties discussed the shell department employees, with union and company both acting on the assumption that their employment would be formally terminated on June 30, in accordance with the company’s March announcement. Thus the union proposed that the shell department employees be given vacation pay even though their jobs were to end before July 1 (the normal eligibility date for vacations); the company agreed to and carried out this proposal (the striking shell-department employees had not been working since April 5, of course).

The parties also agreed during the June negotiations that if the company chose to give shell-department employees other jobs within ninety days after they had been laid off, their seniority should date back to their original hiring in the shell department. Although the trial examiner insisted that the company actually did not give such seniority to striking shell-department employees who came back to work later during the strike, that finding is contrary to the direct testimony of the person who was in the best position to know: namely, Kohler Vice President Lyman C. Conger.

On July 1 the company wrote to each of the striking shell-department employees, referring to the understanding that his employment was terminated in accordance with the terms of hire, the collective agreement, and the March notice. The company transferred the nonstriking shell-department employees to other jobs in the plant. This transfer was within the company’s rights, even as defined in the expired 1953 collective agreement. For that agreement expressly provided that the company might transfer temporary employees to permanent jobs if it chose to do so, and if it accorded them seniority as of the date of their original hire, which the company did.

Nine of the fifty-three striking shell-department employees abandoned the strike and came back to work. As already mentioned, the trial examiner found that some of these were not given seniority dating back to their original hire. But, again as already mentioned, this finding is contradicted by the direct testimony of the person who knew best what kind of seniority had been given, and hence is unacceptable as a matter of both common sense and law.

Fundamentally the Board and the trial examiner found two unfair practices in regard to the striking shell-department employees. First, they held that those employees were discharged because they chose to strike; second, they held that the company was guilty of an unlawful refusal to bargain when it announced the termination of the employment of the striking employees without consulting with the union, either as to the dischargees or as to the non-striking employees whom the company transferred to other jobs.

Enough has already been said to establish that it was simply an error of fact to find that the strikers were discharged because they had gone on strike. They were not, properly speaking, discharged at all on July 1. Rather, on that date, their employment terminated in accordance with the full understanding of all the parties involved. That they happened to be on strike at the time made no difference. No one can rationally contend that a person may prolong his employment indefinitely by going on strike.

As to the fact that the company transferred non-striking shell-department employees to other jobs, this cannot properly be viewed as discrimination against the strikers. Had the strikers shown the same inclination to continue working, they also would have been given other jobs. This inference is established by the fact that the company did actually give jobs to all striking shell-department employees who applied for work later during the strike, as nine did. Finally, the company was empowered by both past practice and the 1953 collective agreement to transfer temporary employees to permanent jobs. So much for the facts.

As to the law, a company has the right to continue operations during a strike, even to the extent of hiring new employees. This being so, it can scarcely be doubted that an employer may give existing and nonstriking employees different jobs during a strike.

The Board and its trial examiner have tried to turn the facts and the law upside down. They have attempted to transform a voluntary cessation of employment by the strikers into a discharge. And they have tried to deprive the Kohler Company of the established right to carry on its business during the strike.

Largely the same is true of the holding that the Kohler Company unlawfully refused to bargain in good faith in failing to notify the union of the pending July 1 termination and in not clearing the “discharge” and the transfer with the union first. The company did in fact notify the union of the pending termination long before the June negotiations. The record is clear on this, and it is therefore impossible to understand how the Board and its trial examiner could take the position that the Kohler Company “discharged” the striking shell-department employees without giving notice to the union. Not only did the union have notice, but as a matter of fact the union and the company actually bargained and came to important agreements on the subject of the termination during the June negotiations.

Apart from the notice issue, the trial examiner (with the Board’s subsequent approval) found that the company did not bargain in good faith with the union during the June negotiations. Because it is very difficult to understand and convey what the trial examiner had in mind here, it is best to present his own words:

In the discussions concerning the shell department employees no differentiation was made as between strikers and nonstrikers, and [the company] at no time prior to July 1 notified the Union of its intention or plan to differentiate between them with respect to their tenure, status, seniority, or transfer rights. Neither did [the company] notify the Union of the discharges on July 1, of the basis of its selection, of the identities of the dischargees, or of the fact that it was according transfer and seniority privileges to the nonstriking temporaries whom it retained. . . . Nor did [the company] notify the Union of its disparate treatment of striking and nonstriking permanent employees in the shell department. . . . Whether negotiations on the subject would have been successful or unsuccessful, they were a necessary step in performance of [the company’s] obligation to bargain with the Union and to avoid unilateral action which would derogate from the Union’s status as the bargaining representative of all the employees. Nor was failure necessarily to be expected, since agreement had been reached to the extent that the subject of the temporary employees had been brought into the June negotiations.

