In the continuing struggle between big labor and big business, just what are an employer's rights? What tactics may he use if union activity threatens to hurt his business? Last week, in three landmark cases, the Supreme Court supplied some answers that set new limits on labor-management disputes.
The court's hottest case posed a particularly important question: Can an employer close a plant entirely to avoid unionization? The answer is vital to multiplant textile manufacturers who have moved South in search of low-wage and largely nonunion labor. It is equally vital to the Textile Workers Union of America, still trying to organize Southern mill hands.
"Absolute Prerogative." In 1956 the union tackled South Carolina's Darlington Manufacturing Co., one of 27 mills and 17 companies making up a combine called Deering Milliken & Co. Manhattan Textileman Roger Milliken argued bitterly that union wages would sink Darlington, which he said was already in the red. By a margin of six votes, the union won the right to represent Darlington's 550 workers. Milliken immediately closed the plant, a move that depressed the town (pop. 7,000) and crippled the union's entire Southern campaign. Textile manufacturers festooned the region with bumper stickers that warned: "Remember Darlington."
The National Labor Relations Board condemned the closing as an illegal tactic born of Roger Milliken's "antiunion animus" and aimed at curbing unionism among Deering Milliken's 19,000 other employees. The board ordered back pay (now an estimated $12 million), minus interim earnings, for Darlington's fired workers until they found equivalent jobs. The U.S. Court of Appeals in Richmond refused to enforce the NLRB order. The court said that Darlington had an "absolute prerogative" to quit business in whole or part at any time it wished. Having thus fairly ended the employment relationship, ruled the court, the company could not be held liable for union busting.
Chilling Unionism. When the NLRB appealed to the Supreme Court, Darlington hired an unusual advocate—North Carolina's Democratic Senator (and ex-State Supreme Court justice) Sam J. Ervin Jr. No law prevents members of the House or Senate from trying cases in any court except the U.S. Court of Claims, though purists looked askance at a U.S. Senator representing a private client against the U.S. Government—to say nothing of the fact that Ervin's constituents include thousands of North Carolina textile workers. Ervin, however, insisted that he was "fighting for the economic freedom of all Americans." He told the Court not to fret over Milliken's motive for closing his plant, quoted I Samuel 16:07: "God judgeth not as man judgeth, for man looketh upon external appearance, but God judgeth upon the heart."*
Speaking for the court, Justice John M. Harlan last week seemed at first to be sympathetic to Ervin's pitch. "An employer has the absolute right to terminate his entire business for any reason he pleases," ruled Harlan. To hold otherwise "would represent such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent."