Kohler Co.

National Labor Relations Board - Board Decisions

Sep 29, 1964

148 N.L.R.B. 1434 (N.L.R.B. 1964)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kohler Co. and Local 833, UAW-AFL- CIO, International Union,
United Automobile , Aircraft & Agricultural Implement Work-
ers of America. Case No. 30-CA-3 (formerly 13-CA-1780).
September 29, 1964
SUPPLEMENTAL DECISION AND SUPPLEMENTAL
ORDER
On August 26, 1960, the Board issued its Decision and Order,"
finding that the Respondent, Kohler Co., violated Section 8(a) (5),
(3), and (1) of the Act. In sum, the Board found that the Re-
spondent unlawfully refused to bargain in good faith by unilaterally
putting into effect wage increases, by discharging certain striking
employees and transferring certain nonstriking employees without
notification to or consultation with the Union, by refusing to furnish
certain pertinent wage information for purposes of bargaining, and
by otherwise failing to meet its statutory obligations to negotiate in
good faith. The Board also found that the Respondent violated Sec-
tion 8 (a) (3) and (1) of the Act by discriminatorily treating certain
employees and by discharging others because of their participation
in strike activities. Finally, the Board found that Kohler interfered
with, restrained, and coerced its employees by engaging in surveil-
lance and antiunion espionage, by threatening or promising benefits
concerning the handling of grievances by a union steward, by solicit-
ing or promising benefits to procure the return to work of strikers,
by evicting certain strikers from company-owned dwellings, and by
other conduct violative of Section 8 (a) (1) of the Act.
However, the Board rejected the contention raised by the General
Counsel and the Union that, in the negotiations preceding the strike
which began on April 5, 1954, the Respondent was bargaining in bad
faith. Instead, the Board found that the strike was economic at its
inception, but was prolonged and thereby converted into an unfair
labor practice strike by the Respondent's unfair labor practices on
and after June 1, 1954. The conclusion that the strike was not caused
by unfair labor practices rested, in part, on two subsidiary findings,
namely, that (1) the Respondent's pre-1953 antiunion history did not
establish that Kohler was bargaining in bad faith or engaging in
"surface bargaining" during the negotiations which preceded the
strike, particularly since the parties had successfully entered into a
contract in 1953, and had subsequently negotiated a supplemental
agreement, and (2) the three unfair labor practices which Kohler
'Kohler Co ., 128 NLRB 1062
148 NLRB No. 147.
KOHLER CO. 1435
engaged in during the prestrike negotiations 2 were unrelated to the
bargaining negotiations and played no part in the failure to reach a
contract.
Finally, the Board found that 77 employees whom the Respondent
discharged during the strike were discharged because they engaged
in mass picketing or similar misconduct and were therefore not en-
titled to reinstatement. Although the General Counsel and the Union
had urged that the Board should, in accordance with the doctrine of
N.L.R.B. v. Thayer Company, 213 F. 2d 748 (C.A. 1), cert. denied
358 U.S. 883, balance or weigh the strikers' misconduct against the
Respondent's unfair labor practices, the Board, without such balanc-
ing or weighing, concluded that-the seriousness of the misconduct en-
gaged in by the clischargees was sufficient to warrant their discharge.
Thereafter, the Board ordered the Respondent to cease and desist
from the unfair labor practices found. It ordered the Respondent to
bargain in good faith and to take certain affirmative action which,
in pertinent part, required the Respondent to reinstate, upon appli-
cation, all striking employees to their former or substantially equiva-
lent positions, excepting the 77 who the Board found were lawfully
discharged for misconduct, and to dismiss, if necessary, any replace-
ments hired after June 1, 1954.
On January 26, 1962, the Circuit Court of Appeals, District of
Columbia, enforced all of the remedial portions of the Board's Order.'
However, the court concluded, in effect, that the grounds on which
the Board had found that the strike was not an unfair labor practice
strike at its inception were inadequate. Thus, the court noted that
merely because the Respondent executed a contract and a supple-
mental agreement with the Union in 1953 did not mean that the
Board should have ignored the Respondent's pre-1953 labor relations
history in assessing its intent at the bargaining table in 1954. Fur-
thermore, the court also observed that even though the Respondent
did enter into a contract and a supplemental agreement in 1953, this
was "only an initial step in the process of good faith bargaining,"
and that thereafter the Respondent failed to maintain the integrity
of this process, by committing the three unfair labor practices, de-
scribed above in footnote 2, all of which related to the grievance pro-
visions of "the very contract which resulted from those [1953] nego-
tiations and which the Board relied upon to demonstrate that Kohler
had taken a new outlook." Additionally, the court also concluded
that the Board should have followed the doctrine of the Thayer case,4
2These unfair labor practices included two attempts to prevent the Union's chief stew-
ard from processing employee grievances and a refusal to supply information needed to
process wage claims based upon the 3-cent wage increase negotiated in August 1953.
3 300 F 2d 699
4 213 F. 2d 748 (CA 1), cert denied 348 U.S. 883.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and weighed the misconduct of the 77 dischargees against the Re-
spondent's unfair labor practices, in determining whether their mis-
conduct was sufficient to disqualify them for reinstatement.
Accordingly, the court remanded the case to the Board for recon-
sideration as to the causation of the strike and the question of the
discharge of the 77 strikers.5
Causation of the Strike
In light of the court's opinion, we have reviewed the totality of
the evidence with respect to the causation of the strike, and find that
the strike was caused and prolonged by the Respondent's unfair labor
practices. Based upon a complete review of the record facts,6 includ-
ing the Respondent's pre-1953 labor relations history, we are con-
vinced that the Respondent at no time intended to accept the Union
as the collective-bargaining representative to be dealt with in good
faith but, on the contrary, had a firm and fixed intention to under-
mine, weaken, and eventually destroy the collective-bargaining
relationship.
We shall consider seriatim those record facts which lead us to these
views.
a. Pre-1953 labor relations history
In 1933, faced with the threat of organization by the American
Federation of Labor, W. J. Kohler, Sr., then president of the Re-
spondent, while presiding at a meeting ,of 100 persons including the
Respondent's counsel, Conger, stated that he would recognize an
independent union. Indeed, a constitution for such an organization
had already been drafted at the time, and application cards previ-
ously prepared were distributed at the meeting. John Steiber, who
was elected temporary chairman, was told by Respondent's represent-
atives not to report back to his regular job in the pottery, but was
furnished office quarters in the employment office from where he com-
menced organizing and obtaining members for the Kohler Workers'
Association, herein called the KWA. Thereafter, and continuing for
almost a decade and a half, KWA received such innumerable forms
of assistance and support from the Respondent, including some $800
to $1,500 per month income from vending machines located in the
plant, as would justify its characterization by present-day standards
as a dominated union.
5 The Board did not seek certiorari The Respondent's petition for certiorari was denied,
370 U S 911
9 Chairman Frank W . McCulloch and Members Gerald A. Brown and Howard Jenkins,
Jr, who succeeded to the Board after the Board's Decision and Order issued ( 128 NLRB
1062), have carefully reviewed the record evidence, the positions of the parties, and all of
the briefs filed herein Raving done so, they are in substantial agreement with the dissent
of former Board Member Joseph Alton Jenkins in the earlier Board Decision in this case.
KOHLER CO. 1437
In 1934, the Respondent repulsed the organizational efforts of the
AFL in a violent and bloody struggle which involved the use of
tear gas and the State militia against the strikers. Later in 1934, the
AFL lost to KWA a representation election conducted by the NLRB
under section 7 (a) of the NRA. As a result of the strike, according
to Conger, there ensued many years of "labor peace." 7 During this
period, the Respondent continued to assist and dominate the collec-
tive-bargaining agent of its employees, despite the passage of the Act
which we now administer. Thus, in 1947, KWA Representative
Arthur Bauer was permitted to obtain the signatures of some 300
employees to checkoff cards in the cleaning room office on company
time with supervisors sending the employees to Bauer. The checkoff
cards were honored by the Respondent and subsequently the dues
were deducted twice per year with no necessity of signing new check-
off authorizations." Herbert Kohler, the Respondent's president, in a
radio speech on April 12, 1952, perhaps best characterized the rela-
tionship with KWA during this period when he stated, "For 16
years, Kohler Co. and the KWA had no major differences."