All this seems to imply that the company “put one over” on the union; that the company misled the union into believing that on June 30 the employment of the nonstrikers would be terminated, as well as that of the striking shell-department employees. This is a strange position for the trial examiner to take—if indeed we are correct in attributing this position to him. There is nothing in the record, or in common sense, to support the finding that the company deceived the union in this respect. Moreover, to repeat, the company did not “differentiate” in its treatment of strikers and nonstrikers. The nonstrikers chose to continue working; the strikers chose to leave their work. It is as simple as that, and the union had a clear understanding of these realities. Only the trial examiner’s strenuous effort to create an unfair practice where none existed could so twist the facts.

So drastically have the Board and its trial examiner confused the issue that a firm restatement of the basic facts is necessary. The union called the strike. Some of the shell-department employees chose to join in the strike; others chose to remain at work. The company acted well within its rights in transferring nonstriking employees to other jobs. The strikers operated well within their rights in staying away from their jobs. The termination date of the jobs held by the striking shell-department employees intervened. Being on strike at the time when their jobs ended could not make those jobs continue. If the strikers wanted to reapply for other jobs, nothing prevented them from doing so. In fact a great number did apply, including some of the shell department workers, and when they did the company put them all back to work.

For the trial examiner to insist that the company should have discussed with the union the employment termination of the strikers and the job transfer of the nonstrikers was simply absurd. The union could not have let the strikers go back to work without giving up the strike. The only subjects which a discussion of this matter could have covered, therefore, would have been the basic strike issues. But these are the very subjects which engrossed all the attention of the parties during the June negotiations.

On the major strike issues the trial examiner himself observed that the June negotiations were fruitful. Moreover, as we have seen in Chapter Three the union expressed genuine satisfaction over the great progress made “toward reaching an agreement” in the June negotiations. No one who bears all these facts and considerations in mind can accept the NLRB holding that the Kohler Company was guilty of a refusal to bargain which prolonged the strike simply because it did not discuss the transfer of the nonstriking employees and the termination of employment of the striking shell department employees in the June negotiations. Failure to come to an agreement on the seven major issues is what prolonged the strike, in June and thereafter. The shell department matter had not the remotest effect on the stalemate, one way or the other.

4. The September Negotiations

The NLRB held that the Kohler Company went into the September negotiations with a conviction that it had won the strike and with a purpose not to reach an agreement with the union. This purpose was manifested, the Board found, by Mr. Conger’s preliminary remark that further negotiations would be futile; by the company’s refusal to “accept” Judge Murphy’s “offer of settlement” on the basis of an increase of “seven cents or even five cents”; and by the introduction “for the first time” in the September negotiations of the company’s intention not to reinstate strikers guilty of violent and unlawful conduct. Taking all these into consideration, the NLRB concluded that the Kohler Company was guilty of an unlawful refusal to bargain in good faith during the September negotiations—and that this unfair practice prolonged the strike.

Since the September negotiations have been described in Chapter Four, there is no need to review the facts here. Attention may be concentrated, rather, on the Board’s process of decision. Each step in that process involves an egregious abuse of fact, or law, or proper judgment of fact and law.

Consider the weight given by the Board to its inference that the Kohler Company went into the September negotiations with a conviction that it had won the strike. The first thing to recognize is that this was an inference. The Kohler witnesses did not testify that they went into the negotiations with a conviction that the company had won the strike. The Board inferred it from newspaper articles written by journalists. If there is ever a sound basis for inferring what goes on in the minds of others, this is certainly not it.

But even if the inference were sound it would have been legally irrelevant. There is nothing illegal when one party concludes that it has been victorious in a strike. Furthermore, there is nothing illegal when conduct is adjusted in accordance with such a conviction. If a union raises its demands because it feels that it can win or has won a strike, the law does not hold that the union has committed an unfair practice or a refusal to bargain. The law is the same for both union and employer; both have a duty to bargain in good faith. Therefore, it is perfectly lawful for an employer to stiffen in his position when he feels that the economic facts are with him. Thus it would have been lawful for the Kohler Company to withdraw some of the concessions previously made, always provided that it continued to meet and negotiate with the union in good faith. This being true, it goes without saying that the company could hold fast to the offers previously made.

