Kolmar Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1966

159 N.L.R.B. 805 (N.L.R.B. 1966)

KOLMAR LABORATORIES, INC. 805
Workers of America (UAW), AFL-CIO, or in any other labor organization,
by suspending or discharging or otherwise discriminating against employees in
regard to their hire or tenure of employment or in regard to any other term
or condition of employment.
WE WILL NOT suspend or discharge any of our employees because they
engage in concerted activities for the purpose of their mutual aid or protection
or to better their conditions of employment.
We WILL NOT photograph or otherwise create an impression of surveillance
of our employees when they are engaged in union activities.
WE WILL make whole Edith Boguth , Karen Haworth , Brenda Parks, Patricia
McNicol , Inge Godin, Betty Maxwell, and Barbara Robinson for any loss they
may have suffered as a result of the discrimination against them.
WE WILL NOT threaten employees with loss of their jobs or other reprisals if
they engaged in activities on behalf of a union or in any like or related man-
ner interfere with, restrain , or coerce our employees in the exercise of their
rights to self-organization , to form, join , or assist any labor organization, to
bargain collectively through representatives of their own choosing , to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming
or remaining , members of any labor organization.
NORTHLAND INDUSTRIAL PLASTICS CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material. '
If employees have any question concerning this notice or compliance with.its
provisions, they may communicate directly with,the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone
226-3244.
Kolmar Laboratories, Inc. and International Union, Allied In-
dustrial Workers of America, AFL-CIO. Case SO-CA-170.
June 21, 1966
DECISION AND ORDER
On March 10, 1966, Trial Examiner Louis Libbin issued his Deci-
sion in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 02(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
159 NLRB No. 74.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and brief, and the entire record
in this case , and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.
The Board adopted'the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 12, 1965, by International Union, Allied Indus-
trial Workers of America, AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional Director for Region 30
(Milwaukee, Wisconsin), issued a complaint, dated October 4, 1965, against Kolmar
Laboratories, Inc., herein called the Respondent. - With respect to the unfair labor
practices, the complaint alleges, in substance, that Respondent violated Section 8(a)
(1) and 2(6) and (7) of the Act by the contents of certain letters and speeches to
its employees. In its duly filed answer, Respondent denies generally all unfair labor
practice allegations.
Pursuant to notice, a hearing was held before Trial Examiner Louis Libbin in
Milwaukee, Wisconsin, on November 3, 1965. The General Counsel and the
Respondent appeared and were represented at the hearing. All parties were given
full opportunity to participate in the hearing. Respondent's motion to dismiss the
complaint, made before the close of the hearing and upon which I -reserved ruling,
is hereby denied in accordance with the findings and conclusions hereinafter set
forth.
On December 6, 1965, the General Counsel and the Respondent filed briefs which
I have fully considered . For the reasons hereinafter stated, I find that Respondent
violated Section 8(a)( I) of the Act.
Upon the entire record in the case,', I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT ,
Respondent , Kolmar Laboratories , Inc., a Delaware corporation , maintains a plant
in Milwaukee, Wisconsin, where it is engaged in the manufacture of cosmetics. Dur-
ing the calendar year preceding the issuance of the complaint, a representative
period, Respondent sold and shipped products valued in excess of $50,000 to points
outside the State of Wisconsin.
Upon the above -admitted facts , I find , as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
U. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find, that International Union,
Allied Industrial Workers of America , AFL-CIO, the Charging Party herein, is a
labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
The parties are in agreement as to the relevant facts which gave rise to this pro-
ceeding . They may be briefly summarized as follows:
On January 6, 1965, the Union filed with the Board's Regional Office a represen-
tation petition , seeking to represent the production and maintenance employees of
the Respondent in its Milwaukee, Wisconsin, plant (Case 30-RC-173). Pursuant to
a consent conference held on January 18, 1965, the parties entered into a stipulation
for certification upon consent election. The election was held on February 5, 1965.
Out of approximately 121 eligible voters, 44 votes were cast for the Union, 59 votes
I I hereby note and correct the following inadvertent errors in the typewritten transcript
of testimony : On page 5, line 8, "coaster" is changed to "poster"; and on page 8, line 6,
"defer" is changed to "renew."
KOLMAR LABORATORIES, INC. 807
were cast against the Union , and 11 ballots were challenged . During the period
from January 11 to February - 3, 1965 , inclusive , Respondent mailed seven letters
to all its - employees and made , two speeches at -the plant which were heard by a
majority -of the same employees.2
The sole issue in this case is, as the complaint alleges, whether the letters and
speeches ' either separately or in their totality contained "express and implied threats
to move the plant or otherwise curtail operations ," with the attendant loss of
employment , if the employees voted for the Union.
