Biosource Landscaping Services, LLC

National Labor Relations Board - Board Decisions

Jan 31, 2008

352 N.L.R.B. 20 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 6
20
Biosource Landscaping Services, LLC and Paul D.
Brown and Matthew K. Liming. Cases 9–CA–
43283 and 9–CA–43287
January 31, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On July 13, 2007, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The General
Counsel filed exceptions, a supporting brief, an answer-
ing brief, and a reply brief. The Respondent filed cross-
exceptions, a supporting brief, an answering brief, and a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,1
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to adopt
the recommended Order as modified.4

1 The Respondent has moved to strike the General Counsel’s excep-
tion 11, which alleges that the judge erred in failing to order a rein-
statement and make-whole remedy for discharged employees Matthew
Liming and Paul Brown. In view of our adoption of the judge’s find-
ings that these discharges did not violate the Act, we find it unneces-
sary to pass on the Respondent’s motion to strike the exception.
2 The General Counsel and the Respondent have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
We adopt the judge’s finding that the Respondent did not violate
Sec. 8(a)(1) of the Act by coercing its employees. In so doing, we rely
particularly on the fact that the judge discredited Brown’s testimony
that the Respondent’s part-owner and president, Jeanne Hellstrom, said
that she would do anything to stop a union from coming in the facility.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by interrogating Liming about his union activities, we
note that in crediting Liming’s testimony over that of Hellstrom, the
judge’s finding that Hellstrom “did not specifically deny this allega-
tion” is not supported by the record. In adopting the judge’s credibility
finding, we do not rely on the judge’s incorrect description of Hell-
strom’s testimony, but rather we find that the other reasons stated by
the judge sufficiently support his determination to credit Liming’s
testimony establishing the unlawful interrogation.
The judge recommended that the Board dismiss the 8(a)(3) allega-
tions arising out of the layoffs of employees Liming and Brown. Even
assuming that the General Counsel met his initial burden under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), we agree with the judge’s alternative
finding that the Respondent proved that it would have laid off Liming
and Brown in any event, based on economic business reasons. In dis-
missing these allegations, we find it unnecessary to rely on the judge’s
additional observations, set forth in the penultimate paragraph of sec.
II,C,3,b of his decision that: (a) the Union filed neither objections to the
election nor unfair labor practice charges alleging that the layoffs of
Liming and Brown were the result of their union activities; (b) the
Union and the Respondent stipulated that Liming had no expectancy of
recall after the layoff and therefore was ineligible to vote in the elec-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Biosource Landscaping Ser-
vice, LLC, Xenia, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
“(a) Threatening employees with plant closure if the
Union, International Union of Operating Engineers, Lo-
cal 18, was voted in as their collective-bargaining repre-
sentative.”
2. Substitute the following for paragraph 1(d).
“(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

tion; and (c) Liming testified that he had no intention of filing this
unfair labor practice charge until Brown suggested that he do so.
3 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by threatening employee Liming with
plant closure if the Union was voted in as the employees’ collective-
bargaining representative.
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
The judge recommended a broad Order requiring the Respondent to
cease and desist from violating the Act “in any other manner.” We find
that a broad order is not warranted in this case. Accordingly, we shall
substitute a narrow order requiring the Respondent to cease and desist
from violating the Act “in any like or related manner.” See Hickmott
Foods, 242 NLRB 1357 (1979). We shall also modify the recom-
mended Order to include the name of the Union, and shall substitute a
new notice in conformity with the recommended Order as modified.
BIOSOURCE LANDSCAPING SERVICES 21
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees with plant closure if
the Union, International Union of Operating Engineers,
Local 18, was voted in as their collective-bargaining rep-
resentative.
WE WILL NOT interrogate an employee about the em-
ployee’s union activities.
WE WILL NOT threaten an employee with job loss be-
cause the employee supported the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of Section 7
rights protected by the Act.
BIOSOURCE LANDSCAPING SERVICES, LLC
Eric J. Gill, Esq., for the General Counsel.
