Does the Constitution Apply on the Assembly Line?
In the early 1980s, Jon Melrod worked in a Wisconsin auto plant and published a shop-floor newspaper, Fighting Times. When the company sued him and his coworkers for denouncing a “scab of the month” in the paper, the rank and filers fought back — and won.
Jon Melrod handing out leaflets outside the factory. (Courtesy of Jon Melrod)
The September 15, 1980, headline in the Racine Journal Times blared, “3 at AMC Sued for $4.2 Million.” The defamation suit had been filed by four supervisors and the son of a superintendent at the Wisconsin American Motors Corporation (AMC) plant where the three of us worked. The litany of allegations asserted that Tod Ohnstad, John Drew, and I had “damaged” the plaintiffs by publishing false articles in our shop-floor newspaper, Fighting Times, that caused severe emotional distress as well as loss of reputation and damage to their careers.
Early in the winter of 1983/84, as if manna had fallen from the sky, we fortuitously gained incontrovertible evidence of what we had suspected: AMC was surreptitiously financing and directing the litigation.
The pivotal discovery occurred almost by happenstance. On a cold winter day, Rudy Kuzel (at that time Local 72’s substance abuse representative, for union members suffering from substance abuse problems) serendipitously observed a seemingly inconsequential occurrence that a less discerning person would have ignored.
Rudy noticed a management secretary being handed a list of employees and asked for their addresses. The seemingly innocuous query sparked Rudy’s curiosity.
“Why,” he wondered, “were all the addresses being requested those of workers who had lodged complaints against infamous Scab of the Month Stevie Freeman?” In every issue of Fighting Times, any supervisor engaged in egregious acts of sexism, racism, or just downright anti-employee behavior was tagged with the moniker “Scab of the Month,” often leading to concerted pushback by union militants. In one of our issues, Freeman’s number came up.
As Rudy explained in an extensive October 1983 Chicago Reader interview, “I suspected that they [those whose names were on the list] were going to be subpoenaed. My first reaction was [that] they [AMC] shouldn’t be doing that kind of thing. It’s a misuse of corporate funds.”
Rudy relayed his suspicions to Local 72 president Sylvester, and the two confronted the director of manufacturing, Gil Austin, demanding to know if AMC was financing the lawsuit. Austin responded that he doubted it but agreed to find out. In an ensuing conversation, Austin showed Rudy a memo revealing that corporate Industrial Relations counsel Alex McCloskey had authorized AMC to pay plaintiffs’ legal costs.
As David Moberg wrote in the Chicago Reader, “Kuzel knew from past conversations that Maddox [VP of manufacturing] and other managers disliked Melrod, Drew, and Ohnstad, whom they considered communists. . . . Maddox said, ‘the company wanted to stop all the derogatory articles [in Fighting Times] that were filled with lies . . . and the company would look like heroes for coming to the assistance of the plaintiffs.’”
Moberg continued, “Kuzel [grew] more outraged. . . . ‘The main thing they’re after is to quash that paper [Fighting Times] and to stop the printing of the truth about supervisors. . . . The whole theory of the labor movement is that as one person you can’t stand up to the corporation, but you have to act together — an injury to one is an injury to all.’”
Next, Rudy acted in a manner atypical of many in leadership of the labor movement, who generally feared young, outspoken militants and political radicals: he swore an affidavit that attested to facts indicting the company for surreptitiously funding the litigation. “On five separate occasions, management employees, and high level executives of the American Motors Corporation, have disclosed to me that said corporation has signed a written fee agreement to pay the law firm of Foley, Foley . . . all legal fees and expenses for the representation of the plaintiffs in the case of Freeman et al vs. Melrod et al.”
Armed with Rudy’s March 25 affidavit, John, Tod and I headed to the National Labor Relations Board (NLRB) to file an unfair labor practice charge. On April 27, regional director Joseph A. Szabo filed charges alleging that AMC had engaged in an unfair labor practice by financing and orchestrating the lawsuit.