And that is, of course, all that the Kohler Company did during the September negotiations. It did not make any new concessions, it is true. But if one thing is perfectly clear in the law of collective bargaining, it is that neither party is under an obligation to make any concessions. On the other hand, the Kohler Company held forth in the September negotiations the various proposals that it had made in the prestrike negotiations; and it is significant that the Board held the prestrike negotiations to have satisfied the requirements of good faith bargaining. Moreover, the Kohler Company continued to offer in the September negotiations the further concessions it had made in the bargaining sessions held after the strike.

Despite the company’s admittedly good-faith bargaining before the strike and despite the concessions after the strike began, the negotiations repeatedly foundered on the “seven major issues.” This is a fact which is noted repeatedly, curiously enough, in both the Board’s opinion and the trial examiner’s report. And it is this fact, of course, which accounts for Mr. Conger’s feeling, when approached by Judge Murphy, that further negotiations would be “futile.” No matter what else the labor laws may provide, they do not make it an unfair practice for a negotiator to be pessimistic about the possibilities of a settlement, especially after nine months of marathon negotiations have failed to produce an agreement.

Had Mr. Conger refused to participate in further meetings, one might have argued that he was guilty of a refusal to bargain. But it is by no means certain that even that argument would be legally valid. For it is a well recognized principle that the duty to bargain does not require meeting in perpetuity. All courts recognize that a person who has been bargaining in good faith for a reasonable time may call it quits. However, the significant fact here is that Mr. Conger did not refuse to meet with the union.

Equally significantly, he held forth the same contract offer that the company had made before. To rule that this amounts to an unlawful refusal to bargain is to rewrite the labor law. The law expressly provides that the duty to bargain does not require either party to make a concession. The only inference that can be drawn from the NLRB’s position is that—contrary to law—it would compel the Kohler Company to make a concession.

The soundness of this inference is established by the way in which the Board dealt with Judge Murphy’s proposal concerning the “seven cents or even five cents.” As shown in Chapter Four, Judge Murphy was a catspaw. He was not authorized by the union to settle the strike on the basis of “seven cents or even five cents.” He was being used only to extract a further offer from the Kohler Company upon which the union might then build the basis for a settlement of the kind which it wanted. In holding the company guilty of bad-faith bargaining for its failure to fall into this trap, the NLRB and its trial examiner demonstrated one or the other, or both, of these qualities: (a) an invincible ignorance concerning the realities of collective bargaining; (b) an absolute determination to find the Kohler Company guilty of unfair practices regardless of the facts or the law.

The final basis of the NLRB’s holding on this issue rests upon a simple error of fact. The Board took the position that the September negotiations fell through because the company introduced then, for the first time, the issue of reinstatement for strikers guilty of misconduct. That is just not so. Mr. Conger testified that he had repeatedly raised this issue and that, each time he had done so, the union negotiators had insisted upon reinstatement of all strikers, including those with the greatest responsibility for the union’s unlawful conduct. Therefore the Kohler people had every reason to believe that this issue, too, would bar a settlement of the kind which Judge Murphy optimistically predicted.

As we have seen, their opinion was vindicated in the meeting of late September, when Mr. Emil Mazey insisted that all strikers would have to be reinstated and that the union’s position on the seven major issues would have to be conceded before the strike could be settled. The Board dismissed this salient fact by suggesting that Mr. Mazey did not take part in the earlier September negotiations and, more subtly, that his vews did not determine union policy. These suggestions cannot be credited. Mr. Mazey had participated in previous negotiations. He was the highest of the parent union’s officials to do so. The parent UAW was a party to the 1953 contract and would have had to be a party to any subsequent contract. In the union’s critical letter of August 10, outlining the union’s position on the seven major issues, Mr. Mazey’s signature comes first.^* In view of all this, it was unjustified to suggest, as the Board did, that a strike settlement could have been reached without Mr. Mazey’s approval.

In sum, the Board’s holding concerning the September negotiations rests fundamentally on the assumption that the Kohler Company was obliged to make whatever concessions might have been necessary in order to reach a settlement of the strike. When all the errors of fact, of inference, and of judgment are cleared up, that is the only possible conclusion.