Laura L. Wilson, Esq., of Dayton, Ohio, for the Respondent-
Employer.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on April 24 and 25, 2007, in Cincinnati,
Ohio, pursuant to a consolidated complaint and notice of hear-
ing in the subject cases (the complaint) issued on February 13,
2007, by the Regional Director for Region 9 of the National
Labor Relations Board (the Board). The underlying charges
and amended charges were filed on various dates in 20061 and
2007 by Paul D. Brown and Matthew K. Liming (Brown or
Liming), alleging that Biosource Landscaping Services, LLC
(the Respondent or Employer) has engaged in certain violations
of Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). The Respondent filed a timely answer to the com-
plaint denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in a
number of independent violations of Section 8(a)(1) of the Act
including threats of job loss, plant closure, and coercive inter-
rogation. Additionally, the complaint alleges that the Respon-
dent engaged in violations of Section 8(a)(1) and (3) of the Act
by discriminatorily laying off Brown and Liming because of
their support for the International Union of Operating Engi-
neers, Local 18 (the Union).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing

1 All dates are in 2006, unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged as a contractor per-
forming commercial and residential landscaping and in the
production and sale of landscaping products at its facility in
Xenia, Ohio, where it derived gross revenues in excess of
$500,000 and purchased and received goods and materials val-
ued in excess of $10,000 directly from points outside the State
of Ohio. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
During February 2006, Union Organizer Scott Stevenson
met with Respondent’s part-owner and president, Jeanne Hell-
strom, to explain the benefits of union representation. Hell-
strom wanted more time to consider the matter and was reluc-
tant to agree to voluntarily recognizing the Union. Accord-
ingly, Stevenson commenced visiting the various jobsites that
Respondent’s employees were working on in an effort to inde-
pendently talk to them about the benefits of union representa-
tion. Stevenson met with Brown and Liming at their work
location and Brown agreed to talk to his coworkers about the
benefits of union representation and inquire whether they
would sign union authorization cards. Stevenson also visited
employees at their homes and by July 8 had acquired signed
authorization cards from a majority of the Respondent’s em-
ployees. Accordingly, on July 10, Stevenson met with Hell-
strom at the facility and asked that she voluntarily recognize the
Union as the employee’s collective-bargaining representative.
Hellstrom was noncommittal and within the hour Stevenson
received a telephone call from an attorney representing the
Respondent who apprised him that the Employer was unwilling
to recognize the Union and wanted to proceed to an election
before the Board.
In order to put additional pressure on the Respondent to rec-
ognize them, the Union engaged in recognitional picketing for
30 days at various jobsites and began to contact general con-
tractors in the area who had previously employed the Respon-
dent for landscaping services. These union contractors were
requested not to retain the Respondent for future landscaping
projects due to its refusal to voluntarily recognize the Union as
the representative of its employees. Indeed, a local union con-
tractor sent a letter to Hellstrom on May 18, encouraging her to
consider the benefits of union representation (R. Exh. 9). As a
result of these actions, a considerable portion of the Respon-
dent’s repeat commercial landscaping business did not materi-
alize during the remaining months of 2006. Part-Owner Mark
Lee testified that during the 2006 business year, the Respondent
lost one-third of its business revenue or about $700,000. Ac-
cordingly, in June 2006, Hellstrom with input from Lee and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
former owner Steve Combs commenced planning for a reduc-
tion in force.2
On July 17, the Respondent conducted a reduction in force
that included the layoff of six employees including Brown and
Liming.
The Union filed a representation petition on July 19 (R. Exh.
17). In a Decision and Order dated August 18, the Regional
Director found that the unit sought by the Union did not consti-
tute an appropriate bargaining unit, and because the Union
would not proceed to an election in any other unit, dismissed
the petition (R. Exh. 18). Thereafter, the Union filed a second
representation petition on September 8, seeking an expanded
bargaining unit and on October 23, the Regional Director is-
sued a Decision and Direction of Election (R. Exh. 1). An elec-
tion was held on November 21, in which the tally of ballots
showed that two votes were cast for the Union and seven bal-
lots against representation. Accordingly, the Regional Director
issued a Certification of Results of the election finding that the
Union was not selected as the collective-bargaining representa-
tive of the Respondent’s employees (R. Exh. 20).
Respondent’s part-owner, Hellstrom (5-percent ownership
interest), along with business partners Mark and Theresa Lee
(49- and 46-percent ownership interest, respectively), pur-
chased the Employer from former Owner Combs in November
2005. As part of the sale agreement, Combs remained with the
Employer in a sales and estimating capacity for a period of 1
year, leaving the Respondent on December 1. At all material
times the pertinent employee complement includes two com-
mercial landscape foremen, Kelly Guthrie and Tim Muterspaw,
a residential landscape foreman, Justin Pemberton, and a main-
tenance and production foreman, Dustin Miller.3 In addition,
there are four employees on the hydro seeding crew, Donald
Combs, David Dodson, Brown, and Doug Leslie. As members
of the hydro seeding crew, the employees typically move from
job-to-job and report to the foreman of the job to which they
are assigned. Liming serves as a maintenance mechanic in the
shop and as a driver delivering landscape products to custom-
ers.
The Respondent generates 40 percent of its revenue from on-
site retail and wholesale sales of its landscape products, includ-
ing topsoil, mulch, garden blends, and gravel. Additional reve-
nue is generated by snow removal jobs during the winter
months and the spreading of biosolids in local fields. The re-
maining 60 percent of the Employer’s revenue is generated
through its commercial and residential landscaping projects,
including hydro seeding. Of this 60 percent, about half is at-
tributed to commercial landscaping work.
A variety of equipment is used by the Employer in its pro-
duction operations. The Respondent has CAT loaders, a rubber
tired backhoe, a track hoe, several bobcats, and a dozer. It also

2 The evidence establishes that in April 2006, the Respondent em-
ployed 14 employees. By April 2007, the complement of employees
had been reduced to seven employees.