Szabo wrote, “The 10-year history of AMC’s repeated and continuing efforts to squelch Melrod’s protected activities, and to exact retribution against those employees supporting Melrod, evince a continuing campaign of harassment and discrimination culminating in the lawsuit.” Szabo said, “We are suing them (AMC) for suing the other guys [Drew, Ohnstad, and me]. And if they don’t stop suing the other guys, we’ll keep suing them until they do.”
For Alex McCloskey, instigator of the secret agreement pledging financial support for the litigation, the manic drive to get rid of me was both personal and, at its core, highly ideological. As McCloskey’s assistant Richard Dodd told Szabo, “McCloskey undertook a vendetta against Melrod in the early 1970’s. . . . When Melrod resurfaced in Kenosha after having been laid off in Milwaukee, McCloskey raised hell with McCracken [AMC VP] about the ‘idiots in Kenosha’ who hired Melrod. . . . McCloskey vowed, ‘I’ll get him if it’s the last thing I do.’”
According to Dodd, “McCloskey had a reputation in the corporate department for his vendetta against Melrod. . . . McCloskey [is] an ultraconservative type, who sometimes circulates petitions for the John Birch Society. . . . McCloskey explained the basis for his crusade against Melrod, ‘We’ve got to get rid of the Communists.’ . . . McCloskey thought Melrod was a Communist . . . something to do with Melrod’s involvement with SDS [Students for a Democratic Society].’”
Up Against a Pro-Boss Court
Our deepest support came from Local 72 rank and filers. We would designate a plant gate and mobilize a gaggle of supporters wearing United Workers Caucus (UWC) jackets to form a cluster that everyone heading into work would have to traverse. The UWC was an organization of class-conscious shop-floor militants who had banded together in a rank-and-file dissident caucus in Local 72.
We displayed a large board with rows of yellow “Save the Fighting Times” buttons and gave one to all who contributed to our legal fund. Hundreds wore buttons in an ongoing show of solidarity and resistance to the company.
The litigation had morphed from a court case into a solidarity movement involving thousands.
As the trial date grew close, I felt increasingly uneasy, plagued by concerns over the preparedness of our legal defense. Our costs could easily run into six figures. I lay awake worrying not only for myself but also thinking how life-altering a loss would be for my best friends and fellow caucus members, Tod and John.
I sought legal advice from my father, a lawyer, knowing that one of his law partners, Warren Kaplan, was an outstanding libel and First Amendment attorney. Warren dropped all matters, personal and legal, and boarded a plane from DC to Milwaukee to prepare our legal defense.
With his beat-up suitcase, two gray suits (soon to become very wrinkled), and a photo of his sons, Warren moved into the small empty bedroom in my home on a working-class street in Racine. Without missing a beat, he took command of not only preparing legal arguments but also turning John, Tod, and me into a fact-gathering squad, working hard to compensate for having previously lagged on this question.
We tracked down some sixty-five fact witnesses and interviewed each. We located AMC workers, current and laid-off, who had been harassed by plaintiffs; we located former AMC supervisors who didn’t condone the racist and sexist behavior of the litigants that we had documented; and we even found the disgruntled former wife of lead plaintiff Steve Freeman.
Whether we were ready or not, the high-stakes trial opened in a Racine courtroom on October 31, 1983, with Judge Dennis J. Flynn presiding. But before jurors even stepped into the jury box, Judge Flynn laid down a marker revealing his pro-company bias.
Warren advanced a motion seeking to enter evidence that AMC had financed and orchestrated the litigation: “Your honor, AMC pressured and encouraged these plaintiffs to bring this suit. The information on who is paying for the litigation is thus relevant.”
Judge Flynn, aware that the issue of financing would take center stage, had prepped well. Quoting both state statutes and prior case law, Flynn ruled, “As a general rule in Wisconsin, credibility of a witness cannot be attacked by raising such issues as who is financing a lawsuit. . . . The issue of who is financing the suit is a collateral issue to the dispute between the parties.”
Hmm, I thought. Looks like we’re facing six plaintiffs, and one is on the bench having donned a black robe.
I thought, We have to appeal directly to the jury. We’ve lined up witnesses for everything we published. Let’s hope that none are too intimidated to retell the story as it went down in the shop and later appeared in Fighting Times.