There is no longer any need to emphasize the error of the Board’s view. Even if a union loses face as a consequence, the Board has no legal power to force an employer to make a concession. The Kohler Company had better offers to the union on the bargaining table throughout September than it had at any time prior to the strike, when the Board itself held that Kohler bargained lawfully and in good faith. In view of that holding it is impossible to follow the Board’s reasoning that the same or better offers at a later point became unfair labor practices.

5. The “Unilateral” Increase of August 5, 1955

The questions posed by the Board’s rulings on other issues become more puzzling when one considers its ruling on the increase which Kohler granted on August 5, following negotiations with the union on July 7-20 and August 1-2, 1955. During those negotiations, even though its position was then stronger than ever, the Kohler Company actually offered the union new concessions on wages and on other matters.

As to wages it offered an increase of five cents per hour for all incentive workers and ten cents per hour for those not on incentive-pay. This, incidentally, was at least the equivalent of the increase which Judge Murphy was sure he could “sell” to the union—and which the Board held in effect that the company was obliged to offer the preceding September, if it wished to avoid being held guilty of unfair practices. In addition, as the trial examiner himself noted, the company “offered to enter into a one year contract incorporating provisions it had previously agreed to; to change its pension and insurance plans as previously proposed; . . . and to offer reemployment within three months to a minimum of 550 employees then on strike (employees discharged for misconduct to be excluded).”

The union, on the other hand, refused to move from its former position on any of the significant contract issues. With some minor exceptions, as the trial examiner said, the union “otherwise closely adhered to its earlier position on other contract issues. Its wage demand was [i.e., continued to be] for a general wage increase of ten cents plus five cents additional to nonincentive workers. The Union also agreed to withdraw all pending charges, but proposed that all strikers be reinstated without discrimination [including of course the ninety discharged for seriously unlawful conduct].”

On August 3, 1955, the union held a mass meeting, during which all the company’s proposals, including the wage increase, were rejected. Learning of this rejection, the Kohler Company on August 5 announced and put into effect retroactively to August 1 the wage increase which the union refused to accept.

Granting this increase, the Board held, was an unfair labor practice, a violation of the company’s duty to bargain. “The Board finds,” it said, “as did the trial examiner, that [the Kohler Company] separately and independently violated . . . the Act by the unilateral granting of a wage increase on August 5, 1955, in the absence of an impasse on wages or other contract issues. The Board also agrees with the trial examiner that this unfair labor practice contributed to the prolongation of the strike.”

Board Member Philip R. Rodgers dissented from this finding. He viewed the evidence “as showing that an impasse was reached by the parties when the union membership rejected [the Kohler Company’s] settlement proposals, including the wage increase later placed in effect.” “In view of this impasse,” he concluded “he would find that [the company] lawfully placed in effect the August 5 wage increase.”

The trial examiner had held that in the negotiations of August 2, “discussions centered almost entirely” on the issue of reinstatement for the strikers guilty of serious misconduct. “There was practically no discussion of contract issues,” he found. And he considered it important that the Kohler Company did not inform the union that “it intended to put the wage increase into effect if settlement was not reached.”

For these reasons, according to the trial examiner, it could not be said that an impasse had been reached. And therefore, he ruled, the Kohler management showed a lack of good faith in bargaining and an intention to disparage the union when it put the increase into effect.

As already noted, there is no question but that under the law an employer may “unilaterally” adopt proposals which the union has definitely rejected. The question, therefore, is whether or not the Kohler Company’s wage and other contract offers had been definitely rejected. On this the record is clear. It shows that the union negotiators rejected these offers in the meeting of August 2, and it shows a further rejection in the mass meeting of August 3. Perhaps more important, the record shows a continuous impasse on the company’s wage and other proposals for more than a year prior to August of 1955. When the Board majority accepted the trial examiner’s conclusion in the face of such a record, it exhibited a contempt for fact and law so gross as to defy belief.

Here again, as in the previous rulings, the Board’s decision is defective in all essential respects. It finds an unfair practice where the record demonstrates that there was none. And it holds that the (nonexistent) unfair practice prolonged the strike without even pretending to establish the necessary causal relationship.