3 In the Regional Director’s Decision and Direction of Election dated
October 23, he found that Foreman Muterspaw, Pemberton, and Miller
were not supervisors within the meaning of Sec. 2(11) of the Act and
were eligible to vote in the November 21 election (R. Exh. 1).
has grinder production machines, a topsoil processor, and a
trammel screen. It also uses dump trucks to deliver landscaping
products to jobsites and customers.
B. The 8(a)(1) Allegations
The Board has held that interrogation is not a per se violation
of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176 (1984), affd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determin-
ing whether an interrogation is unlawful, the Board examines
whether, under all the circumstances the questioning reasonably
tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. 269 NLRB, above at 1177–
1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under
the totality of circumstances approach, the Board examines
factors such as whether the interrogated employee is an open
and active union supporter, the background of the interrogation,
the nature of the information sought, the identity of the ques-
tioner, and the place and method of interrogation. Rossmore
House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332 F.2d
47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB
1217, 1218 (1985).
1. Allegations concerning Jeanne Hellstrom
The General Counsel alleges in paragraph 5(a) of the com-
plaint that in June 2006, Hellstrom coerced employees by tell-
ing an employee that it would not permit a union, or it would
prevent a union, and that a union would never work informing
employees that it would be futile for them to select the Union
as their bargaining representative.
a. Facts
There is no dispute that the Respondent was opposed to hav-
ing the Union represent its employees and Hellstrom informed
them that it was not in their best interests because it would
come between them. Indeed, Hellstrom told employees who
engaged her in conversations about the Union that in her opin-
ion a third-party organization would interfere with our mutual
ability to succeed in the landscaping business. Moreover, Hell-
strom told employees that if a union came in she would lose
control and would be unable to discuss issues and problems
with employees without the presence of a union representative.
In May 2006, Brown testified that he talked to Hellstrom at
the water cooler with Foreman Miller and informed her that he
thought a union would benefit both the Employer and its em-
ployees. According to Brown, Hellstrom stated that there
would be no union in the facility. Brown further testified that
immediately after the conversation with Hellstrom, Foreman
Miller told him that Hellstrom would shut the doors before a
union would come in the facility.
In June 2006, Brown expressed his opinion to Hellstrom by
room floor that “[w]e need a union because it would help us get
more prevailing wage work.” According to Brown, Hellstrom
told him that there would be no way that a union could come in
the facility because she would lose total control of personnel.
Hellstrom further told Brown “that everybody has an opinion
and you are entitled to your opinion but there would be no way
that a union would be in there” and she would do anything to
stop a union from coming in the facility.
BIOSOURCE LANDSCAPING SERVICES 23
Hellstrom categorically denied that she made the statements
attributed to her in this paragraph of the complaint.
b. Discussion
Brown’s testimony does not confirm that Hellstrom made the
statements attributed to her in the complaint allegations.
Rather, Brown testified that Foreman Miller informed him that
Hellstrom would shut the doors before a union would come in
the facility. First, I note that no allegations are alleged in the
complaint that Miller engaged in any unlawful conduct. Sec-
ond, even if such allegations were alleged, the Regional Direc-
tor affirmatively determined that Miller was not a statutory
supervisor within the meaning of the Act and, therefore, such
statements cannot be attributed to the Respondent (R. Exh. 1).
Lastly, Brown’s testimony connects the statements alleged in
the complaint to Miller rather than Hellstrom. I find that
Brown’s testimony cannot be credited as he asserts that Miller
told him what Hellstrom would do and that Hellstrom’s testi-
mony is couched by her opinion rather than direct threats to
Brown. Moreover, Miller did not support Brown’s testimony
that Hellstrom stated there would be no union in the facility.
For all of those reasons, I recommend that the allegations al-
leged in paragraph 5(a) of the complaint be dismissed.
2. Allegations of plant closure
The General Counsel alleges in paragraphs 5(b) and (c) of
the complaint that during June 2006, Hellstrom threatened em-
ployees with plant closure if the Union was voted in as their
collective-bargaining representative.
a. Facts
Since 1986, Guthrie was employed at the predecessor em-
ployer and he continued as a landscaping foreman at the Re-
spondent until he voluntarily left in September 2006, due to his
hours of work being reduced. Guthrie signed a union authori-
zation card and expressed his opinion to Hellstrom that a union
would be beneficial to the Employer and its employees. Hell-
strom informed Guthrie that in her opinion a union was not the
right way to go for the Respondent. Guthrie testified that Hell-
strom held a number of meetings with employees in which the
Union was discussed. The majority of the meetings occurred
after July 2006, but he remembered that a meeting was held in
June 2006 with all employees. During the course of the meet-
ing, Guthrie testified that Hellstrom stated that she would close
the doors before she would let the Union come in and take con-
trol of her company. Employee Doug Leslie also testified that
he attended a meeting in June 2006, with seven or eight em-
ployees in which Hellstrom discussed issues related to the Un-
ion and the distribution of authorization cards. During the
course of the meeting, Leslie testified that Hellstrom informed
the employees that if the Union came in she would have to
close the doors. Hellstrom further stated that she could not
afford to have the Union come in and would have to go through
the Union if she wanted to talk with anybody. She also said
that the Union would just cause conflict in the Company.