During the late 1940's, as the KWA leadership became increasingly
militant in its attitude and demands, the Respondent regarded the
KWA with diminishing favor and withdrew much of its assistance.
About this time matters related to collective bargaining and other
matters discussed at meetings between the Respondent and KWA
were published in the Kohlerian, a KWA newspaper. Conger ob-
jected to this, claiming that the relationship between the Respondent
and the KWA would be much better if such matters were kept out
of the bargaining representative's newspaper. Moreover, Conger ad-
mitted being "unhappy" over the deteriorating relationship between
the parties and blamed it on the "militant" union leadership and the
policies they were then following. Indeed, Respondent accused the
KWA officers of trying to become "militant labor leaders."
The UAW began its first organizing drive in 1950. Following one
of the organizational meetings held in his home, Edward Kalupa, a
member of the UAW organizing committee, was asked by Superin-
tendent Gavin why he was not satisfied. Gavin went on to say that
he hated to see a young intelligent man being misled by some union.
7 We note that in September 1954, in rebuffing Judge Murphy's attempts to settle the
strike, Conger told Judge Murphy , "there had been a bitter strike in 1934 ; that it re-
sulted in twenty years of labor peace , and that he was going to insist that this strike
bring to the company twenty years of labor peace, and that some place along the line, he
said , 'we are going to teach the union a lesson.' 11
8 The Respondent displayed a far different attitude when dealing with the Union herein.
Thus , during the 1954 negotiations , the Respondent not only insisted that checkoff cards
would be good for only 1 year , but also that it would recognize only those checkoff cards
signed after the date of any new contract.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, prior to the representation election of 1951 in which the
KWA and the UAW were parties, the Respondent actively engaged
in the preelection campaign against the UAW by various radio
broadcasts and full-page newspaper advertisements. The KWA won
the election. At the first meeting between the KWA and the Re-
spondent after the election, Conger stated, "We are the ones that won
that election for you. We got on the air and put ads in the papers
and we are certain that is what changed the picture, otherwise we
might be meeting with somebody else right now."
The UAWT continued its organizational drive after it lost the elec-
tion. But, in the summer of 1951, at a meeting attended by President
Herbert Kohler, Personnel Director Walter Ireland, and Plant Man-
ager Biever, some of the Respondent's supervisors were told to find
any individuals that were trying to promote the UAW in their
departments, report any infractions of the shop rules by these em-
ployees, and if three such infractions were reported "the Company
would then have a just reason to discharge that individual." There-
after, as found by the Board and the court, in order to forestall the
advent of the UAW, the Respondent flagrantly interfered with, co-
erced, and restrained its employees in violation of Section 8(a) (1)
of the Act. The court also found that the Respondent discrimina-
torily discharged an active UAW supporter because of his outspoken
support of the UAW.s
On April 4, 1952, the UAW filed a representation petition with
respect to the Respondent's production and maintenance employees.
On April 27 the KWA membership elected to authorize a vote among
its members to determine whether KWA should affiliate with the
UAW. On April 29 Herbert Kohler made two radio addresses in
which he stated that "a vote for affiliation with the UAW-CIO will
be a vote for a strike at Kohler." (Just prior to this the KWA
membership had voted to reject the last contract proposal of the
Respondent.) Kohler attributed the differences between the Re-
spondent and the KWA to "a change in the KWA leadership," a
leadership which seemed to be interested "in bringing Kohler a for-
eign union." Subsequently, the KWA membership voted to affiliate
with the UAW, but Respondent, in an advertisement in the local
newspaper, stated it did not recognize the affiliation vote as having
official status and that the vote was conducted in "extreme" haste,
apparently "to rush the vote before employees had an opportunity to
consider the matter, and to railroad a commitment." Conger admit-
ted that he blamed the affiliation with the UAW on the KWA officers
and condemned some of them for "double-dealing." Thereafter, on
May 7 and 13, Herbert Kohler made various radio addresses in which
e N.L.R.B. v. Kohler Company, 220 F. 2d 3, enfg. 108 NLRB 207.
KOHLER CO. 1439
he was critical of some of the KWA officers and accused the UAW of
"boring from within" and of preventing collective bargaining or a
contract settlement between the KWA and Respondent.
On June 2, Conger made a radio address wherein he charged that
dissatisfaction with the KWA was caused by new KWA leaders who
posed as "fighters" and "militant labor leaders," who "wanted to see
their names in the newspapers," who "used the tactics ambitious men
have always used to try to make themselves look bigger than they
are," and who "have been aping typical abusive C.I.O. tactics for the
past two years." Conger completed his speech by saying that the
former KWA officers-now CIO officials-"brought Kohler employ-
ees more trouble than benefits in the last two years," and they "are
now where they belong." Thereafter, on June 4 and 9, Herbert
Kohler made radio addresses in which he indicated that the Respond-
ent was "opposed" to the UAW because it advocated the union shop,
straight seniority, escalator wage clauses, and force. He also stated
that "should the UAW-CIO succeed in its attempt to organize
Kohler Co., negotiations of a mutually acceptable contract would be
very difficult." In addition, he stated, "We have had 17 years of
industrial peace at Kohler without the CIO, and the CIO is the only
thing that threatens it now."
The representation election was held on June 10 and 11, 1952, and
despite the opposition of the Respondent, the UAW won the election.
Immediately thereafter, the Respondent withdrew the last forms of
assistance which the KWA had received.
Negotiations between the Respondent and the newly elected bar-
gaining agent commenced in August of 1952. At this time the em-
ployees had already been without a collective-bargaining agreement
since January 30, 1952, and all the issues in dispute during the
KWA's negotiations were still unresolved.10 Respondent finally
agreed to its one and only contract with an "outside" union on March 1,
1953. This contract was for a term of but 12 months. Moreover,
this agreement was reached only after the Board had issued its com-
plaint in the first Kohler case, the union membership had voted to
take strike action, the mediation and conciliation services of the Gov-
ernment were employed, and the Respondent had made extensive
strike preparations including the purchase of shotguns, tear-gas guns,
ammunition, and food supplies, the construction of watchtowers, and
the stockpiling of coal.
The execution of the contract did not terminate the 1953 negotia-
tions, for, pursuant to a 3-month wage reopening clause in the con-
tract, the Union requested reopening on May 23, 1953. These nego-
1O KWA , then led , according to Conger , by "militant leaders ," had begun negotiations
late in 1951, but was unable to reach any agreement with the Respondent.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations also proved fruitless until a strike authorization was again
voted and the Respondent had again initiated strike preparations
similar to those engaged in earlier in the year. On August 20, a
settlement providing for a slight wage increase was reached.
b. The 1953 contract period
Despite the favorable publicity issued by the Union in regard to
the 1953 contract, record evidence shows that nothing in the 1953
contract, either in its execution or in its administration, lessened the
Respondent's animus against the Union and its leadership. As illus-
trative of such evidence, in September 1953, during a grievance meet-
ing, Union Representative Burkart compared the parties' relationship
to a marriage, and Conger responded, "You may liken this to a mar-
riage, but if it is, it sure as hell was a shotgun wedding."' Also,
during a two-man bargaining meeting in 1954, Conger pointed out
to Mazey, secretary-treasurer of the UAW, that the Respondent had
signed the 1953 agreement because the Federal conciliators had told
the Respondent that this was a new union and that Respondent
would be dealing with professional unionists and would be able to
live much better with them than it had lived with the KWA in the
past 2 years, and that Conger accepted this advice and signed the
agreement. Conger continued, however, that he learned shortly
thereafter that he had to deal with the same people he had dealt with
in the KWA, and that the Respondent just could not hope to live
with the local union officers without constantly bickering, but if he
were dealing with a different group of officers who had a different
attitude on labor relations, "there were many things that the Com-
pany would be able to do that they were not able to do now."