B. The letters and speeches
1. Letter of January 11
The first letter , dated January 11, 1965, was signed by Lessing Kole, the founder
of Respondent and its chairman of the board. This letter stated why the operation
was started and continued in Milwaukee , reviewed the geographic disadvantages in
maintaining it there, pointing out that "WE CONTINUALLY LOSE OUT ON A
LOT OF BUSINESS BECAUSE" of its location , and emphasized its low margin of
profit. The letter concluded with the following statement:
My only purpose in giving you this information is to inform you of facts which
show that we cannot and will not further restrict our ability to operate without
losing money. -
2. Letter of January 21
At a union meeting held between January 11 and 21 , 1965, the Union distributed
to Respondent's employees in attendance a booklet entitled "You Get Job Security
Through One Union."
The second letter, dated January 21, 1965 , was signed by Richard Kole, Respond-
ent's president whose office is in Port Jervis, New York, where the main plant is
located, and who visits the Milwaukee plant from three to five times a year. This
letter referred to the customers which Respondent has lost at the Milwaukee plant,
again emphasized the plant 's disadvantageous geographic location , and concluded
with the following paragraph: -
You must realize that this situation very seriously limits our ability to increase
our costs in Milwaukee . Indeed our problem here is to find ways and means
of overcoming our geographical disadvantages . There can be no JOB SECU-
RITY if we do not take into account this situation . No union can provide
that security; indeed it can destroy such security as you now have [emphasis
in original].
3. Letter of January 27
The third letter, dated January 27, 1965, was entitled "DO YOU NEED A
UNION?" It opened with the statement that "we are sure that a union here is
neither needed nor desirable" -[emphasis in original ]. It then stated that "union
organizers are SALESMEN " who "exaggerate " and "make promises but cannot
guarantee any of them ." The letter instructed the employees not to be "PRES-
SURED INTO A DECISION" but to "WEIGH WHAT YOU NOW HAVE
AGAINST WHAT YOU MAY BE GIVING UP." There then followed a list of
10 disadvantages imputed to Union "Representation ." The letter concluded with
the reminder that "you know your interests better than anyone else," and the warn-
ing to "be sure that no outsider impairs our ability to operate here in Milwaukee."
4. Letter of January 29
The fourth letter, dated January 29, 1965, was again signed by Chairman of the
Board Lessing Kole. This letter pointed out that Respondent's concern was to have
its employees get "the true picture and the basic facts" [emphasis in original]
referred , among other things, to the Union's promise of "job security," and stated:
Nothing could be worse for our employees at Milwaukee than to swallow this
propaganda . A union , knowing nothing about our industry , and completely
ignorant , of our special problems in operating a plant in Milwaukee , cannot
force any action except at the expense of your job security . We cannot operate
2 Transcriptions of the - speeches icere Introduced Into the record by stipulation of
the parties
808 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
here if artificial economic roadblocks are thrown into our way. There is no
law which would require us to continue to operate here if further difficulties
are introduced which would make our operation here inefficient and less com-
petitive [ emphasis in original].
The letter further reminded the employees that the production and maintenance
work force was "308" in 1954 but is now "down to only 125" due to "circum-
stances beyond our control" [emphasis in original].
5. Letter of February 1
The fifth letter, dated February 1, 1965, was also signed by Lessing Kole. This
letter reiterated the "disadvantages" of operating a plant in Milwaukee because of
the geographic location, and compared its wage rates with that paid by the Toilet
Goods Industry and by two unionized competitors. The letter concluded with the
following statements:
. . . Merely because a union represents employees , does not mean that their
employer will pay higher wages. There is nothing that a union can get for our
employees at Kolmar which the employees cannot get without a union. There
is a limit on what we can give without hurting your job security.
6. Letter of February 2
The sixth letter, dated February 2, 1965, was also signed by Lessing Kole. This
letter states:
In the Union 's pamphlet they claim that you would get "job Security" with the
AIW. In our previous letters we gave you facts, which show that no union
can give job security to Kolmar Milwaukee employees . We pointed out that
mutual cooperation between us is the only way we can meet our problems.
[emphasis in original].
The letter then answered other union representations by pointing out the employee
benefits already in effect.
7. Letter of February 3
On February 3, 1965, just 2 days before the election , Respondent mailed to its
employees a 32 by 20 inch poster which, in large black type, reminded the employ-
ees that:
Your Job Security depends on our ability to compete.