Liming testified that around the beginning of June 2006, at a
time when he was talking to Miller just after lunch, Hellstrom
approached them and asked, “[W]hat do you all know about the
Union thing?” Liming said it was going to get us prevailing
wage jobs so it’s probably a good thing. Hellstrom then said
that a union would not help the company and would hurt it
financially. She further stated “that if the Union got in, she
would probably close the doors down and then open it back up
in a different name later on.”
Hellstrom admitted holding a meeting with employees in
June 2006, in which issues relating to the Union were discussed
but denies that she made any threatening statements or in-
formed employees that she would close the doors if the Union
was voted in as their collective-bargaining representative either
during the meeting or at any other time.
Both Foremen Muterspaw and Miller testified that they at-
tended a meeting in June 2006 with other employees in which
Hellstrom stated that the Respondent could not financially sup-
port a union, a union was not in the best interest of the Com-
pany and it was not the direction that she wanted to take the
Company. While Muterspaw stated in his testimony that Hell-
strom never threatened employees about their union activities
or threatened to close the plant, he did not specifically testify
that Hellstrom did not make the comments alleged in the com-
plaint during the June 2006 meeting. Miller testified that he
does not remember Hellstrom saying at the June 2006 meeting
that if the Union comes in she would close the doors but he
could not state that Hellstrom did not say it either. He testified
that he simply could not remember (GC Exh. 14).
Miller was not asked about nor did he testify concerning the
statements that Hellstrom made in Liming and his presence
about closing the doors down in early June 2006.
b. Discussion
Guthrie impressed me as a credible witness whose testimony
has a ring of truth to it. He was of the opinion that the presence
of the Union could generate more prevailing wage work for the
Respondent and so informed Hellstrom. He supported Hell-
strom’s testimony that business started to dramatically drop off
in the summer of 2006 after the Union put pressure on local
general contractors to not hire the Respondent for landscaping
services and a number of employees including himself saw
their work hours reduced. I also note that Guthrie was a fore-
man who worked closely with Hellstrom on a daily basis and
supported her testimony that Brown and Liming were laid off
for legitimate business reasons unrelated to their union activi-
ties. Therefore, I find his version of what occurred at the June
2006 meeting more plausible and fully credit his testimony that
Hellstrom told employees that she would close the doors if the
union was voted in as their collective-bargaining representative.
Likewise, Leslie specifically named the employees who at-
tended the June 2006 meeting in the showroom and was posi-
tive that Hellstrom stated during the course of the meeting,
when discussing issues relating to the Union and expressing
that a union was not in the best interests of the Company, that
she would close the doors if the Union came in.
Liming’s testimony that Hellstrom threatened to close the
doors down is consistent with the testimony of Guthrie and
Leslie. Miller was not asked nor did he testify about the June
2006 threat to close the doors down.
For all of the above reasons, I credit the testimony of Guthrie
and Leslie and do not rely on the general denials of Muterspaw
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
and Miller that did not specifically deny the comments made by
Hellstrom at the June 2006 meeting in finding that Hellstrom
made the comments attributed to her in paragraphs 5(b) and (c)
of the complaint. Likewise, I credit Liming’s testimony that is
fully consistent with Guthrie and Leslie that Hellstrom threat-
ened to close the doors down if the Union was voted in as the
employees’ collective-bargaining representative. Under these
circumstances, I conclude that Respondent engaged in viola-
tions of Section 8(a)(1) of the Act. Williamhouse of California,
Inc., 317 NLRB 699 (1995).
3. Interrogation of employee’s union activities
The General Counsel alleges in paragraph 5(d) of the com-
plaint that on July 11 Hellstrom interrogated an employee about
the employee’s union activities.
a. Facts
Liming testified that on July 11 Hellstrom approached him in
the shop and asked whether he had signed a union card or had
any conversations with union representatives. Liming said, he
signed a union card but had not spoken to Scott Stevenson in a
month. Hellstrom stated that Stevenson was just at the facility
and was aggressive toward her.
b. Discussion
I credit Liming’s testimony regarding this alleged discussion
for a number of reasons. First, Stevenson credibly testified that
on July 10 he went to the facility and told Hellstrom that a ma-
jority of the employees signed authorization cards and re-
quested voluntary recognition. Thus, Hellstrom’s statement
that Stevenson was just there appears to confirm that she spoke
with Liming at a point in time very close to July 10. Second,
while Hellstrom generally denied that she did not interrogate
employees, she was never asked whether she interrogated Lim-
ing about signing a union card or whether he had any discus-
sions with union officials. Thus, she did not specifically deny
this allegation. Third, Hellstrom was present in a conversation
she had with Miller who informed her that Liming did not un-
derstand the significance of what signing a union card really
meant. Fourth, Liming’s testimony is consistent with his pre-
trial affidavit that was given on December 13, a period of time
closer to the events in question (R. Exh. 5). Under these cir-
cumstances, Liming’s testimony has a ring of truth to it and I
find that Hellstrom interrogated him about whether he signed a
union card or had any conversations with union representatives.