6. Alex Dottei

With the holding that the Kohler Company committed an unfair practice which prolonged the strike when it voluntarily offered to withdraw its discharge of Alex Dottei, we encounter one of the most extraordinary features of the NLRB’s remarkable decision. Mr. Dottei was on the company’s original list of ninety-one strikers whom it intended to discharge for participation in illegal violence. The activities which induced the Kohler Company in the first place to discharge Mr. Dottei were of the same kind as that in which the other ninety dischargees had engaged: mass picketing, violent employment office picketing, home demonstrations, assaults, and so on. A majority of the NLRB members held that the Kohler Company was justified in discharging the other ninety employees. Therefore, beyond the shadow of a doubt the company would also have been upheld in discharging Mr. Dottei, too—but for the fact that at one point in the hearing before the trial examiner, the company offered to withdraw the discharge of Dottei (merely as one among possibly others of the ninety-one) if it could come to an agreement with the NLRB’s General Counsel with respect to other unfair practice charges.

As it happens, the NLRB General Counsel refused to agree to the company’s proposal. He insisted on continuing to prosecute the charge that the company had committed an unfair practice in regard to some thirty-five of the discharges. Ultimately—and this is so vital that it bears repetition—the Board rejected the General Counsel’s contention and upheld the company. But the crucial point at present is that the General Counsel did not agree to the condition upon which, exclusively, the company had held forth its offer to withdraw Mr. Dottei and possibly others from the list of dischargees. This being so, the offer was of course not binding upon the company.

So prejudiced was the trial examiner, however, that he held the company’s offer to withdraw Mr. Dottei’s discharge was an admission that it had erred in including him on the list of dischargees! Biased as he may have been, however, the trial examiner acted more judiciously on this issue than a majority of the Board later did. The trial examiner at least did not hold the Kohler Company guilty of an unfair practice merely because it had conditionally offered to withdraw its discharge of Dottei. He held, instead, that the discharge was unlawful because Mr. Dottei’s admittedly unlawful conduct was not “sufficiently grave” to justify a discharge.

Two members of the NLRB, Chairman Leedom and Member Rodgers, took the position that since Dottei had participated in the same unlawful conduct, his discharge was as justified as that of the other ninety. Two members, Messrs. Bean and Fanning, took the position that Mr. Dottei’s conduct was not unlawful enough to justify his discharge. The remaining Board Member, Mr. Jenkins, held that by offering to withdraw Dottei’s discharge the company “in effect confessed error in his discharge and is now estopped from litigating this matter.”

Thus a bare majority of the Board held the Dottei discharge an unfair labor practice, and the same majority went on to hold that this unfair practice was instrumental in prolonging the strike. The latter holding requires elucidation. Kohler refused to negotiate with the union as to the ninety-one strikers it intended to discharge for misconduct. The question whether this refusal amounted to an unlawful refusal to bargain turned upon the legality of the discharges. If the discharges were legal and justifiable, then the refusal to negotiate them would be similarly lawful; if not, the refusal would be unlawful.

The true inwardness of the holding that Mr. Dottei’s discharge was an unfair practice is now apparent. Holding it an unfair practice, the Board Majority laid the basis for the further holding that the Kohler Company’s refusal to negotiate the discharges as a whole was an unlawful refusal to bargain. And from there it was, for the Board majority, an easy step to the conclusion that such a refusal to bargain was an unfair practice which prolonged the strike. Still and all, it is difficult to believe that the three Board members could expect anyone to take seriously their assertion that the Dottei affair prolonged the strike.

Of certain ancient warriors it was said that “when their legs are smitten off they fight upon their stumps.” The NLRB has far outdone those ancient warriors. With no foundation in fact and none in law or logic, it has held the Kohler Company guilty of a number of unfair practices. Not satisfied with that remarkable accomplishment it has gone on to essay an even greater one. While itself acknowledging that the company’s marathon negotiations with the union repeatedly foundered on the rock of the “same seven major issues,” it has nevertheless held that the company’s alleged unfair practices prolonged the strike. The company argued vigorously before the Board that the union’s charges should have been dismissed if for no other reason than that by its willful, sustained, and flagrantly lawless conduct it had forfeited any right to resort to the law. It said: “To ignore the union’s patent and flagrant denials of the employees’ rights under the Act while searching the record for miniscule, technical and speculative violations on the part of the company is to swallow the camel while straining at the gnat.” To this obvious description of its attitude the Board refused to concede the slightest merit. Instead it chose to reward the union, even though that required the kind of manipulation of fact and law which we have been observing. And there is more to come.