We cannot compete if we have interference.
Your cooperation is essential.
The poster then emphasized that:
THE UNION KNOWS NOTHING ABOUT US.
It knows nothing about our Milwaukee problems.
It knows nothing about our industry.
It knows it cannot keep its promises.
To meet its promises would force us to quit.
The Union offers nothing but unreality and insecurity.
The poster then listed what Respondent offered, stating , among other things, that
"We offer HOPE, instead of tragic disillusionment ." The poster concluded with the
exhortation to "VOTE `NO'!"
8. President Kole's speech-February 3
On February 3, 1965, President Richard Kole made one of his infrequent visits to
the Milwaukee plant . The primary purpose for his visit on this occasion was to
address the assembled employees, a majority of whom were in attendance . Presi,
dent Kole reviewed the letters previously sent to the employees and the special prob-
lems involving the Milwaukee operation , and gave replies to some of the statements
contained in a "Bulletin" which the Union handbilled to the employees the preced-
ing day. During the course of his talk , Kole made the following statements:
Despite the Union 's efforts to rush the election , I know that it would be a big
mistake were you to vote a union into our plant here on Friday . If that unfor-
KOLMAR LABORATORIES, INC. 809
tunate decision were made, I am convinced that it could do irreparable harm
to all of us and jeopardize our ability to continue our operations here .... If
you take a good, long, hard look at the facts, the vote will be one for which
you need have no regrets. When you vote on Friday, remember just like you
cannot unscramble eggs once they are scrambled, once you vote for the Union
you won't be able to get rid of it for at least a year. By that time it may be
too late to undo any harm which might be introduced into our relationship ....
The worst possible approach to the Milwaukee situation is to have an unin-
formed outsider, sow the seeds of dissension and build false hopes. It is the
worst way to provide you with job security.
9. General Manager Maruszewski's speech-February 3
After he concluded his talk, President Kole turned the meeting over to Erv
Maruszewski, the general manager of the Milwaukee plant and an admitted statu-
tory supervisor. Maruszewski then addressed the employees, briefly reviewing the
employee benefits already in effect and the disadvantages of union representation.
During the course of his talk, Maruszewski made the following statements:
We have heard various rumors that the Union is promising you wage increases.
How can the Union make you any promises without knowing about our busi-
ness? How can it promise you anything in the light of lower wages in the
union contracts of our competitors? As Dick [Kolmar] indicated, our prices
are set by competition, not by actuaries. This would ruin all security and force
Kolmar out of business . . . . Ask the Union-how many small companies
were forced to close because of union demands, or forced to the wall by work
stoppages, temporary and permanent, which put people out of work?
C. Conclusions
I am convinced and find that the series of letters and speeches from high ranking
management officials, with which Respondent bombarded its employees during the
3-week period prior to the election, taken together, reasonably tended to convey to
the employees the belief or impression that continued employment at the Milwaukee
plant was linked by Respondent to their rejection of the Union at the forthcoming
election. By such conduct, Respondent interfered with, restrained, and coerced the
employees in the exercise of their rights guaranteed in Section 7 of the Act and
thereby violated Section 8(a)(1) of the Act.3
A reasonable, if not obvious, interpretation of the theme running throughout the
the series of letters and speeches is that the Milwaukee plant has to overcome the
unprofitable restrictions imposed by its disadvantageous geographical location, that
any further restrictions on the ability to operate this plant efficiently and competi-
tively will compel Respondent to close or relocate the plant, that selection of the
Union as the employee's bargaining representative will result in imposing such addi-
tional restrictions and "will impair our ability to operate here in Milwaukee" because
the Union will throw "artificial economic roadblocks" "into our way" and will intro-
duce "further difficulties" "which would make our operation here inefficient and less
competitive," that "there is no law which would require us to continue to operate
here" under such circumstances, that the selection of the Union will therefore
"destroy such security as you now have" and will cause "tragic disillusionment," that
"your job security depends on our ability to compete" which, in turn, depends on
our not having any "interference" from a union, and that "your cooperation" in
rejecting the Union is therefore "essential" to you "job security." All this was
topped off 2 days before the election by the warning contained in the speech of
President Kole, who made one of his infrequent visits to the plant primarily for this
purpose, that selection of the Union would be an "unfortunate decision" which
"would do irreparable harm^to all of us," would "jeopardize our ability to continue
our operations here," and would be "the worst way to provide you with job security."