Accordingly, I sustain the allegations in paragraph 5(d) of the
complaint and conclude that Respondent violated Section
8(a)(1) of the Act.
4. The agency status of Theresa Lee
The Board and the courts have uniformly held that whether
someone acts as an agent under the Act must be determined by
common law principles of agency. See, e.g., NLRB v. Plaster-
ers Local 90, 606 F.2d 189 (7th Cir. 1979), enfg. 236 NLRB
329 (1978).
Applying these principles to the subject case, the evidence
establishes that Lee is a principal of the Respondent holding a
46-percent ownership interest and also holds the title of vice
president. According to her husband and majority owner, she
has attended financial planning meetings related to the busi-
ness.
Several employees credibly testified that shortly after the
business was sold in November 2005 Lee was introduced at a
meeting that they attended as one of the new owners of the
Company.
Significantly, in a notice to Respondent’s employees that an-
nounced the date for the representation election, Lee was a
signatory along with Hellstrom and urged employees to vote no
and to reject the Union’s attempt to come between management
and the employees. The memorandum ended by stating, “[I]n
the meantime if you have any questions relating to the election
or the Company’s position relating to the Union please feel free
to contact one of us.” (R. Exh. 21(c).)
For all of the above reasons, and particularly noting that Lee
urged employees to contact her if they had any questions relat-
ing to the election or the Company’s position relating to the
Union, I find that as a principal owner and an officer of the
corporation, Lee is an agent within the meaning of Section
2(13) of the Act.
5. Allegation concerning Theresa Lee
The General Counsel alleges in paragraph 6 of the complaint
that about December 5 Lee threatened an employee with job
loss because the employee supported the Union.
a. Facts
Employee Donald Combs (no relation to former owner Steve
Combs) testified that he was in the office on or about December
5, and engaged Lee in a conversation. He asked Lee if she was
glad that the union stuff was over. During the course of their
discussion, Combs informed Lee that he was one of the two
“yes” votes for the Union in the recently held election. Accord-
ing to Combs, “Lee said I would never believe that.” Lee then
said, “You might as well just spit in my face, don’t you like
your job, do you want to come back in the spring.”
Lee did not testify and, accordingly, the above statements
stand unrebutted.
b. Discussion
Based on my prior finding that Lee is an agent of the Re-
spondent, I find that Lee’s statements to Combs are threatening
in nature, and therefore violate Section 8(a)(1) of the Act.
Watts Electric Corp., 323 NLRB 734 (1997).
C. The 8(a)(1) and (3) Allegations
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321
BIOSOURCE LANDSCAPING SERVICES 25
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity.
1. The positions of the parties
The General Counsel alleges in paragraph 7 of the complaint
that Brown and Liming were laid off on July 17 due to their
vigorous pursuit of union activities. In this regard, the General
Counsel argues that the Respondent knew that both of these
individuals were actively engaged in the union organizing cam-
paign and initiated the layoff to rid themselves of these two
employees. Additionally, the General Counsel asserts that the
Respondent advertised for positions and hired new employees
after the layoff that both Brown and Liming were qualified for
and could have performed. Lastly, the General Counsel con-
tends that employees who signed union authorization cards had
their work hours reduced while other employees who did not
sign cards received an increase in work hours after the layoff.
In summary, the General Counsel argues that the reasons for
the layoffs of Brown and Liming were pretextual to mask the
true reasons that they were separated from the Respondent.
The Respondent counters that the evidence supports their af-
firmative defense that they were bleeding red ink, primarily
because the Union convinced local area general contractors not
to do business with them due to the Respondent’s refusal to
voluntary recognize the Union, and it was necessary for the
Respondent to conduct a reduction in force to help offset their
monetary loses. In this regard, the Respondent evaluated the
strengths and weaknesses of its employees and analyzed what
positions were revenue producing before deciding to let go six
employees including the two discriminatees.4 With respect to
some employees receiving fewer hours after the layoff, that was
the result of a reduced workload in certain portions of the busi-
ness and the Respondent points to the fact that a number of
employees who signed union authorization cards did receive an
increase in work hours. Lastly, the Respondent argues that
while it advertised for positions after the layoff, it filled these
positions with less costly temporary employees and some of the
positions required skills and experience that Brown and Liming
did not possess. In summary, the Respondent contends that the
layoff was necessitated by its precarious financial position and
was unrelated to the union activities of Brown and Liming.

4 The other four employees that were laid off included laborers Kyle
Combs, Pablo Gonzalez, and Tim B. Muterspaw, and truckdriver Mike
Fosnaugh. The layoff of these individuals was effectuated by seniority
as the reduced workload impacted these positions and none of the posi-
tions were substantial revenue producers. As she did for Brown and
Liming, Hellstrom prepared layoff justifications for these employees.
(R. Exh. 10.)