President Kohler also displayed this same implacable attitude to-
ward the UAW and its officers. Thus, he testified, "I had an idea
from the day we signed the first contract that they were going to
pull a strike as soon as they could, as soon as they could drench the
minds of these people." Again later he testified that the UAW was
a very "militant union," which from the very time that it came into
the plant was attempting to take the life of the Company. At still
another point Kohler indicated that from the time the Respondent
commenced bargaining with the UAW, he felt that the UAW was
only seeking to establish "dictatorial power."
As illustrated by the above evidence, the 1953 contract did not
lessen the Respondent's animus against the Union and its leadership.
Similarly, the record also shows that the 1953 contract did not bring
about a halt in the Respondent's efforts to undermine, weaken, and
eventually destroy the collective-bargaining relationship. Indeed, it
KOHLER CO. 1441
appears that the Respondent administered that contract in "bad
faith" with its sole purpose being to demonstrate to the employees
that contract or no contract, law or no law, their achievement of a
bargaining relationship had little meaning.
Exemplifying the record evidence in this regard, the 1953 contract
provided for the appointment of committees to study the existing job
classifications in the plant with the view to simplification and re-
moval of any inequities that might have existed. The contract con-
templated that the committees were to meet and settle the matter
before the wage reopening period. However, no such settlement was
arrived at during the proscribed period. Thereafter, in the contract
supplement negotiated during the wage reopening, the parties pro-
vided for the establishment of a joint committee to study and narrow
down the number of existing job classifications and thereafter deter-
mine existing wage inequities and negotiate adjustments on such
inequities.
Shortly after this supplemental agreement, the Union, in order to
determine whether or not such inequities existed and in order to en-
able it to submit a proposal of settlement as to such wage inequities,
requested the average incentive earnings in all incentive operations
in the plant. The Respondent supplied a small portion of this in-
formation some 2 months later. However, with respect to the re-
mainder of the information, the Respondent, in flagrant disregard of
its obligation to bargain in good faith, deliberately delayed supplying
the enamelware information for several months, and additionally
violated Section 8 (a) (5) of the Act when it refused to supply the
remainder of that information it had agreed to supply almost 1 year
before. Respondent thereby effectively scuttled its contract agree-
ment relating to wage inequities, for, as Burkart testified, it was
"impossible" to present any commonsense plan on inequities without
the incentive earning information.
In addition, the record also shows that the Respondent, by resort
to still other unlawful conduct, effectively prevented, at least in part,
the policing of the wage provisions of its contract with the Union.
Thus, the machine operators in the brass diecasting division lodged
a complaint with their collective-bargaining representative that their
earnings were no greater than they were before the 1953 wage in-
crease because of artificial limitations the Respondent had thereafter
placed on production. The Union immediately presented the com-
plaint to the Respondent. Conger promised to investigate. How-
ever, when no report of such investigation was supplied the Union
requested, in writing, that it be furnished the incentive earnings of
the individual machine operators in the brass diecasting department
760-577-65-vol . 148-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the last 3 months of 1952 and the last 3 months of 1953. This
information ; like some 35 percent of the average incentive earnings
described above, was never furnished.
Whether or not this claimed violation of the wage provisions had
substance was something the Union was never able to determine be-
cause of the unlawful conduct of the Respondent . Clearly, such
action by the Respondent could only have the effect of discrediting
the Union with its membership , and this total disregard of its bar-
gaining obligations denied its employees and the Union another
benefit guaranteed them by both the contract and the law.
Again, in another regard the Respondent displayed its contempt
for the contract it entered into as well as for the law we administer.
The 1953 contract contained provisions for the filing of grievances
by its employees . However, during the course of the contract year,
Conger frequently disparaged those employees who utilized the griev-
ance procedures by calling them "malingerers and finaglers ." More-
over, the Respondent consistently manifested such an uncooperative
attitude toward the whole grievance procedure that many employees
felt it useless to submit grievances, and the Union was hard pressed
in getting employees to serve as job grievance stewards.
Clearly, such evidence leads to the conclusion that the Respondent
administered the grievance provisions of the 1953 contract in bad
faith. Indeed, there can be no doubt of such conclusion when this
evidence is coupled with the judicially enforced findings showing that
the Respondent 's supervisors , in complete disregard of the contract
and Section 8(a) (1) of the Act, subjected Majerus, the Union 's chief
steward , to coercive pressures in an effort to prevent his processing
grievances and representing grieving employees in accord with the
1953 contract.
c. The 1954 prestrike negotiations
Viewing the 1954 negotiations in the framework of those events
subsequent to the 1953 negotiations and the Respondent's demon-
strated "bad faith" administration of the only contract negotiated
with an "outside" union impels us to the conclusion that the Respond-
ent continued through the 1954 negotiations with a firm and fixed
intention to undermine , weaken , and eventually destroy the collective-
bargaining agent. Thus, during the prestrike negotiations , the Re-
spondent effectively stifled an atmosphere conducive to bargaining
by devoting considerable time to continually engaging in vituperative
attacks on the collective -bargaining agent and unions in general,
emphasizing the futility of the negotiations , issuing ultimatums to
the Union, and constantly referring to its positions as "fixed" or
KOHLER CO. 1443
"final." 11 Indeed, the Respondent not only emphasized the futility
of the negotiations but contributed to this futility by failing, after
due request, to supply the Union with comprehensive information
concerning its wage structure, although the information was indis-
pensable to intelligent negotiation of some of the matters in issue.12
In addition to the foregoing, following President Kohler's labor
philosophy that "you don't have to give them anything to bargain,"
the Respondent rendered the negotiations even more sterile when it
offered the Union, as the sole basis upon which it would contract, a
patently unacceptable proposal which withdrew from the grievance-
arbitration system many of the vital matters of great concern to its
employees and their bargaining representatives, and reduced certain
other benefits while offering no new ones in return.13
The Respondent's proposed contract terms were designed to reduce
nonmonetary benefits and to return to the Respondent's unilateral
determination matters over which authority had been given to the
Union by the 1953 contract. Thus, the new proposal expanded the
Respondent's power to deal with the employment relationship with-
out regard to the collective-bargaining relationship by broadening
the "management functions" clause and limiting the application of
the grievance machinery to those matters.14
Thereafter, on February 24, Respondent rejected the Union's re-
quest to extend the 1953 contract for 1 month,15 but 2 days later
offered, on a "take it or leave it" basis, an extension for 1 year with-
11 Cf. N.L.R B. v. B. A. Taormina, et al., d /b/a Taormina Company, 207 F 2d 251, 254
(C A. 5) ; International Furniture Company, 106 NLRB 127, 141.
12 Although the Board found and the court agreed that this adjudicated 8(a)(5) viola-
tion did not occur until after the strike commenced, it is clear that the information was
requested even before the commencement of the negotiations, and the Respondent's failure
to comply with the request reveals the Respondent's hostility to the Union and to the
collective-bargaining system. Cf Rapid Roller Co. v. N.L.R B., 126 F. 2d 452, 456-457
(C.A 7).
13 Cf J. W. Woodruff, Sr., d/b/a Atlanta Broadcasting Company, 90 NLRB 808, 820,
enfd. 193 F. 2d 641 (C.A. 5) ; N.L R.B. v. Reed & Prince Manufacturing Company, 205
F. 2d 131, 139 (CA. 1), cert. denied 346 U.S. 887.
14 For example, the proposal withdrew the right of the Union to negotiate on alleged in-
equitable pay standards and deleted the Company's prior commitment to consider the
determinations of the arbitrator either as to his jurisdiction or as to arbitrability Fur-
ther, it contained less obvious reductions in the Respondent's commitments involving the
operation of the grievance machinery by imposing greater restrictions on union stewards
handling grievances during working hours, reduced the Company's obligation to permit
use of paid working time for processing grievances, and lengthened the time for the Com-
pany to rule on grievances while limiting the time within which grievances could be filed
Numerous other instances might be cited but appear unnecessary.