3 See, e.g., Overnite Transportation Company, 154 NLRB 1271 , Freeport iltai ble cC
Tile Co., Inc., 153 NLRB 810, Sagamore Shirt Company d/b/a Spruce Pine Manufactui ing
Company, 153 NLRB 309; Indiana Rayon Corporation, 151 NLRB 130, S N C Manufac-
turing Co ., Inc., 147 NLRB 809; Owen8-Corning Fiberglass Corporation, 146 NLRB 1492,
1503, Remington Rand Corporation, 141 NLRB 1052, 1053; Byrd8 Manufacturing Coi po-
ration, 140 NLRB 147, 155; The Pulaski Rubber Company, 131 NLRB 347, 350-352,
Surprenant Mfg. Co., 144 NLRB 507, 510-511.
810 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
General Manager Maruszewski's further warnings of the economic consequences
likely to result from the selection of the Union, including the possibility of a plant
closure, were anticlimactic but corroborative.
While it is true, as Respondent 's counsel states in his brief , that Respondent was
privileged to refute and correct any misleading or deceptive union statements or
representations , it is also true that Respondent may not as it did here , without vio-
lating the Act , in the course of such refutations or corrections make statements
which reasonably tend to convey threats or warnings of the likelihood or probability
of Respondent closing or relocating its plant with attendant loss of employment in
the event the employees were to select the,Union as their bargaining representative."
Indeed, it is well settled that the test of interference, restraint, and coercion under
Section 8(a)(1) of the Act does not involve the employer's intent or motive; the
sole "test is whether the employer engaged in conduct which, it may reasonably
be said, tenue to interfere with the free exercise of employee rights under the
Act." 5 As previously demonstrated, this test has been fully met in this case, and
Section 8(c) of the Act is no defense to this type of conduct.6 -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following-
CONCLUSIONS OF LAW
1. Respondent, Kolmar Laboratories, Inc., is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2 International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By threatening employees with the closing or relocation of the Milwaukee
plant, with the attendant loss of employment, if the employees were to select the
above-named labor organization as their collective-bargaining representative, in
the manner described in section III, B, and C, supra, the Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act, and thereby has engaged and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The afforesaid unfair labor practices are unfair labor practices affecting com-
meice within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this case, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, I recommend that Respondent, Kolmar Laboratories, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure or relocation and the attendant
loss of employment, or with any other economic reprisals, in the event they were
See, e g., Indiana Rayon Corporation, supra.
s Russell-Newman Mfg. Co., Inc., 153 NLRB 1312, 1315 ; Cannon Electric Company, 151
NLRB 1465, and cases cited in footnote 6. 1
As one court so aptly stated, ". . . Congress has recognized 'employer rights of free
speech, but has sought to limit them when they verge upon the use of employer economic
power to coerce employees not to organize." Montgomery Ward & Co. v. N.L.R B , 839
F 2d 889, 892 (C.A. 6).
KOLMAR LABORATORIES , INC. 811
to select International Union, Allied Industrial Workers of America, AFL-CIO,
or any other labor organization , as their collective-bargaining representative
(b) In any like or related manner interfering with , restraining or coercing its
employees in the exercise of their right to self-organization , to form labor organi-
zations, to join or assist the above -named or any other labor organization , to bar-
gain collectively through representative of their own choosing , to engage in other
concerted activities for the purpose of collective bargaining or other - mutual aid
or protection , and to refrain from any and all such activities , except to the extent
that such rights may be affected by the provisos . in Section 8(a) (3) of the Act,
as amended.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at its plant in Milwaukee , Wisconsin , copies of the attached notice
marked "Appendix ." 7 Copies of said notice , to be furnished by the Regional
Director for Region 30, shall, after being signed by the Respondent 's representa-
tive , be posted by Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 30, in writing , within 20 days
from the date of receipt of this Decision , what steps have been taken to comply
herewith.8
7 In the event that this Recommended Order Is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice . In the further event that the Board 's Order is enforced by a
decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision
and Order."
8In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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 NOT threaten employees with the closing or relocation of the plant
and the attendant loss of employment , or with any other economic reprisals,
in the event they were to select International Union, Allied Industrial Workers
of America , AFL-CIO, or any other labor organization , as their collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to
form, join , or assist the above -named or any other labor organization, to
bargain collectively through representatives of their own choosing , to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any and all such activities , except
to the extent that such rights may be affected by the provisos to Section
8(a)(3) of the Act, as amended.
'KOLMAR LABORATORIES, INC.,
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office,
Second Floor, Commerce Building, 744 North Fourth Street , Milwaukee, Wis-
consin 53203 , Telephone 272-8600 , Extension 3866.