8. THE “SPYING” AND OTHER ALLEGED UNFAIR PRACTICES

THE NLRB FOUND the Kohler Company guilty of other unfair practices: “spying” on the strikers and investigating their leaders; attempting to solicit the return to work of one striker; “coercing” another in the performance of union functions; and “evicting” others from company-owned lodgings and homes. Of these, the “spying” ruling is the most significant; first, because the NLRB considered it to be further evidence of the company’s failure to bargain in good faith after the strike; second, because it displays the Board’s distortions of the evidence and unfairness to the company in a particularly emphatic way.

1. The “Spying”

The Board roundly castigated the company for engaging in three types of investigative activity. The first involved, according to the Board, “matters plainly outside the scope of lawful inquiry.” These were (a) striker sentiment concerning the status of the strike in the spring and early summer of 1955; (b) the private lives of certain officials of the parent UAW who were in charge of the strike; and (c) the “coming and going” of union officials from union headquarters and other places where strikers might gather. The Board held that investigating each of the foregoing activities constituted unlawful surveillance in violation of the National Labor Relations Act.

The Kohler Company did in fact keep watch upon the strikers and their leaders. Company personnel observed events on the picket line, and detectives were hired to dig up information. But a true understanding of these activities can be gained only by placing them in context, something which the Board neglected to do. Innumerable acts of violence were committed by the pickets. Union agents were guilty of several brutal assaults. Hundreds of acts of vandalism in Sheboygan were sworn to, against the property of nonstrikers, with not a single suspect apprehended by the police.

The plain fact of the matter is that the company, fighting for survival against the men who avowedly intended to “wreck” it, had to take on the job which the duly constituted police authorities were flagrantly neglecting because of political pressures and political union influence. On the one hand, the company was attempting to find out who was responsible for the vandalism and the assaults on its people. On the other hand, it was gathering evidence which it needed in order to defend its discharge of the strikers guilty of the most serious violence. Had it not engaged in the surveillance which the Board condemned, it would have been found guilty of an unfair labor practice in making those discharges, too.

But, said the Board, the surveillance of the strikers extended to accepting detective-agency reports in the spring of 1955 concerning striker attitudes on whether the strike had been lost by then. Here again the Board distorted the facts. The detectives submitted forty reports covering three years and three months and totalling 299 pages. Of these, only three minor excerpts, torn out of context, and totalling only a fraction of a page, could be found to support the conclusion that the company was checking strikers’ beliefs concerning the status of the strike. The vast bulk dealt with legitimate subjects of inquiry.

In such circumstances the question which naturally arises is whether the company attempted to undermine the strike by underhanded attempts to find out what the strikers were thinking about it. Mr. Conger testified that the detectives were ordered not to check “legitimate union activities of anyone” but to confine themselves to “only illegitimate activities.” More than ninety-nine per cent of the reports were so confined. No fair-minded person could conclude under these circumstances that Kohler had set detectives to spy on legitimate activities.

The obvious inference is that the three questionable items crept in accidentally. Moreover, they recounted striker-sentiment in May and June of 1955. Both the trial examiner and the Board accused the company of being sure it had won the strike in September, 1954. In August of 1955 the company made the highest wage offer it ever made to the union. This was after the May and June detective reports indicated belief on the part of the strikers that the strike was lost. All these facts considered together rather plainly suggest that the Board was as wrong as it could be in its total analysis of the situation.

The Kohler Company was also said to have made inquiry into the “private lives” of some of the union leaders, but here again the specific facts and circumstances, which the Board did not mention, are important. These union leaders were required under the law to file non-Communist affidavits before they could avail themselves of the protection of the National Labor Relations Act. The Kohler inquiries were directed in part to that subject, admittedly legitimate. The same leaders were persistently inciting others to unlawful conduct, and the Kohler inquiries were in part directed to that fact, again legitimate. Finally, these leaders were important witnesses in the NLRB case, where much would depend on the credibility of their testimony. It is a basic right of every person engaged in litigation to seek evidence bearing on the credibility of antagonistic witnesses. In sum, therefore, the Board had no fair basis in the facts for its holding that these investigations were “plainly outside the scope of lawful inquiry.”