151t is significant that during negotiations with KWA some 2 years before, when KWA
refused a company offer to extend the then-existing contract pending negotiations, Presi-
dent Kohler in an address declared, "This is not conduct of people who wish to arrive at
a settlement It is the conduct of people who do not want a settlement, but who want a
dispute." Cf Texas Foundries, Inc, 101 NLRB 1642; N.L.R.B. v. Herman Sausage Com-
pany, Inc, 275 F. 2d 229, 231 (C.A. 5), rehearing denied 277 F. 2d 793
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out any wage increase,16 or a 3-cent wage increase conditioned on full
acceptance of the Respondent's then-pending contract proposal in-
cluding certain minor changes which had been agreed to. From that
time on, the Respondent would not deviate from its February 26
proposals; refused to open up those package proposals to give-and-
take of bargaining; and adopted the position that the only issue re-
maining to be settled was whether or not the Union would accept
either of the package proposals, and if not, there was no point in
wasting any further time.
It is plain that by Respondent's adamant insistence on these alter-
native package proposals it was not just engaged in hard bargaining,
but was consciously withholding from the Union a fair opportunity
further to engage in the give-and-take process necessary to such
negotiations. Indeed, no other logical explanation appears, for after
the strike had commenced, the Respondent unilaterally established a
3-cent wage increase while continuing in effect the terms of the old
contract-the very combination which the Union was never afforded
an opportunity to accept-the very combination which the Union
could at least claim as some slight improvement over the 1953 con-
tract. As the Board and the court found, this flagrant violation of
the Respondent's obligation to bargain in good faith "disparaged the
Union and the collective-bargaining process" and did in fact prolong
the strike. However, in our view, such deliberate, calculated unfair
labor practice does more than that: it provides "the final insight"
into the Respondent's unlawful intent and conduct of the prestrike
negotiations.17
Accordingly, on the totality of all the evidence, the record shows
that Respondent failed and refused to bargain collectively with the
Union in good faith at all times material herein, and that this unfair
labor practice caused the strike which began on April 5, 1954. It
was an unfair labor practice strike from its inception.
Discharge of the 77 Strikers
In remanding this aspect of the case, the court directed the Board
to follow the doctrine of the Thayer case in determining whether the
conduct of the 77 dischargees was sufficient to disqualify them for
reinstatement. Specifically, the court stated :
16 Indeed , it appears that the Respondent 's offer to renew the 1953 contract was more
in the nature of a propaganda weapon than an attempt to arrive at agreement as it was
submitted to the newspapers before it was submitted to the Union Moreover, after sub-
mitting an original contract proposal which , it knew, would not be acceptable to the
Union becasue of its departure from the previous contract in sacrificing existing benefits,
this proposal to renew the 1953 contract must be regarded merely as a further attempt
to preserve the appearance of bargaining in good faith rather than evidence of a sincere
desire to reach an agreement . Cf. J. W. Woodruf , Sr., d/b/a Atlanta Broadcasting Com-
pany, 90 NLRB 808, enfd. 193 F . 2d 641 (C.A. 5).
17Fant Milling Company, 117 NLRB 1277 , 1282, enfd . 272 F. 2d 773 (C.A. 5).
KOHLER CO. 1445
... where an employer who has committed unfair labor practices
discharges employees for unprotected acts of misconduct, the
Board must consider both the seriousness of the employer's un-
lawful acts and the seriousness of the employees' misconduct in
determining whether reinstatement would effectuate the policies
of the Act. Those policies inevitably come into conflict when
both labor and management are at fault. To hold that employee
"misconduct" automatically precludes compulsory reinstatement
ignores two considerations which we think important. First, the
employer's antecedent unfair labor practices may have been so
blatant that they provoked employees to resort to unprotected
action. Second, reinstatement is the only sanction which pre-
vents an employer from benefiting from his unfair labor prac-
tices through discharges which may weaken or destroy a union.
In the Matter of H. N. Thayer Co., 115 NLRB 1591, 1605-06
(1956) (dissenting opinion). But sanctions other than discharge
-criminal prosecutions, civil suits, union unfair labor practice
proceedings and the possibility of discharge-are available to
prevent or remedy certain employee misconduct. Hart & Pritch-
ard, The Fansteel Case : Employee Misconduct and the Remedial
Powers of the National Labor Relations Board, 52 Harv. L.
Rev. 1275, 1319 (1939). See also Berkshire Knitting Mills, 46
NLRB 955, 1001-03 (1943), enforced, 139 F. 2d 134 (3d Cir.
1943), cert. denied, 322 U. S. 747 (1944). Hence automatic de-
nial of reinstatement prevents the Board from protecting the
rights of employees, but may not be essential to the protection
of legitimate interests of employers and the public. We conclude
that the teaching of the Thayer case is sound and must be fol-
lowed in order to assure the Board's compliance with the statu-
tory command that its remedial orders effectuate the policies of
the Act. [Footnotes omitted.]
We shall consider the discharges in the light of these court-enunciated
principles.
Turning to the facts of the discharges, the record shows that the
unprotected activities for which the 77 strikers were discharged fall
into four broad categories: (1) mass picketing; (2) presence at or
participation in home demonstrations or employment office picketing;
(3) organizational responsibility by the 13 strike leaders for their
direction and control of the strike from April 5 through May 28,
1954; and (4) individual acts of assault, threats, or other misconduct.
The record also shows that all of the misconduct occurred in a con-
text of flagrant antecedent and concurrent unfair labor practices on
the part of the Respondent.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have already found that as a direct result of the Respondent's
willful evasion of its bargaining obligations, and its continuous, open
provocations of their collective-bargaining agent, the employees com-
menced their strike on April 5, 1954. It is clear that this strike came
as no surprise to the Respondent, for indeed, the Respondent had
persevered in a course of conduct calculated ultimately to destroy the
Union and had openly prepared watchtowers and armed itself with
an arsenal for which "there [was] no possible justification." 18
Moreover, even after the strike began, the Respondent continued
to provoke the strikers by maintaining its blatantly illegal course of
repeated violations of the Act. Thus, as judicially determined, the
Respondent refused to bargain in good faith at any time after con-
tract negotiations resumed on June 1, rejected all efforts at mediation
and conciliation, unilaterally instituted two wage increases, dis-
charged striking shell department employees and transferred non-
strikers in that department without notifying or consulting with the
Union, delayed and refused to furnish vital wage information to the
Union, evicted strikers from company-owned dwellings, discrimi-
nated against reinstated shell department strikers, initiated extensive
surveillance and espionage of union activities and of union leaders,
and unlawfully solicited strikers to return to work.
In view of these unremitting calculated provocations, it is not sur-
prising that the strikers themselves felt compelled to seek both eco-
nomic survival and the survival of their collective-bargaining agent
by a massive and sustained demonstration of solidarity.19 Nor is it
surprising that in the face of such provocative conduct by the Re-
spondent, the union leaders urged and directed mass picketing as
the only means of union survival. While we do not condone the
mass picketing of the strikers or the planning and direction of such
picketing by the union leaders, we must conclude that such activity
is attributable no less to the Respondent which provoked that be-
havior, than to the strikers and union leaders who accepted the chal-
lenge presented by the Respondent's open preparations and its com-
plete disregard for its employees' statutory rights.
It also appears that, just as the Respondent's prestrike provoca-
tions created the climate of desperation and fear among its employees
which. produced the mass picketing, so too the Respondent's continu-
18 Indeed, the fact that the employees remained at work for several weeks after the
expiration of their contract and in the face of Respondent's open hostility to the Union
and the principles of collective bargaining was a remarkable demonstration of self-control.
19 In this regard, we note that a great many of the Kohler workers participating in this
strike had also been employed by Kohler in 1934 at the time of the bloody strike where
employee efforts to obtain a forceful independent bargaining agent were crushed Many
others had witnessed, as employees of Respondent, those "20 years of labor peace" during
which the Respondent continually displayed its disdain for their rights guaranteed by law
and later by a collective-bargaining contract
KOHLER CO. 1447
ing violations after June 1 induced the home demonstrations and
the employment office picketing. While striker participation in these
latter forms of retaliation may not be specifically attributable to any
individual instance of Respondent's numerous unfair labor practices
perpetrated during that period, the total causative effect of Respond-
ent's illegal acts is unquestionable.