2. The layoff of Paul Brown
a. Facts
Brown was a long-term employee of the predecessor em-
ployer having worked approximately 18 years and continued as
an employee for the Respondent after the sale of the business in
November 2005. During his tenure, he served as a laborer,
bobcat operator, and grinder and more recently as a member of
a hydro seeding crew. Brown served as the operator of the
crew and was responsible for the spraying of a hydro seed mix-
ture to assist in fertilization. The other member of Brown’s
crew was employee Doug Leslie who served as the driver of the
hydro seed trailer.
In April 2006, Brown met Stevenson and talked about the
benefits of the Union and what it could do for the employees of
the Respondent. Brown visited with his fellow employees at
their homes and passed out union authorization cards to a num-
ber of employees. After the employees signed the cards,
Brown returned them to Stevenson.
In May 2006, Brown talked to Hellstrom at the water cooler
about the Union and expressed his reasons why it would be
beneficial for both the Employer and its employees. Hellstrom
informed Brown that in her opinion a union would not be in the
best interests of the Employer and she was opposed to the con-
cept as it would interfere with her ability to manage the Com-
pany.
In June 2006, Brown again talked to Hellstrom about the Un-
ion and why it would be helpful in obtaining additional work
including prevailing rate jobs. Once again, Hellstrom ex-
pressed her reasons for not wanting a union at the Respondent.
After this conversation, Brown testified that his work hours
were reduced while other employees experienced an increase in
their hours of work.
Brown acknowledged that he had problems in organizing
and completing the paperwork for each job that he worked on
and this continued after Hellstrom repeatedly reminded him of
the requirement. As a result, Leslie took over the responsibility
and prepared the paper work that was submitted to the office to
support the hours they worked on each respective job. Brown
also testified that while he and Leslie were working at the Ver-
sailles Waste Water Treatment Plant on or about June 14, they
created deep ruts in adjacent land owned by a farmer and it was
necessary for him to return to the field along with other em-
ployees to repair the damage. He also acknowledged that he
forgot to take a measuring wheel on the return trip and measure
the job as he was instructed to do by Hellstrom. Lastly, Brown
admitted that Hellstrom observed him lying down on the York
Commons job on July 7 but he asserts that this is part of the job
when waiting for a laborer to provide him with additional
pieces of sod to be laid.
On July 17, Brown was called into the office by Hellstrom
and was told that he was going to be laid off for lack of work
along with five other employees.
Brown had never been laid off during the summer before and
after talking to other employees after the layoff, he learned that
several employees were quite busy including two members of
the other hydro seeding crew. Brown returned to the office
after his layoff to inquire of Hellstrom if there was any work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
available since he had been informed by fellow employees that
the Respondent had recently hired a temporary truckdriver.
Hellstrom instructed him to complete an application but Brown
declined to do so.
In February and March 2007, Brown observed a number of
advertisements in the local newspaper for positions at the Re-
spondent that he believed he was qualified for (GC Exhs. 2, 3,
4, and 11). However, he did not file applications for any of the
positions.
b. Discussion
Hellstrom credibly testified that due to the dire financial
condition of the Respondent, primarily due to the Union putting
pressure on local general contractors not to hire or renew con-
tracts with the Respondent, she was forced to consider the dras-
tic measure of a reduction in force (R. Exh. 7).5 After consult-
ing with Co-owner Mark Lee and former owner Combs, it was
decided to concentrate on positions that were not major revenue
producers and to evaluate employees based on whether they
had the flexibility to perform other tasks to make the Respon-
dent more efficient in face of their declining revenues and loss
of net income. In addition, Hellstrom compiled in late June
2006 a layoff justification outline for the employees under con-
sideration including performance deficiencies that she observed
with specific employees (R. Exh. 10). In regard to Brown, she
compared his productivity to the other hydro seed crew and
concluded that Brown and Leslie took longer to perform simi-
larly situated jobs. Likewise, Hellstrom evaluated recent prob-
lems with Brown’s performance including his responsibility for
creating deep ruts on the Versailles job in a farmer’s adjacent
field that required additional expense to fix in addition to driv-
ing several hours to repair the damage. Hellstrom also consid-
ered that Brown failed to bring a measuring wheel to measure
the job while they were repairing the damage as he was in-
structed to do. Hellstrom further considered Brown’s long-term
problem in not submitting proper paperwork which necessitated
additional training and ultimately Leslie maintaining and sub-
mitting Brown’s paperwork. Lastly, Hellstrom noted the com-
plaint of a customer for the York Commons job, in which she
observed Brown lying down on the job for approximately 1
hour, that it was one of the worst trimming jobs he had seen
and several pieces of sod were double stacked.
On July 17, Hellstrom informed Brown that he would be laid
off for lack of work along with five other employees. Hell-
strom admitted that she did not inform Brown during their dis-
cussion that performance issues were also considered when
deciding which employees would be selected for layoff.
There is no question that Brown was one of the leading un-
ion adherents who distributed union authorization cards to em-
ployees and made known his union sympathies to Hellstrom.