The same is true of the company’s check on the “coming and going” of union leaders to and from strike headquarters, which, too, the Board held was beyond the scope of legitimate inquiry. These checks were animated by the same purpose that accounted for the foregoing. Kohler was acting in self-defense, attempting to discover who was responsible for the violence and vandalism which the police were doing nothing about.

While holding the company guilty of an unfair practice for such “spying,” the Board had nothing to say about the kind of “intelligence activities” which the union was carrying on at the same time. The union proudly boasted that it had “agents” in the plant who gave it daily reports on the company’s activities, the way orders were coming in, how production was going, even the cost of postage. Moreover, the union continually printed scurrilous and even libelous accounts of the private lives of the Kohler management.

Perhaps, however, the NLRB had nothing to say about these things because the trial examiner refused to allow the Kohler Company to get anything into the record about them. While admitting all the union’s evidence about the company’s inquiries, and then pontifically berating the company for its “astounding spying,” the trial examiner ruled that the evidence proferred by the company was inadmissible. These were only “facetious and amusing” incidents, said the trial examiner, designed to maintain “the morale and spirits of the strikers.”

Thus the company was held guilty of an unfair labor practice for engaging in a legitimate act of self-defense. At the same time, evidence of illegitimate spying and scurrilously untrue publications by the union was not even admitted to the record. The union investigated legal activities, while the company investigated illegal activities; yet, the company suffered the lash of the NLRB’s contempt and the force of its “law,” while the union was rewarded.

The NLRB commented upon two other categories of investigative activity by the company, without holding them to be unfair practices. It criticized the company for having received suggestions for strikebreaking activities and for “bugging” a hotel in which some union officers were allegedly quartered. There was not the slightest wisp of evidence in the record that the company acted upon these suggestions, and the Board therefore felt that it could not hold the mere receipt of them an unfair practice. But it made use of them anyway, holding that the suggestions “buttress our earlier findings that at all times after June 1, 1954, . . . the [company] failed to bargain in good faith.”

The final item which aroused the Board’s wrath involved the company’s investigation of one of the NLRB’s own lawyers. The Board said:

The possible ramifications of such conduct is [sic] beyond comprehension . . . the Board can envision no justifiable excuse for the employment of detectives to spy upon and investigate its attorneys or other personnel while they are engaged in the performance of their duties pursuant to the Act.

The Kohler Company, together with all other persons who are held to a strict standard of legality, must accept invasions of files, subpenas, extended investigations into intimate affairs, and the multitude of other ways in which government agents pry into private lives today. But NLRB personnel are off-limits. In the specially privileged class in which the NLRB has placed union leaders there is apparently room for one other category—NLRB personnel.

2. The “Solicitation” of Alois Forstner

The Kohler Company committed an unfair practice, the Board held, when one of its foremen offered special favors to striker Alois Forstner if he would return to work during the strike. It did not matter, said the Board, that the company had a strict rule against the solicitation of any striker; nor that owing to this rule, the foreman urged Forstner not to say a word about the request because that would get the foreman’s “rear end in a sling”; nor that the complaint failed to allege a single other act of solicitation by the company; nor even that Forstner actually did not return to work. The only thing that mattered to the Board was that Forstner had special skills. That being true, the Board went on,

it is reasonable to infer that [the company’s] production may have been seriously handicapped without Forstner’s services. Thus, even assuming [the company] had a general policy against solicitation, the solicitation of Forstner may have been an exception. . . . [Italics supplied.]

It is impermissible as a matter of law for the NLRB to pile one speculative inference upon another as the basis for a finding of unfair practices. A better example of that impermissible practice than the one just quoted would be difficult to find.

3. The “Coercion” of Gordon Majerus

In instituting the proceeding against the Kohler Company, the union made a broad and general charge that the company was guilty of “coercion” of employees in violation of the Act. When the trial began it was necessary to present some evidence in support of that charge. This proved to be extraordinarily difficult. Although Kohler employed two hundred and seventy-five supervisors and more than three thousand employees, not a single instance of true coercion could be cited. At a loss for anything more serviceable, therefore, the union was compelled to advance some innocuous remarks made by two Kohler supervisors as attempts to restrain and coerce Mr. Gordon Majerus in the performance of his duties as a union steward.