Thus, having found that the Respondent engaged in many serious
and deliberate violations of the Act for the purpose of ridding itself
of the Union and reasserting unilateral control of matters properly
subject to collective bargaining, and having found that this unlawful
conduct of the Respondent provoked or contributed to the strike and
the resultant mass picketing, home demonstrations, and employment
office picketing, we next consider whether it would effectuate the
policies of the Act to order reinstatement to those employees who
were discharged for directing or engaging in such unprotected con-
duct. In this regard, we are mindful of the court's notice to the
Board that "reinstatement is the only sanction which prevents an
employer from benefitting from his unfair labor practices through
discharges which may weaken or destroy a union," while "sanctions
other than discharge ... are available to prevent or remedy certain
employee misconduct."
As the court directed, eve have carefully balanced or weighed the
dischargees' participation in the mass picketing, home demonstra-
tions, and employment office picketing, and the union strike commit-
tee's direction and control of the mass picketing, against the Respond-
ent's unfair labor practices. We conclude that the latter outweighs
the former. Viewing the Respondent's violations of its employees'
rights and the provocations with which it thereby confronted its
employees both before and after the commencement of the strike, it
is clear that now to permit the Respondent to discharge with impu-
nity those strikers who succumbed to its provocations would be to
permit the Respondent to take advantage of its own wrongdoing 2°
20 As the Respondent provoked that conduct of the strikers which we are herein con-
sidering , it cannot now validly argue that such provoked conduct constituted "cause" for
discharge within the meaning of Section 10 ( c) See NLR .B v Thayer Company, et al,
213 F. 2d 748 , 753, where the First Circuit Court of Appeals noted " a determina-
tion that an employee is not engaged in a § 7 activity does not necessauly mean that, if
he is discharged for his participation in the unprotected action , the discharge is for
cause.' That depends on the surrounding circumstances what is cause in one situation
may not be in another " Thus , while directing or engaging in mass picketing and other
coercive demonstrations might indicate , in some circumstances, unfitness for further em-
ployment , in the instant case it revealed only that employees can be goaded into excesses
after many years of flagrant disregard of their lawful rights . Moreover , we do not be-
lieve that the above -described conduct has any bearing upon future job perfoi niance or
would render those participants now under consideration unfit for future service Indeed
we note that the Respondent reinstated or offered reinstatement to other strikers who en-
gaged in the mass picketing , home demonstrations , and employment office picketing
144S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have also carefully considered the fact that the Respondent,
since 1933, has consistently refused to honor its collective-bargaining
obligations, and it is plain that the restoration of the jobs of those dis-
chargees set forth below, including the strike committee members, is
essential if Respondent is to be brought to conform to the funda-
mental requirements of the Act.
Accordingly, having considered all the foregoing factors in the
light of those guidelines set forth by the court, we conclude that the
policies of the Act would best be effectuated by ordering reinstate-
ment to all those dischargees now in issue who were discharged only
for engaging in or directing and controlling the mass picketing, for
participating in the home demonstrations, for participating in the
employment office picketing, or for a combination of such activities.
However, as noted above, the Respondent contended that several
of the discharged strikers had also participated in still other un-
protected activities in connection with the strike, before or after
being discharged, which would bar a remedial order of reinstatement.
It was unnecessary for the Board to consider these allegations in
the earlier Decision and Order.21 Now, however, in view of our
determination that those strikers who were discharged only for en-
gaging in or directing and controlling the mass picketing, partici-
pating in the home demonstrations, and participating in the employ-
ment office picketing are entitled to reinstatement, it is necessary
for us to determine whether or not still other unprotected conduct
of some of the strikers, when weighed against the Respondent's
unfair labor practices, was sufficient to bar their reinstatement.
In this regard, the Trial Examiner has set forth in the Inter-
mediate Report attached to the Board's earlier Decision substantially
all of the incidents relied on by the Respondent, as well as the evi-
dence pertaining thereto. Accordingly, we shall not herein recount
all of those numerous incidents and related evidence of striker mis-
conduct. Suffice it to say that in general, most of these incidents
involved the following types of action by some of the strikers : (1)
actively engaging in halting, encircling, blocking, shouldering, and
bumping of nonstrikers or job applicants during the mass picketing
or employment office picketing; (2) verbally harassing, insulting,
and abusing nonstrikers at the picket line, their homes, business
establishments, or places of amusement ; (3) participating in in-
specting railroad cars leaving Respondent's plant or attempting
n There , a majority of the Board found that all of the discharged strikers had partici-
pated in the mass picketing , had directed and controlled such picketing , had participated
in the home demonstrations , or had participated in the employment office picketing. As
the majority of the Board found that such conduct constituted valid grounds for dis-
charee. the Board did not consider still other conduct on which the Respondent had relied
in disehargmg or refusing to reinstate some of those dischargees now in issue
KOHLER CO. 1449
temporarily to halt certain trucks leaving Respondent's plant; and
(4) physically and violently assaulting nonstrikers or threatening
members of nonstrikers' families.
As to those numerous incidents included in (1), (2), and (3),
above, we have carefully balanced or weighed the individual striker's
participation therein 22 against the Respondent's unfair labor prac-
tices. However, even apart from the Respondent's conduct, we do
not believe that the conduct of some of the employees involved was so
flagrant as to warrant depriving them of the protection of the Act.23
And, with respect to some of the other conduct, for the reasons we
expressed in connection with the mass picketing, employment office
picketing, and home demonstrations, we conclude that the Respond-
ent's flagrant unfair labor practices outweigh the strikers' miscon-
duct. Accordingly, we find that the policies of the Act would best
be effectuated by ordering reinstatement to those individual strikers
who were discharged for engaging in that conduct described in (1),
(2), and (3), above.
We now turn to those remaining incidents where the evidence
clearly establishes that certain strikers assaulted nonstrikers or
threatened members of nonstrikers' families, and the Respondent, in
part, either relied on such misconduct as grounds for discharging
the striker, or contended that such misconduct occurring after the
discharge bars reinstatement. Here, as more fully set forth by the
Trial Examiner in his Intermediate Report, the record shows the
following :
1. On December 28, 1955, Paul Gall and James E. Bailey, dis-
charged strikers now in issue, pursued Marvin Johanning, who was
driving the Respondent's coal truck, to the Reiss coalyard. Gall,
who had imbibed some 10 to 12 beers, jumped on the left running
board of the truck driven by Johanning and attempted to strike
Johanning through the window. Johanning, in defending himself,
struck back at Gall with a jack handle, attempted to kick Gall off
the running board, and attempted to pull the cord of the air horn.
Thereupon, Gall and Bailey pulled Johanning' s arm away from the
air horn cord and Gall broke the glass on the cab window with his
fist, threw a chunk of coal at Johanning, and struck at Johanning
with a blackjack. Gall then entered the cab of the truck but Johan-
ning slipped out the other door and fled toward the coal dock office.
Gall chased him and threw a jack handle at him, but Johanning
obtained refuge in the coal dock office and called the police.
22 Although we have not set forth the individual facts relating to each such incident. we
have examined each and every incident urged by the Respondent in this regard , and have
,also reviewed in detail the evidence in the record with respect to each of these incidents
23 Horn Manufacturing Company, Inc, 83 NLRB 1177 , 1179-1180 See Paerto Rican
Rayon Milda, Inc., 117 NLRB 1355, 1357-1358
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. On May 24, 1954, nonstriker Harold Curtiss attempted to enter
Respondent's plant. Dischargee Gordon Peryam thereupon struck
Harold Curtiss over the head and from behind. Peryam was imme-
diately arrested and fined $10 and costs for disorderly conduct.
Peryam admitted that he struck Curtiss over the head.
3. On May 24, 1954, nonstriker Jerome Bersch was attempting to
gain entrance to the plant through the powerhouse gate, whereupon
dischargee Arbor L. Brewer approached Bersch and said, "Bersch,
why don't you get out of here?" and then struck Bersch with his fist
as Bersch started to turn around.
4. On October 8, 1954, nonstriker Clarence Herman and his wife
were in Johnny's Inn. Dischargee Ethan Berg entered and told
striker Rudolph Gunderson, who accompanied him, that Herman was
a scab. Berg then approached Herman. Herman's wife intervened
and told Berg to leave Herman alone. Berg nevertheless approached
Herman and reminded him of his promise not to cross the picket
line. Herman called Berg a liar and stepped back raising his hands
to protect himself. Berg immediately struck Herman on the jaw.