The Union “Bullies”
I awoke on the morning of October 31 filled with apprehension. I had never been sued before, much less had I been sued for $4 million. After Warren and I donned our courtroom attire (a sports coat and tie for me), neither of us had much to say.
Instructed by Warren, the three of us jumped to attention as the jury, walking single file, heads not turning, entered the jury box. I studied each juror, hoping to discover a sympathetic ally, but their faces revealed little. The game had yet to begin.
The plaintiffs’ attorney, Judley Wyant, opened, arguing that his clients were “victims of a campaign of harassment, intimidation, ridicule, and vilification directed against supervisory personnel at AMC, and the union activists [the three of us at whom he was pointing] were trying to get them fired. . . . The five plaintiffs claim that Fighting Times articles interfered with their jobs, presented them falsely, and caused them mental and emotional distress.”
Wyant, not required to stick to facts in his opening, painted the three of us as horrible, callous union bullies, who, without justification, set out to undermine and disparage clean-cut, white-shirted, nice-guy supervisors.
A few jurors glanced at us quizzically. Kaplan and Al Ugent, our cocounsel, kept their powder dry. The jury didn’t have to wait for our attorneys to argue our case before making up their minds about who were the good guys and who were the bad guys.
Wyant called to the stand Robert Fesko, AMC director of employee relations. In the organizational chart, Fesko ranked near the top for Wisconsin operations. Whatever Wyant’s intention in calling Fesko, his strategy went awry. Through deft cross-examination, Ugent flipped Fesko into an unwitting witness for our defense, linking him and top corporate management to the supervisors’ lawsuit.
Ugent’s questions and Fesko’s answers established that Alex McCloskey had pulled the strings, the same McCloskey who had vowed “I’ll get [Melrod] if it’s the last thing I do.”
During the court proceedings, Fesko said the following:
Q: Do you have any knowledge whatsoever as to whether or not American Motors Corporation has given any kind of encouragement to Mr Freeman to start this suit?
A: I had discussions with Mr Freeman after his determination to [file the lawsuit as] to whether or not he would be interested in pursuing this.
Q: Why did you do that?
A: I was instructed.
Q: Who instructed you?
A: Mr McCloskey.
Q: In other words, you sat down with him [Freeman] and you said, “Are you interested in starting a lawsuit against Mr Melrod, Mr Ohnstad, and Mr Drew?” and that was it?
A: Yes sir.
Q: Now if you didn’t know about all those things that Mr Freeman was accused of, wouldn’t you consider it a good thing if the Fighting Times called these things to your attention?
A: Yes.
Q: Have you ever sent a letter thanking Fighting Times for calling those things to your attention?
A: No sir.
Q: Can you recount a single false fact ever published in the Fighting Times about Mr Freeman?
A: I can’t tell you a single false fact, no.
Q: In other words, you don’t know anything that’s false that was published in Fighting Times, do you? […]
A: No sir.
Q: And you’ve made a very thorough investigation, haven’t you?
A: Yes.
As a pugnacious Ugent examined Fesko in a steady, rapid cadence that allowed no time for hesitation, my eyes riveted on the jury. Racine was a solidly union town, and our jury consisted of working-class men and women, many of whom punched a time clock. While it was hard to read their faces, none could mistake the David-versus-Goliath scenario unfolding before them.
Chalk One Up for David
Over the next two and a half weeks, the jurors heard a litany of compelling, sometimes emotional testimony from dozens of witnesses all of whom confirmed the veracity of what we had written in Fighting Times.
Finally, the moment of truth arrived. The jurors retired to deliberate. Mere hours later, we were notified that a verdict had been reached. Silence filled the courtroom as the jurors reentered, walking silently in single file, their poker faces betraying little of what they had decided.
The jury foreman, with anticipation filling the packed courtroom, read the verdict: The jury had refused to award a penny of damages to the remaining plaintiffs in a knock-out for us and a major win for the issue of free speech in the workplace.
Like something out of a movie, the courtroom erupted in cheers, hugs, and defiant smalls. I felt like David had just kicked Goliath’s ass.