Likewise, it is apparent that the Respondent was opposed to

5 The exhibit shows a breakdown of the net income for each month
during 2006. It confirms that the Respondent suffered substantial net
income declines in the first 6 months of the year that continued
throughout the second portion of the year. Hellstrom credibly testified
that she is able to estimate business 6 months in advance and knew due
to general contractors in the area not hiring the Respondent that busi-
ness would continue to decline in the second half of the year.
having a Union at the facility and Hellstrom expressed this
sentiment openly both orally and in writing.
I find that the decision to conduct the layoff was made in ad-
vance of Stevenson meeting with Hellstrom on July 10, and
apprising her that a majority of the employees had signed union
authorization cards which prompted his request that Hellstrom
voluntarily recognize the Union. While it is apparent that a
number of employees lost hours of work after the layoff, this is
an end product of a reduced workload in certain areas of the
business rather than a penalty for supporting the Union. In this
regard, the evidence shows that employees Donald Combs,
David Dodson, and Justin Pemberton6 all signed union authori-
zation cards but they were not laid off on July 17, and their
work hours increased after the layoff (R. Exh. 23).
It is also significant that Guthrie, who suffered a loss of work
hours with the reduction of the commercial landscaping portion
of the business, testified that the loss of prevailing wage jobs
and the Union putting pressure on local general contractors not
to renew business with the Respondent was what precipitated
the layoff. Likewise, Guthrie testified that prior to the layoff
Hellstrom complained to him about Brown’s lack of productiv-
ity and his inability to fill out paperwork for the jobs he per-
formed. Guthrie was of the opinion that those were the primary
reasons that Brown was selected for layoff. It is noted that
Guthrie signed a union authorization card and expressed his
opinion to Hellstrom as to why a union would be beneficial at
the Respondent. Despite his advocacy for a union, he was not
laid off and left the Respondent voluntarily in September 2006,
due to having his hours of work reduced.
For all of the above reasons, I find that Brown was not laid
off because of his union activities but rather because of a busi-
ness necessitated layoff that was carefully planned, considered
and effectuated based on nondiscriminatory criteria. Therefore,
I find that the Respondent did not violate Section 8(a)(1) and
(3) of the Act when it laid off Brown on July 17.
3. The layoff of Matthew Liming
a. Facts
Liming commenced work with the predecessor employer in
2001, and continued to be employed with the Respondent after
it purchased the business. He principally worked as a mechanic
and also drove a truck when making deliveries to customers.
Liming learned about the Union when Stevenson visited one
of the jobsites in March 2006, and signed a union authorization
card on July 8. He spoke with other employees during May and
June 2006, about the Union and gave an authorization card to
his supervisor, Miller.
On March 6, Hellstrom approved a raise for Liming that in-
creased his wages from $13.75 to $16.50 per hour (R. Exh. 5).
On July 11, Hellstrom approached Liming in the shop and
asked him whether he had signed a union card or had any con-
versations with union representatives. Liming replied that he
signed a union card but had not talked to Stevenson in a month.
Hellstrom said that Stevenson was just there and that he was
aggressive toward her.

6 Dodson and Pemberton informed Hellstrom that they had signed
union authorization cards.
BIOSOURCE LANDSCAPING SERVICES 27
On July 17, Liming returned home after his shift. Hellstrom
called him on the telephone and requested that he return to the
shop as there was something important she needed to discuss
with him. Liming returned to the shop and went to Hellstrom’s
office. Hellstrom informed Liming that because work was slow
he was going to be laid off. Liming strenuously objected to the
fact that work was slow but told Hellstrom, “[Y]ou are going to
do whatever you want and let’s get this over with.”
After the layoff, Liming observed advertisements in the local
newspaper for a number of jobs at the Respondent, some of
which he testified he was qualified for. However, he acknowl-
edged that he did not apply for any of the positions.
Prior to the election that was held on November 21, the Un-
ion and the Respondent agreed that Liming had no expectancy
of recall from the layoff and, therefore, was ineligible to vote in
the election (R. Exh. 1).
b. Discussion
As Hellstrom did for all of the other employees that were
laid off on July 17, she compiled a layoff justification for Lim-
ing in late June 2006 (R. Exh. 10). Based on the downward
trend in business both at the time of the layoff and forecasted
for the rest of the year, Hellstrom determined that no major
maintenance projects were planned and, therefore, she only
required a total of two mechanics. As it concerned Liming,
Hellstrom was aware that Miller had talked to him on June 22
concerning productivity issues relative to a lack of scheduled
maintenance being completed, not keeping the shop area clean,
and not following verbal instructions relative to repairs. Like-
wise, Hellstrom had also met with Liming on that same day to
discuss his excessive use of the Employer’s cell phone for per-
sonal calls. In that regard, for the time period from May 15
through June 14, Liming’s business cell phone had 314 minutes
of usage, with the majority of the calls made during nonbusi-
ness hours and to nonbusiness telephone numbers. Liming was
issued a “memo of understanding” for this infraction (R. Exh.
4).