It is clear from the record, including Berg's own testimony, that he
was intentionally bothering Herman and was the aggressor through-
out the incident.
5. On February 6, 1956, dischargee John Nisphoric was among a
crowd of strikers at Root's Recreation Hall. The strikers were jeer-
ing the members of the Kohler bowling team who were then bowling
in the city bowling tournament. Credited testimony shows that
Nisphoric shouted names at the various members of the Kohler team
throughout the evening, and directed particularly vile language at
Robert De Pagter. At one point Nisphoric shouted "down with the
rest of the dirty scabs," and then struck De Pagter in the ribs.
6. On April 11, 1954, around midnight, nonstriker Arthur Haefke>
attempted to enter the main gate of the plant. He was accosted by
three or four pickets, one of whom was George Klauser 24 The
pickets knocked Haefke to the ground, grabbed him around the neck,
and held his arms until a police car approached the scene. Klauser
was later arrested by the police.
7. The record shows that on January 7, 1955, dischargee Henry
Osterman, while picketing in front of the employment office, as-
saulted one job applicant by making a flying leap at the applicant
and deliberately striking him with his hip and shoulder. And, on
another occasion that same day, Osterman struck another job appli-
cant with his hand as the applicant was entering the employment
office door.
24 The other pickets who participated were not identified
KOHLER CO. 1451
8. On February 6, 1956, Respondent's employee Paul Jacobi was
bowling with the Kohler bowling team at Root's Recreation Hall.
As he was leaving the bowling alley, dischargee Ralph Sabish kicked
him several times and also attempted to knee him in the groin.
9. On or about December 20, 1954, job applicant Harold Brandt
approached the employment office. Several strikers who were picket-
ing at the time called Brandt "scab" and "scum" and "yellow-bellied
pig." Christ Arnold, a dischargee now in issue, then stepped from
the group of pickets and deliberately hit Brandt in the side with his
fist.
10. The record shows that dischargee Earl J. Smith while picket-
ing in front of the employment office on December 20, 1954, cursed,
spat upon, and deliberately kicked job applicant Phillip Saunders.
The record also shows that on January 10, 1955, Smith again kicked
another job applicant attempting to enter the employment office.
11. On June 24, 1954, Robert Wuestenhagen and his wife were in
Laack's Bar. Roland Buhk, a striker, after learning that Wuesten-
hagen was a nonstriker, approached Wuestenhagen and questioned
him about where he worked. Having become suspicious, Mrs. Wues-
tenhagen called the police for protection, and the Wuestenhagens
then proceeded to leave. Buhk followed them and struck Wuesten-
hagen on the back of the head as he went down the steps. Wuesten-
hagen was knocked part way down the steps. The Wuestenhagens
proceeded toward their car when Buhk again swung at Wuesten-
hagen but missed. Thereupon, the police arrived and escorted the
I\Tuestenhagens to their home.
12. The record reveals and discharges Rudolph Gunderson does
not deny that on December 15, 1954, he harassed nonstriker William
G. Shaefer and Schaefer's wife at Kaker's Tavern. Mrs. Shaefer
called the police. However, before their arrival, Gunderson bumped
and pushed Shaefer and finally kicked him from the rear and pushed
him to the ground as the Shaefers were leaving the tavern. There-
after, the police arrived and escorted the Shaefers to the police
station.
13. Dischargee Frank Makarevicze frequently spat upon and de-
liberately kicked job applicants while picketing at the employment
office.
14. As with Frank Makarevicze, the record reveals that discharges
John C. Bowser deliberately kicked several job applicants as they
were attempting to enter the employment office. Indeed, Bowser
admitted kicking applicant Schweitzer on the leg on December 20
because Schweitzer was attempting to enter the employment office
without stopping.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15. Finally, credited record testimony shows that on the night of
May 31, 1954, dischargees Edward McDougal and Edward C. Kalupa
searched out Mrs. Melvin Laack at her sister's home where she was
visiting at the time. McDougal told Mrs. Laack that he had seen
her husband cross the picket line at the Kohler plant and that he was
there to tell her that she should not let him cross the picket line
again. Mrs. Laack asked, "For what reason?" McDougal thereafter
warned her that not only was her husband in "danger" by crossing
the picket line, but his crossing the picket line was also endangering
both her and her children at home.
As before, we have carefully considered the above- described inci-
dents of flagrant and deliberate assaults upon nonstrikers 25 and job
applicants and the clear threat of violence directed towards the fam-
ily of a nonstriker, in conjunction with the Respondent's unfair
labor practices. Also, as directed by the court, we have carefully
weighed one against the other. However, here, unlike other aspects
of misconduct we have heretofore considered, we must conclude that
the foregoing acts of violence or threats of violence engaged in or
uttered by the above- named strikers outweigh the Respondent's un-
fair labor practices. In arriving at this conclusion, we are persuaded
that unlike the unprotected conduct hereinbefore considered, the
above-described individual, violent attacks upon certain nonstrikers
and job applicants as well as the threat of violence directed toward
the family of a nonstriker, though probably in part provoked by the
Respondent's flagrant unfair labor practices, were also in part the
product of personal vindictiveness or grievances . This misconduct
we consider more severe and serious than the previously described
bumping, shoving, vituperation, and the like. By engaging in such
violent conduct, the strikers have rendered questionable their ability
or fitness for future satisfactory service at the Respondent's plant.
We recognize that to bar reinstatement to those strikers will permit
the Respondent to benefit to some extent from its own unfair labor
practices. However, we consider that this is more than offset by the
encouragement such misconduct would receive, with the possible dis-
order and instability which such encouragement might induce in
collective bargaining, were we to order them reinstated. Accord-
ingly, we find that it would not effectuate the policies of the Act to
reinstate those strikers who engaged in the above- described acts of
violence or threats of physical harm.26
25 The Respondent also charged dischargee Curtis Nack with physically assaulting non-
striker Fred Kuehlmann However , from the present state of the record , we cannot deter-
mine that Nack did in fact engage in the assault charged
2Q Cf The Philip Carey Manufacturing Comparuuj (Miami Cabinet Division), 140 NLRB
1103, 1132
KOHLER CO. 1453
To summarize, then, we find that it will effectuate the policies of
the Act for the Respondent to reinstate all of the strikers now in
issue except Paul Gall, James E. Bailey, Gordon Peryam, Arbor L.
Brewer, Ethan Berg, John Nisphoric, George Klauser, Henry Oster-
man, Ralph Sabish, Christ Arnold, Earl J. Smith, Roland Buhk,
Rudolph Gunderson, Frank Makarevicze, John C. Bowser, Edward
McDougal, and Edward C. Kalupa.27
REMEDY
In the Board's earlier Decision of August 26, 1960, the Board
found that the strike was economic at its inception but was subse-
quently converted into an unfair labor practice strike on June 1,
1954, and the strike was thereafter prolonged by Respondent 's unfair
labor practices. In pertinent part the Board therein ordered that all
strikers (except some 77 strikers who the majority of the Board
found were lawfully discharged) who had not been permanently re-
placed prior to June 1, 1954, upon application, be offered immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any person hired on or after
June 1, 1954. Shortly thereafter, on September 1, 1960, the Union
submitted an unconditional application for reinstatement on behalf
of some 1,800 strikers, including those strikers who the Board had
found were lawfully discharged. Thereafter, the affirmative por-
tions of the Board's Order were judicially enforced and the court
remanded the proceeding to the Board for those limited purposes
herein considered.
