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National Labor Relations Board v. Kolmar Laboratories Inc.

December 19, 1967


Hastings, Chief Judge, and Kiley and Fairchild, Circuit Judges.

Author: Hastings


The National Labor Relations Board petitions, pursuant to 29 U.S.C.A. § 160(e), for enforcement of its order that Respondent Kolmar Laboratories, Inc. cease and desist from committing certain violations of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1), and post appropriate notices. The Board's decision and order are reported at 159 NLRB No. 74.

Respondent is a private label cosmetic manufacturer, making and packaging cosmetics for brand name cosmetic manufacturers under their own labels. It operates plants in Milwaukee, Wisconsin, Port Jervis, New York, and Hollywood, California, and in several foreign countries.

On January 6, 1965, the International Union, Allied Industrial Workers of America, AFL-CIO filed with the Board a representation petition requesting an election among the production and maintenance employees at respondent's Milwaukee plant.

Five days later, on January 11, respondent sent each of its Milwaukee employees a letter on company stationery signed by Lessing Kole, respondent's founder and chairman of the board. The letter stated that respondent's Milwaukee plant is geographically disadvantageous for a company in the private label cosmetic industry and that to compete effectively the plant should be located in Illinois or Indiana. In capital letters the letter stated that respondent had kept its plant in Milwaukee because Kole had "a deep moral obligation to not tear the roots of Milwaukee born people out of the city," and that "private label cosmetic concerns operate on an exceedingly low margin of profit." The letter closed with the assertion that its only function was to inform employees "that we cannot and will not further restrict our ability to operate without losing money."

Following the distribution of the letter the union, at a meeting for respondent's employees, distributed a pamphlet exalting the virtues of representation by it. The pamphlet stressed "job security" through seniority provisions embodied in a contract.

On January 21, respondent sent a second letter to its Milwaukee employees. This letter was signed by Richard Kole, respondent's president. It detailed the movement of respondent's customers to the Eastern United States and respondent's efforts to maintain the sales volume of the Milwaukee plant. It concluded: "You must realize that this situation very seriously limits our ability to increase our costs in Milwaukee. * * * There can be no JOB SECURITY 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."

Respondent's third letter, an unsigned one dated January 27, listed ten disadvantages of unionization. It ended with an admonition: "YOU know your interests better than anyone else. Be sure that no outsider impairs our ability to operate here in Milwaukee."

Two days later respondent sent its employees another letter from Lessing Kole. After questioning the union's qualifications to represent respondent's employees, and noting the union's job security propaganda, the letter 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 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 competitive.

"In my previous letters I told you about some of the problems with which we are confronted trying to operate the plant in Milwaukee."

Respondent's fifth and sixth letters, on February 1 and 2 respectively, both referred to the economic disadvantages discussed in the earlier letters. The sixth letter discussed seniority policies at the Milwaukee plant.

Two days before the election, which was held on February 5, respondent mailed to each of its employees a 32 by 20 inch ...

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