Hellstrom additionally relied on the fact that Liming worked
in a nonrevenue generating position and the repair requirements
could be adequately handled by the other two mechanics.7
Hellstrom was also concerned with Liming’s grooming and
disheveled appearance that did not present a good public image
when he was making deliveries to customers.8
Miller testified that Liming continued to have disagreements
with Hellstrom over his pay and vacation entitlement. Miller
stated that Hellstrom informed him that Liming was laid off
because of a lack of work, poor job performance, and his di-
sheveled appearance. Miller further testified that he had be-
come good friends with Liming over the years and Liming
never told him that he thought the layoff was related to his
union activities. Rather, he told Miller that the layoff was due
to not seeing eye-to-eye with Hellstrom.

7 Miller and employee Darell Hohn also performed maintenance
functions.
8 Guthrie testified that he informed Hellstrom that Liming frequently
appeared at work with alcohol on his breath and in his opinion was not
competent to fix brakes on the Respondent’s equipment.
While not dispositive, I note that the Union did not file ob-
jections to the conduct of the election nor did they file the un-
fair labor practice charges on behalf of Brown or Liming alleg-
ing that the layoff was the result of their union activities.
Likewise, it is significant to note that the Union stipulated with
the Employer that Liming had no expectancy of recall after the
layoff, and therefore was ineligible to vote in the election. That
stipulation occurred prior to the filing of the subject unfair la-
bor practice charge by Liming. Lastly, I note that Liming testi-
fied that he had no intention of filing the subject unfair labor
practice charge until he was approached by Brown who sug-
gested that he do so.
Based on the forgoing, I find that the layoff of Liming was
based on legitimate nondiscriminatory reasons unrelated to his
union activities. Therefore, I find that the Respondent did not
engage in violations of Section 8(a)(1) and (3) of the Act.9
4. Newspaper advertisements and the hiring of employees
There is no dispute that the Respondent advertised after the
layoff for a number of positions that were to be filled on a tem-
porary basis with the exception of one permanent position.
It must be noted that after the layoff of six employees on
July 17 additional attrition occurred with the voluntary resigna-
tions of Leslie, Guthrie, and George Kirby in August and Sep-
tember 2006. Additionally, Hohn was injured at work and went
on worker’s compensation and Combs broke his arm and was
unable to work as a hydro seeder. Accordingly, the Respondent
decided to advertise for temporary help commencing in De-
cember 2006, and placed three additional advertisements in late
February and early March 2007. The Respondent determined
to use temporary agencies or word of mouth to fill these posi-
tions as the costs were considerably less than the wages that
Brown and Liming earned at the time of their layoff. Most of
the individuals hired pursuant to these advertisements worked
short durations including the five individuals that worked for 1
week as snowplow drivers. This is consistent with the Respon-
dent’s position that it anticipated it would continue to lose
money during the first quarter of 2007, and is confirmed by the
actual figures that were introduced at the hearing showing a
loss of net income in excess of $90,000 (R. Exh. 8). In any
event, the Respondent did not consider Brown or Liming for
those positions because neither of them responded to the adver-
tisements and the Respondent could not afford to pay them
their former wages and benefits.
As it concerns the permanent employee, Clark Widenheft
was hired in September 2006 for a newly created position to
increase business in production due to his heavy equipment
background and sewer and pipe excavation experience. He was
not hired to do mechanical work, operate the hydro seeding
equipment, or drive a truck, job experience that both Brown
and Liming possessed. Likewise, neither Brown nor Liming
had experience equivalent to Widenheft and were not qualified

9 Accordingly, I find that the General Counsel did not establish that
antiunion sentiment was a substantial or motivating factor in the layoff
of Brown or Liming. If others disagree, I would still find that the Re-
spondent would have taken the same action concerning both employees
even if they not engaged in protected activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
for the position. Additionally, Widenheft was hired to help fill
the void of Hohn being off work due to a work-related injury.
Unfortunately, Widenheft did not work out based on expecta-
tions and he left Respondent’s employ in March 2007.
Based on the foregoing, and particularly noting that neither
Brown nor Liming applied for any of the advertised positions, I
am of the opinion that the Respondent legitimately did not con-
sider them for the advertised positions in addition to Widen-
heft’s position.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it
threatened employees with plant closure if the Union was voted
in as their collective-bargaining representative, when it interro-
gated an employee about the employee’s union activities and by
threatening an employee with job loss because the employee
supported the Union.
4. Respondent did not violate Section 8(a)(1) of the Act
when it informed employees that it would not permit a union
and that it would be futile for them to select the Union as their
bargaining representative.
5. Respondent did not violate Section 8(a)(1) and (3) of the
Act when it laid off employees Paul Brown and Matthew Lim-
ing on July 17, 2006.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Biosource Landscaping Services, LLC,
Xenia, Ohio, its officers, agents, successors, and assigns, shall

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1. Cease and desist from
(a) Threatening employees with plant closure if the Union
was voted in as their collective-bargaining representative.
(b) Interrogating an employee about the employee’s union
activities.
(c) Threatening an employee with job loss because the em-
ployee supported the Union.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Xenia, Ohio, copies of the attached notice marked
“Appendix.”11 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 12,
2006.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”