Pursuant to the court's remand, we have reviewed the record and
have now concluded that the strike was an unfair labor practice
strike from its its inception, and that it would effectuate the policies
of the Act to order reinstatement to many of those strikers hereto-
27 Member Brown agrees with this decision except insofar as it finds that Arbor L.
Brewer , Ethan Berg , John Nisphoric , Henry Osterman, Christ Arnold , Earl J. Smith, Frank
Makarevicze , and John Bowser are not entitled to reinstatement . On consideration of
their conduct, he is of the opinion that the incidents relied on are not of such flagrant
character as to deprive these individuals of their rights under the Act He would find
that the participants in these incidents exceeded the bounds of lawful conduct either upon
provocation or are of the kind occasionally encountered where, as here, there is an exten-
sive or long drawn-out strike. In such circumstances "Rising passions call forth hot
words Hot words lead to blows on the picket line. The transformation from economic
to physical combat by those engaged in the contest is difficult to prevent even when cool
heads direct the fight. Violence of this nature, however much it is to be regretted, must
have been in the contemplation of the Congress . . . If this were not so the rights af-
forded to employees by the Act would be indeed illusory . . . " Republic Steel Corpora-
tion v. N.L R .B., 107 F. 2d 472, 479 (C.A. 3) ; Horn Manufacturing Company, Inc ., supra;
1. Posner, Inc., et al, 140 NLRB 1313. See also Stewart Hog Ring Company, Inc., 131
NLRB 310, 312, 333-337. Considering the strikers ' conduct in light of these principles
and the Thayer "balancing concept," Member Brown would, without approving such con-
duct, order reinstatement of these strikers.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore found to have been lawfully discharged. In view of the fore-
going, and as our findings herein affect only those unfair labor prac-
tice strikers who may have been replaced before June 1, 1954, and
those strikers whose discharges are considered herein,28 we shall sup-
plement the Board's earlier order to the limited extent necessary to
effectuate the policies of the Act as to these strikers.
Accordingly, as a supplement to that portion of the Board's Au-
gust 26, 1960, order which has already been judicially enforced, we
shall order that the Respondent offer all those strikers who may
have been replaced prior to June 1, 1954, and those employees named
in Appendix B attached hereto, immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, dismissing, if neces-
sary, any person hired on or after April 4, 1954. As it appears that
an unconditional application for reinstatement was tendered the Re-
spondent on behalf of the foregoing strikers on September 1, 1960,
we shall not provide that they must again apply for reinstatement.
In addition, we shall also order that the Respondent make the
foregoing employees whole for any loss of earnings which they may
have suffered by reason of the Respondent's failure, if any, to rein-
state the foregoing employees on and after January 26, 1962, the date
of the Circuit Court of Appeals' decision. In the unique circum-
stances of this case, we will toll backpay for the period running
from September 1, 1960, the date of the strikers' unconditional offer
to return to work, to January 26, 1962, the date of the court's
decision.
In tolling backpay for this period, we are guided particularly by
the fact that the employees' offer to return to work was made a few
clays after issuance of the Board's original decision in this case.
However, when the court handed down its decision finding that the
Board had not applied proper legal principles and precedent in reach-
ing its conclusion, and the court accordingly remanded the case to
the Board for reconsideration of the issues involved, Respondent was
fully apprised of the legal principles to be applied to its refusal to
reinstate the strikers involved herein. It could then have reduced
its backpay liability by an offer of reinstatement. We see no reason
in these circumstances to extend the tolling period beyond the date
of the court's decision remanding the case to the Board.
2a We have not included strikers Robert Dean , Ella Frazier , and Walter Barehacky in
our Supplemental Order, inasmuch as it now appears that they were deceased at the time
of the Board ' s earlier order.
KOHLER CO. 1455
In reaching this conclusion , we have also considered Member,
Leedom's argument that we are departing from the decision in the
Walls Manufacturing case.29 We recognize that, on the basis of a
narrow technical comparison, there may appear to be an inconsistency
between these two decisions . Our remedies , however, are not mat-
ters of rote.30 They are designed to redress the public wrongs com-
mitted in the particular case. On the facts of this case , we are per-
suaded that the policies of the Act are best effectuated by tolling
Respondent's backpay liability for the period indicated above.
Accordingly, and on the basis of the same considerations under-
lying our order of reiiistatement herein, we find that it will effectuate
the policies of the Act to require that backpay shall be based upon
the earnings which the foregoing employees normally would have
received from January 26, 1962, to the date of Respondent 's offer of
reinstatement , less any net interim earnings during such period in
accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, and shall include interest on such sums, said interest
to be computed in accordance with the formula prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
SUPPLEMENTAL ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board, as a supplement to that portion of our August 26,,
1960, order , which has been judicially enforced , hereby orders that
the Respondent , Kohler Co., Kohler , Wisconsin , its officers , agents,
successors , and assigns, shall :
1. Offer all those strikers who may have been replaced prior to,
June 1, 1954, and those employees named in Appendix B attached
hereto, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or
other rights and privileges , dismissing , if necessary , any person hired
on or after April 4, 1954, and make them whole in the manner set
forth in the section entitled "The Remedy " for any loss of earnings
which they may suffer by reason of the Respondent 's refusal , if any,
to reinstate them in the manner prescribed above, by payment to
each of them of a sum of money equal to that which he normally
would have earned as wages, including interest thereon, during the
2D Walls Manufacturing Company, Inc., 137 NLRB 1317.
30 Phelps Dodge Corp. v. N L.R.B., '313 U S. 177; A.P.W. Products Co , Inc. , 137 NLRB.
25, 31, footnote 10
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period beginning January 26, 1962, and terminating on the date of
the Respondent's offer of employment.
2. Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Supplemental Order.
3. Post in its plant at Kohler, Wisconsin, copies of the attached
supplemental notice marked "Appendix A." 31 Copies of said notice,
to be furnished by the Regional Director for Region 30, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
4. Notify the employees listed-in Appendix B of this Supplemental
Decision and Supplemental Order if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
5. Notify the Regional Director for Region 30, in writing, within
10 days from the date of this Supplemental Order, what steps the
Respondent has taken to comply herewith.
MEMBER FANNING, concurring :
In remanding this case to the Board, the court has indicated agree-
ment with the Board's conclusion that Respondent's pre-1953 labor
relations history is supportive of a finding that, during that period,
"Respondent was opposed to bargaining with any but a dominated
union, and was particularly opposed to bargaining with the Charging
Party." However, the court rejected the Board's further conclusion
that such evidence was "amply refuted" by the facts concerning the
Respondent's negotiation of a collective-bargaining agreement with
the Union in 1953, because, in the court's view, Respondent had failed
to maintain the integrity of the collective-bargaining process by en-
11 In the event that this Supplemental Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Supplemental
Decision and Supplemental Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing a Supplemental Order."
KOHLER CO. 1457
gaging in unfair labor practices in the administration of that agree-
ment. Accordingly, the court has directed the Board to reconsider
its decision that the 1954 negotiations were conducted in good faith
through June 1 of that year, and to reevaluate Respondent's conduct
during that period in the light of "antecedent events."
I have reconsidered my earlier decision in accordance with the
court's instruction, and I conclude, in agreement with my colleagues,
that "on the totality of all the evidence, the record shows that Re-
spondent failed and refused to bargain collectively with the Union in
good faith at all material times her and that this unfair labor
practice caused the strike which began April 5, 1954, [and that the
strike] was an unfair labor practice strike from its inception." These
conclusions are inescapable if Respondent's conduct during those
negotiations be viewed as the conduct of an employer opposed to bar-
gaining with any but a dominated union, rather than as the conduct
of one who, albeit belatedly, has accepted its obligation to conform its
labor policy to the national labor policy embodied in the Act.
In further conformity with the court's instructions on remand, I
have applied the Thayer principles in determining whether the con-
duct of certain strikers discharged and/or refused reinstatement by
Respondent disqualifies the strikers for reinstatement. For the rea-
sons stated in the majority opinion, I find that the employees listed
in Appendix B of the Board's decision herein are entitled to rein-
statement and backpay dating from the day the court's decision
remanding the case for reconsideration issued.
On the basis of the foregoing, I concur in the Supplemental Deci-
sion and Supplemental Order of the majority herein.
MEMBER LEEDOM, dissenting :
In its previous decision, in 1960, the Board majority concluded,
inter alia, that the strike which began on April 5, 1954, was economic
in its inception, and that it did not become an unfair labor practice
strike until June 1, 1954. The majority also concluded that some 77
strikers had by misconduct forfeited their reinstatement rights. Upon
review, the court of appeals, apparently believing that the Board had
not given proper weight and consideration to certain of the evidence,
remanded the case to the Board for further consideration of the
issues as to the nature of the strike and the strikers' reinstatement
rights. Specifically, with respect to the nature of the strike, the
court wanted the Board to consider the impact of certain prestrike
violations on that issue.