The first of these was reported by Majerus as a statement by his supervisor, Willard Kolhagen, to the effect that “there was no sense in fighting for this kind of guy.” The reference was to a grievance which Majerus was processing. The employee involved had admittedly produced and was performing inferior work. According to Majerus, Kolhagen also told him later that his activities would put him in a bad light with the company. When asked to explain further, Majerus said: “Well, he argued with me. He said that this employee had done some work that wasn’t just exactly what it should have been; he used arguments like that for his reasoning why he said that.” Although there was no evidence that Majerus had actually been frightened by Kolhagen’s alleged remarks, or that his activity as a steward was affected in the slightest degree, the trial examiner held that Kolhagen’s remarks were unlawfully coercive, and the Board upheld this finding.

It also upheld the trial examiner’s conclusion that Majerus was coerced by certain remarks of another foreman, Smith. According to Majerus, Smith told him he was making a mistake battling for the union, that if a strike was called he would be “out in the cold,” and that he ought to take a job on another floor in the old engine plant. These remarks, according to the trial examiner, “were directed at discouraging Majerus’ activities as a steward, though here the statements were implemented by suggestions of other employment, that is by promises rather than by threats.” The Board agreed.

To hold the company guilty of unlawful coercion on the basis of these two petty and isolated incidents violates both the law and common sense. The courts have repeatedly held that coercion may not be attributed to a company when there is such skimpy evidence as this, especially when the company’s steady policy has been to warn its supervisors against any coercive activities, as the Kohler Company’s policy so manifestly was, since these were the only incidents which could be dredged up in an employment unit involving two hundred and seventy-five supervisors and over three thousand employees. Beyond that, common sense rebels at the conclusion that the incidents revealed either a coercive intent or a coercive result.

4. The “Evictions”

The “evictions” from the American Club and two company-owned farm homes, described in Chapter Five, were also held to be unfair practices. The Board regarded them as having been motivated purely by the fact that the tenants were strikers. But since both the roomers at the American Club and the tenants of the homes were allowed to continue their occupancy for long periods after the strike (ranging from nine months after the strike began to some years thereafter), the Board’s view of the facts is difficult to credit. Reason would tend to suggest that the act of striking had nothing to do with the company’s decision to “evict” (actually it would be more accurate to say that the company refused to renew the leases on the homes and the rooming arrangement at the American Club). For the company took the action in question only when a pressing demand for the accommodations asserted itself, not when the strike began. Moreover, it went along generously with the tenants, giving them liberal extensions after their leases had expired.

There is another way, too, of looking at the matter. In holding the company guilty of an unfair practice here, the Board has in effect said that striking gives an employee a special privilege to occupy company property. This comes entirely too close to holding that an employer must pay workers when they go on strike. It is true that an employer may not penalize his employees for striking. But it is also true that the act of striking carries with it no special privileges.

The better view would seem to be that the roomers and the tenants could no more extend their right to the Kohler accommodations by striking than the temporary shell-department employees could prolong their jobs by striking. Holding otherwise magnifies the right to strike out of all proportion to the at least equally important right of private property. No one would argue that the strikers had a right to compel the Kohler Company to continue to pay into their pension and insurance programs while the strike was going on. No one, presumably, would even argue that the strikers could for the first time during the strike expect the company to rent rooms at the American Club or lease farm homes to them. It would seem to follow that the company was similarly within its rights in refusing to extend the leases beyond their termination date and the rooming arrangements beyond a reasonable period of notice to vacate.

Finally, it simply goes against the grain to hold that strikers who are doing their utmost to hurt a company economically should be entitled to occupy its premises. Twenty years ago the National Labor Relations Board took the position that a firm did not have a right to discharge even sitdown strikers who denied the owners access to their property. The Supreme Court reversed the Board in that case, admonishing it against the view that the only social rights of significance are those possessed by strikers.

The same admonition is germane here. The company’s right of private property is entitled to as much respect as the worker’s right to strike. Upholding the company’s property right would not in the slightest degree have infringed upon the right to strike. But holding the strikers entitled to possession of the company’s homes and rooms constituted a drastic impairment of its right of private property. True judging always seeks to balance rights, not destroy them. But the Board will apparently never learn to decide cases in a truly judicial manner.

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^* There is a question concerning the actual date of the increase, but it is irrelevant to the present discussion. See Chapter 10.

^* For the full text of the union’s letter of August 10, see Appendix A.

^* For the full text of this letter, see Appendix B.

^* See Appendix A.