760-577-65--vol. 143 93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the court's concern with only certain aspects of the Board's
consideration of the issue as to the nature of the strike, the present
majority has accepted the remand as authority to consider this issue
de nova, and on that basis to reverse the Board's conclusion as to the
nature of the strike at its inception. Because of the restricted nature
of the court's concern, such a broad reconsideration of this issue is
in my view unwarranted.
Within the proper framework of the remand, I must first observe,
with all due respect to the court, that these matters which concerned
the court were in fact fully considered and weighed by both the
majority and the dissent in arriving at their divergent views. None-
theless, in accord with the court's mandate, I have reconsidered
and reweighed the relevant evidence. I am no less cognizant than
the court and my colleagues of the Respondent's unfortunate labor
relations history. Nevertheless, I am still of the view that the Gen-
eral Counsel has not established by a preponderance of the relevant
evidence that the Respondent's pre-1953 attitude motivated its con-
duct prior to the 1954 strike. Consequently, I would reaffirm the
Board's prior conclusions as to the nature of this strike, and I must
dissent from the present majority's contrary findings.
Because I disagree with my colleagues as to the initial nature of
the strike, I find it necessary, in connection with the court's direction
to apply the, principles of the Thayer case in determining the strikers'
reinstatement rights, to reach an issue which the court specifically
declined to decide and which my colleagues need not decide, that is,
whether the Thayer principles have any applicability when the mis-
conduct underlying the discharge or denial of reinstatement occurred
before the strike became an unfair labor practice strike. The ap-
plicability of these principles rests, in my view, on the premise of a
relationship between the Employer's unfair labor practices and the
employees' misconduct. As I find that the strike became an unfair
labor practice strike on June 1, 1954, I see no warrant for consider-
ing the Thayer principles in appraising misconduct before that date.
For this reason, therefore, I would not order the reinstatement of
any of the strikers who engaged in or instigated others to engage in
"belly-to-back" mass picketing. Nor would I order the reinstatement
of those strikers to whom my colleagues have denied reinstatement
because of specific acts of misconduct, as set forth in the majority
opinion, as I agree with my colleagues that proper application of the
Thayer principles compels such denial of reinstatement. In addition,
KOHLER CO. 1459
however, and contrary to my colleagues' opinion, I think proper ap-
plication of Thayer requires denying reinstatement to all strikers as
to whom, in my view Thayer is applicable 32 and whom my colleagues
would reinstate, except Norbert Renzelman , Ervin Eckhardt, Eddie
Meyer, and Paul Riehl.
These strikers whom I would not reinstate fall, with one exception,
into two groups : (1) those who participated in the demonstrations
outside the homes of nonstrikers, and (2) those who deliberately
struck, bumped, or otherwise made physical contact with nonstrikers
during the course of the picketing at the employment office. As for
(1) I can find no warrant regardless of the nature of the Respond-
ent's misconduct, for the harassment of the families of the non-
strikers at their homes; such an extension of the area of conflict is in
by view wholly unwarranted. As for (2), I cannot find on this
record that the Respondent's unfair labor practices were so serious
as to justify the deliberate striking and bumping which is itself an
invitation to further violence. And as for the aforementioned ex-
ception, Joseph Westphal, I cannot agree with my colleagues that
the Respondent's conduct can justify seeking to disable a truck in a
manner which could endanger the driver 's life.
Finally, unlike my colleagues, I would adhere to precedent 83 and
award backpay to those who, I would find, are entitled to reinstate-
ment, only from the date of this Supplemental Decision and Supple-
mental Order. In my opinion, once this Board has determined that
an alleged discriminatee is not entitled to reinstatement, a respond-
ent is entitled to rely on such determination until there has been a
subsequent definitive determination to the contrary. The decision
of the court remanding this case to the Board was in my opinion not
such a definitive determination, in view of the unresolved major
issues remitted to the Board for reconsideration. The fact that it
has taken the Board all of this time since the remand to resolve
these issues is ample evidence of the injustice of requiring the Re-
spondent to anticipate at its peril how these issues would ultimately
be resolved.
For all these reasons, therefore, I am, with the limited exceptions
indicated, forced to dissent from this reversal of the Board 's previous
conclusions.
"I e., those who engaged in no misconduct prior to June 1, 1954
"Walls Manufacturing Compani/, Inc. , 137 NLRB 1317 , 1319 . My colleagues do not
say what facts in the instant case warrant their disinclination to follow precedent, and
I am not persuaded that as to the tolling issue there is any meaningful factual dis-
tinction between this case and the Walla case.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
SUPPLEMENTAL NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Supplemental Order of
the National Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, as amended, we hereby
notify our employees that :
WE WILL offer to all those strikers who may have been replaced
prior to June 1, 1954, and to all of the following employees :
Harvey Klabachek Milton Tarkowski
Lloyd Frerichs William Methfessel
Victor C. Hicks Carl Felsinger
Tony J. Kissel Elmer Zittle
Francis "Jim" Olin Ronald J. Fischer
Robert Winkel Cornelius Munnik
Emil Wanta Richard Gruenke
Art Russell, Sr. Leo Prepster
Gretchen Seybold John Martin
Fred Liebelt Clarence Hess
Lester Damrow Roman Slesrick
Carl Rothe Ray Stauber
Anthony Champeau Elmer Kraemer
Joseph Lorier Seraphino Marchiando
Richard Verle Alvin G. Burkard
Harold Lindemann Gilbert Stuckman
Leon B. Losey Andrew Lofy
Curtis Nack Lyell F. Clark
Raymond Klabachek Allan Grascamp
Norbert Renzelman Arthur Bauer
Ervin Eckhardt Egbert Kohlhagen
Joseph Westphal Leo J. Breirather
Frederick Byrum Elmer A. Oskey
Eugene Hildebrand Gordon Majerus
Eddie Meyer Elmer Gross
Paul Riehl Kenneth C. Nitsche
Gustave Leibelt Bernard Majerus
Fred Felsinger John Konec
Fred Felde, Jr.
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, any person hired
on or after April 4, 1954.
WE WILL also make the foregoing employees whole for any
loss of earnings which they may suffer by reason of our refusal,
if any, to reinstate them in the manner described above, by pay-
ment to each of them of a sum of money equal to that which he
normally would have earned as wages, including interest thereon,
during the period beginning from January 26, 1962, and termi-
nating on the date of our offer of employment. '
KOHLER Co. 1461
WE WILL notify those employees set forth above if presently
serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the
Armed Forces.
KOHLER CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 2d Floor, Commerce Building, 744 North 4th Street, Mil-
waukee, Wisconsin, Telephone No. 272-8600, Extension 3860, if they
have any questions concerning this notice or compliance with its
provisions. '
APPENDIX B
Harvey Klabachek
Lloyd Frerichs
Victor C. Hicks
Tony J. Kissel
Francis "Jim" Olin
Robert Winkel
Emil Wanta
Art Russell, Sr.
Gretchen Seybold
Fred Liebelt
Lester Damrow
Carl Rothe
Anthony Champeau
Joseph Lorier
Richard Verle
Harold Lindemann,
Leon B. Losey
Raymond Klabachek
Norbert Renzelman
Ervin Eckhardt
Joseph Westphal
Frederick Byrum
Eugene Hildebrand
Eddie Meyer
Paul Riehl
Gustave Leibelt
Fred Felsinger
Fred Felde, Jr.
Milton Tarkowski
William Methfessel
Carl Felsinger
Elmer Zittle
Ronald J. Fischer
Cornelius Munnik
Richard Gruenke
John Martin
Clarence Hess
Roman Slesrick
Ray Stauber
Elmer Kraemer
Seraphino Marchiando
Alvin G. Burkard
Gilbert Stuckman
Andrew Lofy
Lyell F. Clark
Allan Grascamp
Arthur Bauer
Egbert Kohihagen
Leo J. Breirather
Elmer A. Oskey
Gordon Majerus
Elmer Gross
Kenneth C. Nitsche
Bernard Majerus
Curtis Nack
Leo Prepster
John Konec